WEST VIRGINIA RECORD

Motion Docket
Wednesday, Sept. 13

1. Tammy Birchfield, Admx. and Guardian, etc. v. Independence Coal Co., Inc., dba Progress Coal Co., Massey Energy Co., et al. - 060451 - Defendants below seek review of certified questions arising from deliberate intent causes of action, involving whether there was a voluntary assumption of duty to train and comply with safety guidelines.

QUESTION 1: Whether a cause of action exists in WV known or referred to as either "voluntary undertaking" by common law, or by adoption of the Restatment of the Law (2d) of Torts, Section 324A which provides: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

ANSWER: Yes.

QUESTION 2: if the anser to Question 1 is "yes," whether there may be liability applicable from a corporate parent, subsidiary or co-subsidiary, to employees of a subsidiary, co-subsidiary, or affiliate for its independent acts of negligence in the performance of such voluntary undertakings?

ANSWER: Yes.

2. State of W. Va. v. Garth Lester - 060350 - Defendant appeals following his conviction for first degree murder without mercy.

3. Julie A. Metz v. Concord College - 060577 - Plaintiff Julie A. Metz appeals from an adverse jury determination and the circuit court's denial of her motion for new trial. She asserts that the court incorrectly applied the public duty doctrine to her premises liability case. - Withdrawn.

4. Stephen J. Antolini, Roger McClanahan, and Mickey Sylvester v. WV Division of Natural Resources - 060726 - Three state employees appeal from the circuit court's order dismissing their grievance appeal. The court found their claims were barred by res judicata.

5. David R. Kyle v. Dana Transport, Inc., and Ronnie Dodrill - 060991 - Plaintiff appeals from the circuit court's order granting judgment in favor of defendants and ruling that plaintiff was not entitled to present his case under a res ipsa loquitur theory.

6. Schrader Byrd & Companion, PLLC v. Francis G. Marks, et al. - 061002 - Defendants appeal from the circuit court's order granting summary judgment in favor of the plaintiff law firm in this action to determine whether defendants are under a contingent fee contract for future coal-related income.

7. Carole E. Damron Shortt v. Frederick Cecil Damron - 061164 - Petitioner initially filed a Motion to Vacate an Order dated August 3, 1987, which included a provision requiring petitioner to support the children for "post high school education". The Family Court found that although the Motion to Vacate was granted by virtue of the statute, because the provision for higher education was incorporated in a Separation Agreement, it "survives as an independent contractual obligation." The Circuit Court later affirmed the Family Law Court's decision.

8. State of W. Va. v. Tracy Haggerty - 061089 - Petitioner appeals jury conviction for murder without mercy.

9. State of W. Va. v. Jason Edward Horne - 061226 - The circuit court certifies a question regarding application of the "three term rule."
CERTIFIED QUESTION PRESENTED
Does the "three term rule" pursuant to West Virginia Code § 62-3-21 require dismissal with prejudice when the defendant was indicted on January 12, 2004 and the trial date was continued without objection through two terms, by agreement in one term and no hearings were requested for over one year after the last continuance?
Circuit Court's Answer: No. The three term rule does not preclude going forward to trial.

Argument Docket
Wednesday, Sept. 13

1. SER Dept. of Transportation, DOH, et al. v. Hon. Donald H. Cookman, Judge - 33095 - Dept. of Highways seeks a writ of prohibition to prevent disclosure of certain documents in a condemnation matter.

2. Copier Word Processing Supply, Inc. v. Wesbanco Bank, et al. - 33046 - The circuit court certifies a two-part question concerning the applicability of the continuing tort theory to the statute of limitations for conversion of negotiable instruments, W.Va. Code § 46-3-118(g).

CERTIFIED QUESTION PRESENTED

In a case governed by the three year limitations period provided for in West Virginia Code 46-3-118(g):

(a) Does the continuing tort theory apply to the alleged conversion of multiple, separate negotiable instruments made payable to the plaintiff's business by an employee of plaintiff to her personal checking account at defendant bank over a period of several years, such that the cause of action accrues at, and the statute of limitations does not begin to run until, the date of the alleged conversion of the last negotiable instrument, permitting damage claims for instruments allegedly converted more than three years prior to the filing of the complaint, or

(b) Does the cause of action accrue and the limitations period run from the date of the negotiation of each separate instrument permitting damage claims only for such instruments allegedly converted within such three year period prior to the filing of the complaint?

Circuit court's answer: (a) No; (b) Yes.

3. Katherine Bowman Twyman v. Sally G. Jackson, Family Court Judge, et al. - 33005 - Petitioner appeals from the circuit court's order denying her petition for a writ of prohibition seeking to prohibit the effect of orders entered by the family court in a domestic violence proceeding brought against petitioner by her minor son. Petitioner also seeks to reverse the findings made by the circuit court in its order denying her petition for a writ of prohibition and seeks clarification of the language in West Virginia Code §48-7-305. - Continued.

4. Captain Earl F. Legg, Jr. v. Mayor David A. Felinton, et al. - 33044 - The City of Huntington appeals from the circuit court's order reversing a decision of the Fireman's Civil Service Commission which upheld the City's decision to suspend, without pay, and/or terminate plaintiff for a "substituted-refusal to test" drug test conducted pursuant to a reasonable suspicion. The City seeks a reversal of the circuit court's order and a reinstatement of the Commission's decision so that the City may be permitted to terminate plaintiff's employment.

5. SER John McLaurin v. Thomas McBride, Warden - 32983 - This is an appeal from denial of a petition for Writ of Habeas Corpus, seeking reversal and remand to the Circuit Court to grant the petition for Writ of Habeas Corpus and order a new trial.

6. State of W. Va. v. Ronnie Allen Rush - 33035 - Continued.

7. In Re: Jason B. and Jasmine S. - 33009 - This is an appeal of the circuit court's order refusing an appeal of the family court order denying the request for modification of visitation. Appellants request that the father have supervised visitation.

8. State of W. Va. v. Michael Lynn Nutter - 33003 - Defendant appeals from his conviction for the felony offense of failure to meet an obligation to provide support to a minor following a jury trial. Defendant's sentence of 1 to 3 years was suspended and he was placed on two years probation and ordered to pay court costs and restitution. Defendant seeks to have his conviction set aside, a judgment of acquittal entered, and a release from any further obligations with regard to this matter.

9. James Robert Evans, Jr. v. Sharon Rose Evans - 33045 - Petitioner James Evans, Jr. appeals the circuit court's order reinstating his spousal support obligation and ordering him to pay arrearages which accrued after the family court ordered the payments stopped.

10. Office of Disciplinary Counsel v. Lafe P. Ward, Jr. - 33114 - The Court will hear argument in this lawyer disciplinary matter.

11. Office of Disciplinary Counsel v. L. Dante DiTrapano - 33115 - The Court will hear argument in this lawyer disciplinary matter.