SupCo calendar for 9/18 issue

Argument Docket
Tuesday, Sept. 19

Joan C. Edwards Performing Arts Center
Marshall University
Huntington

1. Tax Commissioner of the State of W. Va. v. MBNA America Bank, N.A. - 33049 - Appellant, MBNA America Bank (hereinafter "Bank") is a Delaware financial organization whose principal business is issuing and servicing Visa and MasterCard credit cards. The Bank solicits, issues and services credit cards to people with West Virginia addresses. The taxes at issue are computed by taxing the portion of income attributable to gross receipts received by the Bank from this West Virginia source pursuant to the West Virginia Business Franchise Tax and Corporate Net Income Tax under W.Va. Code §11-23-5(a) and §11-24-7(b). This case originated as an action by the Bank to recover a refund of the taxes paid for the years 1998 and 1999. Initially, the Chief Administrative Law Judge of the Office of Tax Appeals determined that the Commerce Clause of the United States Constitution and the applicable state statute prohibit the Commissioner's imposition of the tax at issue. The State Tax Commissioner appealed the decision of the Chief Administrative Law Judge to the circuit court. The circuit court reversed the final decision of the Office of Tax Appeals and denied the Bank's cross-petition for appeal holding that the Commerce Clause permitted the Commissioner's imposition of the tax. The Bank now appeals that decision, asking this Court to reverse the circuit court, arguing that the taxes as imposed violate the Commerce Clause of the United States Constitution.

2. Mark Mikesinovich, Executor. v. Reynolds Memorial Hospital, Inc. - 32968 - This is an appeal by the Plaintiff below from the circuit court's order denying his motion for a new trial following an adverse jury verdict in a medical negligence action against the Hospital. Appellant's mother was a patient at the Hospital when she fell and broke her hip while being assisted by a nurse. Appellant argues the trial court erred in refusing to strike certain jurors with disqualifying bias identified in the juror questionnaire and asks, does a party have a right to try a case to a fair and unbiased jury? The Hospital argues the fall was through no fault of the nurse or the Hospital, as is supported by the jury verdict, which had nothing to do with the composition of the jury. The Hospital states the plaintiff failed to prove its case. Additionally, the Hospital argues that the plaintiff invited the error now complained of by insisting on using a juror questionnaire regarding medical malpractice liability crisis in West Virginia, precluding reversal. Finally, the Hospital argues that the voir dire of prospective jurors supports their freedom of bias or prejudice and the jury returned a verdict based on the law and evidence.

3. State of W. Va. v. Norma Jean Saunders - 33034 - Norma Jean Saunders appeals her conviction upon conditional guilty plea of one count of a felony violation of the Solid Waste Management Act, W.Va. Code § 22-15-15(b)(4). She operated a landfill and received a cease and desist order for various violations from the West Virginia Department of Environmental Protection. Her conviction arises out of her failure to abide by the terms of the order. She was sentenced to six months probation and ordered to pay a fine. On appeal she argues that the indictment failed to allege an essential element of felony offense in that the indictment charged her with violating an enhancement statute that requires a prerequisite conviction before a felony can be imposed. Additionally, she argues that the statute under which she was charged is vague and therefore unconstitutional. The State responds, saying there is nothing unclear or uncertain, let alone unconstitutionally vague about the statute in question. The State argues that by entering a plea of guilty, she admitted that the evidence was sufficient to support a felony conviction. Arguing that statutory construction supports the conviction, the State asks this Court to affirm the sentence.

4. Joseph E. Ryan v. Clonch Inudstries, Inc., et al. - 33001 - Appellant, Joseph Ryan appeals the circuit court's order granting summary judgment in favor of defendant employers Clonch Industries, Inc. and H & D Lumber Distributors, Inc. in a deliberate intention workplace injury case. In order to prevail in a deliberate intention claim, the employee must prove all five elements of the subject statute by a preponderance of the evidence. Appellant was working as a "bander", cutting and strapping metal bands around stacks of lumber for the employer sawmilling company, when he was struck in the eye with a piece of metal and lost the vision in his eye. He argues that the employer never warned him of the inherent dangers of the specific task and did not provide him with proper safety equipment, namely eye protection. The employer argues that the prerequisites of a deliberate intent action have not been met, and therefore immunity is afforded under the workers' compensation statute.

Motion Docket
Wednesday, Sept. 20

State Capitol
Charleston

1. Lyon Chapman, Scott Chapman, and New Testament Faith Assembly of God Church v. Silvia Catron - 060701 - The defendant appeals from an adverse summary judgment and contempt ruling in a case involving a land dispute.
2. Rebecca Vilga, Exex. v. Weirton Medical Center & Lawrence E. Callahan, M.D.
- 060945 - Plaintiffs below appeal adverse jury verdict and denial of motion for new trial in a medical malpractice case.
3. State of W. Va. v. David Nelson - 060836 - Petitioner appeals life without mercy jury convictions for first degree murder and other serious offenses.
4. Estate of Alexia Sheree Fout-Iser, Marnada L. Fout-Iser & Jerry T. Iser v. John L. Hahn, M.D., and Hahn Medical Practices, Inc., et al. - 060355 - Plaintiffs appeal the circuit court's order granting summary judgment in favor of a defendant in a medical malpractice case. The court found that plaintiffs lack necessary expert testimony.
5. State of W. Va. v. Keith William Lowe - 060798 - Petitioner appeals life without mercy conviction for first degree murder.
6. Michael Worley & Cynthia Worley v. Beckley Mechanical, Inc., et al. - 061056 - Petitioner appeals adverse summary judgment on statute of limitations issue.
7. CSX Hotels, Inc., dba The Greenbrier v. Tag Galyean - 061162 - Plaintiffs in contract dispute appeal adverse verdict and partial summary judgment in favor of defendant's counterclaim.
8. Samantha Engelhardt, by parents Pamela & Karl Engelhardt, & Pamela & Karl Engelhardt, individually v. Hartford Fire Insurance Co. - 061175 - Petitioner appeals an order granting defendant's Motion to Dismiss, on the basis that the plaintiff was not an "insured" under the policy at issue.
9. Bernard Wallace v. Office of the McDowell County Prosecuting Attorney,
et al. - 061243 - Plaintiff below appeals an order dismissing a cause of action alleging civil conspiracy, retaliatory prosecuting, spoliation of evidence, concealing evidence and malicious prosecution.
10. State of W. Va. v. Wade C. Davis - 060321 - Petitioner appeals jury conviction for second-degree murder, arguing that the jury was not instructed as to the element of intent, and, given that his defense was that the killing was unintentional, that failure was plain error.

Argument Docket
Wednesday, Sept. 20

State Capitol
Charleston

1. Mary Ellen Gainer v. John David Gainer - 33065 - In this divorce proceeding, petitioner requests that this Court reverse and remand the appeal to the Family Court with directions to value pension benefits excluding premarital and post-separation credits and order an immediate distribution of the same.

2. SER Jack Kittle v. Hon. James O. Holiday, Special Judge, et al. - 33106 - Dismissed.

3. Susan M. Jackson, Admx. v. Putnam County Board of Education - 33038 - Plaintiff administratrix appeals the circuit court's order granting summary judgment in favor of the defendant school board in a wrongful death case. Plaintiff asserts that the school board was negligent in failing to provide transportation for her son to a school event off of school grounds; her son was killed in an accident while riding in a private vehicle on the way back from the event.

4. John Smith, et al. v. Irma Smith - 33063 - Plaintiffs John and Katherine Smith appeal the circuit court's adverse order entered after a bench trial on their suit to reform a deed.

5. Larry D. Elmore, Adm. v. Triad Hospitals, Inc., et al. - 33006 - Plaintiff Larry D. Elmore appeals the circuit court's order dismissing without prejudice defendant John M. Johnson, D.O. from a medical malpractice case. The court found that plaintiff failed to comply with the MPLA's pre-suit notice of claim requirements.

6. State of W. Va. v. Ernest J. Johnson - 32978 - Ernest J. Johnson appeals his conviction for second degree robbery and his sentence as an habitual offender to life with mercy.

7. State of W. Va. v. Tommy Y., Jr. - 33055 - Petitioner, T. Y., Jr., an infant, appeals from his convictions for the offense of assault on a school employee and brandishing. Petitioner seeks a reversal of his convictions, a new trial, and a release on bond pending the new trial.

8. In Re: The Petition of Blake A.C., a minor, by Christina K., etc. - 33064 - Petitioner appeals the August 26, 2005 circuit court order granting the name change of Blake Andrew Carter, as requested by the child's mother, Christina Marie Karawan.

9. Patricia E. Fitzgerald v. Earl L. Fitzgerald - 33043 - Petitioner presents the certified questions from the circuit court as follows:
QUESTION NO. 1: What portion, if any, of a lump sum Workers' Compensation permanent total disability award is considered a marital asset?
COURT'S RESPONSE: The Court FINDS that any portion of a lump sum Workers' Compensation permanent total disability award that represents payments that should have been received during the period of the parties' marriage are considered a marital asset.
QUESTION NO. 2: If so, what portion, if any, of a lump sum Workers' Compensation permanent total disability award should be considered an award for pain and suffering?
COURT'S RESPONSE: The Circuit Court adopts the analysis of the Family Court and FINDS that the 25% of the Workers' Compensation award for pain and suffering is the injured spouse's separate property.
QUESTION NO. 3: How should the family court, and upon review the circuit court, distribute that portion, if any, of a lump sum Workers' Compensation permanent total disability award that is considered marital property?
COURT'S RESPONSE: The Court FINDS that the remaining lump sum Workers' Compensation permanent total disability award would then be subject to equitable distribution as any other marital asset.
QUESTION NO. 4: Is the injured spouse entitled to any reimbursement of part of a lump sum Workers' Compensation permanent total disability award that was received prior the parties' separation?
COURT'S RESPONSE: The Court FINDS that the injured spouse is not entitled to any reimbursement unless there is a showing that this lump sum payment has been kept in some segregated account and was not consumed during the marriage. The Court FINDS that the portion of a Workers' Compensation permanent total disability award that was received prior to the parties' separation would have been consumed by the parties' during the marriage and the injured spouse is not entitled to be reimbursed his 25% by the non-injured spouse.