WEST VIRGINIA RECORD

West Virginia Supreme Court of Appeals
Argument Docket
Tuesday, March 13

West Virginia University College of Law
Morgantown

1. Estate of Alexia Sheree Fout-Iser, etc, et al. v. John L. Hahn, M.D. et al. - 33189 - 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.

2. Michael Worley, et al. v. Beckley Mechanical, Inc., et al. - 33190 - Plaintiffs appeal following a bench trial on the issue of whether plaintiff was under a disability that either suspended or tolled the running of the statute of limitations in this personal injury action. The circuit court concluded that plaintiff was not "insane" within the meaning of West Virginia Code §55-2-15.

3. State of W. Va. v. Wade C. Davis - 33191 - Defendant appeals from his conviction and sentence for second degree murder. He seeks a reversal and a new trial.

4. August Eugene Phillips, et al. v. Larry's Drive-In Pharmacy, Inc. - 33194 - The circuit court certifies a question asking whether pharmacies are "health care providers" as defined by W.Va. Code § 55-7B-2(c) [1986] of the Medical Professional Liability Act.

CERTIFIED QUESTION PRESENTED: In a civil action filed against a defendant licensed pharmacy for allegedly having negligently dispensed medication, is the pharmacy a "health care provider" as defined by W.Va. Code § 55-7B-2(c)? Circuit Court's Answer: Yes.

Motion Docket
Wednesday, March 14

1. SER Grover L. Breeding v. Thomas McBride, Warden - 063188 - Petitioner seeks habeas relief after his 1996 conviction for aggravated robbery.

2. A. E. Landis v. Georganne Banning Landis - 063269 - his appeal stems from a divorce action and a Final Order entered on April 24, 2006, by the Family Court denying petitioner's request for attorney fees and costs. The circuit court affirmed the decision by order dated July 20, 2006.

3. WV Department of Health & Human Resources, Tamara L. Clay & Vincent Edward Clay - 062943 - WV Dept. of Health & Human Resources/Bur. for Child Support Enforcement seeks both a reversal of the circuit court's order and a ruling that orthodontic and pharmaceutical expenses are "medical expenses" of a child that should be divided between the parents.

4. Misty C. V. v. Joshua L. S. and Christopher and Tanya F., Intervening Respondents - 063450 - Mother appeals circuit court order affirming Family Court Order finding that internevors were psychological co-parents of her natural child.

5. Allison J. Riggs & Jack E. Riggs, M.D. v. West Virginia University Hospitals, Inc. - 063211 - Plaintiffs Allison J. Riggs and Jack E. Riggs, M.D. appeal the circuit court's order which reduced their $10 million dollar non-economic damages jury verdict to $1 million pursuant to the cap set forth in the 1986 version of the Medical Professional Liability Act.

6. Reta Lorene Boone, et al. v. WV DHHR, et al. Clarendon National Insurance Company - 063399 - Petitioner, Clarendon National Insurance Company, appeals the Webster County Circuit Court's granting of the Town of Addison's Motion for Summary Judgment thereby ordering Clarendon to defend and indemnify the Town and the Building Commission in the underlying action under the umbrella policy.

7. State of W. Va. v. Richard Paul Bolyard, Jr. - 063452 - Petitioner appeals his conviction for one count of cruelty to animals. He was sentenced to six months incarceration by the Magistrate and the sentence was upheld by the Circuit Court.

Argument Docket
Wednesday, March 14

1. Cornell F. Daye v. SER Thomas McBride, Warden - 33100 - Daye appeals the circuit court's 06/09/05 order denying his petition for a writ of habeas corpus with a finding that "Daye's Petition does not show any probable cause warranting further inquiry. - Continued to April 18.

2. Cornell F. Daye v. SER Thomas McBride, Warden - 33101 - Daye appeals the circuit court's 06/09/05 order denying his petition for a writ of habeas corpus with a finding that "Daye's Petition does not show any probable cause warranting further inquiry - Continued to April 18.

3. Mary Ann Kominar, Admx. v. Health Management Associates of W. Va., Inc., et al. - 33215 - Plaintiff appeals from the circuit court's order denying her motion to set aside the verdict or for a new trial following an adverse jury verdict in this wrongful death malpractice case.

4. State of W. Va. v. Bryan A. Merritt - 33105 - The petitioner objects to the denial of the stay of his misdemeanor sentence pending appeal to the Wood County Circuit Court. Petitioner also objects to the subsequent imposition of sentence by the Circuit Court of Wood County after the petitioner had allegedly completed all of the terms of his sentence.

5. SER Bobby Gibson v. Circuit Court of Wetzel County - 33292 - Petitioner seeks a mandamus requiring the Wetzel County Circuit Court to take action on his petition. - To be presented on briefs only without oral argument.

6. SER Office of Disciplinary Counsel v. Michael F. Niggemyer - 33098 - Lawyer Disciplinary Board seeks rule to show cause in contempt for failure to comply with provisions of a previous disciplinary order.

Writ Conference*
Thursday, March 15

1. State of West Virginia v. Kevin Fortney, No. 070373 (Filed 2/6/07): Defendant, convicted by jury of seven counts of Obtaining Money by False Pretenses appeals circuit court orders denying his motion for new trial and sentencing him to serve not less than seven nor more than seventy years in prison, arguing that the circuit court erred in allowing the State to introduce 404(b) evidence regarding his prior convictions of Obtaining Money by False Pretenses as evidence of his intent, motive or plan.

2. State of West Virginia v. Carl Gillian, No. 070561 (Filed 2/26/07): Defendant, convicted of by guilty plea of one count of Third Degree Sexual Assault and four counts of Attempt to Use Minor in Sexually Explicit Conduct, appeals circuit court order sentencing him to serve consecutive 1-5, and four 1-3 year prison terms, arguing that his guilty plea was involuntary due to mental incompetency and violated his Due Process protections.

4. Gloria Triplett v. Lincoln County Board of Education, No. 070307 (Filed 1/30/07): Teacher appeals circuit court order affirming the decision of the State of West Virginia Teachers and State Employees Grievance Board denying her grievance.

18. State of West Virginia v. Carey C. Ervin, III, No. 070287 (Filed 1/26/07): Petitioner seeks an appeal of the circuit court's (09/26/06 and 11/15/06) orders that denied the Petitioner's motion to reconsider his sentence and that denied his petition for return of property.

21. Bill E. Morton v. Unknown Heirs of Ernest M. Van Camp, No. 070308 (Filed 1/31/07): Petitioner seeks an appeal of the circuit court's order that allowed the sale of real property here the Petitioner owns a undivided 1/7th of the property.

22. Annetta Vest v. Grant County Board of Education, No. 070445 (Filed 2/13/07): Petitioner seeks an appeal of the circuit court's (November 8, 2006) order that denied her motion for enlargement of time to file an appeal of the Grant County Board of Education's decision that denied her grievance.

23. Randolph T. Epperly, Jr. v. WV Consolidated Public Retirement, No. 070309 (Filed 1/31/07): Petitioner seeks an appeal of the circuit court's (January 5, 2007) order that affirmed the Consolidated Public Retirement Board Order that denied the Petitioner's request for service credit for his 1966-69 summer co-op employment.

24. Larry A. Dietz v. WV Consolidated Public Retirement, No. 070319 (Filed 1/31/07): Petitioner seeks an appeal of the circuit court's (November 27, 2006) order that affirmed the Consolidated Public Retirement Board Order that denied the Petitioner's request for service credit for his 1968 summer co-op employment.

25. SER Dennis Hubbard v. James Huppenthal, Administrator, No. 063559 (Filed 11/22/06): Petitioner claims he was convicted falsely and no appeal has been filed for him by the Public Defenders Office.

27. SER William Bookheimer v. Shannon Markle, Administrator, No. 070181 (Filed 1/17/07): Petitioner seeks to have an investigation conducted against the circuit court, prosecutor, assistant prosecutor and his defense attorney.

29. SER Marvin S. Mills v. John Hutchison, Judge, No. 070104 (Filed 1/11/07): Petitioner seeks a writ of prohibition to prevent Judge Hutchison from providing over his habeas case.

* The full writ conference list can be found on the state Supreme Court's Web site at http://www.state.wv.us/wvsca.