SupCo calendar for the week of Jan. 7-11

By The West Virginia Record | Jan 3, 2008

Motion Docket
Tuesday, Jan. 8

1. State of WV v. Barbara A. Matheny - 071083 - Barbara A. Matheny appeals her conviction for Operating or Attempting to Operate a Clandestine Drug Laboratory.

2. Raines Imports, Inc., d/b/a Lester Raines Honda v. American Honda Motor Co., Inc. - 071871 - This is a petition for appeal from an Order of the Kanawha County Circuit Court entered March 26, 2007, granting American Honda Motor Company's Motion for Summary Judgment.

3. State of WV v. Johnny Edward Gum - 071719 - Defendant appeals his sentencing following his return from the Anthony Center.

4. State of WV v. Charles Emory Cowley - 072112 - Defendant appeals from his conviction on one count of second degree sexual assault. He was sentenced to a term of 10 to 25 years. Defendant seeks a reversal and a new trial.

5. Mark D. Hudnall, Pros. Atty. v. 2.2 lbs. of Cocaine, et al. Darlene Skaggs, Petitioner - 072228 - This is a forfeiture action under the West Virginia Contraband Forfeiture Act brought by the Prosecuting Attorney on behalf of the Central West Virginia Drug Task Force. The petitioner, Darlene Skaggs, appeals from an Order of forfeiture entered on February 23, 2007.

6. State of WV v. James E. Lancaster - 072211 - Petitioner appeals from the relief that was awarded in this habeas corpus proceeding. The circuit court awarded relief consisting of the remission of a period of five years of probation. Petitioner seeks further relief consisting of setting aside his convictions and the award of a new trial.

7. Anthony J. Barbario, et al. v. WV Consolidated Public Retirement Board - 072224 - The West Virginia Consolidated Public Retirement Board petitions for appeal from the Circuit Court of Kanawha County's Final Order finding that the Teachers' Retirement Equity Act is violative of the Takings Clause of the West Virginia Constitution and the Contracts Clause of the United States and West Virginia Constitutions.

8. Coye B. Taylor v. Howard Painter, Warden - 062741 - Petitioner appeals from the circuit court's order denying his petition for habeas relief.

9. William T. Smoot, II v. American Electric Power, Verizon of WV, Inc. and Charter Communications, Inc. - 072201 - Plaintiff appeals from the circuit court's order granting summary judgment in favor of defendants in this personal injury action brought against defendants alleging negligence.

10. Gloria Bernice Coleman v. Wal-Mart Stores East, L.P. - 072302 - Defendant Wal-Mart Stores East, L.P. appeals the circuit court's order granting a motion for new trial in this slip and fall case.

11. Jason Eastham, et al. v. The City of Huntington, a municipal corporation, and David Felinton, Mayor - 071951 - The City of Huntington appeals the circuit court's declaratory judgment order which held that municipal ordinance and city charter provisions which require city employees to reside within the city are repealed and rendered void and unenforceable as they would apply to all civil service employees and civil service appointees.

Argument Docket
Tuesday, Jan. 8

1. Jeffrey A. Horkulic, et al. v. William O. Galloway, et al. - 33352 - In this legal malpractice action, defendant insurer appeals from the circuit court's order issued with findings of fact and conclusions of law that derived from information protected by the quasi attorney-client privilege, as well as hearsay evidence. Defendant insurer seeks to remove any and all referenced information protected by the quaisi attorney-client privilege, to remove any and all reference to evidence gathered through hearsay, as well as to remove portions of the circuit court's order mandating that defendant comply with the settlement.

2. SER TIG Insurance Co. v. Hon. Arthur M. Recht, Judge, et al. - 33353 - Petitioner (TIG) seeks a writ of prohibition based on the court's abuse of authority by allowing an award of attorney fees against TIG, and ordering TIG to pay attorney fees of $500.00 per hour.

3. 263 Towing, Inc. v. Lonnie Hannah, Sheriff of Mingo County, et al. - 33382 - Lonnie Hannah, the Sheriff of Mingo County, appeals the circuit court's orders which granted petitions for mandamus in two related cases. The court ordered the sheriff to sign checks for payment on certain invoices, made an award of prejudgment interest, and awarded attorney's fees.

4. SER Walter W. Wieford, Pros. Atty. v. Hon. Joseph C. Pomponio, Jr., Judge - 33531 - Prosecuting Attorney seeks a writ of prohibition to prohibit the circuit court from enforcing an order dismissing criminal charges against respondent, Joe Rosenthal. Petitioner claims order is in violation of the laws of the State. Criminal charges of illegal possession of wildlife in violation of WV Code §20-2-4 should have been dismissed based upon the ruling that the accused was a "duly authorized agent" of the Dir. of the WV Div. of Natural Resources.

5. Harrison County Commission, et al. v. Harrison County Assessor Cheryl L. Romano - 33381 - Petitioner County Commission appeals from the circuit court's order denying its petition for a writ of mandamus and granting respondent County Assessor's cross-petition for a writ of mandamus in relation to the appointment of employees paid through the Assessor's revolving property valuation fund.

6. Lawyer Disciplinary Board v, William H. Duty - 33069 - Lawyer Disciplinary Board submits a five-count Statement of Charges alleging lack of diligence and improper handling of client funds, and other matters.

7. SER Nationwide Mutual Insurance Co. v. Hon. Mark A Karl, Judge, et al. - 33651 - Petitioner seeks a writ of prohibition to prohibit the circuit court from identifying defense counsel's office in the civil proceeding as "Nationwide Trial Div." to a jury panel during voir dire.

8. SER Nationwide Mutual Insurance Co. v. Hon. Tod Kaufman, Judge - 33652 - Petitioner seeks writ of prohibition against respondent to prohibit enforcement of the court's order from a hearing on 8/29/07, denying petitioner's Motion to Bifurcate and Stay Discovery and Motion for Protective Order regarding discovery.

9. SER Angela Keaton v. Hon. H. L. Kirkpatrick, Judge - 33534 - Dismissed.

10. SER Misty Louise Cabral v. Twyla Donathan, Court Reporter - 33657 - Dismissed.

11. SER Brian Cunningham v. Hon. John W. Hatcher, Jr., Judge - 33658 - Pro se petitioners seek writ of mandamus to compel the circuit court for a copy of his trial transcripts, appointment of counsel, and to hold an omnibus habeas hearing, and take action on this petition for writ of habeas corpus and related motions. - To be presented on briefs only without oral argument.

Argument Docket
Wednesday, Jan. 9

1. Mountain Communities for Responsible Energy v. PSC of W. Va. & Beech Ridge Energy, LLC, et al. - 33375 -

Alicia A. Eisenbeiss, et al. v. PSC of W. Va. & Beech Ridge Energy, LLC, et al. - 33376 -

2. Barry D. Schmehl, etc. v. Virgil T. Helton, Acting State Tax Comm'r - 33379 - Barry D. Schmehl appeals the circuit court's order which affirmed the administrative decision of the Office of Tax Appeals. The OTA affirmed an assessment against Schmehl, as an officer of a corporation, for the corporation's unremitted sales and service taxes, interest and penalties.

3. In Re: Summer D. - 33386 - Petitioner/Guardian ad Litem seeks an appeal of the circuit court's (January 18, 2007) order that denied the GAL's motion to file an amended petition and that ordered the father should have custody of the child.

4. Misty Blessing, Adm. v. National Engineering & Contracting Co., et al. - 33433 - Plaintiff in land dispute appeals circuit court order granting summary judgment to Defendants (Div. of Highways & Bryron Smith) in a wrongful death action.

5. Gary Allen Gibson v. Thomas McBride, Warden - 33321 - The petitioner, Thomas McBride, appeals the state habeas court's May 10, 2006, Final Order granting the Respondent herein, petitioner below, Gary Gibson's petition for post-conviction relief under West Virginia Code §53-4A-1 et. seq. Petitioner asserts that the habeas court incorrectly found three of the trial court's discretionary rulings to be error.

Requests for Oral Presentation
and Petitions for Appeal
Jan. 10

1. In Re: Estate of Van C. Culp - No. 072596. This appeal arises from the administration of the Estate of Van C. Culp. Petitioner alleged various acts of wrongdoing against the respondent during her administration of the Estate. Petitioner appeals from the circuit court's order affirming in part and reversing in part decisions of the county commission, which had adopted the recommended order of the Fiduciary Commissioner.

2. In Re: Estate of Van C. Culp - No. 072687. Petitioner administratrix appeals from the circuit court's order denying in part and granting in part petitions for writ of error from the County Commission's approval and confirmation of the Fiduciary Commissioner's recommended order. This matter centers around assertions made by respondent that petitioner violated various fiduciary duties in her administration of the Van C. Culp Estate. Petitioner seeks relief from certain portions of the circuit court's order.

3. Douglas R. Jackson v. Power Mountain Coal Company, Nicholas Energy Company, and Massey Energy Company - No. 072598. Plaintiff appeals from the circuit court's order denying both his motion for a new trial on the issue of damages and his motion to set aside the jury verdict and award a new trial on the issue of damages. Plaintiff asserts that the jury's award of compensatory damages was inadequate to fully and fairly compensate him in light of the uncontroverted evidence on damages. Plaintiff seeks a new trial as to damages.

4. Teresa Estep and Terry Estep, her husband v. Mike Ferrell Ford Lincoln-Mercury, Inc. and Ford Motor Company - No. 072597. Defendants appeal from an adverse jury verdict in this vehicular crash worthiness case wherein plaintiff claimed that a 1999 Ford Ranger was defective because its occupant restraint system did not adequately protect plaintiff in a crash. Defendants raise various evidentiary and procedural trial errors, including the exclusion of any evidence about seatbelts, the presentation of opinion evidence based entirely upon speculation and conjecture by plaintiff's expert, and the failure to properly instruct the jury.

5. State of West Virginia v. Donald Wilson, Jr. - No. 072620. Defendant appeals his conviction on one count of first degree robbery and one count of malicious assault. He was sentenced to 60 years for the robbery and 2 to 10 years for the malicious assault, those sentences to be served consecutively. Defendant challenges the trial court's admission of the victim's unauthenticated, hospital records describing alleged injuries, medical care, and treatment resulting from the assault. Defendant also asserts that his counsel was ineffective.

6. Curtis Construction Company, LLC by David Curtis, owner v. Earl L. Luzzadder and Earl Luzzadder, Trustee - No. 072622. Defendant appeals from the circuit court's order awarding a permanent injunction in favor of plaintiff in relation to the use of a portion of a roadway that crosses defendant's property and which is used to access plaintiff's property and the property of others. Defendant asserts that the circuit court's order is not supported by the evidence and constitutes an abuse of discretion.

7. Jeanne Cartwright v. Cabell Huntington Hospital, Inc. - No. 072623. Plaintiff appeals from the circuit court's order awarding summary judgment in favor of defendant hospital in this medical malpractice action.

8. State of West Virginia v. Steven Lee Dilworth - No. 072625. Defendant appeals his multiple convictions on sex crimes following a jury trial. He raises evidentiary, procedural, and sentencing issues in seeking either a reversal of his convictions or, in the alternative, a re-sentencing by a different judge.

9. In Re: The Marriage of: Colleen Faye Riggs v. David Alan Riggs - No. 072684. Petitioner wife appeals from the circuit court's order affirming the decision of the family court in this divorce action. Petitioner contends that both lower courts erred in finding that she was entitled to only one-sixth of the value of the parties' improvements to the residence where petitioner and respondent husband had resided for nearly 25 years, which residence was owned by respondent husband's mother.

10. David Washington, Jr. v. Michael Coleman, Warden - No. 072685. Petitioner appeals from the circuit court's order denying his amended petition for a writ of habeas corpus. Petitioner raises various issues, including pre-trial publicity, mental competency, sufficiency of the evidence, ineffective assistance of counsel, and juror misconduct.

11. Carolyn Sue Grill v. Janet M. Esposito, Executrix of the Last Will and Testament of Mary M. Dennison, deceased and Janet M. Esposito, in her own right - No. 072686. Plaintiff appeals from an adverse jury verdict in this action challenging the defendant executrix's handling of the decedent's assets. Plaintiff contends that the circuit court erred by allowing certain issues to be decided by the jury.

12. Evelyn "Peach" Murphy, as Administratrix of the Estate of Andrew John Murphy, Deceased v. Eastern American Energy Corporation, Kenneth Greathouse, Rodney Paxton, and S. W. Jack Drilling Company - No. 072693. Plaintiff appeals from the circuit court's order awarding summary judgment in favor of defendant in this deliberate intent action. The circuit court ruled that the decedent had no dependents under W.Va. Code §23-4-2(c) and that pursuant to Savilla v. Speedway Super America, LLC, No. 33053 (NOV. 15, 2006) (2006 WL 3358431), defendant was entitled to summary judgment.

13. State of West Virginia v. William D. Severn - No. 072700. Defendant was convicted of various sex crimes in 1997. His direct criminal appeal was refused unanimously in May of 2001. The instant appeal involves the circuit court's order denying defendant's motion for a new trial based upon newly discovered evidence.

14. State of West Virginia ex rel. Denver Dwight Baker, Jr. v. Thomas L. McBride, Warden, Mount Olive Correctional Complex - No. 072106. Petitioner appeals from the circuit court's order denying his amended petition for habeas corpus relief. Petitioner raises primarily sentencing errors.

15. State of West Virginia v. Michael Shanahan - No. 072753. Michael Shanahan appeals the denial of his petition for habeas corpus which alleged a lack of sex offender rehabilitation programs in prison, and he appeals the denial of his motion for reduction of sentence. He is presently serving 6 to 30 years for his conviction upon guilty plea to 6 counts of sexual abuse in the first degree.

16. State of West Virginia v. Keith Scott Jordan - No. 072785. Kevin Scott Jordan appeals his conviction for Robbery in the First Degree, Conspiracy to Commit Robbery in the First Degree, and three counts of Forgery of Public Record, Certificate, Return or Attestation. He asserts that his 50 year sentence for Robbery was error; that the Forgery of Public Record, Certificate, Return or Attestation statute does not apply to the facts of this case; ineffective assistance of counsel; and insufficiency of the evidence.

17. Mary C. Higgins, Kelly Collett, and Sharon Howell v. The Board of Education of Randolph County - No. 072788. County school board employees appeal from the circuit court's order affirming the denial of their grievance. Petitioners assert that they are required to complete work without additional pay, when such work is an extracurricular or supplemental assignment

18. Andrew Young, Administrator of the Estate of David G. Young, and Andrew Young, individually v. Pamela Sue McIntyre, formerly known as Pamela Sue Young and The Huntington National Bank - No. 072789. Plaintiff below appeals the circuit court's order granting summary judgment in favor of defendant in an action concerning the ownership of property. Plaintiff's decedent died while owning property with his ex-wife, the defendant. The court ruled that the divorce and property settlement agreement did not sever a joint tenancy with right of survivorship.

19. William Eugene Lake v. Roger Hickman - No. 072792. Plaintiff William Eugene Lake appeals after an adverse jury verdict in a battery case. He argues that the circuit court erroneously admitted evidence and erroneously ruled that plaintiff failed to prove future damages.

20. David Hawkins and Kim Hawkins, and Tyler Hawkins, Ashley Hawkins and Chase Hawkins, minors, by and through their next friend, David Hawkins v. The West Virginia Department of Public Safety, a/k/a The West Virginia State Police, The Commission on Drunk Driving Prevention, and J. Mattman Security, Inc. d/b/a The Mattman Company - No. 072793. Plaintiff, who was injured in the course of his employment as a state trooper, appeals the circuit court's order dismissing his common law negligence suit against the W.Va. State Police. Although uniformed troopers are not covered by Workers' Compensation, the circuit court referenced Workers' Compensation immunity provisions to conclude that the State Police has statutory immunity for injury claims of its uniformed members sustained in the course and scope of their employment.

21. SER Kevin E. Kesterson v. Jim Rubenstein, Director of Corrections - No. 072794. Petitioner Kevin Kesterson appeals the circuit court's order denying his petition for post-conviction habeas corpus. He was previously convicted upon guilty pleas to three counts of Incest and three counts of Sexual Abuse by a Parent or Guardian. He argues, inter alia, that applied to the facts of his case, the incest statute violates multiple constitutional rights and the sexual abuse statute does not apply.

22. State of West Virginia v. Melvin Randall Messer - No. 072795. Melvin Randall Messer appeals his conviction for two counts of first degree murder with recommendations of mercy. He asserts several errors, including prosecutorial misconduct and insufficiency of the evidence.

23. Don Steele v. Robert (Bob) Wolfe, and the County Commission for the County of Logan, West Virginia, a/k/a The Logan Commission - No. 072805. Don Steele appeals the circuit court's order which affirmed the decision of the Logan County Commission denying an election contest. The commission found Steele to be ineligible to hold a seat on the Logan County Board of Education because of his residence in a magisterial district which will already have the maximum of two members.

24. State of West Virginia v. Danny L. Hundley - No. 072810. Danny L. Hundley appeals his conviction for burglary and grand larceny. He was sentenced to life in prison as a recidivist. He asserts error in failing to dismiss a juror for cause, that his burglary indictment was insufficient, and that, if the burglary charge is dismissed, then a recidivist life sentence is disproportionate for his grand larceny conviction.

25. State of West Virginia v. Joe Stevens - No. 072813. Joe C. Stevens appeals the circuit court's order finding that his crime of misdemeanor domestic battery was sexually motivated and that he must register as a sex offender for life.

26. West Virginia Department of Transportation, Division of Highways v. Contractor Enterprise, Inc., and the Sheriff of Logan County - No. 072814. Contractor Enterprise, Inc. appeals the circuit court's order which ruled that Contractor Enterprise had not met its burden of proving that the Division of Highway's acquisition of land by eminent domain for possible use as a highway construction waste storage area was arbitrary, capricious, fraudulent, oppressive, in bad faith, or contrary to law.

27. Amir Eshel v. Jennifer Stirewalt - No. 072815. Amir Eshel appeals the circuit court's order which affirmed the decisions of the family court to deny his motion to modify child support, motion to issue a passport to the parties' minor child, and motion for a name change of the parties' minor child.

28. Mary Beth Gergely v. Princeton Police Department - No. 072852. A jury found that the Defendants City of Princeton and its Police Department committed maladministration of government. The defendants appeal the circuit court's order which denied their motion for judgment as a matter of law, granted certain attorney's fees to plaintiffs, and ordered additional relief.

29. State of West Virginia v. Leonard Neal - No. 072782. Leonard Neal appeals his conviction for Third Offense DUI. He asserts insufficiency of the evidence to support his conviction.

30. State of West Virginia ex rel. Michael T. Clifford v. Bayer Corporation - No. 072812. The petitioner, the Bayer Corporation, appeals from an Order dated August 10, 2006 by the Kanawha County Circuit Court, which reversed the decision of the Kanawha County Commission to exonerate Bayer's request for exoneration from erroneous personal property taxes assessments for tax years 2001, 2002 and 2003. The Kanawha County Circuit Court found that Bayer was not entitled to exoneration for the taxes previously paid. On April 30, 2007, the Circuit Court denied Bayer's Motions for new trial and reconsideration. Bayer now appeals the Orders of the Circuit Court.

31. Betty L. Howell, Executrix of the Estate of James R. Northcraft v. Pleasant's County Continuous Care Limited Partnership dba Carehaven of Pleasants - No. 072854. This is an appeal from a personal injury/wrongful death action for damages resulting from the alleged negligence and contractual breaches of the defendant in the care, treatment, and monitoring of residents and patients within its long term nursing care facility. The petitioners filed a Complaint alleging negligence in failing to adhere to standards and regulations to long term/medical care following the death of Russell Northcraft. A jury returned a verdict in favor of the Carehaven Pleasants.

32. In Re: The Removal of John Aliff, John Humphrey and Patricia Reed - No. 072879. Plaintiffs are registered voters who voted in the general election in 2004 in Raleigh County, West Virginia. The petitioners had sought the removal of John Aliff, John Humphrey and Patricia Reed, all are members of the Raleigh County Commission. The Circuit Court granted the respondent's Motion to Dismiss via Rule 12(b)(6).

33. Farm Family Casualty Insurance Company v. The Estate of James Clifton Poore, and Virgie Sarver Poore, in her capacity as the wife of James Clifton Poore, deceased, and in her capacity as Executrix of the Estate of James Clifton Poore, Paul Harvey Grose, Jr., individually and d/b/a Little G. Contracting - No. 072883. This is an appeal from an Order granting Summary Judgment for plaintiff, Farm Family Insurance, dated August 31, 2007, from the Circuit Court of Mercer County, WV. Farm Family Insurance filed a declaratory action suit in order to determine insurance coverage for the death of James Clifton Poore. The defendants are seeking a reversal of the Order and a remand to the Circuit Court for a decision on the merits of the case.

34. Allen R. Harper v. James L. Myers, et al. - No. 072887. Petitioners appeal from the Kanawha County Circuit Court's Judgment Order granting summary judgment to Liberty Mutual Fire Insurance Company in a declaratory matter involving issues of insurance coverage. The Court determined that the policy excluded coverage to Jamie Myers when he was driving his own vehicle.

35. In Re: Charleston Gazette FOIA Request - No. 072888. This is a declaratory judgment action seeming a declaration of the City of Charleston's rights and obligations in responding to Freedom of Information Act request filed by the Charleston Gazette newspaper. The City sought a declaration as to whether certain requested documents were exempted from disclosure under the FOIA. The Circuit Court of Kanawha County dismissed the case sua sponte finding that any declaratory judgment would not settle the underlying controversy.

36. Darrell V. McGraw, Jr., Attorney General, ex rel. State of West Virginia; The West Virginia Public Employees Insurance Agency; and The West Virginia Department of Health and Human Resources v. The American Tobacco Company, et al. - No. 072347. The State by its Attorney General filed a Motion for Declaratory Judgment asking the circuit court to declare that it had diligently enforced a statute as required by the tobacco Master Settlement Agreement. Whether this statute was diligently enforced impacts the amount of the annual settlement payment the State receives. The circuit court determined that the Agreement requires this issue to be arbitrated, and therefore entered an "Order Granting Defendant Original Participating Manufacturers' Motion to Compel Arbitration and Stay this Litigation." The State appeals.

37. State of West Virginia v. Warren Hester - No. 072690. Defendant was convicted of sexual assault, battery, kidnaping, and nighttime burglary. Defendant appeals and seeks a reversal of his conviction. He asserts numerous evidentiary and procedural errors below, including Rule 404(b) evidence and instructional errors.

38. State of West Virginia v. Roger D. Smith - No. 072853. This is a petition for appeal from an Amended Sentencing Order entered by the Circuit Court of Berkeley County on March 30, 2007. The petitioner plead guilty to the entire indictment. After a bifurcated trial to determine the issue of mercy, a jury determined that the petitioner should receive a life sentence without the possibility of parole. As a result, petitioner was sentenced to life in prison for felony murder, along with various sentences for the other counts of the indictment. It is from the Amended Sentencing Order that the petitioner now appeals.

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