WEST VIRGINIA RECORD

Argument Docket
Tuesday, April 1

1. Deborah K. May v. Chair and Members, Bd. of Review, WV Bureau of Emp. Prog. - 33703 - Deborah K. May appeals the circuit court's order affirming the denial of her claim for unemployment benefits.

2. William R. Smith v. State of WV Consolidated Public Retirement Bd. - 33502 - The circuit court presents the following Certified Question: "Does the reelection of an incumbent, to a consecutive term of office, constitute reemployment under W. Va. Code §5-10-18(a), thereby making the incumbent eligible to reinstate forfeited PERS credit upon repayment of the amount withdrawn plus interest?" Circuit Courts Answer: Yes.

ISSUE: Whether the circuit court erred in ruling that the reelection of an incumbent, to a consecutive term of office, constitutes reemployment under W.Va. Code §5-10-18(a), thereby making the incumbent eligible to reinstate forfeited PERS credit upon repayment of the amount withdrawn plus interest?

3. In Re: FELA Asbestos Cases (Mass Litigation Cases Consolidated for Appeal) - 33665 - Petitioners appeal the dismissal of their lawsuits pursuant to the non-resident venue statute, W.Va. Code § 56-1-1(c) [2003].

4. St. Luke's United Methodist Church, et al. v. CNG Development Co., et al. - 33527 - Plaintiff Welch brings this interlocutory appeal from the circuit court's order granting defendant's motion to dismiss plaintiff's partial rescission claim arising out of an oil and gas lease. The circuit court has entered a stay below pending plaintiff's petition for an interlocutory appeal.

5. State of WV v. John Lowery - 33660 - John Lowery appeals his conviction for two counts of felony sexual assault in the third degree and two counts of misdemeanor sexual abuse in the third degree.

6. Lawyer Disciplinary Board v. Michael P. Markins - 33256 - The Court will hear argument in this lawyer disciplinary matter.

7. Brenda Stanley v. Suthipan Chevy, M.D. - 33666 - Petitioner, Brenda L. Stanley, appeals from the Logan County Circuit Court's denial of post-trial motions. Plaintiff filed a medical malpractice suit for damages alleged in the performance of surgery. A verdict was returned in favor of the defendant by finding that the defendant was not negligent.

8. Richard C. Rashid, M.D. v. Muhib S. Tarakji, M.D. - 33596 - This case will be called at 2 p.m. - This civil action was involuntarily dismissed under Rule 41(b) for failure to pay a twenty dollar fee. Petitioner appeals by arguing that the case was dismissed without prior notice and without an opportunity to be heard as mandated by case law. -- Justices Davis and Benjamin disqualified. Judge Walker and Senior Status Judge Egnor sitting by temporary assignment.

Argument Docket
Wednesday, April 2

1. John J. Lovas v. WVOIC and Consolidation Coal Co. - 33670 - The Petitioner, John J. Lovas, appeals from an Order from the Workers' Compensation Board of Review dated April 11, 2007, which affirmed an August 24, 2006, Order of the Workers' Compensation Office of Judges affirming the Administrative Closure of the Petitioner's claim pursuant to 85 C.S.R. 1 §14.1. On appeal, Petitioner asserts that the regulation is in direct conflict with West Virginia Code §23-4-16(a)(4).

2. Henry C. Frazier v. WVOIC and Youth Services System, Inc. - 33671 - The Petitioner, Henry C. Frazier, appeals from an Order of the Workers' Compensation Board of Review dated April 26, 2007, which affirmed the Administrative Closure of the Petitioner's claim pursuant to 85 C.S.R. 1 §14.1. On appeal, Petitioner asserts that the regulation is in direct conflict with West Virginia Code §23-4-16(a)(4).

3. Llewellyn M. Wilkinson v. WVOIC and Putnam County Board of Education - 33672 - The Petitioner, Llwellyn M. Wilkinson, appeals from an Order of the Workers' Compensation Board of Review dated August 21, 2006, which affirmed a September 7, 2005, Order from the Workers' Compensation Office of Judges, and denied the compensability of the claimant's psychiatric condition. Petitioner contends that she suffers depression as a result of her work-related injury.

4. Fenton Art Glass Company v. WVOIC and Jack L. Garrison - 33673 - The Petitioner/Employer, the Fenton Art Glass Company, appeals from an Order of the Workers' Compensation Board of Review dated May 30, 2006, which reversed a December 15, 2004, Order from the decision of the Workers' Compensation Office of Judges. The Board of Review granted the claimant a 5% statutory permanent partial disability award for occupational pneumoconiosis. The Employer contends that the BOR's decision to grant 5% impairment is contrary not only to the evidence of record, but to the applicable law.

5. SWVA, Inc. v. WVOIC and Elmer Adkins, Jr. - 33708 - The Petitioner/Employer, SWVA, Inc., appeals from an Order of the Workers' Compensation Board of Review dated April 7, 2006, which reversed and vacated a January 20, 2005, Order from the Workers' Compensation Office of Judges. The Board of Review granted authorization for digital hearing aids for the Claimant. On appeal, the Employer argues that the Board was plainly wrong for authorizing the digital hearing aids because the evidence failed to establish that digital hearing aids were reasonably required as treatment in this claim.

6. Office of Lawyer Disciplinary Counsel v. E. Dennis White, Jr. - 33649 - A Petition for Injunction and Complaint was filed against Respondent in the Circuit Court of Cabell County by Joseph M. Farrell, Jr. on behalf of the Security Title Guarantee Corp. of Baltimore. IndyMac Bank wired $104,314.10 to Respondent as settlement for Security Title Guarantee Corp. of Baltimore. These funds were loan proceeds for closing of a loan for IndyMac's borrowers. The closing was cancelled and IndyMac demanded return of these funds. After numerous request, Respondent admitted he no longer had the funds and had converted these funds to his personal use without authorization. Respondent has committed violations of the Rules of Professional Conduct, Rules 1.15(a) and 8.4(c). ODC requests temporarily suspension of the license of Respondent until disciplinary proceedings against him by the LDB have been completed and the Court authorized Chief Judge of Cabell County to appoint another lawyer to serve as trustee to protect the interests of Respondent's clients.

Argument Docket
LAWS Program
Mercer County Courthouse, Princeton
Tuesday, April 15

1. Clarence T. Coleman Estate v. R.M. Logging, et al. - 33452 - Appeal from summary judgment for defendants in deliberate intent action. Plaintiff was a 24-year old timber cutter who was struck in the had and killed by a tree limb.

2. State of WV v. David Gabriel Stamm - 33505 - Appeal from felony conviction for failure to pay child support. Defendant alleges insufficient evidence and challenges the constitutionality of the underlying statute.

3. State of WV v. Joshua Lee Slater - 33659 - Appeal from felony convictions for Kidnaping, Burglary, Wanton Endangerment, and Domestic Violence. Defendant alleges five errors, including insufficient evidence, disproportionate sentence, failure to answer questions from deliberating jurors and a Sandstrom error.

4. State of WV v. James Lee Brooks - 33662 - Appeal from felony convictions for First Degree Robbery, Conspiracy to Commit First Degree Robbery, Malicious Assault, and Conspiracy to Commit Malicious Assault. Granted to review one assignment of error related to the defendant's transfer from juvenile to adult status that is an issue of first impression.