WEST VIRGINIA RECORD

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

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.

Motion Docket
Wednesday, April 16

1. Douglas R. Jackson v. Power Mountain Coal Company, et al. - 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 compensation 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. - C.J. Maynard disqualified.

2. M. Ann Sandor v. William R. Bjorkman - 073153 - Defendant William R. Bjorkman appeals the circuit court's findings of fact and conclusions of law after a bench trial. The court concluded that plaintiff M. Ann Sandor signed a Joint Ownership Sales Agreement under duress and therefore the agreement is voidable, allowing plaintiff to proceed with a partition action.

3. J.H.* v. WV Division of Rehabilitation Services - 073084 - J. H. brought personal injury action against the West Virginia Division of Rehabilitation Services for injuries he sustained by being sexually molested while he resided at the defendant's Center. The trial court dismissed the action pursuant to Rule 12(b)(6) and found that the defendant was entitled to qualified immunity based upon the "public duty doctrine". The trial court concluded that the plaintiff had not established any "special duty" owed him by the WVDRS.

4. State v. Nicole L. Kees - 073441 - Petitioner Nicole Kees appeals her conviction for felony murder with a recommendation of mercy. Her arguments include that under the facts of this case, she did not commit the predicate felony of delivery of a controlled substance; that the court erroneously denied a lesser included instruction; and that the prosecutor made an improper argument during closing rebuttal.

5. SER John Phillips v. Thomas McBride, Warden - 072952 - Petitioner appeals from the circuit court's order denying his petition for a writ of habeas corpus. Petitioner asserts numerous grounds in support of his request for relief, including sentencing and trial errors, as well as ineffective assistance of counsel.

6. State v. Billie Dawn Hatley - 073624 - Defendant appeals following her conviction of first degree robbery. She was sentenced to a 10-year determinate sentence. Defendant raises jury and sentencing issues. She seeks a reversal of her conviction, a vacation of her sentence, and a new trial - or such other relief as this Court deems appropriate.

7. Thomas C. Pfadenhaver and Ellen M. Pfadenhaver v. State Tax Comm'r. of WV - 073647 - Thomas and Ellen Pfadenhauer appeal the circuit court's order affirming the decision of the Office of Tax Appeals affirming the decision of the W.Va. Tax Commissioner. The Commissioner found that Mr. Pfadenhauer's pension received from the Baltimore Municipal Police and Firemen Retirement System is subject to W.Va. state taxation.

8. Citizens Telecommunications Co. Of WV v. State Tax Comm'r. of WV - 073676 - The Citizens Telecommunications Company appeals from an Order by the Kanawha County Circuit Court which affirmed the West Virginia Office of Tax Appeals decision to uphold the Tax Commissioners decision not to grant a request for a tax refund of $1,998,987.78 for tax year 2004. On appeal, Frontier Communications argues that the company is entitled to the refund requested.

9. Kelly Steele and Jeremy Steele v. GlobalStar, LLC - 080218 - The petitioners, Kelly and Jerry Steele, appeal from a Kanawha County Circuit Court's Order denying the plaintiffs Rule 60(b) relief following the Court's granting of Summary Judgment in favor of the defendant Globalstar, LLC. Petitioners assert that genuine issues of material fact exist in the case.

Argument Docket
Wednesday, April 16

1. In Re: Flood Litigation - Coal River Watershed - 33664 - Plaintiffs appeal from the circuit court's order dismissing their cases as failing to comply with Rules 8(a) and 11 of the West Virginia Rules of Civil Procedure after the circuit court denied plaintiffs' discovery from defendants. This case involves the 2001 In Re: Flood Litigation relating to the Coal River Watershed, which is one of several watersheds.

In Re: Flood Litigation - Upper Guyandotte River Watershed - 33710 - The Segal Plaintiffs appeal from the circuit court's Order Granting In Part and Denying In Defendant's Motion for Judgment as a Matter of Law or a New Trial in which the court struck the testimony of Plaintiffs' expert witnesses. The court granted the Defendants, Western Pocahontas Ltd. Partnership and Western Pocahontas Corp., judgment as a matter of law or, in the alternative, a new trial if this Court reverses the judgment as a matter of law.

In Re: Flood Litigation - Upper Guyandotte River Watershed - 33711 - The Caldwell Plaintiffs appeal from the circuit court's Order Granting In Part and Denying In Defendant's Motion for Judgment as a Matter of Law or a New Trial in which the court struck the testimony of Plaintiffs' expert witnesses. The court granted the Defendants, Western Pocahontas Ltd. Partnership and Western Pocahontas Corp., judgment as a matter of law or, in the alternative, a new trial if this Court reverses the judgment as a matter of law. - Justices Davis and Benjamin disqualified. Judges Clawges and Pratt sitting by temporary assignment.

2. SER Stephen Wesley Hatfield v. Howard Painter, Warden - 33668 - The State/Warden appeals the circuit court's summary judgment order granting habeas corpus relief, setting aside Stephen Hatfield's convictions for First Degree Murder and two counts of Malicious Wounding, and reinstating the original indictment. - Chief Justice Maynard disqualified. Judge Cookman sitting by temporary assignment.

3. Sandra Kay Crea v. Richard Crea - 33656 - Former husband appeals circuit court order denying his appeal of Family Court Order making distribution of marital assets and debt and awarding permanent spousal support to Wife, arguing multiple errors in such distribution. - To be presented on briefs only without oral argument.

4. In Re: Samantha S. and Hope S. - 33713 - Paternal grandparents appeal circuit court order allowing Maternal grandparents to have unsupervised overnight visits with children. - Continued.

5. Bernard J. Folio and Grandeotto, Inc. V. Harrison-Clarksburg Health Dept., et al. - 33707 - The petitioner seeks a review of a final order entered on March 13, 2007, by the Circuit Court dismissing all of the petitioners' claims upon the Respondent's Rule 56 Motion for Summary Judgment. The petitioner initially challenged the Harrison-Clarksburg Health Department's attempt to relocate its facility.

6. In Re: Abbigail Faye B. - 33716 - Petitioners/Grandparents appeal the order of the circuit court denying their petition for guardianship over their infant grandchild.

7. Jimmy and Michelle Hardwick, and Yvette Spencer v. Rent-A-Center, Inc. - 33706 - The United States District Court for the Southern District of West Virginia presents the following questions for certification:
1. What is the statute of limitations for a claim brought pursuant to the Consumer Goods Rental Protection Act, West Virginia Code §46B-1-1 et seq.?
2. Does Senate Bill 145 violate the one-object rule of Article VI, Section, 30 of the West Virginia Constitution?
3. If Senate Bill 145 does violate the one-object rule, should the Court's ruling apply retroactively so as to invalidate the rules enacted therein? The District Court did not answer these questions. - Continued to September 9.

8. 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.

9. SER Jean Kennedy v. Hon. Paul Zakaib, Jr., Judge - 33836 - Petitioner seeks a writ of mandamus to compel the respondent to entered an order of adjudication in this child and abuse case.