SupCo calendar for 5/12 issue

Motion Docket
Tuesday, May 20

1. State v. Floyd A. Nelson, Jr. - 073748 - Defendant appeals following his convictions on two counts of forgery and six counts of uttering. Defendant challenges his eight consecutive sentences of 1 to 10 years in the penitentiary arguing that they are constitutionally disproportionate, that they were imposed in violation of his constitutional rights to equal protection of the law, and that they were the result of ineffective assistance of counsel below.

2. State v. Steven Ray Fisher - 073751- Steven Ray Fisher appeals the order transferring him to the court's adult criminal jurisdiction. He asserts that the alleged crime did not constitute kidnaping, for which he is charged.

3. David W. Crites v. Pilgrim's Pride Corp., K and B Trans., Inc. & Jeffrey Dearing - 073921 - Petitioner, David Crites, seeks review of a August 13, 2007, Order from the Hardy County Circuit Court which denied the plaintiffs Motion for Relief from Summary Judgment. The Circuit Court found that the petitioner did not carry his burden to demonstrate entitlement to relief from the Order granting Summary Judgment, pursuant to Rule 60(b)(2) or (3). Petitioner asserts that the lower court used the wrong standard of law.

4. Ryan Strick v. Comm'r. of WV Dept. of Motor Vehicles - 073811 - The petitioner, Ryan Strick, appeals from a Kanawha County Circuit Court Order upholding the administrative order by the Division of Motor Vehicles suspending Petitioner's privileges to operate a motor vehicle in this state for one year for first offense Driving Under the Influence. On appeal, the petitioner requests that he is issued a full and valid license and that the Order of Revocation be reversed.

5. State v. Ronald Reed, Sr. - 073503 - Ronald Reed, Sr. appeals his convictions for 2 counts of Incest, 2 counts of Sexual Abuse by a Parent, 1 count of Sexual Assault in the First Degree, 31 counts of Sexual Abuse by a Custodian, and 30 counts of Sexual Assault in the Third Degree. He raises 26 assignments of error.

6. Russell Stuyvesant, Admn'r. v. The Preston County Comm. - 073790 - Russell Stuyvesant, as Administrator of the Estate of Timothy Daft, appeals the circuit court's order dismissing his wrongful death and negligence action based upon the statute of limitations. He asserts application of the discovery rule.

7. Cynthia L. Archer v. PPG Industries, Inc. and Joe Polus - 073806 - Joe Polus and PPG Industries, Inc. were found by a jury to be liable for violation of the Human Rights Act, sexual abuse, assault and/or battery and the intentional infliction of emotional distress. Petitioner Polus, seeks a reversal of the Circuit Court's post-trial rulings and an order vacating the judgment Order which quashed PPG's subpoena seeking plaintiff's billing records and granting attorneys fees and costs. Mr. Polus also requests a remand to the Circuit Court for a new trial.

8. Cynthia L. Archer v. PPG Industries, Inc. and Joe Polus - 073807 - Joe Polus and PPG Industries, Inc. were found by a jury to be liable for violation of the Human Rights Act, sexual abuse, assault and/or battery and the intentional infliction of emotional distress. Petitioner PPG Industries, Inc., seeks a reversal of all the Circuit Court's post-trial rulings and an order vacating the judgment Order. Petitioner PPG Industries, Inc. also requests a remand to the Circuit Court for a new trial.

9. State v. Steven A. Robinson - 073557 - Defendant appeals from the circuit court's order removing him from the Anthony Center, sentencing him to the Penitentiary for 15 years, and ordering him to pay $4300 in restitution, jointly and severally with his co-defendants. Defendant contends that the testimony given at the hearing held before the circuit court upon his return from the Anthony Center was inadmissible hearsay and that the Anthony Center's disciplinary process violated his due process rights.

10. Martha L. Cudd, Trustee v. Hall Development Co. and PropertyMark, LLC - 073931 - Defendant appeals from the circuit court's order awarding summary judgment in favor of plaintiff and reforming multiple deeds so as to place title to certain disputed real estate in the name of plaintiff. Defendant seeks a reversal of the summary judgment order and a remand of this action to the circuit court with instructions to enter summary judgment in favor of defendant. Alternatively, defendant seeks a remand for a trial on the merits.

11. State v. Dennis Burke - 080220 - Defendant appeals his conviction of voluntary manslaughter. He challenges the sufficiency of the evidence and alleges ineffective assistance of counsel. Defendant seeks a reversal of his conviction and a remand for a new trial.

12. State v. Danielle Hilling - 080281 - Defendant appeals from her conviction of first degree murder without mercy and conspiracy to commit murder. Defendant raises evidentiary and procedural errors below and challenges the sufficiency of the evidence. Defendant seeks a reversal of her conviction and either a judgment of acquittal or a new trial.

Motion Docket
Wednesday, May 21

1. Lonnie Hannah, Sheriff & David Baisden, Assessor, Mingo Cty. v. Gregory Smith - 073686 - Petitioners appeal a three judge panel's decision denying their petition to remove Gregory Smith from his position as Mingo County Commissioner. They assert inter alia that the panel failed to properly analyze whether respondent's conduct is grounds for removal under W.Va. Code § 6-6-7.

2. Secretary of WVDEP v. Goals Coal Co. and Coal River Mountain Watch - 073938 - Petitioner appeals from the circuit court's final order affirming the decision of the Surface Mine Board in this administrative appeal. Respondent sought to build a coal storage silo within 300 ft. of an elementary school, and the Surface Mine Board concluded that the proposed site was within the permit area of the relevant permit. - Chief Justice Maynard disqualified.

3. Josephine Morgan v. Ford Motor Co., Bridgestone & Francis Robert Morgan - 080210 -This appeal relates to the cross-claim brought by defendant Frances Robert Morgan against defendant Ford Motor Company in this personal injury action arising out of a rollover accident. Cross-claimant Frances Morgan appeals the circuit court's order partially granting Ford Motor Company's motion for judgment as to defendant Morgan's glass and glazing claims having concluded that such claims are preempted by federal law.- Justice Davis disqualified.

4. Virginia C. Padgett v. Kenton Meadows Co. - 073749 - Plaintiff appeals the circuit court's order granting summary judgment for the defendant. Plaintiff asserts that property on which an unused railroad line lies was only held by the railroad company as an easement, but the court found that deeds in 1901 and 1902 had conveyed the property to the railroad company in fee simple.

5. J. Anthony & Co. v. James Trickett, et al. Petitioners: Gianola, Barnum, Wigal & London, and Patrick McGinley - 073933 - The law firm of Gianola, Barnum, Wigal & Longon, L.C. and lawyer Patrick C. McGinley appeal the circuit court's order which denied their "Motion for Reconsideration and to Amend the Court's February 18, 2004 Order Enforcing Settlement, Releasing Defendants, and Dismissing Civil Actions." By denying the motion, the court also denied these attorneys' petition for attorney's fees. The court ruled that the attorneys must file an independent breach of contract suit to recover their attorney's fees and costs.

6. Kasserman and Bowman, PLLC v. Jane L. Cline, Comm'r. - 080028 - Petitioner seeks Declaratory Relief to obtain a judicial determination as to whether West Virginia Code §23-5-16 permits a twenty percent contingency fee to be awarded upon: (1) the settlement of medical benefits in a workers' compensation claim; and (2) additional permanent total disability benefits awarded for an earlier onset date as a result of litigation or appeals on behalf of a claimant for the statutory maximum period of 208 weeks per award. The Kanawha County Circuit Court granted summary judgment in favor of the Insurance Commissioner and found that the Code does not permit a twenty percent contingency fee.

7. State v. Paul Newcomb - 080090 - Paul Newcomb appeals his conviction for first degree murder without a recommendation of mercy. He asserts error in the trial court's failure to strike certain jurors for cause, that his statements and the weapon should have been excluded from trial because of Miranda violations, that his statement should have been excluded because of a prompt presentment violation, and error in the admission of 404 (b) evidence regarding an earlier altercation.

8. Ethel Lena Bane, et al. v. C.R. Coleman v. D. Frederick Bane, et al. - 073923 - This action was instituted by the holder of an oil and gas lease involved in a 1986 case, which was brought to determine the validity of that lease and which was revived for the same purpose. Following a bench trial, the circuit court found that the lease was still extant. Petitioners seek a reversal of the circuit court's order with directions to declare the alleged lease null, void, and abandoned. Alternatively, petitioners seek a new trial.

9. Terry Hill v. Gregory Brent Stowers - 080106 - Plaintiff Terry Hill appeals the circuit court's order dismissing his lawsuit under Rule 12(b)(6). Plaintiff asserts that Defendant Gregory Stowers engaged in illegal vote-buying activity which resulted in defendant obtaining more votes than did plaintiff to win the 1996 general election for Circuit Clerk of Lincoln County; plaintiff seeks monetary damages.

10. Amy McKinley Sprouse v. Victor A. Sprouse - 080278 - Petitioner appeals from the circuit court's order awarding permanent alimony to respondent after the family court had denied alimony of any kind to either party. Petitioner seeks a reversal of the circuit court's order awarding permanent alimony and a reinstatement of the family court's alimony denying alimony. Petitioner further seeks confirmation that West Virginia's statutory law does not contemplate the attribution of income within the context of alimony. - Justice Benjamin disqualified .

11. Amy McKinley Sprouse v. Victor A. Sprouse - 080618 - Petitioner appeals from the circuit court's order to the extent that it upheld various unsupportable findings by the family court. Petitioner also seeks an award of permanent alimony based upon her financial need and respondent's ability to pay. Petitioner also raises issues related to health insurance for the parties' minor child, extraordinary medical expenses, life insurance, and attorney's fees. - Justice Benjamin disqualified.

Argument Docket
Wednesday, May 21

1. In the Matter of: Alvie Qualls, Magistrate - 33515 & 33897

2. 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.

3. SER Roger Cline v. Hon. Joseph C. Pomponio, Jr., Judge - 33712 - Petitioner, convicted of First Degree Murder by jury and sentenced to Life with Mercy, seeks a writ of mandamus to compel Judge to rule on petitioner's writ of habeas corpus filed on 3/21/03. Circuit Court filed petition in wrong file and Petitioner refiled petition on 10/16/06, claiming newly discovered evidence and a new witness.