SupCo calendar for August issues

Motion Docket
Sept. 3

1. State of WV v. Robert Holcomb - 080392 - Robert L. Holcomb appeals his conviction for Gross Child Neglect and the imposition of a life sentence pursuant to the recidivist statute. He asserts that the recidivist information was untimely, his life sentence is cruel and unusual, and the court erred by not suppressing evidence obtained during a pre-textual traffic stop.

2. Victor T. Peoples v. WVHRC/Sue J. Erps and William G. Erps, et al. - 080498 - Sue J. Erps and William G. Erps, d/b/a Improvements Unlimited, appeal a Human Rights Commission order which affirmed the decision of a Commission administrative law judge. The ALJ concluded that Improvements Unlimited had subjected Victor T. Peoples to hostile work environment racial discrimination, retaliatory discharge, and retaliation for filing this complaint. Improvements Unlimited appeals issues of liability and damages.

3. State of WV v. Robert S. Hart, Jr. - 080335 - Defendant appeals from the circuit court's order imposing consecutive sentencing and asserts that it violates the proportionality rule because his sentencing was different from that of his co-defendants who received concurrent sentences.

4. Deborah K. Wright v. Mark A. White - 080490 - Mark A. White appeals the circuit court's order which affirmed the family court's final divorce order. Mr. White asserts eleven assignments of error, including that without following the proper procedures and without notice to him, the family court erroneously converted a temporary hearing into the final divorce hearing and then entered the final divorce order the same day. He also asserts error with respect to rulings on rehabilitative alimony, equitable distribution, and attorney's fees/costs.

5. John Frederick Jochum, et al. v. Waste Management of WV, et al. - 080362 - Plaintiffs Jacob Frederick Jochum and Jacob F. Jochum, Jr., d/b/a Jack Jochum Truck Service, file an appeal under Rule 54(b) of the circuit court's order granting summary judgment in favor of one defendant, Waste Management of West Virginia, Inc. The court found that contractual conditions precedent to the sale of a business had not been met, thus defendant did not breach the sales contract or cause detrimental reliance when it notified plaintiffs it would not go forward with the sale. Plaintiffs assert that summary judgment was not appropriate because of several outstanding genuine issues of material fact. - Justice Benjamin disqualified.

6. Wells Fargo Bank N.A. v. UP Ventures II LLC, et al. - 080485 - Wells Fargo Bank appeals the circuit court's adverse summary judgment order. The court concluded that the bank's petition to set aside a tax sale deed was filed beyond the statute of limitations of W.Va. Code § 11A-4-4(a). Wells Fargo asserts a lack of notice of the right to redeem, making constitutional and statutory arguments.

7. State of WV v. Danny Minigh - 080333 - Defendant appeals from his conviction for conspiracy to commit the felony offense of manufacturing a controlled substance. Defendant moved for a new trial or a judgment of acquittal due to lack of evidence to prove the conspiracy. The circuit court found that there was sufficient evidence in the record for the conspiracy and denied defendant's post-trial motions. Defendant was sentenced to one to five years to be served consecutive to a charge in Gilmer County. Defendant raises issues related to double jeopardy, the sufficiency of the evidence, and evidentiary error below.

8. State of WV v. Willie Ray Trembley, Jr. - 080365 - Willie Ray Trembly, Jr. appeals his sentence for his conviction upon guilty plea to 1 count of Breaking and Entering, 3 counts of Second Degree Arson, and 2 counts of Causing Injury During an Arson-Related Crime. He argues inter alia that his consecutive sentences totaling 51 to 60 years in prison are excessive.

9. CBC Holdings, et al. v. Dynatec Corporation, et al. - 080356 - Plaintiff appeals from the circuit court's order dismissing this declaratory judgment action on the basis that plaintiff's claim was governed and encompassed by the Coalbed Methane Act and that plaintiff could not maintain its civil action without first applying for relief under that Act. Plaintiff sought to confirm its rights to certain coalbed methane, as well as a judgment declaring the leasehold interests asserted by defendants null and void as a matter of law.

10. State of WV v. Tanya D. Harden - 080766 - Tanya D. Harden appeals her conviction for First Degree Murder with a recommendation of mercy. She alleges several trial errors including the admission of irrelevant and gruesome photographs, failure to excuse a prospective juror for cause, failure to rebut her self-defense claim, admission of speculative evidence, improper instruction regarding lost or destroyed evidence, and her lawyer was improperly ordered not to object to the State's closing argument.

11. Ann Morgan Zimmerer and Gerald Lee Zimmerer v. Mark E. Romano, et al. - 080753 - Petitioners, Ann Zimmerer and Gerald Lee Zimmerer, appeal from a final order entered by the Circuit Court of Nicholas County, awarding summary judgment in favor of the Respondents. Petitioner asserts that the Circuit Court's order constitutes both an unconstitutional taking of the petitioners' private property and an unconstitutional deprivation of the petitioners' property rights without due process of law and just compensation in violation oft he state and federal constitutions.

12. State of WV v. Paul Lamar Cochran - 080850 - Petitioner, Paul L. Cochran, appeals from a conditional plea of guilty to the charge of incest in violation of West Virginia Code §61-8-12, pursuant to Kennedy v. Frazier. Petitioner asserts that he entered into the plea agreement with the condition that the incest plea would be an appealable issue due to the definition section of the code remaining silent as to whether a "step" grandfather was inclusive in the definition of grandfather.

Motion Docket
Sept. 9

1. State of WV v. Frank D. Foster - 080311 - Defendant appeals his conviction of fleeing from an officer in a vehicle causing injury and second offense DUI following a jury trial. He was sentenced to 1 to 5 years for the felony offense of fleeing from an officer in a vehicle causing injury and 1 year for the second offense DUI, those sentences to be served consecutively. Defendant raises procedural and evidentiary errors below.

2. State of WV v. Troy Allen Coffman - 080360 - Defendant appeals from his convictions on various sex crimes. He was sentenced to 11 to 30 years in prison. Defendant challenges the circuit court's ruling refusing to suppress his confession.

3. State of WV v. Richard O. Rizk - 080571 - Petitioner, Richard O. Rizk, appeals his conviction of a felony count of distribution of a controlled substance and asserts that the failure of the State of West Virginia to disclose additional uncharged conduct of the confidential informant violates his right to due process of law under Article III, Section 14 of the West Virginia Constitution.

4. Retail Designs, Inc. v. WV Dept. of Highways and One Gateway Associates, LLC - 080390 - Third-Party Plaintiff One-Gateway Associates, LLC, appeals the circuit court's adverse summary judgment order on the issue of whether One-Gateway is entitled to a right-of-way.

5. State of WV v. Michael J. Gleason - 080645 - Defendant appeals from his convictions for abduction with intent to defile, unlawful assault, attempted sexual assault in the second degree, and burglary. Defendant contends that the circuit court erred in denying a judgment of acquittal on the abduction with intent to defile, the unlawful assault, and the attempted sexual assault in the second degree and seeks a reversal. He also seeks a reversal of his burglary conviction and a remand of the case for trial upon that offense alone. Defendant seeks such other relief as this Court deems proper.

6. Pamela Gainer v. WV DHHR/Bureau for Children and Families - 080666 - DHHR appeals from the circuit court's order reversing the decision of the West Virginia Education and State Employees Grievance Board upholding DHHR's 4-day suspension of respondent without pay.

7. State of WV v. Eric Cleveland Murph - 080843 - Eric Cleveland Murph appeals his conviction for First Degree Robbery. He argues that the circuit court erred by refusing to give a jury instruction on Petit Larceny, a lesser included offense.

8. Jean Kennedy v. Michael J. Tupta, Jr. - 080652 - The ex-wife in a divorce case appeals asserting that the family court and circuit court undervalued a marital asset, i.e., a dental practice, and that the courts failed to award her sufficient spousal support.

9. Jean Kennedy v. Michael J. Tupta, Jr. - 080845 - The ex-husband in a divorce case appeals asserting that the circuit court erroneously substituted its own judgment for that of the family court on the value of a dental practice, regarding the wife's health insurance, and when awarding attorney's fees to the wife, and that the circuit court erred when denying his request for attorney's fees incurred to defend himself against false accusations.

10. Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 080721 - Plaintiffs appeal from the circuit court's order granting in part and denying in part defendant DuPont's motion for partial summary judgment in this class action seeking medical monitoring, property remediation, and punitive damages. Plaintiffs assert that there were material questions of fact as to whether the contamination and injuries/damages due to the operation of a zinc smelter were contemplated by the original landowners and whether certain releases and easements executed in the 1920's provide immunity for those claims. Plaintiffs seek a reversal of the circuit court's order granting partial summary judgment in favor of defendants on the Property Class members' claims and request a remand for reinstatement and adjudication of those claims upon their merits.

Motion Docket
Sept. 10

1. James R. "Sonny" Griffith v. Barbour County Board of Education - 080338 - Petitioner appeals from the circuit court's final order granting summary judgment in favor of the Barbour County Board of Education. Petitioner raises various procedural errors below, as well as constitutional arguments.

2. State of WV v. Dennis Gale Hubbard - 080642 - Defendant appeals from his conviction of second degree murder and his sentence of 40 years in the penitentiary. Defendant alleges prosecutorial misconduct, insufficiency of evidence to convict, and the failure of the circuit court to fully instruct the jury on the State's burden. Defendant seeks either a reversal of his conviction or a remand for a new trial.

3. Carl Wayne Baughan v. Greater Huntington Park & Recreation Dist. and Ingram Barge Co., et al. - 080752 - The barge line defendants appeal from the circuit court's order finding that they did not hold out their real or personal property for recreational use and, therefore, West Virginia Code §19-25-2, et seq. (West Virginia Recreational Immunity Statute), does not shield them from liability. The circuit court found that there was no genuine issue as to any material fact on that issue; that the barge line defendants would not be entitled to assert the recreational immunity statute as a defense; and, that a final judgment was entered on that issue pursuant to Rule 54(b) thereby making the ruling a final and appealable order.

4. State of WV v. Eric M. Taylor - 080849 - Petitioner, Eric M. Taylor, appeals his convictions on one count of third offense domestic battery and one count of battery. Petitioner was sentenced to a term of one to five years in the state penitentiary consecutive to a term of twelve months in the Southern Regional Jail.

5. Roundtree R. Goodman v. Thomas McBride, Warden - 080632 - Petitioner appeals from the circuit court's order denying, in part, his petition for habeas relief concerning the treatment he receives for his mental illness. Petitioner alleges cruel and unusual punishment by medical neglect and a denial of his fundamental constitutional rights.

6. State of WV v. David Eugene Moore - 080726 - David Eugene Moore appeals the circuit court's denial of his Motion for Reduction of Sentence. The court found that petitioner waived the right to move for reconsideration of sentence as part of his plea agreement, and that the motion for reconsideration was filed beyond the 120 day limit of Rule 35.

7. Sharon G. Noble v. WV Dept. of Transportation, Div. of Motor Vehicles - 080754 - The DMV appeals the circuit court's order which reversed the DMV's final order revoking Sharon G. Noble's driver's license for six months for DUI. The DMV argues that the circuit court erred when holding that Ms. Noble had been arrested pursuant to a municipal DUI ordinance and that the DMV had failed to ascertain, or even needed to ascertain, whether the municipal ordinance has the same elements as W.Va. Code § 17C-5-2.

8. Chad R. Clower v. WV Dept. of Transportation, Div. of Motor Vehicles - 080780 - The DMV appeals the circuit court's order which reversed the DMV's final order revoking Chad R. Clower's driver's license for six months for DUI. The court found that the arresting trooper lacked the requisite reasonable suspicion to initially stop Mr. Clower's vehicle, but the DMV argues that the exclusionary rule should not be applied to administrative driver's license revocation proceedings.

9. State of WV v. Michelle Michael - 080767 - Michelle Michael appeals her conviction for First Degree Murder with a recommendation of mercy and First Degree Arson, and the court's denial of her various motions. She asserts the court erred in excluding her evidence that the drug which caused the victim's death could be purchased over the Internet without a prescription; and that the State suppressed material, exculpatory evidence of the identity of the caller who told police to check for the presence of this drug.