Supreme Court calendar for 9/22 issue

By The West Virginia Record | Sep 18, 2008

Motion Docket
Sept. 23

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 Vaughan 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. 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.

7. 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.

8. 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.

Argument Docket
Sept. 23

IMPORTANT NOTE: The September 23 Argument Docket was previously scheduled to be held at Marshall University in Huntington, but is now scheduled to be held in Charleston. For additional information, refer to the September 9, 2008 and September 11, 2008 press releases.

1. WV Dept. of Trans., Div. of Highways v. Contractor Enterprises, et al. - 33869 - 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.

2. Davis Memorial Hospital v. WV State Tax Commissioner - 33862 - Petitioner taxpayer appeals from the circuit court's order affirming the decision of the Office of Tax Appeals that affirmed the Tax Commissioner's decision to deny the taxpayer's refund petition. Petitioner contends that the Tax Commissioner improperly disregarded critical textual differences between federal and state law, which resulted in a frustration of legislative intent.

3. Lea Anne Hawkins v. Anthony J. Julian, Judge, Municipal Court of Fairmont - 33905 - Continued to October 28.

Gretchen Mezzanotte v. Anthony J. Julian, Judge, Municipal Court of Fairmont - 33906 - Continued to October 28.

4. Thomas P. Sturm v. Board of Education of Kanawha County - 33854 - Plaintiff below appeals dismissal of his action alleging that he was provided with a defective education.

5. David Hawkins and Kim Hawkins, et al. v. WV Dept. of Public Safety, et al. - 33876 - 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.

6. In Re: Charleston Gazette FOIA Request - 33812 - This is a declaratory judgment action involving 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.

7. State of WV v. Earl M. Rutherford - 33828 - Earl Monty Rutherford appeals the enhanced sentence he received pursuant to W.Va. Code § 60A-4-408 upon his conviction for delivery of a controlled substance.- To be presented on briefs only without oral argument.

8. Waco Oil and Gas Co., Inc. v. Director, Div. of Mining and Reclamation - 33829 - The WV Department of Environmental Protection and its current Director appeal the Circuit Court's order which reversed a decision of the WV Surface Mine Board. The Board had affirmed the Director's decision to deny WACO Oil and Gas Company, Inc.'s application for a permit to quarry sandstone.

9. Lawyer Disciplinary Board v. Mark Blevins - 33281 - Formal charges were filed against Respondent in violation of the Rule 8.4. Misconduct of the Rules of Professional Conduct. Respondent solicited a known felon to obtain a "throw away" gun, and aided and abetted a known felon in a scheme to extort money through violence who owed Respondent money.

10. American Modern Home Ins. Co. v. Jeff Cora, et al. - 33861 - The United States District Court for the Southern District of West Virginia submits an order of certification pursuant to West Virginia Code §§ 51-1A-1 to 51-1A-13 and presents the following question of law:

"The homeowner's policy in effect at the time of the underlying events provides coverage for an "occurrence," which is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period in . . . bodily injury or property damage." Under West Virginia law, does knowingly permitting an underage adult to consume alcoholic beverages on a homeowner's property constitute an "occurrence" within the meaning of the American Modern Home Insurance Company Homeowner's policy at issue in this case?

11. Timber Ridge, Inc. v. Hunt County Asphalt & Paving, LLC and Jeffrey Greenburg - 33877 - The United States District Court for the Northern District of West Virginia, Martinsburg Division, submits the following certified questions:

"A. Whether a contractor who does not have a West Virginia contractor's license may utilize the courts to maintain a claim or counterclaim against the property owner.

B. Whether a landowner's knowledge of the contractor's unlicensed status estops the landowner from raising the contractor's unlicensed status.

12. State of WV v. Megan S. - 33831 - Juvenile appeals from the circuit court's order adjudging her as a juvenile delinquent for the offense of battery. The juvenile challenges that finding and asserts that she was denied effective assistance of counsel. - To be presented on briefs only without oral argument.

13. SER Hubert Lusk v. Honorable Robert L. Holland, Jr., Judge - 33923 - Petitioner seeks a writ of mandamus to compel the circuit court to set a timetable for briefs and motions, to order the circuit court to require his attorney to respond to him and to appoint a private investigator.- To be presented on briefs only without oral argument.

14. SER Jackie D. Terry v. Honorable Jay M. Hoke, Judge - 33924 - Petitioner, pro se inmate, seeks writ of mandamus to compel the circuit court to rule on his Post-Convicton Habeas Corpus pending since August 30, 2007. - To be presented on briefs only without oral argument.

Motion Docket
Sept. 24

1. C & O Motors, Inc. V. West Virginia Paving, Inc. - 080842 - Defendant appeals from the circuit court's order awarding summary judgment in favor of plaintiff in this negligence action seeking damages. Defendant asserts that the circuit court's ruling effectively changed this negligence into one of "strict liability." Defendant further asserts that the circuit court erred by not granting defendant's motion to join a necessary party, a subcontractor, who performed the work in question.

2. SER William Henry Johnson v. Michael Coleman, Warden - 080921 - Petitioner appeals from the circuit court's order denying his petition for a writ of habeas corpus following an omnibus hearing. Petitioner alleged ineffective assistance of appellate counsel, a violation of his Fifth Amendment rights, and a failure to promptly present him to a judicial officer. Petitioner seeks an issuance of a writ of habeas corpus and a remand to the circuit court for retrial.

3. Brian Bush Ferguson v. David Ballard, Warden - 080974 - Petitioner appeals from the circuit court's order denying his petition for habeas relief and from the circuit court's order denying petitioner's Rule 60(b) motion to alter or amend judgment. Petitioner asserts that his trial counsel failed to conduct a reasonable and efficient investigation and that but for those unprofessional errors, the results of the proceeding would have been different.

4. Kenneth Dale Newman and Marty Newman v. James Michel, Jr. and Tomasina Michel - 080957 - Petitioners appeal the circuit court's order finding that they have neither an express nor prescriptive easement over the respondents' property for the purpose of accessing their own property.

5. 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.

6. Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 081461 - This case involves the former E. I. du Pont operations of a zinc smelting facility in Spelter, WV. This is a class-action complaint alleging negligence, recklessness, public and private nuisance, trepass, strict liability, unjust enrichment, medical monitoring and punitive damages based on alleged exposure to arsenic, cadmium and lead. The jury verdicts are reported as the largest toxic tort verdict in the country. Justice Benjamin disqualified. Judge Swope sitting by temporary assignment.

7. Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 081462 - This case involves the former E. I. du Pont operations of a zinc smelting facility in Spelter, WV. E. I. du Pont seeks reveral of the circuit court's order ruling that du Pont has no obligation to indemnify T. L. Diamond in connection with Plaintiffs' claims in this case. Justice Benjamin disqualified. Judge Swope sitting by temporary assignment.

Argument Docket
Sept. 24

1. SER River Riders, Inc., et al. v. Hon. Thomas W. Steptoe, Judge, et al. - 34206 - Continued to October 28.

2. SER CitiFinancial, Inc. v. Hon. John T. Madden, Judge - 34216 - Petitioner seeks a writ of prohibition challenging the circuit court's decision denying Petitioner's motion for partial summary judgment dismissing all claims based on excessive and unreasonable charges for credit insurance and denying motion for stay. Petitioner contends Plaintiff sued the wrong defendant under the wrong statute. - Continued.

3. Andrew Young, Admn'r. v. Pamela Sue McIntyre and Huntington National Bank - 33872 - 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.

4. State of WV v. William M. Woodson - 33701 - Defendant appeals from his convictions of first degree robbery and malicious wounding following a jury trial. Defendant asserts various evidentiary errors and seeks a reversal for a re-trial and/or re-sentence.

5. Crystal A. Hatfield v. Health Management Associates of WV, et al. - 33702 - Plaintiff appeals from the circuit court's order granting summary judgment in favor of defendants in this employment termination action.

6. Ralph Burton v. Bonnie Sue Burton - 33729 - Petitioner wife appeals from the circuit court's order dismissing her petition for appeal from an order entered in the family court on a motion for reconsideration. The issue on appeal is the timeliness of the petition for appeal from family court to circuit court.

7. State of WV v. Charles Cowley - 33804 - 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.

8. WV Consolidated Public Retirement Board v. Jerry Allen Weaver - 33864 - Jerry Allen Weaver appeals the circuit court's order terminating his Public Employees Retirement System benefits based upon the court's finding that petitioner rendered less than honorable service because of a federal conviction for felony Conspiracy to Buy Votes.

9. SER Larry P. McClure v. Hon. Jay M. Hoke, Judge - 34221 - Petitioner found guilty by a jury of First Degree Sexual Assault and sentenced 15 to 35 years in prison seeks issuance of a writ of habeas corpus arguing illegal sentence, vindictive prosecution, and ineffective assistance of counsel based upon allegation that counsel failed to convey a plea offer to him that was made prior to trial. - To be presented on briefs only without oral argument.

10. SER Ian Smith v. Hon. Alfred E. Ferguson, Judge - 34222 - Petitioner, an inmate at Mt. Olive, pled guilty to one count of First Degree Robbery and Malicious Wounding, seeks a writ of mandamus arguing that he has been denied right of appeal due to court report's failure to produce transcript of his criminal proceedings. - To be presented on briefs only without oral argument.

11. SER Robert G. Ginanni v. Hon. Robert L. Holland, Jr., Judge - 34223 - Dismissed.

12. Jeanne Cartwright v. Carl F. McComas, M.D. and Cabell Huntington Hospital - 33868 - Plaintiff appeals from the circuit court's order awarding summary judgment in favor of defendant hospital in this medical malpractice action.

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