Supreme Court calendar for 10/6 issue

By The West Virginia Record | Oct 2, 2008

Argument Docket
Tuesday, Oct. 7

1. The Committee to Reform Hampshire Cty. Govt., et al. v. Hon. Richard Thompson, et al. - 33851 - The petitioners appeal from a final order of the Circuit Court of Kanawha County entered on April 9, 2007, granting a declaratory judgment to the Committee to Reform Hampshire County Government on the interpretation of Article IX, Section 13 of the Constitution of West Virginia. The Committee to Reform Hampshire County Government initially filed a complaint seeking a declaratory judgment ruling that the Legislature must process enabling legislation authorizing an election to reform the County Commission.

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. - Chief Justice Maynard disqualified, Judge Eagleoski sitting by temporary assignment.

3. Teresa Estep and Terry Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., et al. - 33810 - Defendants appeal from an adverse jury verdict in this vehicular crash worthiness case wherein plaintiff claimed that a 1999 Ford Ranger was defective because its occupant restraint system did not adequately protect plaintiff in a crash. Defendants raise various evidentiary and procedural trial errors, including the exclusion of any evidence about seatbelts, the presentation of opinion evidence based entirely upon speculation and conjecture by plaintiff's expert, and the failure to properly instruct the jury.

4. Dylan Turner, et al. v. Charles Turner, Sr., et al. and City Hospital, Inc. - 33892 - Personal injury child plaintiffs below appeal circuit court order which held that while it had jurisdiction to approve or disapprove of settlement in infant summary proceeding it lacked jurisdiction to reduce medical expenses subrogation lien held by insurer/hospital due to preemption by ERISA.

5. State of WV v. Melvin Randall Messer - 33870 - Melvin Randall Messer appeals his conviction for two counts of first degree murder with recommendations of mercy. He asserts several errors, including prosecutorial misconduct and insufficiency of the evidence.

6. Certain Underwriters at Lloyd's London, et al. v. Pinnoak Resources, LLC, et al. - 33898 - Plaintiffs appeal from the circuit court's order awarding summary judgment in favor of defendants and from the circuit court's order denying their motion to alter or amend the summary judgment order. This breach of contract action arises out of plaintiffs' assertion that defendants failed to pay the premium for a 5-year policy. Plaintiffs challenge the circuit court's findings regarding the meaning of certain policy language and the effect of a settlement agreement on the policy premium.

7. Apollo Civic Theatre, Inc. v. State Tax Commissioner of WV - 33889 - Petitioner appeals from the circuit court's order denying its petition for appeal from the adverse decision issued by the Office of Tax Appeals. The circuit court affirmed the Tax Commissioner's assessment against petitioner for use tax and for consumers' sales and service tax, together with statutory interest on both assessments.

8. Valley Water & Sewer Services, Inc. v. PSC/Deerwood Homeowners Association - 33899

9. O.J. Mayo v. The West Virginia Secondary Schools Activities Commission - 33838 - Defendant, The West Virginia Secondary Schools Activities Commission, appeals the circuit court's order striking as unconstitutional certain rules of the defendant, one of which was not at issue in the case, and the circuit court award of attorney's fees and costs to plaintiff.

10. SER Prosecuting Attorney of Kanawha County v. Bayer Corporation - 33871 - The petitioner, the Bayer Corporation, appeals from an Order dated August 10, 2006, by the Kanawha County Circuit Court, which reversed the decision of the Kanawha County Commission to exonerate Bayer's request for exoneration from erroneous personal property taxes assessments for tax years 2001, 2002, and 2003. The Kanawha County Circuit Court found that Bayer was not entitled to exoneration for the taxes previously paid. On April 30, 2007, the Circuit Court denied Bayer's Motions for New Trial and Reconsideration. Bayer now appeals the Orders of the Circuit Court.

Motion Docket
Wednesday, Oct. 8

NOTE: Justice Albright did not participate in the consideration or decision of the cases on this docket. Senior Status Justice McHugh sitting by temporary assignment.

1. In Re: Jean Holly Dandy, a protected person Petitioner: James Wilson Douglas - 080929 - Attorney James Wilson Douglas appeals the circuit court's order finding that he could not collect certain attorney's fees from the estate of a protected person. Mr. Douglas had been retained by the attorney-in-fact for the alleged protected person to defend the guardian and conservatorship proceeding and to file a related petition for prohibition.

2. Michael Blankenship, et al. v. Boston Culinary Group v. Lakewood Swim Club v. Evanston Insurance Company - 081019 - Lakewood Swim Club seeks reversal of a December 11, 2007, Order of the Kanawha County Circuit Court which granted summary judgment in favor of Evanston Insurance Company and against Lakewood Swim Club on a declaratory judgment action. The court's ruling left Lakewood Swim Club without a defense and without coverage for lawsuits filed against it by the plaintiffs and third-party plaintiffs below.

3. Clifford Crum v. Equity Insurance, Inc., et al. - 080848 - Plaintiff appeals from the circuit court's order reaffirming its prior award of summary judgment in favor of defendant, Equity Inns, Inc., in this action for personal injuries. Plaintiff seeks a reversal of the circuit court's decision.

4. Gap View Village Homeowners Assoc., Inc. v. PSC/Jefferson Utilities, et al. - 081494

5. Pamela Gainer v. WVDHHR/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.

6. Mylan Laboratories, Inc., et al. v. American Motorists Insurance Co., et al. - 081073

7. State of WV v. Mark Thomas Coleman - 081142

Argument Docket
Wednesday, Oct. 8

1. State of WV v. Brian Keith Noll - 33903 - Petitioner Brian Noll appeals his conviction for 2 counts of Burglary, 2 counts of Grand Larceny, 1 count of Conspiracy to Commit Burglary, and 2 counts of misdemeanor Receiving and/or Transferring Stolen Property. He asserts 404(b) errors, prosecutorial misconduct, insufficiency of the evidence, erroneous amendment of his indictment, incorrect sentence, and cumulative error.

2. Laurie Ann Murphy and Shawn M. Murphy v. Dennis L. Burech, M.D., et al. - 33904 - The petitioners appeal from a jury verdict, which found the defendants not liable in an alleged medical negligence civil suit. The plaintiffs alleged negligence during the delivery of their son and that the negligence caused devastating and neurological and psychological injuries.

3. Choice Lands, LLC v. Nondus Tassen, et al. v. Old Colony Company, et al. - 33878 - Plaintiff Choice Lands, LLC appeals the circuit court's order granting judgment on the pleadings in favor of the defendants Kenneth and Joyce Jones, and the court's order denying reconsideration of that judgment under Rule 60(b). At issue is whether the Joneses have an easement across a gravel driveway which is on property that Choice Lands has purchased.

4. WV Dept. of Transportation, Div. of Highways v. Parkersburg Inn, Inc., et al. - 33882 - Defendant, Parkersburg Inn, Inc., appeals from the circuit court's orders denying its motion to set aside the verdict and award a new trial in this action brought by the Division of Highways ("DOH") to determine whether defendant was entitled to compensation for damages caused by the construction of an Appalachian Corridor Project. Following a trial, the jury had returned a verdict in favor of the DOH and against defendant.

5. Mark Damron v. William Haines, Warden, Huttonsville Correctional Facility - 33900 - Mark Damron appeals the denial of his post-conviction petition for habeas corpus. He was previously convicted of one count of First Degree Arson and one count of Second Degree Arson. He asserts, inter alia, Miranda and Crawford violations, double jeopardy for double punishment for the same offense, and ineffective assistance of trial counsel and previous habeas counsel.

6. Shirley E. Grose v. John H. Grose - 33901 - John H. Grose appeals the circuit court's order which affirmed the family court's order awarding his ex-wife, Shirley E. Grose, a portion of his disability pension and certain attorney's fees.

7. Antoinette Falls v. Union Drilling, Inc., et al. - 33907 - The petitioner seeks reversal and remand of the Circuit Court's final order dismissing the petitioner's common-law negligence claims against the defendant for failure to state a claim upon which relief can be granted, or alternatively, to grant a writ of prohibition preventing the circuit court from enforcing its order of dismissal. The petitioner argues on appeal that the Circuit Court erred in ruling that the employer immunity provisions of the Workers' Compensation Act apply in this case.

8. Terra Firma Co. v. Robert Morgan and Vickie Morgan - 33908 - Petitioners, Robert and Vickie Morgan, appeal from the circuit court's order granting summary judgment in favor of respondent, Terra Firma Company, on petitioners' counterclaim for damages filed in this action involving the wrongful occupation of residential real estate. Petitioners contend that there were genuine issues of material fact in dispute which precluded the entry of summary judgment on their counterclaim.

9. Paul E. Forshey & Melissa L. Forshey v. Theodore A. Jackson, M.D. - 33834 - Plaintiff appeals the dismissal of his medical malpractice lawsuit based upon the 10 year statute of repose of W.Va. Code § 55-7B-4(a). He argues that his suit should not be dismissed based upon the continuous medical treatment doctrine, the continuing tort doctrine, or the discovery rule.

10. 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.

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