SupCo calendar for 10/27 issue

Motion Docket
Tuesday, Oct. 28

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. Samantha Lewis, et al. v. International Coal Group, et al. Petitioners: Timothy Lewis, et al. - 081448 - The underlying action is a wrongful death civil suit by the Estate of David W. Lewis against various coal company and other related defendants for his death in the January 2, 2006, Sago Mine Disaster. On June 2, 2008, the Kanawha County Circuit Court approved a settlement agreement between the Estate and certain defendants. The Petitioners are beneficiaries of the Estate who objected to the approval of the settlement agreement, and seek to have the Circuit Court's approval of the settlement agreement overturned. Senior Status Justice McHugh disqualified. Judge Thompson sitting by temporary assignment.

2. SER David Rosenberg v. Howard Painter, Warden - 081009 - Petitioner, David Rosenberger, appeals a denial of habeas corpus relief in the Putnam County Circuit Court on July 6, 2007. Petitioner Rosenberger primarily argued that he was denied his constitutional right to a fair trial due to the ineffective assistance of counsel and cumulative error from various errors during his trial. In 1995, the petitioner was convicted of First Degree Murder. - Continued.

3. State of WV v. Edward C. Grimes - 080751 - Edward Charles Grimes appeals his conviction for second degree murder. He alleges inter alia a Brady violation, misconduct before the grand jury, evidentiary error, insufficient evidence to allow the jury to consider first degree murder, that the court should have granted his dispositive motions, and disproportionate sentence.

4. Carl and Terry Milam v. Fleetwood Homes of North Carolina, Inc. - 081160 - Petitioner, Fleetwood Homes of North Carolina, Inc., appeals from an award of attorney's fees in the amount of $413,551.60, following a jury trial where the plaintiffs obtained a verdict of $29,616.70 in their claim for breach of express warranties, breach of implied warranty of merchantability, revocation of acceptance, unfair or deceptive acts or practices, and common law negligence. Petitioner argues that the amount of attorney's fees is plainly erroneous, egregious, an abuse of discretion, and contrary to public policy.

5. Barbara Warner, et al. v. Leroy Wingfield, et al. Petitioner: Erika H. Klie, Esq. - 081033 - Plaintiffs' prior counsel, Erika Klie, appeals from the circuit court's order granting defendants' motion for Rule 11 sanctions and sanctioning petitioner in the amount of $12,236.33, which sum constituted defendants' reasonable legal fees incurred in defending themselves in this civil action. Petitioner Klie seeks a reversal of the circuit court's order.

6. State of WV v. Tyler Bauman - 081256 - Tyler Baumann appeals his conviction for Involuntary Manslaughter, a misdemeanor. He asserts eleven assignments of error, arguing, inter alia, error in the failure to suppress his statements, jury issues, error in the failure to change the venue, gruesome photographs, instructional error, failure to grant motions for judgment of acquittal, insufficiency of the evidence, and error during the sentencing hearing.

7. Langley as Inez France v. Southern Equipment Company, et al. - 081348 - The Petitioners, Langley and Inez France, as parents and next friend of Robert France, seek to reverse a November 6, 2007, Order granting summary judgment to Defendant Southern Equipment Company. The petitioners had sought monetary damages for a disabling closed head injury suffered by the minor while employed by Royalty Builder, on an industrial roof replacement job at a building owned by Southern Equipment Company in Pecks Mill, West Virginia.

8. Joe Meadows v. J.T. Davenport & Sons, Inc., Go-Mart, Inc., and Robert D. Rader - 081215 - The Petitioner, Go-Mart, Inc., appeals the circuit court's denial of post-trial motions following a jury verdict finding all parties equally negligent. The civil action arose from an incident where Respondent Joe Meadows, Jr. was run over by the rear wheels of a delivery truck in a Go-Mart parking lot.

9. Mary M. Tyler and Glenn R. Tyler v. Speedway SuperAmerica, LLC, et al. - 081238 - Plaintiffs below, Mary R. Tyler and Glen R. Tyler, appeal after an adverse jury verdict and the circuit court's denial of their post-trial Motion for Judgment Notwithstanding the Verdict and for a New Trial. They assert that they proved a claim for sexual harassment, that the court erroneously admitted irrelevant and prejudicial evidence at trial, and that the court erroneously dismissed a claim for intentional infliction of emotional distress.

10. State of WV v. Richard Malfregeot - 081195 - Defendant appeals following his conviction of the misdemeanor offense of stalking/harassment following a non-jury trial in circuit court on appeal from the magistrate court. Defendant's sentence of six months incarceration and fine of $500 were both suspended and he was placed on unsupervised probation for two years. Defendant challenges the sufficiency of the evidence and the circuit court's application of the law to the facts.

Argument Docket
Tuesday, Oct. 28

1. Matthew Brian Yoak, M.D. v. Marshall Univ. Bd. of Governors, et al. - 33863 - In an employment case, plaintiff appeals the circuit court's order granting with prejudice defendants' motion to dismiss pursuant to Rules 12(b)(1) and (6). He asserts the circuit court erroneously afforded immunity to defendants, erroneously found that defendants acted in anticipation of breach of contract, erroneously found that plaintiff failed to exhaust his administrative remedies, and erroneously dismissed claims for misappropriation of identity and negligence in advertising.

2. SER River Riders, Inc., et al. v. Hon. Thomas W. Steptoe, Judge, et al. - 34206 - This case arose out of an incident which occurred during a commercial white water rafting trip on the Shenandoah River. Petitioner seek a writ of prohibition challenging enforcement of three of the circuit court's orders by ruling: the maritime law applies; and the assumption of risk in white water rafting cases is not a defense; and consolidating cases with different theories of recovery, different measures of damages, and the preparation for separate trials.

3. Lea Anne Hawkins v. Anthony J. Julian, Judge, Municipal Court of Fairmont - 33905 - Petitioner Lea Anne Hawkins appeals the circuit court's order denying her petition for injunction, temporary restraining order, and prohibition. She argues that the Municipal Court of Fairmont should be enjoined and prohibited from proceeding against her in a case concerning an amnesty agreement for the payment of unpaid parking tickets. She argues inter alia that any breach of the amnesty agreement would be civil, there is no criminal violation or pending criminal charge in this case, and the municipal court only has criminal jurisdiction.

Gretchen Mezzanotte v. Anthony J. Julian, Judge, Municipal Court of Fairmont - 33906 - Petitioner Gretchen Mezzanotte appeals the circuit court's order denying her petition for injunction, temporary restraining order, and prohibition. She argues that the Municipal Court of Fairmont should be enjoined and prohibited from proceeding against her in a case concerning an amnesty agreement for the payment of unpaid parking tickets. She argues inter alia that any breach of the amnesty agreement would be civil, there is no criminal violation or pending criminal charge in this case, and the municipal court only has criminal jurisdiction.

4. William T. Smoot, II v. American Electric Power, et al. - 33806 - Plaintiff appeals from the circuit court's order granting summary judgment in favor of defendants in this personal injury action brought against defendants alleging negligence. - This case will be called at 2 pm. Justice Benjamin disqualified. Judge Bloom sitting by temporary assignment.

5. SER Joseph Cicchirillo, Comm'r., DMV v. Hon. J.D. Beane, Judge - 34336 - Petitioner seeks a writ of prohibition prohibiting the circuit court from having jurisdiction in this case. Plaintiff's driver's license was suspended by the Division of Motor Vehicles after notification from Ohio that Plaintiff had been in an automobile accident as a result of a seizure. The circuit court stayed Plaintiff's driving privileges pending further review effectively restoring Plaintiff's driving privileges. - Dismissed.

6. SER WV National Auto Ins. Co. v. Hon. Thomas A. Bedell, Judge - 34337 - Petitioner seeks a writ of prohibition challenging a circuit court order granting a Florida lawyer's Motion to Dismiss a civil complaint against him on the ground that the court did not have personal jurisdiction.

7. SER Craigo Real Estate Corp. v. Hon. N. Edward Eagloski, Judge - 34338 - Petitioner seeks a writ of mandamus to compel the Respondent to act on a Motion for Disqualification according to Rule 17.01(b). The case involves condemnation of a portion of real property owned by the Petitioner for use by the WV Div. of Highways. Through mediation all matters between the parties were settled. However, Respondent appeared bias against Petitioner, and has not issued an order causing rise to the action.

8. SER Central West Virginia Energy Company v. Hon. Ronald E. Wilson, Judge - 34403 - Petitioner seeks a issuance of a writ of prohibition to prohibit an the enforcement (injunction) of paragraphs 3 through 7 of the circuit court's order entered on 9/17/08, in the underlying proceeding. Petitioner claims the circuit court does not have jurisdiction to make said ruling, and it exceeded its powers by doing so. - Chief Justice Maynard disqualified. Judge Moats sitting by temporary assignment.

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. Senior Status Justice McHugh disqualified. Judge Beane sitting by temporary assignment. Judge Beane disqualified. Judge Blake sitting by temporary assignment.

Motion Docket
Wednesday, Oct. 29

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. Victoria L. Beaver v. WV Dept. of Health and Human Resources and Elissa Taylor - 081038 - The defendants, the W.Va. DHHR and its employee Elissa Taylor, file an interlocutory appeal of the circuit court's order denying their Rule 12(b)(6) motion to dismiss. The lawsuit asserts that the defendants failed to protect a child who had reported abuse. The defendants assert immunity under W.Va. Code §§ 49-6A-6 and -9 and common law qualified immunity, and argue that the court misapplied the law when denying their motion.

2. Mindy and Billy McCormick v. Wal-Mart Stores, Inc. - 081046 - Plaintiffs Mindy and Billy McCormick appeal the circuit court's order denying their "Motion for Determination of Damages" and "Rule 59(e) Motion for Reconsideration." They argue that defendant Wal-Mart should be compelled to pay their attorney's fees and litigation expenses.

3. Glenn F. Macher, Jr. v. City of Martinsburg - 081145 - The petitioner, Glenn F. Macher, Jr., appeals from an Order Denying his Motion for Relief from Final Judgment Pursuant to Rule 60(B) entered by the Berkeley County Circuit Court on October 10, 2007. Petitioner seeks reversal and remand of that decision so the original Petition for Mandamus can be considered on the merits by the circuit court.

4. Betty Lou Zirkle Carpenter v. Shirley Blaniar Luke - 081154 - The petitioner, Shirley Blaniar Luke, appeals the Harrison Circuit Court's rulings denying a Motion to Alter or Amend Judgment pursuant to West Virginia Rule of Civil Procedure Rule 59 and denying a Motion for New Trial pursuant to Rule 59. The original civil action was brought by the Respondent seeking declaratory relief to establish ownership of certain real estate located in Harrison County, West Virginia. A jury determined that the petitioner had not adversely possessed the real estate and had not obtained an easement by prescription.

5. State of WV v. Ray E. Carey - 081190 - Defendant appeals from his conviction of domestic violence. Defendant seeks a reversal of his conviction or, in the alternative, that his case be remanded to the magistrate court for a new trial where he has the opportunity to present his entire case.

6. City of Dunbar v. Roger Wolfe, Mayor, et al. - 081189 - The City of Dunbar, by its city council, filed a petition for declaratory judgment arguing that Dunbar Mayor Roger Wolfe and Clerk Ron Rowley acted ultra vires and violated the city charter, city personnel policy, and state law by converting, without council approval, city department heads from salaried to hourly employees with overtime benefits. The circuit court entered an "Order Granting Plaintiff's Motion for Judgment on the Pleadings," from which the defendants mayor and department heads now appeal.

7. SER Darrell v. McGraw, Jr. v. Able Debt Settlement, Inc. - 080715 - Petitioner appeals from the circuit court's order granting injunctive relief to respondent in this action arising out of an investigative subpoena directed to petitioner. Petitioner asserts that the circuit court made various procedural, jurisdictional, and constitutional errors below. Petitioner seeks a reversal of the circuit court's orders and such additional relief as this Court deems proper.

8. Oscar Dennis Dempsey and Thelma Louise Dempsey v. State Electric Supply Co., et al. - 081352 - The Petitioners, Oscar and Thelma Dempsey, appeal decisions and orders entered by the Circuit Court of Cabell County on January 30, 2008, granting partial summary judgment in favor of the Respondents, State Electric Supply Company and Arthur's Enterprises, Inc., as well as granting Respondents' Motion in Limine in its entirety. Petitioners alleged eleven counts in their Complaint: 1) age discrimination; 2) disability discrimination; 3) workers' compensation retaliatory discharge; 4) violation of the West Virginia Human Rights Act, specifically, West Virginia Code §5-11-9; 5) outrageous conduct; 6) retaliatory discharge; 7) breach of employment contract; 8) retaliatory discharge regarding employee benefits; 9) loss of consortium; 10) intentional infliction of emotional distress; and 11) punitive damages. On appeal, Petitioners seek reversal of both rulings by the lower court.

9. Princeton Insurance Agency, et al. v. Erie Insurance Company, et al. - 081181 - Defendants appeal from an adverse jury verdict in this action alleging violations of the West Virginia Anti-Trust Act and the West Virginia Unfair Trade Practices Act, and West Virginia's incorporation of the consumer protection portions of the Graham, Leach, Bliley Act. While the jury found in favor of the defendant insurance group as to the consumer protection claims, it also found that the defendant insurance group had committed an unlawful restraint of trade and was liable under the Anti-Trust Act and the Unfair Trade Practices Act. Defendants raise errors related to jurisdiction, damages, evidence, and various rulings of the circuit court. Defendants seek a reversal of the circuit court's decision to allow the anti-trust claims to proceed to trial, as well as a new trial.

10. James Turner v. Martha Walker, Secretary, WV Dept. of Health and Human Resources, et al. - 081362 - The Department of Health and Human Services appeals from the circuit court's order reversing the Board of Review's decision that affirmed a determination by the Bureau for Medical Services that respondent had failed to meet the written, defined eligibility requirements of the Medicaid Mentally Retarded/Developmentally Disabled Waiver Program. DHHR seeks a reinstatement of the Board of Review's decision.

11. Kathryn J. DeCerbo v. West Virginia University Hospitals, Inc. - 081180 - Plaintiff appeals from an adverse jury verdict in this action following her termination from employment. Plaintiff alleges errors in relation to the jury and the evidence below.