*** SupCo calendar for 2/23 issue

Motion Docket
Tuesday, Feb. 24

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. 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.

2. State of WV v. Terry Lee Thomas - 082084 - Terry Lee Thomas appeals his conviction for two counts of first degree murder without recommendations of mercy and with findings that he used a firearm, one count of malicious assault, and one count of attempted first degree murder. He was convicted in 1998, but was re-sentenced for purposes of appeal. He alleges ineffective assistance of counsel; that the State failed to provide him a complete copy of his transcripts so that he could perfect his appeal; that the court erred when denying his motions for change of venue, for a jury view, and to dismiss the case because of unavailable evidence; that the court committed multiple evidentiary errors when admitting certain photographs and testimony; that the prosecutor suppressed helpful evidence, used perjured testimony, and made prejudicial statements; and insufficiency of the evidence.

3. State of West Virginia v. Raymond Eugene Hoak - 082061 - Raymond Eugene Hoak appeals his conviction for voluntary manslaughter with the use of a firearm. He asserts multiple trial errors, including juror misconduct, erroneous admission of 404(b) evidence, violation of his right of confrontation, and instructional error. Defendant also asserts the court erroneously refused to answer a question from the jury, insufficiency of the evidence to support the conviction, and the court erroneously struck a juror. He also asserts that the court erred when denying his request for credit for time served on pre-trial home confinement.

4. Mary Lou Smith and Greg Smith v. Andrew N. Frye, Jr. - 082065 - Mary Lou Smith and her son Greg Smith appeal the circuit court's order dismissing their case with prejudice. They assert that the chief judge of the circuit court terminated Ms. Smith's employment as magistrate court clerk for political reasons when Mr. Smith filed to be a candidate for the office of circuit clerk, which they assert violated their rights under the state constitution and public policy.

5. Donna Sue Skidmore v. Walter Burke Skidmore - 082214 - Petitioner Christopher Carlyle seeks a reversal of the circuit court's order granting defendants' partial summary judgment by ruling that there could be no claim for loss of consortium for Samantha Carlyle. This action arises out of an altercation involving plaintiff and defendants at a time when all were employed by the West Virginia University Board of Governors. At the time of the altercation, plaintiff and Samantha Carlyle were not married, but were married approximately one month later.

Argument Docket
Tuesday, Feb. 24

1. Darrell V. McGraw, Jr., Attorney General, et al. v. The American Tobacco Co., et al. - 33873 - The State by its Attorney General filed a Motion for Declaratory Judgment asking the circuit court to declare that it had diligently enforced a statute as required by the tobacco Master Settlement Agreement. Whether this statute was diligently enforced impacts the amount of the annual settlement payment the State receives. The circuit court determined that the Agreement requires this issue to be arbitrated, and therefore entered an "Order Granting Defendant Original Participating Manufacturers' Motion to Compel Arbitration and Stay this Litigation." The State appeals. - Justices Davis and McHugh disqualified. Judges Gaughan and Blake sitting by temporary assignment.

2. Dana December Smith v. Thomas McBride, Warden - 34155 - Petitioner appeals from the circuit court's order denying his petition for a writ of habeas corpus. Petitioner asserts that he is entitled to a new trial based upon newly discovered evidence.

3. Carl Wayne Vaughan, Admn'r. v. Greater Huntington Park and Recreation Dist., et al. - 33837 - Defendants appeal from the circuit court's amended order granting plaintiff's motion in limine to the effect that the Barge Line defendants' economic experts would not be allowed to use the personal consumption offset in his calculation of plaintiff's lost future earnings. Defendants seek a reversal of this order on the basis that West Virginia law conflicts with maritime law and that maritime law should control the measure of damages in this wrongful death case.

Carl Wayne Vaughan, Admn'r. v. Greater Huntington Park and Recreation Dist., et al. - 34327 - 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. George M. Peters v. Rivers Edge Mining, Inc. - 34272 - Defendant appeals following an adverse jury verdict in this action brought under the anti-discrimination provisions of the West Virginia Workers Compensation Act. Plaintiff received a total verdict in excess of $1.8 million, exclusive of pre-judgment interest. Defendant raises issues related to federal preemption and collateral estoppel following arbitration, and challenges the front pay and punitive damage awards.

5. Sharon G. Noble v. Dept. of Transportation, Div. of Motor Vehicles, et al. - 34328 - 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.

6. SER WV Dept. of Health and Human Resources v. Hon. David M. Pancake, Judge - 34602

7. Terry Hill v. Gregory Brent Stowers - 34143 - 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. Senior Status Justice McHugh disqualified. Judge Moats sitting by temporary assignment. This case will be called for argument at 2:00 pm.

8. The Book Exchange, Inc. v. West Virginia University, et al. - 34162 - The Book Exchange, Inc. appeals from the Monongalia County Circuit Court's Order dismissing the plaintiff's Complaint per Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. The petitioner initially brought a civil suit alleging tortious interference with business relations, various statutory violations, and civil conspiracy.

Motion Docket
Wednesday, Feb. 25

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. Brandon Blackmon v. Thomas McBride, Warden - 082294 - Petitioner, Brandon Blackmon, appeals from an Order entered by the Logan County Circuit Court which denied petitioner's Habeas Corpus relief. Petitioner seeks a reversal of the lower court's Order and a remand for a new trial.

Argument Docket
Wednesday, Feb. 25

1. In Re: Tax Assessment Against Purple Turtle v. Preston Gooden, Assessor - 34276 - The Assessor of Berkeley County appeals the circuit court's order granting summary judgment to several taxpayers. The court found that the Berkeley County Commission sitting as the Board of Equalization and Review had erroneously upheld the assessor's value for lots in the Broomgrass subdivision.

2. Michael O'Dell Dennis v. State of WV, Div. of Corrections, Teresa Waid, Warden - 34273 - Petitioner appeals from the circuit court's order summarily denying his habeas corpus petition. Petitioner states that the circuit court's order lacks the supporting findings necessary to have dismissed his petition. Petitioner asks this Court to grant his petition and remand the matter to the circuit court with instructions to grant the writ that he seeks.

3. CBC Holdings, LLC v. Dynatec Corporation, USA, et al. - 34267 - 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.

4. Ann Morgan and Gerald Lee Zimmerer v. Mark E. Romano, et al. - 34269 - 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.

5. Jamey Little v. West Virginia Adjutant General - 34270 - In this case, Plaintiff was a firefighter employed by the Adjutant General and was a member of the National Guard when he was first hired. The National Guard later discharged Plaintiff based upon a mental disability. The Adjutant General then discharged Plaintiff as a firefighter, based upon W. Va. Code §15-1B-26, because he was no longer a member of the National Guard. Under these facts, is the Adjutant General's reliance on W.Va. Code §15-1B-26 a complete defense to Plaintiff's claim that he was discriminated against by the Adjutant General in violation of the West Virginia Human Rights Act, unless the Plaintiff falls within the exception to the requirement of military membership in the "grandfather clause" contained in the Statute?

6. Chad R. Clower v. WV Dept. of Motor Vehicles, Joseph Cicchirillo, Comm'r. - 34329 - 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. - Continued to March 25.

7. Jacob Frederick Jochum, et al. v. Waste Management of West Virginia, Inc., et al. - 34264 - 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. THIS CASE WILL BE CALLED AT 2 P.M. Chief Justice Benjamin disqualified. Judge Bloom sitting by temporary assignment.

8. Jennifer L. Caruso v. Brian N. Pearce and P & T Trucking, Inc., et al. - 34144 - Plaintiff appeals from the circuit court's order dismissing this civil action under Rule 41(b). Plaintiff contends that good cause was shown for the dormancy and delay; that there was no prejudice to defendant; and, that the dismissal order was entered even though the circuit court had never entered a Rule 16(b) scheduling order. - THIS CASE WILL BE CALLED IMMEDIATELY FOLLOWING JOCHUM V. WASTE MANAGEMENT, NO. 34264. Chief Justice Benjamin disqualified. Judge Hatcher sitting by temporary assignment.