WEST VIRGINIA RECORD

Argument Docket
Tuesday, March 10
At the West Virginia University College of Law

1. Sue J. Erps and William G. Erps v. WV Human Rights Commission, et al. - 34262 - 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.

2. Russell Stuyvesant, Administrator v. The Preston County Commission - 34137 - Russell Stuyvesant, as Administrator of the Estate of Timothy Daft, appeals the circuit court's order dismissing his wrongful death and negligence action based upon the statute of limitations. He asserts application of the discovery rule.

3. State of West Virginia v. Michael S. Hutzler - 34158 - Defendant appeals following his guilty plea to felony destruction of property having preserved the right to appeal two issues related to the circuit court's denial of his motion to dismiss. Defendant raises issues related to venue, jurisdiction, and the destruction of evidence. Defendant seeks a reversal of the circuit court's decision and a dismissal of the indictment.

4. Dan's Carworld, LLC v. David Serian - 34146 - Defendant/Counter-Claim Plaintiff David Serian appeals the circuit court's order granting summary judgment in favor of plaintiff/counterclaim defendant Dan's Carworld, LLC d/b/a Dan Cava's Toyota World. Mr. Serian asserts inter alia that the court incorrectly ruled that the W. Va. Consumer Credit and Protection Act does not apply to this case involving an auto loan pay-off figure used in documents for the purchase of a new vehicle.

Argument Docket
Wednesday, March 11

1. Josephine Morgan v. Ford Motor Co. and Francis Robert Morgan - 34139 - This appeal relates to the cross-claim brought by defendant Frances Robert Morgan against defendant Ford Motor Company in this personal injury action arising out of a rollover accident. Cross-claimant Frances Morgan appeals the circuit court's order partially granting Ford Motor Company's motion for judgment as to defendant Morgan's glass and glazing claims having concluded that such claims are preempted by federal law. Justice Davis disqualified. Judge Swope sitting by temporary assignment.

2. Timberline Four Seasons Resort Management Co. v. Pat J. Herlan and Timberline Realty - 34151 - Petitioners Timberline Four Seasons Resort Management Co., Inc. and Long Run Realty, Inc. appeal the circuit court's order denying their Petition for Injunctive Relief. At issue is whether Respondent Pat J. Herlan, a real estate broker who ran a realty office that managed vacation rental properties, was an agent of the resort.

3. SER Nationwide Mutual Ins. Co. v. Hon. John Lewis Marks, Jr., Judge - 34615 - Petitioner seeks a writ of prohibition to prohibit enforcement of the circuit court's order compelling Petitioner to produce discovery of the production of confidential settlement agreements entered into by Nationwide and claimants other than the plaintiffs in this case. Petitioner argues Respondent exceeded his judicial authority in ordering production of confidential settlement agreements contrary to State public policy and legislative intent, and Respondent exceeded his judicial authority by ordering production of confidential settlement agreements in separate, unrelated claims invading the rights of third parties without notice to the third parties.

4. SER Kathryn Kutil and Cheryl Hess v. Hon. Paul M. Blake, Jr., Judge, et al. - 34618 - Petitioners seek issuance of a writ of prohibition challenging the circuit court's order of November 12, 2008. Petitioners assert the circuit court acted outside its discretionary authority by ordering WVDH&HR to remove an infant from a foster home to a "traditionally defined home with both a mother and father". Petitioners contend the circuit court removed the infant from their home based on the sexual orientation. Removal of the child would inflict severe emotional trauma to the child.

5. Sharron K. Chenault v. Thomas D. Chenault - 34160 - Petitioner husband appeals from the circuit court's order affirming the family court's second amended qualified domestic relations order. Petitioner asserts error and challenges whether a former spouse is entitled to any portion of the ex-spouse's retirement earned post-separation and whether an ex-husband's former employer can interpret a Q.D.R.O. and independently determine what monies it will pay to a former spouse even though that interpretation is contrary to law on its face.

6. SER Board of Education of the County of Putnam v. Hon. J.D. Beane, Judge - 34617 - Petitioner seeks a writ of prohibition against the circuit court arguing the circuit court exceeded its authority in its order of November 7, 2008, ordering the Petitioner to provide and pay for a full-time nurse for Clay E. M., a student who is eligible to receive special education through Disabilities Education Act.

7. State of West Virginia v. Danny Minigh - 34266 - 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. SER Philip Michael Collins v. Hon. Robert A. Waters, Judge - 34616 - Petitioner seeks a writ of mandamus to compel the circuit court to enter an order with Findings and Conclusions of Law on a evidentiary hearing held on 7/16/01. Pursuant to WV Code § 53-4A-7(c), Petitioner argues the court has statutory obligation to enter Findings and Conclusions of Law, but states seven years is sufficient time. To be presented on briefs only without oral argument.

Argument Docket
Tuesday, March 24
LAWS Program - Lewisburg

1. Jennifer Boniey v. Brian Kuchinski and State Farm Mutual Automobile Ins. Co. - 34152 - This claim for uninsured motorist benefits arise from an all-terrain vehicle accident. The ATV was uninsured and the Respondent sought UM coverage from two auto policies by State Farm Mutual Automobile Insurance Company. The policies contained exclusions for ATVs from the definition of uninsured motor vehicle when the ATV is operated off-road. The Circuit Court of Brooke County found the policy language to be clear and unambiguous but found the exclusion violated the spirit of West Virginia Code §33-6-31. On appeal, State Farm contends that the UM statute is inapplicable to the facts of the present case.

2. State of West Virginia v. Gary Wayne Kent - 34153 - Gary Wayne Kent appeals his 2007 conviction for felony murder with a recommendation of mercy. He asserts double jeopardy, that the prosecutor repeatedly asked improper comparative questions, erroneous admission of prior testimony given by a now unavailable witness, and that scientific opinions about marks on shell casings and gunshot residue should have been excluded under Daubert and its progeny.

3. Ryan Strick v. Commissioner, West Virginia Division of Motor Vehicles - 34135 - The petitioner, Ryan Strick, appeals from a Kanawha County Circuit Court Order upholding the administrative order by the Division of Motor Vehicles suspending Petitioner's privileges to operate a motor vehicle in this state for one year for first offense Driving Under the Influence. On appeal, the petitioner requests that he is issued a full and valid license and that the Order of Revocation be reversed.

4. State of West Virginia v. Paul Newcomb - 34142 - Paul Newcomb appeals his conviction for first degree murder without a recommendation of mercy. He asserts error in the trial court's failure to strike certain jurors for cause, that his statements and the weapon should have been excluded from trial because of Miranda violations, that his statement should have been excluded because of a prompt presentment violation, and error in the admission of 404 (b) evidence regarding an earlier altercation.

Argument Docket
Wednesday, March 25

1. Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 34333 - 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. - This case will be heard at 2 p.m. Chief Justice Benjamin and Senior Status Justice McHugh disqualified. Judges Swope and Moats sitting by temporary assignment.

Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 34334 - 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, trespass, 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.

Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 34335 - This case involves the former E. I. du Pont operations of a zinc smelting facility in Spelter, WV. E. I. du Pont seeks reversal 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.

2. Catherine I. Smith and John Smith v. Derek Andreini, M.D. and Orthopaedic Surgery, Inc. - 34271 - Continued to April 7.

3. State of West Virginia v. Sheila G. Adkins - 34275 - Sheila G. Adkins appeals her convictions for two counts of Distribution of a Controlled Substance and the circuit court's denial of her motion for new trial. She asserts that pre-trial, in violation of Brady and State v. Youngblood, the State failed to disclose material evidence that would have impeached the State's key witness. - To be presented on briefs only without oral argument.

4. C & O Motors, Inc. v. West Virginia Paving, Inc. - 34330 - 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.

5. State of West Virginia v. Tanya Harden - 34268 - 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.

6. SER James L. Knotts v. Hon. Richard Facemire, Judge - 34647 - Petitioner seeks a writ of prohibition to prevent the Respondent from conducting a criminal trial set for January 6, 2009. The indictment contains 129 counts of either sexual assault in the first degree, incest, sexual abuse by a custodian, or sexual assault in the third degree. Petitioner argues the thirteen to seventeen years between the alleged crimes and the indictment places the Petitioner deprives him any opportunity to impose the defense of alibi and violates Right to Due Process. - Justice Workman disqualified. Judge Sadler sitting by temporary assignment.

7. SER Alex Farmer v. Thomas McBride, Warden - 34157 - Alex Farmer appeals the circuit court's denial of his omnibus petition for post-conviction habeas corpus. He was previously convicted of First Degree Murder with a recommendation of mercy, two counts of First Degree Sexual Assault, and Burglary. He asserts several constitutional arguments based upon Zain 1 and Zain 3, the admission of certain evidence and statements, the court's denial of his motion for judgment of acquittal and motion to strike a juror for cause, alleged juror misconduct, and alleged sentencing error.

8. 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.