*** State Supreme Court calendar for 8/24 issue

By The West Virginia Record | Aug 20, 2009

Argument Docket
Wednesday, Sept. 2

1. SER John Carr v. Honorable Andrew Frye, Judge - 34810 - Petitioner seeks a writ of prohibition to challenge an order of the circuit court which sanctioned petitioner for postponing the January 6, 2009, deposition of Nancy Oldacker. - Dismissed.

2. Stone Brook Limited Partnership v. Phyllis Sisinni, Assessor, et al. - 34423 - Petitioner taxpayer appeals from the circuit court's order affirming the decision of the Brooke County Commission sitting as a Board of Equalization and Review, which denied petitioner's request for a reduction of an appraisal for ad valorem tax purposes. Petitioner challenges the use of the cost approach and whether market or restricted rents should be utilized in the valuation process.

Heathermoor Limited Partnership v. Joseph Alongi, Assessor, et al. - 34424 - Petitioner appeals from the circuit court's decision affirming the decision of the Hancock County Commission sitting as a board of equalization and review, which denied Heather Moor's request for a reduction in its property appraisal for ad valorem tax purposes. Petitioner raises issues related to the evaluation process utilized below.

Pine Haven Limited Partnership v. Ottie Adkins, Assessor - 34863 - The Cabell County Assessor and County Commission appeal the circuit court's order which reversed the decision of the Commission sitting as a Board of Equalization and Review. Inter alia, the court ruled that, for ad valorem tax purposes, the income method using restricted rents was the correct methodology for valuing rental apartments built pursuant to the Low Income Housing Tax Credit program.

3. Langley France v. Southern Equipment Company v. Dan Hensley - 34494 - 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.

4. Barbara Warner and Roy Warner v. Leroy Wingfield, et al. - 34495 - 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.

5. State of West Virginia v. Richard Malfregeot - 34496 - 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.

6. Mylan Laboratories, Inc., et al. v. American Motorists Insurance Co., et al. - 34402 - In this declaratory judgment action, Mylan Laboratories, Inc. and others appeal the circuit court's order granting summary judgment in favor of four insurance companies. The circuit court determined that policies issued by the insurance companies did not impose a duty to defend the Mylan companies in two sets of cases - the "Average Wholesale Price" actions and the "Lorazepam and Clorazepate" actions - and since there was no duty to defend, there could be no duty to indemnify. THIS CASE WILL BE CALLED AT 2 P.M. Justice McHugh disqualified. Judge Beane sitting by temporary assignment.

Argument Docket
Tuesday, Sept. 8

1. Jefferson County Citizens for Economic Preservation v. Jefferson Cty. Comm., et al. - 34583 - The Jefferson County Commission appeals from the circuit court's order granting partial summary judgment in favor of the Jefferson County Citizens for Economic Preservation by invalidating the April 8, 2005, amendments to the zoning ordinance in this declaratory judgment action. The County Commission challenges the circuit court's finding that the Commission followed the wrong statute in the Ordinance amendment process.

2. Mountain America, LLC, et al. v. Donna Huffman, Assessor of Monroe County - 34426 - Owners of property in the Walnut Springs Mountain Reserve subdivision in Monroe County appeal the circuit court's order affirming the board of equalization and review's order affirming the county assessor's 2007 property tax assessments. They argue that their properties have been overvalued for tax purposes, and that the assessments and appeal process are unconstitutional for several reasons.

3. Princeton Insurance Agency, Inc., et al. v. Erie Insurance Company, et al. - 34498 - 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.

4. Betty Lou Zirkle Carpenter v. Shirley Blaniar Luke - 34497 - 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. Jason L. Galloway v. Tiffany D. Galloway - 34588 - Jason L. Galloway appeals the circuit court's order which affirmed the family court's order refusing to disestablish paternity and ordering him to pay child support.

6. State of West Virginia v. Walter Jessie - 34589 - Petitioner was convicted in the Circuit Court of Mingo County of unlawful assault, a lesser included offense of malicious assault. The petitioner seeks to have the judgment set aside by arguing that he was denied his right to a speedy trial in violation of the Constitution of West Virginia and the Constitution of the United States.

7. Charles Crihfield v. Steven Brown and The Home Show LLC - 34593 - Plaintiff appeals from the circuit court's order denying his motion for summary judgment in this action seeking injunctive relief and a declaratory judgment that defendants were not legally authorized to re-institute an arbitration that had previously been commenced by defendants and unilaterally terminated by them. The circuit court ruled in favor of defendants and directed that the re-instituted arbitration proceed.

8. Matthew Wysong by Mary L. Ramsey v. WVDHHR, et al. - 34594 - Petitioner DHHR appeals from the circuit court's order reversing the Board of Review's affirmance of the Bureau of Medical Services's determination that respondent failed to meet the medical eligibility requirements of the Medicaid MR/DD Waiver Program upon his initial application. DHHR seeks a reinstatement of the decision of the State Hearing Officer.

9. Hugh M. Caperton, et al. v. A. T. Massey Coal Co., Inc., et al. - 33350 - Arguments on remand from United States Supreme Court of defendant's appeal from an adverse jury verdict in this action for tortious interference with a business relationship, fraudulent concealment and fraudulent misrepresentation. THIS CASE WILL BE CALLED FOR ARGUMENT AT 2 PM. Chief Justice Benjamin disqualified. Senior Status Judge Holliday sitting by temporary assignment.

Argument Docket
Wednesday, Sept. 9

1. Robert J. Zaleski, M.D. v. West Virginia Mutual Insurance Company - 34620 - Defendant appeals from the circuit court's order (1) denying defendant's motion for reconsideration of its motion to dismiss or, in the alternative, motion for summary judgment; (2) denying defendant's motion for entry of an order granting its motion to dismiss pursuant to Rule 12(b)(6); and, (3) denying defendant's motion for entry of order remanding the non-renewal to defendant for further hearing. Defendant also appeals from the circuit court's sua sponte order amending defendant's non-renewal hearing procedures. Defendant seeks a reversal of the circuit court's rulings and a removal of Judge Recht from this case. Defendant also seeks its costs and expenses, including reasonable attorney's fees, and such other relief deemed appropriate.

2. Wang-Yu Lin v. Shin Yi Lin, Enterprise Rent A Car of Kentucky, et al. - 34596 - Enterprise Rent A Car of Kentucky and Empire Fire and Marine Insurance Company appeal the circuit court's declaratory judgment order finding the that there is insurance coverage. The case pertains to policy language and exclusions in a Supplemental Liability Policy purchased when renting an automobile.

3. Lloyd Michael Noland, R.N. v. Virginia Insurance Reciprocal, et al. - 34702 - In a case seeking a declaratory judgment on insurance coverage issues and asserting first party bad faith claims, plaintiff Lloyd Michael Noland appeals adverse portions of a summary judgment order and orders granting motions to dismiss later added defendants.

4. In Re: Ryan B. - 34598 - Petitioner/Mother appeals the lower court's order terminating Respondent/Father's child support obligations following voluntary relinquishment of his parental rights.

In Re: Caitlyn M., Carson M. and Steven M. - 34704 - Petitioner/Father appeals the Order of the lower court maintaining his child support obligation after he voluntarily relinquished his parental rights.

5. In Re: Brittany B., et al. - 34599 - Petitioner appeals the termination of her parental rights and the denial of post-termination visitation.

6. SER David Rosenberger v. Howard Painter, Warden - 34700 - 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.

7. Carol A. Helfer v. Robert A. Helfer - 34703 - Wife appeals circuit court order denying her appeal of Family Court Order which held that Husband's chiropractic business had a goodwill value of zero.

8. Leslie Equipment Co. v. Wood Resources Company, Christopher Todd Zach, et al. - 34712 - Defendants Christopher Todd Zach and Ramona C. Goeke appeal the circuit court's order denying their Motion to Set Aside Default Judgment and Dismiss for Lack of Jurisdiction. They argue, inter alia, that constructive service of process was insufficient to establish in personam jurisdiction over them.

9. Howard Wrenn and Sandra Belcher v. WV Dept. of Transportation, et al. - 34717 - The plaintiffs appeal the circuit court's order granting the defendant Division of Highways' motion to dismiss. The court found that exclusionary Endorsement No. 7 to the State's liability insurance policy means that there is no coverage for the plaintiffs' claims, thus the defendant enjoys sovereign immunity and the court lacks subject matter jurisdiction. The plaintiffs argue that the court erred in its reading of the endorsement and erred by not holding that the endorsement is void as against state law and public policy.

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