Supreme Court calendar for 9/1 issue

By The West Virginia Record | Aug 28, 2008

Motion Docket
Sept. 3

1. State of WV v. Robert Holcomb - 080392 - Robert L. Holcomb appeals his conviction for Gross Child Neglect and the imposition of a life sentence pursuant to the recidivist statute. He asserts that the recidivist information was untimely, his life sentence is cruel and unusual, and the court erred by not suppressing evidence obtained during a pre-textual traffic stop.

2. Victor T. Peoples v. WVHRC/Sue J. Erps and William G. Erps, et al. - 080498 - 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.

3. State of WV v. Robert S. Hart, Jr. - 080335 - Defendant appeals from the circuit court's order imposing consecutive sentencing and asserts that it violates the proportionality rule because his sentencing was different from that of his co-defendants who received concurrent sentences.

4. Deborah K. Wright v. Mark A. White - 080490 - Mark A. White appeals the circuit court's order which affirmed the family court's final divorce order. Mr. White asserts eleven assignments of error, including that without following the proper procedures and without notice to him, the family court erroneously converted a temporary hearing into the final divorce hearing and then entered the final divorce order the same day. He also asserts error with respect to rulings on rehabilitative alimony, equitable distribution, and attorney's fees/costs.

5. John Frederick Jochum, et al. v. Waste Management of WV, et al. - 080362 - 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. - Justice Benjamin disqualified.

6. Wells Fargo Bank N.A. v. UP Ventures II LLC, et al. - 080485 - Wells Fargo Bank appeals the circuit court's adverse summary judgment order. The court concluded that the bank's petition to set aside a tax sale deed was filed beyond the statute of limitations of W.Va. Code § 11A-4-4(a). Wells Fargo asserts a lack of notice of the right to redeem, making constitutional and statutory arguments.

7. State of WV v. Danny Minigh - 080333 - 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. State of WV v. Willie Ray Trembley, Jr. - 080365 - Willie Ray Trembly, Jr. appeals his sentence for his conviction upon guilty plea to 1 count of Breaking and Entering, 3 counts of Second Degree Arson, and 2 counts of Causing Injury During an Arson-Related Crime. He argues inter alia that his consecutive sentences totaling 51 to 60 years in prison are excessive.

9. CBC Holdings, et al. v. Dynatec Corporation, et al. - 080356 - 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.

10. State of WV v. Tanya D. Harden - 080766 - 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.

11. Ann Morgan Zimmerer and Gerald Lee Zimmerer v. Mark E. Romano, et al. - 080753 - 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.

12. State of WV v. Paul Lamar Cochran - 080850 - Petitioner, Paul L. Cochran, appeals from a conditional plea of guilty to the charge of incest in violation of West Virginia Code §61-8-12, pursuant to Kennedy v. Frazier. Petitioner asserts that he entered into the plea agreement with the condition that the incest plea would be an appealable issue due to the definition section of the code remaining silent as to whether a "step" grandfather was inclusive in the definition of grandfather.

Argument Docket
Sept. 3

1. Bayer MaterialScience, LLC v. State Tax Comm'r., et al. - 33378 - Bayer appeals from the circuit court's order affirming the decision of the Kanawha County Commission sitting as the Board of Equalization and Review. The Board denied Bayer's challenges to the revised value of its industrial property as established by the State Tax Commissioner.

Bayer CropScience USA, LP v. State Tax Comm'r., et al. - 33880

Bayer MaterialScience, LLC, et al. v. State Tax Comm'r., et al. - 33881

2. In Re: Tax Assessment of Foster Foundation's Woodlands Retirement Comm. - 33891

3. Robert Macek, et al. v. Carl R. Jones, D.O., et al. - 33525 - Petitioners appeal from the Brooke County Circuit Court's Order denying Post-Trial Relief. Petitioners had argued that it was error for the Court not to strike two jurors. After a six day trial, a jury returned a unanimous verdict in favor of the respondents.

4. State of WV v. Robert Lee Shingleton - 33650 - Robert Lee Shingleton appeals his conviction for one count of Malicious Assault, a felony.- To be presented on briefs only without oral argument.

5. In Re: Samantha S. and Hope S. - 33713 - Paternal grandparents appeal circuit court order allowing Maternal grandparents to have unsupervised overnight visits with children.

6. Steven T. Lowe v. Joseph Cicchirillo, Comm'r. WV Div. of Motor Vehicles - 33731 - The Commissioner of the Department of Motor Vehicles appeals an Order of the Harrison County Circuit Court reversing a driver's license revocation decision issued by the Commissioner. On appeal, the Commissioner seeks a reversal of the Court's Order and reinstatement of the license revocation.

7. Jason Eastham v. City of Huntington and David Felinton, Mayor - 33807 - The City of Huntington appeals the circuit court's declaratory judgment order which held that municipal ordinance and city charter provisions which require city employees to reside within the city are repealed and rendered void and unenforceable as they would apply to all civil service employees and civil service appointees.

8. Evelyn "Peach" Murphy, Admx. v. Eastern American Energy Corp., et al. - 33811 - Plaintiff appeals from the circuit court's order awarding summary judgment in favor of defendant in this deliberate intent action. The circuit court ruled that the decedent had no dependents under W.Va. Code §23-4-2(c) and that pursuant to Saville v. Speedway Super America, LLC, No. 33053 (Nov. 15, 2006) (2006 WL 3358431), defendant was entitled to summary judgment.

9. SER AJR, Inc. v. Hon. Robert A. Waters, Judge - 33874 - Petitioner seeks a writ of mandamus to compel the circuit court to enter an order which has been pending for two years. Petitioner states the circuit court indicated that it intends to proceed with post-judgment hearing and award damages to Plaintiff below, and thereby failing to recognize the jury verdict in favor of AJR. - Dismissed.

10. SER Jane L. Cline, Insurance Comm'r. v. Hon. Andrew N. Frye, Jr., Judge - 33875 - Petitioner seeks a writ of prohibition to prohibit the enforcement of an order entered on December 3, 2007, which orders the Petitioner to produce the disclosure of a privileged and confidential investigative file pertaining to William Blankenbeckler which is in violation of statute.

11. SER William H. Cecil, III v. Hon. Joseph Pomponio, Jr., Judge - 33866 - Pro se Petitoner seeks a writ of mandamus to compel the circuit court to rule on Writ of Habeas Corpus filed in June of July of 2007. - To be presented on briefs only without oral argument.

12. SER Bobby Ross, II v. Hon. Robert G. Chafin, Special Judge - 33867 - Petitioner seeks habeas relief and default judgment under 42 U.S.C. § 1083. He also seeks the issuance of a writ of mandamus compelling the court to take action in his pending habeas corpus petition below. - To be presented on briefs only without oral argument.

13. SER Mark A. Washington v. Hon. David M. Pancake, Judge - 33893 - Petitioner, pro se, an inmate at Huttonsville Correctional Center seeks a writ of mandamus to compel the Circuit Court of Cabell County to rule on his Post-Conviction Habeas Corpus filed in September, 2005. - To be presented on briefs only without oral argument.

14. SER James L. Crabtree v. Hon. Alfred Ferguson, Judge - 33894 - Dismissed.

15. SER Darnell A. Allen v. Hon. Andrew N. Frye, Jr., Judge - 33895 - Petitioner, pro se inmate, seeks writ of mandamus to compel the circuit court to rule on a habeas corpus petition filed on 11/12/07, regarding the Zain cases. - Dismissed.

Rehearing Conference
Sept. 4

1. Steven W. Chip Dantzic, et. al. v. Timothy Dantzic, No. 33523. (W.Va. Jun. 17, 2008) (Per Curiam). (Starcher, J. and Albright, J. dissent).

2. John S. Guido v. Kendra M. Guido (Now Gray), No. 33599. (W. Va. Jun 17, 2008) (Per Curiam) (Starcher, J. and Albright, J. concur in part and dissent in part). .

3. State ex rel. The Tucker County Solid Waste Authority v. West Virginia Division of Labor and West Virginia State Building and Construction Trades Council, AFL-CIO, No. 33809. (W.Va. Jun. 26, 2008) (Davis, J.) (Starcher, J. and Albright, J. dissent).

4. State ex rel. The Tucker County Solid Waste Authority v. West Virginia Division of Labor and West Virginia State Building and Construction Trades Council, AFL-CIO, No. 33809. (W.Va. Jun. 26, 2008) (Davis, J.) (Starcher, J. and Albright, J. dissent).

5. Sergeant Glen Messer of the Sheriff's Department of Mingo County, West Virginia v. Sheriff Lonnie Hannah, Sheriff of Mingo County, West Virginia, No. 33655. (W.Va. Jun. 26, 2008) (Benjamin, J.) (Davis, J. concurs) (Albright, J. and Starcher, J. dissent).

6. In Re: Flood Litigation - Coal River Watershed, No. 33664, In Re: Flood Litigation - Upper Guyandotte River Watershed, Subwatershed 2a, No. 33710 and In Re: Flood Litigation - Upper Guyandotte River Subwatershed 2a, No. 33711. (W.Va. Jun. 26, 2008) (Per Curiam) (Maynard, C.J., Davis, J., and Benjamin, J. disqualified) (Clawges, Pratt, and Spaulding, Judges sitting by temporary assignment).

7. Betty K. Neely, et al. v. Belk Incorporated, et al., No. 33597. (W.Va. Jun. 26, 2008) (Benjamin, J.) (Starcher, J. and Albright, J. dissent).

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