*** SupCo calendar for 4/12 issue

By The West Virginia Record | Apr 8, 2010

Argument Docket
Tuesday, April 13

1. First American Title Ins. Co. v. Thomas Firriolo, Evan LeFever, et al. - 34705 - Defendants appeal from the circuit court's order ruling that there is no easement across a tract of land. The title to this tract of land is insured by plaintiff Title Insurance Company. Defendants seek a reversal of the circuit court's order entered in this declaratory judgment action.

Thomas Firriolo v. Evan LeFever and Beth LeFever - 34714 - Defendants LeFever appeal from the circuit court's order reforming a settlement agreement entered into four years earlier and by ordering relief that is grossly unfair to the LeFevers. This action began as a breach of contract case with plaintiff Firriolo suing defendants to enforce an alleged oral contract to move an easement from location to another. Defendants LeFever seek a reversal.

2. Christian and Elizabeth Harper v. Jackson Hewitt, Inc. - 35295 - The United States District Court for the Southern District of West Virginia, Huntington Division, presents the following questions for certification to this Court:

1. "Does a tax preparer who receives compensation, either directly from the borrower or in the form of payments from the lending bank, for helping a borrower obtain a refund anticipation loan meet the statutory definition of a credit services organization, or "CSO," (W.Va. Code § 46A-6C-2(a)), and do the borrowers in such a transaction meet the definition of a buyer (id. § 46A-6C-1(1))?

2. Is the appropriate limitations period for actions alleging violations of the CSO statutes (id. § 46A-6C-1 et seq.) and the statutory prohibition on unfair or deceptive acts or practices (id. § 46A-6-104) four years under West Virginia Code § 46A-5-101(1), or one year under the general limitation period in West Virginia Code § 55-2-12?

3. Are the contractual agency disclaimers in the refund anticipation loan applications enforceable under West Virginia law?

4. Is a tax preparer who helps a customer obtain a refund anticipation loan in exchange for compensation an agent under West Virginia law?"

3. David Kokochak v. WV State Lottery Commission - 35299 - The State Lottery Commission appeals from the circuit court's order finding Rule 179-7-2.2c of the West Virginia Code of State Rules invalid and granting respondent's motion for summary judgment. The State Lottery Commission seeks a reversal of the circuit court's order.

Parkersburg BPO Elks Lodge #198 v. WV State Lottery Commission - 35300 - Petitioner appeals from the circuit court's order affirming the State Lottery Commission's decision to deny petitioner a limited video lottery license. Petitioner seeks a reversal of the circuit court's decision with directions that the Lottery Commission issue the appropriate license to petitioner.

4. State of WV v. DeAaron Fields - 34746 - Defendant appeals from his first degree murder conviction with mercy. He challenges the circuit court's disqualification of his trial counsel for insufficient cause.

5. Barry Swears v. R.M. Roach & Sons, Inc. - 35309 - Petitioner appeals the lower court's order granting summary judgment in favor of the defendant in Petitioner's claim for retaliatory discharge.

6. State of WV v. David M. Martin - 35225 - David M. Martin appeals his conviction upon guilty plea to one count of Breaking and Entering. Arguing that there are questions about his competency and the State violated his plea agreement, petitioner asks this Court to set aside his guilty plea and remand for further proceedings.

7. State of WV v. Roshawn Panell - 35226 - Roshawn Pannell appeals his conviction for three counts of First Degree Robbery and one count of Fleeing from Police. He asserts, inter alia, insufficient evidence to support the conviction and that the trial court coerced a guilty verdict by imposing time constraints on the jury.

State of WV v. Jamie Turner - 35292 - Petitioner Jamie Turner appeals from his conviction of three Counts of First Degree Robbery and one Count of Fleeing at a jury trial. Petitioner was ultimately given concurrent sentences of sixty years in prison on each of the robbery convictions and a consecutive sentence of six months confinement for the fleeing.

Argument Docket
Wednesday, April 14

1. Jennifer Baker, et al. V. Morgan County War Memorial Hospital, et al. - 35298 - Defendants appeal from the circuit court's order granting partial summary judgment in favor of plaintiffs on their claim for termination of a defined benefit pension plan. The circuit court ordered the distribution of the residual assets of the pension plan to the plaintiff participants after all liabilities of the plan have been satisfied. The circuit court directed entry of the Final Order as to the plan termination to allow its order to be appealed to this Court seeing no just reason for delay on the issue of plan termination. Defendants request that this Court accept their petition for appeal pursuant to Rule 54(b) of the West Virginia Rules of Civil Procedure as this is an appeal from a liability judgment and the distribution of the surplus is mostly a ministerial act within the meaning of C&O Motors, Inc. v. West Virginia Paving, Inc., 223 W.Va. 469, 677 S.E.2d 905 (2009).

2. State of WV v. Mara Spade - 35275 - Mara Spade appeals the circuit court's order which dismissed her appeal and affirmed her magistrate court conviction of one count Cruelty to Animals. Petitioner argues, inter alia, that she was denied due process and the prosecutor breached the plea agreement by not providing her a post-conviction restitution hearing.

3. In Re: Nelson B. - 35307 - Father appeals circuit court order which permanently transferred custody of his son to his maternal aunt and uncle. - To be presented on briefs only without oral argument.

4. Ford Motor Credit Company v. WVHRC and Nabil Akl - 35301 - Ford Motor Credit Company appeals the order of the W.Va. Human Rights Commission adopting its ALJ's findings and conclusions that Nabil Akl had been subjected to ethnic discrimination and constructive discharge.

5. PAR Electrical Contractors, Inc. v. Richard Bevell and the WVHRC - 35302 - PAR Electrical Contractors, Inc. appeals the circuit court's order affirming the decision of the W.Va. Human Rights Commission. The Commission adopted its ALJ's findings and conclusions that Richard Wayne Bevelle had been subjected to racial discrimination and constructive discharge.

6. State of WV v. Christopher Shane Dellinger - 35273 - Defendant appeals his conviction on three counts of falsifying accounts and one count of obtaining money, goods, services or property by a common plan or scheme. Defendant raises issues related to juror misconduct and bias, insufficiency of the evidence, and ineffective assistance of counsel.

7. Valley Water & Sewer Services, Inc. v. PSC and Deerwood Homeowners Assoc. - 33899 - Dismissed.

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