*** SupCo calendar for 9/6 issue

By The West Virginia Record | Sep 2, 2010

Motion Docket
Sept. 7, 2010

1. Christopher S. McQuerry v. Jennifer L. Bailes - 100342 - Jennifer Bailes appeals the circuit court's order affirming the family court's Final Order Establishing Paternity.

2. Marlon Ferguson v. G & S Holdings, L.L.C., et al. Charleston Entertainment, L.L.C., Petitioner - 100518 - Charleston Entertainment, L. L. C. appeals from a August 9, 2006, Kanawha County Circuit Court default judgment in the amount of $1,590,696.20. On December 22, 2009, the lower court denied the petitioner's Motion for Relief from Judgment pursuant to West Virginia Rule of Civil Procedure 55(c) and 60(b)(4).

3. John D. Blair, et al. v. Ralph L. Ballard, et al. -100531 - Plaintiffs appeal from the circuit court's order granting summary judgment to all defendants on all counts of the complaint in this action for breach of an agreement whereby plaintiff Blair acquired a 20% ownership in a coal mining enterprise. The circuit court found that plaintiff had failed to prove, as a matter of law, that a formal contract existed between the parties. Plaintiffs seek a reversal of the circuit court's summary judgment order and a reversal of its order denying plaintiffs' motion to amend the complaint. - Chief Justice Davis disqualified.

4. State of WV v. Amos Gabriel Hicks - 100544 - Amos Gabriel Hicks appeals his conviction for Murder in the First Degree without the possibility of parole, Malicious Assault, and Conspiracy. He asserts multiple instances of 404(b) error and insufficiency of the evidence.

Argument Docket
Sept. 7, 2010

1. Mary J. Wells v. Key Communications, L.L.C., et al. - 35447 - Plaintiff below, Mary J. Wells, appeals the circuit court's order denying her motion for new trial after an adverse jury verdict in her age discrimination lawsuit. She argues that the court erroneously excluded admissible evidence regarding age discrimination against another employee of the defendant. - Justice Workman disqualified. Judge Spaulding sitting by temporary assignment.

2. Jason Foster v. Orchard Development Co. and Peteler, LLC - 35308 - Petitioner/Plaintiff appeals the lower court's Order Denying Plaintiff's Motion for Partial Summary Judgment and Request for Permanent Injunction and Granting Defendant's Motion for Summary Judgment in this dispute over the effect of certain covenants, conditions, and restrictions of a property subdivision.

3. Annie Mack-Evans v. Hilltop Healthcare Center, Inc., et al. - 35338 - Plaintiff appeals from the circuit court's order granting summary judgment in favor of defendant, Oak Hill Hospital Corporation, d/b/a Plateau Medical Center, and dismissing all of plaintiff's claims against defendant hospital, with prejudice, in this professional liability/medical malpractice case concerning the care and treatment of plaintiff's decedent at defendant hospital. Plaintiff asserts that there is a genuine issue of material fact precluding summary judgment and that the statute of limitations was tolled.

4. James E. Beichler v. West Virginia University at Parkersburg - 35435 - Petitioner James E. Beichler filed a West Virginia Wage Payment and Collection Act claim against the Respondent West Virginia University Parkersburg for alleged wages owed. The Kanawha County Circuit Court dismissed the case pursuant to Rule 12(b)(1) and ruled that the matter is barred by Constitutional Immunity.

5. Frederick Management Company, LLC v. City National Bank of West Virginia - 35438 - Plaintiff appeals from a circuit court's order granting defendant's motion for summary judgment, denying plaintiff's motion for entry of order delineating justiciable issues, and denying defendant's motion to dismiss for failure to prosecute under Rule 41. Plaintiff seeks a reversal of the circuit court's rulings.

6. State of West Virginia v. Mark Wilson - 35276 - Petitioner, Mark Wilson, appeals from his conviction for felony Conspiracy following a jury trial in Braxton County, West Virginia. Petitioner now seeks a new trial and/or an order to vacate the commitment order and directions to re-sentence the petitioner pursuant to West Virginia Code §61-11-18.

7. State of West Virginia v. Dean Craig Spears - 35437 - Dean Craig Spears appeals his conviction for "Failure to Provide Notice of Changes in Sex Offender Registration." At a bench trial the court concluded that petitioner had not provided information about a vehicle owned by others that he regularly drove. Petitioner asserts that he was not properly informed of the sex offender registration requirements and was never asked about vehicles to which he had access. - To be presented on briefs only without oral argument.

8. Anissa White v. AAMG Construction Lending Center, et al. - 35286 - Plaintiff appeals from the circuit court's order awarding summary judgment in favor of defendant Bank. Plaintiff alleges the Bank was negligent and/or reckless by failing to properly monitor the building progress of plaintiff's new home; by forwarding notices of draw payments to the wrong address; and by breaching the terms of a construction loan agreement. Plaintiff seeks a reversal of the circuit court's order and a remand for a jury trial.

9. Terry Lee Phillips v. WV Division of Motor Vehicles, Joseph Cicchirillo, Comm'r. - 35436 - Petitioner sought a writ of prohibition from the circuit court seeking to have a hazardous driving designation deleted from his driving record. Petitioner asserts that the Department of Motor Vehicles wrongly classified an out-of-state moving violation as hazardous driving. The circuit court denied the petition for a writ of prohibition.

10. State of West Virginia v. Mark Gilman - 35297 - Defendant was convicted of second degree murder with a recommendation of mercy. He challenges the sufficiency of the evidence, the failure to suppress his statement, issues related to jury selection, and an allegation that the prosecutor made misleading comments. Defendant seeks a reversal of his conviction and such other relief to which he may be entitled under the circumstances.

11. State of West Virginia v. Richard Alan Poore - 35271 - Defendant appeals his first degree murder conviction without mercy. Defendant raises issues related to the jury, prosecutorial misconduct, ineffective assistance of counsel, Rule 404(b) evidence, and a due process violation due to the delay between the commission of the crime and defendant's trial.

Motion Docket
Sept. 8, 2010

1. Jason and Gina Layne v. Meridian Communications and Construction, et al. - 100177 - Plaintiffs appeal from the circuit court's summary judgment order in favor of defendant in this negligence action for the personal injuries. Plaintiffs assert that the circuit court disregarded the evidence, made a clearly erroneous finding of fact, and made an error of law, all of which warrants a reversal. Justice Ketchum disqualified. Judge Gaujot sitting by temporary assignment.

2. Tyrone Keith Persinger v. Kanawha County Board of Education - 100281 - Petitioner appeals from the circuit court's order affirming the decision of the Grievance Board, which upheld petitioner's dismissal from his employment as a school teacher in Kanawha County. Petitioner challenges the due process afforded to him when the administrative law judge writing the decision was not the administrative law judge who presided over the administrative hearing. Petitioner seeks a reversal of the circuit court's order, a vacation of the Grievance Board's Final Order, and a remand to the Grievance Board with directions that arrangements be made so that the administrative law judge, who heard the testimony, can issue a final decision on the merits. - Chief Justice Davis and Justice Workman disqualified. Judge Pratt and Senior Status Judge Chafin sitting by temporary assignment.

3. State of WV v. Kilton Lee Kitchen - 100482 - Kilton Lee Kitchen appeals his conviction for Murder in the First Degree with a recommendation of mercy and Conspiracy to Commit Murder. He asserts insufficiency of the evidence and error in denying a jury view

4. Patsy S. Hardy, Secretary, Department of Health and Human Resources v. Shawn Shumbera - 100581 - Petitioner Patsy A. Hardy, Secretary of the West Virginia Department of Health and Human Resources appeals from a Final Order of the Kanawha County Circuit Court, denying the DHHR's Rule 59(e) Motion to Alter or Amend Judgment. On October 30, 2009, the lower court found that Shawn Shumbera was entitled to injunctive relief to enable him to receive MR/DD Waiver services despite the absence of evidence showing he meets the eligibility criteria.

Argument Docket
Sept. 8, 2010

1. Edith Nezan v. Aries Technologies and Shashi Sanwalka - 35495 - Plaintiff Edith Nezan appeals the Circuit Court of Kanawha County's order granting the Motion to Dismiss of Defendants Shashi Sanwalka and Aries Technologies, Inc. The court ruled that it lacks personal jurisdiction pursuant to the Long Arm Statute and federal due process and, as an alternate basis, dismissal is appropriate under the forum non conveniens statute. - Chief Justice Davis disqualified. Judge Hustead sitting by temporary assignment.

2. Lynda Young v. Bellofram Corporation, et al. - 35439 - Defendants Bellofram Corporation d/b/a Marsh Bellofram Corporation and Joseph Colletti appeal the circuit court's decision that they had committed age and gender discrimination and wrongful termination of plaintiff Linda Young.

3. State of WV v. Jessica Jane Morris - 35441 - Defendant appeals her conviction by a jury on several counts of sexual assault and sexual abuse of her daughter. Defendant raises several errors at trial, including evidentiary errors and the competency of the child witness, all of which created plain error in not affording defendant a fair trial. Defendant seeks a reversal of her convictions and a new trial.

4. In Re: Chevie V. - 35443 - Department of Health and Human Resources appeals from the circuit court's order directing the Department to reimburse respondent's counsel for the $6,810.63 paid to an expert medical witness retained by respondent mother. The circuit court found pursuant to Rule 54(b), there was no just reason to delay the appeal of this issue. The Department asserts that these fees should be paid by the Public Defender's Corporation and seeks a reversal of the circuit court's order. - To be presented on briefs only without oral argument.

5. The Shepherdstown Observer, Inc. v. Jennifer Maghan, Clerk, County Comm. - 35446 - The Shepherdstown Observer appeals the circuit court's order dismissing its Freedom of Information Act complaint. The petitioner seeks access to zoning referendum petitions from the Clerk of the Jefferson County Commission, but the circuit court ruled that these documents were not subject to the Freedom of Information Act.

6. SER Jordan Shaver v. Hershel Mullins, Magistrate - 35518

7. SER AT&T Mobility v. Hon. Ronald E. Wilson, Judge - 35537 - Petitioners seek issuance of a writ of prohibition to instruct the circuit court from refusing to compel the Respondent to arbitrate her claims and from exercising jurisdiction over the dispute and to make Respondent pursue her claims in Magistrate Court.

8. SER Robert Wakenight v. Hon. David Sanders, Judge - 35538 - Petitioner, a Maryland resident, seeks issuance of a writ of prohibition arguing whether a West Virginia court may exert long-arm jurisdiction over a nonresident driver in a negligence action arising from a collision in another state (MD) where the driver left West Virginia intoxicated after frequenting a night club with no intention to return.- Continued.

9. SER Ramey Motors, Inc. v. Hon. Warren R. McGraw, Judge - 35517 - Petitioner seeks issuance of a writ of prohibition directing the circuit court from proceeding with further proceedings in Brandon Blevins v. Ramey Motors, Inc. Petitioner seeks to vacate the circuit court order of 1/14/10, and to dismiss this action for improper venue.

10. Betty Jarvis and Wanda Carney v. WV State Police, D.M. Nelson, et al. - 35444 - Defendants, the West Virginia State Police and troopers/former troopers D. M. Nelson, A. S. Perdue, C. E. Akers, appeal the circuit court's order denying their motion to dismiss.

11. State of West Virginia v. Willie Sharp - 35303 - Petitioner Willie Sharp was convicted of one count of Delivery of a Controlled Substance and sentenced to two to thirty years in prison. On appeal, Mr. Sharp alleges that there is insufficient evidence to support a conviction. He also states that the lower court allowed inappropriate references to a prior criminal record while in the presence of the jury.

12. Lawyer Disciplinary Board v. Nathan H. Wasser - 34742 - Respondent consented to disbarment of his Maryland law license on January 26, 2009, based on a complaint where Defendant misappropriated over $91,000.00 from his attorney escrow account for payment of personal and business obligation in violation of Rules of Professional Conduct.

13. SER Tony Curtis Myer v. Hon. Jennifer Walker, Judge - 35545 - Defendant seeks issuance of a writ of mandamus arguing deprivation of the right to petition for appeal of his underlying criminal convictions. - To be presented on briefs only without oral argument.

14. SER Thomas S. Talbert v. Hon. Alfred Ferguson, Judge - 35542 - Dismissed.

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