*** SupCo calendar for 9/20 issue

Motion Docket
Tuesday, Sept. 21

1. Charles Posey v. Board of Education of Lewis County - 100428 - Petitioner Charles Posey appeals the circuit court's order which affirmed the grievance board's denial of his grievance. The grievance board concluded that the Respondent Lewis County Board of Education had legal grounds to terminate petitioner's employment when he temporarily lost his certification to operate a school bus. - Justice Workman disqualified. Judge Matish sitting by temporary assignment.

2. State of WV v. David Wayne Kaufman - 100434

3. Bonnie Sue Burton v. Ralph Burton - 100545 - Bonnie Sue Burton appeals the circuit court's order refusing an appeal from family court concerning a final divorce order. Ms. Burton asserts that the family court erred by not granting the divorce on another ground, erred in the amount and type of alimony awarded, and erred by not awarding her one-half of certain stocks.

4. State of WV v. Michael Kent Merrifield - 091666 - Defendant appeals from his convictions on one count of first degree murder, one count of death of a child by guardian or custodian, and one count of sexual abuse by a guardian, custodian or person in a position of trust. Defendant was sentenced to life without the possibility of parole on the first degree murder conviction. The sentences he received on the other two convictions were ordered to run concurrently with the life without mercy sentence. Defendant challenges the sufficiency of the evidence on all charges; raises a venue issue; asserts that he was not present during critical stages of his trial; asserts that he should have been granted either a mistrial or a new trial based on newly discovered evidence; and asserts that W.Va. Code §61-2-2 unconstitutionally shifts the burden of proof to the defendant in order to receive mercy from the jury. Defendant seeks a reversal of the final orders of the circuit court with directions that a judgment of acquittal be entered. In the alternative, defendant seeks a remand for a new trial.

5. MZRP, LLC v. Logan Cannel Coal, et al. Petitioner: Huntington Realty Corporation - 100513 - Defendant appeals from the circuit court's order awarding judgment in favor of plaintiff in this action seeking to quiet title to a parcel of real estate plaintiff acquired at a delinquent tax sale. Defendant seeks a reversal of the circuit court's order, a determination that plaintiff did not acquire by tax deed the 100 acre tract described in the 1893 deed, and such other relief as this Court deems appropriate.

Argument Docket
Tuesday, Sept. 21

1. Nancy Jamison v. The Board of Education of the County of Monongalia - 35498 - Petitioner Nancy Jamison appeals from a August 27, 2009, Order of the Kanawha County Circuit Court which affirmed the denial of the employee grievance by an Administrative Law Judge. Ms. Jamison filed her grievance pursuant to West Virginia Code §6C-2-1 in order to seek reimbursement for travel expenses during the 2006-2007 and 2007-2008 school years. - Justice Workman disqualified. Judge Keadle sitting by temporary assignment.

2. SER Darrell E. Holmes and Gregory M. Gray v. Hon. Russell M. Clawges, Jr., Judge - 35628

3. Donna Wilson v. Leon Hunter Wilson - 35475 - Petitioner wife appeals from the circuit court's order reversing the family court's ruling that the parties' closely held business possessed an enterprise goodwill valued at approximately $9.3 million. The circuit court ruled there was no enterprise goodwill of the closely-held business.

4. Michael O'Dell v. Robert Stegall and Virginia Stegall - 35488 - Defendants appeal from an adverse jury verdict in this action brought by plaintiff seeking to establish a prescriptive easement. The jury found that plaintiff had established the existence of a prescriptive easement and, on plaintiff's claim that defendants had interfered with his easement, the jury awarded compensatory damages in the amount of $5,300 and punitive damages in the amount of $4,700. Defendants seek an independent review and reversal of the punitive damage award; a reversal of the compensatory damages award; and a definition of plaintiff's use of the prescriptive easement and limiting such use to egress from plaintiff's house to the highway by an existing 12 foot gravel lane situated in the center of a 25-foot right-of-way. Defendants do not seek a new trial.

5. SER Ernest Wayne Cline v. Hon. Warren R. McGraw, Judge - 35630 - Petitioner seeks a writ of prohibition: (1) to prohibit the circuit court from enforcing a sentencing order; (2) to require the circuit court to conduct a proper sentencing hearing; and (3) to grant a stay of the jail commitment. - Dismissed.

6. Christopher G. Morris, State Tax Comm'r. v. Heartwood Forestland Fund, et al. - 35476 - The State Tax Commissioner appeals from the circuit court's order affirming the decision of the Office of Tax Appeals finding that respondents, which had been assessed for business franchise tax, were exempt from paying back tax because they were involved in agriculture and farming, which is not subject to business franchise tax. The Tax Commissioner seeks a reversal and the reimposition of the delinquent business franchise taxes.

7. State of WV v. Meredith Lee VanHoose - 35483
AND
SER Meredith L. Vanhoose v. Evelyn Seifert, Warden - 35478 - Meredith Lee Vanhoose appeals his conviction pursuant to conditional guilty plea for one count of First Degree Murder with mercy and one count of Second Degree Murder. His guilty plea was conditioned on the right to appeal speedy trial issues. He also appeals the circuit court's order denying his petition for writ of habeas corpus where he raised the speedy trial issues and asserted ineffective assistance of appellate counsel for failing to file a direct appeal. The circuit court denied the habeas petition, but re-sentenced petitioner for purposes of pursuing a direct appeal.

8. State of WV v. Gregg Dulaney Smith - 35489 - Gregg Dulaney Smith appeals his convictions of Malicious Assault (hammer); Malicious Assault (shotgun); Wanton Endangerment Involving a Firearm; and Attempted First Degree Murder. On April 8, 2009, the Ritchie County Circuit Court sentenced petitioner to a combined 12 years to 35 years of consecutive sentences. - To be presented on briefs only without oral argument.

9. Donna McKneely v. WV Consolidated Public Retirement Board - 35471- Donna McKneely appeals the circuit court's order affirming the decision of the Consolidated Public Retirement Board that she is not eligible for duty-related disability retirement benefits from the State Trooper's Retirement Plan A. She was previously awarded non-duty related disability benefits.

10. SER Ronald L. Wooten, Director v. The Coal Mine Safety Board of Appeals, et al. - 35493 - Petitioners appeal from the circuit court's order granting the respondent Board's motion to dismiss. Petitioners sought a writ of prohibition to prohibit the Board from exceeding its legitimate powers by imposing in a probable cause order a requirement to "make application" to the Board prior to temporarily suspending a miner's certifications pursuant to Title 37, Series 2 of the Code of State Regulations. Petitioners seek a reversal of the circuit court's order.

WV Office of Miners' Health, Safety and Training v. William A. Coulson - 35648 - Petitioner appeals from the circuit court's order affirming the final order of the West Virginia Coal Mine Safety Board of Appeals in relation to respondent's certification as a coal miner. Petitioner contends that the circuit court erred by affirming the Board's determination that there was no evidence presented to show that respondent demonstrated any characteristic of a person under the influence of intoxicants; by not finding that the Board had misapplied W.Va. Code St. R. §36-22-4.5; and by not determining that the penalty imposed on respondent for Charge 1 was insufficient as a matter of law.

11. Frenchie Hess, Jr. v. WV Division of Corrections - 35496 - The Defendant West Virginia Division of Corrections files an interlocutory appeal from the circuit court's order denying its motion to dismiss. The motion to dismiss asserted qualified immunity and that plaintiff failed to exhaust his prison remedies before filing a negligence action. - To be presented on briefs only without oral argument.

12. SER Mary Aliff v. Hon. David M. Pancake, Judge - 35629 - Petitioner seeks a writ of mandamus to compel the lower court to appoint a guardian ad litem for a minor child and set a hearing on petitioner's petition to settle her personal injury claim. - To be presented on briefs only without oral argument.

Motion Docket
Wednesday, Sept. 22

1. State of WV v. Edgar W. Friedrichs, Jr. - 100724 - Petitioner Edgar W. Friedrichs, Jr. appeals from his conviction of First Degree Murder and causing the death of a child when he was the child's custodian or guardian. Petitioner was sentenced by the Fayette County Circuit Court to consecutive sentences of life without mercy plus forty years - Justice Workman disqualified.

2. State of WV v. Richard S. Bennett - 100618 - Defendant appeals from his conviction of first degree murder. He was sentenced to life without the possibility of parole. Defendant raises various evidentiary issues at trial. He seeks a reversal of his conviction.

Argument Docket
Wednesday, Sept. 22

1. Cabot Oil & Gas Corporation v. Randy Huffman, Cabinet Secretary, et al. - 35508, 35509, 35510 & 35511 - The Secretary of the W.Va. Department of Environmental Protection and various intervenors appeal the circuit court's order which reversed the DEP Secretary's Order and directed the DEP Secretary to issue five well work permits for natural gas drilling within Chief Logan State Park.

2. Jill Willey and Mike Willey v. Samuel J. Bracken, Jr., M.D. - 35519 - The circuit court entered a "Certification Order" certifying the following questions of law in this medical malpractice action:

"1. Does a cause of action for medical negligence "accrue", for the purposes of the West Virginia borrowing statute, W.Va. Code § 55-2A-2, in the State of West Virginia or the State of Ohio where the Defendant doctor is a West Virginia doctor, where the plaintiff is a West Virginia resident, where the doctor-patient relationship between the plaintiff-patient and defendant-doctor is established in the state of West Virginia, where the Defendant-doctor performs a tubal ligation in the state of Ohio, with no immediate injury, where the defendant-doctor chose the location for the tubal ligation procedure, where the tubal ligation is the only procedure which occurred in the state of Ohio in the course of the patient-doctor relationship between plaintiff and defendant, and where the plaintiff-patient suffers a sigmoid colon rupture in the State of West Virginia in the week following the tubal ligation procedure?

2. Does the West Virginia Borrowing statute, W.Va. Code § 55-2A-2[,] apply to a medical negligence claim where the Defendant, a West Virginia physician, admits that both the substantive and procedural law of the state of West Virginia applies to the plaintiff's claim?

3. As a matter of public policy, should the West Virginia borrowing statute be construed so as not to bar a claim for medical negligence by a West Virginia resident patient, where the defendant doctor is a West Virginia doctor, where the Plaintiff is a West Virginia resident, where the doctor-patient relationship between the plaintiff-patient and defendant-doctor is established in the State of West Virginia, where the defendant-doctor performs a tubal ligation in the State of Ohio with no immediate injury, where the defendant-doctor chose the location for the tubal ligation procedure, where the tubal ligation is the only procedure which occurred in the state of Ohio in the course of the patient-doctor relationship between Plaintiff and Defendant, and where the Plaintiff-patient suffers a sigmoid colon rupture in the state of West Virginia in the week following the tubal ligation procedure?"

The circuit court states in its Certification Order that "the West Virginia Borrowing Statute, W.Va. Code § 55-2A-2, does not bar the Plaintiff's clams for medical negligence pursuant to the Ohio one-year statute of limitations as 'the Plaintiff's cause of action did not accrue per the statute in the State of Ohio.' Rather, this Court found that the Plaintiff's cause of action for medical negligence accrued in the state of West Virginia, 'where the injury occurred.' "

3. State of WV v. Dennis R. Gibson - 35520 - The State of West Virginia presents its petition for appeal on the following certified question from the Fayette County Circuit Court:

"Must both of the two prior convictions for criminal acts of domestic violence [as defined and obtained in accord with West Virginia Code § 61-2-28], which are alleged within an Indictment charging a current allegation of domestic violence as a third offense felony, have been obtained against a defendant within ten years of said current allegation, for said prior convictions to be properly used to charge the current allegation of domestic violence as a third offense felony?"

The circuit court would answer the question "yes."

4. Leeorr M. Rosier v. Robert Lee Rosier - 35522 - Plaintiff appeals from the trial court's partial summary judgment order in favor of defendant and its "Order and Opinion" entered following a bench trial in this action to set aside conveyances of real estate by a principal to a fiduciary. Plaintiff alleged that the real estate conveyances constituted common law and statutory fraud and sought the return of personal property, including money, farm equipment, and cattle, which was allegedly converted by defendant. The trial court rejected all of plaintiff's claims.

5. Cora Phillips Hairston, et al. v. General Pipeline Construction, Inc., et al. - 35525 -

The Circuit Court of Logan County certifies the following questions:

A. Does W.Va. Code § 29-1-8a preempt a common law cause of action for direct or indirect desecration of a grave?

Circuit Court's Answer: Yes, except as to claims for the desecration of graves and related items in a publicly or privately maintained cemetery or of graves less than fifty years old.

B. What are the elements of a common law action for desecration of a grave, grave site, cemetery, or burial ground? Circuit Court's Answer: The elements of a common law cause of action for the desecration of a grave in a publicly or privately maintained cemetery are:

1. that it is shown that a cemetery, with identifiable boundaries and limits, exists at the place alleged;
2. that it is shown that the area was dedicated to the purpose of providing a place of burial by the owner of the property or that the owner acquiesced in its use for burial;
3. that it is shown that the area was identifiable as a cemetery by its appearance prior to the defendant's entry onto the area or it is shown that the defendant has prior knowledge of the existence of the cemetery;
4. that it is shown that the decedent in question is interred in the area;
5. that it is shown that the decedent in question was interred by license or right;
6. that it is shown that the plaintiff is the next of kin of the decedent in question with the right to assert a claim for desecration;
7. that it is shown that the person charged with the desecration defaced, damaged or otherwise mistreated the physical area or the contents of the cemetery in a way that a reasonable person knows will outrage the sensibilities of others.

C. What are the recoverable damages in a common law action for desecration of a grave, grave site, cemetery or burial ground? Circuit Court's Answer: Nominal damages at least, are awardable, and compensatory damages may be recovered if actual damage is shown; damages for mental distress may be awarded; and punitive damages may be awarded if a plaintiff can prove that the defendants' conduct was willful, wanton, reckless or malicious.

D. Does West Virginia recognize a common law cause of action for indirect desecration of a grave, grave site, cemetery or burial ground? If so, what are the elements of such a cause of action and what are the recoverable damages? Circuit Court's Answer: A cause of action for the indirect desecration of a grave site located in a publicly or privately maintained cemetery is permitted in West Virginia. The elements of such a cause of action are the same as those identified in the Answer to Question 2, above, plus it must be shown that the indirect desecration has, in some manner, affected the specific grave site made the subject of the claim in such a manner as to outrage the sensibilities of others.

E. What are the "next of kin" who possess the right to recover in a common law cause of action for direct or indirect desecration of a grave? Circuit Court's Answer: The decedent's surviving spouse or, if not now living, then the now living person or persons of closest and equal degree of kinship in the order provided by W.Va. Code § 42-1-1, et seq.

6. Ronald and Diane Myers v. WV Consolidated Public Retirement Board - 35470 - The Consolidated Public Retirement Board seeks a reversal of the circuit court's order finding that the Board's application of a pension statute to respondents was clearly wrong in view of the reliable, probative, and substantial evidence on the whole record. Respondents claim that the Board's application of a pension statute constitutes a violation of the State's constitutional protections against impairment of contracts.

Richard H. Burton v. WV Consolidated Public Retirement Board - 35507 - The Consolidated Public Retirement Board appeals the Circuit Court's order which reversed the Board's decision. The Court held that the Board had to apply a statutory provision of a pension statute that was later removed from the law, or else the Board would violate plan member Richard H. Burton's right against impairment of his pension contract.

7. Warren K. Hollinghead v. James W. Childers, Sheriff of Greenbrier County - 35530 - Petitioner Warren K. Hollinghead appeals the denial for his request to carry a concealed weapon pursuant to West Virginia Code §61-7-4. The Sheriff of Greenbrier County denied the petitioner's request because petitioner had previously plead no-contest to a charge of simple battery. On appeal, petitioner contends that his plea does not prevent him from obtaining a license to carry a concealed weapon.

8. Charles W. Bevins v. WVOIC and Mountain Energy, LLC - 35548

Marty L. Greathouse v. WVOIC and The Wackenhut Corporation - 35219

9. Office of Disciplinary Counsel v. Richard A. Hayhurst - 35566

10. SER Don R. Weekley v. Hon. Martin J. Gaughan, Judge - 35657 - Petitioner seeks issuance of a writ of mandamus against circuit court for information about his underlying habeas case. - To be presented on briefs only without oral argument.

11. SER Garnet Godbey v. Hon. Jennifer Bailey, Judge - 35644 - To be presented on briefs only without oral argument.