WEST VIRGINIA RECORD

Argument Docket
Wednesday, Jan. 19

*** Argument times are approximate ***

Rule 20 argument

10:00 a.m.

Consolidated Argument - (40 minutes total per side) to be allocated by agreement among counsel of record. Justice Davis disqualified. Judge Gaujot sitting by temporary assignment.

Clayton Brown v. Genesis Healthcare Corporation, et al., No. 35494 - Plaintiff Clayton Brown appeals the circuit court's August 25, 2009 order dismissing Defendants Marmet Health Care Center, Inc. and Robin L. Sutphin pursuant to a mandatory arbitration provision in a contract; and (2) the circuit court's May 15, 2009, order dismissing Defendant Canoe Hollow Properties, Inc. Plaintiff argues, inter alia, that the arbitration provision is not enforceable and that the court failed to accept as true the allegations in the plaintiff's Amended Complaint.

Jeffrey Taylor v. MHCC, Inc., et al., No. 35546 - Plaintiff appeals from the circuit court's order granting defendant's motion to dismiss and compelling arbitration in this action brought for violations of Nursing Home Act, a professional liability/medical malpractice case, and a wrongful death claim concerning the care and treatment that plaintiff's decedent received from defendant.

Sharon A. Marchio v. Clarksburg Nursing Rehabilitation Center, et al.,

No. 35635 - The circuit court certifies the following question:

Is West Virginia Code § 16-5C-15(c), which provides in pertinent part that "[a]ny waiver by a resident of his or her representative of the right to commence an action under this section, whether oral or in writing, shall be null and void as contrary to public policy," preempted by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., when a nursing home resident's representative has executed an arbitration agreement as part of the nursing home's admission documents and the arbitration agreement contains the following terms and conditions: a. the arbitration agreement applies to and binds both parties by its terms; b. the arbitration agreement contains language in upper case typescript stating as follows: "THE PARTIES UNDERSTAND AND AGREE THAT BY ENTERING THIS ARBITRATION AGREEMENT THEY ARE GIVING UP AND WAIVING THEIR CONSTITUTIONAL RIGHT TO HAVE ANY CLAIM DECIDED IN COURT OF LAW BEFORE A JUDGE AND A JURY."; and c. the resident's representative is specifically advised that she has the right to seek legal counsel concerning the arbitration agreement, the execution of the arbitration agreement is not a pre-condition to admission to the nursing home facility, and the arbitration agreement may be rescinded by the resident through written notice to the facility within thirty (30) days of signing the arbitration agreement.

Circuit Court's Answer: Yes.

11:20 a.m.

SER Theresa Coleman v. Hon. David Pancake, Judge, No. 35700 - Dismissed

Rule 19 argument

2:00 p.m.

State v. Tex B. Simmons, No. 35540 - Petitioner Tex B. Simmons appeals from his conviction in the Morgan County Circuit Court where he was charged and convicted of Sexual Assault in the First Degree and Sexual Abuse by a Custodian.

2:20 p.m.

SER Keith William DeBlasio v. Hon. John C. Yoder, Judge, No. 35701 - Petitioner seeks a writ of mandamus to compel the circuit court clerk to file petitioner's civil complaint with fees and costs waived.

2:40 p.m.

SER Darrell V. McGraw, AG v. Hon. Louis H. Bloom, Judge, No. 35716

3:00 p.m.

Resource Consultants and Developers v. Bituminous Casualty Corp., No. 35524 - Defendant appeals from the circuit court's ruling that defendant had a duty to defend plaintiff in a separate personal injury action that was ultimately consolidated with this declaratory judgment action. Defendant seeks a reversal of the circuit court's orders and the award of such other and further relief as the Court deems appropriate.

3:20 p.m.

Barbara and John Renner v. Edgar and Hazel Bonner, et al., No. 35528 - Edgar L. Bonner and Hazel E. Bonner appeal the circuit court's order in a partition suit. The court ordered that the subject property be sold.

3:40 p.m.

Lawyer Disciplinary Board v. Joseph P. Albright, Jr., No. 35282 - Petitioner has violated Rule 1.16-declining or terminating representation; Rule 1.5-fees; Rule 8.4-misconduct.

Argument Docket
Tuesday, Jan. 25

*** Argument times are approximate ***

Rule 20 argument

10:15 a.m.

Jeffrey E. Skidmore v. Crystal L. Rogers, No. 35291 - Jeffrey E. Skidmore appeals from a July 6, 2009, Order of the Braxton County Circuit Court, which upheld the Family Court's denial of Request of Modification of a Parenting Plan. The parties in this case were divorced and the Parenting Plan was established by prior Order of the Circuit Court.

10:55 a.m.

SER Lincoln Journal, Inc., et al. v. Hon. F. Jane Hustead, Judge, No. 35734 - Petitioners seek a writ of prohibition to challenge an order compelling them to reveal confidential and First Amendment privileged news sources and news-gathering materials.

11:55 a.m.

SER State Farm Mutual Automobile v. Hon. Thomas A. Bedell, Judge, No. 35738

Rule 19 argument

2:00 p.m.

Jamie Bachie v. Wheeling Island Gaming, Inc., No. 35544 - Plaintiff in sexual harassment suit appeals circuit court order granting summary judgment to Defendants and denying her motion to reconsider, rescind or modify the court's prior ruling granting Defendants' Motion in Limine with respect to Plaintiff's wage loss and emotional damages claims, arguing that the circuit court abused its discretion and that genuine issues of material fact exist which should have barred entry of summary judgment.

2:20 p.m.

State v. Frederick K. Ferguson, III, No. 35551 - Petitioner Frederick K. Ferguson, III, appeals his conviction for Voluntary Manslaughter in the Ohio County Circuit Court. As a result of his conviction, Mr. Ferguson was sentenced to fifteen years in prison.

2:40 p.m.

Jewell K. Whittaker v. Andrew J. Whittaker, No. 35552 - Jewell K. Whittaker appeals from a Final Order dated December 2, 2009, in which the Raleigh County Circuit Court reversed a Family Court Order. The Circuit Court held that the Family Court lacked Subject Matter Jurisdiction to order the transfer of assets that are not part of the marital estate. Thus, the matter was remanded for further proceedings.

3:00 p.m.

Malynda M. Moody v. Michael F. Moody, II, No. 35564 - Ms. Kopsolias appeals the family court's Order Granting Divorce and Establishing Temporary Visitation which granted Mr. Moody temporary visitation with the parties' two minor children once per month supervised by a court-ordered mental health professional, asserting that he has not had contact with either child since June 2001 and that he has spent time in prison.

Argument Docket
Wednesday, Jan. 26

*** Argument times are approximate ***

Rule 20 argument

10:00 a.m.

William B. Hamm v. Dr. Steven L. Paine, Superintendent, No. 35539 - The Petitioners, Dr. Steven L. Paine, State Superintendent of Schools and the West Virginia Department of Education, seek to appeal the final Order of the Mason County Circuit Court, dated August 19, 2009, which reversed the State Superintendent's decision of June 22, 2007. The State Superintendent's decision denied William B. Hamm a renewal of his out-of-field authorization permit to teach children with disabilities in Mason County schools. Justice Workman disqualified. Judge Groh sitting by temporary assignment.

10:40 a.m.

State v. Charles J. James, No. 35557 - Defendant appeals the circuit court's imposition of a 30-year period of extended supervision West Virginia Code §62-12-26 following defendant's penitentiary sentence. Defendant asks this Court to find that §62-12-26 is unconstitutional as violative of several federal and State constitutional provisions.

State v. Jerry Lee Hedrick, No. 35561 - Jerry Lee Hedrick appeals his conviction for two counts of Sexual Abuse in the First Degree. He asserts multiple constitutional violations and insufficiency of the evidence.

State v. Steven Daniels, No. 35762 - Steven Daniels files a petition challenging W.Va. Code § 62-12-26 pertaining to extended supervision for certain sex offenders.

2:00 p.m.

Charles A. Carpenter v. Barbara Ann Carpenter, No. 35631 - Petitioner wife appeals from the circuit court's order affirming the decision of the family court that (1) held petitioner in contempt for failure to make timely payments on the mortgage that is in the name of both petitioner and respondent husband; and (2) directed respondent husband, and a realtor of his choosing, to sell the marital home and be solely responsible for the terms of the sale. Petitioner asserts that these sanctions were not appropriate because respondent had not been harmed since late payments on the mortgage were never more than 30 days late and, therefore, were not reported to credit bureaus as being late. Petitioner seeks a reversal and a remand with instructions to dismiss the contempt petition unless respondent proves he has been harmed as a result of mortgage payments being less than 30 days late. Justice Benjamin disqualified. Judge Matish sitting by temporary assignment.

2:20 p.m.

CACV of Colorado, LLC v. Ina M. Haynes, No. 35559 - Petitioner appeals from the circuit court's orders denying petitioner's motion to set aside orders releasing judgment. Petitioner asserts that the circuit court abused its discretion in setting aside the unsatisfied judgments and in holding a hearing to resolve common questions of law or fact when the requirements for such a hearing were not met.

2:40 p.m.

Dawn Renee Palmer (now Lacy) v. Mickey Justice, No. 35633 - Petitioner father appeals from the circuit court's order affirming the decision of the family court denying his request for a modification of his parenting time. Petitioner seeks a reversal of the ruling that he had failed to meet the burden of proof necessary to warrant a modification and asks this Court to rule that he is to have unsupervised parenting time with his minor child. In the alternative, petitioner seeks a remand to the family court with directions for the entry of an order setting forth a parenting plan consistent with the United States and West Virginia Constitutions.