April 16, 2008 Motion Docket, Supreme Court of Appeals of West Virginia

Supreme Court of s of West Virginia
Motion Docket
Wednesday, April 16, 2008
Decided on April 24, 2008

1. Douglas R. Jackson v. Power Mountain Coal Company, et al. - 072598 - Plaintiff appeals from the circuit court's order denying both his motion for a new trial on the issue of damages and his motion to set aside the jury verdict and award a new trial on the issue of damages. Plaintiff asserts that the jury's award of compensation damages was inadequate to fully and fairly compensate him in light of the uncontroverted evidence on damages. Plaintiff seeks a new trial as to damages. - Refuse 3 - 2, Davis & Benjamin. Maynard disqualified, Judge Swope sitting.

2. M. Ann Sandor v. William R. Bjorkman - 073153 - Defendant William R. Bjorkman appeals the circuit court's findings of fact and conclusions of law after a bench trial. The court concluded that plaintiff M. Ann Sandor signed a Joint Ownership Sales Agreement under duress and therefore the agreement is voidable, allowing plaintiff to proceed with a partition action. - Refuse 4 - 0, Benjamin not participating.

3. J.H.* v. WV Division of Rehabilitation Services - 073084 - J. H. brought personal injury action against the West Virginia Division of Rehabilitation Services for injuries he sustained by being sexually molested while he resided at the defendant's Center. The trial court dismissed the action pursuant to Rule 12(b)(6) and found that the defendant was entitled to qualified immunity based upon the "public duty doctrine". The trial court concluded that the plaintiff had not established any "special duty" owed him by the WVDRS. - Grant 5 - 0.

4. State v. Nicole L. Kees - 073441 - Petitioner Nicole Kees appeals her conviction for felony murder with a recommendation of mercy. Her arguments include that under the facts of this case, she did not commit the predicate felony of delivery of a controlled substance; that the court erroneously denied a lesser included instruction; and that the prosecutor made an improper argument during closing rebuttal. - Refuse 3 - 2, Starcher & Albright.

5. SER John Phillips v. Thomas McBride, Warden - 072952 - Petitioner appeals from the circuit court's order denying his petition for a writ of habeas corpus. Petitioner asserts numerous grounds in support of his request for relief, including sentencing and trial errors, as well as ineffective assistance of counsel. - Refuse 3 - 2, Starcher & Albright.

6. State v. Billie Dawn Hatley - 073624 - Defendant appeals following her conviction of first degree robbery. She was sentenced to a 10-year determinate sentence. Defendant raises jury and sentencing issues. She seeks a reversal of her conviction, a vacation of her sentence, and a new trial - or such other relief as this Court deems appropriate. - Grant 3 - 2, Maynard & Davis.

7. Thomas C. Pfadenhaver and Ellen M. Pfadenhaver v. State Tax Comm’r. of WV - 073647 - Thomas and Ellen Pfadenhauer appeal the circuit court's order affirming the decision of the Office of Tax Appeals affirming the decision of the W.Va. Tax Commissioner. The Commissioner found that Mr. Pfadenhauer's pension received from the Baltimore Municipal Police and Firemen Retirement System is subject to W.Va. state taxation. - Refuse 4 - 1, Albright.

8. Citizens Telecommunications Co. Of WV v. State Tax Comm’r. of WV - 073676 - The Citizens Telecommunications Company appeals from an Order by the Kanawha County Circuit Court which affirmed the West Virginia Office of Tax Appeals decision to uphold the Tax Commissioners decision not to grant a request for a tax refund of $1,998,987.78 for tax year 2004. On appeal, Frontier Communications argues that the company is entitled to the refund requested. - Refuse 5 - 0.

9. Kelly Steele and Jeremy Steele v. GlobalStar, LLC - 080218 - The petitioners, Kelly and Jerry Steele, appeal from a Kanawha County Circuit Court's Order denying the plaintiffs Rule 60(b) relief following the Court's granting of Summary Judgment in favor of the defendant Globalstar, LLC. Petitioners assert that genuine issues of material fact exist in the case. - Refuse 3 - 2, Starcher & Albright.