March 23, 2000 Misc. Motions

Supreme Court of Appeals of West Virginia
Miscellaneous Motions Conference

Wednesday, April 19, 2000

1.	James M. Robinson No. 27356 Refuse 3-2 [Maynard, C.J., McGraw, J.]	Motion for Judge Decision and Leave to Present Oral Argument in Arvil Hendricks v. W.C.D. & So. Appalachian Coal Co., No. 27356.
2.	Susan S. Perry No. 000582 Grant 5-0	Intervenor, DHHR-BCSE, Moves for a Stay in Glen Edgar Gobel v. Pamela Darlene Gobel Gibson, No. 000582. Seeks a stay of a provision of an order entered February 14, 2000 directing that DHHR-BCSE pay $500.00 in attorneys fees. DHHR-BCSE argues that the award of attorneys fees is prohibited by W.Va. Code §48A-2-19(d).
3.	Susan J. VanZant No. 27536 Grant 5-0	Motion to Withdraw as Counsel in Robert Cooke v. W.C.D. & Logan General Hospital, No. 27536. Counsel for claimant states that she was "disengaged" and that claimant picked up his file. Certificate of Service notes Service of Motion on Mr. Cooke.
4.	Elliot G. Hicks Refuse 4-1 [Maynard, C.J.]	Petition for a Writ of Prohibition in SER James M. Beddow, D.P.M. v. Honorable Tod J. Kaufman, No. 000719. Dr. Beddow seeks to preclude enforcement of an order of 12-15-99 denying Dr. Beddow’s Motion for Summary Judgment. The underlying case is a medical malpractice action filed in December, 1996. Dr. Beddow seeks dismissal of the matter based on the plaintiff’s failure to substitute the estate of Dr. Beddow (dod 10-26-97) and seeks an order finding that the lower court abused its discretion in continuing the trial to give the plaintiff an opportunity to correct her failure to name an expert witness, in spite of her recalcitrant refusal to prosecute her case. Respondent argues that a genuine issue of material fact exists as to negligence in misdiagnosis and surgery, the lower court has authority to allow the case to proceed to trial despite the delay in requesting permission to substitute the defendant’s estate when there is no prejudice and the lower court acted properly in continuing the trial date.
5.	Cathy Miller Belinda Powers pro se No. 000746 Refuse 4-1 [Starcher, J.]	Petition for a Writ of Habeas Corpus in SER Cathy Miller v. Ohio County Correctional Complex, No. 000746. Petitioners assert that the criteria of Cooper v. Gwinn is not being met. Petitioners assert that there are unconstitutional conditions of confinement including, deficiencies with classification, treatment programs, inmate work programs, apprentice programs, educational programs, vocational programs, recreation programs, health care, access to the courts and general living conditions. Petitioners seek immediate transfer, appointment of counsel, appointment of a special master and full-scale investigation.
6.	Mychal S. Schulz No. 26850 Grant 4-0 [Starcher, J., Disqualified]	Motion of the West Virginia Chamber of Commerce for Leave to File Amicus Curiae Brief in Steven M. Roberts v. Consolidated Coal Co., No. 26850.
7.	Glyn Dial Ellis No. 000737 Refuse 4-1 [McGraw, J.]	Petition for a Writ of Prohibition in SER Mary Midkiff v. Honorable Roger L. Perry, No. 000737. Petitioner, Mary Midkiff, executrix of a Will, seeks to prohibit the lower court from proceeding in a declaratory judgment action seeking a construction of a Will. Edward James Patterson died 4-17-99. He had a will naming Midkiff executrix. Midkiff qualified and had the Will established, probated and admitted to record on 4-21-99. Prior to his death, Edward James Patterson entered into an agreement with Edwin Ralph Patterson, his son, for the purchase of real estate and personal property of a Laundromat. The agreement provided for monthly payments until the purchase price was paid or until E. J. Patterson’s death. The Will attempts to devise the Laundromat business to Mary Midkiff and Benjamin Franklin Patterson. E. R. Patterson requested Midkiff execute a quit claim deed and filed a proof of claim regarding the Laundromat. A hearing was held before the Fiduciary Commissioner on September 7, 1999. The issue of the Laundromat and construction of portions of the will and the 1997 lease purchase agreement were discussed by counsel for both parties with the Commissioner. All verbally agreed that the issue was one for the circuit court. There was a discussion regarding E. R. Patterson’s withdrawing the claim without prejudice and proceeding in declaratory judgment in circuit court. The declaratory judgment action was filed on 9-29-99. Midkiff filed a Motion to Dismiss. The lower court refused it. Midkiff asserts she did not understand why the matter was passed by the Fiduciary Commissioner. Midkiff changed lawyers. Midkiff raises several points as error including the jurisdiction of the lower court and the ability of parties to waive the jurisdiction of the Fiduciary Commissioner. Respondent asserts that declaratory judgment proceedings are proper methods to seek construction of a Will and of contracts. The sole purpose of the underlying action is to determine rights with respect to the contract lease/purchase agreement and the Will. Respondent states that he does not contest the probate of the Will. It is also argued that circuit courts have equitable authority over construction of Wills.
8.	Thomas J. Obrokta No. 000762 Grant 3-2 [Starcher, J., McGraw, J.]	Petition for a Writ of Prohibition in SER Gadzooks, Inc. v. Honorable John Cummings, No. 000762. Petitioner, Gadzooks, Inc., seeks to prohibit enforcement of an order ruling that plaintiff’s, Jessica Williams, medical history is not discoverable. Gadzooks is a clothing store. Williams worked as a clerk for 3 days. Williams filed a lawsuit alleging sexual harassment, negligent hiring and negligent retention. She seeks damages for emotional injury, mental pain and anguish and claims anxiety, depression, nightmares and insomnia as a result of employment. Gadzooks sought past and present medical history. Plaintiff refused. Lower court held that the physical medical records were discoverable only if related to mental health. Gadzooks urges that Williams’ psychiatrist agreed that physical health is relevant to mental health although he did no independent investigation. Factors suggest there may be something in her medical history that affects her mental health. First, she met her adoptive mother, an ER physician, while a patient in the ER. Second, she has vehemently opposed disclosure of her medical history. Third, her symptoms of anxiety attacks, depression, etc. may come from a physical problem.