March 30, 2010
1. Jill Willey, individually, and Mike Willey v. Samuel J. Bracken, Jr., M.D., No. 091512. 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.’ " Grant 5- 0
2. State of West Virginia v. Dennis R. Gibson, No. 091840. 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." Grant 4- 1, (Ketchum, J.)
3. Irma J. Riffle, Administratrix of the Estate of Edgar Riffle, Jr., deceased v. C.J. Hughes Construction Company, Inc., a West Virginia corporation; and Contractors Rental Corporation, a West Virginia Corporation - No. 100062. Plaintiff appeals from the circuit court’s order dismissing this deliberate intent and wrongful death action. Plaintiff seeks a reversal of the circuit court’s dismissal order and seeks a remand for trial. Grant 5- 0
4. Re: The Child(ren) of Teresa K. Cutlip and Larry R. Cutlip - No. 100064. Petitioner husband seeks a reversal of the family court order as to the amount of income attributable to him and the effective date of any modification of his child support obligation. He also appeals from the circuit court’s order upholding the decision of the family court. Refuse 5- 0
5. Gary E. Ward, Jr. v. Mae Johnson, and Glenn B. Gainer, III, in his capacity as West Virginia State Auditor - No. 100066. Plaintiff appeals from the circuit court’s order granting summary judgment in favor of defendant in this action seeking damages arising from the sale of property at a tax auction. Plaintiff seeks a reversal of the circuit court’s rulings. Refuse 4- 1, (Ketchum, J.)
6. Leeorr M. Rosier, and Leeorr M. Rosier, Executrix of the Estate of Stearl Rosier v. Robert Lee Rosier - No. 100070. 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. Grant 5- 0
7. S&A Property Research, LLC, a West Virginia Limited Liability Company v. EurEnergy Resources Corporation, a foreign corporation - No. 100073. Defendant appeals from the circuit court’s order granting plaintiff’s motion to enforce a settlement agreement. Defendant also seeks a reversal of the circuit court’s final judgment order in which it awarded a total of $606,202 in favor of plaintiff, which amount includes $6,202 in attorney’s fees. Grant 5- 0
8. Mindy and Billy McCormick, et al. v. Wal-Mart Stores, Inc., et al. and Resource Consultants and Developers, Inc. v. Bituminous Casualty Corporation - No. 100095. 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. Grant 5- 0
9. Mary A. Rose, Executrix of the Estate of Richard L. Rose, Deceased v. Henry L. Kettler, M.D., and Valley Radiologists, Inc., a West Virginia Corporation - No. 091706. Plaintiff Mary A. Rose, Executrix of the Estate of Richard L. Rose, appeals after a defense jury verdict in a medical malpractice suit. She asserts error regarding jury selection. Accept to Motion Docket
10. Cora Phillips Hairston, et al. v. General Pipeline Construction, Inc., et al. and General Pipeline Construction, Inc. v. Mountain State Insurance Company - No. 091903. The Circuit Court of Logan County certifies the following questions.
1. 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.
2. 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.3. 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.
4. 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.
5. What are the "next of kin" who possess the right to recover in a commonlaw 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. Grant 4- 1, (Ketchum, J.)
11. re: The Estate of Roger Ellis, Deceased, Joyce Ellis v. Joanna Hatfield - No. 100087. Joyce Ellis appeals the Circuit Court’s order which affirmed the ruling of the County Commission of Mingo County denying her petition to remove the Co-Administrators of the Estate of Roger Ellis. Grant 3-2 (Benjamin, J., Ketchum, J.)
12. Robert A. Doering, Jewell Doering, Paul M. Brunty, Rita C. Brunty, Denny R. Canterbury, Sr., Billy R. Falls, Betsy Falls, Jesse Hylton, Kathleen Hylton, Thomas McNeely, Marvin L. Morgan, Dorothy J. Morgan, Layola J. Sarver, Robert L. Shafer, Susanna M. Shafer, William R. White, Linda S. Wilson, Robert Wilson, Roberta Wilson, Sandra Wilson, Earnest Wyant, Vicki Wyant v. City of Ronceverte, County Commission of Greenbrier County, West Virginia, and West Virginia Farm Properties, LLC - No. 100089. Petitioners below appeal the circuit court’s orders wherein the court ruled that they lack standing to challenge an annexation ordinance passed by the City of Ronceverte. Accept to Motion Docket
13. State of West Virginia v. Brandon A. Butler - No. 100097. Brandon A. Butler appeals the circuit court’s order denying his motion to be re-sentenced so that he could pursue an appeal. Grant 5- 0 and remand for resentencing.
14. PGNI Charles Town Gaming, LLC v. West Virginia Racing Commission, Chairman Fred C. Peddicord, Chairman of the West Virginia Racing Commission, and Richard C. Watson, Janene Watson and Patty A. Burns, Intervenors - No. 100098. The West Virginia Racing Association appeals the Circuit Court’s order granting a petition for prohibition filed by PGNI Charles Town Gaming, LLC d/b/a Charles Town Races & Slots. The Court prohibited the Commission from conducting hearings on the ejectment decisions of racing associations, including the Charles Town Races & Slots, concluding that the Commission lacks the authority to unilaterally reinstate an ejected permit holder over the objection of a racing association. Refuse 5- 0
15. PGNI Charles Town Gaming, LLC v. West Virginia Racing Commission, Chairman Fred C. Peddicord, Chairman of the West Virginia Racing Commission, and Richard C. Watson, Janene Watson and Patty A. Burns, Intervenors - No. 100099. Intervenors Richard Watson, Janene Watson, and Patty Burns appeal the Circuit Court’s order granting a petition for prohibition filed by PGNI Charles Town Gaming, LLC d/b/a Charles Town Races & Slots. The Court prohibited the West Virginia Racing Commission from conducting hearings on the ejectment decisions of racing associations, including the Charles Town Races & Slots, concluding that the Commission lacks the authority to unilaterally reinstate an ejected permit holder over the objection of a racing association. Refuse 5- 0
16. Mary E. Parsons v. Pocahontas Coal Company, LLC, and West Virginia Human Rights Commission - No. 100101. Mary E. Parsons appeals the Human Rights Commission’s Final Order which adopted the Final Decision of its Administrative Law Judge. Petitioner asserts that the ALJ and Commission committed legal errors resulting in the failure to award complete relief to petitioner. Refuse 5- 0
17. State of West Virginia v. Philip Hartland Schmidt - No. 100115. Philip Schmidt appeals from the court’s order committing him to a state mental hospital upon a jury’s finding that he was not guilty by reason of mental illness of Wanton Endangerment Involving Explosive Materials, Attempted Arson, and two counts of Attempted Murder. He asserts, inter alia, that the State failed to disclose Brady evidence, that the Indictment was flawed, and insufficiency of the evidence. Refuse 5- 0
18. Barbara Renner and John L. Renner v. Edgar L. Bonner and Hazel E. Bonner, Melissa Cox Felske, Rosemary Lang, Brian Trunk, Michael Trunk, Ryan J. Renner, and David Renner - No. 100117. 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. Grant 3-2 (Davis, C. J., Benjamin, J.)
19. Jewell K. Whittaker v. Andrew J. Whittaker - No. 100075. 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. Accept to Motion Docket
20. State of West Virginia v. Frederick K. Ferguson, III - No. 100118. 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. Accept to Motion Docket
21. Gary Lacy v. Western & Southern Life Insurance Company, an Ohio Corporation; Gene Patterson and Aric Grooms - No. 100102. Gary Lacy appeals a Final Order entered on September 23, 2009, by the Kanawha County Circuit Court, which dismissed the petitioner’s Amended Complaint and granted the Respondent’s Motion to Dismiss pursuant to Rule 12(b)(6). On appeal, Mr. Lacy seeks reinstatement of all of his claims, including the tort of outrageous conduct, civil conspiracy, constructive discharge due to illegal harassment on the basis of his ancestry, and deliberate intent. Refuse 5- 0
22. State of West Virginia v. Larry S. White, II - No. 100103. Petitioner Larry S. White appeals his convictions of Murder in the First Degree and Conspiracy and denial of his Motions for a New Trial. Mr. White was sentenced to life with the possibility of parole for murder, and one to five years to be served consecutively for Conspiracy. Grant 5 - 0, McHugh, J., Disqualified, Judge Alsop sitting by temporary assignment.
23. Warren K. Hollinghead v. James W. Childers, Sheriff of Greenbrier County - No. 100132. 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. Grant 3-2 (Benjamin, J., Ketchum, J.)
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