Supreme Court of Appeals of West Virginia

  Argument Docket  
                 Wednesday, April 3, 2002

1.  John Collins, et al. v. Red Roof Inns, Inc.  - 30112 - United States District Court seeks certification of a question involving defamatory statements and claims of privilege.

1. The United States District Court presents the following question for certification:

Whether an individual or entity is absolutely privileged to publish defamatory matter to another individual or entity, when such defamatory statement is preliminary to the filing of a Complaint in the matter but the statement is relevant to a proceeding which is seriously contemplated and when the subject of such defamatory matter is third persons who would not be parties to the litigation that was contemplated.

2.  Diana Bossie v. Boone County Board of Education, et al.  - 30118 - This is a certified question case wherein the Circuit Court of Boone County held that the petitioner, Diana Bossie, a teacher, was not entitled to be selected for the position of Assistant Principal at Van High School. The vacancy in the position was posted twice by the respondent, Boone County Board of Education. The issue before this Court concerns the validity of the second posting in view of W.Va. Code, 18A-4-7a [1993], and this Court's opinion in Mingo County Board of Education v. Jones, 204 W.Va. 340, 512 S.E.2d 597 (1998).

Questions Certified:

1. Once a qualified [applicant] is selected for a properly noticed job, within the proscribed time period, is the school board required to extend that time period as a matter of law, if the job is filled but then vacated, still within the original 30-day period in which the board had to select a qualified applicant to fill the vacancy ?

2. If so, can other applicants now apply, or is the school board legally bound to pick from the original list ?

The Circuit Court answered the certified questions in favor of the respondent Board.

3.  Milton Lee Mills, et al. v. Herman William Davis, et al. - 30121- The petitioners, Milton L. Mills and Vanessa F. Mills, appeal from an order entered in the Circuit Court of Wayne County denying their motion to reconsider the dismissal of their action as a sanction for the petitioners' failure to provide the respondents, Herman William Davis and State Farm Mutual Automobile Insurance Company, with certain matters of discovery. The petitioners contend that the dismissal of the action was overly harsh under the circumstances and that the Circuit Court's ruling constituted an abuse of discretion.

4.  Luther W. Hanson, et al. v. Joe Miller, Comm’r, et al.  - 30117 - In these related DUI cases, the petitioners, Luther A. Hanson and Emery Leon Massey, appeal from orders entered in the Circuit Court of Raleigh County upholding the admissibility of the State's evidence concerning the intoxilyzer 5000 sobriety breath test and the horizontal gaze nystagmus test. The petitioners contend that the results of the two tests in the petitioners' respective cases were scientifically unreliable within the meaning of the Daubert decision and, therefore, should not have been considered.

5.  Robert L. Cross, M.D. v. West Virginia Insurance Guaranty Association - 30111 - Physician seeks to appeal lower court decision holding that the West Virginia Insurance Guaranty Association's obligation to indemnify is dependent upon exhaustion of the liability limits available to all other defendants and refusing to rule on the issue of whether the Association is liable for bad faith as any other insurance carrier. - Continued to June 11, 2002.

6.  Bd. of Trustees, Police Officers Pension & Relief Fund, etc. v. James Carenbauer  - 30102 - Defendant appeals from the circuit court's order in this declaratory judgment action finding that the Pension Fund is entitled to seek reimbursement and offset plaintiff's disability payments for income earned over $7500.

7.  State of W. Va. v. Gary J. Johnston  - 30040 - Defendant appeals his conviction on one court of driving while suspended DUI and one count of Fleeing an officer.

8.  State of W. Va. v. Bethel Hatcher  - 30030 - Defendant appeals from his conviction of first degree murder. He was sentenced to life imprisonment with the possibility of parole.

9.  Bobby Cales et al. v. Mark Steven Wills  - 30109 - Continued. 

10. Margaret Toppings, et al. v. Meritech Mortgage Services, Inc., et al. - 30108 - In this certified question matter, Margaret and Roger Toppings filed an action in the Circuit Court of Lincoln County to resolve disputes with the lenders concerning the Toppings' home equity loan. The lenders, Meritech Mortgage Services and Chase Manhattan Bank, asserted that the Circuit Court action was precluded by an arbitration agreement the Toppings signed as part of the loan documents. The Circuit Court asks this Court to determine whether the arbitration agreement is unconscionable and unenforceable.

Question Certified:

1. Whether a lender's form compulsory arbitration clause or rider, which mandates that all disputes arising out of a consumer transaction be submitted to a lender-designated decision maker compensated through a case-volume fee system whereby the decision maker's income as an arbitrator is dependent on continued referrals from the creditor, so impinges on neutrality and fundamental fairness that it is unconscionable and unenforceable under West Virginia law.

The Circuit Court answered the question in the affirmative and declared the arbitration clause unenforceable.

Monday, April 01, 2002