CERTIFIED QUESTIONS

1.  Whether an attorney for a party in a lawsuit owes a duty of care to that party’s adversary in the law suit such that the adversary may assert a cause of action for negligence against the opposing attorney?

Answer of the Circuit Court: No.

2.  Is a party to a civil action barred, by virtue of the litigation privilege, from bringing any type of claim for civil damages against the opposing party’s attorney if the alleged act of the attorney in the course of the attorney’s representation of the opposing party is conduct and not a written or oral statement which arose in the civil action and which has some relationship to that civil action?

Answer of the Circuit Court: Yes.

3.  George Butler Wilson v. William Bernet, Vanderbilt University, and Thomas J. Gillooly - No. 050278. Defendants petition this Court to accept and answer the certified questions of law from the circuit court as follows:

1.  May the holding in Kessel v. Leavitt, [204 W.Va. 95] 511 S.E.2d 720 (1998), which adopted a cause of action for tortious interference with a parental or custodial relationship, be applied to maintain a cause of action against an adverse child psychiatry expert witness who provides expert testimony in a hearing concerning visitation and custody and who participates in a reunification plan between mother and child pursuant to the orders of the court?

2.  Does a cause of action for tortious interference with a parental or custodial relationship as recognized in Kessel v. Leavitt, [204 W.Va. 95] 511 S.E.2d 720 (1998), exist in favor of a litigant involved in child custody/visitation proceedings against an attorney representing an opposing party in that litigation?

3.  If the tortious interference with a parental/custodial relationship claim is based upon factual issues and/or allegations that were raised and resolved against the litigant in the child custody/visitation proceeding, must the litigant first seek and obtain relief from the judgment entered in the child custody/visitation proceeding with respect to such issue or allegations pursuant to Rule 60 of the West Virginia Rules of Civil Procedure or otherwise as a condition precedent to assert the tortious interference claim?

Circuit Court’s Answer: No.

Grant 5- 0

4.  George B. Wilson v. William Bernet/Vanderbilt University - No. 050279. Defendant petitions this Court to accept and answer the same certified questions of law as in the previous petition.

6.  Charles Edward McComas, Administrator of the Estate of Jason E. McComas v. Dave Tucker, Sheriff of Kanawha County, Administrator of the Estate of Jonathan Scott Hudson; Erie Insurance Company, an insurance company; American Home Assurance Company, an insurance company; AIG Insurance Services, Inc.; and State Farm Mutual Insurance Company - No. 050073. Plaintiff appeals from the circuit court’s order awarding summary judgment in favor of defendant insurance company based upon policy language.

Withdrawn

7.  Brenda DeLauder, et al. v. West Virginia Department of Health and Human Resources Bureau for Child Support Enforcement and West Virginia Division of Personnel - No. 042460. Petitioners appeal from the circuit court’s order affirming the decision of the West Virginia Education and State Employees’ Grievance Board denying petitioners’ grievances.

Refuse 3- 2
[ Albright, C. J. & Starcher, J. ]

8.  State of West Virginia v. Shaun M. Zavetsky - No. 050057. Defendant appeals from his conviction for conspiracy to commit first degree arson following a jury trial. Defendant was sentenced to 1 to 5 years in the penitentiary. Defendant asserts evidentiary and trial errors.

Refuse 4-1
[ Starcher, J. ]

9.  Winnie F. Vandale v. Alex DeSousa, M.D., Hospital Development Co. d/b/a Roane General Medical Clinic, Roane General Hospital Foundation, Inc. d/b/a Roane General Medical Clinic  - No. 050059. Plaintiff appeals from the circuit court’s order granting summary judgment in favor of defendants in this medical malpractice action.

Refuse 5- 0

10.  Rebecca Melton Craig, State Tax Commissioner of the State of West Virginia v. REM Community Options, Inc. - No. 042457. REM Community Options, Inc. appeals the circuit court’s order reversing the decision of the Office of Tax Appeals and upholding the State Tax Commissioner’s assessment of a health care provider business privilege tax.

Grant 4-1
[ Starcher, J. ]

11.  State of West Virginia ex rel. Jimmie Meccya Williams v. William S. Haines, Warden, Huttonsville Correctional Facility - No. 050076. Petitioner appeals the denial of his petition for a post-conviction writ of habeas corpus. He was previously convicted of taking or secreting a child under the age of 16 for an unlawful, improper or immoral purpose, in violation of W.Va. Code § 61-2-14(b).

Refuse 5- 0

12.  Jeremiah "Bart" Morris v. Crown Equipment Corporation, a foreign corporation; and Jefferds Corporation d/b/a Homestead Materials Handling Company, a West Virginia corporation - No. 050079. Plaintiff appeals the circuit court’s orders dismissing his case without prejudice for lack of venue under W.Va. Code § 56-1-1(c).

Accept To Motion Docket

13.  Sam Kapourales v. U.S. Filter Operating Services, Inc., Ltd., an Illinois Corporation - No. 050080. Defendant appeals the circuit court’s order denying a motion to set aside a default judgment.

Refuse 5- 0

14.  Joseph W. McVey v. Roger Pritt, Commissioner, West Virginia Division of Motor Vehicles No. 050081. The DMV Commissioner appeals from the Circuit Court’s order which reversed the Commissioner’s final order on an issue in a driver’s license revocation case. The circuit court held that a prior revocation for driving under the age of 21 with a measurable amount of alcohol in the driver’s system could not be used to enhance the penalty for the present DUI revocation.

Grant 5- 0

15.  State of West Virginia ex rel. Russell Junior Sayers v. Howard Painter, Warden - No. 050089. Petitioner appeals the denial of his third petition for a post-conviction writ of habeas corpus. He asserts that he received ineffective assistance of counsel in his second habeas petition, which addressed serological evidence.

Refuse 5- 0

16.  John Edward Goodwin v. Bayer Corporation, an Indiana corporation; E.I. Dupont de Nemours & Company, a Delaware corporation; White Dodge, Inc. d/b/a Patrick Plaza Dodge, a West Virginia corporation; PPG Industries, a foreign corporation; Rust-Oleum, a foreign corporation; The Sherwin-Williams Company, an Ohio corporation; Motor Car Supply Company, Inc., a West Virginia corporation; and RMS Automotive Paint and Supplies - 050090. Plaintiff appeals the circuit court’s order granting summary judgment to defendants. The court found that plaintiff’s lawsuit was filed after the expiration of the statute of limitations.

Accept To Motion Docket

17.  State of West Virginia v. Brian Gregg - No. 050091. Petitioner appeals his conviction for robbery in the second degree and entering without breaking. Because he was also found guilty under the recidivist statute, petitioner was sentenced to life in prison.

Accept To Motion Docket

18.  State of West Virginia v. Richard W. Tabor - No. 050095. Petitioner appeals his conviction for unlawful assault, for which he was sentenced to 1 to 5 years in prison.

Refuse 5- 0

19.  State of West Virginia ex rel. Alexis Hornbuckle v. Jeff Woods, Municipal Court Judge of the City of Nitro, West Virginia - No. 050106. The Municipal Court Judge of the City of Nitro appeals the Circuit Court of Kanawha County’s order issuing a writ of prohibition to prohibit the Municipal Court from proceeding on a shoplifting case.

Refuse 5- 0

20.  Lena Dawson, as the guardian and next best friend of Rebecca Dawson, a minor v. Vanessa Meadows, a minor, Charles H. Meadows and Judith Meadows, as the guardians and next best friends of Vanessa Meadows, Charles Meadows, an individual, Nationwide Mutual Insurance Company, an out-of-state corporation, and American Modern Home Insurance Company, an out-of-state corporation - No. 050107. Plaintiff appeals an adverse summary judgment ruling. The circuit court held that an insurance policy issued for a manufactured home excludes coverage for negligent entrustment and other negligence with respect to an all-terrain vehicle accident.

Refuse 5- 0

21.  Dunbar Fraternal Order of Police v. City of Dunbar - No. 050111. The City of Dunbar appeals from the circuit court’s order granting summary judgment to the Fraternal Order of Police Lodge #119 on issues surrounding a collective bargaining agreement.

Accept To Motion Docket

22.  Scott Roy and Jena Roy v. Kenneth E. D’Amato, D.O. - No. 050112. This appeal involves the dismissal of a medical malpractice lawsuit on the basis that petitioners did not provide respondent with proper notice of claim pursuant to West Virginia Code §55-7B-6(b). Petitioners sought relief pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure, but their request was denied.

Deferred

23.  Alice Vaughan v. Beulah Massey - No. 050126. Petitioner files a direct appeal from the circuit court’s order which required her to execute a deed to the defendant, Robert Martin, Sr. in exchange for payment of $1,500 pursuant to the agreement which the court believed had occurred before it. The plaintiff below had brought a partition action against petitioner.

Refuse 4-1
[ Starcher, J. ]

24.  James T. Ingram v. Board of Education of the County of Monongalia - No. 050127. Petitioner seeks a review of the circuit court and the West Virginia Education and State Employees Grievance Board which denied petitioner’s grievance under Code Section 18-29-1. Petitioner seeks a reversal of the prior decisions, reinstatement, reimbursement of wages, benefits, interest and seniority.

Refuse 5- 0

25.  In Re: Custody of Minor Child Teila Michaelle P. and Thomas Edward P. v. Jeanie Pizatella - No. 050128. Petitioner files a direct appeal from the circuit court’s order denying paternity testing. The court found that since the respondent had never properly acknowledged paternity, he has never been found to be the father of the minor child. The court also found that the petitioner lacks standing. On appeal, petitioner seeks a reversal of the court’s findings.

Refuse 5- 0

26.  United Bank, Inc. v. Robert C. Blosser, et al. - No. 050129. This is an appeal from two consolidated lawsuits in which a motion for summary judgment was granted to United Bank. Petitioner seeks a reversal of summary judgment, reinstatement of the case, transfer of the case to Boone County and an interpretation of the term "blood relatives".

Accept To Motion Docket