March 2, 2006

1.  In Re Marriage of: Patricia E. Fitzgerald v. Earl L. Fitzgerald - No. 060022. Petitioner presents the certified questions from the circuit court as follows:

QUESTION NO. 1: What portion, if any, of a lump sum Workers’ Compensation permanent total disability award is considered a marital asset?

COURT’S RESPONSE: The Court FINDS that any portion of a lump sum Workers’ Compensation permanent total disability award that represents payments that should have been received during the period of the parties’ marriage are considered a marital asset.

QUESTION NO. 2: If so, what portion, if any, of a lump sum Workers’ Compensation permanent total disability award should be considered an award for pain and suffering?

COURT’S RESPONSE: The Circuit Court adopts the analysis of the Family Court and FINDS that the 25% of the Workers’ Compensation award for pain and suffering is the injured spouse’s separate property.

QUESTION NO. 3: How should the family court, and upon review the circuit court, distribute that portion, if any, of a lump sum Workers’ Compensation permanent total disability award that is considered marital property?

COURT’S RESPONSE: The Court FINDS that the remaining lump sum Workers’ Compensation permanent total disability award would then be subject to equitable distribution as any other marital asset.

QUESTION NO. 4: Is the injured spouse entitled to any reimbursement of part of a lump sum Workers’ Compensation permanent total disability award that was received prior the parties’ separation?

COURT’S RESPONSE: The Court FINDS that the injured spouse is not entitled to any reimbursement unless there is a showing that this lump sum payment has been kept in some segregated account and was not consumed during the marriage. The Court FINDS that the portion of a Workers’ Compensation permanent total disability award that was received prior to the parties’ separation would have been consumed by the parties’ during the marriage and the injured spouse is not entitled to be reimbursed his 25% by the non-injured spouse.

Grant  5 - 0

2.  SER Danita Holyfield v. Dale Humphreys - No. 052957. Petitioner appeals from the circuit court’s order denying her petition for a writ of habeas corpus.

3.  Lynn M. Guinn v. Gregory W. Guinn - No. 052983. Petitioner husband appeals from the circuit court’s order granting respondent wife’s motion to dismiss petitioner’s appeal and finding that the family court did not have jurisdiction to grant petitioner an additional 30 days to file his appeal.

4.  Barbara Lonas v. Helen Yeager Burton - No. 052959. Plaintiff appeals from the circuit court’s order directing a verdict in favor of defendant in this will contest action.

5.  Cpt. Earl F. Legg, Jr. v. Mayor David A. Felinton, and the City of Huntington, and the City of Huntington, WV and the City of Huntington, WV Firefighter’s Civil Services Commission - No. 052964. The City of Huntington appeals from the circuit court’s order reversing a decision of the Fireman’s Civil Service Commission which upheld the City’s decision to spend, without pay, and/or terminate plaintiff for a "substituted-refusal to test" drug test conducted pursuant to a reasonable suspicion. The City seeks a reversal of the circuit court’s order and a reinstatement of the Commission’s decision so that the City may be permitted to terminate plaintiff’s employment.

6.  Ricky Alan Boothe, II and Jennifer Boothe v. Fric "N" Frac Trucking, Inc., Lee Sartin Trucking Co., and Ronald R. Stone and Fric "N" Frac Trucking, Inc., v. National Casualty Company - No. 052965. Plaintiffs appeal from the circuit court’s order awarding summary judgment in favor of the third-party defendant insurer on the issue of coverage.

Accept To Motion Docket

7.  State of West Virginia ex rel. Mary Ann Podelco v. Earl Ray Tomblin, President of the Senate; Robert S. Kiss, Speaker of the House of Delegates; and Office of the Governor of the State of West Virginia; Richard Alker, Executive Director of the West Virginia Ethics Commission (dismissed); Glenn Gainer, the Auditor of the State of West Virginia; John Perdue, Treasurer of the State of West Virginia; Gregory Gray, Clerk of the West Virginia House of Delegates; and Darrell Holmes, Clerk of the West Virginia Senate  - No. 052969. The legislative petitioners appeal from the circuit court’s order denying their motion to quash subpoena as it related to the inquiry into the process by which the Budget Digest is created.

Deferred

8.  David Shelton v. Barbour County Board of Education and Steve Kaufman, Intervenor - No. 052966. Steve Kaufman, the intervenor in a public employee’s grievance case, appeals the circuit court’s order which affirmed the grievance board. The grievance board found that another employee should receive a bus operator position which the Barbour County Board of Education had awarded to Mr. Kaufman.

Refuse 5 - 0

9.  The Town of Winfield, a West Virginia municipal company v. The Putnam County Commission - No. 052967. The Town of Winfield appeals the circuit court’s order which affirmed the decision of the Putnam County Commission. The Commission denied the Town’s petition to annex a portion of Route 34 and 35.

10.  James Robert Evans, Jr. v. Sharon Rose Evans - No. 052968. Petitioner James Evans, Jr. appeals the circuit court’s order reinstating his spousal support obligation and ordering him to pay arrearages which accrued after the family court ordered the payments stopped.

Grant  5 - 0

11.  The City of Charleston v. Karen H. Miller and David Scott Miller, and Karen H. Miller v. The City of Charleston and Mayor Jay Goldman - No. 052972. The City of Charleston appeals the circuit court’s 1) order granting partial summary judgment and finding that an alley behind Karen H. Miller’s building is private property, and 2) order adopting a special commissioner’s recommendations and awarding Mrs. Miller $39,222 in attorneys’ fees.

12.  Carla M. Bennett, Executrix of the Estate of John W. Bennett, deceased v. Premier Farnell Corp. - No. 052973. Plaintiff appeals the circuit court’s order setting aside an order of default.

Refuse 5 - 0

13.  Daniel R. Strahin v. Earl Sullivan and Farmers & Mechanics Mutual Insurance Company - No. 052974. Plaintiff Daniel Strahin appeals the circuit court’s order granting summary judgment in favor of Farmers & Mechanics Insurance Company of West Virginia, Inc. on plaintiff’s Shamblin v. Nationwide claim which had been assigned by the defendant Earl Sullivan. The court found that because a pre-trial Covenant Not to Execute between the plaintiff and the defendant insured meant that the insured’s personal assets were no longer at risk, then there can be no Shamblin claim.

Accept To Motion Docket

14.  Copier Word Processing Supply, Inc. v. Wesbanco Bank, Inc., Doris Hendrickson, Stephen Hendrickson, and Does 1-50 - No. 052977. The circuit court certifies a two-part question concerning the applicability of the continuing tort theory to the statute of limitations for conversion of negotiable instruments, W.Va. Code § 46-3-118(g).

Grant  5 - 0

15.  State of West Virginia v. Richard W. Faircloth - No. 052979. Richard W. Faircloth appeals his conviction for one count of felony torture or malicious killing of an animal, for which he was sentenced to 1 – 3 years in prison.

Refuse 5 - 0

16.  Lonnie T. Campbell, Mark P. Kellam, John Waid, Clark W. Hanson, John Phillips, Jr., Houston J. Mullins, Leon Crookshanks, Damien Crump, Johnnie R. Young, Bob Hager, Arthur Clay, Andy Powell, William Ingles, Dennis White, Jim Moore, and Sam McFerrin v. Mountaineer Testing Laboratories, Inc., a West Virginia corporation; The State of West Virginia Department of Transportation, Division of Highways; Nationwide Mutual Fire Insurance Company, an Ohio corporation; Nationwide Mutual Insurance Company, an Ohio corporation; and John Doe Manufacturers - No. 052984. Plaintiffs appeal: 1) the circuit court’s order granting summary judgment to defendant the WV Department of Transportation, Division of Highways; and 2) the circuit court’s order granting summary judgment to defendant Nationwide Mutual Insurance Company.

Accept To Motion Docket

17.  James A. Riley v. The City of Wheeling - No. 052975. James Riley filed suit alleging wrongful termination with the water department of the City of Wheeling, as well as the mental and emotional harm inflicted upon Mr. Riley by the City’s conduct over a nine year period. The court granted summary judgment to the City on the basis that Mr. Riley has already lost these matters when he appealed to the Municipal Civil Service Commission and lost.

Refuse 5 - 0

18.  KKB, LLC v. Fifth Third Bank - No. 052867. Petitioner files an appeal from the circuit court’s order dismissing the action by granting summary judgment in favor of Fifth Third bank. The circuit court found that KKB "did specifically negotiate" Agreement ¶5; that the parties intended Agreement ¶5 as an "alternative to performance"; and that KKB "should not have agreed to a specific liquidated damages clause if it wanted different relief upon the seller’s default."

Accept To Motion Docket

19.  West Virginia Department of Transportation/Division of Highways v. Courtwright Management, Inc., et al. - No. 052989. Petitioner appeals the court’s denial of attorneys’ fees, litigation expenses and costs in a condemnation action where the payment into Court by the Department of Highways as the estimated fair value of approximately 5 acres of commercial property located near I-79 at Bridgeport, West Virginia was $204,000 almost 250% less than the $504,490 the jury awarded at trial and 200% less than the Commissioners’ award of $424,829 before trial.

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