March 4, 2010

1.  State ex rel. Ronald L. Wooten, Director, and the West Virginia Office of Miner’s Health, Safety and Training v. The Coal Mine Safety Board of Appeals and William A. Coulson - No. 091915. Petitioners appeal from the circuit court’s order granting the respondent Board’s motion to dismiss. Petitioners sought a writ of prohibition to prohibit the Board from exceeding its legitimate powers by imposing in a probable cause order a requirement to "make application" to the Board prior to temporarily suspending a miner’s certifications pursuant to Title 37, Series 2 of the Code of State Regulations. Petitioners seek a reversal of the circuit court’s order. Grant  5- 0

2.  State of West Virginia v. George E. Smith, II - No. 091897. Defendant appeals from his sentencing following his guilty plea to third offense DUI. Defendant asserts that his sentence should have been suspended for home confinement with either a SCRAM bracelet or MEMS Unit. Refuse  5- 0

3.  State ex rel. Brandon Green v. David Ballard, Warden - No. 091898. Petitioner appeals from the circuit court’s order denying his petition for a writ of habeas corpus. Petitioner seeks a reversal and a remand for a new trial and/or a full evidentiary hearing on his habeas claims. Refuse  5- 0

4.  Clifford Merritt v. Thomas McBride, Warden - No. 091900. Petitioner appeals from the circuit court’s order denying his petition for a writ of habeas corpus. Petitioner alleges a denial of his 14^th Amendment rights, prosecutorial misconduct, and ineffective assistance of counsel. Petitioner seeks a reversal of the circuit court’s order and a remand of this action for additional proceedings. Refuse  5- 0

5.  State of West Virginia v. Randall Mack Hash - No. 091907. Defendant appeals following his guilty plea to transporting a Schedule II controlled substance. Pursuant to defendant’s plea agreement, he was allowed to pursue this appeal if given a sentence of incarceration. Defendant was sentenced to 1 to 15 years. Accept to Motion Docket

 6.  Clayton Brown, as guardian for and on behalf of Clarence Brown v. Genesis Healthcare Corporation; Genesis Healthcare Holding Company II, Inc.; Genesis Health Ventures, Inc. of West Virginia; Genesis Eldercare Corporation; Genesis Eldercare Network Services, Inc.; Genesis Eldercare Management Services, Inc.; Genesis Eldercare Rehabilitation Services, Inc.; Genesis Eldercare Staffing Services, Inc.; Genesis Eldercare Hospitality Services, Inc.; Marmet SNF Operations, LLC; 1 Sutphin Drive Associates, LLC; 1 Sutphin Drive Operations, LLC; Genesis WV Holdings, LLC; Glenmark Associates, Inc.; Marmet Health Care Center, Inc. n/k/a MHCC, Inc.; Canoe Hollow Properties, LLC; Robin Sutphin and Shawn Eddy; John Does 2 through 10; and Unidentified Entities 3 through 10 - No. 091901. Plaintiff Clayton Brown appeals the circuit court’s August 25, 2009 order dismissing Defendants Marmet Health Care Center, Inc. and Robin L. Sutphin pursuant to a mandatory arbitration provision in a contract; and (2) the circuit court’s May 15, 2009, order dismissing Defendant Canoe Hollow Properties, Inc. Plaintiff argues, inter alia, that the arbitration provision is not enforceable and that the court failed to accept as true the allegations in the plaintiff’s Amended Complaint. Grant  5- 0

7.  Cassius H. Toon v. Public Service Commission of West Virginia, a statutory agency of the State of West Virginia- No. 091912. Cassius H. Toon appeals the Circuit Court’s order affirming the Public Employee Grievance Board’s order denying his grievance. Inter alia, he alleges discrimination because in certain years other employees in his division were given salary increases but he received smaller or no increases. Refuse  5- 0, [Workman, J. Disqualified], [Judge Hatcher sitting by temporary assignment]

8.  Chris E. Jarrett v. West Virginia American Water Company, a West Virginia corporation; American Water Works Company, Inc., a Delaware corporation; and American Water Works Service Company, Inc.; and American Water Works Company, Inc., a Delaware corporation, Counterclaim Plaintiff v. Christ E. Jarrett, Counterclaim Defendant - No. 091913. West Virginia American Water Company, American Water Works Company, Inc., and American Water Works Service Company, Inc. appeal the circuit court’s summary judgment order ruling that these companies violated the W.Va. Wage Payment and Collection Act by not timely paying Chris E. Jarrett a distribution under the companies’ 2004 Long Term Incentive Plan.
Refuse  5- 0

9.  Edith Nezan, in her capacity as Personal Representative of the Estate of Margaret O’Brien v. Aries Technologies, Inc., and Shashi Sanwalka, in his capacity as Legal Representative of the Estate of Aditya Roy Sanwalka - No. 091916. Plaintiff Edith Nezan appeals the Circuit Court of Kanawha County’s order granting the Motion to Dismiss of Defendants Shashi Sanwalka and Aries Technologies, Inc. The court ruled that it lacks personal jurisdiction pursuant to the Long Arm Statute and federal due process and, as an alternate basis, dismissal is appropriate under the forum non conveniens statute.  Grant  4- 1, [Judge Hustead] - [Chief Justice Davis Disqualified; Judge Hustead sitting by temporary assignment]

10.  Frenchie Hess, Jr. v. West Virginia Division of Corrections - No. 091914. The Defendant West Virginia Division of Corrections files an interlocutory appeal from the circuit court’s order denying its motion to dismiss. The motion to dismiss asserted qualified immunity and that plaintiff failed to exhaust his prison remedies before filing a negligence action. Grant  5- 0

The Circuit Court certifies the following question: Where a plaintiff lender seeks to recover a debt on a promissory note, does the maker of the promissory note have standing to assert, as a defense and counterclaim, a tort claim of fraud in the inducement, on the basis that the maker relied upon the oral promise of the lender (that the lender knew or should have known would not be fulfilled), where the lender claims that it is relevant that the promise made was for the benefit of a third party, but where the counterclaimaint asserts that it is the deceit by false promise, not the nature of the promise, which gives rise to standing in a tort claim of fraudulent inducement.  Circuit Court’s Answer: Yes. Grant  4- 1, [Benjamin, J.]

12.  B.A. McClure and Cheryl McClure v. City of Hurricane and City of Hurricane Sanitary Stormwater Board - No. 100006. The City of Hurricane and the City of Hurricane Sanitary Stormwater Board appeal the circuit court’s order granting summary judgment in favor of plaintiffs B.A. and Cheryl McClure on plaintiffs’ declaratory judgment action. The court ruled that a stormwater management ordinance does not apply to the residential subdivision that plaintiffs are developing. Accept to Motion Docket

13.  State of West Virginia v. Michael Todd Cox - No. 100012. Michael Todd Cox appeals his conviction for child abuse by a custodian resulting in death of a child, and the imposition of a life sentence under the recidivist statute. He asserts nine assignments of error including multiple assertions of evidentiary error, instructional error, insufficiency of the evidence, and cumulative error. Refuse  5- 0

14.  Nancy Jamison v. The Board of Education of the County of Monongalia - No. 091902. Petitioner Nancy Jamison appeals from a August 27, 2009, Order of the Kanawha County Circuit Court which affirmed the denial of the employee grievance by an Administrative Law Judge. Ms. Jamison filed her grievance pursuant to West Virginia Code §6C-2-1 in order to seek reimbursement for travel expenses during the 2006-2007 and 2007-2008 school years. Grant  4- 0, [Workman, J. Disqualified]

15.  State of West Virginia v. Kurt M. Ray - No. 091905. Petitioner Kurt M. Ray appeals from the sentence given by the Brooke County Circuit Court following his pleas of guilty to Threats to Kidnap, Kidnapping, Burglary, Wanton Endangerment and Assault during the commission of a Felony. Petitioner argues that his cumulative sentence, which gives him a life sentence with eligibility for parole after service of nineteen years and three months, is Constitutionally disproportionate to the facts of the case. Refuse  5- 0

16.  State of West Virginia v. Josh Lee Hedrick - No. 100014. Petitioner Josh Lee Hedrick appeals from the Grant County Circuit Court’s Order which upheld his conviction for Interfering with a Lawful Fisherman in violation of West Virginia Code §20-2-2(A). Petitioner was originally convicted of the misdemeanor offense in Magistrate Court. Accept to Motion Docket

17.  State of West Virginia v. Jon Karl Baldwin - No. 100017. Petitioner Jon Karl Baldwin appeals from his conviction, following a jury trial, of Felonious Obtaining Money or Property by Fraudulent Pretense Where Common Scheme Exists, under West Virginia Code § 61-3-24d. Petitioner also appeals the denial of his post verdict motions by the Raleigh County Circuit Court. Accept to Motion Docket