May 11, 2006
1. Phillip Barker and Cara Cenetelli, his wife, Aaron Koch and John H. Rowland v. Norseman Environmental, Inc., C&K Industrial Services, Inc. and Koppers, Inc. - No. 060361.
Defendant presents this petition seeking this Court’s answer the circuit court’s certified question as follows:
CERTIFIED QUESTION:
“Whether the view that the proper test for determining the applicability of the West Virginia Workers’ Compensation Act in this case is whether, at the commencement of the assignment of these plaintiffs/employees to work in West Virginia, the employer C&K knew or anticipated that the plaintiffs would work more than 90 consecutive days in West Virginia regardless of whether they actually did work 90 consecutive days or not, and that a jury must decide if such knowledge or anticipation existed.”
CIRCUIT COURT’S ANSWER:
The circuit court is of the view that the proper test for determining the applicability of the West Virginia Workers’ Compensation Act in this case is whether, at the commencement of the assignment of these plaintiffs/employees to work in West Virginia, the employer C&K knew or anticipated that the plaintiffs would work more than 90 consecutive days in West Virginia regardless of whether they did actually work 90 consecutive days or not, and that a jury must decide if such knowledge or anticipation existed at the commencement of their assignment in West Virginia.
Refuse 5 - 0
2. State of West Virginia v. Angela Rose Nelson - No. 060592.
The State of West Virginia appeals from the circuit court’s order certifying a question to this Court following its dismissal of an indictment for “child neglect” on the sufficiency of the pleadings. The State seeks a reversal of the dismissal of the indictment and a remand for further proceedings.
Refuse 5 - 0
3. Ronda Titchnell and Paul Titchnell v. The West Virginia Department of Transportation Division of Highways - No. 060538. Defendant Division of Highways appeals from the circuit court’s order denying its motion for summary judgment and finding that insurance coverage was available to plaintiffs because the “duty to inspect” was not specifically excluded by Endorsement #7 to the State’s insurance policy and that the “public duty doctrine” did not apply to the Division of Highways. The circuit court entered an order pursuant to Rule 54(b) of the West Virginia Rules of Civil Procedure staying the proceedings pending an opportunity for defendant to appeal the circuit court’s rulings.
Refuse 5 - 0
4. Leslie Crabtree Wells v. The West Virginia Department of Transportation, Division of Highways - No. 060542. Defendant Division of Highways appeals from the circuit court’s order finding that insurance coverage was available to plaintiff because the duty to inspect is not specifically excluded from the coverage by the language of Endorsement #7 to the State’s general liability insurance policy and that the “public duty doctrine” did not apply to grant immunity for the alleged negligent acts of defendant where there was insurance available. The circuit court entered an order pursuant to Rule 54(b) of the West Virginia Rules of Civil Procedure staying the proceedings pending an opportunity for defendant to appeal the circuit court’s rulings.
Refuse 5 - 0
5. State of West Virginia v. Raymond Eugene Hoak - No. 060543. Defendant appeals from the circuit court’s order denying his motion to prohibit the State from trying him on charges of 1st or 2nd degree murder based upon an implied acquittal when defendant’s first trial ended in a mistrial when the jury was unable to reach a verdict. Defendant asks this Court to issue an order directing the State to dismiss the charge of murder in the 1st and 2nd degrees.
Refuse 3- 2
( Starcher, J., Albright, J. )
6. West Virginia Land Title Company and Linda Jane Haines v. Pamela K. Kimble and Sharon R. Combs - No. 060554. Defendants appeal from the circuit court’s order granting partial summary judgment in favor of plaintiffs and declaring that certain real estate is owned by the decedent’s estate.
Refuse 5 - 0
7. West Virginia Land Title Company, a West Virginia Corporation, and Linda Jane Haines v. Pamela K. Kimble and Sharon R. Combs - No. 060759. Plaintiffs appeal from the circuit court’s order granting summary judgment in favor of defendant Kimble as to liability.
Refuse 5 - 0
8. State of West Virginia v. Larry Franklin Wert - No. 060299. Larry Franklin Wert appeals his conviction for 6 counts of sexual abuse in the first degree, 3 counts of sexual assault in the third degree, 1 count of sexual abuse by a custodian, 3 counts of incest, and 2 counts of sexual abuse by a parent.
Refuse 3- 2
( Starcher, J., Albright, J. )
9. State ex rel. Johnnie Jenkins v. Thomas McBride, Warden, Mount Olive Correctional Complex - No. 060388. Johnnie Jenkins appeals the denial of his second petition for habeas corpus. He asserts ineffective assistance of counsel in his prior habeas case. He was previously convicted of first degree murder with a recommendation of mercy.
Refuse 5 - 0
10. Glenn Bland and Beverly Bland, his wife; Gar Bland and Velma Bland, his wife; I. David Warner and Anita Warner, his wife; Janet Warner; Gae Harper and Edsel Harper, her husband; Hope Day; Foster Bland and Marian Bland, his wife; Steven Bland and Ruth Bland, his wife v. John Frank McLucas, Ethel Virginia McLucas, Kenneth Wayne McLucas, Donald Dale McLucas, and Ronald Dean McLucas - No. 060557. The defendants appeal the circuit court’s order granting judgment as a matter of law in favor of the plaintiffs in a boundary dispute case.
Refuse 5 - 0
11. Patty Kalany and Robert Kalany v. Herman Campbell, individually and d/b/a Irene’s Bar - No. 060560. Defendant Herman Campbell, individually and d/b/a Irene’s Bar, appeals from: 1) a judgment upon jury verdict finding that he engaged in common law retaliatory discharge of plaintiff Patty Kalany; and 2) the court’s award of plaintiff’s attorney’s fees and costs under the Human Rights Act, where the defendant had been granted judgment as a matter of law on plaintiff’s Human Rights Act claims and the plaintiff prevailed on a common law claim.
Grant 4 - 1
( Starcher, J.)
12. State of West Virginia v. Marty L. Browning - No. 060561. Marty Browning appeals his conviction for three counts of sexual abuse in the first degree and three counts of sexual abuse by a parent.
Refuse 4 - 1
( Albright, J. )
13. State of West Virginia v. Sheena Nicole S. - No. 060574. A juvenile appeals the dispositional order which placed her in the custody of the Department of Juvenile Services for placement at the Industrial Home for Youth for not more than 1 year.
Refuse 5 - 0
14. State of West Virginia v. Jonathan Hall - No. 060576. Jonathan Hall appeals the imposition of any punishment for his conviction of underage drinking.
Refuse 5 - 0
15. Julie A. Metz v. Concord College - No. 060577. Plaintiff Julie A. Metz appeals from an adverse jury determination and the circuit court’s denial of her motion for new trial. She asserts that the court incorrectly applied the public duty doctrine to her premises liability case.
Accept To Motion Docket
[ Davis, C.J. Disqualified ]
16. State of West Virginia v. Amy Beth Stewart - No. 060579. Amy Beth Stewart appeals from her sentencing order and the order denying her motion for reconsideration/reduction of sentence. Based upon her conviction after a guilty plea, she was sentenced to two consecutive 1 to 5 year terms for conspiracy to commit grand larceny and conspiracy to commit burglary.
Refuse 4 - 1
( Starcher, J.)
17. Branch Banking and Trust Company, previously known as Farmers and Merchants Bank of Keyser, West Virginia, F & M Bank - West Virginia and F & M Bank-Keyser, Inc., on its behalf and on behalf of Raymond C. Mabin and Frances E. Mabin, “former owner” on whose behalf this suit is being instituted as set forth under W.Va. Code § 11A-4-5 v. Martin Piehl and Paula Piehl and Eric R. Chapman and Veronica S. Chapman - No. 060593. Defendants Martin and Paula Piehl appeal the circuit court’s order granting plaintiff BB&T’s motion for summary judgment. The court set aside a tax deed to the Piehls, finding that BB&T, as lien holder on the property in question, had not received notice of the tax sale.
Refuse 5 - 0
18. In the Matter of the Adoption of Jamison Nicholas C. by Charles M. and Twila M. - No. 060595. The WV Department of Health and Human Resources appeals from the circuit court’s order granting a child post-adoption assistance in the form of a Medicaid card.
Grant 3- 2
( Starcher, J., Albright, J. )
19. Steven E. Taylor v. F. Douglas Stump, Commissioner - No. 060616.
This is an administrative appeal from a Final Order of the Commissioner of the W. Va. Division of Motor Vehicles wherein the Commissioner affirmed an earlier decision and ordered the revocation of petitioner’s driving privileges for a period of one year for refusing to submit to the designated secondary chemical test.
Refuse 5 - 0
20. Concerned Citizens of Whiting’s Neck, et al. v. Berkeley County Planning Commission and PVW Enterprises, LLC - No. 060617. Petitioners seek review of the circuit court’s Order holding that the developer had sufficiently complied with the requirement that a homeowners association be established to operate and maintain the clustered septic systems as a condition of final plat approval. Petitioners also seek review of the denial of their request for a writ of mandamus.
Refuse 5 - 0
21. John Barbina v. Charles Curry, et al. - No. 060618. Petitioner appeals the circuit court’s granting of summary judgment in favor of respondents. The case involves a civil suit arising out of an infant being sexually abused by Charles Curry and the abuse being negligently reported, as well as her being delayed the receipt of services for years due to a systemic neglect.
Accept To Motion Docket
22. State of West Virginia ex rel. Troy C. Spears v. Howard Painter, Warden - No. 060619. Petitioner appeals the denial of his Writ of Habeas Corpus. Petitioner was convicted and sentenced for Aggravated Robbery.
Refuse 5 - 0
23. State of West Virginia ex rel. Carroll Eugene Humphries v. Thomas McBride, Warden - No. 060626. Petitioner appeals the circuit court’s denial of his Writ of Habeas Corpus request. Petitioner was convicted by a jury on July 30, 1999, of one count of felony offense of accessory before the fact to murder of the first degree, and one count of the felony offense of conspiracy to commit murder.
Accept To Motion Docket
24. Pat J. White v. Logan County Board of Education - No. 060627. Petitioner appeals from the circuit court’s order upholding the decision of the Grievance Board denying petitioner’s grievance.
Refuse 5 - 0
25. State of West Virginia v. Doldridge Harrison, No. 060641. Defendant appeals following his conditional guilty plea to shoplifting third offense. Defendant reserved the right to appeal the two issues set forth below.
Refuse 5 - 0
26. State of West Virginia v. Michael W. Fiske, No. 060642. Defendant appeals from the circuit court’s amended sentencing order entered following defendant’s Alford plea.
Refuse 3- 2
( Starcher, J., Albright, J. )
27. Terry R. Mace and Donald Mace v. Ford Motor Company, a Delaware Corporation; Liberty Mutual Insurance Company, Inc., a Massachusetts Corporation; and Bert Wolfe Ford, Inc., a West Virginia Corporation - No. 060643. Plaintiffs appeal from the circuit court’s order granting summary judgment in favor of the defendant insurance company in this action for the negligent spoliation of evidence.
Grant 5 - 0
28. David A. Harrah v. Smith, Cochran and Hicks, PLLC - No. 060646. Plaintiff appeals from the circuit court’s order granting partial summary judgment in favor of defendant both in terms of plaintiff’s complaint against defendant and in favor of defendant on its counterclaim against plaintiff.
Refuse 5 - 0
29. Donald G. Sapp, Sr. and all others similarly situated v. Rost Enterprises, LP, a Pennsylvania Corporation; and Great American Insurance Company, an Ohio Corporation - No. 060658. Defendant insurer appeals from the circuit court’s order granting summary judgment in favor of plaintiffs. The circuit court concluded that both the Labor and Material Payment Bond and the Wage Payment and Collection Surety Bond issued by defendant insurer to defendant employer covered the liquidated damages awarded to plaintiffs for alleged wage violations pursuant to West Virginia Code §21-5-4(e).
Refuse 4 - 0
[ Davis, C.J. Disqualified ]
30. State of West Virginia v. James Lee Tooley - No. 060648. James Lee Tooley appeals his convictions for first degree murder with a recommendation of mercy [under the felony murder rule], burglary, and conspiracy to commit burglary.
Refuse 4 - 1
( Starcher, J.)
31. Grant County Commission and Grant County Airport Authority v. John Waddy and Phyllis Waddy - No. 060659. Defendants John and Phyllis Waddy appeal from the circuit court’s order which held that the plaintiffs Grant County Commission and Airport Authority had not abused their discretion in taking the Waddys’ real estate by condemnation.
Refuse 5 - 0
32. John H. Waddy v. Randall W. Turner - No. 060757. Defendant appeals after an adverse jury verdict in a suit alleging that defendant damaged plaintiff’s property. Defendant asserts the circuit court erroneously excluded certain photographs.
Refuse 5 - 0
33. Sarina L. Davis, Administratrix DBN of the Estate Of Elizabeth K. Westen, deceased v. Mound View Health Care, Inc. - No. 060669. Plaintiff appeals the circuit court’s order dismissing her medical malpractice/wrongful death lawsuit for failure to adhere to the pre-filing requirements of the Medical Professional Liability Act.
Accept To Motion Docket
34. Lyon Chapman and Scott Chapman, individually and as members of the Capon Bridge Resort Property Owners Association, and New Testament Faith Assembly of God Church v. Sylvia Catron - No. 060701. The defendant appeals from an adverse summary judgment and contempt ruling in a case involving a land dispute.
Accept To Motion Docket
35. Stephen Antolini, Roger McClanahan, and Mickey Sylvester v. West Virginia Division of Natural Resources - No. 060726. Three state employees appeal from the circuit court’s order dismissing their grievance appeal. The court found their claims were barred by res judicata.
Accept To Motion Docket
36. The Board of Education of the County of Kanawha, a public corporation v. West Virginia Board of Education, a public corporation, and Dr. David Stewart, as Superintendent of Schools of the State of West Virginia - No. 060727. The Kanawha County School Board appeals the circuit court’s order granting summary judgment in favor of the West Virginia Board of Education and the State Superintendent. The Kanawha Board unsuccessfully sought to have its local share, for purposes of computation of the state funding formula, reduced by the amount of the county’s regular tax levy which is statutorily required to go the county’s public library system.
Grant 5 - 0
37. Upshur County Commision/Upshur County Fire Board v. Wendy Higgins and Timothy Higgins - No. 060729. Wendy and Timothy Higgins appeal from the circuit court’s order affirming a magistrate court’s orders and requiring them to pay $210 in delinquent county fire service fees. The Higgins assert that the county fire service fee ordinance is unconstitutional and illegal.
Refuse 5 - 0
38. Marilyn S. Pierce v. Lowe’s Home Centers, Inc. and Greg Layfield - No. 060673. Petitioner appeals the circuit court’s denial of her Motion for Reinstatement after a jury found for Ms. Pierce as to her public policy claim and for Lowe’s as to the gender discrimination claim. The court held that there was no direct legal authority to grant reinstatement and that the remedy sought would be inappropriate in these circumstances.
Refuse 5 - 0
39. Tommie Holley, Sr. and Sandra Holley v. Mary Rose Meffe and Dennis H. Bernest - No. 060700. Petitioner seeks a new trial on the issue of damages following a jury verdict of $50,000 apportioning only 30% fault to the respondent. Petitioner argues that the verdict is contrary to the evidence and should be reversed. Petitioner also seeks costs.
Refuse 5 - 0
40. James R. McClure, Sr., Charlotte McClure, James McClure, Jr. and Jeremy McClure v. Lindsay Ray and Frank Ray- No. 060730. Petitioner and his family filed civil suit to recover damages for injuries sustained in a motor vehicle accident in which the respondent rear-ended James McClure. The circuit court granted respondent judgment as a matter of law holding that the plaintiffs had failed to make out a prima facie case.
Refuse 4 - 1
( Starcher, J.)
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