November 12, 2009
1. Danny L. Frye v. Superior Highwall Miners, Inc., a Delaware corporation; Terex Corporation, a Delaware corporation - No. 091157. Defendants appeal from an adverse jury verdict in this action for age and disability discrimination. The jury awarded plaintiff $1.5 million in punitive damages in addition to compensatory damages. Defendants assert that they were entitled to judgment as a matter of law and that their constitutional right to due process was violated in the punitive damage award. Defendants ask that their petition for appeal be granted and that they receive full appellate review. Accept to Motion Docket
2. Christian and Elizabeth Harper, on their own behalves and on behalf of those similarly situated v. Jackson Hewitt, Inc. - No. 091524. The United States District Court for the Southern District of West Virginia, Huntington Division, presents the following questions for certification to this Court:
1. "Does a tax preparer who receives compensation, either directly from the borrower or in the form of payments from the lending bank, for helping a borrower obtain a refund anticipation loan meet the statutory definition of a credit services organization, or "CSO," (W.Va. Code § 46A-6C-2(a)), and do the borrowers in such a transaction meet the definition of a buyer (id. § 46A-6C-1(1))?
2. Is the appropriate limitations period for actions alleging violations of the CSO statutes (id. § 46A-6C-1 et seq.) and the statutory prohibition on unfair or deceptive acts or practices (id. § 46A-6-104) four years under West Virginia Code § 46A-5-101(1), or one year under the general limitation period in West Virginia Code § 55-2-12?
3. Are the contractual agency disclaimers in the refund anticipation loan applications enforceable under West Virginia law?
4. Is a tax preparer who helps a customer obtain a refund anticipation loan in exchange for compensation an agent under West Virginia law?" Grant 4- 1, Ketchum
3. Shirley White, Cathy Dennison, and Jenny L. Tyler, on behalf of themselves and a class of others similarly situated v. Wyeth, f/k/a American Home Products, d/b/a Wyeth-Amherst Laboratories, Dannemiller Memorial Education Foundation, and Ketchum, Inc. - No. 091479.
Defendants Wyeth and Ketchum, Inc. file a petition for review of the certified question issued by the circuit court, as follows:"Does the ‘as a result of’ language in Section 46-6-106(a) of the West Virginia Consumer Credit and Protection Act require a plaintiff, in a private cause of action under the Act, to allege and prove that he or she purchased a product because of and in reliance upon an unlawful deceptive act?"
The circuit court answered this question in the negative and found that plaintiffs were not required to allege and prove that they purchased hormone replacement therapy drugs because of or in reliance upon a deceptive practice of defendant Wyeth. Grant 4- 0, Workman disqualified
4. State of West Virginia v. Mark Gillman - No. 091317. Defendant was convicted of second degree murder with a recommendation of mercy. He challenges the sufficiency of the evidence, the failure to suppress his statement, issues related to jury selection, and an allegation that the prosecutor made misleading comments. Defendant seeks a reversal of his conviction and such other relief to which he may be entitled under the circumstances. Grant 5- 0
5. State of West Virginia ex rel. Jennifer Baker, et al. v. Morgan County War Memorial Hospital, by and through Morgan County War Memorial Hospital Board of Directors and John H. Borg and Valley Health System, Inc. - No. 091319. Defendants appeal from the circuit court’s order granting partial summary judgment in favor of plaintiffs on their claim for termination of a defined benefit pension plan. The circuit court ordered the distribution of the residual assets of the pension plan to the plaintiff participants after all liabilities of the plan have been satisfied. The circuit court directed entry of the Final Order as to the plan termination to allow its order to be appealed to this Court seeing no just reason for delay on the issue of plan termination. Defendants request that this Court accept their petition for appeal pursuant to Rule 54(b) of the West Virginia Rules of Civil Procedure as this is an appeal from a liability judgment and the distribution of the surplus is mostly a ministerial act within the meaning of C&O Motors, Inc. v. West Virginia Paving, Inc., 223 W.Va. 469, 677 S.E.2d 905 (2009). Grant 5- 0
6. David Kokochak v. The West Virginia State Lottery Commission - No. 091376. The State Lottery Commission appeals from the circuit court’s order finding Rule 179-7-2.2c of the West Virginia Code of State Rules invalid and granting respondent’s motion for summary judgment. The State Lottery Commission seeks a reversal of the circuit court’s order. Grant 5- 0, consolidate with 091514
7. In the matter of: Parkersburg BTO Elks Lodge # 198 v. The West Virginia State Lottery Commission - No. 091514. Petitioner appeals from the circuit court’s order affirming the State Lottery Commission’s decision to deny petitioner a limited video lottery license. Petitioner seeks a reversal of the circuit court’s decision with directions that the Lottery Commission issue the appropriate license to petitioner. Grant 5- 0, consolidate with 091376
8. Bruce M. Clark v. Cecelia L. Clark - No. 091331. Petitioner wife appeals from the circuit court’s order affirming the final modification order addressing spousal support. Petitioner wife sought to increase spousal support and sought an award of her attorneys’ fees and costs. Petitioner challenges the family court’s termination of spousal support and denial of an award of attorneys’ fees and costs and challenges the circuit court’s denial of her appeal of those rulings. Refuse 4- 1, Workman
9. Ford Motor Credit Company v. West Virginia Human Rights Commission and Nabil Akl - No. 091224. Ford Motor Credit Company appeals the order of the W.Va. Human Rights Commission adopting its ALJ’s findings and conclusions that Nabil Akl had been subjected to ethnic discrimination and constructive discharge. Grant 5- 0
10. Linda Young v. Bellofram Corporation, d/b/a Marsh Bellofram Corporation, and Joseph Colletti - No. 091249. Defendants Bellofram Corporation d/b/a Marsh Bellofram Corporation and Joseph Colletti appeal the circuit court’s decision that they had committed age and gender discrimination and wrongful termination of plaintiff Linda Young. Accept to Motion Docket
11. State of West Virginia ex rel. James Estep v. Thomas McBride, Warden, Mount Olive Correctional Complex - No. 091264. James Estep appeals the denial of his omnibus post-conviction petition for habeas corpus stemming from his previous convictions for First Degree Murder without a recommendation of mercy and Nighttime Burglary. He asserts ineffective assistance of trial counsel, that the court erred by failing to suppress his statements because of a prompt presentment violation, erroneous admission of gruesome photographs, and erroneous jury instructions on the issue of parole eligibility. Refuse 5- 0
12. City National Bank of West Virginia v. Mountaineer Capital, L.P. and West Virginia Capital Management, L.L.C. - No. 091431. The circuit court certifies the following question:
Where (1) a limited partnership agreement between the parties provides that the payout of the value of an investment cannot and will not be determined until a date certain in the future, (2) evidence of any valuation at any time prior to the future date provides on a view of "paper" profits or losses, (3) all discretion to invest is vested solely in the general partner defendant, and (4) limited partners, such as the plaintiff, have no discretion in regard to either the valuation or selection of an investment, is the interim assigned value of the investment, where correct or not, of any relevance under West Virginia Rules of Evidence 401-403 to the determination of an action based primarily on allegations of improper and misleading interim valuations?
Circuit Court’s Answer: No. Accept to Motion Docket
13. In re the Marriage of Karen L. Hoylman and Michael A. Snedegar - No. 091350. Michael A. Snedegar appeals the circuit court’s order which denied an appeal from the family court’s equitable distribution order. Accept to Motion Docket
14. State of West Virginia v. Richard Hayhurst, Jr. - No. 091351. Richard Hayhurst, Jr., appeals the circuit court’s order denying his motion for reconsideration of sentence. He was sentenced to 1 to 10 years for his conviction upon guilty plea to Aiding in Concealing Stolen Goods. He seeks probation and alternate sentencing. Refuse 5- 0
15. Par Electrical Contractors, Inc. v. Richard Wayne Bevelle and The West Virginia Human Rights Commission - No. 091329. Par Electrical Contractors, Inc. appeals the circuit court’s order affirming the decision of the W.Va. Human Rights Commission. The Commission adopted its ALJ’s findings and conclusions that Richard Wayne Bevelle had been subjected to racial discrimination and constructive discharge Grant 5- 0
16. Jackie Lee Falls, Gale L. Jackson, et al. v. Emmett Kirby, John Kirby, et al. - No. 091387. Shirl Montgomery appeals the portion of the circuit court’s April 28, 2009, order which denied his motion for refund of two deposits he made to purchase real property. Refuse 5- 0
17. Mary Nelson et. al. v. Boone County Board of Education, - No. 091389. Petitioners appeal the circuit court’s order affirming the grievance board’s decision that petitioners were not subjected to discrimination and favoritism. Refuse 4- 0, Workman disqualified
18. Dawn M. H. o/b/o Dakota T. S. v. Roger D. S. - No. 091390. Roger Dale Sigmon, II appeals the circuit court’s order denying a petition for appeal from a family court domestic violence protective order. Refuse 5- 0
19. Delbert L. Wallo v. Capital One Bank - No. 091403. Delbert L. Wallo appeals from an Order of the Monongalia County Circuit Court dated August 14, 2009, in which the Court denied his Motions for Judgment Notwithstanding the Verdict and Request for New Trial, following a jury verdict in favor of Capital One. Refuse 5- 0
20. State of West Virginia v. Willie Sharp - No. 091408. Petitioner Willie Sharp was convicted of one count of Delivery of a Controlled Substance and sentenced to two to thirty years in prison. On appeal, Mr. Sharp alleges that there is insufficient evidence to support a conviction. He also states that the lower court allowed inappropriate references to a prior criminal record while in the presence of the jury. Grant 3-2 (Workman, McHugh)
21. State ex rel. Eugene Blake v. Thomas McBride, Warden - No. 091411. Petitioner Eugene Blake appeals the Fayette County Circuit Court’s denial of his Petition for Writ of Habeas Corpus which he filed to challenge his extradition to Ohio. Petitioner is seeking reversal and remand to Order Governor Manchin to demand his return to West Virginia upon termination of his Ohio Prosecution. Refuse 5- 0
22. In Re: Cameron H. - No. 091523. The West Virginia Department of Health and Human Resources appeals from an order of the Tyler County Circuit Court placing the juvenile in the Department’s custody for placement at the Summit Academy in Herman, Pennsylvania. The Department seeks a remand in order to convene a multi-disciplinary treatment team to determine the juvenile’s treatment needs and the best placement. Accept to Motion Docket
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