| 1. |
Jason Huber No. 992995 Grant 5-0 |
Petition for a Writ of Mandamus in SER American Civil Liberties Union of West Virginia v. Honorable Andrew MacQueen, III, Judge, No. 992995. Petitioner asserts unreasonable delay in issuing a ruling. The underlying matter has been pending for a decision since April 1997. |
| 2. |
Ancil Ramey Grant 5-0 |
Motion to Modify Stay in Johnny Linville v. M. Timothy Crum. The respondent seeks a modification of the stay in this matter arising out of the municipal elections in Kermit. It is argued that the resolution of election disputes should be expedited. |
| 3. |
Rocco S. Fucillo No. 993006 Grant 5-0 |
Petition for Writ of Mandamus in SER W.Va. Department of Health and Human Resources v. Honorable George Hill, Judge, No. 993006. Petitioner seeks Writ of Mandamus regarding the alleged failure of Judge Hill to comply with W.Va. Code § 49-6-5 requiring hearings in abuse and neglect cases to determine whether or not to terminate parental rights of unknown fathers. This petition involves 11 children who are in the permanent physical/legal custody of DHHR. The mother's parental rights have been terminated for each child. |
| 4. |
Ancil Ramey No. 993008 Refuse 4-1 Maynard, J. |
Petition for a Writ of Prohibition in SER Horace Mann Insurance Co. v. Honorable Jay M. Hoke, Judge, No. 993008. Judge Hoke ruled that Horace Mann Insurance Co. was the real party in interest in a third-party negligence action instituted against its insured and ordered Horace Mann's substitution for its insured as the third-party defendant. It is argued that the trial judge misapplied R.Civ.P. 17(a) and that the ruling conflicts with Davis v. Robertson, 175 W.Va. 364, 332 S.E.2d 819 (1985) which prohibits joining a defendant's liability carrier as a party defendant. It is also argued that the order violates the rule against the unnecessary mention of insurance. |
| 5. |
Kelly Elswick No. 993017 Grant 5-0 |
Petition for Writ of Mandamus and for Attorney Fees in SER Robert Davis v. William Vieweg, Comm'r. W.C.D. & Walmart, No. 993017. Petitioner seeks writ on the grounds of “deliberate failure to enter necessary protestable orders.” Claim filed for back injuries on May 12, 1998. Claim approved and temporary benefits paid June 8, 1998. Davis received back treatment. July 12, 1998 Davis' right leg gave way due to weakness and he broke his ankle. Treating physician determined that the back injury caused him to fall. December 23, 1998 Davis requested an update of his diagnosis codes to include fracture of right ankle. To date, no order entered. Requests for authorization of treatment and medicine have not been authorized or denied. Numerous requests for action have been submitted. The failure to enter an order amounts to a deliberate refusal to act. |
| 6. |
Wayne Patterson Pro se No. 992415 Grant 5-0 |
Motion to Supplement Response to Petition for Appeal in SER DHHR, Bureau of Child Support Enforcement v. Wayne Patterson, No. 992415. Respondent states that he inadvertently failed to include exhibit 7 which is an arrearage calculation sheet. |
| 7. |
James Kratovil No. 992721 Grant 4-1 Maynard, J. |
Petition for Writ of Habeas Corpus and Motion for Bond Reduction in SER Bobby Davis v. Edward Rudloff, Administrator, No. 992721. Davis is charged with three counts of attempting to commit first degree murder. Bond was set in the sum of $250,000 on each charge. Davis engaged in an apparent act of suicide by shooting at and taunting police officers who he repeatedly asked to kill him. Davis has a history of mental illness and had recently been hospitalized in a locked facility. Davis' wife testified that she earns $340 per week, that Davis worked at the Race Track making about $1,000 per month, and that their total assets were less than two to three thousand dollars. Davis agreed to involuntary hospitalization if the court would reduce the bond to an amount that he could raise. There is no psychiatric treatment available at the Eastern Regional Jail. He has not been examined as ordered by Judge Steptoe. As long as bail is $750,000 Davis will get no treatment. (The Clerk's Office has requested a response from the Prosecutor's Office on two occasions.) |
| 8. |
Joseph Caltrider No. 26557 Refuse 5-0 |
Motion to Dismiss in Nina R. Harbaugh, Adm. v. Christopher Coffinbarger, No. 26557. Appellees seek to dismiss the appeal for failure to properly perfect the appeal and failure to comply with the Rules. It is asserted that “it is assumed that the Appellant intended to file her Petition for Appeal pursuant to the abbreviated procedure set forth in W.Va. R.A.P. Rule 4A.” Accordingly, it is asserted that the petition was filed two months late and the certification of accuracy was not signed. In response it is stated that there was no intention to file under Rule 4A. Rather, the petition is filed under Rule 4. There was a typographical error at one point. Counsel attempted to resolve matter amicably by “clarifying” her “intention” to Movants. |
| 9. |
Janet D. Preston No. 26572 Grant 5-0 |
Regina B. B.'s Motion to Dismiss Appeal in In the Matter of Taylor B., No. 26572. Counsel for the natural mother, the DHHR and the Guardian-ad-litem for Taylor B. have reached and executed an agreement whereby the legal and physical custody of Taylor B. will be returned to his natural mother, Regina B. B., following a six month transition period. |
| 10. |
Ancil Ramey Grant 3-2 Starcher, C.J. McGraw, J. |
Petitioner/Defendant's Motion for Stay Pending Appeal in Appalachian Power Co. v. HRC and Antonio Mathews. Mathews prevailed in an employment discrimination action. The Circuit Court affirmed a final order of the HRC awarding Mathews the following: (1) $173,380.76, plus interest, in back pay; (2) $3,277.45 for emotional distress; (3) $3,035.72 costs; (4) front pay until Mathews is rehired; and (5) a directive for APCO to engage in sensitivity training. There are six assignments of error. APCO's primary ground for appeal is that Mathews failed to offer any evidence to rebut APCO's legitimate, nondiscriminatory reasons for his discharge. If the Court does not award a stay and the judgment is reversed, APCO will be harmed if it cannot recoup sums paid in satisfaction of judgment and if its ability to provide adequate service during the winter is impeded by rehiring Mathews. |
| 11. |
Arthur T. Ciccarello No. 26195 Grant 3-1 Starcher, C.J. Scott, J. - Disqualified |
Appellee, Zain's, Motion to Stay Mandate in State v. Fred Zain, No. 26195. Appellee seeks 90 day stay in order to prepare petition to United States Supreme Court. |
| 12. |
Gerald R. Linkous No. 993061 Refuse 4-1 Starcher, C.J. |
Petition for a Writ of Prohibition in SER D. R. v. Honorable John R. Frazier, No. 993061. Petitioner seeks to prohibit further proceedings in a juvenile case. It is argued that the issue of the existence of probable cause was previously decided such that proceedings are barred by concepts of res judicata and collateral estoppel. Judge Frazier determined that a finding of no probable cause is not an adjudication on the merits. |
| 13. |
Scott Segal No. 993060 Grant 2-2 McGraw, J. Scott, J. Davis Disqualified |
Petition for a Writ of Prohibition in SER Jack Crafton v. Honorable Robert A. Burnside, Jr., No. 993060. The petitioners are plaintiffs in toxic exposure litigation. At a July, 1998 hearing counsel agreed to a reverse bifurcation procedure whereby causation and compensatory damages are tried in one trial and a separate proceeding is held on liability and punitives. The lower court entered an order regarding reverse bifurcation in September 1998 and entered a Rule 16 scheduling order in November 1998. New plaintiff's counsel sought to revisit the reverse bifurcation ruling in July 1999. Plaintiffs proposed a trial case procedure whereby one of the cases is tried. On October 21, 1999 the lower court denied the motion to reconsider and reaffirmed reverse bifurcation. It is argued that it was an abuse of discretion to apply Rule 60(B), governing final orders, to a motion for reconsideration of an interlocutory order that simply scheduled and controlled proceedings. It is argued that the drastic and extraordinary use of reverse bifurcation should only be used when the record demonstrates the necessity of such a procedure and the financial burdens on the parties will not be substantially affected. |