October 23, 2001 Argument Docket, WV Supreme Court

Tuesday, October 23, 2001

1. In Re: Kenna Homes Cooperative Corporation, No. 29644 - This dispute arises out of the decision by a housing complex to change its rule on pets to a "no animals or reptiles" rule, except for seeing-eye and hearing-aide dogs. The appellants challenge the circuit courts order holding that the new no animals or reptiles rule did not violate any state or federal laws. The appellants, who contend that their two dogs are medically necessary for therapeutic reasons, argue that the no animals or reptiles rule is unlawful because it fails to afford them the reasonable accommodation they need to remain at the Kenna Homes complex. The issues include: whether the circuit court committed error in ruling that the no animals or reptiles rule failed to violate any state or federal laws; and whether the housing complex must make an accommodation for therapeutic dogs, i.e., pet dogs kept by elderly residents with multiple health problems.

The appellants are represented by Samuel F. Hanna, Charleston, West Virginia. The appellee, Kenna Homes Cooperative Corporation, is represented by Larry G. Kopelman, Charleston, West Virginia. The West Virginia Attorney General filed a brief as amicus curiae, represented by Assistant Attorney General Jamie S. Alley of the Civil Rights Division.

2. Affiliated Construction Trades Foundation v. The University of West Virginia Board of Trustees et.al.,- No. 29330 - This case arises as a result of the decision to build a new University Services Center to be used by West Virginia University. Affiliated Construction Trades Foundation (ACT) brought an action in circuit court, arguing that the new building should be considered a public building, and, as a result, the defendants must comply with prevailing wage, competitive bidding, and architectural service procurement statutes. The West Virginia University Foundation, Inc. argued that it is not a "A public entity and the project is not a public improvement." The circuit court agreed, granting summary judgment to the defendants. On appeal, ACT contends that the circuit court erred in reaching its conclusion, both by misinterpreting evidence and by misconstruing the law. In response, the West Virginia University Foundation, Inc., argues that the circuit court was factually and legally correct in its holdings, and that the appeal is moot because the building will have been completed prior to the date of submission of the appeal.

ACT is represented by Stuart Calwell and Vincent Trivelli of the Law Offices of Stuart Calwell, Charleston, West Virginia. Evan Terry Associates, March-Westin Company, Inc., and Paul A. Walter Architect, Inc., are represented by Charles M. Johnstone II of Thaxton & Johnstone, Charleston, West Virginia. Platinum Properties Limited Liability Co. and Petroplus & Associates, Inc., are represented by David Allen Barnette, Christina T. Brumley, and Charles M. Surber, Jr. of Jackson & Kelly, Charleston, West Virginia, and Eric H. London of Jackson & Kelly, Morgantown, West Virginia. James A. Prete is represented by Harold F. Salsbery and Madonna Estep of Salsbery & Druckman, Charleston, West Virginia. University of West Virginia Board of Trustees is represented by Beth Ann Rauer of State College and University Systems of West Virginia, Charleston, West Virginia. West Virginia University is represented by Stephen P. Goodwin and Carrie Goodwin Fenwick of Goodwin & Goodwin, Charleston, West Virginia. West Virginia University Foundation, Inc. is represented by Ancil G. Ramey and Kara L. Cunningham of Steptoe & Johnson, Charleston, West Virginia, and James A. Russell of Steptoe & Johnson, Morgantown, West Virginia.

3. Melissa C. Judy v. Grant County Health Department - No. 29637 - This is a medical malpractice action based upon alleged failure to properly diagnose and treat breast cancer. The appellant, who was the plaintiff below, challenges the circuit courts order denying her motion to alter the judgment. Following trial, the jurys verdict in favor of the plaintiff was reduced by 49%, based upon a finding of comparative negligence or fault by the plaintiff in failing to take action in regard to the potential cancer. The appellant contends that the circuit court should not have instructed the jury regarding comparative negligence instruction because the defendant did not produce sufficient evidence of negligence by the plaintiff. Also at issue is whether the defendant should have been required to submit expert testimony to prove that the plaintiff's alleged delay in follow-up medical treatment contributed to the breast cancer.

The appellant is represented by Barry J. Nace of Paulson & Nace, Washington, D.C., and D. Michael Burke of Burke, Schultz and Harman of Martinsburg, West Virginia. The appellees are represented by Ancil G. Ramey of the Charleston office of Steptoe & Johnson, and Susan S. Brewer and Jacquelyn A. Jordan of the Morgantown office of Steptoe & Johnson.

4. Kathy Feliciano v. James Garland McClung,- No. 29639 - The appellant obtained a significant jury verdict as a result of the disabling injuries she sustained when she was shot in the abdomen by the appellee, James McClung. In trying to collect this verdict from the defendant, the appellant attempted to attach funds in a bank account that McClung had allegedly received originally as part of a workers’ compensation permanent total disability award. The appellant challenges the circuit court's order denying her attempt to execute judgment on those funds. She argues that the circuit court erred because the exemption for workers compensation awards should not apply where, as here, the benefits have been received and substantially changed in legal character. In addition, the appellant asks the Court to reassess prior case law establishing the exemption; because it protects McClung as an intentional tortfeasor from compensating the victim of his intentional misconduct, the appellant contends that the exemption is unconstitutional.

The appellant is represented by William D. Turner of Crandall, Pyles, Haviland & Turner, Lewisburg, West Virginia. The appellee is represented by J. Steven Hunter, Lewisburg, West Virginia.

5. Isabel J. Bryan v. Big Two Mile Gas Co., - No. 29641 - (Albright, J., disqualified. Hrko, Judge, by temporary assignment.) In this dispute over gas royalties, the appellant challenges the circuit court’s order awarding her a 1/8th royalty for gas wrongfully converted from a gas well and sold by the appellee, Big Two Mile Gas Company. One of the issues raised by the appellant is whether, in view of the wrongful conversion, she was entitled to the actual value of the gas sold, rather than a 1/8th royalty. The issues include the measure of damages where gas was taken from a leasehold by the lessee after the lease has been terminated.

The appellant is represented by Ancil G. Ramey of Steptoe & Johnson of Charleston, West Virginia. The appellee is represented by J. Thomas Lane, Michael J. Halaiko and Kenneth E. Webb, Jr. of Bowles Rice McDavid Graff & Love, Charleston, West Virginia.