September 10, 2003
1. State of West Virginia ex rel. Kenneth James Daft v. Howard Painter, Warden - No. 022061. Petitioner appeals from the circuit court’s denial of his petition for habeas corpus relief. He was convicted of three (3) counts of sexual abuse and two (2) counts of sexual abuse by a caretaker. His cumulative sentence was 15 to 45 years in the state penitentiary.
Refuse 4-1
[ Albright, J. ]2. Michael D. Kraft and Terri Kraft v. ZEZ Kennels, Inc. and Wheeling Downs Racing Association, Inc. and Burlington Insurance Company. - No. 031267. Defendant appeals from the ruling of the circuit court, which allowed the jury to determine that it was involved in a joint venture with its co-defendant even though there was no evidence to establish the prerequisites for a joint venture and notwithstanding contractual provisions between the defendants designed to insulate each from liability for the acts of the other.
Refuse 5- 0
2a. Michael D. Kraft and Terri Kraft v. ZEZ Kennels, Inc. and Wheeling Downs Racing Association, Inc. and Burlington Insurance Company. - No. 031800. Defendant, ZEZ Kennels, Inc., appeals from the jury’s verdict in this action arising out of the death of 14 greyhounds. Defendant asserts that the trial court allowed speculative evidence on economic damages, which resulted in a damage award based upon speculative and unfairly prejudicial evidence. ZEZ seeks either a reversal of the trial court’s judgment, judgment as a matter of law, or a new trial.
Refuse 5- 0
3. John Richard Harrah v. Teays Incorporated, No. 031174. Plaintiffs petition for a certified question involving whether the immunity provided to employers under the workers’ compensation statutes should be applied in this personal injury action.
Refuse 3-2
[ Davis, J. & Maynard, J.]
4a. James W. Kessel, M.D., Richard M. Vaglienti, M.D., and Stanford J. Huber, M.D. v. Monongalia County Hospital Company d/b/a Monongalia County General Hospital, Mark Bennett, M.D., Bennett Anesthesia Consultants, PLLC and Professional Anesthesia Services, Inc. - No. 031084. Plaintiff physician instituted this action against defendants alleging tortious interference with business relationships, due process violations, restraint of trade, breach of contract, and breach of the covenant of good faith and fair dealing. Arising out of that action is a question that has been certified to this Court relating to a hospital’s ability to enter into exclusive contracts with service providers, which are adverse to other physicians who have staff privileges at the hospital.
Grant 3-2
[ Davis, J. & Albright, J.]4b. James W. Kessel, M.D., Richard M. Vaglienti, M.D., and Stanford J. Huber, M.D. v. Monongalia County Hospital Company d/b/a Monongalia County General Hospital, Mark Bennett, M.D., Bennett Anesthesia Consultants, PLLC and Professional Anesthesia Services, Inc. - No. 031085. Plaintiff physicians instituted this action against defendants alleging tortious interference with business relationships, due process violations, restraint of trade, breach of contract, and breach of the covenant of good faith and fair dealing. Arising out of that action is a question that has been certified to this Court relating to a hospital’s ability to enter into exclusive contracts with service providers, which are adverse to other physicians who have staff privileges at the hospital.
Grant 3-2
[ Davis, J. & Albright, J.]5. Gary Wheeler v. Howard Painter, Warden - No. 030699. Petitioner appeals from the circuit court’s denial of his petition for habeas corpus relief.
Refuse 5- 0
Defendant appeals from the circuit court’s order requiring him to register as a sex offender following his guilty plea to non-sexual misconduct only.6. State of West Virginia v. Jeff Carson Davis - No. 030702.
Refuse 5- 0
7. Ark Land Company v. Rhonda Gail Harper; Edward A. Caudill; Rose M. Thompson; Edith D. Kitchen; Therman R. Caudill; John A. Caudill, Jr.; Tammy Willis; and Lucille M. Miller - No. 030710. Defendants appeal from the circuit court’s order directing the partition of land by way of sale in this action for statutory partition. Defendants seek a reversal of the circuit court’s order and a remand of the action directing the circuit court to partition the land in kind.
Grant 3-2
[ Davis, J. & Maynard, J.]
8. Loretta Wright v. Howard E. Myers, III and Lawrence Hoke - No. 030713. Plaintiff appeals from the circuit court’s order dismissing this personal injury action as barred by the statute of limitations.
Grant 3-2
[ Davis, J. & Maynard, J.]
This action arises out of the W.Va. Dept. of Environmental Protection’s suspension of a Marfork Coal Company surface mining permit. The circuit court remanded the case to the WVDEP for a hearing before an impartial hearing examiner. The WVDEP seeks a reversal of the circuit court’s order and an affirmance of the Surface Mine Board’s decision.9. Marfork Coal Company v. Stephanie R. Timmermeyer, Acting Secretary, West Virginia Department of Environmental Protection, and Janice Nease and Freda Williams - No. 030715.
Grant 3-2
[ Davis, J. & Maynard, J.]
10. Kirk N. Reider v. Jody L. Baker; State of Arizona, Department of Economic Security, Division of Child Support Enforcement; West Virginia Public Employees Insurance Agency; and Glen Gainer, State Auditor of the State of West Virginia - No. 030697. Plaintiff appeals, in part, from the circuit court’s order denying his claim for compensatory and punitive damages arising out of a child support order entered against him in Arizona.
Refuse 5- 0
11. West Virginia Fire & Casualty Company v. Cass-Sandra Marko Gene Stanley, Sandra Stanley, Roxanne Holcomb, Glen Stanley, Helen Stanley and Jesse Stanley - No. 030770. Defendants appeal from the circuit court’s award of summary judgment in favor of West Virginia Fire & Casualty Company in this declaratory judgment action. The underlying actions involve the sexual abuse of a minor.
Grant 5- 0
(Consolidate with Pending
Case No. 31230)12. SER Edward Lyndon Johnson v. George Trent, Warden - No. 030643. Petitioner appeals the circuit court’s denial of his petition for a writ of habeas corpus. He asserts that at his criminal trial for escape his pre-trial motions were improperly denied, the jury should have been permitted to decide if he had been insane, and his lawyer was ineffective.
Refuse 5- 0
13. State of West Virginia v. Robert L. Kerr, Jr. - No. 030644. Petitioner appeals his sentence of one to five years incarceration for felony unlawful assault and one year incarceration for misdemeanor attempt to influence a witness.
Refuse 5- 0
14. SER Colleen M. Roath v. William Yurcina, Warden - No. 030646. Petitioner appeals the denial of her petition for a writ of habeas corpus, asserting that her Alford plea had not been voluntary and she had received ineffective assistance of counsel.
Refuse 5- 0
15. SER Tommy R. Cartwright v. Michael C. Coleman - No. 030647. Petitioner appeals the circuit court’s order denying habeas corpus relief. Petitioner asserts that his lawyer in his prior omnibus habeas corpus case was ineffective.
Refuse 5- 0
16. Johnnie W. Jenkins v. Mt. Olive Correctional Complex - No. 030696. Petitioner appeals the circuit court’s denial of his petition for a writ of habeas corpus. He asserts ineffective assistance of trial counsel and insufficient evidence to support his conviction for first degree murder.
Refuse 4-1
[ Starcher, C. J. ]17. Timothy Dunham v. West Virginia Department of Transportation & National Union Fire Ins. Co. of Pit - No. 030769. Petitioners appeal the circuit court’s order which found no insurance coverage and dismissed the case.
Refuse 4-1
[ McGraw, J. ]18. State of West Virginia v. John Ray Smith - No. 030771. Petitioner appeals his conviction for felony child neglect creating risk of injury.
Refuse 5- 0
Petitioner appeals his consecutive sentences of 15 to 35 years for sexual assault in the first degree and 10 to 20 years for sexual abuse by a parent, guardian or custodian.19. State of West Virginia v. William Oscar Willis - No. 030772.
Accept to Motion Docket
20. State of West Virginia v. Janice Brown - No. 030778. Petitioner appeals her conviction of two counts misdemeanor brandishing a weapon.
Refuse 5- 0
The Commissioner of the Bureau of Employment Programs, Workers’ Compensation Division, appeals the circuit court’s order which enforced a settlement between an injured worker, the worker’s wife who has a consortium claim, and a third-party tortfeasor. The Commissioner asserts the circuit court erred by permitting the worker to avoid his statutory subrogation obligation to the Workers’ Compensation program.21. William Conrad v. National Union Fire Ins. Co. of Pit - No. 030777.
Refuse 3-2
[ Davis, J. & Albright, J.]
Petitioner appeals his conviction for two counts of second degree murder.22. State of West Virginia v. James Reginald Jones, II - No. 030781.
Accept to Motion Docket
23. Nina Cales v. Daniel Daugherty and Lavonna Daugherty - No. 030789. Petitioner appeals asserting that the circuit court erred in modifying a judgment to provide that one respondent was not responsible for repaying petitioner her purchase money after a jury-ordered rescission of a real estate contract.
Refuse 4-1
[ McGraw, J. ]
Petitioner appeals his conviction for felony disarming a police officer.24. State of West Virginia v. James P. McCune, Sr. - No. 030798.
Refuse 5- 0
25. Joann Jones and Clarence Jones v. Ali Abruhama, M.D., Mark A. Choueiri, M.D., and Charleston Area Medical Center - No. 030808. Petitioners appeal the circuit court’s granting of summary judgment to respondents in their medical malpractice lawsuit. Petitioners say the circuit court erred in finding that they had filed outside of the statute of limitations.
Grant
3-2
[ Davis, J. & Maynard, J.]
26. James H. Wilson v. Daniel T. Bowman, Lisa A. Bowman - No. 030810. Petitioner appeals the circuit court’s order granting summary judgment to respondents. The circuit court found that petitioner did not have a prescriptive easement across respondents’ property and did not have the right to install an underground electrical service on the asserted easement.
Refuse 5- 0
27. SER Marlin McClain v. Mike Coleman, Warden - No. 030817. Petitioner appeals from his conviction of murder in the first degree with no recommendation of mercy. Petitioner alleges on appeal that he did not receive a fair trial and was unable to obtain a hearing because of the ineffectiveness of his counsel.
Refuse 4-1
[ Starcher, C. J.]
28. Kathy Kay Alley v. CAMC, Inc. - No. 030818. Defendant appeals from the Kanawha County Circuit Court’s Order which held that CAMC was not entitled to judgment as a matter of law or to a new trial. The jury rendered a verdict in favor of the Plaintiff in the amount of $325,000.
Accept to Motion Docket
29. Ellen Mills-Pauley v. Putnam County Commission / James Withrow, President - No. 030819. Petitioners seek attorneys’ fees from a successful Mandamus action against Putnam County. The petitioners received an Order for the Putnam County Commission to place the issue of "Sunday hunting" on the ballot for the November, 2002, general election. Based upon the Court Order, the issue was on the ballot. The Circuit Court denied the granting of fees.
Refuse 5- 0
This appeal stems from an employment grievance filed by petitioner. Petitioner seeks reversal of the circuit court decisions and Grievance Board and a remand for a decision on the merits.30. Lue Ann Gardner v. Jefferson County Board of Education - No. 030821.
Refuse 4-1
[ McGraw, J. ]
31. Anthony Miralles, III and Madeline Miralles v. Lloyd Snoderly - No. 030822. This suit stems from injuries sustained in a motor vehicle accident and the resulting summary judgment for the defendants. The Circuit Court ruled that a restrictive endorsement precluded UIM coverage. It is requested by the petitioners that this Court reverse the Circuit Court’s order, direct that UIM coverage be provided, and remand the case for further proceedings.
Grant 5- 0
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