Supreme Court of Appeals of West Virginia

gavel Argument Docket  
Wednesday, September 22, 2010

 

1.  Cabot Oil & Gas Corporation v. Randy Huffman, Cabinet Secretary, et al. - 35508, 35509, 35510 & 35511 - The Secretary of the W.Va. Department of Environmental Protection and various intervenors appeal the circuit court’s order which reversed the DEP Secretary’s Order and directed the DEP Secretary to issue five well work permits for natural gas drilling within Chief Logan State Park.

2.  Jill Willey and Mike Willey v. Samuel J. Bracken, Jr., M.D. - 35519 - The circuit court entered a "Certification Order" certifying the following questions of law in this medical malpractice action:

"1. Does a cause of action for medical negligence "accrue", for the purposes of the West Virginia borrowing statute, W.Va. Code § 55-2A-2, in the State of West Virginia or the State of Ohio where the Defendant doctor is a West Virginia doctor, where the plaintiff is a West Virginia resident, where the doctor-patient relationship between the plaintiff-patient and defendant-doctor is established in the state of West Virginia, where the Defendant-doctor performs a tubal ligation in the state of Ohio, with no immediate injury, where the defendant-doctor chose the location for the tubal ligation procedure, where the tubal ligation is the only procedure which occurred in the state of Ohio in the course of the patient-doctor relationship between plaintiff and defendant, and where the plaintiff-patient suffers a sigmoid colon rupture in the State of West Virginia in the week following the tubal ligation procedure?

2. Does the West Virginia Borrowing statute, W.Va. Code § 55-2A-2[,] apply to a medical negligence claim where the Defendant, a West Virginia physician, admits that both the substantive and procedural law of the state of West Virginia applies to the plaintiff’s claim?

3. As a matter of public policy, should the West Virginia borrowing statute be construed so as not to bar a claim for medical negligence by a West Virginia resident patient, where the defendant doctor is a West Virginia doctor, where the Plaintiff is a West Virginia resident, where the doctor-patient relationship between the plaintiff-patient and defendant-doctor is established in the State of West Virginia, where the defendant-doctor performs a tubal ligation in the State of Ohio with no immediate injury, where the defendant-doctor chose the location for the tubal ligation procedure, where the tubal ligation is the only procedure which occurred in the state of Ohio in the course of the patient-doctor relationship between Plaintiff and Defendant, and where the Plaintiff-patient suffers a sigmoid colon rupture in the state of West Virginia in the week following the tubal ligation procedure?"

 The circuit court states in its Certification Order that "the West Virginia Borrowing Statute, W.Va. Code § 55-2A-2, does not bar the Plaintiff’s clams for medical negligence pursuant to the Ohio one-year statute of limitations as ‘the Plaintiff’s cause of action did not accrue per the statute in the State of Ohio.’ Rather, this Court found that the Plaintiff’s cause of action for medical negligence accrued in the state of West Virginia, ‘where the injury occurred.’ " 

3.  State of WV v. Dennis R. Gibson - 35520 - The State of West Virginia presents its petition for appeal on the following certified question from the Fayette County Circuit Court:

"Must both of the two prior convictions for criminal acts of domestic violence [as defined and obtained in accord with West Virginia Code § 61-2-28], which are alleged within an Indictment charging a current allegation of domestic violence as a third offense felony, have been obtained against a defendant within ten years of said current allegation, for said prior convictions to be properly used to charge the current allegation of domestic violence as a third offense felony?"

The circuit court would answer the question "yes."

4.  Leeorr M. Rosier v. Robert Lee Rosier - 35522 - Plaintiff appeals from the trial court's partial summary judgment order in favor of defendant and its "Order and Opinion" entered following a bench trial in this action to set aside conveyances of real estate by a principal to a fiduciary. Plaintiff alleged that the real estate conveyances constituted common law and statutory fraud and sought the return of personal property, including money, farm equipment, and cattle, which was allegedly converted by defendant. The trial court rejected all of plaintiff's claims.

5.  Cora Phillips Hairston, et al. v. General Pipeline Construction, Inc., et al. - 35525 - 

The Circuit Court of Logan County certifies the following questions:

1. Does W.Va. Code § 29-1-8a preempt a common law cause of action for direct or indirect desecration of a grave?

Circuit Court’s Answer: Yes, except as to claims for the desecration of graves and related items in a publicly or privately maintained cemetery or of graves less than fifty years old.

2. What are the elements of a common law action for desecration of a grave, grave site, cemetery, or burial ground? Circuit Court’s Answer: The elements of a common law cause of action for the desecration of a grave in a publicly or privately maintained cemetery are:

1. that it is shown that a cemetery, with identifiable boundaries and limits, exists at the place alleged;
2. that it is shown that the area was dedicated to the purpose of providing a place of burial by the owner of the property or that the owner acquiesced in its use for burial;
3. that it is shown that the area was identifiable as a cemetery by its appearance prior to the defendant’s entry onto the area or it is shown that the defendant has prior knowledge of the existence of the cemetery;
4. that it is shown that the decedent in question is interred in the area;
5. that it is shown that the decedent in question was interred by license or right;
6. that it is shown that the plaintiff is the next of kin of the decedent in question with the right to assert a claim for desecration;
7. that it is shown that the person charged with the desecration defaced, damaged or otherwise mistreated the physical area or the contents of the cemetery in a way that a reasonable person knows will outrage the sensibilities of others.

3. What are the recoverable damages in a common law action for desecration of a grave, grave site, cemetery or burial ground? Circuit Court’s Answer: Nominal damages at least, are awardable, and compensatory damages may be recovered if actual damage is shown; damages for mental distress may be awarded; and punitive damages may be awarded if a plaintiff can prove that the defendants’ conduct was willful, wanton, reckless or malicious.

4. Does West Virginia recognize a common law cause of action for indirect desecration of a grave, grave site, cemetery or burial ground? If so, what are the elements of such a cause of action and what are the recoverable damages? Circuit Court’s Answer: A cause of action for the indirect desecration of a grave site located in a publicly or privately maintained cemetery is permitted in West Virginia. The elements of such a cause of action are the same as those identified in the Answer to Question 2, above, plus it must be shown that the indirect desecration has, in some manner, affected the specific grave site made the subject of the claim in such a manner as to outrage the sensibilities of others.

 5. What are the "next of kin" who possess the right to recover in a common law cause of action for direct or indirect desecration of a grave? Circuit Court’s Answer: The decedent’s surviving spouse or, if not now living, then the now living person or persons of closest and equal degree of kinship in the order provided by W.Va. Code § 42-1-1, et seq.

6.  Ronald and Diane Myers v. WV Consolidated Public Retirement Board - 35470 - The Consolidated Public Retirement Board seeks a reversal of the circuit court's order finding that the Board's application of a pension statute to respondents was clearly wrong in view of the reliable, probative, and substantial evidence on the whole record. Respondents claim that the Board's application of a pension statute constitutes a violation of the State's constitutional protections against impairment of contracts. 

     Richard H. Burton v. WV Consolidated Public Retirement Board - 35507 - The Consolidated Public Retirement Board appeals the Circuit Court's order which reversed the Board's decision. The Court held that the Board had to apply a statutory provision of a pension statute that was later removed from the law, or else the Board would violate plan member Richard H. Burton's right against impairment of his pension contract. 

7.  Warren K. Hollinghead v. James W. Childers, Sheriff of Greenbrier County - 35530 -  Petitioner Warren K. Hollinghead appeals the denial for his request to carry a concealed weapon pursuant to West Virginia Code §61-7-4. The Sheriff of Greenbrier County denied the petitioner’s request because petitioner had previously plead no-contest to a charge of simple battery. On appeal, petitioner contends that his plea does not prevent him from obtaining a license to carry a concealed weapon. 

8.  Charles W. Bevins v. WVOIC and Mountain Energy, LLC - 35548 

     Marty L. Greathouse v. WVOIC and The Wackenhut Corporation - 35219 

9.  Office of Disciplinary Counsel v. Richard A. Hayhurst - 35566 - Withdrawn.

10.  SER Don R. Weekley v. Hon. Martin J. Gaughan, Judge - 35657 - Petitioner seeks issuance of a writ of mandamus against circuit court for information about his underlying habeas case. - To be presented on briefs only without oral argument.

11.  SER Garnet Godbey v. Hon. Jennifer Bailey, Judge - 35644-  Dismissed.

 

The briefs and other filings are provided in PDF format. 
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