Converted WP file sept23m

Supreme Court of Appeals of West Virginia
Miscellaneous Motions Conference

Thursday, September 23, 1999

(Please note that the Honorable Fred Risovich, II served as a specially assigned Justice.)

1. Thomas M. Woodward
No. 991573

Refuse 3-2
[Davis, J., Maynard, J.] Motion of the West Virginia Bureau of Employment Programs, Workers' Compensation Division to Reconsider Decision Not to Grant Review of Certified Question in Carla Lilly v. Stoney Coal Co., No. 991573. Lilly was refused on September 2, 1999 by a vote of 3-2 (Davis, J., Maynard, J. ).

2. Thomas R. Goodwin
No. 992429
Refuse 5-0 Petition for a Writ of Prohibition in SER Gregory Harbaugh v. The Honorable John Lewis Marks, Jr., No. 992429. This matter involves claims for legal malpractice being asserted in a Third Party Complaint by a medical corporation. The underlying cases upon which the malpractice claims are based were settled prior to the filing of the Third Party Complaint. Petitioners assert that the lower court is without jurisdiction. It is contended that the defendants' third-party claims are not derivative but are independent claims that cannot be asserted pursuant to Rule 14(a) of the Rules of Civil Procedure.

3. Daniel Cooper
No. 992434

Refuse 5-0 Petition for Writ of Prohibition in SER Ranger Ins. Co. V. The Honorable John T. Madden, No. 992434. Petitioner seeks to prevent Judge Madden from enforcing an Order imposing default judgment against Petitioner on the issue of liability with regard to bad faith under the West Virginia Unfair Trade Claim Settlement Practice Act. Default judgment resulted from the fact that Petitioner's lead counsel did not receive an Order denying its motion to dismiss an amended pleading. Thus, counsel failed to file timely an answer to the amended pleading. Default judgment was entered 11 days after the Answer was due.

4. Thomas E. Carr
No. 26429

Appellant Withdrew Correspondence Appellee, Supervalu's Motion to Strike in Supervalu Operations, Inc. v. Center Design, Inc., No. 26429, scheduled for submission November 3, 1999. Supervalu moves to strike correspondence dated January 23, 1997 from C&E Corp. to William Abruzzino because it was never part of the record below.

5. Jeffrey L. Hall
No. 992425

Refuse 4-0
[Constitutionality]
Refuse 3-1
[Statutory Authority] [Davis, J.]
[Risovich, J. Disqualified]
Petition for Writ of Prohibition And/or Mandamus in SER Jeffrey L. Hall v. James M. Albert, Administrative Director, No. 992425. Petitioner seeks to prohibit recognition of Supreme Court Administrative Order entered September 2, 1999 regarding the Family Law Master for the 16th Circuit. Alternatively, Petitioner seeks to command recognition of the Order entered by Judge Danny Cline and Judge Jack Alsop. Petitioner challenges the constitutionality of the appointment procedure for Family Law Masters.

6. R. Thomas Czarnik
No. 992383

Refuse 5-0 Motion to Supplement the Record in State v. Richard Lee Graham, No. 992383. Petitioner states that there are numerous errors in transcript. Petitioner requests that counsel's trial and hearing notes be made part of the record and that the court reporter review the records and make corrections or provide supplements.

7. R. Thomas Czarnik
No. 26351

Grant 5-0 Motion to Supplement the Record to add Plaintiff's Reply to Defendant's Motion to Deny Attorney Fees in Donald E. Ingram, Jr. v. The City of Princeton, No. 26351. The reply is part of the record and designation indicated that the entire record would be transmitted.

8. Kristi A. Rogucki

Refuse 3-2
[Starcher, J., Maynard, J.] Petitioner's Motion for Stay pending appeal to the Kanawha County Circuit Court in an Education and State Employees' Grievance Board matter. The Board of Directors of the State College System/West Virginia State College v. Nick Wounaris, Jr.

9. Lynn A. Nelson
No. 26571

Grant 5-0 Motion to Resentence in In the Matter of Edward L., No. 26571. The State acknowledges that the previous sentencing Order did not contain specific findings of fact or conclusions of law.

10. Roger Stout
Pro se

Refuse 5-0 Petition for Writ of Mandamus in SER Roger Stout v. The Honorable Kendrick King. A hearing was held on June 7, 1999 regarding modification of alimony. Judge King has not ruled.

11. Clifford Allen Power
Pro se
Enter Order For Re-sentencing.
Enter Rule To Show Cause As To Wildman Returnable Below.
5-0
Petitioner was sentenced on May 22, 1998. Attorney Eric Keith Wildman was appointed for the appeal. On July 7, 1998 the record was designated for appeal. On May 7, 1999 Judge Bedell granted a two month extension . To date no petition for appeal has been filed. Counsel has been contacted by the Clerk's Office on several occasions.

12. Robert M. Steptoe
No. 25976
Refuse 5-0
[Starcher, J., Disqualified]
[Watt, J., Sitting By Temporary Assignment]
Consolidation Coal Co.'s Motion for Leave to File a Reply Memorandum in SER Consolidation Coal Co. v. The Honorable Russell M. Clawges, Jr., No. 25976. It was asserted that a reply is necessary due to crucial misstatements in the response of Boston Old Colony Insurance. Boston Old Colony objects.

13. Robert M. Steptoe
No. 25976
Grant 5-0
[Starcher, J., Disqualified]
[Watt, J., Sitting By Special Assignment]
Consolidation Coal Company's Motion to Strike Boston Old Colony's Exhibits C, D, and E in SER Consolidation Coal Co. v. The Honorable Russell M. Clawges, Jr., No. 25976. The primary issue is whether the lower court refused to carry out this Court's mandate following Consolidation Coal Co. v. Boston Old Colony Insurance Co., 508 S.E.2d 102 (1998). It is argued that all that should be considered in this original proceeding are matters of the record on appeal previously. Exhibits C, D and E were not records in that appeal. Boston Old Colony objects.

14. Clarence E. Morhous
No. 24221

Refuse 5-0 Motion to Strike the Recommended Disposition By the Hearing Panel Subcommittee and to Dismiss Charges in In re: Randall L. Veneri, No. 24221. It is argued that the Hearing Panel Subcommittee failed to file the written recommended decision timely in accordance with Rule 3.10 of the Rules of Lawyer Disciplinary Procedure.

15. Charles G. Johnson
No. 25898

Grant 3-2
[Davis, J., Maynard, J.] Appellees Motion to Supplement Record in Harold F. Flint, Jr. v. Bd. of Ed. of Harrison, No. 25898. Appellees seek to add two policies. It is contended that they sought to obtain such policies through interrogatories but were unsuccessful. Policies are not part of the record below. The Board objects.

1.	Thomas M. Woodward No. 991573 Refuse 3-2 [Davis, J., Maynard, J.]	Motion of the West Virginia Bureau of Employment Programs, Workers' Compensation Division to Reconsider Decision Not to Grant Review of Certified Question in Carla Lilly v. Stoney Coal Co., No. 991573. Lilly was refused on September 2, 1999 by a vote of 3-2 (Davis, J., Maynard, J. ).
2.	Thomas R. Goodwin No. 992429 Refuse 5-0	Petition for a Writ of Prohibition in SER Gregory Harbaugh v. The Honorable John Lewis Marks, Jr., No. 992429. This matter involves claims for legal malpractice being asserted in a Third Party Complaint by a medical corporation. The underlying cases upon which the malpractice claims are based were settled prior to the filing of the Third Party Complaint. Petitioners assert that the lower court is without jurisdiction. It is contended that the defendants' third-party claims are not derivative but are independent claims that cannot be asserted pursuant to Rule 14(a) of the Rules of Civil Procedure.
3.	Daniel Cooper No. 992434 Refuse 5-0	Petition for Writ of Prohibition in SER Ranger Ins. Co. V. The Honorable John T. Madden, No. 992434. Petitioner seeks to prevent Judge Madden from enforcing an Order imposing default judgment against Petitioner on the issue of liability with regard to bad faith under the West Virginia Unfair Trade Claim Settlement Practice Act. Default judgment resulted from the fact that Petitioner's lead counsel did not receive an Order denying its motion to dismiss an amended pleading. Thus, counsel failed to file timely an answer to the amended pleading. Default judgment was entered 11 days after the Answer was due.
4.	Thomas E. Carr No. 26429 Appellant Withdrew Correspondence	Appellee, Supervalu's Motion to Strike in Supervalu Operations, Inc. v. Center Design, Inc., No. 26429, scheduled for submission November 3, 1999. Supervalu moves to strike correspondence dated January 23, 1997 from C&E Corp. to William Abruzzino because it was never part of the record below.
5.	Jeffrey L. Hall No. 992425 Refuse 4-0 [Constitutionality] Refuse 3-1 [Statutory Authority] [Davis, J.] [Risovich, J. Disqualified]	Petition for Writ of Prohibition And/or Mandamus in SER Jeffrey L. Hall v. James M. Albert, Administrative Director, No. 992425. Petitioner seeks to prohibit recognition of Supreme Court Administrative Order entered September 2, 1999 regarding the Family Law Master for the 16th Circuit. Alternatively, Petitioner seeks to command recognition of the Order entered by Judge Danny Cline and Judge Jack Alsop. Petitioner challenges the constitutionality of the appointment procedure for Family Law Masters.
6.	R. Thomas Czarnik No. 992383 Refuse 5-0	Motion to Supplement the Record in State v. Richard Lee Graham, No. 992383. Petitioner states that there are numerous errors in transcript. Petitioner requests that counsel's trial and hearing notes be made part of the record and that the court reporter review the records and make corrections or provide supplements.
7.	R. Thomas Czarnik No. 26351 Grant 5-0	Motion to Supplement the Record to add Plaintiff's Reply to Defendant's Motion to Deny Attorney Fees in Donald E. Ingram, Jr. v. The City of Princeton, No. 26351. The reply is part of the record and designation indicated that the entire record would be transmitted.
8.	Kristi A. Rogucki Refuse 3-2 [Starcher, J., Maynard, J.]	Petitioner's Motion for Stay pending appeal to the Kanawha County Circuit Court in an Education and State Employees' Grievance Board matter. The Board of Directors of the State College System/West Virginia State College v. Nick Wounaris, Jr.
9.	Lynn A. Nelson No. 26571 Grant 5-0	Motion to Resentence in In the Matter of Edward L., No. 26571. The State acknowledges that the previous sentencing Order did not contain specific findings of fact or conclusions of law.
10.	Roger Stout Pro se Refuse 5-0	Petition for Writ of Mandamus in SER Roger Stout v. The Honorable Kendrick King. A hearing was held on June 7, 1999 regarding modification of alimony. Judge King has not ruled.
11.	Clifford Allen Power Pro se Enter Order For Re-sentencing. Enter Rule To Show Cause As To Wildman Returnable Below. 5-0	Petitioner was sentenced on May 22, 1998. Attorney Eric Keith Wildman was appointed for the appeal. On July 7, 1998 the record was designated for appeal. On May 7, 1999 Judge Bedell granted a two month extension . To date no petition for appeal has been filed. Counsel has been contacted by the Clerk's Office on several occasions.
12.	Robert M. Steptoe No. 25976 Refuse 5-0 [Starcher, J., Disqualified] [Watt, J., Sitting By Temporary Assignment]	Consolidation Coal Co.'s Motion for Leave to File a Reply Memorandum in SER Consolidation Coal Co. v. The Honorable Russell M. Clawges, Jr., No. 25976. It was asserted that a reply is necessary due to crucial misstatements in the response of Boston Old Colony Insurance. Boston Old Colony objects.
13.	Robert M. Steptoe No. 25976 Grant 5-0 [Starcher, J., Disqualified] [Watt, J., Sitting By Special Assignment]	Consolidation Coal Company's Motion to Strike Boston Old Colony's Exhibits C, D, and E in SER Consolidation Coal Co. v. The Honorable Russell M. Clawges, Jr., No. 25976. The primary issue is whether the lower court refused to carry out this Court's mandate following Consolidation Coal Co. v. Boston Old Colony Insurance Co., 508 S.E.2d 102 (1998). It is argued that all that should be considered in this original proceeding are matters of the record on appeal previously. Exhibits C, D and E were not records in that appeal. Boston Old Colony objects.
14.	Clarence E. Morhous No. 24221 Refuse 5-0	Motion to Strike the Recommended Disposition By the Hearing Panel Subcommittee and to Dismiss Charges in In re: Randall L. Veneri, No. 24221. It is argued that the Hearing Panel Subcommittee failed to file the written recommended decision timely in accordance with Rule 3.10 of the Rules of Lawyer Disciplinary Procedure.
15.	Charles G. Johnson No. 25898 Grant 3-2 [Davis, J., Maynard, J.]	Appellees Motion to Supplement Record in Harold F. Flint, Jr. v. Bd. of Ed. of Harrison, No. 25898. Appellees seek to add two policies. It is contended that they sought to obtain such policies through interrogatories but were unsuccessful. Policies are not part of the record below. The Board objects.