September 24, 2008 Motion Docket, Supreme Court of Appeals of West Virginia

Supreme Court of Appeals of West Virginia
Motion Docket
Wednesday, September 24, 2008

Justice Albright did not participate in the consideration or decision of the cases on this docket.
Senior Status Justice McHugh sitting by temporary assignment.

1. C & O Motors, Inc. V. West Virginia Paving, Inc. - 080842 - Defendant appeals from the circuit court's order awarding summary judgment in favor of plaintiff in this negligence action seeking damages. Defendant asserts that the circuit court's ruling effectively changed this negligence into one of "strict liability." Defendant further asserts that the circuit court erred by not granting defendant's motion to join a necessary party, a subcontractor, who performed the work in question. - Grant 4 - 0, Benjamin not participating.

2. SER William Henry Johnson v. Michael Coleman, Warden - 080921 - Petitioner appeals from the circuit court's order denying his petition for a writ of habeas corpus following an omnibus hearing. Petitioner alleged ineffective assistance of appellate counsel, a violation of his Fifth Amendment rights, and a failure to promptly present him to a judicial officer. Petitioner seeks an issuance of a writ of habeas corpus and a remand to the circuit court for retrial. - Refuse 5 - 0.

3. Brian Bush Ferguson v. David Ballard, Warden - 080974 - Petitioner appeals from the circuit court's order denying his petition for habeas relief and from the circuit court's order denying petitioner's Rule 60(b) motion to alter or amend judgment. Petitioner asserts that his trial counsel failed to conduct a reasonable and efficient investigation and that but for those unprofessional errors, the results of the proceeding would have been different. - Grant and remand 4 - 1, Maynard.

4. Kenneth Dale Newman and Marty Newman v. James Michel, Jr. and Tomasina Michel - 080957 - Petitioners appeal the circuit court's order finding that they have neither an express nor prescriptive easement over the respondents' property for the purpose of accessing their own property. - Grant 5 - 0.

5. State of WV v. David Eugene Moore - 080726 - David Eugene Moore appeals the circuit court's denial of his Motion for Reduction of Sentence. The court found that petitioner waived the right to move for reconsideration of sentence as part of his plea agreement, and that the motion for reconsideration was filed beyond the 120 day limit of Rule 35. - Refuse 4 - 1, Starcher.

6. Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 080721 - Plaintiffs appeal from the circuit court's order granting in part and denying in part defendant DuPont's motion for partial summary judgment in this class action seeking medical monitoring, property remediation, and punitive damages. Plaintiffs assert that there were material questions of fact as to whether the contamination and injuries/damages due to the operation of a zinc smelter were contemplated by the original landowners and whether certain releases and easements executed in the 1920's provide immunity for those claims. Plaintiffs seek a reversal of the circuit court's order granting partial summary judgment in favor of defendants on the Property Class members' claims and request a remand for reinstatement and adjudication of those claims upon their merits. - Presented on Sept. 9 Motion Docket. - Grant 3 - 1, Davis, Moats not participating (consolidate). Justice Benjamin disqualified. Judge Swope sitting by temporary assignment.

7. Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 081461 - This case involves the former E. I. du Pont operations of a zinc smelting facility in Spelter, WV. This is a class-action complaint alleging negligence, recklessness, public and private nuisance, trespass, strict liability, unjust enrichment, medical monitoring and punitive damages based on alleged exposure to arsenic, cadmium and lead. The jury verdicts are reported as the largest toxic tort verdict in the country. - Grant 4 - 1, Davis, (consolidate). Justice Benjamin disqualified, Judge Swope sitting by temporary assignment. Senior Status Justice McHugh disqualified, Judge Moats sitting by temporary assignment.

8. Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 081462 - This case involves the former E. I. du Pont operations of a zinc smelting facility in Spelter, WV. E. I. du Pont seeks reversal of the circuit court's order ruling that du Pont has no obligation to indemnify T. L. Diamond in connection with Plaintiffs' claims in this case. - Grant 4 - 1, Davis (consolidate). Justice Benjamin disqualified, Judge Swope sitting by temporary assignment. Senior Status Justice McHugh disqualified, Judge Moats sitting by temporary assignment.