Converted WP file sept2m

Supreme Court of Appeals of West Virginia
Miscellaneous Motions Conference

Thursday, September 2, 1999

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

1.	Katherine Anne Hoover, M.D. Pro se No. 992057 Refuse 5-0	SER Katherine Anne Hoover, M.D. v. The Honorable Paul Zakaib, et al., No. 992057. Petitioner, Dr. Hoover, seeks to prohibit enforcement of an Order appointing Troy Giatras as a hearing examiner on a Board of Medicine proceeding involving Dr. Hoover. Counsel for Troy Giatras notes the repeated efforts of Dr. Hoover regarding this matter and requests that the Court direct Dr. Hoover to refrain from filing more pleadings seeking to litigate the same issue.
2.	Keith A. Jones No. 26421	Motion to Dismiss in SER William C. Forbes v. Honorable Paul Zakaib et al., No. 26421. Scheduled for submission September 1 , 1999. Judge Zakaib argues that the jurisdiction of the circuit court was properly invoked upon an application of the Sheriff of Kanawha County seeking recusal of the Prosecuting Attorney and appointment of a Special Prosecuting Attorney. It is argued that the circuit court acted within its jurisdiction by issuing a temporary injunction to prohibit any action in the case by the Prosecuting Attorney pending a hearing and determination on the merits. If, after the hearing has been conducted and either party is aggrieved by the court's ruling, a direct remedy by way of appeal will then be available to all parties.
3.	Richard Yurko No. 992039 Refuse 5-0	Respondent's Motion to Exceed Page Limit in Melanie L. Minshall v. Health Care & Retirement Corp., No.992039. Health Care Retirement Corp. asserts that the petition for appeal arises from an award of summary judgment and the exhibits before the lower court are critical for the Court to review. (164 pages)
4.	Harley O. Staggers, Jr. No. 992039 Grant 5-0	Petitioner's Motion to Exclude in Melanie L. Minshall v. Health Care and Retirement Corp. of America, No.992039. Minshall seeks to exclude a copy of her deposition arguing that it was never filed with the lower court. Health Care Retirement Corp. (HCR) opposes the motion noting that significant portions of the transcript were filed with its Motion for Summary Judgment. The day after Minshall served her Petition for Appeal HCR filed the full transcript and designated it as part of the record in an effort to supply the Court a complete record for review.
5.	Darrell L. Guthrie Pro se No. 25183 Grant Rule to show cause why contempt should not be found and Judge Schlaegel directed to appear on September 21. 4-1 [Maynard, J.]	SER Darrell Guthrie v. Honorable Lee E. Schlaegel, No. 25183. Guthrie files a “Motion for Contempt” arising out of alleged continued failures of Judge Schlaegel to rule on Guthrie's petition for habeas corpus. This Court has entered two orders directing Judge Schlaegel to rule.
6.	Paul Weiss No. 992151 Refuse 5-0	SER Thomas Owen White v. Honorable Christopher W. Wilkes, No. 992151. Petitioner, defendant below, Thomas White, seeks a writ prohibiting further proceedings in the underlying personal injury action. White contends the action should be dismissed for untimely service of process.
7.	Deborah L. Herget Pro se No. 992241 Refuse 5-0	Petition for a Writ of Mandamus in W.Va. Animal Rescue League v. Honorable Alan Moats, No. 992241. Petitioner seeks seizure and maintenance of horses, dogs and cats she contends are abused and neglected such that the lives of some of the animals are in danger.
8.	Charles M. Love, III No. 992170 Grant 3-0 [Davis, J. And Risovich, J., Disqualified]	Motion for Leave to Exceed Rule 14(a) Appendix Page Limitation in SER Les Laboratoires Servier v. The Honorable Fred Risovich, II, No. 992170
9.	Charles M. Love, III No. 992170 Refuse 3-0 [Davis, J. And Risovich, J., Disqualified]	Petition for Writ of Prohibition and Request for Expedited Interim Stay of Proceedings in SER Les Laboratoires Servier v. The Honorable Fred Risovich, II, No. 992170. This petition raises issues regarding personal jurisdiction over several French Defendants in a products liability class action arising out of the prescription drugs phentermine, fenfuramine, or dexfenfluramine. It is asserted that the circuit court's denial of the Motion to Dismiss recited unsubstantiated and inaccurate findings of fact and incorrect conclusions of law. It is argued that the lower court's grant of discovery should be abated. It is also asserted that pending ruling on the petition, all discovery of the French Defendants should be stayed.
10.	Gretchen E. Pyles No. 990492 Refuse 4-1 [Maynard, J.]	Elkem Metals Motion to Dismiss Petition for Appeal in Dana O. Koontz v. W.C.D. and Elkem Metals Company, No. 990492. It is stated that Dana O. Koontz died on June 13, 1999.
11.	Ernest M. Douglass No. 991399 Grant 5-0	Motion to Withdraw as Court Appointed Counsel and to Appoint New Counsel in State of West Virginia v. Jennifer L. Atkins, No. 991399. The petition for appeal was filed on May 26, 1999.
12.	Gretchen E. Pyles No. 26335 Refuse 4-1 [Maynard, J.]	Union Carbide's Motion to Dismiss Appeal in Ernest F. Hardin v. W.C.D. and Union Carbide Corp., No. 26335. It is stated that Ernest F. Hardin died on June 4, 1999.
13.	Debora Martin Grant 3-2 [Davis, J., Maynard, J.]	Petition for Extension of Stay Pending Appeal in State of West Virginia v. Robert Watson. The lower court granted a Stay until August 23, 1999 of four months of shock incarceration at the Eastern Regional Jail imposed as a condition of probation. The case presents an issue of first impression involving the interpretation of the West Virginia Credit Card statute, W.Va. Code § 61-3- 24a(b)(1) and its relationship with the West Virginia Computer Crime and Abuse Act, W.Va. 61-3c-1. The transcript is not completed. Watson is gainfully employed. He faces the loss of employment if he is absent for a four month period. (On August 12, 1999 the Court entered a Stay until the full court could consider the matter).
14.	John Skaggs Grant 4-0 [Davis, J. Disqualified]	Motion to Stay Proceedings in various tobacco cases including Blain v. R.J. Reynolds Tobacco, Mason County No. 99-C-84; Huffman v. The American Tobacco Co., Kanawha County NO. 98-C-276; Jividen v. The American Tobacco Co., Mason County No. 98-C-278; Morris v. R.J. Reynolds, Kanawha County No. 98-C-492; and Newkirk v. R.J. Reynolds, Kanawha County No. 98-C- 1699. The plaintiffs seek a stay pending final disposition of Judge MacQueen's Motion to Refer Tobacco Litigation to the Mass Litigation Panel. The defendants' object.
15.	Fred Adkins No. 992184 Grant 5-0	Petition for a Writ of Mandamus in SER Silling Assoc., Inc. v. The Honorable Herman G. Canady, Jr., No. 992184. Silling Associates seeks a ruling on a Motion to Dismiss filed on May 18, 1995. A hearing was held on the Motion on November 17, 1995. Silling has filed a supplemental memorandum and has sought ruling from Judge Canady without success. A delay of 43 months is unreasonable.
16.	Michele Rusen Refuse 3-2 [Maynard, J., McGraw, J.]	Motion for Stay Pending Appeal in In Re: Robert D., Stephanie D. and Janna D. Father seeks stay of August 12, 1999 Order of Judge Hill divesting him of custody of his three children and returning them to the custody of their mother and her boyfriend.
17.	Larry Harless Refuse 4-1 [McGraw, J.]	Petition for Stay Pending Appeal or Alternatively, for Writ of Prohibition with Stay in Neighborhood School Association v. Monongalia County Board of Education. The Neighborhood School Association seeks to stay the Board from closing and/or consolidating the Wiles Hills, Cool Springs, Summers and Central Elementary Schools at the beginning of the 1999-2000 school year. The Board opposes the Petition.
18.	J. David Cecil No. 26217 Refuse 4-1 [Maynard, J.]	Appellee's Motion to Dismiss H. Kenneth Carvey, Jr. v. West Virginia State Board of Education, No. 26217. Scheduled for submission October 5, 1999. It is argued that the Appellant has failed to timely file the brief. Appellant responds that there was excusable neglect and that a letter should have been sent indicating that the petition would serve as the brief.
19.	Edward N. Hall No. 992228 Refuse 3-0 [Davis, J. And Risovich, J. Disqualified]	Petition for a Writ of Prohibition in SER West Virginia Pharmacists', Association v. The Honorable Fred Risovich, II, No. 992228. The Pharmacists' Association seek to preclude enforcement of several orders compelling dispensing physicians and certain non-party pharmacies to produce patient names and addresses to whom they dispensed the drugs Pondimin and Redux, singly or in combination with Phentermine. The non-party pharmacies objected to the subpoenas on the grounds of (1) invasion of privacy; (2) violation of confidential nature of the fiduciary relationship which exists between physician and patient; (3) violation of the physician- patient privilege by the disclosure of names and addresses of third persons, not parties to the litigation; (4) the utilization of subpoenas for unauthorized discovery or “fishing expedition,” and (5) a violation of the Rules and Regulations of the West Virginia Board of Pharmacy.
20.	Richard G. Gay No. 26353 Grant as to Deposition Testimony Only. 4-1 [Risovich, J. Would refuse in entirety]	Motion of Appellees to Strike Evidence Contained in Appellant's Brief in Curniff Rowe v. Grapevine Corp., No. 26353.
21.	Sarah E. Smith No. 26239 Refuse 4-1 [Maynard, J.]	Motion to Supplement the Brief Filed on Behalf of Eastern Associated Coal Corp. in Opposition to Claimant's Petition for Appeal in Alvin Jenkins v. WCC & Eastern Associated Coal, No. 26239. Scheduled for submission on October 15, 1999. Seek to supplement with evidence that offers of rehabilitation have continued to be made and that the claimant refuses.
22.	The Honorable Rodney Merrifield No. 26517 Grant 5-0	Judge Merrifield has filed a Response/Motion to Dismiss in SER Eric L. v. The Honorable Rodney Merrifield, No. 26517. Submitted on September 1, 1998. Judge Merrifield argues that a Writ of Prohibition is inappropriate because petitioner has failed to satisfy any factors for a writ. Direct appeal is an adequate remedy. The Order is not clearly erroneous. There was a plea agreement. Everyone, including the Department's representative placed on the record their belief that Eckerd was the best placement. The only questions came from Eric's mother. Eckerd has now withdrawn this placement offer. The Court should not entertain matters not of record. Eric L. had competent counsel and voluntarily, intelligently and knowingly entered a plea and chose Eckerd as the best placement. Petitioner, DHHR, opposes the Motion to Dismiss.

23.	Patricia A. Jennings No. 992063 Refuse 4-1 [Maynard, J.]	Employer's Motion for Stay of Claimant's Petition for Appeal from Workers' Compensation Appeal Board's June 30, 1999 Order in William C. Vaughn v. W.C.D. & ACF Industries, No. 992063. It is asserted that the combined percentage of permanent partial disability should be finalized before the Court considers permanent total disability.
24.	David W. Johnson No. 992297 Refuse 5-0	Motion to Enlarge Page Limitation in SER Jordache Enterprises v. The Honorable James C. Stucky, No. 992297.
25.	David W. Johnson No. 992297 Refuse 5-0	Petition for a Writ of Prohibition in SER Jordache Enterprises v. The Honorable James C. Stucky, No. 992297. Seek to prohibit the denial of a Motion to Amend and Supplement the Complaint. Recall Jordache Enterprises, Inc. v. National Union Fire Ins. Co., 513 S.E.2d 692 (W.Va. 1998).
26.	William M. Lester Refuse 5-0	Summary Petition for Bond Reduction in State v. Lawrence Myers. Myers is charged with incest, first degree sexual assault and first degree sexual abuse. Myers was arrested on January 29, 1999 and has remained in custody at the South Western Regional Jail. Myer's family has collected money to purchase a $25,000 cash bond and a $25,000 full surety bond. Myers states he is not a flight risk due in part to medical problems. He states he has cooperated with authorities. The State responds that there are multiple life sentences, Myers has a massive criminal history including a prison escape, crimes of violence and a probation violation.