September
3, 2009
1. Ella J. Montgomery and Margaret C. Bowers v. William H. Callison, Jr., and Cecil G. Callison - No. 090682. Defendants appeal from an adverse jury verdict in this action to set aside two recorded deeds conveying farm properties. The jury returned a verdict in favor of plaintiffs and found that the deeds were not properly delivered and were ineffective to convey the real estate described therein. Defendants assert procedural and evidentiary error below. Grant 5- 0
2. Doris Michael and Todd Battle, by his next friend, Doris Michael, and Kitrena Michael v. Appalachian Heating, LLC and State Auto Insurance Company, et al. v. Appalachian Heating LLC and State Auto Insurance Company - No. 090656. Defendant presents this petition for appeal on the following Certified Question from the Kanawha County Circuit Court:
"May a plaintiff present a cause of action against a tortfeasor’s insurance carrier pursuant to the West Virginia Human Rights Act, West Virginia Code §5-11-9(A), when it is alleged that a tortfeasors’ insurance carrier discriminated against the plaintiffs because they are African-American and reside in public housing?
Circuit Court: Yes." Grant 5- 0
3. State of West Virginia v. Roger L. Shuman, Jr. - No. 090730. Defendant appeals from his conviction for failure to register as a sex offender. Defendant contends that he was convicted of a crime not charged in the indictment against him. Defendant seeks a reversal of his conviction. Refuse 5- 0
4. State of West Virginia v. Sammy J. Fragale - No. 090750. Defendant appeals his conviction on a single count of delivery of cocaine. Defendant raises issues related to the jury, evidence, and his trial counsel. Defendant seeks a reversal and a new trial. Refuse 3-2 (Benjamin, C. J. and Davis, J. would grant as to issue no. 1 only )
5. Kirby Vanhorn v. Michael Martin, Administrator, Tygart Valley Regional Jail and George Trent, Administrator, North Regional Jail - No. 090764. Petitioner appeals from the circuit court’s order denying his petition for habeas relief. Petitioner seeks a reversal of his plea and sentencing on the basis of ineffective assistance of counsel, as well as other errors. Refuse 5- 0
6. Vernon E. Thompson v. Robert Hatfield, Heirs of Edith Vance Adkins [Ray Vance, Pauline Vance Adkins, Louise Vance Murphy, Romie Vance, and Nancy Vance Breadon] and Carmie Vance [deceased with heirs unascertained: Mabel Grimmet Vance (widow), Three Unknown Children (children with widow), Geneva Vance Paulus (first wife), Dencil Lee Vance (son with first wife) and Patricia June Vance Butler (daughter with first wife)] - No. 090751. Defendant Robert Hatfield appeals the circuit court’s order which, inter alia, awarded a 2/7 interest in property to plaintiff Vernon Thompson in a partition suit. Grant 5- 0
7. Jefferson Orchards, Inc. v. Jefferson County Zoning Board of Appeals, a public body; Paul Raco, Zoning Administrator; Thomas Trumble, member; Edwin T. Kelly, II, member; Tiffany Hine, chairperson; Christy Huddle, member; Jeff Bresee, member; and Frances Morgan, member - No. 090760. Jefferson Orchards, Inc. appeals the circuit court’s order in a certiorari case regarding a conditional use permit to build a residential development in a rural district. This case was previously before this Court and was remanded for reconsideration in light of this Court’s opinion in Far Away Farm, LLC v. Jefferson Board of Zoning Appeals, et al.. Petitioner asserts that on remand the circuit court applied the wrong standard of review; applied an analysis and criteria from an ordinance that this Court held in Far Away Farm does not apply; exceeded the scope of the remand order; and violated petitioner’s rights to due process and equal protection. Grant 4-1 (Ketchum, J.)
8. John Hardesty, Danny Murray, Glen Blon, Gary Matthews, Frank Daniel, and Rick Moore v. West Virginia University - No. 090767. Glen Blon appeals the circuit court’s order affirming the grievance board’s decision denying his grievance. Mr. Blon asserts that when he filed this grievance in 2001, he should have been classified at pay grade 14 for the work he performed in Unit 35 at WVU’s Physical Plant. Refuse 4- 0 (Workman, J. Disqualified)
9. State of West Virginia v. William M. - No. 090793. William M. appeals his conviction for four counts of Sexual Abuse by a Parent, Guardian or Custodian, and two counts of Sexual Assault in the Third Degree. He asserts, inter alia, that the State failed to disclose exculpatory material; he should receive a new trial because of newly discovered evidence; the court failed to properly evaluate the State’s 404(b) evidence; the court committed evidentiary error; and cumulative error. Grant 5- 0
10. Andrea D. (Bonifili) Plum, now known as Andrea D. Colaizzi v. Samuel L. Plum - No. 090798. Andrea D. Colaizzi appeals the circuit court’s order affirming the family court’s order which modified the child support obligation of Samuel L. Plum. Ms. Colaizzi argues that the family court erred on issues of attribution of income. Refuse 5- 0
11. First-Citizens Bank & Trust Company, a North Carolina corporation v. Earl M. Quick, Jr. v. Hamilton High Heat, Inc., Third-Party Defendant - No. 090816. First-Citizens Bank & Trust Company appeals the circuit court’s denial of motions for judgment as a matter of law and for a new trial in a case involving a lease finance arrangement with Earl Mr. Quick, Jr. to purchase a rock crushing machine. The jury found in favor of Mr. Quick on counterclaims against the bank for breach of lease, breach of fiduciary duty, breach of the duty of good faith and fair dealing, and tortious interference with contractual relations, awarding Quick compensatory damages of $ 4,125,000.00. Refuse 3-2, (Ketchum, J., McHugh, J.)
12. State of West Virginia v. Robert Fields - No. 090819. Robert Fields appeals his conviction for one count of child abuse by a custodian, W.Va. Code § 61-8D-5(a) (1998). He asserts that, as a matter of law, he was not a custodian of the alleged victim; that the State suppressed important impeachment material; and the court erred by excluding certain evidence about the victim. Refuse 4-1, (Benjamin, C. J.)
13. Fred and Sharon Johnson v. Board of Stewards of Charles Town Races - No. 090844. Fred and Sharon Johnson appeal the circuit court’s order which affirmed the W.Va. Racing Commission’s order which affirmed the order of the Board of Stewards of Charles Town Races. The Johnsons’ horse won the 2007 Breeder’s Classic, but the Board of Stewards disqualified the horse and ordered the redistribution of the purse because the horse tested positive for the presence of caffeine in its system. Accept to Motion Docket
14. Kimberly Lupardus and Darrell L. Lupardus, Co-Administrators of the Estate of Kevin L. Lupardus v. Massey Energy Company, a Delaware corporation; Independence Coal Company, Inc. d/b/a Endurance Mining Company, a West Virginia corporation; Massey Coal Services, Inc., a West Virginia corporation; and A. T. Massey Coal Company, Inc., a Virginia corporation - No. 081426. Lisa Dwire appeals the circuit court’s order distributing the proceeds of the settlement of a lawsuit which alleged counts of wrongful death and deliberate intent. In an order entered Feb. 1, 2008, the court held that the case was settled under the deliberate intent statute, not the wrongful death statute, and that under the deliberate intent statute Ms. Dwire is ineligible to share in the settlement proceeds.
[ Benjamin, C.J. Disqualified]
[ Fox, Judge Sitting by Assignment ]
Grant
5- 0 and Remand
15. Samantha Lewis, et al. v. International Coal Group, Inc., et al. - No. 081448. The underlying action is a wrongful death civil suit by the Estate of David W. Lewis against various coal company and other related defendants for his death in the January 2, 2006, Sago Mine Disaster. On June 2, 2008, the Kanawha County Circuit Court approved a settlement agreement between the Estate and certain defendants. The Petitioners are beneficiaries of the Estate who objected to the approval of the settlement agreement, and seek to have the Circuit Court’s approval of the settlement agreement overturned.
[ McHugh, J. Disqualified]
[ Thompson, Judge Sitting by Assignment ]
Refuse
5- 0
16. In Re: Reba Prino v. Mary Kay Prino - No. 090828. Petitioner appealed a Cabell County Circuit Court Order appointing Victor Prino, II as guardian/conservator of Reba P. and filed a new petition by virtue of West Virginia Code §44A-4-6. The petitioner now appeals the Cabell County Circuit Court’s Order denying the appeal based upon a lack of jurisdiction. Accept to Motion Docket
17. James L. Groves v. Joseph Cicchirillo, Commissioner of the West Virginia Division of Motor Vehicles - No. 090910. Commissioner Joe E. Miller, of the West Virginia Division of Motor Vehicle, appeals the Marshall County Circuit Court’s Order which reversed the Commissioner’s order on the basis that the testimony of the officer alone did not support the findings of the Commissioner in the Final Order. Commissioner Miller seeks reversal of the circuit court’s order and reinstatement of the Commissioner’s Final Order and the license revocation. Grant 5- 0
18. David L. Ryder v. First National Bank of Ronceverte and William R. Bowling, III and Karen Bowling - No. 090845. Petitioners, William R. Bowling, III and Karen Bowling, appeal from the January 28, 2009, ruling of the Greenbrier County Circuit Court which awarded summary judgment to the First National Bank of Ronceverte upon a breach of warranty claim filed by the petitioners. Petitioners submit that the lower Court’s ruling should be overturned and the matter sent back for further proceedings. Refuse 5- 0
19. State of West Virginia v. Darrell Eugene Smith - No. 090851. Petitioner Darrell Eugene Smith appeals his convictions and sentences for sexual abuse and sexual abuse by a custodian. Petitioner seeks a reversal and remand of the case to the circuit court for a new trial. Grant 5- 0
20. State of West Virginia v. Richard Alan Poore - No. 090752. Defendant appeals his first degree murder conviction without mercy. Defendant raises issues related to the jury, prosecutorial misconduct, ineffective assistance of counsel, Rule 404(b) evidence, and a due process violation due to the delay between the commission of the crime and defendant’s trial. Accept to Motion Docket
Home | Opinions | Site
Map | Law
Library | Rules | Staff | Search | Terms
of Use