| 1. |
Catherine Bond Wallace No. 001624
Grant 5-0 |
Petition for Writ of Mandamus in Brenda Kay Patton v.
Honorable Kendrick King, No. 001624. Petitioner seeks
to direct Judge King to enter an order requiring husband to
make payments in divorce matter. In her divorce
proceeding Petitioner was awarded: (a) $312 per month
for house payments; (b) $550 per month for child support;
and (c) $150 per month for alimony. There was a
subsequent downward modification of the child support in
the amount of $209 representing the father's social security
award that was paid to the child. Petitioner states her ex-husband (a) has failed to make the house payments since October 1995; (b) has failed to pay all of the child support obligations; and (c) has failed to pay all of the alimony obligations. A contempt hearing was held on December 18, 1996. An arrearage computation sheet was filed by the Child Advocate Office on January 10, 1997. On September 25, 1998, following a status conference on the ex-husband's motion for modification, FLM Gloria Stephens ordered that the modification issue would be held in abeyance pending the contempt proceedings. The contempt hearing was scheduled for June of 1999 but was continued by the Respondent and rescheduled for July 19, 1999. On July 23, 1999 the contempt hearing was continued and parties were given to August 16, 1999 for any submission. A hearing was held in September of 1999 following which Petitioners submitted a proposed order with arrearages at $81,342. A proposed final order was submitted from the ex-husband on October 11, 1999, but there has been no order from the court. |
| 2. |
Paul S. Perfater No. 000316
Refuse 3-2 |
Petitioner seeks leave to file a second Petition for Appeal
Out-Of-Time in Dairyland Insurance Company v. Joshua
Walker, No. 000316. The first Petition for Appeal
concerned whether Dairyland Insurance Company could
exclude Joshua Walker from underinsured coverage when
he was a relative and household member of the
policyholder. That petition was refused 3-2 in May of
2000.
Joshua Walker seeks to file a second Petition for Appeal asserting this Court may not have considered a relatively new opinion in Mitchell v. Broadmax, ___ W.Va. ___, No. 25539 (February 18, 2000). Petitioner also asserts the motion to supplement the first petition was never acted upon. |
| 3. |
Howard M. Persinger, III No. 27464 [See next two motions.] Grant 5-0 |
Motion for File Amici Brief in The Estate of Marjorie I.
Verba v. David A. Ghaphery, M.D., No. 27464. The
underlying appeal challenges the constitutionality of $1
million cap on non-economic damages in medical
malpractice cases. Movants state they are party plaintiffs in
an unrelated medical malpractice action pending in Putnam
County. Movants seek to file an amici brief out-of-time
stating their brief sets forth additional considerations to the
briefs already filed. |
| 4. |
Ancil Ramey No. 27464 [See next motion.] Moot |
Motion to Strike Amici brief in The Estate of Marjorie I. Verba v. David A. Ghaphery, M.D., No. 27464. Defendant health care provider in the lower court seeks to strike the amici brief in the immediately preceding item as untimely unless he has the opportunity to respond to new considerations and arguments set out therein. |
| 5. |
Robert Fitzsimmons No. 27464 Moot |
Objection Motion to File Amici Brief in (Item 3 above) The Estate of Marjorie I. Verba v. David A. Ghaphery, M.D., No. 27464. Appellants in the above-referenced matter object to the motion of the Chapmans to file an amici brief arguing the matter is set for argument on September 6 and the granting of the motion would potentially require additional time to respond. Appellants also object on the basis that the proposed amici brief raises new and distinct issues but which would not assist the Court on the issues. |
| 6. |
David L. Zehnder No. 001799 Refuse 5-0 |
Inmate Pryor seeks an emergency Petition for Writ of
Mandamus in Richard B. Pryor v. Paul Kirby,
Commissioner, WV Division of Corrections, et al., No.
001799. Pryor seeks to be held in the Northern Regional
Jail. Pryor has received numerous death threats from
inmates currently housed in Mount Olive and
Huttonsville stemming from his disclosure in 1995 of a
plot of fellow inmates to take hostages at the former
penitentiary. By court order Pryor was being held at the
Northern Regional Jail pending disposition of criminal
charges stemming from his assault on a guard.
However, Pryor's conduct at the Northern Regional Jail
continued to be disruptive to the point the Division of
Corrections moved to have him transferred. The motion
was granted and Pryor was transferred to Mount Olive
even before the emergency Petition was filed. Pryor is being held at Mount Olive in segregation without other inmate contact and will continue in that status at Mount Olive. Division of Corrections argues that inmates have no right to choose the facility in which they are incarcerated and that Pryor has other adequate remedies by law. The Division states that Mount Olive is the only segregation unit suitable for long term segregation of inmates who are not suitable, either by their own conduct or by virtue of a need for protection, to be placed in a general population setting. The Division also states it must be given deference in the management of its facilities. Pryor has requested leave to amend his emergency Petition requesting transfer to Northern Regional Jail stating if he continues to be held at Mount Olive he will live under the shadow of death threats. Pryor adds that he could be transferred from segregation or to any other facility at any time. |
| 7. |
William L. Mundy No. 000382 Grant 5-0 |
Motion to Allow Respondent to File a Response Out-of-
Time to Petition for Appeal in Lora D. Kiser v. Carrel
Mayo Caudill, M.D., No. 000382. This case is set on
Motion Docket for October 3, 2000. Defendant below,
Dr. Caudill, moves to file a response to Petition for
Appeal out of time. Petition for Appeal filed on
February 3, 2000 seeking to reverse Judge Zakaib's
grant of directed verdict in medical malpractice action.
Counsel for defendant below states he did not receive
notice of Petition for Appeal until late June in a
telephone call with counsel for Petitioner due to change
of address of his law office. Counsel for movant states he then obtained a copy of the Petition, contacted the Circuit Court to obtain a transcript, and prepared this motion together with prepared Response. |
| 8. |
James W. McNeely No. 27316, 27317, and 27318 Refuse 5-0 |
Petition for Release of Bond in Dorothy Kyle Czaja v. Mark Czaja, No. 27316. Appellant moves for release of a bond required to be posted pending appeal of lower court's award of attorney's fees against appellant's counsel for contempt of court. A Petition for Rehearing has been filed in this matter and is scheduled to be presented this same date. |
| 9. |
Roberta F. Green No. 27663
Refuse 4-1 |
Motion for Leave to File Surresponse in Pamela S. Pleasants v. Alliance Corporation, No. 27663. This matter has been briefed by both sides. Appellee seeks to file a Surresponse to the Reply Brief in which Appellant is charged with making factual references and addressing factual issues not in the record, referencing matters occurring after the trial, and arguing new issues first raised on appeal. |
| 10. |
R. Noel Foreman No. 001803 Grant 5-0 |
Petition for Writ of Prohibition in Mitsubishi Caterpillar
Forklift America Inc. v. Dwight Thompson, et al., No.
001803, of circuit court order substituting Mitsubishi for
Caterpillar, Inc. in personal injury suit involving
industrial accident. After case was removed to federal
court, it became known that perhaps Mitsubishi was a
proper defendant rather than Caterpillar which was one
of several defendants named in the Complaint. A
standard pretrial order in federal court required parties
to confer with regard to a discovery plan. Regional
counsel for Mitsubishi was contacted and he sought at
least to monitor that conference. Counsel for plaintiffs
agreed that Mitsubishi could participate on the express
condition that if it was determined that Mitsubishi was a
proper defendant, there would be an agreed substitution
of parties. Following the discovery plan telephone conference in which Mitsubishi's counsel participated, a report was sent by plaintiff's counsel to the federal court. The report referenced the agreement and no objection was raised thereto. Following remand to the state court, Mitsubishi's counsel admits he agreed to accept service of an amended complaint but disagreed that discovery could continue against Caterpillar. Pending a motion for sanctions against Mitsubishi, plaintiffs have filed a separate suit against Mitsubishi which has been removed. Circuit Judge Recht found no party contested that there was to be an agreed order substituting Mitsubishi and the only issue was how that was to be accomplished. The court ordered substitution. Mitsubishi argues that plaintiffs have not amended the complaint, that it has never been served with a summons and complaint, and that it has never consented to state court jurisdiction. Plaintiffs argue that Mitsubishi's “special appearance” to contest jurisdiction was of no effect and was waived given the prior “general” appearance by Mitsubishi in the planning conference. |
| 11. |
Stephen R. Crislip No. 001804
Grant 4-1 |
Petition for Writ of Prohibition in One-Gateway
Association v. The Honorable Gary L. Johnson, No.
001804, to prohibit the circuit court from enforcing an
injunction requiring the Division of Highways (DOH) to
close an access road which permits public access to
commercial property owned by Gateway on which there
stands a Super Wal-Mart and other businesses. The
same issue was presented to the Court at such time as the
DOH sought to appeal an injunction order which this
Court refused (3-2) (Maynard, C.J. and Scott, J.) Gateway and DOH had a contract under which the DOH agreed, if necessary, to condemn a small portion of property owned by Retail Designs, Inc. (RDI) to construct the access road. Upon the denial of the condemnation petition, DOH opened what had been a temporary construction entrance to provide the access road. RDI brought injunction proceedings and the court found there was burden or servitude upon RDI property by additional traffic and congestion which was constitutionally defective as a State taking of private property for a private use. Gateway makes the same argument as did the DOH in seeking to appeal that decision that an injunction does not lie and the proper relief lies in mandamus (to compel the DOH to institute eminent domain proceedings). Gateway also argues that it was never given notice of the RDI suit for injunctive relief by RDI or the lower court. Gateway also contends it was an indispensable party to that suit and complains that no bond was posted. RDI argues that a Gateway principal was a witness in the eminent domain proceedings and that Gateway probably had knowledge of the injunctive proceedings. (Gateway expressly denies knowledge of that suit.) RDI states this Court has already considered and rejected any challenge to the form of relief in the DOH appeal. RDI states that no relief was sought against Gateway in the injunction proceeding and that no bond was necessary because the lower court delayed the effective date of the order to close the entrance 6 months for the DOH to consider additional safety and traffic pattern matters. |
| 12. |
J. Michael Ransom No. 001943 Refuse 5-0 |
Petition for Writ of Prohibition in Eugenia Mosohgat v. The Honorable Paul Zakaib, Jr., No. 001943, seeking to prohibit the lower court from receiving evidence beyond the scope of the Declaratory Judgment Act and allowing potential statutory beneficiaries from acting as plaintiffs in wrongful death suit. Suit was filed by decedent's daughter as personal representative and brothers and sisters of decedent have been permitted to intervene as party plaintiffs. |
| 13. |
Marc P. Turgeon No. 001474 Refuse 5-0 |
Petitioner seeks a personal recognizance bond pending resolution of his Petition for Appeal in State of West Virginia v. Dean Eugene Gamble, No. 001474. Gamble was on bond and awaiting trial on three misdemeanor indictments in Fayette County. In February of 1999, he fled to North Carolina in violation of his bond where he was arrested for number of unrelated felony charges. His Petition for Appeal alleges failure to provide a timely trial within 180 days of his demand under the Interstate Agreement on Detainers, failure to credit him for the time (seven months) he was denied bond and detained in jail in North Carolina due to West Virginia detainer, and the lower court failed to consider his indigent status in fining him $2,000. |
| 14. |
H. C. Woods, Jr. No. 001596 Refuse 5-0 |
Petitioner seeks review of Boone County Circuit Court's denial of post-conviction bail pending preparation of appeal in State of West Virginia v. Brandon Beverly, No. 001596. Petitioner was convicted of numerous offenses including fleeing in a vehicle while under the influence of alcohol and assault on an officer and received a one to five year sentence on the fleeing charge and lesser sentences on the other counts. There have been difficulties obtaining a transcript. Petitioner previously had his bail revoked for violation of bond conditions. The State adds that Petitioner appeared at a revocation drunk and threatened Judge Schlagel by stating words to the effect “If you revoke my probation, there is nowhere you can hide, buddy.” |
| 15. |
Jennifer A. Keadle No. 00-058 Refuse 5-0 |
Guardian ad Litem in In re James M., No. 00-058 requests a stay of circuit court order granting supervised visitation to separate fathers of two minors (ages 10 and 5) who are in the custody of the DHHR following the mother's assault on one of the children. The Guardian requested that no visitation by either father (both of whom lived out-of-state and had no relation to the incident) on the ground that a counselor's affidavit stating that contact by any family member “may hinder valuative abilities of the therapist” and would diminish her credibility as a witness in subsequent criminal proceedings. |
| 16. |
Charles M. Hatcher, Jr. No. 002048
Refuse 3-2 |
Defendant in Meredith Lee VanHoose v. Alfred E.
Ferguson, No. 002048, seeks writ of prohibition to stop
a trial on two charges of murder in Cabell County set for
September 8, 2000. The case has been continued several
times over three terms on the motions of the State or the
Court itself when the only witness to the incident --
defendant's wife -- could not testify due to the marital
privilege and defendant's refusal to waive same. The
wife eventually obtained a divorce in Kentucky which
was appealed by defendant. The lower court initially felt the appeal of the divorce would effectively block the wife's testimony. The defendant states that on that basis the judge said on July 27, 2000, that the case would not be set during that term of court. However, on August 29, 2000 during a hearing on defendant's motions relating to a speedy trial and after reviewing the file from Kentucky, Judge Ferguson ruled that the appeal did not constitute a stay of the proceedings, that the parties were divorced, and the ex-wife could testify. Both parties apparently announced they were ready for trial and trial was set for September 8, 2000. Defendant states based on the prior comments by the judge, they had not prepared for trial and that ten days is insufficient to do so. |