January 11, 2006
1. Estate of Garrison G. Tawney, by Lela Ann Goff, Executrix, Lela Ann Goff and Vernon B. Goff, husband and wife, Janice E. Cooper and Clifford R. Cooper, husband and wife, Larry G. Parker, John W. Parker, Richard L. Ashley, Myrtle Jones, by her Attorney-in Fact, Orton A. Jones v. Columbia Natural Resources, LLC, f/k/a Columbia Natural Resources, Inc., a Texas corporation; Nisource Inc., a Delaware corporation; and Columbia Energy Group, a Delaware corporation , No. 052359. The circuit court presents the following certified questions and its answers to those questions:
Question 1: Where the royalty language is as set out in Exhibit A, may a lessee of oil and gas in West Virginia deduct money and/or volume from the lessor’s 1/8 royalty payments for post-productions expenses, where the lease does not provide specifically that the lessee may take such deductions from the royalty?
This Court answers Question 1: "No."
Question 2: Where in an oil and gas lease there is no specific provision allowing for deduction of post-production expenses does language such as "wholesale market at the well," "amount realized at the well," "net revenue realized," "1/8 of price," "net of all costs beyond the wellhead," and other language as set forth on Exhibit A, grant to the lessee the right to deduct post-production expenses from the lessor’s royalty (assuming for purposes of this question that such expenses were reasonable and actually incurred)?
This Court’s answer to Question 2 is "No."
Grant 4- 0
[ Davis, J. & Benjamin, J. Disqualified ]
[ Kaufman, Judge Sitting by Designation ]
2. State of West Virginia v. Orville C. Massey, Jr., No. 051191. Defendant was convicted on 206 counts of sexual abuse and sexual assault of his step-daughter during the 1970's. Defendant seeks a reversal of his convictions and a new trial.
Refuse 3- 2
[ Starcher, J. & Albright, J.]
3. Estate of Mervil G. McClure, Glenna L. Mayle, Objector v. Betty J. Rhule, as Executrix of the Estate of Beulah M. McClure, Executrix of the Estate of Mervil C. McClure - No. 052372. Petitioner appeals from the circuit court’s order affirming the order of the County Commission, which adopted the recommendations of the fiduciary commissioner.
Refuse 4- 1
[ Albright, J.]
4. State of West Virginia v. Lydia D. - No. 052373. Petitioner seeks a reversal of the dispositional order in this juvenile proceeding and a remand with directions for the circuit court to convene a multi-disciplinary team to allow consideration of a service treatment plan and recommendation of placement.
Remand
5. Jerril Davis and Virginia Davis and David Holdren and Sharon Holdren, et al. v. Maben Energy Corporation, et al. - No. 052480. Defendant J. H. Fletcher & Company files its petition for appeal pursuant to an order certifying questions to this Court. The Order of Certification has been entered in seven civil actions pending before the circuit court.
THE CIRCUIT COURT HAS CERTIFIED THE FOLLOWING QUESTIONS:
1. Whether a determination of liability predicated on a roof bolter dust collection system design that has not been heretofore deemed permissible by MSHA/Secretary of Labor is subject to preemption by virtue of the conflict between such a judicial determination and 30 U.S.C.A. § 844 and/or the occupation of the field of roof bolter dust collection system design by Federal regulatory authorities.
ANSWER: YES.
Whether a determination of liability predicated on a failure to warn relating to a roof bolter’s dust collection system via a warning not specifically prescribed by MSHA/Secretary of Labor is subject to preemption by virtue of the conflict between such a judicial determination and 30 U.S.C.A. § 844 and/or occupation of the field of roof bolter dust collection system and dust control warnings by Federal regulatory authorities.
ANSWER: YES
Accept To Motion Docket
[ Davis, C. J. Disqualified ]
6. George Richard Currence and Margaret Donna Currence v. Terry Joe Ball, and American Home Assurance Company - No. 052375. Plaintiffs appeal from the circuit court’s order awarding judgment in favor of defendant insurer on an insurance coverage issue.
Refuse 5- 0
7. George Richard Currence, Margaret Donna Currence v. Terry Joe Ball, and American Home Assurance Company - No. 052376. Defendant, Terry Ball, appeals from the circuit court’s order granting summary judgment in favor of defendant insurer in this declaratory judgment action regarding insurance coverage.
Refuse 5- 0
8. State of West Virginia v. Robert W. Moats - No. 052378. Defendant appeals from the circuit court’s order denying his appointed counsel’s motion to withdraw prior to defendant’s sentencing hearing. Defendant seeks a reversal of the court’s decision not to remove counsel prior to the sentencing and to vacate its sentencing order with a remand for further proceedings.
Refuse 4- 1
[ Starcher, J.]
9. Mark Mikesinovich, Executor of the Estate of Mary E. Mikesinovich v. Reynolds Memorial Hospital, Inc. - No. 052406. Plaintiff appeals from the circuit court’s order denying his motion for a new trial following an adverse jury verdict in this medical negligence action.
Grant 5- 0
10. State of West Virginia v. Ernest J. Johnson - No. 052318. Ernest J. Johnson appeals his conviction for second degree robbery and his sentence as an habitual offender to life with mercy.
Accept To Motion Docket
11. State of West Virginia v. Brad Oley Lester - No. 052443. Bradley Lester appeals his conviction for first degree murder without a recommendation of mercy.
Accept To Motion Docket
12. Smithers Police Department, Chief G.L. Perdue v. Terry Lee H. - No. 052451. A juvenile appeals from a dispositional order which sentenced him to incarceration in a juvenile correctional facility until his 18th birthday.
Refuse 5- 0
13. SER Jerry Lee Bonds v. Thomas L. McBride, Warden - No. 052452. Petitioner Jerry Lee Bonds appeals the denial of his omnibus petition for a writ of habeas corpus.
Refuse 5- 0
14. John Parsons and Sherrie Parsons v. Russell L. Schreiber, D.O. - No. 052467. Defendant Russell L. Schreiber, D.O. appeals in a medical malpractice case.
Accept To Motion Docket
15. State ex rel. Geoffrey Oliver v. George Trent, Warden, Mount Olive Correctional Complex - No. 052470. Geoffrey Oliver appeals the circuit court’s denial of his renewed petition for a writ of habeas corpus. He is presently incarcerated for first degree murder with a recommendation of mercy. He asserts that prejudicial hearsay evidence was admitted at his 1996 trial in violation of the holding of the more recently decided Crawford v. Washington, 124 S.Ct. 1354 (2004).Refuse 5- 0
16. Joseph E. Ryan v. Clonch Industries, Inc., a West Virginia corporation, and H & D Lumber Distributors, Inc., a West Virginia corporation - No. 052471. Plaintiff Joseph Ryan appeals the circuit court’s order granting summary judgment in favor of defendant employers Clonch Industries, Inc. and H & D Lumber Distributors, Inc. in a deliberate intent workplace injury case.
Accept To Motion Docket
17. Fraternal Order of the Owls Nest 4520 Inc. d/b/a The Hot Spot v. Board of Zoning Appeals of the City of Charleston, West Virginia - No. 052374. The Fraternal Order of the Owls Nest 4520, Inc. d/b/a The Hot Spot appeals the Circuit Court’s order affirming the decision of the City of Charleston’s Board of Zoning Appeals. The BZA found that the petitioner did not have a vested property right to operate a proposed gambling establishment at a particular location and that petitioner was not "grandfathered" from the effects of a city zoning ordinance which imposes a 2000 foot separation requirement on certain gambling establishments.
Accept To Motion Docket
18. State of West Virginia v. Anthony Ray Whitt - No. 052482. Anthony Ray Whitt appeals his conviction for second degree murder.
Accept To Motion Docket
19. State of West Virginia v. John Rodney Johnson - No. 052487. John Rodney Johnson appeals his conviction for first degree murder without a recommendation of mercy.
Accept To Motion Docket
20. Samantha Sells v. Arnold Ray Thomas, Kenneth E. Chittum, State Farm Mutual Automobile Insurance Company, an Illinois corporation, and Progressive Casualty Insurance Company, an Ohio corporation- No. 052502. Plaintiff Samantha Sells appeals the circuit court’s order granting summary judgment in favor of defendant Kenneth Chittum, Esq., on plaintiff’s legal malpractice claims.
Grant 5- 0
21. Barry M. Heavener v. John M. Droppleman, et al. - No. 052484. Petitioner appeals a jury verdict finding in favor of the respondents. It is asserted that the verdict was contrary to the law and evidence presented at trial. Petitioner alleges that he was the victim of assault, battery and outrageous conduct by members of the West Virginia State Police.
Accept To Motion Docket
22. State of West Virginia v. Mark Damron - No. 052503. Petitioner was convicted of one count of First Degree Arson and one count of Second Degree Arson. The Circuit Court denied petitioner’s motions to set aside the verdicts. On appeal, petitioner seeks a reversal of his convictions and requests a new trial.
Refuse 3- 2
[ Maynard, J. & Albright, J.]
23. George E. Ash, Sr. v. Ogden News Publishing of Ohio, Inc. - No. 052504. Petitioner, a Weirton City Councilman, asserted below that the Weirton Daily Times published a false and defamatory article about him. The Court below dismissed the case through summary judgment by stating that there was no genuine issue of fact.
Refuse 5- 0
24. Kathy Robin Nicely Spurlock v. CSX Transportation, Inc. - No. 052505. Petitioner appeals the lower court’s granting of summary judgment in favor of CSX on the issue of statute of limitations. Petitioner had filed the suit under the Federal Employer’s Liability Act claiming renal cell carcinoma as the result of exposures to solvent at the workplace.
Accept To Motion Docket
25. Bonnie Cheely v. Albert H. Cheely - No. 052520. Petitioner files an appeal from the circuit court’s order requiring petitioner to pay Bonnie Cheely $800 per month in alimony, which is asserted to be arbitrarily granted. Petitioner contends that the actual distribution is inconsistent with the Order of the court because the court did not apply the tax consequences of withdrawing funds from the retirement savings accounts.
Refuse 3- 2
[ Starcher, J. & Maynard, J.]
Home | Opinions | Site Map | Law Library | Rules | Staff | Search | Terms of Use