Argument
Docket
Tuesday, September 19, 2006
Marshall University
Joan C. Edwards Performing Arts Center
1. Tax Commissioner of the State of W. Va. v. MBNA America Bank, N.A. - 33049 - Appellant, MBNA America Bank (hereinafter “Bank”) is a Delaware financial organization whose principal business is issuing and servicing Visa and MasterCard credit cards. The Bank solicits, issues and services credit cards to people with West Virginia addresses. The taxes at issue are computed by taxing the portion of income attributable to gross receipts received by the Bank from this West Virginia source pursuant to the West Virginia Business Franchise Tax and Corporate Net Income Tax under W.Va. Code §11-23-5(a) and §11-24-7(b). This case originated as an action by the Bank to recover a refund of the taxes paid for the years 1998 and 1999. Initially, the Chief Administrative Law Judge of the Office of Tax Appeals determined that the Commerce Clause of the United States Constitution and the applicable state statute prohibit the Commissioner’s imposition of the tax at issue. The State Tax Commissioner appealed the decision of the Chief Administrative Law Judge to the circuit court. The circuit court reversed the final decision of the Office of Tax Appeals and denied the Bank’s cross-petition for appeal holding that the Commerce Clause permitted the Commissioner’s imposition of the tax. The Bank now appeals that decision, asking this Court to reverse the circuit court, arguing that the taxes as imposed violate the Commerce Clause of the United States Constitution.
2. Mark Mikesinovich, Executor. v. Reynolds Memorial Hospital, Inc. - 32968 - This is an appeal by the Plaintiff below from the circuit court's order denying his motion for a new trial following an adverse jury verdict in a medical negligence action against the Hospital. Appellant’s mother was a patient at the Hospital when she fell and broke her hip while being assisted by a nurse. Appellant argues the trial court erred in refusing to strike certain jurors with disqualifying bias identified in the juror questionnaire and asks, does a party have a right to try a case to a fair and unbiased jury? The Hospital argues the fall was through no fault of the nurse or the Hospital, as is supported by the jury verdict, which had nothing to do with the composition of the jury. The Hospital states the plaintiff failed to prove its case. Additionally, the Hospital argues that the plaintiff invited the error now complained of by insisting on using a juror questionnaire regarding medical malpractice liability crisis in West Virginia, precluding reversal. Finally, the Hospital argues that the voir dire of prospective jurors supports their freedom of bias or prejudice and the jury returned a verdict based on the law and evidence.
3. State of W. Va. v. Norma Jean Saunders - 33034 - Norma Jean Saunders appeals her conviction upon conditional guilty plea of one count of a felony violation of the Solid Waste Management Act, W.Va. Code § 22-15-15(b)(4). She operated a landfill and received a cease and desist order for various violations from the West Virginia Department of Environmental Protection. Her conviction arises out of her failure to abide by the terms of the order. She was sentenced to six months probation and ordered to pay a fine. On appeal she argues that the indictment failed to allege an essential element of felony offense in that the indictment charged her with violating an enhancement statute that requires a prerequisite conviction before a felony can be imposed. Additionally, she argues that the statute under which she was charged is vague and therefore unconstitutional. The State responds, saying there is nothing unclear or uncertain, let alone unconstitutionally vague about the statute in question. The State argues that by entering a plea of guilty, she admitted that the evidence was sufficient to support a felony conviction. Arguing that statutory construction supports the conviction, the State asks this Court to affirm the sentence.
4. Joseph E. Ryan v. Clonch Inudstries, Inc., et al. - 33001 - Appellant, 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 intention workplace injury case. In order to prevail in a deliberate intention claim, the employee must prove all five elements of the subject statute by a preponderance of the evidence. Appellant was working as a “bander”, cutting and strapping metal bands around stacks of lumber for the employer sawmilling company, when he was struck in the eye with a piece of metal and lost the vision in his eye. He argues that the employer never warned him of the inherent dangers of the specific task and did not provide him with proper safety equipment, namely eye protection. The employer argues that the prerequisites of a deliberate intent action have not been met, and therefore immunity is afforded under the workers’ compensation statute.
The briefs and other filings are provided in PDF format.
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Friday, September 08, 2006