September 7, 2006

1.  Ira Gangopadhyay v. West Virginia Department of Health and Human Resources/Office of Health Facility Licensure and Certification, No. 060965. Department of Health and Human Resources appeals from a decision of the Human Rights Commission, which adopted the administrative law judge’s final decision ruling that DHHR had engaged in discriminatory practices against complainant as a result of race and/or national origin.  

2.  Alliance Capital Management L.P., Alliance Capital Management Holding L.P., Janus Capital Group, Inc., Janus Capital Management LLC, Liberty Ridge Capital, f/k/a Pilgrim Baxter & Associates, Ltd., and Massachusetts Financial Services Company v. Glen B. Gainer, III, Auditor of the State of West Virginia, No. 061453. Petitioners appeal from the circuit court’s order dismissing their petition for a writ of prohibition directed against the West Virginia Securities Commissioner and seek a reversal of that order and an issuance of a writ of prohibition vacating the Auditor’s summary orders and prohibiting the Auditor from taking certain action.

Refuse 5 - 0 

3.  Bonnie O. Person v. Robert Lee Person, No. 061066. Plaintiff wife appeals from the circuit court’s order entered in this domestic litigation.

4.  Bonnie O. Person v. Robert Lee Person, No. 062249. Defendant husband files this counter petition for appeal from the circuit court’s order and challenges, among other things, its valuation of certain real estate in this domestic litigation.

5.  Lawrence Brent Boggs v. Raymond A. Holmes, Donald M. Hahs, and James Farren, No. 060827. Defendants appeal from the circuit court’s answers to certified questions as follows:
CERTIFIED QUESTIONS:
    1.   Does West Virginia Code § 61-5-27 apply to members of the West Virginia Legislature? Specifically: 
    1.  Is a member of the West Virginia Legislature a "public official" who is protected from retaliation under this statute, § 61-5-27(a)(5);
 Answer: XX Yes            ____ No
and
    2.  Are sessions of the West Virginia Legislature "official proceedings" of a "tribunal," as defined by § 61-5-27(a)(3) and (7)?
Answer: XX Yes             ____No

2.  Does West Virginia Code § 61-5-12 apply to members of the West Virginia Legislature? Specifically:
        1.  Is the Legislature the type of "part-time elected public office" covered by § 6-5-12;

 Answer: XX Yes            ____ No
and
        2.  Is termination or discharge from employment the type of "penalty" envisioned by § 6-5-12?
Answer: XX Yes            ____ No

3.  Are Plaintiff’s claims under West Virginia Code § 61-5-27 and § 6-5-12 preempted by the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. §§ 401–531?
 Answer: Yes ___             XX No

6.  Nicholas Hudson Doeffinger v. Intrawest Corporation, Canadian Corporation; Intrawest Resorts, Inc., a Delaware Corporation; Intrawest Snowshoe Development, Inc., a West Virginia Corporation; Snowshoe Mountain, Inc., a West Virginia Corporation; Snowshoe Mountain, Inc. d/b/a Silver Creek Resort, Inc., a West Virginia Corporation; and Snowshoe Mountain, Inc. d/b/a TDC Management, Inc., a West Virginia Corporation , No. 061078. Defendants present for this Court’s consideration the following certified question.

Whether venue in a personal injury snowboarding action which occurred in Pocahontas County lies in Kanawha County against six affiliated corporate defendants: (1) when two of the defendants are not currently in existence and were not in existence at the time of the accident; (2) when two the defendants are West Virginia corporations whose principal offices are not located in Kanawha County and whose chief officers do not reside in Kanawha County; (3) when two of the defendants are foreign corporations whose principal offices are located outside of West Virginia, whose chief officers reside in Kanawha County; but (4) when one the West Virginia corporations engages in marketing and advertising activities in Kanawha County?

Refuse 3- 2
 [ Maynard, J.  & Benjamin, J. ]

7.  In Re: Ciara N.W., No. 061234. A juvenile’s mother appeals the circuit court’s order adjudicating her child a status offender in a juvenile proceeding which took place without notice to her.

Refuse 5 - 0 

8.  In Re: The Child of Craig C. Wilson and Tammy Sue Wilson, No. 061254. Petitioner mother appeals from the circuit court’s order dismissing her petition for appeal without a hearing.

9.  State of West Virginia v. Marjorie V. Green, No. 061398. Defendant appeals from her convictions on two counts of negligent homicide following a jury trial. Defendant seeks to have her verdict set aside and a judgment of acquittal entered.

10.  Timothy J. Topardo, Jr. v. Robin M. Topardo, and Old Republic Surety Company, No. 061432. Plaintiff appeals from the circuit court’s order granting summary judgment in favor of the surety company on the bad faith issues in this action for a bond covering a settlement in an infant summary proceeding.

Refuse 5 - 0 

11.  Posey Phillips, now deceased, and Ethel Phillips v. Bryce Phillips and Pauline Phillips, No. 061434. Plaintiffs appeal from the circuit court’s order refusing to clarify its earlier order and assert that the circuit court exceeded its authority as to the scope of the underlying civil action.

Refuse 5 - 0 

12.  Paula Ray Moore O’Brien, Mae O. Moore Wickham, Ruth Moore and Patsy R. Laird v. Donald E. Anderson, No. 061435. Defendant appeals from the circuit court’s order entered following a jury verdict, which set aside a Will and awarded monetary damages to plaintiffs.

13.  Alice Jean Murphy, in her capacity as administratrix of the Estate of Michael E. Murphy, M. Todd Murphy, and Debra L. Davis v. Olive Mae Murphy, individually and in her capacity as executrix of the Estate of George P. Murphy, No. 061436. Plaintiffs appeal from the circuit court’s order granting summary judgment in favor of defendant in this Will contest action.

Refuse 5 - 0 

14.  Christopher Lee Davis v. Thomas McBride, Warden, Mount Olive Correctional Center, No. 061443. Petitioner appeals from the circuit court’s order denying his petition for habeas relief. Petitioner asserts that both his state and federal constitutional rights have been violated.

15.  Lois R. Johnson; Tuscarora Realty, Inc., a West Virginia corporation; Thunderbird Hills, Inc., a West Virginia corporation; Tuscarora Associates, Inc., a West Virginia corporation; Adam W. Brooks and Caroline R. Brooks, infants, by their next friend and father, Ted A. Brooks; and James C. Johnson, Jr., an infant, by his next friend and father James C. Johnson v. Joe D. Michael and Marilyn V. Michael, No. 061396. Plaintiffs appeal the circuit court’s order dismissing their complaint without prejudice. They assert the court should have granted their motion to dismiss their own lawsuit with prejudice.

Refuse 5 - 0 

16.  Gary E. Collins and Sally Ann Collins, his wife v. Ashok R. Kumar, No. 061355. Plaintiffs in a personal injury case appeal from the jury verdict which found plaintiff 50% liable, and from the denial of their motion for new trial.

17.  In Re: S.W., a juvenile, No. 061471. S.W. appeals the disposition of his juvenile delinquency case.

Refuse 5 - 0 

18.  Kathy Jean Gregory (Gates) v. James A. Gregory, No. 061473. Ex-husband James Gregory appeals the circuit court’s order which granted the appeal of his ex-wife Kathy Gates (formerly Gregory) in a case about ongoing jurisdiction over issues concerning their children. The circuit court ordered jurisdiction over the case transferred to Virginia, where Ms. Gates and the children now reside.

Refuse 5 - 0 

19.  State of West Virginia v. Joshua Scott Cunningham, No. 061475. Joshua Scott Cunningham appeals his conviction for first degree murder with a recommendation of mercy.

Refuse 3- 2
 [ Starcher, J.  & Albright, J. ]

20.  State of West Virginia v. Jeremiah David Mongold, No. 061491. Jeremiah David Mongold appeals his conviction for "Death of a Child by Custodian as a Result of Child Abuse" for which he was sentenced to 40 years in prison.

21.  Patrick Bowen and Elaine Bowen, Christina B. DeBiase, Timothy Lee Mitchum and Katherine Jane Mitchum, and Glenn Voithofer III and Paula Ann Voithofer v. SCRP, LLC a West Virginia limited liability company, No. 061492. Plaintiffs appeal the circuit court’s order granting summary judgment in favor of defendant in a case involving the use of a road.

Refuse 5 - 0 

22.  Justin Ratcliff v. Mineral County Board of Education, No. 061494. Petitioner appeals from the circuit court’s order which reversed the Grievance Board and upheld petitioner’s termination from his employment as a school bus operator.

Refuse 5 - 0 

23.  Norma Shanks Keesling, Dorothy C. Gierhart, Claude L. Cornett, Mabel Hurst, Dollie C. Wright, Doris Cornett Sims, Calvin Mack Cornett, Jr., Kimberly C. Lawson, Eddie Lee Cornett, Deborah C. Sugarman, Timothy Cornett, and Theresa C. Vitello v. Walter P. Joyce, individually and as Executor of the Estate of Martha J. Cornett, Carolyn Joyce Jones, Earnest Joyce, Judy Joyce Crews, Barbara Joyce Hicks, Orda Jane Joyce, Linda Cornett Kyer, Marilyn Cornett Steele, Virginia Cornett, Charlie Lonnie Cornett, and Pamela R. Andrews, No. 061518. Plaintiffs appeal the circuit court’s summary judgment order which found that certain funds invested by a decedent are non-probate assets.

Refuse 5 - 0 

24.  State of West Virginia v. Lucas Lynn McVay, No. 061528. Lucas Lynn McVay appeals his conviction for first degree murder under the felony murder rule [predicate offense burglary], robbery in the first degree, and two counts of conspiracy. He was sentenced to life with the possibility of parole, plus a consecutive 81 to 85 years.

Refuse 5 - 0 

25.  State of West Virginia v. Matthew Lucas Davis, No. 061544. Petitioner appeals his sentence for DUI, third or subsequent offense, and driving while license suspended for DUI, third or subsequent offense. The court imposed two consecutive sentences of 1 to 3 years.

26.  State of West Virginia v. James A. Richard, No. 061565. James A. Richard appeals his sentence of 1 to 3 years for felony battery on a police officer.

Refuse 5 - 0 

27.  Forrest H. Taylor v. Marinda L. Taylor, No. 061570. Petitioner appeals a final order dated November 16, 2005 by the Family Court Judge Robert Sowa regarding a parenting plan, equitable distribution and attorney fees. Judge Alsop affirmed the Family Court Judge by his Order dated January 12, 2006 and January 23, 2006.

Refuse 5 - 0 

28.  Lawrence E. Scible v. William Haines, Warden, No. 061572. The petitioner appeals the denial of his request for Habeas Corpus relief. Mr. Scible argued below that he received ineffective assistance of counsel during his trial. The lower court dismissed the petition as being procedurally barred.

Refuse 5 - 0 

29.  State of West Virginia v. James Reginald Jones, II, No. 061592. This is an appeal of the criminal conviction of two counts of involuntary manslaughter. The Circuit Court denied Post-Trial Motions and sentenced petitioner to a term of one year for each count.

Refuse 5 - 0 

30.  Robert Leonhard and Carol Leonhard v. Superior Home Sales, Inc., et al., No. 061594. Pursuant to Code §58-8-2, the petitioner in this intellectual property case certifies the following question to the Supreme Court of Appeals: 

Whether the licensing of a non-resident licensor’s intellectual property to a nonresident licensee subjects the licensor to the personal jurisdiction of a circuit court of West Virginia when the licensor does not directly conduct business in West Virginia; is not licensed to do business in West Virginia; does not own real property in West Virginia; does not directly manufacture, sell, ship, or supply any products, goods, or services to West Virginia; initiates no direct advertising or solicitations to residents of West Virginia; but the licensor makes available to licensee certain materials to be used in constructing the product, provides the licensee with a defined territory within West Virginia in which to market the product that is produced by the licensor’s intellectual property, and permits the licensee to use the licensor’s intellectual property in the construction, manufacture, and installation of an allegedly defective product that is ultimately attached to real property in West Virginia?

 Answer: The Circuit Court answered in the affirmative and found personal jurisdiction over Superior Walls.

31.  Andrew Moten v. F. Douglas Stump, Comm’r. DMV, No. 061642. Petitioner seeks an appeal from the Raleigh County Circuit Court which denied a Motion for Reconsideration and in the alternative, the Motion for Relief from Judgment entered on February 10, 2006.

32.  Hartley Hill Hunt Club v. Ritchie County Commission & West Virginia Farm Bureau, Inc., No. 061643. Plaintiffs filed a civil action challenging the prohibition of Sunday hunting in Ritchie County, West Virginia. The Circuit Court found in favor of the respondents, the County Commission.

Grant 2- 2
 [ Maynard, J.  & Albright, J. ]
[ Benjamin, J. Disqualified ]

  Home | Opinions | Site Map | Law Library | Rules | Staff  | Search  | Terms of Use