Thunderbolt Holdings, Ltd. LLC vs. George D. Conard
PA- Clinton W. Smith; J- F. Jane Hustead
* U.S. Bank provided funds to the defendant in the amount of $89,227.12. Thunderbolt is the assignee of U.S. Bank. Conard has not repaid the funds provided, despite agreeing to do so, the suit claims. Thunderbolt is seeking judgment in the amount of $89,227.12 with pre- and post-judgment interest.
Case number: 13-C-153

March 13
Toni Redmiles vs. GM Financial d/b/a Americredit Financial Services Inc.
PA- Hoyt Glazer, Jed Nolan; J- F. Jane Hustead
* Redmiles claims she financed a 2006 Jeep Liberty through the defendant and in 2010, she suffered a financial hardship and the vehicle was repossessed. She claims she immediately contacted GM to arrange to have the vehicle returned once the arrearage was paid in full. However, once she paid off the arrearage, the defendant failed to take the steps necessary to ensure that she received the title to the vehicle, among other things, and violated the West Virginia Consumer Credit and Protection Act, the suit claims. Redmiles is seeking actual, general, statutory and punitive damages and a preliminary and permanent injunction enjoining the defendant from repossessing the vehicle.
Case number: 13-C-157

Mary Morgan Wise vs. Quality Magnetite LLC and Joseph Crisel
PA- J. Ryan Stewart; J- David M. Pancake
* On Aug. 23, 2011, Wise was operating a 2001 Honda Civic and was traveling westbound on U.S. 60 near the First Street intersection in Huntington when Crisel, who was operating a 1997 Ford F350 owned by Quality, improperly crossed U.S. 60 and crashed into the driver’s side of Wise’s vehicle, the suit claims. Wise is seeking compensatory and punitive damages with pre- and post-judgment interest.
Case number: 13-C-158

David F. Meadows and Lavern H. Meadows vs. Co-Ex Plastics Tooling Inc.
PA- Ronald J. Flora; J- F. Jane Hustead
* The plaintiffs and the defendant entered into a lease agreement in 1995. The plaintiffs claim the lease expired and the defendant became a holdover tenant and was to vacate the property by Dec. 31 or a monthly rental payment of $5,000 would be imposed. The defendant has allegedly failed to vacate the property and has failed to pay rental payments. The plaintiffs are seeking compensatory damages.
Case number: 13-C-161

Stephens

HUNTINGTON – A former employee is suing Wal-Mart Stores Inc. Long-term Disability Plan in federal court after she claims her long-term disability benefits were wrongfully denied.

The Hartford Life & Accident Insurance Company and Does 1 through 10 were also named as defendants in the suit.

Deborah Youkers was employed by Wal-Mart and was a duly qualified participant in the long-term disability plan and duly complied with all of the conditions necessary to receive such benefits, according to a complaint filed March 12 in the U.S. District Court for the Southern District of West Virginia at Huntington.

Youkers claims the plan provided for the payment of disability benefits in the event that the participant became totally disabled.

In August 2009, due to neuropathy and a mass on her ribcage, Youkers became totally disabled by virtue of her inability to work as required by the plan and on Feb. 16, 2011, she received a letter from Hartford Senior Ability Analyst Philip K. Penney informing her that additional disability benefits would not be payable because she no longer met the plan’s definition of “disability,” according to the suit.

Youkers claims she appealed the denial on Aug. 15, 2011, and on Sept. 15, 2011, Hartford issued a final denial of her claim for benefits.

The conclusions of the defendants’ review were contrary to the true condition of Youkers and the objective medical evidence of her treating physicians, according to the suit.

Youkers claims she is due rights and benefits under the terms of the plan and the defendants’ denial was arbitrary, illegal, capricious, unreasonable, discriminatory and not made in good faith.

As a result of the defendants’ actions, Youkers sustained damages, according to the suit.

Youkers is seeking the Court to order the defendants to pay her benefits due under the plan; declare that all rights and benefits due to her are vested and non-forfeitable or, in the alternative, to award her a money judgment for all sums owed; and pre-judgment interest. She is being represented by J. Patrick L. Stephens of Underwood Law Offices.

U.S. District Court for the Southern District of West Virginia at Huntington case number: 3:13-cv-4897

HUNTINGTON – A Huntington police officer who has been recognized for his number of yearly DUI arrests twice in the last three years has had one he made last year called into question.

HPD Officer Joseph W. Koher is named as a co-defendant in a four-count civil rights suit filed by Nicholas Evans. In his complaint filed March 15 in U.S. District Court, Evans, 32 and of Huntington, alleges Koher stopped him without probable cause for DUI and later knocked him to the ground so as to add a charge of obstruction and pad his arrest record.

Evans’ suit is the fifth filed in the last year to allege civil rights violations by HPD.

According to the suit, Evans met with friends on St. Patrick’s Day 2012 at an undisclosed location in downtown Huntington. After leaving the establishment at an unspecified time, Evans was later stopped by Koher.

Upon approaching his window, Evans says Koher instructed him to get out of the car. When asked twice why he was being stopped, Koher, Evans alleges, said “Shut the (expletive) up.”

According to the suit, Evans complied and Koher began to place him under arrest. When he asked a third time why he was being arrested, Koher then swept Evans’ leg knocking him to the ground, the suit claims.

Once on the ground, Evans alleges Koher “slammed his face into the pavement with his hand on the back of his head.” Afterwards, Koher charged Evans with DUI and obstructing.

According to the suit, the charges were later dismissed.

In his suit, Evans alleges his arrest is not an isolated incident, but rather “a pattern or practice of [Koher] pulling vehicles over without reasonable suspicion.” Koher’s “modus operandi,” Evans says, “is to see people leaving drinking establishments, pull them over without committing any traffic offenses, and then create pretextual reasons for the stop.”

Citing HPD’s own statistics, Evans says “Koher now has more DUI arrests per year than the entire HPD had before his arrival.” For both 2010 and 2012, Koher was presented the DUI Officer of the Year Award by the Governor’s Highway Safety Office.

According to the office, Koher last year made 251 DUI arrests, including Evans’.

Following his arrest, Evans says he requested a copy of the video taken from Koher’s dashboard camera. On April 23, he says he received a reply saying “Officer Koher was assigned to vehicle 176, which is not equipped with video camera monitoring equipment.”

However, Evans avers four days later he was able to take pictures of the cruiser which is “in fact equipped with video camera monitoring equipment.”

Along with civil rights violations, Evans alleges as a result of Koher’s “cowardly attack,” he had his two front teeth knocked out, which were “replaced after multiple procedures and surgery.” However, Evans maintains he now speaks with a lisp.

Along with ones for civil rights violations against Koher, Evans makes claims of negligent hiring, retention and supervision against HPD and the city of Huntington, which are named as co-defendants in the suit. Along with unspecified damages, court costs and attorneys fees, Evans seeks a court order instructing the city to better train its officers on the elements necessary to charge a suspect for obstructing and when to properly execute a leg sweep.

He is represented by Huntington attorneys Richard Weston and Connor Robertson, who are counsel for either William Daniel Hedrick, Jr. or Joseph Pniewski, two other Huntington residents who allege, among other things, they were arrested without provocation only to have the officers tack on obstructing as a “phantom charge.” Their cases are also in U.S. District Court, with Pniewski’s scheduled for trial on Oct. 1.

Separately in U.S. District Court is Ashley Dale Ellis’ suit against HPD and the West Virginia State Police. In it, he alleged a task force consisting of HPD officers, unknown officers from the Barboursville Police and Cabell County Sheriff’s departments and WVSP all dressed in SWAT gear, rousted him out of bed at his home on 1st Ave. and began striking him with their feet, fists and batons in the course of serving a warrant.

Earlier this year the village of Barboursville and the Cabell County Commission were dismissed from the suit. Trial is scheduled for Oct. 8.

In a case pending in Cabell Circuit Court, another Huntington man, Bobby Trout, alleges eight HPD officers entered his home with a warrant, awakened him and forced him to the floor, where they battered and beat him. As a result, Trout alleges he suffered injuries that caused him to be hospitalized in the intensive care unit for several days.

The single charge of obstructing that was filed against him was later dismissed in magistrate court. A trial in his case is scheduled for April 2014.

Records show the arrests in Hedrick’s, Pniewski’s, Ellis’ and Trout’s cases were all made in 2011, the same year HPD received the Law Enforcement Agency of Year Award from U.S. Attorney R. Booth Goodwin II.

Evans’case is assigned to Judge Robert C. “Chuck” Chambers.

U.S. District Court for the Southern District of West Virginia, case number 13-cv-5316

HUNTINGTON – A woman is suing Rumpke Consolidated Companies Inc. after she claims one of its employees caused a car accident.

Ryan Ballard, an employee of Rumpke, was also named as a defendant in the suit.

On April 26, Jessica Pittman was a passenger in a vehicle sitting still on a road that bordered the edge of Kroger’s parking lot in Huntington when Ballard, who was driving a Rumpke vehicle, struck the vehicle she was in and caused her injuries, according to a complaint filed March 19 in Cabell Circuit Court.

Pittman claims Ballard struck the vehicle she was in head-on, which threw her violently inside the vehicle.

Ballard’s negligence caused Pittman to sustain various injuries, including post-concussion headache syndrome, as well as various bruises; strain, sprain and soft tissue injuries, strain and sprain-type injuries to the spine and neck; and other injuries, according to the suit.

Pittman claims she also incurred medical and hospital expenses; surgery, therapy treatments, medication and travel expenses to and from doctor’s offices and hospitals.

The defendants’ actions caused Pittman to be permanently handicapped and “will be in the future and for the remainder of her life disabled from performing her usual and normal vocations and avocations,” according to the suit.

Pittman is seeking compensatory damages. She is being represented by Larry O. Ford of Meyer, Ford, Glasser & Radman PLLC.

The case has been assigned to Circuit Judge David M. Pancake.

Cabell Circuit Court case number: 13-C-183

HUNTINGTON – A man is suing Clayton Homes Vanderbilt Mortgage after he claims the home he purchased was defective and unfit for its intended purpose.

Clayton is doing business as Oakwood Homes. Giles Industries Inc. was also named as a defendant in the suit.

On March 17, 2009, Clayton sold Hersie Nash a Claiborne home pursuant to a sales contract for purchase price paid by Nash in the amount of $51,108 and total to be paid with financing charge of $49,085.40, according to a complaint filed March 21 in Cabell Circuit Court.

Nash claims the manufactured home was unfit and un-merchantable for its intended use and purpose due to various defects and deficiencies.

The defendants breached their implied warranties of merchantability and fitness as provided by the West Virginia Uniform Commercial Code and the West Virginia Consumer Credit and Protection Act, according to the suit.

Nash claims the defendants engaged in a pattern of representing that the home was of a particular standard or quality when it was not.

As a direct and proximate result of the defendants’ breach of warranty, Nash is entitled to a full refund of the sale price and damages for loss of enjoyment, annoyance and inconvenience, according to the suit.

Nash is seeking compensatory damages. He is being represented by David R. Tyson of Tyson & Tyson.

The case has been assigned to Circuit Judge David M. Pancake.

Cabell Circuit Court case number: 13-C-189

HUNTINGTON – Newtech Systems Inc. is suing Tri State Hotels LLC after it claims Tri State has failed and refused to pay more than $50,000 for goods and services.

Jai Sai LLC was also named as a defendant in the suit.

From September 2011 until January, Newtech provided goods and services to the defendants, according to a complaint filed March 18 in Cabell Circuit Court.

Newtech claims the defendants have failed and refused to pay for the goods and services.

On Dec. 14, Tri State Hotels submitted a check in the sum of $37,370.79 as partial payment, according to the suit. However, the check was returned by Newtech’s bank due to Tri State Hotel’s account being closed, the suit says.

Newtech claims on Jan. 7, Jai Sai submitted two checks in the amounts of $37,370.79 and $12,400 as partial payment, but those checks were also returned due to the account being closed.

The defendants have failed to pay the principal sum of $54,194.66 for all labor and materials supplied for the defendants’ hotel project, according to the suit.

Newtech claims on Feb. 18 it sent a notice of mechanic’s lien to Jai Sai regarding the $54,194.66 in unpaid labor and material and on Feb. 22, the notice of mechanic’s lien was recorded with the Clerk of the County Commission of Kanawha County.

Newtech is seeking compensatory damages in the amount of $54,194.66 with interest and for Newtech’s mechanic’s lien be deemed valid against the defendants’ property. It is being represented by James G. Graley of Campbell Woods PLLC.

The case has been assigned to Circuit Judge F. Jane Hustead.

Cabell Circuit Court case number: 13-C-170

HUNTINGTON – Three church trustees of Apostolic Life Cathedral are suing the City of Huntington after they claim its municipal land use regulations will cause irreparable harm if they are forced to destroy a structure on their land instead of rehabilitating it.

The Unsafe Buildings Commission for the City of Huntington was also named as a defendant in the suit.

Larry Gay, James Mays and Bernard Cremeans acquired title to certain real estate in Huntington on June 13, 2003, and made extensive plans for rehabilitating the structure on the property so that it could be used for charitable purposes, according to a complaint filed March 20 in Cabell Circuit Court.

The plaintiffs claim due to municipal land use regulations, the destruction of the structure would preclude rebuilding on the site and it is imperative that the church be permitted to extensively renovate the existing structure on the lot.

At this time, the plaintiffs are unaware of any conditions which make the property an actual threat to the safety and well-being of the community, such that they could not immediately begin efforts to rehabilitate the property, according to the suit.

The plaintiffs claim the razing of the structure on the property will irreparably harm them in that they will not be able to use the property for its intended purposes and will render its plans for renovation moot, as well as rendering the property incapable of usage by the Church in carrying out its legitimate and benevolent operations.

Because of the defendants’ threatened imminent scheduling for razing the structure on the property, “the plaintiffs require immediate injunctive relief from the court, protecting it from suffering irreparable harm,” according to the suit.

The plaintiffs are seeking preliminary and permanent injunctive relief under West Virginia Code prohibiting, restraining and preventing the defendants from proceeding to the demolition of the structure; that the court advance this matter for hearing at the earliest possible opportunity; and that it consolidate findings and proceedings at such hearing with its determination on the merits of the claims asserted in this complaint. They are being represented by Paul A. Ryker.

The case has been assigned to Circuit Judge F. Jane Hustead.

Cabell Circuit Court case number: 13-C-187

March 18
Newtech Systems Inc. vs. Tri State Hotels LLC and Jai Sai LLC
PA- James G. Graley; J- F. Jane Hustead
* From September 2011 until January, Newtech provided goods and services to the defendants. Newtech claims the defendants have failed and refused to pay for the goods and services. Newtech is seeking compensatory damages in the amount of $54,194.66 with interest and for Newtech’s mechanic’s lien be deemed valid against the defendants’ property.
Case number: 13-C-170

March 19
Jessica Pittman vs. Ryan Ballard and Rumpke Consolidated Companies Inc.
PA- Larry O. Ford; J- David M. Pancake
* On April 26, Pittman was a passenger in a vehicle sitting still on a road that bordered the edge of Kroger’s parking lot in Huntington when Ballard, who was driving a Rumpke vehicle, allegedly struck the vehicle she was in and caused her injuries. Pittman is seeking compensatory damages.
Case number: 13-C-183

March 20
Larry Gay, James Mays and Bernard Cremeans, as trustees of Apostolic Life Cathedral vs. City of Huntington and the Unsafe Buildings Commission for the City of Huntington
PA- Paul A. Ryker; J- F. Jane Hustead
* The plaintiffs acquired title to certain real estate in Huntington in 2003 and made extensive plans for rehabilitating the structure on the property so that it can be used for charitable purposes. They claim due to municipal land use regulations, the destruction of the structure would preclude rebuilding on the site and it is imperative that the church be permitted to extensively renovate the existing structure on the lot. They are seeking preliminary and permanent injunctive relief.
Case number: 13-C-187

March 21
Hersie Nash vs. Clayton Homes Vanderbilt Mortgage d/b/a Oakwood Homes and Giles Industries Inc.
PA- David R. Tyson; J- David M. Pancake
* On March 17, 2009, Clayton sold Nash a Claiborne home. Nash claims the home was unfit and un-merchantable for its intended use and purpose due to various defects and deficiencies. Nash is seeking compensatory damages.
Case number: 13-C-189

HUNTINGTON – The Appalachian Institute of Digital Evidence will hold its fourth annual conference in April and will hold part of it in Huntington and part in Charleston.

This is the first year the conference will hold part of its conference in Charleston.

The conference, which provides information in the areas of digital forensics, electronic discovery, law enforcement and network security, will be held from April 15 to April 22.

Jill McIntyre, AIDE vice president and attorney at Jackson Kelly, said while the bulk of the conference will be held at the Marshall University Forensic Science Center in Huntington, they elected to hold the electronic discovery portion at the Capitol Conference Center in Charleston this year.

“We decided to hold the e-discovery portion in Charleston this year so we could be easily accessible to attorneys, judges and other law-related fields who want to attend the conference,” McIntyre said. “This way, we are only an hour away from Parkersburg, Beckley and Morgantown.”

The digital forensics sessions will discuss decryption, iCloud forensics, social media forensics and mobile forensic trends, among other topics. The information security sessions will discuss penetration testing and cyber defense.

McIntyre said the electronic discovery portion, which will be held on April 22, will follow the life of an electronic discovery case study from beginning to end.

“It will be a real case scenario and live demonstration where we can show participants how to communicate with the client, how to manage data and how to deal with the electronic documents received from clients,” McIntyre said.

When the case study is finished, there will be an electronic discovery judges panel featuring Berkeley Circuit Judge Christopher C. Wilkes and Greenbrier Circuit Judge James J. Rowe, who are both members of the West Virginia Business Court Division.

“We’re looking forward to the e-discovery judges panel for so many reasons,” McIntyre said. “The panel will cover several legal issues that people are dealing with today.”

The electronic discovery portion of the conference is approved for 8.5 West Virginia Continuing Legal Education credits.

To register for the conference, go to www.appyide.org. The Huntington portion of the conference is free to members, $25 for non-member students and $60 for non-members. The electronic discovery portion is $60 for members and $120 for non-members.

King

CHARLESTON – The state Supreme Court has ruled that two circuit judges can continue to receive retirement benefits while also earning a salary.

The retirements of Kanawha County Circuit Judge Charles King and Cabell County Circuit Judge Alfred Ferguson were at issue in a lawsuit filed by Richie Robb, a former city attorney for Nitro and the mayor of South Charleston for 22 years.

King retired on Oct. 16, 2008, and was re-elected the following month. Ferguson retired Oct. 31, 2008, and was also re-elected soon after.

At the time of their retirements, the two had put in a combined 68 years with the Public Employees Retirement System. They were also both unopposed for re-election.

“At the outset, the court notes the legislature has since acted to prevent other public officials from taking similar actions,” says the unanimous memorandum decision, released March 29.

“Senate Bill 244 amended West Virginia Code… to provide in pertinent part that ‘(n)otwithstanding the provisions of this subsection, a member who is participating in the system as an elected public official may not retire from his or her elected position and commence to receive an annuity from the system and then be elected or reappointed to the same position unless and until a continuous 12-month period has passed since his or her retirement.”

However, nothing in the language of the 2009 law suggests it should be applied retroactively, the court said.

Robb’s lawsuit originally charged Summers County Magistrate William Jeffries with the same, but the decision says Robb was no longer challenging Jefferies’ retirement.

The ruling affirmed an order entered Nov. 7, 2011, by Senior Status Judge James O. Holliday.

Holliday ruled Robb did not have standing to bring the action and that he failed to establish the three elements required to invoke mandamus. The first was a clear right to the relief sought, the second was a legal duty on the part of the West Virginia Consolidated Public Retirement Board to stop paying the benefits and the third was an absence of another adequate remedy.

“The actions of the three judicial officers were in compliance with the law in place at the time they retired,” Holliday wrote.

“With the 2009 amendment… there is no longer any issue of controversial vitality relating to payment of retirement benefits to retired public employees who are subsequently elected to public office.

“In effect, the Legislature has closed the ‘loophole.’ Although the petitioner may have been correct in noting that there was great public outcry at the actions of the three judicial officers, the Legislature has acted to prevent such actions in the future.”

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

McHugh

HUNTINGTON – A man is suing St. Mary’s Medical Center for refusing to release his father’s medical records.

John Does 1 through 10 and Unidentified Entities 1 through 10 (as to St. Mary’s Medical Center) were also named as defendants in the suit.

Carroll Earp resided in and/or was treated at SMMC between Jan. 1, 2011, and his death on June 20, according to a complaint filed March 27 in Cabell Circuit Court.

Charles Earp claims Carroll Earp possessed a claim for personal injuries and damages against the defendant, which survived to his estate.

On Sept. 11, Charles Earp requested copies of Carroll Earp’s medical and billing records from the defendants and made subsequent requests were made on Feb. 5 and Feb. 21, according to the suit.

Charles Earp claims he has yet to receive any records from the defendants, despite his multiple requests.

The defendants’ actions have caused Charles Earp and his father’s estate damages, according to the suit.

Charles Earp is seeking compensatory damages and for production of Carroll Earp’s entire medical record. He is being represented by James B. McHugh, Michael J. Fuller Jr. and D. Bryant Chaffin of the McHugh Fuller Law Group PLLC.

The case has been assigned to Circuit Judge F. Jane Hustead.

Cabell Circuit Court case number: 13-C-201

Clifford

HUNTINGTON – The State of West Virginia, by way of Charleston attorney Michael T. Clifford, is suing the City of Huntington for refusing to release records requested through the Freedom of Information Act.

Clifford represents the Estate of Joshua Jonnie Emerson, who was shot to death by Huntington Police Officer Stephen Fitz on Dec. 22, according to a complaint filed March 28 in Cabell Circuit Court.

Clifford claims on Feb. 26, he sent a request under the Freedom of Information Act to Chief of Police Skip Holbrook, which was denied.

Closed criminal proceedings are subject to FOIA and are not exempted, according to the suit, and based upon statements made by Holbrook, the refusal to provide the requested information and the failure to provide the information Clifford requested, it is apparent that the denial of access to the records is a ruse, in bad faith, clearly illegal and contrary to existing law.

Clifford claims the defendant has conspired to deprive his client with information, documentation, photographs and/or either or both audio and video recordings that concern the client.

The information Clifford requested is public information and not part of any ongoing investigation by any law enforcement agency, according to the suit.

The plaintiff is seeking that the court order production of the records requested.

Fitz shot Emerson after Emerson allegedly tried to attack a security guard with a knife following a vehicle accident, reports say.

The case has been assigned to Circuit Judge David M. Pancake.

Cabell Circuit Court case number: 13-C-203

March 27
Charles Earp, executor of the Estate of Carroll Earp, individually and on behalf of the Estate and Wrongful Death Beneficiaries of Carroll Earp vs. St. Mary’s Medical Center Inc.; John Does 1 through 10; and Unidentified Entities 1 through 10 (as to St. Mary’s Medical Center)
PA- James B. McHugh, Michael J. Fuller, D. Bryant Chaffin; J- F. Jane Hustead
* Carroll Earp resided and/or was treated at SMMC between Jan. 1, 2011, and his death on June 20, 2012. Charles Earp claims Carroll Earp possessed a claim for personal injuries and damages against the defendant, which survived to his estate. Charles Earp requested copies of Carroll Earp’s medical and billing records from the defendants on Sept. 11 and subsequently on Feb. 5 and Feb. 21, but the defendants have failed to release copies of the records to him, according to the suit. Charles Earp is seeking compensatory damages and for production of Carroll Earp’s entire medical record.
Case number: 13-C-201

March 28
State of West Virginia ex rel Michael T. Clifford vs. City of Huntington
PA- pro se; J- David M. Pancake
* Clifford represents the Estate of Joshua Jonnie Emerson, who was shot to death by a Huntington police officer on Dec. 22. Clifford claims on Feb. 26, he sent a request under the Freedom of Information Act to Chief of Police Skip Holbrook, which was denied. The plaintiff is seeking that the court order production of the records requested.
Case number: 13-C-203

HUNTINGTON – A discrimination lawsuit against Valley Health Systems settled and dismissed from Cabell Circuit Court in late 2011.

On Dec. 6, 2011, a dismissal order was filed in Cabell Circuit Court ordering that the case be dismissed as compromised, agreed and settled with prejudice.

Brooke Samples was employed by Valley Health Systems and claimed she had consistently performed her duties in a satisfactory manner and met the defendant’s reasonable expectations, according to a complaint filed Jan. 31, 2011.

Samples claimed when her physician required her to be off from work because of pregnancy complications in 2010, and then post-pregnancy problems after her child was born, Valley Health Systems wrongfully terminated her employment.

In her suit, Samples claimed Valley Health Systems violated the West Virginia Human Rights Act by discriminating against her because of her disability and because of her gender.

Samples was represented by John C. Blair and Kendal E. Partlow of Blair Law Offices. Valley Health Systems was represented by Cheryl Lynne Connelly of Campbell Woods PLLC.

The case was assigned to Circuit Judge David M. Pancake.

Cabell Circuit Court case number: 11-C-46

CHARLESTON – The state Supreme Court has affirmed the Circuit Court of Cabell County’s granting of CSX Transportation’s motion to dismiss a lawsuit brought against it due to the plaintiff’s counsel’s alleged failure to properly serve it with notice.

The memorandum decision was issued per curiam on March 29, with no justice claiming authorship.

Rick L. Martin filed a personal injury action against CSX on July 24, 2009. On Dec. 16, 2009, the circuit court filed a notice of intent to dismiss the action pursuant to Rule 4(k) of the West Virginia Rules of Civil Procedure, which provides that a defendant must be served within 120 days.

After Martin’s counsel failed to respond to the notice of intent to dismiss, the circuit court ordered the complaint dismissed on Feb. 9, 2010.

On Dec. 23, 2010, petitioner Martin’s counsel filed a motion to reinstate the case to the active docket “claiming that he did not receive notice of either the notice of intent to dismiss or the dismissal order,” the opinion states.

According to the opinion, the circuit court had inquired as to Martin’s counsel’s address and found that the address listed in the court file was the same address as counsel’s office. The opinion notes that the “failure of counsel to receive notice is unexplained.”

“He also claimed,” the opinion says, “that he was under the mistaken belief that out-of-state counsel was effectuating service on CSX, and he had no idea that there had been no service of process. A hearing was held on petitioner’s motion, but CSX did not appear. Although petitioner’s counsel claims to have mailed notice to CSX, he had no proof of mailing.

“On May 6, 2011, the circuit court entered an order reinstating the case, and petitioner served the complaint on May 23, 2011. In response, CSX filed its motion to dismiss, based on the lack of good cause pursuant to Rule 4(k) for the failure to serve CSX.

“The circuit court then dismissed the claim on Dec. 5, 2011, after a hearing, finding that the court has discretion to extend the period of service of process if there is good cause, but in this case, the court found no good cause.”

The petitioner then appealed to the state’s high court, arguing that the circuit court erred in granting CSX’s motion to dismiss, and by dismissing the case for failure to effectuate service timely seven months after petitioner served respondent pursuant to the circuit court’s grant of additional time for service.

“Petitioner argues that the circuit court could not reverse its own ruling and now deny an extension of time to effectuate service after it had already been granted. Respondent argues that circuit judges have authority to reverse their own rulings in the face of new facts or new considerations,” the opinion says.

“Moreover, respondent argues that petitioner cannot show that the circuit court abused its discretion in declining to extend the time for service after the lengthy delay without good cause.

“Our review of the record reflects no clear error by the circuit court. The circuit court has the authority to reconsider its ruling in this matter based on new information. Further, the decision to grant the requested extension is discretionary and this Court finds no abuse of discretion herein.”

Ramey

Ramey

HUNTINGTON – A couple who work for the law firm Steptoe & Johnson are suing Masonite International Inc. after they claim the doors they purchased were defective.

Masonite Corporation and Clay Ingels Company LLC, which is doing business as Kentucky Wholesale Building Products, were also named as defendants in the suit.

On June 24, 2011, Ancil G. Ramey and Hannah C. Ramey purchased Masonite Crown MDF series doors in the amount of $10,713.96, according to a complaint filed April 5 in Cabell Circuit Court. Ancil is a member in the Steptoe & Johnson’s Huntington office, while Hannah is of counsel there.

The Rameys claim the doors were marketed, manufactured, distributed and sold by the defendants from 84 Lumber’s Huntington store.

On Sept. 11, 2011, after the doors had been installed and painted, it was determined they were defective by employees of Masonite and Kentucky Wholesale and on Dec. 2, 2011, Kentucky Wholesale agreed to send the Rameys a check for $3,600 to allow 84 Lumber to attempt to repair the doors, according to the suit.

The Rameys claim the attempt to repair the doors was unsuccessful and on March 6, 2012, the Rameys purchased replacement doors from 84 Lumber from another manufacturer for $11,541.63.

On March 15, 2012, the Masonite doors were removed and replaced by the new doors at a cost of $5,879, according to the suit.

The Rameys claim they were without interior doors for several weeks while the attempted repairs took place and while they were waiting for delivery of their replacement doors.

Painting the replacement doors cost the Rameys $2,000, according to the suit, with brought the Rameys’ total cost for purchase and replacement of the defective doors to $18,592.96, according to the suit.

The Rameys are seeking judgment against the defendants under the Magnuson-Moss Warranty Act. They are being represented by John W. Alderman III of the Law Offices of John W. Alderman III.

The case has been assigned to Circuit Judge F. Jane Hustead.

Cabell Circuit Court case number: 13-C-221

HUNTINGTON – A widow is suing Dixon Electrical Systems & Contracting Inc. after she claims it caused the death of her husband.

On March 31, 2011, Forrest B. Finley, who was employed by Dixon as a licensed journeyman wireman, was assigned by Dixon to the A.K. Steel coke plant in Ashland, Ky., where Dixon was a subcontractor performing various electrical work under contract with A.K. Steel, according to a complaint filed April 1 in Cabell Circuit Court.

Brenda Finley claims Dixon was required to perform its assigned work in a manner consistent with state and federal safety statutes, rules and regulations consistent with commonly accepted and well-known industry safety standards.

Dixon, through its superintendent Kevin W. Mullins, informed Forrest Finley’s foreman, Joe Gensler, that A.K. Steel had requested that a hi-pot test be done on Cottrell #3 at the coke plant, with the knowledge at the time that the foreman had no prior experience in and was not familiar with the procedures required to perform a hi-pot test, according to the suit.

Brenda Finley claims because the defendant had prior actual knowledge of the specific OSHA violations occurring at the A.K. Steel coke plant, it therefore had a subjective realization of the existence of and appreciation to the risks presented by the unsafe working conditions and thereby knowingly and intentionally exposed Forrest Finley to deadly working conditions.

As a result of Dixon’s conduct, Forrest Finley was severely burned and killed and Brenda Finley was deprived of her husband’s society, companionship, comfort and guidance, according to the suit.

Brenda Finley is seeking compensatory damages with pre- and post-judgment interest. She is being represented by Frank M. Armada.

The case has been assigned to Circuit Judge F. Jane Hustead.

Cabell Circuit Court case number: 13-C-210

HUNTINGTON – A man is suing American Preservation Builders LLC after he claims it breached its contract with him by refusing to pay him for his services.

M. Jay Stephenson, who is doing business as Cutting Edge Concrete, entered into a contract with American whereby he was a subcontractor of the defendant and was to perform certain construction services on an apartment building complex known as Founder’s Landing, according to a complaint filed April 1 in Cabell Circuit Court.

Stephenson claims upon completion of the work, he provided the defendant with an invoice describing the work performed and the amount the defendant owed him for the work.

The defendant refused to pay Stephenson the balance owed for the work, despite continuing efforts to obtain payment, according to the suit.

Stephenson claims the defendant owes him $20,776.75 and the defendant’s refusal to pay is a breach of contract.

Because of the defendant’s breach of contract, Stephenson is entitled to damages and interest, according to the suit.

Stephenson is seeking judgment in the amount of $20,776.75 with pre- and post-judgment interest. He is being represented by Daniel T. Yon and David D. Amsbary of Bailes, Craig & Yon PLLC.

The case has been assigned to Circuit Judge F. Jane Hustead.

Cabell Circuit Court case number: 13-C-212

Grove

HUNTINGTON – A former college athlete is suing the Marshall University Board of Governors after she claims she was injured while at track practice because the school allowed safety equipment to fall into disrepair.

On April 19, 2011, Molly Grove, who was a member of the Marshall women’s track team, was at track practice and was standing beside her coach, Keith McBride, when she was struck in the lower right leg by a hammer when another member of the team made an errant hammer throw, according to a complaint filed April 1 in Cabell Circuit Court.

Grove, a graduate of Musselman High School in Berkeley County, claims prior to the incident, she and other members of the track team had warned the school’s athletic department during Student Advisory Committee meetings that the track and field practice facilities were dangerous and in need of repair.

The school was specifically aware of the safety complaints regarding the track and field practice facilities because Grove had also previously written a letter to the editor of the Herald-Dispatch regarding the neglect of the facilities and the women’s track team, according to the suit.

Grove claims the school had a duty to provide a safe and properly maintained hammer cage for its women’s track team to practice the hammer throw and failed to do so.

The trauma from the direct strike of the almost nine-pound hammer snapped Grove’s right leg and knocked her to the ground, where she began screaming and writhing in pain, according to the suit.

Grove claims her coach immediately covered her and tried to keep her from moving while teammates tried to distract her from her obvious compound fracture of the right leg and to keep her from passing out.

After being taken by ambulance to Cabell Huntington Hospital, Grove was diagnosed with an open tibial fracture of her right leg and some of her skin and muscle tissue were so badly crushed by the hammer strike, they could not be saved and doctors later concluded that a metal rod would be necessary to set her badly broken right leg, according to the suit.

Grove claims she was also required to quit her part-time job and her injury affected her ability to attend classes required for her graduate degree at Marshall.

Because of the injury, Grove’s track career was unnecessarily and prematurely cut short and the final month of her college education was spent in extreme pain and with limited mobility, according to the suit.

Grove claims her injuries also ruined a graduation gift trip that had been pre-planned and affected her ability to enjoy life, both temporarily and permanently.

As a result of the defendant’s negligence, carelessness and recklessness, Grove was severely injured; incurred medical expenses; endured pain and suffering; has sustained a loss of household services; has sustained an impairment of the capacity to enjoy life; and due to the nature and extent of her permanent condition, has suffered humiliation and embarrassment, according to the suit.

Grove is seeking compensatory damages with pre- and post-judgment interest. She is being represented by Tony L. O’Dell of Tiano O’Dell PLLC.

The case has been assigned to Circuit Judge David M. Pancake.

Cabell Circuit Court case number: 13-C-211

April 1
Brenda Finley, as administratrix of the Estate of Forrest B. Finley vs. Dixon Electrical Systems & Contracting Inc.
PA- Frank M. Armada; J- F. Jane Hustead
* Forrest Finley was employed by the defendant as a licensed journeyman wireman. On March 31, 2011, Forrest Finley was exposed to unsafe working conditions that caused him to be severely burned and killed, according to the suit. Brenda Finley is seeking compensatory damages with pre- and post-judgment interest.
Case number: 13-C-210

Molly Grove vs. the Marshall University Board of Governors
PA- Tony L. O’Dell; J- David M. Pancake
* On April 19, 2011, Grove was at track practice as a member of the Marshall University women’s track team and was standing beside her coach, Keith McBride, in an area that should have been protected from errant hammer throws by safety equipment. However, the safety equipment was in disrepair, she says. Grove claims when another member of the track team made an errant hammer throw, it went through a gap in the netting and metal frame of the safety equipment and struck her in her right leg, causing injury. Grove is seeking compensatory damages with pre- and post-judgment interest.
Case number: 13-C-211

M. Jay Stephenson d/b/a Cutting Edge Concrete vs. American Preservation Builders LLC
PA- Daniel T. Yon, David D. Amsbary; J- F. Jane Hustead
* Stephenson entered into a contract with American whereby he was a subcontractor of the defendant and was to perform certain construction services on an apartment building complex known as Founder’s Landing. Stephenson claims the defendant has failed and refused to pay for his services. Stephenson is seeking judgment in the amount of $20,776.75 with pre- and post-judgment interest.
Case number: 13-C-212

April 5
Ancil G. Ramey and Hannah C. Ramey vs. Masonite International Inc.; Masonite Corporation; and Clay Ingels Company LLC d/b/a Kentucky Wholesale Building Products
PA- John W. Alderman III; J- F. Jane Hustead
* On June 24, 2011, the Rameys purchased $10,713.96 in Masonite Crown MDF Series doors marketed, manufactured, distributed and sold by the defendants. The Rameys claim the doors were determined to be defective and Kentucky Wholesale agreed to send a check to them for $3,600 to allow 84 Lumber to attempt to repair the doors, but repair attempts were unsuccessful and the Rameys purchased replacement doors for $11,541.63. Because of the defective doors, the Rameys had to pay to have the defective doors removed, the new doors installed and painted and were without interior doors for several weeks, they say. The Rameys are seeking judgment against the defendants under the Magnuson-Moss Warranty Act.
Case number: 13-C-221