Court News

Court News

WACO Oil and Gas, XTO Energy Dismissed from Drilling Lawsuit


A federal judge has dismissed Glenville-based Waco Oil and Gas from a lawsuit that a Marion County man filed over plans to use his property for deep, horizontal wells that would drain natural gas from his neighbors’ reserves.

Richard Cain initially sued Waco and Exxon Mobil subsidiary XTO Energy in circuit court last summer, but the case was transferred to U.S. District Court in Clarksburg. In a recent ruling, Judge Irene Keeley said she’ll retain jurisdiction, but she granted Waco’s motion to dismiss claims against it.

The case illustrates the complexity and intertwined nature of mineral and surface rights in a region where companies are rushing to tap the vast deposits of the Marcellus shale field.

Cain concedes he does not own the mineral rights, which were sold in 1881 and have changed hands several times. But he claims ownership of those mineral rights does not give a company the authority to drill multiple wells or disrupt 36 of his 105 acres to get oil and gas from neighboring estates.

Cain contends the amount of gas to be recovered is too minute to justify such extensive surface disruption and insists he is the only party with the “legal right” to lease his surface.

There is no dispute that Cain bought the land in 1989, Keeley said.

“The ownership history of the oil and gas rights themselves, however, is somewhat more convoluted.“

Waco, which sold leases to Linn Energy Holdings LLC in 2003, argued it had done nothing wrong and that Cain’s fight is with the current leaseholder, XTO.

After Cain sued the two companies, Waco sold “the entirety of its interests in the oil and gas estate” under Cain’s property to XTO.

XTO, meanwhile, has also denied doing anything illegal.

It argues it paid $63,000 for a pipeline right-of-way easement to transport oil, gas water and other substances across Cain’s property.

The court ruled that XTO’s lease gives it the clear right to access adjoining property through pipelines but said it “does not otherwise provide the right to use the surface of the tract to explore for or produce oil and gas from neighboring oil and gas estates.“

Still, Keeley said, Cain lacks grounds for a dispute with Waco.

Cain and XTO have until Friday to submit a proposed plan for evidence in the case.

A scheduling conference is set for April 20, 2012.

Ohio Man Appeals Dismissal of Ethics Complaint against Gilmer Prosecutor


The WV Record Reports:

Citing a failure to consider new evidence, an Ohio man is asking a state ethics panel to reconsider his complaint of improper conduct by Gilmer County’s prosecuting attorney in his 2005 criminal case.

The Office of Disciplinary Counsel on Sept. 6 dismissed the complaint Dan Bingman filed against Gerry Hough. In her dismissal letter, Lawyer Disciplinary Counsel Jessica Donahue Rhodes, said the information Bingman included in his Aug. 24 complaint of Hough paying one of Bingman’s relatives to testify against him, and advertisements Hough placed in the Glenville Democrat-Pathfinder accusing Bingman of “cyberbulling,“ not only failed to show a violation of the Rules of Professional Conduct, but was also time-barred.

“Nothing in those two (2) documents reflect [sic] any violation of the Rules of Professional Conduct,“ Rhodes said. “Furthermore, you have not provided any proof that Mr. Hough paid Mrs. Rafferty to testify during the trial.“

“Those allegations are far too vague and unclear to discern what actions you believe Mr. Hough has taken that amount to an allegation of a violation of the Rules of Professional Conduct,“ Rhodes added. “It appears you have been aware of most of what you allege in your second complaint when your first complaint was filed and two (2) years before the first complaint was filed.“

“Thus, your complaint appears to be time-barred,“ Rhodes said.

Records show, Bingman, of Cuyahoga Falls, Ohio, was indicted in March 2005 by the Gilmer County grand jury on a charge of grand larceny, a felony. He was accused of stealing, and later selling farm equipment, a brush hog, valued at nearly $2,500 on Jan. 31, 2002.

However, a jury on Dec. 14, 2005, convicted Bingman of petit larceny, a misdemeanor. Bingman maintained he should’ve never been indicted, let alone convicted, since the brush hog was valued at less than $400, and sat idle for over 20 years on property belonging to his family.

In his complaint, Bingman accused Hough of suborning perjury by getting Roanna Rafferty, Bingman’s aunt, to testify falsely she had a 1/6th interest in the property. Also, Bingman maintains Hough was aware the value of the brush hog was well below the $1,000 threshold for a grand larceny charge.

The allegations raised in his Aug. 24 complaint were similar to ones raised in a complaint he filed against Hough on Dec. 20, 2007, that was dismissed a month later. However, in his response dated Sept. 8 to their dismissal letter, Bingman said ODC failed to consider two new pieces of evidence included in his recent complaint that came to light last year.

One was a title opinion that was introduced last July in a civil suit showing Rafferty did not own the 1/6th share of the property she claimed. Another was bills received in October for back taxes on the property that, Bingman said the county previously refused to let his family pay.

The title opinion and tax tickets, Bingman says, show that his new complaint against Hough not only falls within the statute of limitations, but also he had no business prosecuting him in what amounted to a family squabble.

“The new evidence in this case proves that it should not be time-barred,“ Bingman said. “It proves that due diligence was not practiced and a human being suffered severely as a result.“

“A case should never be brought to court by a Prosecutor who has not used due diligence to establish the facts,“ he added. “When Hough could not locate the 1/6th claimed, the court should have been notified (despite his embarrassment) a mistrial declared and perjury charges brought against the Prosecutors [sic] witness in my opinion.“

“Because there was no title proof of ownership, the jury, and the court could not know that there was equal ownership in a property dispute that somehow turned into a criminal case, although experts say it should have been a civil action all along.“

In response to his letter, Chief Lawyer Disciplinary Counsel Rachel L. Fletcher Cipoletti said ODC was treating Bingman’s dissatisfaction of their dismissal of his complaint as an appeal and would be placing it on the agenda for the next meeting of the Lawyer Disciplinary Board’s investigative panel. Though she did not say when the next meeting would take place, Cipoletti said she would notify Bingman in writing of their decision.

When reached for a comment about Bingman’s complaint prior to its dismissal, Hough said he had yet to see it. However, he said this was Bingman’s latest attempt to retry his case.

“Every citizen has a right to complain and have their voice heard somewhere,“ Hough said. “He’s been busy for the last four years reinventing the trial that took place, and his conviction, which was found by a jury of his peers guilty of larceny from his family.“

~~  Lawrence Smith - WV Record  ~~

Gilmer County Family Court Report - 03.28.12


On Wednesday, March 28, 2012 Family Court Judge Larry Whited appeared and held Court in Gilmer County.

Three divorces were granted as follows:

•  Tina M. Ward (37) of Sand Fork, WV divorced Mark Aaron Ward (37) of Sutton, WV .

•  Elizabeth Moss (47) of Glenville, WV divorced Jeffrey Moss (52) of Glenville, WV .

•  Maria Taylor (29) of Sand Fork, WV divorced Andrew Taylor (30) of Sand Fork, WV .

•  A contempt hearing was dismissed.

Gilmer County Circuit Court Report - 03.27.12


On Monday, March 26, 2012 Judge Richard A. Facemire held his regular monthly motion day in Gilmer County.

Several juvenile hearings were held and reset as follows:

•  One for Monday, June 25, 2012 at 10:00 AM,

•  One at 10:10 AM,

•  One at 10:20 AM,

•  One at 10:30AM.

•  Another one was set for judicial review on Friday, July 06, 2012 at 10:00 AM.

•  A status conference was held in a criminal case wherein the defendant is in a group home and further status will be held on Monday, September 24, 2012 at 9:00 AM.

•  State of West Virginia vs. Roy Jenkins Jr.

He was before the Court for reconsideration of his sentence, which was denied by Judge Facemire and he was returned to Central Regional Jail.

Jenkins was represented by Clinton Bischoff of Summersville.

•  vState of West Virginia vs. Mark Aaron Ward

He was before the count for sentencing and received 2-10 years in the penitentiary with no fine, but customary and usual costs to be paid within 18 months of his release.

He was denied probation by Judge Facemire and was represented by David Karickhoff of Sutton.

•  State of West Virginia vs. John Gorzynski

He was before the Court for sentencing but upon motion to continue being filed his sentencing was reset for Monday, April 23, 2012 at 10:15 AM.

He was also represented by David Karickhoff.

•  An infant summary case was before the Court and granted and completed.

•  A forfeiture of $565.00 in a drug case was granted and directed to be paid to the State Police, who already had the money in their custody.

•  State of West Virginia vs. Holly Morning McCraw

She was before the Court for revocation of her probation and after she admitted to the allegations in the petition filed against her.

Judge Facemire sentenced her to 1-5 in the penitentiary, with credit for time previously served.

She may also ask for reconsideration if a suitable placement is found for rehab for her.

She was represented by David Karickhoff.


On Tuesday, March 27, 2012 Chief Judge Jack Alsop presided over Court in Gilmer County.

•  A jury trial had been scheduled in the case of State of West Virginia vs. Matthew Capelety.

However, last week Capelety decided to enter a plea.

Judge Alsop accepted his plea to failure to register change of information as a sex offender, and set sentencing for Monday, May 14, 2012 at 10:30 AM.

He was represented by Christopher Moffatt of Charleston.

•  A juvenile matter was heard and set for further hearing on Wednesday, April 18, 2012 at 1:00 PM.

•  State of West Virginia vs. James McCune

He was before the Court for revocation of his home confinement.

McCune had recently been found with his ankle monitor removed and he was intoxicated when Deputy Huffman responded to a late night call about residents being disturbed by a 4 wheeler.

McCune admitted to violating home confinement rules and regulations and Judge Alsop sentenced him to not less than 1 year nor more than 5 years in the penitentiary upon his earlier conviction.
Moffatt also represented Mr. McCune.

Lewis County Man Sues Springfield Armory, Individuals for Gun Shot


A Lewis County man is suing Springfield Armory for a gun shot he sustained while at a friend’s residence.

Devon McCartney and James E. McCartney were also named as defendants in the suit.

On March 05, 2010, Joshua Shane Davisson was visiting the home of William H. McCartney with his friend Vernon Groves when Devon McCartney came to visit the residence, according to a complaint filed in Monongalia Circuit Court.

Davisson claims Devon McCartney and/or James McCartney are the owner(s) of a .40 caliber Springfield Armory XD-40 Subcompact pistol.

Devon McCartney negligently and carelessly transported the loaded gun from James McCartney’s home to the home of William McCartney and negligently and carelessly handled the gun causing it to discharge into Davisson, according to the suit.

Davisson claims as a result of the defendants’ negligence, he was shot in the sternum with the bullet ultimately becoming lodged in his left thigh.

James McCartney negligently permitted Devon McCartney to access the gun without verifying that they had the requisite knowledge to handle and/or disassemble the gun in a safe manner, according to the suit.

Davisson is seeking compensatory damages with pre- and post-judgment interest.

He is being represented by Timothy J. Manchin and Taylor B. Downs.

Monongalia Circuit Court case number: 12-C-148

~~  Kyla Asbury - WV Record  ~~

West Virginia Court Spells Out Re-Registry Requirements


A West Virginia appeals court has ruled that sex offenders are only required to re-register their information after a conviction, not after an arrest.

The court ruled last week that the West Virginia State Police lacked the right to arrest 30-year-old Timothy Judge of Tyler County for failure to re-register on a sex-offender list upon his release from jail in 2010.

Judge complied with re-registering after being convicted on a third-degree sexual abuse charge in 2002.

He was arrested in May 2010, on a charge of accessory after the fact to breaking and entering.

Police arrested Timothy Judge because he didn’t update his sex-offender registry entry.

The Charleston Gazette reports that last week’s opinion says the language regarding the offender-registration requirements should be rewritten to more clearly reflect the law’s requirements.

WV Judges Continue Crackdown on Truancy


Judges in Cabell and Kanawha counties are holding parents of chronically truant students responsible for their children’s absences.

Media outlets report that Kanawha County Circuit Court Judge Duke Bloom and Cabell County Paul Farrell held hearings this week for several parents.

Bloom fined one parent $50 and ordered her to perform community service.

He scheduled a jury trial for another parent and told a third parent to get the proper forms for absences.

Farrell fined three parents $50. The fines will be waived if their children do not miss any school in the next 60 days.

Both judges warned the parents that a second offense could land them in jail. The state also could take their children if the truancies continue.

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Calhoun Couple Indicted In Infant’s Death

Imprisonment Status:  Pre-Trial Felon

Ashley Nicole Kreh

Full Name: Kreh,  Ashley Nicole
Height: 5’  3”
Weight: 160 lbs.
Birth Date: 04.05.1990


Booking Date: 02.22.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon - Charged with death of a child by parent by child abuse

Offender Court Order Information

Court Info Number Issuing Agency Location
12F-26 CALHOUN COUNTY - Bail Amount: $750,000.00


A Calhoun County couple has been indicted in the death of their infant daughter.

Ashley Kreh, age 21 and Ordie Rogers, age 30 are charged with murder and child abuse resulting in death.

Their 2-month old daughter died of blunt force trauma to the head last month.

She was taken to Roane General Hospital on February 17, 2012 with a skull fracture and a broken arm and died two days later.


Imprisonment Status:  Pre-Trial Felon

Ordie Jackson Rogers

Full Name: Rogers,  Ordie Jackson
Height: 5’  8”
Weight: 150 lbs.
Birth Date: 06.26.1981


Booking Date: 02.22.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon - Charged with a death of a child by neglect

Offender Court Order Information

Court Info Number Issuing Agency Location
12F-27 CALHOUN COUNTY - Bail Amount: $300,000.00

Calhoun County Woman Sues WV Trooper for Civil Rights Violations


The WV Record Reports:

A Calhoun County woman alleges she was falsely arrested by a West Virginia State trooper to leverage her cooperation in the investigation of a missing Roane County teenager.

Jackie L. Denmark on March 12 filed a civil rights suit against Cpl. D.B. Starcher in U.S. District Court. In her complaint, Denmark, 58, of Orma, alleges Starcher arrested her two years ago for the sole purpose of getting her son, William Albert “Seth” Denmark, to disclose the whereabouts of David Wayne Beech III.

According to the suit, Starcher with the Grantsville detachment first interviewed Denmark in May 2006 shortly after Beech, 17, from Spencer, was reported missing. Starcher and two deputies from the Roane County Sheriff’s Department received information Beech might be at the Denmark residence.

In the course of the interview, Denmark denied knowing Beech’s whereabouts.

Four years later, Starcher obtained a warrant to search the Denmark property. The warrant, according to the suit, was a result of Veronica Cottrill saying she, at gunpoint, was made to help Seth bury Beech’s body on a nearby hillside.

In her statement, Cottrill stated Denmark was aware Seth abducted Beech, and later killed him. Though some evidence was discovered at the scene, Beech’s body was never discovered.

Based mostly on Cottrill’s statement, Starcher arrested Denmark on March 12, 2010, and had her charged with one count of aiding or abetting kidnapping. Following her arrest, Denmark remained in jail for an unspecified period before being released on bond that included a period of house arrest.

According the suit, Calhoun Circuit Judge David W. Nibert dismissed the charge April 02.

Her arrest, and subsequent incarceration, Denmark alleges, was done out of Starcher’s “desire to accomplish a collateral advantage” of charging Seth with murder. In the suit, Denmark states while Seth was incarcerated at the Anthony Correctional Center in Greenbrier County on unrelated charges prior to his arrest for Beech’s kidnapping, Starcher interviewed him, and said he would have her arrested if Seth did not tell him the location of Beech’s body.

In her suit, Denmark maintains Starcher’s abuse of the legal process based largely on Cottrill’s uncollaborated statement resulted in a depravation of her constitutional rights. As a result, Denmark says that along with losing her full-time job, she’s “suffered great hardship, physical and mental emotional harm [and] enjoyment of life.“

Denmark seeks unspecified damages, attorney’s fees and court costs. She is represented by Henry E. Wood III of Charleston and Lee F. Benford II of Ripley.

The case is assigned to Judge Irene M. Keeley.

U.S. District Court for the Northern District of West Virginia case number 12-cv-43

~~  Lawrence Smith - Harrison Bureau – WV Record ~~

G-FYI™: Little Action Taken in Clay Man’s FOIA Suit against County Development Agency


The WV Record Reports:

A year after it was filed, a Clay County man’s Freedom of Information Act suit remains at square one.

Since he filed it on Feb. 17, 2011, Michael Boggs’ suit in Kanawha Circuit Court to compel the Clay County Business Development Authority to disclose three years’ of records has seen little action. The most recent was a motion filed Dec. 9 by his attorney David R. Karr Jr. to file an amended complaint.

Karr’s motion came in response to a combined answer, and motion to dismiss filed by the state Development Office which was named as co-defendant in Boggs’ suit. The WVDO is the reason the suit is in Kanawha Circuit as after Boggs filed his original suit in Clay Circuit Court two years ago against the BDA and the Clay County Commission, Judge Jack Alsop dismissed it finding WVDO had an interest in determining some of the funds it gave the Authority.

Kanawha County has original jurisdiction in lawsuits involving state agencies.

In its answer, and motion to dismiss filed July 19, Assistant Attorney General Mary Downey denied Boggs’ allegations. Also, she asserted a defense WVDO “acted within its legal rights and within the proper standard of practice in the conduct of all activities.“

In response to Downey’s motion, Karr stated the amended complaint corrected the “perceived flaws in the original complaint argued by the West Virginia Development Office to exist, as per the West Virginia Development Office’s motion to dismiss previously filed herein, which has yet be heard by the Court.“ Among the language omitted in the amended complaint is Boggs’ claim WVDO is not only CCBDA’s funding source, but it also “has an interest in the determination of various receipts and disbursements.“

Boggs’ amended complaint contains all the original claims he made against CCBDA and the Commission that include the Authority holding meetings, and making decisions without the minimum number of members, failing to publish its quarterly and annual reports from 2008-2010 and re-appointing him as member on a month-to-month basis instead of a three-year term. Also, the amended complaint continues to aver Boggs’ termination from the Board in July 2010 was due to his refusal in “remaining quiet about the above-mentioned statutory violations”

Records show, Judge Charles E. King Jr. has yet to rule on any of the motions including another one made by Karr seeking default judgment against the Commission and the Authority for failing to answer Boggs’ suit after 30 days of receiving notice of it.

Kanawha Circuit Court case number 11-C-269

~~  Lawrence Smith – WV Record ~~

Gilmer County Circuit Court Report - 03.15.12


Chief Judge Jack Alsop held 2 arraignments as follows:

•  State of West Virginia vs. Tonya Ramsey

She was back before Court and entered a plea of not guilty to the indictment returned against her.

Her bond remains at $20,000.00 but until she can pass a drug test Judge Alsop refused to let her out of jail and took the matter under advisement until that time.

She is represented by Kevin Duffy of Clay and her pretrial is set for Friday, June 01, 2012 at 3:00 PM and her trial is Wednesday, June 27, 2012 at 9:00 AM.

•  State of West Virginia vs. Catherine McGhee

She was back in Court and entered a plea of not guilty to the indictment returned against her earlier this month.

Her pretrial is Monday, June 11, 2012 at 11:00 AM and her trial is Thursday, June 28, 2012 at 9:00 AM.

She is represented by Daniel Grindo of Gassaway and posted $25,000.00 bond later in the day with AAA Bonding and she was released from Central Regional Jail.

Judge Richard A. Facemire also presided over Court on Thursday, March 15, 2012 and heard 4 cases as follows:

•  One fugitive from justice, Geovanic Berrios, waived extradition back to New York and authorities there have until 4:00 PM on Monday, March 26, 2012 to pick him up or Central Regional Jail will release him.

He was represented by Daniel Grindo.

•  Two juvenile cases were heard and completed.

•  A bench warrant was issued for the arrest of Holly McCraw formerly of Burnsville, but whereabouts unknown at this time for failure to appear for revocation of probation.

Bond was set at $200,000.00 cash only.

Gilmer County Circuit Court Report – 03.12.12


On Monday, March 12, 2012 Chief Judge Alsop presided over his motion day.

•  One fugitive from justice from Maryland, Nevelion Short, waived extradition back to his state.

Imprisonment Status: Pre-Trial Felon

Short, Nevelion Deforst

Full Name: Short, Nevelion Deforst
Height: 5’6”
Weight: 145 lbs.
Birth Date: 02.04.1987


Booking Date: 03.09.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
12E-4 GILMER COUNTY - Bail Amount: $0.00


He was represented by Daniel Grindo of Gassaway and authorities in Maryland have until 4:00 PM, Wednesday, March 21, 2012 to pick Short up or he will be released from Central Regional Jail.

•  State of West Virginia vs. John Carder

He had a bench warrant issued against him last week which was later quashed by Judge Alsop and set for hearing at 9:00 AM today appeared with his attorney James Hawkins Jr. of Buckhannon and moved for continuance of his trial until the next term of Court.

Judge Alsop denied the motion to continue to the July 2012 term of Court and set his trial for Tuesday, June 12, 2012 at 9:00 AM with pretrial motions to be heard at 1:00 PM on Friday, June 01, 2012.

•  A juvenile case was heard and reset for 9:00 AM on Monday, June 11, 2012.

•  Another was heard and set for 9:15 AM on Monday, June 11, 2012.

•  A third juvenile was heard and reset for Monday, April 09, 2012 at 11:15 AM.

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