WEST VIRGINIA RECORD

West Virginia Supreme Court of Appeals
Calendar for the week of Feb. 13-17

Motion Docket
Tuesday, Feb. 14
1. Associated Architects, Inc.v. John Wolfe and Wolfe Construction Co., Inc. - 051805 - Defendants appeal from the circuit court's order awarding summary judgment in favor of plaintiff following defendants' admission of liability in this action for negligence and fraud.
2. Stephanie Adkins, et al., on behalf of Gauley Bridge Citizens for Equal Education v. Board of Education of Fayette County; Steve Pilato, President; et al., Members; and West Virginia Board of Education - 051955 - he Fayette County Board of Education and its members, and the State Board of Education, appeal the circuit court's order granting a petition for mandamus and preliminary injunction. The circuit court's order stops the closure of Gauley Bridge High School and changes to the configuration of certain other Fayette County schools. The order has been stayed by this Court pending appeal.
3. Mickey McClure v. Point Mining, Inc., Joy Technologies, Inc., dba Joy Mining Machinery, and John Doe - 051911 - Plaintiff Mickey McClure appeals the circuit court's order which granted defendant Joy Technologies' motion to dismiss a products liability complaint based upon expiration of the statute of limitations.
4. State of W. Va. v. Jennie Lynn Fulk - 052299 - Jennie Lynn Fulk appeals her conviction for driving under the influence of alcohol, third offense.
5. Fraternal Order of The Owls Nest 4520, Inc., dba The Hot Spot v. Board of Zoning Appeals of the City of Charleston, West Virginia - 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.
6. Joseph E. Ryan v. Clonch Industries, Inc., and H& D Lumber Distributors, Inc. - 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.

Argument Docket
Tuesday, Feb. 14
1. Loyal Order of Moose, Martinsburg Lodge No. 120 v. State Tax Commissioner - 32842 - The Loyal Order of Moose, Martinsburg Lodge No. 120 appeals the circuit court's order affirming the decision of the State Tax Commissioner to deny its application for renewal of an annual charitable bingo and raffle license.
2. Daniel J. David v. Commissioner of West Virginia Division of Motor Vehicles - 32859 - Petitioner appeals from the circuit court's order denying his petition for a writ of prohibition and mandamus and his application for a stay following the Division of Motor Vehicle's continuance of a license revocation hearing at the request of the arresting officer.
3. Cecil Pritt, et al. v. WV Department of Corrections, et al. - 32851 - The Division of Corrections appeals from the circuit court's order which reversed the order of the West Virginia Education and State Employee's Grievance Board. The circuit court found that the Division of Corrections was engaging in discriminatory conduct by not awarding the same 5% raise to all correctional officers who complete an apprenticeship program.
4. In Re: The Marriage of: Kathy M. Sloan v. Edward W. Sloan - 32852 - Husband in a divorce case appeals issues including spousal support, equitable distribution, the length of time for child support, etc.

Argument Docket
Wednesday, Feb. 15
1. David Payne, President, USofA Local 37, et al. v. Huntington Human Rights Comm. - 32749 - Dismissed.
2. Kimberly Merrill, et al. v. WV Department of Health & Human Resources - 32856 - Plaintiffs appeal from the circuit court's order awarding summary judgment in favor of defendant. Plaintiffs instituted this action alleging that defendant was liable to them for its failure to remove plaintiffs from their parents' custody following reports that plaintiffs were being sexually abused by their father. Justices Starcher and Benjamin disqualified. Judge Madden and Judge Murensky sitting by temporary assignment.
3. Reggie Lee Philyaw v. Eastern Associated Coal Corp. - 32754 - Petitioner files a direct appeal from the circuit court's order granting summary judgment to Eastern Associated Coal. Petitioner filed suit against Eastern alleging intentional infliction of emotional distress because Eastern allegedly required him to commit federal felonies.
4. Linda Farley v. Jeffrey Shook, D.P.M., et al. - 32770 - Plaintiffs appeal an adverse summary judgment order in a medical malpractice action.
5. Dana Scott Roy, et al. v. Kenneth D'Amato, D.O. - 32853 - This appeal involves the dismissal of a medical malpractice lawsuit on the basis that petitioners did not provide respondent with proper notice of claim pursuant to West Virginia Code §55-7B-6(b). Petitioners sought relief pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure, but their request was denied.

Writ Conference
Thursday, Feb. 16
1. State of West Virginia v. Lesley Spade, No. 052916 (Filed 12/27/05)
Defendant, who entered a Frazier plea to Attempt to Deliver a Controlled Substance, appeals circuit court order denying probation and sentencing him to 1-3 years in prison, arguing that the circuit court abused its discretion in denying probation and asking for remand for another sentencing hearing because the sentencing order fails to comply with W.Va. Code Section 62-12-8.
2. State of West Virginia v. Gary Dean Gregg, No. 052931 (Filed 12/28/05)
Defendant, convicted by jury of Sexual Assault in the Third Degree, appeals circuit court order sentencing him to 1-5 years in prison and denying his motion for new trial or in the alternative, home confinement.
3. State of West Virginia v. Edward M. Carroll, II, No. 052945 (Filed 12/28/05)
Defendant, acting pro se, appeals circuit court order denying post-trial motions following jury conviction of four (4) counts of DUI causing Death. Defendant was sentenced to four consecutive terms of 1 to 10 years and a $4,000 fine. This Court refused the direct criminal appeal filed by his counsel in December, 2004.
4. State of West Virginia v. Aron Freeland, No. 052953 (Filed 12/28/05)
Defendant, convicted by jury of two counts of Sexual Assault in the Second Degree and sentenced to consecutive 10-25 year terms in prison, appeals circuit court order, arguing multiple errors at trial, including insufficiency of the evidence to count on each count, failure to suppress statement of Defendant, and failure to grant relief from prejudicial joinder.
5. State of West Virginia v. Joshua Bourne, No. 052991 (Filed 12/30/05)
Defendant, convicted of First Degree Robbery by guilty plea and sentenced to fifteen years in prison, appeals circuit court order arguing that the circuit court abused its discretion by denying Defendant's motion for sentencing as a Youthful Offender at the Anthony Center.
6. State of West Virginia v. Nicole Cox, No. 060015 (Filed 1/5/06)
Defendant appeals circuit court order which interpreted her Motion for Correction of sentence as a habeas petition and which denied habeas relief based upon conclusion that her sentence of three consecutive terms for Malicious Assault all based upon events which occurred at the same place, time and person did not violate her protections against Double Jeopardy.
7. Louis Thompson v. Wheeling Park Commission, No. 051885 (Filed 8/31/05)
Plaintiff in slip and fall personal injury case appeals summary judgment entered in favor of defendant Wheeling Park Commission based upon circuit court's finding that Defendant, a political subdivision, was immune from suit pursuant to W.Va Code Section 29-12A-5(a)(6).
8. SER Mark Stewart Neuman v. Mark Williamson, Warden, No. 052961 (Filed 12/29/05)
Defendant, sentenced to life with mercy for first degree murder, appeals circuit court order denying habeas corpus petition following omnibus hearing, arguing that the circuit court erred in rejecting his argument that he received ineffective assistance of counsel when his counsel failed to move for a change in venue in light of widespread publicity regarding the crime and when his counsel failed to put on witnesses at trial to support Defendant's theory of self defense.
9. SER Lawrence Nelson v. Shannon Markel and Harry Rubenstein, Warden, No. 052970 (Filed 12/29/05)
Defendant, convicted by guilty plea of breaking and entering, grand larceny and conspiracy and sentenced to two consecutive 1-10 prison terms and a consecutive 1-5 year term in prison, appeals circuit court order denying his petition for habeas corpus relief.
10. Thresa Liles v. Calhoun Bank, No. 060039 (Filed 1/9/06)
Plaintiff in suit against bank for alleged improper foreclosure, appeals circuit court order granting judgment to the bank on its counterclaim for remaining indebtedness associated with loan on foreclosed property, arguing that the circuit court abused its discretion in granting judgment to the Defendant/Bank based upon the court's belief that the Fair Market Value of the property was considerably less than the appraised value on the date of the foreclosure sale.
11. SER Darrell W. Brown v. Thomas McBride, Warden, No. 042148 (Filed 11/12/04)
Defendant, convicted by guilty plea of murder and aggravated robbery, seeks issuance of a writ of mandamus against circuit court to obtain hearing and ruling in underlying habeas corpus petition.
12. SER Dennis Gene Pauley v. Thomas McBride, Warden, No. 050257 (Filed 2/2/05)
Defendant, convicted by jury of sexual offenses, seeks issuance of a writ of habeas corpus arguing that his criminal case should be reviewed based upon improprieties in the actions of the investigating officers relating to the taking of his statement and based upon perjured trial testimony by his half brother.
13. SER Thomas Pennington v. Evelyn Seifert, Warden, No. 051326 (Filed 6/14/05)
Defendant, convicted by jury of First Degree Murder and Arson and sentenced to Life with Mercy and a consecutive 1-3 year prison term, seeks issuance of a writ of habeas corpus arguing that he was deprived of his right to appeal his conviction and seeking habeas relief.
14. SER Steven Lee Walker v. Kenny Underwood, Admin., No. 052896 (Filed 11/8/05)
Defendant seeks issuance of a writ of habeas corpus dealing with terms and conditions of his confinement.
15. SER William Jones v. William Haines Warden, No. 052615 (Filed 11/18/05)
Prisoner seeks issuance of a writ of habeas corpus against warden and prison medical director, arguing that he is being denied medical care for unexplained pain in his legs and lower back.
16. SER Mary Greene v. Dale Humphrey, Admin., No. 052652 (Filed 11/21/05)
Defendant, convicted by jury of four counts of uttering and convicted by Alford plea to another separate count of uttering, seeks issuance of a writ of habeas corpus arguing insufficiency of the evidence and other trial errors.
17. SER Ennis C. Payne v. Thomas McBride, Warden, No. 052781 (Filed 12/8/05)
Defendant, convicted of grand larceny and malicious wounding and sentenced to 2 to 10 years for malicious wounding to run consecutive with a prior sentence in an unrelated matter, and 1 to 10 years on the grand larceny to run consecutive to the sentence for malicious wounding, seeks issuance of a writ of habeas corpus. Defendant has previously had a habeas action and omnibus hearing.
18. SER Michael L. Hegmon v. Larry Parsons, Administrator, No. 052836 (Filed 12/9/05)
Defendant seeks issuance of a writ of mandamus arguing that circuit court has failed to timely address his petition for habeas corpus relief.
19. SER John Anthony Turner v. Thomas McBride, Warden, No. 052858 (Filed 12/20/05)
Defendant appeals circuit court order denying petition for habeas corpus relief dealing with good time credits.
20. SER Joseph E. Howard v. Pocahontas County Circuit Court, No. 051770 (Filed 8/18/05)
Prisoner, convicted by jury of Burglary and Grand Larceny and sentenced to Life for recidivism, seeks issuance of mandamus to obtain rulings from lower court on his pending motions for copies of file materials and transcripts.
21. SER Orville Taft Kitchen v. Hon. Darrell Pratt, Judge, No. 052544 (Filed 11/8/05)
Defendant, convicted by jury of aggravated robbery and kidnaping and sentenced to concurrent 60 year terms in prison, seeks issuance of a writ of mandamus arguing that the circuit court has failed to rule upon his underlying habeas corpus petition.
22. SER Patricia W. Jones v. Hon. Robert Irons, No. 052640 (Filed 11/23/05)
Defendant in civil action seeks issuance of a writ of mandamus arguing that the circuit court has failed to timely rule upon motion to dismiss and motion to quash summons.
23. SER Carl Durgan v. Hon. Robert Burnside, Judge No. 052779 (Filed 12/8/05)
Defendant in civil forfeiture suit seeks issuance of a writ of mandamus arguing that circuit court has failed to rule upon pending motion for judgment notwithstanding the verdict and in the alternative, motion for a new trial.
24. SER William Cline v. Mingo County Circuit Court, No. 052834 (Filed 12/15/05)
Defendant seeks issuance of a writ of mandamus arguing that the circuit court has failed to rule upon his pending petition for habeas corpus relief.
25. SER Bobby Gillian v. Hon. John Hatcher, Judge, No. 060034 (Filed 1/6/06)
Defendant seeks issuance of a writ of mandamus arguing that the circuit court has not ruled upon his petition for writ of error coram nobis in a timely manner.
26. In the Matter of: Donovan A. S., No. 052919 (Filed 12/27/05)
Former foster parents appeal circuit court order denying their motion to intervene in child abuse and neglect proceeding, arguing that the circuit court erred in not granting their motion as they are the proper persons to adopt infant who lived in their home for almost two years.
27. In the Matter of: Anthony M. and Rebecca B., No. 052929 (Filed 12/28/05)
Mother appeals circuit court order terminating her parental rights, arguing that the circuit court erred by terminating Mother's parental rights based upon evidence that was not proven by clear and convincing evidence, and by an order that contained no conclusions of law or consideration of statutory factors and arguing that the circuit court erred by ruling that there was no likelihood that the circumstances which led to removal can be corrected in the foreseeable future.
28. In the Matter of: Paul H., No. 052980 (Filed 12/29/05)
Mother appeals circuit court order terminating her parental rights, arguing that the circuit court erred in not striking the testimony of Nancy Sabo, a witness for DHHR, where attorney for mother had no opportunity to cross-examine her and the circuit court erred in terminating the Mother's parental rights where she had substantially completed her improvement period and corrected the circumstances of neglect.
29. In the Matter of Alara C. and James C., No. 052986 Father's petition (Filed 12/30/06)
Father appeals circuit court order terminating his parental rights.
30. State of West Virginia v. Isaac Matthew Bennett, No. 052181 (Filed 10/3/05)
The Petitioner requests an appeal of the circuit court's (April 7, 2005) order that sentenced him to 1-10 years on a Breaking and Entering and 1-15 years on Burglary (as a result of his probation revocation). The Petitioner was also sentenced on a new Burglary charge and given 1-15 years on that charge to be served consecutively with the old charges. He seeks a reversal of his denial of home confinement and wants a hearing on the matter.
31. State of West Virginia v. Garland R. Nichols, No. 052183 (Filed 10/3/05)
The Petitioner requests an appeal of the circuit court's (February 22, 2005) order where he was sentenced to 1-5 years (to run concurrently) on two (2) counts of Delivery of a Controlled Substance. He seeks to have his appeal granted and to have further hearings held.
32. In Re: Stephen Ryan W., No. 052245 (Filed 10/12/05)
The Petitioner seeks an appeal of the circuit court's (June 6, 2005) Dispositional order that placed the Petitioner in a residential treatment facility. The Petitioner seeks to have this order set aside and to be returned home.
33. State of West Virginia v. Namon E. Hurley, No. 052267 (Filed 10/13/05)
The Petitioner seeks an appeal of his jury conviction for 3rd Offense DUI. He seeks a reversal or a new trial.
34. In the Matter of: David P., Jr., No. 052320 (Filed 10/18/05)
The juvenile Petitioner seeks an appeal of the circuit court's order (July 25, 2005) that revoked his probation. He request that the lower court's decision be reversed; or that he be returned home to complete his G.E.D.; or be allowed to attend evening or day classes at the Alternative School; or other relief.
35. State of West Virginia v. Dollie Anderson, No. 052321 (Filed 10/21/05)
The Petitioner requests an appeal of her conviction and sentencing for Sexual Abuse by a Parent (sentenced to 10-20 years), Sexual Assault in the First Degree (sentenced to 15-35 years), and Child Neglect Resulting in Bodily Injury (sentenced to 1-3 years). These sentences were ordered to run consecutively. She requested a reversal.
36. State of West Virginia v. Aaron A. Edison, No. 052352 (Filed 10/21/05)
The Petitioner seeks an appeal of his criminal conviction for Failure to Meet an Obligation to Provide Child Support to a Minor, where he was sentenced to 1-3 years in the penitentiary. He seeks a reversal of his conviction.
37. Aubrey E. Henry v. Jefferson County Planning Commission, No. 051394 (Filed 6/22/05)
The Petitioner seeks an appeal of the circuit court's orders that refused the Petitioner's request for a preliminary injunction and his request for a Writ of Mandamus and/or Prohibition.
38. SER Crit Muncy v. Thomas McBride, Warden, No. 051652 (Filed 8/2/05)
The Petitioner seeks an appeal of the circuit court's (April 25, 2005) order that denied his habeas corpus petition. He seeks a reversal of his conviction or a new trial.
39. State of West Virginia v. James Allen Moore, No. 051690 (Filed 8/9/05)
The Petitioner seeks an appeal of the circuit court's denial of his habeas action challenging extradition. He seeks a reversal on the habeas and a remand to instruct the court to deny extradition.
40. Ronald F. Gough v. Ralph W. Knight, et al., No. 051787 (Filed 8/19/05)
The Petitioners seek an appeal of the circuit court's (March 8, 2005) order that denied their motion to amend the judgment or grant a new trial following a bifurcated trial. The Petitioner seeks a new unitary trial.
41. SER Christopher Graham v. William Haines, Warden, No. 051793 (Filed 8/19/05)
The Petitioner seeks an appeal of the circuit court's denial of his habeas corpus petition. He believes his petition has been unjustly revoked.
42. SER Daniel Alexander v. Evelyn Seifert, Warden No. 051907 (Filed 9/1/05)
The Petitioner seeks habeas relief from his denial of parole by the Parole Board.
43. SER Tony Gerlach v. Alfred E. Ferguson, Judge No. 052046 (Filed 9/13/05)
The Petitioner requests a writ of mandamus be issued against the circuit court to compel the court to take action on his habeas corpus petition.
44. In the Matter of: Merissa C.; Austin C.; & Nathan G., No. 052456
The Petitioner/Mother seeks an appeal of the circuit court's (September 13, 2005) order that terminated her parental rights and denied her post-termination visitation. She seeks only to have post-termination visitation and does not appeal the termination.
45. In the Matter of: Jason B. and Jasmine S., No. 052479 (Filed 11/3/05)
The Petitioners seek an appeal of the circuit court's order (July 20, 2005) that refused the Petitioners' appeal of the family court's denial of their requested modifications of visitation with the children's father. They request that this Court reverse the circuit and family court and allow the father to have only supervised visitation.