*** Supreme Court calendar for 2/2 issue

Motion Docket
Tuesday, Feb. 3

NOTE: Justice Albright did not participate in the consideration or decision of the cases on this docket. Senior Status Justice McHugh sitting by temporary assignment.

1. Brenda Dianne Ware v. David Gary Ware - 081539 - David Gary Ware appeals the circuit court's orders on issues of equitable distribution and the effect of an ante-nuptial agreement.

2. State of West Virginia v. Wade Painter - 081400 - Wade Painter appeals his conviction for two counts first degree murder, daytime burglary, grand larceny, daytime burglary by breaking and entering, petit larceny, and possession of a stolen vehicle. His sentence includes two terms of life without mercy. He asserts that the circuit court erroneously failed to suppress items seized during a search and his statement to police, and insufficient evidence to support his conviction.

3. State of West Virginia v. Ronnie Rush - 081812 - Defendant appeals following his convictions on two counts of manslaughter, one count of first degree robbery, one count of burglary, and one count of conspiracy to commit burglary. Defendant challenges the circuit court's denial of his motions for a mistrial. Defendant seeks a reversal of his convictions or, in the alternative, a remand for a new trial.

4. State of West Virginia v. Tracy John Craft - 081948 - Petitioner Tracy John Craft was convicted by a jury of First Degree Murder. The Petitioner requests to have his conviction reversed and the case remanded for a new trial.

5. State of West Virginia v. Justin Black - 082066 - Justin Keith Black appeals his conviction for second degree murder. He alleges multiple trial errors, including the failure to suppress his statement to police, the exclusion of expert and other testimony, the denial of a motion to change venue, the failure to disclose exculpatory evidence and the specific time of the offense, and improper comment by the prosecutor.

6. State of West Virginia v. Michael Day - 082001 - Defendant appeals and seeks a reversal of his first degree murder without mercy and conspiracy convictions. Defendant asserts that the cumulative effect of trial error, as reflected in his motion for a new trial, and other plain error, all denied him the right to a full and fair trial. Defendant seeks the opportunity for a new trial.

Argument Docket
Tuesday, Feb. 3

1. Darrell V. McGraw, Jr., Attorney General, et al. v. The American Tobacco Co., et al. - 33873 - Continued to February 24.

2 The Book Exchange, Inc. v. West Virginia University, et al. - 34162 - The Book Exchange, Inc. appeals from the Monongalia County Circuit Court's Order dismissing the plaintiff's Complaint per Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. The petitioner initially brought a civil suit alleging tortious interference with business relations, various statutory violations, and civil conspiracy.

3. City of Bridgeport, et al. v. Robert Matheny - 34220 - Robert Matheny appeals the circuit court's declaratory judgment order which found that pursuant to W.Va. Code § 8-14-8, Matheny is disqualified from serving on the Bridgeport Police Civil Service Commission by virtue of his holding an "office" with the City of Clarksburg as a Clarksburg City Police Officer.

4. In the Matter of: The Adoption of Johanna D., Grant D. and Jameson D. - 34218 - Petitioner appeals from the circuit court's order denying his petition to adopt his three infant stepchildren. Petitioner asserts that the circuit court used the wrong legal standard in evaluating this case and failed to consider the best interests of the children.

5. Wells Fargo Bank, N.A. v. Up Ventures II LLC, et al. - 34265 - Wells Fargo Bank appeals the circuit court's adverse summary judgment order. The court concluded that the bank's petition to set aside a tax sale deed was filed beyond the statute of limitations of W.Va. Code § 11A-4-4(a). Wells Fargo asserts a lack of notice of the right to redeem, making constitutional and statutory arguments.

6. SER Office of Disciplinary Counsel v. Joan A. Mooney - 34592 - Petitioner seeks to hold Respondent in contempt of this Court's order entered 5/22/08, and to immediately suspend her law license.

7. SER Bruce E. Marcum v. Honorable Alfred E. Ferguson, Judge - 34590 - Pro se Petitioner seeks issuance of a writ of mandamus to compel the circuit court to rule on his habeas petition filed in January of 2008. - To be presented on briefs only without oral argument.

8. SER Freddie M. Jr., v. Hon. N. Edward Eagloski, II, Judge - 34625 - Petitioner seeks a writ of prohibition barring the circuit court from entering an order granting the Plaintiff below a six month post-adjudicatory improvement period and unsupervised visitation with her children where the Plaintiff below admitted to starving at least one of her other children, and two other children were diagnosed with Failure to Thrive due to malnutrition caused by the mother.

Argument Docket
Wednesday, Feb. 4

1. Jacob Frederick Jochum, et al. v. Waste Management of West Virginia Inc., et al. - 34264 - Continued to February 25.

2 . Freda Marlene Ratliff v. Norfolk Southern Railway Company - 34156 - The Petitioner, Freda Ratliff as Executrix of the Estate of Sparrel Ratliff, brought a wrongful death action for damages on behalf of her deceased spouse under the Federal Employer's Liability Act. Petitioner now appeals from the lower court's Order granting Summary Judgment in favor of the Respondent Norfolk Southern Railway Company.

3. Dana December Smith v. Thomas McBride, Warden, Mt. Olive Correctional Center - 34155 - Continued to February 24.

4. Ricky Drake v. Waco Oil & Gas Company, Inc. - 34224 - The issue before the Court is a Certified Question regarding the rights to accounting of a non-leasing co-tenant to mineral rights.

QUESTION: Where an oil and gas producer entered a lease for oil and gas production with one of two co-tenants, unaware of the ownership interest of the non-leasing co-tenant, produces gas pursuant to the lease and is then called upon by the non-leasing co-tenant to account, in determining the amount to which the non-leasing co-tenant is entitled is the correct measure the value of the gas produced less reasonable costs of production or is the correct measure that portion of the royalty to which the non-leasing tenant would have been entitled had each tenant executed the lease. ANSWER: The correct measure of the accounting is the amount of royalty due pursuant to the lease.

5. Deborah K. Wright v. Mark A. White - 34263 - Mark A. White appeals the circuit court's order which affirmed the family court's final divorce order. Mr. White asserts eleven assignments of error, including that without following the proper procedures and without notice to him, the family court erroneously converted a temporary hearing into the final divorce hearing and then entered the final divorce order the same day. He also asserts error with respect to rulings on rehabilitative alimony, equitable distribution, and attorney's fees/costs.

6. SER Scott Edwards v. Linda Gibson, Record for the City of Hurricane, et al. - 34159 - Petitioner intervenor appeals from the circuit court's order granting a petition for a writ of prohibition thereby prohibiting the City Council of the City of Hurricane from holding a remanded hearing as earlier ordered by Judge Spaulding.

7. Evelyn "Peach" Murphy v. Eastern American Energy Corp., et al. - 33811 - Plaintiff appeals from the circuit court's order awarding summary judgment in favor of defendant in this deliberate intent action. The circuit court ruled that the decedent had no dependents under W.Va. Code §23-4-2(c) and that pursuant to Saville v. Speedway Super America, LLC, No. 33053 (Nov. 15, 2006) (2006 WL 3358431), defendant was entitled to summary judgment.