1..

Floyd M. Sayre, II
No. 000522
Refuse 5-0

Petition for a Writ of Prohibition in SER Hospitality Builders Inc. v. Honorable Robert A. Burnside, Jr., No. 000522. Hospitality Builders sub-contracted with PGM Contracting to perform excavation and concrete work in a project of remodeling a Super 8 Motel in Beckley. Hospitality Builders asserts that PGM breached and defaulted. To cure default it is asserted that Hospitality spent $24,736.80. There was a contract with an arbitration agreement. PGM sued. Hospitality Builders filed a Motion to Compel Arbitration and to compel that the matter be brought in South Dakota pursuant to the Agreement. A non-evidentiary hearing was held. Judge Burnside denied the defendant’s motions noting that the plaintiff "was inexperienced in negotiating commercial contracts...under extreme pressure to secure additional work for her company...and the contract was a contract of adhesion." It is argued that the lower court abused its discretion in determining that the arbitration agreement constituted a contract of adhesion. Respondent, Patricia Miles, argues that Hospitality is attempting to circumvent the appeal process. Lower courts in West Virginia must determine whether an arbitration provision was bargained for and valid. There was a hearing below with proffers of evidence. The lower court properly concluded that the contract was one of adhesion. Moreover, the contract was executed in West Virginia, the work was done in West Virginia and the alleged breach was in West Virginia.

2.

Refuse 5-0

In response Farmer states that he asserted the jury’s failure to follow the Court’s instructions, by improperly considering collateral sources when arriving at damages. The jury verdict was approximately $221,000 less than the uncontested special damages. Thus, there was clear grounds for a new trial on the issue of damages. Moreover, the jury submitted a written question suggesting that the jury was improperly considering collateral sources when arriving at a figure for damages. Specifically, it is noted that the jury asked whether it could consider workers’ compensation and social security. Farmer states that he has a severe permanent and disabling injury.

3.

Refuse 5-0

Pro se Petitioners seek injunction prohibiting force feeding by the Central Regional Jail in SER Steve Logan v. Admin., Central Regional Jail, No. 000546. Petitioners state that they are refusing to eat until they are sent to a Department of Corrections facility. Respondents state that the petitioners were merely refusing to eat the regular meals but were eating food sold from the commissary. Petitioners Cogar and Koch have been moved to Huttonsville. The Division intends to move the other two inmates based on bed space and parole eligibility. The "hunger strike," to the extent that it existed, has ceased.

4.

The Department of Education has filed a Motion for Leave to file a reply noting that the draft order has not been inspected by nor approved by counsel and is not consistent with Judge Alsop’s findings.

5.

Grant 5-0

Petition for Writ of Mandamus in Don Lee Landers v. Donald L. Wright, Circuit Clk. of Putnam Cty. And Leatha Boles, Court Reporter, No. 000629. Petitioner seeks transcription of 16 court proceedings and appearances. Petitioner outlines many efforts over the years to obtain the transcripts of his criminal docket proceedings.

6.

Grant 5-0

Petition for Writ of Mandamus in SER Gearl L. Withrow v. Donald C. Wright, Circuit Clk. of Putnam Cty. and Leotha Boles, No. 000630. Petitioner seeks transcription of 12 count proceedings. Petitioner outlines many efforts over the years to obtain the transcripts of his criminal docket proceedings.

7.

Refuse 5-0

Petition for Post Conviction Bail Pending Appeal in State v. Homer D. Carr, No. 000379. Carr was found guilty of battery and attempted 3rd degree sexual assault all arising out of an incident with a ten-year-old girl while Carr was working as a school bus driver. Carr argues that 404(b) evidence was improperly considered and that the touching of the girl’s thigh was not sufficient to constitute battery and hence violence. Carr argues that he meets all qualifications for probation. The State responded regarding 404(b) evidence noting similarities in the other matters. There were two in camera hearings with witness testimony. The facts were such that it was properly determined that the provoking and insulting touching constituted a battery.

8.

[McGraw, J.]

Claimant’s Motion for Remand in Charles Namack v. WCD and Wheeling Closure Corp., No. 000608. Claimant requests that the matter be remanded to the Division with directions that the medical supplies as requested by Dr. David Kappel be authorized. This is the precise issue on appeal. The order appealed from was entered February 29, 2000.

9.

Refuse 5-0

The State opposes the petition and asserts that Neace was recently convicted and sentenced for a brutal crime. It is stated that Neace while previously granted bond attempted to contact a material witness and has an admitted substance abuse problem such that he cannot be supervised in an unsecured and unconfined environment.

10.

Refuse 5-0

Petition for a Writ of Mandamus in SER Sheri D. Phillips v. State Dept. Military Affairs and Public Division of Corrections and Parole Bd., No. 000599. Phillips seeks to compel respondents to allow her to discharge her sentence and be relieved of parole obligations or an order reinstating 12 months good time and discharge. Phillips makes four arguments. First, that she was denied due process during a June 29, 1998 administrative hearing when she was found in violation of drug policies and not advised of a new discharge date having unlawfully taken one year of good time without advising of any judicial appellate recourse. Second, Phillips argues that her due process rights were violated by penalizing her twice for alleged drug violations by taking her good time and triggering an extension of parole eligibility for another 12 months. Third, she argues that respondents have miscalculated credit. Fourth, she argues that excessive lengths of time have been imposed for her to discharge her non-violent sentences.

11.

Refuse 5-0

The State responds that Johnson has 2 prior domestic battery convictions, one prior brandishing conviction, and a prior resisting arrest/obstruction conviction. His behavior with respect to the current convictions was violent and involved the use of a firearm.

12.

Grant 5-0

Petitioner’s Motion in State v. Brian K. Davis, No. 000739. Davis moves the Court to consider a recent decision by the United States Supreme Court in connection with his petition for appeal.

13.

No. 27459
Grant 5-0

Motion to Supplement the Record in State v. Richard Lee Graham, No. 27459. Graham indicates that there are inaccuracies and omissions in various transcripts.

14.

Grant 5-0

Motion for Stay Pending Appeal in The Coordinating Council for Independent Living, Inc. v. The Honorable Joseph M. Palmer, State Tax Commissioner, No. 00-031. Tax Commissioner seeks stay of Final Order entered 2-18-00 and for an Order requiring plaintiffs below to maintain their injunction bond. Transcripts are near completion. Counsel anticipates filing the petition for appeal on or before May 1, 2000. The case involves enforcement of one of the "Medicaid Provider Taxes."

15.

Charles A. Jones, III
No. 27312
Grant 5-0

Appellee’s Motion to Compel Production and to Unseal Records, to Supplement the Record, and for an Enlargement of Time in Cecil Clayton Holcomb, III v. Howard Painter, No. 27312. The State seeks production of records currently under seal including the pre-sentence investigation report and certain psychological evaluation reports. The issue on appeal is whether the sentence was excessive and severe. The transcript of the sentence hearing reveals the sealed records were relied upon by the circuit judge. The material was not transmitted to this Court. The review of the material is necessary for meaningful appellate review. Appellant’s counsel has no objection.