December 9, 2008 Requests for Oral Presentation and Petitions for Appeal

West Virginia Supreme Court of Appeals

Requests for Oral Presentation
and

Petitions for Appeal

December 9, 2008

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. In Re the children of: Lori Ann Burnside, f/k/a Lori Ann Reed, and Darrell E. Reed, Jr. - No. 081776. Petitioner appeals from the circuit court’s order affirming the decision of the family court, which denied petitioner’s motion to set aside a qualified domestic relations order filed under Rule 60 of the West Virginia Rules of Civil Procedure. Petitioner asserts that while his objections were not promptly filed, they were reasonably filed upon his discovery of the mistake in the qualified domestic relations orders. Petitioner seeks a reversal of the denial of his motion to set aside and a remand for a correct computation of the Pension and Savings Plans and the entry of a correct qualified domestic relations order. - Refuse 5- 0

2. State of West Virginia v. Patrick A. Borror - No. 081779. Defendant appeals from his convictions of first degree sexual assault and the failure to update his sex offender registration. Defendant challenges the sufficiency of the evidence for sexual assault, the constitutionality of the sex offender statute, the admission of 404(b) evidence, as well as other asserted errors. Defendant seeks either a new trial or re-sentencing under the sexual abuse statute based upon the evidence at trial. - Refuse 4- 0
[ Starcher, J. Not participating ]

3. In Re the Marriage of: Michael Elmer Vega and Katrina R. Mailloux - No. 081778. Petitioner father appeals from the circuit court’s order upholding the decision of the family court which recalculated child support based upon a basic shared parenting formula. Petitioner contends that the extended shared parenting formula found in W.Va. Code §48-13-501, et seq., should have been utilized due to the fact that his parenting time exceeds 160 overnights per year. Petitioner seeks a reversal and a remand to the family court with directions that child support be calculated under the extended shared parenting formula. - Refuse 5- 0

4. Michelle Jones, in her capacity as administratrix of the Estate of Julia Toler, deceased v. Edward R. Setser, M.D.; St. Mary’s Hospital of Huntington, Inc.; and Huntington Cardiothoracic Surgery, Inc. - No. 081795. Plaintiff appeals from the circuit court’s order denying her motion to set aside the verdict and her motion for sanctions in this action alleging medical malpractice. Plaintiff asserts that defense counsel intentionally prejudiced the jury during closing argument. Plaintiff seeks a reversal of the circuit court’s order denying her motion to set aside the verdict and for sanctions. - Grant 5- 0

5. Brooke County Solid Waste Authority and Terri Patterson v. Valero Terrestrial Corporation - No. 081786. Defendant appeals from the circuit court’s order awarding attorney’s fees and costs to plaintiffs in relation to their defense of the second Rule 60(b) motion filed by defendant. Defendant challenges the imposition of those attorney’s fees and costs, which defendant states were unreasonable and unnecessary. - Refuse 5- 0

6. State of West Virginia v. Frank Choat, Sr. - No. 081801. Defendant appeals from his sentencing following his conviction for possession with intent to deliver a Schedule II controlled substance. Defendant asserts that the circuit court abused its discretion in sentencing and that the State breached the plea agreement regarding sentencing. - Refuse 5- 0

7. Charleston Area Medical Center, Inc. v. State Tax Department of West Virginia - No. 081802. Petitioner taxpayer appeals from the circuit court’s order affirming the administrative decision denying a petition for reassessment of additional Provider Tax and interest. - Accept to Motion Docket [ McHugh, Senior Status Justice Disqualified ]

8. State of West Virginia v. Danny Lockhart, Jr. - No. 081803. Defendant appeals from his conviction for operating a clandestine methamphetamine laboratory and possession of a controlled substance, methamphetamine, with intent to deliver. Defendant asserts that the circuit court erred in denying his motion to suppress evidence and seeks a reversal of his convictions.- Refuse 5- 0

9. State of West Virginia v. Ronnie Allen Rush - No. 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. - Accept to Motion Docket

10. Robert J. Zaleski, M.D. v. West Virginia Mutual Insurance Company, formerly known as West Virginia Physicians Mutual Insurance Company - No. 081814. Defendant appeals from the circuit court’s order (1) denying defendant’s motion for reconsideration of its motion to dismiss or, in the alternative, motion for summary judgment; (2) denying defendant’s motion for entry of an order granting its motion to dismiss pursuant to Rule 12(b)(6); and, (3) denying defendant’s motion for entry of order remanding the non-renewal to defendant for further hearing. Defendant also appeals from the circuit court’s sua sponte order amending defendant’s non-renewal hearing procedures. Defendant seeks a reversal of the circuit court’s rulings and a removal of Judge Recht from this case. Defendant also seeks its costs and expenses, including reasonable attorney’s fees, and such other relief deemed appropriate.- Grant 5- 0

11. The West Virginia Consolidated Public Retirement Board v. Johnny Mendez - No. 080499. Johnny Mendez appeals the circuit court’s order terminating his Public Employees Retirement System benefits based upon the court’s finding that he rendered less than honorable service because of a federal conviction for two counts of felony Conspiracy to Buy Votes. - Refuse 5- 0

12. William G. Lloyd, Plaintiff v. Braxton Lumber Co., Inc., a West Virginia corporation; Charles R. Lloyd, and Charles R. Lloyd, II, individuals, Defendants, and Braxton Lumber Co., Inc., a West Virginia corporation, and Charles R. Lloyd, II, an individual, Third-Party Plaintiffs v. Lloyd’s Inc., Third-Party Defendant - No. 081734. Charles R. "Chuck" Lloyd appeals adverse rulings in a case involving a disagreement among family members about ownership of business and property interests.- Refuse 5- 0

13. William G. Lloyd, Plaintiff v. Braxton Lumber Co., Inc., a West Virginia corporation; Charles R. Lloyd, and Charles R. Lloyd, II, individuals, Defendants, and Braxton Lumber Co., Inc., a West Virginia corporation, and Charles R. Lloyd, II, an individual, Third-Party Plaintiffs v. Lloyd’s Inc., Third-Party Defendant - No. 081735. William G. "Greg" Lloyd appeals adverse rulings in a case involving a disagreement among family members about ownership of business and property interests.- Refuse 5- 0

14. State of West Virginia v. Dean E. Gamble, Sr. - No. 081626. Dean E. Gamble, Sr. appeals his convictions for one count of conspiracy to deliver a controlled substance, and one count of delivery of a controlled substance as an accessory before the fact. He asserts that the court erred in admitting certain prejudicial evidence, and asserts a double jeopardy violation. - Accept to Motion Docket

15. State of West Virginia v. Linda Sue Meng - No. 081841. Linda Sue Meng appeals her conviction for Murder in the Second Degree. She asserts seven assignments of error including insufficiency of the evidence and that the court erred by not suppressing her entire police statement, in restricting her ability to impeach witnesses, and in not instructing on voluntary manslaughter. - Refuse 5- 0

16. State of West Virginia v. Ronald E. Taylor, Sr. - No. 081854. Ronald E. Taylor, Sr. appeals his conviction for four counts of Sexual Assault in the First Degree and four counts of Sexual Abuse by a Custodian. He asserts that the court erred by incorrectly applying the Rape Shield Statute, that the burden of proof was improperly shifted, and that the court erroneously restricted his cross-examinations. - Accept to Motion Docket

17. State of West Virginia v. Foundation Corporation - No. 081877. The Foundation Corporation appeals the circuit court’s order which, after a de novo trial, affirmed the magistrate court’s ruling that an establishment owned by the corporation committed a willful violation of a public health law, to wit, the Ohio County Clean Indoor Air Regulation. - Withdrawn

18. State of West Virginia v. Rosendo Contreras, Jr. - No. 081887. Rosendo Contreras, Jr. appeals the sentence he received for his conviction upon guilty pleas to five counts of Sexual Abuse by a Parent, Guardian or Custodian. The court ordered his sentences to run consecutively, for a total of 50 to 100 years. - Refuse 5- 0

19. State of West Virginia v. David Harold Eilola - No. 081893. David Harold Eilola appeals his convictions for Attempted First Degree Murder, Malicious Assault, Fourth Degree Arson, Violation of a Domestic Violence Protective Order, and Domestic Battery. He asserts instructional error, evidentiary error, insufficiency of the evidence, and illegal sentence. - Defer

20. State of West Virginia v. Richard Booth - No. 081896. Richard Booth appeals the 80 year sentence he received for his conviction upon guilty plea to First Degree Robbery. - Accept to Motion Docket

21. State of West Virginia v. Steven A. Watkins - No. 081904. Steven A. Watkins appeals his conviction for attempted robbery in the second degree. He asserts several grounds of insufficiency of the evidence, evidentiary error, and improper argument by the prosecutor. - Accept to Motion Docket

22. State of West Virginia v. Jerry Lee Meadows - No. 081914. Jerry Lee Meadows appeals his conviction for four counts of Sexual Abuse in the First Degree and two counts of Incest. He asserts that the verdicts are inconsistent and that the evidence was insufficient to support the convictions. - Refuse 5- 0

23. Edith M. Ferrebee, Successor Administrix with Will Annexed of the Estate of Albert Basil Ferrebee v. Delbert Davis and Charlotte Davis - No. 081934. Plaintiff Edith M. Ferrebee appeals the circuit court’s order granting summary judgment in favor of Defendants Delbert Davis and Charlotte Davis. The court ruled that the Statute of Frauds barred this action to collect a purported debt. - Refuse 5- 0

24. State of West Virginia v. John C. Coll - No. 081935. Petitioner John C. Coll appeals the circuit court’s order which affirmed the magistrate court’s order regarding a condition imposed on petitioner’s home confinement. - Refuse 5- 0

25. State ex rel. Donald Pritt v. David Ballard, Warden - No. 081946. Donald Pritt appeals the circuit court’s denial of his petition for a writ of habeas corpus. He is serving consecutive sentences totaling 90 years for his conviction upon guilty pleas to two counts of aggravated robbery. He argues that the sentence is disproportionate to the facts of the crime. - Refuse 5- 0

26. Norman L. Sines and Victoria D. Sines v. Randy Huffman, Secretary of West Virginia Department of Environmental Protection, et al. - No. 081949. Petitioners filed an administrative appeal seeking judicial review of the issuance of seven oil and gas well permits by the Office of Oil & Gas, West Virginia Department of Environmental Protection. Petitioners sought a stay or restraining order pending the appeal and declaratory relief regarding property rights in Doddridge County. The Kanawha County Circuit Court dismissed the administrative appeal and determined that petitioners did not have the right to appeal an oil and gas permit. Petitioners’ declaratory relief was denied because the real property was located in Doddridge County and the lower court determined that Kanawha County was the wrong forum. - Accept to Motion Docket

27. SER David D. Rabb v. Mike Coleman, Acting Warden - No. 081955. Petitioner, David D. Rabb, appeals from the Kanawha County Circuit Court’s Order denying a request for Habeas relief for petitioner’s conviction of two counts of Kidnapping, one count of Malicious Assault and one count of First Degree Robbery. Petitioner was ultimately sentenced to life imprisonment without mercy on the Kidnapping charge, as well as other sentences deemed to run both consecutively and concurrently. - Accept to Motion Docket

28. Charles Howell and Marcy Howell, Ind. D/B/A Sidelines Sports Rest., and Fitness Center v. Traders Bankshares, Inc.; Larry M. Tracey; and American Modern Home Insurance Company, et al. - No. 081967. Traders Bank, American Modern Home Insurance Company and Larry M. Tracey, appeal from a May 15, 2008, Order of the Wetzel County Circuit Court which granted summary judgment in favor of Charles and Marcy Howell. The Court found that the Howells were entitled to certain insurance policy coverage that was denied by the Petitioners.- Refuse 5- 0

29. Sinda Adkins v. David Clark and Patricia Clark - No. 081972. Sinda Adkins files her appeal seeking a reversal of the lower court’s decision granting petitioner a life estate in a certain parcel of real estate. The Petitioner initially filed the suit seeking an order imposing a constructive trust on a portion of the real estate and to award her fee simple absolute title to the same. - Withdrawn

30. State of West Virginia v. Tracy John Craft - No. 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. - Accept to Motion Docket