February 9, 2005

1.  Blue Ridge Cardiology Consultants v. Sundeep Vardan, M.D., No. 041979. Defendant doctor appeals from the circuit court’s order entered following binding arbitration in this breach of contract action. 

Refuse 5- 0

2.  State of West Virginia v. Patricia Wells, No. 041983. Defendant appeals from the circuit court’s order dismissing without prejudice the charges against her. Defendant had requested that the matter be dismissed with prejudice.

Refuse 4-1
[ Starcher, J. ]

3.  Beverly Atkinson v. Arthur Lim, M.D., No. 041984. Plaintiff appeals from the trial court’s order granting judgment in favor of defendant, as a matter of law, on plaintiff’s informed consent claim. Plaintiff also appeals from the jury’s verdict rendered in favor of defendant doctor on the medical negligence claim. 

Accept To Motion Docket

4.  State of West Virginia v. Ronnie Stotler, No. 041992. Defendant was convicted of the misdemeanor offense of battery. He was sentenced to one year in the Eastern Regional Jail and was granted work release. 

Refuse 3- 2
[ Starcher, J.  & Benjamin, J.]

5.  Eric M. Maynard v. F. Douglas Stump, Commissioner, No. 041993. Plaintiff appeals from the circuit court’s order denying his request for either a writ of prohibition or mandamus seeking to prohibit the Commissioner of the Division of Motor Vehicles from revoking an out-of-state resident’s privilege to drive in West Virginia for an out-of-state DUI and to compel the Division of Motor Vehicles to reinstate petitioner’s privilege to drive in West Virginia based upon his completion of out-of-state DUI programs. 

Refuse 4-1
[ Albright, C. J. ]

6.  Randolph County Board of Education v. Michael R. Bennett, No. 041997. Petitioner/grievant appeals from the circuit court’s order reversing the decision of the West Virginia Education and State Employee’s Grievance Board which found that petitioner’s mid-day bus run was an extracurricular run requiring a separate contract and that the mid-day run could not be made a condition for petitioner retaining his regular bus run.

Refuse 5- 0

7.  Robert O. Bone v. The West Virginia Consolidated Public Retirement Board, No. 041999. The West Virginia Consolidated Retirement Board appeals from the circuit court’s order reversing the final administrative decision of the Board. The Board had denied respondent’s request to repay and have reinstated periods of non-deputy sheriff service that previously withdrawn from the Public Employee’s Retirement System. 

Refuse 5- 0

8.  State of West Virginia v. Clifford V. Cawley, No. 042000. Defendant appeals from the circuit court’s order requiring him to serve home confinement as a term and condition of probation. 

Refuse 5- 0

9.  Naomi G. Jeffrey v. Clifford E. Jeffrey, No. 042018. Petitioner husband appeals from the circuit court’s order reversing the decision of the family court in this divorce proceeding. 

Refuse 5- 0

10.  State of West Virginia v. Eric P. Minda, No. 042019. Defendant appeals from his conviction for first degree robbery and felon in possession of a firearm. Defendant alleges evidentiary error and disproportionate sentencing. 

Refuse 5- 0

11.  Sherry Kelly, Parent and Guardian of D. T., an infant v. Webster County Board of Education, No. 042020. Plaintiff appeals the circuit court’s order granting summary judgment to the defendant school board. Plaintiff asserts that the school board negligently maintained its high school football field and negligently permitted a football game to be played, causing plaintiff to be injured while playing in the game. 

Refuse 5- 0

12.  U.S. Steel Mining Co. v. Rebecca Melton Craig, Tax Commissioner, No. 041967. Petitioners appeal the circuit court’s order affirming the decision of the State Tax Commissioner. The court held that certain state taxes on coal exported to customers in foreign countries do not violate the Import-Export Clause of the United States Constitution. 

Grant 4-1
[ Starcher, J. ]

13.  Joseph A. Cooper v. Roger Pritt, Commissioner of the West Virginia Division of Motor Vehicles, No. 041977. The DMV Commissioner petitions for appeal from a circuit court’s order reversing the administrative revocation of respondent’s driver’s license. The court held that the DMV Commissioner abused his discretion by not giving effect to an agreement between the respondent driver and the arresting officer regarding the disposition of the driver’s license. 

Grant 3- 2
[ Albright, C. J. & Starcher, J. ]

14.  State of West Virginia v. Rodney Dale Johnson, No. 041975. Petitioner appeals the circuit court’s dismissal of his second motion for reconsideration of sentence. The court found no jurisdiction to rule upon the motion because it was filed beyond the 120 day time limit of W.Va. R. Crim. Pro. 35(b). 

Refuse 3- 2
[ Starcher, J.  & Maynard, J. ]

15.  William M. Kester and Orian Lee Nutter, II v. J. Thom Small, Diversified Resources, Inc., a West Virginia Corporation, J. Carl Palmer, Elizabeth A. Dodd, and Adam F. Wilson, beneficiary of the Estate of Nelma M. Wilson, deceased, No. 042028. Petitioner J. Thom Small appeals an adverse summary judgment order. The circuit court applied W.Va. R.Civ.Pro. 60(a) to correct a 1935 court order on the issue of the ownership of oil and gas rights after property was partitioned. 

Grant 5- 0

16.  State of West Virginia v. Aligah Boyd Cook, No. 042055. Petitioner appeals his conviction for misdemeanor domestic battery. 

Refuse 5- 0

17.  Larry D. Smith and Dean Ann Cox, individually and as guardian and next friend of Jason Cox and Alexis Cox v. Carl E. Smith, Inc., a West Virginia corporation, Carl E. Smith Real Estate, Inc., a West Virginia corporation, Eddie B. Smith, Donald P. Smith, and Michael Smith, No. 041978. Defendant corporations petition for appeal from the circuit court’s summary judgment order in a stock valuation case. 

Refuse 4- 0
[ Benjamin, J. Not Participating ]

18.  Justin D. Bailey v. Mayflower Vehicle Systems, Inc., a corporation d/b/a South Charleston Stamping and Manufacturing, No. 042067. The plaintiff appeals the circuit court’s order granting judgment as a matter of law for the defendant on plaintiff’s claims of discrimination in violation of the Worker’s Compensation statute. 

Accept To Motion Docket

19.  Kroger Limited Partnership v. Robert G. Surber, No. 042073. Kroger appeals the circuit court’s order affirming the decision of the Bureau of Employment Programs to award unemployment compensation benefits to a number of Kroger employees during a work stoppage. 

Accept To Motion Docket

20.  State of West Virginia v. Justin E. Ratcliff, No. 042081. Petitioner appeals his conviction for misdemeanor battery and his seven month jail sentence. 

Refuse 5- 0

21.  State of West Virginia v. Edward Jay Lane, No. 042088. Petitioner appeals his conviction for first degree arson and his 10 year prison sentence. 

Refuse 5- 0

22.  Karen Strother and Rebecca (Knight) Jones v. Harrison County Board of Education, No. 042126. Petitioners, who are school service personnel employed by the respondent school board, appeal the circuit court’s order which affirmed the decision of the Education and State Employees’ Grievance Board and denied their grievances. Petitioners assert that the respondent is not paying them the correct salary supplement. 

Refuse 5- 0

23.  Sandra Moss and Jeffrey Moss v. H.B.A. Cytology Center, Inc., Riggs Corporation; and State Automobile Mutual Insurance Company v. Riggs Corporation, Sandra Moss, Jeffrey Moss, and H.B.A. Cytology Center, Inc., No. 042131. State Automobile Insurance Company petitions for appeal from the circuit court’s order awarding $71,116 in attorney’s fees and expenses to lawyers representing the insured, Riggs Corporation, in a declaratory judgment matter concerning a coverage issue. 

Refuse 3- 2
[ Maynard, J. & Benjamin, J. ]

24.  Pamela E. Howe v. Duane A. Howe, American Standard Insurance, et al., No. 042132. The petition for appeal arises out of an Opinion Order from a declaratory judgment action wherein the Circuit Court of Marion County determined that a "household" and "intra-family" exclusion in three liability insurance policies issued in the State of Ohio are enforceable and preclude liability coverage in a motorcycle collision which occurred in the State of West Virginia. 

Accept To Motion Docket

25.  In the matter of: Dalton R. - a Juvenile, No. 042153. A juvenile in the trial court seeks review of the Court’s disposition of placement at Cornell Abraxas in Shelby, Ohio, by Order of the Mineral County Circuit Court. 

Accept To Motion Docket

26.  International Industries, Inc. v. Rebecca Melton Craig, Tax Commissioner, No. 042155. This case began as a claim for refund of severance taxes paid by International Industries, Inc. With respect to coal that was mined in West Virginia and ultimately exported. The Office of Tax Appeals held for the Taxpayer and granted the claim for refund. The Office of Tax appealed. The Taxpayer filed a Motion to Dismiss which Judge Berger granted by stating that the failure of the Tax Commissioner to file the petition within sixty days of receipt of the OTA decision is an incurable jurisdictional defect. 

Refuse 4-1
[ Starcher, J. ]

27.  Joshua McNeely and Melissa McNeely et al. v. Independence Coal Company, Inc., No. 042156. Petitioner, Independence Coal, files an appeal from the circuit court’s order denying post-trial motions following a verdict in favor of the plaintiffs with damages awarded for economic loss, pain, suffering and loss of consortium. The plaintiffs had alleged deliberate intent when Mr. McNeely was severely and permanently injured. 

Refuse 4- 0
[ Davis, J. Not Participating ]

28.  In Re: Kenneth Donley v. Roger Pritt, Commissioner, No. 042169. Petitioner files an appeal to an Order upholding the Commissioner of Department of Motor Vehicle’s decision to revoke the petitioner’s driver’s license and the lower Court’s finding that the actions of the Commissioner were technically within the one hundred eighty days statute of limitations as provided for within the West Virginia Code and the Petitioner’s due process rights were not violated.

Grant 3- 2
[ Davis, J. & Maynard, J. ]

29.  Joanna Payne Huffman and Shawn Huffman v. Nationwide Mutual Fire Insurance Company, Betsy Boyd and Terrence J. Boyd, No. 042185. Petitioner seeks to set aside a judgment in favor of the plaintiffs below. The Court granted partial summary judgment finding that the loss of respondent’s personal property was covered under their mobile home owners policy.

Withdrawn