January 11,
2007
1. Preussag International Steel Corporation, dba
Infra-Metals Co. v. March-Westin Co.;
Titan Fabrication & Construction Co.; Zurich American Insurance Co.; and
Fidelity Deposit Co. Of Maryland - No. 062888. The United States
District Court for the Northern District of West Virginia certifies the
following question to this Court:
Certified Question:
"Under W.Va. Code §38-2-39 (2003), is a steel fabricator deemed to be a "subcontractor" where:
1. The steel fabricator enters a fixed-price contract with the general contractor of a public works construction project, pursuant to which the fabricator
1. Agrees to fabricate and deliver structural steel components conforming to the construction project’s unique design specifications;
2. Produces shop drawings for the fabricated steel components based on the project’s engineering calculations and design specifications’ [sic]
3. Submits its shop drawings for approval by the project’s architect and general contractor before fabricating the structural steel components; and
4. Delivers the fabricated steel components on a delivery schedule based on construction progress;
2. The steel fabricator performs all physical fabrication processes at its own facility, away from the project site; AND
3. The fabricated steel components are not fungible and not readily marketable without further modification?
"Grant 5 - 0
2. State of West Virginia v. Jonathan Miller - No. 062618.Defendant appeals from his convictions on one count of sexual abuse by a parent, guardian or custodian, one count of first degree sexual assault, and one count of incest. Defendant raises trial error and challenges his sentencing.
Refuse 4 - 1
( Albright, J.)
3. State of West Virginia v. Eric Foster - No. 062619. Defendant appeals from his two convictions for second degree murder. He asserts various evidentiary and trial errors.
Accept To Motion Docket
4. R. E. Hamrick, Jr., M.D. v. Charleston Area Medical Center, Inc., a West Virginia Corporation, Glenn Crotty, M.D., and Elizabeth Spangler, M.D. - No. 062794. Defendant hospital appeals and seeks a reversal of the circuit court’s summary judgment order finding that defendant doctor’s self-insurance plan conforms to the defendant hospital’s governing documents and meets the requirements of a self-funding program under the MPLA.
Accept To Motion Docket
5. State of West Virginia v. Brandon P. - No. 062622. The juvenile defendant appeals from the circuit court’s order finding probable cause to transfer him to the criminal jurisdiction of the circuit court.
Accept To Motion Docket
6. Calvin M. Sheppard, as guardian and conservator of Ethel V. Sheppard v. Carlos Gene Sheppard, Barry S. Legg, and Carol J. Legg, his wife - No. 062623. Plaintiff appeals from the circuit court’s order entered in favor of defendants following the bench trial in this action to set aside a deed and to determine the compensation due to a protected person for the use of her land and the loss of her personal property.
Refuse 5 - 0
7. In Re: Grandparent visitation of Barbara L. B. and Dr. David R. B. v. Vickie L. B. and Michael D. B. - No. 062626. This is petitioners’ direct appeal from the family court’s order denying their petition for grandparent visitation. The family court found that petitioners had failed to prove by clear and convincing evidence that an award of grandparent visitation was in the best interest of petitioners’ grandchildren.
Refuse 4 - 1
( Starcher, J.)
With Leave to Appeal to Circuit Court
8. Theodore Nesbitt v. Higher Education Policy Commission/West Liberty State College - No. 062628. Petitioner grievant appeals from the circuit court’s order approving the amount of back-pay which the defendant employer had determined was owed to petitioner. Petitioner seeks a reversal of the circuit court’s order and a remand.
Refuse 5 - 0
9. Jonathan Brian Walker v. Tara C. Sharma, M.D. - No. 062635. Plaintiff appeals from the circuit court’s order entered pursuant to Rule 50 of the West Virginia Rules of Civil Procedure granting judgment as a matter of law in favor of the defendant doctor in this medical malpractice action.
Accept To Motion Docket
10. State of West Virginia v. Billy Adkins - No. 062637. Billy Adkins appeals his conviction for two counts of first degree sexual assault and three counts of first degree sexual abuse.
Refuse 4 - 1
( Albright, J.)
11. Joyce Reed (formerly known as Joyce Miller) v. Jerry Miller - No. 062639. Jerry Miller appeals the circuit court’s order which reversed the family court and granted Joyce Reed’s Petition for Modification of a parenting plan and of child support, and the circuit court’s order which granted Mrs. Reed’s request for attorneys fees.
Refuse 4 - 1
(Benjamin, J.)
12. Joe Swiger v. John Loth and Harriet Loth, his wife - No. 062646. Plaintiff Joe Swiger appeals the circuit court’s order denying his "Motion for Judgment as a Matter of Law and, Alternatively, for a New Trial" after an adverse jury verdict in a trespass case.
Refuse 4 - 1
( Albright, J.)
13. Debbie Plumley v. West Virginia Department of Health and Human Resources/Office of Health Facility Licensure and Certification - No. 062649. The petitioner, the WV DHHR Office of Health Facility Licensure and Certification, appeals the circuit court’s order which reversed the Final Order of the DHHR Secretary. The Secretary’s Order had found respondent Debbie Plumley ineligible to operate a "legally unlicenced health care home."
Grant 3 - 2
( Starcher, J, & Albright, J.)
14. Lucinda Kay Cutlip v. West Virginia Department of Transportation/Division of Highways - No. 062655. Plaintiff Lucinda K. Cutlip appeals the circuit court’s order denying her motion for new trial after an adverse jury verdict in a deliberate intent case.
Refuse 4 - 1
( Starcher, J.)
15. State of West Virginia ex rel. Floyd M. Bennett, Jr. v. Thomas C. McBride, Warden, Mt. Olive Correctional Center - No. 062648. Floyd M. Bennett, Jr. appeals the denial of his second petition for writ of habeas corpus. He was previously convicted of first degree murder without a recommendation of mercy.
Grant 5 - 0
Remand
16. State of West Virginia ex rel. Lewis E. Nicholson v. Mark Williamson, Warden, Denmar Correctional Center - No. 062658. Lewis E. Nicholson appeals the circuit court’s order denying his petition for writ of habeas corpus.
Refuse 5 - 0
17. State of West Virginia ex rel. Irvin V. Cowgill v. William S. Haines- No. 062647. Irvin V. Cowgill appeals the denial of his petition for writ of habeas corpus. He was previously convicted of Second Degree Murder.
Refuse 5 - 0
18. State ex rel. Shane Shelton v. Howard Painter, Warden of Mount Olive- No. 062663. Shane Shelton appeals the denial of his petition for writ of habeas corpus. He was previously convicted of First Degree Murder without a recommendation of mercy.
Accept To Motion Docket
19. State of West Virginia v. Kenneth Bookheimer - No. 062686. Kenneth Bookheimer appeals his convictions for Operation of a Clandestine Drug Laboratory and Conspiracy, both felonies.
Grant 5 - 0
20. State Ex Rel. West Virginia Regional Jail and Correctional Facility Authority v. Cabell County Commissioner, et al- No. 062671. Petitioner seeks reversal of the Order of the Cabell County Circuit Court refusing to issue a Writ of Mandamus.
Accept To Motion Docket
21. State of West Virginia v. David E. Bowling - No. 062714. This is an appeal following a bench trial from which the Defendant was found guilty of battery. The petitioner seeks a reversal of his conviction based upon alleged Trial Courts errors, including a finding that the petitioner had a duty to retreat before using non-deadly force while in the curtilage of his home.
Refuse 5 - 0
22. Bryan A. Merritt v. F. Douglas Stump, Commissioner - No. 062725. Petitioner seeks an appeal from the actions and rulings of the Commissioner of the West Virginia Division of Motor Vehicles revoking his license to drive a vehicle for a period of six months for driving under the influence of a controlled substance. The ruling was affirmed by the Wood County Circuit Court. Petitioner contests the revocation by arguing that there was no scientific or other credible evidence that he had ingested marijuana or that it impaired his ability to drive.
Refuse 3 - 2
( Starcher, J, & Albright, J.)
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