Does the preemption provision found at 42 U.S.C. §5403(d) preempt and bar plaintiffs’ common law negligence claim based upon formaldehyde exposure when the plaintiffs do not claim, and cannot establish, that the defendants failed to comply with the formaldehyde standards established in 24 CFR §§ 3280.308 and 3280.309? ANSWER: NO.

May the plaintiffs present evidence of ambient air testing for the presence of formaldehyde in support of their common law negligence claim when HUD specifically considered and rejected the ambient air standard that plaintiffs want to present to a court and jury as the standard of car?  ANSWER: YES.
Does the "savings clause" of 42 U.S.C. § 5409(c) preclude the Court from granting the defendants’ motions for summary judgment when despite the legislative history which establishes that it was is [sic] HUD’s intention that federal standards preempt State and local formaldehyde standards in accordance with 42 U.S.C. 5403(d)? ANSWER: YES. Grant 4-1 (Workman, J.)

4.  State of West Virginia v. Bruce Michael Hyler - No. 081984. Defendant appeals from the circuit court’s order directing defendant to register as a sex offender for the balance of his natural life. Defendant asserts that the circuit court erred when it ruled that the offense was, in fact, sexually motivated based solely on hearsay evidence. Defendant requests that the finding that the offense was sexually motivated be vacated. Refuse 3-2 (McHugh, J., Ketchum, J.)

5.  Jack Chipps, et al. v. City of Clarksburg and Board of Trustees of Clarksburg Police Pension Fund - No. 082021. Plaintiffs, 21 retired police officers or their survivors, sought a ruling ordering retroactive application of costs of living adjustments under a Bd. of Trustees of Firemen’s Pension and Relief Fund City of Fairmont v. City of Fairmont, 215 W.Va. 366, 599 S.E.2d 789 (2004). Plaintiffs appeal from the circuit court’s order denying their request for relief in this declaratory judgment action. Refuse 5- 0

6.  Ronald Trahan v. Thomas L. McBride, Warden, Mount Olive Correctional Complex - No. 082033. Petitioner appeals from the circuit court’s order denying his petition for a writ of habeas corpus. Petitioner raises issues related to trial evidence, alleged juror misconduct, procedural error, and ineffective assistance of counsel. Refuse 5- 0

7.  State of West Virginia v. Christopher T. Ferguson - No. 082036. Defendant appeals the circuit court’s denial of both his motion for a change of venue and his motion for severance of trials. He seeks a reversal of those rulings and a remand to the circuit court with an order that a change of venue be granted and that he and his co-defendant be allowed to have separate trials. Refuse 5- 0

8.  State of West Virginia v. Bryson Jennings England, Jr. - No. 082041. Defendant appeals from the circuit court’s order affirming defendant’s conviction in magistrate court following a jury trial on one count of driving revoked for DUI. Defendant raises instructional error, challenges the constitutionality of the DUI statute, and raises plain error. Refuse 5- 0

9.  Greg A. Hewitt and Anthony M. Salvatore v. Hamilton, Burgess, Young, Pollard, Hewitt & Salvatore, PLLC, Hamilton, Burgess, Young & Pollard, PLLC, Kevin B. Burgess, Ralph C. Young, and Lynn B. Pollard - No. 082058. Plaintiffs appeal from the circuit court’s order granting defendants’ motions to find plaintiffs in breach of a settlement agreement and release. The circuit court interpreted and applied a provision of the settlement agreement addressing the division of attorney’s fees in cases taken by plaintiffs, the departing members of the defendant law firm, as well as a confidentiality provision. Plaintiffs seek a reversal of the circuit court’s order. Refuse 4-1 (McHugh, J.)

10.  Ralph E. Repass v. Northwestern Mutual Insurance Company, The Goodwin Agency, Inc., and Sandra Goodwin, individually - No. 082059. In an insurance case, plaintiff Ralph E. Repass appeals the circuit court’s order which dismissed his negligence and breach of contract claims against defendants Sandra Goodwin and The Goodwin Agency, Inc., and which dismissed his negligence claims against Northwestern Mutual Insurance Company. Refuse 5- 0

11.  State of West Virginia v. Raymond Eugene Hoak - No. 082061. Raymond Eugene Hoak appeals his conviction for voluntary manslaughter with the use of a firearm. He asserts multiple trial errors, including juror misconduct, erroneous admission of 404(b) evidence, violation of his right of confrontation, and instructional error. Defendant also asserts the court erroneously refused to answer a question from the jury, insufficiency of the evidence to support the conviction, and the court erroneously struck a juror. He also asserts that the court erred when denying his request for credit for time served on pre-trial home confinement.  Accept to Motion Docket

12.  Mary Lou Smith and Greg Smith v. Andrew N. Frye, Jr. - No. 082065. Mary Lou Smith and her son Greg Smith appeal the circuit court’s order dismissing their case with prejudice. They assert that the chief judge of the circuit court terminated Ms. Smith’s employment as magistrate court clerk for political reasons when Mr. Smith filed to be a candidate for the office of circuit clerk, which they assert violated their rights under the state constitution and public policy.  Accept to Motion Docket

13.  State of West Virginia v. Justin Keith Black - No. 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.  Accept to Motion Docket

14.  State of West Virginia v. Denver P., a juvenile - No. 082067. Juvenile petitioner Denver P. appeals the circuit court’s two orders transferring two separate cases against him to the court’s adult criminal jurisdiction. Refuse 5- 0

15.  State of West Virginia v. Brian K. Mayle - No. 082076. Brian K. Mayle appeals his conviction for one count each of daytime burglary, grand larceny, and conspiracy to commit burglary. He argues that the court erroneously restricted his cross-examination, the court erroneously denied a request for a mental competency examination, the prosecutor made an improper remark in closing, and insufficiency of the evidence. Refuse 5- 0

16.  Stephen Antolini, Roger McClanahan, Mickey Sylvester v. West Virginia Division of Natural Resources - No. 082005. The Division of Natural Resources appeals the circuit court’s order which affirmed in part and reversed in part a grievance board decision. The DNR argues that the court and board erroneously found that it had committed discrimination and favoritism when granting pay raises to Conservation Officers II who were assigned as "Regional Training Officers," while not giving this raise to the grievants who were Conservation Officers II assigned as "Field Sergeants."  Refuse 4-1 (Ketchum, J.)

17.  SER Lonnie James Hatfield v. Jim Rubenstein, Commissioner, West Virginia Department of Corrections, and the Cabell County Home Confinement Center - No. 082089. Lonnie James Hatfield appeals the circuit court’s order denying his petition for a writ of coram nobis. He asserts that although he is no longer incarcerated, because of a delay in receiving a transcript he should receive a second re-sentencing so that he may pursue a petition for appeal of his 2006 conviction for felony attempting to operate a clandestine drug laboratory and misdemeanor possession of a controlled substance. Refuse 5- 0

18.  Farmers Mutual Insurance Company v. Kevin Fike, individually and in his capacity as agent of Farmers Mutual Insurance Company - No. 082092. Petitioner Farmer Mutual Insurance Company appeals from an May 20, 2008, Order of the Monongalia Circuit Court, granting summary judgment on behalf of Respondent Fike and against Farmers on its claims of Contribution/Indemnity and Negligent Misrepresentation. The lower court further found that the claims of Professional Negligence and Intentional/Negligent Infliction of Emotional Distress were not assignable.  Accept to Motion Docket

19.  State of West Virginia v. Monty Dean Martin - No. 082095. Petitioner Monty Dean Martin appeals his conviction for the charges of Delivery of a Controlled Substance and Conspiracy to Deliver a Controlled Substance. On appeal, Mr. Martin argues that the Prosecution failed to present sufficient evidence to meet the burden of proof. Refuse 5- 0

20.  In RE: Election of May 13, 2008 for the City of Mount Hope, West Virginia - No. 082096. Petitioner George F. Smith, an unsuccessful candidate for the office of Mayor of Mt. Hope, filed an Amended Petition for a Writ of Certiorari to contest and nullify the election of May 13, 2008. The Fayette County Circuit Court, after a hearing, held that the Petitioner failed to properly and timely request relief within the provisions of West Virginia Code §3-1-45. As a result of the delay in filing, the Circuit Court dismissed the case because it found that neither the City Council nor the Circuit Court have jurisdiction over the matter. Defer

21.  Traci Haukland v. Hardy County Board of Education - No. 082133. Petitioner Traci Haukland appeals from a Final Order entered on June 26, 2008, by the Kanawha County Circuit Court which ruled in favor of the Hardy County Board of Education, reinstating a ten day suspension without pay. The Petitioner seeks to reinstate the decision of the Administrative Law Judge to reduce the ten day suspension without pay to a letter of reprimand. Refuse 5- 0

22.  State of West Virginia v. Michael Day - No. 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.  Accept to Motion Docket

23.  State of West Virginia v. Thomas - No. 082084. Terry Lee Thomas appeals his conviction for two counts of first degree murder without recommendations of mercy and with findings that he used a firearm, one count of malicious assault, and one count of attempted first degree murder. He was convicted in 1998, but was re-sentenced for purposes of appeal. He alleges ineffective assistance of counsel; that the State failed to provide him a complete copy of his transcripts so that he could perfect his appeal; that the court erred when denying his motions for change of venue and for a jury view, and to dismiss the case because of unavailable evidence; that the court committed multiple evidentiary errors when admitting certain photographs and testimony; that the prosecutor suppressed helpful evidence, used perjured testimony, and made prejudicial statements; and insufficiency of the evidence.  Accept to Motion Docket

 
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