2.  State of West Virginia ex rel. Jackie Robinson, Jr. v. Everett W. Boober, Sheriff, Jefferson County, West Virginia - No. 072898. Petitioner appeals from the circuit court’s order denying his petition for a writ of habeas corpus challenging the Governor’s Warrant. The State of Maryland seeks the extradition of petitioner to Maryland to answer to a charge of conspiracy to distribute cocaine. The circuit court ordered that the demand of the Governor’s Warrant be executed and that petitioner be delivered into the custody of an agent of the State of Maryland. Refuse 5-0

3.  James Q. Arthur v. Rodney C. Windom, et al. - No. 073063. Plaintiffs appeal from the circuit court’s order granting summary judgment in favor of the defendant attorney on his counterclaim for a contingent fee in this legal malpractice action. Refuse 4- 0 (Albright Disqualified)

4.  C & H Company, a West Virginia corporation v. Consolidated Rail Corporation, a Pennsylvania corporation - No. 072927. Plaintiff appeals from the circuit court’s orders dismissing this action for failure to join an indispensable party. Plaintiff instituted this action to collect payment for taxi cab transportation services that it provided to the defendant railroad. Plaintiff seeks a reversal and a remand for further proceedings. Accept to Motion Docket

5.  Franklin S. Beverly, Administrator of Loretta Beverly’s Estate; Franklin S. Beverly as the next friend of Edison Beverly, his minor son; and Franklin S. Beverly, individually v. Weyerhaeuser Company; Trust Joist McMillan, Inc.; Trust Joist McMillan, a limited partnership; Jim Wadsworth; and Nicholas Riddle - No. 072929. Plaintiffs appeal from the circuit court’s order awarding summary judgment in favor of defendants. The circuit court concluded that defendants did not owe a duty of care to plaintiffs and that the acts of defendants were not a proximate cause of plaintiffs’ damages. Plaintiff instituted a negligence action against defendants arising out of an automobile accident. Plaintiff seeks a reversal of the summary judgment and a remand for trial. Accept to Motion Docket

6.  O.J. Mayo v. The West Virginia Secondary Schools Activities Commission - No. 072942. Defendant, The West Virginia Secondary Schools Activities Commission, appeals the circuit court’s order striking as unconstitutional certain rules of the defendant, one of which was not at issue in the case, and the circuit court award of attorney’s fees and costs to plaintiff. Grant 5- 0 

7.  In Re: J.L. - No. 072949. The juvenile petitioner seeks a reversal and remand for disposition following the circuit court’s order placing petitioner at the Children’s Home in Elkins. Petitioner seeks to be returned to his mother’s physical custody on a program of monitoring by the Department of Health and Human Resources. Refuse 4-1 (Albright)

8.  John R. Phillips v. Thomas McBride, Warden - No. 072952. Petitioner appeals from the circuit court’s order denying his petition for a writ of habeas corpus. Petitioner asserts numerous grounds in support of his request for relief, including sentencing and trial errors, as well as ineffective assistance of counsel. Accept to Motion Docket

9.  Mark Alan Phillips v. Bernard Kazienko, Sheriff of Brooke County, West Virginia - No. 072961. Petitioner instituted this proceeding seeking a writ of mandamus against the Sheriff of Brooke County to compel the Sheriff to return various items of personal property taken by deputies from petitioner’s home without his consent and without a warrant. The circuit court denied the petition finding that while petitioner had a clear right to the return of his property and the Sheriff had a non-discretionary duty to return the property once it was no longer needed, the property had either been lost, misplaced, or destroyed through no fault of the Sheriff making it impossible for the Sheriff to return the property to petitioner. Refuse 4-1 (Albright)

10.  Charles Posey v. West Virginia Department of Education - No. 073004. Petitioner appeals from the circuit court’s order affirming the decision of the West Virginia Department of Education, which denied his application for a renewal of certification to operate a school bus in the State of West Virginia. Petitioner seeks a reversal of the decisions of the circuit court and the West Virginia Department of Education, compensation for wages and benefits lost as a result of the refusal to renew his certification, and attorney’s fees and costs. Refuse 5- 0

11.  State of West Virginia ex rel. Beth Stewart v. Dale Humphreys, Warden - No. 073031. Petitioner appeals from the circuit court’s order denying her petition for a writ of habeas corpus. Petitioner raises issues related to her sentencing, mental competency at the time of the crimes, and failure to fulfill a plea bargain. Petitioner seeks a reversal and remand for re-sentencing. Refuse 5- 0

12.  Certain Underwriters at Lloyd’s, London, subscribing to Policy No. B0711 v. PinnOak Resources, LLC and Pinnacle Mining Company, LLC - No. 073041. Plaintiffs appeal from the circuit court’s order awarding summary judgment in favor of defendants in this breach of contract action. Plaintiffs also appeal from the circuit court’s order denying their motion to alter or amend the summary judgment order. This action arises out of plaintiffs’ assertion that defendants failed to pay the premium for a 5-year policy effective from 2004-2009. Plaintiffs challenge the circuit court’s finding regarding the meaning of certain policy language and the effect of a settlement agreement on the policy premium. Accept to Motion Docket

13.  State of West Virginia v. Joseph Edward Metz - No. 072305. Joseph Edward Metz appeals his conviction for one count of felony Displaying Obscene Matter to a Minor. He asserts that the State failed to prove the elements of this crime, evidentiary error in the admission of 4 videotapes and testimony about the tapes, that the crime for which he was convicted does not apply to the facts alleged by the State, and that the court committed error when ordering sex offender registration. Refuse 3-2 (Starcher, Albright)

14.  Coal River Mountain Watch, an association v. Danny Ellis, Cabinet Secretary, West Virginia Department of Transportation in his official capacity, and The Public Service Commission of West Virginia, an agency of government, and West Virginia Coal Association and West Virginia Natural Resources Transporters Association, Intervenors/Defendants - No. 072787. Plaintiff Coal River Watch appeals the circuit court’s order granting summary judgment for the defendants. Plaintiff asserts that W.Va. Code § 17C-17A-1 through 16, pertaining to the Coal Resource Transportation System, violate multiple provisions of the W.Va. Constitution. Accept to Motion Docket

15.  Gary Lacy v. The Western and Southern Life Insurance Company, an Ohio corporation, Gene Patterson and Aric Grooms - No. 072890. Plaintiff appeals the circuit court’s order granting summary judgment for the defendants. Plaintiff alleged the tort of outrage against his former employer for alleged verbal mistreatment by plaintiff’s work supervisor, but the court held that the outrage claim is barred by Workers’ Compensation immunity as explained in Bias v. Eastern Associated Coal Corp.. The court dismissed a conspiracy to commit outrage claim for the same reason. The court also dismissed a defamation claim as being filed beyond the statute of limitations. Accept to Motion Docket

16.  State of West Virginia v. James Christopher Lupo - No. 073091. James Christopher Lupo appeals the circuit court’s order denying his motion for reconsideration of sentence. Upon guilty pleas to three counts of non-aggravated robbery, petitioner was sentenced 3 terms of 5 to 18 years, all consecutive to one another and also consecutive to the remainder of an 8 year prison sentence petitioner was serving in Ohio. He asserts that the court erred in denying his motion for reconsideration of sentence in that the court did not make findings of fact and conclusions of law and did not consider petitioner’s rehabilitative efforts. Refuse 5- 0

17.  Howard J. Trickett, et al v. Jospeh A. Laurita, Jr., et al., and J. Anthony & Company, et al. v. James Trickett, et al. - No. 073092. David J. Trickett appeals the circuit court’s order which determined how settlement proceeds should be disbursed. Refuse 4- 0 (Starcher Disqualified)

18.  State of West Virginia v. Claude Clemons - No. 073095. Claude Clemons appeals his conviction for Obtaining Money by False Pretenses. He asserts that the court should have barred a re-trial under Double Jeopardy principles, that there were multiple instances of evidentiary error, and that certain jury instructions did not accurately reflect the law. Refuse 5- 0

19.  State of West Virginia v. Robert L. Newsome - No. 073096. Robert L. Newsome appeals his conviction for possession with intent to deliver, delivery of a controlled substance, and conspiracy, as well as his recidivist conviction and his sentence. He asserts inter alia that police officers were improperly permitted to render expert testimony, he was incompetent to assist his defense with respect to considering a plea bargain offer, his recidivist sentence is cruel and unusual punishment, the court committed plain error by not striking certain jurors for cause, and his rights were violated at his recidivist trial because new counsel was appointed only two business days earlier. Accept to Motion Docket

20.  State of West Virginia v. Robert Padelski - No. 073097. Robert Padelski appeals his conviction for 10 counts of First Degree Sexual Assault, 11 counts of First Degree Sexual Abuse, and 19 counts of Sexual Abuse by a Custodian. He asserts that the State failed to disclose exculpatory evidence, his sentence totaling 351 to 785 years is cruel and unusual, the indictment was faulty, and there was insufficient proof to support 40 counts. Refuse 4-1 (Albright)

21.  State of West Virginia v. Ferlin Jay Heavener - No. 073128. Ferlin Jay Heavener appeals the circuit court’s Order denying his Rule 35(b) Motion for Reconsideration of Sentence. He is presently serving 20 to 100 years for his conviction upon guilty pleas to 20 counts of Sexual Assault in the 3^rd Degree and 5 counts of Delivery of a Controlled Substance. He asserts procedural and due process violations, and that the court erred in not granting the motion. Refuse 5- 0

22.  M. Ann Sandor v. William R. Bjorkman - No. 073153. Defendant William R. Bjorkman appeals the circuit court’s findings of fact and conclusions of law after a bench trial. The court concluded that plaintiff M. Ann Sandor signed a Joint Ownership Sales Agreement under duress and therefore the agreement is voidable, allowing plaintiff to proceed with a partition action. Accept to Motion Docket

23.  In re: The Marriage of Shirley E. Grose v. John H. Grose - No. 073162. John H. Grose appeals the circuit court’s order which affirmed the family court’s order awarding his ex-wife, Shirley E. Grose, a portion of his disability pension and certain attorney’s fees. Accept to Motion Docket

24.  Choice Lands, LLC, a West Virginia limited liability company v. Nondus Tassen, individually and as executrix for the Estate of Billy J. Tassen, and Kenneth Jones and Joyce Jones v. Nondus Tassen, individually and as executrix for the Estate of Billy L. Tassen, third party plaintiff v. Old Colony Company of Huntington and Betty P. Sargent, third party defendant - No. 073003. Plaintiff Choice Lands, LLC appeals the circuit court’s order granting judgment on the pleadings in favor of the defendants Kenneth and Joyce Jones, and the court’s order denying reconsideration of that judgment under Rule 60(b). At issue is whether the Joneses have an easement across a gravel driveway which is on property that Choice Lands has purchased. Accept to Motion Docket

25.  J.H. v. West Virginia Division of Rehabilitation Services - No. 073084. J. H. brought personal injury action against the West Virginia Division of Rehabilitation Services for injuries he sustained by being sexually molested while he resided at the defendant’s Center. The trial court dismissed the action pursuant to Rule 12(b)(6) and found that the defendant was entitled to qualified immunity based upon the "public duty doctrine". The trial court concluded that the plaintiff had not established any "special duty" owed him by the WVDRS. Accept to Motion Docket

26.  State of West Virginia v. Jesse Black - No. 073217. Petitioner, Jesse Black, was convicted by a jury of the crimes of three counts of obtaining money for false pretenses. As a result of the conviction, he was sentenced to three consecutive indefinite terms of not less than one year nor more than ten years. On appeal, Mr. Black seeks a new trial. Refuse 4-1 (Albright)

27.  The Honorable Richard Thompson, speaker of the West Virginia House of Delegates, and the Honorable Earl Ray Tomblin, President of the West Virginia Senate v. The Committee to Reform Hampshire County Government, Michael Hasty, Vera Anderson, Robert Shilling, Frank Whitacre, Kay Davis, Robert Walker, Shirley Carnahan, and Marvin Hott - No. 073224. The petitioners appeal from a final order of the Circuit Court of Kanawha County entered on April 9, 2007, granting a declaratory judgment to the Committee to Reform Hampshire County Government on the interpretation of Article IX, Section 13 of the Constitution of West Virginia. The Committee to Reform Hampshire County Government initially filed a complaint seeking a declaratory judgment ruling that the Legislature must process enabling legislation authorizing an election to reform the County Commission. Grant 4-1 (Starcher)

28.  State of West Virginia v. Jonathan Acosta-Delgado - No. 073225. The petitioner, a diagnosed pedophile, was sentenced to the statutory indeterminate sentence of not less than ten (10) nor more than twenty (20) years in prison for a conviction of one count of Sexual Abuse by a Parent, Guardian or Custodian or Person in the Position of Trust to a Child in a four Count Indictment. Petitioner seeks review of his fifty (50) year period of supervised release, stating constitutional grounds that it is punitive above and beyond a criminal sentence. Refuse 5- 0

29.  Sarah L. Holland and Katherine Holland Barics v. J. Craig Holland and Peter L. Holland - No. 073232. The petitioner, J. Craig Holland, seeks reversal of the Greenbrier County Circuit Court’s decision to order a partition sale of the Holland family property on Kate’s Mountain. On appeal, petitioner asserts that the court’s order does not divide the land in an equitable fashion, and does not provide each party with value consistent with his or her undivided share of the property. Accept to Motion Docket

30.  Sarah L. Holland and Katherine Holland Barics v. J. Craig Holland and Peter L. Holland - No. 073233. The petitioner, Peter Holland, seeks reversal of the Greenbrier County Circuit Court’s decision concerning a partition sale of the Holland family property on Kate’s Mountain. Petitioner requests this Court to reverse the lower court and order a partition sale of the property in question. Accept to Motion Docket

  Home | Opinions | Site Map | Law Library | Rules | Staff  | Search  | Terms of Use