2.  Laurie Dee O’Malley v. Paul O’Malley - No. 080638. Petitioner husband appeals from the circuit court’s order affirming the family court’s bifurcated divorce decree that granted the divorce, but failed to decide any other pending issues, such as a parenting plan, child support, spousal support, attorney’s fees, equitable distribution, and a Mayhew issue. Petitioner seeks a reversal of the circuit court’s order and a remand for a prompt decision on all pending issues.- Refuse 3-2 (Starcher, Albright)

3.  In Re the marriage of: Sharron K. Chenault v. Thomas D. Chenault - No. 080641. Petitioner husband appeals from the circuit court’s order affirming the family court’s second amended qualified domestic relations order. Petitioner asserts error and challenges whether a former spouse is entitled to any portion of the ex-spouse’s retirement earned post-separation and whether an ex-husband’s former employer can interpret a Q.D.R.O. and independently determine what monies it will pay to a former spouse even though that interpretation is contrary to law on its face.- Grant 4-1 (Maynard)

4.  State of West Virginia v. Dennis Gale Hubbard - No. 080642. Defendant appeals from his conviction of second degree murder and his sentence of 40 years in the penitentiary. Defendant alleges prosecutorial misconduct, insufficiency of evidence to convict, and the failure of the circuit court to fully instruct the jury on the State’s burden. Defendant seeks either a complete reversal of his conviction or a remand for a new trial. - Accept to Motion Docket

5.  State of West Virginia Ex Rel. Martin McCoy, III v. George Janice, Warden, Stevens Correctional Center - No. 080644. Petitioner appeals from the circuit court’s order denying his pro se petition for a writ of habeas corpus without a hearing. Petitioner asserts that his trial counsel was ineffective due to an undisclosed conflict of interest and that he did not receive an evidentiary hearing on his pro se petition. Petitioner seeks a remand with directions that counsel meet with petitioner and prepare an amended petition. Petitioner further seeks a evidentiary hearing and an opportunity to testify on his own behalf and call witnesses in support of such an amended petition for habeas relief.- Defer

6.  State of West Virginia v. Michael J. Gleason - No. 080645. Defendant appeals from his convictions for abduction with intent to defile, unlawful assault, attempted sexual assault in the second degree, and burglary. Defendant contends that the circuit court erred in denying a judgment of acquittal on the abduction with intent to defile, the unlawful assault, and the attempted sexual assault in the second degree and seeks a reversal. He also seeks a reversal of his burglary conviction and a remand of the case for trial upon that offense alone. Defendant seeks such other relief as this Court deems proper. - Accept to Motion Docket

7.  Pamela Gainer v. Martha Yeager Walker, Secretary, West Virginia Department of Health and Human Resources and the State of West Virginia - No. 080666. DHHR appeals from the circuit court’s order reversing the decision of the West Virginia Education and State Employees Grievance Board upholding DHHR’s 4-day suspension of respondent without pay. - Accept to Motion Docket

8.  State of West Virginia v. Marvin Lee White - No. 080667. Defendant appeals from his convictions on five driving-related offenses. Defendant contends that the circuit court erred in failing to grant his motion for mistrial and his motion for a new trial in relation to the prejudicial testimony elicited by the State from its witness. Defendant also challenges his sentencing. - Refuse 5- 0

9.  Lenora Perrine, Carolyn Holbert, Waunona Messinger Crouser, Rebeccah Morlock, Anthony Beezel, Mary Luzader, Truman R. Desist, Larry Beezel and Joseph Bradshaw, individuals residing in West Virginia, on behalf of themselves and all others similarly situated v. E. I. Du Pont de Nemours & Company, a Delaware corporation doing business in West Virginia, Meadowbrook Corporation, a dissolved West Virginia corporation, Matthiessen & Hegeler Zinc Company, Inc., a dissolved Illinois corporation formerly doing business in West Virginia, and T.L. Diamond & Company, Inc., a New York corporation doing business in West Virginia - No. 080721. Plaintiffs appeal from the circuit court’s order granting in part and denying in part defendant DuPont’s motion for partial summary judgment in this class action seeking medical monitoring, property remediation, and punitive damages. Plaintiffs assert that there were material questions of fact as to whether the contamination and injuries/damages due to the operation of a zinc smelter were contemplated by the original landowners and whether certain releases and easements executed in the 1920's provide immunity for those claims. Plaintiffs seek a reversal of the circuit court’s order granting partial summary judgment in favor of defendants on the Property Class members’ claims and request a remand for reinstatement and adjudication of those claims upon their merits. - Accept to Motion Docket

10.  State of West Virginia v. Robert Prince - No. 080724. Defendant appeals from the circuit court’s order revoking his probation. Defendant raises a due process challenge and a chain of custody issue. Defendant seeks a remand with directions that his probation be reinstated.- Refuse 3-2 (Starcher, Albright)

11.  Carl Wayne Vaughan, individually and as the administrator of the Estate of Randall Wayne Vaughan, and Barbara Vaughan v. Greater Huntington Parks and Recreation District, Ingram Barge Company, and The Ohio River Terminals - No. 080752. The barge line defendants appeal from the circuit court’s order finding that they did not hold out their real or personal property for recreational use and, therefore, West Virginia Code §19-25-2, et seq. (West Virginia Recreational Immunity Statute), does not shield them from liability. The circuit court found that there was no genuine issue as to any material fact on that issue; that the barge line defendants would not be entitled to assert the recreational immunity statute as a defense; and, that a final judgment was entered on that issue pursuant to Rule 54(b) thereby making the ruling a final and appealable order. - Accept to Motion Docket

12.  Jefferson Orchards, Inc. v. Jefferson County Zoning Board of Appeals, A Public Body, Paul Raco, Zoning Administrator, Thomas Trumble, Member, Edwin T. Kelly, II, Member, Tiffany Hine, Chair, Christy Huddle, Member, Frances Morgan, Member - No. 072212. Jefferson Orchards, Inc. appeals the circuit court’s certiorari order regarding a conditional use permit. Although the permit was granted, petitioner objects to certain conditions imposed by the Jefferson County Board of Zoning Appeals and upheld by the court.- Grant 5- 0 & Remand

13.  State of West Virginia v. David Eugene Moore - No. 080726. David Eugene Moore appeals the circuit court’s denial of his Motion for Reduction of Sentence. The court found that petitioner waived the right to move for reconsideration of sentence as part of his plea agreement, and that the motion for reconsideration was filed beyond the 120 day limit of Rule 35. - Accept to Motion Docket

14.  W. David Burnette v. Lee Ann Burnette - No. 080730. W. David Burnette appeals the circuit court’s order which affirmed in part and modified in part the family court’s orders in his divorce case. He raises issues of equitable distribution regarding a retirement account, post-separation earnings of the parties’ accountancy practice, and a lack of set-off for payment of post-separation marital debt.- Refuse 5- 0

15.  Helen Star Tresize, Administratrix of the Estate of Helen C. Proudfoot, and Helen Starr Tresize, individually, Sandra Beth White, Jama Lark Stover, William Dale Proudfoot and Patricia Ann Kelly v. Billie Louise Proudfoot Wolf and Thomas B. Wolf, her husband - No. 080735. Defendants below, Billie Proudfoot Wolf and Thomas Wolf, appeal the circuit court’s adverse orders in an action where the plaintiffs assert that the defendants violated fiduciary duties owed their decedent and the decedent’s trust. - Refuse 4-1 (Benjamin)

16.  SER Lee Edward Jones v. State of West Virginia and John Massey, Warden - No. 080737. Lee Edward Jones appeals the circuit court’s denial of his Supplemental Petition for Habeas Corpus Relief. He asserts that two accusers against him have now recanted their trial testimony and the circuit court erred in denying him habeas corpus relief.- Refuse 5- 0

17.  State of West Virginia v. Jack E. Vance - No. 080749. Jack E. Vance appeals his sentence for conviction upon guilty pleas to 5 counts of Sexual Assault in the Third Degree. He was sentenced consecutively, for a total of 5 to 25 years, to also run consecutive to a related federal sentence, plus $10,000 in fines. He seeks concurrent sentencing and/or an alternative sentence.- Refuse 5- 0

18.  State of West Virginia v. Aaron M. K., a juvenile - No. 080750. Juvenile defendant appeals the circuit court’s order revoking his probation and sending him to the Industrial Home for Youth, and the order denying reconsideration of this disposition. - Accept to Motion Docket

19.  State of West Virginia v. Edward Charles Grimes - No. 080751. Edward Charles Grimes appeals his conviction for second degree murder. He alleges inter alia a Brady violation, misconduct before the grand jury, evidentiary error, insufficient evidence to allow the jury to consider first degree murder, that the court should have granted his dispositive motions, and disproportionate sentence. - Accept to Motion Docket

20.  Sharon G. Noble v. Department of Transportation, Division of Motor Vehicles and Commissioner Joseph Cicchirillo - No. 080754. The DMV appeals the circuit court’s order which reversed the DMV’s final order revoking Sharon G. Noble’s driver’s license for six months for DUI. The DMV argues that the circuit court erred when holding that Ms. Noble had been arrested pursuant to a municipal DUI ordinance and that the DMV had failed to ascertain, or even needed to ascertain, whether the municipal ordinance has the same elements as W.Va. Code § 17C-5-2. - Accept to Motion Docket

21.  State of West Virginia v. Tanya D. Harden - No. 080766. Tanya D. Harden appeals her conviction for First Degree Murder with a recommendation of mercy. She alleges several trial errors including the admission of irrelevant and gruesome photographs, failure to excuse a prospective juror for cause, failure to rebut her self-defense claim, admission of speculative evidence, improper instruction regarding lost or destroyed evidence, and her lawyer was improperly ordered not to object to the State’s closing argument. - Accept to Motion Docket

22.  State of West Virginia v. Michelle Michael - No. 080767. Michelle Michael appeals her conviction for First Degree Murder with a recommendation of mercy and First Degree Arson, and the court’s denial of her various motions. She asserts the court erred in excluding her evidence that the drug which caused the victim’s death could be purchased over the Internet without a prescription; and that the State suppressed material, exculpatory evidence of the identity of the caller who told police to check for the presence of this drug. - Accept to Motion Docket

23.  Chad R. Clower v. West Virginia Department of Motor Vehicles, Joseph Cicchirillo, Commissioner - No. 080780. The DMV appeals the circuit court’s order which reversed the DMV’s final order revoking Chad R. Clower’s driver’s license for six months for DUI. The court found that the arresting trooper lacked the requisite reasonable suspicion to initially stop Mr. Clower’s vehicle, but the DMV argues that the exclusionary rule should not be applied to administrative driver’s license revocation proceedings. - Accept to Motion Docket

24.  State of West Virginia v. Troy D. Jarrell - No. 080782. Troy D. Jarrell appeals the circuit court’s order denying his motion to withdraw his guilty pleas to "Attempting to Disarm a Law Enforcement Officer" and "Fleeing from a Police Officer in a Motor Vehicle." The circuit court denied the motion, finding inter alia that petitioner waived the issues raised herein and petitioner has already been convicted and served his sentence for these crimes.- Refuse 5- 0

25.  State of West Virginia v. Eric Cleveland Murph - No. 080843. Eric Cleveland Murph appeals his conviction for First Degree Robbery. He argues that the circuit court erred by refusing to give a jury instruction on Petit Larceny, a lesser included offense. - Accept to Motion Docket

26.  In re the Marriage of Jean Kennedy (formerly Tupta) and Michael J. Tupta, Jr. - No. 080652. The ex-wife in a divorce case appeals asserting that the family court and circuit court undervalued a marital asset, i.e., a dental practice, and that the courts failed to award her sufficient spousal support. Her ex-husband filed his own appeal, No. 080845. - Accept to Motion Docket

27.  In re the Marriage of Jean Kennedy (formerly Tupta) and Michael J. Tupta, Jr. - No. 080845. The ex-husband in a divorce case appeals asserting that the circuit court erroneously substituted its own judgment for that of the family court on the value of a dental practice, regarding the wife’s health insurance, and when awarding attorney’s fees to the wife, and that the circuit court erred when denying his request for attorney’s fees incurred to defend himself against false accusations. His ex-wife has filed her own appeal, No. 080652. - Accept to Motion Docket

28.  Ann Morgan Zimmerer and Gerald Lee Zimmerer v. Mark E. Romano, Robin J. Romano and West Virginia Department of Highways - No. 080753. Petitioners, Ann Zimmerer and Gerald Lee Zimmerer, appeal from a final order entered by the Circuit Court of Nicholas County awarding summary judgment in favor of the Respondents. Petitioner asserts that the Circuit Court’s order constitutes both an unconstitutional taking of the petitioners’ private property and an unconstitutional deprivation of the petitioners’ property rights without due process of law and just compensation in violation of the state and federal constitutions. - Accept to Motion Docket

29.  State of West Virginia v. Jennifer E. Maher - No. 080847. Petitioner, Jennifer E. Maher, appeals from a Sentencing Order of the Ohio County Circuit Court wherein the Court sentenced her to fifteen (15) years in the West Virginia Penitentiary with five (5) of those years suspended for five (5) years of probation. The sentence was given following the petitioner’s pleas of guilty to three (3) counts of Taking the Identity of Another. On appeal, petitioner seeks a reversal of the sentence and an opportunity for alternative sentencing, or at least a lesser penitentiary sentence.- Refuse 3-2 (Starcher, Albright)

30.  State of West Virginia v. Eric M. Taylor - No. 080849. Petitioner, Eric M. Taylor, appeals his convictions on one count of third offense domestic battery and one count of battery. Petitioner was sentenced to a term of one to five years in the state penitentiary consecutive to a term of twelve months in the Southern Regional Jail. - Accept to Motion Docket

31.  State of West Virginia v. Paul Lamar Cochran - No. 080850. Petitioner, Paul L. Cochran, appeals from a conditional plea of guilty to the charge of incest in violation of West Virginia Code §61-8-12, pursuant to Kennedy v. Frazier. Petitioner argues that a "step" grandfather is not included in the statutory definition of grandfather and does not fall under the purview of the incest statute. - Accept to Motion Docket

32.  State of West Virginia v. Virginia Joann Buckhannon - No. 080860. Petitioner, Virginia Joann Buckhannon, appeals her conviction of driving on a public highway at a time when her privilege to do so has been lawfully revoked under West Virginia Code §17B-4-3b. On appeal, seeks a reversal of the conviction and asserts that the State of West Virginia is obligated to recognize her valid Florida operator’s license.- Refuse 5- 0

33.  Lisa Muckleroy, Truett Harris and Kendall Muckleroy, by and through his next friend, Lisa Muckleroy v. Mountain Lodge Association - No. 080861. Petitioners appeal from a final judgment of the Circuit Court of Pocahontas County entered upon a jury verdict in favor of the Petitioners in the amount of $101,101.35. The Petitioners consider the sum awarded to be inadequate as a result of the trial court’s errors which they allege.- Refuse 5- 0

34.  Brett Ryan v. Lindsay R. Haun and Keith A. Dickerson  - No. 080868. Petitioner, Brett Ryan, appeals the Mercer County Circuit Court’s October 5, 2007, Order denying plaintiff’s Motion for New Trial. Petitioner Ryan moved for a new trial following a trial on claims of negligent operation of a motor vehicle and negligent entrustment. The jury determined that each party was 50% at fault for the accident.- Refuse 3-2 (Starcher, Albright)

35.  The Book Exchange, Inc. v. West Virginia University, through the West Virginia University Board of Governors, Narvel G. Weese, Jr., and Barnes & Noble College Booksellers, Inc., - No. 080869. The Book Exchange, Inc. appeals from the Monongalia County Circuit Court’s Order dismissing the plaintiff’s Complaint per Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. The petitioner’s civil suit alleges tortious interference with business relations, various statutory violations, and civil conspiracy.- Grant 5- 0

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