June 22, 2010
1. In Re: Petition of John R. Zsigray for Expungement of Criminal Record - No 100385. Petitioner appeals from the circuit court’s order denying his petition for expungement of criminal charge after a jury found him not guilty of first offense driving under the influence. Petitioner seeks a reversal of the circuit court’s decision and an order from this Court directing the expungement of the criminal charges from his record. Grant 3-2 (Davis, C. J., Ketchum, J.)
2. State of West Virginia ex rel. Donald Hicks, Clerk of the McDowell County Commission v. A. Ray Bailey and the McDowell County Commission - No. 100430. Petitioner appeals from the circuit court’s order directing the McDowell County Commission to pay the attorney’s fees of a candidate who prevailed an election contest that was filed by his election opponent. Petitioner has learned that the attorney’s fees exceed $45,000. Petitioner seeks a reversal of the circuit court’s order on the basis that there is neither statutory nor constitutional authority for requiring a county commission to pay a political candidate’s fees incurred in an election contest. Grant 5- 0
3. State of West Virginia v. Christopher Proctor - No. 100414. Defendant seeks a reversal of the circuit court’s order denying his motion for reconsideration of sentence and a remand for the imposition of an appropriate sentence. Grant 3-2 (Davis, C. J., Workman, J.)
4. MZRP, LLC, a West Virginia Limited Liability Company v. Logan Cannel Coal Company, Jackson Building & Loan Association, Huntington Realty Corporation, and Henry Copley - No. 100513. Defendant appeals from the circuit court’s order awarding judgment in favor of plaintiff in this action seeking to quiet title to a parcel of real estate plaintiff acquired at a delinquent tax sale. Defendant seeks a reversal of the circuit court’s order, a determination that plaintiff did not acquire by tax deed the 100 acre tract described in the 1893 deed, and such other relief as this Court deems appropriate. Accept to Motion Docket
5. Jon A. Braenovic v. Sheila Braenovic - No. 100480. Petitioner husband appeals from the circuit court’s order affirming the order of the special family court judge in this action for divorce as it relates to permanent alimony and the award of attorney’s fees in favor of respondent wife. Petitioner seeks a reversal of the circuit court’s order and, in turn, a reversal of the family court’s final order entered on November 25, 2009. In the alternative, petitioner seeks a remand with instructions. Refuse 5- 0
6. West Virginia Office of Miners’ Health, Safety and Training v. William A. Coulson - No. 100521. Petitioner appeals from the circuit court’s order affirming the final order of the West Virginia Coal Mine Safety Board of Appeals in relation to respondent’s certification as a coal miner. Petitioner contends that the circuit court erred by affirming the Board’s determination that there was no evidence presented to show that respondent demonstrated any characteristic of a person under the influence of intoxicants; by not finding that the Board had misapplied W.Va. Code St. R. §36-22-4.5; and by not determining that the penalty imposed on respondent for Charge 1 was insufficient as a matter of law. Grant 5- 0, Consolidate with 35493
7. Carol A. Villars v. American Electric Power Service Corporation, a foreign corporation, and Lewis Woods, individually - No. 100529. Plaintiff appeals from an adverse jury verdict in this action for sexual discrimination against her employer. Plaintiff raises evidentiary issues at trial, as well as an error in the jury instructions. Plaintiff seeks a reversal of the circuit court’s order denying her motion for a new trial and a remand for a new trial. Refuse 5- 0
8. John D. Blair, Jr. and SSB Equity Fund, LP v. Ralph L. Ballard, III, Asset Holdings, LLC, Asset Leasing, LLC, Asset Management Group, Inc., Brande Resources, LP, and Ballard Investments, Inc. and John D. Blair, Jr., SSB Equity Fund, LP, a Delaware Limited Partnership v. Parkstone Energy, LLC, f/k/a AMG Acquisition, LLC, et al. - No. 100531. Plaintiffs appeal from the circuit court’s order granting summary judgment to all defendants on all counts of the complaint in this action for breach of an agreement whereby plaintiff Blair acquired a 20% ownership in a coal mining enterprise. The circuit court found that plaintiff had failed to prove, as a matter of law, that a formal contract existed between the parties. Plaintiffs seek a reversal of the circuit court’s summary judgment order and a reversal of its order denying plaintiffs’ motion to amend the complaint. Accept to Motion Docket
9. Ernie Dunlap and Corba Dunlap, his wife v. Troy L. McGrew, DDS, MS - No. 100532. Plaintiffs appeal from the circuit court’s order awarding summary judgment in favor of defendant in this medical malpractice case. Plaintiffs challenge the circuit court’s ruling that only an Endodontist, or perhaps a dentist, would be competent to testify concerning deviations in the standard of care and proximate cause. Plaintiffs seek a reversal of the circuit court’s order and a remand for trial. Refuse 5- 0
10. State of West Virginia v. Robert E. Gura - No. 100324. Robert E. Gura appeals his convictions for Attempted Murder; Assault During the Commission of, or Attempt to Commit, a Felony; and Malicious Assault. He argues that the circuit court erred by refusing to give jury instructions on voluntary intoxication and on lesser included offenses, and that the verdict was inconsistent. Refuse 5- 0
11. State of West Virginia v. Chad Parsons - No. 100457. Chad Parsons appeals his conviction of Brandishing, a misdemeanor. He asserts insufficiency of the evidence and that the State failed to provide exculpatory evidence. Refuse 5- 0
12. State of West Virginia v. Ian R. Smith - No. 100533. Ian R. Smith appeals his conviction upon guilty plea and his sentence for Attempted First Degree Robbery and Malicious Wounding. Inter alia, he asserts that he was promised and/or understood that the trial court had agreed to impose a maximum sentence of 20 years in prison. He was sentenced to a total of 42 to 50 years in prison. Defer for response.
13. State of West Virginia v. Farris E. Mallo - No. 100537. Farris E. Mallo appeals his sentences for Sexual Assault in the Third Degree, Sexual Abuse by a Custodian, and Nighttime Burglary. He was sentenced consecutively, for a total of 12 to 40 years in prison. He argues that the circuit court should have specified its reason for imposing consecutive sentences. Refuse 5- 0
14. In re the Marriage of Ralph Burton and Bonnie Sue Burton - No. 100545. Bonnie Sue Burton appeals the circuit court’s order refusing an appeal from family court concerning a final divorce order. Ms. Burton asserts that the family court erred by not granting the divorce on another ground, erred in the amount and type of alimony awarded, and erred by not awarding her one-half of certain stocks. Accept to Motion Docket
15. Teresa Annette Jones, Executrix of the Estate of Elsie Pauline Jones, Deceased, Teresa Annette Jones, Individually, William Wayne Jones, and John Owen Jones v. Linda M. Schroeder- No. 100552. Teresa Annette Jones, individually and as the Executrix of the Estate of Elsie Pauline Jones, William Wayne Jones, and John Owen Jones, appeal the circuit court’s order dismissing their lawsuit on statute of limitations grounds. Refuse 5- 0
16. Carroll Eugene Humphries v. Paul S. Detch - No. 100547. Carroll Eugene Humphries appeals the circuit court’s order dismissing his legal malpractice suit against Paul S. Detch. Grant 5- 0
17. Belinda Adkins v. West Virginia Department of Health and Human Resources, Martha Yeager Walker, Secretary - No. 100548. Belinda Adkins appeals the circuit court’s order denying her petition for writ of certiorari. She asserts that the court and DHHR erred in concluding that an abuse allegation was substantiated, and she asserts that she was denied due process in a DHHR administrative hearing. Refuse 4-1 (Ketchum, J.)
18. Todd Baldau v. Herbert Jonkers, Louis B. Athey, Eugene Capriotti - No. 100557. Defendants in a malicious prosecution case appeal after the circuit court grant of partial summary judgment on liability and the jury awarded damages. They assert that the court erroneously denied them the opportunity to present defenses, erroneously denied leave to amend their answer, erred in granting the partial motion for summary judgment, and that the damages were improper and excessive. Grant 5- 0
19. State of West Virginia v. Denson S. Haney - No. 100564. Denson S. Haney appeals the sentence he received for his conviction upon guilty plea to two counts of Sexual Abuse by a Custodian and two counts of Sexual Assault in the Third Degree. He was sentenced consecutively for a total of 22 to 50 years in prison. Refuse 4-1 (Ketchum, J.)
20. Larry V. Faircloth Realty, Inc. v. Berkeley County Public Service Water District, a public corporation, Berkeley County Public Service Sewer District, a public corporation - No. 100566 and No. 100567. The Berkeley County Public Service Water District and the Berkeley County Public Service Sewer District appeal the circuit court’s order granting declaratory judgment in favor of plaintiff below, Larry V. Faircloth Realty, Inc. Inter alia, the circuit court found that the service districts had no authority to collect, and the W.Va. Public Service Commission had no authority to authorize, capacity improvement fees. Grant 5- 0
21. Amanda R. Shrewsbury and Roger Shrewsbury v. Surinder Mohan, individually and as an employee of SMP Enterprises, LLC d/b/a the Colony Center, and Erie Insurance Property and Casualty Company - No. 100579. SMP Enterprises, LLC seeks relief upon the granting of summary judgment in favor of Erie Insurance relating to coverage under the commercial general liability policy sold to SMP by Erie’s agent. Erie sought a declaration determining its obligation to provide insurance coverage for the defense and indemnification of the tort claims asserted in the underlying civil action. The circuit court found that the Erie policy does not provide such coverage and granted the insurer’s motion for summary judgment. Grant 3-2 (Benjamin, J., Ketchum, J.)
22. Patsy A. Hardy, Secretary of the Department of Health and Human Resources v. Shawn Shumbera - No. 100581. Petitioner Patsy A. Hardy, Secretary of the West Virginia Department of Health and Human Resources appeals from a Final Order of the Kanawha County Circuit Court, denying the DHHR’s Rule 59(e) Motion to Alter or Amend Judgment. On October 30, 2009, the lower court found that Shawn Shumbera was entitled to injunctive relief to enable him to receive MR/DD Waiver services despite the absence of evidence showing he meets the eligibility criteria. Accept to Motion Docket
23. State of West Virginia v. Monique Nicole Weldon - No. 100580. Petitioner Monique Nicole Weldon appeals her February 8, 2008, conviction of second degree murder after a jury trial in Kanawha County. Ms. Weldon was sentenced to forty years of incarceration. Refuse 4-1 (Workman, J.)
24. Tony Franklin Daugherty, Sr. v. Adrian Hoke, Warden, Huttonsville Correctional Center - No. 100582. Petitioner Tony Franklin Daugherty, Sr. appeals from a December 11, 2009, Final Order of the Summers County Circuit Court, which denied his Petition for Writ of Habeas Corpus. The Habeas Court denied the Petition by finding that the issues presented had either been previously and finally adjudicated on direct appeal or waived. Refuse 4-1 (Ketchum, J.)
25. David Keith Adams v. Thomas McBride, Warden, Mount Olive Correctional Complex - No. 100586. Petitioner David Keith Adams appeals from a January 7, 2010, Order of the Wayne County Circuit Court, which summarily dismissed his petition for a writ of habeas corpus, without a hearing. The lower court found that petitioner’s Federal and State Constitutional claims of error had been fully and finally adjudicated and/or waived. Refuse 5- 0
26. State of West Virginia v. Michael Kent Merrifield - No. 091666. Defendant appeals from his convictions on one count of first degree murder, one count of death of a child by guardian or custodian, and one count of sexual abuse by a guardian, custodian or person in a position of trust. Defendant was sentenced to life without the possibility of parole on the first degree murder conviction. The sentences he received on the other two convictions were ordered to run concurrently with the life without mercy sentence. Defendant challenges the sufficiency of the evidence on all charges; raises a venue issue; asserts that he was not present during critical stages of his trial; asserts that he should have been granted either a mistrial or a new trial based on newly discovered evidence; and asserts that W.Va. Code §61-2-2 unconstitutionally shifts the burden of proof to the defendant in order to receive mercy from the jury. Defendant seeks a reversal of the final orders of the circuit court with directions that a judgment of acquittal be entered. In the alternative, defendant seeks a remand for a new trial. Accept to Motion Docket
27. State of West Virginia v. Amos Gabriel Hicks - No. 100544. Amos Gabriel Hicks appeals his conviction for Murder in the First Degree without the possibility of parole, Malicious Assault, and Conspiracy. He asserts multiple instances of 404(b) error and insufficiency of the evidence. Accept to Motion Docket
28. William Abner Lester v. West Virginia Department of Transportation, Division of Motor Vehicles and Joseph Cicchirillo, Commissioner, now Joe E. Miller, Commissioner - No. 100149. The Department of Motor Vehicles appeals from the circuit court’s order reversing an order of revocation. DMV seeks a reversal and vacation of the circuit court’s order; a determination that proper venue was in the Kanawha County Circuit Court, as it is the only court that would have jurisdiction over such case; and a finding that, by statute, nolo contendere pleas to DUI operate as convictions for driver’s license revocation purposes. Grant 5- 0
29. Clinton D. McClung v. West Virginia Department of Transportation, Division of Motor Vehicles and Joseph Cicchirillo, Commissioner - No. 100108. The Department of Motor Vehicles appeals from the circuit court’s order reversing an order of revocation. DMV seeks a reversal and vacation of the circuit court’s order; a determination that proper venue was in the Kanawha County Circuit Court, as it is the only court that would have jurisdiction over such case; and a finding that, by statute, nolo contendere pleas to DUI operate as convictions for driver’s license revocation purposes. Grant 5- 0
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