March 10, 2004 Requests for Oral Presentation and Petitions for Appeal

West Virginia Supreme Court of Appeals

Requests for Oral Presentation
and
Petitions for Appeal

March 10, 2004

1. In Re: The Adoption of William Albert B., Katy Ann B., and Sierra Nicole B., No. 040255. Petitioner father appeals from the circuit court’s order finding that petitioner had abandoned his children, terminating petitioner’s parental rights, and granting the adoption in favor of respondents. Petitioner father seeks a reversal of the adoption and the restoration of his parental rights.
Accept To Motion Docket

2. State of West Virginia v. Andre Demetrius Jones, No. 032520. Defendant appeals from his sentencing following his guilty pleas to destruction of property, kidnapping, as defined under W.Va. Code § 61-2-14a(c), and burglary.

Refuse 4-1
[ Starcher, J. ]

3. Rowe, et al. v. Grapevine Corp., et al., No. 032523. Plaintiffs, temporary foreign agricultural workers, appeal from the circuit court’s order dismissing their claims and granting judgment in favor of defendants in their action seeking to recover a minimum work guarantee required by law and to recover wages assigned in violation of W.Va. Wage Payment and Collection Act.

Accept To Motion Docket

4. Darrell Edward Lockhart v. Cathy Christine Lockhart, No. 032524. Petitioner husband appeals from the circuit court’s order affirming the divorce of the parties, reversing numerous findings of fact and conclusions of law made by the family court and remanding the action to the family court on several issues for further proceedings.

Refuse 5-0

5. State of West Virginia v. Michael Wayne Fiske, No. 03665. Defendant appeals from his convictions for forgery and uttering for which he received 2 to 10 year sentences each, those sentences to run concurrently. He also appeals from his conviction on a recidivist information.

Grant 5-0

6. Arlie Ashby v. City of Fairmont, No. 032666. Petitioner appeals from the circuit court’s order granting respondent City’s motion to dismiss and denying petitioner’s motion for a writ of mandamus. This action rises out of petitioner’s termination from his employment as a police officer with the defendant City.

Grant 3-2
[Maynard, C.J., Davis, J.]

7. Darlene Mechem, personal representative of the Estate of Dwight Mechem, deceased v. James E. Youngblood, Jr., No. 032671. Plaintiff appeals from the circuit court’s order denying plaintiff’s motion for leave to amend pleadings and name additional defendants.

Accept To Motion Docket

8. State of West Virginia v. Denver A. Youngblood, Jr., No. 032672. Defendant seeks a reversal of his convictions on multiple sex crimes, brandishing and wanton endangerment with a firearm. He raises various trial and evidentiary errors.

Accept To Motion Docket

9. Mark Bess, an infant, by and through his next friend and guardian Tammy Bess v. Kanawha County Board of Education, No. 032675. Plaintiff appeals from the circuit court’s award of summary judgment in favor of the defendant board of education in this action for personal injuries.

Refuse 3-2
[McGraw, J., Albright, J.]

10. Ennis C. Payne v. Michael Coleman, Warden, Mt. Olive Correctional Complex, No. 032691. Petitioner appeals from the circuit court’s order denying his petition for a writ of habeas corpus.

Refuse 4-1
[ Starcher, J. ]

11. In Re: Michael Clifford, No. 032406. Petitioners appeal from an order of a three-judge panel which denied a petition to remove the prosecuting attorney of Kanawha County from office.

Refuse 4-1
[ Davis, J. ]

12. CHARLOTTE HINCHMAN, as personal representative of the estate of Paul Z. Hinchman; CHARLOTTE HINCHMAN, individually v. JULIE M. GILLETTE, R.N., C.R.N.A., individually and as the agent, servant and/or employee of Medical Doctor Associates, Inc., and as the agent, servant, and/or employee of Stonewall Jackson Memorial Hospital Company; MEDICAL DOCTOR ASSOCIATES, INC., a foreign corporation doing business within the State of West Virginia; ROGER K. PONS, M.D., individually and as the agent, servant and/or employee of Stonewall Jackson Memorial Hospital; STONEWALL JACKSON MEMORIAL HOSPITAL COMPANY, a West Virginia corporation; JOHN DOE and JANE DOE, No. 032586. Plaintiff appeals from the circuit court’s order dismissing three medical malpractice defendants, which led to the ultimate dismissal of the entire case. The court found that the substance of plaintiff’s pre-suit screening certificate of merit failed to comply with the requirements of the WV Medical Professional Liability Act.

Accept To Motion Docket

13. State of West Virginia v. William E. Swiger, No. 032689. Petitioner appeals his convictions for 32 counts of sexual abuse in the first degree and 32 counts of sexual abuse by a custodian. He asserts multiple trial errors.

Accept To Motion Docket

14. Michael D. Flanagan and Julie Flanagan v. Stephen P. Stalnaker, d/b/a Greenwood Rig Company, No. 032690. Petitioners appeal from the circuit court’s order which denied them injunctive relief and instead granted an injunction in favor of respondent. Petitioners contend that the court erred by finding that they do not have a right to free gas for their home pursuant to a 1990 lease.

Grant 3-2
[Maynard, C.J., Davis, J.]

15. Tanya L. Lacy and Michael Lacy, her husband v. CSX Transportation, Inc., a Virginia Corporation, and Cacoe Sullivan, Individually, and Richard Brooks v. CSX Transportation, Inc. et al., No. 032688. Plaintiffs appeal from the circuit court’s order denying their motion for a new trial following a verdict in favor of the defendant.

Accept To Motion Docket

16. D & L Limousine, Inc. v. Board of Review, West Virginia Bureau of Employment Programs; Robert J. Smith, Commissioner, West Virginia Bureau of Employment Programs; and Dorsey M. Hickman, No. 032706. Company appeals from the circuit court’s order which affirmed the decision of the WV Bureau of Employment Programs Board of Review that claimant was eligible for unemployment compensation benefits as a former employee of the company. Company asserts that claimant was not an employee for unemployment compensation purposes.

Refuse 5-0

17. The Board of Education of the County of Tyler v. Marian White, No. 032707. Petitioner appeals from the circuit court’s order which reversed the decision of the Grievance Board and denied petitioner’s grievance. Petitioner is an executive secretary who asserts that respondent violated the uniformity and favoritism provisions of the Code by employing petitioner with a 240 day contract instead of a 261 day contract.

Grant 3-2
[Maynard, C.J., Davis, J.]

18. Murldene LeMasters v. Board of Education of the County of Tyler, No. 032834. Petitioner appeals from the circuit court’s order which affirmed the decision of the Grievance Board to deny her grievance. She asserts that the respondent violated the uniformity and favoritism provisions of the Code by employing petitioner with a 240 day contract instead of a 261 day contract. The dispute centers upon what classification title petitioner holds.

Refuse 4-1
[ McGraw, J. ]

19. Johnny Spradling v. The Village of Barboursville, W.Va. and Thundering Herd Development, LLC; Mountain View Construction; David Darnold Co.; PDK Construction, Inc.; Tauscher Roof Deck; J. A. Street & Associates; Peerless Block and Brick, Inc.; Absolute Pest Management, Inc.; Kyova Electric; Powell Construction; ENCO Material, Inc.; Jack M. Kite Company, Inc.; Service Contracting of VA., Inc.; Neal & Associates, Inc.; H & T Technical Development; Green Valley Bridge, Inc.; Boggs Roofing, Inc.; Carpet Systems, Inc.; Central Glass Company of Charleston, Inc.; Streater, Inc.; Henard Metals; E. Luke Green Company, Inc.; Novar, Inc.; American Steel & Iron Company, Inc.; Matworks; A. J. Vater & Company, Inc.; NESCO; Overhead Door Company; Eastern Surveying; Tailored Foam Inc.; HASS Concrete; Bizzack, Inc.; and Dirtworks Development, LLC, No. 032728. The petitioners appeal from a circuit court writ of mandamus directing the Village of Barboursville to assess and collect business and occupation taxes from the petitioners for their construction of a shopping center.

Accept To Motion Docket

20. The Board of Education of the County of Putnam v. Bernard Thompson, No. 032735. School Board appeals from the circuit court’s order which affirmed a Grievance Board decision that day-to-day service substitute employees are entitled to continue in assignments following an interruption in their service.

Refuse 5-0

21. Herman Albert Heater v. Elma L. Heater (now Butcher); and West Virginia Department of Health and Human Resources, Bureau for Child Support Enforcement v. Herman Albert Heater , No. 031984. Petitioner appeals the circuit court’s reversal of a family court order and the circuit court’s entry of judgment against petitioner for back child support which accrued during years when petitioner was incarcerated.

Grant 4-1
[ Davis, J. ]

22. In Re: The Marriage/Children of: Sarah Balcourt, No. 032742. Petitioner appeals from an order of the family court which refused to order a child support obligation against a non-custodial parent because he is incarcerated.

Refuse 4-1
[ Davis, J. ]

23. James Clarry v. Peggy Marcum, Ralph Wood and John Wood, No. 032734. Petitioner files an appeal from the circuit court’s ruling for the plaintiff below finding that the roadway passing through the Marcum land was a public road which plaintiff and the general public might use; that a prescriptive easement existed and that plaintiff below by his conduct had established a prescriptive easement to use such roadway for ingress and egress to his adjoining realty.

Refuse 5-0

24. State of West Virginia v. Clifford Merritt, No. 032736. Petitioner files an appeal from the circuit court’s order denying his motion for Post-Verdict Judgment of Acquittal. Petitioner had been convicted of robbery in the second degree.

Refuse 5-0

25. State of West Virginia v. Lonnie Stone, No. 032746. The Court denied a Motion to withdraw a plea of guilt in this sexual assault case. Petitioner desires to withdraw a Kennedy plea of guilty because he was not advised that under 62-12-2(e) of the code that he was ineligible for probation. It is alleged that the Court abused its discretion and that this case should be remanded for further consideration.

Refuse 5-0

26. George E. Carr, Sr. v. Dottie Hancock, No. 032762. This is an action to reverse and remand the decision of the Circuit Court in a divorce case in which the Court allegedly upheld the decision of the Kanawha County Family Court upon an incomplete record and without making findings of fact and conclusions of law on matters concerning a prenuptial agreement, an inequitable division of marital assets and an award of alimony and attorney fees.

Accept To Motion Docket

27. Ryan Pierce v. The Hertz Corp. & Karen Cadori v. Hertz Corp., No. 032764. The conflict in this case stems from a triple- fatality car accident where Catherine and Eugene Pierce were killed while riding in a Hertz rental car driven by Bernard Pierce. Robert Cadori, another driver, was also killed. The Circuit Court granted summary judgment to Hertz on the UTPA claims and found that Hertz is not subject to the UTPA because it self-insures its rental cars and does not issue insurance contracts.

Accept To Motion Docket