March 13, 2008 Requests for Oral Presentation and Petitions for Appeal

West Virginia Supreme Court of Appeals

Requests for Oral Presentation
and

Petitions for Appeal

March 13, 2008

1. West Virginia Department of Transportation, Division of Highways, et al. v. Parkersburg Inn, Inc., a West Virginia corporation, Wesbanco Bank, Inc., a West Virginia banking corporation, Joe D. Campbell and W. James Reed, trustees, Monongahela Power Company, a West Virginia corporation, Hope Gas, Inc., a West Virginia corporation formerly known as Consolidated Gas Supply Corporation, and S.F. Greiner, Sheriff of Wood County, West Virginia - No. 073697. Defendant, Parkersburg Inn, Inc., appeals from the circuit court’s orders denying its motion to set aside the verdict and award a new trial in this action brought by the Division of Highways ("DOH") to determine whether defendant was entitled to compensation for damages caused by the construction of an Appalachian Corridor Project. Following a trial, the jury had returned a verdict in favor of the DOH and against defendant.- Grant 5- 0

2. Bruce A. Davidson v. Teresa Waid, Warden, Huttonsville Correctional Center - No. 073698. Petitioner appeals from the circuit court’s order denying his petition for a writ of habeas corpus. Petitioner raises Losh v. McKenzie issues. -Refuse 4-1 (Albright)

3. State of West Virginia v. Brandon Lee Roto - No. 073701. Defendant appeals from the circuit court’s order reinstating his 1 to 10 year sentence for his entering without breaking in the daytime conviction. Defendant was returned from the Anthony Correctional Center having been declared unfit to remain there. - Refuse 3-2 (Starcher, Albright)

4. Apollo Civic Theater, Inc. v. Helton, Virgil T., as acting State Tax Commissioner of West Virginia - No. 073744. Petitioner appeals from the circuit court’s order denying its petition for appeal from the adverse decision issued by the Office of Tax Appeals. The circuit court affirmed the Tax Commissioner’s assessment against petitioner for use tax and for consumers’ sales and service tax, together with statutory interest on both assessments. - Grant 5- 0

5. State of West Virginia v. Jonathan J. Lind - No. 073747. Defendant appeals from his convictions for second degree murder, robbery, and three forgeries. Defendant received consecutive sentences of 40 years for the second degree murder, 80 years for the robbery, and three 1 to 10 years for the forgeries. Defendant raises instructional and evidentiary error below. -Refuse 4-1 (Starcher)

6. State of West Virginia v. Floyd A. Nelson, Jr. - No. 073748. Defendant appeals following his convictions on two counts of forgery and six counts of uttering. Defendant challenges his eight consecutive sentences of 1 to 10 years in the penitentiary arguing that they are constitutionally disproportionate, that they were imposed in violation of his constitutional rights to equal protection of the law, and that they were the result of ineffective assistance of counsel below. - Accept to Motion Docket

7. State of West Virginia v. Ronald Reed, Sr. - No. 073503. Ronald Reed, Sr. appeals his convictions for 2 counts of Incest, 2 counts of Sexual Abuse by a Parent, 1 count of Sexual Assault in the First Degree, 31 counts of Sexual Abuse by a Custodian, and 30 counts of Sexual Assault in the Third Degree. He raises 26 assignments of error. - Accept to Motion Docket

8. Kevin France, individually, Sue France, individually, and as parents and next friends of Patrick Ryan France, an infant, and Patrick Ryan France, an infant, Plaintiffs v. Cheri Heflin, Defendant/Third Party Plaintiff v. Charles H. Haden, III, Third-Party Defendant - No. 073512. Defendant below, Cheri Heflin, appeals the circuit court’s order denying her Motion for Relief from a July 13, 2007 Order. In that July 2007 Order, as a discovery sanction, the court granted plaintiffs a judgment of default on the issue of liability. - Accept to Motion Docket

9. Matthew Hugh Conlon, III v. West Virginia Board of Law Examiners - No. 073725. Matthew Hugh Conlon, III files exceptions to the Board of Law Examiner’s denial of his application for admission to the WV Bar. The Board found that petitioner has not demonstrated the requisite character and fitness for admission to the practice of law. - Refuse 5- 0

10. Joni L. Hartley v. CSX Transportation, Inc. - No. 073745. Plaintiff below, Joni L. Hartley, appeals the circuit court’s order denying her motion for a new trial on the issue of damages only. She argues that the amount of the verdict was manifestly inadequate and not supported by the evidence. - Accept to Motion Docket

11. State of West Virginia ex rel. Darrell V. McGraw, Jr., Attorney General v. Capital One Bank and Capital One Services, Inc. - No. 073511. Capital One Bank and Capital One Services, Inc. appeal the Circuit Court of Lincoln County’s order which, inter alia, granted the West Virginia Attorney General’s "Petition to Enforce Investigatory Subpoenas." - Grant 3-2 (Starcher, Albright)

12. State of West Virginia v. Steven Ray Fisher - No. 073751. Steven Ray Fisher appeals the order transferring him to the court’s adult criminal jurisdiction. He asserts that the alleged crime did not constitute kidnaping, for which he is charged. - Accept to Motion Docket

13. Russell Stuyvesant, Administrator of the Estate of Timothy Daft v. The Preston County Commission - No. 073790. Russell Stuyvesant, as Administrator of the Estate of Timothy Daft, appeals the circuit court’s order dismissing his wrongful death and negligence action based upon the statute of limitations. He asserts application of the discovery rule. - Accept to Motion Docket

14. SER Harry Edward Reynolds v. The Honorable Judge John A. Hutchinson, Judge of the Tenth Judicial Circuit Court of West Virginia, and Thomas McBride, Warden of the West Virginia State Penitentiary - No. 073801. Harry Edward Reynolds appeals the circuit court’s order dismissing his second petition for post-conviction habeas corpus. -Refuse 4-1 (Starcher)

15. Arden E. Fredeking v. Marlise Tyler and Bradford Tyler as parents and next friends of Arianna Tyler, an infant under the age of eighteen (18), and Marlise Tyler and Bradford Tyler, individually, and GEICO Indemnity Company No. 073805. Defendants appeal the circuit court’s order granting judgment as a matter of law on the issue of ownership of a vehicle involved in an accident, and granting a new trial on the issue of damages to this vehicle. Defendants argue inter alia that the jury’s verdict was supported by the evidence, the court applied the wrong state’s law, and plaintiff’s expert’s opinion should have been excluded. - Accept to Motion Docket

16. Cynthia L. Archer v. PPG Industries, Inc. and Joe Polus - No. 073806. Joe Polus and PPG Industries, Inc. were found by a jury to be liable for violation of the Human Rights Act, sexual abuse, assault and/or battery and the intentional infliction of emotional distress. Petitioner Polus, seeks a reversal of the Circuit Court’s post-trial rulings and an order vacating the judgment Order which quashed PPG’s subpoena seeking plaintiff’s billing records and granting attorneys fee’s and costs. Mr. Polus also requests a remand to the Circuit Court for a new trial. - Accept to Motion Docket

17. Cynthia L. Archer v. PPG Industries, Inc. and Joe Polus - No. 073807. Joe Polus and PPG Industries, Inc. were found by a jury to be liable for violation of the Human Rights Act, sexual abuse, assault and/or battery and the intentional infliction of emotional distress. Petitioner PPG Industries, Inc., seeks a reversal of all the Circuit Court’s post-trial rulings and an order vacating the judgment Order. Petitioner PPG Industries, Inc. also requests a remand to the Circuit Court for a new trial. - Accept to Motion Docket

18. Ryan Strick v. The State of West Virginia and Joseph Cicchirillo - No. 073811. The petitioner, Ryan Strick, appeals from a Kanawha County Circuit Court Order upholding the administrative order by the Division of Motor Vehicles suspending Petitioner’s privileges to operate a motor vehicle in this state for one year for first offense Driving Under the Influence. On appeal, the petitioner requests that he be issued a full and valid license and that the Order of Revocation be reversed. - Accept to Motion Docket

19. David W. Crites v. Pilgrim’s Pride Corporation, K and B Transportation, Inc. and Jeffrey Dearing - No. 073921. Petitioner, David Crites, seeks review of a August 13, 2007, Order from the Hardy County Circuit Court which denied the plaintiff’s Motion for Relief from Summary Judgment. The Circuit Court found that the petitioner did not carry his burden to demonstrate entitlement to relief from the Order granting Summary Judgment, pursuant to Rule 60(b)(2) or (3). Petitioner asserts that the lower court used the wrong standard of law. - Accept to Motion Docket

20. State of West Virginia v. Karen M. Crisco - No. 073922. The Petitioner, Karen M. Crisco, appeals from an Order of the Fayette County Circuit Court denying her Motion to Quash the Felony Counts of her Indictment. Ms. Crisco was charged with one count of "Child Neglect Creating Risk of Injury" in violation of West Virginia Code §61-8D-4(e); "Driving Under the Influence of a Controlled Substance" in violation of West Virginia Code §17C-5-2; "Operating a Motor Vehicle without Children in a Safety Restraint Device" in violation of West Virginia Code §17C-15-46, and "Possession of Marijuana" in violation of West Virginia Code §60A-4-401c. -Refuse 4-1 (Starcher)