March 9, 2005
1. Dennis L. Holt, et al. v. Princess Beverly Coal Company, No. 042066.
Accept To Motion Docket
2. Dennis L. Holt, et al. v. Princess Beverly Coal Company, No. 042408. Petitioner, Stephanie Timmermeyer, Secretary of the West Virginia Department of Environmental Protection, seeks a reversal of the decisions of both the circuit court and the West Virginia Surface Mine Board reversing two imminent harm cessation orders issued by the WVDEP.
Accept To Motion Docket
3. Posey Dwight Tolliver and Beverly S. Tolliver v. Terry Maxey and Carolyn Maxey, No. 042017. Plaintiffs appeal from the circuit court’s order denying both their motion to reinstate and their motion for relief from final judgment.
Grant 3- 2
[ Davis, J. & Benjamin, J. ]
4. State of West Virginia v. Lucinda Upchurch, No. 042235. Defendant appeals from the denial of her motion for a reduction of her three year sentence.
Refuse 5- 0
5. State of West Virginia v. Jerry Boyd Oldaker, Jr., No. 042238. Defendant appeals from the circuit court’s sentencing order and asserts that his sentence was excessive given the evidence presented and the nature of the incident.
Refuse 5- 0
6. David Lee Hamrick v. Linda Mae Hamrick, No. 042247. Petitioner husband appeals from the circuit court’s order refusing to hear petitioner’s appeal from the family court in this divorce proceeding.
Refuse 5- 0
7. State of West Virginia v. Roger Dale White, Jr., No. 042248. Defendant was convicted of first degree robbery as a principal in the second degree. Defendant appeals his 10-year sentence asserting that it is excessive, disproportionate, and disparate, particularly where the principals in the first degree received substantially shorter sentences.
Refuse 5- 0
8. Aida Meredith v. Monongalia County Board of Education, No. 042255. Petitioner grievant appeals from the circuit court’s order affirming the decision of the Grievance Board which refused to award back pay to petitioner for the summer of 2003.
Refuse 5- 0
9. State of West Virginia v. John Dukich, No. 042249. Petitioner appeals the denial of his petition for reconsideration of sentence. He was previously convicted of obtaining drugs by fraud and was sentenced to one to four years in prison, said sentence to be suspended for three years of probation upon his acceptance into an inpatient drug treatment facility.
Refuse 5- 0
10. Warren Bever v. Nicholas County Board of Education, No. 042256. Petitioner appeals the circuit court’s order affirming the decision of the Education and State Employee’s Grievance Board. The grievance board found that the petitioner, a school bus operator employed by the respondent school board, was not entitled to keep a particular extracurricular bus route assignment.
Refuse 4-1
[ Starcher, J. ]
11. Chris Wilson v. Town of Pratt, Paul Slack and John Doe, No. 042257. Plaintiff appeals the circuit court’s order granting defendants’ motion for summary judgment and imposing Rule 11 sanctions.
Accept To Motion Docket
12. Catherine J. Gallagher v. Toyota Motor Manufacturing, West Virginia, Inc., a corporation, Y Mesne, David Copenhaver, Steve Harper, and Michael J. Lutz, individuals, No. 042270. Plaintiff appeals the circuit court’s order granting defendants’ motion to dismiss this employment discrimination lawsuit.
Accept To Motion Docket
13. State of West Virginia v. Michael Lee Kendall, No. 042274. Petitioner appeals his conviction for burglary and for three counts of brandishing a firearm.
Accept To Motion Docket
14. State of West Virginia v. Scott Marshall, No. 042275. Petitioner appeals his convictions for attempted murder in the first degree, felony malicious assault, and misdemeanor domestic battery.
Refuse 5- 0
15. Glen B. Gainer, III, West Virginia State Auditor v. City of Charleston, a municipal corporation; and Thornton Cooper v. City of Charleston, a municipal corporation, No. 042278. Petitioner Thornton Cooper appeals from the circuit court’s order upholding the Respondent City of Charleston’s "City Service Fee" ordinance.
Accept To Motion Docket
16. Lillian Gibson, Administratrix of the Estate of Angela Dawn Huffman Anderson v. Northfield Insurance Company, Northland Insurance Company, and Jupiter Holdings, Inc., No. 042279. Petitioner appeals the circuit court’s order denying her relief in a declaratory judgment action pertaining to applicable insurance limits in a wrongful death case.
Accept To Motion Docket
[ Davis, J. Not Participating ]
[ Benjamin, J. Not Participating ]
17. A. Garry Davis and Barbara Davis, his wife v. Geupel Construction Company, Inc. and Dick Corporation, No. 042292. Plaintiffs appeal an adverse summary judgment order in their lawsuit which asserts that the defendants’ nearby road construction and blasting work caused damage to plaintiffs’ property. The circuit court found that the plaintiffs filed suit after the statute of limitations had expired.
Refuse 3- 2
[ Albright, C. J., Starcher, J. ]
18. State of West Virginia v. Allen Lee Moore, Sr. , No. 042295. Petitioner appeals his conviction for sexual assault in the second degree and sexual abuse by a parent, guardian or custodian of a child.
Refuse 5- 0
19. Blue Ridge Beverages, Inc., and Ferris Cecchinelli v. West Virginia Workers’ Compensation Commission, No. 042259. Petitioner, the Workers’ Compensation Commission, files a petition from the Circuit Court’s finding that the Commission failed to properly change the Employer’s classification for the period 1986 through 2001.
Refuse 5- 0
20. Donna Anderson v. Fleetwood Retail Corporation of West Virginia and Richard Ledford, No. 042283. Petitioner files an appeal from the circuit court’s order granting summary judgment to the Defendant in her sexual harassment suit. Petitioner sought back pay and either reinstatement or front pay.
Refuse 4- 0
[ Benjamin, J. Disqualified ]
21. Kenneth Wayne Brown v. Thomas McBride, Acting Warden for Mount Olive Correctional Complex, No. 042284. Petitioner seeks a reversal of his criminal conviction and a new trial via a Writ of Habeas Corpus. Petitioner was convicted of one count of First Degree Sexual Assault and one count of Second Degree Sexual Assault.
Accept To Motion Docket
22. West Virginia Department of Transportation, Division of Highways, a West Virginia Corporation and Fred Vankirk, Commissioner v. Dodson Mobile Homes Sales & Service, Inc., No. 042287. The Petitioner prevailed in an inverse condemnation claim and seeks attorney’s fees. The Circuit Court denied the request for fees and failed to allow petitioners to alter or amend the judgment.
Grant 4-1
[ Maynard, J. ]
23. Jefferson Utilities, Inc. v. Jefferson County Board of Zoning Appeals, No. 042282. Jefferson Utilities, Inc. appeals from the circuit court’s order essentially determining that it could not rule on Jefferson Utilities’ petition for a writ of certiorari because a determination of the Zoning Administrator was not an appealable decision. The circuit court found that the Zoning Administrator was a ministerial employee with no discretion or statutory authority to make decisions.
Grant 5- 0
24. Elmer Lee Roderick, et al. v. Jan Carry Kletter, et al. and Jefferson County Zoning Board of Appeals, No. 042317. Buckeye Development, LLC, appeals from the circuit court’s order resolving Rule 60(b) motions following the issuance of this Court’s opinion in Corliss, et al. v. Jefferson County Board of Zoning Appeals, 214 W.Va. 535, 591 S.E.2d 93 (2003).
Grant 5- 0
25. Jan Carry Kletter, et al., v. Jefferson County Zoning Board of Appeals and Elmer Lee Roderick, et al., No. 042318. The Jefferson County Board of Zoning Appeals appeals from the circuit court’s order resolving Rule 60(b) motions following the issuance of this Court’s opinion in Corliss, et al. v. Jefferson County Board of Zoning Appeals, 214 W.Va. 535, 591 S.E.2d 93 (2003).
Grant 5- 0
26. M&G Polymers USA, LLC v. Board of Review, West Virginia Division of Employment Security, Commissioner of the Department of Employment Security, and Polly Henry, No. 042289. Petitioner employer appeals from the circuit court’s order affirming the decision of the Board of Review, which found that respondent employee was not discharged from her employment for gross misconduct making her eligible for unemployment benefits.
Refuse 3- 2
[ Davis, J. & Maynard, J. ]
27. In Re: The Marriage of Martha Carol Staton, Petitioner, and Stephen Edward Staton, Respondent, No. 042296. Petitioner wife appeals from the circuit court’s order reversing the family court’s order awarding petitioner her equitable share of respondent husband’s City of Beckley Police Department Pension.
Grant 5- 0
28. Jo Ann Cave, individually and as Executrix of the Estate of Jacob Lee Cave, deceased v. Exxon Mobil Corporation, et al., No. 042343. Plaintiff appeals from the circuit court’s denial of her motion for a new trial following an adverse jury verdict in this wrongful death action.
Refuse 4-1
[ Starcher, J. ]
29. State of West Virginia v. Duane Riggs Lewis, No. 042352. Petitioner appeals his sentence, and the court’s denial of his motion for reduction of sentence, resulting from his conviction for brandishing and destruction of property. He was sentenced to two consecutive one year terms in jail.
Refuse 5- 0
30. In the Matter of Jonathan G.M., Juvenile, No. 042353. A juvenile petitions for appeal from the court’s order placing him at Chestnut Ridge Hospital. He asserts that leaving him in the home to attend individual and group therapy would be a less restrictive and better alternative.
Refuse 5- 0
31. In re: The Marriage/Child of: Donna S. Sapp v. Joseph S. Sapp, Ray Stanley Sapp, and Ethel Sapp, Intervenors, No. 042354. Intervenors, who are grandparents desiring visitation with their minor grandchild, appeal the circuit court’s "Order Affirming Prior Order and Denying All Visitation" with the child.
Refuse 5- 0
32. In re: The Marriage/Child of: Donna S. Sapp v. Joseph S. Sapp, Ray Stanley Sapp, and Ethel Sapp, Intervenors, No. 042355. Father appeals the circuit court’s "Order Affirming Prior Order and Denying All Visitation" between father and his minor child.
Refuse 5- 0
33. Rita K. Herrod and Jennifer A. Herrod v. First Republic Mortgage Corporation, Inc. d/b/a First Security Mortgage Corp, a corporation, Washtenaw Mortgage Company, a corporation, Federal National Mortgage Association, Chase Manhattan Mortgage Corporation, a corporation, Earl Young, Craddocks Last Stand, Inc., a corporation, Darleen Westfall, West Virginia Real Estate Appraiser Licensing and Certification Board, No. 042266. Plaintiffs appeal a partial summary judgment order in favor of Defendant Washtenaw Mortgage Company. Plaintiffs assert that this defendant engaged in illegal and predatory lending practices.
Accept To Motion Docket
34. State of West Virginia v. Jaquin B., a child under 18 years, and his parent, Jeananne Thorn, No. 042406. The WV Department of Health and Human Resources appeals from the disposition in a juvenile proceeding where the circuit court temporarily placed the juvenile in the custody of the DHHR for placement in a specific out-of-state facility. The DHHR asserts that the court failed to comply with statutes setting forth a mandatory multidisciplinary treatment planning process.
Grant 5- 0
Consolidate With 32052
35. SER Michael Forman v. Timothy Bowen, Administrator, No. 042409. Petitioner files an appeal from the circuit court’s order denying petitioner’s amended petition for Writ of Mandamus & Habeas Corpus relief.
Refuse 5- 0
36. Realco Limited Liability Company, as successor in interest to, Realmark Development, Inc., a West Virginia Corporation v. Apex Restaurants, Inc. and George Steven Shawkey, No. 042410. The following suit stems from an action alleging breach of contract. Petitioner seeks to have the order denying their Motion to Set Aside Judgment reversed and the default judgment entered in favor of the Plaintiff’s vacated.
Grant 5- 0
37. Family Medical Imaging, LLC, Gary L. Poling, D.O., and Scott C. Lostetter, D.O. v. West Virginia Healthcare Authority, No. 042422. This is an appeal from an Order from the Raleigh County Circuit Court upholding the WV Healthcare Authorities decision denying the petitioner’s Certificate of Need for the use of an ultrasound machine. The Court affirmed the HCA’s denial and the petitioners are seeking a reversal and approval for their application.
Grant 3- 2
[ Davis, J. & Benjamin, J. ]
38. Newark Insurance Company v. James P. Brown, et al. v. Elaine Marie Richards, et al. v. James P. Brown, et al. v. Shelby Casualty Insurance Company, No. 042423. Petitioner files a direct appeal from the circuit court’s order granting Summary Judgment to Shelby Insurance and holding that Shelby had no duty to offer petitioner the option to purchase uninsured and underinsured coverage at the time he purchased an umbrella liability policy.
Grant 5- 0
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