May 24, 2006 Requests for Oral Presentation and Petitions for Appeal

West Virginia Supreme Court of Appeals

Requests for Oral Presentation
and

Petitions for Appeal

May 24, 2006

1. Thomas D. Felton v. West Virginia Department of Health and Human Sources/Bureau of Public Health and Division of Personnel - No. 060748. Petitioners appeal from the circuit court’s order reversing the decision of the West Virginia State Education and Employees’ Grievance Board, which found that respondent’s grievance was untimely. The circuit court ruled that the grievance was timely filed.

Refuse 5 - 0

2. James W. Kessel, M.D., Richard M. Vaglienti, M.D., and Stanford J. Huber, M.D. v. Monongalia County General Hospital Company, d/b/a Monongalia General Hospital, a West Virginia non-profit corporation; Mark Bennett, M.D., individually; Bennett Anesthesia Consultants, P.L.L.C.; and Professional Anesthesia Services, Inc. - No. 061180 . Plaintiffs appeal from the circuit court’s order granting partial summary judgment in favor of defendants as to all State antitrust claims. The circuit court’s order reflects that it was a final and appealable judgment and that there was no just reason for delay, but it refused to grant a stay.

Grant 5 - 0

3. State of West Virginia v. Gerald Thompson, Jr. - No. 060760. Defendant appeals from his conviction on "attempting to operate or operating a clandestine drug lab."

Grant 5 - 0

4. State of West Virginia ex rel. Zelda Trembly Eagle v. Orville Trembly and The Honorable David Nibert, Judge of the Fifth Judicial Circuit - No. 060766. Petitioner files this petition for appeal and for a writ of prohibition challenging the circuit court’s ruling dismissing two 1-count indictments for rape under the provisions of the relevant statutes as they existed in 1923 and 1976.

Withdrawn

5. State of West Virginia v. Keith William Lowe - No. 060798. Defendant appeals from his conviction on first degree murder without mercy.

Accept To Motion Docket

6. Stephanie R. Timmermeyer, Secretary, West Virginia Department of Environmental Protection v. Thomas R. Michael, Chairman of the West Virginia Surface Mine Board, and Goals Coal Company, and Coal River Mountain Watch, and Honorable Joe Manchin, III, Governor of the State of West Virginia - No. 060800. Petitioners appeal from the circuit court’s order denying their request for a writ of prohibition and injunctive relief. Petitioners seek a reversal of the circuit court’s ruling that the "executive deliberate privilege" does not exist in West Virginia. Petitioners also seek an immediate order prohibiting the disclosure of internal deliberations and communications between the Department of Environmental Protection and the Office of the Governor.

Refuse as Moot

7. State of West Virginia v. Jesse James Wiley - No. 060826. Defendant appeals from his convictions on first degree sexual assault, sexual abuse by a custodian, and incest. Defendant states that he seeks either a reversal of his convictions or a new trial.

Refuse 5 - 0

8. SER TATRA RESTAURANT, INC. a West Virginia corporation v. HONORABLE STEPHEN R. KERSHNER, Judge of the City of Martinsburg Municipal Court; MICHAEL COVELL, Martinsburg City Engineer/Planning Director; JOHN WHITACRE, City of Martinsburg Code Enforcement Official, and MARTINSBURG BOARD OF ZONING APPEALS, No. 060434. Tatra Restaurant, Inc. appeals the circuit court’s order denying its petition for a writ of prohibition seeking to stop the respondent Martinsburg officials from prosecuting alleged zoning violations.

Refuse 5 - 0

9. State of West Virginia v. David Nelson - No. 060836. David Nelson appeals his conviction for first degree murder, kidnapping, first degree sexual assault, conspiracy to commit murder, conspiracy to commit kidnapping, and conspiracy to commit first degree sexual assault. He was sentenced to two consecutive terms of life without mercy, plus 18 to 50 years.

Accept To Motion Docket

10. Martha Alexander v. The Board of Education of the County of Putnam - No. 060837. County school board employee appeals the circuit court’s order which affirmed the grievance board. The grievance board upheld the school board’s decision that when petitioner ultimately leaves her employment, she must reimburse the school board for 1 day of paid leave which petitioner took but which she had not accrued.

Refuse 5 - 0

11. In re: The Marriage of John Austin Elmore v. Pamela Davis Elmore - No. 060907. John A. Elmore asserts 31 assignments of error in a divorce case.

Refuse 5 - 0

12. WesBanco Trust and Investment Services, a division of WesBanco Bank, Inc., a West Virginia Corporation v. Brian McKinley, Camden McKinley, Randall McKinley, and David McKinley, No. 060906. Three brothers appeal the circuit court’s declaratory judgment order in a dispute concerning the sale of their mother’s home to a fourth brother on terms they consider inadequate.

Accept To Motion Docket

13. State of West Virginia v. Larry T. Sawyer, No. 060909. Larry T. Sawyer appeals his convictions of burglary and petit larceny.

Refuse 5 - 0

14. SER Abner D. Allen v. Thomas McBride, Warden - No. 060749. Petitioner appeals the denial of his second petition for habeas corpus. He asserts ineffective assistance of prior habeas counsel.

Refuse 4 - 1
( Starcher, J.)

15. West Virginia Division of Natural Resources v. Rocky A. Tingler - No. 060860. Petitioner appeals the lower court’s granting of a Injunction to the DNR prohibiting the petitioner from engaging in any activity that affected the quality or quantity of the water to the Bowden Fish Hatchery. Specifically, the court prohibited petitioner from removing water from trenches that were created.

Refuse 5 - 0

16. Rebecca Vilga v. Weirton Medical Center and Lawrence E. Callahan, M.D. - No. 060945. A jury rendered a verdict in favor of Respondents in this claim for medical malpractice. Petitioner appeals the lower court’s denial of her Motion for a New Trial.

Accept To Motion Docket

17. State of West Virginia v. Terry Lynn McCoy - No. 060946. Petitioner appeals from the lower court’s ruling with respect to the admission of certain evidence and the defendant’s criminal trial for the felony offenses of Sexual Assault in the First Degree and Sexual Abuse by a Parent, Guardian or Custodian and the sentence imposed by the circuit court. Petitioner seeks a remand for re-sentencing.

Refuse 5 - 0

18. Elena Ermaloeva v. Shephard University - No. 060950. This is an appeal from a dismissal by the circuit court from an administrative decision and affirmation of the decision. Petitioner seeks to reverse the findings of the court and grant the petitioner tenure at Shepherd University.

Refuse 5 - 0