Converted WP file May6m

Supreme Court of Appeals of West Virginia
Miscellaneous Motions Conference

Thursday, May 6, 1999

1.	John M. Hedges No. 25890 Refuse 5-0	Motion to Dismiss SER Canterbury v. Honorable Carl "Worthy" Paul, No. 25890, scheduled for submission June 1, 1999. Magistrate Paul seeks dismissal on the basis that recent passage of an amendment to West Virginia Code § 50-3-2 has rendered the issue moot. Alternatively, it is argued that the Magistrate did not exceed his judicial authority, and committed no clear and substantial legal error warranting extraordinary prohibition relief.
2.	Gregory L. Ayers No. 25813 Grant 5-0	Motion for Leave to File Appellant's Amended Brief in State v. King, No. 25813, scheduled for submission May 11, 1999. Appellant King seeks to amend brief by the addition of an assignment of error and argument based upon a March 30, 1999 opinion of the United States Supreme Court. The State responds that the recent decision is not relevant and would not assist in the resolution of the case.
3.	William M. Lester No. 990991 Refuse 4-1 [Starcher, C.J.]	Summary Petition for Appeal and for Admission to Bail in State v. Bias, No. 990991. Bias was arrested on February 5, 1999 and is in custody at South Western Regional Jail. He is charged with murder. The Magistrate found probable cause on February 17, 1999. A hearing on the Motion to Set Bail was held on March 26, 1999. Bias' family has the money for a $50,000.00 cash bond and an additional $50,000.00 full surety bond. Bias had never been charged with a crime prior to this incident. His family lives in Boone County and he would live with his parents if admitted to bail. Bias asserts that there was no evidence that he has a propensity for violence. It is argued that the lower court abused its discretion in denying bail. The State responded that at the bond hearing it advised the court that Bias had confessed to the robbery/murder of the victim. The court accepted the State's proffer. The victim was a 73 year old woman. The State contends that Bias stole her purse on two prior occasions. She attempted to pursue Bias and his co- defendant. She was shot in the head at close range execution style with a 9 mm.
4.	Kevin C. Duffy No. 991087 Grant 5-0 [For Treatment Only -- not Release, Unless Sooner Mooted]	Petition for Writ of Mandamus or, in the Alternative, Petition for Writ of Habeas Corpus in SER Hosey v. Shannon Markle, Administrator, No. 991087. Petitioner seeks order directing his release from the Central Regional Jail for medical treatment for exposure to toxic chemicals or, in the alternative, to immediately provide adequate medical treatment for symptoms associated with exposure. Petitioner was directly exposed to Liceall Aerosol Lice Killer, a delousing agent for personal articles and other inanimate surfaces, but not for human use. He has suffered nausea, loss of appetite, weight loss, nervousness, and itching, bleeding lesions. Photos of the petitioner showing the lesions and sores are included. Ointment provided by medical personnel has failed to provide any relief.
5.	D. Scott Tyree No. 991086 Refuse 5-0	Petition for Writ of Prohibition in SER Vanmeter v. The Honorable Clarence Watt, No. 991086. Petitioner seeks writ of prohibition prohibiting Judge Watt from entering a sentencing order directing that Petitioner be incarcerated in the penitentiary for one to three years. Petitioner pled guilty to the felony of DUI, 3rd offense. Petitioner requested home confinement. Judge Watt refused. It is asserted that the lower court disregarded, or failed to consider, the statutory language of W.Va. Code § 17C-5-2(p) allowing home confinement for felony DUI convictions. Petitioner states that the lower court did not even allude to his request for home confinement and instead invited him to "go up on a Writ." Petitioner states that either the sentencing court does not believe home confinement is available or did not exercise discretion. Seeks remand with directive as to sentencing options.
6.	James W. Turner No. 25816 Refuse 5-0	Norfolk & Western Railway Company's Motion for Leave to File Surreply Brief in Lester Kent Finley v. Norfolk & Western Railway Co., No. 25816, scheduled for submission on May 5, 1999. Norfolk & Western seek to file a surreply brief in order to address a factual matter that it contends was misrepresented in Finley's reply brief.
7.	Thomas S. Sweeney No. 25836 Grant 4-1 [Starcher, C.J.]	Motion of Appellee, P.C. Emmons, to supplement Record in P. David Boyer v. Thomas R. Fitzgerald, No. 25836 scheduled for submission on September 1, 1999 Appellee seeks to supplement the record with various discovery materials.
8.	Johnnie E. Brown No. 991218 Refuse 4-1 [Maynard, J.]	Petition for Writ of Prohibition in SER White Chrysler Plymouth Dodge of Ripley, Inc. v. The Honorable Tod A. Kaufman, No. 991218. White Chrysler argues that the lower court incorrectly ordered that a class action be certified. The underlying action is a tort action for damages sustained in the purchase of vehicles which were financed with an agreement containing a balloon payment. The plaintiffs alleged common law fraud, unconscionable contracts and unfair and deceptive acts and practices under the Consumer Credit and Protection Act. It is asserted that discovery has revealed 35 transactions with a balloon payment. Of these 35, 15 individuals making up 11 transactions have filed separate civil actions. It is argued that the trial court failed to consider the individual questions of fact and the unfairness and inefficiency which a class action will have on the parties and the court system.
9.	Mary M. Downey No. 991228 Grant Returnable Below for Rehearing 5-0 [Starcher, C.J., Davis, J., Maynard, J., McGraw, J. - Grant 60 Days ] [Workman, J.- Grant 10 Days ]	Second Petition for Writ of Prohibition in Karen Whiteside v. Family Law Master Kelly Crites Wingard, No. 991228. This is the second petition regarding a change of custody matter.