November 3, 2005

1.  State of West Virginia v. Donald Scott Ennis - No. 051442. Defendant was convicted of wanton endangerment, fleeing from an officer, and reckless driving. Defendant seeks a reversal of his conviction for wanton endangerment only.

Refuse  5- 0

2.  In Re: The Marriage of Bonnie S. Brown v. William Andrew Brown - No. 051453. Petitioner husband appeals from certain rulings in the final divorce decree entered by the Family Court, which were affirmed by the circuit court. 

Refuse 3 - 2
[ Albright, C. J., Starcher, J. ]

3.  Larry Ray Bennett, as Administratrix of the Estate of Barbara Rosalea Bennett, deceased v. The West Virginia Department of Transportation, Division of Highways - No. 051530. Plaintiff appeals from the circuit court’s order awarding summary judgment in favor of defendant.

Refuse  5- 0

4.  Donna M. Richard v. Barry A. Levin, M.D. - No. 051741. Plaintiff appeals from a non-unanimous jury verdict in this action alleging medical malpractice in the treatment of plaintiff’s fractured left arm. 

Grant 4-1
[ Maynard, J. ]

5.  Gene Lee Cline and Karen Cline, husband and wife, William T. Cline and Sandy G. Cline, husband and wife, Mary V. Herring and Brian G. Herring, husband and wife, Eileen L. Ryan and James B. Ryan, husband and wife, and Kathryn F. Caringola and Eugene J. Caringola v. Gary K. Bennett, individually, and in his capacity as administrator of the Estate of Kathryn Lymerick, and Francis Mikles - No. 051555. Plaintiffs appeal from the circuit court’s order granting summary judgment in favor of defendant. Plaintiffs seek a reversal and a remand to the circuit court for further proceedings.

Refuse 4-1
[ Starcher, J. ]

6.  Timothy Butler v. Gilmer County Board of Education - No. 051556. The Board of Education appeals from the circuit court’s order reversing the decision of the West Virginia Education and State Employee’s Grievance Board, which upheld the Board of Education’s transfer of petitioner to a teaching position. The Board of Education seeks a reversal.

Accept To Motion Docket

7.  Sandra Hodges v. The Board of Education of the County of Monroe - No. 051558. Petitioner, a teacher’s aide, appeals from the circuit court’s order affirming the decision of the West Virginia Education and State Employee’s Grievance Board upholding her suspension for one school semester, without pay, for her alleged failure to properly secure a wheelchair on a school bus and her subsequent failure to report an incident that occurred on the school bus as a result of that failure. Petitioner seeks a reversal of all prior decisions, the reimbursement of lost wages, benefits, and regular employment seniority, interest and attorney’s fees and costs.

Refuse  5- 0

8.  Stephen Johnston v. Monroe County Board of Education - No. 051571. Petitioner/grievant appeals from the circuit court’s order upholding the decision of the West Virginia Education and State Employee’s Grievance Board suspending petitioner for 30 days, without pay, for failure to properly secure a wheelchair on a school bus and failure to report an incident that occurred on the school bus.

Refuse  5- 0

9.  Raschella & Sons, Inc., D/B/A Amerispec Home Inspection v. Richard Bagent - No. 051570. Plaintiff appeals from the circuit court’s order awarding plaintiff statutory attorney fees instead of contractual attorney’s fees in this breach of contract action. 

Accept To Motion Docket

10.  Lori L. Moore v. White Insurance Agency, Inc. - No. 051592. The White defendants appeal from the circuit court’s order denying their motion to set aside the default judgment and expand the time frame to answer.

Accept To Motion Docket
[ Starcher, J. Not Participating ]

11.  Clinton P. Holland and Alice A. Holland, his wife v. Tim H. Brown and Mary K. Brown, his wife - No. 051600. Plaintiffs appeal from the circuit court’s opinion order ruling that plaintiffs had failed to meet their burden of proof in this boundary line dispute. 

Refuse  5- 0

12.  Fred VanKirk, Commissioner of the West Virginia Department of Transportation, Division of Highways v. John O’Dell and Clarissa O’Dell - No. 051599. Defendant appeals from the circuit court’s order dismissing her counterclaim in this action brought by the Division of Highways for damages sustained in relation to a public highway. 

Refuse 4-1
[ Albright, C. J. ]

13.  Loretta Wright v. Howard H. Myers, III and Lawrence Hoke - No. 051324. Previously, this Court reversed a dismissal order of the circuit court and remanded the case for further proceedings. On remand, the circuit court again dismissed the plaintiff’s complaint with prejudice, concluding it was untimely filed and filed without a civil case information sheet. This is plaintiff Loretta Wright’s appeal from the second dismissal order.

Refuse  5- 0

14.  Loretta Wright v. Howard H. Myers, III and Lawrence Hoke - No. 051627. In the same case as petition No. 051324, plaintiff’s former attorney Kenneth Chittum appeals the circuit court’s order denying his motion to intervene.

Refuse  5- 0

15.  Kimberly Wills, Administratrix of the Estate of James Henry Simley, Jr. v. Bruce Daniel Evans, Harry E. Strickland, Brenda L. Strickland, Ed Steen, and Allstate Insurance Company - No. 051629. Plaintiff Administratrix appeals the circuit court’s order which granted a motion dismissing Allstate Insurance Company and its employee. The court found that claims under the Unfair Trade Practices Act do not survive the death of the claimant.

Accept To Motion Docket

16.  State of West Virginia v. Ned C. Massey - No. 051631. Ned C. Massey appeals his conviction for first degree / felony murder with a recommendation of mercy.

Refuse 4-1
[ Starcher, J. ]

17.  State of West Virginia v. Jerry K. Walls, II - No. 051633. Petitioner appeals his conviction based upon conditional guilty plea of felony DUI third offense and misdemeanor driving while suspended or revoked for DUI. He reserved the right to appeal the circuit court’s order denying his motion to suppress blood test results.

Refuse 4-1
[ Benjamin, J. ]

18.  State of West Virginia v. David R. Hamilton - No. 051651. David Hamilton appeals his conviction for six counts of sexual assault in the third degree and six counts of sexual abuse by a parent, guardian or custodian.

Refuse  5- 0

19.  Fraternal Order of the Owls Nest 4520 Inc. d/b/a The Hot Spot v. The City of Charleston, West Virginia, a municipal corporation; The Honorable Danny Jones, Individually and as Mayor, City of Charleston; Daniel Vriendt, Individually and as Planning Director, City of Charleston - No. 051566. The Fraternal Order of the Owls Nest 4520 Inc. d/b/a The Hot Spot appeals the circuit court’s order which held that the City of Charleston’s zoning ordinance establishing a 2000 foot separation requirement between gambling establishments does not conflict with and is not preempted by the Limited Video Lottery Act.

Refuse 4-1
[ Albright, C. J. ]

20.  State of West Virginia v. Valerie Whittaker - No. 051664. Valerie Whittaker appeals her conviction for voluntary manslaughter. 

Accept To Motion Docket

21.  State of West Virginia v. Lisa Vance - No. 051669. Lisa Vance appeals her conviction for one count of felony attempted unlawful assault of a police officer and two counts of misdemeanor obstructing a police officer.

Refuse  5- 0

22.  State of West Virginia v. David Leadingham - No. 051670. David Leadingham appeals his conviction for one count of retaliation against a participant in an official proceeding.

Refuse  5- 0

23.  State of West Virginia v. Jeffrey L. Finley - No. 051671. Jeffrey L. Finley appeals his conviction for first degree murder without a recommendation of mercy and two counts of second degree sexual assault.

Accept To Motion Docket

24.  Wayne A. Ellis, II and Crystal Hunt v. Michael Blankenship d/b/a Hanover Wrecker Service and Michael Blankenship d/b/a Mobile Home Transport, West Virginia Department of Transportation Division of Highways, Norfolk Southern Railway Company, John Doe and Richard Roe Company - No. 051673. Plaintiffs appeal the circuit court’s order which dismissed all claims against the WV Division of Highways pursuant to Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.

Refuse  5- 0

25.  State of West Virginia ex rel. Samuel A. Moats v. Thomas McBride, Warden - No. 051675. Samuel Moats appeals the denial of his petition for a writ of habeas corpus. He asserts that his sentence is unconstitutional. 

Refuse  5- 0

26.  John Harvey and Marisa Harvey v. Michael S. Craze, Carey A. Vickers - No. 051684. John and Marisa Harvey appeal from the circuit court’s order granting summary judgment to State Farm in a case where the Harveys sought to stack two underinsured motorist coverages. The circuit court found that State Farm’s anti-stacking provision is not violative of any statute, regulation, or public policy and is valid and enforceable. 

Refuse  5- 0

27.  Geary Securities Company v. McQueen, Harmon & Murphy, L.C. - No. 051688. The plaintiff below filed suit alleging breach of a lease agreement. Plaintiff’s position was that the defendant owned rental monies for the years remaining under an unsigned lease agreement which was for a second term. The defendant gave one month’s notice to quit the premises on November 27, 2002. The lower court ruled that a year to year tenancy was created and that the defendant owed plaintiff for the remainder of the one year of the second term of the unsigned lease agreement. 

Grant 5 - 0 

28.  State of West Virginia v. Gary Drennen - No. 051691. Defendant pleaded guilty to two counts of receiving stolen property and two counts of conversion. He was sentenced to not less than two years nor more than twenty years imprisonment. Petitioner appeals the denial of his Motion for Alternative Sentencing.

Refuse  5- 0

29.  Pamela Blehen, et al. v. West Virginia Department of Revenue/Tax Department, et al. - No. 051705. Petitioners are 29 employees and former employees of the WV State Tax Department . These individuals initially filed two sets of separate grievances that were consolidated in the present grievance at Level IV. After the Level IV hearing, the WV Education and State Employees Grievance Board denied Grievances on procedural issues, standing, timeliness and res judicata. On March 17, 2005, the lower court affirmed, in part, and remanded, in part , the board’s decision. The lower court affirmed the dismissal of some of the grievances at issue based on lack of standing of former State employees to file grievances and the application of res judicata. Petitioners assert that the lower court was erroneous on the standing and res judicata rulings.

Accept To Motion Docket
[ Davis, J. Disqualified ]

30.  Thomas Shaw, II v. Allen C. Ashton - No. 051742. Petitioner appeals from the Circuit Court’s denial of his Motion to Reconsider in response to the Court granting summary judgment in favor of the defendant. 

Refuse  5- 0

31.  Stephen Vance v. Hurricane Chevrolet, Inc. and Cornelius A. Martin - No. 051744. This case is the result of a suit filed alleging that the Respondents fraudulently induced prospective class members to purchase extended service contracts in conjunction with obtaining a special annual percentage rate in financing the purchase of vehicles, and that such service contracts, do not provide benefits represented. Although class status was denied, Stephen Vance proceeded to trial. A jury found in favor of the Respondents. On appeal, Petitioner seeks judgment as a matter of law on the issue of liability for his UDAP and common law fraud claims or, in the alternative, a new trial. 

Refuse 4-1
[ Starcher, J. ]

32.  David Keith Adams v. Thomas McBride, Warden West Virginia State Penitentiary - No. 051743. This petition for appeal arises from the post conviction habeas corpus preceding that was prompted by the petitioner’s conviction for second degree sexual assault and kidnaping. Petitioner filed two petitions for post conviction habeas relief with the second petition being merged by the trial court. The Court denied post conviction habeas relief on December 1, 2004. 

Refuse  5- 0

33.  Russell L. Cummins and Debra Y. Cummins v. Haessly Hardwood Lumber Company - No. 051554. Petitioner appeals from the trial court’s rejection of petitioner’s post-trial Motions following a jury verdict against the petitioner in the amount of $85,491.81 compensatory damages and $75,000 punitive damages. The court upheld the jury verdict and awarded additional attorney fees of $20,000.

Refuse  5- 0