1. Richard Thomas Ramey v. Barbara Ann (Setliff) Ramey, No. 011664. Petitioner wife appeals from the circuit court’s order adopting the recommended order of the family law master, which found that petitioner had fraudulently induced respondent to marry her and awarded the majority of the parties’ assets to respondent.

Refuse 5-0

2. Ramma L. DeHart, Administratrix v. Paul W. Burke, M.D., No. 011665. Plaintiff appeals from the circuit court’s order setting aside a prior settle agreement as it related to those sums to be paid to the infant respondents.

Withdrawn

3. Sanford Patrick and Cynthia Patrick v. Tony M. Butts and Robin E. Butts, No. 011684. Plaintiffs appeal from the circuit court’s order (1) denying their request for a second mediation and (2) appointing a commissioner for the purpose of executing a quit claim deed and a release of defendants in this action involving a boundary line dispute.

Refuse 5-0

4. Board of Trustees of the Police Officers Pension and Relief Fund v. James Carenbauer, No. 011685. Defendant appeals from the circuit court’s order in this declaratory judgment action finding that the Pension Fund is entitled to seek reimbursement and offset plaintiff’s disability payments for income earned over $7500.

Grant 5-0

5. State of West Virginia v. Willie Bernard McGee, Jr., No. 011688. Defendant appeals from his conviction for first degree murder and asserts evidentiary and instructional error. He was sentenced to life in prison with a recommendation of mercy.

 

Accept To Motion Docket

6. Nicholas D. Harris v. S. Rene Pritt Henrich, No. 011689. Defendant appeals from the circuit court’s award of summary judgment in favor of plaintiff voiding, ab initio, an oral partnership agreement made between the parties when plaintiff was a minor and restoring plaintiff to the position that he was in before entering into the agreement.

 

Refuse 4-1

[ Starcher, J. ]

 

7. Donald Elder and Patricia Elder v. Ervin L. Conrad, No. 011742. Plaintiffs appeal from the circuit court’s dismissal of their action for legal malpractice.

Refuse 4-1

[ Albright, J. ]

8. Wood County Board of Education v. William Airhart, et al., No. 011802. Grievant appeal from the circuit court’s order reversing the decision of the W.Va. Education and State Employees Grievance Board. They seek a reinstatement of the Board’s decision.

 

Grant 5-0

9. In Re: The Marriage of: Karen S. Chewning and Timothy D. Chewing, No. 011817. Petitioner appeals from the circuit court’s order denying her Rule 60(b) motion for relief from the circuit court’s earlier order finding that her petition for review was untimely.

 

Refuse 4-1

[ Albright, J. ]

 

10. State of West Virginia ex rel. West Virginia Department of Health and Human Resources, Child Advocate Office, and Valerie McGill v. Harry Lambert, No. 011830. Defendant appeals from the circuit court’s order summarily denying his petition for review of the recommended decision of the family law master in this action involving the calculation of child support arrearage.

 

Grant 5-0

11. West Virginia Bureau of Employment Programs v. Timothy M. Barber, No. 011833. Plaintiff appeals from the circuit court’s order finding that the parties’ "Memorandum of Understanding" did not obligate defendant to pay interest or penalties on recalculated tax contributions and workers’ compensation premiums.

 

Refuse 5-0

12. Monongahela Power Company v. West Virginia Division of Environmental Protection, No. 011838. Department of Environmental Protection appeals from the circuit court’s order directing DEP to revise the Total Maximum Daily Loads for the Upper Blackwater River; to refrain from listing the Upper Blackwater River on future lists of impaired streams; to eliminate the category for water bodies with biological impairment; and, to extend the appeal period for challenges to State actions regarding these matters.

Grant 4-1

[ Maynard, J. ]

 

13. Deborah K. Falls, Administratrix of the Estate of Cledith Lee Falls, Jr., deceased v. April D. Knight, Anthony O’Brien, Marvin H. Young, , John Doe, I, John Doe, II, and John Doe, III, an uninsured motorist, Progressive Casualty Insurance Company and Progressive Paloverde Insurance Company v. Robert Spencer, The Estate of Cledith Lee Falls, Jr., Misty Seabolt, Christy Young an Joann Young, individually and as mother of Christy Young and Lucy Spencer, natural mother and as next friend and legal guardian of Robert Spencer, a child under the age of 18 years v. Richard and Debbie Keffer, his wife, and Marvin Young, No. 011839. Third-party plaintiff Robert Spencer appeals from the circuit court’s award of summary judgment in favor of third-party defendant Marvin Young in this action arising out of a motor vehicle accident.

 

Refuse 4-1

[ McGraw, C.J. ]

14. Deborah K. Falls, Administratrix of the Estate of Cledith Lee Falls, Jr., deceased v. April D. Knight, Anthony O’Brien, Marvin H. Young, , John Doe, I, John Doe, II, and John Doe, III, an uninsured motorist, Progressive Casualty Insurance Company and Progressive Paloverde Insurance Company v. Robert Spencer, The Estate of Cledith Lee Falls, Jr., Misty Seabolt, Christy Young an Joann Young, individually and as mother of Christy Young and Lucy Spencer, natural mother and as next friend and legal guardian of Robert Spencer, a child under the age of 18 years v. Richard and Debbie Keffer, his wife, and Marvin Young, No. 011840. Plaintiff appeals from the circuit court’s award of summary judgment in favor of defendant Marvin Young in this wrongful death action arising out of an automobile accident.

 

Refuse 4-1

[ McGraw, C.J.]

15. Gary Lambert v. Hercil Gartin, No. 011848. Plaintiff appeals from the circuit court dismissal of his action for unpaid salary and wages for failure to state a claim upon which relief can be granted.

 

Grant 5-0

16. State of West Virginia v. Cornelle Daye, No. 011849. The petitioner, Cornell Daye, appeals from an order entered in the Circuit Court of Raleigh County revoking his probation and reinstating his underlying sentence of 1 to 15 years in the penitentiary. The petitioner contends that the Circuit Court committed error in revoking his probation, in view of the delay between the time he was returned to Raleigh County from the State of Florida (where he was convicted of a drug-related offense) and the time probation revocation proceedings were instituted against him by the State of West Virginia.

Refuse 4-1

[ Albright, J. ]

17. Fellowship Baptist Church v. Barden & Robeson Corp., No. 011853. The petitioners, Barden and Robeson Corporation, et al., appeal from an order entered in the Circuit Court of Wood County awarding judgment in favor of the respondent, Fellowship Baptist Church of Vienna, in the amount of $300,080 with regard to the respondent’s claim that the design and construction of an addition to its church building was defective. The judgment was entered following a bench trial on damages after the Circuit Court granted a default judgment in favor of the respondent Church on the issue of liability. The petitioners contend, inter alia, that the Circuit Court committed error in failing to set aside the default judgment.

 

Refuse 5-0

18. SER Richard Rushbrook v. George Trent, Warden, No. 011860. The petitioner, Richard Alan Rushbrook, appeals from an order entered in the Circuit Court of McDowell County denying him relief in habeas corpus. In the underlying case, the petitioner was convicted of the 1st degree sexual abuse and the 2nd degree sexual assault of a fourteen year old female. The petitioner’s direct appeal to this Court was refused in May 1997. The petitioner contends that the habeas Court committed error: (1) in not finding that the evidence was insufficient to support the petitioner’s conviction of 2nd degree sexual assault and (2) in not finding that the petitioner’s trial counsel was ineffective.

 

Refuse 5-0

19. Margaret Toppings v. Meritech Mortgage Services, Inc., No. 011893. In this certified question matter, Margaret and Roger Toppings filed an action in the Circuit Court of Lincoln County to resolve disputes with the lenders concerning the Toppings’ home equity loan. The lenders, Meritech Mortgage Services and Chase Manhattan Bank, asserted that the Circuit Court action was precluded by an arbitration agreement the Toppings signed as part of the loan documents. The Circuit Court asks this Court to determine whether the arbitration agreement is unconscionable and unenforceable.

 

Grant 5-0

Petition For Appeal

Refuse 5-0

Motion To Dismiss

20. State of West Virginia v. Joseph W. Westfall, No. 011896. The petitioner, Joseph Wayne Westfall, challenges his convictions in the Circuit Court of Roane County of nighttime burglary and petit larceny. The evidence of the State at trial included: (1) allegedly stolen items seized by a Deputy Sheriff in the petitioner’s bedroom located in a residence belonging to another and (2) the petitioner’s written, inculpatory statement. The petitioner contends that the Circuit Court committed error in not granting his motions to suppress the seized items and the statement.

 

Refuse 5-0

21. SER Robert E. Jarvis v. West Virginia Department of Corrections, No. 011901. The petitioner, Robert E. Jarvis, Sr., appeals from an order entered in the Circuit Court of Marshall County denying him relief in habeas corpus. In the underlying case, the petitioner was convicted of sexual offenses against his 16 year old stepdaughter. In denying habeas relief, the Circuit Court noted that the issue of the victim recanting her testimony as a State witness had been unsuccessfully litigated by the petitioner numerous times. The petitioner contends, however, that the Circuit Court committed error in not hearing new evidence concerning the victim recanting her testimony.

 

Refuse 5-0

22. Bobby Cales v. Mark S. Wills, No. 011903. The petitioner, National Union Fire Insurance Company of Pittsburgh, appeals from an order denying its motion to set aside a default judgment. The respondent, Bobby Cales, was injured in the course of his employment as a police officer and asserted that he was entitled to underinsurance coverage for his injuries pursuant to an insurance policy issued by the petitioner. The petitioner contends, inter alia, that it appeared in the action brought by respondent Cales against the tortfeasor and that, therefore, the Circuit Court committed error in not requiring Cales to notify the petitioner of his application for a default judgment against the petitioner.

 

Grant 5-0

23. In the matter of: Grandparent visitation of Eugene T., No. 011932. This is a certified question case from the Circuit Court of Mercer County. The petitioner, Shannon Thompson, and her deceased husband were the parents of two minor children. The petitioner contends that the respondents, Eugene Allen Thompson and R. Carol Thompson, the paternal grandparents of the children, have no right to seek visitation with the children, since: (1) the petitioner is a fit parent, and (2) the enforcement of grandparent visitation rights would interfere with the petitioner’s right, as a fit parent, to exclusively determine the children’s best interests. Ruling in favor of the petitioner, the Circuit Court and the Family Law Master held that this State’s statutory scheme allowing grandparent visitation, W.Va. Code, 48-10-101 (2001), et seq., is unconstitutional.

 

Refuse 4-1

[ McGraw, C.J. ]

24. Spencer Graham and Helen Graham v. Samuel Beveridge, Comm’r., No. 011934. The petitioners, Spencer and Helen Graham, appeal from orders entered in the Circuit Court of Berkeley County granting summary judgments in favor of the respondent, West Virginia Division of Highways, and the respondents, Earle and Jean Parker. The petitioners (plaintiffs in the Circuit Court action) alleged that the respondents were responsible for, and should have taken remedial action with regard to, the discharge of damaging storm waters onto the petitioners’ property. The petitioners contend, inter alia, that the summary judgments were inappropriate in view of questions of material fact.

Grant 3-2

[Davis, J., Maynard, J. ]

25. Davis Sturms, et al. v. University of West Virginia Board of Trustees, No. 011946. In this certified question case, a class action was filed in the Circuit Court of Kanawha County by employees of West Virginia University for negligent infliction of emotional distress and for medical monitoring. The employees alleged that they were occupationally exposed to asbestos and that, although they suffered from no asbestos-related diseases, they were, nevertheless, at an increased risk of contracting such diseases, including cancer. The petitioners, West Virginia Board of Risk and Insurance Management and National Union Fire Insurance Company of Pittsburgh, contend that the employees’ claims are barred by exclusions contained within the State’s insurance coverage.

 

Refuse 3-2

[ Davis, J., Maynard, J. ]

26. Linda Key and Paul Key v. Michael Spindel, M.D., and St. Mary’s Hospital of Huntington, Inc., d/b/a AT. Mary’s Hospital (Huntington), a West Virginia corporation, and Specialty Surgical Instrumentation, Inc., a Tennessee Corporation, No. 011818. Medical malpractice plaintiff seeks to overturn lower court grant of summary judgment for failure to name an expert witness.

Accept To Motion Docket

27. Robert L. Cross, M.D. v. West Virginia Insurance Guaranty Association, No. 011828. Physician seeks to appeal lower court decision holding that the West Virginia Insurance Guaranty Association’s obligation to indemnify is dependent upon exhaustion of the liability limits available to all other defendants and refusing to rule on the issue of whether the Association is liable for bad faith as any other insurance carrier.

 

Grant 5-0

28. Peggy Adkins (Cooperider) v. Samir Shabb, M.D., No. 011902. Plaintiff who was allegedly injured by defendant physician seeks to appeal lower court’s grant of motion to dismiss her claims of negligent misrepresentation.

 

Refuse 5-0

29. John Collins and Debbie Southworth v. Red Roof Inns, Inc., No. 011190. United States District Court seeks certification of a question involving defamatory statements and claims of privilege.

 

Grant 5-0