October 21, 2004 Requests for Oral Presentation and Petitions for Appeal

West Virginia Supreme Court of Appeals

Requests for Oral Presentation
and
Petitions for Appeal

October 21, 2004

1. Megan B. v. Nationwide Mutual Insurance Company, et al. , No. 041772. Plaintiff files a petition in support of the circuit court’s answers to certified questions in connection with the settlement of this class action.

Accept To Motion Docket

2. Mark Bays, individually, as Administrator of the Estate of Heather D. Bays and as Guardian and next friend of Heath Bays, a minor v. Jeffrey W. Hively, M.D. , No. 041629. Defendant files his petition for a review of the circuit court’s certified questions in this medical malpractice action.

Accept To Motion Docket

3. Jessica Satterfield v. Erie Insurance Property and Casualty Company , No. 041251. Plaintiff appeals from the circuit court’s order awarding summary judgment in favor of defendant insurance company in this declaratory judgment action to determine coverage issues.

Accept To Motion Docket

4. Napoleon Salyer and Linda Salyer v. Paul L. Nusbaum , No. 041253. Petitioners appeal from the circuit court’s order affirming the decision of the DHHR Board of Review excluding petitioners as adoptive parents. Petitioners seek a review on the issue of grand-parental preference and ask that they be afforded the opportunity to adopt their natural grandson.

Grant 3-2
[ Davis, J., Starcher, J. ]

5. Suzane Carte v. Kanawha County Board of Education , No. 041255. Petitioner teacher appeals from the circuit court’s order upholding the decision of the West Virginia Education and State Employee’s Grievance Board denying her grievance.

Grant 5-0

6. State of West Virginia v. Thurman Conrad Cline , No. 041256. Defendant appeals from the circuit court’s order sentencing him to a term of not more than 10 years following defendant’s guilty plea to voluntary manslaughter with use of a firearm.

Grant 4-1
[ McGraw, J. ]

7. William E. Jones v. Steven L. Sanger and State Farm Mutual Insurance Company , No. 041257. Plaintiff appeals from the circuit court’s order finding that he had not substantially prevailed and denying his motion to amend his complaint in this action arising out of an automobile accident.

Grant 3-2
[ Maynard, C.J., Davis, J., ]

8. Helena R. McQuain v. Mikel Collins and Nancy Collins , No. 041264. Plaintiff appeals from the circuit court’s order granting summary judgment in favor of defendants in this action to quiet title to a certain tract of land in Randolph County.

Accept To Motion Docket

9. Solution One Mortgage v. Rebecca Craig, State Tax Commissioner , No. 041286. Petitioner appeals from the circuit court’s order affirming an administrative decision of the West Virginia Office of Tax Appeals on the basis that petitioner had failed to file an appeal bond in circuit court. Petitioner seeks a reversal asserting that no appeal bond was necessary.

Grant 3-2
[ Maynard, C.J., Davis, J., ]

10. State of West Virginia v. Michael Wayne Davis, Jr. , No. 041289. Defendant appeals from his jury conviction finding him guilty of death of a child by a custodian by child abuse. Defendant asserts various evidentiary and trial errors.

Refuse 5-0

11. State of West Virginia; SER State of Connecticut v. Benjamin Clifton , No. 041306. Defendant appeals from the circuit court’s order denying his motion for a writ of habeas corpus and directing his extradition to the State of Connecticut to face criminal charges in that State.

Refuse 5-0

12. Brenton L. Ferrell v. Nationwide Mutual Insurance Company , No. 041695. The circuit court certifies a question regarding whether certain insurance policy language clearly and unambiguously creates a contractual right for the insurer to be reimbursed medical expense payments.

Grant 3-2
[ Starcher, J., McGraw, J. ]

13. Shirley Belcher v. James J. Ielapi, Warden Prunytown , No. 041323. Petitioner appeals from the circuit court’s denial of her petition for a writ of habeas corpus. She was previously convicted of 31 counts of obtaining possession of a controlled substance by misrepresentation.

Refuse 4-1
[ Starcher, J. ]

14. Christopher A. Barnum v. David Cavender, The Morgantown Utility Board, a public corporation, and Vaughn L. Kiger , No. 041332. Plaintiff below appeals from the circuit court’s order which held that plaintiff had not proven the existence of a prescriptive easement over a private roadway.

Refuse 3-1
[ McGraw, J., ]
[ Starcher, J. Disqualified ]

15. State of West Virginia v. Alfred Gray , No. 041326. Petitioner appeals his conviction for first degree murder by use of a firearm with a recommendation of mercy.

Grant 2-2
[ Maynard, C.J., Davis, J., ]
[ McGraw, J. Disqualified ]

16. State of West Virginia v. Brandon B., Juvenile; Sonia T. Sutton, Mother; Unknown Father , No. 041334. The WV Department of Health and Human Resources appeals from the disposition in a juvenile proceeding where the juvenile was placed in the Department’s custody for a placement which the court specified. The Department asserts that the circuit court failed to comply with the statutes setting forth a mandatory multidisciplinary treatment planning process.

Grant 5-0

17. H.D. Cory, III v. Kenneth M. Smith, Robert Smith, DuWayne K. Smith, Felicia G. Robey, W. Todd Smith and Nicholas C. Smith , No. 041335. Petitioner appeals from the order which found that he lacks standing to contest the validity of a Last Will and Testament.

Refuse 5-0

18. Charlotte Mae Sinkewitz v. City of Huntington , No. 041357. The City of Huntington appeals from an adverse order of the circuit court in a zoning matter. The City asserts that a decision in a prior lawsuit involving the same parties is res judicata.

Grant 5-0

19. State of West Virginia v. Jeffrey W. Ray , No. 041364. Petitioner appeals his conviction for one count of felony failure to meet a support obligation. He asserts the circuit court erred in rejecting his proposed plea to misdemeanor failure to meet a support obligation.

Refuse 5-0

20. State of West Virginia v. Randy W. Brown , No. 041365. Petitioner appeals from the circuit court’s order granting the extradition of petitioner to the State of New York.

Refuse 5-0

21. Herbert J. Thomas Memorial Hospital v. Board of Review of the Bureau of Employment Programs, James G. Dillon as Chairman thereof, James Sago and Carole A.L. Bloom as members thereof, Greg Burton as Commissioner of the Bureau of Employment Programs, James M. Kirk , No. 041366. Employer appeals from the circuit court’s determination that the claimant in an unemployment compensation case did not commit an act of gross misconduct and was therefore entitled to benefits.

Grant 4-1
[ Starcher, J. ]

22. Lawrence Pettey v. West Virginia Division of Corrections, Mt. Olive Correctional Complex, West Virginia Division of Personnel , No. 041368. Petitioners appeal from the circuit court’s order which affirmed the denial of their state employee grievances. Petitioners are Correctional Officers V who assert that they should be reclassified and paid as Correctional Officers VI based upon the duties they perform.

Accept To Motion Docket

23. In re: The Marriage of Ruby Jewelene Young v. Bill R. Young , No. 041369. Wife in a divorce case appeals from the circuit court’s order which decided certain property distribution issues and reversed an award of attorney’s fees.

Refuse 5-0

24. City of Beckley v. Elizabeth Brammer and the West Virginia Human Rights Commission , No. 041263. The City of Beckley appeals from the circuit court’s order affirming the decisions of the WV Human Rights Commission and its administrative law judge. The Commission found that Ms. Brammer had been sexually harassed and constructively discharged from her employment with the Beckley Police Department.

Accept To Motion Docket

25. William R. Via v. Ralph Beckett and Joan Beckett , No. 041290. Plaintiff appeals from an adverse summary judgment order in a suit asserting that his neighbor’s building has encroached upon his property.

Grant 3-2
[ Maynard, C.J., Davis, J., ]

26. State of West Virginia v. Helen Regina Webster , No. 041292. Petitioner appeals her conviction for domestic battery. She asserts that the circuit court erred by not permitting her counsel to make a closing argument and by excluding evidence of the victim’s prior acts of violence against her.

Accept To Motion Docket

27. State of West Virginia v. Tracy Blane Lusk , No. 041373. Petitioner, a former attorney, files a direct appeal from his convictions of Obtaining Money under False Pretenses and Embezzlement. The trial court denied petitioner’s Motion for Judgment of Acquittal or in the Alternative to Set Aside the Verdict and Grant a New Trial. On appeal, petitioner contends that his Constitutional rights were violated during the discovery process and trial of this matter.

Refuse 5-0

28. Asbestos Consulting, Inc. and Raymond Saulino, Jr. v. West Virginia Department of Health and Human Resources/Bureau for Public Health, Office of Environmental Health Services , No. 041300. Petitioners filed an administrative appeal with the DHHR concerning the revocation of their licenses as the same relates to asbestos abatement, inspections and design work. The DHHR upheld the decision, along with the Kanawha County Circuit Court. The petitioners were assessed a $2,000 civil penalty. Petitioners seek a reversal.

Refuse 5-0

29. David Allen Fox v. William Haines, Warden, Huttonsville Correctional Center , No. 041381. Petitioner files a post-conviction Writ of Habeas Corpus Ad Subjiciendum which is being directly filed in the Supreme Court of Appeals. The petitioner is confined in Huttonsville Correctional Center and he has twice been denied parole. Petitioner seeks a release.

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

30. Kimberly D. Catlin v. Nationwide Mutual Insurance Company , No. 041382. This suit is an appeal by Nationwide Mutual Insurance Company of an award of summary judgment to a Nationwide insured regarding whether the carrier made a commercially reasonable offer of uninsured and underinsured motorist coverage.

Refuse 3-2
[ Maynard, C. J., Davis, J. ]

31. SER Raymond Goedeke v. Howard Painter, Warden , No. 041386. Petitioner files this habeas action to seek a new trial or reversal of his conviction. The Circuit Court dismissed amended habeas petition by summary judgment. On appeal, petitioner asserts that he is entitled to a full evidentiary hearing with counsel being allowed to conduct discovery.

Refuse 4-1
[ Starcher, J. ]

32. Gary Tillis, Chairman, Putnam County Executive Committee v. Donald Wight, Putnam County Circuit Clerk and Ex-Officio Chairman of the Board of Ballot Commissioners in and for Putnam County; Ruth Ann Maynard and Judith F. Jeffries as members of the Board of Ballot Commissioners in and for Putnam County; and Raymond Joseph Haynes - No. 041591. Petitioner, Gary Tillis, Chairman of the Putnam County Democratic Executive Committee, appeals from the circuit court’s ruling from the bench permitting the Putnam County Republican Executive Committee to fill a vacancy in the nomination for the office of Putnam County Commissioner where no vacancy existed because the initial nomination was rejected because the putative nominee was not a Republican.

Grant 5-0

33. Robert A. Workman v. Deborah Whitt-Bruce and The Raleigh County Commission, in their capacity as the Judge of Election Qualifications and Returns, John D. Humphrey, John Aliff, and Pat Reed, members thereof , No. 041958 . Petitioner Robert Workman appeals from the circuit court’s order which affirmed the decision of the Raleigh County Commission to strike petitioner’s name from the general election ballot because he was ineligible to become a Democratic nominee for the Office of Magistrate.

Refuse 5-0