October 8, 2009

1.  Allyn G. Turner, Director, Water and Waste Management, West Virginia Department of Environmental Protection v. Smith Econo Homes, Inc. and R&L Construction Company, Inc. v. Sunshine Estates Phase I Homeowners’ Association, Inc. - No. 090983. Defendants appeal from the circuit court’s order confirming an earlier order and requiring the parties to perform their obligations under an earlier settlement agreement. Defendants contend they remain unable to perform the contract terms imposed by the circuit court. Refuse 5- 0

2.  Danny Rambeaut and Sherri Rambeaut v. Frank Poland, D.O., Plateau Medical Center, Inc., & Oak Hill Hospital Corporation, d/b/a Plateau Medical Center, MPC, Inc. d/b/a Plateau Medical Center, John Doe doctor, John Doe healthcare provider, and John Doe corporation - No. 091053. Plaintiffs appeal from the circuit court’s order granting summary judgment in favor of defendant doctor; and dismissing, with prejudice, the claims against him in this civil action; and removing the matter from the court’s active docket. Refuse 5- 0

3.  State of West Virginia v. Roger Alan McKinney - No. 091051. Defendant appeals following his guilty plea to one count of first degree robbery. Defendant challenges his guilty plea on the basis that there was insufficient evidence presented at the plea hearing to accept the plea, as well as allegations of ineffective assistance of counsel. Defendant seeks to set aside his conviction and sentence and seeks a remand for trial. Refuse 5- 0

4.  Shirley Walker, spouse of the decedent, Lendo Walker, Sr. v. Lendo Walker, Jr., Executor of the Estate of Lendo Walker, Sr. - No. 091016. Petitioner appeals from the circuit court’s Memorandum of Opinion and Order entered in this action seeking a declaratory judgment and other relief in a dispute over the estate of petitioner’s deceased husband. Petitioner asserts that the circuit court erred in not setting aside its dismissal order and granting her an elective share. Refuse 4-1, (Workman, J.)

5.  Bruce A. Curfman v. David H. Bolyard, in his capacity as Director of Driver Services and Joe E. Miller, in his capacity as Commissioner for the Division of Motor Vehicles of the West Virginia Department of Transportation - No. 091083. Petitioner appeals from the circuit court’s order denying his petition for a writ of prohibition and petition for a writ of mandamus. Petitioner sought to have his license no longer be revoked. The circuit court concluded the petitioner had not proven that the Department of Motor Vehicles exceeded its legitimate powers for purposes of a writ of prohibition nor had he established a clear legal right to the relief sought for purposes of a writ of mandamus. Petitioner seeks a reversal of the circuit court’s order and an order from this Court prohibiting DMV from continuing to act upon its orders of revocation of petitioner’s driver’s license and that it be required to apply the plain meaning of C.S.R. §91-5-14.1 (2006) in all cases. Petitioner also seeks costs and attorney’s fees from DMV and such other relief as this Court deems appropriate. Refuse 5- 0

6.  Bernice Miller v. Kanawha Valley Regional Transportation Authority, and John Doe, an unidentified agent and employee of Kanawha Valley Regional Transportation Authority - No. 091084. Plaintiff appeals and asserts that the circuit court abused its discretion refusing to grant her motion for a new scheduling order and, instead, awarded summary judgment in favor of defendant in this personal injury action. Refuse 5- 0

7.  State ov West Virginia v. John Hively - No. 091109. Defendant appeals his sentencing following his guilty pleas to one count of possession of substances to be used as precursors to the manufacture of methamphetamine and two counts of conspiracy. Defendant seeks a re-sentencing with the imposition of a sentence that complies with the spirit and letter of the law regarding probation and parole. Refuse 5- 0

8.  State of West Virginia v. Christopher Shane Dellinger - No. 091110. Defendant appeals his conviction on three counts of falsifying accounts and one count of obtaining money, goods, services or property by a common plan or scheme. Defendant raises issues related to juror misconduct and bias, insufficiency of the evidence, and ineffective assistance of counsel. Grant  5- 0

9.  Anissa White v. AAMG Construction Lending Center, Crown Mortgage/Crown Bank, White Family Properties, LLC, Stephen L. White, II, individually, Allied Home Mortgage Capital Corporation and ABN AMRO Mortgage Group, Inc.  - No. 091113. Plaintiff appeals from the circuit court’s order awarding summary judgment in favor of defendant Bank. Plaintiff alleges the Bank was negligent and/or reckless by failing to properly monitor the building progress of plaintiff’s new home; by forwarding notices of draw payments to the wrong address; and by breaching the terms of a construction loan agreement. Plaintiff seeks a reversal of the circuit court’s order and a remand for a jury trial.  Accept to Motion Docket

10.  Ricky Vincent Pendleton v. West Virginia Division of Corrections and Mount Olive Correctional Complex - No. 091024. The Division of Corrections appeals the portion of the circuit court’s order which granted, in part, inmate Ricky Vincent Pendleton’s civil claim. The court found that the DOC improperly imposed prison discipline based on "mere thoughts" that Pendleton wrote in a personal journal. Refuse 5- 0

11.  Jane Rissler, Patricia Keller, Susan Rissler-Sheely, Mary Macelwee, Richard Latterell, and Sherry Craig v. the Jefferson County Board of Zoning Appeals and Thornhill, LLC - No. 091111. Jane Rissler et al. appeal the circuit court’s order denying their petition for writ of certiorari challenging the Jefferson County Board of Zoning Appeal’s decision to grant a conditional use permit to Thornhill, Inc. for the development of a residential housing project in a district zoned as rural. Petitioners assert that two BZA members and a BZA attorney had conflicts of interest, and that the circuit court misinterpreted a zoning ordinance regarding sewer systems. Grant  5- 0

12.  State of West Virginia v. Mara Spade - No. 091121. Mara Spade appeals the circuit court’s order which dismissed her appeal and affirmed her magistrate court conviction of one count Cruelty to Animals. Petitioner argues, inter alia, that she was denied due process and the prosecutor breached the plea agreement by not providing her a post-conviction restitution hearing. Grant  5- 0

 13.  Donald Scott Bannister v. Lisa Bannister (now Sanson) - No. 091123. Donald Bannister appeals the circuit court’s order which refused a petition for appeal from a family court "Order Denying Motion for Reconsideration." The family court refused to reconsider a judgment order that held Mr. Bannister to be in arrears on payment of child support and medical expenses. Refuse 5- 0

14.  Donald Klaiber v. Tracy E. Davenport P01 USN, an individual; Budget Truck Rental LLC, a foreign limited liability company; Budget Rent-A-Car System, Inc., a foreign corporation; Movin’ On LLC d/b/a Movin’ On Storage Center, a domestic limited liability company, and John Does 1-7, various individuals and/or entities - No. 091124. Defendants below, Budget Truck Rental, LLC and Movin’ On LLC, appeal after an adverse jury verdict and the circuit court’s denial of their motions. They argue, inter alia, that claims against them were barred by the statute of limitations, that the court should have ruled as a matter of law that they owed no duty to plaintiff, and that the evidence did not support a negligence verdict. Accept to Motion Docket

15.  State of West Virginia v. Timothy C. O’Dell - No. 091127. Timothy O’Dell appeals his convictions for First Degree Murder with a recommendation of mercy and Conspiracy to Commit Murder. He argues, inter alia, that his statement to police should have been suppressed, that the jury was improperly instructed, evidentiary error, failure to disclose exculpatory evidence, insufficient evidence to support First Degree Murder, and cumulative error. Accept to Motion Docket

16.  State of West Virginia v. James Robert Harris - No. 091129. James Robert Harris was convicted of Abduction with Intent to Defile, Conspiracy to Commit Abduction with Intent to Defile, Sexual Assault in the Second Degree, and two counts of Aiding and Abetting Sexual Assault. He was sentenced to life under the recidivist statute, plus 31 to 80 years. He appeals raising several issues with regard to his sentence. Refuse 3-2 (Benjamin, C. J., Ketchum, J.)

17.  State of West Virginia v. Mark Wilson - No. 091138. Petitioner, Mark Wilson, appeals from his conviction for felony Conspiracy following a jury trial in Braxton County, West Virginia. Petitioner now seeks a new trial and/or an order to vacate the commitment order and directions to re-sentence the petitioner pursuant to West Virginia Code §61-11-18. Grant  5- 0

18.  James E. Beichler v. West Virginia University at Parkersburg  - No. 091140. Petitioner James E. Beichler filed a West Virginia Wage Payment and Collection Act claim against the Respondent West Virginia University Parkersburg for alleged wages owed. The Kanawha County Circuit Court dismissed the case pursuant to Rule 12(b)(1) and ruled that the matter is barred by Constitutional Immunity. Accept to Motion Docket

19.  State of West Virginia v. Ernest Wingerd - No. 091141. Petitioner Ernest Wingerd appeals his sentencing for First Degree Robbery by the Berkeley County Circuit Court. Petitioner challenges the lower court’s imposition of a determinate sentence of thirty years imprisonment. Refuse 5- 0

20.  State of West Virginia v. Carl Lindsey Fountain - No. 091142. Petitioner Carl Lindsey Fountain appeals his conviction for Possession of a Stolen Vehicle. The Kanawha County Circuit Court refused petitioner’s post-trial motions, and he was sentenced to the penitentiary for an indeterminate term of one to five years. Accept to Motion Docket

21.  Appalachian Regional Healthcare, Inc. v. Ocie Helton, et al. - No. 091155. Appalachian Regional Healthcare appeals from the Kanawha County Circuit Court’s Final Order dismissing it’s petition for appeal. On appeal, the Petitioner asserts that the Circuit Court implicitly denied Petitioner’s Motion for Enlargement of Time and granted Respondent’s Motion to Dismiss without addressing any of the positions advanced by the Petitioner. Refuse 3-2 (Benjamin, C. J., Workman, J. on issue 2)