September
10, 2009 1. Joseph Allen Keith v. CSX Transportation, Inc., a
Virginia corporation; Kim Winters, and Frank Caldwell - No. 090799.
2. Don Smith v. American Commercial Barge Line, LLC v. Egan Marine Corporation v. Excell Marine Corporation and Koppers Inc. - No. 090826. Petitioner Egan Marine Corporation appeals from the circuit court’s order denying petitioner’s motion for summary judgment. Petitioner states that there are no outstanding issues of material fact or, in the alternative, that the evidence showed that all injuries sustained by plaintiff were the sole result American Commercial Barge Line, LLC’s breach of its duty to provide a competent master and properly equipped and manned crew. Refuse 5- 0
3. Linda Dingess v. Logan General Hospital, LLC, d/b/a Logan Regional Medical Center, a corporation- No. 090874. Plaintiff appeals from the circuit court’s order awarding summary judgment in favor of defendant hospital in this action arising out of a slip and fall on a sidewalk. Plaintiff asserts there were genuine issues of material fact precluding summary judgment. Refuse 5- 0
4. In the matter of: T. M. - No. 090875. Petitioner appeals a dispositional order entered in a juvenile delinquency proceeding imposing a period of confinement in a residential treatment facility and probation. Petitioner seeks a reversal and remand for entry of an order imposing the least restrictive alternative of placement in the custody of his parents with in-home treatment for his diagnosed behavioral disorders. Refuse 5- 0
5. Teddy Varney, as attorney-in-fact for Marcella Varney v. Kenneth G. Adkins and Patricia J. Adkins - No. 090876. Petitioner appeals from the circuit court’s order awarding summary judgment in favor of respondents in this action to establish a boundary line. The circuit court found that respondents had acquired ownership of the disputed land by adverse possession. Petitioner asserts that the circuit court abused its discretion as there were genuine issues of material fact to be determined by a jury. Refuse 5- 0
6. Highmark West Virginia, Inc. d/b/a Mountain State Blue Cross Blue Shield, a West Virginia Corporation v. Sharooz S. Jamie, M.D. - No. 090821. Defendant Sharooz S. Jamie, M.D., appeals the circuit court’s order granting partial summary judgment in favor of plaintiff Highmark West Virginia, Inc. d/b/a Mountain State Blue Cross Blue Shield. The court granted summary judgment in favor of Mountain State on its claims that Dr. Jamie violated a Participation Agreement by submitting incorrect insurance claims, and granted summary judgment in favor of Mountain State on Dr. Jamie’s counterclaims that Mountain State had violated the Agreement and committed fraud. Refuse 4-1, (Workman, J.)
7. Clarence T. Coleman Estate by Co-Administrators Clarence Coleman and Helen M. Adkins v. R. M. Logging, Inc., a West Virginia Corporation, and Clonch Industries, Inc., a West Virginia Corporation, and John Robinson, individually - No. 090878. The Clarence T. Coleman Estate by its co-administrators appeal the circuit court’s granting of summary judgment in favor of the defendant employer, R.M. Logging, Inc., in a deliberate intent action. The court held that plaintiffs failed to present evidence of at least two of the required elements of deliberate intent. Grant 3-2, (Benjamin, C. J., Ketchum, J.)
8. State of West Virginia v. David Harold Eilola - No. 090894. David Harold Eilola appeals his conviction for attempted first degree murder, malicious assault, fourth degree arson, violation of a domestic violence protective order, and domestic battery. He asserts that the convictions for attempted first degree murder and malicious assault violated his right against double jeopardy; that there was insufficient evidence to support the attempted murder conviction; and that the trial court’s refusal to give him credit for pre-trial time served on his parole eligibility violates his right to equal protection. Grant 3-2, (Davis, J., Workman, J.) (On issue 3 only)
9. State of West Virginia v. William L. Mayfield - No. 090897. William L. Mayfield appeals his conviction for one count of felony "Battery on a Police Officer, Second Offense." Under the recidivist statute, petitioner was sentenced to life in prison. He asserts that the circuit court’s rulings on evidentiary issues violated his rights. Refuse 5- 0
10. Robert E. Roy v. David Ballard, Warden, West Virginia Division of Corrections; Joe Manchin, III, Governor - No. 090899. Robert E. Roy appeals the order denying his amended petition for a writ of habeas corpus. He challenges his extradition to the Commonwealth of Virginia. Refuse 5- 0
11. Kimberly Thomas v. Joseph B. Morris- No. 090859. Petitioner, Kimberly Thomas, appeals from the denial of a Petition for a Domestic Violence Protective Order from both the Clay County Circuit Court and the Clay County Family Court. Both Courts determined that the petitioner failed to establish by a preponderance of evidence that an incident of "domestic violence" or "abuse" had occurred, as defined by West Virginia Code §48-27-202(5). Grant 3-2, (Ketchum, J., McHugh, J.)
12. W. David Burnette, II v. Lee Ann Burnette - No. 090865. Petitioner, W. David Burnette, II, appeals from a January 22, 2009, Order of the Mercer County Circuit Court which affirmed in part and modified in part the final Order of the Family Court of Mercer County entered March 5, 2008. The Family Court ruled that it would decline to rule on the distribution of stocks or financial investments previously ordered by the Circuit Court. Refuse 5- 0
13. State v. Paul D. Smeltzer - No. 090866. Petitioner, Paul D. Smeltzer, seeks review of his sentence subsequent to his pleading guilty to one count of First Degree Sexual Assault and two counts of Third Degree Sexual Assault. Petitioner was sentenced to indeterminate sentences of fifteen to thirty-five years, one to five years, and one to five years all to be served consecutively. On appeal, petitioner asserts that his sentence constitutes a disproportionate sentence in violation of Article III, Section 5 of the West Virginia Constitution and the Eighth Amendment of the United States Constitution. Refuse 5- 0
14. State of West Virginia v. Larry A. Clement - No. 090917. Petitioner, Larry A. Clement, appeals from his conviction by a jury for 16 Counts of Sexual Assault in the Second Degree, 32 Counts of Sexual Abuse in the First Degree, 32 Counts of Sexual Abuse by a Parent, Guardian or Custodian and 16 Counts of Sexual Abuse in the First Degree. Refuse 5- 0
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