1. State of West Virginia v. Gypsy "Buck" Bohon, No. 011193. Defendant appeals from his second degree murder conviction for which he received a sentence of 40 years in the State Penitentiary.

GRANT 4-1 (MAYNARD)

2. Clyde Emigh, A. Troy Wills, Charles H. Robinette and Michael Gary Mower v. West Virginia Department of Health and Human Resources, Bureau for Public Health, Office of Environmental Services, and West Virginia Division of Personnel, No. 011194. Petitioners appeal from the circuit court’s order affirming the decision of the administrative law judge that denied their claim of discrimination and favoritism.

ACCEPT FOR MOTION DOCKET

3. Jack Napier v. Patricia Napier, No. 011199. Defendant appeals from the circuit court award of summary judgment in favor of plaintiff in this action for wrongful occupation of residential rental property and from the circuit court’s dismissal of defendant’s counter-claim for failure to state a cause of action.

GRANT 3-2 (McGRAW, MAYNARD)

4. Charlene Joyce Hylton v. Steven Michael Hylton, No. 011211. Petitioner husband appeals from the circuit court’s order adopting the Recommended Order of the Family Law Master in this divorce action.

REFUSE 4-0 (McGRAW Disqualified)

5. State of West Virginia v. Christopher L. Davis, No. 011195. Defendant appeals from his first degree murder conviction. He was sentenced to life imprisonment with a recommendation of mercy. He also appeals from his conviction for malicious wounding with the finding of a firearm. He was sentenced to 2 to 10 years to run consecutively to his life sentence.

REFUSE 3-2 (STARCHER, ALBRIGHT)

6. Harold Pannell and Diversified Contractors, Inc. v. Columbia Sussex Corporation, No. 011212. Plaintiffs appeal from the circuit court’s order granting defendant’s motion to dismiss.

ACCEPT FOR MOTION DOCKET

7. State of West Virginia ex rel. Darrell McGraw, Jr. v. Norfolk Pharmacy, Inc., Ronald L. Law, individually, in his capacity as pharmacist-in-charge, and Don A. Orlando, individually, in his capacity as pharmacist-in-charge, Frank Tice, in his capacity as owner of Norfolk Pharmacy, Norfolk Men’s Clinic, Anita Yates, doing business as Norfolk Men’s Clinic, Anton F. Pusztai, d/b/a Norfolk Men’s Clinic, and Don A. Orlando v. American Casualty Company of Reading, Pennsylvania, No. 011223. Petitioner, defendant and third-party plaintiff below, Don Orlando, appeals from the circuit court’s order finding that there was no insurance coverage available to petitioner.

REFUSE 5-0

8. Dorothy L. Hawkins and Paul E. Hawkins v. Ford Motor Company, No. 011227. Plaintiffs appeal from the circuit court’s order refusing to award legal fees and costs to plaintiffs under West Virginia precedent in breach of warranty cases and its order refusing to permit plaintiffs to amend their pleadings to assert a cause of action against defendant for violation of the Unfair Trade Practice Act.

ACCEPT FOR MOTION DOCKET

9. M. Douglas Hodges v. William T. Smoot, No. 011236. Defendant appeals from the circuit court’s order granting default judgment against him in this breach of contract action for his failure to appear at his court ordered deposition.

GRANT 3-2 (MAYNARD, ALBRIGHT)

10. Marshall Conrad and Joyce Conrad v. Karen Stevens and Charles Boling and Delmar Wheatley, Jr., and Scott Wheatley v. Charles Boling, Lee Conrad, Karen Stevens, and Cox Pontiac-Buick, Inc., No. 011237. The Conrad plaintiffs appeal from the circuit court’s award of summary judgment in favor of defendants Karen Stevens and Cox Pontiac-Buick, Inc.

REFUSE 4-1 (McGRAW)

11. Albert Cable and Brenda Cable v. State Farm Mutual Automobile Ins. Co. and Steve Nichols, No. 011238. Defendant insurance carrier appeals from the circuit court’s award of summary judgment in favor of plaintiffs finding that there was underinsured motorist coverage and that the "owned, but not insured" exclusion was invalid and unenforceable.

12. State of West Virginia v. Harold S. Billingsley, No. 011629. Defendant files this supplemental petition for appeal from his conviction for aggravated robbery and conspiracy to commit a felony for which he received a sentence of 10 years on the aggravated robbery and 1 to 5 years on the conspiracy to be served concurrently.

RETURNABLE BELOW

13. James McCartney and Ruby McCartney (by her next friend James McCartney) v. Richard Slaughter, et al., No. 011250. The petitioner-defendants, Richard Slaughter, et al., appeal from a final order entered in the Circuit Court of Lewis County finding in favor of the respondent-plaintiffs, James McCartney, et al, with regard to a dispute concerning the parties’ adjoining tracts of land. Included in the final order was a ruling that the McCartneys were entitled to damages equal to the fair market value of their property, since that amount would be greatly exceeded by the potential cost of repairing the petitioners, the Circuit Court committed error in that regard by relying upon the potential cost of repairing the petitioners’ own property (which was allegedly causing the water damage), rather than relying upon the potential cost of repairing the McCartneys’ property alone.

REFUSE 5-0

14. Albert Tanner Frances Tanner v. Clarence Shaffer and Gerald L. Wright, No. 011277. The petitioner-defendant below, Clarence Joseph Shaffer, pro se, appeals from an order entered in the Circuit Court of Calhoun finding the existence of, and enforcing, a right-of-way over the property of the petitioner for access to the property of the respondents, Albert Tanner and Frances Tanner. The petitioner contends, inter alia, that the Circuit Court committed error in ruling that a 1916 reservation of right-of-way (found in the petitioner’s chain of title) "ran with the land" and, thus, applied to the petitioner’s property.

REFUSE 5-0

15. State of West Virginia v. Harry E. Walkup, Jr., No. 011278. The petitioner, Dr. Harry E. Walkup, Jr., challenges his convictions returned by a jury in the Circuit Court of Greenbrier County of offenses relating to the burning of a building, and a law office therein, in Lewisburg, West Virginia. The petitioner’s convictions include: (1) second degree arson, participating in an official proceeding. The petitioner contends, inter alia, that the Circuit Court committed error in excluding the testimony of an alibi witness, Richard Smith.

REFUSE 5-0

16. Patricia Lemley v. Mark Troobnick, et al., No. 011293. The petitioner, Patricia Lemley, appeals from an order entered in the order entered in the Circuit Court of Monongalia County dismissing her action against her former attorneys, the respondents. In the action, the petitioner alleged fraud and breach of contract against the respondents with regard to their withdrawal from representation in the petitioner’s underlying civil arson case. The petitioner contends, inter alia, that, inasmuch as the same Circuit Judge presided in both matters, the Judge committed plain error in failing to recuse himself.

REFUSE 4-0 (STARCHER NOT PARTICIPATING)

17. State of West Virginia v. Samuel Aubrey Leep, No. 011318. The petitioner, Samuel Aubrey Leep, challenges his convictions returned by a jury in the Circuit Court of Wayne County of sexual offenses against his biological daughter. The convictions include one count of sexual assault in the first degree, one count of sexual abuse in the first degree and two counts of sexual abuse by a parent. The petitioner contends that the Circuit Court erred in admitting evidence of "EIA medical testing" of the victim, which test indicated that the victim had acquired a sexually transmitted disease. According to the petitioner, the EIA testing was unreliable and inappropriate for the "task at hand," i.e., determining whether the victim had been sexually penetrated.

GRANT 3-2 (McGRAW, MAYNARD)

18. State of West Virginia v. Ray Eddie Slaton, Jr., No. 011336. The petitioner, Roy Eddie Slaton, Jr., challenges his conviction in the Circuit Court of Berkeley County of first degree sexual assault. Specifically, the petitioner, over age 40, was charged and convicted of the sexual assault of a 5 year old boy. The petitioner contends, inter alia, that, based upon the circumstances of this case, the Circuit Court committed error in failing to, sua sponte, order and conduct a pre-trial competency hearing to determine the petitioner’s competency to stand trial.

GRANT 5-0

19. Goldie Mayo v. Ronald Goodwin and WV DHHR, Bureau for Child Support Enforcement, No. 011317. The petitioner, Ronald Goodwin, appeals from an order entered in the Circuit Court of Lewis County adopting the recommended decision of the Family Law Master: (1) to increase the petitioner’s child support obligation from $50 per month to $397.57 per month and (2) to deny the petitioner’s motion to be adjudged not the father of one of the two children in question. Although the petitioner, while acting pro se, acknowledged that he was the father of the disputed child, the petitioner now contends that the Circuit Court committed error in not considering evidence of the petitioner’s exculpatory blood test and evidence that the respondent-mother fraudulently represented to the petitioner that he was the father of the child.

GRANT 3-2 (McGRAW, DAVIS)

20. Sharon Young v. Nancy Newberry, No. 011337. The petitioner, Sharon Young, appeals from an order entered in the Circuit Court of Fayette County denying her motion for sanctions against the respondent, Nancy Newberry. The Circuit Court denied the motion because the action (brought by the petitioner for breach of contract) had already been dismissed, with prejudice, based upon a settlement agreement between the parties. According to the petitioner, the Circuit Court committed error in indicating that it had no jurisdiction to grant the motion for sanctions, since, as the petitioner asserts, the Circuit Court acknowledged the agreement’s existence.

REFUSE 5-0

21. Mathew Aaron Kerner v. Affordable Living, Inc., No. 011338. The petitioner, The Home Show Buckhannon, Inc., appeals from an order in the Circuit Court of Upshur County denying the petitioner’s motion for relief under Rule 60(b) from an earlier order directing the enforcement of a $17,500 judgment against the petitioner and in favor of the respondent, Mathew Aaron Kerner. The petitioner contends that the judgment was originally rendered against the respondent’s former, Affordable Living, Inc., and that the petitioner is a corporation separate from, and not a continuation of, Affordable Living, Inc. A similar appeal was refused by this Court in Kerner v. Affordable Living, Inc., Supreme Court No. 010266 (W.Va. - refused 3-2, April 5, 2001).

REFUSE 4-1 (STARCHER)

22. Charter Communications v. Community Antenna Services, Inc., No. 011381. In this certified question case, the petitioner, Charter Communications VI, PLLC, urges this Court to reverse a ruling of the Circuit Court of Wood County upholding an agreement to the effect that the respondent, Community Antenna Service, Inc., would be the exclusive provider of cable TV service to the tenants of an apartment complex. The petitioner contends that the Circuit Court’s ruling denied the tenants freedom to choose between cable providers. At issue are the provisions of the West Virginia Cable Television Systems Act, W.Va. Code, 24D-1-1 [1999], et seq., and the West Virginia Tenants’ Rights to Cable Services Act, W.Va. Code, 24D-2-1 [1999], et seq.

GRANT 5-0

23. State of West Virginia v. Emerson L. Swiger, No. 010514. The petitioner, Emerson Lee Swiger, appeals from an order entered in the Circuit Court of Wood County sentencing him to a penitentiary term of 11 to 45 years. The Circuit Court’s sentence followed the petitioner’s guilty plea to seven counts of sexual offenses allegedly committed against his two teenage daughters. The petitioner contends, inter alia, that the Circuit Court committed error by improperly interjecting itself into the plea bargaining process. It should be noted that this appeal was previously considered by this Court in March 2001 but deferred for the appointment of Ms. Tarr as new counsel for the petitioner.

REFUSE 3-2 (STARCHER, ALBRIGHT)

24. State of West Virginia v. Bryan Keith McClead, No. 011191. Petitioner seeks reversal of his conviction of third offense DUI and driving on suspended for DUI second offense on the ground that he was denied the right to consult with his attorney before taking a secondary chemical blood test.

ACCEPT FOR MOTION DOCKET

25. Board of Education of the County of Kanawha v. Patricia T. Ayash, No. 011358. Petitioner challenges the Board of Education’s condemnation of her property to provide parking at the Saint Albans High School.

REFUSE 4-1 (STARCHER)

26. John Michael Moore v. Stephanie Moore, No. 011376. Petitioner seeks to challenge the lower court award of joint custody and the manner in which child support was calculated.

REFUSE 5-0

27. State of West Virginia v. David Lee Bell, Jr., No. 011378. Petitioner who was convicted of wanton endangerment with a firearm seeks to appeal his conviction based upon an instructional error.

GRANT 3-2 (DAVIS, MAYNARD)

28. Deborah R. Bond, Administrator, CTA of the Estate of William C. Grant, Deceased v. City Hospital, Inc., and James Carrier, M.D., and Eastern Panhandle Anesthesia Associates, P.L.L.C., formerly known as Potomac Anesthesia Associates, No. 011380. Medical malpractice plaintiff seeks to appeal judgment as a matter of law awarded to one defendant and jury verdict in favor of a second defendant.

REFUSE 4-1 (McGRAW)