September 25, 2008

Justice Albright did not participate in the consideration or decision of the cases on this docket. 
 Senior Status Justice McHugh sitting by temporary assignment.

1.  State of West Virginia ex rel. Darryl V. McGraw, Jr., Attorney General v. Able Debt Settlement, Inc. - No. 080715. Petitioner appeals from the circuit court’s order granting injunctive relief to respondent in this action arising out of an investigative subpoena directed to petitioner. Petitioner asserts that the circuit court made various procedural, jurisdictional, and constitutional errors below. Petitioner seeks a reversal of the circuit court’s orders and such additional relief as this Court deems proper.  - Accept to Motion Docket

2.  State of West Virginia v. LaToya West - No. 081168. Defendant appeals following her guilty plea to one count of forgery and her stipulation to a probation violation. Defendant challenges her sentence to the penitentiary for these non-violent offenses where defendant was 20-years-old at the time of the crimes and 21-years-old at the time of sentencing. Defendant seeks an opportunity to participate in the Youthful Offender Program at the Anthony Correctional Center.  - Refuse 4-1 (Starcher)

3.  State of West Virginia v. Luke Carter - No. 081179. Petitioner was found guilty of grand larceny following a jury trial. He appeals his conviction and challenges whether the taking of a gasoline credit card, but without accessing the credit balance, can be the subject of a common law grand larceny.  - Refuse 4-1 (Starcher)

4.  State of West Virginia v. Ray E. Carey - No. 081190. Defendant appeals from his conviction of domestic violence. Defendant seeks a reversal of his conviction or, in the alternative, that his case be remanded to the magistrate court for a new trial where he has the opportunity to present his entire case. - Accept to Motion Docket

5.  Euna Robinson v. James Pack - No. 081409. The circuit court presents the following certified questions:

Is a governmental official entitled to an immediate appeal of the denial of a motion for summary judgment that is based upon qualified immunity? Answer: Yes.

Are the alleged subjective motivations of a police officer relevant to an analysis of the reasonableness of an entry into a residence, the detention of the occupant of the residence, and the alleged use of force upon the occupant? Answer: Yes.

Is a supervising police officer civilly liable for the alleged wrongful conduct of his or her subordinate officers? Answer: Yes.
- Grant  3 - 1 (Benjamin) (Davis not participating)

6.  State of West Virginia v. Jack Lee Farson - No. 081213. Jack Lee Farson appeals his convictions for DUI 3^rd Offense, Driving While License Suspended, and Wanton Endangerment with a Firearm. He asserts several errors including insufficiency of the evidence and instructional error. - Refuse 5- 0

7.  State of West Virginia v. Mark Eugene Hinkle - No. 081365. Mark Eugene Hinkle appeals the sentence he received for Sexual Assault in the Third Degree. He argues that the circuit court erred by not giving him credit for time spent on home confinement as a condition of bond before he pled guilty, erred by not giving him credit for time spent on home confinement after he pled and stood convicted but before he was sentenced, and erred by not giving him credit for time served awaiting transport to WV.  - Refuse 4-1 (Starcher would grant on issue #2 only)

8.  State of West Virginia v. Orbry Dale Hull - No. 081275. Orbry Dale Hull appeals the calculation of his sentence for Sexual Abuse in the First Degree and the denial of his motion for reconsideration of sentence. He argues that the circuit court erred by not giving him credit for time served on home confinement as a condition of bail before he pled guilty, and erred by not giving him credit for time served on home confinement after he pled and stood convicted but before he was sentenced. - Refuse 4-1 (Starcher would grant on issue #2 only)

9.   Tempest B. Lowman and Bruce Lowman v. CSX Hotels, Inc.- No. 081220. Plaintiffs Tempest and Bruce Lowman appeal the circuit court’s order granting summary judgment in favor of defendant CSX Hotels, Inc., in a deliberate intent case. The court held that plaintiffs did not demonstrate facts sufficient to support a finding of the first four elements of deliberate intent in a case where plaintiff Tempest Lowman was injured at work by a slip and fall on a wet floor. - Refuse 4- 0 (Benjamin disqualified)

10.  State of West Virginia v. Johnny Habjan - No. 081228. Johnny Habjan appeals the circuit court’s order which revoked his probation and ordered him incarcerated for one year. Petitioner asserts, inter alia, that the circuit court lacked jurisdiction to impose incarceration under the circumstances of his case. - Refuse 5- 0

11.  Mary R. Tyler and Glen R. Tyler v. Speedway SuperAmerica, LLC, d/b/a Speedway SuperAmerica, Rich Oil Company; and Christopher Moore; and Deborah Felton, agents for Speedway SuperAmerica - No. 081238. Plaintiffs below, Mary R. Tyler and Glen R. Tyler, appeal after an adverse jury verdict and the circuit court’s denial of their post-trial Motion for Judgment Notwithstanding the Verdict and for a New Trial. They assert that they proved a claim for sexual harassment, that the court erroneously admitted irrelevant and prejudicial evidence at trial, and that the court erroneously dismissed a claim for intentional infliction of emotional distress.  - Accept to Motion Docket

 12.  State of West Virginia v. Mose R. Haircrow - No. 081252. Mose R. Haircrow appeals his conviction upon conditional guilty plea to Driving While Suspended or Revoked 3^rd Offense. He reserved the right to appeal the denial of his motion to dismiss the indictment. - Refuse 5- 0

 13.  State of West Virginia v. Tyler Baumann - No. 081256. Tyler Baumann appeals his conviction for Involuntary Manslaughter, a misdemeanor. He asserts eleven assignments of error, arguing, inter alia, error in the failure to suppress his statements, jury issues, error in the failure to change the venue, gruesome photographs, instructional error, failure to grant motions for judgment of acquittal, insufficiency of the evidence, and error during the sentencing hearing. - Accept to Motion Docket

14.  City of Dunbar, West Virginia, a West Virginia municipal corporation, by and through its Council v. Roger Wolfe in his official capacity as Mayor of the City of Dunbar, West Virginia; Ron Rowley in his official capacity as Clerk of the City of Dunbar, West Virginia; George Bossie in his official capacity as Chief of the Fire Department of the City of Dunbar, West Virginia; Connie Fulknier in her official capacity as Director of the Parks and Recreation Department of the City of Dunbar, West Virginia; David Nelson in his official capacity of Director of the Public Works Department of the City of Dunbar, West Virginia; and E.E. Whittington in his official capacity as Chief of the Police Department of the City of Dunbar, West Virginia - No. 081189. The City of Dunbar, by its city council, filed a petition for declaratory judgment arguing that Dunbar Mayor Roger Wolfe and Clerk Ron Rowley acted ultra vires and violated the city charter, city personnel policy, and state law by converting, without council approval, city department heads from salaried to hourly employees with overtime benefits. The circuit court entered an "Order Granting Plaintiff’s Motion for Judgment on the Pleadings," from which the defendants mayor and department heads now appeal. - Accept to Motion Docket

 15.  The Board of Education of the County of Putnam v. Bessie Casto and James Henson - No. 081318. The Putnam County Board of Education appeals the circuit court’s order which affirmed the decision of the WV Public Employees Grievance Board. The court and grievance board held that the school board violated the non-relegation statute by terminating two bus operators’ 200 day extracurricular contracts and instead paying them on an "as needed" basis. - Refuse 5- 0

 16.  State of West Virginia v. Jason Allen Perry - No. 081319. Jason Allen Perry appeals his conviction for seven counts of Sexual Abuse by a Parent, Guardian and/or Custodian, three counts of First Degree Sexual Abuse, three counts of Incest, two counts of First Degree Sexual Assault, and one count of Third Degree Sexual Assault. He asserts insufficiency of the evidence, disproportionate sentencing, that his statement to police should have been suppressed, that the court erroneously allowed the indictment to be amended, and ineffective assistance of counsel. - Refuse 5- 0

 17.  Mary P. Boston v. Johnnie L. Boston - No. 081341. Johnnie L. Boston appeals the circuit court’s order which affirmed the family court’s equitable distribution award. He argues that the family court erred by counting, as marital property, the entire marital reduction in debt on his pre-marital asset (a bulldozer). - Refuse 5- 0

 18.  Heather Nicole Landon v. Wachovia Securities, LLC. - No. 081343. The petitioner, Wachovia Securities, LLC, appeals from a February 14, 2008, Order of the Ohio County Circuit Court, which granted Respondent Landon’s Petition to Set Aside the Arbitration Decision awarded to Wachovia by the National Association of Securities Dealers. The Circuit Court ordered that the parties re-arbitrate the matter conditioned upon using a stenographic method of transcription. - Refuse 5- 0

19.  Langley France and Inez France, individually and as the parents and next friends of Robert France, a minor v. Southern Equipment Company, and Quality Metal Roof Manufacturing and Sales, Inc., Third Party Plaintiff v. Dan Hensley d/b/a Royalty Builder, a Third Party Defendant - No. 081348. The Petitioners, Langley and Inez France, as parents and next friend of Robert France, seek to reverse a November 6, 2007, Order granting summary judgment to Defendant Southern Equipment Company. The petitioners had sought monetary damages for a disabling closed head injury suffered by the minor while employed by Royalty Builder, on an industrial roof replacement job at a building owned by Southern Equipment Company in Pecks Mill, West Virginia. - Accept to Motion Docket

 20.  April Dawn Sears v. State of West Virginia - No. 081349. The Petitioner, April Dawn Sears, appeals the Greenbrier County Circuit Court’s Order denying her Motion for Probation. After pleading guilty to One Count of the felony offense of Child Neglect Creating Risk of Injury, the lower court sentenced Petitioner to the State penitentiary for an indeterminate period of not less than one (1) year nor more than three (3) years. On appeal, the Petitioner maintains that she is a candidate for alternative sentencing pursuant to West Virginia Code §62-12-3 (1988). - Refuse 5- 0

 21.  Oscar Dennis Dempsey and Thelma Louise Dempsey v. State Electric Supply Company and Arthur’s Enterprises, Inc. - No. 081352. The Petitioners, Oscar and Thelma Dempsey, appeal decisions and orders entered by the Circuit Court of Cabell County on January 30, 2008, granting partial summary judgment in favor of the Respondents, State Electric Supply Company and Arthur’s Enterprises, Inc., as well as granting Respondents’ Motion in Limine in its entirety. Petitioners alleged eleven counts in their Complaint: 1) age discrimination; 2) disability discrimination; 3) workers’ compensation retaliatory discharge; 4) violation of the West Virginia Human Rights Act, specifically, West Virginia Code §5-11-9; 5) outrageous conduct; 6) retaliatory discharge; 7) breach of employment contract; 8) retaliatory discharge regarding employee benefits; 9) loss of consortium; 10) intentional infliction of emotional distress; and 11) punitive damages. On appeal, Petitioners seek reversal of both rulings by the lower court. - Accept to Motion Docket

 22.  State of West Virginia v. Timothy A. Burdette - No. 081353. The petitioner, Timothy A. Burdette, appeals from an Order dated February 14, 2008, from the Upshur County Circuit Court ordering petitioner’s probation revoked and terminated. The Circuit Court also ordered petitioner to be imprisoned in the Mount Olive Correctional Complex for the indeterminate term and period of not less than one (1) nor more than ten (10) years in light of the petitioner’s plea of guilty and conviction of the felony offense of Receiving Stolen Property. On appeal, petitioner asserts that the lower court should have viewed him as a candidate for alternative sentencing. - Refuse 5- 0

23.  Willis Mills, as executor of the estate of Thelma Ileane Preece v. Deborah Ann Russell, and the Wayne County Board of Education - No. 081283. State Farm Mutual Automobile Insurance Company, the Respondent’s underinsured motorist insurance carrier, appeals from the Wayne County Circuit Court’s Order denying its Motion for Partial Summary Judgment to assert the limited immunity of the $500,000 non-economic damage cap afforded under West Virginia Code §29-12A-7 to, the Defendants below, the Wayne County Board of Education and its employee, Deborah Ann Russell. The Circuit Court ruled that State Farm was not entitled to assert the non-economic damage cap, and that State Farm was only entitled to an offset of $500,000 for non-economic damages. - Refuse 5- 0

24.  Joe Meadows v. J. T. Davenport & Sons, Inc., a North Carolina company, GO-Mart, Inc., and Robert D. Rader - No. 081215. The petitioner, Go-Mart, Inc., appeals the Circuit Court’s denial of post-trial motions following a jury verdict finding all parties equally negligent. The civil action arose from an incident where Respondent Joe Meadows, Jr., was run over by the rear wheels of a delivery truck in a Go-Mart parking lot. - Accept to Motion Docket