September 9, 2004

1.  Independence Coal Company v. Michael O. Callaghan, Secretary, West Virginia Department of Environmental Protection and Matthew B. Crum, Director, WV DEP’s Division of Mining and Reclamation and Stephanie R. Timmermeyer, Secretary, West Virginia Department of Environmental Protection - No. 032220. WVDEP appeals from the circuit court’s order that vacated a ruling by the West Virginia Surface Mine Board. WVDEP seeks a reversal of the circuit court’s order and a reinstatement of the ruling of the Surface Mine Board. 

Accept To Motion Docket

2.  State of West Virginia v. Wesley M. May - No. 040989. Defendant appeals from his convictions on two counts of sexual abuse by a parent and one count of possession of material visually portraying a minor engaged in sexually explicit conduct. Defendant asserts evidentiary errors at trial.

Refuse  5-0

3.  In Re: The Marriage of: Hayden Brewster v. Cordella W. Parris-Brewster - No. 040990. Petitioner husband appeals from the circuit court’s order affirming the family court’s final order in this divorce proceeding. Petitioner challenges whether West Virginia has personal jurisdiction over him and raises error related to equitable distribution, child custody and the award of attorney’s fees.

4.  Richard F. Frye v. Richard L. Frye and Charles E. Frye Farms, Inc. - No. 040991. Defendants appeal from the circuit court’s order granting judgment in favor of plaintiff in this action seeking the dissolution of a family corporation. Defendants also seek a reversal of the circuit court’s decision regarding the stock certificates at issue and its determination that the stock was properly issued. Defendants also seek a remand of this action for a new trial as to the source of funds used to repay a corporate debt.

5.  Gerald Mollohan v. Larry Parsons, Warden, South Central Regional Jail - No. 040994. Petitioner appeals from the circuit court’s order denying his petition for a writ of habeas corpus.

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

6.  Westbrook Health v. West Virginia Division of Labor - No. 041050. Petitioner employer appeals from the circuit court’s order affirming a decision of the Labor Commissioner that certain former employees of petitioner were entitled to unpaid wages for balances under various leave policies upon the termination of their employment.

7.  Mark Wood, Patricia Compton, Jack Cecil, Steve Pierce, Sid Nash v. Accordia of West Virginia, Inc., d/b/a Accordia Mid-Atlantic, Inc.; and Accordia, Inc. - No. 041028. Plaintiffs appeal from the circuit court’s order granting summary judgment in favor of defendants in this action arising out of employment contracts.

8.  In Re: Grandparent Visitation of Cathy L. (Riley) Morrison v. Mark Brent Riley and Carla Ann Riley - No. 041032.  Petitioner parents appeal from the circuit court’s order affirming the family court’s order, which held that grandparent visitation would not substantially interfere with the parent-child relationship and would serve the best interests of the minor child.

9.  Larry O. Barnhart, Sheriff of Pleasants County, and Brenda Barnhart v. Go-Mart, Inc., d/b/a Go-Mart Food Stores - No. 041036. Plaintiffs appeal from the circuit court’s award of summary judgment in this action for personal injuries arising out of an automobile accident.

Refuse  5-0

10.  State of West Virginia v. Kevin L. Patton - No. 041037. Defendant appeals from his convictions following a jury trial on two counts of first degree sexual assault involving his 9-year-old niece. Defendant seeks either a reversal or a new trial alleging various evidentiary and trial errors.

11.  Larry D. Poynter, Administrator of the estate of Thomas A. Wiseman, deceased v. Medical Assurance of West Virginia, Inc., a West Virginia corporation; Medical Assurance, Inc., a Delaware corporation; and ProAssurance, Inc., an Alabama corporation - No. 032303. Plaintiff appeals from an adverse summary judgment order where the court held that post-suit conduct by an insurance company is insufficient to establish a claim under the WV Unfair Trade Practices Act.

12.  State of West Virginia v. Stephen P. Bowers - No. 041044. Petitioner appeals his conviction for three counts of sexual abuse by a custodian, one count of first degree sexual abuse, and two counts of third degree sexual abuse.

13.  Nashala Sydenstricker, as mother and natural guardian of Michael Shawn George, II, an infant v. Petaiah Mohan, M.D. - No. 041045. Plaintiff in a medical negligence lawsuit appeals an adverse jury verdict and asserts several trial errors.

14.  Nashala Sydenstricker, as mother and natural guardian of Michael Shawn George, II, an infant v. Petaiah Mohan, M.D. - No. 041081. Defendant doctor in a medical malpractice case petitions for appeal asserting that the circuit court erred in approving a settlement between the plaintiff and a co-defendant doctor.

15.  State of West Virginia v. John M. Frye - No. 041047. Petitioner appeals the denial of his Rule 35 motion. He was sentenced to life without mercy after he entered a Kennedy v. Frazier plea of guilty to first degree murder. He asserts that the court erred by refusing to order the adult probation officer to conduct a personal interview of him during the preparation of the pre-sentence report.

16.  Edmund P. Grace v. David Lee Popish and City of Weirton, a municipal corporation, and State Farm Mutual Automobile Insurance Company - No. 041027. State Farm petitions for appeal from a summary judgment order. The circuit court held that an insurance policy’s definition of “underinsured motor vehicle” which excludes coverage when the other vehicle is owned by the government is void as against public policy and is contrary to the purpose of the underinsurance statute. 

17.  SER Ricky Carey v. Howard Painter, Warden, Mount Olive Correctional Center - No. 041053. Petitioner appeals the denial of his petition for a writ of habeas corpus. He asserts ineffective assistance of counsel at the trial where he was convicted of first degree murder without a recommendation of mercy.

18.  Concept Mining, Inc. and The Ridge Land Co., Inc. v. Rebecca Melton Craig, State Tax Commissioner of the State of West Virginia - 041055. The State Tax Commissioner petitions for appeal from the circuit court’s order which held that the Commissioner lacks statutory authority to appeal from a certain administrative decision.

19.  Paul Luikart, as Administrator for the Estate of Decedent, Paul Travis Luikart v. Valley Brook Concrete & Supply, Inc. and Motorists Mutual Insurance Company, a mutual insurance company v. Valley Brook Concrete and Supply, Inc. and Paul Luikart as Administrator for the Estate of Decedent Paul Travis Luikart - No. 041057. Plaintiff appeals from the court’s summary judgment order finding that there is no coverage under a commercial general liability policy. 

20.  David A. Layne v. Dustin Drennen, Dominion Transmission, Inc., a corporation authorized to do business in the State of West Virginia; Liberty Mutual Insurance Group, a corporation authorized to do business in the State of West Virginia; and Associated Electric and Gas Insurance Services Limited, a corporation doing business in the State of West Virginia - No. 041058. Plaintiff, who while driving his employer’s vehicle was injured by an uninsured driver, appeals from the circuit court’s order finding that there is no insurance coverage under an excess liability policy held by plaintiff’s employer.

21. State of West Virginia v. Glen Ferguson, Jr. - No. 041076. Petitioner appeals from the circuit court’s order sentencing him to life in prison under the habitual offender statute. 

22. Julie K. McMammon, M.D. v. William L. Frame and the West Virginia Trial Lawyers Association - No. 041082.  Plaintiff appeals from the circuit court’s order granting summary judgment in favor of defendants. Plaintiff, a doctor, asserts that the defendants, a lawyer trade association and its former president, engaged in a civil conspiracy which has resulted in frivolous lawsuits against doctors and higher medical malpractice insurance premiums for plaintiff.

23. State of West Virginia v. James Franklin Tawney - No. 041093. Petitioner appeals his conviction for driving under the combined influence of alcohol and a controlled substance, third offense.

24. State of West Virginia v. Roby Mason Bradley - No. 041096. Petitioner appeals his conviction for three counts of murder in the first degree with a recommendation of mercy and one count of first degree arson.

25.  CSX Hotels Inc. d/b/a The Greenbrier Resort, a West Virginia corporation v. City of White Sulphur Springs, West Virginia, Debra Jo Fogus, Chris Hanna, Paul Hobbs, James Hylton, Delores Mattox, Don McCoy and Rick Romeo and Frederick W. Kretzer, Carolyn B. Kretzer, and The Greenbrier Sporting Club Development Company, LLC, a Delaware limited liability company v. City of White Sulphur Springs, West Virginia, Debra Jo Fogus, Chris Hanna, Paul Hobbs, James Hylton, Delores Mattox, Don McCoy and Rick Romeo - No. 041097. The City of White Sulphur Springs appeals the circuit court’s order which permanently enjoined the City from proceeding on a January 2003 petition for annexation.

26.  State of West Virginia v. Warren Dempsey, Jr. - No. 041099. Petitioner appeals his conviction for felony murder with the underlying felony of distribution of a controlled substance. He was sentenced to life with mercy.

27. State ex rel. John Shannon and Jean Ann Shannon v. Shane M. Shamblin and Robert Harrison - No. 041046. This is a suit against two Putnam County Sherif’s deputies for abuse of process and alleged brutality. Petitioner files an appeal from the circuit court’s order dismissing the deputies from the suit. 

28. Bob H. Davis v. City National Bank, formerly Home National Bank - No. 041083. This appeal involves a jury verdict for the respondent for $141,772 in compensatory damages and $25,000 in annoyance and convenience following a disputed delinquent loan of $250,000 to develop a residential subdivision. Petitioner seeks reversal and a new trial or remittitur of damages upon the verdict.

29. Constance Buffey v. Harrison County Board of Education - No. 041092. Petitioner files an appeal from the circuit court’s order setting a cap on the amount of attorney’s fees awarded to the petitioner, who was the prevailing party in this case. The Court held that a later passed statute, Code 18-29-8, which allows for “reasonable attorney fees” but contains no set monetary limit, is superceded by the monetary cap contained in Code 18A-2-11, passed many years previously. 

30. State of West Virginia v. Ronnie Lynn Legg - No. 041127. Petitioner files a direct appeal from her conviction of Wrongful Removal of Timber in an amount greater than $1000. Petitioner moved for a new trial, but the motion was denied. On appeal, the petitioner seeks a reversal and new trial. 

31. State of West Virginia v. Orlando Twyman - No. 041128. Petitioner entered into a guilty plea to crimes of Robbery in the First Degree, Malicious Assault, Assault During Commission of a Felony, Nighttime Burglary, Grand Larceny, Petit Larceny and Conspiracy, all charges arising from the same set of facts. He was sentenced to forty (40) years of First Degree Robbery with the other charges suspended or ordered to run concurrently. Petitioner filed a motion for reduction of sentence, which was denied. Petitioner files a direct appeal from the circuit court’s order in an attempt to have his plea of guilty set aside . 

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