October 25, 2007 Requests for Oral Presentation and Petitions for Appeal

West Virginia Supreme Court of Appeals

Requests for Oral Presentation
and

Petitions for Appeal

October 24, 2007

1. STATE EX REL. TROOPER MIKE LYNCH and MEMBERS OF THE 42^ND AND 43^RD CLASSES OF THE WEST VIRGINIA STATE POLICE Similarly Situated; and In re: DAWN C. BLAND and AUTUMN NICOLE BLAND, an Infant, Wife and Daughter of Trooper Douglas Wayne Bland; and All MEMBERS OF THE 43^RD, 44^TH, AND 45^TH CLASSES OF THE WEST VIRGINIA STATE POLICE Similarly Situated v. JOSEPH J. JANKOWSKI, JR., Executive Director of the West Virginia Consolidated Public Retirement Board, an Agency of the State of West Virginia; TERASA ROBERTSON, Deputy Director and Former Acting Co-Executive Director of the West Virginia Consolidated Public Retirement Board, an Agency of the State of West Virginia; J. MICHAEL ADKINS, Former Acting Co-Executive Director of the West Virginia Consolidated Public Retirement Board, an Agency of the State of West Virginia; and THE WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, an Agency of the State of West Virginia - No. 072530. Petitioners present this petition for appeal arising out of the circuit court’s order of certification as follows:

"1. Can promises by a state agency given to prospective employees on pension benefits bind the Consolidated Retirement Fund to honor the promised benefits if said promises are inconsistent with the statutory pension requirements and statutorily entitled benefits of the fund?"

ANSWER: No, as a matter of law. Refuse 3-2 (Starcher, Maynard)

2. Coye B. Taylor v. Howard Painter, Warden, Mount Olive Correctional Complex and, successors and assign - No. 062741. Petitioner appeals from the circuit court’s order denying his petition for habeas relief alleging ineffective assistance of counsel contending counsel failed to subpoena and preserve testimony of key defense witnesses and for conceding guilt. Petitioner also raises double jeopardy issues. Accept to Motion Docket

3. Kimberly Landers Beller v. Thomas Wayne Landers and Tammy Caroline Landers - No. 072241. Petitioner appeals from the circuit court’s order entered in this matter seeking to set aside an adoption wherein petitioner alleged adoption order was fraudulently obtained. Refuse 4-1 (Starcher)

4. Stephen I. Hill v. Tamara Susan Paull - No. 072245. Petitioner father appeals from the circuit court’s order to the extent it failed to reverse the family court’s decision on significant issues regarding child’s extracurricular activities during father’s parenting time and other issues regarding shared parenting. Accept to Motion Docket

5. Stephen I. Hill v. Tamara Susan Paull - No. 072882. Petitioner mother seeks a reversal of various rulings by the family court and by the circuit court regarding shared parenting plans. Accept to Motion Docket

6. William T. Smoot, II, by his next of friend, Kari Major v. American Electric Power, Verizon of Charleston, Inc. and Charter Communications, Inc. - No. 072201. Plaintiff appeals from the circuit court’s order granting summary judgment in favor of defendants in this personal injury action brought against defendants alleging negligence. Accept to Motion Docket

7. Dr. James G. Gibson, Co-Trustee of the Newton Gibson Trust, et al. v. Jefferson County Planning Commission - No. 072284. Petitioner Planning Commission appeals from the circuit court’s order finding that the Planning Commission had violated the county’s subdivision ordinance by not rendering a decision within 60 days of final plat submission; that the plaintiff had not waived the 60-day requirement; that such violation required an automatic approval of the final plat; and, that final plat approval was granted. The Planning Commission seeks a reversal of the circuit court’s order and reinstatement of the Commission’s decision denying the applicant’s final plat for the proposed subdivision. Refuse 5-0

8. Dr. James G. Gibson, Co-trustee of the Newton Gibson Trust and Rodney Frye, Co-trustee of the Newton Gibson Trust v. Jefferson County Planning Commission, et al. - No. 072285. Petitioners appeal from the circuit court’s order refusing to award them attorney’s fees and costs and in refusing to rule upon allegations of misconduct raised before the circuit court. Refuse 5-0

9. Joseph Fauble, Rebecca Fauble, and Nationwide Mutual Fire Insurance Co. as Subrogee of Joseph and Rebecca Fauble v. Alex E. Paris Contracting, Inc. v. Nationwide Mutual Fire Insurance Co., Inc., Third-Party Defendant - No. 071982. Plaintiffs appeal the circuit court’s order denying their petition for attorney’s fees and costs involving subrogation claims by insurance carrier. Grant 5-0

10. Melvin Heckel and Betty Heckel v. Kenneth E. D’Amato, D.O. - No. 063145. Defendant below, Kenneth E. D’Amato, D.O. appeals from an adverse judgment in a medical negligence case. He asserts multiple trial errors and that the circuit court improperly calculated the final judgment amount. Refuse 5-0

11. Gloria Vernice Coleman v. Wal-Mart Stores East, L.P.- No. 072302. Defendant Wal-Mart Stores East, L.P. appeals the circuit court’s order granting a motion for new trial in this slip and fall case. Accept to Motion Docket

12. Frank D. M. v. Melissa N. C. - No. 072303. Frank D.M. appeals the circuit court’s order which affirmed the family court’s denial of his motion for reconsideration in a child custody case involving issues of admissibility of testimony of counselor or psychologist. Defer

13. State of West Virginia v. Joseph Edward Metz - No. 072305. Joseph Edward Metz appeals his conviction for one count of felony Displaying Obscene Matter to a Minor. He asserts trial and post-trial errors regarding elements of proof and admissibility of videotape evidence and whether court properly advised petitioner of sexual offender registration requirements. Defer

14. State of West Virginia v. Jeffrey E. Sigman - No. 072283 Jeffery E. Sigman appeals his conviction for one count of Sexual Abuse in the First Degree raising issues of Rule 404(b) and alibi evidence. Refuse 4-1 (Albright)

15. State of West Virginia v. Earl M. Rutherford - No. 072291. Earl Monty Rutherford appeals the enhanced sentence he received pursuant to W.Va. Code § 60A-4-408 upon his conviction for delivery of a controlled substance. Accept to Motion Docket

16. SER Stephen Westley Hatfield v. Howard Painter, Warden Mount Olive Correctional Complex - No. 072342. The State/Warden appeals the circuit court’s summary judgment order granting habeas corpus relief, setting aside Stephen Hatfield’s convictions for First Degree Murder and two counts of Malicious Wounding, and reinstating the original indictment. Grant 2-2 (Maynard Disqualified) (Starcher, Albright)

17. Cynthia Woody v. Division of Rehabilitation Services - No. 072229. Cynthia Woody appeals the circuit court’s order which affirmed the grievance board’s denial of her state employee grievance concerning her demotion, reduction in pay, and transfer. Refuse 5-0

18. State of West Virginia v. Dale Alwin Weidenhammer, Jr. - No. 072292. Petitioner appeals his conviction for one count of First Degree Sexual Abuse, one count of First Degree Sexual Abuse and two counts of Sexual Abuse by a Parent, Guardian or Custodian. Petitioner was sentenced to serve 25 to 45 years in the West Virginia Department of Corrections. On appeal, the petitioner seeks a new trial raising issues regarding Rule 404(b) evidence, expert testimony, other evidentiary issues as well as juror misconduct. Accept to Motion Docket

19. Rhonda J. Clark, et al. v. Charles Scott, Jr. - No. 072293. The petitioner appeals from a lower court’s order denying her request for a new trial. The petitioner asserts on appeal that the jury awarded only a small percentage of past medical bills and no future damages of any kind, which makes the verdict inadequate. Refuse 4-1 (Starcher)

20. State of West Virginia v. William Lee Wright - No. 072294. The petitioner appeals from the circuit court’s denial of his Motion for Acquittal, the conviction, and the Order denying petitioner’s post-trial Motions. Petitioner was convicted by a jury on three counts of sexual assault in the first degree and three counts of sexual abuse by a parent, guardian, or custodian. Petitioner raises issues regarding the admission of a confession, the Confrontation Clause, and statements concerning a polygraph examination. Refuse 5-0