January 29, 2009 Requests for Oral Presentation and Petitions for Appeal

West Virginia Supreme Court of Appeals

Requests for Oral Presentation
and

Petitions for Appeal

January 29, 2009

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. In Re: Arcelormittal Weirton, Inc. v. Joseph Alongi, Assessor of Hancock County - No. 082079. Taxpayer appeals from the circuit court’s order upholding the decision of the Hancock County Commission sitting as the Board of Equalization and Review in relation to ad valorem property tax assessments issued by respondent County Assessor. Taxpayer alleges that it was denied its right to meaningful judicial review and asserts that the County Commission abused Taxpayer’s constitutional right to due process of law in the context of the County Commission’s review of the assessed values of Taxpayer’s real estate. Refuse 5- 0

2. Jimmie A. Ryder, Jr., and Violet Ryder v. John Neil Ralston and Mary Ella Ralston - No. 081758. Petitioners appeal from the circuit court’s order finding that respondents had proved all elements necessary to establish that their use of a road was continuous, exclusive, and uninterrupted beyond ten years. Petitioners assert that respondents have another means of ingress and egress to the subject property and that the circuit court committed numerous errors justifying a reversal. Refuse 5- 0

3. Tracey Ann Ross and Darcie Lynn Christopher, Co-Administrixes of the Estate of Donna H. Evans v. Hazem A. Ashhab, M.D. - No. 082172. Defendant physician appeals from the circuit court’s order granting plaintiffs’ motion for a new trial in this medical malpractice action. Defendant asserts that there was no evidentiary error and that the jury verdict should be reinstated .Accept to Motion Docket

4. Thomas Firriolo v. Evan LeFever and Beth L. LeFever and Anne Chiapella and John Frye - No. 082177. Defendants LeFever appeal from the circuit court’s order reforming a settlement agreement entered into four years earlier and by ordering relief that is grossly unfair to the LeFevers. This action began as a breach of contract case with plaintiff Firriolo suing defendants to enforce an alleged oral contract to move an easement from one location to another. Defendants LeFever seek a reversal. Grant 5- 0.

5. Christopher Bradley Carlyle, individually and as parent of Noah Carlyle and Justice Marie Carlyle, and Samantha Dawn Carlyle, individually and as parent of Justice Marie Carlyle v. Kenley Reaves, Phil Lemon, and the West Virginia University Board of Governors - No. 082176. Petitioner Christopher Carlyle seeks a reversal of the circuit court’s order granting defendants’ partial summary judgment ruling that there could be no claim for loss of consortium for Samantha Carlyle. This action arises out of an altercation involving plaintiff and defendants at a time when all were employed by the West Virginia University Board of Governors. At the time of the altercation, plaintiff and Samantha Carlyle were not married, but were married approximately one month later. Refuse 5- 0

6. In Re The Child of: Donna Sue Skidmore v. Walter Burker Skidmore - No. 082214. Petitioner husband appeals from the circuit court’s order refusing to hear his appeal from the family court, which awarded retroactive child support based upon petitioner husband’s failure to provide tax returns to respondent mother. The family court also denied a modification of child support when it granted respondent mother’s motion to modify the parenting plan because petitioner had not formally moved to modify child support in his pleadings, even though the court found that a change in excess of 15% occurred. Petitioner husband seeks a reversal of the award of retroactive child support and a reversal of the refusal to modify the current support obligation. Accept to Motion Docket.

7. In Re the Marriage of: Judith L. King v. Charles E. King, Jr. - No. 082230. Petitioner wife files this direct appeal from a final order entered by the family court granting respondent husband’s petition to modify two identical qualified domestic relation orders ("QDROS"), which were entered pursuant to an agreed final decree of divorce. Respondent husband sought to modify the QDROs to make the calculation date the date of separation instead of the date of payout. The family court granted the petition to modify and required that the QDROs be drawn to reflect the financial positions and entitlements of the parties at the time of the final hearing and that the period of entitlement should reflect from the date of marriage to the date of the final hearing. Grant and Remand 3-0 (Davis, J., Workman, J. not participating)

8. State of West Virginia v. Jackie Lee Hebb - No. 082243. Jackie Lee Hebb appeals his conviction for possession of a stolen vehicle. He asserts a double jeopardy violation in that he was also tried for, but acquitted of, receipt of stolen goods, to wit, the same vehicle. Refuse 5- 0

9. Stanley W. Dunn, Jr. and Katherine B. Dunn v. Douglas S. Rockwell, Carol K. Rockwell, and Martin and Seibert, L.C. - No. 082244. Stanley W. Dunn, Jr. and Katherine B. Dunn appeal the circuit court’s orders granting adverse summary judgment and dismissing their claims against defendants Carol K. Rockwell and Martin & Seibert, L.C. pursuant to the statute of limitations. Grant 5- 0.

10. In re: The Marriage of John G. Chapman v. Louise G. Millikan - No. 082247. John G. Chapman appeals the circuit court’s order affirming the family court’s order after a previous remand. He asserts that the family court erred when awarding his ex-wife permanent spousal support and when not making a certain offset to equitable distribution. Refuse 5- 0

11. Howard Wrenn and Sandra Belcher, as Natural Parents and Co-Administrators of the Estate of Matthew Wrenn, and Angelia Harper, as Natural Mother and Administrator of the Estate of Justin Janes v. The West Virginia Department of Transportation, Division of Highways - No. 082248. The plaintiffs appeal the circuit court’s order granting the defendant Division of Highways’ motion to dismiss. The court found that exclusionary Endorsement No. 7 to the State’s liability insurance policy means that there is no coverage for the plaintiffs’ claims, thus the defendant enjoys sovereign immunity and the court lacks subject matter jurisdiction. The plaintiffs argue that the court erred in its reading of the endorsement and erred by not holding that the endorsement is void as against state law and public policy. Grant 5- 0.

12. Debra Sue Bumgarner, Plaintiff v. City National Bank of West Virginia, Defendant and Third-Party Plaintiff v. Robert Edward Bumgarner, Third-Party Defendant - No. 082249. Defendant City National Bank of West Virginia appeals various rulings in a case where plaintiff Debra Sue Bumgarner asserted that the bank negligently allowed her husband to use a Special Power of Attorney to withdraw money from her saving account. Ms. Bumgarner has filed a separate petition for appeal in this case, petition no. 082250. Refuse 5- 0

13. Debra Sue Bumgarner, Plaintiff v. City National Bank of West Virginia, Defendant and Third-Party Plaintiff v. Robert Edward Bumgarner, Third-Party Defendant - No. 082250. Plaintiff Debra Sue Bumgarner appeals the circuit court’s orders which did not award her attorney’s fees with respect to defendant City National Bank of West Virginia’s denial of certain discovery requests for admission. City National Bank has filed a separate petition for appeal in this case, petition no. 082249. Refuse 5- 0

14. Geovoni Jones, Administratrix of the Estate of Jimmie Joe Jones, deceased, and Misty Ann Calvert v. City of Fairmont, a municipal corporation, Wal-Mart Stores, Inc., Kelly Moran, John Doe 1 and John Doe 2 - No. 082173. This case arises from a Complaint wherein the Petitioners sought recovery from the Respondents for compensatory and punitive damages for intentional or negligent infliction of emotional distress. The Petitioners sued the City of Fairmont for allegedly converting some of the decedent’s property. The Marion County Circuit Court granted Respondent’s Motion to Dismiss for failure to state a cause of action pursuant to West Virginia Rule of Civil Procedure 12(b)(6). Refuse 5- 0

15. Martha Y. Walker, Secretary of the West Virginia Department of Health and Human Resources v. V. S., by her legal guardian Nancy Benson - No. 082277. In this Medicaid claim, the Department of Health and Human Resources initially found that the Claimant no longer met the criteria for continued eligibility for the Mentally Retarded/Developmentally Delayed Home and Community-Based Waiver Program. The Circuit Court of Kanawha County issued a Final Order dated July 17, 2008, finding that V. S. meets this requirement, and that she meets at least three areas of substantial adaptive deficits, out of the possible six as required for her to remain on Waiver status. Defer.

16. State of West Virginia v. Spicey Jean Allen - No. 082266. Petitioner, Spicey Jean Allen, appeals the Mercer County Circuit Court’s Order which denied Petitioner’s Motion for Correction of Sentence and adjudged her guilty of Attempt to Commit a Felony. On appeal, Petitioner requests that this Court release her from imprisonment due to the fact that she has already served the statutory sentence for the crime. Grant 5- 0.

17. Brandon Blackmon v. Thomas McBride, Warden - No. 082294. Petitioner, Brandon Blackmon, appeals from an Order entered by the Logan County Circuit Court which denied petitioner’s Habeas Corpus relief. Petitioner seeks a reversal of the lower court’s Order and a remand for a new trial. Accept to Motion Docket.