Nov. 29
Michael Wallace, father and next friend of S.W., a minor vs. Jodi Ann Dokes
PA-Lawrence M. Schultz; J-Christopher Wilkes
*Plaintiff says on Feb. 10, 2008, his minor son was walking on LaBonte Drive when the defendant’s vehicle struck the child. Wallace claims negligence as the minor was injured in excess of $37,000 with possible future medical issues and damages. He seeks damages to be determined at trial.
Case Number: 12-C-923

Dec. 4
Rudolph L. Ferguson vs. Record Town, Inc. d/b/a F.Y.E. #1592 and Reid Carper
PA-Ben Crawley-Woods; J-Christopher Wilkes
*Plaintiff claims that in the latter part of 2011, he visited the defendant’s store and wrote a check for purchases. Instead of “ten” he inadvertently wrote “teen.” Plaintiff alleges that Defendant Carper or someone else at store took photo of his check with a camera phone and posted it on Twitter and later on any number of social media sites. Plaintiff claims intentional infliction of emotional distress, negligence, and invasion of privacy. Plaintiff seeks compensatory and punitive damages to be determined at trial.
Case Number: 12-C-929

Dec. 6
Citibank N.A. vs. Kelly L. Hoover aka Kelly L. Daly
PA-Rebecca W. Wright; J-Christopher Wilkes
*Plaintff claims the defendant owes at least $33,255.46 for past due credit agreement.
Case Number: 12-C-941

Dec. 9
Kasey J. Murphy vs. West Virginia Weight & Wellness Inc. and Tressie M. Duffy, M.D.
PA-Ben Crawley-Woods; J-Christopher Wilkes
*Plaintiff claims the defendant fraudulently billed for service, gave unauthorized information about patient information, and committed unlawful prescription practices. Plaintiff alleges the defendants violated WV Code 16-29-1 failing to provide written records to Plaintiff. Plaintiff alleges negligence and malpractice in treatment at the defendant’s practice and seeks relief and compensation to be determined at trial.
Case Number 12-C-953

Dec. 10
DAR LLC vs. Berkeley County Public Service Water District, Paul Fisher in his official capacity as Executive Director, Greg Rhoe, in his official capacity as Chairman of the Board, Bruce Dorsey, in his official capacity as a Board Member, Wayne Dunham, in his official capacity as a Board Member, Lynn Leatherman, in her official capacity as a Board Member, Ruby Kern, in her official capacity as a Board Member
PA-Richard G. Gay; J-Gray Silver, III
*Plaintiff claims that DAR was constructing an apartment complex in Berkeley County that was to have public water and sewer via Berkeley County. Contracts written were based on a CIF payment system, DAR says. The CIF payment system was discontinued in 2012 by the Public Service Commission, DAR says. In 2009 and 2011, Plaintiff reached agreements with defendants based on the CIF payment system, DAR says. Plaintiff claims defendants will not release Plaintiff from contracts that were based on a tariff that no longer exists. DAR claims to have sent new agreements to work with the defendant, however defendant refuses. DAR seeks damages, declaratory judgment and costs all to be determined at trial.
Case Number: 12-C-954

Dec. 13
Shad O’Brien, as parent, next friend and guardian of Tasheena Guyer, a minor vs. Jesse L. Gibson and Ronald G. VanHorn
PA-Mark Jenkinsen; J-Gray Silver, III
*Plaintiff claims on April 6, Guyer was a passenger in vehicle that was owned by VanHorn and driven by Gibson. Allegedly alcohol played a factor in an accident. Plaintiff claims negligence and claims minor has suffered injuries in excess of $38,900. Plaintiff seeks compensatory and punitive damages to be determined at trial.
Case Number: 12-C-963

Dec. 26
Bank of America NA vs. Dawn Y. Covington and Calvin Covington
PA-Rebecca W. Wrights; J-Christopher Wilkes
*Plaintiff claims defendant owes at least $55,600.81 for past due credit agreement.
Case Number: 12-C-995

Dec. 26
Bank of America NA vs. Michael S. McClain
PA-Rebecca W. Wright; J-Christopher Wilkes
*Plaintiff claims defendant owes at least $51,421.69 for past due credit agreement.
Case Number: 12-C-998

Dec. 26
Deutsche Bank Natioanl Trust Company, as Trustee for Home Equity Loan Asset-Backed Trust vs. Teresa Taylor AKA Teresa L. Taylor, AKA Teresa Lynn Harwill
PA-Rebecca W. Wright; J-Christopher Wilkes
*Plaintiff claims defendant owes at least $71,858.77 for past due credit agreement.
Case Number: 12-C-1001

Dec. 26
United Bank, Inc., a West Virginia banking corporation, successor by merger to Centra Bank Inc. vs. Michael E. Keller and Michele J. Keller
PA-Andrew C. Woofter, III; J-Gray Silver, III
*Plaintiff claims defendant owes at least $24,205.49 for past due credit agreement.
Case Number: 12-C-1002

Dec. 21
Natoma Baker, Cora May, Alisa Briles and Traci Hess vs. Riverbend Membership Corporation
PA-Gregory A. Bailey; J-Christopher Wilkes
*Plaintiffs claim discriminatory conduct in violation of West Virginia Human Rights Act. They allege election of Hank Henson to Board of Directors in 2010 started use of derogatory and inappropriate sexual remarks to plaintiffs. Plaintiffs filed formal complaints. All were terminated. They allege gender discrimination, hostile work environment, unlawful retaliation. They seek actual, punitive and other damages to be determined at trial as well as all other fees.
Case Number: 12-C-1007

Dec. 21
Traci Hess vs. Riverbend Membership Corporation
PA-Gregory A. Bailey; J-Christopher Wilkes
*Plaintiff claims discriminatory conduct in violation of West Virginia Human Rights Act. She alleges election of Hank Henson to Board of Directors in 2010 started use of derogatory and inappropriate sexual remarks to her. Plaintiff filed formal complaints. Plaintiff was terminated. She alleges gender discrimination, hostile work environment, unlawful retaliation. She seeks actual, punitive and other damages to be determined at trial as well as all other fees.
Case Number: 12-C-1008

Dec. 21
Alisa Briles vs. Riverbend Membership Corporation
PA-Gregory A. Bailey; J-Christopher Wilkes
*Plaintiff claims discriminatory conduct in violation of West Virginia Human Rights Act. She alleges election of Hank Henson to Board of Directors in 2010 started use of derogatory and inappropriate sexual remarks to plaintiff. Plaintiff filed formal complaints. Plaintiff was terminated. She alleges gender discrimination, hostile work environment, unlawful retaliation. She seeks actual, punitive and other damages to be determined at trial as well as all other fees.
Case Number: 12-C-1009

Dec. 21
Cora May vs. Riverbend Membership Corporation
PA-Gregory A. Bailey; J-Christopher Wilkes
*Plaintiff claims discriminatory conduct in violation of West Virginia Human Rights Act. She alleges election of Hank Henson to Board of Directors in 2010 started use of derogatory and inappropriate sexual remarks to plaintiff. Plaintiff filed formal complaints. Plaintiff was terminated. She alleges gender discrimination, hostile work environment, unlawful retaliation. She seeks actual, punitive and other damages to be determined at trial as well as all other fees.
Case Number: 12-C-1010

Dec. 27
United Bank, Inc., a West Virginia Banking Corporation, successor by merger to Centra Bank vs. Jason E. Gochenour
PA-Andrew C. Woofter, III, J-John Yoder
*Plaintiff claims defendant owes at least $23,153.81 for past due credit agreement.
Case Number: 12-C-1012

Jan. 4
Franklin W. James, Jr. vs. Bank of American NA by merger with BAC Home Loans servicing LP Power Mortgage and Financial Solutions, Inc; Fidelity & Deposit Company of Maryland, and John Doe, Holder
PA-Andrew C. Skinner J-Christopher Wilkes
*Plaintiff alleges predatory lending by defendant. He alleges in 2006, plaintiff’s property was sold in foreclosure, and hee sought to repurchase in 2008. Plaintiff alleges Defendant offered loans on an appraisal of $150,000. No written appraisal was provided, the complaint says. Plaintiff alleges breach of fiduciary duty, illegal loan, force-placed insurance. Plaintiff seeks all actual damages and civil penalties on each count as well as whatever fees/penalties jury awards.
Case Number: 13-C-4

Jan. 9
Larry F. Linton, Jr. and Amanda Linton vs. Piedmont Medical Laboratory and Clarke, Frederick-Winchester Credit and Collection Bureau, Inc.
PA-Sarah A. Hinkle; J-Christopher Wilkes
*Plaintiff alleges violation of the West Virginia Consumer Credit and Protection Act. Plaintiff seeks actual, punitive and all damages affordable by law.
Case Number: 13-C-53

Jan. 18
Lewis W. Barlow vs. West Virginia Regional Jail and Correctional Facility Authority
PA-Sherman L. Lambert, Sr.; J-Christopher Wilkes
*Plaintiff alleges wrongful termination and retaliatory discharge from his position as administrator at Eastern Regional Jail. Plaintiff seeks reinstatement, front pay of $250,000, compensatory damages of $250,000 and punitive damages of $1 million, as well as any other fees awarded by jury.
Case Number: 13-C-68

Faircloth

CHARLESTON – Larry V. Faircloth, an Inwood land developer who recently announced his candidacy for the U.S. House of Representatives, has lost his appeal of a Public Service Commission order that granted him the relief he sought, but did not give him the relief on the terms he wanted.

Faircloth, a former member of the state House of Delegates, announced last week that he would seek the 2nd Congressional District seat being vacated by Rep. Shelly Moore Capito. Capito has announced that she will seek the Senate seat of retiring Sen. Jay Rockefeller, D-W.Va. Faircloth and Capito are both Republicans.

The opinion was issued per curiam, with the author anonymous.

“In 2004, the Berkeley County Water District and Sewer District filed requests with the PSC to charge capacity improvement fees (CIFs) due to rapid population growth in Berkeley County that was projected to overload the capacity of existing water and sewer plants,” the opinion says.

“The CIF was a one-time fee charged to developers in Berkeley County. The PSC states that a CIF charge represents the future cost to a utility of developing capacity to meet growth in customer demand. A CIF is meant to offset the cost a utility will be required to incur, and its existing customers must pay, to expand and construct the capacity to meet and serve the new demand in an area experiencing rapid growth.”

On Feb. 27, 2009, Faircloth filed a complaint against the Sewer and Water Districts, requesting that the PSC rescind the CIFs “until the economic, factual basis upon which they were created returns and further hearings are had to determine that any CIF sought is reasonable, just and void of any sort of discrimination against developers and builders.”

The PSC investigated the issue and held evidentiary hearings in which Faircloth and the districts participated. A briefing schedule was established for the parties but one week before the initial round of briefs were due, Faircloth filed a declaratory judgment action in the Circuit Court of Berkeley County, seeking relief from paying the CIFs, according to the opinion.

This is the same remedy he sought from the PSC.

The circuit court ruled in favor of Faircloth, finding that the PSC lacked jurisdiction to establish the CIFs. In response, the districts appealed to the Supreme Court and in February 2011, the court found that Faircloth had failed to exhaust his administrative remedies before the PSC when he filed the circuit court suit before the PSC had the opportunity to rule on the issue.

The opinion says, “In December 2011, the PSC heard testimony regarding the continuing need for CIFs. After hearing this testimony and considering briefs filed by both Faircloth and the Water and Sewer Districts, the PSC issued a May 9, 2012, final order discontinuing the CIFs. The PSC’s order explained that:

“CIFs are intended to address only rapid and unexpected capacity depletion that can be traced to extreme growth levels from new customers. Absent the compelling circumstances of (i) rapid and continued population growth, and (ii) a near-term exhaustion of system-wide capacity, CIFs are not warranted. To that end the Commission (PSC) created criteria to determine whether it was appropriate to charge a CIF. The recent economic downturn has slowed growth, and the Districts are no longer in immediate danger of exhausting the capacity of their respective treatment plants. Because the Districts no longer meet the criteria that were set by the Commission (PSC) and accepted by the District, it is appropriate to discontinue those fees.”

After the PSC issued the order discontinuing the CIFs, the districts filed petitions for reconsideration and Faircloth responded with motions arguing against reconsideration. The PSC denied the petitions for reconsideration and ordered the districts to return any CIFs collected subsequent to the May final order.

“Faircloth obtained the relief it sought on the central issue before the PSC – the elimination of the capacity improvement fees. Thereafter, the PSC agreed with Faircloth and denied the Water and Sewer Districts’ petitions for reconsideration. Nevertheless, Faircloth filed the present appeal of the PSC’s May 9, 2012, order,” the Court wrote.

Faircloth argued that the PSC had erred by: (1) concluding that it had the jurisdiction to establish the CIFs; (2) concluding that a CIF is a charge rather than a tax; (3) failing to recognize the Local Powers Act which authorized the imposition of “impact fees” only after the county has implemented a comprehensive zoning ordinance; (4) failing to recognize that the Community Infrastructure Investment Project Act makes the assessment of a CIF unnecessary when a builder constructs its own improvements; and (5) assuming the Districts had a right to establish the fees, the PSC “arbitrarily and capriciously” indentified May 9 as the date the districts no longer met the criteria necessary to support the CIFs.

The Court, however, never reached those arguments.

“Faircloth has asserted inconsistent positions regarding the PSC’s May final order – first requesting that the PSC deny the petitions for reconsideration and enforce that order, then appealing the order to this Court asking that it be reversed. Our law is clear that Faircloth is judicially estopped from challenging the May final order,” the court declared.

“Faircloth’s motions in opposition to the petitions for reconsideration did not contain any of the arguments raised in this appeal. Nor did Faircloth file its own petition for reconsideration asking the PSC to affirm the portion of the order it agreed with, and to reverse the portion of the May final order that it subsequently challenged in this appeal. Instead, Faircloth adamantly argued that the petitions for reconsideration be denied and urged the PSC to enforce its May final order without any reservation.

“Faircloth received a benefit by prevailing in its motion to deny the petitions for reconsideration: it was no longer required to pay the CIFs that it had challenged. Additionally, the PSC ordered the Water and Sewer Districts to refund any CIFs they had collected since the May final order was entered.

“Faircloth obtained the relief it sought on the central issue before the PSC. It successfully opposed the petitions for reconsideration filed by the adverse parties. Faircloth then requested that this Court reverse the PSC’s May final order so that it could obtain additional relief.

“To permit Faircloth to take inconsistent positions in this case impedes rather than promotes, the truth-seeking function of the judiciary and thereby hinders public confidence in the integrity of the judicial process.

“Having applied the facts of this case to the elements of our judicial estoppel test, we conclude that Faircloth is judicially estopped from challenging the errors it alleges are contained in the PSC’s May final order.”

MARTINSBURG – A Berkeley County man’s four-year old lawsuit against the West Virginia State Police has come to end.

U.S. District Judge John Preston Bailey on Feb. 3 dismissed Steven S. Witt’s civil rights suit after the sides not only agreed to settle it, but also substitute the three troopers – J. J. Bowman, J.D. Burkhart and J.B. Flanigan – originally named in the suit with the State Police as the lone defendant. The terms of the settlement were not disclosed in court records.

However, according to the state Board of Risk and Insurance Management, Witt, 46, received $50,000. No details where given as to how he was to split that with his attorneys David M. Hammer, Harry P. Waddell, Christopher P. Stroech and Gregory A. Bailey.

Jason P. Foster and Lucien G. Lewin with Steptoe and Johnson received $125,021.45 for their services in defending WVSP. An additional $5,614.75 was paid to Stephen W. Cogar, Craig A. Wilger and Alessandra Fichera to conduct mediation at different stages of the case.

According to his suit originally filed on Oct. 16, 2008, in Berkeley Circuit Court, Witt, on Jan. 8, 2007, was returning from dinner with his girlfriend and three children. They are not identified in court records.

As they were pulling into the girlfriend’s home in Inwood, Bowman pulled in behind them and activated the lights on his cruiser. Shortly thereafter, Burkhart and Flanigan came on the scene.

According to the suit, the troopers where searching for a man named Dale Anderson who was wanted for, among other things, attempting to disarm and assault another trooper. Bowman approached them after receiving information Anderson could be found with Witt’s girlfriend.

Despite both Witt and his girlfriend denying he was Anderson, the troopers allegedly asked him to produce identification. Though initially reluctant to do, the suit maintains Witt did, only to have them attack and pull him out of the vehicle.

In his suit, Witt said the attack was “without provocation or justification.” Also, he maintained he “did not resist the troopers at any time.”

Nevertheless, he was first taken to the hospital, then to jail where he stayed overnight, he says.

According to the Herald-Mail of Hagerstown, Md., Witt was charged with possession of a controlled substance, battery and obstructing a police officers. Berkeley Magistrate Joanne Overington dismissed the charges 11 months later following a motion made by Witt’s criminal attorney, B. Craig Manford, that the video taken by the dash camera in one of the cruisers differed from the narrative in the criminal complaint and did not contain audio.

The case was put on hold in December 2009 while WVSP appealed Bailey’s ruling denying its motion for summary judgment. It was placed back on the docket in February 2011 after the U.S. Court of Appeals for the Fourth Circuit upheld Bailey’s ruling.

U.S. District Court for the Northern District of West Virginia, case number 08-cv-183

MARTINSBURG – A woman is suing Reliance Standard Life Insurance Company for allegedly failing to pay accidental death benefits for the death of her daughter.

On Jan. 19, 2012, Lori L. Heatwole was found death in her bed at her residence and an autopsy was performed by the West Virginia Office of the Medical Examiner, who concluded that she was ill at the time and died accidentally as a result of the over ingestion of a combination of prescription drugs, according to a complaint filed Jan. 24 in the U.S. District Court for the Northern District of West Virginia.

The medical examiner determined the manner of death to be accidental.

Helen Heatwole, Lori Heatwole’s mother, submitted life insurance benefit claim documents to the defendant per its instructions, according to the suit, and in May, the defendant paid Helen Heatwole the sum of $151,612.06, representing the basic life insurance amount of $150,000, with interest.

Terry C. Alkire Sr., the attorney-in-fact of Helen Heatwole, claims Lori Heatwole’s coverage with the defendant also provided for an additional payment of $150,000 in the event of accidental death.

At the time of the initial payment, the defendant noted to Helen Heatwole that it was conducting a routine investigation in connection with the accidental death portion of the claim, according to the suit.

After hearing nothing from the defendant, Helen Heatwole contacted the defendant in November, which then advised that an investigation into accidental nature of the claim would be required and implied that no such investigation had yet to be initiated, she says.

Helen Heatwole claims she voluntarily provided the defendant with signed medical authorizations for use in the course of any investigation, but has received no further communication from the defendant.

The defendant’s failure to promptly proceed with any investigation of the circumstances surrounding the death of the decedent and its failure to timely address the accidental death portion of Helen Heatwole’s claim is in direct contravention of the relevant statutory, common law and public policy of West Virginia and the United States, according to the suit.

Helen Heatwole claims the defendant violated the West Virginia Unfair Trade Practices Act.

As a direct and proximate result of the defendant’s intentional, reckless, negligent, careless, unreasonable and unjustifiable conduct, Helen Heatwole has suffered emotional distress, mental anguish, annoyance, inconvenience, aggravation, worry and other damages, according to the suit.

Helen Heatwole is seeking compensatory and punitive damages with pre- and post-judgment interest. She is being represented by Nelson M. Michael and David Collins.

The case has been assigned to District Judge Gina M. Groh.

U.S. District Court for the Northern District of West Virginia case number: 3:13-cv-8

Jan. 24
Darla Armstrong vs. Keene Enterprises II, Inc., d/b/a McDonald’s Restaurants
PA-Christopher P. Stroech; J-John Yoder
*Plaintiff claims that on Oct. 2, she slipped and fell at McDonald’s on Apple Harvest Drive in Martinsburg. Plaintiff claims negligence on the part of McDonald’s for wet, unattended floor. Plaintiff seeks damages for injuries, lost wages and all other fees to be determined at trial.
Case Number: 13-C-79

Jan. 25
Government Employees Insurance Company as Subrogee of Robert Oliver Wilson vs. Interstate Mini Storage LLC c/o Charles T. Burkhart, II, Stat Agent
PA-Andrew N. Frye, III; J-Gray Silver, III
*Plaintiff alleges that on April 15, he entrusted a trailer to the defendant. While in Defendant’s possession, the trailer was lost. Plaintiff seeks compensation in the amount of $21,896 (value of trailer) as well as all other possible fees.
Case Number: 13-C-81

Jesus Manco vs. Central Mortgage Company, Inc.
PA-Andrew C. Skinner; J-John Yoder
*Plaintiff claims Defendant is in violation of the West Virginia Consumer Credit and Protection Act and breach of contract. Plaintiff seeks damages up to $74,999.
Case Number: 13-C-82

Lisa Lynn Bennett vs. Berkeley County Council and Deputy Morris Stewart
PA-Peter A. Pentony; J-Christopher Wilkes
*Plaintiff claims that on Aug. 26, 2011 Deputy Stewart was dispatched for unauthorized use of a vehicle belonging to Douglas Bitner. Allegedly, the deputy took description of Lisa Bennett, who was allegedly the girlfriend of Bitner. Based on the complaint, an arrest warrant was issued and Plaintiff was arrested at her home, taken to Eastern Regional Jail, booked and kept overnight. Plaintiff alleges no investigation was done prior to a warrant being issued to confirm that she was the person sought; the deputy never contacted the plaintiff prior to the arrest to investigate the charge. Plaintiff claims she does not know Bitner, is married, has been for six years and lives with her husband. Plaintiff claims the deputy’s actions violated her constitutional rights. She also claims false arrest and imprisonment. Plaintiff seeks compensatory and punitive damages as well as any other award to be determined at trial.
Case Number: 13-C-83

Nace

CHARLESTON – The disciplinary case against Barry Nace, a former president of the Association of Trial Lawyers of America, was heard Feb. 19 by the state Supreme Court.

The Office of Disciplinary Counsel has recommended that Nace, a personal injury attorney in Washington, D.C., be suspended from the practice of law for 120 days for allegedly failing to turn over the proceeds from a woman’s medical malpractice lawsuit to the trustee of her bankruptcy estate.

The ODC also recommended Nace perform 50 hours of pro bono work.

“In this case, it is clear that Respondent (Nace) improperly handled money that should have been turned over to the U.S. Trustee,” the ODC wrote.

“Respondent has failed to acknowledge his position as special counsel to the U.S. Trustee. This failure contributed to the bankruptcy estate not receiving the substantial funds from the medical malpractice case.”

Nace was also the chairman of ATLA’s political action committee. ATLA is now known as the American Association for Justice.

In his brief to the court, he said he has served his profession in a myriad of ways for more than 40 years, but his participation in several organizations “hangs in the balance” with the disciplinary proceeding.

“This lawyer is not unethical; and his entire reputation and good standing in this Bar and the Bars in Maryland, Pennsylvania and the District of Columbia would be stained with an adverse decision in this proceeding, where he, at most, made a mistake in not knowing or fully understanding the expectations of others with whom he had little or no communication,” his brief says.

The proceeding concerns a medical malpractice claim that Nace and Martinsburg attorney Michael Burke pursued. In November, the court admonished Burke, of Burke Schultz Harman and Jenkinson.

Margaret Ann Miller hired Burke on Feb. 5, 2004, to file a medical malpractice suit on behalf of her deceased husband. Seven months later, Miller filed for Chapter 7 bankruptcy, and Robert Trumble was appointed trustee.

In January 2005, Trumble sent Burke a letter asking for a valuation of the medical malpractice case. Burke replied later that month saying he and Nace could not place a value on it until completion of a medical review.

Later that month, Trumble sent both Burke and Nace affidavits to sign accepting employment as Trumble’s special counsel. They did, and the bankruptcy court approved Trumble’s motion to employ Burke and Nace on March 4, 2005.

Eventually, the suit was filed on June 17, 2005. A month later, Burke notified that because one of his employees was one of the co-defendant’s neighbors, he was withdrawing from the case because of a conflict of interest.

Despite his withdrawal, Burke told Miller that Nace would remain as her attorney. However, Burke not only failed to file a motion to withdraw from the suit, but also to provide Trumble a notice of his withdrawal, the Burke opinion says.

In September 2006, a partial settlement was reached in which one of the defendants agreed to pay Miller $75,000. A month later, the case against the remaining defendants went to trial, and a jury awarded Miller $500,000.

According to the Burke decision, the disbursement of funds was made without Trumble’s “approval, knowledge or authority.” When Trumble sent him a letter in July 2007 requesting an update on the lawsuit, Burke forwarded it to Nace and later left a message with Trumble’s secretary that said he was no longer on the case and to contact Nace.

After the court on Feb. 12, 2008, declined to hear the defendants’ appeal, Nace tendered a check to Miller for her share of the proceeds of $220,467.45. According to the decision, this, too, was done without informing or getting approval from Trumble.

Later in October 2008, Trumble sent both Burke and Nace a letter not only reminding them of their roles as special counsel to him, but also requesting all documents in the malpractice suit. In addition to later filing ethics complaints against them, Trumble filed an adversarial proceeding against Burke and Nace in Bankruptcy Court.

Trumble told Nace that the allowable exemption for Miller was $25,768, and, after Nace took his fees and expenses, the rest of the proceeds should have been turned over to her estate to be distributed to her creditors.

Nace wrote Trumble in February 2009, stating that he had not heard anything from Trumble since signing an affidavit in February 2005 and that he had never received the application to employ special counsel. Trumble filed an ethics complaint five months later.

Justice Menis Ketchum called the disciplinary case against Burke a waste of time. He said Burke’s failure to notify Trumble of the outcome of the case was “an inadvertent slip.”

Nace is represented by Morgantown attorneys J. Michael Benninger and Daniel D. Taylor of Benninger Law.

“Nace contends that HPS has failed to consider a number of important mitigating factors in determining its severe recommended sanctions,” Benninger wrote.

“The mitigating factors which (the Hearing Panel Subcommittee) did consider were his absence of any prior disciplinary record during his more than 40 years of active practice and his excellent reputation as a Plaintiffs’ medical malpractice lawyer.

“It did not, however, consider his timely good faith effort to make restitution or rectify the consequences of his alleged misconduct when he submitted into Bankruptcy Court the amount finally received from Trumble represented as the creditor claims presented in the Miller bankruptcy case.

“HPS also failed to consider the absence of any dishonest or selfish motive in the case. Trumble’s testimony during the hearing establishes a factual basis for this mitigating factor and its application to Nace. Given the number of years devoted by Nace to the advancement of his profession in a number of important local and national legal organizations and the amount of voluntary service rendered by him, a four-month suspension of his license is unduly harsh.

“The punishment recommended does not fit the crime (mistake) in this case.

“Lastly and most importantly, there was no harm to the trustee, the debtor’s estate or the Bankruptcy Court in this case because Miller’s husband’s case and her interest in it was never an asset of the §541 estate.”

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

Jan. 31
Trinity Temple Church of God vs. Appalachian Heating & Air Conditioning LLC and DJ Knotts
PA- Dale Buck; J- Gray Silver, III
* Plaintiff claims that it signed a contract for $59,750 worth of work and paid all except $5,000. The work was below standard, the complaint says. Plaintiff alleges breach of contract and breach of warranties and seeks judgment in excess of jurisdictional minimum of court and other costs as determined at trial.
Case Number: 13-C-105

Feb. 4
First United Bank & Trust vs. Nicole Carter
PA- Brandon James Hoover J- Christopher Wilkes
* Plaintiff alleges Defendant owes at least $44,388.22 plus late charges of $4,234.55 and interest of $3,672.85 for past due credit agreement.
Case Number: 13-C-107

Feb. 6
Shana C. Spruce vs. Cash & Go, Inc.
PA- Garry G. Geffert; J- John Yoder
* Plaintiff claims Defendant is in violation of the West Virginia Consumer Credit and Protection Act and breach of contract. Plaintiff seeks damages up to $74,999.
Case Number: 13-C-112

Feb. 8
Lowell W. Webb, Jr. vs. Ruan Transport Corp. & Thomas Ewald
PA- Sarah L. Hinkle; J- Gray Silver, III
* Plaintiff claims he was wrongfully terminated from his job with the company on April 28. Plaintiff claims that he refused to adhere to prior pressure to drive illegally against W.Va. laws and laws pertaining to commercial driving. Plaintiff also alleges that he was injured on the job April 27 and could not contact his employer to seek advice on treatment. After his dismissal the next morning, Plaintiff was denied Workers’ Compensation benefits by Defendant Ewald, he claims. Plaintiff claims disparate treatment in violation of the state Worker’s Compensation Act, Human Rights Act, Wage Payment & Collection Action Act and seeks back and front pay, reinstatement, lost benefits and actual, statutory, compensatory and punitive damages.
Case Number: 13-C-120

Feb. 11
Lisa Riner vs. Wal-Mart Stores East, Inc., Wal-Mart Stores East LP and Wal-Mart Supercenter Store #1783
PA-Joanna L-S Robinson; J-Christopher Wilkes
* Plaintiff claims negligent and unsafe conditions as she slipped and fell in the above-mentioned store. Due to the alleged fall, she obtained extensive medical attention. Plaintiff seeks judgment of a sum to compensate for damages as well as other fees to be determined at trial.
Case Number: 13-C-122

MARTINSBURG – Nationwide Mutual Insurance Company is suing two individuals who have been attempting to get the insurance company to pay more than its policy limits.

Mark O. Harris, individually and as personal representative of the Estate of Patricia A. Harris, deceased, and Laura M. Ferguson, individually and as parent and next friend of B.M.H. and T.M.F., minors, were named as defendants in the suit.

On Aug. 16, 2011, a vehicle owned by Maribel Villegas and being operated by her husband, Ruben Gutierrez-Villegas, collided with a vehicle owned and occupied by Patricia Harris, operated by Ferguson and further occupied by Ferguson’s two children, B.M.H. and T.M.F., according to a complaint filed Feb. 12 in the U.S. District Court for the Northern District of West Virginia at Martinsburg.

Nationwide claims Gutierrez-Villegas negligently operated the vehicle and by his negligence, caused the death of Harris and personal injures to Ferguson and her children.

The Villegas’ vehicle was insured by Progressive Classic Insurance Company and Progressive has offered the bodily injury and liability and property damage liability coverage limits applicable under its insurance policy on the Villegas’ vehicle to the defendants and other parties injured in the accident, according to the suit.

Nationwide claims Progressive has already paid Nationwide $1,422 in full settlement of all property damage liability incurred by Villegas and Gutierrez-Villegas as a result of the accident, and Progressive’s payment to Nationwide was made as a pro rata reimbursement for a $2,177.10 payment made by Nationwide to Mark Harris on Oct. 19, 2011, through the underinsured motorist property damage coverage available under the Harris policy.

The defendants have sustained combined damages as a result of Gutierrez-Villegas and/or Villegas that exceed the $20,000/$40,000 limits of the bodily injury liability insurance coverage available through Progressive for the Villegas vehicle, according to the suit.

Nationwide claims it offered Mark Harris and Patricia Harris the opportunity to purchase underinsured motorist insurance coverage with bodily injury limits as high as $100,000 per person and $300,000 per occurrence at an additional premium of $184.70 per six months on Nov. 25, 2009.

Despite Nationwide’s offer, Mark Harris and Patricia Harris did not accept the offer, according to the suit. However, on Jan. 4, the defendants’ counsel wrote a letter to Nationwide confirming that Progressive had “offered the minimal policy limits available under its insured’s liability policy, but, nevertheless, demanding that Nationwide pay the full $300,000 in uninsured motorist coverage…”

Nationwide claims on Jan. 17,  the defendants’ counsel wrote a second letter to Nationwide stating that the defendants “will refuse to accept liability coverage from Progressive” and again demanded that Nationwide pay the $300,000 uninsured policy limits.

On Jan. 28, the defendants’ counsel wrote a letter to Progressive confirming that the defendants were not demanding that Progressive tender liability coverage for the claims, according to the suit.

Nationwide claims on Feb. 8, it responded to the defendants’ counsel by confirming that Progressive had provided bodily injury and property damage liability coverage for the Villegas vehicle and the vehicle did not meet the policy definition of an uninsured motor vehicle.

On Feb. 11, Nationwide offered the defendants the $25,000/$50,000 underinsured motorist bodily injury policy limits of their policy “in full settlement of its obligations to its insureds under said policy and requested the defendants’ allocation of these insurance proceeds” among Patricia Harris’ estate, Ferguson and her children, according to the suit.

Nationwide is seeking for the court to enter a declaratory judgment orders finding that the Villegas vehicle is not an uninsured motor vehicle; there is no uninsured motorist bodily injury or property damage coverage available through the Harris policy because Progressive already provided bodily injury and property damage liability coverage; the defendants’ policy provides underinsured, not uninsured, coverage; and that Nationwide has properly offered the $25,000/$50,000 underinsured motorist bodily injury coverage limits available through the policy and satisfied all of its obligations to its insureds.

Nationwide is also seeking for the court to enter orders granting Nationwide permission to deposit the $25,000/$50,000 underinsured motorist coverage limits available through the policy with the court for allocation among Patricia Harris’ estate, Ferguson and her children; appointing a guardian ad litem to represent the interests of Ferguson’s two minor children; approving the settlements made on behalf of B.M.H. and T.M.F. for those portions of the underinsured coverage limits; and directing Ferguson to execute a full release of all claims against Nationwide. It is being represented by Joseph L. Caltrider and Jared M. Adams of Bowles Rice, LLP.

The case has been assigned to District Judge Gina M. Groh.

U.S. District Court for the Northern District of West Virginia at Martinsburg case number: 3:13-cv-14

Feb. 14
Debra D. Burkhart vs. Rosenthal, Stein & Associates LLC
PA- Sarah L. Hinkle; J- John Yoder
* Plaintiff claims defendant is in violation of the West Virginia Consumer Credit and Protection Act and breach of contract. Plaintiff seeks damages up to $74,999.
Case Number: 13-C-127

Feb. 15
Juanita Carter vs. Vicki Lynn Church
PA- Joseph R. Feretti J- John Yoder
* Plaintiff claims that on Feb. 20, 2011, she was a passenger in a vehicle involved in an accident allegedly caused by defendant. Plaintiff claims defendant failed to maintain control and caused a crash that resulted in more than $20,000 in medical bills to date with more anticipated costs. Plaintiff seeks judgment based on actual costs and future costs including loss of employment and loss of income.
Case Number: 13-C-130

Feb. 19
Tri-State Surgical Center vs. Sarah Ethel Upwright
PA- Christopher R. Moore J- John Yoder
* Plaintiff claims defendant owes at least $20,245 for past due credit agreement.
Case Number: 13-C-139

Feb. 20
Douglas Blaine Creamer and Kimberly Annette Creamer vs. Deustche Bank National Trust Company as Trustee of The Indymac Indx Mortgage Loan Trust 2006-AR39 Morttgage Pass Through Certificates Series 2006-AR39 Under the Pooling and Servicing Agreement Dated Dec. 1, 2006 and One West Bank FSB and MR Appraisals Inc.
PA- Aaron C. Amore; J- Christopher Wilkes
* Plaintiffs claim in October 2006 they signed a promissory note for $540,000 for property. Plaintiffs allege a later appraisal showed the value as more than $600,000 when in reality it was only $460,000. Plaintiffs allege acceptance of fee on predetermined conclusion, dishonesty, misrepresentation and breach of professional standards as well as negligence and illegal and unconscionable inducement, breach of fiduciary duty and fraud. Plaintiffs seek punitive and actual damages as well as all costs and other damages as determined at trial.
Case Number: 13-C-140

Feb. 25
Danielle Hensell vs. Martinsburg-Berkeley County Parks and Recreation Board and City of Martinsburg
PA- James J. Matzureff; J- John Yoder
*Plaintiff claims that on July 17, 2011, while at McKee Pavilion in War Memorial Park, she stepped into a pothole and sustained serious and permanent injuries, including a fractured ankle. Plaintiff alleges defendant failed to exercise reasonable care to operate and maintain premises. Plaintiff seeks an amount in excess of what is limited by the court plus all costs.
Case Number: 13-C-157

Phyllis Vallejo vs. SunTrust Mortgage Inc.
PA- Garry G. Gefferts J- John Yoder
*Plaintiff claims the defendant is in violation of the West Virginia Consumer Credit and Protection Act and the West Virginia Unfair Debt Collections Act. Plaintiff seeks damages up to $74,999.
Case Number: 13-C-160

Feb. 28
Laura Shannon Hall, duly Appointed Personal Representative of the Estate of Lorena Beth Roberts vs. Steven E. Thompson and A&E Enterprises Inc. and Nan & Pop’s Place
PA- Mark Jenkinson J- Gray Silver, III
*Plaintiff claims wrongful death in an April 14, 2011, motorcycle accident that killed Lorena Beth Roberts. Plaintiff claims negligence of Thompson as driver as well as other defendants for serving alcohol to an intoxicated individual. Plaintiff seeks compensatory and punitive damages in an amount to be determined as well as all costs and other fees.
Case Number: 13-C-162

March 1
Man Le Garrett, Krystal McLaughlin and Jane Roe, on behalf of themselves and all others similarly situated vs. TNA Enterprises LLC d/b/a Paradise City 2 and Warren Dellinger
PA- Garry G. Geffert; J- John Yoder
*Plaintiffs allege they all worked for defendant as exotic dancers and that Defendants failed to pay their wages. Plaintiffs also allege that they were required to pay Defendant cash percentage of tips from the variety of services performed. Plaintiffs allege violations of FLSA and WPCA and seek judgment and unpaid wage and statutory liquidated damages to each potential victim in a class action suit.
Case Number: 13-C-163 through 165

March 4
American Express Centurion Bank vs. Kathleen G. Corbin
PA- Paul S. Atkins; J- Christopher Wilkes
*Plaintiff alleges Defendant owes at least $54,216.91 for past due credit agreement.
Case Number: 13-C-167

March 8
Ronald L. Watson vs. Wal-Mart Stores East LP#1703 and James Alexander Moore, a Wal-Mart Employee
PA- Joseph R. Ferretti; J- Gray Silver, III
*Plaintiff alleges that on Aug. 15, 2011, while in a Wal-Mart store, he sought assistance for obtaining additional merchandise that was atop a high shelf. Plaintiff alleges that Defendant Moore climbed from a ladder onto the shelving units to reach items. Moore then fell and Plaintiff alleges he attempted to help catch Defendant when he fell, which resulted in injuries. Plaintiff alleges negligence of store and Moore to practice safety measures. Plaintiff alleges vicarious liability and seeks judgment for all damages and costs including substantial medical expenses.
Case Number: 13-C-180

Greenberg

MARTINSBURG – Three exotic dancers who claim their employer wrongfully took a portion of their tips have filed a class action lawsuit.

The lawsuit, filed March 1 in Berkeley County Circuit Court, alleges Paradise City II in Bunker Hill violated the Fair Labor Standards Act and the West Virginia Wage Payment and Collection Act by making its dancers pay it from the tips they earned performing private dances.

“The charges and fines which Defendants required each plaintiff and other dancers similarly situated to pay were assignments of wages within the meaning of the WCPA,” the complaint says.

“Defendants did not have from either plaintiff or any other dancer similarly situated the written authorization for wage assignments required by the WPCA.”

The lawsuit follows several filed in 2011 in federal court by Maryland attorney Gregg C. Greenberg of the Zipin Law Firm.

Greenberg filed five complaints from March 7, 2011 to Jan. 2, 2012, in Martinsburg’s federal court. Four have been settled, and the class action filed by Arielle Jordan, aka Queen, and Patrice Ruffin, aka Karma, against Legz Club remains pending, though a settlement has been proposed.

On Feb. 26, U.S. District Judge Gina Groh ordered a stay of litigation proceedings while she reviews the proposed settlement.

The gross settlement amount is $345,000. Greenberg and Martinsburg attorney Garry Geffert will petition the court for fees, litigation costs and a named plaintiff incentive award to be paid out of the $345,000.

The three plaintiffs in the March 1 case against Paradise City II are Man Le Garrett, Krystal McLaughlin and Jane Roe. Roe is a pseudonym being used to avoid violence from third parties.

The case alleges Paradise City II and manager Warren Dellinger required the three to pay, from their tips, $35 for each private dance and $30 for a 30-minute dance in the champagne room. Other dancers paid even higher amounts, the suit says, including $50 for a 30-minute dance in the champagne room.

Garrett and McLaughlin were employed for four months and Roe for 11 months. The women say they will fairly and adequately represent the class.

The other clubs sued by Geffert and Greenberg are Divas, Underground Casino and Lounge and Taboo Gentlemen’s Club.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

MARTINSBURG – A woman who blamed five corporate defendants for her pajamas catching on fire while she was next to a propane heater has lost her lawsuit.

Mischelle Holohan blamed J.C. Penney, ABC Retail, Enerco Group and subsidiary Mr. Heater Corp. and the unknown manufacturer of Mix-It Pajamas in a lawsuit filed Feb. 3, 2012, in Berkeley County Circuit Court.

Holohan claimed her “ladies pajamas burst into flames” on Feb. 5, 2010.

On June 1, F. Samuel Byrer withdrew as Holohan’s attorney. He cited “a breakdown in the attorney-client relationship.”

Six months later, Judge Christopher Wilkes ordered Holohan to file a motion showing good cause why the case should not be dismissed. Wilkes said it had been 120 days since there was any movement in the case.

On Jan. 2, Wilkes dismissed the case.

Holohan said the pajamas she purchased at J.C. Penney that were distributed by ABC Retail and made by the unknown manufacturer defendant went up in flames while near a tank-top propane heater made by Mr. Heater.

The pajamas were defective and not safe for their intended use, the suit said.

“The defendants should’ve known the pajamas were not treated in a manner to adequately retard and diminish the flammability of the fabric,” the suit said.

The defendants breached the implied warranty of fitness merchantability by placing the “easily flammable” pajamas in the stream of commerce, Holohan alleged.

She said she suffered fear, fright, anxiety, mental distress, humiliation, disfigurement, burns and scarring.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

MARTINSBURG – A man who alleged one of his former supervisors sometimes threw hammers in the direction of employees is facing a motion for summary judgment filed by the defendants in his lawsuit.

Robert W. Elliott, Sr. was a 27-year veteran of the Continental Brick Company, a brick-making business in Martinsburg, before being fired in 2011. Elliott claims his firing was in retaliation for complaints he made in April 2010 about Donald Sult, the company’s vice president of operations.

Elliott wrote in his complaint, filed in May 2011 in Berkeley County Circuit Court, that he had been with the company since its inception in 1984. In April 2010, he met with C. Lynch Christian, the company’s president, to report what he said was violent and hostile conduct on the part of Sult.

“Such conduct included… the throwing of hammers on several occasions (sometimes in the direction of an employee with whom Defendant Sult appeared to be angry), smashing a brick immediately in front of the face of one employee and frequently hitting walls and other objects within the workplace,” the complaint says.

Christian told Elliott there was no issue that needed addressing, the suit says. In January 2011, Continental Brick issued several temporary layoffs, it adds.

Elliott, though, was fired. He was told he was fired because he possessed another business to rely on and not the meeting several months earlier, he claims.

Elliott is the president of Berkeley Theatres in Martinsburg.

“(T)he termination of the plaintiff was executed as an effort to punish the plaintiff for lodging complaints regarding an illegal workplace setting,” Elliott claims.

He also alleges his termination was intended to intimidate other employees out of registering complaints.

Attorneys for the defendants don’t agree, however.

A. Neal Barkus of Steptoe & Johnson wrote in a summary judgment motion filed in December that Elliott did not engaged in protected activity under the West Virginia Human Rights Act.

“(H)e only made complaints to management about matters of workplace civility, not any prohibited discriminatory acts,” the motion says.

It adds that too much time passed between then April 2010 meeting and the February 2011 termination for it to be considered retaliatory.

The defendants’ conduct was simply not outrageous enough for Elliott to sustain a claim for intentional infliction of emotional distress, the motion says.

Elliott is represented Christopher Luttrell of Luttrell & Prezioso in Martinsburg.

The case was originally assigned to Judge Christopher Wilkes, who recused himself. He cited “numerous and ongoing social interactions with the plaintiff and in such has heard certain facts of the case.”

The case was then assigned to Judge Gina Groh, who became a federal judge. Judge John Yoder now presides over it.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

Warner

MARTINSBURG – A scheduling order was recently entered in a Berkeley County car crash case that sets up an Oct. 29 trial.

Judge Christopher Wilkes entered the scheduling order on March 19, setting up a trial on Scott Cullen’s claim that a January 2010 car accident caused his heart attack. Cullen filed his lawsuit on Jan. 30, 2012, against Charles Davidson, of Martinsburg.

Cullen, of Bunker Hill, claims Davidson rear-ended him.

“As a direct and proximate result of the negligence and recklessness of Defendant… the plaintiff… suffered a heart attack,” the complaint says.

Cullen says he has incurred medical, hospital and related expenses of more than $127,000. He is also seeking punitive damages.

Cullen is represented by Lawrence Schultz of the Martinsburg personal injury firm Burke, Schultz, Harman and Jenkinson.

According to court records, Davidson was on his way home from grocery-shopping at Wal-Mart, was not on his cell phone at the time of the crash and incurred $5,314.95 in damages to his car.

Davidson is represented by Brian J. Warner of Shuman, McCuskey & Slicer’s Morgantown office.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

Skinner

MARTINSBURG – A Virginia man’s lawsuit against a Berkeley County bar was settled in January, shortly after the defendants claimed he was belligerently drunk at the time and he claimed he might need a costly medical procedure.

Jay Baltzer’s lawsuit against Apple, Inc., doing business as Piggy’s, was settled two weeks before a Jan. 29 trial was to begin. A mediation report said it was settled Jan. 15, though terms were not disclosed.

Baltzer, of Loudoun County, Va., sued Piggy’s in November 2011 over a May 29, 2011, incident that left him with a broken ankle.

On Jan. 11, Piggy’s filed a pretrial memorandum that portrayed Baltzer as out-of-control on the night of the incident. It said bouncer Paul Ward asked Baltzer three times not to carry his beer out to the dance floor.

“On the third time Plaintiff took a beer out on the dance floor, Mr. Ward followed him and tapped him on the shoulder, and for the third time told Plaintiff alcoholic beverages were not allowed on the dance floor,” the memorandum says.

“Mr. Ward tried to take the beer bottle from Plaintiff, and Plaintiff dropped the bottle at Mr. Ward’s feet.”

At this time, the defendants claim, Ward told Baltzer he had to leave. Ward claims Baltzer “aggressively” grabbed him, so he restrained Baltzer.

“Further, Plaintiff was aggressively dancing, and a couple of female patrons complained he was jumping into them,” the memorandum says.

Baltzer’s pretrial memorandum said Ward caused his leg to be pinned between the bar and a bar rail and his left ankle snapped during his fall. He was diagnosed with a distal fibula fracture and a fracture through the posterior aspect of the tibial plafond.

Baltzer claimed he incurred $135,000 in medical expenses and $50,000 in lost wages. He added that he “may not ever be able to return to his employment doing sewer and water work.”

Baltzer’s lawsuit, filed by Charles Town attorney Stephen Skinner of the Skinner Law Firm, made claims for negligence, negligent infliction of emotional distress, negligent hiring/retention and gross negligence.

Also in January, Baltzer revealed that he might need an ankle replacement or fusion surgery, procedures that could’ve added $100,000 more to his medical bills.

Baltzer’s version of the incident differed from the one set forth by Piggy’s. He says he complied with the request to leave the dance floor but he was “blindsided by a bouncer, who physically and verbally assaulted him.”

A friend helped Baltzer leave the bar because no employees would help him, he claims. The Sheriff’s Department was called, and an ambulance took him to the hospital.

Defendant Wilbur A. Alger, Jr. should have hired employees who were competent for the work assigned to them, Baltzer alleged.

Piggy’s was defended by Robert W. Trumble of McNeer, Highland, McMunn & Varner.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

MARTINSBURG – Twelve days before a trial was scheduled to begin, a personal injury lawsuit against Sheetz was settled.

Sherry Marken Brindle, of Waynesburg, Pa., dismissed her lawsuit against Sheetz on Jan. 17. She had alleged she tripped on a floor mat and broke her hip at the Sheetz on Apple Harvest Drive in Martinsburg on Oct. 7, 2009.

She filed her lawsuit on Sept. 30, 2011, in Berkeley County Circuit Court.

“The defendant owed a duty to Plaintiff to maintain the entrance in compliance with all building ordinances, keeping it safe from defects or conditions which were in the nature of hidden danger, traps, snares or pitfalls,” the complaint said.

The complaint said she suffered great physical and emotional pain to her body and psyche. Terms of the settlement were not disclosed in court records.

Brindle was represented by Paul Taylor of Martinsburg, while Sheetz was represented by Melvin F. O’Brien of Dickie, McCamey & Chilcote in Wheeling.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

One of the four softball fields at Charlotte Prather Park

MARTINSBURG – A softball coach has been dismissed from a lawsuit that blamed her and a Berkeley County youth league for the broken ankle and leg suffered by a 14-year-old girl during a sliding drill.

The lone remaining defendant in the lawsuit filed by Martin and Carina Roberts on behalf of daughter Courtney is now the Martinsburg-Berkeley County Softball League, which is accused of not maintaining one of its fields at Charlotte Prather Park and forcing Roberts to slide when she did not want to.

A June trial in Berkeley County Circuit Court is scheduled in a case that has seen an expert witness for the defense, who was also the head coach of Martinsburg High School’s softball team, arrested for delivery of heroin.

Courtni Williams played locally at Jefferson and Musselman high schools, then played collegiately at Shepherd University. The lawsuit alleged she told Roberts “You’ll be fine” during a practice on May 29, 2010, after Roberts expressed concern with the drill.

Williams

Roberts, who was 14 at the time, says she didn’t want to participate and that she’d never slid before. When she eventually tried, she severely injured her left leg sliding into third base, according to a complaint filed March 4, 2011.

Roberts says she crushed her left ankle, tibia and fibula and, at the time of the complaint, has had three surgeries.

Dr. Benjamin V. Rezba wrote Roberts was never able to continue playing sports. She can walk three blocks to a park near her house, but she must rest before returning, he added.

Roberts also blamed the condition of the field.

Davis

“The surface of the diamond was hard and unforgiving,” the complaint says.

Former Martinsburg High coach Calvin Anthony Russ was scheduled to testify that the field was in adequate condition and that Williams was qualified to teach sliding.

The defendants wrote that Russ was certified by the West Virginia Secondary Schools Activities Commission to coach softball and, in addition to his five years at Martinsburg, had coached youth softball for five years and baseball for 23.

Russ was arrested in July when he was allegedly in a car when a confidential police informant purchased $50 of heroin from Russ’ girlfriend Kayla Bell. He was arraigned in September on felony charges of delivery of heroin and conspiracy to deliver heroin.

In October, attorneys for the league wrote there were “unexpected recent developments concerning their previously disclosed softball/standard of care expert, Mr. Calvin A. Russ.”

In its expert witness disclosure form filed six months earlier, the league wrote, “The subject matter of Mr. Russ’ testimony is expected to include, but not be limited to, the appropriate standard of care required of the defendants with respect to sliding techniques.

“He is expected to testify that the manner in which Courtni Williams taught the plaintiff how to slide was appropriate and did not violate the standard of care.”

Russ

Russ was also to testify “that the league and its coaches properly maintained the area on which Plaintiff slid.”

On Oct. 23, the league substituted local softball coach Thomas Merceruio and Steve Bernheim, the president of Sports and Recreation Consultants, as expert witnesses.

The plaintiff is represented by Laura Davis of the Skinner Law Firm in Charles Town.

March 12
Patricia Markle v. Shenandoah Valley Medical Center and Krista Lynn Hopkins, M.D.
PA- D. Michael Burke; J- Wilkes
* In 2010, the plaintiff was 44 years old and receiving Depo-Provera birth control injections from the defendants. She claims they caused a pain in her right shoulder that radiated through her arm. A trip to Johns Hopkins University revealed right shoulder avascular necrosis, she says. She is also represented by Paulson & Nace in Washington, D.C.
Case number: 13-c-185

March 18
RM Roach and Sons v. Shiley Construction Company
PA- Christopher Moore; J- Silver
* The plaintiff claims Shiley is in breach of a contract signed Feb. 16, 2011, and is seeking $9,783.56.
Case number: 13-c-213

March 21
Tamara Ware v. City Hospital
PA- David M. Hammer; J- Yoder
* The plaintiff was filed from her job as nurse manager of oncology and vascular therapy on March 21, 2011. She alleges she was fired for showing concern about the patient load increase under a new medical director, and also claims he was giving false hope to “obviously terminal” cancer patients. She was making $92,000 at the time she was fired, she says.
Case number: 13-c-217

Nace

CHARLESTON – A former president of a national trial lawyers group has been suspended from the practice of law for 120 days by the state Supreme Court.

The court decided March 28 to adopt the sanctions recommended by the Lawyer Disciplinary Board against Washington, D.C., attorney Barry Nace, who was accused of failing to turn over the proceeds from a woman’s medical malpractice lawsuit to the trustee of her bankruptcy estate.

Nace, 68, was once the president of the Association of Trial Lawyers of America, which is now known as the American Association for Justice. He also served as chairman of ATLA’s political action committee and is a partner in the firm Paulson & Nace.

“Of the aggravating factors in this case, most notable is Mr. Nace’s refusal to accept any hint of responsibility for the harm caused by his failure to properly represent Mr. (Robert) Trumble, for his dishonest conduct, or for obscuring a full investigation by the LDB,” the per curiam decision says.

“Instead, Mr. Nace has repeatedly shifted responsibility onto others. In his brief to this court, Mr. Nace writes extensively on Mr. Trumble’s duties as trustee and how Mr. Trumble did not fulfill his responsibilities as trustee.

“While this court is not in any position to evaluate Mr. Trumble’s responsibilities as trustee – the matter is not properly before this court – there is ample evidence that Mr. Nace, as Mr. Trumble’s attorney, had his own set of duties and responsibilities that he failed to perform.”

The court also adopted LDB’s recommendation that Nace perform 50 hours of pro bono work, satisfy any obligations imposed on him in the final disposition of a pending adversary proceeding in U.S. Bankruptcy Court and pay the cost of the proceedings before the Hearing Panel Subcommittee.

The proceeding concerns a medical malpractice claim that Nace and Martinsburg attorney Michael Burke pursued. In November, the court admonished Burke, of Burke Schultz Harman and Jenkinson.

Margaret Ann Miller hired Burke on Feb. 5, 2004, to file a medical malpractice suit on behalf of her deceased husband. Seven months later, Miller filed for Chapter 7 bankruptcy, and Robert Trumble was appointed trustee.

In January 2005, Trumble sent Burke a letter asking for a valuation of the medical malpractice case. Burke replied later that month saying he and Nace could not place a value on it until completion of a medical review.

Later that month, Trumble sent both Burke and Nace affidavits to sign accepting employment as Trumble’s special counsel. They did, and the bankruptcy court approved Trumble’s motion to employ Burke and Nace on March 4, 2005.

Eventually, the suit was filed on June 17, 2005. A month later, Burke withdrew from the case because one of his employees was one of the co-defendant’s neighbors.

Despite his withdrawal, Burke told Miller that Nace would remain as her attorney. However, Burke not only failed to file a motion to withdraw from the suit, but also to provide Trumble a notice of his withdrawal, the Burke opinion says.

In September 2006, a partial settlement was reached in which one of the defendants agreed to pay Miller $75,000. A month later, the case against the remaining defendants went to trial, and a jury awarded Miller $500,000.

According to the Burke decision, the disbursement of funds was made without Trumble’s “approval, knowledge or authority.” When Trumble sent him a letter in July 2007 requesting an update on the lawsuit, Burke forwarded it to Nace and later left a message with Trumble’s secretary that said he was no longer on the case and to contact Nace.

After the court on Feb. 12, 2008, declined to hear the defendants’ appeal, Nace tendered a check to Miller for her share of the proceeds of $220,467.45. According to the decision, this, too, was done without informing or getting approval from Trumble.

Later in October 2008, Trumble sent both Burke and Nace a letter not only reminding them of their roles as special counsel to him, but also requesting all documents in the malpractice suit. In addition to later filing ethics complaints against them, Trumble filed an adversarial proceeding against Burke and Nace in Bankruptcy Court.

Trumble told Nace that the allowable exemption for Miller was $25,768, and, after Nace took his fees and expenses, the rest of the proceeds should have been turned over to her estate to be distributed to her creditors.

Nace wrote Trumble in February 2009, stating that he had not heard anything from Trumble since signing an affidavit in February 2005 and that he had never received the application to employ special counsel. Trumble filed an ethics complaint five months later.

Justice Menis Ketchum called the disciplinary case against Burke a waste of time. He said Burke’s failure to notify Trumble of the outcome of the case was “an inadvertent slip.”

Nace was represented by Morgantown attorneys J. Michael Benninger and Daniel D. Taylor of Benninger Law.

In his brief to the court, Nace said he has served his profession in a myriad of ways for more than 40 years, but his participation in several organizations “hangs in the balance” with the disciplinary proceeding.

“This lawyer is not unethical; and his entire reputation and good standing in this Bar and the Bars in Maryland, Pennsylvania and the District of Columbia would be stained with an adverse decision in this proceeding, where he, at most, made a mistake in not knowing or fully understanding the expectations of others with whom he had little or no communication,” his brief said.

According to the decision, after being served a subpoena dues tecum, Nace appeared before the LDB’s investigative panel on April 7, 2010, and gave a sworn statement denying he received Trumble’s application in January 2005 and that Miller even filed for bankruptcy. However, after a statement of charges was filed against both he and Burke, Nace testified at an Oct. 11, 2011, evidentiary hearing and said he was aware of Trumble’s letter.

In rendering its decision, the court found unpersuasive Nace’s arguments that an attorney-client relationship existed between he and Trumble and that the court lacked jurisdiction to consider Trumble’s ethics complaints since the issues raised occurred in federal court. Since the affidavit he signed regarding Miller’s bankruptcy formed the essential elements of an attorney-client relationship, and he holds a West Virginia law license, the court said any violations of the Rules of Professional Conduct Nace committed are well within its jurisdiction.

“To the extent that Mr. Nace entered into an attorney-client relationship with Mr. Trumble,” the court said, “Mr. Nace practiced law in West Virginia. It is patently clear from our case law that the Court has the authority to supervise, regulate and control the practice of law in this state, and so the Court has subject matter jurisdiction over Mr. Nace’s practice of law in West Virginia.”

“Contrary to Mr. Nace’s suggestion,” it added, “the Court is not divested of jurisdiction merely because the order appointing him as special counsel was entered in the bankruptcy court. The disciplinary proceeding before this Court is not contingent upon the construction of the order appointing him special counsel; instead, it depends only on whether an attorney-client relationship formed, which did occur.”

Since this was the first time Nace had formally had disciplinary charges brought against him since becoming an attorney in 1970 and since his admission to the West Virginia Bar on March 19, 1997, the court said a short suspension was appropriate punishment.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.