June 21
FIA Card Services NA vs. Mark A. Conte
PA-Paul B. Atkins; J-Christopher Wilkes
* Plaintiff defendant owes at least $26,242.38 for past due credit agreement.
Case number: 12-C-491

Sandra M. Manning and Robert W. Trumble, as Trustee of the Bankruptcy Estate of Sandra M. Manning vs. HSBC Bank N.D.
PA-Garry G. Geffert; J-Christopher Wilkes
* Plaintiff claims violation of West Virginia Consumer Credit and Protection Act. Seeks settlement of not less than $74,999.
Case number: 12-C-492

Sandra M. Manning and Robert W. Trumble, as Trustee of the Bankruptcy Estate of Sandra M. Manning vs. Orchard Bank Nevada aka HSBC Bank Nevada
PA-Garry G. Geffert; J-Christopher Wilkes
* Plaintiff claims violation of West Virginia Consumer Credit and Protection Act. Seeks settlement of not less than $74,999.
Case number: 12-C-497

Eastern Panhandle Federal Credit Union vs. Scott D. Selfridge, Kimberly Selfridge
PA: Christopher R. Moore; J-Gray Silver, III
* Plaintiff claims defendant owes at least $71,000.00 for past due credit agreement.
Case number: 12-C-498

June 22
Stephen W. Bohrer, as Executor of the Estate of Goldie V. Bohrer, deceased vs. Heartland of Martinsburg, WV, LLC d/b/a Heartland of Martinsburg; Manor Care Health Inc.; Manor Care, Inc.; ABC Business Entities 1-10; John Doe Medical Providers and John Doe Controlling Officers, Managing Members and General Partners 1-10
PA-Peter D. Giglione; J-Gray Silver, III
* Plaintiff claims defendant was negligent pursuant to the Survival Act. Plaintiff also claims Premises Liability pursuant to the Survival Act, Breach of Fiduciary Contract and Wrongful Death in the case of Goldie Bohrer. Plaintiff seeks compensatory and punitive damages and other fees to be assessed at trial.
Case number: 12-C-510

June 25
Sandra L. Myers vs. Citibank NA
PA-Sarah L. Hinkle; J-John Yoder
* Plaintiff claims violation of the West Virginia Consumer Credit and Protection Act. Plaintiff seeks up to $74,999.
Case number: 12-C-517

Casey E. Poffenberger and Armantha Hixson vs. Bank of America NA
PA-Sarah L. Hinkle; J-Christopher Wilkes
* Plaintiff claims violation of the West Virginia Consumer Credit and Protection Act. Plaintiff seeks up to $74,999.
Case number: 12-C-518

Sandra L. Myers vs. Verizon Wireles (VAW) LLC c/o CT Corporation System
PA-Sarah L. Hinkle; J-John Yoder
* Plaintiff claims violation of the West Virginia Consumer Credit and Protection Act. Plaintiff seeks up to $74,999.
Case number: 12-C-520

Sandra L. Myers vs. Nissan Motor Acceptance Corp. c/o LexisnexisDocument Solutions
PA-Sarah L. Hinkle; J-John Yoder
* Plaintiff claims violation of the West Virginia Consumer Credit and Protection Act. Plaintiff seeks up to $74,999.
Case number: 12-C-523

June 28
Mildred Virginia Locke vs. Brandon D. Smartwood and Carolyn Smartwood
PA-Pro Se; J-Gray Silver, III
* Plaintiff claims on July 9, 2010, defendant negligently caused a motor vehicle accident in which plaintiff suffered great pain and injury. Plaintiff seeks $1 million in compensatory damages.
Case number: 12-C-531

Justin C. Fraley vs. Bradley A. Brady and Progressive Max Insurance Corp.
PA-Ronald M. Harmon; J-Christopher Wilkes
* Plaintiff claims that on July 3, 2010, he was operating a Mo-ped in Berkeley County. Brady negligently casued collision. Insurance company denied liability coverage because the policy was canceled July 2 and accident was on July 3. Plaintiff seeks relief from Brady but also from insurance company which failed to provide plaintiff with adequate uninsured motorist coverage on his own policy. Plaintiff seeks up to $100,000 or $300,000 per accident that the company should have made available to him for purchase.
Case number: 12-C-532

July 3
Sarah Jane Nealis vs. The Martinsburg Mall and Mountain State University Inc.
PA-Eric S. Black; J-Gray Silver, III
* Plaintiff claims that on April 23, 2011, she stepped into a hole in the deteriorating sidewalk at the Martinsburg Mall used by the University and suffered a fall and injury. She claims negligence and seeks compensatory damages and any other fees to be determined at trial.
Case number: 12-C-537

David Pastors vs. Autozone Stores Inc. and Autozoners LLC
PA-Jeffrey Mehalic; J-John Yoder
* Plaintiff claims he worked as a manger at the Autozone where he hurt his back picking up an exhaust in August 2010. He filed a worker’s compensation claim. He was off work due to the injury when officials at the company notified him that he would have to take a leave of absence per their internal policy. Plaintiff refused to do this as he was out of work due to the injury and had filed a claim in accordance to law. Plaintiff was subsequently terminated from his job for exceeding the internal leave of absence time limit. Plaintiff seeks judgment to adequately compensate for his financial losses, punitive damages and any other fees to be determined at trial.
Case number: 12-C-541

July 10
Stephanie N. Paulino, Indivdually and as Class Representative vs. Dollar General Corporation and Dolgen Corporation, LLC
PA-David Hammer; J-John Yoder
* Plaintiff claims defendant did not pay salary in timely manner when she was involuntarily terminated and in accordance with West Virginia Payment and Collection Act and the established policies of the defendant company. Plaintiff seeks a class action suit and seeks names and addresses of all past employees for the defendant company for five years. Plaintiff seeks damages and interest for herself and any of the unnamed employees in a future class action suit.
Case number: 12-C-547

July 11
FIA Card Services NA vs. Jose E. Rodriguez
PA-Paul S. Atkins; J-Gray Silver III
* Plaintiff claims defendant owes at least $26,929.10 for past due credit agreement.
Case number: 12-C-549

David Shelton and Leashea Shelton vs. Gerald Shafer and Jane Doe Tenant
PA-Christopher C.Luttrell; J-Gray Silver III
* Plaintiffs claim they had a lease agreement with defendant including a purchase agreement for property. Plaintiffs claims defendant did not comply with agreement and even changed conditions unilaterally. Plaintiff claims tenant on property was to leave; however defendant rented to another tenant. Controversy ensued between plaintiff and tenant animals. Defendant issued eviction notice to plaintiff, breaching lease. Plaintiff also claims intentional infliction of emotional distress, violation of West Virginia Consumer Protection Act. Plaintiff seeks punitive and compensatory damages and all other fees to be determined at trial.
Case number: 12-C-552

Tammy L. Kessel, Administratrix of the Estate of David E. Kessel, deceased vs. Jessica Nicole Faircloth, John Doe, Progressive Classic Insurance Company, Westfield Insurance Company
PA-F. Samuel Byrer; J-Christopher Wilkes
* Plaintiff claims on July 15, 2010, defendant was driving a vehicle which struck Mr. Kessel’s motorcycle, causing him to be ejected and ultimately leading to his death. Plaintiff claims defendant was negligent and under the influence of controlled substances and illegal drugs which led to Mr. Kessel’s death. Plaintiff seeks compensatory and punitive damages for lost wages, past and future, funeral expenses and all other fees to be determined at trial.
Case number: 12-C-557

July 13
Samantha Hotaling vs. Stephen Flax, M.D., Dermatology Associates Inc. and Jane Doe
PA-Stephen Skinner J-Christopher Wilkes
* Plaintiff claims in August 2010 she went to the defendant facility for treatment of psoriasis. Plaintiff claims Jane Doe left her under a machine that directs light as part of the treatment. Jane Doe never came back to turn off machinery. Plaintiff left on her own but subsequently developed blisters, burns and painful joints. Defendant Flax agreed that plaintiff had been burned; he prescribed follow-up treatment and gave medication for pain. At later follow up Flax told plaintiff that changes to her skin were likely permanent. Plaintiff seeks compensatory damages to be determined at trial.
Case number: 12-C-569

July 19
Daniel D. Johns and Kellie L. Johns vs. Citibank NA
PA-Sarah L. Hinkle; J-Christopher Wilkes
* Plaintiff claims violation of the West Virginia Consumer Credit and Protection Act. Plaintiff seeks up to $74,999.
Case number: 12-C-575

Michael Todd Robertson vs. Wal-Mart Stores Inc.
PA-David J. Humphreys; J-Gray Silver III
* Plaintiff claims on July 25, 2010, while picking up a prescription at defendant business he slipped on clear liquid and fell sustaining injuries. Plaintiff claims negligence and seeks damages in an amount to be determined at trial.
Case number: 12-C-576

July 20
Andrew Benmbark vs. Linda Fisher
PA-D. Michael Burke; J-John Yoder
* Plaintiff claims July 23, 2010, defendant was negligent and reckless in her automobile causing accident and injury. Plaintiff seeks not less than $29,600 for expenses and lost wages as well as other amounts to be determined at trial.
Case number: 12-C-577

July 23
CACH LLC vs. Tina Marie Holiskey
PA-Andrew N. Frye III; J-John Yoder
* Plaintiff claims defendant owes at least $26,960.97 for past due credit agreement.
Case number: 12-C-583

CACH LLC vs. David R. Cook and Kimberly A. Cook
PA-Andrew N. Frye III; J-Christopher Wilkes
* Plaintiff claims defendant owes at least $26,967.35 for past due credit agreement.
Case number: 12-C-590

Citibank NA vs. Joseph W. Fauble and Rebecca L. Fauble
PA-Andrew N. Frye III; J-Gray Silver III
* Plaintiff claims defendant owes at least $80,846.29 for past due credit agreement.
Case number: 12-C-591

July 26
Douglas M. Diamond vs. Berkeley County Public Service Sewer District
PA-Christopher P. Stroech; J-Gray Silver III
* Plaintiff claims on Aug. 15, 2010, sewer system run by defendant failed and flooded raw sewage into his home. Plaintiff alleges negligence, nuisance and trespass. Plaintiff seeks damages in an amount to be determined at trial.
Case number: 12-C-603

Summit Community Bank Inc. vs. Gap Builders, LLC, a West Virginia limited liability company, Gary A. Poling and Donna L. Poling
PA-Kathy M. Santa Barbara; J-Christopher Wilkes
* Plainitff claims defendant owes at least $392,172.24 plus interest for past due credit agreement.
Case number: 12-C-608

July 31
German American Capital Corporation vs. D&G Developers, Dewey H. Whitmore; Dewey A. Whitmore; Vivian L. Whitmore; Patrick A. Whitmore; Gary W. Dove and Gary W. Dove LLC
PA-Charles F. Printz; J-Gray Silver, III
* Plaintiff claims defendants owe three different past due accounts: (1) $6,933,279.77 plus interest; (2) $415,270.23 plus interest; and (3) $164,454.62 plus interest.
Case number: 12-C-621

Aug. 1
Brittany Rickets vs. Big Lots Stores, Inc. and Kirk Harris
PA-Susan Thompson; J-Christopher Wilkes
* Plaintiff she was sexually harassed by the individual defendant, a manager at Big Lots, which she reported to Big Lots, Inc., who, she says, did not address the issue. In September 2011, after a highly publicized sexual harassment suit was filed against Big Lots, the plaintiff was accused of sending photos of male genitals to a male employee. Plaintiff alleges she was terminated without an investigation into the allegations; the person making the complaint was then moved into her management position. Plaintiff claims defamation of character, failure to pay in timely manner and seeks punitive and other damages as well as reinstatement.
Case number: 12-C-623

Aug. 2
FIA Card Services NA vs. Mark L. McDonald
PA-Edna Jenelle Coulter; J-Gray Silver, III
* Plaintiff claims defendant owes at least $26,984.35 for past due credit agreement.
Case Number: 12-C-624

Dorothy Pike and Jennifer Conway Walters vs. Cracker Barrel Old Country Store Inc, Cleveland Range LLC and Bridget Lowe
PA-Nathan P. Cochran; J-Gray Silver, III
* Plaintiffs claim they were employed at Cracker Barrel in Martinsburg and had informed management of unsafe conditions with a Cleveland Steam Kettle. On Sept. 10, 2010, Pike was using the steam kettle as part of her duties. Walters stopped to talk to Pike and the kettle tipped over dousing both with scalding water. Pike suffered severe injury with five weeks in the hospital while Walters suffered burns on her foot. Plaintiffs allege that Lowe came to the hospital to see Pike and attempted to have Pike sign a release for Cracker Barrel’s responsibility and threatened her job. Plaintiffs claim negligent conduct, unsafe work environment and seek actual and punitive damages, costs, fees and other remedies as may be determined at trial.
Case number: 12-C-636

Dorothy Pike and Jennifer Conway Walters vs. Cracker Barrel Old Country Store Inc, Cleveland Range LLC and Bridget Lowe
PA-Nathan P. Cochran; J-Gray Silver, III
* Plaintiffs claim they were employed at Cracker Barrel in Martinsburg and had informed management of unsafe conditions with a Cleveland Steam Kettle. On Sept. 10, 2010, Pike was using the steam kettle as part of her duties. Walters stopped to talk to Pike and the kettle tipped over dousing both with scalding water. Pike suffered severe injury with five weeks in the hospital while Walters suffered burns on her foot. Plaintiffs allege that Lowe came to the hospital to see Pike and attempted to have Pike sign a release for Cracker Barrel’s responsibility and threatened her job. Plaintiffs claim negligent conduct, unsafe work environment and seek actual and punitive damages, costs, fees and other remedies as may be determined at trial.
Case number: 12-C-637

Aug. 8
Aubrey L. Gibson, as administrator of the Estate of Sandra Louise Gibson and Aubrey L. Gibson, individually vs. Patricia Ann Grove and Anthem Health Plan of West Virginia Inc.
PA-Ralph C. Buss; J-Christopher Wilkes
* Plaintiff claims that on May 5, 2012, Defendant Grove was operating a vehicle negiglently which caused a collision with plaintiff’s motorcycle, causing Sandra Gibson to be ejected. Mrs. Gibson subsequently died from her injuries. Mr. Gibson sustained multiple injuries. Plaintiff claims loss of care, comfort, companionship and consortium. Plaintiff seeks compensation for all actual damages and any other compensation as may be determined by the court to compensate for all losses.
Case number: 12-C-638

Aug. 13
Wendy Casto vs. City Hospital, Inc.
PA-Harry P. Waddell; J-Gray Silver, III
* Plaintiff alleges she was terminated from her employment because she raised concerns over what she saw as unsafe practices in her work at the hospital. She claims she had never had a poor evaluation or any disciplinary action prior to termination. Plaintiff claims retaliation and discrimination, wrongful discharge and seeks reinstatement, lost earning, past and future and any other judgment to be determined at trial.
Case number: 12-C-648

Aug. 16
Gary L. Johnson vs. State Farm Mutual Automobile Insurance Company, an Illinois Company and Leslie Schweitzer
PA-D. Michael Burke; J-Christopher Wilkes
*Plaintiff claims that on Aug. 4, 2010, he was involved in motor vehicle accident. Plaintiff had State Farm Insurance with whom he filed a claim after exhausting resource of other party’s insurance. Plaintiff claims Defendant Schweitzer denied his claim indicating that bills submitted were not related to accident. Plaintiff claims breach of contract, bad faith and violation of the Unfair Trade Practices Act. Plaintiff seeks compensation and punitive damages as well as other fees.
Case number: 12-C-653

Aug. 22
Patty m. Dillow vs. Giant Food Stores LLC
PA-Terrance L. Britt; J-John Yoder
* Plainitff claims that on May 29, 2012, she fell in the local Martin’s Food Store as a result of water on the floor. She claims negligence and seeks compensation for her injuries as well as any other fees.
Case number: 12-C-670

Aug. 24
Murall Limited Partnership vs. Berkeley County Public Service District, Nextel Communications fo the Mid-Atlantic, Inc. d/b/a Nextel Communications and Southwestern Bell Mobile Systems d/b/a Cingular Wireless
PA-Christopher Robertson; J-John Yoder
* Plaintiff claims in the early 1990s, plaintiff and defendant jointly worked to construct a water storage tank with an agreement to split all lease fees from cell telephone users placing antennae on the tower. Plaintiff paid $389,603 in construction costs. From 1999 when the leases began, the defendant continued to vote to split the money as the tank is accessed through a Murall easement. In Dec. 2003 the vote continued to approve the split while additional providers were added to the tower. On May 9, 2011, the defendant unilaterally voted to stop making payments to the plaintiff. Plaintiff claims misuse and overburden of the easement which the plaintiff revoked the use of in 2011. Plaintiff seeks a cease and desist order so that defendants may not use the easement. Plaintiff argues breach of oral contract and seeks injunctive relief, costs and fees.
Case number: 12-C-676

Aug. 27
Sandra M. Manning vs. Capital One Bank (USA) N.A.
PA-Garry G. Geffert; J-Christopher Wilkes
* Plaintiff claims violation of the West Virginia Consumer Credit and Protection Act. Plaintiff seeks up to $74,999.
Case number: 12-C-680

Aug.28
Penny VanMetre, Dennis VanMetre, Steve McDaniel, John Adams and Jeff Carter on behalf of themselves and all others similarly situated vs. A Life Style Service Inc. d/b/a Life Style Staffing and Rubbermaid Incorporated
PA-Barry P. Beck; J-Christopher Wilkes
* Plaintiffs claim they were employed with defendant who had a policy that if an employee refused to finish a job or quit, their final hours were reduced to minimum wage. Plaintiffs claim they were involuntarily terminated but had their wages reduced. Plaintiffs claim a violation of the WV Wage Payment and Collection Act and seek judgment in an amount not greater than $74,999 each individual and not more than $4,999,999 for the entire class.
Case number: 12-C-683

MARTINSBURG – Separate lawsuits filed in Berkeley Circuit Court by two former county employees allege they were fired for exposing either nepotism or cronyism.

The Berkeley County Council is named as a co-defendant in wrongful termination suits filed by Sharon Chaffee, and Jay Russell. In their suits filed April 9 and May 4, Chaffee, 56, of Martinsburg, and Russell, 52, of Winchester, Va., allege they were let go from their respective jobs last Fall when they witnessed, and either questioned or refused to give special consideration given to either family members or friends of county officials.

According to her suit, Chaffee was hired by then-Berkeley County Assessor Preston Gooden in July 2008 to work as a transfer clerk. Sometime in the Fall 2010 after Patricia Kilmer became assessor following Gooden’s death in February 2009, Chaffee was assigned to handle transfers in the Mill Creek district.

On an unspecified date, Chaffee was beginning a foreclosure transfer for property previously owned by Kilmer’s son, James, when she noticed Patricia changed the mailing information to her address. The change, Chaffee alleges, was made sometime before the office opened that morning at 9 a.m.

Though she didn’t make any entries in the Office’s computerized system regarding the transfer, Chaffee says she entered it on the property card. When she did, she noticed that another employee, Lisa Custer, entered a reappraisal code on the card at 8:29 a.m. changing the property from Class 3 to Class 2.

About the time she discovered the issues with the Kilmer property, Chaffee says she also noticed ones with another employee. On Sept. 27, 2010, Chaffee asked Brad Unger, the Office’s chief appraiser, why a townhome belonging to Roger Kirkbride, the Office’s GIS coordinator, and Gooden’s son-in-law, was listed as a Class 2 property and not Class 3.

After telling her he would find out, Chaffee says she watched Unger enter Kilmer’s office with Kilbride. Upon concluding their impromptu meeting, Unger approached Chaffee, told her the classification was correct and if she had any more questions to speak with Kilmer.

When she did, Chaffee says Kilmer replied that Kirkbride told her he used the “townhouse as a vacation home and she was not going to call him a liar.” Also, she said “as long as a home has furniture in it and someone visits there once a year, it qualifies as a vacation home.”

According to the suit, when Chaffee said there was another property classification she wanted to discuss, Kilmer “banged her fists on the table and shouted, “‘I know what property you are talking about, it’s my son’s, and I’ll change the class back and the taxes myself.’”

Kilmer, the suit alleges, continued her tirade saying “that times were hard for everyone and as assessor she had an obligation and the discretion to work with taxpayers” and how “‘You would have done the same thing.’” Kilmer concluded by saying “‘I am the assessor and the decisions are mine to make, not yours.’”

Shortly after she left Kilmer’s office, Chaffee says Unger motioned her to come into his. After making Northwood Bentley, the county attorney, who was in the room with Unger, aware of Chaffee’s concerns, Kilmer said she instructed Unger to change the classification on her son’s property back to Class 3.

However, Chaffee alleges Kilmer, through word and deed, made her displeasure with her known.

In October 2010, Kilmer told Karen Lahrime that there were too many “potstirrers” in the office, and that was going to change. She added that “‘If someone has time to get into other people’s business, then they must not have enough work to do.’”

The next month, Kilmer informed Chaffee she had Kirkbride reconfigure her computer so she could watch what she was doing in “real-time.” The changes included removing icons to not only the Assessor’s Web site, but also ones to the Berkeley Sheriff’s tax office, and those with links to state statutes.

According to Kilmer, Chaffee “did not need to be going to those sites.”

Over the next year, Chaffee alleges Kilmer either began giving work to other employees or teaching them how to do her job. Also, despite making her aware she was qualified to perform data entry work, Chaffee says Kilmer, without advertising it either publically or internally, created a data entry position, and hired her granddaughter.

According to the suit, Kilmer also, without advertising the position, hired her grandson to be an appraiser around the time she hired her granddaughter.

Despite a backlog of work, Chaffee says Kilmer informed her on Oct. 12 that her job “had been abolished.” Though her termination was immediate, Chaffee was told she would be paid through Oct. 14.

In her suit, Chaffee lists Kilmer, and Gearl Raynes, the acting assessor, as co-defendants. Raynes was appointed assessor in December when Kilmer resigned in the midst of an Ethics Commission investigation into her hiring of not only hers, but also the family members of other employees for summer jobs.

According to his suit, Russell was hired by the Council in September 2006 to be the county’s facilities director. Following his election in 2010, Russell says Commissioner Douglas Copenhaver objected to him using Fastenal for electrical supplies and equipment, and demanded he begin using Tri-State Electric.

When he refused, Russell says Copenhaver unilaterally scheduled a meeting with all employees of the facilities department for Sept. 9. Though he was not notified of the meeting, Russell found out about it, and attended.

Copenhaver, Russell alleges, continued to demand that all purchases for electrical equipment and supplies be made from Tri-State. However, Russell stood his ground saying purchases from them “was a waste of County taxpayer money as Fastenal could and would supply the necessary items at a significantly more competitive price.”

After the meeting concluded, Copenhaver then went to the Council’s office and demanded Russell be terminated. According to the suit, Copenhaver, along with Deborah Hammond, the county administrator, and Alan J. Davis, the deputy county administrator, “retreated into Ms. Hammond’s office to discuss the matter privately.”

About a month later, Russell says Davis notified him he was being placed on administrative leave to alleged violations of the county’s fuel card policy. Later, on Oct. 17, Davis sent Russell a certified letter saying an investigation discovered he engaged in “‘theft, misappropriation, embezzlement, unauthorized possession or removal of Berkeley County property or the property of co-workers,” which was being forwarded to the county prosecutor.

According to the suit, the Council on Nov. 10, voted 3-2 to terminate Russell. The reasons for firing him, Russell says, “were a pretext for unlawful retaliation against [him] for opposing waste and wrongdoing.”

Copenhaver is named as a co-defendant in Russell’s suit. In the 10 months since he was fired, no criminal charges have been filed against him.

In her suit, Chaffee seeks unspecified damages to include reinstatement, lost and future wages. She is represented by Martinsburg attorney Harry P. Waddell.

In his, Russell also seeks unspecified damages to include reinstatement and back pay, plus court costs and attorneys fees. He is represented by Waddell and David M. Hammer with the Martinsburg law firm of Hammer, Ferretti and Schiavoni.

Chaffee’s and Russell’s cases are assigned to judges Christopher Wilkes and John Yoder, respectively.

Berkeley Circuit Court, case numbers 12-C-290 (Chaffee) and 364 (Russell)

Aug. 30
Viola C. Shea vs. Value City Inc. d/b/a Value City Furniture
PA-Garry G. Geffert; J-Gray Silver, III
* Plaintiff claims violation of the West Virginia Consumer Credit and Protection Act. Plaintiff seeks up to $74,999.
Case number: 12-C-684

Aug. 31
Green Tree Servicing LLC, successor in interest to Conesco Finance Servicing Corp. vs. Mark Riner and Annette Riner
PA-Jason S. Long J-Gray Silver, III
* On Aug. 27, 2001 Thomas Weatherholz (now deceased) entered into agreement with Plaintiffs as predecessor for principal of $115,454.90. Collateral was 2002 manufactured home. In Weatherholz’ default, Defendants now allegedly liable. Plaintiff seeks judgment to take collateral.
Case number: 12-C-687

FIA Card Services NA, a Subsidiary of Bank of America NA vs. Leland D. Coffey
PA-Paul S. Atkins; J-Christopner Wilkes
* Plaintiff claims defendant owes at least $26,163.71 for past due credit agreement.
Case number: 12-C-689

Sept. 4
Citibank NA vs James W. Amick
PA-Rebecca W. Wright J-Christopher Wilkes
* Plaintiff claims defendant owes at least $50,269.00 for past due credit agreement.
Case number: 12-C-698

FIA Card Services NA vs. Lisa J. Hilton
PA-Andrew N. Frye, III J-Christopher Wilkes
* Plaintiff claims defendant owes at least $34,547.04 for past due credit agreement.
Case number: 12-C-701

Citimortgage Inc. vs. Pamela Orso
PA-Andrew N. Frye, III J-Christopher Wilkes
* Plaintiff claims defendant owes at least $44,138.08 for past due credit agreement.
Case number: 12-C-704

MARTINSBURG – West Virginia’s new business court is, well, open for business.

Judge Christopher Wilkes speaks Wednesday at the opening of the new Business Court Division in Martinsburg. Wilkes is the first chairman of the Division. (Photo courtesy of the state Supreme Court)

“If you think about it, getting anything significant done in government in less than three years, it’s phenomenal,” said Circuit Judge Christopher Wilkes, who will serve as the first chairman of the business court.

Wilkes joked that he was initially wary of a letter he received from Supreme Court administrator Steve Canterbury that began with, “Congratulations, you have been selected to …” because of the possibility of extra work.

But Wilkes added that he and the panel that designed the group studied business courts in other states such as Delaware and North Carolina and crafted an idea they feel will work for a geographically challenged state like West Virginia.

As it opens, three judges make up the business court roster, with a fourth coming before the end of the year. Canterbury says eventually there will be seven judges, geographically displaced, who will hear cases.

Each judge also will have special training in business law, too, said Supreme Court Justice Robin Jean Davis, who added the goal for each case will be a resolution within 10 months.

“In the business world, time is money,” she said. “The litigants are guaranteed not just a quick hearing, but an expert hearing.”

Any business-to-business case filed in the state can be removed to the business court in one of two ways. The judge originally assigned the case will decide if it’s ripe for the business court, or the attorneys handling the case can petition the chief justice of the Supreme Court, currently Menis Ketchum.

If the chief justice agrees, the business court judges will put it to a vote.

Cases will travel to the judges, while administrative matters will be handled at the Martinsburg office.

Canterbury has implemented a video conferencing system that he began using in the late 1990s when he worked for the Regional Jail Authority. He noted that some of the trips to state jails were “punitive,” and the video conferencing system allowed for video arraignments.

For the business court, it will be used mainly for mediation and pretrial discussions, he said. Up to 18 individuals can participate on the screen, though “their heads get a little small,” Canterbury joked.

An electronic filing system will not be used. It is only used in West Virginia for mass tort litigation.

West Virginia’s courts system has been the subject of criticism by the business community in the past because of a lack of intermediate appellate court between the circuit court system and the Supreme Court, along with a lack of a right of appeal.

The latter was addressed by a change in appellate rules that require the Supreme Court to issue a written decision anytime it denies an appeal from a circuit court judgment.

Oct. 1
Winchester Medical Center vs. Glenn Curtis III
PA-Daniel T. Booth; J-Gray Silver III
* Plaintiff claims defendant owes at least $33,290.65 for past due credit agreement.
Case number: 12-C-765

Oct. 2
John White vs. Margaret Anna Buckner
PA-Pro Se; J-Gray Silver III
* Plaintiff claims defendant made false allegations against him which put a negative light on the plaintiff at his place of employment with a Federal agency. False allegations filed with the court could harm plaintiff in child visitation case. Plaintiff claims he may suffer loss of security clearance because of malicious actions of defendant. Plaintiff seeks punitive damages in amount of $145,000 and any other fees.
Case number: 12-C-771

Oct. 3
Robert L. Grove Sr. vs. Kitty Cauffman Hall
PA-Kathy M. Santa Barbara; J-John Yoder
*Plaintiff claims that in 2010 he was hired as project manager of a barn project at a rate of 8 percent of total project cost plus hourly wage. He claims breach of contract, negligent and fraudulent misrepresentation and fraud. Seeks total owed for work done of $75,582.05 plus any additional fees and costs.
Case number: 12-C-772

Ivan Rockenbaugh, Administrator of the Estate of Adrian K. Rockenbaugh vs. Shepherdstown Beverage Company Inc. dba Alto’sClub and DOE Defendants 1-10
PA-Wm. Richard McCune, Jr. J-Christopher Wilkes
* Plaintiff claims that on Aug. 13, 2012, decedent drank to excess facing physical intoxication and incapacitation while at the defendant business. Plaintiff claims defendant failed to detain decedent but let him drive which resulted in an accident causing death. Plaintiff seeks punitive and compensatory damages and other fees and costs.
Case number: 12-C-773

Oct. 9
M&T Bank vs. Tracy L. Simmons and Leslie Simmons
PA-Rebecca W. Wright, J-John Yoder
* Plaintiff claims defendant owes at least $32,442.62 for past due credit agreement.
Case number: 12-C-775

Oct.11
Robin Unger vs. United Physicians Care Inc. dba Apple Valley Family Medicine and Philomela Martirez Tabuena, M.D.
PA-Barry P. Beck; J-Gray Silver III
* Plaintiff claims that on Aug. 11, 2010, she was seen at City Urgent Care. Aug. 17 she was seen at Applee Valley and diagnosed with tension, fatigue, Type II diabetes, insomnia and back pain. Plaintiff was given Ambien and Voltaren and released. Later after returning to ER, plaintiff was admitted with serious health issues. Plaintiff now faces weekly dialysis and possible kidney transplant. Plaintiff alleges medical negligence for tests not run. Plaintiff seeks judgment in an amount to be determined at trial.
Case number: 12-C-786

Winchester Medical Center vs. Aryn Stewart
PA-Richard J. McGervey; J-Christopher Wilkes
* Plaintiff claims defendant owes at least $85,967.65 for past due credit agreement.
Case number: 12-C-787

Leona McGuire (nee Williams) vs. Wade Smith and USAA Casualty Insurance Co.
PA-Mark Jenkinson; J-Gray Silver III
* Plaintiff claims to have been a passenger in a vehicle Nov. 5, 2010, that was involved in accident with Defendant Smith’s car. Plaintiff claims to have incurred expenses of $25,700 due to defendant negligence. Plaintiff seeks judgment for compensatory damages and any other fees.
Case number: 12-C-792

Deborah Priet vs. Dianna Laughery-Good and Berkeley County: Berkeley County Office of the Fiduciary
PA-Pro Se; J-John Yoder
* Plaintiff claims that in July 2011 she was told she was not allowed to attach a death certificate to a property deed despite “rights of survivorship” until after probate. Plaintiff alleges probate was not necessary but had to pay for probate two different times and secure a bond of $240,000. In May 2012, plaintiff alleges she checked status of probate and was told that it had ended in Jan. 2012. While in probate, the home was foreclosed on and sold despite assurances that estate should never have been in probate. Plaintiff alleges dereliction of duty, fraud and theft. She seeks compensatory damages in the amount of $244,357 which represents the appraised value of the home and the overcharge of fees.
Case number: 12-C-793

Mary C. Slemenda and Norman J. Slemenda Jr. vs. Prettyman Broadcasting Company Inc.
PA-David Hammer; J-Gray Silver III
* Plaintiffs allege that Mary Slemenda was hired in 2009 by Prettyman and discharged Aug. 29, 2012. She was paid compensation due Sept. 5, 2012. Norman Slemenda was hired 2006 and discharged Aug. 29, 2012. He alleges Prettyman Broadcasting failed to pay due compensation within 72 hours as set forth in the WV Wage Payment and Collections Act. Plaintiff seeks all damages not to be above $75,000.
Case number: 12-C-795

Oct. 12
David Givin vs. Guardian Fiberglass, Inc. and Eric Widmeyer
PA-David Hammer; J-Christopher Wilkes
* Plaintiff alleges that in March 2011, Defendant Widmeyer asked him to drive a backhoe into a scalding steam pool which was not normally part of his job. The plaintiff did so and later received commendation for doing a dangerous job. In Apr. 2011, Widmeyer asked plaintiff to again drive into the pool without providing proper boots and other protective measures. The task was not a routine part of plaintiff’s job. Plaintiff alleges that he drove into the pool where he was disoriented because of the steam and attempted to escape the heat by exiting the backhoe. The hot water was higher than he realized and entered his boots burning his legs to a level of 3rd degree burns. Plaintiff alleges he can no longer find employment because of his medical condition caused by the accident. He seeks damages to be determined by jury.
Case number: 12-C-797

Oct. 15
Corey B. Pownell vs. Travis Bishop, Tannerman’s Trading Company, LLC; Rossi, USA, Braztech International LC, Taurus International Manufacturing Inc. and Acusport Corporation
PA-Lawrence M. Schultz; J-Christopher Wilkes
* Plaintiff claims that he purchased a Rossi 357 Magnum from Defendant Bishop d/b/a Tannerman’s. On Oct. 18, 2010, while holding the weapon with the safety on, the weapon discharged shooting plaintiff in the left thigh. Plaintiff claims design defect that caused discharge which resulted in medical expenses in excess of $150,000 and loss of earning. Plaintiff claims negligence, breach of warranties and seeks punitive and compensatory damanges and all other fees to be determined at trial.
Case number: 12-C-800

Oct. 17
John F. Mercer, Sr. vs. Saxon Mortgage Services, Inc.
PA-Andrew C. Skinner; J-John Yoder
* Plaintiff claims violation of West Virginia Consumer Credit and Protection Act. Seeks damages not to exceed $74,999.
Case number: 12-C-805

Oct. 22
Martin & Seibert LC vs. Keystone Holdings, LLC and Royce Hosiery LLC
PA-Christopher R. Moore; J-John Yoder
* Plaintiff claims that defendant owes $21,213.93 plus interest in past due credit agreement
Case number: 12-C-811

Chad Thomas and Thomas Transportation Inc. vs. M.S. Hamill Trucking Inc., Mark Hamill individually and in his capacity as president and co-owner of M.S. Hamill Trucking Inc.; Wendy Hamill, individually and in her capacity as agent and co-owner of MS. Hamill Trucking Inc.
PA-Nelson M. Michael J-John Yoder
* Plaintiff claims TTI had contract with Fed Ex Ground which was to be terminated Mar. 23, 2012 due to alleged failure to meet level of service. Plaintiff alleges Mrs. Hamill, former employee of TTI, was responsible for failed level of service so TTI would fail and M.S. Trucking would get contract with FXG. In Mrach 201 TTI filed civil suit for injunctive relieve but dropped suit when MS Hamill bid to purchase routes of TTI for $130,000. M.S. Hamill via Mr. and/or Mrs. Hamill made payment initially but then made less than contracted payment amounts and eventually stopping payments. Plaintiff alleges fraud, negligent misrepresentation and breach of contract. Plaintiff seeks punitive and compensatory damages and all other fees to be determined at trial.
Case number: 12-C-814

Oct. 24
Donna Stewart-Vega vs. 7-Eleven Inc dba 7-Eleven #18665
PA-Ben Crawley-Woods, J-Christopher Wilkes
* Plaintiff claims she was an employee at Kearneysville, WV 7-Eleven and was hurt on the job. She filed and received Workers Compensation. While off work for injury she was terminated by 7-Eleven. Plaintiff claims discriminatory practice and retaliatory discharge. Plaintiff seeks punitive and compensatory damages and all other fees to be determined at trial.
Case number: 12-C-824

Oct.25
Sharon Sine vs. Sheetz Inc.
PA-Mark Jenkinson J-John Yoder
* Plaintiff that on Jan. 26, 2012 she fell as a result of slipping in an oily substance in the parking lot of Sheetz. Plaintiff alleges severe and permanent injuries with hospital and medical costs in excess of $63,000 in addition to lost income to date in the amount of $13,000. Plaintiff seeks all damages to be determined at trial.
Case number: 12-C-826

CHARLESTON – The state Supreme Court has rebuked a Berkeley County attorney for his lack of communication with a bankruptcy trustee.

The Court on Nov. 9 voted 3-2 to admonish D. Michael Burke, a partner in the Martinsburg firm of Burke Schultz Harman and Jenkinson. In its decision, the Court said while not intentional, Burke failed to timely keep the trustee in a woman’s bankruptcy case informed of a lawsuit she hired Burke to file.

Chief Justice Menis E. Ketchum and Justice Margaret A. Workman cast the dissenting votes.

According the decision, 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 in which 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 co-counsel Barry Nace, of the Washington, D.C., firm of Paulson and Nace, could not place a value on it until completion of a medical review.

On Jan. 27, 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.

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 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.

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 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 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 the next month 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, 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.

Following an evidentiary hearing last October, the hearing panel subcommittee of the Lawyer Disciplinary Board, the Court’s prosecutorial arm, dismissed three of the counts filed against Burke in the statement of charges. Finding that he did violate rules dealing with diligence and communication, the panel recommended Burke be admonished.

While admitting he was negligent in not filing a motion to withdraw from Miller’s suit, Burke said his was an isolated error of judgment that should not have involved any disciplinary action. However, the Court disagreed.

In its opinion, which is unsigned, the Court said Burke owed Trumble a duty to keep him informed of not only the suit, but also his participation in it. The lack of communication, the Court said, resulted in unnecessary litigation.

“As special counsel for the trustee of the bankruptcy estate,” the Court said, “Mr. Burke had a duty to Mr. Trumble. Mr. Trumble had a reasonable expectation that Mr. Burke would represent the interests of the estate.”

“Mr. Trumble relied on Mr. Burke to his detriment,” the Court added, “and now the bankruptcy estate has been forced to seek civil action to recoup what Mr. Trumble contends is a substantial sum of money.”

In addition to the admonishment, the Court ordered Nace to pay the costs of the disciplinary proceeding and satisfy any obligations in the pending adversarial proceeding against him in Bankruptcy Court. He was represented by Morgantown attorney Allan N. Karlin.

According to the decision, the admonishment is the first formal disciplinary action brought against Burke since his admission to the state Bar on June 26, 1979.

West Virginia Supreme Court of Appeals, case number 11-0813

Ketchum

CHARLESTON – In the opinion of the chief justice, the West Virginia Supreme Court’s consideration of D. Michael Burke’s disciplinary case was a colossal waste of the Court’s time.

In a blistering four-page dissent, Chief Justice Menis E. Ketchum, joined by Justice Margaret A. Workman, said the Court made a big deal out of a minor error. The Court, he said, ignored its own ruling in the 1976 case of Committee on Legal Ethics of West Virginia State Bar v. Mullins – which Burke cited in his defense – that “

harges of isolated errors of judgment or malpractice in the ordinary sense of negligence would normally not justify the intervention of the ethics committee.”

“In 1976, our Court plainly said that an isolated negligent act will not justify the intervention of the ethics committee.” Ketchum said. “Failing to notify the bankruptcy trustee did not make lawyer Burke unworthy of public confidence or an unfit or unsafe lawyer, as the majority opinion seems to suggest.

“It was an inadvertent slip.”

If the Burke case becomes the new normal, Ketchum said, then the Court can expect to see an explosion of disciplinary cases for the smallest of infractions.

“I dissent because the majority opinion makes no distinction between a mistake and ethical misconduct,” Ketchum said. “As a result, lawyers had better be careful. Deed lawyers, for instance, had better be extra careful.

“If they now inadvertently leave a word out of a metes and bounds description, they are subject to the whims of the Office of Disciplinary Counsel.”

Ketchum

CHARLESTON – “The United States Court of Appeals for the Fourth Circuit has certified a question to this Court that concerns two areas of state law: the law of contract formation, and the doctrine of unconscionability,” begins a Nov. 15 opinion authored by state Supreme Court Chief Justice Menis Ketchum.

Norman and Angelia Nelson purchased a home from Dan Ryan Builders in May 2008, signing a contract that contained an arbitration clause.

The clause demanded arbitration in the event of any “dispute arising under or pursuant to this Agreement” that might be raised by the Nelsons. However, “DRB reserved the right to seek arbitration or to file an action for damages, if the Nelsons ‘default[ed] by failing to settle on the Property within the time required under [the] Agreement.’”

In May 2010, the Nelsons filed a lawsuit against DRB in the Circuit Court of Berkeley County, alleging design and construction issues which resulted in property damages and bodily injury.

DRB then filed a petition in the United States District Court for the Northern District of West Virginia seeking to compel the Nelsons to arbitrate their claims pursuant to the Federal Arbitration Act.

The Nelsons argued that the arbitration provision was unenforceable for two reasons – it lacked consideration and it was unconscionable. The district court did not rule on unconscionability but dismissed DRB’s petition to compel arbitration “because the arbitration provision lacked mutuality of consideration.”

Dan Ryan Builders then appealed to the Fourth Circuit, “arguing that the arbitration provision did not require separate consideration or mutual obligations. DRB argued that the provision was enforceable because there was otherwise sufficient consideration to support the entire contract.”

The Fourth Circuit, after determining that West Virginia law was unclear on the point, then certified this question to the West Virginia Supreme Court:

“Does West Virginia law require that an arbitration provision, which appears as a single clause in a multi-clause contract, itself be supported by mutual consideration when the contract as a whole is supported by adequate consideration?”

Ketchum wrote the Court’s answer: “We conclude that West Virginia’s law of contract formation only requires that a contract as a whole be supported by adequate consideration. Hence, a single clause within a multi-clause contract does not require separate consideration. However, we further conclude that under the doctrine of unconscionability, a trial court may decline to enforce a contract clause – such as an arbitration provision – if the obligations or rights created by the clause unfairly lack mutuality.”

The Fourth Circuit will now continue proceedings on the case in the light of the clarification offered by the state court.

CHARLESTON – The state Supreme Court of Appeals on Nov. 26 affirmed a circuit court’s ruling in favor of an employer in a breach of contract case brought by a terminated physician.

The court also affirmed the finding of defamation against the doctor.

In 2008, Dr. James H. Henick entered into an employment contract with Fast-Track Anesthesia Associates, LLC. The sole owner and director of Fast-Track was Dr. Jessica Palumbo-Peretin, and the contract was for the period of July 1, 2008, to June 30, 2009.

On July 1, 2009, Henick and Palumbo agreed to modify the contract for six more months, with Henick’s employment ending on Dec. 31, 2009.

“A dispute arose between the parties in August of 2009, when Dr. Palumbo learned that petitioner had pre-signed fifty-four blank prescription forms (‘signed blank script’) and left them with his pain management nurse before he left for vacation. When petitioner returned to the office on Aug. 31, 2009, Dr. Palumbo met with petitioner to discuss the signed blank script and then placed petitioner on a paid suspension pending further investigation,” according to the opinion.

“On Sept. 2, 2009, petitioner discussed his suspension with Martinsburg surgeon, Dr. Joseph Cincinnati, who owned Tri-State Surgical Center. During their conversation, petitioner told Dr. Cincinnati that Dr. Palumbo had asked petitioner to pre-sign blank script before he left for vacation. Tri-State and Fast-Track were located in the same office building. Fast-Track was the exclusive provider of anesthesia services to Tri-State’s patients, and Tri-State was Fast-Track’s only client.”

Henick’s employment with Fast Track was terminated later in September 2009 and he filed an action against Fast Track and Palumbo for breach of contract and failure to reimburse his accrued vacation time in March 2010.

“Respondents counterclaimed for breach of contract, defamation per se, and insulting words, but later dismissed the insulting words claim.”

After a bench trial, the judge dismissed Henick’s breach of contract and failure to reimburse claims and found Henick’s statement to Dr. Cincinnati was “defamatory per se because it imputed incapacity in Dr. Palumbo’s profession.” The court awarded Palumbo $100,000 in general damages but “specifically denied a separate award of punitive damages.”

The court also “awarded respondents $87,167 in damages on their counterclaim for breach of contract.”

Henick appealed on seven assignments of error, all of which the Court rejected.

Notably, Henick claimed that since the contract did not state how to handle accrued vacation time then “any ambiguity in the contract should be resolved in his favor” and he should be given his accrued vacation pay.

To this argument the Court wrote, “[P]etitioner’s wife drafted petitioner’s employment contract. Thus, any ambiguity in the contract should be construed against petitioner.”

The Court also rejected Henick’s claim that the circuit court erred in finding his statement to Dr. Cincinnati to be defamatory on its face. Henick argued that the statement had to have been “defamatory on its face to a person of common understanding without the use of innuendo or extrinsic evidence.”

“Petitioner contends that the circuit court ruled that extrinsic evidence–in this case, a physician’s knowledge of rules regarding the practice of medicine–was necessary for petitioner’s statement to be defamatory,” the court wrote.

“The circuit court did not abuse its discretion in finding petitioner’s statement to Dr. Cincinnati to be defamatory on its face. Dr. Cincinnati is a fellow physician who, without explanation, understood the inflammatory nature of petitioner’s statement.”

The memorandum opinion was concurred in by all of the justices of the court.

Nov. 26

Autovest LLC vs. Laura Anne Page aka Laura A. Tawzer, aka Laura A. Davis
PA-Rebecca M. Wright; J-John Yoder
*Plaintiff claims that defendant owes at least $21,152.55 for past due credit agreement.
Case Number: 12-C-910

Autovest LLC vs. Kermit Reginald Miller
PA-Rebecca W. Wright; J-Gray Silver, III
*Plaintiff claims defendant owes at least $23,225.43 for past due credit agreement.
Case Number: 12-C-918

Nov. 27

167th Federal Credit Union vs. Manny Rodman, Anna Rodman
PA-Christopher R. Moore; J-Gray Silver, III
*Plaintiff claims defendant owes at least $69,492.39 for past due credit agreement.
Case Number: 12-C-921

Branch Banking & Trust Company vs. Larry Clark
PA-Christopher R. Moore J-John Yoder
*Plaintiff claims defendant owes at least $24,330.78 for past due credit agreement.
Case Number: 12-C-922

MARTINSBURG – County officials have agreed to settle a deputy sheriff’s civil suit alleging wrongful termination by not only rehiring him, but also awarding him back pay.

After a 13-month hiatus, Perry Shannon Layne is once again a Berkeley County sheriff’s deputy. The Berkeley County Council and Sheriff Kenneth LeMaster on June 6 agreed to bring to a conclusion the writ of mandamus Layne filed in circuit court in September 2011 by agreeing to rehire him retroactive to June 1 and paying him $27,500 “for his embarrassment, inconvenience and emotional distress resulting from the termination of his employment on May 2, 2011.”

According to Layne’s writ, on the latter date, LeMaster fired him for insubordination when he asserted his “Garrity rights” by refusing to submit to a polygraph examination in conjunction with an investigation he sexually assaulted a woman on July 31, 2010, while on duty. Immediately after Layne was indicted in October 2010 on two counts of first-degree sexual abuse, LeMaster placed him on paid administrative leave.

Layne said he remained steadfast in refusing to submit the polygraph examination that was scheduled for May 10, 2011, after Berkeley County Prosecutor Pamela Jean Games-Neeley, who was handling the case personally, refused to grant him a waiver of immunity.

Following his termination, Layne on May 3 , 2011, requested a pre-disciplinary hearing as required by state law, and affirmed by the state Supreme Court in its 2009 Burgess v. Moore decision. When LeMaster didn’t respond by May 12, Layne made a second hearing request.

The next day, LeMaster responded to the second request, setting May 19, 2011,  as the hearing date. In his response, LeMaster gave Layne the option to continue the hearing.

According to his writ, Layne on May 16, 2011, made a request for a continuance. When LeMaster did not respond, Layne still showed for the previously scheduled May 19, 2011, hearing.

However, neither LeMaster nor any of the panel members showed for the hearing. The next day, Layne received a letter from LeMaster’s attorney saying “the Sheriff is under no obligation to have provided a predisciplinary hearing for Deputy Layne. Therefore, the Sheriff declines to provide such a hearing.”

Eventually, Layne would go on trial on the sexual abuse charges on Aug. 23, 2011. He was acquitted four days later.

In addition to rehiring and awarding him back pay, the Council and LeMaster agreed to pay Lane’s attorney, Eric Black, $9,166. In exchange, Layne agreed that the settlement “does not carry with it any contractual or other promise of employment for any specific period of time or term.”

A Democrat and 35-year veteran of the Department, including seven as chief deputy under former Sheriff Randy Smith, LeMaster won his bid for re-election in last month’s general election.

MARTINSBURG – A Martinsburg police officer won his motion for summary judgment in the excessive force lawsuit filed against him in the U.S. District Court for the Northern District of West Virginia.

Judge Gina M. Groh dismissed Plaintiff William E. Hale’s lawsuit against Officer Erin P. Gibbons of the Martinsburg Police Department on Jan. 3.

According to the opinion, on May 6, 2011, Hale was involved in a dispute with the manager of an Enterprise-Rent-A-Car in Martinsburg and he refused to leave after being asked to.

Gibbons arrived in response to a call placed by Enterprise and found Hale talking on the phone in the Enterprise lobby. Gibbons asked Hale to leave the rental agency and Hale responded that he would leave after he finished his phone call to Enterprise’s customer service department.

The opinion states, “The Plaintiff alleges the Defendant became agitated and told the Plaintiff to leave the rental agency again. The Plaintiff continued his call. At that point, the Defendant allegedly began tasing the Plaintiff on the neck, shoulders, and upper back.

“According to the Plaintiff, even though he advised the Defendant he had a defibrillator, the Defendant continued to administer repeated shocks to the Plaintiff’s neck, shoulders, and back.”

At this point, another police officer, Officer Jones, responded and they were able to subdue Hale, remove him from Enterprise, and place him in the back of a patrol car.

Hale alleged that he began to experience chest pains during the incident, and at some point after his release from the Martinsburg City Police Department later that day, he was carried to a local hospital by his daughter. He was released on May 9, 2011.

“The Plaintiff alleges the Defendant and Officer Jones’ use of force resulted in more than thirty burn wounds on his neck, shoulders, and back,” the opinion states.

The version of events described by the officers, and mostly backed by other witnesses on the scene, was decidedly different from the plaintiff’s.

“According to the Defendant,” when defendant arrived, “the Plaintiff was ‘speaking in circles,’ holding the telephone up to his ear without talking into it, then putting it down in his lap. Therefore, the Defendant concluded the Plaintiff might be mentally impaired,” the opinion says.

“When the Plaintiff commented he was calling his daughter or wife to pick him up, the Defendant offered to give the Plaintiff a ride to a nearby 7-Eleven store to wait for his ride. The Defendant testified based on the Plaintiff’s behavior, he feared the Plaintiff might be ‘buying time,’ and ‘on the brink of exploding.’

“Thus, the Defendant alleges he gave the Plaintiff several more orders to leave and placed a call for backup. At this point, the Plaintiff stated “the only way I’m leaving is by physical force.”

Gibbons claimed that after grabbing Hale by his arm, Hale pulled away from him and Gibbons then administered a five-second burst to Hale’s back. After it appeared that the initial burst did not faze Hale, Gibbons tased Hale again several times in an effort to get Hale to lie on the floor and stay there.

“During the scuffle, Officer Jones arrived on the scene in response to the Defendant’s call for backup. Officer Jones testified at his deposition that when he arrived at the scene, he saw the physical altercation inside through Enterprise’s large glass windows,” the opinion says.

“When Officer Jones entered the building, he found the Defendant backed up against a wall with the Plaintiff between the Defendant and Officer Jones. Officer Jones observed the Plaintiff’s hand on either the Defendant’s shirt or gun belt.

“Therefore, Officer Jones alleges he commanded the Plaintiff to place his hands behind his back, but the Plaintiff did not comply. Thus, Officer Jones discharged his taser, striking the Plaintiff in the back. Afterward, the Defendant was able to subdue the Plaintiff on the ground.”

Hale filed suit against Gibbons, Jones and the City of Martinsburg, alleging excessive force in violation of the Fourth Amendment and various state law claims.

“On December 7, 2012, the Court approved and entered an Agreed Order of Voluntary Partial Dismissal, dismissing Officer Jones and the City of Martinsburg as parties defendant to this action and further dismissing the Plaintiff’s state law claims,” the opinion says.

The only claim remaining at this point was the excessive force claim against Officer Gibbons and he moved for summary judgment “on the basis that he did not employ excessive force against the Plaintiff as a matter of law and is furthermore entitled to qualified immunity.”

Judge Gina Groh wrote, “In addressing an excessive force claim brought under §1983, the analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.” In this case the right is the “prohibition against unreasonable seizures of the person.”

“Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion of the individual’s Fourth Amendment interests against the countervailing governmental interests at stake,” Groh wrote.

“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 vision of hindsight.

“The factors annunciated by the Supreme Court in Graham were adopted and applied by the Fourth Circuit in Lowery v. Stovall, 92 F.3d 219 (4th Cir. 1996), wherein the Court of Appeals held that ‘[i]n judging the reasonableness of a seizure, we consider three factors: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether he is actively resisting arrest or attempting to evade by flight.’

“Considering the Graham/Lowery factors in the instant case, the Court finds that the Plaintiff was trespassing on Enterprise’s property once he refused their request to leave and the Plaintiff disobeyed a law enforcement officer more than once when commanded to leave. Moreover, the Defendant had reason to believe, based upon the Plaintiff’s behavior and demeanor, that the Plaintiff posed an immediate threat to the safety of the Defendant and others.

“Finally, the Defendant had reason to believe the Plaintiff was resisting arrest when he did not comply with the Defendant’s commands after he was initially tased. Therefore, the Defendant’s conduct in further tasing the Plaintiff in order to subdue him was objectively reasonable pursuant to Graham and Lowery.

“The Defendant did not club, hit, kick, or shoot the Plaintiff, nor did he tase the Plaintiff in an overly-sensitive area. The Plaintiff was not already restrained by handcuffs or otherwise confined at the time of the Defendant’s use of force. In fact, it is uncontested that Officer Jones, upon his arrival, also determined based upon his observations to tase the Plaintiff in order to subdue him.

“In the case at bar, the Court finds based upon the uncontested material facts that the Defendant’s use of force to subdue the Plaintiff was objectively reasonable under the circumstances.”

Although the granting of summary judgment on excessive force had effectively exonerated Gibbons, Groh then turned to the qualified immunity claim, presumably for appeal purposes.

“In Saucier, the Supreme Court mandated a two-step sequence for resolving government officials’ qualified immunity claims. First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Saucier, 533 U.S. at 201,” she wrote.

“Second, if the plaintiff has satisfied the first step, the court must decide whether the right at issue was ‘clearly established’ at the time of the defendant’s alleged misconduct.

“With regard to the first Saucier/Pearson factor, for the same reason that the Defendant is entitled to summary judgment on the Plaintiff’s claim of excessive force, the Plaintiff cannot demonstrate that his constitutional rights have been violated.

“Moreover, even if the Plaintiff could demonstrate deprivation of a constitutional right, he would not be able to satisfy the second Saucier/Pearson factor by demonstrating that such right was ‘clearly established.’

“It is uncontested that the Plaintiff disobeyed lawful orders to leave the premises, obstructed a law enforcement officer, stated that he would only comply if taken by force, and when shown the taser stated ‘you do what you’ve got to do.’

“Viewing the situation through the lens of information actually possessed and observed by the Defendant at the time of the use of force in question, the Defendant had reason to believe that the Plaintiff posed an immediate threat to the safety of the Defendant and others.

“The Defendant’s initial use of force was met with resistance by the Plaintiff and, in response, more force was used in order to subdue the Plaintiff. Such conduct was neither ‘plainly incompetent,’ nor was it in ‘knowing violation’ of the law.”

Inside the Business Court office in Martinsburg.

CHARLESTON – The West Virginia Chamber of Commerce is holding a symposium to highlight the state’s new business court.

The court, which opened in October, is designed to streamline company-against-company litigation. It is headquartered in the Berkeley County Judicial Center in Martinsburg.

The Chamber of Commerce’s symposium is scheduled for Jan. 22 in Charleston. It is hosted by Jackson Kelly and will be held at its Charleston office on Lee Street.

Cost is $30 per person. Reservations can be made by contacting Kim Nelson at knelson@wvchamber.com or 304-342-1115.

State Supreme Court Justice Robin Davis is the event’s keynote speaker. She was in attendance in October when the business court was unveiled at a ceremony.

Business Court Chief Judge Christopher Wilkes and Judge James Young have also accepted invitations to attend.

The plan for the business court is to have seven judges geographically positioned around the state who have special training in business law. Davis said the goal for each case will be a resolution within 10 months.

“In the business world, time is money,” she said in October. “The litigants are guaranteed not just a quick hearing, but an expert hearing.”

Any business-to-business case filed in the state can be removed to the business court in one of two ways. The judge originally assigned the case will decide if it’s ripe for the business court, or the attorneys handling the case can petition the chief justice of the Supreme Court, currently Brent Benjamin.

If the chief justice agrees, the business court judges will put it to a vote.

Cases will travel to the judges, while administrative matters are handled at the Martinsburg office.

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