March 28

James E. and Juanita Sue Wilson vs. Rex Allen and Shelia Gay Cupp
PA– Damon B. Morgan; J– Nibert
* The plaintiffs, residents of 1255 Jolly Rd. in Fraziers Bottom, seek a court order determining the boundary lines of an easement they use as a private road to enter their property, which is adjacent to property owned by the defendants, residents of 1371 Jolly Rd., and permanently enjoining the Cupps from blocking the road. They also seek recovery of court costs.
Case number: 13-C-51

Vanderbilt Mortgage and Finance, Inc. vs. Jimmy and Gina Eads
PA– Marc Lazenby; J– Nibert
* The plaintiff, a Tennessee business, is suing the defendants, residents of Carnell Ln. in Leon, for allegedly defaulting on a $50,224.88 loan given them to purchase a 2003 mobile home. After purchasing it at a Nov. 30 trustee sale for $45,000, Vanderbilt seeks immediate possession of the property.
Case number: 13-C-52

POINT PLEASANT – A company sued in October by former state Attorney General Darrell McGraw claims it is confused as to what it is being charged with.

McGraw filed the lawsuit on Oct. 2, 2012, in Mason Circuit Court, seeking civil penalties and injunctive and equitable relief to redress Intersections Insurance Service allegedly unlawful, unfair, deceptive and/or unconscionable practices in violation of the West Virginia Consumer Credit and Protection Act since Jan. 1, 2001.

McGraw claimed the defendant made inadequate disclosures to consumers; committed unlawful telemarketing activities; imposed unlawful fees; sold services to consumers who could not receive the purported benefits; refused to award coverage to certain consumers enrolled in payment protection plans; and made and enforced unconscionable terms or provisions of consumer credit sales.

Morrisey

“Intersections is a company that sells and/or markets and/or administers certain products and services to West Virginia consumers… Intersections’ practices constitute unfair or deceptive acts or practices and unconscionable conduct under the Act…” the complaint states.

The company filed a motion for a more definite statement on April 2.

In the defendant’s accompanying memorandum, Intersections claims it is unclear from a fair reading of the complaint how McGraw believes it has violated any of the statutory provisions set forth in the complaint.

The case is now being handled by Attorney General Patrick Morrisey, who took office earlier this year.

Intersections has asked the court to order Morrisey to prepare a more definite statement as to why it has been made a defendant in this action.

“Based upon the four corners of the Complaint, it is clear that Plaintiff simply pleads a variety of legal conclusions, opinions and unwarranted averments of fact without including specific facts related to IISI activities which allegedly violated the West Virginia Consumer Credit and Protection Act,” the memorandum says.

Morrisey is seeking civil penalties with pre- and post-judgment interest. He hired private attorneys Troy N. Giatras of the Giatras Law Firm PLLC and W. Jesse Forbes of Forbes Law Offices PLLC to represent the State.

Intersections is being represented by Charles R. Bailey of Bailey & Wyant PLLC.

The case has been assigned to Circuit Judge David W. Nibert.

Mason Circuit Court case number: 12-C-122

POINT PLEASANT – Mason County School Superintendent Suzanne Dickens has filed her answer in a defamation lawsuit filed against her by a former Mason County Sheriff’s deputy.

Robert Glenn, a former Mason County Sheriff’s deputy, claims Suzanne Dickens, the superintendent of Mason County Schools, defamed him by making false statements to WSAZ News on March 18, 2011, about him sexually harassing students at Hannan Senior and Junior High School while he was working as the prevention resource officer, according to a complaint filed March 9, 2012, in Mason Circuit Court.

Glenn claims Dickens did knowingly, recklessly, willfully, wantonly and maliciously slander and/or libel and/or defame him by making, publishing and declaring information to WSAZ News, alleging that he had sexually harassed children at Hannan.

Dickens’ allegations were false, slanderous and libelous per se and were published with reckless disregard for the truth, according to the suit.

In her answer, Dickens claims Glenn’s complaint fails to state a claim upon which relief can be granted.

Dickens claims she did not commit any act constituting defamation, libel or slander and did not commit any act of negligence that resulted in injury to Glenn.

Glenn is seeking compensatory and punitive damages. He is being represented by Mike Clifford.

Dickens is being represented by Robert J. Kent of Bowles Rice McDavid Graff & Love LLP.

The case has been assigned to Circuit Judge David W. Nibert.

Mason Circuit Court case number: 12-C-29

Morrisey

RICHMOND, Va. – State Attorney General Patrick Morrisey doesn’t think Pfizer Inc. should be allowed to appeal a federal court’s decision to remand his case against it to Mason County.

In an answer to Pfizer’s permission to appeal to the U.S. Court of Appeals for the Fourth Circuit, attorneys for Morrisey’s office argued June 6 that permitting the appeal would upset the jurisdiction granted to federal courts.

Pfizer and Ranbaxy are accused of conspiring to delay introduction of a generic version of Pfizer’s cholesterol-lowering drug Lipitor.

Former Attorney General Darrell McGraw filed the case earlier this year in Mason Circuit Court, but the defendants removed it to U.S. District Court in Huntington.

“Defendants seem to suggest that the matter of federal question jurisdiction can be heard by this court on a pendant basis together with the alleged (Class Action Fairness Act) question… That suggestion fails for two reasons,” the answer says.

“First… CAFA jurisdiction is lacking here, too. Second, even if there was a reviewable CAFA question, Defendants offer no authority for this court to expend appellate review to matters beyond CAFA-related question. In fact, case law in this court suggests the contrary.

“The bar on reviewing a remand order based on subject matter jurisdiction is so strict that it ordinarily extends also to other issues in the order.”

On May 23, the defendants asked for permission to appeal a decision by U.S. District Judge Robert C. Chambers, of the Southern District of West Virginia, that denied their request to have the lawsuit transferred to a multidistrict litigation proceeding in a New Jersey federal court.

“(T)he court concludes that there is no persuasive reason to stay this action pending its possible transfer to federal MDL proceedings,” Chambers wrote May 13.

“After evaluating the merits of the parties’ arguments regarding remand, the court determines that the claims asserted in the complaint do not arise under federal law, nor do they fall within this court’s diversity jurisdiction. Because this court lacks subject matter jurisdiction, Plaintiff’s motion to remand must therefore be granted.”

The complaint says Pfizer fraudulently obtained a second, duplicative patent from the U.S. Patent and Trademark Office and listed it in the U.S. Food and Drug Administration’s Orange Book, filed a sham citizen petition with the FDA to stall approval of the generic Lipitor, embarked on an anticompetitive agreement with Ranbaxy and thwarted efforts to obtain judicial declarations that their patents were invalid.

Attorneys for the defendants noticed the MDL organized in April in a New Jersey federal court over the issue that consists of at least 29 class action lawsuits. They said Morrisey’s case is a “tag-along” and should have been incorporated into the MDL.

The defendants had filed a motion to stay the lawsuit pending a transfer to the MDL. The Judicial Panel on MDL had issued a conditional transfer order that Morrisey objected to.

Chambers refused to impose a stay and addressed the defendants’ claims that the lawsuit belonged in federal court.

The defendants’ claimed the allegations depended on questions of federal patent law and that the Class Action Fairness Act of 2005 allowed removal.

Chambers was not persuaded by any of the defendants’ arguments and looked to a recent decision by the Fourth Circuit in McGraw’s case against CVS Pharmacy, which had made a similar CAFA argument.

The lawsuit is not a class action, and the State is invoking its parens patriae power in pursuing it, Morrisey argued.

Outside counsel hired by McGraw to represent the State are Troy Giatras of Charleston and the Philadelphia firm Levin Fishbein Sedran & Berman.

The reply filed by the defendants June 13 says their petition raises an important, unsettled CAFA-related question – whether the Attorney General’s Office can avoid CAFA jurisdiction by labeling a damages action under the West Virginia Antitrust Act on behalf of the State and a group of citizens as a parens patriae action.

“The federal courts are divided on this question, which is likely to arise every time a state attorney general brings an action under a similar state antitrust statute in the name of the state, but seeks relief for a particular subset of its citizens,” the reply says.

The U.S. Supreme Court will handle the issue when it takes on Mississippi Attorney General Jim Hood’s case against AU Optronics. Pfizer and Ranbaxy have asked the Fourth Circuit to wait on a ruling before it decides its petition for appeal.

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

POINT PLEASANT – One of the eight credit card companies sued by former state Attorney General Darrell McGraw has reached a settlement with his successor.

On June 18, Mason County Circuit Court Judge David W. Nibert approved a settlement between First Premier Bank and Attorney General Patrick Morrisey. McGraw filed the lawsuit in 2011 against a group of credit card issuers over their payment protection plans.

The settlement is worth $112,500.

“This settlement is a success for West Virginia consumers,” Morrisey said.

“These consumers were enrolled and charged for a service if they expressed even an ‘interest’ in the program. Often they were not given an opportunity to review the terms or conditions, fee structure or how to collect benefits.”

The settlement came two weeks after a ruling by the state Supreme Court against the credit card companies. They were arguing the Attorney General’s Office should not be allowed to hire private attorneys to represent the State on a contingency fee.

It was McGraw’s practice of hiring private attorneys who also contributed to his campaign that irked the businesses he filed lawsuits against.

The credit card companies were arguing the agreements are illegal in three ways:

-They violated the West Virginia Government Ethics Act, which prohibits a public employee from “knowingly and intentionally using his or her office… for his or her own private gain”;

-The West Virginia Rules of Professional Conduct bar lawyers from representing clients when the lawyer’s own interests may conflict with the client’s interest; and

-The attorney general is exceeding his statutory authority because the Legislature has expressly limited him to paying assistants exclusively from legislative appropriations.

As to the first claim, Justice Robin Davis wrote for a unanimous majority that a private attorney appointed as a special assistant attorney general is not an “employee” of the Attorney General’s Office under the definition of “employee” under the Government Ethics Act.

“The language from the appointment letters does not require the Attorney General to pay the special assistant attorneys general wages or anything of value,” the opinion says.

“All that the letters provide is that the special assistant attorneys general must pay the cost of litigating the cases and that, if they prevail, a court may award them attorney’s fees.”

The appointment letter read, “It is contemplated that you will advance all expenses associated with the maintenance of this action. Subject to the approval of the court, it is anticipated that you should earn a proper, reasonable and customary fee.”

As to the second claim, which argued attorneys can’t have a financial interest in the outcome of litigation, Davis said no conflict exists under the current agreements.

“We fail to see how recommending penalties to the Attorney General, in and of itself, presents a conflict of interest by the special assistant attorneys general,” she wrote.

“First, recommendations are mere suggestions that can be rejected. Second, the complaints in this matter demonstrate that the Attorney General determined and set out the penalties sought in these cases.

“The complaints meticulously set out penalties ranging from monetary to injunctive relief. The complaints were styled in the name of the Attorney General, on behalf of the State, and were signed by the Chief Deputy Attorney General.

“Insofar as the evidence demonstrates that the Attorney General chose and approved of the penalties to be sought if liability was established, we find Petitioners’ arguments in this regard do not support a violation…”

The final issue – that the attorney general lacks the authority to appoint special assistant AGs, was also rejected. Davis wrote that state law, though it provides for the appointment of assistant AGs but not special assistant AGs, does not prohibit the attorney general from the agreements under the office’s common law authority.

Morrisey says the Charleston law firm Bucci, Bailey & Javins will be paid $37,500 from the First Premier settlement.

The rest of the settlement will be used for future consumer protection services and will be handed over to the Legislature.

“During the 2013 regular legislative session, the Office of the Attorney General worked with the Governor and lawmakers to forge an agreement that would return excess Consumer Protection Recovery Fund monies to the Legislature, as long as the fund maintained a balance to cover three years of operating costs,” Morrisey said.

Remaining defendants in the case are Bank of America, JPMorgan Chase, Citibank, Discover Financial Services, GE Money Bank, World Financial Network Bank and HSBC Bank Nevada.

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

May 9

Erie Insurance Property and Casualty Company vs. Michael Douglas Burns
PA- William Crichton V; J- Nibert
*The plaintiff is suing the defendant on behalf of its customers – Christopher, Patricia, David, Dawn and Danielle Mullins and Don Walker – for subrogation of claims totaling $194,224.84 from a motor vehicle accident with Burns on May 28, 2011. Erie also seeks interest, and court costs.
Case number: 13-C-71

May 10

The city of Point Pleasant vs. Donald R. and Emma F. Duncan, Dru Ross, Michael S. and Maria C. Pratt, Nick Stephens, Judith and Dencil Reynolds, Jr., and Tom McNeely
PA – R. Michael Shaw; J – Nibert
*The plaintiff seeks an order condemning a portion of the defendants’ property for creation of the North Point Drainage Project.
Case numbers: 13-C-74-81

May 28

Dorothy Parsons and Charles David Yoakum vs. Terry Steele, individually, and as administrator of the estate of Janice Yoakum
PA- R. Michael Shaw; J- Evans
*The plaintiffs seek a court order nullifying the alleged agreement Steele, Parsons’ son-in-law, signed with Charles, her grandson, waiving all any claims on assets of Janice’s estate who died on Feb. 19, 2012.
Case number: 13-C-89

May 31

Michael D. Fisher, individually and as executor of the estate of Norma Jean Fisher and Ethel M. Colbert vs. Erie Insurance Company, and Symra Gale Norman
PA- Stephen C. Littlepage; J – Nibert
*The plaintiff, a Washington, Pa., resident, seeks judgment against the defendants for $18,000, plus interest, court costs and attorneys fees for Dornan’s alleged failure to timely administer Charles O’Dell Fisher’s estate following her appointment as administratrix on July 23, 2007, and removal on July 14, 2011, during such time she was bonded by Erie.
Case number: 13-C-90

HUNTINGTON – A couple are suing Giles Industries after they claim it sold them a defective manufactured home.

CMH of KY Inc., which is doing business as Freedom Homes; Kitchen’s Construction; and Prichard’s Excavating & Mobile Home Transport were also named as defendants in the suit.

On Jan. 18, 2012, Darrell L. Pearson and Teri A. Pearson purchased a new Giles manufactured home from CMH for $81,000, according to a complaint filed July 12 in the U.S. District Court for the Southern District of West Virginia at Huntington.

The Pearsons claim during the delivery and installation of the home, Prichard’s damaged the home substantially and failed to provide proper, initial, set-up services of the home as required by law and Giles’ installation instructions.

After delivery of the home, Kitchen’s attempted, but failed, to properly perform the initial set-up of the home or make proper repairs of damaged portions of the home, which prohibited the Pearsons and their children from inhabiting the home during the 10-month period that the home has sat on their property, according to the suit.

The Pearsons claim they discovered and reported numerous defects and damaged portions of the home and repeated non-conformities that substantially impaired the use, value and/or safety of the home and prohibited them from obtaining any use or value whatsoever from the home.

The defendants’ action involving the sale, delivery, installation and subsequent unsuccessful repair attempts occurred in the conduct and trade or commerce within the meaning of the West Virginia Consumer Credit and Protection Act, according to the suit.

The Pearsons are seeking compensatory and punitive damages with pre- and post-judgment interest. They are being represented by Thomas F. Basila of the Law Office of Thomas F. Basila.

The defendants are being represented by Jason J. Stemple and A. David Nichols of Duffield, Lovejoy, Stemple & Boggs PLLC.

The lawsuit was first filed in Mason County on June 6 before being removed to federal court.

U.S. District Court for the Southern District of West Virginia at Huntington case number: 3:13-cv-19629

WHEELING – A Mason County man and his wife are suing Schlumberger Technology Corporation in federal court after he allegedly sustained injuries while at Schlumberger’s facility during the course of his employment with another company.

On July 25, 2011, Bruce J. Meade, who was an employee of Bulk Transit Corporation, was contracted to deliver a load of cement mix to the Schlumberger facility in Weston, according to a complaint filed July 24 in the U.S. District Court for the Northern District of West Virginia at Wheeling.

Meade claims upon arriving at Schlumberger’s Weston facility, he was directed to exit his truck and sign in at the front office, where he would also receive instruction of where to take the cement mix.

After Meade received instructions, he drove his truck and trailer to the unloading area and waited for permission to unload the load of cement mix.

Meade claims at the direction of Schlumberger employees, his co-worker was instructed to connect his end of the unloading hose to his truck’s trailer and the Schlumberger employees hooked up the other end of the hose to their silo.

Following the connection at both ends of the hose, Meade’s co-worker was instructed by the defendant’s employees to turn on his pump and begin pumping out a sample of cement mix into the silo, according to the suit.

Meade claims after being instructed to turn on the pump, his co-worker did so and suddenly, without warning, the hose pressurized and “kicked out,” striking Meade in his legs and back and knocking him to the ground.

The defendant failed to provide a safe and suitable work environment and to comply with federal and state laws and industry standards of practice; created a hazardous and dangerous condition it knew or reasonably should have known was likely to cause substantial injury and possibly death, according to the suit.

Meade claims as a direct and proximate result of the defendant’s negligence, recklessness and carelessness, he suffered serious and permanent injuries, including injuries to his head and back; incurred medical expenses; incurred lost wages; sustained a loss of earning capacity; suffered humiliation and embarrassment; suffered annoyance, aggravation and mental anguish; and sustained an impairment of the capacity to enjoy life.

Meade’s wife, Tiffany A. Meade, has been deprived of the service, society and consortium of her husband, according to the suit.

The Meades are seeking compensatory damages with pre- and post-judgment interest. They are being represented by Robert V. Berthold Jr. and Robert V. Berthold III of Berthold Law Firm PLLC.

The case has been assigned to District Judge John Preston Bailey.

U.S. District Court for the Northern District of West Virginia at Wheeling case number: 2:13-cv-00051

POINT PLEASANT – Eli Lilly and Company committed fraud on the people of West Virginia in selling the drug Zyprexa, Attorney General Darrell McGraw claims in a suit he filed Feb. 28 in Mason Circuit Court.

McGraw seeks to stop Eli Lilly’s deceptive practices, collect damages, and create a fund for those who will develop diabetes and other diseases from taking Zyprexa.

McGraw’s complaint states that the Food and Drug Administration approved Zyprexa for schizophrenia and bipolar mania but doctors prescribe it for other uses.

The complaint states that Zyprexa is the largest selling atypical antipsychotic in the world and the most widely prescribed antipsychotic in the United States.

“West Virginia’s Department of Health and Human Services has paid at least $70 million for Zyprexa in its Medicaid program since 1996,” the complaint states.

It says studies have linked Zyprexa to diabetes since 1998.

It alleges that sales representatives misled and deceived doctors about the safety and the efficacy of Zyprexa.

It alleges that advertisements deceptively understated risks and overstated benefits.

It alleges that Lilly promoted “off label” prescriptions for anxiety, sleep disruption, mood swings, attention deficit hyperactivity and dementia.

As a result of these actions, according to McGraw, Lilly sold more Zyprexa than it would have sold if it had disclosed the risk of diabetes and other diseases.

“Lilly benefited from its misrepresentations and fraudulent conduct by gaining sales of Zyprexa at the expense of other, safe, effective drugs,” the complaint states.

“The money paid by the State would not have been paid to Lilly except for its fraudulent conduct,” it states.

McGraw seeks three times the amount of the alleged overpayments plus civil penalties, restitution, reimbursement and creation of a fund to pay for future medical care.

He also seeks reasonable attorney fees along with other costs and fees.

Circuit Judge David Nibert will hear the case.

POINT PLEASANT – A man who was forced to pay his divorce settlement that he says he did not agree to is suing a secretary who he claims falsified divorce documents.

Danny Ray Westmoreland claims Myra Shull falsely notarized a divorce document in a lawsuit filed Feb. 15 in Mason Circuit Court. He is seeking $94,000 in actual damages and $250,000 in punitive damages.

He adds that Shull’s actions led to Gary Berry, doing business as Special Care Cleaning, to be found guilty of grand larceny.

Shull has filed Motion to Dismiss, stating that the Plaintiff’s claim is barred by the statute of limitations. Also, Westmoreland’s original civil case was against Raymond Musgrave and the Musgrave Law Office, for whom Shull worked, but Musgrave has filed for bankruptcy.

Westmoreland claims that Shull notarized a document on April 15, 2004, and claimed he was present, which he says he wasn’t.

“Myra Shull notarized a document… claiming I was before her, which was not possible due to the fact that she was secretary to Raymond Musgrave representing Kimberly Westmoreland in divorce proceedings against me, which allowed no contact against Musgrave and myself,” the complaint says. “This was a false notary intentionally committed.”

Westmoreland had reached a $15,000 settlement with his ex-wife, said Shull, who adds that he is only taking this action to avoid paying that settlement.

Shull continues that Westmoreland has filed at least 11 actions in Mason Magistrate Court and approximately nine in Mason Circuit Court.

“As evidenced by his litigation history, the Plaintiff in the instant action is once again, in bad faith and without any truthful allegations, attempting to utilize the Court’s resources as a mean to be vexatious,” the Motion to Dismiss states.

Judge Dan O’Hanlon of Cabell Circuit Court has been assigned the case.

Mason Circuit Court case number 06-C-22

POINT PLEASANT – A Point Pleasant woman is suing a pharmacy that she claims caused her slip and fall during a March 2004 incident.

Louise H. Caynor claims that she slipped when her foot struck a display stand at 9 p.m. March 10, 2004, at Fruth Pharmacy in a lawsuit filed March 10 in Mason Circuit Court.

“The Defendant’s negligence proximately caused the Plaintiff… to sustain serious and permanent injuries, including, but not limited to, damages to her bones, ligaments, tendons, muscles, nerves, and other tissues in her left knee and left shoulder along with a shock to her entire physical and nervous systems,” the complaint says.

Caynor alleges that her foot was caught by one of the wheels sticking out from the bottom of the display stand. She says that all her injuries are likely to be permanent.

“The Plaintiff has suffered and will continue to suffer for the remainder of her life physical pain, discomfort, mental anguish and nervous and emotional damage and disorder and the inability to enjoy the normal pursuits of life, including recreational endeavors,” the complaint adds.

Caynor seeks compensatory damages and court fees.

James M. Casey will represent Caynor. Judge Thomas C. Evans III has been assigned the case.

Mason Circuit Court case number 06-C-35

Feb. 15
Danny Ray Westmoreland vs. Myra Shull
PA – pro se J – Dan P. O’Hanlon of the Fifth Judicial Circuit
* Danny Westmoreland, acting as his own attorney, alleges that the defendant, Myra Shull, falsely notarized a document which resulted in a $15,000 civil settlement and $79,000 in damages from criminal proceedings. Westmoreland states that Shull could not have notarized the document in question because the attorney’s office where she is employed was representing his wife in divorce proceedings against him. The plaintiff is asking for the relief of the civil and criminal damages in the total amount of $94,000 and punitive and corrective damages in the amount of $250,000.
Case number: 06-C-22

Feb. 28
State of West Virginia ex rel. Darrell V. McGraw, Jr. vs. Eli Lilly and Company
PA – Frances A. Hughes J- David W. Nibert
* The State claims the Indiana-based company engaged in deceptive practices in regards to the sale, marketing and distribution of its brand-name drug, Zyprexa, which violated the West Virginia Consumer Credit and Protection Act and the Medicaid Fraud Act. The State alleges the defendant had knowledge of the risks of the drug, which the State claims include an increased risk of developing diabetes mellitus. The State also alleges the Lilly Company marketed its drug to physicians for uses not approved by the FDA. The State is seeking three times the amount Medicaid paid to the Lilly Company and compensation for all legal fees, in addition to the Lilly Company creating a fund to pay for all future injuries caused by the drug’s use.
Case number: 06-C-31

March 10
Louise H. Caynor vs. Fruth Pharmacy, Inc.
PA – James M. Casey J – Thomas C. Evans III
* The plaintiff, Louise Caynor, is suing Fruth Pharmacy for what she claims was the company’s negligence to remove dangerous objects from her pathway or to warn her of their presence when she was shopping in defendant’s place of business in March of 2004. Caynor claims that a wheel protruding from the bottom of a display caused her to fall and caused her to suffer serious and permanent injuries. The plaintiff seeks an unspecified amount of compensatory damages, in addition to compensation for legal fees.
Case number: 06-C-35

POINT PLEASANT – Bennigan’s Restaurant is suing the Church of Christ in Christian Union over the use of an adjacent parking lot.

In a lawsuit filed March 27 in Mason Circuit Court, Bennigan’s claims that Church of Christ has refused to abide by a verbal agreement that the two parties reached to share the parking area between their respective buildings. Bennigan’s opened in August.

“Over the past few months, the Defendant has been obstreperous, has actually ordered guests of your Plaintiff to leave the parking lot which is the subject of this action, and has continued to generally harass your Plaintiff in the daily operation of his business,” the complaint says.

The complaint adds that the two sides reached an agreement several months before Bennigan’s opened. Owner and General Manager Richard Rose met with church representatives Charles Staats and Don Spurgeon to work out the details.

They agreed that each would accommodate the other when extra parking was needed. Bennigan’s also says it repaved the lot at a cost of more than $40,000.

Now, the complaint says, the restaurant can’t even use that lot.

“Your Plaintiff requested Defendant to remove obstructions and remove dangerous poles and Defendant refused. There exists imminent danger to the public and Plaintiff knows of no other legal remedy available at this time to seek relief,” the complaint says.

Bennigan’s is represented by R. Michael Shaw. Judge David W. Nibert has been assigned the case.

Mason Circuit Court case number 06-C-44-N

March 21
Johnny D. Pearson and Roma Pearson vs. John Sallaz and John Burton, Jr.
PA – Scott A. Damron J- Thomas C. Evans, III
* Pearson claims the defendants disabled a kill switch on a tractor owned by the City of Point Pleasant, where both the plaintiff and defendant were employed. The kill switch was a safety mechanism that would cause the tractor to automatically turn off when the operator’s weight was lifted from the seat. On June, 25, 2004, the plaintiff was operating the tractor and fell from the seat. The tractor continued to operate, catching the plaintiff’s pant leg and running over him. The plaintiff is seeking compensation for punitive damages, loss of wages past medical expenses in the amount of $15,000 and future medical expenses. Roma Pearson is the wife of plaintiff and is suing for loss of consortium.
Case number: 06-C-39-E

March 27
RSB Restaurant, L.L.C., an Ohio Limited Liablility Company licensed to do business in W.Va. d/b/a Bennigans vs. Church of Christ in Christian Union
PA – R. Michael Shaw J – David W. Nibert
* The plaintiff claims that prior to their restaurant’s August 2005 opening, their owner and general manager, Richard Rose, had negotiated with representatives from the Church of Christ regarding parking between the facilities, which included several provisions on the part of the plaintiff. One of those provisions the plaintiff claims was that the parking lot would be paved at a cost in excess of $40,000 on his part. The plaintiff claims the defendant is now demanding an “exorbitant amount of monthly rent” for use of the parking. The plaintiff alleges the defendant has embarrassed customers of the restaurant by telling them to move their vehicles from the lot. The defendant erected large poles and indicated to the plaintiff that the Church would be building a fence to keep Bennigan’s customers from parking there, according to the lawsuit. The plaintiff is seeking an immediate injunction so that the restaurant’s customers can continue to park in the lot.
Case number: 06-C-44-N

Dr. Anthony McEldowney

POINT PLEASANT – A St. Louis doctor is suing a Point Pleasant doctor for unwanted fax messages sent to her office.

Dr. Radha Geismann filed the lawsuit in St. Louis County, Mo., but it was transferred April 10 to Mason Circuit Court. It charges Dr. Anthony McEldowney, now an orthopedist at the Pleasant Valley Hospital in Point Pleasant, with sending “numerous unsolicited facsimile transmissions.”

“The faxes were transmitted by or on behalf of Defendant, advertising ‘a huge hidden PROFIT CENTER,’ ” the complaint says.

Geismann is seeking $10,000 plus court costs. The lawsuit was filed through attorney Greg Geismann of Show Me State Legal Services in St. Louis.

“The sending of these unsolicited advertisements to Plaintiff causes Plaintiff to pay for the paper and toner used by the facsimile machine receiving these advertisements,” the complaint says. “The facsimile machine and those supplies would otherwise have been used to receive requested messages.”

The complaint adds that the transmissions violated the Merchandising Practices Act in Missouri, and that since they violated U.S. law McEldowney should be required to pay three times the amount of available damages.

In addition to $10,000, Geismann is seeking an order to prevent McEldowney to make any further similar transmissions to any other person in Missouri.

Judge David W. Nibert has been assigned the case.

Mason Circuit Court case number: 06-C-53-N

April 6
Radha Geismann vs. Anthony J. McEldowney
PA – Jeffrey J. Gould J – David W. Nibert
* The plaintiff is a St. Louis-based physician, who alleges that the Point Pleasant-based defendant, who is also a physician, sent him unsolicited faxes advertising a “huge hidden profit center.” The lawsuit claims sending such unsolicited messages is against Missouri law. The plaintiff alleges that the faxes cost his business toner and paper which would have been otherwise used to receive requested fax messages. The plaintiff also claims some requested messages could not be received due to the faxes being received from the defendant. A default judgment was reached in the circuit court of St. Louis County in the amount of $2,190 due to the defendant’s failure to appear for court. The plaintiff is seeking damages in excess of $10,000, in addition to legal fees.
Case number: 06-C-53-N

Dr. Danny Westmoreland

POINT PLEASANT – For a Mason County physician, the first day of May was more reminiscent of officials from the former Soviet Union touting their military supremacy than a celebration of American justice.

“I’m pissed,” said Danny R. Westmoreland as he left the Mason County courthouse. “I’ve just been denied my civil rights.”

Westmoreland was referring to being denied the opportunity to present a case before the Mason County grand jury that started a new term Monday. Coincidently, Monday was the annual observance of Law Day in which the state Supreme Court and various circuit, family and magistrate courts celebrate the American judicial system.

Westmoreland, 52, who operates Westmoreland Family Physicians in Mason, requested he be allowed the opportunity to present a case before the grand jury. Westmoreland hoped to get criminal charges he has pending against attorney Raymond G. Musgrave moving.

Westmoreland alleges that on April 15, 2004, Musgrave forged his signature on a settlement check for $15,000. The settlement, according to court records, stems from a dispute Westmoreland had with Gallipolis, Ohio, contractor Gary Barry for materials Barry stole from Westmoreland’s office in 2000.

Barry, who owns Specialty Care Cleaning Service, was hired by Westmoreland in September 2000 to refurbish his office that sustained fire damage. A dispute over work to be done resulted in the two filing legal actions against the other in 2001.

Barry was indicted for grand larceny in 2003 and sentenced to one year unsupervised probation. A civil suit Barry filed against Westmoreland seeking damages in the amount of $79,000 was dismissed in 2004 when Barry agreed to pay Westmoreland $15,000.

Musgrave represented Wesmoreland in the lawsuit.

Soon after discovering the alleged forgery, Westmoreland says he addressed the matter with the Office of Disciplinary Counsel.

Because of the severity of the matter, Westmoreland said, he was told that he needed to file criminal charges against Musgrave.

Westmoreland did just that in February 2005. Because he handed Westmoreland a copy of the notarized signature he alleges was forged at a previous hearing, Mason County Prosecutor Damon Morgan asked he be recused from the case.

Wood County Prosecuting Attorney Ginny Conley was appointed as a special prosecutor.

Westmoreland said had he been allowed to present a case Monday, it would not have been against Musgrave, but Myra Shull, 45, of Leon, who notarized the alleged forged signature. Shull is a target, Westmoreland said, because not only did she violate the law by approving the document, but also her actions are partly responsible for the financial loss he’s suffered.

Musgrave declared bankruptcy in October 2005. This action,

Westmoreland said, makes it unclear if he will recoup any money.

Though he was told to arrive at the courthouse at 1 p.m. to make his presentation, Circuit Judge David J. Nibert until about 2:30 p.m did not summon Westmoreland into the courtroom. Instead of being allowed to present a case to the grand jury, Westmoreland discussed the case with Nibert.

During the 15-minute closed-door session, Westmoreland listened to Nibert conduct a status hearing with Conley via telephone.

According to Westmoreland, Conley said she was still undecided on whether to pursue the case further Conley’s indecision, Westmoreland said, was her belief that Musgrave’s actions did not “relate to criminal activity.” Conley told Nibert her belief was based on the conversations she had with Westmoreland.

However, Westmoreland was unequivocal that he had only one conversation with Conley. Despite leaving repeated messages in the nearly the year she was appointed special prosecutor, Westmoreland said Conley has failed to return any of his calls.

“I just told the judge, ‘She’s lying to you’,” Westmoreland said. “I haven’t talked with the woman since November.”

Nevertheless, Westmoreland said Nibert received an assurance from Conley she would present a case to the grand jury at 2 p.m. Tuesday.

Because Conley did not return phone calls seeking a comment, it was not immediately clear if she would present a case against Musgrave, Shull or both.

Regardless, Westmoreland said he’ll continue to make the 20-mile trek down river and press court officials to due their duty.

“I’m going to fight like Hell,” Westmoreland said. “Even though I’m due a large sum of money, it’s not about the money. It’s about justice.”

Dr. Danny Westmoreland

POINT PLEASANT – A special prosecutor looking into allegations of criminal activity committed by a Point Pleasant attorney may be relieved of her duties for failing to take any action.

On Tuesday, Wood County Prosecuting Attorney Ginny Conley was supposed to make a presentation before the Mason County grand jury which started a new term Monday. Judge David J. Nibert appointed Conley special prosecutor to investigate allegations attorney Raymond G. Musgrave forged the signature of Mason physician Danny R. Westmoreland on a settlement check.

Because he believed Conley, who was appointed in February 2005, was not moving along with the case, Westmoreland asked he be allowed to present a case before the grand jury on Monday. However, Nibert wanted to hear what Conley found, and asked she appear in court Tuesday at 2 p.m.

Prepared to make another visit to the courthouse, Westmoreland said he received a call from Conley around 10 a.m. Tuesday morning.

According to Westmoreland, Conley said she wouldn’t be presenting a case before the grand jury.

“Ms. Conley has shown no interest in this case,” Westmoreland said. “I was irate.”

Westmoreland’s dispute with Musgrave stems from a dispute Westmoreland had with Gallipolis, Ohio, contractor Gary Barry in 2000. After a fire damaged his office, Westmoreland hired Barry, who owns Specialty Care Cleaning Service, to perform repairs.

A few months later a dispute arose as to the nature of work performed. Westmoreland filed criminal charges against Barry allege he stole building materials he purchased for the reconstruction.

Barry countered by filing a civil suit claiming Westmoreland failed to pay for services performed, and the materials where his.

Westmoreland hired Musgrave to defend him against Barry’s suit. They were successful in getting the suit dismissed when they reached a settlement with Barry in March 2004.

In the settlement, Barry agreed to pay Westmoreland $15,000. Three months earlier, Barry was convicted on one charge of grand larceny, and later sentenced to one-year unsupervised probation, according to court records.

Westmoreland says his office assistant called Musgrave’s office every week once the settlement was reached to inquire on the status of the check. His assistant was always told the check would be mailed next week, Westmoreland said.

It was not until Barry’s sentencing hearing that Westmoreland says he saw any trace of the check. Westmoreland says the attended the hearing in hopes of getting the court to order Barry to make additional restitution.

Westmoreland said he was dumbfounded when Judge Thomas Evans informed him he could not be given any restitution since he signed the settlement check from the civil suit. When Mason County Prosecuting Attorney Damon Morgan slipped him a notarized copy of his signature showing he received the settlement check, Westmoreland claimed the signature was a forgery.

Because he could be called as a material witness, Morgan recused himself from the case when Westmoreland filed criminal charges against Musgrave. In addition to criminal charges, Westmoreland has a civil suit pending against Musgrave.

In their conversation Tuesday, Westmoreland said Conley restated what she told Nibert via a teleconference Monday that she feels no crime has been committed. According to Westmoreland, Conley said the matter comes down to his word versus Musgrave’s.

Believing Conley intentional misled the court in her intentions, Westmoreland said he called Nibert to vent his frustration on being denied the opportunity to have his case presented before the grand jury. Nibert, Westmoreland said, told him to write him a letter expressing his lack of confidence with Conley, and he would consider removing her as special prosecutor and appointing another one.

When interviewed via telephone about 2:30 p.m. Tuesday, Westmoreland said he was not wasting any time.

“I told him I would have to him within the hour,” Westmoreland said.

Conley was not immediately available for comment.

POINT PLEASANT – A Point Pleasant attorney’s bankruptcy filing is not the first time he’s been in financial trouble.

In addition to his filing on Oct. 13, 2005, Raymond G. Musgrave previously filed for bankruptcy on Oct. 2, 1987. (U.S. Bankruptcy Court for the Southern District of West Virginia (Parkersburg), Case No. 87-40172)

Unlike his current filing, Musgrave filed individually and initially under Chapter 7 of the U.S. Bankruptcy Code.

Under Chapter 7, a debtor often turns over property he or she owns to the trustee appointed in the case. The trustee then sells, or liquidates, the property, using the proceeds to pay the creditors.

Because the case is closed, specific details of the case are in storage at the National Archives and Records Administration’s Mid-Atlantic regional office in Philadelphia. However, general details of the case, including dates when motions were made and the list of creditors, are still accessible.

On Oct. 28, 1987, Musgrave changed his filing from Chapter 7 to Chapter 13. On April 25, 1988 he filed an amended Chapter 13 reorganization plan.

Though a motion was entered on July 31, 1988, ordering confirmation of Musgrave’s plan, it was not without some opposition. Robert Weinberger, lead counsel for the West Virginia Department of Tax and Revenue, one of Musgrave’s creditors, filed a motion on Dec. 20, 1989, to dismiss the case.

However, Musgrave’s repayment plan was entered on Jan. 10, 1990. On March 16, Weinberger withdrew his motion.

Trustee John N. Charnock on Aug. 12, 1992, made a motion to allow claims in the case. According to PACER, those creditors with claims in addition to the Department of Tax and Revenue were the IRS, Charleston National Bank, of Charleston, Citizens National Bank, Point Pleasant Federal Savings and Loan Association and Dr. G. D. Nibert, all of Point Pleasant, and Patrick Price of Henderson.

According to PACER, Charnock filed a final report on Feb. 2, 1994. A little over six months later, the court entered an order discharging Musgrave as a debtor.

On Aug. 25, 1994, the final decree was entered closing the case.