MORGANTOWN – After two months of inaction, the five West Virginia residents who allege they were swindled by an alleged Virginia private investigator are asking the chief circuit judge to compel the magistrate who has the case to rule on their motion for new trial.
On Feb. 13, Robert Hart requested the assistance of Monongalia Circuit Judge Russell M. Clawges, chief judge of the 17th Judicial Circuit, in the breach of contract suit he and his four co-plaintiffs have against Jon Gigliotti in Monongalia Magistrate Court. Along with Patti Lemley, Elizabeth Crawford, Gil Vanderkraats and Sue Holland, Hart filed suit against Gigliotti, who lives in Lyndhurst, Va., in March alleging he failed to make good on his promise to investigate their respective allegations of judicial corruption in 1997 after they paid him a "retainer" of nearly $3,000.
Gigliotti's attorney, RaeLynn Regula, with the Morgantown law firm of Brewer and Giggenbach, made a motion on Oct. 9 that the case be dismissed. After a hearing was held on Regula's motion on Oct. 31, Magistrate Jennifer Wilson, without comment, granted the motion on Nov. 15.
The residents decided to appeal Wilson's decision to circuit court. However, Hart said when Lemley informed the magistrate clerk's office of their intention, she was told, on Dec. 3, that in order for an appeal to be proper, it had to be filed two days later with the original signatures of all the plaintiffs.
Because all five residents were scattered across the state making obtaining the signatures in time nearly impossible, Hart said the decision was made to file a motion for a new trial with Wilson. They did so on Dec. 4.
"And the said motion was not heard, was not granted, nor was it denied, and it lays in limbo at the present time in Magistrate Court," Hart wrote in his letter.
Since then, Hart said he's made several inquiries on the motion's status, including one on Tuesday, Feb. 12. Wilson's clerk told him that "no paperwork has ever been sent to them for an appeal or for a motion for a new trial."
However, Hart sent The West Virginia Record a copy of the motion on Dec. 7. The motion contains the clerk's official time-stamp of Dec. 4, 2007 at 3:59 p.m.
Hart says Wilson's clerk called him Tuesday evening to say that the motion was discovered. She proceeded to tell him that the "appeal was filed out of time and without any filing fees, and that [the] motion for a new trial will not be ruled on ..."
Wilson's clerk, Hart said, concluded by telling him he could "seek permission of the circuit clerk to rule whether an appeal would be permitted or allowed."
In his letter to Clawges, Hart makes the case for continuing the case by citing Rule 18 of the West Virginia Rule for Civil Procedure which states, "Any party to a final judgment may as a matter of right appeal to circuit court. Notice of appeal shall be filed in Magistrate Court; within twenty days after judgement is entered; or within twenty days after the Magistrate has denied a motion for new trial."
Since the motion for a new trial was "timely filed in Magistrate Court on December 4, 2007," and Wilson has yet to rule on it, the case is still active, Hart says.
Also, Hart believes the clerk's office is misleading he and the other residents on the filing fee. According to Hart, he and Lemley were told that all five plaintiffs would have to pay $146 to appeal the case, instead of all five together paying a $146 fee.
"If true this would punish all persons that lack funds for the right to appeal," Hart wrote in his letter.
"It is my prayer that that this Court will issue an order to have the Magistrate Court to do what is proper and right in this matter," Hart concluded.
Monongalia Magistrate Court Case No. 07-C-292W