CHARLESTON - Because the allegations lack specifics, a Charleston attorney wants a pending fraud lawsuit against her and her law office dismissed.
Cynthia E. Evans on May 20 answered the lawsuit filed against her by the Kanawha County Board of Education by filing a motion to dismiss. In April, the Board accused Evans, and her firm, Cynthia E. Evans, Attorney-at-Law, of fraud when she negotiated payment of $50,000 for attorneys fees in a disability discrimination case, but failed to disclose she'd been paid by her client.
Citing the West Virginia Rules of Civil Procedure, Evans says a claim for fraud must state " '(1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied on hit and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied on it.'" The Board's case, Evans says, fails to meet at least two of the three elements.
Despite citing several alleged statements she made, Evans says the Board "fails to allege that any of these statements are or were false." Also, the Board fails to allege any statement Evans made "was material to the matter at issue" or "make any factual allegations to support or explain materiality."
"Rather than pleading the elements of a fraud claim with particularity," Evans says, "the Complaint simply puts forth a series of statements that it does not even allege to be false, and then provides the conclusory statement that the Defendants committed fraud."
"Indeed, at its core, the Complaint merely alleges that the circumstances under which it was allegedly damaged were the result of third-party actions -- the United States District Court and Mark Davis -- which Defendants did not control," Evans added.
Evans was referring to a ruling U.S. District Judge Joseph R. Goodwin made in January ordering the Board to pay Mark Davis $31,072 plus interest for the lawsuit he and his wife Tammy filed against the Board in 2006 under the Individuals with Disabilities Education Act.
Initially, the Davises hired Evans to pursue an IDEA claim against the Board alleging it failed to allow them to participate in crafting an individualized education plan for their son, Jonathan in 2004-05, but later dismissed her in the Fall of 2007.
Prior to Goodwin's ruling, the Board paid Evans $50,000. When it negotiated the payment, the Board alleged that Evans led it to believe "she had the authority to negotiate [the Davises] award of fees" and "any fee award belonged to her."
Following both Mark Davis' testimony that he "maxed out" his credit cards in paying Evans close to $50,000 before terminating her, and Goodwin's ruling, the Board attempted to get Evans to repay the money.
When negotiations failed, and Goodwin denied it's motion to compel Evans to repay the money, the Board filed its lawsuit.
Along with the one for fraud, Evans says the claims of breach of contract, mutual mistake of fact and unjust enrichment must be dismissed since they, too, lack specifics or are immaterial. In regard to the ones for breach of contract and unjust enrichment, Evans says the Board cannot prove a contract between she and the Board ever existed, and that the "benefit" -- payment of fees -- would be improper for her to keep since the Board knew she earned them.
Kanawha Circuit Judge Jennifer Bailey scheduled Friday, Sept. 10 for a hearing on Evans' motion to dismiss.
Evans, and her firm are represented by Christopher S. Morris with the Charleston law firm of Bailey and Glasser.
Kanawha Circuit Court case number 10-C-772