Fraud suit against attorney slated for January trial
Lawrence Smith Nov. 11, 2011, 1:50am
CHARLESTON – A judge has given the green light to the Kanawha County Board of Education's suit against a Charleston attorney to proceed to trial.
Senior Status Judge Thomas W. Steptoe Jr. on Sept. 15 denied a motion by Cynthia E. Evans to dismiss the fraud lawsuit suit the Board filed against both her, and her law firm last year.
In his 12-page ruling, Steptoe, a retired Jefferson County circuit judge who was appointed to the case after all seven Kanawha circuit judges recused themselves citing either a personal or professional relationship with Evans, rejected her argument that the allegations the Board makes against her are vague.
"While perhaps not perfectly drafted," Steptoe said, "the Complaint specifically indentifies multiple material statements made by [Evans] and her law firm, and avers that these statements were material and false at the time she made them."
Origins in '06 suit
In April 2010, the Board filed a four-count suit against Evans alleging fraud, breach of contract, mutual mistake of fact and unjust enrichment when she pocketed $50,000 that should've gone to a former client. In 2006, Evans represented Mark and Tammy Davis in a disability lawsuit they filed on behalf of their son, Jonathan, in U.S. District Court.
Though the suit was ultimately dismissed, Judge Joseph R. Goodwin awarded the Davises attorneys fees. Following an unsuccessful appeal to the 4th U.S. Circuit Court of Appeals, the Board in September 2009 agreed to pay Evans not only the $31,072 in fees Goodwin awarded the Davises on Oct. 31, 2007, but also the $18,928 she incurred during the appeal.
Prior to Goodwin's ruling, the Davises terminated Evans as their counsel citing among other things, the $150,000 legal tab at that time for the suit which drove them into bankruptcy. However, Evans remained as their attorney through the appeal.
According their suit, Evans told the Board she had the authority to negotiate on behalf of the Davises. Believing the Davises would ultimately get the money, the Board said it made the check out to Evans at her instruction.
When the Davises discovered the Board paid Evans instead of them, they filed a motion Oct. 16 to enforce the order granting attorneys fees with interest. During a hearing on the motion held on Jan. 8, 2010, Mark Davis testified before he terminated Evans as his attorney, he "'maxed out'" his credit cards to pay her close to $50,000.
Four days later, Goodwin granted their motion finding that under the Individuals with Disabilities Education Act any fee award belongs to the client, and not the attorney. Since the Davises were not listed as co-payee on the check, and they did not sign a release for it, Goodwin ordered the Board to pay them the $31,072 plus interest effective the date of his original ruling.
A month later, the Board filed a motion to recover the money it paid Evans. However, Goodwin denied it ruling they needed to file a separate suit against Evans in state court.
Grounds for fraud, deception
On May 20, Evans filed her motion to dismiss saying the Board failed "to allege that any of these statements are or were false" or "make any factual allegations to support or explain materiality." However, Steptoe strongly disagreed.
"The Court finds that any reasonable person reading the Compliant can glean from it that Ms. Evans is alleged to have : 1) made false representations about: how much he had been paid by Mr. Davis during the course of her representation; 2) submitted deceptive and incomplete information to the district court when filing her fee petition on behalf of Mr. Davis; 3) falsely represented her capacity to negotiate on behalf of Mr. Davis after the Fourth Circuit appeal, when she undertook negotiations with the Board regarding both the underlying fee and the potential appellate fee; and 4) made other false representations to the Board regarding her representation of Mr. Davis so as to persuade the Board to negotiate with her rather than her client," Steptoe said in his ruling.
"If true," he added, "these allegations could also support [the Board's] contention that her prior actions were intentional. In other words, a party to the alleged circumstances who did not intend to defraud or deceive, but who rather was the victim of an unforeseen legal result, would have made attempts to correct the situation by returning some or all of the settlement monies, whereas [Evans] is alleged to have done nothing."
Trial set for January
Prior to his ruling on Evans' motion to dismiss, Steptoe on May 4 scheduled the case for trial on Tuesday, Jan. 24, 2012. Also, he scheduled a pre-trial hearing the day before, and completion of discovery by Thanksgiving.
Records show the most recent filing in the case is the Board's first set of interrogatories, and requests for admissions on Evans dated Oct. 17.
Two days prior to Steptoe's scheduling order, Melissa Foster Bird and S. Taylor Hood with the Huntington law firm of Nelson Mullins Riley and Scarborough filed notice they would be replacing Christopher Morris with the Charleston law firm of Bailey and Wyant as Evans' attorney. No reason is stated in court records as to the change in legal counsel.
Kanawha Circuit Court case number 10-C-772