Charles Town attorney accused of malpractice
Lawrence Smith Sep. 7, 2012, 3:00am
CHARLES TOWN – A Jefferson County attorney is accused of negligence in pursing a New York City man's lawsuit against Shepherdstown officials, including bailing out on him while it was still pending.
J. Michael Cassell is named as a co-defendant in a legal malpractice suit filed by William C. Struna in Jefferson Circuit Court. In his suit filed July 26, Struna, 66, alleges Cassell, 60, of Charles Town, caused him to lose his suit against the town's former mayor, planning commission and historic landmark commission when a judge dismissed it on the grounds it was filed before all administrative appeals had been exhausted.
According to the suit, Struna hired Cassell, who at the time was with the Leesburg, Va. firm of Campbell Miller Zimmerman, which is also named as a co-defendant, to help him contest the town's requirement he obtain a building permit to install new windows at the house he owns on 107 West New Street. In the lawsuit he would eventually file on Nov. 6, 2009, Struna alleges the dispute stemmed from an altercation that occurred between he and then-Mayor Lance Dom three years before.
On an unspecified date, Struna warned Dom about parking his vehicle on in the alleyway adjacent to the West New Street property. Should he not heed the warning, Struna threatened to have his car towed.
Sometime thereafter, Struna went to town hall to inquire if a building permit was needed to replace the windows in the house. Both the town clerk, Amy Boyd, and the town's zoning administrator, who is not indentified in the suit, said so long as the new windows were the same color and configuration as the old ones, a permit was not necessary.
According to the suit, upon learning that they wanted to replace windows in the property, Dom, in retaliation for the altercation, ordered the zoning commissioner to inform Struna he would need a building permit to replace the windows. At its Jan. 15, 2007 meeting, the planning commission denied Struna's permit to replace the windows.
At the time, Dom was a commission member.
Records show Cassell on May 8, 2008 filed suit against Dom, and the planning commission challenging the commission's denial of his permit. In his suit, he maintained the section of the code they cited spoke only vaguely to the issue in Struna's case.
Judge Thomas J. Steptoe Jr. in July 2008 dismissed part of the suit on the grounds an appeal to the town's board of zoning appeals had not been made. The remainder of the suit was dismissed on April 30, 2009.
Two months after Steptoe dismissed his suit, Struna applied for a second permit to replace the windows so the home could be properly insulated for the winter. At its Aug. 10 meeting, the town's historic landmark commission took issue with Struna's argument to replace the windows citing studies showing that modern windows do not provide better energy efficiency, and do not increase resale value.
Also, the commission discussed unspecified issues with Struna's failure to upkeep his property. Until that time, he had never been cited for any municipal violation.
The landmark commission on Sept. 15, 2009, recommended the planning commission deny Struna's permit which it did at its meeting a week later.
The second suit named the planning and historic landmark commissions and Dom as co-defendants. The suit was removed to U.S. District Court a month later.
Records show on Aug. 6, 2010, Judge John Preston Bailey granted a motion to dismiss Dom and the planning commission from the suit on the grounds Dom had not been served with a summons within 120 days from when the complaint was filed, and the claims made against the commission stemming from the first building permit denial were time-barred. In his order, Bailey made note that "No response to any of the motions has been filed by the plaintiff."
Thirteen days later, Cassell made a motion to withdraw as counsel citing, among other things, his inability to "communicate in an effective and cooperative manner" with Struna. Bailey granted the motion five days later.
Two months later, Martinsburg attorney Susanne Thompson filed a notice of appearance on Struna's behalf.
By the time he withdrew, the firm changed its name to Campbell Flannery. According to the Secretary of State's Website, the firm first started doing business in West Virginia in 2005.
Currently, not only does it still operate under the name Campbell Miller Zimmerman, but it also lists Cassell as its agent for service of process despite him beginning a partnership with Robin Skinner Prinz on Nov. 9.
Records show on March 9, 2011, Bailey dismissed the suit citing, among other things, Struna's failure to also appeal the second building permit denial to the board of zoning appeals. Also, Bailey on July 20 denied Struna's motion to reopen the case based on a supposed new discovery that the town's building code was never promulgated.
In his current suit, Struna alleges Cassell's "overall handling of the case demonstrates an inattention and lack of reasonable diligence in relation to a legal matter." As a result of both Cassell's and Campbell Flannery's negligence, Struna alleges he's incurred a "loss of economic advantage and past and future emotional suffering and loss."
Struna seeks unspecified damages, court costs, interest and attorneys fees. He is represented by Lewisburg attorney Robert J. Frank.
The case is assigned to Judge David Saunders.
Jefferson Circuit Court case numbers 12-C-279 (Struna legal malpractice), 09-C-429 (Struna permit appeal II) 08-C-195 (Struna permit appeal I); U.S. District for the Northern District of West Virginia, case number, 09-cv-77(Struna permit appeal removal)