CHARLESTON – Eric Gardner and William Gardner started a feud in JD's Pilot House the day they bought it, and the feud continues in Kanawha Circuit Court.
Eric Gardner gained the latest advantage when the West Virginia Supreme Court of Appeals denied a petition of William Gardner to disqualify Eric Gardner's lawyer.
William Gardner, defending a suit that attorney Eric Calvert filed for Eric Gardner, argued to the Justices that Calvert previously represented both of them.
The Justices agreed that Calvert never represented William Gardner.
Eric Gardner and William Gardner are not related.
Eric Gardner's suit seeks to dissolve Blackhawk Enterprises, a corporation William Gardner formed in 2003 to own and operate JD's Pilot House, a restaurant in Belle.
Later that year Jeff Gunter sold his 49 percent interest to Eric Gardner and wife Jodi Gardner for $50,000.
William Gardner and Gunter had not issued stock between them, so lawyer Calvert prepared stock agreements and bylaws.
They all met at Calvert's office Jan. 16, 2004. Calvert told William Gardner he was acting solely on behalf of Eric and Jodi Gardner.
Calvert advised William Gardner to retain separate counsel. William Gardner did not. He signed the papers Calvert presented.
William and Eric and Jodi celebrated at DJ's Pilot House that evening, but the occasion turned into what the Justices described as a physical altercation.
As a result, Eric Gardner faced charges of battery and domestic battery, to which he would later plead no contest.
Through Calvert, Eric Gardner and Jodi Gardner negotiated with William Gardner to sell their share of Blackhawk Enterprises. William Gardner did not buy them out.
Eric Gardner and Jodi Gardner did not submit to background checks and fingerprinting to keep JD's lottery and alcohol licenses, so William Gardner formed a business in his own name, Dove Enterprises.
Calvert filed suit for Eric Gardner and Jodi Gardner to dissolve Blackhawk Enterprises. The complaint accused William Gardner of oppressive and illegal conduct.
William Gardner filed a counterclaim alleging that Eric Gardner and Jodi Gardner failed to repay their share of a personal loan made to Blackhawk Enterprises.
Circuit Judge Louis Bloom set trial for Dec. 19, 2005.
William Gardner moved for summary judgment. Eleven days before trial, Bloom denied the motion.
Five days before trial, William Gardner moved to disqualify Calvert.
In West Virginia, a judge can disqualify a lawyer "if his continued representation would give rise to an apparent conflict of interest or appearance of impropriety based upon that lawyer's confidential relationship with an opposing party."
Three days before trial, Bloom denied the motion.
The trial never started.
William Gardner's attorney, Rick Holroyd of Charleston, petitioned the Supreme Court of Appeals in March for a writ of prohibition against Bloom's decision on Calvert.
Holroyd asked the Justices to presume that William Gardner divulged confidential information to Calvert.
For Eric and Jodi Gardner, Calvert argued that a lawyer-client relationship never existed between him and William Gardner.
Calvert told the Justices it was unreasonable to move for disqualification five days before trial. He argued that William Gardner filed the motion to delay trial.
The Justices held in an unsigned opinion that Calvert made perfectly clear to all parties that he acted solely on behalf of Eric and Jodi Gardner.
They wrote that in a year and a half of pleadings William Gardner did not hint that he had a problem with Calvert or perceived a conflict of interest.
They quoted a 1991 Court decision advising that motions to disqualify "... should be viewed with extreme caution for they can be misused as techniques of harassment."