WEST VIRGINIA RECORD

CHARLESTON -- Ethel Erickson's children fought her over control of her wealth, and now that she has died they are fighting her attorney over control of her wealth.

The West Virginia Supreme Court of Appeals, which had tried 12 years ago to straighten out the family mess, tried again this year.

Last month, the justices blocked Wood County Circuit Judge Jeffrey Reed from removing attorney Nicholas Johnson as executor of Erickson's estate and trustee of her trust.

They instructed Reed to gather more evidence before deciding what to do about Johnson.

They ordered Reed to reinstate Johnson, but they authorized Reed to appoint someone else on a temporary basis if necessary.

The feud first reached the court in 1994.

Ethel Erickson's husband had died in the midst of divorce proceedings, and she sued his executor, their son Charles Erickson, in U.S. District Court.

The late Charles O. Erickson was known for donating funds to build college alumni centers. When Ethel Erickson died on May 25, 2005, she left an estate of more than $16 million.

She sought an accounting of marital properties or punitive damages for possibly fraudulent conveyances.

Charles Erickson then filed a third party complaint against his mother and Johnson. The federal court dismissed the complaint.

Charles Erickson then served a subpoena on his mother, requiring her to produce detailed lists of assets and their values.

Ethel Erickson asked the Supreme Court of Appeals for relief. The court granted it, declaring the subpoena oppressive and burdensome.

In 1999 Ethel Erickson executed a trust agreement to manage her property in her lifetime and distribute it upon her death to son Charles and daughters Myrah Scott and Donna Roberson.

Ethel Erickson served as trustee of her trust, designating Johnson for that role upon her death, with reasonable compensation.

In 2001 Ethel Erickson executed a will that would add the residue of her estate to her trust. She chose Johnson as executor, with reasonable compensation.

Ethel Erickson died May 21, 2005. Her assets totaled about $16 million.

After her funeral, Johnson met with family members to review the trust and the will.

According to Johnson, Charles Erickson said, "I will fight you to the death over that five percent that you want to charge on the estate settlement."

According to Johnson, Charles Erickson said they thought he would write checks and go back to Charleston.

In October Charles Erickson filed suit in Wood County Circuit Court charging Johnson with legal malpractice.

They claimed he bungled a land transaction and failed to advise their mother of tax consequences to her children under the trust and the will.

Charles Erickson and Myrah Scott asked the County Commission to remove Johnson as executor of the estate, and they filed for declaratory judgment from the Circuit Court to remove him as trustee of the trust.

They argued that their malpractice suit had created a conflict of interest for Johnson.

Johnson asserted that the malpractice suit constituted a sham to avoid paying his fees and possibly to break the trust.

Judge Reed conducted a non-evidentiary hearing Dec. 9. He ruled that Johnson should immediately be removed as executor and trustee.

Under terms of the will, Charles Erickson and son-in-law Lee Scott became executors and trustees.

Reed followed with a written order four days late, but he did not set forth findings or conclusions and he did not discuss the alleged conflict of interest.

Johnson asked Reed to reconsider. Reed set an evidentiary hearing Feb. 13, but he did not hold the hearing.

Johnson then asked the Supreme Court of Appeals for a writ of prohibition.

James Cagle of Charleston represented Johnson before the court. Robert Bays, Paul Hicks and Heather Harlan of Parkersburg represented Charles Erickson and Lee Scott.

In a unanimous unsigned opinion, the justices wrote that selection of an executor or trustee should not be set aside lightly.

They wrote that Reed was concerned that Johnson could control the flow of information in the malpractice suit. They wrote that Reed focused on that concern to the exclusion of other concerns.

They wrote that he should have considered the 1994 litigation, the extent of Ethel Erickson's knowledge of Johnson's conduct, whether she ever tried to revoke her nomination of Johnson as trustee, and whether his fees were excessive.

They told Reed to hold an evidentiary hearing and, if evidence warranted removal of Johnson, an order on the appropriateness of appointing Charles Erickson and Lee Scott as successors.

The Supreme Court had stayed the legal malpractice suit while considering the writ of prohibition. The suit can now resume.