Doctor's suit against attorney might stall, but Bar investigation proceeding

By Lawrence Smith | Aug 1, 2006

POINT PLEASANT – Despite confusion on the status of the lawsuit he filed, a Mason County physician says he's excited to know that at least one aspect of his quest for justice against a Point Pleasant attorney is going forward.

Tuesday Aug. 1 is the scheduled start of the civil case of Westmoreland v. Musgrave (Mason County Circuit Court, Case No. 05-C-48). The plaintiff in the case, Dr. Danny R. Westmoreland, 50, owner of Westmoreland Family Physicians in Mason, alleges the defendant, Raymond G. Musgrave, 71, of the Musgrave and Musgrave Law Office in Point Pleasant, refuses to pay him money awarded from a civil case Musgrave helped him settle.

However, because Musgrave, along with his wife, Twila, have a pending bankruptcy petition in U.S. Bankruptcy Court, it is unclear if that case will open on Tuesday (Case No. 05-31246). Under bankruptcy law, attempts by creditors to collect money owned them by debtors are halted once the debtor has filed for bankruptcy.

Typically, that includes attempts to collect on debts filed though lawsuits. According to court records, two creditors listed in the Musgraves' bankruptcy petition, BB&T and City National Bank, were granted motions to dismiss the civil suits they filed against the Musgraves for a cumulative of $13,055.10 in loans on which they defaulted (Mason County Circuit Court, Case Nos. 06-C-05 and 05-C-176).

Westmoreland has thus far refused to drop his suit. According to court records, Westmoreland is seeking $15,000 Musgrave was holding for him in escrow from a suit they settled on March 12, 2004 with Gallipolis, Ohio contractor Gary Barry (Mason County Circuit Court, Case No.01-C-329).

ODC requests accounting of funds

In addition to his civil suit, Westmoreland pressed criminal charges against Musgrave and filed a complaint with the Bar in February 2005. Last week, Westmoreland said he received a copy of a letter the Office of Disciplinary Counsel, the Bar's investigative arm, sent to Musgrave asking him to account for the $15,000.

In its letter dated July 18, the ODC asks Musgrave "[w]hen did [Westmoreland] assure you to use the $10,000 as you saw fit." Also, the letter asks for "an accounting of the $15,000 through your bank statements" and to "provide this information within 30 days."

This is good sign, Westmoreland said, that somebody is taking him seriously.

"Absolutely," Westmoreland said, "It show to me they [the ODC] realize this is non-sense."

Also, Westmoreland says he hopes this will give impetus to Wood County Prosecuting Attorney Ginny Conley in her investigation of the charges of forgery he leveled against Musgrave. Conley was appointed special prosecutor when Mason County Prosecuting Attorney Damon Morgan recused himself from the case.

Up in the air

Westmoreland's civil case against Musgrave may still go forward as planned Tuesday. According to the Circuit Clerk's Office nothing has changed since the scheduling order for the case was entered on Aug. 18, 2005.

On Oct. 13, 2005, Kanawha County Circuit Judge Tod J. Kaufman was appointed by the state Supreme Court to preside in the case after both Mason County Circuit Judges David W. Nibert and Thomas C. Evans III recused themselves. In their letter to Chief Justice Joseph P. Albright, Nibert and Evans cited "considerable contacts" with Westmoreland as their reasons for stepping aside.

As of press time, Kaufman's office had yet to confirm or deny he would be in Mason County on Tuesday.

Furthermore, on March 17, Andrew S. Nason, of the Charleston law firm of Pepper, Nason and Hayes, filed a motion with the bankruptcy court on behalf of Musgrave offering to dismiss the countersuit Musgrave filed against Westmoreland if he would agree to drop his suit. In his motion, Nason said the offer "is in the best interest of his [Musgrave's] estate," and made "with no payment being made to either party."

Until a reporter informed him about it last month, Westmoreland says he was unaware of the offer. Nevertheless, Westmoreland says he's rejecting it.

Attempts to get clarification on whether his suit will start Tuesday were unsuccessful as Stephen R. Crislip, of the Charleston law office of Jackson and Kelly, and Musgrave's attorney in the Westmoreland suit, declined to comment, and a woman who answered the telephone at the U.S. Bankruptcy Trustee's Office deferred comment to Helen M. Morris, the trustee overseeing Musgrave's case. Because she was busy hearing other cases, Morris was not immediately available for comment.

Nevertheless, Westmoreland believes the case should go forward given the circumstances surrounding it.

"Surely, they've got to see the difference between a criminal case involving theft of escrow money and a regular bankruptcy protection," Westmoreland said.

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