WEST VIRGINIA RECORD

CHARLESTON – A South Charleston attorney says a Dunbar woman's motion to reopen her malpractice case against him is without merit as well as her allegations he's a user of illegal drugs.

On Sept. 14 Jeannettia D. Spencer filed a motion in Kanawha County Circuit Court requesting the legal malpractice case she filed against Theodore R. "Ted" Dues be reopened because of newly discovered evidence that would have benefited her case. The case was dismissed in January when Spencer agreed to accept a $2,000 settlement from Dues.

Citing among other things the settlement agreement, Dues, who currently works as a mental hygiene commissioner for Kanawha County, said the case should remain closed. In his reply to Spencer's motion dated Sept. 27, Dues said without sufficient cause, a case that's been "dismissed with prejudice" can't be reopened.

"The Plaintiff fails to allege any matters that warrant the reopening of this case after the same was dismissed with prejudice by this Court," Due said. "The allegations the Plaintiff makes in support of her motion are replete with matters that, if true, would not be a basis for the relevant and material 'after discovered evidence' required to serve as a legal basis for reinstating this case; especially in light of the fact that the Plaintiff received a favorable resolution in this matter."

The pay Dues received as a mental hygiene commissioner is the basis for Spencer's motion to reopen her case.

In her motion, Spencer alleges the $2,000 settlement to which Dues agreed was done to "improperly influence the court in its decision" because just three days prior to the settlement Dues received a check for $9,808.50. That check, according to records provided by the state Supreme Court, brought Dues' compensation to that point in the 2005-06 fiscal year to $94,236.50, making him the highest paid mental hygiene commissioner in the state.

Dues' ability to practice law was restricted to mental hygiene work in December 2005, when the Supreme Court ruled on an 11-point statement of charges brought against him by the Lawyer Disciplinary Board, the prosecutorial arm of the state Bar Association (Lawyer Disciplinary Board v. Theodore R. Dues, Jr., a member of the West Virginia State Bar, Case No. 31713). The statement of charges stemmed from the complaints of nine of Dues' clients filed with the Bar's Office of Disciplinary Counsel.

Spencer was among the nine who filed a complaint. Her complaint, and subsequent malpractice suit, stemmed from her allegations that Dues without her knowledge or consent agreed on her behalf to voluntarily dismiss a medical malpractice suit she filed against a Charleston physician in 2000.

Also, Spencer alleges that Dues led former Justice Thomas E. McHugh, who agreed to serve as a mediator in the case, into believing he was only working one to two days a week as a mental hygiene commissioner, and might not be working in that capacity much longer. Leading McHugh to believe he was financially destitute in light of the workload he performed to earn $94,000, and the fact the Supreme Court's restriction on his license doesn't end until late 2007, Dues perpetuated a "fraud" on the court in agreeing to settle, Spencer alleges in her motion.

Earnings not a factor

Though he does not address the issue of no longer working as a mental hygiene commissioner, Dues says Spencer's allegations that his failure to fully disclose his earnings prior to their settlement somehow constitutes a fraud is "another example of interlacing a little fact with fabrication and defamatory statements." Part of the reason for the $2,000 settlement offer, Dues says, is to take into account that his workload would soon be reduced because of the appointment of five additional commissioners.

"Since January, as the Defendant indicated to the mediator, he has worked 3 to 3 ½ days per month," Dues said in his reply. Only in rare instances when covering for a commissioner that is unable to perform on their regularly scheduled shift, this continues to hold true."

Another reason Dues says he made the offer for $2,000 was that is was the cost of doing business. According to court records, Spencer's initial offer to settle was $75,000. Dues countered with an offer of $500.

In his reply, Dues says $2,000 was offered when it was "determin[ed] that it would cost that much for the retention of counsel to complete those matters necessary to represent the defendant." Also, Dues says he "in private discussion with the mediator, indicated that the underlying case was devoid of damages and that nothing other than nuisance value would be offered."

Drug use doesn't dignify a response

Part of Spencer's newly discovered evidence includes allegations that Dues uses illegal drugs. This allegation, Spencer says, is based on a personal investigation she took into Dues' background based on information provided to her by some mutual acquaintances.

One tip she received led her to encounter Dues at the Tri-State Racing and Gaming Center in Cross Lanes prior to the dismissal of her medical malpractice suit. There, Spencer says, she found Dues "with a drink in hand and in a festive mood."

In his reply, Dues sidestepped the accusation.

"Suffice it to say the Defendant will not dignify this allegation with a response."

The illness in question was a supposed heart attack Dues suffered sometime in 2002 which led to a related triple bypass and subsequent prostate operation. As he did in answering the statement of charges against him by the Board, Dues said in his reply these "maladies…rendered the Defendant incapable of fulfilling all of the responsibilities required of him as an attorney."

No date has been set for Berkeley County Circuit Judge Christopher C. Wilkes to rule on Spencer's motion. Wilkes was appointed as a special judge in the case when all Kanawha County judges recused themselves.