Persistence pays off for woman with judgment against Dues

By Lawrence Smith | Mar 12, 2007

CHARLESTON - Though one business debates its option to collect money owed it by a Kanawha County judicial officer, a Clendenin woman has been resolute in getting him to pay on the judgment awarded her.

CHARLESTON - Though one business debates its option to collect money owed it by a Kanawha County judicial officer, a Clendenin woman has been resolute in getting him to pay on the judgment awarded her.

In December, Andrews Floor and Wall Covering of South Charleston filed suit in Magistrate Court against Theodore R. "Ted" Dues, Jr., and his wife, Mona. In its complaint, Andrews alleges the Dues' have failed to pay for the flooring installed in December 2005 at their Upland Avenue home.

Andrews asked it be awarded $2,086.08 -- the cost of services rendered -- plus court costs.

Neither Ted nor Mona, who work as a mental hygiene commissioner and juvenile referee, respectively, in the Kanawha County Judicial Annex where the Magistrate Court Clerk's Office is located, responded to Andrews' complaint. Court records show they had until Jan. 29 to reply after the Kanawha County Sheriff's Department served them a summons on Dec. 29.

The Dues' failure to reply to the suit enables Andrews to seek default judgment. However, court records show Andrews has yet to make such a motion, and Ellen Mann, an Andrews representative, said the company remains undecided on its next course of action.

Katherine Rucker, a former sales associate with Bob Peden Chevrolet, was faced with a similar dilemma two years ago.

Though in 2005, she petitioned for and received a $5,700 default judgment in a suit she filed against Ted for failure to render legal services in a sexual harassment complaint she had against the dealership, Rucker faced the prospect of not collecting the judgment due to a bureaucratic snafu.

However, Rucker says the fear of being dealt another injustice along with the assistance of some sympathetic Magistrate Court employees enabled her to collect, to date, all but about $200 of the judgment.
"I'm angry now because I was done wrong and no one was on my side," Rucker said.

Good opportunity gone bad

Rucker's ordeal began in January 2001 after accepting a sales position with Bob Peden. She applied to work there because it was close to home and offered a job for which she felt comfortable.

Management, Rucker said, recognized her talents and ability and put her on the floor two weeks prior to conclusion of the six-week training course. Soon thereafter, Rucker sold an automobile.

However, Rucker says her enthusiasm was quickly dampened when commissions she made where "shared" with other associates. More disheartening was the escalating level of sexual harassment she received from her co-workers.

"I thought people were smart enough not to do that anymore," Rucker, 37, said. "It got to where I had to watch my back."

Claims not taken seriously

Rucker says she attempted to deal with the problem by bringing it to Peden's personal attention. According to Rucker, Peden encouraged her to "retaliate" against her harassers.

Fearful that would result in disciplinary action against her, Rucker says she didn't follow Peden's advice. As the harassment continued, Rucker said she kept a diary of all comments and actions directed toward her, and wore a tape recorder to work to validate her claims.

Armed with what she believed as sufficient information, Rucker filed a formal complaint against the two men most responsible for the harassment. Though not formally terminated, Rucker says she was "let go" from Peden's after filing her complaint.

Upon her dismissal, Rucker says she began seeking legal advice.

After consulting with several attorneys, Rucker met with Dues to discuss her case based on the referral of a friend.

Though it's not clear if there's any correlation, but Peden filed for Chapter 7 bankruptcy on May 25, 2001, a month after Rucker was dismissed. In its initial petition, Peden listed no assets or liabilities.

Instead, records show Peden's board of directors presented the court with a unanimous resolution "deem[ing] it in the best interest of Bob Peden Chevrolet ... to seek protection and relief under Chapter 7 of Title 11 of the United States Code."

A month later, Peden amended its petition listing its assets as $3,869,848.68 and liabilities as $2,861,027.34.

Records show the case remains open with the last filing occurring on July 25, 2005.

Snatching defeat from victory

After providing him all her documentation, Rucker said Dues told her she had a "ironclad case" against Peden. Feeling confident, Rucker paid Dues a $5,500 retainer.

When the deadline to file a suit approached the two–year statute of limitations, Rucker says she began to have her doubts about Dues. In April 2003, Rucker received a phone call from Dues saying an illness kept him from devoting time to it.

Her hopes were bolstered, Rucker said, when Dues told her the circuit court, because of his illness, granted him an extension to file the case. Also, Katherine L. "Kitty" Dooley, who took over Rucker's case, reassured Rucker that once the case was filed, she could "begin counting the money."

However, her hopes were dashed when Dooley informed her that Dues did not file for an extension.

Despite not being able to seek recourse against Peden, Rucker turned her attention toward suing Dues for malpractice. Unfortunately, she said many of the attorneys with whom she spoke refused to take her case, including one who said "it was not economically feasible."

Undeterred, Rucker on April 8, 2005, filed suit against Dues in Magistrate Court for $5,000 -- the maximum allowed by state law for a small claim. When Dues failed to reply to Rucker's suit, she was awarded the full amount plus $700 in court costs and interest on May 17.

Collection hindered

Despite receiving judgment against Dues, collecting on it was not so easy. Because of Dues' change in employment and the manner in which mental hygiene commissioners are paid, Rucker says she couldn't get a wage garnishment order enforced on Dues until August 2006.

Shortly after receiving her judgment, Rucker says she filed a garnishment order with the state Auditor's Office via the Department of Health and Human Resources where Dues was at the time working as a hearing examiner. She later received a letter saying the order could not be enforced because he was no longer employed there.

Eventually, Rucker says she found out Dues was working as a mental hygiene commissioner. However, Rucker was rebuffed there, too.

After forwarding the garnishment order to the Kanawha County office, she received a letter back saying that because commissioners are considered independent contractors, they could not garnish his wages. Nevertheless, Rucker said through the assistance of some employees in the Magistrate Clerk's office, she was able to figure out the correct form and office to submit the order.

On Aug. 29, Rucker received her first check of $1,859 toward satisfying the judgment.

Never give up

After his first check was garnished, Dues filed a certificate of exemption with the court. Records show he claimed $10,500 in personal property, including a 1997 BMW automobile valued at $300, plus $1,000 in wages as exempt.

Regardless, Rucker says she's received an amount each month since August from Dues' wages to satisfy the judgment. According to records she provided, the outstanding balance is $253.03.

However, Rucker, who now cleans houses part-time, says the amount she received from Dues is small compared to the potential salary she lost from being dismissed from Peden's. Also, the judgment doesn't even begin to touch the medical expenses she and her husband of 13 years Don, have incurred to aid in dealing with the trauma she suffered at the hands of her harassers.

"I just hated what they did to her because the way its affected her," Don Rucker said.

Despite that, Katherine Rucker says receiving and collecting on the judgment has given her some modicum of vindication. Receiving vindication, Rucker said, came, from among other things, sheer persistence.

Anyone in a similar situation, she said, should attempt "to stay two steps ahead."

"Just don't give up," Rucker said. "Stay on top of it. You just have to be persistent."

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