WEST VIRGINIA RECORD

CHARLESTON – Two legal actions against a Kanawha County mental hygiene commissioner have come to close with one going in his favor, and the other in a judgment against him.

On Feb. 12, Berkeley Circuit Judge Christopher C. Wilkes ruled on a motion by Jeanettia Spencer to reopen her malpractice case against Theodore R. "Ted" Dues Jr. Spencer, who filed her suit in 2004, settled with Dues in January 2006 for $2,000.

Wilkes was appointed by the state Supreme Court to hear the case when all Kanawha circuit judges recused themselves.

In September, Spencer petitioned Wilkes to reopen the case alleging Dues committed fraud by misrepresenting his income. According to court records, at the time of their settlement, Dues already had earned $94,236.50, and finished the 2005-06 fiscal year with $113,103.25, making him the highest paid mental hygiene commissioner in the state.

However, Wilkes disagreed. In this ruling, Wilkes said Dues' failure to fully disclose his income does not meet the threshold necessary to reopen the case.

"Defendant's alleged misrepresentation of this income is not the type of egregious conduct necessary to set aside judgment," Wilkes said in this ruling. "Therefore the court concludes that Defendant's representations of income, even if false, does not constitute the type of 'fraud' contemplated by Rule 60(b)."

Default judgment in Magistrate Court

Also coming to a close was the suit in Kanawha County Magistrate Court filed by Andrews Floor and Wallcovering against Dues and his wife, Mona. Andrews filed the suit in December alleging the Dues' failed to pay for $2,086.68 worth of new flooring installed in their South Charleston home in December 2005.

Neither Ted nor Mona, who works as a juvenile referee for Kanawha County, bothered to file a reply to Andrews' complaint by the January 29 deadline. At the time, Andrews was undecided on whether to seek default judgment against the Dues.

However, Andrews did seek, and was awarded default judgment on March 26. According to court records, they received the amount they were seeking plus $120 in court costs.

Becoming common

The Andrews case is not the only time default judgment has been awarded against Ted Dues. According to court records, this is the third case in five years he has not bothered to reply to a claim against him in Magistrate Court.

In 2003, Bonnie K. Wolfe, a certified court reporter filed suit against Dues for failing to pay her for services rendered. She received judgment against Dues for $ 1,604.50, and placed a lien against his home in an attempt to collect on it.

Two years later, Katherine Rucker filed a suit against Dues for $5,000, the maximum amount allowed in Magistrate Court. Rucker was seeking return of the $5,500 retainer she paid him in 2001 to file a sexual harassment suit against Bob Peden Chevorlet in Clendenin.

Dues never filed the suit.

On May 17, 2005, Rucker received judgment against Dues for $5,700. Through a wage garnishment order, Rucker has been able to collect all but about $200 from Dues.