West Virginia Record

Monday, July 15, 2019

Point Pleasant candidates silent on lawsuits

By Lawrence Smith | May 10, 2007

Signs like this one in support of councilman-at-large candidate Gary Cotton on the corner of Jackson Avenue and 26th Street are beginning to sprout up in Point Pleasant in preparation for the upcoming May 19 election.

POINT PLEASANT – Candidates for the upcoming Point Pleasant city election are either mum or wanting to take a wait-and-see approach to lawsuits involving the city.

Currently, the city is a party in four lawsuits, three in which it's a defendant, and one in which it's a plaintiff. In the latter, the case stems from the last city election in 2003.

A questionnaire was sent to all 23 candidates running for city office asking if they favored or opposed settling the lawsuits. In addition to the mayor and city clerk, the city council consists of eight wards and two at-large seats, each represented by one person.

Only two candidates, incumbent mayor Jim Wilson, a Democrat, and Gary Supple, a Republican candidate for one of the at-large seats submitted a reply to the questionnaire. In their reply, both men were cautious about any attempts to reach a settlement in the cases.

Two suits allege city negligent

Two of the suits in which the city is named as a defendant relate to personal injuries. Both were filed in 2005, and allege the city was negligent in a fall one woman sustained as a result of an open water meter hole, and damage to another woman's car and person due to the reckless driving of a city employee.

In the first case, Ashely Jones of Henderson alleges that on Feb. 7, 2003 she was walking along the street in Henderson when "she stepped on the water meter cover located on the middle of the sidewalk and fell through the hole." As a result of the fall, Jones alleges she sustained injuries to her feet, leg, hip and back.

Though her attorneys Thomas W. Pettit of Barboursville, Scott A. Damron of Huntington and Ronald R. Morgan of Point Pleasant, Jones maintains she incurred $20,000 of medical expenses as a result of the fall. Also, the fall caused her lost wages, and "extreme emotional and physical pain and suffering; and past and present loss of capacity to enjoy life."

In addition to the city's water system, Jones named the Mason County Public Service District and the town of Henderson as co-defendants. Records show MCPSD was dismissed from the suit on Dec. 21, 2005, and Henderson on May 18, 2006.

Also, records show that prior to its dismissal, the town via its attorney R. Carter Elkins with the Huntington law office of Campbell, Woods, Bagley, Emerson, McNeer and Herndon incorporated Jones' complaint into a cross claim against Point Pleasant on Dec. 22, 2005.

About six months after Jones' accident, Gena Griggs of Point Pleasant was involved in hers. She alleges a collision with a 1993 Ford F-150 driven by John W. Burton caused her "past and future physical pain and suffering, mental pain and suffering, loss of enjoyment of life, doctor, hospital and medical bills and future loss of earning capacity."

According to court records, on Aug. 25, 2004 Burton was driving his truck in the northbound lane on Viand Street. After changing into the center lane, Burton abruptly changed back into the northbound lane "whereby striking Gena S. Griggs."

In her suit, Griggs, though her attorney Donald J. Tennent Jr. of Wheeling, maintains Burton was acting in the course of his employment at the time of the accident. Because he was "negligently trained, supervised and/or instructed" the suit names both he and the city as defendants.

In its reply dated Oct. 26, 2005, both Burton and the city, though their attorney David F. Nelson with the Charleston law office of Schumacher, Francis and Nelson, admit Burton "was working within the scope of his employment at the time of the motor vehicle accident." However, they denied Burton's actions resulted in Griggs pain and suffering and "demand[ed] strict proof thereof."

On Nov. 16, 2006, Burton was dismissed as a defendant.
Mason Circuit Judge David W. Nibert is presiding in both Griggs' and Jones' case.

Property owner sues to have mayor recused

The final suit to which the city is a defendant involves its enforcement of dilapidated or distressed properties. Specially, the suit alleges inherent conflicts in the way the city ordinances are enforced.

According to court records, Howard Yeager was cited for violating five ordinances by city inspector Jeremy Bryant. However, Yeager, through his attorney Jason Goad of the Charleston law office of Hunt and Serreno, alleges that Bryant failed to provide any explanation of the charges against Yeager.

Court records show Yeager proffered a settlement. Though admitting no wrongdoing, Yeager said he would donate the property in question to the city in exchange for the charges against him dropped.

After a series of negotiations with the city, the matter was to be resolved at a municipal court hearing on January 31. In this case, Wilson served as judge because Jeremy Vickers, the regular municipal judge, recused himself from hearing the case because of his involvement in the negotiations as assistant city attorney.

In West Virginia, state law allows for a mayor to hear municipal cases when the judge is absent or has a conflict.

However, Goad objected to Wilson hearing the case. Citing minutes from council meetings conducted from Oct. 10, 2005 to Aug. 7, 2006, Goad said Wilson actively participated in the discussion of Yeager's property, and, like Vickers, had a conflict of interest.

"Clearly," Goad said, "actively participating in ongoing settlement and proposal discussions with the city attorney and council and further assisting the city attorney and inspector in building their case and then subsequently serving as a judge in the very same case has the appearance of impropriety and hampers the public's confidence in the municipal court."

On February 7, Goad filed a motion in Mason County Circuit Court asking the court to prohibit Wilson from hearing the case. It has been assigned to Judge Thomas C.Evans.

In a prior conversation with the Record, Wilson, though declining to comment in detail on the case, said he was glad to see it moved to circuit court.

"We're delighted," Wilson said. "We now get a chance to prove our case."

Mayorial candidate filed suit to recoup back taxes

In the case in which the city is a plaintiff, it is the one the Record first reported on last month in which the then-city clerk sought unpaid taxes from a local contractor. The city clerk, Marilyn McDaniel, is again Wilson's opponent in the city election.

On June 30, 2003, a day before her term as clerk expired, McDaniel filed suit on the city's behalf against Mid-Atlantic Construction. Though the suit lacked details, McDaniel alleged MAC was in arrears to the city $49,000 for unpaid business and occupation taxes for its "perform[ance] of various and certain construction projects."

Other than a reply filed on July 23, 2003 by MAC's attorney Raymond G. Musgrave denying the allegations, records show no further action has been taken in the case. It is currently in Evans' courtroom.

McDaniel vacated her seat in an unsuccessful run for mayor in that year's city election. Her opponent was Wilson, who was then the Ward Seven councilman.

She lost to Wilson by 17 votes. A recount narrowed the margin to 13 votes.

McDaniel and Wilson face-off again in the May 19 city election.

Settlement an option, but at a later time

For Wilson, settlement of the lawsuits may be an option, but only at the suggestion of the city's insurer and attorney.

"Most of the lawsuits are in the hands of our insurance company or city attorney," Wilson said, " who will advise us of these situations and then I would make my decision."

Supple, a Point Pleasant attorney, concurs that settlement of any lawsuit should remain an option if both parties believe it to their advantage. However, he declined to say specifically if the lawsuits involving the city should be settled as he was not aware of their details.

"Voluntary resolution of litigation is less expensive and generally results in a compromise acceptable to those involved," Supple said. "However, I have insufficient information to recommend settlement."

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