Will third time be a charm? Va. man sued twice before by state residents

By Lawrence Smith | Jun 22, 2007

MORGANTOWN – Prior to filing their suit in magistrate court, two of the eight West Virginia residents suing an alleged private investigator brought suit against him previously, but to no avail.

On March 16, the residents filed suit in Monongalia County Magistrate Court against Jon L. Gigliotti of Lyndhurst, Va.

The residents –- Patricia A. Lemley, Robert Hart, Elizabeth Crawford, Gil Vanderkraats, Tom Mullins, Sheryl Hobbs, Sue Hollands and Paul and Gloria Ransom -– are seeking $2,650 from Gigliotti, the amount they paid him for a "retainer" to investigate their respective allegations of corruption in the West Virginia courts.

According to their account, Gigliotti was a licensed private investigator who promised he could get the American Center for Law and Justice, a Virginia Beach-based public interest law firm, to file a class action suit on their behalf, and the Christian Broadcasting Network, also located in Virginia Beach, to air a segment on their allegations.

Despite taking their money, Gigliotti never delivered on his promises.

The residents say they later discovered that Gigliotti's license to practice private investigations expired in January 1997, two months before he accepted their retainer, and CBN had long since severed its ties with him.

Prior to the one filed this year, Lemley and Hart, who were founders of the judicial watchdog group Victims R' Us, brought suit against Gigliotti. Court records show both cases were dismissed, but for different reasons.

Case botched by now-disbarred attorney

Lemley, who now lives in Mt. Morris, Pa., and owns a mobile notary service, was the first to file suit against Gigliotti. According to court records, in addition to Gigliotti, she named Mark Troobnick, John G. Stepanovich, Patricia Lyman, James Coster and the ACLJ, as co-defendants in 2000.

In her suit, Lemley alleged fraud on their behalf when they reneged on agreeing to reopen a case of alleged arson.

Eventually, Monongalia Circuit Judge Russell M. Clawges dismissed the case with prejudice on Dec. 20, 2000. The case, Lemley says, wasn't dismissed so much on the merits, but because of the bungling of her attorney.

To assist in her case, Lemley hired Keith Wheaton of Martinsburg. Other than file the suit after paying him a $3,000 retainer, Lemley said Wheaton did little, if anything, to help her.

"It was like pulling teeth," Lemley said.

According to Lemley, Wheaton failed to reply to motions made by the defendants. Though he was receiving those motions, Lemley said she went to the courthouse twice a week to see what motions had been filed and remind Wheaton of them.

Also, Lemley said Wheaton would routinely miss scheduled court dates. In one instance, the judge called Wheaton at his office and asked him why he wasn't in court.

Wheaton's reply, Lemley said, was that a recent snowfall made driving on I-68 between Martinsburg and Morgantown dangerous.

However, Lemley said her husband drove on I-68 that very morning without any problem.

"That was his excuse to the court, and they let it slide," Lemley said.

Unbeknownst to Lemley was that doing little or no work for his clients, despite being paid a retainer, had become Wheaton's habit.

Complaints filed with the Office of Disciplinary Counsel, the state Bar Association's investigative arm, show nearly 25 people had issues with Wheaton similar to Lemley's. Eventually, the complaints of six of his clients where combined to bring a respective statement of charges against him by the Lawyer Disciplinary Board, the Bar's prosecutorial arm.

In a 3-2 decision, the state Supreme Court on Nov. 12, 2004 voted to annul Wheaton's license. From 1997 to 2002, the Court said Wheaton engaged in a pattern of misconduct including "misappropriating funds and unlawfully converting client funds to his own personal use" and "making false statements to disciplinary counsel during investigations of ethical complaints."

A calling to end corruption

About a year and a-half after Lemley's case was dismissed, Hart decided to take a crack at Gigliotti. On May 29, 2002, Hart, acting as his own attorney filed suit against him, Stepanovich, CBN and ACLJ.

Initially, records show the case was filed in Monongalia Circuit Court. However, at the request of April Min and Charles J. Crooks, with Jackson Kelly's Morgantown office, and co-counsel for Stepanovich, CBN and ACLJ, the case was transferred to the U.S. District Court for the northern district of West Virginia in Clarksburg.

Gigliotti would later file a reply claiming his delay in filing was due to not receiving notification of the suit.

In his complaint, Hart accuses the defendants of failing to make good on their promises to investigate the complaints he and the other group members detailed to Gigliotti in February 1997, file a class-action lawsuit on their behalf and air their story on "The 700 Club." The defendants, Hart alleged, took advantage of him by claiming they "were called by God to expose government corruption in West Virginia."

"The Defendants wrapped in the American flag with Bibles in hand boasting to be Christians working for God and doing business in West Virginia as legal Christian organizations," Hart said in his complaint.

Also, Hart alleged that though Stepanovich made it clear he could not work on the residents' cases, he pledged that ACLJ-affiliated attorneys "from the District of Columbia and surrounding states" would aid in "prosecut[ing] their cases."

However, Hart alleged that on or about May 22, 1997, "Gigliotti and Stepanovich told the plaintiff that everything promised was put on hold until after President Clinton is either impeached or resigned from office." Apparently, Gigliotti, CBN and ACLJ were using the accounts detailed Terry Reed's and John Cummings' 1994 book "Compromised: Clinton, Bush and the CIA" to push for Clinton's removal from office.

"Defendant Gigliotti boasted about the undercover work done in Arkansas as an employee of defendants CBN and ACLJ," Hart said in his complaint, "whereby William Clinton was working hand in hand with the administration of President Ronald Reagan to allow drugs to be exchanged for weapons to the contras."

"Defendant Gigliotti," Hart added, "boasted a video tape was made of the exchange of drugs for weapons for the contras which was played in the Lemley home ... Defendant Gigliotti requested from the plaintiff his promise not to discuss or tell anyone about the contents of the Arkansas video tape ..."

"Defendant Stepanovich told the plaintiff that legal representation was still on hold until President Clinton was out of office and that his people were in Washington to make certain President Clinton was removed from office," Hart said.

In concluding his complaint, Hart alleged that as a result of the defendant's "deceit, false representations, fraudulent scheme and other frauds" he "has suffered mental anguish, emotional distress and trauma, humiliation, embarrassment, loss of trust for religious organizations, loss of trust in the legal system, loss of capacity to enjoy life." Because of such, Hart asked to be awarded $2,000 in compensatory damages for legal fees he incurred and $2 million in punitive damages.

Judge finds no contractual obligations

In their reply dated May 31, 2002, Min and Crooks categorically denied Hart's allegations.

"The Defendants are without information or knowledge sufficient to form an belief as to the truth of the allegations set forth…regarding any representations Defendant Gigliotti may have made to the Plaintiff," Min and Crooks said.

Also, Min and Crooks said Hart bringing suit against Stepanovich, CBN and ACLJ under the doctrine of respondent superior was not applicable since Gigliotti "was a security officer with CBN until his termination by lay-off effective June 19, 1995." However, a business card Gigliotti gave to Hart and the other residents at the February 1997 meeting in Elkins showed him providing "Executive Protection for the Office of the President [Pat Robertson]."

Furthermore, Min and Crooks said their clients "affirmatively deny that any attorney/client relationship ever arose or existed between the Plaintiff and Mr. Stepanovich or the ACLJ." Likewise, they denied "any fiduciary relationship every existed and CBN ever promised, contracted, offered or otherwise agreed to publicize the Plaintiff's grievances and any form or through any medium."

In his reply dated Aug. 29, 2002, Gigliotti via his attorney Bader C. Giggenbach of the Morgantown law office of Brewer and Giggenbach, "incorporat[ed] by reference any and all affirmative defense which may have been stated by any and all Defendants."

About a month later on Sep. 23, all of the residents who are a party to the current suit in magistrate court against Gigliotti, moved to be included as parties to Hart's suit. On Feb. 27, 2003, Judge Robert E. Maxwell denied their motion saying "exhibits attached to the motion to intervene clearly demonstrate that each applicant's relationship to the Defendant was a separate and unrelated transaction."

Likewise on that day, Maxwell granted a motion made on July 29, 2002 by Min and Crooks to have their clients dismissed from the case. In his ruling, Maxwell said any agreements between Hart, Stepanovich, CBN and ACLJ were an "oral promise" and "did not comport with the statute of frauds and did not constitute a legally enforceable contract."

Four days later on March 3, Maxwell granted a motion made by Giggenbach on Aug. 29, 2002 to have Gigliotti dismissed from the case. However, Maxwell left the door open for Hart to pursue action against Gigliotti as he said the matter between them lacked jurisdiction in federal court.

Case slated for mediation

After fighting what he claims is a backward judicial system in the state, Hart, a retired businessman, said he decided not to go after Gigliotti.

"I had better things going on and I just gave it up," he said.
Likewise, Lemley said dealing with the death of her father put a crimp on her ability to pursue action against Wheaton for botching her case against Gigliotti. However, she said she was glad that the Court disbarred him.

A mediation hearing has been scheduled in the residents' magistrate court suit against Gigliotti for Thursday, July 19 at 3 p.m. For Hart, settling the matter out-of-court is okay with him if that what it takes to receive some semblance of justice.

"I'm okay with it," he said. "I think every case ought to be mediated, and stay out of court."

Case numbers 00-C-353 (Lemley-Monongalia Circuit) and 02-C-73 (Hart-U.S. District)

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