CHARLESTON – A Kanawha Circuit judge has ruled against a retired judge who is trying to sell his Cabell County home through an Ohio auctioneer.
Kanawha Circuit Judge Paul Zakaib issued an order Aug. 13 granting the West Virginia Real Estate Commission's motion to dismiss the complaint of Retired Cabell Circuit Judge L.D. Egnor.
Egnor sought to have Larry Watson, an auctioneer with Mike Clum Auctions in Rushville, Ohio, auction off his home overlooking Huntington's Ritter Park and some antiques.
The state Real Estate Commission argued that Watson would need both a West Virginia auctioneer license and a West Virginia real estate license to do so. Egnor disagreed, saying he had a real estate broker involved to handle that aspect of the sale and that Watson's Ohio auctioning license has automatic reciprocity.
Zakaib sided with the REC.
"The petitioner (Egnor) has failed to make a clear showing of a reasonable likelihood of irreparable harm inasmuch as he has conceded that the sale or auction of his real property is not possible on an immediate or imminent basis," Zakaib wrote in his order, noting that even Egnor admitted the earliest the sale could happen is in the fall.
"Petitioner has demonstrated no harm at this juncture."
During a July 31 hearing on the matter before Zakaib, Egnor said the REC and even Attorney General Darrell McGraw's office were working to keep him selling his home.
At the hearing, Egnor explained the situation.
Three years ago, Egnor's wife passed away. He decided to build a smaller home and move. He worked with Old Colony Realtor and Milton Mayor Betty Sargent, but Egnor was unable to sell the Huntington home because of the recessed housing market.
In addition to the property, Egnor also had some antiques he wanted to sell. He and his wife collected antiques for years, he said.
So he had the idea to get an auctioneer to handle the sale of both his real estate and the antiques. He said the auction house would market the property in a normal fashion, and the Realtor would assist in the sale.
Egnor connected with Watson, the auctioneer. Watson agreed, and called the REC to make sure he would be able to do so legally. He was told he would have to be a licensed West Virginia real estate agent to conduct the auction and sale.
Egnor said he was stunned when Watson relayed that information to him, considering a licensed West Virginia Realtor would be assisting and that Watson's Ohio auctioneer license has automatic reciprocity in West Virginia with proof.
Insisting the law is on his side, Egnor attended a June 21 REC meeting. He hired a court reporter to take notes of the meeting because "time was of the essence." No action was taken at the meeting.
On July 9, the commission had a telephone conference to discuss Egnor's situation. Again, nothing was resolved.
Then, Egnor said his attorney, Ancil Ramey of Steptoe & Johnson's Charleston office, contacted the REC to get the forms necessary to file such a petition because he couldn't find them anywhere.
Egnor said statute require the REC to have such forms. But a response letter from Deputy Attorney General Kelli D. Talbott, representing the commission, said those forms do not exist.
On July 13, Ramey filed the suit for Egnor.
Soon after, Ramey and Egnor were notified by Talbott that Ramey, who also served as Clerk of the state Supreme Court of Appeals for more than a decade, could not represent Egnor because Steptoe & Johnson sits on the state's Board of Risk & Insurance Management panel that handles cases involving state agencies. They were told that made it impossible for Ramey to represent anyone filing a suit against a state agency.
The July 31 hearing was scheduled on July 25, and Ramey soon received another letter from Talbott.
"Yesterday, after a series of telephone conversations with BRIM and AIG officials, I was informed … that you and your firm would be withdrawing as counsel for L.D. Egnor," Talbott's letter begins. "It is my understanding that BRIM and/or AIG have a policy wherein it is not permissible for law firms that choose to represent the State or its agencies in cases covered by the State's insurance to engage in the business of suing the State and its agencies on behalf of clients. Moreover, your firm has represented the Real Estate Commission in the past in a case or cases covered by the State's insurance."
Talbott then says she says she didn't know the timing of Ramey's withdrawal as counsel.
"Frankly, I was surprised to get a notice of hearing from you," Talbott wrote. "Instead, I expected to get a notice of withdrawal/substitution of counsel before this matter proceeded any further.
"In light of the fact that I have not yet received a notice of withdrawal/substitution of counsel from you, and the temporary restraining order hearing is still scheduled for July 31, 2007, I would request that you agree to continue the hearing until such time as Mr. Egnor may engage other counsel. I will then work with new opposing counsel to schedule the hearing as soon as possible.
"If, however, you persist in representing Mr. Egnor and intend to appear at the July 31, 2007, hearing, I will be forced to continue to pursue complaints on behalf of my client, the Real Estate Commission, with BRIM and/or AIG and/or the Office of Disciplinary Counsel."
Talbott then says her client would not "find it satisfactory" for Ramey to represent Egnor during the July 31 hearing and then later withdraw because if a temporary restraining order was given, then the case essentially could be over.
"It would be disingenuous, at best, for you to essentially 'win' this case for Mr. Egnor in a temporary restraining order hearing and then withdraw only to have new counsel do clean up work," Talbott wrote to Ramey. "Such a course of action does not comport with either the letter or the spirit of BRIM's policy of requiring panel counsel to refrain from suing State agencies or the code of professional conduct."
Replying to Talbott, Ramey says Egnor would represent himself at the July 31 hearing, which he did.
"Rather than exposing my firm or me to further threats by the Office of the Attorney General, Judge Egnor has decided to represent himself at Tuesday's hearing," Ramey wrote. "In the interim, please provide me with a copy of the 'BRIM and/or AIG policy wherein it is not permissible for law firms that choose to represent the State and its agencies in cases covered by the State's insurance to engage in the business of suing the State and its agencies on behalf of clients' referenced in your letter.
"Also, as your letter threatens a disciplinary complaint, please provide me with a reference to the Rule of Professional Conduct allegedly violated by our representation of Judge Egnor in this matter as our firm does not currently represent the Real Estate Commission nor has it formerly represented the Commission in any related manner."
During the July 31 hearing, Egnor addressed his lack of counsel. He called the situation "Kafka-esque" and said the state essentially was targeting him and/or Ramey. He also said his situation had gone from "ridiculous to excessively sublime to oppressively hurtful for no reason."
"Because of that coercive, incredulous action on behalf of the West Virginia Attorney General in her letter to Mr. Ramey, I stand here alone before you today, Your Honor," Egnor told Zakaib. "In all my years, I've never seen anything like this.
"It's an incredible example of form over function, an incredible example of use of public office to attempt to strong-arm me."
Talbott said the REC wouldn't have even been involved in the situation if Watson hadn't called.
"We didn't ask to be in the middle of this," she said. "We propose that Mr. Watson take the exam on Aug. 10 to get his West Virginia real estate license and get his auctioneer license. That can be done in a short period of time. Then, they can sell the property.
"We don't need to be here today."
Talbott also addressed the Ramey angle of the case.
After Ramey became involved and the suit was filed, Talbott said the case was sent to BRIM to evaluate and determine if there was insurance coverage involved. There was not.
"In that process, it came to my attention that Steptoe & Johnson is one of panel counsel that represents West Virginia in insurance cases," Talbott said. "Steptoe & Johnson has represented the commission, so AIG and BRIM asked Ramey to get out of the case.
"I was not doing this on behalf of the West Virginia Attorney General's office. I was doing it on behalf of my client. This is a complete and total side issue."
At the end of the hearing, Egnor spoke again.
"There have been so many misrepresentations and so many misstatements and assertions that I don't know where to begin," he told Zakaib. "There is a basic inherent evil to certain aspects of our bureaucracy.
"It was in bad faith for the Attorney General to allow such a letter to go to one of the most eminent attorneys in this state and to his firm."
Egnor said Watson is going to get his West Virginia auctioneer license from the state Department of Agriculture.
"There's no need for Mr. Watson to get his real estate license, but they (pointing to Talbott and REC Executive Director Richard Strader) say there is," Egnor said. "He's tentative enough in his dealings already with the state of West Virginia.
"I'm just getting so worn out with this."
Egnor served as a Circuit Judge in Cabell County for 18 years, and he became of counsel for the Huntington firm of Farrell, Farrell & Farrell in 1998 after his retirement. He also is a former president of the Cabell County Commission and chairman of the West Virginia Courthouse Facilities Improvement Authority. He also was Cabell County's Prosecuting Attorney and a state Assistant Attorney General.
When appointed by the West Virginia Supreme Court of Appeals, he occasionally serves as a Senior Circuit Judge. Recently, he presided over a case involving a former state AG staffer who sued over her firing.
Kanawha Circuit Court case number: 07-MISC-294