Attorney questions delay in fraud case against two Kanawha judicial officers

By Lawrence Smith | Oct 26, 2007

CHARLESTON – The attorney for a Nicholas County financial services company is asking the how a case of alleged fraud against two Kanawha County judicial officers has been delayed for the past seven months.

On Oct. 17, J. Steven Hunter, attorney for Nicholas Loan and Mortgage in Summersville, sent a letter to Kanawha Circuit Clerk Cathy S. Gatson asking her to file discovery documents in the case Nicholas has against Theodore R. "Ted" Dues Jr., and his wife, Mona.

According to court records, Hunter's filing were certificates of service on the Dues' responses to Nicholas's first set of interrogatories, request for admissions and production of documents, and a second request for admissions.

Also, Hunter in his letter inquired as the delay in the case being assigned a judge.

"Do we now have a Judge assigned to this matter?" Hunter asked.

"I know that in the past most of the Judges have recused themselves in matters related to Mr. and Mrs. Dues," he added.

Court records show that in at least one previous civil case against Ted Dues, all seven Kanawha Circuit judges recused themselves in three months. However, in Nicholas' case, it has remained with Judge Irene C. Berger for the last seven months despite her recusal from the case after it was first assigned to her.

Allegations of fraud

According to court records, Nicholas filed suit against the Dues on Jan. 17 alleging their failure to repay the loan they took out on Oct. 15, 2004 for a 2001 Infiniti QX4 and a 1989 Mercedes-Benz 420 SEL. At the time the suit was filed, the Dues were in arrears $67,893.03.

Also, Nicholas alleges that Ted and Mona, who work for the court in Kanawha County as a mental hygiene commissioner and juvenile referee, respectively, committed fraud in the use of the two vehicles. In its suit, Nicholas alleges that the Dues' converted for their personal use an insurance check meant to pay for damages to the Infiniti, and losing possession of the Mercedes.

In their reply dated Feb. 12, the Dues, who are representing themselves pro se, denied the allegations. According to their answer, they acknowledged damages to the Infiniti beyond normal "wear and tear," but maintained that damages done to the vehicle occurred after it was repossessed.

Instead of taking the check for $1,606.28 issued to them by GEICO Insurance to use at Spring Hill Body Shop, the Dues said they found an alternate repair shop which could perform both the engine, and minor body work "at the cost of the actual insurance payment without charging the cost of the deductible to the Defendants."

According to court records, the Dues said the cost to repair the engine cost in excess of $1,000.

Regarding the lost Mercedes, the Dues say there's a perfectly good explanation for that.

In their reply, the Dues say that their son, Ted III, took it to Huntington where it broke down. He did this, they say, against their advice because the car was in a "dilapidated" condition.

Nevertheless, shortly after it broke down, Ted Jr. accompanied Ted III back to Huntington to look were it was "believed to have been left." Attempts to locate the vehicle, including using the assistance of the Huntington Police Department, were "to no avail," the Dues say in their reply.

However, information made available by HPD contradicts their account.

According to an incident/offense report filed Aug. 21, 2002, the Mercedes was towed by Cogan's Wrecker Service to its lot in Huntington. It was towed after being left unattended for a week on the 1100 block of 10th Street.

HPD confirmed that Ted did not file a stolen vehicle report, and would have been made aware of it being towed to Cogan's had he inquired.

Referral back a 'mistake'

After the case was filed, it was assigned to Berger. Court records show both she and Judge Jennifer Bailey Walker recused themselves from the case citing a "personal friendship" with the Dues.

After Walker recused herself, the case was assigned to Judge Paul Zakaib. However, court records show on March 19, he, too, recused himself from the case, and referred it back to Berger.

Until Hunter's Oct. 17, records show no activity in the case. A handwritten note on Hunter's letter bearing the initials "M.B." reads "called attorney's office as of 10/18/07 Judge Berger assigned to case."

By comparison, all seven Kanawha Circuit judges were quick to recuse themselves from a legal malpractice case Jeanettia Spencer filed against Ted in 2004. In her suit, Spencer alleged that Dues "voluntarily dismissed" a medical malpractice suit she had against Dr. Candace McCormick, a Charleston anesthesiologist, without her knowledge or consent.

According to court records, after the case was filed on Aug. 10, 2004 it was assigned to Zakaib. After Zakaib, and five other judges recused themselves, it was finally referred to Berger on Nov. 1, 2004.

On Nov. 10, 2004, court records show, Berger sent a letter to then-Chief Justice Elliott M. "Spike" Maynard of the state Supreme Court asking for appointment of a special judge to hear Spencer's case. On Nov. 19, 2004, Maynard appointed Berkeley Circuit Judge Christopher C. Wilkes.

A woman who answered the telephone at Berger's office said the case being referred back to Berger was "an obvious mistake," and she calling the clerk's office immediately "to fix the problem."
Attempts to reach both Ted and Mona Dues both at home and work were unsuccessful.

Kanawha Circuit Court Case No. 07-C-118

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