WEST VIRGINIA RECORD

CHARLESTON – A judge can't dismiss a suit for failure to pay fees without holding a hearing, the state Supreme Court of Appeals has ruled.

The justices on Nov. 5 reinstated a suit that ophthalmologist Richard Rashid filed against former associate Muhib Tarakji in Kanawha Circuit Court in 1997.

The justices reversed Circuit Judge Louis Bloom, who in 2006 denied Rashid's motion to overturn an order that dismissed his suit in 2001.

The passage of seven years did not disturb the justices. They declared the 2001 order void "ab initio," Latin that means from the beginning.

Tarakji and Rashid once worked together, with Tarakji acting as independent contractor in Rashid's office.

In 1997, after Tarakji set up his own office, Rashid filed suit claiming Tarakji misappropriated his trade secrets.

For Rashid, lawyers Bradley Sorrells and Scott Segal of Charleston alleged breach of contract, fraud, interference and unjust enrichment.

By way of answer, Tarakji asserted a counterclaim against Rashid.

In 1998, Rashid served Tarakji with a request for documents. In 2000 Rashid served an almost identical request and gave Tarakji six months to comply.

In 2001, the circuit clerk sent letters to lawyers in this case and 70 others, notifying them that the court would dismiss the cases if they did not pay $20 by May 1.

After the deadline passed, the clerk obtained an order dismissing cases with unpaid fees.

The Nov. 5 decision didn't identify the judge who signed the order.

In 2003, Rashid's lawyers asked for Tarakji's tax returns from 1995 through 1997. They stated they needed to determine if they Rashid could reassert his claims.

For Tarakji, Jeffrey Wakefield of Charleston answered that the case was dismissed.

In 2005, Segal filed a complaint for Rashid identical to the original complaint.

Tarakji moved to dismiss, and Segal agreed to the motion. Segal and Wakefield obtained an order dismissing the suit.

Rashid discharged Segal and Sorrels and retained Edison Hill of Hill, Peterson, Carper, Bee and Deitzler in Charleston.

Hill moved in 2006 to reinstate the original complaint, claiming Rashid didn't receive the $20 notice from the circuit clerk in 2001.

Bloom denied reinstatement, and Hill sought it at the Supreme Court of Appeals.

Hill argued that the notice served as a rule to show cause, requiring a hearing.

For Tarakji, Wakefield answered that Rashid waived any challenge to the notice and argued that his delay in acting on the dismissal stopped his right to appeal.

Hill told the Justices that Rashid didn't receive the letter. Wakefield did not indicate whether or not Tarakji received it.

The Justices wrote in an unsigned opinion that, "There is no indication included on the docket sheet to show to whom such notice was sent."

In any event the letter did not amount to an opportunity to be heard, they wrote.

Chief Justice Spike Maynard and Justice Larry Starcher favored reinstatement. So did senior status judge L.D. Egnor, sitting by temporary assignment.

Kanawha Circuit Judge Jennifer Bailey Walker, also sitting by temporary assignment, dissented and reserved the right to file an opinion.

Egnor and Walker substituted for Justices Brent Benjamin and Robin Davis, who disqualified themselves. Davis is Segal's spouse.

Justice Joseph Albright heard oral arguments but illness kept him from participating in the decision.

Along with Wakefield, Jaclyn Bryk represented Tarakji. They practice at Flaherty, Sensabaugh and Bonasso in Charleston.