WEST VIRGINIA RECORD

CHARLESTON – A former Charleston attorney faces criminal charges he forged the signature of a Kanawha Circuit judge to convince a client a lawsuit she filed had been settled.

Last month, the state Supreme Court annulled the license of John E. Lutz Jr. In its Nov. 5 order, the Court gave no reason for annulling Lutz's license except that it came at his request.

It in unclear if there's any connection, but prior to his annulment, Lutz had four clients lodge complaints against him in the course of two months with the Office of Disciplinary Counsel, the investigative arm of the state Bar. One of those clients accused Lutz of converting $7,200 she paid him to file for a divorce for his personal use, specifically to support a drug habit.

However, it has since been discovered that earlier this year Lutz was charged in Kanawha Magistrate Court for uttering. Court records show Lutz attempted to convince Consulacion Bergstedt of Charleston that a court document containing the signature of Judge Irene C. Berger was legitimate.

Attempting a fake-out

According to the criminal complaint filed on Christmas Day by West Virginia State Trooper B. H. Moore, Lutz, sometime between Dec. 15 and 25, 2007, "did utter a forged court document, namely a document reportedly signed by Kanawha County Circuit Judge Irene Berger, describing the recent actions on case number 03-C-1484 knowing the document to be fraudulent and the signature to be forged."

"The document," Moore's complaint says, "was uttered to Consulacion Bergstedt at 1711 Shadybrook Rd., Charleston, West Virginia, Kanawha County."

It was not until March 15 that Lutz, 64, was formally charged with the allegation against him. Following his release on $1,000 personal recognizance bond, a preliminary hearing was set for Lutz on March 28.

However, Lutz later waived his preliminary hearing, thus sending the case to the Kanawha County grand jury.

Since then, the only activity in the case was a motion filed by Lutz's attorney, Tim Carrico, seeking the court's permission to leave the state. Lutz's reason for leaving, records show, was to enter a 90-day treatment program at the Williamsburg Place and William J. Farley Center in Williamsburg, Va. beginning June 3.

With the Kanawha County Prosecutor's Office expressing no opposition, Judge Louis H. "Duke" Bloom granted Carrico's motion on June 2.

An injustice compounded

Though the alleged forged document is not the court file, Bergstedt told The West Virginia Record that it was an agreement to settle a civil suit she and her husband, Merrill, filed in June 2003 against Marsha Holliday, Millennium One Management/Gold Key Realty and Joshua McGrath. In the suit they filed with Lutz's assistance, the Bergstedt's allege Holliday, a broker for Gold Key Realty, was negligent in allowing the heat to be cut-off in a home they were buying on Anaconda Drive in Charleston.

According to the suit, the Bergstedts were supposed to close on the house on Jan. 17, 2003. However, the closing was moved back to Jan. 24.

Concerned about a winter storm moving into Charleston during that interval, the Bergstedts maintain they not only called Holliday, but also McGrath to ensure the home was heated. Both Holliday and McGrath, the suit alleges, told the Begstedts it was.

However, upon moving into the home after the closing the Berstedts "discovered that the inside of the house was bitterly cold and the pipes were frozen with icicles coming out of the faucets." They tried without success to get Allegheny Power to turn the heat on.

The next day, the Bergstedt's worst fears were realized when the pipes burst causing water to rush out of the ceiling. They estimated their direct damages to be $11,270 –- the damage to replace the pipes and the cost of renting appliances to remediate the water damage –- plus the delay and inconvenience from being able to move into the home where they planned to operate their catering business.

Records show the Bergstedt's suit was amended on Jan. 25, 2007, to include Erie and USAA Insurance. Because the home on Anaconda was not included under their old homeowner's policy with Erie, and that the damage happened before the switch to USAA, both denied claims the Bergstedts submitted.

Later on Feb. 6, Millennium One Management/Gold Key Realty and McGrath were dismissed as defendants.

According to Bergstedt, she made multiple attempts throughout the remainder of the year to contact Lutz concerning the status of the case. All were without success, she said.

However, he unexpectedly shows up on her doorstep in December. During his visit, Bergstedt says Lutz presented her with documents showing that a settlement had been reached in the case.

Also, Lutz told her a hearing on the settlement was scheduled for February.

A few days after Lutz's visit, Bergstedt said she decided to visit Berger's office to inquire about the suit when she was at the Kanawha County Judicial Annex on unrelated business.

After confirming no settlement hearing was scheduled for February, Berger's secretary asked to see a copy of the documents Lutz gave Bergstedt. After confirming the signature was not hers and the documents to be a fake, Berger told Bergstedt she would handle the matter.

Since then, the Bergstedts have proceeded pro se as other lawyers have been reluctant to take over the case. Despite that, following a March 27 status conference, Berger scheduled a June 22, 2009 trial date with completion of discovery by New Year's Day.

The fact that Lutz's license was annulled, possibly as a result of the alleged uttering, comes as cold comfort, Bergstedt said.

"It's really an injustice to us that we have to go through all of this."

Kanawha Circuit Court, Case No. 08-B-286 (Lutz criminal) and 03-C-1484 (Bergstedt civil)