Workman secured improper order, attorney claims

By Steve Korris | Jan 23, 2009



CHARLESTON – Michael Ranson complains to the West Virginia Supreme Court of Appeals that another lawyer damaged his client. This is a thorny patch for the justices because Ranson points the finger at one of them.

Ranson claims Margaret Workman, prior to her re-election to the Supreme Court in November, secured an improper court order that would cost his client, Eugenia Schmalhorst, $94,692.69.

Ranson petitioned the justices on Jan. 13 for an order directing Kanawha Circuit Judge Paul Zakaib to hold a hearing on the dispute.

First, the justices must figure out if they have a judicial order to review.

Zakaib ruled in favor of Workman in August, but in November her attorney, Ed ReBrook, asked him to remove part of the order and re-enter it. That hasn't happened.

Ranson's petition sought to correct any impression that he continues litigating against Workman for his own sake rather than for Schmalhorst.

"Ranson Law Offices has no claim for attorney fees from the monies currently being held in escrow," he wrote.

He wrote that contrary to Workman's contention, the matter does not arise as a dispute between attorneys but as a dispute between Schmalhorst and Workman.

Schmalhorst lives in Missouri. In West Virginia courts, she remains Eugenia Moschgat.

Her mother, Linda Kannaird, worked at a Speedway Superamerica near a creek. In 2000, as the creek flooded, she loaded merchandise for removal to higher ground.

Water trapped the workers. A Charleston rescue team loaded them in a boat but the boat capsized and Kannaird drowned.

Zakaib appointed Moschgat, her only child, to administer the estate. On her behalf Ranson sued Speedway and the city.

At Workman's request, Zakaib removed Moschgat as adminstratrix and installed Diana Savilla, a sister of Kannaird, in her place.

Workman argued that Savilla and nine other brothers and sisters could recover damages from Speedway but that Moschgat deserved nothing from Speedway or the city.

Ranson responded that no one could recover from Speedway except Moschgat, and he negotiated a conditional settlement with Speedway at $240,000.

The Supreme Court of Appeals ruled in 2006 that only Moschgat could recover from Speedway, but the justices appointed Savilla to administer the estate for Moschgat.

Justice Robin Davis anticipated trouble.

"Moschgat's recovery now rests in the hands of a plaintiff who does not want her to have a single penny," she wrote. "This decision sets horrendous precedent."

Ranson and Speedway moved for approval of their settlement and Zakaib approved it. He set aside one third, $80,000, in escrow, along with $18,192.69 in expenses.

Workman, representing Savilla, settled with the city for $190,000. She collected a third plus expenses, for a total of $73,863.

Brothers, sisters and Moschgat split the rest of it 11 ways, at $10,557.91 each.

Zakaib held a hearing on the Speedway escrow in 2007 and directed the lawyers to schedule another date.

According to Ranson, ReBrook notified him that he set it for Dec. 19, 2007.

On that date, according to Ranson, the circuit clerk canceled the hearing because the court received no notice of it.

"A notice of hearing is traditionally prepared and filed by the party securing the hearing date which in this instance was Mr. ReBrook," Ranson wrote in his petition.

Last Aug. 27, Zakaib made up his mind without further hearings. He awarded $76,500 plus expenses to Workman, and he awarded $3,500 to Ranson.

Ranson objected on Sept. 8 and moved to stay enforcement of the order, writing that he didn't know about it until he received it.

He branded it as "ex parte." Court rules forbid ex parte communication between a lawyer and a judge outside the presence of the opposite lawyer.

Zakaib set a hearing for Nov. 12, but he spent the day in a hospital.

On Nov. 19, ReBrook wrote in response to Ranson's objection that a reference in Zakaib's order to depositions was an error. ReBrook offered a revised order.

Ranson wrote in his petition, "To date, the 'revised order' has not been entered by the lower court."

He wrote that "there was no judicial inquiry into the reasonableness of the fees."

"It is well established that a trial court having the right to determine counsel fees, cannot do so arbitrarily," he wrote. "Permitting Savilla to recover attorney fees and expenses from the Moschgat settlement proceeds would be a farce and surely cannot be supported or condoned by this Court."

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