CHARLESTON - At least for a little while longer, a Charleston man's lawsuit against a state Tax Department attorney will proceed.
Kanawha Circuit Judge Charles E. King Jr. on July 8 denied a motion by Ellen F. Golden to dismiss a legal malpractice case filed against her by Donald McCune. King's ruling followed a hearing held on June 30 on Golden's motion.
During the hearing, Golden argued, among other things, that the suit should be dismissed since McCune filed it past the 5-year statute of limitations for an oral contract. Since a receipt showing McCune hired Golden on Aug. 26, 2003, and his lawsuit was filed on Aug. 20, 2008, King ruled Golden's statute of limitations argument is without merit
"The filing date of the Complaint was less than five (5) years from the date on which the Defendant asserts that the statute of limitations began to run," King said in his ruling. "Therefore, Plaintiff's claim is not barred by the statute of limitations."
Records show McCune, a retired businessman now living on Social Security, first filed his suit against Golden in Kanawha Magistrate Court. He alleged that despite paying Golden $730 to file a bankruptcy case, she never did.
The case was transferred to Kanawha Circuit Court in November due to McCune asking for interest and punitive damages "for all the trouble she's caused me."
At the time McCune hired her in 2003, Golden was sole proprietor of her own firm, the Golden Law Office in Charleston. In 2008, her firm declared bankruptcy, and she later went to work for the Tax Department.
During the hearing, Golden -- who admitted that McCune was still technically his client -- gave McCune a $200 "[t]hat was held in trust for him" which he reluctantly accepted. When King asked if she would still be willing to file McCune's bankruptcy, Golden said she couldn't due to her employment with the Tax Department "but could see to it that someone could file it."
However, Golden had an apparent change of heart.
Records show Golden sent a letter to McCune the same day of the hearing informing him that "The [United States] Bankruptcy Clerk's office offers assistance to those who want to file bankruptcy without having to hire a lawyer." After providing the clerk's telephone number, Golden concluded her letter saying "I hope this is helpful."
Since the denial of her motion to dismiss, Golden filed a reply to McCune's suit. In her answer dated July 23, Golden denied his allegations, and asserted a defense that, among other things, she had not breached any duty owed to McCune.
Kanawha Circuit Court case number: 08-C-3187