CHARLESTON - The Kanawha County Board of Education is accusing a Charleston attorney of committing fraud in pocketing money that should've been paid to a client.

The Board on April 26 filed suit against Cynthia E. Evans, and her law office, Cynthia E. Evans, attorney-at-law. In its four-count complaint filed in Kanawha Circuit Court the Board alleges Evans unjustly enriched herself when she negotiated an award of $50,000 in legal fees from a 2006 lawsuit.

Records show Evans on March 6, 2006, filed suit on behalf of Mark and Tammy Davis, of Charleston, against the Board in U.S. District Court in Charleston. The Davises alleged the Board failed to properly craft an individualized education plan for their son, Jonathan, in violation of the Individuals with Disabilities Education Act.

Among other things, the Davises alleged the Board failed to provide Jonathan, who has autism, with the necessary speech therapy when he enrolled in a pre-school program at Ruffner Elementary during the 2004-05 school year, and did not allow them to participate in developing the plan. The suit also made claims against the Board for violation of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act and the West Virginia Human Rights Act.

Along with the suit, Evans filed a motion to recover legal fees and costs. Attached to the motion is the Davis's billing statement which shows she performed 2,481.75 hours of work between March 1, 2005 and March 6, 2006 at $275 an hour for a total of $112,292.40.

Records show Judge Joseph R. Goodwin, who was assigned the case, denied Evans' motion on May 2, 2006, on the grounds that asking for recovery of attorney fees before the case was resolved was premature.

Successful summary judgments

The Board on Nov. 2, 2006, filed the first of two motions for summary judgment. The Board's attorney, Vaughn T. Sizemore, with the Charleston law firm of Bailey and Wyant, argued in the first motion because the Davis's dispute was only with methodology, and not that the Board failed to provide Jonathan with "appropriate accommodations...specifically tailored to confer an educational benefit to him" the suit should be dismissed.

Goodwin on Aug. 3, 2007, partially granted the Board's motion giving substantial weight to the previous findings of a hearing examiner who found that the March 23, 2005, plan created for Jonathan was not predetermined. Since he was only ruling on the IDEA claim, Goodwin let the suit continue on the remaining claims.

In its second motion for summary judgment filed on Nov. 7, 2007, the Board argued the Davises could not substantiate those claims. Aside from the record taken during the administrative hearing on the IDEA claim prior to filing the lawsuit, the Board averred "No additional discovery was conducted and no witnesses have been identified."

Goodwin on Jan. 11, 2008, granted the Board's motion on the grounds the Davises "failed to present viable federal claims, and because the court declines supplemental jurisdiction over [their] state claim."

Despite granting the Board the first summary judgment, Goodwin on Oct. 31, 2007, ordered it pay Evans $31,072.00. He reaffirmed his decision the day he granted the Board's second motion for summary judgment.

Separate appeals

Goodwin's decisions prompted separate appeals from both the Davises, and the Board to the 4th Circuit Court of Appeals in Richmond, Va.

Records show the Davises on Feb. 8, 2008, appealed Goodwin's decision on the first summary judgment, and the Board a month later appealed his order awarding Evans' attorney fees.

The Davises filed their appeal pro se after terminating Evans sometime in the Fall of 2007. In a Sept. 17, 2007, letter addressed to the U.S. District Clerk, Mark Davis said he and Tammy could not begin to pay Evans' legal bill, which by that time reached $150,000, and had to file for bankruptcy. Though in a notice of appearance dated Nov. 8, 2007, the Davises notified the court they would be acting as their own attorneys, the Board in its lawsuit against Evans alleges they agreed to allow her to remain as their attorney during the Board's appeal on the attorney fee issue.

After the 4th Circuit upheld Goodwin's ruling on July 9, it referred the Board's appeal on Evans' attorneys fees back to him on Aug. 13. On Sept. 8, records show the Board agreed to pay Evans $50,000 for not only what Goodwin awarded her, but also for the additional time she incurred during the appeal.

Payment not disclosed

In its lawsuit, the Board alleges that Evans informed them that though she was unable to contact the Davises "she had the authority to negotiate [their] award of fees" and "any fee award belonged to her." She even went so far as to say that in the bankruptcy she helped them file on July 12, 2006, they did not include in their petition her fees as they "wanted her to receive [them]."

Believing Evans was acting on the Davis's behalf, the Board said it followed her instructions "that the check be made out to her." The date the check was written is not specified in court records.

Also, the Board avers Evans never disclosed the Davises paid any of her fees. It points to the bill dated March 6, 2006 she submitted to the court which does not show a credit of any kind paid by the Davises.

Records show the Davises on Oct. 16 filed a motion to enforce the order granting attorneys fees with interest. During a hearing on the motion held on Jan. 8, Mark Davis testified before he terminated Evans as his attorney, he " 'maxed out'" his credit cards to pay her close to $50,000.

On Jan. 12, Goodwin, finding that under the IDEA statute any fee award belongs to the client, and not the attorney, granted the motion. Since the Davises were not listed as co-payee on the check, and they did not sign a release for it, Goodwin ordered the Board to pay them the $31,072 plus interest effective Oct. 31, 2007.

Evans on Jan. 25 filed separate motions to intervene and reconsider, and a notice of lien against any award to the Davises. In her notice of lien, Evans alleged they still owed her $62,021.50.

The next day, Goodwin granted Evans' motion to intervene, but denied her motion to reconsider. In his order, Goodwin said though Evans is entitled to recover any additional fees the Davises owe her, she must do that in "a separate action in the appropriate venue."

A month later, the Board filed a motion to recover the $50,000 it erroneously paid Evans. The next day, Goodwin denied the motion saying, like he did with Evans' motion, that it needed "to file a separate action against her in a court of competent jurisdiction."

In its lawsuit against Evans, the Board says since Goodwin's Jan. 12 order, it has given her "numerous opportunities to repay the $50,000." It has even gone so far as to work with Evans "on a payment plan or to agree upon an extended period of time in which she could repay the finds."

However, "each of these attempts were rebuffed."

Along with fraud, the Board makes claims against Evans for unjust enrichment, mutual mistake of fact and breach of contract. Allowing Evans to keep the $50,000 would allow her to be "unjustly enriched at the expense of the taxpayers of Kanawha County."

Along with recovery of the $50,000 it paid Evans, the Board seeks unspecified punitive damages, attorneys fees for the suits in both state and federal court and interest. It is represented by Sizemore.

The case is assigned to Judge Jennifer Bailey

Kanawha Circuit Court, case number 10-C-772 (Evans fraud); U.S. District Court for the Southern District of West Virginia, case number 06-cv-167 (Davis discrimination)

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