2003 case faces another delay with attorney's fraud conviction

CHARLESTON - A case that was delayed by one attorney's misconduct is likely to see another due to the unrelated misconduct by the opposing counsel.

On June 4, the case of Bergstedt v. Holliday, et. al began its eighth year on the Kanawha County Circuit Court docket. In June 2003 Connie Bergstedt and her husband, Merrill, filed suit against Marsha Holliday, Millennium One Management/Gold Key Realty and Joshua McGrath alleging all were in some way responsible for water damage their home on Anaconda Drive in Charleston incurred in the previous January following a winter storm.

Specifically, the Bergstedts alleged Holliday and McGrath assured them the heat was on at the home before they closed on it. However, after they moved in on Jan. 24, 2003, they found the house bitterly cold and the pipes were frozen with icicles coming out of the faucets."

When Allegheny Power refused to turn the power in since the account was not yet in the Bergstedt's names, the pipes began to bust.

Records show four years later, then-Kanawha Circuit Judge Irene C. Berger, partially granted a motion by the defendants to dismiss the case. Though Millennium One Management/Gold Key Realty and McGrath were dismissed from the suit, Holliday remained as a defendant.

Prior to and following the dismissal, Bergstedt said she had no communication with her attorney, John E. Lutz Jr., until he showed up at her new home on Shadybrook Road in December 2007 to present her with a document showing a settlement was reached, and a hearing was scheduled for February 2008. Suspicious, Bergstedt took the purported settlement to Berger's office who confirmed there was no settlement, and her signature on the agreement was fake.

Records show Lutz was arrested and charged in March 2008 on a charge of forgery and uttering, a felony. After agreeing to plead guilty to purporting to exercise the function of a public official, a misdemeanor, Lutz was sentenced on Oct. 21, 2009, to 18 months probation.

Eleven months earlier, the state Supreme Court agreed to accept Lutz's voluntary petition to annul his law license. His request came in the midst of the Office of Disciplinary Counsel, the investigative arm of the state Bar, beginning a related ethics probe into the criminal charges, and facing ethics complaints from least four other clients.

Since discovery of Lutz's fake settlement the case has been at a standstill.

After proceeding with the suit pro se, the Bergstedts hired Harold Albertson. However, after he, like Lutz, failed to communicate with them, the Bergstedts replaced Lutz with Dana Eddy and Shari Collias last June.

A week after Eddy and Collias entered the pictured, Berger dismissed the case on June 24, 2009, after the Bergstedts failed to pay a $60 fee for cases on the docket longer than three years. After the fee was paid, Berger on Aug. 17 granted a motion to reinstate the case.

A month later, USAA, who was added as a co-defendant in January 2007, answered the allegations against them. Through their attorney James Stebbins, USAA denied a claim for damages to the home since the policy did not take effect until the day after the closing.

The nine-month lull the case is likely to continue as Holliday's attorney, Patrick B. Anderson, was convicted in April on charges of bankruptcy fraud, and fraudulent concealment of assets relating to a Poca couple's bankruptcy case. Still free on bond, Anderson is scheduled to be sentenced on Aug. 16 in U.S. District Court, and faces up to 10 years in prison, and a $500,000 fine.

As of presstime, Anderson was still listed a counsel of record for Holliday. According to the state Bar's Web site, Anderson's license is still active, and an ethics investigation related to his conviction is still pending.

Kanawha Circuit Court case number 03-C-1484