Judge dismisses breach of contract suit against W.Va. State

By Lawrence Smith | Jan 12, 2012




CHARLESTON – Following a closed-door hearing, a judge has dismissed a concert promoter's breach of contract suit against a local university, and its president.

Judge Tod J. Kaufman on Oct. 20 dismissed the lawsuit Don Staples filed last February against West Virginia State University, and Hazo W. Carter Jr. In his suit, Staples alleged he lost over $300,000 when State reneged on hosting a concert for hip-hop artist Jeezy in August 2010.

Kaufman's order came in response to a motion filed by WVSU and Carter's attorneys Billie Jo Streyle and James Marshall III on the grounds that, among other things, Staples failed to file a pre-suit notice, and since WVSU is a state agency, it has qualified immunity from civil suits. A hearing on the motion was held Sept. 1.

However, the hearing was closed to the press, and public. A sign on the door leading into Kaufman's courtroom that day said "Closed hearing" on one line and "Do not enter" on the other.

The West Virginia Record attempted to get a comment from Kaufman about not only the why the hearing was closed, but also about a potential conflict he had in hearing the case. Kaufman and former state Board of Education Superintendent Steve Paine serve on the state Martin Luther King Jr. Holiday Commission with Carter, the Commission's chairman.

The Board was initially named as a co-defendant in the case, but later dismissed.

Though he did not return repeated telephone calls, Kaufman addressed the potential conflict in a letter dated Sept. 15 to Marshall and Staples' co-counsel, Toby J. Buel. In it, Kaufman while acknowledging he and Carter are commission members, there was no conflict in him hearing the case since Carter was being sued for matters unrelated to the commission.

"Dr. Carter has been sued in his official capacity as President of West Virginia State University, not in a personal capacity and in no way does the lawsuit have anything to do with the Martin Luther King Jr. Commission," Kaufman said in his letter. "It is important for this disclosure to be made for all parties to know this disclosure and to see that his disclosure is made part of the record in the case.

"The court apologizes for the disclosure coming at this point but is not unusual for matters to come up in litigation which may need to be disclosed or which the court feels should be disclosed as litigation proceeds. This is one of those instances."

Though he addressed the potential conflict of interest, Kaufman in his letter did not address why the hearing on State and Carter's motion to dismiss was closed.

When contacted, Streyle said "We did not ask that Judge Kaufman close the courtroom nor did he do so unless it was an inadvertent error made by someone else."

When asked about Kaufman's potential conflict, Streyle declined comment.

Michael Callaghan, who took over the case following Buel's death from a suspected drug overdose Oct. 8, said he sent Staples a letter informing him of Kaufman's decision, and his right to appeal it.

However, he has yet to receive a reply from Staples.

Kanawha Circuit Court case number 11-C-211

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