Reporter files suit to compel release of dispute between Gilmer Clerk, Va. bank

GLENVILLE – A freelance journalist is suing Gilmer County officials for failing to respond to his repeated requests for information about details in a lawsuit settlement involving a housing project with ties to Glenville State College.

Gilmer County Clerk Jean Butcher and the Gilmer County Commission are named as co-defendants in a Freedom of Information Act lawsuit filed by Jay Lawrence Smith.

In his complaint filed Dec. 23 in Gilmer Circuit Court, Smith, a regular contributor to The West Virginia Record, is asking a judge to compel release of details in the settlement reached late last year in a suit Winchester, Va.–based Summit Community Bank brought against the clerk's office alleging an improperly recorded lien caused them to be an unnecessary defendant in a breach of contract suit.

According to his suit, Smith learned a tentative settlement was reached between Summit and the clerk's office on Oct. 11. A year before, Summit filed a third-party complaint alleging they were improperly sued in March 2010 by Textron Financial Corporation in U.S. District Court in Clarksburg over disputed property in the Rivers' View subdivision along W.Va. 5 near the medium security federal prison outside Glenville.

In its suit, Summit said had it not been for a defective Uniform Commercial Code fixture filing recorded by the clerk's office, they wouldn't be involved in Textron's suit. Specifically, they alleged the clerk's office did not follow state law by recording New Horizon as a co-debtor on the fixture filing along with Jack Jones, its president.

In its complaint, Textron, a Providence, R.I.-based commercial financing firm, alleged New Horizon, an Athens, W.Va.-based modular home dealer, defaulted on paying them for property they helped New Horizon acquire in Rivers' View in 2005 when New Horizon, three years later, sought permanent financing from Summit's branch in Moorefield. Textron sought judgment against New Horizon, Summit and Gilmer Housing Partners for $270,166.77, the proceeds from the sale of the initial two lots, and two other lots they helped New Horizon finance.

Records show GHP was the original owner of the properties. According to the Secretary of State's Office, it is a for-profit corporation whose address is One Pioneer Way in Glenville, the home of Glenville State President Peter B. Barr, GHP's sole incorporator and manager.

GHP was dismissed as a co-defendant in Textron's suit on March 30, 2011. Two weeks before that, Judge Frederick M. Stamp granted Textron's motion for summary judgment finding it was the superior lienholder on at least one of the properties in question, and ordered New Horizon to pay the entire judgment plus interest.

Upon learning of the settlement between Summit and the clerk's office, Smith called Summit's attorney, Edward McDevitt, for the details. When contacted, McDevitt told Smith "'You'll need to speak to their attorney about that.'"

Shortly thereafter, Smith called Wendy Greve, the clerk's attorney, about the terms of the settlement. When he was unable to speak with her, he left a voice-message requesting information about it.

The next day, Smith sent a FOIA request to Butcher. In his request, Smith requested, among other things, what the county paid Summit to settle the suit, and what it paid Greve to defend the clerk's office.

According to his suit, Smith sent the FOIA request to both Butcher, and the Commission via e-mail, fax and U.S. Mail.

When Smith failed to receive a reply from Butcher within the statutory five days, he sent a second FOIA request dated Oct. 22. Again, it was sent to Butcher, and the Commission via e-mail, fax and U.S. Mail.

When Smith again failed to receive a reply to his second request within another five days, he sent a third FOIA request dated Nov. 11. The request not only was sent to Butcher, and the Commission via e-mail, fax and U.S. Mail, but also warned that if a reply was not received by Nov. 16, Smith would file suit to compel release of the settlement in circuit court.

According to his suit, Smith made repeated phone calls to Greve, including the day before he filed it, "seeking the terms of the settlement." However, "[a]ll the calls he made to Greve were routed to voice-mail, and never returned."

Along with an order compelling release of the settlement between Summit, and the clerk's office, Smith seeks a permanent injunction requiring Butcher and the Commission "to undergo training for better understanding of [the FOIA law], and implement a plan for more timely responses to FOIA requests."

Smith is representing himself. The case is assigned to Judge Richard A. Facemire.

Second suit in a week

The suit is the second FOIA lawsuit Smith filed the week before Christmas against county officials. On Dec. 19, Smith filed suit in Cabell Circuit Court against Karen Cole, and the Cabell County Commission seeking release of the death certificate of a woman who died at the hands of a former Mason County physician.

In that suit, Smith alleged Cole has prevented the public from learning about the details of a wrongful death suit the estate of Helen Ziegler filed against Dr. Jack M. Levine in 2000 due to Cole's misinterpretation of a 2006 revision to the state code on vital statistics. Despite informing her how he was able to access death records in Mason, Jackson, Putnam, Marion, Wood and Kanawha counties, Cole continued to deny Smith access to Ziegler's death certificate citing the law, and accusing the other clerks of improperly providing access to death records in their counties.

Similar to his suit against Butcher, and the Gilmer Commission, Smith asked for not only a court order compelling Cole and the Cabell Commission to release the Ziegler death certificate, but also undergo training for better understanding of the FOIA law, and implementation of a plan for better responses to FOIA requests.

Since the filing of his suit in Cabell County, Cole and the Commission, through their attorney William T. Watson, asked they be dismissed since the law is on their side, and they recover court costs, and Watson's fees.

Gilmer Circuit Court case number 11-C-29