Judge Keeley won't 'encourage strategic moves' by recusing self

By John O'Brien | Jun 5, 2013

CLARKSBURG – A federal judge has decided she will not recuse herself from a lawsuit just because her old law partner is testifying as an expert witness.

On May 31, U.S. District Judge Irene M. Keeley, of the Northern District of West Virginia, rejected a recusal request filed by the defendants in a lawsuit brought by Old Republic National Title Insurance Company.

The company is attempting to recover the amount of settlements and attorneys fees paid in disputes over an insurance policy issued to the defendants. In support of its attorneys fees argument, Old Republic submitted testimony from Robert M. Steptoe Jr. that said the $467,158.25 the company is seeking is reasonable.

The defendants – Kristian, Andrew and Monroe Warner of Morgantown – sought the insurance policy for the Augusta Apartments complex. They allegedly failed to pay Landau Building Company, which was hired to construct the project and subsequently sued.

The Warners filed a motion on Feb. 11, arguing that the recusal of Keeley, who worked at Steptoe & Johnson from 1980-92, was mandated because of Steptoe’s involvement.

“The defendants, for their part, have provided no authority in support of their expansive view of the statute – that a judge is required to automatically disqualify herself every time a former colleage, no matter how attenuated the relationship, is tapped to serve as a witness in a pending case,” Keeley’s decision says.

“The defendants’ motion to recuse, at bottom, is premised almost entirely upon disagreement with the rulings of this Court. The undersigned will not, however, ‘encourage strategic moves by a disgruntled party to remove a judge whose rulings [he] dislikes.’”

In February, Keeley ruled against the Warners in their lawsuit against several Morgantown officials over the Augusta Apartments project.

She ruled that the officials might have lacked coordination but did not commit outrageous conduct against the Warners.

The complaint listed 10 causes of action against the City of Morgantown and nine individual city officials. Each complaint except one – the tort of outrage against the individual defendants – had been dismissed before Keeley’s Feb. 1 decision.

“(E)ven the Warners’ own characterization of the record emphasizes a lack of coordination among the individual defendants,” she wrote.

“All this strongly cuts against any inference that the nine individual defendants acted in combination as part of a far-reaching, long-term campaign to destroy the Warners.”

McCoy 6 built Mountaineer Court, a 32-unit student-housing complex, in 1994, and Augusta built a 158-unit complex in 2007.

The Warners’ difficulties with the City began during construction of The Augusta. They claim city officials were not prepared to handle a project of The Augusta’s size, and that their inexperience prolonged construction by nearly two months.

The Warners say Tennant, who took over for the retiring Chief Fire Marshal Max Humphries in 2006, took the opportunity to launch a retaliatory campaign against the Warners. The delay pushed the opening of The Augusta past the first day of West Virginia University’s fall semester that year.

The individual defendants abused their discretion in the enforcement of building and fire codes, the Warners claim.

“While Andrew Warner described the delays as part of ‘some beef’ on the part of Fetty and defendant City Engineer Terry Hough, he identified no motivation for that animosity beyond a general practice by the City to ‘squeeze landlords.’”

In 2008, fire officials listed 229 violations of the fire code at Mountaineer Court. Eventually, McCoy 6 defaulted on the mortgage for Mountaineer Court and filed for bankruptcy in 2009. Augusta filed for bankruptcy a year later.

The Warners claim the subsequent owners of Mountaineer Court have not been scrutinized as much as they were.

In its motion for summary judgment, filed Feb. 8, Old Republic wrote that it paid $2,275,000 to settle litigation brought by Landau and PNC. It is represented by Mychal Sommer Schulz and Joshua S. Rogers of Dinsmore & Shohl in Morgantown.

The Warners have appealed Keeley’s decision not to disqualify herself from the case.

They also appealed Keeley’s decision in their lawsuit against Morgantown officials. However, on March 26, they moved to dismiss the appeal in a motion that indicates a settlement was reached.

In December, Keeley was the first woman to be recognized with the West Virginia Bar Association’s Award of Merit. At the ceremony, she was introduced by Steptoe.

West Virginia University purchased The Augusta on the Square in 2011 for $13.1 million.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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