Case at center of legal malpractice claim dismissed due to inactivity

CHARLESTON - After a failed attempt to revive the underlying suit, an Ohio man has again filed a legal malpractice suit against his former attorney.

Last August, Henry Martin filed suit against the Moundsville law firm of Neiswonger & White and one of its partners, David C. White. It accused them of bailing on him in pursing his wrongful termination suit against the state Racing Commission.

Specifically, White, 59 and a Bellaire, Ohio, resident, alleged after filing his suit against the commission, the agency that regulates thoroughbred and greyhound racing at the state’s four casinos, in Kanawha Circuit Court on July 10, 2009, he never heard from White again.

Records show the commission never filed any responsive pleadings including an answer or notice of bona fide defense, and White never filed a motion for default judgment. This prompted Judge Charles E. King, Jr. to Aug. 10, 2011, for lack of activity for more than an year.

Two months after filing the legal malpractice suit, Ancil Ramey, White’s and the firm’s attorney, filed a motion to dismiss on the grounds of, among other things, an improper venue. The suit, he said, should’ve been filed in Marshall County, where Neiswonger and White’s office is located and where Martin signed the agreement hiring them.

A month later, the parties agreed to voluntarily dismiss the suit to allow Martin an “attempt to reinstate his claim against the Racing Commission.” However, King, on April 29, denied a motion to reopen the case.

Initially, Martin’s new attorney, Scott Kaminski, made a motion to reopen the legal malpractice case. However, on June 17 he withdrew the motion and filed the suit anew two days later.

Martin claims as a result of the defendants’ failure to take any action, even the most minimal, to prosecute the case they had filed on his behalf, Martin’s cause of action was dismissed and he suffered injuries, damages and losses.

The defendants were negligent in their practice of the law within West Virginia and breached their duty of care, according to the suit.

Martin claims the defendants also breached their contract with him, as they entered into a contract for the provision of legal services and in failing to prosecute his cause of action, caused him to sustain damages, losses and injuries.

The defendants also breached their fiduciary duty to Martin and caused him to suffer economic losses and loss of economic advantage, according to the suit.

Martin was represented in the first legal malpractice suit by Lewisburg attorney Robert Frank.

The new suit is assigned to Judge Jennifer Bailey.

Kanawha Circuit Court, case numbers 09-C-1253 (Martin wrongful termination), 12-C-1594 (Martin legal malpractice I) and 13-C-1161 (Martin legal malpractice II)