Court News

Court News

Complaint: Calhoun Attorney Engaging in ‘Legal Tomfoolery’


The WV Record Reports:

A New York woman is accusing a Calhoun County attorney of “legal tomfoolery” in representing her interests in an estate dispute in neighboring Gilmer County.

Marlea Cottrill on April 9 filed an ethics complaint against F. John Oshoway with the Office of Disciplinary Counsel, the arm of the state Supreme Court that investigates attorney misconduct.

In her complaint, Cottrill, 51, of Jump, N.Y., a suburb of Syracuse, hired Oshoway, 60, a sole practitioner in Grantsville, to defend her in a lawsuit involving the estate of her late father, Willard, only to have him do next to nothing.

According to her complaint, Willard Cottrill passed away in October 2010 “under extreme and unusual circumstances.“ In June, Cottrill was named as a co-defendant in a suit to quiet title filed by the estate’s executor, Michael W. Murphy, her brother-in-law in Gilmer Circuit Court.

F. John Oshoway

The suit seeks to divest any interest on Willard’s property in Linn claimed by Ruth Mitchell, the other co-defendant. According to the suit, Willard in his will dated Nov. 1, 2006, requested Mitchell, “be provided a residence on his real property,“ but “‘shall not preclude divestiture of the property by heirs, and is not intended to establish a life tenancy.‘“

It was not until two months later, Cottrill says, that she found out about it, and only through Mitchell. In a panic, she says she drove nine hours to Gilmer County to find an attorney to answer the complaint or risk losing all her rights to inheritance.

Eventually, she found Oshoway who agreed to accept her case for $2,000. Initially, Cottrill paid him $500, and sent him a check for the balance after returning to New York.

Between then and last month, Cottrill says Oshoway has failed to communicate with her about not only the status of the case, but its implications. Also, he has failed to provide her copies of any court documents filed since then including her answer.

All documents she’s received have either been provided by Mitchell or her attorney, Dan Grindo. A copy of the answer Oshoway filed for Cottrill, that Grindo’s office sent her via fax on Sept. 2, 2011, does not bear the time-stamp of the circuit clerk’s office.

Because she was not properly served with a summons, and copy of the complaint, Cottrill says Oshoway should’ve moved to have her dismissed from the suit. However, he failed to do that.

Eventually, Cottrill says she received a telephone call from Oshoway early last month. In it, she says he expressed bewilderment she hadn’t received any documents from him, but would ensure she receive a copy of all pleadings made since she hired him.

However, when she did not receive anything after two weeks, Cottrill wrote him a letter asking him to withdraw from the case. In her letter, she also asked he provide an accounting of his work, and a refund of her retainer.

Shortly thereafter, Oshoway responded saying he would be filing a motion to withdraw as her attorney. However, he disputed receiving an additional $1,500 from her after the initial $500. Instead, he said the check she sent was for $1,000.

In her complaint, Cottrill says that “is absolutely untrue” and provided a copy of the cancelled check Oshoway cashed for $1,500. Also, she made clear the basis of her complaint she was not disputing Oshoway’s fee, but instead his “lack of communication, and zealous representation for the work I thought I paid him to do.“

“One of my concerns,“ Cottrill said, “is the area of West Virginia that Mr. Oshoway works from is severely economically depressed and I wonder how often this sort of legal tomfoolery happens.“

“I fear for the people of Calhoun and Gilmer counties that have no other means of justice as Mr. Oshoway doesn’t seem the least bit inclined to follow up on clients’ needs or wishes once he has been paid,“ Cottrill added. “And even then, Mr. Oshoway doesn’t seem to feel the need to accurately reflect records of payment received by those clients.“

When reached for a comment about Cottrill’s complaint, Oshoway said “I was not aware it.“ Also, he said “I wouldn’t comment on it” after seeing it.

According to ODC, Cottrill’s complaint is one of four pending against Oshoway.

~~  Lawrence Smith - The WV Record  ~~

Gilmer County Family Court Report - 04.18.12


Family Court Judge Larry Whited heard a full docket on Wednesday, April 18, 2012.

Three domestic violence cases were heard and one was rescheduled.

Two other domestic cases were heard with no orders entered as of yet.

Two divorce cases were heard and one was granted:

Geanna Matthews (41) of Weston, WV divorced Wayne Matthews (age unknown) of Glenville, WV.

Gilmer County Circuit Court Report - 04.19.12


On Friday, April 13, 2012, Chief Judge Jack Alsop presided over 2 cases in Circuit Court.

•  A bench trial in the civil case of CitiMortgage Inc. vs. Hannah Smith was heard and Judge Alsop granted judgment against defendant in the amount of $31,473.36 plus interest.

Jane Ann Pancake represented the plaintiff and the defendant represented herself.

•  An adoption hearing was heard and the attorney was given 45 days to get personal service on the natural father.

On Wednesday, April 18, 2012 Judge Alsop presided over Court until 4:30 PM hearing several cases:

Imprisonment Status:Pre-Trial Felon
Full Name: Bonnell,Thomas William
Height: 5’11”
Weight: 160 lbs.
Birth Date: 01.01.1975
Gender: Male
Booking Date: 04.03.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
11F-16 GILMER COUNTY - Bail Amount: $100,000.00

•  State of West Virginia vs. Thomas Bonnell Jr.

He was before the Court for docket call, having missed it earlier because he was in the hospital.

He is represented by Kevin Duffy of Clay and his pre-trial is set for Thursday, May 31, 2012 at 2:00 PM with his trial being Tuesday, June 19, 2012 at 9:00 AM.

He remains in Central Regional Jail in lieu of $100,000.00 bond.

•  One defendant was before the Court for pre-trial but there were no motions to be heard so his case remains on the docket for jury trial on Tuesday, April 24, 2012 at 9:00 AM.

He is represented by Daniel Grindo of Gassaway.

•  Several juvenile cases were heard and reset as follows:

1) Monday, July 09, 2012 at 9:30 AM

2) Thursday, May 31, 2012 at 11:00 AM

3) Friday, April 27, 2012 at 1:30 PM

4) Thursday, May 31, 2012 at 9:00 AM

5) Monday, June 11, 2012 at 10:00 AM

•  State of West Virginia vs. Timothy Furr

He was before the Court for a bond reduction hearing.

However, after his attorney failed to appear the matter was continued.

He is represented by Drannon Adkins of Sissonville and remains in Central Regional Jail under $100,000.00 bond.

•  State of West Virginia vs. Joshua Hoover

He will enter a plea at 10:00 AM on Thursday, May 31, 2012.

He is represented by David Karickhoffof Sutton.

A fugitive from justice was before the Court.

Imprisonment Status:Pre-Trial Felon
Full Name: Thomas, Calvin
Height: 5’6”
Weight: 185 lbs.
Birth Date: 04.14.1967
Gender: Male
Booking Date: 04.18.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
12P22 FUGITIVE - Bail Amount: $0.00

•  Calvin Thomas was wanted in the state of Ohio and waived extradition and will be released to authorities from Ohio by 4:00 PM on Monday, April 30, 2012 or Central Regional Jail will release him.

He was represented by Daniel Grindo of Gassaway.

On Thursday, April 19, 2012, Judge Alsop came to Gilmer County for recall of March term grand jury.

The jurors returned 2 criminal indictments, received their jury pay and were free to go before l0:00 AM.

Those indicted were:

•  State of West Virginia vs. Jimmie Glen Stewart

He was indicted for 5 counts of sexual abuse in the first degree.

Stewart is represented by Steve Nanners of Buckhannon.

•  State of West Virginia vs. Charles Dale Emerson

He was indicted for 2 counts of sexual abuse in the first degree and 2 counts of sexual assault in the first degree.

Emerson is represented by Kevin Duffy of Clay.

Both new indictees will be arraigned at 1:30 PM on Friday, April 27, 2012.

•  Judge Alsop also performed a marriage ceremony before leaving Gilmer County for hearings in Braxton County.

West Virginia Joins Multi-State Challenge to EPA


West Virginia Governor Tomblin has joined twenty-one other states in challenging President Obama’s Environmental Protection Agency (EPA) and its latest attack on jobs and West Virginia coal.

Governor Tomblin directed West Virginia Attorney General Darrell McGraw to join a Petition for Review in the United States Court of Appeals for the District of Columbia Circuit challenging the EPA’s MACT Rule.

This rule has already caused electric utilities to announce plans to shut down coal-fired power plants in West Virginia.

“This is a shining example of the EPA, an unelected federal bureaucracy, making policy without regard to the economic impact of its decisions,” said Governor Tomblin. “I will continue to fight for West Virginia jobs and against the EPA’s ideologically driven, job-killing agenda.”

Last year, the State of West Virginia joined twenty-four other states and the Territory of Guam in filing a brief, as amici curiae, in the underlying MACT Rule litigation.

The MACT rule regulates emissions of hazardous air pollutants from coal-fired electric plants.

Lewis County Man Sentenced on Incest Charges


Lewis County Circuit Judge Thomas Keadle sentenced Harry Goldsmith of Lewis County to 10 to 25 years in jail on Monday, April 16, 2012 for 4 counts of incest involving his children and grandchildren.

Goldsmith sexually abused his children and grandchildren 20 to 40 years ago.

Trooper Also Defendant in ‘96 Shooting Death of Calhoun Woman


The WV Record Reports:

Records show prior to the one filed against him recently, a State Trooper was also named as a co-defendant in another civil rights suit involving a Calhoun County woman 16 years ago.

Last month, Jackie L. Denmark filed suit in U.S. District Court against Cpl. D.B. Starcher accusing him of falsely arresting her in March 2010 on charges of aiding and abetting kidnapping. In her suit, Denmark alleges Starcher arrested her in an effort to get her disclose the location of David Wayne Beech, a missing teenager from Roane County.

Denmark’s son, Seth, was also arrested in March 2010, and charged with kidnapping Beech, whose body has yet to be discovered. Though charged with it last year, Seth Denmark was formally indicted for Beech’s murder by a special grand jury last month.

Last April, the aiding and abetting charge against Jackie Denmark was dismissed.

In 1998, Starcher was named as the lead defendant in suit filed by Donald Jones, as the administrator of the estate of his wife, Patricia. In his suit, Jones alleged Starcher, the State Police, then Calhoun County Sheriff William Stemple and Deputy Sheriff George Settles were negligent in shooting, and killing Patricia two years earlier when Starcher and Stemple were called to the Joneses home in Big Springs in response to an apparent domestic dispute.

‘Confrontation’ turns fatal

According to the suit, which was filed on June 11, 1998, also in U.S. District Court, Starcher and Settles were dispatched to the Jones home on June 14, 1996 “to investigate an allegation of domestic violence.“ After arriving at the scene, Starcher and Settles “entered into a confrontation” with Patricia.

The nature of the confrontation is not specified in the suit. However, as a result “Starcher and/or ...George Settle [sic], negligently, willfully, wantonly and intentionally, in disregard of the civil rights of the said Patricia Ann Jones, shot and killed” her.

The suit does not provide much detail about Jones’ death except she “was severely wounded by one or more gunshots and later died.“ Also, the suit maintains Starcher and Settles “used excessive force to restrain ... Jones at a time when they were not permitted to do so.“

According to an Associated Press report in the June 16, 1996, edition of the Charleston Gazette, Jones, 38, was shot after she pointed a rifle at Starcher and Settles, and fired one shot. According to 1st Sgt. Carl Berlin with the State Police’s Spencer detachment, “Police returned fire, killing Jones.“

Four days later, The Calhoun Chronicle reported that, after they arrived at her house, Jones pointed an unspecified weapon at Starcher and Settles. When she fired at Starcher, “Settles had no choice but to fire once, fatally wounding Jones,“ the article said.

According to her death certificate, Jones died of a shotgun wound to her chest.

Prior to the shooting, The Chronicle reported Stemple, and Deputy Steve Lampos spoke with Jones via telephone. Along with Starcher and Settles, Stemple and Lampos “repeatedly asked and ordered [Jones] to surrender her weapon.“

According to The Chronicle, Donald Jones was not at the home after Starcher and Settles arrived.

Along with a claim the State Police did not do likewise with Starcher, the suit alleges Stemple “failed adequately to train or otherwise direct ... George Settle [sic], concerning the rights of citizens, thereby causing ... [him], to engage in the unlawful conduct described above.“ According to the state Law Enforcement Professional Standards Subcommittee, Settles never received the training necessary to be a certified law enforcement officer.

Suit dies, too

In the suit, Jones asked that he be awarded $500,000 in damages for Patricia’s death. Also, his attorney, Keith White of St. Marys, asked he recover the costs of litigating the suit, including his fee.

Records show, those proved to be minimal as Judge Irene B. Keeley dismissed the suit on Jan. 25, 1999 on the grounds White failed to serve any of the defendants with a copy of the complaint, and a summons. Though Keeley dismissed the suit without prejudice which allowed an opportunity for White to re-file it, records show he never did.

The West Virginia Record attempted to obtain a comment from White about the suit. He did not return repeated calls by presstime.

Also, repeated messages left with Settles and Stemple were not returned by presstime.

Because he was constitutionally barred from seeking a third successive term as sheriff, Stemple successfully ran for the House of Delegates in 1996. He held the seat, which, along with Calhoun included Gilmer and Clay counties, until 2008.

In May’s Democratic primary, Stemple, 64, is again a candidate for sheriff. His opponent is incumbent Sheriff Allen Parsons, who succeeded Stemple in 1997.

Currently, Starcher is assigned to the Wirt County detachment in Elizabeth.

U.S. District Court for the Northern District of West Virginia case number 98-cv-96

~~  Lawrence Smith - The WV Record  ~~

G-TechNote™: West Virginia Joins E-Book Lawsuit


West Virginia is one of 15 states now part of a law enforcement action filed against Apple and three of the largest book publishers in the United States.

The claim is that those companies worked together to artificially inflate prices for electronic books.

The action was filed in U.S. District Court for the Western District of Texas.

In addition to Apple, Penguin Group USA, Macmillan Holdings and Simon & Schuster are named in the filing.

The alleged conspiracy drove up the price of e-books from $9.99 to $12.99 and $14.99.

Officials with state Attorney General Darrell McGraw’s Office say the rights for those books had previously been sold to online sellers like Amazon so the books could be sold at any price.

However, as part of the scheme, contract terms were imposed that required all e-book outlets to sell their products at the same price, eliminating retail price competition.

Customers ended up paying $100 million more because of it.

“These companies colluded to allow publishers, rather than the marketplace, to set the price of e-books,“ Attorney General McGraw said in a statement.

Sentencing Set For Lena Lunsford


The mother of missing Lewis County three-year-old Aliayah Lunsford will be sentenced in May on welfare fraud charges.

A May 22, 2012 sentencing was set on Thursday, April 12, 2012 for Lena Lunsford.

She pleaded guilty previously to selling her food stamp card.

Aliayah Lunsford went missing last September.

Gilmer County Circuit Court Report - 04.10.12


On Monday, April 09, 2012 Chief Judge Jack Alsop had his monthly motion day in Gilmer County.

•  State of West Virginia vs. Jerry Duelley II

He was before the Court for revocation of his home confinement.

He was represented by Daniel Grindo of Gassaway.

After taking much testimony Judge Alsop released Duelley from Central Regional Jail pending final hearing on Thursday, May 31, 2012 at 2:00 PM.

Several juvenile matters were heard and reset as follows:

•  1) Monday, July 09, 2012 at 9:00 AM
•  2) Monday, July 09, 2012 at 9:15 AM
•  3) Wednesday, April 18, 2012 at 2:30 PM
•  4) Monday, May 14, 2012 at 11:15 AM
•  5) Wednesday, June 13, 2012 at 11:30 AM
•  6) Monday, June 11, 2012 at 9:30 AM
•  7) Wednesday, June 13, 2012 at 1:00 PM
•  8) Wednesday, June 13, 2012 at 1:30 PM
•  9) Monday, June 11, 2012 at 9:45 AM

Two civil matters were before the Court as follows:

•  First Resolution Investment vs. Leonard F. Terrango

The case was heard with plaintiff’s attorney, Steven Mulrooney of Mapother & Mapother of Louisville, KY appearing by telephone.

Defendant Terrango did not appear.

However, service had been made upon him by Gilmer County Sheriff’s Department and no answer had been filed on his behalf so Judge Alsop directed Mulrooney to submit an order for entry of default judgment.

•  Ford Motor Company vs. Lucas McCune

Mulrooney appeared by telephone and a default judgment order came in the mail to the Circuit Clerk later in the morning and was granted and entered by Judge Alsop.

An expungement hearing was held in the case of Roxanne McAtee who represented herself in the proceedings.

Judge Alsop took the matter under advisement and will issue his ruling at a later date.

•  State of West Virginia vs. Jimmie Stewart

He was represented by Steve Manners of Buckhannon

He was before the Court and several motions were heard.

The state through her prosecutor moved to amend the indictment, which motion the Judge denied.

Defense counsel moved to dismiss the indictment, which the Judge took under advisement until after the grand jury meets again on Thursday, April 19, 2012 for further consideration.

WACO Oil and Gas, XTO Energy Dismissed from Drilling Lawsuit


A federal judge has dismissed Glenville-based Waco Oil and Gas from a lawsuit that a Marion County man filed over plans to use his property for deep, horizontal wells that would drain natural gas from his neighbors’ reserves.

Richard Cain initially sued Waco and Exxon Mobil subsidiary XTO Energy in circuit court last summer, but the case was transferred to U.S. District Court in Clarksburg. In a recent ruling, Judge Irene Keeley said she’ll retain jurisdiction, but she granted Waco’s motion to dismiss claims against it.

The case illustrates the complexity and intertwined nature of mineral and surface rights in a region where companies are rushing to tap the vast deposits of the Marcellus shale field.

Cain concedes he does not own the mineral rights, which were sold in 1881 and have changed hands several times. But he claims ownership of those mineral rights does not give a company the authority to drill multiple wells or disrupt 36 of his 105 acres to get oil and gas from neighboring estates.

Cain contends the amount of gas to be recovered is too minute to justify such extensive surface disruption and insists he is the only party with the “legal right” to lease his surface.

There is no dispute that Cain bought the land in 1989, Keeley said.

“The ownership history of the oil and gas rights themselves, however, is somewhat more convoluted.“

Waco, which sold leases to Linn Energy Holdings LLC in 2003, argued it had done nothing wrong and that Cain’s fight is with the current leaseholder, XTO.

After Cain sued the two companies, Waco sold “the entirety of its interests in the oil and gas estate” under Cain’s property to XTO.

XTO, meanwhile, has also denied doing anything illegal.

It argues it paid $63,000 for a pipeline right-of-way easement to transport oil, gas water and other substances across Cain’s property.

The court ruled that XTO’s lease gives it the clear right to access adjoining property through pipelines but said it “does not otherwise provide the right to use the surface of the tract to explore for or produce oil and gas from neighboring oil and gas estates.“

Still, Keeley said, Cain lacks grounds for a dispute with Waco.

Cain and XTO have until Friday to submit a proposed plan for evidence in the case.

A scheduling conference is set for April 20, 2012.

Ohio Man Appeals Dismissal of Ethics Complaint against Gilmer Prosecutor


The WV Record Reports:

Citing a failure to consider new evidence, an Ohio man is asking a state ethics panel to reconsider his complaint of improper conduct by Gilmer County’s prosecuting attorney in his 2005 criminal case.

The Office of Disciplinary Counsel on Sept. 6 dismissed the complaint Dan Bingman filed against Gerry Hough. In her dismissal letter, Lawyer Disciplinary Counsel Jessica Donahue Rhodes, said the information Bingman included in his Aug. 24 complaint of Hough paying one of Bingman’s relatives to testify against him, and advertisements Hough placed in the Glenville Democrat-Pathfinder accusing Bingman of “cyberbulling,“ not only failed to show a violation of the Rules of Professional Conduct, but was also time-barred.

“Nothing in those two (2) documents reflect [sic] any violation of the Rules of Professional Conduct,“ Rhodes said. “Furthermore, you have not provided any proof that Mr. Hough paid Mrs. Rafferty to testify during the trial.“

“Those allegations are far too vague and unclear to discern what actions you believe Mr. Hough has taken that amount to an allegation of a violation of the Rules of Professional Conduct,“ Rhodes added. “It appears you have been aware of most of what you allege in your second complaint when your first complaint was filed and two (2) years before the first complaint was filed.“

“Thus, your complaint appears to be time-barred,“ Rhodes said.

Records show, Bingman, of Cuyahoga Falls, Ohio, was indicted in March 2005 by the Gilmer County grand jury on a charge of grand larceny, a felony. He was accused of stealing, and later selling farm equipment, a brush hog, valued at nearly $2,500 on Jan. 31, 2002.

However, a jury on Dec. 14, 2005, convicted Bingman of petit larceny, a misdemeanor. Bingman maintained he should’ve never been indicted, let alone convicted, since the brush hog was valued at less than $400, and sat idle for over 20 years on property belonging to his family.

In his complaint, Bingman accused Hough of suborning perjury by getting Roanna Rafferty, Bingman’s aunt, to testify falsely she had a 1/6th interest in the property. Also, Bingman maintains Hough was aware the value of the brush hog was well below the $1,000 threshold for a grand larceny charge.

The allegations raised in his Aug. 24 complaint were similar to ones raised in a complaint he filed against Hough on Dec. 20, 2007, that was dismissed a month later. However, in his response dated Sept. 8 to their dismissal letter, Bingman said ODC failed to consider two new pieces of evidence included in his recent complaint that came to light last year.

One was a title opinion that was introduced last July in a civil suit showing Rafferty did not own the 1/6th share of the property she claimed. Another was bills received in October for back taxes on the property that, Bingman said the county previously refused to let his family pay.

The title opinion and tax tickets, Bingman says, show that his new complaint against Hough not only falls within the statute of limitations, but also he had no business prosecuting him in what amounted to a family squabble.

“The new evidence in this case proves that it should not be time-barred,“ Bingman said. “It proves that due diligence was not practiced and a human being suffered severely as a result.“

“A case should never be brought to court by a Prosecutor who has not used due diligence to establish the facts,“ he added. “When Hough could not locate the 1/6th claimed, the court should have been notified (despite his embarrassment) a mistrial declared and perjury charges brought against the Prosecutors [sic] witness in my opinion.“

“Because there was no title proof of ownership, the jury, and the court could not know that there was equal ownership in a property dispute that somehow turned into a criminal case, although experts say it should have been a civil action all along.“

In response to his letter, Chief Lawyer Disciplinary Counsel Rachel L. Fletcher Cipoletti said ODC was treating Bingman’s dissatisfaction of their dismissal of his complaint as an appeal and would be placing it on the agenda for the next meeting of the Lawyer Disciplinary Board’s investigative panel. Though she did not say when the next meeting would take place, Cipoletti said she would notify Bingman in writing of their decision.

When reached for a comment about Bingman’s complaint prior to its dismissal, Hough said he had yet to see it. However, he said this was Bingman’s latest attempt to retry his case.

“Every citizen has a right to complain and have their voice heard somewhere,“ Hough said. “He’s been busy for the last four years reinventing the trial that took place, and his conviction, which was found by a jury of his peers guilty of larceny from his family.“

~~  Lawrence Smith - WV Record  ~~

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