Civil Fraud Action Filed Against Development and State’s Largest Bank

Here is a copy of a lawsuit I filed today on behalf of a Northern Virginia couple against Walnut Springs Mountain Reserve, as well as all of it’s LLC’s and their CEO/owner.  Also attached is a lawsuit which was filed separately against United Bank.  The Complaints allege that good, hard-working people who, in the midst of our country’s rampant banking and mortgage scandals, innocently walked into the crossfire of a financial ambush – with sweet talking developers on one side, and West Virginia’s largest bank on the other.

The Complaints allege that developers – one a former Nevada contractor who’s license was revoked, and the other a Washington D.C. personal injury lawyer – moved into Monroe County, West Virginia to start a development project that was billed as one of the greatest high-end luxury vacation-home developments to ever grace the cover of “Farm and Ranch” “magazine.”  The Complaints also allege that through an appraisal and development method billed by at least one of the developers as “magic,” they were able to buy land, albeit with a beautiful view, mostly financed, for approximately $1,000.00 per acre, and to subsequently sell subdivided parcels for over $30,000.00 per acre approximately.  But the purchasers were not necessarily wealthy – for instance, my clients.  The Complaints further allege that United Bank provided pre-arranged, and almost pre-approved financing at the inflated price, making quick bucks in the process – not much unlike Fanny Mae and Freddie Mac – to the detriment of the purchasers who thought they were buying into a great investment.

The Complaints allege that, as it turns out, much of what they were told about the development was untrue or misrepresented, not the least of which was the value of the property, and that many of the purchasers ended up in foreclosure after it became obvious that there was no way to sell their lots anywhere near their mortgaged value prior to the 5 year balloon payment coming due.  The result was financial disaster.

 

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WV State Police Settle Case

A case, about which I have twice previously posted about, has now apparently settled, with the WV State Police forking out at least $200,000.  This was a good case from a plaintiffs perspective.  The plaintiff himself is a prominent lawyer.  He was beaten to a pulp, as the insulting photograph of him with black eyes in an orange jumpsuit will attest to.  There really isn’t any excuse for this sort of a beating.  The cops were not facing a giant man on a PCP induced rage, he is actually a rather gentle looking guy.  But most importantly, the cops were caught trying to cover their tracks.  And the cover up is almost always worse than the original wrongdoing.

But what is surprising here, is that none of these officers were charged criminally – at least not yet anyways.  And the ironic thing is that, if criminal wrongdoing could have been proven, under the State’s insurance policy, coverage could be excluded, possibly releasing the State from liability.  Of course there were some allegations against the State Police in general, as well as the Colonel, for some conduct, such as knowingly allowing surveillance cameras to remain inoperable, and probably for insufficient training and complicity in the attempted cover-up which took place.  That may have been the reasoning.  Or, it may have just been a protect-your-own type of thing.

Regardless, you can bet your rear-end that if a non-law enforcement person was involved in a fight and beat someone like that, that person would be charged with a crime immediately.  Its just another example of the gross double standard.  Of course, quoting the Gazette article, the settlement agreement stated that:

The settlement is not an admission of liability, wrongdoing or responsibility for damages, according to the defendants’ written offer. “[L]iability damages or any other wrongdoing are expressly denied [by] these defendants.”

Yeah right.  Trust me, the State Police does not cough up $200,000 because they believe they did nothing wrong.

- John H. Bryan, West Virginia Attorney.

Ashcroft v. Iqbal and Supervisory Liability in federal civil rights actions

As was discussed at Crime & Federalism, there was a recent US Supreme Court decision – Ashcroft v. Iqbal – which drastically changes a component of most civil rights actions – “supervisory liability.” Generally, when police officers/departments are sued for civil rights violations under federal law (42 USC 1983), it is generally alleged that the supervisors are liable for the actions of the subordinate officers.  It used to be that this could be proven without actually having to prove that there was, for instance, a memo issued by the supervisor to engage in a civil rights violation.  It could be proven by showing any type of ratification or acquiescence.

In in City of Canton v. Harris, the Supreme Court held that supervisory liablity may attach where “policymakers were aware of, and acquiesced in, apattern of constitutional violations.”  But in Aschcroft v. Iqbal, the Court ignored Canton and held that:

[Plaintiff] argues that, under a theoryof “supervisory liability,” petitioners can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” That is to say, respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of “supervisory liability” is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeed sof their agents. In a §1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term “supervisory liability” is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.

So now you have a situation where the Court says that supervisors will be accountable for their own conduct, but where they are not actually liable for their own conduct.  Yes, if they taser a 90 year old grandmother who is handcuffed in the back of a patrol car, they will be liable for that.  But if through inadequate supervision (hence the term “supervisor”) they allow their subordinates to do so without stopping them or otherwise “supervising” them, they are not accountable.

Regardless, this probably will not make much difference here in West Virginia since if you ask most defense attorneys in West Virginia, they can’t recall one case of a plaintiff ever even actually recovering on grounds of “supervisory liability” in a federal police liability action.  It’s just too much of an ancillary issue and too difficult to prove in most cases.

- John H. Bryan, West Virginia Attorney.

NC Case Illustrates Abuses of Inmates

Probably the most vulnerable among us are those who are incarcerated.  I’m all for law and order, as well as punishment, but very few of those incarcerated actually killed somebody or are otherwise going to spend the rest of their lives there.  Many of them haven’t even been convicted of anything yet, they just don’t have the ability to bond out prior to their trial.  Many times these people are physically abused by correctional officers who have the ability to run roughshod over the population.  And people don’t care because they view them as criminals.  

For instance, there was a North Carolina case that just popped up in the news, which captured the beating of an inmate on video – leading to a civil lawsuit.  But if it were not videotaped, nobody would believe it.

In West Virginia, we have some of the worst jails in the country.  I’m not talking about the prisons, but the jails – places where people go who are awaiting trial, or who were sentenced to a short sentence of incarceration.  It seems like every other day there is a correctional officer being fired for sexually assaulting inmates, or dealing drugs with inmates.  And these are just the one’s who get caught.  I’ve heard countless stories from different clients of the abuse perpetrated by guards.  And most of them are almost identical, despite the fact that these people had never met each other.

Don’t be surprised if the Department of Justice announces an investigation….

 - John H. Bryan, West Virginia Attorney.

Personnel File Discovery Issue Litigated – another helpful plaintiff’s opinion

There was in interesting three part series in the Charleston Gazette’s “Watchdog blog,” “Sustained Outrage” by Andrew Clevenger, focusing on a civil lawsuit against the West Virginia State Police on behalf of Charleston attorney Roger Wolfe – a case I posted on awhile back.

Part 1 deals with a FOIA issue that popped up in that case.  Law enforcement agencies (or rather their defense counsel) do not want to hand over the contents of internal investigations of law enforcement officers, citing concerns over sustaining the integrity of the internal investigation process.

Wolfe’s attorneys made a discovery request for those documents, and the WVSP objected claiming that under a Freedom of Information Act Request (FOIA), those documents would be exempt from disclosure.  However, Cleavinger quickly points out that:

Except…

A state Supreme Court ruling in a 2000 case, Maclay v. Jones, SPECIFICALLY addresses theVERY ISSUE of police records and civil litigation. Here’s what the syllabus point says:

The provisions of this state’s Freedom of Information Act, West Virginia Code §§ 29B–1 to -7 (1998), which address confidentiality as to the public generally, were not intended to shield law enforcement investigatory materials from a legitimate discovery request when such information is otherwise subject to discovery in the course of civil proceedings.

But Andrew, that’s a STATE case. The rules are different in FEDERAL court, right?

Wrong.

U.S. District Judge Charles H. Haden II, in a 2003 ruling in the case Floren v. Whittington, reached the same conclusion. He even cited the Supreme Court’s Maclay opinion.

Cleavinger then hammers the last nail in the coffin, pointing out that:

Virginia Lanham should remember this ruling, as she was one of the two attorneys fromShuman, McCuskey & Slicer who represented some of the defendants in the Floren case. (So should Michael Mullins, who represents Trooper Green in the Wolfe suit; he defended former Dunbar Police Chief Earl Whittington in Floren.)

This case is pending in federal court.  The presiding judge issued a ruling in an eleven page opinion  - by the way this is another helpful opinion for any plaintiff’s attorneys litigating this issue – calling the WVSP’s objection to the discovery request “unpersuasive” and “unconvincing” and even ordered the WVSP to pay Wolfe attorney’s fees for their improper objection and refusal to produce the personnel filed, etc.

Let’s see if the defense counsel try to use these objections in state court….

 - John H. Bryan, West Virginia Attorney.

Venue Issue Decided in Flanary Case

A venue issue had popped up in the Flanary case when counsel for Pocahontas County filed a motion to dismiss based on improper venue.  Basically, there is a law stating that if you sue a county in West Virginia, you have to sue that county in it’s own courthouse, or in any either county in which the cause of action arose (which would be rare to be anywhere else).  But there is also a law stating that if you sue the State of West Virginia, you must sue in Kanawha County (location of the state capitol).  So what happens when both a county and the State are named defendants in a lawsuit?

Well we faced that very issue, and after the issue was briefed and argued, the Circuit Court Judge ended up ruling in my client’s favor, finding that venue was proper where the lawsuit was originally filed – in Kanawha County.  As a courtesy to defense counsel who represent governmental entities in West Virginia, since they are so generous among themselves with sharing circuit court orders and submitting them against plaintiff’s counsel, I will post a copy of the Judge’s order for submission or review by anyone who may find it helpful.

 - John H. Bryan, West Virginia Attorney.

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Lawsuits filed against “Lawless” Montgomery-area police

The Charleston Gazette reported today that several lawsuits have been filed against police officers in Smithers and Montomery, West Virginia, and that several more are to be filed in the coming months.

One of the allegations is that a man and his father were physically and mentally abused by officers after they were pulled over leaving the father’s bar. Another of the allegations is that there was an old-fashioned shake-down of a cab driver.

Does anyone see a pattern here? These small-town West Virginia police departments have no oversight. It was only a few days ago that I posted about the out-of-control officer in East Bank, West Virginia. There needs to be a deterrent to this type of behavior. Then penalty for police misconduct of any sort should be extremely, extremely severe.

For now anyways, the penalty is that the State of West Virginia gets sued. Unlike many states, when the State or other political subdivisions in West Virginia get sued for police misconduct, the liability mostly falls on the state’s million-dollar insurance policy. So, in effect, a town or county – or even the state – doesn’t really have any exposure to liability (at least as long as the state can procure this insurance on their behalf). So being government employees, they have no profit incentive to improve the state of things, and they have no accountability either. Have you ever heard of an “Internal Affairs” investigation in the State of West Virginia? Of course not. The only “internal affairs” division is the attorneys who sue the State on behalf of people who’s rights, and bodies, were violated by bad cops.

– John H. Bryan, West Virginia Attorney.

Charleston Lawyer Sues WV State Police For DUI Arrest Beating

As reported in the Charleston Gazette today, Charleston lawyer, Roger Wolfe, who is a “senior labor and employment lawyer” with Jackson Kelly, was arrested on suspicion of DUI on June 17, 2007. Apparently he was taken to the South Charleston state police “barracks” (again, why do cops like to pretend that they are some type of pseudo-military), and when he smiled at a female trooper, she told him that she would wipe that smile off his face, and had a male cohort take him into an adjoining room. He was beaten so fiercely that he leaked cranial fluid out of his nose.

Then, as if to add insult to injury, the emergency room doctor allowed a trooper to come in and question him while he was in-and-out of consciousness, in order to cover their tracks. For instance, he was supposedly asked, “when you were speaking with the female trooper, do you remember trying to kiss her?” and “how did you get that knot on your head.” If all he had was a knot on his head, then why was he in the emergency room? And why did he spend a week in the hospital with “potentially life-threatening injuries?” What if he did try to kiss her? Is that worth the man’s cranial fluid on the floor? I would hope that other female law enforcement officers are embarrassed and ashamed of this…

Good luck to Mr. Wolfe. The sad thing is that had this guy not been a lawyer with a powerful firm, probably nobody would believe him. This matter better be under investigation by the state, and by the feds. These crooked cops deserve to be stripped of their badges and locked up with their prior arrestees.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Wrongful Death Suit Filed Against Raleigh County Sheriff and Deputies

From the Register-Herald this morning:

A wrongful death lawsuit filed late Monday afternoon claims members of the Raleigh County Sheriff’s Department acted negligently when they shot and killed a Cabell Heights man who was firing a high-powered weapon in the early morning hours of July 4, 2006.

Filed by Charleston attorneys Michael A. Olivio and Travis A. Griffith on behalf of Mary Webb, the widow of Robert Webb, the suit lists defendants as the Raleigh County Sheriff’s Department, the Raleigh County Commission, Sheriff Danny Moore, then-Chief Deputy Steve Tanner, Deputy Greg S. Kade and Deputy John E. Hajash.

According to Register-Herald files and the complaint, Kade and Hajash were responding to a complaint that Robert A. Webb, 44, was playing loud music and shooting an AK-47 assault rifle outside his Cabell Heights home.

According to the lawsuit, Webb was discharging his firearm in celebration of his birthday and the Fourth of July holiday, but more than 30 minutes had elapsed between the firing of the weapon and the arrival of Kade and Hajash at the Webb residence.

The suit also claims “numerous residents within the neighborhood” were also firing weapons in celebration of the holiday and that Webb never fired his gun to threaten or endanger anyone.

The complaint claims Kade and Hajash parked away from the residence, out of sight, and approached on foot “while using cover to conceal their presence.” It also claims Kade took an assault shotgun from their patrol vehicle instead of his service standard handgun in spite of the fact the call was considered a “non-emergency nuisance call.”

When the deputies arrived on the scene at approximately 1 a.m., Webb was not shooting; still Kade and Hajash remained concealed by a row of trees until they witnessed Webb turn away from them, “at which time they ran toward Robert Webb in order to close the distance between them,” according to the complaint.

“Deputies Kade and Hajash proceeded up the street toward Mr. Webb and shot Mr. Webb while he was standing in the driveway of his home,” the complaint reads. “Deputies Kade and Hajash failed to identify themselves as law enforcement officers prior to firing their fatal shots at Mr. Webb.”

Webb was hit in the head and knocked to the ground by an initial shot from a shotgun, according to the complaint. While he was on the ground, one of the deputies shot him again with a handgun.

The complaint also claims emergency medical personnel were denied immediate access to Webb by members of the Raleigh County Sheriff’s Department, who finished taking photographs before they allowed medical personnel to touch Webb.

Obviously there are two sides to every story, but if the allegations that are included in the complaint are true, then there were some real problems with the conduct of the law enforcement officers in this situation. Having formerly investigated pattern or practice police misconduct for the Department of Justice, the way these officers approached the scene jumps out at me as either gross negligence or reckless disregard for human life and proper police practices. First of all, shooting firearms into the air on the 4th of July is not an offense punishable by death. They should have approached in their cruisers with their emergency lights on. There was no allegation (apparently) that the victim was firing his weapon towards anyone else. It was obviously a 4th of July celebration. Secondly, the man was in his driveway, it was dark, and they sneaked up on him with a shotgun pointed at his face. It would have been understandable if the victim had shot at the officers. However, he did not – there apparently was no evidence that he attempted to shoot at them. It is uncontested that the victim never fired a shot. Having your head blown-off by a short-barrel shotgun is a pretty harsh way to die, and understandably, the family is looking to make the county pay.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

Another Lawsuit Filed in Cattle/Bank Scam Case

From the Register-Herald:

Another lawsuit filed against bank, officials in alleged cattle fraud case

By Christian Giggenbach
Register-Herald Reporter

LEWISBURG — Another lawsuit has been filed against First National Bank of Ronceverte and two former bank officials, this time by an Illinois man who alleges disgraced cattle broker Kevin Scott O’Brien defrauded him out of $104,000.

The lawsuit, filed by Robert Dwyer, named First National Bank, former bank president Charles A. Henthorn and former board director **** as defendants.

Henthorn and **** recently pleaded guilty in federal court, Henthorn for taking $10,000 in bribes from O’Brien, and **** for setting up bribes.

O’Brien pleaded guilty to a mail fraud charge involving the sale of cattle in fraudulent Ponzi schemes. A sentencing date has not been set for any of the defendants.

Dwyer claims he gave O’Brien $104,000 in February 2006 for “80 pairs of heifers and their calves,” which should have been shipped to Dwyer’s farm in Carthage, Ill.

“Instead of arranging for the cattle to be trucked to Dwyer … O’Brien sold the cattle to ****,” the lawsuit said. “O’Brien’s sale of the Dwyer cattle to **** was simply one of the last acts of fraud and deceit in O’Brien’s continuing scheme.”

Dwyer claims the bank knew about the **** deal, but looked the other way because O’Brien owed the bank money.

“The bank, through its senior management, including Henthorn and ****, devised a scheme with O’Brien pursuant to which O’Brien would sell **** cattle,” the lawsuit said. “The money that **** paid for the cattle was to be deposited into O’Brien’s checking account in satisfaction of debts that O’Brien owed the bank.”

Dwyer is seeking punitive damages on the basis of fraud, civil conspiracy, and aiding and abetting a wrongful act, among other charges.

Dwyer is being represented by Charleston lawyer James W. Lane.

Neither **** nor Henthorn could be reached for comment.

In February, another Illinois man, Frederic W. Nessler, filed a $340,000 lawsuit against the same three defendants alleging fraud.

O’Brien, who is currently mired in a multimillion-dollar bankruptcy, wasn’t named as a defendant in either suit.

— E-mail: cgiggenbach@register-herald.com

38 Former Duke Lacrosse Players To Sue

From today’s Charleston Daily Mail:

Note: Good for them. See my former post regarding Nifong here.

38 former Duke lacrosse players plan to sue

by Newsday

More than three dozen former Duke University lacrosse players said they would file a lawsuit Thursday seeking damages in connection with the infamous rape case that was later dropped.

The 38 players’ attorneys said they would announce the claims in their federal civil action at the National Press Club in Washington.

“All of this will be discussed tomorrow,” said Bob Borg, a spokesman for the players.

The action would be the latest of at least three lawsuits that have been filed since a North Carolina attorney general dropped charges in April against three Duke lacrosse players who had been indicted on criminal charges for the March 2006 alleged rape of a woman who performed as an exotic dancer at a party off the Durham, N.C., campus.

Two other suits have been filed by the three players who were indicted and three others who weren’t indicted.

The prosecutor, Mike Nifong, was disbarred when a panel found he withheld evidence from the defense.

The three formerly indicted players, Reade Seligmann of Essex Fells, N.J.; Collin Finnerty of Garden City, N.Y., and David Evans of Bethesda, Md., have sued Nifong and the city of Durham but reached a settlement with Duke.

In December, players Breck Archer, of East Quogue, N.Y., Ryan McFadyen of Mendham, N.J., and Matthew Wilson, of Durham, N.C., filed a lawsuit against Duke, Nifong and the city of Durham, among other entities.