Rector v. Ross
| Decision Date | 10 June 2021 |
| Docket Number | No. 19-1037,19-1037 |
| Citation | 859 S.E.2d 295 |
| Court | West Virginia Supreme Court |
| Parties | Robert Nelson RECTOR, Petitioner v. Kimberly Kay ROSS, formerly known as Kimberly Kay Rector, Jaclyn Belcastro, as power of attorney for Kimberly Kay Ross, Thomas G. Dyer, and The Honorable Lori B. Jackson, Respondents |
Gregory H. Schillace, Esq., Schillace Law Office, Clarksburg, West Virginia, Counsel for Petitioner.
Teresa J. Lyons, Esq., Lyons Phillips Legal Group PLLC, Morgantown, West Virginia, Counsel for Respondent, the Honorable Lori B. Jackson.
Petitioner, Robert Nelson Rector ("Petitioner"), contests two circuit court rulings. First, Petitioner asserts that the circuit court erred by imposing a monetary sanction on his attorney, Gregory H. Schillace ("Mr. Schillace"), based on misconduct the court found that Mr. Schillace had committed. Second, Petitioner argues that the circuit court erred by dismissing his petition for a writ of prohibition which sought to prevent the family court from proceeding with a rule to show cause hearing against Petitioner and Mr. Schillace based on their failure to appear at a family court proceeding.
After review, we reverse the monetary sanction the circuit court imposed on Mr. Schillace, and find that pursuant to this Court's ruling in In re Frieda Q. , 230 W. Va. 652, 742 S.E.2d 68 (2013), Mr. Schillace is entitled to a jury trial on this sanction. We affirm the circuit court's ruling dismissing Petitioner's writ of prohibition. We remand this matter to the circuit court for further proceedings consistent with this opinion.
Petitioner filed a "Complaint for Declaratory Relief, Writ of Prohibition and Other Relief" in November of 2017. This lawsuit sought to enforce the terms of a divorce settlement agreement entered into by Petitioner and his former wife, Respondent Kimberly Kay Ross ("Respondent Ross"). It also sought to prevent the family court from proceeding with a contempt hearing against Petitioner and Mr. Schillace. The procedural history leading up to this lawsuit is convoluted and spans a number of proceedings.1 However, the current matter before this Court only involves two legal issues: 1) a monetary sanction the circuit court imposed on Mr. Schillace, and 2) the circuit court's ruling dismissing Petitioner's writ of prohibition. For ease of the reader, we focus our factual and procedural background on the events in this matter that are relevant to our resolution of these two issues.
Respondent Family Court Judge Lori Jackson ("Judge Jackson") presided over the divorce proceedings between Petitioner and Respondent Ross. The family court entered a decree of divorce ("divorce order") on December 21, 2016. On January 23, 2017, Petitioner filed an appeal of the family court's divorce order in the circuit court. Petitioner did not file a motion for a stay in conjunction with his circuit court appeal at that time.2
Respondent Ross's guardian ad litem3 filed a petition for contempt with the family court on February 24, 2017, alleging that Petitioner failed to provide Respondent Ross's family with her separate property in violation of the divorce order.4 The guardian ad litem filed a supplemental petition for contempt on April 12, 2017. In response, Judge Jackson issued a rule to show cause and scheduled a hearing for May 1, 2017.
The circuit court affirmed the divorce order on April 24, 2017. Without having filed a petition for appeal in this Court, Petitioner filed a motion for a stay of the divorce order in the circuit court on April 28, 2017.
Both the family court and the circuit court conducted hearings in this case on May 1, 2017. The family court held its hearing on the contempt petitions filed by Respondent Ross's guardian ad litem on the morning of May 1, 2017. Both Petitioner and Mr. Schillace were present at this hearing. According to Judge Jackson, this hearing only concerned Respondent Ross's separate property and did not involve any matters that Petitioner had appealed to the circuit court. The hearing was not concluded in its scheduled timeframe and the family court ruled that the hearing would resume the following day, May 2, 2017.
The circuit court's May 1, 2017, hearing occurred after the family court's hearing. During the circuit court hearing, the court granted Petitioner's motion for a stay. The circuit court's order provides (Emphasis added). The circuit court sent a copy of this order to Judge Jackson. Importantly, the circuit court's order did not specifically address the contempt proceeding that was pending in the family court, nor did it address Respondent Ross's separate property. Instead, the order only provided that Petitioner sought a stay of "proceedings pending appeal," and that it was granting the motion.
Judge Jackson reconvened the contempt hearing in the family court on May 2, 2017. Petitioner and Mr. Schillace did not appear at this hearing, nor did they contact the family court to inform Judge Jackson that they would not attend this hearing. Judge Jackson rescheduled the contempt hearing for June 2, 2017. On May 4, 2017, Petitioner filed a notice of appeal with this Court. On May 30, 2017, Petitioner filed a motion with the circuit court to enforce the previous stay.
On June 2, 2017, the circuit court entered an order "Granting Motion to Enforce Stay and Clarification of May 1, 2017 Order Granting Stay of The Petitioner Pending Appeal." This order clarified that the family court's contempt proceeding was stayed. However, the order also noted a lack of clarity in its May 1, 2017, stay order: "This Court makes no finding that the Family Court Judge violated the May 1, 2017 Order due to lack of clarity in that Order."
In August of 2017, Petitioner and Respondent Ross entered into a settlement, and Petitioner filed a motion with this Court to dismiss his appeal. This Court granted Petitioner's motion and dismissed the appeal by order entered on August 27, 2017. Thereafter, Judge Jackson entered an "Order Issuing Rule to Show Cause and Setting Hearing" against Petitioner and Mr. Schillace based on their failure to appear at the family court contempt hearing on May 2, 2017.
As stated above, Petitioner filed the complaint initiating this action on November 3, 2017. He filed an amended complaint on November 29, 2017, in which he asserted that Judge Jackson "is without jurisdiction to schedule and/or hold any hearing regarding the non-appearance of the plaintiff and/or his counsel at the May 2, 2017 ... hearing following the entry of the stay by the Circuit Court on May 1, 2017." Petitioner's amended complaint sought a writ of prohibition from the circuit court to prohibit Judge Jackson from holding this hearing.
A hearing on Petitioner's writ of prohibition was scheduled in the circuit court on December 11, 2017. During this hearing, the circuit court noted that Judge Jackson had not been served with Petitioner's amended complaint. The circuit court ordered: 1) Petitioner to serve Judge Jackson; 2) Judge Jackson to respond to the complaint within thirty days after receiving service; and 3) Mr. Schillace to prepare an order following the hearing. The next circuit court hearing was scheduled for February 28, 2018.
Mr. Schillace failed to prepare an order following the December 11, 2017, hearing in a timely fashion.5 Further, Petitioner failed to serve Judge Jackson with a copy of the amended complaint. Finally, neither Petitioner nor Mr. Schillace appeared at the February 28, 2018, circuit court hearing.
On March 20, 2018, the circuit court entered an order entitled "Order Scheduling Further Hearing and Issuing Rule to Show Cause." This order commanded Mr. Schillace to appear and show cause as to why he should not be held in contempt. The circuit court's March 20, 2018, order provides:
the Court hereby issues a Rule to Show Cause to Attorney Gregory Schillace to appear on March 30, 2018, at 9:00 a.m. to show cause, if there be any, why he should not be held in contempt for failing to prepare an order from the December 11, 2017 hearing, for failing to serve the Amended Complaint for Declaratory Relief, Writ of Prohibition, and Other Relief as had been directed by the Court, and failing to appear for the hearing on February 28, 2018.
(Emphasis added).
The circuit court held a hearing on its rule to show cause on March 30, 2018. At the beginning of this hearing, the circuit court judge noted that "the Court set this matter for hearing today on a rule to show cause directed towards the plaintiff's counsel, Gregory Schillace, to show cause why he should not be held in contempt " for failing to 1) prepare the order following the December 2017 hearing, 2) serve Judge Jackson with the amended complaint, and 3) appear at the February 28, 2018, hearing. (Emphasis added). In addition to these three issues that had occurred in the present case, the circuit court recited concerns it had with Mr. Schillace in seven additional cases.6 After noting these repeated instances of Mr. Schillace's problematic conduct, the circuit court judge stated:
Now, what do I do about all this? Mr. Schillace, if it were an isolated incident, I could probably look the other way, but I can't. It's repeated. And from what I see that's happening in my Court, I can only imagine what may be happening elsewhere. So, this Court has no choice but to require a transcript of this [hearing] to be made and to be sent to the lawyer's disciplinary office. The Court is also going to hold true to its word that the next time there is any shenanigans on your part, there will be a $5,000 lien, penalty, assessed against you. And the Court is doing that here in this particular case. That needs...
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Lawyer Disciplinary Bd. v. Schillace
...v. Ross, 245 W.Va. 352, 859 S.E.2d 295 (2021), was dispositive of the ethical violations alleged in Count III of the Charges. Our holding in Rector was narrow: because the $5,000.00 fine the circuit court had imposed on the respondent as a sanction for various acts of misconduct was a crimi......
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Lawyer Disciplinary Bd. v. Schillace
...findings or the rule violations it found; clear and convincing evidence supports the findings. [3] Rector v. Ross, 245 W.Va. 352, 360, 859 S.E.2d 295, 303 (2021). [4] Syl. Pt. 1, LDB v. Cain, 245 W.Va. 693, 865 S.E.2d 95 (2021) (quoting Syl. Pt. 3, Comm. on Legal Ethics v. McCorckle, 192 W.......