V I R G I N I A



BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD



In the Matter of Kerry Dane Armentrout, Esquire

Docket Nos. 99-070-1479, 99-070-2073, and 99-070-2806



ORDER



This matter came to be heard on June 22, 2001, upon three Subcommittee Determinations (Certifications) that were entered on November 23, 1999, against and duly served on Kerry Dane Armentrout, Esquire ("Respondent").



This matter was heard by a duly convened panel of the Virginia State Bar Disciplinary Board (the "Board"), consisting of Henry P. Custis, Jr., presiding, Bruce T. Clark, Theophlise L. Twitty, Robert E. Eicher, and Robert L. Freed. Respondent was present in person and appeared pro se. Seth M. Guggenheim, Assistant Bar Counsel, appeared on behalf of The Virginia State Bar.



The court reporter for the proceeding, Valaerie L. Schmit, Chandler & Halasz, Inc., Post Office Box 9349, Richmond, Virginia 23227, telephone (804) 730-1222, was duly sworn by Mr. Custis. Each member of the panel stated on the record that there was no business or financial interest and no personal bias that would impair his or her ability to hear the matter fairly and impartially.



Findings of Fact

 

Upon consideration of the testimony presented and exhibits received, the Board makes findings of fact, as follows:



1. At all times relevant hereto, the Respondent has been an attorney licensed to practice law in the Commonwealth of Virginia.



2. With respect to VSB Docket No. 99-070-2073:



a. On or about June 15, 1994, Janet S. Grimsley (hereafter "Complainant") retained Respondent under a contingent fee agreement to prosecute a right of action against an insurance carrier for its refusal to pay Complainant's claim under an insurance policy for storm damage to her home.



b. On or about April 6, 1995, Respondent filed a Motion for Judgment on Complainant's behalf against the insurance carrier in the Circuit Court of Rockingham County, Virginia (the "First Suit").



c. The defense counsel for defendant insurance carrier timely filed responsive pleadings in the First Suit.



d. On August 14, 1995, defense counsel served a Request for Admissions upon Respondent. Respondent did not at any time respond on Complainant's behalf to the Request for Admissions.

e. Defense counsel filed a Motion for Summary Judgment on behalf of the insurance carrier on or about September 26, 1995. In support of such Motion, defense counsel alleged that because Complainant had failed to respond to his Request for Admissions, all matters as to which admissions had been requested were deemed admitted by Complainant.



f. On or about September 27, 1995, Respondent filed a Motion for Nonsuit seeking a dismissal of Complainant's First Suit, without prejudice to her right to reinstitute the action. The Circuit Court of Rockingham County, Virginia, entered an Order nonsuiting the First Suit on October 12, 1995.



g. On June 19, 1996, Respondent filed a second Motion for Judgment against the insurance carrier, naming as an additional party defendant the Complainant's insurance agent (the "Second Suit"), and alleging, inter alia, that the insurance agent had fraudulently redated Complainant's application for insurance, and that the insurance carrier had not timely canceled Complainant's insurance policy. By letter of the same date, Respondent advised the Clerk of the Court that he did not wish to have the defendants in the case served "at this time." Respondent did not send a copy of the letter to Complainant.



h. By letter dated September 4, 1998, the Deputy Clerk of the Circuit Court of Rockingham County advised Respondent that the Second Suit would be stricken from the docket on September 25, 1998, "unless we are notified not to do so prior to that date." Respondent did not check the space provided on the letter, "I object to the removal of this case," and did not sign and return it to the Clerk's Office.



i. The Second Suit was stricken from the docket on October 1, 1998. Respondent did not notify Complainant.

j. Respondent took no discovery, by interrogatories, document production, request for admissions, or depositions, in connection with the First Suit or the Second Suit.

k. On November 2, 1998, new counsel for Complainant filed a motion to reinstate the Second Suit on the docket, which the Court granted by decree entered on November 10, 1998.

l. On September 27, 1999, new counsel for Complainant moved for a second nonsuit of Complainant's right of action because Respondent had not caused service of process to be made on the defendants under the Second Suit.

m. On December 6, 1999, the Court entered an Order that deferred ruling on Complainant's nonsuit motion until after the motion for judgment had been served, and that found the defendant insurance company's motion for dismissal not ripe for adjudication.



Decision of the Board



Based upon the foregoing, the Board finds by clear and convincing evidence that Respondent violated the following Disciplinary Rule of the Virginia Code of Professional Responsibility, and that such violation constitutes misconduct under DR

7 1-1012(A)(1) and (A)(2), to wit:



DR 7-101. Representing a Client Zealously.



(A) A lawyer shall not intentionally:



(1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.



(2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-108, DR 5-102, and DR 5-105.



The Board further finds that the other charges of misconduct in VSB Docket No. 99-070-2073 and all charges of misconduct in VSB Docket No. 99-070-1479 and VSB Docket No. 99-070-2806 have not been proved by clear and convincing evidence., and the Board dismisses all other charges.



Sanction



Following the Board's announcement of its finding with respect to the misconduct established, Assistant Bar Counsel and Respondent were permitted to offer evidence in aggravation or in mitigation of such misconduct and to present argument.



Upon consideration whereof, it is ORDERED that Respondent be and hereby is issued an ADMONITION, without terms. effective upon entry of this order.



It is further ORDERED that, pursuant to Part Six, Section IV, Paragraph 13(K)(10) of the Rules of the Supreme Court of Virginia, the Clerk of the Disciplinary System shall assess costs.



It is further ORDERED that the Clerk of the Disciplinary System send an attested true copy of this Order to Respondent, Kerry Dane Armentrout, Esquire, by certified mail, return receipt requested, at his address of record with the Virginia State Bar, Armentrout & Armentrout, P.L.C., 50 South Liberty Street, Harrisonburg, Virginia 22801 and to Seth M. Guggenheim, Assistant Bar Counsel, Virginia State Bar, 100 N. Pitt Street, Suite 310, Alexandria, Virginia 22314.





ENTER: ____ day of June, 2001



VIRGINIA STATE BAR DISCIPLINARY BOARD





By: _________________________________

Henry P. Custis, Jr., Chair



P:\Documents\ORDERS\Armentrout final.7.10.01.DOC

Final: June 5, 2001 (12:46pm)



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