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Case against circuit judge-elect moved to Mobile County
A jury trial is slated before Judge John Lockett in the estate contest of the late Joseph L. Sullivan. The case was moved to Mobile County from Washington County in June after DuBose won the Democratic nomination for a circuit judgeship in the First Judicial Circuit of Choctaw, Clarke and Washington counties in the June 7 primary. Judge Lockett said he moved the case because he didn't want to give the perception to Washington County jurors that there were "two judges in the courtroom" if DuBose was tried in Chatom. DuBose has no opposition in the November general election and will take office in January. DuBose is accused of drafting a will for Sullivan in April 2003 without ever meeting Sullivan or talking to him about it. The will was created for DuBose's client, Cheryl Weaver, and designated her as the sole beneficiary. The will named Weaver as executrix and DuBose as successor executor. Estate valued at $2.5 million Sullivan has been described as a "wealthy citizen of Washington County" who died April 29, 2003. Court documents say the estate is valued at $2.5 million or more. Sullivan was described as a widower with no living children whom Weaver took care of. A "close bond" developed between them and he reportedly told her several times that he wanted her to inherit his possessions. Sullivan's sister and closest relative, Catherine Kolnaski of Connecticut, said she visited her brother shortly before he died and he indicated he was considering giving Weaver about two acres of land. He told Kolnaski's son repeatedly that his mother was his closest relative. However, Sullivan signed the will leaving all of his estate to Weaver. He died shortly thereafter and Weaver met DuBose in his Jackson law office and signed a retainer agreement. The agreement said that DuBose would be paid 33 percent of any estate settlement obtained prior to the initiation of a lawsuit, or 40 percent of any settlement obtained after a lawsuit was initiated. Should the matter continue to an appellate court level, the fee would increase to 50 percent. The will was filed for probate in Washington County and the Sullivan relatives filed suit protesting it, arguing that Joseph Sullivan wasn't in his right mind and was on drugs when he signed the will. They suggested that Weaver obtained his signature through fraud or force and that she was "dominant and controlling" of him. Chatom attorney Michael Onderdonk represented the Kolnaski family. Court documents record Onderdonk's concern about how the matter was handled and said he was prepared to call DuBose as a witness if the matter went to trial. Will contest settled However, in an attempt to settle the case, DuBose and Onderdonk were named as special co-administrators in early 2004 and a year later the will contest was settled for $100,000. Weaver yielded her status as executrix and asked that DuBose be appointed co-executor. DuBose filed a claim against the estate for administrator's fees and commissions of $127,630. He also claimed attorney fees of 40 percent of the $2.5 million estate based on his successful defense of the will. Forty percent of $2.5 million is $1 million. Weaver objected, saying the claims were "unconscionable, excessive and not pursuant to any agreement between the two of them." Her suit states that DuBose, acting as co-executor, made a payment of $160,000 to himself and a distribution to Weaver of $240,000. One of DuBose's attorneys, Jim Roffler, has said that DuBose represented Weaver in the will contest on a contingency basis, as lawyers often do, with a promise to be paid if she won the case. "He did a wonderful job and if it wasn't for his efforts she would have lost the will contest and would have received nothing," Roffler stated last year. DuBose's attorneys say the agreement was legitimate and that Weaver simply does not want to pay it. DuBose filed suit just a few days ago against Weaver in Clarke County Circuit Court for payment of the fees he said are owed him. Weaver has argued that DuBose "is holding the estate hostage" and will not share information on the estate. She has asked that he be held in contempt of court for not opening the state account for review. On June 16, Judge Lockett responded to the contempt charge by ordering that both DuBose and Weaver be removed as co-executors of the Sullivan estate. The two, he wrote, "have given this Court substantial reason to believe that they are not suitable persons to have control of the estate and are not ready, willing or able to take the necessary actions in conjunction with each other to comply with the lawful orders of this court." Lockett appointed J. Randall Crane as "Administrator with the Will Annexed" and set a bond of $750,000 to ensure the performance of his duties. 'Standards of care' questioned John Milton Coxwell, a Monroeville attorney hired to review the case by Weaver's attorneys, said that DuBose breached the "standards of care" that attorneys are ethically bound to adhere to. Had DuBose met that standard, Weaver would not have been allowed to procure the will or to have it executed, Coxwell reasoned. "The standards of care had been breached when Ms. Weaver was dispatched with the will to secure its execution by Mr. Sullivan," Coxwell said. DuBose's attorneys have said that DuBose was representing Weaver but also did not overlook the rights of Sullivan. An interesting filing by Weaver's attorneys in April asks the court not to make known several issues about Weaver: A previous arrest, a shooting at her house, that she lives with a man she is not married to and that she will "occasionally" go to the casinos to gamble. Both First Judicial Circuit judges Harold Crow and Thomas Baxter recused themselves early in the case because DuBose is a practicing attorney in the circuit. Two matters to be addressed Judge Lockett was appointed to handle the case which has grown to five files, four as big as Sears catalogs. At a hearing after the primary regarding a change of venue he observed that two issues are at stake in the case. One: Does DuBose have a valid claim against the estate for the work he did for Cheryl Weaver? Two: Did anything DuBose do violate the "standards of care" that should be observed by attorneys? Lockett addressed the need for a venue change. "By all accounts, the campaign was heated and characterized by a number of negative advertisements. Some of those advertisements cast DuBose in a negative light and based upon statements made by DuBose at various proceedings, those advertisements hurt him and his family very deeply." Finding jurors for the case in Washington County would be hard, Lockett said, as he agreed to transfer the case to Mobile County. "The trial of this case in Washington County would require the court to preside in a courtroom occupied (or soon to be occupied) by DuBose as circuit judge, surrounded by staff and court personnel who he will be, or soon will be supervising, before jurors he will be empanelling and interacting with over the course of his term as circuit judge. It is not lost in this court that some of these prospective jurors or their immediate family members may have cases on Judge DuBose's docket." Can't have 'two judges' at trial Judge Lockett said he was concerned about the perception that "there may be two judges" in the courtroom. He told DuBose he was "concerned about being free of the taint of a very negative election, one that probably [could] hurt you more candidly than would help you as a litigant under the circumstances." DuBose beat Chris Bailey to win the Democratic nomination by just 99 votes, a 50.2 percent victory margin. Bailey ran ads that excerpted comments from this case and others DuBose has been involved in that cast him in a negative light.
The trial is set for 9 a.m. Monday, Oct. 2 in Judge Lockett's courtroom on the sixth floor of the Government Plaza complex on Government Street in downtown Mobile.
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