Lawyer escapes sanctions motion, client is hit

Jun - 01

Lawyer escapes sanctions motion, client is hit

A lawyer who sued under the newly recognized tort of “interference with parental rights” barely managed to escape an award of sanctions after the client’s allegations proved untrue.

The client was not so fortunate.

The plaintiff – a Blacksburg woman – was ordered to pay $10,474.67 for filing a “vexatious” $4.7 million lawsuit against a former friend and employee. Jennifer Ankrum alleged in her suit that the friend’s false report of drug use led to removal of Ankrum’s two children, but Ankrum’s claims were undermined by a drug possession prosecution.

A Montgomery County judge decided Ankrum’s lawyer, Vicki L. Francois of Roanoke, may not have known that the lawsuit she filed was not well-grounded in fact. The judge struck the motion for sanctions as to Francois.

The judge’s five-page Feb. 23 final order is Ankrum v. Miller (VLW 018-8-043).

Alleged false report to police

In 2015, Ankrum was recently divorced from her husband, Blacksburg dentist Matthew Ankrum, when her conflict with a one-time friend led to trouble with authorities, according to Ankrum’s complaint. Friend Martha Miller “wrongfully” told a sheriff’s deputy that Ankrum may have been using illegal drugs, the complaint said.

The local social services department “immediately” removed Ankrum’s two daughters, then ages 13 and 15, Ankrum said.

Court records showed Ankrum was charged the next month with possession of a controlled substance. Ankrum ultimately pleaded no contest to possession of drug paraphernalia, records showed.

While defending the drug charge, Ankrum sued Miller, accusing her of intentionally interfering with Ankrum’s “parental or custodial” relationship with her children. Represented by Francois (then known as Vicki L. Wiese), Ankrum demanded compensatory damages of $2 million per child and punitive damages of $350,000 per child.

A day after filing suit, Wiese issued subpoenas for Miller’s medical records from two hospitals.

Miller demurs

Miller hired Floyd attorney Jonathan Rogers, who filed a demurrer and then a motion for sanctions. In the motion, he said Ankrum was, in fact, using illegal drugs when Miller made her report to police. Moreover, the motion said, Wiese should have known of drug use because she was representing Ankrum on the drug charges.

“Both the Plaintiff and her attorney not only did not investigate the facts in support of this Complaint, they actually knew that the facts therein pled were false and inaccurate,” Rogers wrote.

Ankrum and Wiese used the court system to acquire Miller’s privileged medical records, Rogers said in his motion. He asked for $20,000 in sanctions against both lawyer and client.

Circuit Judge H. Lee Harrell sustained Miller’s demurrer Oct. 5.

Attorney avoids sanctions

Francois hired Bernard J. DiMuro of Alexandria to defend her on the sanctions motion. At a Dec. 4 hearing, Harrell allowed Francois to immediately withdraw from representation of Ankrum. After hearing from witnesses, Harrell granted Francois’ motion to strike the sanctions bid.

Ankrum’s credibility was weak, Harrell concluded.

“And, in fact, the Court finds that Ankrum was not fully truthful in her testimony before this Court, today, as to her drug use and that Ankrum dissembled on the witness stand and may very well have dissembled to her attorney, Francois,” Harrell wrote.

“Although it is a thin reed,” Harrell said he could not find that Francois necessarily knew that the false-report allegation was not well grounded in fact. Although Francois could have done more to investigate whether Ankrum was using drugs, Harrell found that Francois relied on what Ankrum told her, did not find a reason to disbelieve her, and “had two drug tests for Ankrum that were negative.”

“The Court is also cognizant that it needs to be careful in not applying sanctions to attorneys that would stifle them from advancing novel legal theories, not that that this gives any attorney the right to go forward and file frivolous suits by any means,” Harrell wrote.

Client nailed

The judge used Rogers’ summary of costs to impose a fee sanction of $9,000 and costs of $1,474.67 to make up the total award against Ankrum.

Harrell said he saw nothing in the evidence to support the contention that Miller lied about Ankrum’s drug use and “nearly everything the Court heard suggests the opposite.”

“Further, the Court finds that the eye-popping amount sought as damages … lends credence to Ankrum’s vexatious motive in filing the Complaint,” Harrell wrote.

Rogers said he expected to collect the sanction when he can locate Ankrum, since he said she receives a substantial support payment each month.

DiMuro said Francois had a good-faith basis in both fact and law for her allegations.

“She was exonerated and we are pleased with the results,” DiMuro said.

Source: Virginia Lawyers Weekly

Lawyer escapes sanctions motion, client is hit