Latest / Ask the Lawyer / 11/05/2026 Ask the Lawyer with Tom Peyton

Transcript

11/05/2026 Ask the Lawyer with Tom Peyton · Ask the Lawyer

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  Speaker 1: The views and opinions expressed on this program do not
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  Speaker 1: necessarily reflect the views and opinions of 580 WCHS, its employees,
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  Speaker 1: or WVRC Media.
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  Speaker 2: In our courts, all men are created equal. We're mass communicating.
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  Speaker 3: Breaking rocks in a hot sun.
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  Speaker 4: Up on the low, hit a low one.
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  Speaker 3: And a very pleasant good morning to you. You are
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  Speaker 3: listening to your voice of Charleston 580 WCHS. This is
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  Speaker 3: Ask the Lawyer with the Payton Law Firm. And Tom
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  Speaker 3: Payton is here with me from the Payton Law Firm.
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  Speaker 3: He's online this morning, remotely joining us from a remote location. Tom,
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  Speaker 3: good morning. How are you doing this morning?
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  Speaker 2: I'm doing great, Coop. How are you doing?
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  Speaker 3: Doing very well. I appreciate your time and joining us
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  Speaker 3: on the phone this morning from places unknown. Not just kidding,
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  Speaker 3: but sometimes timing works out this way, but we'll still
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  Speaker 3: be taking your phone calls and your messages. We'll also
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  Speaker 3: have a little ticket given away. I'll let Tom explain
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  Speaker 3: those things here in just a moment, but you can
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  Speaker 3: get a hold of us this morning. The number is 304-345-5858.
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  Speaker 2: 345-5858.
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  Speaker 3: You can text 304-935-5008.
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  Speaker 2: 304-935-5008.
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  Speaker 3: You want to make note, especially of that phone number,
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  Speaker 3: because I think we're going to have a ticket giveaway
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  Speaker 3: here tomorrow. in just a little bit. Is that right, Tom?
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  Speaker 2: That's right. So I'd love to be in the studio,
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  Speaker 2: but I'm out of town. And Dad, if you follow
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  Speaker 2: the show a bit, you know, he had an open-heart
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  Speaker 2: vascular procedure at Cleveland Clinic in June and recovered quite
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  Speaker 2: well from that. But he had to go back for
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  Speaker 2: a follow-up for a different area of his body, still
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  Speaker 2: a vascular issue. So he had pretty serious surgery Tuesday.
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  Speaker 2: I know we've had some communications with our office from
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  Speaker 2: folks that were concerned via email and through Facebook. But
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  Speaker 2: the surgery was a success, but it's a serious one.
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  Speaker 2: So he's got a few days of recovery in Cleveland Clinic.
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  Speaker 2: So he'll probably be back at it here in the
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  Speaker 2: next month or so, knowing him. But anyway, that's why
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  Speaker 2: we're not in the studio. But we did a nice
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  Speaker 2: ticket package giveaway for Mountaineer football a few weeks ago,
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  Speaker 2: and now it's basketball season. So If you're a season
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  Speaker 2: ticket holder to Mountaineer basketball, you probably know they kind
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  Speaker 2: of reorganized the seats this year. The student sections are
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  Speaker 2: in a different section, which is where our season tickets were.
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  Speaker 2: So we're in a little different area. But we've been
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  Speaker 2: able to make contributions to the university significantly over the years.
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  Speaker 2: So we're blessed enough to have really good seats and
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  Speaker 2: a parking pass. And WU plays, I think it's Stetson
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  Speaker 2: tomorrow night, Friday evening games. if you're seven or seven 30,
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  Speaker 2: so be make for a nice trip, but we've got,
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  Speaker 2: I'm going to do a giveaway on the radio this morning.
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  Speaker 2: Cause I can't make it. And of course dad can't
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  Speaker 2: make it. And I was always like trying to use
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  Speaker 2: our tickets, you know, not have this empty seats there
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  Speaker 2: since they're, they're really good seats. So we got four
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  Speaker 2: tickets and they're, they're two and two. So we have
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  Speaker 2: two that are, um, they're behind the basket, but they're
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  Speaker 2: right off the mountaineer bench. So you're right in the
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  Speaker 2: action area. You can hear what players are saying. And,
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  Speaker 2: and the coach a little bit. And then we have
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  Speaker 2: two seats that are right behind the Mountaineer bench, eighth row.
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  Speaker 2: So those are really good as well. Plus a white
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  Speaker 2: lock parking pass. So it'd be a great, good trip
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  Speaker 2: for a family or maybe a group of friends to
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  Speaker 2: go up and it's Friday. So you can maybe sleep
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  Speaker 2: in a little bit the next day. If you get
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  Speaker 2: home late or maybe stay the night in Morgantown, but
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  Speaker 2: perhaps before we hit our first break or I guess
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  Speaker 2: our only break, I'll throw a little trivia question out there.
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  Speaker 2: I guess it's an easier one than the one I
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  Speaker 2: threw out last time. So keep listening, and before we
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  Speaker 2: go to the break, we'll throw out the question. Maybe
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  Speaker 2: whoever you need to call in, I think, rather than text,
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  Speaker 2: and then whoever calls in first and gets the answer
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  Speaker 2: will get the ticket package.
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  Speaker 3: Yep, so that will be right before we go to
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  Speaker 3: the break, so not quite yet. I think we do
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  Speaker 3: have a phone call that's coming in that might be
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  Speaker 3: a question for the Payton Law Firm. Caller, what's your
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  Speaker 3: first name?
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  Speaker 4: Go ahead.
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  Speaker 2: Susan.
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  Speaker 5: The question is, yes, the question is, are you ready
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  Speaker 5: for my question?
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  Speaker 2: Yes, ma'am.
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  Speaker 3: Okay, I apologize.
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  Speaker 5: I'm wanting to know about a transfer on death deed.
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  Speaker 5: It used to be such that if you added that Medicare,
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  Speaker 5: I don't know if it's Medicare or Medicaid, whoever it is,
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  Speaker 5: looks back five years. Someone told me recently they've changed that.
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  Speaker 5: And I'm just wondering if that's the case.
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  Speaker 2: Okay. So, very common question. And what I hear people
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  Speaker 2: or clients and folks call, and we get questions on
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  Speaker 2: this probably once or more than one time a week. So,
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  Speaker 2: if you get older or you have a disability and
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  Speaker 2: you go on long-term nursing home care, most people don't
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  Speaker 2: have long-term care insurance. Very few of my clients do.
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  Speaker 2: Probably 1%. And it doesn't even cover... the full charge
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  Speaker 2: for the care home most of the time. So as
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  Speaker 2: it stands right now, there's no health insurance doesn't cover it.
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  Speaker 2: Medicare does not cover it. Now Medicaid, that's the, it's
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  Speaker 2: a welfare benefit, meaning anyone is eligible if they qualify financially,
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  Speaker 2: if they're indigent, let's, let's say, It doesn't matter whether
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  Speaker 2: you paid taxes or paid into the system like you
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  Speaker 2: do with Medicare, where you can become vested in through
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  Speaker 2: Medicare and the Social Security system. So if you have
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  Speaker 2: funds and you're not eligible for Medicaid, then you pay
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  Speaker 2: your own way at a nursing home. They don't come
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  Speaker 2: and take your property and things like that. Now what
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  Speaker 2: the problem is, normally if you're in that situation, You're
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  Speaker 2: stuck where you're, quote, spending down, meaning you're basically spending
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  Speaker 2: your money or your assets in order to pay your
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  Speaker 2: own way until you become eligible for Medicaid, a welfare benefit.
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  Speaker 2: And then what they do, and this is from the
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  Speaker 2: federal level and then administered by the states, they watch
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  Speaker 2: because they don't want people, you know, wealthy people really
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  Speaker 2: is what it was designed for, I think, but it
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  Speaker 2: applies to everyone. to give away assets and say, aha,
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  Speaker 2: now I'm poor, government, give me the welfare benefits. And
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  Speaker 2: so what they do is when there's an application made
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  Speaker 2: for long-term care Medicaid, the government through the Department of
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  Speaker 2: Health and Human Resources or the Department of Human Services,
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  Speaker 2: the state agency, on that questionnaire, that application, they'll say, hey,
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  Speaker 2: have you given or transferred anything for less than market
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  Speaker 2: value in the last five years? And they also have
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  Speaker 2: a database where they can search certain transactions and things
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  Speaker 2: like that. So, for example, if you have maybe a
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  Speaker 2: piece of property that's not your home place and you
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  Speaker 2: deed it away and then the next year you say, look,
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  Speaker 2: I don't have anything, I'm eligible for Medicaid, they'll actually
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  Speaker 2: penalize the applicant and they'll value what you gave away
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  Speaker 2: and then they have a formula to calculate the average,
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  Speaker 2: let's say, weekly care for staying at a nursing home
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  Speaker 2: in West Virginia. Until that many weeks pass, equal to
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  Speaker 2: the value of the property you gave away, they won't
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  Speaker 2: pay for your care. Now, what happens practically in that situation?
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  Speaker 2: You know, I really don't know. I've not been involved
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  Speaker 2: in that to see it play out. I mean, I
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  Speaker 2: wouldn't think something would just be put on the street.
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  Speaker 2: Mostly what I've seen is family members help and things
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  Speaker 2: like that. So that's how it works. Now, a transfer
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  Speaker 2: on death deed, which was... created by legislation, I believe
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  Speaker 2: in 2015, has been tweaked a couple times since then.
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  Speaker 2: The key there is that, one, it's not a gift.
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  Speaker 2: So even though you sign a deed and it's recorded,
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  Speaker 2: it has no effect until the person that signed the
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  Speaker 2: deed passes away. So you don't get penalized, like I
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  Speaker 2: said earlier, for making a gift when you do a
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  Speaker 2: transfer on death deed. And then what it does, it
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  Speaker 2: takes the property and outside probate so the minute the
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  Speaker 2: person passes away that's on the transfer on death deed
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  Speaker 2: within that deed there are named there's a named beneficiary
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  Speaker 2: or beneficiaries it can be more than one and so
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  Speaker 2: that person immediately owns it now what that does it's
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  Speaker 2: primarily a tool for your home place but it can
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  Speaker 2: be used for any property just to take it outside
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  Speaker 2: the probate process and when you generally when you take
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  Speaker 2: it outside the probate process because it transfers by a
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  Speaker 2: deed um It's not subject to creditors that can file
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  Speaker 2: claims against an estate.
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  Speaker 5: Including Medicare? I mean Medicaid?
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  Speaker 2: Yes, as of right now. It's a cat and mouse
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  Speaker 2: game between the feds trying to catch up to people
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  Speaker 2: and folks trying to pass their home down. Now, the
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  Speaker 2: key there is that, except for particularly high-end homes, when
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  Speaker 2: they calculate whether you're eligible for Medicaid or not, your
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  Speaker 2: home's exempt. One car is exempt, and your personal property is.
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  Speaker 2: like within the home, like your furniture, TVs, jewelry, things
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  Speaker 2: like that, are generally exempt from the calculation of whether
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  Speaker 2: you are eligible for long-term care Medicaid. So you can
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  Speaker 2: still own your home, and normally that's how it works,
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  Speaker 2: and be in a nursing home paid for by Medicaid.
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  Speaker 2: And so, folks, it's kind of like a manner in
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  Speaker 2: which you can still pass an asset to your heirs
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  Speaker 2: without– having to sell it to fund your care in
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  Speaker 2: a nursing home. And so... what the government can do,
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  Speaker 2: it's called estate recovery. After the fact, because you retain
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  Speaker 2: your home, it can go back at times and put
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  Speaker 2: a lien on your assets or make a claim against
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  Speaker 2: your estate, for example, the home, And it would have
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  Speaker 2: to be paid off similar to a mortgage. Let's say
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  Speaker 2: your home, your will passes everything to your children. And
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  Speaker 2: if you don't have the transfer on death deed, then
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  Speaker 2: that would go by the will to your kids, but
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  Speaker 2: also be subject to claims made against your estate. One
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  Speaker 2: of which could be a claim by the government for
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  Speaker 2: the Medicaid benefits that you've got. Now, if you do
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  Speaker 2: a transfer on death deed, your will and the probate
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  Speaker 2: process is irrelevant because the minute you pass away, It's
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  Speaker 2: automatically owned by the beneficiaries, which, as in practice since 2015,
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  Speaker 2: as I understand it, has essentially prevented these liens from
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  Speaker 2: having application to that home.
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  Speaker 5: Wonderful. Okay.
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  Speaker 2: It's an excellent tool. It used to be before the
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  Speaker 2: legislature created that, you would see folks deed away their
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  Speaker 2: property to their kids but reserve a life estate. And
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  Speaker 2: that's okay, but... Like, I'm a parent now, and I'm
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  Speaker 2: not going to deed my property to my kids. Because
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  Speaker 2: once you do that, even reserving a life estate, it
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  Speaker 2: gives you the right to live there, which really can't
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  Speaker 2: be disturbed. But you lose some ownership of your property.
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  Speaker 2: You can't sell it. You can't borrow against it. It
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  Speaker 2: could potentially be affected by your kids' creditors when you
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  Speaker 2: just reserve a life estate. So I've, since 2015, and
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  Speaker 2: transfer on death deeds have come into play, I've probably
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  Speaker 2: only drafted 10%. four or five deeds where folks reserve
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  Speaker 2: the life estate because it just doesn't make any sense anymore.
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  Speaker 2: You want to, when you record that transform death deed,
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  Speaker 2: you as the owner retain all ownership rights, period. You
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  Speaker 2: can change the deed without asking anybody by doing a
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  Speaker 2: new one and changing your beneficiary. So it's a really
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  Speaker 2: good tool. You only, you know, you can only do
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  Speaker 2: so much with them. So if you're doing something complicated,
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  Speaker 2: wanting your home sold and property spread to multiple beneficiaries,
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  Speaker 2: or maybe part of it going into a trust because
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  Speaker 2: you have a, disabled beneficiary or something like that, then
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  Speaker 2: you really can't do that very well through a transfer
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  Speaker 2: on death deed. It needs to go by the will.
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  Speaker 2: But otherwise, if you've got a simple estate plan and
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  Speaker 2: you can afford to have the deed done, right now
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  Speaker 2: we're charging $ 300 to draft a basic deed. Some lawyers
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  Speaker 2: may charge a little more, I don't know. But if
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  Speaker 2: you can afford it, and there's a little recording fee,
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  Speaker 2: I think it's $ 30, it's an excellent tool to do.
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  Speaker 2: And if you want one done, Most counties, we have
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  Speaker 2: an online account to access deeds, so you just call us,
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  Speaker 2: tell us who you want. We have a little conversation.
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  Speaker 2: Who do you want to be the beneficiary? And then
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  Speaker 2: we draft the deed, and you just come in and
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  Speaker 2: sign it, we record it, and it's taken care of.
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  Speaker 2: And it's really no harm, no foul. You kind of
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  Speaker 2: have your cake and eat it, too, because you can
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  Speaker 2: pass it non-probate, without subject to the Medicaid lien, and.
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  Speaker 2: There's no gifting while you're living, so you don't have
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  Speaker 2: to worry about those penalties that I referenced earlier. Thank
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  Speaker 2: you so much for the information.
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  Speaker 5: I'm going to jump off here and let you, if
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  Speaker 5: you want to add what other people may need to know,
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  Speaker 5: but you definitely answered my question, and I appreciate it.
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  Speaker 2: Thank you so much.
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  Speaker 3: Thank you so much for that. Appreciate the phone call.
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  Speaker 3: That leaves the phone line open for you. If you
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  Speaker 3: want to get into the Payton Law Firm, Tom Payton
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  Speaker 3: is still in line with us this morning, 304-345-5858, 345-5858.
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  Speaker 2: Yeah, do you want to, maybe we'll do the trivia question, Coop?
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  Speaker 3: Yeah, let's go ahead and do that. We'll go ahead
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  Speaker 3: and do the trivia question and give away tickets to
• 13:36
  Speaker 3: go see the Mountaineers. We'll take a break, and folks
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  Speaker 3: can give us a call during the break.
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  Speaker 2: Yeah, so it's tomorrow night's game. I really, if you're
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  Speaker 2: going to win them, I just hope you use them.
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  Speaker 2: If you turn around and sell them, then we'll have
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  Speaker 2: to bar you from future trivia. But anyway, here's the question.
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  Speaker 2: I think it's a basketball, W basketball-related question, so... And
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  Speaker 2: this would be a person who, this occurred during a
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  Speaker 2: time period in which we were doing the show. So
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  Speaker 2: if you listen regular, you know we've done this show
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  Speaker 2: since 1999. So we'll take the year 2000 forward. Name
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  Speaker 2: the one WU basketball coach who was the head basketball
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  Speaker 2: coach for the Mountaineers but never coached a game. You
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  Speaker 2: know it too?
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  Speaker 3: Yeah, yeah, yeah.
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  Speaker 2: Yeah, okay. I figured it. I hate it when people
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  Speaker 2: get the question wrong, and hopefully the first caller gets
• 14:27
  Speaker 2: the question right if we have a caller. But it's
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  Speaker 2: a really good ticket package.
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  Speaker 3: We already have a caller. Do you want to go
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  Speaker 3: ahead and take it and see if we got an
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  Speaker 3: answer off the top?
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  Speaker 2: Yeah, let's do it.
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  Speaker 3: Caller, go ahead. We went ahead and put you online.
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  Speaker 3: What's your first name if you want to answer the trivia?
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  Speaker 2: It's George.
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  Speaker 3: Okay, George. Did you want to get a shot at
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  Speaker 3: the trivia?
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  Speaker 2: It's Dan Dockage. Correct. Good. I'm glad you got it right, George. Yeah,
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  Speaker 2: Dan Dockett, I think this was, who was this, Astor
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  Speaker 2: Dale Catlett, maybe? Yeah, and then Dockett came from Bowling Green.
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  Speaker 2: He was there. head coach for one week. And then he, uh,
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  Speaker 2: went back to Bowling Green. I think he blamed it
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  Speaker 2: on some potential NCAA sanctions coming through, but I think
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  Speaker 2: the university said there was some issues. He was demanding
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  Speaker 2: more money or something. So he was actually, but we
• 15:24
  Speaker 2: were a lot better off because then we got John Beeline.
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  Speaker 3: Yeah, that was right before Beeline.
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  Speaker 2: That's right. Had great success. And then of course, Bobby
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  Speaker 2: Huggins came in, uh, after that. Great. These are all
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  Speaker 2: electronic tickets this season for us. I don't know if
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  Speaker 2: maybe George can call back in or text or something.
• 15:45
  Speaker 2: We just need an email or a cell phone number
• 15:48
  Speaker 2: where we can text them and then a legitimate first
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  Speaker 2: and last name. I'll get the tickets and the parking
• 15:54
  Speaker 2: pass over electronically. If you don't have a Mac, it
• 15:58
  Speaker 2: does make you create an account, but it's free. It's
• 16:01
  Speaker 2: no problem. It's real easy to do.
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  Speaker 3: George, can I have you go on hold for just
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  Speaker 3: a second? I'll talk to you during the break, and
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  Speaker 3: I'll make sure I have your information.
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  Speaker 2: Sure thing.
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  Speaker 3: Okay, let me go ahead and put you on hold
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  Speaker 3: as well.
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  Speaker 2: All right, very good.
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  Speaker 3: We have George on hold, Tom. We'll go ahead and
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  Speaker 3: take our break right now. We'll come back, and we'll
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  Speaker 3: wrap up the show, and I'll get all of George's
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  Speaker 3: information for you.
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  Speaker 2: Okay, sounds good.
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  Speaker 3: Very good. You're listening to Ask the Lawyer this morning.
• 16:27
  Speaker 3: Tom Payton is on the phone with us from a
• 16:29
  Speaker 3: remote location, but still answering your questions. Obviously, this morning,
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  Speaker 3: doing a great job. If you have any questions for
• 16:34
  Speaker 3: the Payton Law Firm online, it's paytonlawfirm.com, P-E-Y-T-O-N, paytonlawfirm.com in Nitro,
• 16:39
  Speaker 3: West Virginia. Or this morning, you can give us a
• 16:40
  Speaker 3: call on Ask the Lawyer, 304-345-5858, 304-345-5858 with the Payton
• 16:46
  Speaker 3: Law Firm. I'm Dale Cooper. We'll take a break and
• 16:47
  Speaker 3: be back right after this. You're listening to Ask the Lawyer,
• 16:49
  Speaker 3: 580 WCHS, The Voice of Charleston.
• 16:51
  Speaker 6: If you've been injured, you deserve a lawyer who knows
• 16:54
  Speaker 6: West Virginia, not just one who advertises here. Tom and
• 16:58
  Speaker 6: Harvey Payton were born and raised right here. For decades,
• 17:01
  Speaker 6: they fought for injury victims across the state, and they
• 17:04
  Speaker 6: know how to win. At the Payton Law Firm, you
• 17:07
  Speaker 6: get strong representation and attorneys who care. Call 755-5556 or
• 17:13
  Speaker 6: visit PaytonLawFirm.com.
• 17:15
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  Speaker 3: You're listening to your voice of Charles and 580 WCHS.
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  Speaker 3: I am Dale Cooper. Thanks for tuning in on this
• 19:08
  Speaker 3: Thursday morning and joining me in studio this morning or
• 19:11
  Speaker 3: actually on the phone in the studio this morning is
• 19:13
  Speaker 3: Tom Payton from the Payton Law Firm from a remote
• 19:15
  Speaker 3: location this morning. But we just gave away some WVU
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  Speaker 3: tickets to George who called in just before the break.
• 19:20
  Speaker 3: And Tom still has some time on the airwaves here
• 19:22
  Speaker 3: for you this morning. If you have any questions for
• 19:24
  Speaker 3: the Payton Law Firm, you can give us a call 304-345-5858.
• 19:28
  Speaker 2: 304-345-5858.
• 19:28
  Speaker 3: You can text 304-935-5008. Tom, I know you had a
• 19:32
  Speaker 3: couple other things you wanted to hit on as well.
• 19:33
  Speaker 2: Well, yeah, I wanted to give a couple updates. You know,
• 19:35
  Speaker 2: we get calls sometimes about issues or we have things
• 19:40
  Speaker 2: going on and just want to follow up on a
• 19:43
  Speaker 2: couple things. We had, of course, we had an election
• 19:46
  Speaker 2: this week and and, uh, in Putnam County, we had
• 19:50
  Speaker 2: a special election for the circuit judge because, uh, Judge Sorcea, um,
• 19:56
  Speaker 2: resigned over the summer. And so we had a caution
• 19:59
  Speaker 2: election that I guess campaigning was only a couple of months,
• 20:03
  Speaker 2: two or three months, because it was just in time
• 20:06
  Speaker 2: to get the, uh, candidates on the ballot for this
• 20:10
  Speaker 2: Tuesday's election. But, but I had a guest on, a candidate, uh,
• 20:14
  Speaker 2: Christina Raines that, um, I've known for decades now, I think.
• 20:18
  Speaker 2: And she was the, uh, or is the prosecutor in
• 20:21
  Speaker 2: Putnam County. But anyway, I just wanted to give her
• 20:22
  Speaker 2: a congratulations. She won the election and, um, that's good. So, uh,
• 20:28
  Speaker 2: you know, last two, uh, I had two sitting Supreme
• 20:30
  Speaker 2: Court justices on the show as guests in the, in
• 20:33
  Speaker 2: the spring and they didn't fare so well, uh, in
• 20:37
  Speaker 2: their election contest. But Christina Raines did win the contest
• 20:42
  Speaker 2: in Putnam County, the election. So she will be the,
• 20:45
  Speaker 2: right now Judge Swope is sitting in. He's on senior status.
• 20:49
  Speaker 2: He's just filling in temporarily. But I guess it'll be
• 20:52
  Speaker 2: Judge Raines will be the new judge in Putnam County.
• 20:57
  Speaker 2: So I think that's a good thing and we'll wish
• 21:00
  Speaker 2: her well. And I think she'll do a good Good job.
• 21:03
  Speaker 2: With judges, you're never going to agree with everything they do,
• 21:06
  Speaker 2: but you want them to care and, I think, be
• 21:10
  Speaker 2: courteous to the litigants and work and act promptly. I
• 21:16
  Speaker 2: think we'll get that out of Judge Rain. Congratulations there
• 21:20
  Speaker 2: on her for winning the election down in Putnam County.
• 21:23
  Speaker 2: There were several worthy candidates, I must say. We also
• 21:28
  Speaker 2: had a call a few shows ago asking about Angela
• 21:32
  Speaker 2: Bourne case. And of course, I'm not the lawyer in
• 21:37
  Speaker 2: that case, but I was able to look up and
• 21:39
  Speaker 2: get some updates from the court's docket. And Angela Bourne, actually,
• 21:42
  Speaker 2: she was a McFarland, and she was a few years
• 21:46
  Speaker 2: ahead of me, I think, at St. Albans. But sadly,
• 21:49
  Speaker 2: she was just an innocent third party driving on Interstate 64.
• 21:53
  Speaker 2: And this is the one, folks might remember, it made
• 21:56
  Speaker 2: the news, where law enforcement was, I guess, for better
• 22:01
  Speaker 2: or worse, in a chase of someone who was, I think,
• 22:05
  Speaker 2: driving a stolen vehicle. It might have been his grandmother's vehicle,
• 22:09
  Speaker 2: but spike strips were put down on the interstate and,
• 22:13
  Speaker 2: I guess, disabled the vehicle they were chasing. But then, unfortunately,
• 22:18
  Speaker 2: it collided with the vehicle operated by Ms. Boren, which
• 22:22
  Speaker 2: caught fire, and she passed away. A younger person, really sad,
• 22:28
  Speaker 2: doing absolutely nothing wrong. But there was a call a couple,
• 22:32
  Speaker 2: I guess it was maybe last month on the show,
• 22:34
  Speaker 2: asking the status of that case. The estate, her husband,
• 22:37
  Speaker 2: I think, was appointed over the estate, filed a wrongful
• 22:40
  Speaker 2: death lawsuit. And that's in federal court. So just I
• 22:44
  Speaker 2: checked the docket just so I could give folks an
• 22:46
  Speaker 2: update because I know people are interested and care about
• 22:50
  Speaker 2: that matter. But it's with Judge Chambers in the Huntington case.
• 22:54
  Speaker 2: division of the U S district court for the Southern
• 22:57
  Speaker 2: district of West Virginia trial set for next September. So, um,
• 23:02
  Speaker 2: there are also some, uh, as with almost any case
• 23:06
  Speaker 2: involving law enforcement, there's pending, there are pending motions to
• 23:10
  Speaker 2: dismiss regarding qualified immunity. Folks might've heard that word. It's
• 23:14
  Speaker 2: really complex, but involves, um, a potential for, uh, government
• 23:22
  Speaker 2: actors to, uh, be found immune from a lawsuit and
• 23:26
  Speaker 2: have the case dismissed depending on, um, the particular allegations
• 23:30
  Speaker 2: of the case. So those are, those are pending. And, uh,
• 23:34
  Speaker 2: I don't, I don't know how judge chambers will rule there,
• 23:36
  Speaker 2: but if they aren't dismissed, we can look, uh, right
• 23:39
  Speaker 2: now the trial set for September 14th, 2027. So we'll,
• 23:45
  Speaker 2: we'll continue to monitor that one a little bit. It's,
• 23:47
  Speaker 2: it's a, it's a fellow red dragon and, and, uh,
• 23:51
  Speaker 2: we've done some work and know her father, uh, fairly well.
• 23:55
  Speaker 2: And so we're going to be monitoring that one way
• 23:58
  Speaker 2: or another. So we'll continue to give some updates as
• 24:02
  Speaker 2: we go through the litigation process there.
• 24:05
  Speaker 3: Yeah, that story has been big for quite some time.
• 24:10
  Speaker 3: And And you've addressed it on the show a few times.
• 24:12
  Speaker 3: It's just the circumstances around that, especially for this area,
• 24:15
  Speaker 3: are somewhat unique. You know, we don't have a lot
• 24:18
  Speaker 3: of hospice chases and things along those lines. So it
• 24:20
  Speaker 3: really becomes under a special scrutiny, I think, because we
• 24:23
  Speaker 3: don't have a lot of that here. And then the
• 24:24
  Speaker 3: tragic death that was that, of course, was the end result.
• 24:29
  Speaker 2: Yeah, you look at it from kind of a common
• 24:31
  Speaker 2: sense standpoint. And I'm looking at it from a helicopter view,
• 24:34
  Speaker 2: you know, just reading news accounts and things. But yeah.
• 24:38
  Speaker 2: I think the person the police were chasing, I assume
• 24:43
  Speaker 2: it was a high-speed chase on Interstate. I don't know that.
• 24:46
  Speaker 2: There's always, to me, there's got to be some balancing.
• 24:49
  Speaker 2: When do the police back off because the chase is
• 24:52
  Speaker 2: getting dangerous? How dangerous is the person they're chasing? And
• 24:56
  Speaker 2: what I understand in this, the facts in this case
• 24:58
  Speaker 2: are it was maybe a stolen vehicle, but at the
• 25:02
  Speaker 2: same time, maybe taken from a relative. I don't think
• 25:05
  Speaker 2: it was, for example, a bank robbery where somebody was
• 25:08
  Speaker 2: shot and killed and you got, you know, a violent
• 25:12
  Speaker 2: maniac on the run where you just know, hold the bar.
• 25:15
  Speaker 2: You just need to catch them. Um, so, but, and
• 25:19
  Speaker 2: then spike strips were put down and obviously, you know,
• 25:23
  Speaker 2: there was no intent by any law enforcement for some
• 25:26
  Speaker 2: innocent bystander to get, get hurt or killed, but that's, uh,
• 25:30
  Speaker 2: ultimately what happened. And so when you talk about qualified immunity,
• 25:34
  Speaker 2: that's a, you know, there's, some discretionary decisions by government actors.
• 25:39
  Speaker 2: You just can't sue over. So it depends on how
• 25:42
  Speaker 2: egregious the, the actor omission was that resulted in the,
• 25:47
  Speaker 2: in the harm. And so, yeah, we'll, we'll keep watching it.
• 25:52
  Speaker 2: And then, you know, it's just, it's just to me,
• 25:56
  Speaker 2: just my personal opinion. I mean, it's guts, a lower
• 25:59
  Speaker 2: level crime, there might've been a better way to, I
• 26:01
  Speaker 2: think the police knew who this person was. So, you know,
• 26:04
  Speaker 2: was it something where this person was going to get
• 26:06
  Speaker 2: away and never find them again? Kind of doubt it. Uh,
• 26:10
  Speaker 2: although that doesn't mean there's a, you know, the lawsuit,
• 26:14
  Speaker 2: the plaintiffs will prevail because they have these technical issues
• 26:17
  Speaker 2: with cases against government actors. So we'll, we'll continue to
• 26:20
  Speaker 2: monitor it and see how it goes. Um, kind of
• 26:23
  Speaker 2: along those lines this week, um, Unfortunately, we also had,
• 26:28
  Speaker 2: I think it was on Halloween night, maybe, so that
• 26:30
  Speaker 2: would have been Saturday night. We had this surveillance video
• 26:32
  Speaker 2: floating around where there was just an awful act of
• 26:36
  Speaker 2: violence against a local business owner. I think Dave Bragg,
• 26:42
  Speaker 2: I think was his name. He's been on the news
• 26:43
  Speaker 2: doing an interview, but apparently it was juveniles just committed
• 26:49
  Speaker 2: an assault on him. I think he went outside maybe
• 26:52
  Speaker 2: to take out the trash of his business or something
• 26:53
  Speaker 2: and saw a skirmish and tried to break it up
• 26:55
  Speaker 2: and then which is really severely beaten, and it's on video,
• 27:00
  Speaker 2: which is always, you know, we get some tolerance to
• 27:04
  Speaker 2: violence these days with movies, video games, et cetera, but
• 27:07
  Speaker 2: it's always shocking to me to see that type of
• 27:10
  Speaker 2: human behavior on a video, and it's gotten a lot
• 27:12
  Speaker 2: of play, and they arrested a couple of juveniles. I
• 27:16
  Speaker 2: think they did say they were charged with malicious assault,
• 27:22
  Speaker 2: which is a felony. But from this point forward, if
• 27:26
  Speaker 2: it stays in the juvenile justice system, then we probably
• 27:30
  Speaker 2: won't hear a lot more about how those cases result
• 27:36
  Speaker 2: against the juveniles unless they're moved to transfer to adult status.
• 27:44
  Speaker 2: I'm not sure it can happen here. I think robbery
• 27:49
  Speaker 2: is a crime that can be transferred to adult status,
• 27:52
  Speaker 2: but as long as the juvenile is 14 years of
• 27:55
  Speaker 2: age or older, and robbery is, if they were committing
• 28:00
  Speaker 2: physical harm to steal something from the victim, then that
• 28:03
  Speaker 2: would be robbery. But if it was just a beating,
• 28:09
  Speaker 2: it's probably going to stay malicious assault. And as I
• 28:12
  Speaker 2: read the statute, unless the juveniles had previously been judge
• 28:19
  Speaker 2: juvenile delinquents based on some other crime of violence, I
• 28:23
  Speaker 2: think it probably will stay in the juvenile system. So
• 28:26
  Speaker 2: we probably won't hear a whole lot. Those proceedings are confidential,
• 28:31
  Speaker 2: are supposed to be. I don't think it's really appropriate
• 28:34
  Speaker 2: for the prosecutor to come out and talk about the
• 28:37
  Speaker 2: results of the juvenile process in those cases. So that
• 28:41
  Speaker 2: won't be real satisfactory to the public. Now, juveniles can
• 28:45
  Speaker 2: be detained, and they can be detained if they're convicted
• 28:51
  Speaker 2: beyond the age of 18. I don't think maybe it's
• 28:54
  Speaker 2: 20 or something like that. So to the extent we can,
• 28:59
  Speaker 2: we'll kind of monitor those and see how they come out. Obviously,
• 29:03
  Speaker 2: if it's transferred to criminal jurisdiction, which is adult-type criminal case,
• 29:10
  Speaker 2: then it will be public and we'll be able to
• 29:14
  Speaker 2: see what goes on with the case.
• 29:16
  Speaker 3: There was some on our show yesterday that's after this show,
• 29:21
  Speaker 3: on 580 Live with Dave Allen, we had some folks on.
• 29:23
  Speaker 3: And there were people talking about how the culpability of
• 29:27
  Speaker 3: the parents in this case. And there's been some, I
• 29:29
  Speaker 3: think there's been some national cases, I think that had
• 29:31
  Speaker 3: to do with gun violence or something, where some parents
• 29:33
  Speaker 3: were held responsible for a child's actions along these lines.
• 29:36
  Speaker 3: And there's been some floating about that in this case.
• 29:39
  Speaker 3: I don't know that much about it. this type of situation.
• 29:41
  Speaker 3: I don't know if that's even something possible here.
• 29:44
  Speaker 2: Probably not. I think the case you're referencing is maybe
• 29:46
  Speaker 2: up in Michigan, and it was a shooting, as I remember.
• 29:50
  Speaker 2: I don't know if it was a school shooting or
• 29:52
  Speaker 2: a mass shooting. But in that particular case, which was...
• 29:58
  Speaker 2: I don't know, I guess somewhat novel. I believe the
• 30:02
  Speaker 2: parents had purchased and or supplied the firearm that was
• 30:08
  Speaker 2: used by the juvenile to commit the crime. And I
• 30:13
  Speaker 2: don't think you can take that set of facts and
• 30:16
  Speaker 2: really realistically put criminal culpability on the parents. But I
• 30:20
  Speaker 2: think in that case, there was evidence that this child,
• 30:25
  Speaker 2: he would be dangerous with um, a firearm. He'd had
• 30:29
  Speaker 2: issues and the parent, there's some evidence the parents knew
• 30:31
  Speaker 2: about it. And I think they ended up getting convicted,
• 30:33
  Speaker 2: at least one of the two of them, uh, by
• 30:36
  Speaker 2: a jury. Now on this, you know, juveniles out there, um,
• 30:42
  Speaker 2: I don't remember. I watched a little bit of the
• 30:44
  Speaker 2: video to the extent I could stand it. And I
• 30:47
  Speaker 2: don't remember if there were weapons used. It was just
• 30:51
  Speaker 2: multiple people kicking and hitting someone that was already down
• 30:55
  Speaker 2: and helpless. So, um, I don't know about civilly in
• 31:00
  Speaker 2: a civil case might be different. You know, in criminal cases,
• 31:05
  Speaker 2: generally for serious ones, you got to prove some type
• 31:07
  Speaker 2: of criminal intent or just gross, reckless type behavior. So
• 31:12
  Speaker 2: I don't, if I was betting, I would doubt we
• 31:16
  Speaker 2: see any criminal repercussions against parents in the case here.
• 31:22
  Speaker 2: It doesn't mean, it doesn't exonerate the parents from bad
• 31:26
  Speaker 2: parenting by any means, but there has to be a
• 31:29
  Speaker 2: pretty unique set of facts and egregious behavior by the parent.
• 31:34
  Speaker 2: I mean, if there's some texting or evidence out there
• 31:37
  Speaker 2: about the parents, you know, encouraging their children to behave
• 31:41
  Speaker 2: this way or something to that effect or purchased or
• 31:44
  Speaker 2: supplied weapons used, then that would be different. I'm not
• 31:47
  Speaker 2: seeing that right now.
• 31:49
  Speaker 3: It seems like that in the case with the shooting,
• 31:51
  Speaker 3: that that was a little bit of some of the
• 31:53
  Speaker 3: background there is that the perpetrator might have actually been
• 31:58
  Speaker 3: trained in some regard or encouraged in some regard for
• 32:01
  Speaker 3: that sort of activity or at least adjacent activity that
• 32:05
  Speaker 3: seemed to be reckless. It would be seemingly very difficult
• 32:08
  Speaker 3: to show that sort of thing about parents, about kids
• 32:11
  Speaker 3: leaving a party and then losing their minds.
• 32:14
  Speaker 2: Right, and I think also, not just training in the
• 32:17
  Speaker 2: other case, I think there was also some evidence that
• 32:21
  Speaker 2: he had made, that juvenile had made maybe threats or
• 32:25
  Speaker 2: I think, and this is just off my recollection, maybe
• 32:29
  Speaker 2: even had had an issue at the school, like the
• 32:31
  Speaker 2: school personnel had told the parents, hey, your child has
• 32:35
  Speaker 2: either mental health issues or problems where he's, you know,
• 32:39
  Speaker 2: we think he's a danger to himself or others. And
• 32:42
  Speaker 2: then after that point, the parents basically don't take appropriate
• 32:47
  Speaker 2: action and supply the child with a firearm or firearms
• 32:53
  Speaker 2: that were ultimately used in the, to commit the crime. So,
• 32:57
  Speaker 2: you know, that's a, that's almost a unique set of
• 33:00
  Speaker 2: facts for a criminal case. And so I don't, I
• 33:03
  Speaker 2: doubt we'll see any culpability here. Another thing about juvenile,
• 33:07
  Speaker 2: you see on Facebook and things, of course, the, the, the,
• 33:12
  Speaker 2: the video, the, there's nothing blurred out when the media
• 33:15
  Speaker 2: publishes it. And I see a lot of people raising,
• 33:18
  Speaker 2: maybe not on, it all depends. I mean, you have
• 33:20
  Speaker 2: a juvenile who's, uh, you know, committing some low level
• 33:24
  Speaker 2: vandalism or something versus beating a person. Um, you know,
• 33:31
  Speaker 2: the public doesn't seem to have a problem with juvenile
• 33:34
  Speaker 2: spaces being published when there's a beating, but then I see,
• 33:37
  Speaker 2: I see some, uh, why are we putting this child's
• 33:41
  Speaker 2: picture on Facebook or social media when they are just
• 33:45
  Speaker 2: committing some low-level type vandalism? And so the question is, well,
• 33:50
  Speaker 2: they're a juvenile. Are you allowed to publish that? And generally,
• 33:52
  Speaker 2: I think as long as it's in the public, there
• 33:56
  Speaker 2: really isn't an expectation of privacy even for juveniles. And
• 33:59
  Speaker 2: as far as the press goes and the media, and
• 34:01
  Speaker 2: you probably know this, but it's kind of a not
• 34:04
  Speaker 2: publishing juveniles' photos by the regular media media or maybe
• 34:09
  Speaker 2: names is more of a professional courtesy.
• 34:12
  Speaker 3: We have internal guidelines mostly that, that, that steers us
• 34:14
  Speaker 3: in that.
• 34:14
  Speaker 5: Yeah.
• 34:15
  Speaker 3: There's not like a law, but we have internal guidelines. Yeah.
• 34:18
  Speaker 2: Right. So it's not illegal to, to, to publish a
• 34:23
  Speaker 2: child's picture if they're in a, I mean, it depends
• 34:26
  Speaker 2: on the purpose, but just for media, for a story
• 34:28
  Speaker 2: that has public interest, there's nothing illegal about that, whether it's,
• 34:32
  Speaker 2: you know, a heinous crime or something very, very minor.
• 34:36
  Speaker 2: So that, you know, we, I see some, conversation about
• 34:39
  Speaker 2: that on social media at times. When you get into
• 34:43
  Speaker 2: a juvenile justice system, those proceedings are confidential. A prosecutor,
• 34:48
  Speaker 2: for example, shouldn't come out of a closed hearing in
• 34:52
  Speaker 2: a juvenile case, in my opinion, and then start telling
• 34:54
  Speaker 2: the public about the identity of the juvenile, exactly what's
• 34:57
  Speaker 2: going on, that kind of thing. Crimes of violence are
• 35:02
  Speaker 2: a little bit different, but generally on juvenile cases, the
• 35:06
  Speaker 2: records are sealed and once the case is concluded. So
• 35:10
  Speaker 2: it generally shouldn't affect the child's future ability to get employment,
• 35:14
  Speaker 2: things like that. But otherwise, it's kind of geared towards
• 35:22
  Speaker 2: fixing the problem with the child versus punishment. The judge
• 35:25
  Speaker 2: is supposed to look at the least restrictive kind of penalty.
• 35:30
  Speaker 5: Options.
• 35:30
  Speaker 2: I know Judge Stowers in Putnam County, he has a
• 35:33
  Speaker 2: whole team of uh, social workers and, and maybe even
• 35:38
  Speaker 2: some school personnel attend his juvenile hearings. And he's done
• 35:42
  Speaker 2: a really good job of, I mean, you can see
• 35:44
  Speaker 2: it in Putnam County, his work there, Judge Towers and getting, uh,
• 35:49
  Speaker 2: juveniles back on track, especially truancy. A lot of times
• 35:52
  Speaker 2: it's problems at home, um, you know, versus problems innate
• 35:56
  Speaker 2: with the child. And, and, and so that's what it's
• 35:59
  Speaker 2: geared toward. Now this one, I don't know. I'd say
• 36:01
  Speaker 2: there'll be some detention involved, um, based on what I
• 36:06
  Speaker 2: saw in that video.
• 36:07
  Speaker 3: Just to clarify a little bit when we were talking
• 36:08
  Speaker 3: about that Michigan case, I just wondered if folks were
• 36:11
  Speaker 3: trying to remember. That was in 2021 Oxford High School shooting.
• 36:15
  Speaker 3: It was called the Crumbly case. The conviction, both parents
• 36:18
  Speaker 3: were convicted on four counts of involuntary manslaughter, but after
• 36:20
  Speaker 3: ignoring warning signs... purchasing the handgun that was used for
• 36:24
  Speaker 3: the incident as a Christmas gift and failing to act
• 36:26
  Speaker 3: when the school called regarding violent drawings and distress notices
• 36:30
  Speaker 3: from the child. So you were right on the button there.
• 36:34
  Speaker 3: I mean, there were several levers there that the parents
• 36:36
  Speaker 3: completely blew by in order to get this conviction, and
• 36:40
  Speaker 3: they were fairly obvious.
• 36:42
  Speaker 2: Yeah, so I don't think in a general matter parents
• 36:44
  Speaker 2: just trying to do their best or really need to
• 36:46
  Speaker 2: be concerned about– criminal culpability based on the behavior of
• 36:52
  Speaker 2: their children, but you get that type of egregious, reckless,
• 36:55
  Speaker 2: or intentional behavior, it's almost that you have to have
• 36:59
  Speaker 2: those backs to get those convictions. They might be on
• 37:01
  Speaker 2: appeal still, because, I mean, it was an effort by
• 37:04
  Speaker 2: the defense counsel to have them dismissed just because they
• 37:07
  Speaker 2: didn't actually perform the acts, but I think they went
• 37:12
  Speaker 2: to jury trial and were convicted, and as far as
• 37:15
  Speaker 2: I know, those convictions stand.
• 37:17
  Speaker 3: Tom, we have about 45 seconds left if you want
• 37:19
  Speaker 3: to wrap it up and talk.
• 37:20
  Speaker 5: To the folks.
• 37:21
  Speaker 2: Yeah, if you have any other legal questions or concerns,
• 37:26
  Speaker 2: a great way to contact us with us is through
• 37:28
  Speaker 2: our website at paytonlawfirm.com. When you send an email through there,
• 37:31
  Speaker 2: it comes right to me and Dad if we don't
• 37:34
  Speaker 2: have some key in service. And, of course, we'll try
• 37:37
  Speaker 2: to answer any questions that we can. We don't ever
• 37:39
  Speaker 2: charge for the first consultation. Now, what we do a
• 37:41
  Speaker 2: lot of at the office are interviews. helping regular folks
• 37:44
  Speaker 2: who've been injured in some way, usually physically, automobile accidents, falls,
• 37:50
  Speaker 2: insurance disputes, do a lot of that type work. But
• 37:54
  Speaker 2: as you can tell from the show today, we try
• 37:57
  Speaker 2: and help everyday people. So we do deeds, wills, basic
• 37:59
  Speaker 2: estate planning, a decent amount of social security disability. And
• 38:03
  Speaker 2: if there's an issue that we can't help with because
• 38:05
  Speaker 2: of geographic location,