Heer's trial on hold after recusal

An 11th-hour recusal of the judge in the trial of Heer's versus an insurance company has sent the case to Judge Donald Burrell.

Judge Henry W. Westbrooke withdrew Feb. 5 after hearing oral arguments on the United Fire and Casualty Company's motion for summary judgment, just before the week-long trial was set to begin.

Beleaguered Heer's owner Warren Davis has recently placed signs to attract pre-lessees for the building, which he plans to rehabilitate. According to Ron Shepherd, of Davis Properties, the company has been advertising for pre-lessees for some time. The structure has sat vacant since Davis bought it in 1995.

Trial issues revolve around whether the insurance policy covered $1.2 million in water damage caused by a sprinkler system in November 1996. In the first trial a jury found for the insurance company, but the judge granted a new trial, which was upheld by the court of appeals.

Feb. 5, an apologetic Judge Westbrooke spent about 40 minutes explaining why he withdrew from the case. He primarily cited a conflict of interest because of his close ties with members of the Ollis family who secured the insurance for Davis. They have insured the judge's property for many years, Westbrooke said.

"I never do this lightly," Westbrooke said in explaining why he couldn't hear the case. "I am the last one to disqualify on my own." He said he had not realized the extent to which testimony from Richard and Ron Ollis would be involved until he was able to read the motions for summary judgment on the Sunday afternoon before the Monday morning trial.

Because the trial had already been heard once by Judge Donald Bonacker, Westbrooke had nothing much to do with the case until it came for trial. Normally, when a judge takes a case from the beginning, he becomes acquainted with the evidence and issues during the trial preparation phase.

Since the case was tried, appealed and returned for new trial on all issues, Westbrooke only had to rule on a few issues before trial, including the request by the insurance company to amend its answer to the petition for damages filed by Davis.

Feb. 4, as the judge read the motion for summary judgment and the response with all the attachments, he became aware of the Ollis's involvement.

"I (didn't) know what the case is about," he said. "I (didn't) have time to go through these pleadings especially one that has already been tried once." The case file filled his office couch and the summary judgment documents were about 8 inches thick.

To complicate matters, Westbrooke was recovering from surgery. When he returned to work the next week, "I had a full day of work the last thing on my mind was this case. My plate was full of criminal cases."

"In a lot of ... civil cases, the fact that we (as judges) know somebody personally" may not matter, he said. But in this case, when evidence of character comes into play, the choice is clear.

"I don't want to be in the position to make evidentiary rulings" that may be seen as beneficial to a long-time friend, Westbrooke said.

He urged attorney John Price, for Davis, and attorney Robert Cockerham, for the insurance company, to closely query the next judge about potential conflict in this case to avoid further delay.