THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Thursday, May 23, 1996 TAG: 9605230334
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
LENGTH: 70 lines
Walter Cole spent $1.6 million on lawyers to win the Virginia lottery.
Now he wants the money back - not from the lawyers, but from the state Lottery Department.
Cole, a retired Elizabeth City longshoreman who spent three years in court proving that he owned a winning $9 million Lotto ticket, is suing Virginia for reimbursement of his legal fees.
Cole, 74, says state officials forced him to hire lawyers and fight for his Lotto money when they should have paid him immediately after he presented the winning ticket in September 1992.
The lawsuit, filed Monday in Norfolk Circuit Court, seeks repayment of Cole's $1.6 million in legal expenses, plus about $90,000 in interest. It names two defendants: Lottery Director Penelope W. Kyle and state Comptroller William E. Landsidle.
The state has refused Cole's demand, saying then-lottery director Kenneth Thorson acted properly in not paying Cole in 1992 because there was a dispute over who owned the winning ticket.
Four former friends of Cole, fellow retirees in Elizabeth City, claimed they, too, owned a piece of the ticket. They claimed Cole bought the ticket as part of a lottery pool.
Cole claimed he bought the winning ticket on his own, separately from the group's six tickets. Lottery records apparently support that claim. They show that Cole bought the winner at a Chesapeake store 35 minutes after buying the six other tickets.
A Chesapeake judge ruled in Cole's favor in September 1994, but on a technicality. He ruled that North Carolina law forbids gambling agreements, and since the pool was created there, it could not be enforced. Cole and his former friends never testified.
The case dragged on until this January, when the state Supreme Court upheld the Chesapeake ruling.
Now Cole gets $306,680 a year in prize money, after taxes, for 20 years. Lawyers take their cut from that prize.
The legal fees are split among three lawyer groups: $850,000 for Norfolk lawyer Peter Decker and his colleagues; $666,500 for Cole's current attorney, J. Nelson Happy, dean of the Regent University Law School; and $115,000 for former Richmond Mayor Henry Marsh and his colleagues.
Cole hired Decker and Marsh early in his case, then fired them and objected to their fees. A Chesapeake judge ruled they were entitled to the money.
Now, Cole claims that he should never have had to hire lawyers to collect his money.
``I believe that the actions of Mr. Thorson (in withholding Cole's prize) were illegal and are a breach of contract between the Commonwealth of Virginia and the Cole family,'' Happy wrote in a Jan. 26 letter to lottery officials.
Lottery spokeswoman Paula Otto said the agency has seen Cole's lawsuit, but could not comment. ``We are going to have to examine the filing along with the attorney general's office. It's our policy not to comment on pending litigation,'' Otto said.
Lottery regulations allow the director to withhold a prize ``if a dispute occurs or it appears that a dispute may occur relative to any prize.''
Happy, however, argued in his Jan. 26 letter to the lottery that Thorson, a lawyer, must have known that lottery pools are illegal and, therefore, there was no real dispute over who owned Cole's ticket.
Cole's son, Hercules, said that he will not stop fighting until the lottery pays his father the full $9 million.
``My father was entitled to $9 million. It was his ticket. From Day One, they knew it was his ticket,'' Hercules Cole said. ``I don't care how long it takes, it's not going to go away.'' ILLUSTRATION: Photo
Walter Cole, 74, spent three years and $1.6 million on lawyers to
prove he owned a $9 million Lotto ticket.
KEYWORDS: LOTTERY VIRGINIA WINNERS LAWSUITS by CNB