PrintWills & Trusts
Trustee Replacement - Individual Capacity
In this suit against defendant as an executor of an estate and a trustee of a trust established by the testator in June 2007, a Loudoun County Circuit Court grants defendants' demurrers to most counts of plaintiffs' complaint, but will allow plaintiffs to go forward on claims for removal and replacement of trustee and executor, and for declaratory judgment and reformation.
I generally agree with defendant executor that the complaint fails to inform not only him, but each defendant, of the true nature of the claim against him or her. There are some counts where it is clear which defendant or defendants from which relief is requested. For example, counts for civil conspiracy and unjust enrichment are clearly claims against Andrew, Anna and Marykim Stamile, and the counts for surcharge and injunctive relief and removal and replacement of trustee and executor are clearly against Andrew as trustee and executor. However, some counts do not even state from whom relief is requested. For example, count I (for an accounting) does not state from whom an accounting is demanded. Count II (for breach of fiduciary duty) does not state from whom plaintiffs are requesting damages. The same is true as to the counts involving fraud.
I do not think that any defendant in this case should have to guess as to the nature or application to him or her of any claim. Taken as a whole, no defendant can be reasonably assured as to which claim, or the nature of it, applies to him or her.
The court also agrees that counts I, II, IX and X all fail to state a cause of action against defendant trustee/executor individually. I think these causes of action can only be against Andrew as trustee under the 2007 trust and as executor of the estate. Further, I agree with Andrew that plaintiffs have no standing to allege damage or injury to the testator's property. Andrew, as executor, would obviously take no action to enforce any claim of the testator's estate against himself, Anna or Marykim. Virginia does not recognize a cause of action for tortious interference with an inheritance.
The court also sustains a demurrer to the count for conversion, as the properly allegedly converted was the testator's, not plaintiffs'.
I do think the complaint alleges sufficient facts to show a confidential relationship between Andrew and the testator, but the complaint otherwise fails to state a claim for undue influence.
Andrew argues as to count X, for removal and replacement of trustee and executor, and count XI, for declaratory judgment and reformation, that plaintiffs have failed to allege that they lack an adequate remedy at law for equitable claim in each count. Andrew's demurrer on this ground is overruled because I do not think the relief purportedly requested by plaintiffs is so equitable in nature as to require a lack of adequate remedy at law before it can be granted. Also, I do not agree that count XI fails to allege sufficient facts to establish a cause of action for reformation.
Carter v. Wyczalkowski, Executor of 2007 Will and Trustee of 2007 Trust of Marcin Wyczalkowski (Chamblin, J.) No.56468, Dec. 15, 2009; Loudoun County Cir.Ct.; Michael C. Whitticar, Jennifer D. Royer, Woodrow W. Turner, Erin P. Thompson for the parties. VLW 009-8-260, 6 pp.
Attorneys
Sanctions Under Va. Statute - Tax Assessment Challenge
An Augusta County Circuit Court says a lawyer who misused legal process to challenge real estate tax assessments by suing local supervisors and the commissioner of revenue is sanctioned under Va. Code § 8.01-271.1 , and must pay $2,000 for the county's cost in defending against the frivolous litigation.
In the first suit, plaintiff asked the court to issue a writ of mandamus or writ of prohibition ordering individual members of the Augusta County Board of Supervisors and the county commissioner of the revenue to either perform their respective governmental duties or in the alternative to prohibit certain actions as set forth in the pleading. Specifically, plaintiff asked that the court order defendants to set aside the 2009 real estate assessments, either to issue "new corrected substantiated assessments" in accordance with valuations as per Jan. 1, 2009, or, in the essence of time and costs, to adopt the existing 2005 assessments as assessments as per Jan. 1, 2009, and that they "in their individual capacities pay all costs for this proceeding. " The county attorney moved to dismiss the petition, and plaintiff moved to nonsuit the case.
While some of the procedural objections to the suit might be relevant to the issue of sanctions, the court cannot address some of them because plaintiff sought a nonsuit before those issues could be developed. However, the record is clear as to others of them. For example, while plaintiff requested service on each individually named defendant, he did not request and did not achieve service on the county attorney as required by the statute. Also, there was inadequate identification of plaintiffs. Supreme Court Rule 3:2(b) requires that the caption of the complaint include the names of all the parties. Plaintiff's complaint listed only himself "et al. " While that abbreviated form of caption is frequently seen in documents filed after the initial complaint, the first pleading must comply with the Rule. There were 10,466, or 10,459, or 7,950 individuals not listed.
Both of these procedural missteps are unworthy of an attorney of plaintiff's experience, and both would have been avoided had plaintiff made a cursory examination of the applicable law. Either he did not do that, or he elected not to follow the law or the Rules.
More fundamental, however, are three other issues: First, his characterization of the case as a class action. There is no provision in the cited statute that permits a class action, and Virginia is not a class-action state. The court's conclusion is that plaintiff, had he done a minimum amount of research, could not have concluded that this case should be brought as a class action. Plaintiff ignored the requirement that class action be statutorily permitted and, in his brief, he incorrectly represented that the Supreme Court said that an individual or entity does not acquire standing to sue in a representative capacity by asserting the rights of another unless authorized to do so.
There also is an issue of improper parties. Plaintiff has sued each of the individual members of the board and the commissioner, but the complaint does not contain a single allegation that any of those individuals took any action in his individual capacity; the complaint does not contain any allegation that any of those individual acted in any capacity other than in his governmental capacity, and the complaint does not contain any allegation of any action taken or not taken by any of the individuals which is susceptible of mandamus. The court concludes that plaintiff, had he done a minimum amount of research (limited only to looking at the Code and recognizing that his pleading did not address any act by any individual member of the board) could not have concluded that this case should be brought against those individual defendants. And in light of the fact that plaintiff did not allege any substantive facts regarding the action or inaction of the commissioner and did not articulate in any way how she was involved in the actions from which he sought relief, the court concludes that plaintiff could not have reasonably concluded that this case should be brought against her.
There also is an issue of inappropriate relief requested, in the writs for mandamus and prohibition.
I understand that many citizens see plaintiff as the champion he purports to be. That aside, if he is to represent the people (or specifically named individuals) in a court of law, he must do so with competence and professionalism, he must do so pursuant to the law, within the rules established for the orderly disposition of legitimate claims, and he must seek appropriate relief. Plaintiff cannot rewrite the law and he cannot demand that the court do it for him because it is inconvenient to him to work within the parameters of the existing statutes and case law.
The court assesses the sum of $2,000 against plaintiff for filing a suit that clearly justifies the imposition of sanctions.
In the second lawsuit at issue, against the commissioner of revenue, plaintiff requested a writ of mandamus ordering the commissioner to provide him "all appraisal cards or sheets, including but not limited to, the appraised value of the properties and improvements, if any, plus the calculations and methodology used in determining the assessed values thereon for the years 2005 and 2009, for each of the attached real property owners for each of their parcels. " Plaintiff had every reason to know that his claim was not well grounded in fact and was not warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.
The commissioner testified that her cost in making available all the information plaintiff requested by mandamus was $856. However, because the statute contemplates that the commissioner could have demanded the deposit before continuing to process the request, the court will not assess that cost to plaintiff. The only sanction the court imposes in this case is its strong expression of disapproval of plaintiff's misuse of the legal process before he had a legitimate suit to file.
Chester v. Beyeler (Ludwig, J.) No. CL 09000585-00, Dec. 28, 2009; Augusta County Cir.Ct.; Francis Chester, plaintiff; Patrick J. Morgan, County Att'y. VLW 010-8-006, 14 pp.
Domestic Relations
Mom's Move - GAL Recommendation
Although both the parenting evaluator and guardian ad litem support awarding shared custody to the dad in Virginia after the mom precipitously moved with the parties' four-year-old son to be near her family in Colorado, a Norfolk Circuit Court awards primary physical custody to the mom.
The court has considered these recommendations, but particularly because both are based primarily on the single fact of the mother's move to Colorado, does not agree with the conclusions. It is obvious that the mother was going to move somewhere after the house sold. It is also obvious that she would keep the child with her when she moved, inasmuch as she was his primary caregiver and the father worked outside the home full-time. She had no job and would shortly have no home, when the parties sold the marital home, and it is no surprise under those circumstances that she would go to her parents for support and a roof over her heard. Husband too went to live with his parents when the home sold. He testified that he did not know she had gone to Colorado when she left, but he provided no testimony that he believed or expected the mother to go anyplace other than Colorado when the home sold.
The court declines to decide this case only on the single factor relating to the mother's allegedly unannounced and unilateral decision to move out of state. The child has been living in Virginia and Colorado for over one year. Resolution of this issue requires a determination of what is in the child's best interest from this point in time forward and not what, in retrospect, would have been a better course of action for the mother to have pursued last year. Obviously, the child would be better off if his parents lived closer together, but the current separation arguably relates as much to the father's failure to follow him to Colorado as he once said he would to, than as to the mother's move in June 2008.
The court is of the opinion that the child's best interests will be served by granting his primary care and custody to the mother with reasonable and liberal visitation reserved to the father. The current rotating arrangement should continue through the end of the summer of 2010, with the child living six weeks at a time with each parent. Upon the start of the school year in fall 2010, the child's primary residence and his school will be with the mother in Colorado. At such time as one parent may relocate to live closer to the other, the court does recommend a review of the situation to give the father more parenting time.
The final divorce decree will reflect a divorce granted on the one-year separation.
Hyer v. Bentley (Hall, J.) No. CL08-5115, Dec. 30, 2009; Norfolk Cir.Ct.; Melinda S. Seemar, Ellen E. Carlson for the parties. VLW 010-8-007, 12 pp.
Domestic Relations
Reconciliation - Parties' Intent
Although husband acknowledged he had "accidental sex" with wife after the parties separated in May 2007 and entered into a post-nuptial agreement, a Salem Circuit Court says the parties did not reconcile because the evidence does not show an intent to live together and undertake a "fresh start. "
Husband testified he did not intent to reconcile with wife; that he and wife had "accidental sex" three or four times; that he spent some but not all the weekends in November and December 2007 at wife's home, some of which he slept on the couch, and some of which he spent at least one night back at his own residence; and that he continued to date other women. There was no evidence husband moved his clothing and personal effects back to wife's home, or she to his. There was not sufficient evidence to convince the court the parties were trying to restart their marriage. Husband continued to maintain his separate residence, receive his mail at locations other than where wife lived, and generally lived as a bachelor. Although he gave jewelry to wife, he also gave similar gifts to other women. The parties did not share their finances, open joint banking or credit accounts or share routine duties around the house.
It is true both parties were concerned and working together to try to solve the problems wife's son was having, and that the children hoped, and maybe even believed, that husband and wife were getting back together. But the evidence did not bear that out. Wife failed to prove there was a reconciliation.
Baba v. Baba (Doherty, J.) No. CL 08-307, Dec. 22, 2009; Salem Cir.Ct.; Samuel J. Lazzaro, Easter Moses for the parties. VLW 010-8-004, 2 pp.
Negligence
Slip & Fall - Construction Site - Punitive Damages
A plaintiff who fell onto uncapped rebar in a trench at a strip-mall construction site does not state a claim for punitive damages against defendant construction company, and a Norfolk Circuit Court sustains defendant's demurrer to the punitives claim, with leave to amend.
According to the complaint, defendant did not provide markings or warnings for safety. Plaintiff, while passing through the site, was injured by the rebar, and remained at the site for several hours until EMS extracted him to Virginia Beach General Hospital where the rebar was surgically removed.
Plaintiff alleges defendant had knowledge of the conditions at the site and had knowledge that individuals were crossing the lot. He further alleges that defendant knew that injury to those crossing the lot could result from the conditions on the construction site. While these facts may state a claim for negligence, they do not rise to the level required to sustain a claim for punitive damages. Even construing all facts and inferences in the light most favorable to plaintiff, there is insufficient basis to conclude that defendant's conduct was willful or wanton.
While defendant knew or should have known that the uncapped rebar was dangerous, the plaintiff does not plead sufficient facts to show that defendant intentionally left the rebar uncapped with knowledge that there was a strong probability of injury to trespassers. Failure to mark the site sufficiently with warnings or otherwise inform trespassers of possible risk does not constitute a conscious disregard of the rights of trespassers on the site. Therefore, a reasonable jury could not conclude that the defendant's conduct was so wanton as to show a conscious disregard for the rights of others.
Demurrer sustained, with leave to amend.
Miller v. P.G. Harris Construction Co. (Poston, J.) No. CL09-3666, Dec. 21, 2009; Norfolk Cir.Ct.; Andrew Bender, Robert E. Travers IV for the parties. VLW 010-8-001, 4 pp.
Real Estate
Inverse Condemnation - Street Closings - Business Access
A property owner and business operator on the property state a claim for inverse condemnation under the Virginia Constitution for the city of Norfolk's four-month closure of Duke Street for construction or repair of public utilities that prevented reasonable access to the property, but they do not state an inverse condemnation claim for additional street closures allegedly for hotel construction, a Norfolk Circuit Court says.
The primary question here is whether petitioners state a valid claim for inverse condemnation. This question breaks down into three disputed issues: 1) whether petitioners properly alleged ownership of private property for the propose of an inverse condemnation claim; 2) whether petitioners allege a taking or damaging of their property; and 3) whether petitioners allege that respondent's taking or damaging was done for public uses.
While petitioners successfully allege sufficient facts to meet the "ownership of private property' and "taken or damaged" requirements of a claim for inverse condemnation, they fail to allege that the taking or damaging on York Street was for public uses. Therefore, petitioners do not state an actionable inverse condemnation claim with respect to the city's actions on York Street.
Conversely, petitioners do state a valid claim for inverse condemnation to the extent that respondent's closure of Duke Street damaged petitioners' easements for ingress and egress to petitioners' property on York Street. This allegation satisfies the "Taken or damaged" requirement of an inverse condemnation claim for the purpose of withstanding a demurrer. Petitioners also claim the closure of Duke Street, and hence, the damaging of their easement, was for a public use, road maintenance, and therefore petitioners do state a valid claim for inverse condemnation with respect to the Duke Street closure. This court overrules the city's demurrer with respect to petitioners' claim that respondent inversely condemned petitioners' property through its restrictions of Duke Street.
Petitioner Mary Houmis owns real property located at 227 York Street and petitioners James Close and Irene Close were long-term tenants of the property, operating the Monticello Antique Shop Inc. since 1982. Petitioners allege multiple street closings. Beginning in October 2007 and lasting through August 2008, the city started to restrict access to York Street to accommodate construction of the Marriott Residence Inn on Brambleton Avenue. Beginning in August 2008 and lasting through May 2009, the city closed portions of York Street and Duke Street for construction. Beginning in July 2008 through November 2008, the city closed Duke Street.
Petitioners allege the city closed York Street to accommodate the construction of the Marriott Residence Inn. This allegation does not fall within the definition of "public uses" in Article I, Section 11 of the Virginia Constitution or Va. Code § 1-219.1 , and therefore, petitioners fail to allege the property was taken or damaged for a public use. Because of this, the court sustains respondent's demurrer with respect to all claims regarding York Street.
On the other hand, petitioners alleges the closure of Duke Street was for the purpose of the construction or reparation of public utilities. Section 1.219.1 provides that the term "public uses" includes the acquisition of property where the property is taken for construction, maintenance or operation of public facilities by public corporations; the term "public facilities" includes roads and streets; and the term "public corporations" includes "any incorporate municipality" within the commonwealth. Thus, petitioners do allege that Duke Streets' closure was for public uses and consequently, the court overrules respondents' demurrer with respect to petitioners' Duke Street claims.
Petitioners state an inverse condemnation claim for the city's four-month closure of Duke Street that allegedly damaged the property in that the closure, which was for construction or reparation of public facilities, prevented reasonable access to the property during that time. This meets the requirements pursuant to Article I, Section 11 of the Virginia Constitution . Petitioners' claims with respect to York Street, however, fail to meet the requirements for an inverse condemnation claims because petitioners do not all ege these actions on York Street were for a public use.
Close v. City of Norfolk (Burrell, J.) No. CL 09-4055, Dec. 23, 2009; Norfolk Cir.Ct.; Adam D. Melita, City Att'y Office; Joseph T. Waldo for the parties. VLW 010-8-003, 13 pp.
