Supreme Court of Virginia

Transcription

1 c... ~3 "\]15Ulj ~~~~~~~~~~~~~~~~~~~~~RI= CH~M~ OND4 VARI;II la IN.THE Supreme Court of Virginia ' AT RICHMOND RECORD NO JUNE A. DADE, Appellant, v. JOHN W. ANDERSON, ADMINISTRATOR, etc.,~ al, Appellees. JOINT APPENDIX Barry W. Norwood Attomey At Law 3000 ldlewood Avenue P.O. Box 7268 Richmond, VA (804) David E. Constine, m MAYS & VALENTINE P.O. Box 1122 Richmond, VA (804) Counsel for Appellant Counsel for Appellees LAWYERS PRINTING COMPANY 7th &Franklin Bldg. Richmond,Virginia (804)

2 TABLE OF CONTENTS Appendix Page Petition for Leave to Intervene filed July 1, Demurrer filed July 1, Amended Motion for Declaratory Judgment filed August 28, Order entered October 7, o o o 0 11 Notice of Appeal filed October 21, Assignments of Error

3 VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF RICHMOND John Marshall Courts Building JUNE A. DADE, ) ) Plaintiff, ) ) v. ) ) JOHN W. ANDERSON, Administrator of ) the Estate of Thomas Gwendol ) Dade, ) ) Defendant. ) PETITION FOR LEAVE TO rv.. ~. ~ " :") r''. HY m~ ~... ' ~~ INTERVENE Petitioners Zina M. Rambo ( 11 Rambo 11 }, Gwendolyn E. Barnes ("Barnes") and Thomasine c. Dade ( 11 Dade 11 }, by counsel, hereby petition this Court for leave to intervene as defendants in the Motion for Declaratory Judgment filed by plaintiff June A. Dade, and as grounds for their petition state as follows: 1. On or about June 16, 1992, plaintiff June A. Dade filed a Motion for Declaratory Judgment pursuant to Section of the Code of Virginia, requesting that this Court 11 adjudicate the rights of the plaintiff to receive compensation from the Estate of Thomas Gwendol Dade for healthcare services" which were allegedly provided by plaintiff to her husband, Thomas G. Dade. 2. Thomas G. Dade died intestate on April 22, An administrator of his estate is John W. Anderson, the sole defendant named in the Motion for Declaratory Judgment.

4 3. Plaintiff June A. Dade is the widow of Thomas G. Dade and the stepmother of the petitioners. She is also an administrator of the estate of Thomas G. Dade. 4. Rambo, Barnes and Dade are individuals residing in Clovis, New Mexico, Reston, Virginia and Charlottesville, Virginia, respectively. They are the only children of Thomas G. Dade. 5. As the only children of Thomas G. Dade, Rambo, Barnes and Dade are entitled to two-thirds of his estate pursuant to sections and of the Code of Virginia. Accordingly, Rambo, Barnes a nd Dade are necessary parties under Virginia law to the Motion for Declaratory Judgment, which seeks to diminish the assets of the Estate and concomitantly the statutory entitlements of petitioners by obtaining for June A. Dade a payment in the amount of $69, Petitioners have substantial interests in the subject matter of the litigation and their absence will impair and impede their ability to protect those interests. WHEREFORE, Rambo, Barnes and Dade respectfully request that this Court grant them leave to intervene as defendants in the Motion for Declaratory Judgment so that they may assert defenses which are germane to the subject matter of the suit. (A copy of petitioner's demurrer is attached hereto as Exhibit A). ZINA M. RAMBO, GWENDOLYN E. BARNES and THOMASINE C. DADE By Of Counsel 2 2

5 David E. Constine, III Mays & Valentine P. 0. Box 1122 Richmond, Virginia (804) CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Petition for Leave to Intervene was mailed this 1st day of July, 1992 to Barry w. Norwood, Esquire, 3000 Idlewood Avenue, Richmond, Virginia and to John w. Anderson, Esquire, 16 South 2nd Street, Richmond, Virginia

6 VIRGINIA: EXHIBIT A IN THE CIRCUIT COURT OF THE CITY OF RICHMOND John Marshall Courts Building JUNE A. DADE, Plaintiff, v. Case No. LU JOHN W. ANDERSON, Administrator of the Estate of Thomas Gwendol Dade, Defendant. DEMURRER OF DEFENDANTS ZINA M. RAMBO, GWENDOLYN E. BARNES AND THOMASINE C. DADE Defendants Zina M. Rambo, Gwendolyn E. Barnes and Thomasine c. Dade, by counsel, hereby demur to the Motion for Declaratory Judgment on the grounds that it fails to state a claim upon which relief can be granted under Virginia law; Plaintiff, June A. Dade, alleges that pursuant to an implied contract, she is owed $69, from the estate of her husband, Thomas G. Dade, for healthcare services allegedly provided by her to her husband, "for his benefit, welfare and comfort." (Paragraph 2, Motion for Declaratory Judgment). Under Virginia law, a spouse cannot recover under an implied contract theory for services rendered to their spouse, regardless of whether or not such services arise out of the marital relationship. See Alexander v. Kuykendall, 192 Va. a, 63 S.E.2d 746 (1951 ). Such services are presumptively gratuitous and the implication of a contract would violate the public policy of the Commonwealth of Virginia. 4

7 WHEREFORE, defendants respectfully request that their Demurrer be sustained; that the Motion for Declaratory Judgment be dismissed; and that they be awarded their costs and expenses incurred herein. ZINA M. RAMBO, GWENDOLYN E. BARNES and THOMASINE C. DADE By Of Counsel David E. Constine, III May s & Valentine P. o. Box 1122 Richmond, Virginia (804) CERTIFICATE OF SERVICE I hereby certi fy that a true copy of the foregoi ng Demurrer was mailed this 1st day of July, 1992 to Barry W. Norwood, Esquire, 3000 Id1ewood Avenue, Richmond, Virginia and to John w. Anderson, Esquire, 16 South 2nd Street, Richmond, Virginia

8 VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF RICHMOND John Marshall Courts Building JUNE A. DADE, Plaintiff, v. JOHN W. ANDERSON, Administrator of the Estate of Thomas Gwendol Dade, Defendant. ' i İ _ I / 1 ~ { \.. ~ p '... ~ > ~ -. I.. ',. I ~ - ~! ~ l By :.:: : JJ.C.. J DEMURRER OF DEFENDANTS ZINA M. RAMBO, GWENDOLYN E. BARNES AND THOMASINE C. DADE Defendants Zina M. Rambo, Gwendolyn E. Barnes and Thomasine C. Dade, by counsel, hereby demur to the Motion for Declaratory Judgment on the grounds that it fails to state a claim upon which relief can be granted under Virginia law. Plaintiff, June A. Dade, alleges that pursuant to an implied contract, she is owed $69, from the estate of her husband, Thomas G. Dade, for healthcare services allegedly provided by her to her husband, "for his benefit, welfare and comfort." (Paragraph 2, Motion for Declaratory Judgment). Under Virginia law, a spouse cannot recover under an implied contract theory for services rendered to their spouse, regardless of whether or not such services arise out of the marital relationship. See Alexander v. Kuykendall, 192 Va. 8, 63 S.E. 2d 746 (1951). Such services are presumptively gratuitous and the implication of a contract would violate the public policy of the Commonwealth of Virginia. 6

9 WHEREFORE, defendants respectfully request that their Demurrer be sustained; that the Motion for Declaratory Judgment be dismissed; and that they be awarded their costs and expenses incurred herein. ZINA M. RAMBO, GWENDOLYN E. BARNES and THOMASINE C. DADE -----,- V~_ff~tJ;4 :_ By Of Counsel! _tic - David E. Constine, III Mays & Valentine P. o. Box 1122 Richmond, Virginia (804) CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Demurrer was mailed this 1st day of July, 1992 to Barry w. Norwood, Esquire, 3000 Idlewood Avenue, Richmond, Virginia and to John w. Anderson, Esquire, 16 South 2nd Street, Richmond, Virginia

10 V I R G I N I A IN THE CIRCUIT COURT OF THE CITY OF RICHMOND JUNE A. DADE, v. JOHN ANDERSON, ADMINISTRATOR OF THE ESTATE OF THOMAS GWENDOL DADE Plaintiff Defendants AMENDED MOTION FOR DECLARATORY JUDGl1ENT The plaintiff, June A. _Dade, by counsel, moves this Court to issue a declaratory judgment pursuant to Virginia Code Section as to the rights of the plaintiff by reason o f the following facts: 1. On March 25, 1989, Thomas Dade was re ndered encephalopathic as a result of anoxic brain damage while in medical care of Richmond Memorial Hospital, individually a nd trading as Jerome Frost Smith Dialysis Center. 2. Between the date of Thomas Dade's anoxic b rain damage and November 4, 1990, with the exception of those days during which Mr. Dade was a hospital inpatient, June Anita Dade provided healthcare services necessary for his benefit, welfare and comfort. 3. The services referred to. in paragraph 2., supra, were not such as would be required to be provided by an incapacitated person's spouse as a result of the marital relationship per se. 4. June Anita Dade is entitled to be compensated for these healthcare services which she provided to Thomas Dade in 8

11 lieu of provision of same by healthcare professionals. 5. Had health care professionals provided the services referred to in paragraph 2., supra, such services would have a value of $69, On January 7, 1991, Richmond Memorial Hospital agreed to pay $800, in full and complete settlement of claims by Thomas Gwendol Dade which sums were paid with Court approval. 7. The services provided by the plaintiff and the value thereof was a factor in determining the amoun t settlement. of 8. There are sufficient funds in the Estate of Thomas Gwendol Dade to pay for services rendered by the plaintiff. WHEREFORE the plaintiff moves this Court for a declaratory judgment adjudicating the rights of the plaintiff to receive compensation from the Estate of Thomas Gwendol Dade for healthcare services provided to Thomas Gwendol Dade. Trial by Jury is requested. BY: ( _( J~NE A. DADE Barry W. Norwood Attorney for Plaintiff 3000 Idlewood Ave. Richmond, Virginia I,. ~) {; COUNSEL I ~ 9

12 CERTIFICATE I hereby certify that a copy of the foregoing Amended Motion For Declaratory Judgment has been mailed to John Anderson, Esquire, 16 South Second Street, Richmond, Virg.hli.a , and Malcolm P. Friddell, Esquire, P. 0. Box 1122, Richmond,.AJ!~ ; '1 _-(-- Virginia , this ;~ day of ~Y~ '

13 VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF RICHMOND John Marshall Courts Building OCT JUNE A. DADE, v. Plaintiff, Case No. LU JOHN W. ANDERSON, Administrator of the Estate of Thomas Gwendol Dade, Defendant. ORDER On August 28, 1992, the parties appeared, by their counsel, to argue (i) the Petition to Intervene filed by Petitioners Zina M. Rambo, Gwendolyn E. Barnes and Thomasine c. Dade seeking to intervene as defendants; (ii) plaintiff's Motion for Leave to Amend its Motion for Declaratory Judgment; and (iii) a Demurrer filed by petitioners Rambo, Barnes and Dade. John W. Anderson did not appear in person or by counsel, but notified the Court in advance that he did not wish to be present. UPON CONSIDERATION of the oral arguments of counsel and the brief submitted in support of the Demurrer, it is hereby ORDERED, ADJUDGED and DECREED as follows: 1. There being no objection to the Petition to Intervene, it is hereby granted; 2. There being no objection to the plaintiff's Motion to Amend the Motion for Declaratory Judgment, it is hereby granted and the Amended Motion for Declaratory Judgment is deemed filed; 1.1.

14 3. The Demurrer shall be treated has having been filed as to the Amended Motion for Declaratory Judgment; and 4. For the reasons stated from the bench, the Demurrer is sustained and the Amended Motion for Declaratory Judgment is dismissed. It is further ORDERED that for the reasons stated from the bench, plaintiff's Motion for Leave to File a Second Amended Motion for Declaratory Judgment is denied. ENTER: /.() / 7 / 9,;?,/? ~ - Judge ~~ ~ I ask for this: David E. Constine, III Mays & Valentine P. 0. Box 1122 Richmond, Virginia (804) Seen: counsel for defendants Gwendolyn E. Barnes, Zina M. Rambo and Thomasine c. Dade. Jd2J~ John W. Anderson, Esquire 16 south 2nd street Richmond, Virginia

15 Seen and objected to: B~, Esquire 3000 Idlewood Avenue Richmond/ Virginia ~nsel for plaintiff. Objections to the ruling of L:he Court as s tated in court "r.e summarized as follows: The plaintiff objects to the ruling of the Court on the grounds that it is a question of fact as to whether the plai11t i ff can recover under the facts pled. Pursuant to Va. Code Secti on a married woman may contract with her husband or anyone else. The contract may be express or implied, written or oral. As early as 1899, the Courts have recognized the right of a spou8e to be comp~nsated under an implied contract. Browning v. Browning, 2 Va. Dec. 710, 36 S.E. 108 (1899). The Supreme Cour t of Virginia in Warren Trucking Co. v. Chandler, 221 va , 2? 7 S.E. 2d. 488 (198l)recognized that a spouse may be compensatnd for medical services performed for the other spouse. The Cou r t specificaly rejected the argument that such services constitute a duty and are presumed to be gratuitously rendered. supra at page The Court set forth criteria for the spouse to prove in order to prevail. supra at page While the Judge in a ju r y trial may personally find it morally or religously distastefu l that a wife may sue her husband under an implied contract, ll e cannot rule as a matt0r of law that a jury cannot find otherwis < ~. Simply stated, in every implied contract case certain facts mu!3 t be: proven for the Plaintiff to prevail. Under Va. Code Sect.i on it does not matter if the parties are mc1rried or strang01::;. Purther, if the jury believe that the value o f the wi fe's services were used by husband in determining the size of the compensation paid or the value was reembursed to husband, then the husband or his estate is estopped from arguing that wife should not be teembursed this amount. A husband who sues or makes claim against a tortfeasor for r eembu rsement of the amount of his wife's claim, may not collect this amount then argue that she is not entitled to the funds when she in turn makes claim again~3t husband. A husband cannot use the value of his wife's services to establish the value of his case, then deny her claim once he hns been paid. Alexander v. Kuykendall. 192 Va. 8, 6:1 S.E.2d 746 (1951) relied on by the defendants and the Court no longer is applicable. There has been an evolution of public policy since 1951 wh ich now recognizes that services between spouses are not presumptively gratuitous. It is a question of fact and not of lnw as to wh0ther services are compensabl e. 13

16 ,, i 'I I. I V I R G I N I A IN THE CIRCUIT COURT OF THE CITY OF RICHMOND JUNE A. DADE, v. JOHN ANDERSON, ADMINISTRATOR OF THE ESTATE OF THOMAS GWENDOL DADE, et al Plaintiff Defendants NOTICE OF APPEAL TO THE HONORAB LE RANDALL G. JOHNSON, JUDGE OF THE AFORESAID COURT: COMES NOW the plaintiff, June A. Dade, by counsel, Barry w. Norwood, and notes her appeal from the Order of this Court entered October 7, 1992, sustaining the demurrer of the defendants and dismissing the plaintiff's act~on. No transcript will be filed and the Clerk is asked to prepare the record and 1 I I forward same to the Supreme Court of Virginia. RESrECTFULLY SUBMITTED, JUNE A. DADE II Barry W. Norwood Attorney for Plaintiff 3000 Idlewood Ave. Richmond, Virginia 23221,, 1.4

17 CERTIFICATE I hereby certify the following: 1. The name and address of the appellant is: June A. Dade, 2705 Brook Road, Richmond, Virginia, The name, address and phone number of counsel for the appellant i s : Barry W. Norwood, Esquire, 3000 Idlewood Ave. P. 0. Box 7268, Richmond, Va , (804) The name s of the appellees are: John w. Anderson, Administrator of the Estate of Thomas Gwendol Dade, Zina M. C. Dade. Rambo, Gwendolyn E. Barnes, and Thomasine 4. Counsel for the appellees Rambo, Barnes and Dade is: David E. Constine,III, Esquire, P.O. Box 1122, Richmond, Virginia, 23208, (804) John w. Anderson, Administrator of the Estate of Thomas Gwendol Dade, is unrepresented. 6. A true copy of the foregoing Notice of Appeal was mailed the _{;... t day of October, 1992, to John w. Anderson, Esq. and David E. Constine, III, Esq., and to the Clerk of the Supreme Court of Virginia. rry W. Norwood 1.5

18 ASSIGNMENTS OF ERROR I. THE TRIAL COURT ERRED IN FINDING THAT THERE CAN NOT BE AN IMPLIED CONTRACT FOR SERVICES BETWEEN SPOOSES. II. THE TRIAL COURT ERRED IN RULING THAT WHERE A SPOUSE IS PAID BY A TORTFEASOR FOR THE SERVICES PERFORMED BY HIS OR HER SPOUSE FOR MEDICAL TREATMENT, THE SPOUSE WHO PERFORMED THE SERVICES IS NOT ENTITLED TO BE PAID FOR THE MEDICAL SERVICES BY HIS OR HER SPOUSE. III THE TRIAL COORT ERRED IN REFUSING TO ALLOW THE PLAINTIFF TO AMEND HER PLEADINGS. 16

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