D'Ambrosio v. Wolf

• Decision Date: 22 February 2018
• Docket Number: Record No. 170521
• Citation: 809 S.E.2d 625
• Parties: James D'AMBROSIO v. Jane WOLF, et al.
• Court: Virginia Supreme Court

295 Va. 48

809 S.E.2d 625

James D'AMBROSIO

v.Jane WOLF, et al.

Record No. 170521

Supreme Court of Virginia.

February 22, 2018

Dirk McClanahan (Zach Miller ; Trevor Pusch ; McClanahan Powers, Vienna, on briefs), for appellant.

Kimberley Ann Murphy, Fairfax (Jennifer P. Stevens; Hale Ball Carlson Baumgartner Murphy, on brief), for appellees.

PRESENT: All the Justices

OPINION BY JUSTICE WILLIAM C. MIMS

In this appeal, we consider whether a challenge to the validity of a will is barred by claim preclusion, issue preclusion, or judicial estoppel.

I. Background and Procedural History

In June 2012, Nancy D'Ambrosio ("Nancy") suffered a stroke, resulting in the need for twenty-four-hour in-home care. In September 2013, following the death of her husband, she signed a durable general power of attorney naming her son, James D'Ambrosio ("D'Ambrosio"), as her attorney-in-fact. In February 2014, she executed a will, which divided her estate between D'Ambrosio and her two daughters, Jane Wolf and Electra

D'Ambrosio ("appellees"). In May 2014, she signed a durable medical power of attorney appointing D'Ambrosio as her agent.

"[D]ue to a contentious and mistrusting relationship" between appellees and D'Ambrosio, appellees petitioned the circuit court to, among other things, appoint a guardian ad litem for Nancy, declare that Nancy was incapacitated, declare that Nancy's powers of attorney were void, appoint appellees as co-guardians for Nancy, and appoint an independent third party to serve as the conservator of Nancy's estate. In a counterclaim, D'Ambrosio sought a declaratory judgment that the powers of attorney were valid. He also cross-petitioned for the appointment of a conservator and guardian for Nancy.

Appellees ultimately filed a third amended petition seeking appointment of a guardian and conservator for Nancy. But rather than reasserting his counterclaims in response, D'Ambrosio pled, as an affirmative defense, that the circuit court should deny appellees' petition under the doctrine of "[un]clean hands" because appellees "procured and participated in [the February 2014] will for [Nancy] without the knowledge of [D'Ambrosio]." After extensive discovery, the circuit court entered a consent order finding that Nancy "is completely and permanently incapacitated" and appointing a neutral third-party to serve as her guardian and the conservator of her estate. The order also voided Nancy's powers of attorney and dismissed D'Ambrosio's counterclaims with prejudice.

Nancy died in July 2015, and the February 2014 will was admitted to probate. D'Ambrosio filed a complaint seeking to impeach the will on the grounds of undue influence and lack of testamentary capacity. Appellees filed a plea in bar, arguing that D'Ambrosio's claims were barred by the doctrine of claim preclusion "[b]ecause the claims asserted in the present action arise from the same conduct, transaction, or occurrence underlying the claims asserted" in the 2014 litigation, "namely [Nancy's] capacity to execute estate planning and life care documents between September 2013 and May 2014." In response, D'Ambrosio argued that he could not have challenged the February 2014 will in the prior litigation because Nancy had not yet passed away and, therefore, claim preclusion did not apply.

The circuit court sustained the plea in bar on the grounds of claim preclusion, issue preclusion, and judicial estoppel. First, it concluded that D'Ambrosio's claim was barred by claim preclusion because he could have, as Nancy's attorney-in-fact, challenged the will during Nancy's lifetime via a declaratory judgment action. Next, the court concluded that issue preclusion barred D'Ambrosio's claim because the court in the prior litigation necessarily found that appellees exercised no undue influence. Lastly, the court ruled that under the doctrine of judicial estoppel, it "should not have to consider arguments from [D'Ambrosio] regarding [Nancy's] lack of testamentary capacity for the 2014 Will" when he "previously argued with vigor that [Nancy] was capable of making her own decisions and was able to muster the capacity to sign the 2014 Durable Power of Attorney." We granted D'Ambrosio this appeal.

II. Analysis

On appeal, D'Ambrosio challenges each of the three grounds upon which the circuit court based its decision. We address them in turn.

A. Claim Preclusion

Res judicata involves both claim and issue preclusion. Funny Guy, LLC v. Lecego, LLC , 293 Va. 135, 142, 795 S.E.2d 887, 890 (2017). Both of these preclusive effects, while distinguishable, require the party asserting res judicata as a defense to show by a preponderance of the evidence that the claim or issue should be precluded by a prior judgment. Bates v. Devers , 214 Va. 667, 671–72, 202 S.E.2d 917, 921 (1974) (citing City of Portsmouth v. City of Chesapeake , 205 Va. 259, 270, 136 S.E.2d 817, 826 (1964) ).

In the Commonwealth, claim preclusion is encompassed by Rule 1:6, which states,

[a] party whose claim for relief arising from identified conduct, a transaction, or an occurrence, is decided on the merits by a final judgment, shall be forever barred from prosecuting any second or subsequent civil action against the same opposing party or parties on any

claim or cause of action that arises from that same conduct, transaction or occurrence, whether or not the legal theory or rights asserted in the second or subsequent action were raised in the prior lawsuit, and regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended, or the particular remedies sought.

Rule 1:6(a). Under this rule, "a final judgment forecloses ‘successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.’ " Lee v. Spoden , 290 Va. 235, 245, 776 S.E.2d 798, 803 (2015) (quoting Taylor v. Sturgell , 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) ). Thus, parties may not "relitigat [e] ... the same cause of action, or any part thereof which could have been litigated" in the previous action. Bates , 214 Va. at 670–71, 202 S.E.2d at 920–21 ; Rhoten v. Commonwealth , 286 Va. 262, 272, 750 S.E.2d 110, 115 (2013).

For this reason, we have repeatedly stated that "if the underlying dispute produces different legal claims that can be joined in a single suit ... they should be joined unless a judicially-recognized exception to res judicata exists." Funny Guy , 293 Va. at 150, 795 S.E.2d at 895. However, when the underlying conduct, transaction, or occurrence produces multiple legal claims, not all of which can be asserted at the time of the initial litigation, claim preclusion will not prohibit the previously unmaintainable claims from being raised in subsequent litigation. Id. at 142, 795 S.E.2d at 890 ("Determining which claims should have been brought in earlier litigation largely depends on which claims could have been brought." (quoting Kent Sinclair, Guide to Virginia Law & Equity Reform and Other Landmark Changes § 11.2, at 247 (2006) (emphases in original))). For example, claim preclusion will "not bar a claim that does not accrue prior to the litigation triggering the bar." Funny Guy , 293 Va. 135, 159, 795 S.E.2d 887, 900 (2017) (emphasis added); see also Lawlor v. National Screen Serv. Corp. , 349 U.S. 322, 328, 75 S.Ct. 865, 99 L.Ed. 1122 (1955) ("While the 1943 judgment precludes recovery on claims arising prior to its entry, it cannot be given the effect of extinguishing claims which did not even then exist.").

In the present case, D'Ambrosio argues that he could not have maintained the present challenge to Nancy's will during the

2014 litigation because she was still alive. He notes that we have long held that the "essential characteristic of a will is that it operates only upon and by reason of the death of the maker." Spinks v. Rice , 187 Va. 730, 740, 47 S.E.2d 424, 428 (1948) (citation omitted). Until that point, it is "ambulatory and revocable." Id. at 740, 47 S.E.2d at 428 (citation omitted). The testator "has parted with no rights nor divested [herself] of any interest in or control over [her] property." Id. at 740, 47 S.E.2d at 428–29. Thus, "[w]hile [the testator] lives, no beneficiary has anything more than a bare expectancy and no person has suffered any injury or damage as a result of [her] tentative dispositions." Thorsen v. Richmond SPCA , 292 Va. 257, 278, 786 S.E.2d 453, 465 (2016) (quoting Van Dam v. Gay , 280 Va. 457, 462, 699 S.E.2d 480, 482 (2010) ). "Because of this mutability and bare expectancy," no cause of action based upon a will "accrues" to a testamentary beneficiary "prior to the death of the testator." Id.

Since Nancy was alive during the 2014 litigation, D'Ambrosio's interest in the tentative dispositions of her will was nothing more than a bare expectancy, and he had suffered no injury. Thus, the present cause of action had not accrued, and claim preclusion cannot bar it from being raised here. Nevertheless, appellees argue that as Nancy's attorney-in-fact, D'Ambrosio could have challenged the validity of the will via a declaratory judgment action in the 2014 litigation.

Declaratory judgment actions are designed "not to give parties greater rights than those which they previously possessed, but to permit the declaration of those rights before they mature." Kent Sinclair, Virginia Remedies §§ 4–1[A], 4–3, at 4–2 to 4–4, 4–13– to 4–16 (5th ed. 2016). Thus, by definition, they can allow for actions on claims before they accrue. See Code § 8.01–191 (declaratory judgment statutes "afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor").

However, to resolve the case before us, we need not decide whether D'Ambrosio could have maintained a declaratory judgment action to challenge Nancy's will during her lifetime.¹ Even if he...