Properties – Contracts – Business

WHEN READING THE DESCRIPTIONS OF THESE PAST CASES, PLEASE KEEP THIS IN MIND:

1)  THE OUTCOME OF A PARTICULAR MATTER DEPENDS ON A VARIETY OF FACTORS UNIQUE TO THAT CASE.;  AND

2)  CASE DESCRIPTIONS ARE NOT INTENDED TO GUARANTEE OR PREDICT ANY SIMILAR OR PARTICULAR RESULT IN THE FUTURE AND YOU SHOULD NOT ASSUME THAT A SIMILAR RESULT CAN BE OBTAINED IN A LEGAL MATTER OF INTEREST TO YOU.

Oral Contract to Convey Land – Dead Man’s Statute – Real Property

Estate of a bother and uncle who left no will and was survived by five sisters, two nieces and nephews defended against a claim for Specific Performance Of Oral Contract to Convey Land brought by the deceased’s domestic partner who claimed a right of survivorship and 100% ownership of a townhouse property.

The surviving partner alleged in the complaint that he was unable to be present for closing on the property and so Decedent purchased and titled it under his name only. The surviving partner alleged that they agreed to jointly own the property. However, for the next thirty years until his death, the decedent made no will bequeathing and no deed gifting his sole ownership and title. No written document was ever prepare or signed and dated memorializing this alleged oral contract to convey land.

The complaint alleged the partners each would contributed toward the purchase and improvement of the townhouse but whether payments to decedent by the surviving partner were rent or mortgage payment was called into question. After decedent died, surviving partner vacated the townhouse that was set to be sold by the estate and filed a memorandum of lis penden to stop the sale of the townhouse. The parties then agreed to allow the sale to go forward and entered a Consent Order that property’s sale proceeds were held in escrow by the Clerk of the Court pending resolution of the suit.

Virginia Code § 8.01-397 (commonly known as the “Dead Man’s Statute” proscribes that no judgment or decree shall be rendered against and estate based only on uncorroborated testimony. (protecting an estate against the hazard of spurious claims when the deceased is incapable of testifying. Virginia Supreme Court in Virginia Home for Boys and Girls v. Phillips, 688 S.E.2d 284, 279 Va. 279 (2010) was determinative on the issue. That case involved a nephew’s testimony that he had a kitchen table conference with his aunt and uncle who promised him their farm when they both died, if he worked it for them during their lifetime. Even though the nephew’s testimony was found to be credible, the Supreme Court held that no judgment or decree could be rendered against the estate based only on uncorroborated testimony of the person asserting ownership. Similarly, in this case, the testimony of the surviving partner that a conversation took place where he and the decedent decided to jointly own this townhouse with right of survivorship was not enforceable where there was no will, no deed, no writing and no corroboration of such an agreement by anyone other than the plaintiff.

Breach of Contract – Long-Term Care Insurance Policy

Client developed a gradual and progressive brain disease that left him blind, with severe dementia leaving him disoriented, prone to agitation, fright, and combativeness when suddenly moved or manhandled and as a result, he required total and specialized care and assistance for his impairments and placed in a quiet environment at a small alternative care facility better capable of meeting his needs that provided him with by consistent, competent staff/care.

Ten years earlier, when client was healthy, a prominent national insurance company issued client a long-term care insurance policy which provided for 24 hour-a-day care and services to support needs resulting from inability to perform activities of daily living and/or cognitive impairment. However, the insurance company now refused to pay for these long-term benefits claiming the alternate care facility where client was placed did not meets all the requirements as an Alternate Care Facility pursuant to the policy and client’s devoted wife was forced to pay these expenses ($9,500.00 per month) out of their dwindling savings to keep him in the facility.

Suit was filed in Arlington County Circuit Court and removed to federal court, the United States District Court for Eastern District of Virginia by motion of the insurance company. Medical evidence was developed through medical physicians and geriatric care management personnel, addressing care and facility issues and discussion of terms such as, nursing home care, hospice care etc. and other terms of art.

The case was eventually settled in favor of client whereby the insurance company paid client (reimbursed) for all past benefits were paid in full and care for client at the alternative care facility continued until his passing, relieving his devoted widow of these healthcare expenses.

Corporation – Equal Shareholders – Judicial Dissolution – Liquidation

Equal owners of a business who do not plan a method of resolving deadlock that may occur between or amongst them, such as entering a buy-sell or shareholders agreement, expose their business to a suit for dissolution and complete liquidation.

Such was the case in a suit for judicial dissolution of the corporation under Virginia Code §13.1 – 747(A)(1)(a) involving two equal shareholders of medical services corporation with no buy-sell or shareholders agreement when they organized this “S” corporation. A circuit court judge (bench trial) had to declare that the shareholders were deadlocked in the management of the corporate affairs and unable to break the deadlock and the business could no longer be conducted to the advantage of the shareholders. The Court ordered the corporation to be dissolved and a delineated a plan for its liquidation.

Following the trial before the Circuit Court, two days of evidentiary hearings were held by a Commissioner in Chancery who was charged with identifying and valuing the corporation’s cash, tangible personal property, inventory, accounts receivable, to make a recommendation as to the disposition of its lease, and to determine if there existed any other assets owned by the corporation.

Unauthorized Access to Bank Safety Deposit – Jewelry and Cash Lost

Claim against bank and spouse by the estate of a deceased wife whose husband forged a signature card and gained unauthorized access and opened his wife’s bank safety deposit box, once just before her death and once immediately after her death. Thereafter, the executor of the deceased wife’s estate lawfully opened the box and found a large sum of cash and jewelry were missing.

Commercial Lease Dispute – Real Property – Declaratory Judgment

Landlord suit against two owner medical clinic tenant for declaratory judgment and breach of commercial lease/contract involving the interpretation terms involving time of the essence, notice to quit, and failure to pay Consumer Price Index rental increases were at issue. At trial, the presiding judge found as a matter of law that the lease was null and void ab initio (from the beginning) under Virginia Code § 13.1 -613 when it was discovered that tenant medical clinic was not incorporated and an owner signed the lease representing it was incorporated. The court’s ruling left the tenants in the position of having no valid lease. Facing eviction, the tenants settled with the landlord, paying rental increases, the landlord’s attorney’s fees and costs and entering another lease to include as tenants, the clinic’s newly formed corporation and the two owners as personal guarantors of the new lease.

University – Employment Discrimination – Sex-Based – Full Professorship

Represented female university professor successfully in sex discrimination claims that she was not being promoted to full professor status like male professors of less or equal qualifications and experience. Following a hearing on the matter, the university’s board of trustees reversed their initial decision and awarding full professorship.

Breach of Contract – Independent Contractor – IT Services

Contractor performed 2,452 hours of work for IT company but was compensated for only a fraction of the hours of work he performed. IT company owed Contractor over $130,000 for services rendered. Defendant IT company was evasive and uncooperative during initial negotiations for settlement. Defendant IT company refused client’s proposed settlement of 90% in lieu of litigation. After filing suit, moved for default judgment when defendant failed to answer complaint. Just prior to motion, defendant IT company settled for 90% ($124,000) of the total amount owed to Contractor.

Suit for Partition and Sale of Property – Tenancy in Common

Three siblings inherited their deceased mother’s home (owned in fee simple) and thereby became tenants in common of the property. Only one sibling, lived on the property and paid no rent. A physical division of the property into three parcels was not legally possible. A suit for partition and sale property was instituted by one of the siblings in Arlington County Circuit Court, seeking division of the property by sale for the common benefit of all the siblings. Partition by sale of the property would have been the only equitable solution. On the eve of such proceeding, the siblings reached an agreement that allowed the sibling residing there to obtain financing, to purchase the other siblings shares of the property, own it solely, and remain living there.

Insurance Contract / Bad Faith /Failure to Defend – Uninsured Motorist Claim

Federal court case against State Farm Automobile Insurance Company for failure to defend its insured and pay a $40,000 default judgment against uninsured motorist. Insurance company eventually settled for treble damages, $120,000.

Defense of Conversion of Property and Unjust Enrichment Claims

Defense of lawsuit for conversion of property and unjust enrichment arising from dispute over the ownership of a used car co-owned and titled in the name of employer/liquor store owner and his employee. The employee offered to sign over the title of the car and pay his former employer $2,000.00, if the employer would dismiss the suit. Employer refused to settle and insisted the case go to trial. After a three day trial in Circuit Court, and the employer spending thousands of dollars in attorney’s fees, the jury awarded the employer the car title which the employee was already willing to sign over, $83.00 for the towing charge and nothing for his unjust enrichment claim.

Civil Suit – Breach of Contract – Heating and Air Conditioning Contractor

Suit and settlement of contract action by homeowner against contractor for faulty installation of heating and air conditioning equipment that was improperly sized, providing inadequate temperature differential required by terms of the contract and industry standards and codes.