Category Archives: Legal Terminology

Serial Suers and Vexatious Litigants: Can Courts Prevent Someone From Filing a Lawsuit?

The vexatious litigant is a problem that civil litigation attorneys very likely encounter at least once during their careers.  It is a well-accepted precept that courts exist, in part, for citizens to seek redress for their claimed civil wrongs.  But can a person abuse the privilege?  The Supreme Court of Virginia held that a person can indeed abuse that privilege, in its June 8, 2017 opinion in Dora L. Adkins v. CP/IPERS Arlington Hotel LLC, Record No. 160685. While not a typical case involving an appeal on the merits, the Adkins decision was written upon a petition for a rehearing …

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Be Careful With That Power of Attorney!: Arbitration Clauses and Nursing Home Lawsuits

On May 15, 2017, the Supreme Court of the United States handed down its opinion in Kindred Nursing Centers, L.P. v. Clark.  This case addressed the issue of whether an agent acting pursuant to a power of attorney could bind an estate to an arbitration agreement. The facts of the case were simple.  Beverly and Janis, family members of Joe and Olive respectively, each held their family member’s respective power of attorney.  Joe and Olive moved into a nursing home operated by Kindred Nursing Centers, L.P. (“Kindred”).  Beverly and Janis used their family members’ powers of attorney to sign an …

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Posted in Court Opinions, Elder Law Disputes, General, Legal Terminology, Long Term Care Facilities, New Laws, Power of Attorney Disputes \ Comments Off on Be Careful With That Power of Attorney!: Arbitration Clauses and Nursing Home Lawsuits

UPDATE: Can an Intended (and Disappointed) Beneficiary Still Sue a Will’s Drafter?: The General Assembly of Virginia Enacts a Statutory Fix to the Thorsen Decision

Back in the summer I wrote a post discussing the impacts of the Thorsen decision by the Supreme Court of Virginia.  In Thorsen, a testator wanted to leave her estate to a charity if her daughter did not survive her.  The lawyer erred in drafting the will.  When the testator died several years later (with her daughter having predeceased her), the testator’s property went to other people, contrary to her intentions.  The charity, the intended beneficiary, sued the lawyer, asserting breach of contract for legal services. Thorsen was notable in that it held that Virginia common law permits intended third …

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Left At The Altar?: Who Owns The Engagement Ring When Love Goes Wrong?

You’ve found the right partner; you’ve found the right ring; and your fiancee accepted.  Now imagine your fiancee unexpectedly breaks off the engagement.  You are devastated.  Your friends tell you there are plenty of fish in the sea.  You’ve returned her favorite CDs and she’s returned your college sweatshirt. But who keeps the engagement ring? The Virginia Supreme Court recently decided this very question in the case of McGrath v. Dockendorf, No. 160262, 2016 WL 7243097 (Va. 2016).  In McGrath, Ethan proposed to his fiancee Julia with an impressive two-carat, $26,000.00 engagement ring. Julia accepted and took the ring.  About …

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Virginia Supreme Court Issues New Ruling Regarding Guardianship Orders

A recent Virginia Supreme Court case highlights the importance of using precise language in an order appointing a guardian, as well as ensuring that when a guardian files suit on behalf of a ward, the guardian sues in the correct capacity. The Virginia Supreme Court recently handed down its ruling in Lopez-Rosario v. Habib, 785 S.E.2d 214 (2016), which dealt with an appeal from the Fairfax County Circuit Court. The Court confronted the issue of whether the trial court properly dismissed a medical malpractice claim on the ground that the plaintiff filed suit in her own name, despite the fact that …

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Using “Nonmarital Child” Instead of “Illegitimate Child”

Estate litigation cases often feature children born outside of wedlock. In those instances, estate litigators face a choice as to what terminology they should use to characterize such children. Selecting the appropriate phrase is not just important for purposes of pleadings and motions (to be read by a judge), but also for purposes of trying a case in front of a jury. Throughout American history, society has used three main terms to refer to such persons: “bastard children”, “illegitimate children”, and “nonmarital children”. The phrase “illegitimate child” is quickly (and thankfully) falling out of acceptance. There are many reasons why …

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