Eads v. Clark

Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Carrico, S.J.
RANDALL A. EADS
OPINION BY
v. 	Record No. 051228 	SENIOR JUSTICE HARRY L.CARRICO
June 8, 2006
DAVID CLARK, GUARDIAN OF THE
PERSON AND ESTATE OF ROY DALLAS
JOHNSON, INCOMPETENT, ET AL.
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Henry Vanover, Judge
The dispositive question in this case is whether the trial
court erred in refusing to allow Randall A. Eads (Eads), a
licensed attorney, to intervene in a suit he filed while counsel
for the guardian of an incompetent person. 	Finding that the
trial court did not err, we will affirm its judgment.
The record shows that on October 26, 1994, David Clark
(Clark) was appointed the guardian of the person and estate of
his uncle, Roy Dallas Johnson (Roy), an incompetent person who
had been hospitalized in state institutions over the course of
several years. 	Clark employed Eads to file a bill of complaint
to sell two parcels of land Roy owned to pay past and future
medical bills incurred for his care and treatment. 	On January
24, 1995, Eads filed the bill of complaint.
The case lingered on the trial court’s docket for several
years without disposition. 	Then, on May 18, 2000, the
Commonwealth of Virginia, Department of Mental Health, Mental

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Retardation and Substance Abuse Services (the Department), filed
a bill of complaint for the enforcement of two judgment liens
the Department held against Roy’s land, one for $19,564.00 and
the other for $19,748.00. 	The trial court ordered that the
Department’s action be consolidated for trial with the action
filed by Eads on behalf of Roy.
The matter was referred to a commissioner in chancery to
determine, inter alia, the owners of the land described in the
bills of complaint and the liens existing on the land. 	The
commissioner reported on July 8, 2002, that Roy was the owner of
the land and that it was subject to the two judgment liens held
by the Department. 	The commissioner reported further that he
had been asked to rule on the validity of a deed of gift dated
June 30, 1994, and recorded August 9, 1995, from Roy to Mary
Ruth Johnson, one of his two sisters, conveying one of his two
parcels of land. 	The commissioner also stated he had discovered
a second deed of gift that had been signed by Roy on a blank
date in 1994 and recorded May 20, 1997, conveying his other
parcel of land to Virginia Ellen Johnson, his other sister.
Clark did not learn about the existence of the two deeds until
after he filed his bill of complaint. 1 The commissioner found
that Roy was incompetent when these deeds were signed and,
1 Mary Ruth Johnson is Clark’s mother and Virginia Ellen
Johnson is his aunt.

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therefore, that both were invalid and should be set aside. 	The
two sisters filed exceptions to the commissioner’s report, but
the exceptions were overruled.
On September 22, 2003, Eads filed an attorney’s lien “for
attorney fees in the sum of $7,500.00 and costs incurred in the
prosecution of this action in the sum of $1,500.00 for
professional services rendered herein.” 	Eads asked the clerk of
court to “file this lien in the Court file.”
Counsel for the Department and counsel for Mary Ruth
Johnson and Virginia Ellen Johnson submitted a proposal to Eads
that the Department would accept $35,000.00 in settlement of the
two judgment liens against Roy’s land and that a special
commissioner would be appointed to convey the property to Mary
Ruth Johnson and Virginia Ellen Johnson for $35,000.00. 	Eads
objected to this private sale, and on August 27, 2004, the trial
court appointed Eads and Nicholas B. Compton, Roy’s guardian ad
litem, as special commissioners to sell Roy’s two parcels of
land at public auction.
On October 6, 2004, Clark discharged Eads as his counsel
because Eads allegedly had misrepresented to the court that he,
Clark, objected to the sale of Roy’s land to Mary Ruth Johnson
and Virginia Ellen Johnson. 	On October 8, 2004, the court
entered an agreed order that “instated” A. Benton Chafin, Jr.
(Chafin), as counsel for Clark in the stead of Eads.

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The same order set aside and vacated the court’s decree of
sale entered on August 27, 2004, and the special commissioners
appointed by that decree were ordered to cancel the public sale
of Roy’s land. 	On December 14, 2004, the court entered an order
approving the settlement of the Department’s liens and the sale
of Roy’s land to Mary Ruth Johnson and Virginia Ellen Johnson
for $35,000.00, plus $5000.00 for the cost of advertising the
cancelled public sale. 	These amounts were deposited in court,
and Chafin was appointed special commissioner to prepare and
execute deeds completing the sale and to disburse the proceeds
of the sale.
On December 15, 2004, Eads filed a motion to intervene,
stating that he had not been paid for his services as Clark’s
counsel from 1994 through October 8, 2004, and that payment
should come from the “res” of Roy’s property. 	On January 3,
2005, Eads filed a motion to suspend the order of December 14,
2004, alleging that the sale of Roy’s land for $35,000.00 was
substantially less than its fair market value.
Also on January 3, 2005, Lyndon Baines Johnson, nephew of
Roy, filed with the court an offer to purchase Roy’s property
for $125,000.00. 	Later that day, the court entered an order
suspending the order of December 14, 2004, and setting Eads’
motion to intervene for hearing.

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The hearing was held on April 8, 2005, and the court
announced its decision from the bench. 2 On May 6, 2005, the
court issued an order embodying its oral rulings, denying Eads’
motion to intervene, vacating the January 3, 2005 order, and
restoring the December 14, 2004 order in full force and effect.
The order also appointed a special commissioner to issue the
appropriate deeds to Mary Ruth Johnson and Virginia Ellen
Johnson. 	On May 24, 2005, the court entered a final order
dismissing the case and removing it from the docket.
Eads cites former Rule 2:15 of the Rules of Court to the
effect that “a new party may by leave of court file a pleading
to intervene for the purpose of asserting any claim germane to
the subject matter of the proceeding.” 3 Eads argues that his
motion to intervene was germane to the subject matter of the
proceeding, i.e., protecting the interest of the incompetent and
being paid for the professional services rendered.
Eads says that as former counsel for Clark, he had a duty
to object to the “‘sweetheart deal’” proposed by counsel for the
Department and counsel for Mary Ruth Johnson and Virginia Ellen
Johnson. 	Eads asserts that Clark’s action in steering the
2 Roy Dallas Johnson died on April 15, 2005.
3 Former Rule 2:15 was an equity rule. 	It was repealed
effective January 1, 2006, when present Rule 3:1 became
effective, providing that “[t]here shall be one form of civil
case, known as a civil action.” 	The provisions of former Rule
2:15 are now contained in present Rule 3:14.

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property to favored family members created suspicious
circumstances and suggested that Clark and others involved in
the proceeding were more interested in their own welfare than
the welfare of Roy.
However, at the time Eads’ motion to intervene was heard,
he was no longer counsel for Clark; he became a mere bystander
when he was discharged by Clark and replaced by Chafin. 	Eads
had neither the duty nor the right to interfere in the decision
of what was in Roy’s best interest. 	Thus, he is left only with
his claim for counsel fees and, in our opinion, that claim is
not germane to the subject matter of the proceeding at issue
here.
[A] new party may not intervene and assert a claim in a
pending suit unless the claim is ‘germane to the subject
matter of the suit.’ 	Rule 2:15. 	In order for a stranger
to become a party by intervention, he must ‘assert some
right involved in the suit.’ 	Lile’s Equity Pleading and
Practice at 91 (3rd ed. 1952).
Layton v. Seawall Enterprises, Inc., 231 Va. 402, 406, 344
S.E.2d 896, 899 (1986) (emphasis in original).
Rule 3:19 is a specific Rule enacted by this Court to
govern the orderliness of proceedings . . . .[ 4 ] 	[T]he
Rule’s history includes a strong adherence to limiting
4 Former Rule 3:19 was a law rule with language identical to
former Rule 2:15. Former Rule 3:19 was repealed effective
January 1, 2006, when Rule 3:1 became effective, providing that
“[t]here shall be one form of civil case, known as a civil
action.” 	The provisions of former Rule 3:19 are now contained
in present Rule 3:14.

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intervention to those parties who are legitimately
plaintiffs or defendants because the nature of their claim
includes some right that is involved in the litigation.
Hudson v. Jarrett, 269 Va. 24, 34, 606 S.E.2d 827, 832 (2005).
We concluded in Hudson that “[t]he claims of the
intervenors here fail to meet these conditions.” 	Id. 	The same
conclusion must be reached with respect to Eads’ claim here.
The subject matter of this proceeding after Eads was discharged
was the validity of the contract entered into by the guardian
with new counsel on the one hand and Roy’s two sisters on the
other. 	The claim asserted by Eads was not a right involved in
that proceeding. 	See Hudson, 269 Va. at 34, 606 S.E.2d at 832,
and Layton, 231 Va. at 406, 344 S.E.2d at 899. 	Indeed, to the
contrary, had he not been discharged, he would have opposed the
approval of the contract.
In addition to his assignment of error that the trial court
erred with respect to his motion to intervene, Eads assigned
five other errors. 	However, he agreed during oral argument that
if we find the trial court did not err in denying intervention,
we could not reach the five other assignments of error, so we
will not consider them.
For the reasons assigned, we will affirm the judgment of
the trial court.
Affirmed.