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D'Ambrosio v. Wolf

Supreme Court of Virginia

February 22, 2018





         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 ...

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