Virginia State Supreme Court upholds sanctions in will contest Original will is found among files belonging to lawyer imprisoned for fraud

By Virginia Lawyers Weekly

BridgeTower Media Newswires

RICHMOND, VA - A misguided legal challenge to a probate order warranted an award of sanctions against a disgruntled heir, the Supreme Court of Virginia ruled last month.

The court upheld a $12,480 award of attorney's fees against a corporation owned by one of three sons of businessman Charles M. Carrithers, who died in 2009. The probate litigation was prompted by the discovery of Carrithers' original will among the files of an imprisoned former lawyer convicted of fraud.

The justices said sanctions were appropriate because the heir "persisted in a repetitive pattern of conduct" aimed at retaining a third of his father's "substantial estate." The court said the son's lawyer "launched a frontal assault on the entire process" through a multi-faceted challenge to a clerk's probate order, while many of the same issues were already on appeal.

The court's Feb. 21 unpublished order is RC VA Lands LLC v. Smith.


Three-way split

Carrithers died at age 84 at his home in Florida and was survived by three sons and five grandchildren, according to his obituary. His death prompted what the high court termed a "lengthy, contentious family dispute" over his estate.

A photocopy of a will was discovered, but it was refused probate by the Gloucester County Circuit Court. The will would have established a trust providing for equal shares to the sons and the grandchildren. Since there was no valid will recognized, the estate was parceled out to the three sons under the rules for intestate distribution.

The grandchildren sought to establish Carrithers' "lost will" in 2011, but Judge Michael E. McGinty denied the bid.


Original will surfaces

The original will was located in 2014 among papers that once belonged to disbarred lawyer and real estate investor Troy A. Titus, according to attorney Carl Eason of Virginia Beach. Eason, co-counsel for the administrator of Carrithers' estate, said the FBI had released Titus' files.

Titus is serving a 30-year sentence in federal prison for taking nearly $10 million from clients and investors in a series of fraud schemes. He was disbarred in 2005 and convicted in 2009.

The original will was admitted to probate in 2017, starting a process of forcing the sons to return their distributions to the estate to be redistributed under the terms of the will.

The sons sought an appeal, but the Supreme Court refused to hear their case in the fall of 2017.


Petition with many claims

While the appeal was pending, one of the Carrithers sons took a different approach. Using a company he owned, he filed in circuit court what was styled as a petition for appeal of the clerk's probate order.

Represented by Blanche M. Garber of Newport News, the company RC VA Lands LLC contended the probate appeal was needed to prevent the probate order from becoming final and thereby mooting the pending appeal at the high court.

The new pleading was based on advice from the company's appellate attorney.

"He advised me that if we did not file an appeal of the clerk's order, it would become within six months from date of entry a judgment in rem, and it would be incontestable," Garber told the justices at oral argument in January.

But Garber's pleading went beyond a simple challenge to admission of the will, the Supreme Court observed. The prayer for relief consisted of 11 requests.

"This case never should have been filed," said John F. Sawyer, co-counsel for the personal representative of the Carrithers estate. "I practically fell out of my chair when I saw it come across my computer," he told the justices.

But at least two justices seemed to think the expansive new action might not have been filed in bad faith.

"She may be just as wrong as she can be, but it may very well be that it's the only way to preserve the ability to say that 'You were wrong,'" said Chief Justice Donald W. Lemons, echoing similar comments from Justice D. Arthur Kelsey.

Individual misgivings aside, the court decided Garber's new pleading went too far.

"The Petition attempted to relitigate the entire case that had just been litigated to finality in the circuit court and was pending on appeal before this Court instead of focusing on an argument solely related to an appeal under Code § 64.2-445," the Supreme Court said in its order.


'Frivolous' litigation

The court said Garber "engaged in unnecessary frivolous litigation" and "made frivolous assertions lacking an objectively reasonable basis."

Garber's actions were "exacerbated" by the fact that the RC VA Lands company was wholly owned by one of the sons, a party to all of the previous cases, the court said.

"[The son] was well aware of the rulings made by the circuit court, yet he persisted in a repetitive pattern of conduct targeted at retaining one-third of the decedent's substantial estate. That pattern of conduct permeated every aspect of the Petition," the high court said.

While justifying the award of sanctions, the Supreme Court limited the award to the claimed fee amount of $12,480. The trial court had imposed $20,000 in sanctions, but its wording of the order labeled that amount as attorney fees, which the high court deemed inconsistent with the actual fee claim.

The justices affirmed the circuit court order in all other respects.

Garber declined to comment other than to say that she and her client would seek rehearing by the Supreme Court.

Garber's representation of one of the Carrithers sons led to an agreed Virginia State Bar reprimand in 2015. The bar said Garber repeatedly brought the same cause of action that was barred by res judicata "causing her and her client to suffer repeated adverse awards of attorneys' fees and sanctions, as well as repeated rebukes from the courts," according to an agreed disposition.

Published: Tue, Mar 19, 2019