Opinion
CIVIL NO.: CL18-4089
05-01-2019
JEANETTE R. WILLIAMS, Plaintiff, v. GARY WILSON, et ux., Defendants.
ORDER
This action came before the Court on April 30, 2019, on the demurrer of Gary Wilson. The plaintiff appeared by counsel, Ellen M. Porter, Esq. Scott C. Hartin, Esq. appeared for Gary Wilson; he had previously appeared for Rosa Wilson, the wife and co-defendant of Mr. Wilson, on her demurrer.
The complaint alleges, in brief, that Rosa Wilson engaged the plaintiff as a caretaker for Mr. Wilson and did not disclose his volatile and violent nature, and that the plaintiff suffered physical and emotional injuries from assaults and other misbehavior by Mr. Wilson. Mr. Hartin demurred for Mr. Wilson on two grounds: first, the plaintiff has pleaded a claim of negligence for what she clearly describes as intentional acts, and, second, that "Mr. Wilson's condition rendered him incapable of formulating the requisite intent required for the alleged intentional acts." Demurrer at ¶ 26.
The Court declines to rule on Mr. Wilson's demurrer because he is not a proper party.
The plaintiff alleges in her complaint that "Gary Wilson suffers from a traumatic brain injury . . . that impairs him cognitively and emotionally, and due to which he is incapable of controlling anger and impulsive behaviors," at ¶ 6; that he has "dementia," at ¶ 22.
Based on these allegations, and as the complaint alleges both defendants were residents of Norfolk at the relevant times, the Court reviewed its records to determine if a guardian or conservator had been appointed for Mr. Wilson. By order entered August 3, 2016, in Rosa M. Wilson v. Gary Wilson, Civil No. CL15-13061, the court appointed Catholic Charities of Eastern Virginia ("Catholic Charities") as his guardian and conservator, and made the finding that Mr. Wilson "is relieved of all authority and power to manage and perform legal acts in respect to his person and estate, such power and authority being vested in the guardian and conservator." Order, pg. 2, ¶ 2. The guardianship is not limited. The order was modified by an order of May 24, 2018, Civil No. CL15-13061-01, but the modification has no effect on this proceeding.
Mr. Hartin, on behalf of Mr. Wilson, has no standing to assert the demurrer. Lopez-Rosario v. Habib, 291 Va. 293, 785 S.E.2d 214 (2016).
Pursuant to Code of Virginia § 64.2-2025, Catholic Charities is to defend this action after 10 days' notice of its pendency. The Court has observed that the plaintiff unsuccessfully attempted service on Catholic Charities in July and November of 2018, and served it through the State Corporation Commission in January of 2019, but Catholic Charities has not yet appeared. Perhaps counsel should request the Court to issue a rule against Catholic Charities to show cause, if any it can, why it has not appeared to defend Mr. Wilson.
This could probably be avoided if Catholic Charities simply authorized Mr. Hartin to appear on its behalf; counsel submitted an agreed order allowing Ms. Porter to file an amended complaint naming Catholic Charities as a defendant and allowing Mr. Hartin to file defensive pleadings on its behalf. After all, there are no allegations against Catholic Charities in the complaint, and, the Court assumes, the Wilsons' insurer has probably retained Mr. Hartin. --------
Endorsements are waived pursuant to Rule 1:13. The Court has mailed copies of this order to counsel for the parties, and to Catholic Charities at 5361-A Virginia Beach Boulevard, Virginia Beach, Virginia 23462.
ENTER: May 1, 2019
/s/_________
Everett A. Martin Jr. Judge