1. first amended motion for judgment, filed august 22

TABLE OF CONTENTS

1. FIRST AMENDED MOTION FOR JUDGMENT, FILED AUGUST 22, 1991 WITH EXHIBITS------------------------------------ 1

2. DEFENDANTS' ANSWER AND GROUNDS OF DEFENSE, FILED OCTOBER 17, 1990-------------------------------------- 16

3. AFFIDAVIT OF MARIA COGGINS FILED AS EXHIBIT A TO BRINCEFIELD, HARTNETT & ASSOCIATES' MOTION TO RECONSIDER THE COURT'S DECISION TO STRIKE PLAINTIFF'S EVIDENCE, FILED OCTOBER 11, 1991---------------------- 20

4. AFFIDAVIT OF JAMES C. BRINCEFIELD, JR. FILED AS EXHIBIT B TO BRINCEFIELD, HARTNETT & ASSOCIATES' MOTION

I

TO RECONSIDER THE COURT'S DECISION TO STRIKE PLAIN-TIFF'S EVIDENCE, FILED OCTOBER 11, 1991--------------- 22

5. TRANSCRIPT OF HEARING BEFORE THE HONORABLE LEWIS D. MORRIS ON OCTOBER 17, 1991---------------------------- 24

6. FINAL ORDER ENTERED NOVEMBER 26, 1991 WITH PLAINTIFF'S MEMORANDUM OF OBJECTIONS TO FINAL ORDER--------------- 52

7. ASSIGNMENTS OF ERROR---------------------------------- 59

V I R G I N I A:

IN THE CIRCUIT COURT FOR THE CITY OF ALEXANDRIA

BRINCEFIELD 1 HARTNETT & ASSOCIATES 1 P. C. a Virginia Professional Corporation 526 Kinq Street, suite 423 ~exandria, Virginia 22314

Plaintiff

vs.

WILLIAM C. NEWBOLD 1 BILLY C. NEWBOLD and ELWANDA J. NEWBOLD 1510 12th Street North Arlington, Virginia 22209

Defendant

) ) ) ) ) ) ) ) At Law No. 900668 ) ) ) )

.) )

' )

FIRST AMENDED MOTION FOR JUDGMENT

COMES NOW the Plaintiff, Brincefield, Hartnett & Associates,

P.C., by counsel, and moves for Judgment against the Defendants,

William c. Newbold, Billy c. Newbold, and Elwanda J. Newbold, on

the grounds and in the amounts as hereinafter set forth:

1. Plaintiff is a firm of attorneys, organized and operating

as a Virqinia Professional Corporation, headquartered in the City

of Alexandria, Virginia.

COUNT I

BREACH OF CONTRACT

2. Plaintiff is a successor in interest to the Law Offices

of James c. Brincefield, Jr. and has assumed all of its predeces-

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sors' outstanding obligations and receivables. Defendants• debts

are due and owing to Plaintiff.

3. In June, 1984, Plaintiff entered into a written agreement

with Defendants to provide Defendants with certain professional

services.

4. Plaintiff provided Defendants with said services between

June, 1984 and March 31, 1986 and billed Defendants for the same.

5. Defendants have failed and refused to pay Plaintiff in

·· full for said services. I

:; 6. Defendants are currently indebted to Plaintiff, for said '

i ; i ! services, in the amount of seven Thousand Three Hundred sixty-Five i !

and 68/100 Dollars ($7,365.68) plus interest thereon at the rate

of Eight percent (8%) per annum from the 1st day of March, 1986

until paid, as shown by the itemized statement of said account and

bills to Defendants attached hereto as Exhibits A and B.

7. Plaintiff has made repeated demands for payment from

Defendants but Defendants have failed and refused to pay Plaintiff

the balance due on said account.

COUNT II

BREACH OF CONTRACT

8. Plaintiff incorporates by reference the allegations set

for in Paragraphs 1-7.

9. On or about August 1, 1985, Defendants executed a Demand

Promissory Note with Plaintiff in the sum of Eiqht Thousand Three

Hundred Sixty-Nine and 11/100 Dollars ($8,369.11), with interest·

BH&A\Collecti\Newbold\0605AMFJ.Pid 2

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i I I ;j at the rate of Twelve percent (12%) per annum until paid. j I

Said

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Note is attached as Exhibit c hereto.

10 • Plaintiff has demanded payment thereon. See Exhibit D

attached hereto.

11. Defendants have failed and refused to make any such

payments.

WHEREFORE, Plaintiff demands Judgment against the Defendants

in the following amounts:

(a) Six Thousand Three Hundred Sixty-Nine and 11/100

Dollars ($.§.,369.11) plus interest at the rate of Twelve

percent (12%) per annum from the 1st day of August, 1985

until paid and

(b) Seven Thousand Three Hundred Sixty-Five and 68/100

($7,365.68) plus interest at the rate of Eight percent

(8%) per annum from the 1st day of March, 1986 until

paid. Plaintiff further demands its attorneys' fees and

the costs of these proceedings.

BRINCEFIELD, HARTNETT & ASSOCIATES, P.C. By counsel

BRINCEFIELD, HARTNETT & ASS CIATES, P.C.

By: ruce L. Adel n

526 King Street, Suite 423 Ale~andria, Virginia 22314 (703) 836-2880

~~ 8H&A\CoUacti\Newbold\0605AMFJ.Pid

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CERTIFICATE OF SERVICE

~ereb~~egtffY that a true copy of the foreqoinq was

~ f/l.J/..-U.~ , this~ day of

-----------' 1991 to Georqe LeRoy Moran, Esquire, 3141

q Fairview Park Drive, Suite 640, Falls Church, Virginia 22042. :i !i !I II :! ! 1

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1 BH&A\COII8C11\Newbalcf,0605AMFJ.Pid 4

.lAMES C. IIRINCE,.IELD,.IR. • JOHN A. HARTNETT• • aAUCE L. ADELSON .. a ROIIEAT M. BURLINGTON• ~AULA. CAPPELLO ELIZABETH L. HILEMAN• • 0

aAASARA A. HYNAK • USA E. WELLS

LAW OFFICES

BRINCBJPJELD, ILulTNB'l''l' Be .AssOCI.A.TBs, P. c. SUITE 423

526 KING STREET

ALEXANDRIA, VIRGINIA 22314

. (703) 836•2880

FAX (703) 549•1924

01' COUNSEL

KEVIN T. ~ITZMOAAIS a RENDA GRANTLAND• •

aUATON 8. HANBURY, JR.

PLAINTIFF'S EXHIBIT

tT: AL.SO AOMITT£0 IN: .,.ARYL.ANO ~ISTRICT OJ' COLUM.IA eNCW YO"K •UCHICIA .. ______ .;.,

·.

February 27, 1990

Billy c. and Elwanda J. Newbold 1510 - 12th Street, North, f702 Arlington, Virginia 22209

STATEMENT OF ACCQONTS

PRINCIPAL AMOUN'r OF DEMAND NOTE AS OF AUGUST 1, 1985

INTEREST DUE FROM AUGUST 1, 1985 TO FEBRUARY 28, 1990 AT STA'l'ED RATE ( 12 t per annum)

TOTAL DUE ON DEMAND NOTE AS OF 3/1/90

BALANCE DUE ON OPEN ACCOUNT AS OF FEBRUARY 28, 1986

INTEREST FROM KARCH 1, 1986 TO FEBRUARY 28, 1990 AT 12t per annum

TOTAL DUE ON OPEN ACCOONT as of 3/1/90

TOTAL DOE ON BOTH ACCOUNTS as of 3/1/90

,,

22.999

$8,369.11

$4,§02.95

$12.972.06

$7,365.68

$3.513.36

$10.879.04

S23 , 851 •. 1.0

5

JAa.-£S C. eAINCtrlt~D • .IR.• ..... s:,.,.,a "- lo4t'ClCll.AIIi•

JOMN R. HAA1NCT1 •

•MtM•t.A, VIAC:INIA AND

DIS1.1C1 or COL.UM8U~ •••& •M£ ... , A, VIAGINIA

0 CU!1AeC1

or Ce»L.u .. ••• ANt· .. ,.,."L.ANI:' •••e

LAw or rae£!:.

JAMES c. BRJNCEFIELD, '"lH. 2~1 SOU1H ALF"A£0 StRCI:t

ALI:XANDRIA, VIRGIN I. 22314f

(703) 836•2880

September 16, 1985

Billy c. and Elwanda J. Newbold 1510 12th Street, North, 1702 Arlington, Virginia 22209

PLAINTIFF'S EXHIBIT

(3 Or COUN~l L 1(1

CC't .. r"'• r'I\INN

6 $1NCLAIA. P. C.

ALCXANDAIA, VIRGINIA

Case No. 2175

FOR PROFESSIONAL SERVICES RENDERED FROM -~8~/l~/-=8~5 __ THROUGH 8/31/85

---=:.2~·--'--- Hours at $ 75.00 /hour ---------- Hours at $ __________ ~/hour

Disbursements

$ $

202.50

Document Reproduction ( ); Long Distance Telephone ( ); Postage ( )J Courier ( )J Travel ( ); Miscellaneous ( )

To~al Char.ges This Period

Balance Due From Invoice(&) Dated Interest Accrued on Previous Balance*

Payment(&) Received

BALANCE NOW DUE/(CREDIT BALANCE)

8/12/85

DESCRIPTION OF SERVICES RENDERED THIS PERIOD:

$ 4.18

$ 206.68

$ 8, 369.11 $

$

$ 8,575.79

~elephone conference vitb client re new suit for past due condo fees; reviewed file and discussed same with associate; telephone confe:ence with client re suit for condo fees; telephone conference with Rosemary Roberts condo fees; telephone conference with Elizabeth Walker at Thomas and Piske re court bearing, telephone conference vitb Barbara Krueger at Thomas and Fiske re court bearing.

8 ·• *Due to the high cost of borrowing funds to finance accounts receivable, we

... -~~s_e.:r:ve the J"iCJht to charae interest at the rate of 1-1/2 percent per mo~h

JAall 1:5 C. 8R&NC:triCLCI • .JF4 •

"""l=o1M~ Y.:. l""c:LtL&.6ot-•

JO"N A ... AATN£T1 •

•MrMBl•, YIAC.INIA ANI)

0 1 STAIC't or COLI.'.,.&IA lA•!

•M£M8CP, YIAGINIA, 01tTIIoC1

0' CO~U.,.IA ANO MIIAhANt 8AA5

LAW orr acts

JA)JES c. BRJNCEFJELD, JR. 221 SOU1H ALrAtD STR££1

AL£XA~DPIA, VIRGINIA 2Z3141

(703) 836·2eeo

October 10, 1985

Mr. and Mrs. Billy c. Newbold 1510 12th Street, N. i702 Arlington, Virginia 22209

or 't-UN! t& TO

C Cll"t r r•, CIUtol tol

6 SINC:LAtA, P. C:.

ALCXANDAIA, VIAGtNtA

Case No. 22175

FOR PROFESSIONAL SERVICES RENDERED FROM 9-l-85

4 o Hours at $ 75.00 /hour ~~------ Hours at $----~~----/hour

Disbursements

THROUGH

$ $

Document Reproduction (X): Long Distance Telephone ( )J Postage ( )r Courier ( )r Travel ( )J Miscellaneous ()

. Total Charges ~his Period

Balance Due From lnvoice(s) Dated Interest Accrued on Previous Balan_c_e~;~----~~---------

9-16-BS 8/85 9/85

Payment(s) Received



$

$

$ $

$

•

9-30-85

300.00

1,00

301.00

8.575,79 80,77 82.84

9.040.40

ltevieved file for insurance policy and bylaws, outlined amendments; drafted Notice ana Motion for leave to amend; reviewed and revised draft of Notice and Motion to Amend.

•Due ~o the high cost of borrowing funds to finance accounts receivable, we ri,;~~!k·c ·:·;:.c:.-:: .. .t.\.,.,.. -~"' ...,!_"',~· A- c.-.1 ---- .t-•----.&n -.a. .. "'- --.a.-. _ _. ,. _'Ill l"'t ______ ..._ --- -~""

LAW or races

JAMES (~. BRlNCEPJELD. JR.

JA.,.£5 C •• AINCtr'IELD,JR.•

... AATt4A W McCLCLLAN'

... OMN a. HARTNETT •

,..,flll8r", YI.C,III14 ANt'

t-•~T-tCT or CC~\.'..,P•• .....

OMtiii.LA, v••C.II••A, Cti~AtC:t

221 $0&..11 H ALrACD STRCCT

ALEXANDRIA, VIRGINIA 2231•

(703) e36·2e&c.r

November 14, 1985

('If C".t.:"'l•• A~: M4D\;.A•o0 .... $

Mr. and Mrs. Billy c. Newbold 1510 - 12th Street North, t702 Arlington, Virginia 22209

FOR PROFESSIONAL SERVICES RENDERED FROM 10-1-85

.1~'------- Hours at $ 75.00 /hour Hours at $ /hour ---------- -------------

Disbursements

or COUNilL TO

C:OHtN, ftUNN

6 SINCLAIR, P, C •

AL.CXANOAtA, YIAGU,.IA

Case No. 2175

THROUGH 10-31-85

$ $

127.50

Document Reproduction ( ); Long Distance Telephone ( )J Postage ( ); Courier ( )J Travel ( )J Miscellaneous (x).

~otal Charges This Period

Balance Due From Invoice(s) Dated Interest Accrued on Previous Balance*

Pay.ment(s) Received

BALANCE NOW DUE/(CREDIT"BALANCE)

10-10-85


$ 31.00

$

$ $

$

$

158.50

9,040.40 85.85

9,284.75 ~-L ====~ou;

Telephone conference re Deed of ~rust and insurance; telephone conference with Roberts re insurance; prepared Motion requesting leave to amend; telepho~e conference with Roberts re insurance.

i ,, 8

•Due ~~ the high cost of borrowing funds to finance accoun~• receivable, we ·~.JJ~~ .' :. ...... \. ,;;.~Q.; ~fth.t. ~ t-.o . ~h•r.ae ift~ftrtut~ ai:. -t.he rate £Sf 1-112 Derr!DI'l't. ~~r month

JAY.tS t I!'C:Io,;:tr•CLt·, .u· •

MA~T"I -· ~cC~t~-·N· JO .. ,_ 1'. M.4A1 ... E"TT •

LAW OrrtC.[!:•

,)AJ.l]!;S c. BJlJNCEJ"JELD, t.lH. 221 SOUTH ALrf:~tc, STRCCT

ALr"ANC\RIA. VIRGINI/. iZ314

(703.• e ~~ • i ~. f' Cr

December 20, 1985

o• co .. r.:.r. '" CO..,C"i, :'l~o•.,~

£ £,1toiCLA1._, r. C.

""'-t"A .. D .. IA, YIAGU~•A

• .,r.,acr.. v•DG'"''" a•.;r O·fofD·~1 C•' 'O~v ..... ,. •·~:~ Case No. 2175

Mr. and Mrs Billy c. Newbold 1510 - 12th Street North, •702 Arlington, Virginia 22209

FOR PROFESSIONAL S~RVICES RENDERED FRO~ 11-l-85

3.6 Hours at $~6~o_.~o~o ______ /hour --------- Hours at $ hour --------- Hours at $ hour

Disbursements

THROUGH 11-30-ES

$ __ -.:2=-7::;...:0:..::•;..:0;..:,0 $ ____ _ $ ____ _

Document Reproduction ( ); Lonq Distance ~elephone ()I Postage ();Courier ();Travel ()I Miscellaneous (X)

Total Charges T.his 1eriod

Balance Due From Invoice(&) Dated ll/14/85 Interest Accrued on Previous Balance* Payment(&) Received

BALANCE NOW DUE/ (CREDIT BALANCE)


$ ___ _....8-.;;7...,.~5,.;.0

$ 357.50

$ 9,284.75 $ 17.4'

$ ____ _

$ 9.729.69

Redrafted Motion and amended Bill of Complaint; drafted second set of interroqatories: completed amendments and Motion.

,, 9

*~e to the high cost of borrowing funds to finance accounts receivable, ve reserve the right to charge interest at the rate of 1-1/2 percent per 7A~n+..~ {')1! .·· · ·· .- ru~t ~a;., w:l.thin thirtv davs after ~~ ~A~~ af invoie~ ..

.JAMt!l C BRINC.EFICLD.JIO 1

.. &I»TMA W .. cCL[LLA"''

.JOtolllt R. HART NCT1 •

, .. t .. 8(11, YI .. CINI& &NO

0tST••C'1 or COLL'"'•IA B&AS

. -c .. eca, va•c.•Na&, oasTc;t('t

or COLu .. tt•• ANO ........ "•~o e.&A!t

CORRECTED BILL

LAW orrscts

.. lAMES c. BRJNCEFIELD, JR. 221 SOUTH ALF'RED STRE:ET


(?03) 836•2880

January 31, 1986

Billy c. and Elwanda J, Newbold 1510 - 12th Street, North, f702 Arlington, VA 22209

or c.ou~!.t L 10

COMEN,DUNN

6 SINCLAIR, P. C. •

ALCXA .. DAIA, VIAGI .. IA

Case No. 2175A

FOR PROFESSIONAL SERVICES RENDERED FROM 12-1-85 THROUGH 12-31-85

1.00 hours at $125.00/hour 1.70 hours at $105.00/hour 4.80 hours at $ 75.00/hour 7.45 hours at $ 65.00/hour Disbursements: Document Reproduction, Postage, Travel,

Miscellaneous Total Charges This Period Balance Due From Invoice(&) Dated 12/20/85 Interest Accrued on Previous Balance*


DESCRIPTION OF SERVICES RENDERED T.HIS P~OD:

$ 125.00 $ 178.50 $ 360.00 $ 484.25

s 40.09 $ 1,187.84 $ 9,729.69 .. 71.41

110,988.94

Reviewed file and pleadings; conference with associates re preparation for argument on Motion to Amendl completed interrogatories; revised Motion and Amended Bill of Complalntl organized document• for hearing; dra.fted order and letter and aade changes in Bill of Complaint per •ame; drafted letter to J. Roberta; prepared Amended Bill of Complaint for transmittal to Court: preparation for hearing on Motion to Amend; appearance at bearing re Motion to Amend and prepared argument: drafted order re Motion to Amend and review of notes r• •ame; proofed and revised order re Motion to Amend; conference with associate re status of evidentiary matters.

10 *Due to the high cost of borrowing funds to finance accounts receivable, we reserve the right to charge intereat at the rate of 1-1/2 percent per month on accounts not paid within thirty day• after date of invoice.

•

. ' •" 0 . ··' . . . .. LAW OFFICES

.JANES C. a•tNC£,.11LD, .IlL•

MAaTNA W. McCLELLAN•

~MN a. tu.•tN£TT 1

••r••r•, va•cu•~& uo ... , •. c, or ~u·•·· ~·· -~·•r•, ._..GUll._ Dtat•t~ ., CD&.u•••& AMO .... .,._..0 ~·s

JAMES C. BBINCBPIELD, Ja. Ill SOUTH ALf'ltED aTitEET

ALEXANDRIA, VIRGINIA IIJ14

(7o3) •~•-•••o

Februazy 18, 1986

Billy C. and Elwanda J. Newbold 1510 - 12th Street, North, t702 Arlington, VA 22209

., cou•&eL to COMIN,OUNN

6 IINCU.Ia, ~. C. ALiaANDaaA, VI.GIIIIA

Case No. 217

FOR PROFESSIONAL SERVICES RENDERED PROM 1-1-86 tHROUGH 1-31-86

15.3 Hours at $125.00/hour 29.8 Hours at $105.00/hour Disbursements: Document Reproduction, •ostage,

Travel, Miscellaneous ~otal Charges This Period Balance Due From Invoice(a) Dated Jnterest Accrued on Previous Balance•

BALANCE HOW DUE/ (CREDI'l' JW.llfCE)

DESCRIPTION OF SERVICES JtENDERED !'HIS .DIODI

$ 1,912.50 $ 3,129.00

J 16.50 • 5,108.00

0 .10,188.14 I 124.79

t11,221.73

~rial preparation vith associater ~•viewed file to outline pre-trial tasks; telephone conference vith Kr. ••wbo141 conference with associates and Jlr. Newbold re trial preparation' final trial preparation, conducted trial 1 dictated aemoranc!a tA» fileJ conference with asaociate ~e Motion to Reconsider.

~RIECI'ED BILL AS FOLLOWS:

Balance due per above Credit for promissory note ($8,369.11) Interest credit Corrected balance due

,,

$16,221.73 -8,369.11 - 486.94

' 7.365.68

11 •

•Due to the high cost of borrowing funds to finance accounts receiv-able, we reserve the right t.o charve interest at the zoate of 1-1/2 percent per aonth on accounts not paid vithin thirty day• arter date of invoice. . 1°.

us $8,369.11

DBBD OP TRUST NOTB

PAYABLE ON DEMAND

~LAIN TIFF'S EXHIBIT

v Djpt~ict of 'hl•Dhi•• ........

c t.y/county

...;.;Ai,i;iu,..g .. u_st.-.....1...._. _____ , 1985

FOR VALUE RECEivao, the undersigned (•Borrower•) promiae(s) to pay James c. Brincefleld, Jr. or order, the principal sum of Eight Thousand Three Hundred Sixty-Nine and 11/100 Dollars, with interest on the unpaid principal balance from the date of this Note, until paid, at the rate of twelve percent (12') per annum •. ··Principal and interest shall be payable on demand at 221 south Alfred Street, Alexandria, Virginia, 22314, or such other place as the Note holder may designate.

Time is of the essence hereof. Borrower acknowledges that a delinquency or default hereunder will cause adverse economic consequences to the Note holder by diversion of time, money and personnel which could be better employed in other pursuits. If this Note is refer red to an attorney for collection after dP.fault by Borrower then, in addition to all other remedies pr.ovided for herein, Borrower shall pay (a) all costs incurred by Note holder in enforcing collection hereunder, including reasonable attorney's fees in an amount equal to such attorney's customary hourly rate or Twenty-Five percent (25\) of the total amount collected, whichever is greater, and (b)

:i the interest rate on all sums due and owing hereunder, from the I

,! time when such sums ace rue until they are paid, sha 11 be

'

!I: calculated at the higher of the original rate provided for here in or a rate equal to Two percent ( 2\) above the fluctuating prime rate announced from time to time by sovran Bank or any successor thereto.

Borrower may prepay the principal amount outstanding in whole or in part at any time without penalty.

Borrower agrees to execute such additional documentation as may be requested hereafter: by Note holder to correct any errors, omissions, or imperfections in this Note, specifically including any documents necessary for compliance with any law or governmental regulation. If any law or governmental regulation which applies to this loan and which sets maximum loan charges is finally interpreted so that the interest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits, then (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (b) any sums already collected from Borrower which exceeded permitted limits will be promptly refunded. The Note holder may choose to make this refund by reducing the principal owed under this Note or by making a direct payment to Borrower. If a refund reduces principal, the reduction will be. treated as a partial prepayment.

Borrower and all endorsers and guarantors of this Note hereby acknowledge that they are jointly and severally liable hereunder: they hereby waive any and all applicable Homestead exemptions, presentment, notice of dishonor, and protest andJ2 they hereby submit to the jurisdiction of the Circuit Court o~ the City of Alexandria, Vir9lnia.

Any notice to Borrower provided for in this Note shall be given by mailing such notice by certified mail addressed to Borrower at the Property Address stated below, or to such other address as Borrower may designate by notice to the Note holder. Any notice to the Note holder shall be given by mailing such notice by certified mail, return receipt requested, to the Note holder at the address stated in the first paragraph of this Note, or at such other address as may have been designated by notice to Borrower.

The indebtedness evidenced by this Note is secured by a Deed of Trust having the same date as this Note and reference is made to said Deed of Trust for additional· rights as to the enforcement of the indebtedness evidenced by this Note •

.. ...... '

ewbo Units 602 and 702, •1s10 Condomlnum• Arlington, Virginia Property Address

~"~ ~~(Seal) B wanda J. ew o

This Ps to certify that thla is the Note described in and secured by a Deed of Trust dated August 1, 1985 on property located in Arlington, Virginia. ~ ~~dn

~Notary Pub~ .

My commission expires: ~~If

·• ..

13

"•

.lAMES C. BRINCEF'IELD, .IR. •

.IOHN R. HARTNETT• + 8RUCE L.ADELSON .. a AOBEAT M. BURLINGTON• ltAUL A. CAPPELLO ELIZABETH L. HILEMAN• • 0

8AR8ARA A. HYNAK • USA E. WELLS

LAW OFFICES

BRINCEFIELD, HARTNE~~ & AssociATES, P. c. SUITE 423

526 KING STREET


(703) 836-2880

FAX (703) 549•1924

0,. COUNSEL

KEVIN T. f'ITZMORRIS 8RENDA GRANTLAND ..

8URTON a. HANBURY, JA.

AI.SO AOMITTCO IN: -...AAYLAND ~ISTAICT 0" COI.UMBIA ... cw YOAK IIMICHIGAN

February 28, 1990

Billy c. & Elwanda J. Newbold 1510 - 12th Street, North f702 Arlinqton, Virqinia 22209

Re: Account with Brincefield. Hartnett & Associates

Dear Mr. & Mrs. Newbold:

Enclosed are the followinq documents:

r PLAINTIFF'S ...., ' EXHIBIT

I......._ Q

1. A current statement of your accounts with us;

2. A copy of your Promissory Rote dated August 1, 1985 in the amount of $8,369.11; ·

~ ~ -~ 3 • Copies of our billa to you for services rendered between ~-~epcemee~ 1, 1985 and February 28, 1986.

As you know, the Promissory Rote encompasses the amoUnt due for legal services rendered on your behalf by this firm throuqh July 31, 1985. The amount due for •ervices rendered after that date is included in the amount listed as due on your •open Account• on the enclosed Statement.

You have made no payments on either obligation for over four years. Accordingly, this letter is a demand for payment, pursuant to your Note as well as a demand for payment on your open account. We would be willing to establish a payment plan or to arbitrate the question of the leqal fees rendered after July 31, 1985 with the Bar Association.

You must contact me by the close of business on Karch 16, 1990 to inform me whether you plan to pay your obliC)ation in full or establish a payment plan or arbitrate the dispute. If you have not contacted me by the above date, we will assume that you ·are unwillinq to try to resolve this situation amicably. In that event, we shall proceed to enforce our leqal claims against you in

.,

~- 14

Billy c. ' Elwanda J. Newbold February 21, 1990 Page 2

court. Please recall that if •uit is filed aqainat you, you are obligated to pay the costs of pursuing the auit, including attorney's fees.

Very truly yours

~-James c. Brincafield,

JCBJR:pjc

Enclosures

.•

I

ts

V I R G I N I A :


BRINCEFIELD, HARTNETT & ASSOCIATES, P.C. ) A Virginia Professional Corporation )

) Plaintiff, )

)

"· ) ) WILLIAM C. NEWBOLD and ELWANDA J. )

NEWBOLD, ) )

Defendants. )

Law No. 900668

ANSWER AND GROUNDS OF DEFENSE

COMES NOW your Defendants, William c. Newbold and Elwanda J.

Newbold, by and through counsel, and respectfully submit the

following:

1. With respect to the allegations contained in paragraphs

1 and 2, your Defendants ha"e no knowledge as to the Plaintiff's

organization as a Virginia Professional Corporation, nor do they

ha"e any knowledge of the fact that the Plaintiff is a successor

in interest to the law office of James c. Brincefield, Jr.;

therefore the allegations contained in paragraphs 1 and 2 are

denied and strict proof is demanded thereof.

2 • The allegations contained in paragrpahs 3 are denied

and strict proof is demanded thereof.

3. The allegations contained in paragraphs A, 5, 6, 7 are

neither admitted or denied, and strict proof is demanded due to

the fact that services rendered by the Plaintiff to the

Defendant were performed with the knowledge of the Plaintiff that

no legal theory existed for which recovery could be obtained

under the Motion for Judgment as amended, thus the services

rendered were not beneficial to Defendants and are therefore

denied.

4. Paragraph 8 requires no response and therefore is

denied.

5. With respect to the allegations contained in paragraph

9, Defendants admit that they signed a Deed of Trust Note Payable

on Demand with the Plaintiff dated August 1, 1985, but deny any

obligation as set forth under the document presented in that the

legal services re~dered by Plaintiff were not beneficial to the

defendant; that the Defendants entered into the said Deed of

Trust Note under duress in that the Plaintiff stated that the

firm would no longer provide legal services to the Defendants

unless said Deed of Trust Note be signed securing Defendants

payment.

6. Paragraphs 10 and 11 are neither admitted or denied,

and strict proof is demanded thereof in that the Defendants have

no obligation to make payment under the Note in that the Note was

entered into under duress and the Note on its face is void and

are therefore denied.

GROUNDS OF DEFENSE

1. That the Motion for Judgment fails to state a cause of

action from which the Defendant can recover.

2. That the services rendered by the Plaintiff to the

Defendants served no viable benefit to the Defendants in that

2

recovery sought under the Motion for Judgment as amended was not

viable under Virginia Law.

3. That the failure of the Plaintiff to proceed against

the proper parties under this matter was negligent on the part of

the Plaintiff and therefore negates the obligation to pay under

the contract.

4. That the fees for services rendered by the Plaintiff to

the Defendants were excessive and beyond the scope of the initial

agreement between the parties.

s. That the agreement is barred by the Statute of

Limitations, thus the Plaintiff is precluded from enforcing it.

6. That the action is barred by the Doctrine of Laches.

7. That the Deed of Trust Note Payable on Demand is barred

by the Statute of Limitations.

8. That the Deed of Trust Note Payable on Demand is void

ab initio.

9. The Defendants are entitled to offset any recovery

Plaintiffs may be entitled to by the amounts Defendants should

have recovered in the underlying matter had such matter been

prosecuted correctly.

10. Defendants are entitled to offset any amounts due to

Plaintiffs as a result of Plaintiffs negligence in prosecuting

the underlying matter.

11. The Deed of Trust Note is unforceable as a result of

Plaintiff's self dealing and inadequate conduct.

12. Plaintiff's lack of clean hands bars recovery.

3

13. The Defendants specifically reserve the right to

present any defense which may arise during the pendency of this

matter.

WHEREFORE, your Defendants move to dismiss this action

against them and require the Plaintiff to release the Deed of

Trust for the property located at ~510 12th Street, North,

Arlington, Virginia, and award the ·Defendants costs and

attorneys' fees and any other relief this Court deems just and

proper.

STEPHENSON, KELLOGG, KREBS & MORAN, P.C.

By: __ ~~~~-+--~-------George LeRo oran Virginia Bar No. 15187 Counsel for Defendants 4157 Chain Bridge Road Fairfax, Virginia 22030 (703) 591-2470

William c. Newbold and Elwanda J. Newbold By Counsel


I hereby certify that a true_ copy of the foregoing doc;~~ was sent by first-class mail, postage prepaid this \~ day of October, 1990, to the following counsel for

Plaintiff:

Bruce L. Adelson Brincefield, Hartnett & Associates, P.C. 526 King Street, Suite 423 Alexandria, Virginia 22314

4

19

V I R G I N I A: AFFIDAVIT OF MARIA COGGINS


BRINCEFIELD, HARTNETT & ASSOCIATES, P.C. ) a Virginia Professional Corporation )

) Plaintiff, )

) vs. )

) WILLIAM C. NEWBOLD, BILLY C. NEWBOLD, and) ELWANDA J. NEWBOLD, )

) Defendants. )

At Law No. 900668

AFFIDAVIT OF MARIA COGGINS

I, Maria Coggins, do hereby swear and attest under penalty of

ii perjury that the following statements are true: I' 11 1. Durinq the trial of the above entitled action, which was

held on September 12 and 13, 1991, I testified as follows:

a. That I am employed by Brincefield, Hartnett &

Associates, P.C. as a bookkeeper;

b. That the books and records of Brincefield, Hartnett

& Associates, P.C. reflect that Defendants owe Brincefield,

Hartnett & Associates, P.C. a certain sum of money.

~·- ~·

BH&A\COLL.SC'TI\NEWSOLD\ 1010COGG.AFF

20

Commonwealth of Virginia

of Alexandria, to wit:

I, { ~f:'IJ~M,~ (1. .. , ~d( , a notary public for the jurisdiction aforesaid, do certi y that Maria Coggins, whose name is signed to :: ·; the writing above has subscribed and sworn to the same before me

:; ~~ ()dnb!.~ict;o~9:f~resaid. Given under my hand this lQ±h. day :; I!

:I ,i ;c :

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i j My commission Expires: &[s f '-13 . j --==-~--==~( __._~----

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BH&A\COU.ECTl\NEWBOl.O\ 1010COGG.AFF 2

21

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PLAINTIFF'S 1{1T V I R G :I N I A: AFFIDAVIT OF JAMES C. BRINCEFIELD, JR.


BRINCEFIELD, HARTNETT & ASSOCIATES, P. C. ) a Virqinia Professional Corporation )

) Plaintiff, )

) vs. ) At Law No. 900668


) Defendants. )

AFFIDAVIT OF JAMES C. BRINCEFIELD. JR.

I, James c. Brincefield, Jr., do hereby swear and attest under

penalty of perjury that the following statements are true:

l. During the trial of the above entitled action, which was

held on September 12 and 13, 1991, I testified as follows: ., a. That I am President of Brincefield, Hartnett &

Associates, P.C., which is a firm of attorneys located in

Alexandria, Virginia;

b. That Brincefield, Hartnett & Associates, P.C. is the

corporate successor of the law offices of James c. Brince-

field, Jr. and Brincefield and Associates;

c. That Brincefield, Hartnett & Associates, P.C.

assumed all debts, obligations and accounts receivable of its

predecessors;

BH&A\COLL.ECll\NEWBOlD\ 1009JCB.AFF

22

; .!

d. That the books and records of Brincefield, Hartnett

& Associates, P.C. reflect that the Defendants are indebted

. : to Brincefield, Hartnett & Associates, P.C •

Commonwealth of Virqinia . !

j

·! c· of Alexandria, to wit:

I, 4

' • .1-v- r~.-C (( , a notary public for the jurisdiction ;; aforesaid, do certif that James c. Brincefield, Jr., whose name : ~ is siqned to the writinq above has subscribed and sworn to the same ~~ before me in my }Urisdiction aforesaid. Given under my hand this :1(Qtk_ day of Qflii~r , 1991.

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23

1

2 !:·! THE C!~CUIT COURT FOR T~E CITY OF ALE:<A "··1DRIA

3 - - - ~ ~ - - ~ - - ~ - -4 BRI~CE FIELD, r~\~TNETT &

ASSOCIATES, a Virginia 5 Professional Cor9oration~

6 ?laintiff,

7 vs. : no. 90068

8 NILLI .. ~H C. N~·7fl0f.JD, BILLY C.

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

HE~,7BOLD and EL~-TANDA J. NE~'1BOLD, . . Def en dan ts.

~ - - - - - - - - - - - - - - _., A

Alexandria, Virginia

Thursday, October 17, 1991

The proceedings commenced at 10:20 a.m.

BEFORE:

TUE HONORABLE LEWIS D. MORRIS

APPEARANCES:

BRUCE L. ADELSON, ESQ. Brincef igld, Hartnett &

As no c i ate s , 5 2 6 K in g S t r e e t, Sui t e 4 2 3 , Alexandria, Virginia 2 2314, counsel for the plaintiff.

GEORGE L. NO RAN, ESQ. , Kel1o gg, I<rebs & i·1o ran, 3141 Fairview Park Drive, Suite· 640, Falls Church, Virginia 22042, counsel for tfie de .E en dan t s •

24

PLATT & DANSON (703)591-0007

2

1 P R 0 C E E D I N G S

2 T~~'8 COURT: Ho\·1 are you, gentlemen?

3 MR. ADSLSCN: Fine, Your Honor. Thank you.

4 { 'I' he co u r t r e po r t e r ... ., as sw o r n • )

5

6 r.tR. ADELSOr1: Yes, Your Honor. 'lour Hor~or, I

7 don't know which matter the Court wishes to tak~ up first.

8 I can proc~ed with my motion or we can discuss the --

9 THg COURT: r•7hy don • t you proceed ~~ i th your

10 motion? ~o ahead and have your entire argu~ent on the

11 orders and so forth.

12 MR. ADBLSON: I understand that. Turning to th~

13 order, I don•t think Mr. Moran 3nd I have a dispute.

14 HR. HORAN: Quite frankly what I would like to

15 do, I need a chance to look at the --

16 THE COURT: I didn't hear you.

17 MR. MORAN: I quite frankly, didn't get a chance

18 to look at the order that was entered on the motion for

19 partial summary judgment. I would just like to take a

20 quick look at that before I enter the attorney's order.

21 THE COURT: Before you enter the order that he

22 asked for?

23 MR. MORAN: That 1 s right. There was an order on

PLATT & DAi:·J SON ( 703) 591-0007

3

1 the motion £or partial surnmury judg~ent. I dicn,t get a

2 chance to look at it.

3 M~. ~DELSON: Apparently Mr. Moran wants to make

4 sure in the order for summary judgment that the Court

~ entered on September 12, I believe, that that did not huve

5 any provision for attorneys' fegs. That's really our only

7 disagree~ent.

3 TH3 COURT: It se~ms to me when I read it, I

9 didn • t see that. Let me take a look at it.

10 ADSL SON: I recall the same. I don • t recall

11 it mentioning th3t.

12 Tr~ F. co U R T : I t do e s n 1 t. No u 1 d yo u 1 i k ~ to t a !{ e

13 a 1 oo k a t i t?

14 r·1R. ~10RAN: If ! r.tay, Your Honor, if I may

15 approach the ~ench.

16 THE COURT: Sur e.

17 (Handing to Mr. Moran.)

18 i·7 hy do n • t ~v e give him a few minutes to r e ad that

19 and maybe we can dispose of that aspect?

20 MR. ADELSON: That's fine. Your Honor. That's

21 why I raised it initially.

22 Thank you, Your Honor.

23 TH E CO U R T : This is the f i 1 e co py • Yo u ba t t a r

28 :?Ll\TT & DAtvSON (703)591-0007

4

1 ho 1 d on to that.

2 MR. ~OnA~: Thera is the order without

3 objection.

TH R COU~T: }\ 11 right.

5 (Handing to the ~curt.)

6 TH~ COnRT: All right. The order has bean

7 entered, then.

8 ~·1?. AD~L son: Fine. Th::1nk you, ~our Honor.

9 No,.,, I \t~ish to pr:>ceed "tlith my r.totion, Y.our Honor. t·1a• re

10 here today on pl:=iintiff' 5 motion to _reconsider the Court's

11 decision to strike plaintiff's evid~nce at trial. As the

12 Court will recall, on September the 13th, the second day

13 of trial, the Court granted the defendants' ~otion to

14 strike the plaintiff's evidence on the basis that the

15 plaintiff had failed to prove its corporate existence.

16 Now, Your Honor, I would pose t\-tO questions.

17 What does that mean and what proof rnus t the plaintiff put

18 on? Let's review a little bit about what happened in the

19 trial. The plaintiff's evidence included several distinct

20 matters by testimony. Maria Coggins, one of the

21 plaintiff's employ·aes, in fact the plaintiff's bookkeeper,

22 testified that she was an employee of plaintiff,

23 Brincefield, Harnett & Associates, P.C., which I'll refer

27

PLJ\.TT & DAti SON ( 703) 591-000 7

1 to fro~ now on an the corporation, and that the

2 corporation 1 s records revealed that the defendants owed a

3 debt to the corporation.

4 ~~ also had testimony of James c. Brincefield,

5 Jr. who testified as the president of the corporation.

6 He testified that the corpor~tion is a fir~ of attornays

7 located in Ale;c.Jndria, ~Tirginia. He also t~sti.fi~~d that

8 the cor9oration is the successor in inter~st of ~rior

9 entities, ~rincefield & Associates and Ja~es c.

10 Brincefield L~w Offices. Nr. Brincefield also testified

11 that the defendants owed a debt to the corporation. So

12 there, Your Honor, just based on that testi~ony, plaintiff

13 presented a prima facia case of corporate existence.

14 In defendants' cross-examination of plaintiff,

15 there was never any issue that the testimony was

16 insufficient. The defendant never raised an issue about

17 whether or not the defendant had any evide~ce or proof

18 that the corporation was not a valid cor?oration. Of

19 course, v1e --I would also say, Your Honor, that even

20 assuming that there was such proof, we would hav~, of

21 course, vigorously objected to that. But there was never

22 any matter put on the record by the defendant that the

23 proof was insu££icient or that they indeed had any

28

PLJ\TT & DAN SOH ( 703) 591-000 7

1 evidence to prove otherwise, becausg the plaintif~ had

2 c 1 .::a r l y s e t f o r t h a ca :; e of p r i r:l a f a c i a co r po r ate

3 existencs.

4 Now, T think in the affidavits which I sub~itt~d

5 al on g •,·1 i t h my mo t i on to r c co n s i ce r , the a f £ ida v i t ~~

6 basic~lly support 'r'lhat I just argued~ that the plaitlti::f• s

7 t e s t i rn o n y was a s ! s t a t-: d • The a f f i da v i t s r ~ f 1 e c t the

8 tc2 3t i mony that ':las elicited at trial.

9 Your Honor~ Virginia corporations are not

10 required to produce stock certificates, certificates of

11 incorporation and other similar documents. There is no

12 authority for that proposition. And the defendants at

13 trial di dn' t pro cu ce any. ~vhen there i G a co rpo r u tion,

14 Your Honor, if the corporation can sho'~'!l, as \t~e did, that

1 5 it is a co r po r at ion by the testimony which we el i c i ted,

16 nothing further should be required, because if anything

1 7 fur the r we r e, the r e '.-1 c ul d be a r e al quandary abo u t

18 specifically what is required of a corporation \oJhen it is

19 in court attempting to collect a sum of money.

20 Your Honor, as I indicated, there was enough in

21 the r e co r d a t the time of the t r i al to sur~' i v e the

22 defendants• motion to strike. Pursua~t to Virginia law

2 3 1 e t me j us t po in t o u t those ca s e s , Co s t n e r , c-o- s- ~-H-E- R,

29

PLATT & DAWSO~ (703)591-0007

7

1 v~rsus T..~aclcey, L-A-C-K-E-Y, and r•Iillians, t·J-I-L-L-I-A-T·!-S,

2 versus Vaughan, ':r-~-U-G-H-l\.-H -- on motion to strike, th·~

3 evidence must be viewed in the light most f3vorable to the

4 plaintiff, dr a•11 ing all fair and r easo nabl e infer ance s

5 ther ~~:E rom.

6 row, that is cited in the Vaughan case, I

7 believe, at ~~ge 516. That's 199 S.E. 2d 515 at 516. And

8 in the Costn·=r case, that's 290 s. ~. 2d 818 at 320.

9 That's clearly the lav1 in Virginia, Your Honor.

10 The motion by defendants suggested that the

11 defendant objected to or contested certain material facts

12 that were put for':.o~ard by the plaintiff. If material facts

13 are in dispute, according to Costner at page 820, the

14 motion cannot be granted if any material fact is genuinely

15 in dispute. And clearly there was. The plaintiff

16 contests or argues that sufficient evidence was put forth

17 on the record to present a prima facia case of corporate

18 existence. Defendants, by their motion, implicitly

19 dispute that. so therefore, we have these t~·1o

20 diametrically opposed positions.

21 This is not a case where the plaintiff failed to

22 introduce testiruony that there was a contract, failed to

23 introduce testimony that there was a debt. All that was

30

PLATT & DAWSON ( 703) 5 91-0 0 0 7

8

1 don~. The dispute is ·.;nether or net the evidence put

2 fortll in che record by plaintiff i3 su.:ficient, A, to

3 withstand the ~otion to strike, and, B, whether or not

4 that sets up a case of prima facia corporat~ e~istence,

5 \'I hi ch it clearly doe:;. There is no r eq ui r;~men t as far as

6 I can de t e r w in e in v i r gin i a f o r a co r po r .:1 t ion to do any

7 mo r e than the pl a inti f f di d at t r i al •

8 ~oing back to, briefly, to the defendant3'

9 implicit argu~ent, if the defendants are contesting

10 plaintiff 1 s inco~poration, or if they had been, then they

11 should have been required to set up evidence at trial for

12 the jury to hear and then it \t~oul d be a jury issue about

13 whether or not the plaintiff had set forth sufficient

14 evidence to prove its existence and whether or not

1 5 p 1 a i n t if f was in co r po r ate d. I thin k that '"as a j u r y

16 issue, Your Honor, and the defendant should have been put

17 to the task of submitting evidence on that basis. Yet all

18 the defendants did was claim that corporate existence

19 wasn't proven, not that plaintiff had failed to prove a

20 prima fascia case in its case in chief, but that it failed

21 .to prove it \'Tas a corporation. And we vigorously \'IOUld

22 say, Your Honor, that plaintiff did put forward sufficient

23 evidence to prove that issue.

31

PLATT & DAN SON ( 703) 591-0007

9

1 Yo u r H o no r , I w o ul d a 1 so po i n t out tt'l o

2 additional reatters. There is authority in Virginia for

3 the prcposi tion that there can ba no collateral attack on

4 corporate 1 ega! i ty in certain proceedings. And I have a

5 cas.:: which ! 1 11 hand to the Court and to counsel, l<Jhich is

6 Colonial Investment Company versus Cherry-dale Ce~ent

7 Block Company, 73 s. E. 2d 419. Your Honor, at page --

8 I'll hand that up, Your Honor.

9 (Handing to the Court. )

10 Your Honor, page 421 of the case, the Supreme

11 Court holds that the legality of .corporate existence

12 cannot be attacked collaterally or in any manner other

13 than by direct proceedings instituted by the attorney

14 general in the name of the Commonwealth.

15 I will state as far as I can determine, this

16 cas~ has not been overruled. I will also point out as an

17 officer of the court, that the statute that the opinion

18 cites to has been repealed by the legislature, but I bring

19 that to the Court's attention in my capacity as an officer

20 of the court. But I do state it's my contention that

21 defendants' attempt to object to· or contest the legality

22 of the plaintiff's corporation, at least implicitly, is

23 not appropriate.

32

PLATT & DAWSON ( 703) 591-000 7

10

1 There is ~nother point I would like to make,

2 Yo u r H o no r • T!l ~ r .e i s a s t a t u t e in v i r g i n i a \-1 hi c h i s

3 8.01-279, Virginia Code, subparagraph C. That stat:es that

4 if a oartv seeks to contest or ~ut in issue whether or not ~ - .

5 a co r po r at i c n has been in co r po r ~ted, t h a t pa r ty mu s t f il e

6 an affidavit. There was no affidavit filed by the

7 defendants in this case, Your Honor, so therefore, th~

8 vsry motion that the defendants made is inappropriate.

9 They h-:1d no standing to do that since they did not file an

10 affidavit when the case first began bringing into question

11 plaintiff's allegations that it was incorporated.

12 Your Honor, I also have to state again as an

13 officer of th'~ court that under-- there is a Virginia

14 Supreme Court decision that interprets Section B of this

15 statute. And in that decision, the Court held that since

16 the party in that case, the plaintiff, had not objected to

17 the defendants filing an affidavit within 7 days as

18 required by the Virginia Supreme Court rule, that that

19 objection was waived. I point that out as an officer of

20 the court, Your Honor, but I would say that that. case is

21 not -- is distinguishable from this one since that

22 involved Section o.

23 I would also argue, Your Honor, that if the

33

PLATT & DANSON (703)591-0007

- .. I

11

1 scatute i3 re::td c.~refully, it's clear that the statute,

2 the st.3.tUtQ and the ap?licable court rule, which is 1:10

3 of th c Sup r em e Co u r t r ul e - -. 1 : 1 0 r eq u i res t h a·t if a

4 pl~ading must -- I'll just quote the rule. If a statute

5 requires a pleading to be accompanied by an affidavit. ar.(:

6 it's not, then you have to file objections within 7 dayz.

7 Your Honor, I would say that that rule is not

8 applicable to the current situation which is, what we h~ve 1

9 here, is the defendant filing an ans.,11er as its init1al

1 0 p 1 ea di n g. The r e is no co u r t r u 1 e 1 s t a t u t e or author i ty 1

11 any authority that I'm aware of that requires an ans·.r~er to

12 be filed ~.rith an affidavit. You are not requir~d to file

13 an ans~er with an affidavit.

14 There are certain pleadings with which you must

15 file an affidavit. For example, if you wish to file

16 motion for default judgment, you would need an affidavit,

17 my understanding. Also in some mechanic lien situations.

18 I do not believe that the Virginia Supreme Court• s holding

19 is on point in this situation because the defendant was

20 not required to file the affidavit. The defendant could

21 have had the option of filing the affidavit if it wished

22 to avail itself of its claim that the plaintiff wa~·--

23 that it had no information on whether or not the plaintiff

PT.J1\'l'T & DA~'7 SON ( 703) 591-000 7

---------··------------·-

12

1 ~'v'a3 i:1corporated. If they ";ish to ao:Jail themselves of the

2 be~efits of their right to object or put into evidence the

3 plaintiffas incorporation, then they had to file an

4 affid~vit, ~.-1hich they didn't do. nut that's not required.

5 ! thi:11' there• s a difference bet,<~een b~ing

6 r eq u i red to co so '!11 e th i n g a s a j u r i s di c t ion a 1 rna t t e r , ~"hi c h

7 you are with certain pleadings, and in this case, their

8 answer certainly was valid. It couldn 1 t be struck just

9 because it didn't have an affidavit.

10 So, Your Honer, just to summarize, it's

11 plaintiff's position respectfully, that there was

12 sufficient evidence in the record to present a prima f~cia

13 case of corporate existence at trial through the testimony

14 of plaintiff's employee who testified as an e~ployee of

15 the corporation, and the president of the corporation.

16 That set forth clear evidence that the corporation exists.

17 Your Honor, I also pointed out the other case,

18 Colonial Investraent, \tlhich talks about that you cannot

19 attack collaterally the legality of the corporation. And

20 also .the a. a 1-2 7 9 statute requires the defendant to file

21 an affidavit if the corporate existence is to be put in

22 issue, and that \ltasn' t done.

23 So I \t~oul d say, Your Honor, that given the fact

35

PLATT ~DAWSON (703)591-0007

13

1 that under Virginia law on a motion to strik~ 311 cvid3nce

2 must be construed in the plaintiif's favor ar.d ~11

3 reasonable ar.d fair inferences from the evidence should be

4 taken, I believe under that standard, that the motion to

5 strike shouldn•t be granted since there was sufficient

6 evidence at that 9oint on the record to wichscand the

7 motion to strike, to put the defendant to its proof to

8 their proof, excuse me, on whether or not plaintiff is a

9 co r po r at i o n •

10 There Has sufficient ev ide nee to take that issue

11 to the jury. There \•las sufficient evidenc~ at that ?Oint

12 in the trial given the requirement of looking at the

13 evidence -- looking at the evidence in the light most

14 favorable to the corporation and drawing all fair and

15 reasonable inferences from that evidence, to allot.-1 the

i6 corporation to survive the motion to strike and for the

17 trial to proceed.

18 Your Honor, I also 'rt1ant to address briefly

19 defendants• opposition to the plaintiff's motion. There

20 are t\~O -- there's an oral mo~ion I wish to make about

21 that which I mentioned briefly to counsel before the start

22 of these procaedings. Your Honor, on page 1 of the

23 opposition, footnote 1

31

PLATT & DAN SON ( 703) 5 91-0 0 0 7

1

2

3

4

THE

[·H~ •

THE

r~R.

con R'!':

ADELSON:

COuRT:

ADELSON:

14

Let rna get that in front of me.

o h , I • o so r ry •

Okay.

In footnote 1 on page 1, the

5 defendant states that· in light of t!1e Court's finding that

6 the plaintiff failed to prove that it was a Virgini~

7 corporation, the Court should reconsider motion for

8 summary judgment brough by the plaintiff.

9 Your Ho!lor, I \'IOUld move to strike that from th-e

10 opposition for tt-1o reasons. Number one, the defendants

11 h~'Jen• t noticed any motion today to vacate anything.

12 Number t·.vo, it must be rem ember ed that the Court's ruling

13 at trial was that the plaintiff failed to prove corporate

14 existence. It wasn't that the plaintiff wasn't a

15 corporation or had no standing to do anything, it was just

16 that the plaintiff failed to prove something. So

17 therefore, this allegation is inappropriate.

1 8 And I w o ul d say that under -- it' s an

19 appropriate that a motion to strike be entered striking

20 this from the pleading because it's clearly incorrect.

21 It's also inap;::>ropriate because \tle 1 re not here for that

22 today.

23 Also on page 2, footnote 2, the defendant talks.

37

PLATT & DANSON (703)591-0007

15

1 about \-lhether or not that they h.1d cert~in information

2 that the pl a i n t i f f co r po r at i on w as no t -- ! do n • t \1 an t to

3 misconstrua this. Couns~l for defendants in the footnote

4 2 states that the Virginia State Bar aid not receive

5 do cu~ en t s w hi c h tv e r e r ~ u i red to change the name of the

6 plaintiff from Brincefield Associates to the current name

7 o f the co r po r a t i on •

8 Your Honor, I move to strik~ that, toe. That's

9 hearsay. That '.vas ne'Ter set out in e,1idence in trial.

10 There was never any e:chibit about that. There was no

11 exhibit on the ·\'iitness 1 ist t'lhich would tend to support

12 this allegation. That' n clearly scandalous and it's

13 clearly irrelevant and it's hearsay. That should not be

· 14 permitted to remain in this pleading because this is not

15 an evidentiary hearing today. We're arguing points of the

16 law. t~hether or not counsel 'lias told by someone anything

17 is completely irrelevant and that should be stricl{en.

18 Both footnote 1 and footnote 2 should be stricken because

19 they are clearly inappropriate and I mo?e to strike those,

20 Your Honor.

21 An d I \v o ul d a 1 so sa. y , Yo ur H o no r , a ga in , t h a t

22 plaintiff respectfully requests the Court grant its motion

23 to-reconsider the Court's decision to strike plaintiff's

38

PLi\ TT & 0}\ N SON ( 7 0 3 ) 5 91- 0 0 0 7

16

1 evidence on. the grou:1ds that I 3tated. Plaintiff had

2 ?roved a prima facia case of corporate existence. There

3 to1 ~ .3 en o ugh to go to t h e j u r y ba s e. d o n the s tan da r d f o r

4 rcvie• .. Ti!"lg the notion to strike. I think the motion-- the

5 !'Jotior. shoulc have been denied and I respcctfulli' req:uest

6 the Court to grant plaintiff's motion to reconsider today,

7 overruling the motion l:o strike. Thank you.

8 TH s cau RT: ~·1 r. nor an.

9 MR. MORAN: If it please the Court, we' r2 here

10 on the motion to reconsider your decision in our favor on

11 a raotion to stril<e. This case has been going on for a

12 long time. It 1 s gone on now for, the whola matter

13 involving the New bolas, has gone on since 1983 \'lhen it

14 originally st3rted with the fire. This case has gone on

15 for a while. u~ went through a day and a half of trial.

16 t~e have gone through various dis co very. And at tempt has

17 been made in the motion to reconsider to ha'Je t\'IO

lS affidavits submitted to the Court. I state to the Court I

19 think that's inappropriate at this time and I move to

20 strike them from his pleading because that's something

21 that's being attempted to present testimony after the

22 plaintiff has rested his case.

23 The Court has heard the facts. The Court heard

39

PLATT & DANSON (703) 591-0007

17

1 a long motion on the day of -- the secane day of trial.

2 The Court sat and deliberated on that motion for almoGt 35

3 to 43 n:inutes and took ir.to account the testimony that was

4 precsented, took into account the notes that the Court had

5 made during that ti~e. And the Court made a finding of

6 fact that plaintiff did not at trial prove that they were

7 a Virginia corporation, and did not prove the case for the

8 co r po r a t i on.

9 The pl~adings were brought in the name of

10 Brincefield, Hartnett & Associates, P.C., which is a

11 co r po r at ion r e g i s t e r e d "'' i th the S ta te Co r po ration

12 Commission here in Virginia. The testimony that was

13 presented '.Yas all from James B rincef iel d. James

14 Brincefield did this. James Brincefield did that.

15 Nowhere during that time was P.C. mentioned. Nowhere was

16 there any proof that the right parties were before the

17 Co ur: t.

18 The testimony that \4 as presented was Janes

19 Brincefield did this. James Brincsfield did that. There

20 was another attorney involved; they did that. The bills

21 were o·.ved to r·1r. B rincef iel d. We never got to the point

22 of Mr. Brincefield, are you president of Brincefield,

23 Hartnett & Associates? Yes, you are. You're an officer

40

PLATT & DAt·l SON ( 703) 591-000 7

1n

1 in t h a t co r po r a t i on ? '!. e s , I am. I s t h a t en r !?C r a t i on

2 validly e:\isting under Virginia la'IT? That ·.~as never

3 mentioned. That, in fact, ~-Joule have prever.ted me from

4 filing our motion to strike. That ~r'l as never t.i1er e.

5 He' re not trying to collatar.::tlly attack with our

6 motion to strik~ the exist~nca of the corporation. The

7 e;,:i.:;tence of the corporation, ar. Adelson is correct, can

8 only be attacked by the attorney general of the

9 Commonwealth of Virginia. t'lhat we attacked a.nd what you

10 granted that day was the fact that the proof that was

11 submit ted to the jury and to the Court ~'/as James

12 Brincefield. Th~ proof that was submitted that day was

13 not B r in ce f i el d, H a r tn e t t & As so c i ate s ,. P. C.

14 Now, it 1 s not my duty as the defendant to put in

15 and put in issue during the plaintiff's case whether or

16 not they are a corporation or not. That's an element of

17 proof that \4/as required by law. It's required in the

18 pleadings of the case. Our answer stated that we demanded

19 strict proof thereof because we did not know whether it

20 was registered with the State Corporation in the state. ·

21 Quite frankly, it's an allegation that I-- an answer to

22 an allegation that I put in all rcy pleadings. And that

23 requires them to prove. And it can be done by those three

41

PLATT & DANSON (703)591-0007

1 o r f o u r q u e s t ion s t h a t I a s k e d a n r 1 i e r • I co n ' t t h i n !~ I

2 co u 1 d h a v a co :n e b.~ c !< and :n ad e a tlO t i on to s t r i k e t 11.J t ~·T a:::;

3 no t do n e • ! c .l r e: ull y l is ten e d to i t. Th n Co u r t

4 carefully listened to it. And the elements of proof to

5 prove their case were not present on that cay.

6 :-!r. A del son talks about the comment that we hav··~

7 t h a t i n 1 i g !1. t of the de c i s i on , the Co u r t s h o u 1 d r e co n s i de r

8 th~ ~otion for su~mary judgment. Your ~onor, that•s

9 ~robably -- probably should be here today on that. But

10 quite £rankly, in all fairness, most of the money that ,,,as

11 O'tl e d ~-! r • B r i n ce f i e 1 d o u t of the $6 , 0 0 0 t h a t t h e Co u r t

12 ruled, we really weren't contesting because most of this

13 woney was for general district court v1ork. Ne were

14 contesting the second portion of it, the case that was

15 held in Arlington. And that's one of the reasons, after

16 revie\..ring ~'lith my clients, ,.,e did not file a motion to

17 reconsider. If ~1e had gone to trial, the Court probably

18 trJould have awarded, in our mind, part of that money

19 because we really cidn't contest that part of it. ~nd

20 that's one of the reasons we put it as a footnote as

21 opposed to actually going and taking it in a motion to

22 reco nsi de r.

23 r~Yr. Adelson talks about the fact that ther~· s a

42

PL.'\TT & DAN SON ( 703) 591-000 7

1 ~aterial fact in dispute and the defendant has to put it

2 into issue and has to co so:ncthing durinq the plaintif£ 1 s

3 ca.oe. ~,Tell, let me address that. -;'/e don'~ have to do

4 that. That • s the duty of the :?1 a inti f £ at that po i n t in

5 ti:ne. h'e could have, if the defense would h:;.\V~ been

6 presented, we could have present~d it at that tima. That

7 would have been the appropriate time for me to present it

8 on behalf of the client.

9 It's their responsi0il ity to bring forth any

10 deficiencies they had in the presentation of their

11 ev ide nee. There ':las a major deficiency. Ths Court has

12 listened to that and understood the argument at that time

13 and ru1~d correctly.

14 Now, corporate e:tistence to a great e~{t~nt was

15 essential in this case because it -- they contended they

16 were a successor in interest to James Brincefield. And

17 Hr. B rincef ie1 d, at one point in time, referred to

18 successor in interest, but never got to that point where

19 they proved that the right party was before the Court.

20 The party before the Court in the pleading, Brincef ield,

21 Hartnett & Associates, P. c. The proof that was submitted

22 to the Court was James B rincef ield. That • s \-1 hy I believe

23 the Court granted the motion to strike after extensive

43

PLATT & DAWSON (703)591-0007

1 re"lie',1 o£ your notea 3nd the arr;u!ilent of counsel. And I

2 ask that the motion to reconsider be denied.

3 ~~. ~D~LSON: ~ay I r~~pond briefly?

4 TI! ~ ca u RT : Y e s , s i r , sur e 1 y •

5 HR. ADELSCH: Just a couple points, Your Honor.

6 Hr. !loran, in a sense, has supported my rnofion \;~ith ':lhat

7 he sa i c a mo n en t ,=J. go • He sa i d t-·1 r • B r in c e f i e 1 d r ef e r r ~? d to

8 his being a succ~ssor in interest. Nell, it -=.vas a little

9 more than r e£ er. Refer is testify, which is what he s~id

10 in his affid:lvit. The affidavits that h.~ve been filed are

11 just s ur:tmar i cS of te stif.lony. They don • t in t ro du ce any nt.:w

12 matters because those matters were testified to and I

13 would think that nr. l•toran t.o~ould even stipulate to that.

14 Mr. 3rincefiald testified that the plaintiff

15 corporation was a successor in interest to the prior

16 entities. And he also testified that the corporation is a

17 successor in interest in the sense that it is succeeded to

18 the assets and accounts receivables of its predecessors.

19 What further proof is necessary than the testimony of the

20 president of the corporation to that effect?

21 Mr. Moran al~o stated that if there had been

22 testimony that -- if there had b~en testimony along these

23 lines, that he would not have made a motion to strike.

44

PLATT & DA~·J S0?-1 ( 703) 591-0 00 7

1 :1 r .. J r i n c.~ f i ,::1 d \-1 as p r e s i de n t of t h e co r po r a t i on • He

2 testified to that. That ~·1r. Brincefield ~'las a:1 officer of.

3 t h e co r po r a t ion, \\'ell , in e sse n c c , t h ~ p r e s i de n t and

4 officer are the s~rne things. He testified that he was

5 iarniliar t¥ith the boo~s and records of the corporation and

S he testified that the defendants owed the corporation a

7 debt. He also testified that the corporation i5 a firm of

3 attorneys located in Ale~andria, Virgini3. What more is

9 needed? He clearly set cut in his own testimony as the

1 0 p r e s i den t of the co r po r a ti on that the co r po ration do e s

11 indeed e:!ist. Nothing further should be required. Indeec

12 ic Virginia, nothing else is.

13 Hr. Horan has not pointed out any casa authority

14 to say that a corporation must produce its corporate seal

15 or must produce its charter, because there is no casa

16 authority to that proposition. Therefore, it's clear,

17 even based on comments that f.tr. lrtoran made today, that the

18 plaintiff set forth a sufficient prima facia case of

19 corporate existence. Therefore, the motion to strike,

20 respectfully, should have been denied, and there was

21 sufficient evidence to go to the jury. And in construing

22 all the evidence in the light most favorable to the

23 plaintiff, the motion to strike, I believe, was unt~mely

45

PLATT & DA~·l SON ( 703) 591-0007

23

1 not untimely filed, Your He nor, but 3houl d have be9n

2 dani~d.

3 I \'I o ul d r en ~t11 p 1 a i n f if f ' s p r ay c !" to the Co u r t to

4 grant their motion to recover today and also their notion

5 to s t r i ke the ttoT o f o o t no t e s in de f en da n t • s o ppo s i t ion

6 which are clearly inappropriate and have nc basis i~ the

7 pleadings and as such they should be stricken. Thank you.

a THE COfJRT: All right, gentl er.ten, I think I'm

9 ready to :nake a decision. T.:et me say this before I do

10 maf<e a decision. I certainly tt1ant to co:npl iment both

11 counsel on the way you conducted yourself in the

12 courtroom. It's certainly been a pleasure to wor~ ,.,ith

13 both of you and to hear this case. And the only thing I

14 can say, when I make a decision, I make what I feel in my

15 heart is the right decision. I may be wrong. I certainly

16 don't profess to be infallible.

17 MR. ADELSON: Thank you, Your Honor.

18 MR. MORAN: Thank you, Your Honor.

19 THE COURT: But I do say that you gentlemen have

20 been most courteous to the Court. The Court really

21 appreciates it.

22 In going over the -- going over and considering

23 the argument of counsel here today and then going over --

41

PLATT & DA~SON (703)591-0007

24

1 r-:v ia~v ing my not~s again of ~\1r. 3rincef iel d's test 1mony

2 und the various cases that counsel hav~ just submitted in

3 support of their argument, I still am convinced that the

4 r.totion should be denied, that the motion to reconsider

5 should be aeni~d. I still don 1 t feel that therer s been a

6 prima facia case made out as to the existence of this

7 corpor.:ltion, that \t/e have a proper party here before the

S Court.

9 I think that Mr. arincefield's testimony and

1 0 r·I i s s Co q gin s • t e s t i m on y , if I t a k a t h em at th e i r l;l o r d

11 they're officers of the corporati~n, still doesn't bring

12 forth sufficient proof to make a prima facia case that

13 t hi s co r po r a t ion e xi s t e d a t the t i rn e and that i t ~~ n s u

14 proper party. I think that the issue was put in the

15 pleadings and the motion for judgment and in the answer of

16 the defendants there, and I think that under the

17 circumstances, that there was not sufficient proof there.

18 So I'm going to stick with my previous ruling in granting

19 the motion and deny this motion to reconsider.

20 Now, with respect to plaintiff's motion to

21 s t r i k e foot no t e s 1 and 2 , I ' m go in g to grant t h a~. That • s

22 certainly not any evidence in this case. It's not to be

23 considerad in any future proceedings, if there is 3ny.

41

PLATT & DAWSON (703)591-0007

1 But I'm going to strike those.

2 No'.v, \·lith respect tn the Brinc~field and

3 Coggin3, I 1 ;n not going to strike that because th~y merely

4 rei te r ate d 't'J h a t t ~1 ey t e s t if i e d. ! n r e a d i n g i t, i t ' s a

5 fair recollection-- my recollection of what 1 s there is

what they tssti£ied. So it• s alr~ady in the record. It

7 :nay not be -- r don• t believe -- \.;as ther,~ a reporter? I

8 don't bel iev·a there \'1/'ilS a reporter.

9 r·1R. l\DEL SON: No, Your Honor.

10 i•1R. r·!ORAN: ~1o, Your Honor. Th at 1 s ~" hy I T.V ante d

11 that to be strucl<;, is the fact that during the co :.1rse of

12 your deliberations, in revie\tTing the case, those note::;

13 were there. I feel this is something that is attempt~d to

14 be put in a:; an· afterthought. One of the reasons --

15 THE COURT: r-1y only questfon is when I read

16 those the other night at home, to me and then ~·Then I

17 checked it against my notes, I think it pretty well sets

18 forth \<That they testified. As far as I • rn concerned, it's

19 evidence. tt•s testimony that's in the record, anyway.

20 What it means, whether or not there are future actions

21 taken with the ca sc or not

22 l·1R. HORAN: They n~ver testified it was a P.·C.

2 3 They test if i e d the fact that i t 'N as a f i rm but not as to

48

PLATT & DAWSON (703)591-0007

25

1 the P. c.

2 ~-IE CQTJRT: I'm going to deny that :notion,

3 anyway, Mr. Moran, deny the ~otion to strike those twc

4 afiidavit3. And then, of course1 I indicated t~ couns-?l

5 that ti1e order forth-= attorneys• fees, I just signed t:-~

6 35 o£ today.

7

a

r·lR. ADELSON: Yes, Your aonor. ·

T~! E corJRT: T will set an appeal bond in the

9 event there is an appeal of a thousand dollar3 to cov~r

10 expenses dcfend.1nts ~ay ha·v-e, so if there• s an appeal.

11 And I think that the order appear3 to be, this order,

12 unless counsel \"ants to make some changes here now, it

13 seems to be nuff icie:nt:. except the appeal bond a~pect of

14 it.

15 r1R. ADELSON: Your Honor, what I had indicated

16 to Mr. Moran, I think the final order is sufficient as to

17 the substance of the proceeding. What I would prefer, I

18 would prefer to incorporate the Court• s rulings on the

19 bond and the motion to strike into the final order so we

20 don't get the 21-day period--

21 THE couRT: That's fine. vlhy don' t you prepare

22 the order and submit it to Mr. Moran?

23 £•1R. ADELSON: I 'llill do that.

49

PLATT & DAWSON (703)591-0007

27

1 TH E co u R T : ~1 r • Ho r an can m ;:1 i 1 it to me a t home

2 and I'll see tnat it get? on file.

3

4

5

6

7

8 this case.

9

~·1 P.. ~·10 t~AN: That's fine, Your Ho:to r.

THE COTJRT: I think that's an excellent idea.

~-tR • ADELSON: Thank you, Your Honor.

T!IE COURT: Good luck to both of you.

!~ rt. ADELSON: r:l e appr eci a ta the Court's tine on

THE COURT: All right. I can only call th~m as

10 I see them. I certainly do:1' t profess to be infallible.

11

12

MR. ADELSON: Nor I, Your Honor. Thank you.

MR. MORAN: Thank you, Your Honor. Thank you

13 for all the considerations for things bein; del i~10red to

14 your house I know at various times of the day.

15

16

17

18

19

20

21

22

23

(At 11:00 a.m. the proceedings in the above

en t i tl e d matter \~ere con cl u de d. )

PLATT & DA~'7 SON ( 703) 5 91-0 0 0 7

50

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2S

CERTIFICATE OF REPORTER

I, Joy R. ua\vson, do hereby certify that -che

for.agoing proceedings \'las t.Jken by me in st~notype an.:l

thereafter reduced to typewriting under my supervision;

that the for ego in g p r o ce e dings i s a t r u e r e co r d ; t h ;;J t

I am neither counsel for, related to, nor er.1ployeu by

any of the parties to this action; and further that I

am not a relative or employee of any attorney or COi.l:15;~l

employed by the parties hereto, nor financially or

otherwise interested in the outco~e of the action.

Given under my hand this 31st day of December, l9J~

Joy R. Datt~ son, Cer ti fica te of r.!er it, Registered Professional Rapor

51.

PLATT & DArt-T SON ( 703) 5 91-000 7

.. -· ..

V I R G I N I A:


BRINCEFIELD, HARTNETT & ASSOCIATES, P.C. ) a Virginia Professional Corporation )

) Plaintiff, )

) vs. ) At Law No. 900668

) WILLIAM c. NEWBOLD, BILLY c. NEWBOLD, and ) ELWANDA J. NEWBOLD, )

) Defendants. )

FINAL ORDER

THIS MATTER, having come before the court on September 12 and

September 13, 1991 for trial and on October 17, 1991 for Plain

tiff's Motion to Reconsider the Court's Decision to Strike

Plaintiff's Evidence, Plaintiff's oral Motion to strike Footnotes

1 and 2 from Defendants' Opposition to the Plaintiff's Motion to

Reconsider the Court's Decision to strike Plaintiff's Evidence and

Defendants' oral Motion to Strike the Affidavits attached as

Exhibits A and B to Plaintiff's Motion to Reconsider; the Court

having impanelled a jury; the parties having presented their

opening arguments; the Plaintiff having presented its case and

having rested; the Defendants having made Motion to Strike

Plaintiff's Evidence based on the failure of Plaintiff to prove the

corporate existence of the Plaintiff; it having been argued by

counsel; the Court having found that the Plaintiff failed to prove

the corporate existence of the Plaintiff, and thus the Defendants'

Motion to Strike Plaintiff's Evidence should be granted; the Court

then dismissed the jury panel after granting said Motion.:.and .the

DH&A\COLLECTI\NEWBOLD\ 1028FORO.PLO

court having denied Plaintiff's Motion to Reconsider the Court's

Decision to Strike Plaintiff's Evidence; and

IT APPEARING TO THE COURT that Plaintiff failed to prove its

corporate existence at trial and that Defendants' Motio~ to Strike

should be granted and that this matter should be dismissed with

prejudice; and

IT FURTHER APPEARING TO THE COURT that Plaintiff's Motion to

Reconsider the Court's Decision to Strike Plaintiff's Evidence

should be ~enied; and

IT FURTHER APPEARING TO THE COURT that Plaintiff's·oral Motion

to Strike Footnotes 1 and 2 from Defendants' Opposition to the

Plaintiff's Motion to Reconsider the Court's Decision to Strike

Plaintiff's Evidence should be granted since these footnotes

contain allegations which are not supported by the record in this

case; and

IT FURTHER APPEARING TO THE COURT that the sworn statements

which appear in the Affidavits of Maria Coggins and James c.

Brincefield 1 Jr. 1 attached as Exhibits A and B to Plaintiff's

Motion to Reconsider 1 accurately restate and reflect the trial

testimony of the affiants; and

IT FURTH~R ~.PPE~..R!'NG TO THE COURT that Defendants 1 oral Mot ion

to Strike Exhibits A and B from Plaintiff's Motion to Reconsider

the Court's Decision to Strike Plaintiff's Evidence should be

denied; and

IT FURTHER APPEARING TO THE COURT sua sponte that an app.eal

bond as security for costs should be set in the amount of One

BH&A\COLLECTI\NEWBOLO\ 1016FORO.PLO 2

53

Thousand Dollars ($1,000.00) to be filed pursuant to Va. Code Ann.

§ 8.01-676-1 (1950) and other applicable law.

THEREFORE, it is hereby

ORDERED that Defendants' Motion to Strike Plaintiff's Evidence

is hereby granted; and it is further ·

ORDERED that Plaintiff's Motion to Reconsider the Court's

Decision to Strike Plaintiff's Evidence is hereby denied; and it

is further

ORDERED that Plaintiff's oral Motion to Strike Footnotes 1 and

2 from Defendants' Opposition to the Plaintiff's Motion to

Reconsider the court's Decision to Strike Plaintiff's Evidence is

hereby granted and the material contained therein is hereby

stricken from the record of this case; and it is further

ORDERED that Defendants' oral Motion to Strike Exhibits A and

B from Plaintiff's Motion to Reconsider the Court's Decision to

Strike Plaintiff's Evidence is hereby denied; and it is further

ORDERED sua sponte that an appeal bond as security for costs

is hereby set in the amount of One Thousand Dollars ($1,000.00) to

be filed pursuant to Va. Code Ann. § 8.01-676.1 (1950) and other

applicable law; and it is further

ORDERED that this matter is hereby Dismissed with Prejudice.

ENTERED this .~~ day of A/ove"rnt1~ 1991 --~'~rc _____________ , •

~~~c-o-_....;__ ~rris, Judge

A COPY IESTE: BH&A\COLLECTI\NEWBOL0\1016FORO.PLO 3 Edward Semonian, Clerk

/.

54

I ASK FOR THIS AND SEEN AND OBJECTED TO AS TO THE COURT 1 S RULING ON PLAINTIFF'S ORAL MOTION TO STRIKE FOR THE REASONS STATED IN OPEN COURT ON OCTOBER 17, 1991:

KELLOGG,

By: G LeRoy M~an, Esquire

/ . . . 3141 Fa1rv1ew ark Dr1ve Suite 640 / Falls Church, irginia 22042 (703) 876-8910 Counsel for Defendants

SEEN AND OBJECTED TO FOR REASONS STATED IN OPEN COURT ON SEPTEMBER 13, 1991 AND ON OCTOBER 17, 1991 AND IN THE ATTACHED MEMORANDUM OF OBJECTIONS AND IN PLAINTIFF 1 S MOTION TO RECONSIDER THE COURT 1 S DECISION TO STRIKE PLAINTIFF'S EVIDENCE WHICH ARE INCORPORATED BY REFERENCE AND WE ASK FOR THIS AS TO THE COURT'S RULINGS ON THE PARTIES' MOTIONS TO STRIKE:

OCIATES, P.C.

Bruce L. A e son 526 King Street, Suite 423 Alexandria, Virginia 22314 (703) 836-2880 Counsel for Plaintiff

BH&A\COLLECTl\NEWBOLO\ 1016FORO.PLO 4

55

V I R G I N I A:


BRIN'CEFIELD I HARTNETT & ASSOCIATES I p. c. ) a Virginia Professional Corporation )

) Plaintiff, )

) vs. )


) Defendants. )

At Law No. 900668

t PLAINTIFF 1 S MEMORANDUM OF OBJECTIONS TO THE FINAL ORDER

1,11

I COMES NOW Plaintiff, Brincefield, Hartnett & Associates, P.C.,

by counsel, and for its Objections to the Final Order, states as

follows: i

1. Plaintiff 1 s Objections to the Final Order include but are;

not limited to those stated herein. Plaintiff 1 s Objections also'

include those raised in open Court on September 13 and October 17,

1991.

2. On September 13, 1991, the court granted Defendants 1 ;

Motion to Strike Plaintiff's Evidence based on Plaintiff's alleged~ i

failure to prove the corporate existence of Brincefield, Hartnett! i i

& Associates, P.C. i

3. At trial, Plaintiff 1 s evidence revealed the following: l a. Plaintiff's bookkeeper, Maria Coggins, testified I

that she was employed by Brincefield, Hartnett & Associates,

P.C. and that the books and records of Brincefield, Hartnett

& Associates, P.C. reflected that Defendants owed a certain

BH&A\COLLECTl\NEWBOLO\ 1021 MEMO.PLO

51

sum of money to Plaintiff, Brincefield, Hartnett & Associates,

b. James c. Brincefield, Jr. testified that he is

President of Brincefield, Hartnett & Associates, P.C., which

he testified is a firm of attorneys located in Alexandria,

Virginia;

c. James c. Brincefield, Jr. testified that Brince

field, Hartnett & Associates, P.C. is the corporate successor

of the law offices of James c. Brincefield, Jr. and Brince

field and Associates and that Brincefield, Hartnett &

Associates, P.C. assumed all debts, obligations, and accounts

receivable of its corporate predecessors;

d. James c. Brincefield, Jr. testified that the books

and records of Brincefield, Hartnett· & Associates, P.C. ·

reflect that the Defendants are indebted to Brincefield,

Hartnett & Associates, P.C.;

4. On a Motion to Strike Plaintiff's Evidence, the Court I

must view Plaintiff 1 s evidence in the light most favorable to

Plaintiff, drawing all fair and reasonable inferences from this

evidence. Williams v. Vaughan, 199 S.E.2d 515, 518, 214 va. 307,

(1973) and Costner v. Lackey, 290 S.E.2d 818, 820, 223 Va. 377,

(1982).

5. It is clear that Plaintiff submitted sufficient evidence

to withstand Defendants' Motion to Strike, when the evidence is

viewed as required by Virginia law. Defendants• Motion to Strike

should have been denied since Brincefield, Hartnett & Associates,

BH&A\COLLECTI\NEWBOLD\ 1021 MEMO.PLD 2

57

P.C. had set forth at trial a prima facie case of Brincefield,

Hartnett & Associates, P.C.'s corporate existence.

6. There were material facts in dispute on the issue of ;

whether Brincefield, Hartnett & Associates, P.C. had proved its : . ~

corporate existence. This required a denial of the Motion to ·

Strike, id. Costner, at 820. Furthermore, Defendants should have

been required to present evidence to rebut Plaintiff's prima facie

evidence of Brincefield, Hartnett & Associates, P.c.•s corporate

status. The determination of this issue should properly have been

left for the jury.

Respectfully Submitted,

BRINCEFIELD, HARTNETT & ASSOCIATES, P.C. By Counsel

Bruce L. Adelso 526 Kinq Street, Suite 423

· Alexandria, Virqinia 22314 (703) 836-2880 counsel for Plaintiff

P.C.


I certify that a true ~opy of the foreqoi~~~iled, first

class, postage prepaid, th~8-~Y of (2;~ , 1991

to Georqe LeRoy Moran, Esq., Kelloqq, Krebs & Moran, 3141 Fairview

Park Drive, Suite 640,

BH&A\COLI..ECTI\NEWBOL.D\1021MEMO.PLD 3

58

ASSIGHMEW.rS OP BRROR

The trial court erred in striking the evidence which was

submitted at trial by Brincefield, Hartnett & Associates, P.C. for

the following reasons:

1. The trial court erred in ruling that Brincefield, Hartnett

& Associates, P.C. failed to prove its corporate existence at trial.

2. The trial court erred in granting the Newbolds' Motion to

Strike Brincefield, Hartnett & Associates, P.C.'s evidence in that

the court failed to resolve doubts about the sufficiency of the

evidence submitted at trial in favor of the non-moving party.

59

1. first amended motion for judgment, filed august 22

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