Lipps v Lipps

September 2, 2005

John W. Bonney, Esquire John W. Bonney, P.C. 5442 Tidewater Drive Norfolk, VA 23509 Duncan G. Byers, Esquire Joseph R. Lassiter, Jr., Esquire Rephan Lassiter, P.L.C. 500 E. Main Street, Suite 1200 Norfolk, VA 23510

Re:

Betty Rosemond Lipps Russell, et. al. v. John Douglas Lipps, etc., et. al.

Circuit Court of Norfolk, In Chancery No. CH05-357

Gentlemen: On February 10, 2005 the plaintiffs, Betty Rosemond Lipps Russell and Norman N. Lipps (hereinafter “the plaintiffs”) filed a Bill of Complaint naming the following persons as defendants: John Douglas Lipps, the proponent of the last will and testament and codicil of Mary B. Lipps, deceased, Suzanne Lipps, Martha Ann Lipps Ford, Sharon R. Hillstrom, John Douglas Lipps (individual) and the estate of Mary B. Lipps, deceased (hereinafter “the defendants”). In the Bill of Complaint the plaintiffs “pray that an issue devisavit vel non be made up and tried by jury at the bar of this Court to ascertain whether the said paper writing dated June 26, 2003 is or is not the true Last Will and Testament of Mary B. Lipps”, and further request that the probate of that document be set aside and, further, that said document “be declared and adjudged not to be the Last Will and Testament of Mary B. Lipps”. The Bill of Complaint concludes with a final prayer that the Court decree that Mary B. Lipps “died in testate, without a valid Last Will and Testament”. The defendants thereafter filed a demurrer and plea in bar contending, in effect, that this Court’s resolution of two earlier, related cases serve to foreclose litigation of the issues raised in the Bill of Complaint. 1 The defendants responded with a Motion to Strike Plaintiff’s Demurrer and a 1 The previous litigation consisted of the Verified Petition to Admit a Copy of the Last Will and Testament and Original Codicil of Mary B. Lipps to Probate, In Chancery No., CH04-1122, filed May 7, 2004, and the lawsuit styled Betty Rosemond Lipps Russell, et. al. v. John Douglas Lipps, etc., et. al., In Chancery No.: CH04-1277,

Motion to Strike Plea. On July 19, 2005, this Court, by Order, overruled the Motion to Strike Demurrer and scheduled all other matters for hearing on July 26, 2005. On that date, the parties appeared and argued the demurrer, the plea in bar and the motion to strike plea.

For the reasons which follow, this Court overrules the demurrer, denies the plea in bar and grants the Motion to Strike Plea. Consistent herewith, the Court directs Mr. Bonney to draft, circulate and present to the Court an Order incorporating the rulings of this letter-opinion within ten (10) business days.

I For convenience purposes, and unless otherwise stated, the Court will refer herein to “the plaintiffs” and “the defendants” identically in reference to this case and to the consolidated cases. The Court now recites some relevant chronology of the consolidated cases. In the matter styled Verified Petition to Admit a Copy of the Last Will and Testament and Original Codicil of Mary B. Lipps to Probate, In Chancery No.: CH04-1122, John Douglas Lipps, son of the late Mary B. Lipps, alleged that his mother died on December 13, 2003, and therein sought a decree admitting probate a copy of her alleged last will and testament of October 25, 2002, and the alleged original codicil thereto, dated June 26, 2003. In addition, John Douglas Lipps alleged that on March 26, 2004, Betty Rosemond Lipps Russell and Norman N. Lipps had filed with the Clerk of the Norfolk Circuit Court a List of Heirs/Real Estate Affidavit representing that the Decedent died in testate”. As a final prayer relief, John Douglas Lipps prayed that said list of heirs and real estate affidavit be stricken from the Court’s records and thus, eliminated as a source of potential competition for the real and personal property of the late Mary B. Lipps.

Conversely, in the matter styled Betty Rosemond Lipps Russell, et. al. v. John Douglas Lipps, etc., et. al., In Chancery No. CH04-1277, the original bill of complaint sought the following relief: “WHEREFORE, your plaintiffs pray that an issue devisavit vel non be made up and tried by a jury at the bar of this Court to ascertain and try whether the copy of said paper writing dated October 25, 2002 is or is not the true Last Will and Testament of Mary B. Lipps; that defendant John Douglas Lipps’ Verified Petition to Admit a Copy of the Last Will and Testament and Original Codicil of Mary B. Lipps to Probate, Chancery No.: CH04-1122, involved the same parties at issue in this case, filed May 25, 2004 and later amended. By order dated June 16, 2004, the Court consolidated the two prior cases (hereinafter “the consolidated cases”). On January 27, 2005, the Court entered an Order for Nonsuit in the consolidated cases and, thereafter, on February 10, 2005, entered an Order incorporating the holdings of a December 16, 2004 letter-opinion and decreeing that “the decedent’s codicil is a valid will and may be admitted to probate.”

be denied; that the said paper writing dated October 25, 2002 be declared and adjudged not to be the true Last Will and Testament of Mary B. Lipps; that the copy of said paper writing and the codicil thereto not be admitted to Probate; that Mary B. Lipps be declared to have died in testate, without a valid Last Will and Testament; that the Court appoint a Curator over the estate of Mary B. Lipps; and for such further relief as to the Court may seem proper.”

As noted above, on June 16, 2004, the Court entered its consolidation order in the consolidated cased and on August 9, 2004 the defendants filed their Answer and Cross-Bill.

In that pleading the defendants denied the substantive allegations of the Bill of Complaint and asserted a cross-bill wherein they adopted the allegations of the Verified Petition to Admit a Copy of the Last Will and Testament and Original Codicil of Mary B. Lipps to Probate and prayed for the following relief: “WHEREFORE, your defendant [sic] prays that the Plaintiff’s Bill of Complaint be dismissed and that the Court establish that decedent did not revoke her Last Will and Testament, that her original Last Will and Testament is valid; that the copy of the Last Will and Testament and the Original Codicil of the decedent be approved and admitted to probate.

As the consolidated cases progressed, on October 8, 2004, the Court entered an Order directing that additional persons be made party defendants, rejecting the defendant’s motion to admit to probate “the purported Last Will and Testament of Mary B. Lipps as well as the Codicil thereto until this case is tried (§64.1-85)”, and ordering counsel for the parties to “submit memoranda addressing the question of whether the Codicil standing alone, may be construed as the decedent’s Last Will and Testament.” On November 2, 2004, the plaintiff’s filed an Amended Bill of Complaint which added new parties’ defendants, thereby aligning the parties of the consolidated cases with those of the current litigation, and, without having received prior leave of court, for the first time asserted the following matters: “That the paper writing, the Last Will and Testament, dated October 25, 2002 and the Codicil of Mary B. Lipps, dated June 26, 2003 is not her Last Will and Testament and her Codicil in that the Testatrix, Mary B. Lipps, lacked testamentary capacity and testamentary intent to make and execute a valid, Last Will and Testament and Codicil; and that the

defendant, John Douglas Lipps, obtained complete control over the will and mind of Mary B. Lipps so that the purported Last Will and Testament and Codicil was not a free Will and Testament of the said Mary B. Lipps, but was brought about by the undue influence, duress, and fraud, persistently and consistently exercised on the part of the said defendant, John Douglas Lipps over the said Mary B. Lipps.”

On November 18, 2004, the defendants filed their Amended Answer and Cross-Bill which effectively denied the plaintiff’s allegation and prayed for the Court to admit to probate the decedent’s alleged testamentary documents of October 25, 2002 and June 26, 2003 and, in addition, to strike the plaintiff’s competing list of heirs and real estate affidavit.

The defendant, on December 1, 2004, filed a Notice and Motion in Limine that scheduled a hearing for December 8, 2004 and requested that the Court dismiss that portion of the amended bill of complaint which alleged undue influence, duress, fraud and lack of testamentary capacity and intent. The defendant’s asserted in that pleading, among other things, that the plaintiff’s made such allegations without leave of Court and did so frivolously and without good faith.

The record of the consolidated cases does not reveal whether the Court conducted a hearing on December 8, 2004, however, on December 16, 2004, the Court issued a letter opinion which made numerous factual findings and, ultimately, held “that the decedent intended the Codicil to be a separate testamentary instrument. Therefore the Codicil is a valid will and may be admitted to probate.”

The Court, on December 29, 2004, entered an Order for Bill of Particulars directing the plaintiffs to set forth, “with particularity, the specific actions constituting fraud, duress, lack of testamentary capacity and/or undue influence as alleged” in the amended bill of complaint. The plaintiffs filed a Bill of Particulars on January 11, 2005. The defendants responded on January 18, 2005 by filing a Notice and Motion for Summary Judgment; it scheduled a hearing for January 20, 2005. The consolidated cases’ record does not reveal whether a hearing occurred on January 20, 2005 and the Court entered no order resolving the summary judgment motion. On January 26, 2005, the Court received and filed a January 25, 2005, letter from defendants’ counsel. That letter read as follows: “Enclosed please find an Order for Nonsuit, in the above captioned matter, which has been endorsed by counsel. If you find same to be in order, please present to a Judge for entry with the Court. Please certify the copies and return in the self-addressed stamped envelope provided.”

The Court entered the Order of Nonsuit on January 27, 2005. It’s text read as follows: “On this 20th day of January, 2005, came the parties, by counsel, and Plaintiff’s, by counsel, moved for a nonsuit herein, pursuant to §8.01-380 of the Code of Virginia, 1950, and the Motion was argued by counsel.

Upon consideration whereof, it is ORDERED, that Plaintiff’s be granted nonsuit.”

Counsel for the plaintiff endorsed the order of nonsuit following the language, “I ask for this:”, and counsel for the defendant endorsed the order, without objection, as “Seen”.

Thereafter, on February 8, 2005, counsel for the defendant filed a Notice and Motion. That document scheduled a February 10, 2005 hearing for the purpose of moving the Court for entry of an Order in accordance with the Court’s December 16, 2004 letteropinion.

On February 10, 2005 the Court entered an Order in the consolidated cases referencing its December 16, 2004 letter-opinion and decreeing “that the decedent’s Codicil is a valid will and may be admitted to probate.” Counsel for the plaintiffs endorsed that order as “Seen and…Objected to.”

II In the current litigation through the demurrer and plea in bar, the defendants contend that the Court’s February 10, 2005 order in the consolidated cases bars the plaintiff from seeking the relief prayed for in the bill of complaint on the grounds that the said order resolved all issues respecting the proceeding devisavit vel non and thus no relief can be granted at this time, and that plaintiffs are barred from relief by operation of statute (Va. Code §64.1-79, et. seq.) and pursuant to the doctrine of res judicata and/or collateral estoppel”. The defense countered that the Court’s January 27, 2005 nonsuit order effectively ended all litigation in the consolidated cases, removing the plaintiff as parties thereto, and thus contend that the Court’s subsequent February 10, 2005 Order held no effect upon them.

III The Court first addresses the issue whether the Court’s June 16, 2004 Order in the consolidated cases serve to consolidate them in the nature of a single suit or merely joined there separate claims to be heard together.

In Williams v. Fidelity Loan and Savings Company, 142 Va. 43, 50-51, 128 S.E.

615, 617-18 (1925), the Court noted and explored the difference between consolidated causes and causes ordered together for hearing: “Professor Lile, in his Outline of Equity Pleading and Practice (2d. Ed.), sections 341 and 342, clearly draws the distinction between consolidation and hearing together as follows: “Where several causes are technically consolidated, they become in effect a single suit, at least in so far as the circumstances of the several causes permit complete unity. The evidence in one becomes the evidence in the other (subject of course to the control of the Court to prevent injustice); the parties to one become parties to the other; and the cause proceeds for all purposes as if the several causes had been originally asserted in a single bill. It must be observed, however, that it is the proceedings that are consolidated and not the claims asserted, save where the ladder belonged to the same plaintiff.

“On the other hand, where there is near order of hearing together, unmodified, the suits remain as several as before, the only effect being that for convenience and economy the several steps toward the final disposition of the several causes are taken at the same time, and usually in the same decree. The parties to one are not necessarily parties to the other, and the evidence in one is not necessarily evidence in the other.”

In the last pronouncement of this Court upon the subject, Judge Burks, in Johnson v. Merritt, 125 Va. 162, 99 S.E.2d 85, said : “The consolidation of several causes is a very different thing from hearing them together. It is sometimes convenient, economical and appropriate that two or more chancery causes should be heard together, but it has been seriously doubted whether any two chancery causes are so identical that they may be consolidated[.]”

In earlier cases, the Court made clear that a trial court judge, sitting as chancellor in equity, possesses inherent power to properly exercise discretion to consolidate causes and not merely order them heard together. Patterson v. Eakin, 87 Va. 49, 5355, 12 S.E. 144, 145-46 (1890); and see Hill v. Postley, 90 Va. 200, 204, 17 S.E. 946,

948 (1893). With respect to the consolidated cases, the issues raised in the verified petition coincided exactly with the defendant’s cross-bill to the plaintiff’s original Bill of Complaint and there later-filed amended Bill of Complaint. In effect, the defendants, through their cross-bill and the verified petition sought a decree permitting them to probate a copy of the decedent’s October 25, 2002 purported Last Will and Testament and her June 26, 2003 purported original Codicil, and eliminate the Court’s recognition of the plaintiff’s competing contention that the decedent died intestate. The plaintiffs asserted the exact opposite position, that the decedent died intestate and that the Court should disallow the defendants from admitting to probate both the copy of the October 25, 2002 document and the original document of June 26, 2003. The defendants’ claims in the consolidated cases, although initially asserted in separate proceedings, were exactly the same. The plaintiffs stood in uniform opposition to the defendants’ factual assertions and claims for relief.

Moreover, the Court’s June 16, 2004 Order did not contain language limiting its Consolidation Decree to a mere hearing together for the sake of convenience or economy. The mutuality of interested persons and identical nature of the parties’ claims within the separate matters forming the consolidated cases warranted the Court’s exercise of discretion to consolidate the matters in effect is as a single suit, and the Court now holds that it did consolidate those causes in that way. It did not merely order the causes together for hearing purposes.

IV The Court next turns to the issue whether the January 27, 2005 Order of Nonsuit in the consolidated cases served to terminate the entirety of that litigation or only a subset of the claims asserted therein.

In this case the defendants contend that the plaintiffs nonsuit in the consolidated cases served only to end litigation on the Amended Bill of Complaint and the related Cross-Bill, and not litigation on the verified Petition. Thus, the defendants argue that the Court’s February 10, 2005 Order decreeing that the decedent’s Codicil “s a valid Will and may be admitted to Probate” binds all of the parties in this case. Having concluded the previous litigation with the ruling that the decedent’s Codicil may be admitted to Probate therefore exhausts the Court’s jurisdiction pursuant to Virginia Code Section 64.1-79, et. seq. and the defendants cannot now seek to litigate any divisivate vel non issue.

The plaintiffs, citing Winchester Homes, Inc. v. Osmose Wood Preserving, Inc., 37 F. 3rd 1053 (4th Cir. 1994) and other Virginia authorities, contend that the January 27, 2005 Nonsuit Order completely ended the litigation as to them and thus, whatever legal affect might be assigned to the February 10, 2005 Order, that Order did not affect their interests.

Numerous Virginia cases describe the affect of a nonsuit, which in general ends litigation upon a particular cause of action without a prevailing party and without

prejudice to a subsequent suit between the parties on the same cause of action.

Mallory v. Taylor, 19 Va. 348, 349, 18 S.E. 438 (1893); Cahoon v. McCulloch, 92 Va. 177, 180, 23 S.E. 25, 226 (1895); Sheets v. Castle, 263 Va. 407, 410-11, 559 S.E. 2nd 616, 618-19 (2002). As stated in Daniels v. Warden, 266 Va. 399, 402, 588 S.E. 2nd 382, 383 (2003): [G]enerally the affect of a first voluntary nonsuit pursuant to Code Section 8.01-380 is to put an end to a case without prejudice and without a decision on the merits and the fact of the former suit places no impediment on the claims or allegations that may be raised in a timely filed subsequent action on the same cause.

Virginia Code Section 8.01-380(C), however, limits a party’s right to nonsuit absent consent of the adverse party when a counterclaim, cross-claim or third-party claim exists which arises out of the same transaction or occurrence as the claim of the party desiring to nonsuit unless the adverse party’s claim can be independently adjudicated by the Court. See, Virginia Code Section 8.01-380(C); Iliff v. Richards, 221 Va. 644, 647-49, 272 S.E. 2nd 645, 647-48 (1980); Gilbreath v. Brewster, 250 Va. 436, 438, 442, 463 S.E. 2nd 836, 837-39 (1995). In Iliff, the Court made clear that entry of a Nonsuit Order serves not only to dismiss the claim of the moving party, but also ends litigation on the adverse party’s cross-claim. Id. 221 Va. at 649, 272 S.E. 2nd at 648. In Clarke v. Clarke, 11 Va. App. 286, 297-98, 398 S.E. 2nd 82, 88 (1990), the Court interpreted the limitation of Virginia Code Section 18.2-380(C) to apply in both law and chancery proceedings, holding that “[a] party is not allowed a nonsuit where an adverse party has cross filed a claim in the litigation which cannot be independently adjudicated.”

As noted above, in section III, in the consolidated actions the parties undertook polemic positions respecting probate of Mary B. Lipps alleged October 25, 2002 and June 26, 2003 writings. Under those circumstances, the Court could not independently adjudicate their respective claims.

Moreover, the defendants clearly consented the plaintiffs’ nonsuit in the consolidated cases.

Therefore, based upon the consolidation of the earlier cases, the unity of the issues asserted therein, the mutuality of the parties participating therein, and the defendants consent to the nonsuit, the Court holds that on January 27, 2005, Order of Nonsuit served to end the consolidated cases in their entirety, including all claims raised by the plaintiffs in the Bill of Complaint and the Amended Bill of Complaint, as well as those raised by the defendants in the Cross-Bill and the Verified Petition.

2 2 The defendants possessed two grounds on which to object to the Court’s granting a nonsuit in the consolidated cases. First, the defendants could have asserted, pursuant to Virginia Code Section 8.0l-380(C), that the Court could

V The holding that the January 27, 2005 Nonsuit Order ended all litigation in the consolidated cases does not end the Court’s inquiry. The issues remains whether the Court’s February 10, 2005 Order bound the parties and, if so, did its holding foreclose the plaintiffs from asserting their claims pursuant to Virginia Code Section 64.1-84 and/ 64.1-88, or as a result of the preclusive affects of Res Judicata or collateral estoppel.

In effect, the Court must determine whether the February 10, 2005 Order constituted a nunc pro tunc conclusion of the vesivate vel non proceedings pursuant to Virginia Code Section 64.1-79 et. seq.

At the outset the Court notes the following language of Virginia Code Section 64.1-83: In every such proceeding the Court may require all testamentary papers of the same decedent to be produced.

If any person interested ask it, it shall order a trial by jury, to ascertain whether any paper, or if there by more than one, which of the papers produced, be the will of the decedent and if no such trial be asked shall proceed without it to decide the question of probate. The Court shall make a final decree or order as to the probate. [Emphasis added] See generally, Tate v. Chumbley, 190 Va. 480, 493-94, 57 S.E. 2nd 151, 157 (1950).

Thus, the statutory language requires that upon conclusion of a trial the Court “shall” enter a final decree or order respecting probate of the documents at issue.

In addition, and notwithstanding the defendants’ heavy reliance upon Winchester Homes, supra., the Court in Dalloul v. Agbey, 255 Va. 511, 514, 499 S.E. 2nd 279, 281 (1998) held that a nonsuit order does not affect claims determined with finality within the litigation prior to entry of nonsuit.

not independently adjudicate their Cross-Bill thereby defeats the plaintiffs’ entitlement to nonsuit. Second, the defendants could have objected to the nonsuit pursuant to the provision of Virginia Code Section 8.01-380(A) that disallowed a nonsuit when “the action has been submitted to the Court for decision.” To make this objection, the defendants need only to have pointed to the Court’s December 16, 2004 letter-opinion and persisted in the contention of the Notice of Motion in Limine that the Amended Bill of Complaint, lacking leave of court to do so, improperly sought to assert allegations of undue influence upon, duress of, fraud upon and lack of testamentary capacity and intent of Mary Lipps respecting her alleged October 25, 2002 and June 26, 2003 writings.

In addition, and significantly, the defendants chose not to seek entry of an Order incorporating the putative rulings of the December 16, 2004 letter-opinion at any time prior to entry of the Nonsuit Order on January 27, 2005.

The defendants were free to do so. Instead, they apparently made a tactical decision to permit entry of the nonsuit, thereby extinguishing any prospect of the plaintiffs’ assertion of their newly-pressed claims, obtain entry of the February 10, 2005 Order incorporating the Court’s December 16, 2004 letter-opinion and permitting Mary Lipps’ Codicil to be admitted to Probate, and claim that such Order bound the plaintiffs and precluded their later assertion of contrary claims.

Agbey relies on Winchester Homes, Inc. v Osmose Wood Preserving, Inc., 37 F. 3rd 1053 (4th Cir. 1994). There, the federal court of appeals concluded that Code Section 8.01380 permits a plaintiff to suffer a nonsuit of an action as originally filed, even though some of the claims asserted have been dismissed with prejudice prior to entry of the nonsuit order. 37 F. 3rd at 1058. We disagree with Agbey’s argument and the decision in Winchester Homes. …

Manifestly, once a trial court has decided a particular claim that portion of the action has been “submitted to the court for decision” and the plaintiff may no longer suffer a nonsuit of that claim as a matter of right … Therefore when the trial court has reached a final determination in a proceeding regarding any claims or parties to claims, those claims and parties are excluded by operation of law from any nonsuit request. [citation omitted] As used in Code Section 8.01-380(A), the term “the action” refers to the action then pending before the court, namely the counterclaims remaining in a case at the time the nonsuit request is made. The claims that have been dismissed with prejudice at not part of a pending action, because a dismissal with prejudice is generally conclusive of the parties’ rights as if the action had been tried on the merits with the final disposition adverse to the plaintiff. [citations omitted] Thus, we hold that, under the language of Code Section 8.01-380(A), “the action” subject to a plaintiff’s nonsuit request is comprised of the claims and parties remaining in the case after any other claims and parties have been dismissed with prejudice or otherwise eliminated from the case.

According the longstanding precedent, Virginia trial courts possess inherent authority to utilize nunc pro tunc orders to correct mistakes, errors and omissions in setting to record judicial action taken in prior proceedings. Council v. Commownealth, 198 Va. 288, 292-93, 94 S.E. 2nd 245, 258 (1956); Netzer v. Reynolds, 231 Va. 444, 449, 345 SE 2nd 291, 294 (1986); and see Roberts v. Edwards, 141 Va. 338, 348-39, 127 SE 307, 309-10 (1925). In Harris v. Commonwealth, 222 Va. 205, 279 SE 2nd 395 (1981), decided upon facts analogous to the instant litigation, the circuit court judge timely issued a letter opinion pursuant to Virginia Code Section 16.1-269(E) holding it proper for a juvenile criminal defendant to “stand trial as an adult” and directed the Commonwealth’s Attorney to “please prepare an Order forthwith.” Id. 222 Va. 207, 279 SE 2nd 397. The Commonwealth’s Attorney did not do so and, only well after the 21 day applicable time period, did an Order incorporating the court’s letter-opinion

holdings come before the court for entry. The defendant objected to entry of the Order, in that the applicable provision of Virginia Code Section 16.1-269(E) required the court to enter an Order “within 21 days … either remanding the case to the juvenile court or advising the Commonwealth’s attorney that he may seek in indictment.” The Commonwealth therein argued for entry of the Order nunc pro tunc to the date of the court’s letter-opinion. Id. 222 Va. 208-209, 279 SE 2nd at 397-98. The circuit judge entered the Order nunc pro tunc and the Virginia Supreme Court affirmed: “There being satisfactory evidence of both the timely rendition and the terms of the judgment, the question then becomes whether the failure to enter a timely order was a “clerical error” within the meaning of the rule allowing a nunc pro tunc entry. If it was, the mandate of the statutory provision in question has been fulfilled; if it was not, the certification procedure was defective. We think it was a “clerical error.” The clerical mistakes which may be corrected under the court’s inherent power encompass errors made by other officers of the court including attorneys. [citations omitted] Here, the failure to enter a timely order wad due to attorney error. In his September 18, 1979 letter ruling, the trial judge directed the prosecutor to submit a sketch for an order “forthwith.” This was not done within the 21 day period [.]

[T]he nunc pro tunc entry was proper and the statutory directive that an order be entered advising the Commonwealth’s Attorney that he may seek an indictment was fulfilled.

222 Va. 210-11, 279 SE 2nd 398-99.

This case, contrary to the situation Harris, does not present a situation wherein the Court’s failure to enter the Order incorporating its December 16, 2004 letter-opinion resulted from a mistake, error or omission, thus warranting nunc pro tunc entry of the February 10, 2005 Order. Instead, the record clearly revealed and the Court holds that the defendants’ forbearance of objections to entry of the nonsuit and their subsequent conduct reveals an intentional, tactical decision to forego entry of Order incorporating the Court’s December 16, 2004 letter-opinion in an effort to obtain legal advantage over the plaintiffs. Therefore, the Court cannot construe the February 10, 2005 Order as a legally appropriate nunc pro tunc finalization of judicial action taken on December 16, 2004. In short, the Court holds that the February 10, 2005 Order lacked any binding effect upon the parties to this litigation.

VI For the foregoing reasons, the Court overrules the plaintiffs’ Demurrer and Plea

in Bar and grants the defendants’ Motion to Strike Plea. Counsel for the parties hereby are directed to request a Scheduling Conference within 20 business days and to schedule the matter for trial by jury as requested by the plaintiffs and in accordance with Virginia Code Section 64.1-83.

Very truly yours,

Norman A. Thomas Judge, Fourth Judicial Circuit NAT/mls