Bailey v. Phelps

Campbell County Circuit Court

Bailey v. Phelps

66 Va. Cir. 413, 1997 Va. Cir. LEXIS 733

CourtCampbell County Circuit Court

DecidedDecember 5, 1997

DocketCase No. CL96000077

StatusPublished

This text of 66 Va. Cir. 413 (Bailey v. Phelps) is published on Counsel Stack Legal Research, covering Campbell County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bailey v. Phelps, 66 Va. Cir. 413, 1997 Va. Cir. LEXIS 733 (Va. Super. Ct. 1997).

Pincite

Opinion

By Judge J. Michael Gamble

The plaintiffs, by counsel, have requested the Court to appoint a guardian ad litem for Stephen M. Phelps. Mr. Phelps was convicted of felonies in the United States District Court for the Western District of Virginia and sentenced to serve a term of imprisonment in a correctional facility of the United States. The instant action was filed in the Circuit Court of Campbell County on May 6, 1996, and served on Mr. Phelps on May 8, 1996.

On May 16, 1996, Mr. Phelps was found guilty of various felony offenses by the United States District Court for the Western District of Virginia. Thus, the instant lawsuit was filed and served prior to the date of his convictions.

The Equitable Life Assurance Society of the United States (“Equitable”) maintains that a guardian ad litem should not be appointed because a committee has not been appointed under the provisions of § 53.1-221 of the Code of Virginia. Implicit in the motion opposing the appointment of the guardian ad litem, The Equitable maintains that § 53.1-221 is the controlling statute. This Court does not agree.

In Dunn v. Terry, 216 Va. 234, 239 (1975), the Supreme Court of Virginia held the appointment of a committee for a convict was a procedural requirement that could be waived. In that case, just as in the instant case, the defendant had been sued and served prior to his conviction and incarceration. The defendant had not requested the appointment of a committee. Thus, the Court held the defendant had the privilege of waiving the appointment of a committee and proceeding to trial. Dunn v. Terry, supra, at 238.

[414]*414Additionally, § 53.1-221 applies to a defendant who is sentenced to confinement in a state correctional facility. In this case, the defendant was sentenced to a correctional facility of the United States. Thus, § 53.1-221 arguably does not apply.

Section 8.01-9 of the Code of Virginia applies to the appointment of a guardian ad litem for persons under a disability. That statute makes it mandatory that a guardian ad litem be appointed for someone under a disability. Thus, it is the ruling of this Court that a guardian ad litem must be appointed for Stephen M. Phelps, a felony prisoner in a United States correctional facility.

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By Judge J. Michael Gamble

The plaintiffs, by counsel, have requested the Court to appoint a guardian ad litem for Stephen M. Phelps. Mr. Phelps was convicted of felonies in the United States District Court for the Western District of Virginia and sentenced to serve a term of imprisonment in a correctional facility of the United States. The instant action was filed in the Circuit Court of Campbell County on May 6, 1996, and served on Mr. Phelps on May 8, 1996.

On May 16, 1996, Mr. Phelps was found guilty of various felony offenses by the United States District Court for the Western District of Virginia. Thus, the instant lawsuit was filed and served prior to the date of his convictions.

The Equitable Life Assurance Society of the United States (“Equitable”) maintains that a guardian ad litem should not be appointed because a committee has not been appointed under the provisions of § 53.1-221 of the Code of Virginia. Implicit in the motion opposing the appointment of the guardian ad litem, The Equitable maintains that § 53.1-221 is the controlling statute. This Court does not agree.

In Dunn v. Terry, 216 Va. 234, 239 (1975), the Supreme Court of Virginia held the appointment of a committee for a convict was a procedural requirement that could be waived. In that case, just as in the instant case, the defendant had been sued and served prior to his conviction and incarceration. The defendant had not requested the appointment of a committee. Thus, the Court held the defendant had the privilege of waiving the appointment of a committee and proceeding to trial. Dunn v. Terry, supra, at 238.

[414]*414Additionally, § 53.1-221 applies to a defendant who is sentenced to confinement in a state correctional facility. In this case, the defendant was sentenced to a correctional facility of the United States. Thus, § 53.1-221 arguably does not apply.

Section 8.01-9 of the Code of Virginia applies to the appointment of a guardian ad litem for persons under a disability. That statute makes it mandatory that a guardian ad litem be appointed for someone under a disability. Thus, it is the ruling of this Court that a guardian ad litem must be appointed for Stephen M. Phelps, a felony prisoner in a United States correctional facility.

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66 Va. Cir. 413, 1997 Va. Cir. LEXIS 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-phelps-vacccampbell-1997.

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