Joseph T. Elliott, Jr. v. La Krista M. Fant

• Court: Court of Appeals of Virginia
• Decided: August 22, 2023
• Docket: 2003222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Huff, Lorish and Senior Judge Petty

JOSEPH T. ELLIOTT, JR. MEMORANDUM OPINION* v. Record No. 2003-22-2 PER CURIAM AUGUST 22, 2023 LA KRISTA M. FANT, ET AL.

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Edward A. Robbins, Jr., Judge

(Henry W. McLaughlin; Law Office of Henry W. McLauglin, P.C., on briefs), for appellant.

(Michelle L. Ferris; Ferris & Ferris, on brief), for appellee.

No brief or argument for appellee Heritage Title Company of Virginia, Inc.

Joseph T. Elliott, Jr. appeals the trial court’s order dismissing with prejudice his claim for

partition of certain residential property in Chesterfield County, Virginia, and for damages, ordering

reformation of the title to that property to vest clear title to the whole property in appellee, La Krista

M. Fant, and taxing to Elliott $6,000 for services of the Commissioner in Chancery. After

examining the briefs and record in this case, the panel unanimously holds that oral argument is

unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a).

As such, we affirm.

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1

In 2003, Elliott purchased a home in Chesterfield County, Virginia. The home occupies two

lots (Lots 5 and 6) in the West Chesterfield Heights neighborhood. In 2006, Elliott refinanced the

original deed of trust secured by Lots 5 and 6. The new deed of trust, however, mistakenly included

only Lot 6 in the legal description of the property. In 2014, Elliott suffered financial reversals

leading to foreclosure of the new deed of trust. Elliott vacated the property, surrendering possession

to his lender consistent with his understanding that the loan was secured by both Lots 5 and 6, and

the house. Elliott knew he had lost possession of the house and both lots and did not challenge the

foreclosure.

Fant subsequently purchased what she believed was the entire property (Lots 5 and 6 and the

house), unaware that Lot 5 had been erroneously omitted from the 2006 deed of trust. About nine

months after Fant moved in, Elliott approached her asserting ownership of half of the property,

despite his previous intention and understanding that the entire property served as collateral for the

foreclosed loan. Elliott demanded that Fant pay rent to him for Lot 5, purchase Lot 5 from him, sell

the residence and split the net proceeds with him, or allow him to occupy half of the house.

Fant refused, and Elliott sued. Elliott asked the trial court to either order Fant to purchase

his claimed half of the property from him and to pay him a fair rental value on that half of the

property from March 2015 until completion of the sale, or to order partition and sale of the property

and to distribute the proceeds between himself and Fant, with a deduction from Fant’s share payable

to Elliott for fair rental value as noted above. Elliott admitted in his complaint that “the facts of this

1 “On appeal, we review the evidence in the light most favorable to the party prevailing below, here the Commonwealth, together with all reasonable inferences that may be drawn therefrom.” Dotson v. Commonwealth, 47 Va. App. 237, 241 (2005). See also Morrill v. Morrill, 45 Va. App. 709, 712 (2005). “That principle requires us to ‘discard the evidence’ of [Elliott] which conflicts, either directly or inferentially, with the evidence presented by [Fant] at trial.” Artis v. Jones, 52 Va. App. 356, 359 (2008) (quoting Congdon v. Congdon, 40 Va. App. 255, 258 (2003)). -2- case demonstrate that Fant has been the victim of an error not of her making which she could not

reasonably” have anticipated and that the deed of trust “should have” included both lots.

Fant answered and filed a third-party complaint against Heritage Title Company of

Virginia, Inc. (Heritage) and WFG National Title Insurance Company (WFG), asking the trial

court to order them to “indemnify Fant for any and all expenses for which she is liable to

Elliott,” to find them “liable for all attorney’s fees and costs incurred by Fant in having to defend

the action,” and to grant “such other further relief as the Court may deem just and proper.”

The trial court appointed a Commissioner in Chancery who submitted findings and

recommendations after hearing evidence. The commissioner found that Elliott was the record

owner of Lot 5 and that Fant was the record owner of Lot 6. He found further that Elliott “turned

over equitable title, [and] possession, of the home and both lots to his lender” when the latter

foreclosed on the property, that “[e]veryone involved with the foreclosure, including Elliott,

believed that the legal title to the residence and both lots passed to the foreclosing lender,” and that

equitable title to Lot 5, along with legal title to Lot 6, passed to the lender. Noting that “Fant

purchased the residence and the lots from the lender paying a price in keeping with their foreclosure

values, took title to Lot 6 and believed that she took title to Lot 5,” the commissioner found that

“Fant was a bona fide purchaser for value of the residence and both lots without notice of any

adverse claim.” As evidence of this, the commissioner pointed to Fant’s payment of $110,000 for

the residence and both lots and her additional expenditures to renovate the residence and the

grounds of both lots. The commissioner concluded that Fant was “the equitable owner of [the

disputed lot] and that portion of the residence on [it] having possession of both and having paid

for both” and that “Elliott ha[d] not proven any damages at the hands of Fant.”

The commissioner recommended that the trial court dismiss Elliott’s complaint against

Fant with prejudice and that it use its equitable powers to order reformation of the land records,

-3- beginning with Elliott’s refinancing in December 2006, to include both lots, thus effectively

vesting legal as well as equitable title in Fant. The commissioner further recommended that the

trial court order both third party defendants Heritage and WFG to indemnify Fant “for any and

all monetary losses that she sustain[ed] in order to defend herself against” Elliott’s claims,

“including but not limited to, her attorney’s fees, court costs, expenses of these lawsuits, and any

other funds she may be required to pay to clear title to Lot 5 . . . into her name.” The

commissioner further recommended that the trial court order Heritage to indemnify WFG for

“any and all monetary losses” it sustained defending against Fant’s third party complaint.

By an order entered on November 30, 2022, the trial court confirmed the commissioner’s

report in part, denied Elliott’s claims, ordered equitable reformation of the deed to vest clear title

in Fant, and taxed $6,000 in costs to Elliott. The trial court deemed the case between Elliott and

Fant “only” to be “final,” ordering it “stricken from the active docket . . . and filed among the

ended cases.” However, the trial court took the commissioner’s recommendations concerning

Heritage and WFG under advisement pending reformation of the land records concerning Lot 5

in Fant’s favor. The trial court entered an order effectuating that reformation on January 4, 2023.

ANALYSIS

I. Jurisdiction

“Before addressing the merits of an appeal, we must first determine whether we have

jurisdiction.” Minor v. Commonwealth, 66 Va. App. 728, 737 (2016). Generally, this Court has

jurisdiction to consider an appeal from “any final judgment, order, or decree of a circuit court in

a civil matter.” Code § 17.1-405(3).

Unless otherwise provided by rule or statute, a judgment, order or decree is final if it disposes of the entire matter before the court, including all claim(s) and all cause(s) of action against all parties, gives all the relief contemplated, and leaves nothing to be done by the court except the ministerial execution of the court’s judgment, order or decree. -4- Rule 1:1(b) (emphasis added). By its clear terms, the challenged order did not dispose of all

claims against all parties because the trial court reserved judgment as to the claims between and

against Heritage and WFG. However, this Court has jurisdiction to hear the appeal because the

trial court’s order “involve[d] an equitable claim in which the . . . order . . . require[d] . . . title of

property to be changed.” Code § 17.1-405(A)(5)(i).

II. Elliott has waived most of his claims under Rule 5A:20(e).

Elliott challenges several of the commissioner’s findings and recommendations and the

trial court’s implementation of them. These include divesting him of record title, vesting record

title in Fant, and reforming the deed to so reflect, denial of his claim for rent from Fant, granting

Fant’s motion to strike his evidence, overruling his objections to the commissioner’s

recommendations, finding that he came to court in this matter with unclean hands, and taxing

$6,000 in commissioner’s fees and expenses to him.

Merely stating a brute claim on appeal is insufficient. Rule 5A:20(e) requires that the

appellant’s opening brief contain “[t]he standard of review and the argument (including

principles of law and authorities) relating to each assignment of error.” (Emphasis added).

“Statements unsupported by argument, authority, or citations to the record do not permit

appellate consideration.” Parks v. Parks, 52 Va. App. 663, 664 (2008) (quoting Cirrito v.

Cirrito, 44 Va. App. 287, 302 n.7 (2004)). “Where a party fails to develop an argument in

support of his or her contention or merely constructs a skeletal argument, the issue is waived.”

Blankenship v. Commonwealth, 71 Va. App. 608, 623 n.2 (2020) (quoting Bartley v.

Commonwealth, 67 Va. App. 740, 746 (2017)). See also Jay v. Commonwealth, 275 Va. 510,

520 (2008) (Where a party’s failure “to strictly adhere to the requirements of Rule 5A:20(e)” is

significant, this Court “may treat a question presented as waived.”). Consistent with those

principles, we have held that a criminal defendant’s failure to comply with Rule 5A:20(e) was

-5- significant when he made “one reference” to a single case and failed to support his argument

“with any legal analysis or authority from [that case] or any other source.” Bartley, 67 Va. App.

at 745. Consequently, we declined to consider his arguments, finding that his opening brief left

this Court without a “legal prism through which to view his alleged error.” Id. at 746.

Elliott’s claims consist mostly of conclusory statements asserted ipse dixit, leaving this

Court without a legal prism through which to consider the alleged error. Such claims are

waived.2 Blankenship, 71 Va. App. at 623 n.2. He supports only two positions with legal

authorities—his claim that divesting him of record title violated his due process rights under the

Constitution of Virginia, and his objection to having been taxed with commissioner’s fees and

expenses. We begin with the latter point.

III. Taxing $6,000 in commissioners’ fees and expenses to Elliott

In objecting to the trial court’s taxing $6,000 in commissioner’s fees and expenses to

him, Elliott relies on Ramos v. Wells Fargo Bank, N.A., 289 Va. 321 (2015), which he

characterizes as holding that “a party may not recover money damages not sought in an ad

damnum clause.” See Rule 3:2(c)(ii) (“Every complaint requesting an award of money damages

shall contain an ad damnum clause stating the amount of damages sought.”). Elliott’s reliance

on Ramos is misplaced. In Ramos our Supreme Court affirmed a trial court in sustaining a

demurrer where, inter alia, the complaint “contain[ed] no ad damnum clause stating the amount

of any damages claimed.” Ramos, 289 Va. at 323-24. Ramos is inapposite because the $6,000

2 Claims so waived include Elliott’s assertion that the trial court erred in overruling his exception to the commissioner’s conclusion that he lost equitable title to Lot 5 upon foreclosure of the deed of trust, that the trial court erred in overruling his exception to the commissioner’s finding that Fant owed Elliott no rent, and finding grounds for the reformation of the deed to Lot 5, that the trial court erred in granting Fant’s motion to strike, and that the trial court erred in finding that Elliott came to the controversy with “unclean hands.” -6- was not damages awarded to Fant to satisfy a claim against Elliott; rather, the $6,000 was the

cost due to the commissioner for adjudicating the claim that Elliott brought.

Moreover, Elliott waived this point by never having objected to the taxing of

commissioner’s fees and expenses to him before the trial court. “[W]e are a court of review, not

of first view.” Glacier Northwest, Inc. v. Int’l Brotherhood of Teamsters, Local No. 71, 143

S. Ct. 1404, 1415 n.3 (2023) (alteration in original) (quoting Cutter v. Wilkinson, 544 U. S. 709,

718 n.7 (2005)). “No ruling of the trial court . . . will be considered as a basis for reversal unless

an objection was stated with reasonable certainty at the time of the ruling, except for good cause

shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “This

contemporaneous-objection requirement affords ‘the trial court a fair opportunity to resolve the

issue at trial, thereby preventing unnecessary appeals and retrials.’” Hammer v. Commonwealth,

74 Va. App. 225, 236 (2022) (quoting Creamer v. Commonwealth, 64 Va. App. 185, 195

(2015)). Although there are exceptions to Rule 5A:18, “[Elliott] has not invoked” them, “and we

do not consider them sua sponte.” Spanos v. Taylor, 76 Va. App. 810, 827-28 (2023) (citing

Edwards v. Commonwealth, 41 Va. App. 752, 761 (2003) (en banc)); cf. Jones v.

Commonwealth, 293 Va. 29, 39 n.5 (2017) (noting that the Supreme Court does not invoke the

exceptions to Rule 5:25 sua sponte).

IV. Divestiture of Elliott’s legal title and equitable reformation of the deed in favor of Fant

This brings us to Elliott’s sole surviving claim: That divesting him of record title to the

property violated Article I, Section 11 of the Constitution of Virginia, providing in pertinent part

that “[n]o person shall be deprived of life, liberty, or property without due process of law.”

Citing only the City of Chesapeake circuit court case of BBR Investments, LLC v. JEMD Realty,

LLC, 107 Va. Cir. 339 (2021), Elliott claims that his constitutional rights have been violated

-7- because “no pleading was ever filed putting [him] on notice [that] he was being sued to deprive

him of ownership of real property.”

BBR Investments is inapposite. It addressed an order approving the sale of real property

entered at the behest of a receiver, where certain junior lienholders received no notice or

opportunity to be heard on the sale. Id. The divestiture of Elliott’s record title, by contrast, did

not result from litigation instituted by a stranger without his knowledge. Rather, it is the product

of legal proceedings that he initiated seeking to divest Fant of part of her interest in the property.

“Due process analysis involves a two-part inquiry. First, there must be a deprivation of a liberty

or property interest. Then, ‘[o]nce it is determined that due process applies, the question remains

what process is due.’” Carter v. Gordon, 28 Va. App. 133, 145 (1998) (alteration in original)

(quoting Jackson v. W., 14 Va. App. 391, 406 (1992)). As noted, Elliott initiated this action by

seeking partition of the property, claiming “legal ownership of half of [the] home.” Fant

answered, categorically denying Elliott’s ownership interest. Further, Elliott admitted during the

litigation that he knew the omission of Lot 5 from the 2006 deed of trust was “a mistake.” Under

these circumstances, Elliott had ample notice of Fant’s claim to ownership of the entirety of the

property and a fulsome opportunity to be heard on it. Elliott received all the process due to him.

“Procedural due process rules are meant to protect persons not from the deprivation, but

from . . . mistaken or unjustified deprivation . . . .” Id. (emphasis added). In this case, the

commissioner found Fant was “the equitable owner of [the disputed lot] and that portion of the

residence on [it] having possession of both and having paid for both.” The commissioner further

found that “Elliott ha[d] not proven any damages at the hands of Fant.” The commissioner found

“Fant to be an innocent party having done nothing wrong, and therefore the party with standing

to receive equitable aid from the Court” and that “Elliott intended to pledge his entire property,

Lots 5 and 6 and the residence on both, as collateral on his refinanced deed of trust in 2006.”

-8- The commissioner recommended that the trial court dismiss Elliott’s claims with prejudice and

use its equitable powers to correct the land records to reflect Fant’s sole ownership of the whole

property. The trial court confirmed the commissioner’s findings and implemented his

recommendations concerning Elliott’s claim against Fant.

“While the report of a commissioner in chancery does not carry the weight of a jury’s

verdict, Code § 8.01-610, it should be sustained unless the trial court concludes that the

commissioner’s findings are not supported by the evidence.” Daly v. Shepherd, 274 Va. 270,

273 (2007) (quoting Roberts v. Roberts, 260 Va. 660, 667 (2000)). We conclude that the record

amply supports the commissioner’s findings.

CONCLUSION

“On appeal, a decree which approves a commissioner’s report will be affirmed unless

plainly wrong.” Id. The decree below was not plainly wrong, and we affirm.

Affirmed.

-9-