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JDR court’s dismissal on merits was final order

Virginia Lawyers Weekly//January 15, 2021

JDR court’s dismissal on merits was final order

Virginia Lawyers Weekly//January 15, 2021

The circuit court has jurisdiction over this matter concerning a minor child because the JDR’s dismissal on the merits was a final order, thus permitting the circuit court to assume jurisdiction.

Final order

Initially, the court must decide whether this case was ended in the JDR court “by way of a nonsuit taken by the petitioner, as Respondent urges. Ms. Freeman, the next friend, agrees with Respondent that there would be no final order appealable to this court should that be the case.

“I find that the petitioner did not suffer a nonsuit upon motion made through his guardian ad litem. The JDR court’s November 4, 2020 nunc pro tunc order recites only that the guardian ‘request[ed]’ dismissal of the petition. A guardian’s recommendation, while not to be disregarded, is not binding or controlling. …

“Accordingly, the Court finds that the JDR court dismissed the petition on its merits, in accordance with the guardian’s recommendation. Therefore, the order was final and appealable pursuant to Virginia Code § 16.1-296.”

Who can appeal?

“The next question is whether only the guardian could appeal to this court on behalf of the petitioner, as Respondent contends, or whether the next friend (also) had the authority to do so. …

“In Virginia, the right of an infant to sue by next friend is codified at Code§ 8.01-8. ‘Any person may bring a suit in the name of an infant as his next friend, and, ordinarily, the court will recognize him as such next friend and take cognizance of the case as properly brought and prosecuted.’ …

“The Court finds that the default rule under the law is that any person, including Ms. Freeman, could have noted the petitioner’s appeal of the JDR court’s order on his behalf as his next friend.

“However, Respondent argues that the JDR court’s order appointing a guardian ad litem for the petitioner necessarily operated to ‘replace’ the next friend as the person authorized to prosecute the case by ‘transferring’ those rights to the guardian[.]’”

Respondent cites two cases that are inapposite. The first is distinguishable because the JDR court specifically transferred rights to the guardian and the father. There was no such provision in the JDR court’s order in this case. In the second case, the issue of transferring power to a guardian was not an issue before the court.

Respondent also cites Givens v. Clem, 107 Va. 435 (1907). “The Court finds that Givens is on point, but to Respondent’s detriment. In Givens, the purchaser in a contract for the sale of land brought suit for specific performance against the executor of an estate as vendor, and decedent’s minor children, who were the infant owners. (The decedent’s widow also was named as a defendant.)

“Following the trial court granting judgment for the purchaser, the children petitioned for appeal by their mother as next friend. Purchaser sought to dismiss the appeal as to the children ‘because their guardian ad litem alone had the right to appeal on their behalf.’ …

“The Court refused the request saying, ‘The guardian ad litem item might have taken an appeal in the name of the infants, by himself as such; but, if he did not, they had the right to do so by someone as their next friend.’ …

Givens therefore establishes that a next friend and guardian ad litem both have authority to prosecute an appeal. That being said the next friend could properly note the petitioner’s appeal of the JDR’s court order notwithstanding the fact that a guardian ad litem had been appointed in the case. Accordingly, the Court finds that this court does not lack jurisdiction over the appeal.

“Given that this matter will be proceeding in light of the court’s rulings, the court finds that the appointment of a guardian ad litem is necessary to protect the interest of the petitioner.”

Burns-Freeman v. Freeman, Case No. CL 20-6977, Jan. 5, 2021, 20th Cir. Ct. (Irby). Amanda Stone Swart, Jessica McCollum for the parties. VLW 021-8-004, 3 pp.

VLW 021-8-004

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