ANALYSIS OF JUNE 3, 2021 SUPREME COURT OPINION
(Posted June 3, 2021) After last week’s deluge of decisions, the Robes by the James return to a more sedate pace this morning, issuing a single published opinion in an appeal argued in the March session. Galiotos v. Galiotos is, as the caption suggests, a dispute between family members, and involves estate administration.
Two brothers, named as co-executors of their late mother’s will, developed differences of opinion on numerous aspects of estate administration. Brother A accused Brother B of self-dealing regarding one of the estate’s numerous valuable properties; B made parallel allegations against A about other matters. The matter inevitably wound up in circuit court, with each brother asking the court to remove the other from office.
When the parties appeared for a bench trial, Brother C was in the courtroom. Brother B moved to separate witnesses, including Brother C, since he wasn’t a co-executor and wasn’t a party to the litigation. Brother C claimed that he was indeed a party; Brother A shrugged and said he didn’t care. The court allowed him to remain.
Each party presented evidence of differences that the court eventually found were irreconcilable. Brother C, who testified early in the case, merely authenticated a batch of e-mails and explained his efforts to pour oil on his warring brothers’ troubled waters.
At the conclusion of the evidence, the learned judge decided that the only workable approach was to remove both brothers and appoint a neutral fiduciary in their place. The court denied both brothers’ requests for attorneys’ fees.
The brothers filed cross-appeals, and today the Supreme Court unanimously affirms the judgment. I’ll insert an editorial comment here: I can’t figure out why this opinion is published. The justices’ rulings all turn on whether the circuit court abused its discretion in various rulings, and each time the court finds no abuse.
The one ruling that may have made this proper material for Virginia Reports is the court’s affirmance of the decision to allow Brother C to remain in the courtroom. Statutorily, he should have been excluded. Code section 8.01-375 mandates exclusion of nonparty witnesses on motion of any party, and Brother C unquestionably wasn’t a party.
The justices nevertheless affirm the judgment despite this mandate, finding that any error was harmless. The purpose of the statute is to prevent the nonparty witness from conforming his testimony to that of a supposed collaborator. But Brother C testified before his ostensible collaborator, Brother A, and even then offered noncontroversial evidence, such as document authentication. That isn’t enough to warrant a reversal.
