If any of our regular readers received the Virginia Lawyer’s Weekly, they would have spotted a familiar name in a recent notable case. Mark Esposito, one of our esteemed Guest Bloggers, featured prominently in the case — showing that he is as talented in the legal sphere as he is in the blogosphere. He won in the clever use of the doctrine of quod approbo non reprobo. It might be easier in the future for court to just call it “a Mespo” claim. The case is Womack v. Yeoman (VLW 011-8-207)
Mark is counsel for Sheila Womack, 29, is an office assistant who claimed she suffered a head injury when Jerrene Yeoman made an improper left turn and their cars collided. The case involved the notable twist that Yeoman “torpedoed her own personal injury defense with her bankruptcy filings” and now faces a $4 million judgment secured by Mark and his co-counsel.
Richmond Circuit Judge Margaret P. Spencer found Yeoman took an inconsistent position when she found that Yeoman signed bankruptcy forms, listing the personal injury claim as an undisputed debt. With the bankruptcy court, she included the $5 million claim in three separate listings as undisputed. Mark noted that the filings were made under oath and thus were inconsistent legal positions — a clever and ultimately successful tact. This was a reaffirmation of the approbating and reprobating doctrine.
The doctrine comes from the maxim quod approbo non reprobo “that which I approve, I cannot disapprove,” often used in will cases. For example, in a will a person cannot “approbate” by accepting a benefit while at the same time “reprobate” by denying the effect of its other terms. This principle is also known as the equitable doctrine of election.
Congratulations to Mark and his law firm in the case. We have also begun a review of all of our blog entries to identify any inconsistent statements that Mark could cite in the future.
Source: Va Lawyer’s Weekly
Malisha:
“Mespo, I have recently discovered and begun to explore, with great excitement, the “approbate and reprobate” issue, but had not found it in Virginia law.”
*******************
Obviously, I too now share your enthusiasm. Start with Cangiano v. LSH Bldg. Co., L.L.C., 271 Va. 171, 181 623 S.E.2d 889, 895 (2006). You could also take a look at the doctrine’s “kissing cousin,” Judicial Estoppel. See Parson v. Carroll, 272 Va. 560, 564, 636 S.E.2d 452, 454 (2006).
Big Congrats Mespo.
Mespo, I have recently discovered and begun to explore, with great excitement, the “approbate and reprobate” issue, but had not found it in Virginia law. Perhaps that is because I was searching without knowing the Latin phrase so I was just finding random cases and so forth. It is intriguing to me that this kind of relates to a “law of the case” feeling, in which a person’s position, taken when they are eager to prove point A to win motion (a), can pop up later when they are insisting it is untrue while making the opposite point (Z) to win motion (z). If a case goes through motion after motion after motion and morphs from one kind of thing into another, does the appro/repro thing operate like “law of the case” or can it be used to provide preclusion of some sort? At least equitable estoppel of some sort? What do you think?
Mark/Mespo
Well done!
Does this mean it takes a reprobate to find a reprobate? 😀 Congratulations on a job well done, Mark.
Congratulations, Mark Well done.
Mike S:
Thanks, Mike. Contrary to appearances, I do practice law sometimes. 😀
Congratulations, Mespo.
Congratulations on the liability/damages win; wishing equal success with collection.
In a similar vein, I have seen a voters’ list used to prove residency, and a income tax return used to prove a common law marriage.
Well done Mespo! Would this constitute a case won on the threshold issue? It looks like the publication linked is for paid subscribers so I didn’t get to read the full depth of the article. Excellent work.
I think that if Ms. Yeoman was advised on her bankruptcy filings by her lawyer in the accident case she would be wise to retain you to sue her counsel for malpractice.
“Congratulations to Mark and his law firm in the case. We have also begun a review of all of our blog entries to identify any inconsistent statements that Mark could cite in the future.”
********************
Likely I would have to cite those uttered by me. Thanks to all.
Your client has been well served.
“Out of the facts grows the law; that is, propositions are not considered abstractly, but always with reference to facts.” (Louis D. Brandeis)
Congrats Mark. Sharp thinking. If only we could apply that doctrine to politicians.
Mark,
And all this time I thought you were just an excellent writer and provider of apt quotations……….Who knew?
Mazel Tov on the win and on the resultant recognition.
A “mespo” is short for Mark Espoito.
Never mind, in rereading I see it was a joke I didn’t get the first time. “A mespo claim”. D’OH!
Congratulations, Mespo…Mark!
Very clever. Congratulations Mark.
Please educate me, what the heck is a “mespo” (other than a poster here) google is no help. – thanks
Congratulations, Mark. Well done.