Lawyering, Society

Mespo’s Approbo Non Reprobo: Virginia Court Reaffirms Approbating and Reprobating Rule In Victory For Turley Blogger

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

44 thoughts on “Mespo’s Approbo Non Reprobo: Virginia Court Reaffirms Approbating and Reprobating Rule In Victory For Turley Blogger”

  3. The big question is will mespo be in the swimsuit edition as well or will Mrs. mespo put the kibosh on her hubby showing so much skin?

  5. congrats mespo

    my copy of the Virginia Lawyer’s Weekly hasn’t arrived yet
    (i’m waiting for the swimsuit edition)

  6. Tomdarch,

    When you file bankruptcy, you are required to fill out a lot of paperwork disclosing your assets, liabilities and providing numerous other bits of information required by federal law. All the paperwork is signed under penalty of perjury. One piece of that paperwork is known as Schedule F, where you are required to list certain creditors and other information, which you can find a copy of here: http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/BK_Forms_1207/B_006F_1207f.pdf

    As you can see, there is a column that one is to check if you dispute the claim of that particular creditor. Thus, unless you check that column for the particular debt you list, the default is that it is undisputed that you owe that creditor the amount.

    In this instance, the bankrupt filed bankruptcy to prevent personal liability, and in doing so, listed the plaintiff in the lawsuit as a creditor. However, the bankrupt failed to check the “disputed” column when listing the plaintiff as a creditor. The significance is that the Plaintiff in the state case used the bankrupt’s filings filed in federal court as a “sword” in the state case.

    As far as the well being dry, against the Debtor the debt was most likely discharged in his bankruptcy. A discharge is the Bankruptcy court’s Order making the particular debt no longer enforeable as to the bankrupt. Thus, the well is most likely dry as to the bankrupt/defendant. But there is still plenty of water left in any insurers’ well.

  7. For us non-lawyers, can someone explain what the significance is of “listing the personal injury claim as an undisputed debt”? What does “undisputed” mean in this case? (Is that as obvious as it sounds?) and What was the defendant/bankrupt hoping to gain by listing the claim as such in the context of the bankruptcy?

    (Or if it’s easier to answer in a general sense, what does ONE hope to gain by listing an ongoing personal injury claim as “undisputed debt” in a bankruptcy?)

    And maybe Mespo can’t comment on this directly, but am I wrong to have the impression that he just won his client the right to withdraw 4 million buckets of water from a completely dry well?

    All in all, though, it’s a pleasant surprise to learn that one actually can’t (or shouldn’t be allowed to) stand in one court and take one position in a case, then run across the hall and argue the opposite in another case. Maybe it’s my inherent cynicism, but I had the impression that this was done all the time….

  9. “a clever and ultimately successful tact.”

    Didn’t you mean “a clever and ultimately successful **tack** ” ?

    Tsk tsk! I thought lawyers were better at English…..

  11. Great lawyering, Mespo!!

    I am curious, how did you get passed the automatic stay under 11 usc 362? Also, isn’t the claim still dischargeable in the Defendant’s bankruptcy?

  13. Well, look who’s made it to fine company, along with Fred Jacuzzi, John Crapper (a double winner), and Humphrey (don’t) Bogart (that joint)!

    Congratulations, Squire Esposito, on your fine victory. Was this the case you were discussing weeks ago, concerning your elderly client?

    Expect to hear in the upcoming legal lexicon, “HOLY SHIT, I JUST GOT ESPOSITO’D…!!”

  15. Speaking of getting stiffed, it looks like Joe Paterno is transferring his assets to his wife. Can you spell s-h-a-m?

    I don’t think that preemptive action is going to pass the legal smell test.

  16. raff,

    You don’t know how many criminal cases that I have been stiffed on because of Bankruptcy….One guy discharged over 20 thousand and we won….He walked…

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