Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Carrico, S.J.

RANDALL A. EADS
                                            OPINION BY
v.   Record No. 051228             SENIOR JUSTICE HARRY L.CARRICO
                                           June 8, 2006

DAVID CLARK, GUARDIAN OF THE
PERSON AND ESTATE OF ROY DALLAS
JOHNSON, INCOMPETENT, ET AL.

             FROM THE CIRCUIT COURT OF RUSSELL COUNTY
                       Henry Vanover, Judge

      The dispositive question in this case is whether the trial

court erred in refusing to allow Randall A. Eads (Eads), a

licensed attorney, to intervene in a suit he filed while counsel

for the guardian of an incompetent person.    Finding that the

trial court did not err, we will affirm its judgment.

      The record shows that on October 26, 1994, David Clark

(Clark) was appointed the guardian of the person and estate of

his uncle, Roy Dallas Johnson (Roy), an incompetent person who

had been hospitalized in state institutions over the course of

several years.    Clark employed Eads to file a bill of complaint

to sell two parcels of land Roy owned to pay past and future

medical bills incurred for his care and treatment.   On January

24, 1995, Eads filed the bill of complaint.

      The case lingered on the trial court’s docket for several

years without disposition.   Then, on May 18, 2000, the

Commonwealth of Virginia, Department of Mental Health, Mental
Retardation and Substance Abuse Services (the Department), filed

a bill of complaint for the enforcement of two judgment liens

the Department held against Roy’s land, one for $19,564.00 and

the other for $19,748.00.   The trial court ordered that the

Department’s action be consolidated for trial with the action

filed by Eads on behalf of Roy.

     The matter was referred to a commissioner in chancery to

determine, inter alia, the owners of the land described in the

bills of complaint and the liens existing on the land.   The

commissioner reported on July 8, 2002, that Roy was the owner of

the land and that it was subject to the two judgment liens held

by the Department.   The commissioner reported further that he

had been asked to rule on the validity of a deed of gift dated

June 30, 1994, and recorded August 9, 1995, from Roy to Mary

Ruth Johnson, one of his two sisters, conveying one of his two

parcels of land.   The commissioner also stated he had discovered

a second deed of gift that had been signed by Roy on a blank

date in 1994 and recorded May 20, 1997, conveying his other

parcel of land to Virginia Ellen Johnson, his other sister.

Clark did not learn about the existence of the two deeds until

after he filed his bill of complaint.1   The commissioner found

that Roy was incompetent when these deeds were signed and,


     1
       Mary Ruth Johnson is Clark’s mother and Virginia Ellen
Johnson is his aunt.

                                  2
therefore, that both were invalid and should be set aside.    The

two sisters filed exceptions to the commissioner’s report, but

the exceptions were overruled.

     On September 22, 2003, Eads filed an attorney’s lien “for

attorney fees in the sum of $7,500.00 and costs incurred in the

prosecution of this action in the sum of $1,500.00 for

professional services rendered herein.”   Eads asked the clerk of

court to “file this lien in the Court file.”

     Counsel for the Department and counsel for Mary Ruth

Johnson and Virginia Ellen Johnson submitted a proposal to Eads

that the Department would accept $35,000.00 in settlement of the

two judgment liens against Roy’s land and that a special

commissioner would be appointed to convey the property to Mary

Ruth Johnson and Virginia Ellen Johnson for $35,000.00.    Eads

objected to this private sale, and on August 27, 2004, the trial

court appointed Eads and Nicholas B. Compton, Roy’s guardian ad

litem, as special commissioners to sell Roy’s two parcels of

land at public auction.

     On October 6, 2004, Clark discharged Eads as his counsel

because Eads allegedly had misrepresented to the court that he,

Clark, objected to the sale of Roy’s land to Mary Ruth Johnson

and Virginia Ellen Johnson.   On October 8, 2004, the court

entered an agreed order that “instated” A. Benton Chafin, Jr.

(Chafin), as counsel for Clark in the stead of Eads.


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     The same order set aside and vacated the court’s decree of

sale entered on August 27, 2004, and the special commissioners

appointed by that decree were ordered to cancel the public sale

of Roy’s land.   On December 14, 2004, the court entered an order

approving the settlement of the Department’s liens and the sale

of Roy’s land to Mary Ruth Johnson and Virginia Ellen Johnson

for $35,000.00, plus $5000.00 for the cost of advertising the

cancelled public sale.   These amounts were deposited in court,

and Chafin was appointed special commissioner to prepare and

execute deeds completing the sale and to disburse the proceeds

of the sale.

     On December 15, 2004, Eads filed a motion to intervene,

stating that he had not been paid for his services as Clark’s

counsel from 1994 through October 8, 2004, and that payment

should come from the “res” of Roy’s property.    On January 3,

2005, Eads filed a motion to suspend the order of December 14,

2004, alleging that the sale of Roy’s land for $35,000.00 was

substantially less than its fair market value.

     Also on January 3, 2005, Lyndon Baines Johnson, nephew of

Roy, filed with the court an offer to purchase Roy’s property

for $125,000.00.   Later that day, the court entered an order

suspending the order of December 14, 2004, and setting Eads’

motion to intervene for hearing.




                                   4
     The hearing was held on April 8, 2005, and the court

announced its decision from the bench.2   On May 6, 2005, the

court issued an order embodying its oral rulings, denying Eads’

motion to intervene, vacating the January 3, 2005 order, and

restoring the December 14, 2004 order in full force and effect.

The order also appointed a special commissioner to issue the

appropriate deeds to Mary Ruth Johnson and Virginia Ellen

Johnson.   On May 24, 2005, the court entered a final order

dismissing the case and removing it from the docket.

     Eads cites former Rule 2:15 of the Rules of Court to the

effect that “a new party may by leave of court file a pleading

to intervene for the purpose of asserting any claim germane to

the subject matter of the proceeding.”3   Eads argues that his

motion to intervene was germane to the subject matter of the

proceeding, i.e., protecting the interest of the incompetent and

being paid for the professional services rendered.

     Eads says that as former counsel for Clark, he had a duty

to object to the “‘sweetheart deal’” proposed by counsel for the

Department and counsel for Mary Ruth Johnson and Virginia Ellen

Johnson.   Eads asserts that Clark’s action in steering the

     2
       Roy Dallas Johnson died on April 15, 2005.
     3
       Former Rule 2:15 was an equity rule. It was repealed
effective January 1, 2006, when present Rule 3:1 became
effective, providing that “[t]here shall be one form of civil
case, known as a civil action.” The provisions of former Rule
2:15 are now contained in present Rule 3:14.


                                 5
property to favored family members created suspicious

circumstances and suggested that Clark and others involved in

the proceeding were more interested in their own welfare than

the welfare of Roy.

        However, at the time Eads’ motion to intervene was heard,

he was no longer counsel for Clark; he became a mere bystander

when he was discharged by Clark and replaced by Chafin.    Eads

had neither the duty nor the right to interfere in the decision

of what was in Roy’s best interest.    Thus, he is left only with

his claim for counsel fees and, in our opinion, that claim is

not germane to the subject matter of the proceeding at issue

here.

        [A] new party may not intervene and assert a claim in a
        pending suit unless the claim is ‘germane to the subject
        matter of the suit.’ Rule 2:15. In order for a stranger
        to become a party by intervention, he must ‘assert some
        right involved in the suit.’ Lile’s Equity Pleading and
        Practice at 91 (3rd ed. 1952).

Layton v. Seawall Enterprises, Inc., 231 Va. 402, 406, 344

S.E.2d 896, 899 (1986) (emphasis in original).


        Rule 3:19 is a specific Rule enacted by this Court to
        govern the orderliness of proceedings . . . .[4] [T]he
        Rule’s history includes a strong adherence to limiting


        4
       Former Rule 3:19 was a law rule with language identical to
former Rule 2:15. Former Rule 3:19 was repealed effective
January 1, 2006, when Rule 3:1 became effective, providing that
“[t]here shall be one form of civil case, known as a civil
action.” The provisions of former Rule 3:19 are now contained
in present Rule 3:14.

                                   6
     intervention to those parties who are legitimately
     plaintiffs or defendants because the nature of their claim
     includes some right that is involved in the litigation.

Hudson v. Jarrett, 269 Va. 24, 34, 606 S.E.2d 827, 832 (2005).

     We concluded in Hudson that “[t]he claims of the

intervenors here fail to meet these conditions.”    Id.   The same

conclusion must be reached with respect to Eads’ claim here.

The subject matter of this proceeding after Eads was discharged

was the validity of the contract entered into by the guardian

with new counsel on the one hand and Roy’s two sisters on the

other.   The claim asserted by Eads was not a right involved in

that proceeding.   See Hudson, 269 Va. at 34, 606 S.E.2d at 832,

and Layton, 231 Va. at 406, 344 S.E.2d at 899.     Indeed, to the

contrary, had he not been discharged, he would have opposed the

approval of the contract.

     In addition to his assignment of error that the trial court

erred with respect to his motion to intervene, Eads assigned

five other errors.   However, he agreed during oral argument that

if we find the trial court did not err in denying intervention,

we could not reach the five other assignments of error, so we

will not consider them.

     For the reasons assigned, we will affirm the judgment of

the trial court.

                                                           Affirmed.




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