[Posted September 17, 2015] Today is an important anniversary in legal history: 228 years ago today, the most important document in American history was signed in Philadelphia. (No, not the Declaration; that other one.) It’s also the first of the Supreme Court’s rolling-release opinion days. The court hands down seven published opinions from appeals that were argued in the June session.


The shortest opinion of the day comes from the pen of Justice Kelsey: Wooten v. Bank of America implicates the doctrine of judicial estoppel. The appeal involves a bank’s claim for an equitable lien against real estate. Here’s the timeline:

Husband buys Blackacre in 2002 and gets sole title (this is actually before he became a husband; see the next sentence). In 2005, he marries Wife. In 2007, he borrows money from the bank, giving it a lien against the property by deed of trust. That loan closes on November 15.

About a week later, Husband signs a deed that conveys Blackacre to himself and Wife as tenants by the entireties. He records that on November 26. Ten days later, on December 6, the bank finally gets around to recording the mortgage.

Dirt lawyers will see the problem immediately: since the deed of trust didn’t hit the clerk’s office until after the deed of conveyance, the lien isn’t valid against Wife. After all, she hadn’t signed the mortgage documents. The parties presumably believed that the mortgage had already been recorded, so Wife would take title subject to the “preexisting” lien.

I infer that nothing untoward happened until about 2012, when (1) Husband and Wife entered into divorce proceedings, and (2) payments stopped on the mortgage. When the bank sought to foreclose, it discovered the problem created by the inverted recordations. The bank sued, seeking various forms of equitable relief; the primary object of the suit was to validate the lien as against Wife’s title.

In the divorce, a judge entered a decree that did several things. The most relevant here is that it noted that Blackacre was in foreclosure, so upon its sale, Husband and Wife would split the net proceeds (or the net shortage) equally. The court ordered the parties to cooperate in the sale, and to execute all papers necessary to carry it out. Wife’s lawyer endorsed the decree as “Seen.”

Now we’re back to the suit filed by the bank. The bank’s lawyer took that decree and handed it to the judge in the equitable case, saying that Wife could not now deny that she was obligated on the loan, because of the language in the divorce decree. The judge agreed and held that Wife was barred by judicial estoppel from asserting that the mortgage didn’t bind her.

Today the Supreme Court reverses and remands the case for further proceedings. The justices find that judicial estoppel doesn’t apply in this situation, because Wife never made an affirmative representation that she’s seeking to repudiate. True, the divorce-court judge made “statements” in its order that could be relevant; but merely endorsing an order as “Seen” isn’t an adoption of those statements as one’s own.

No doubt the bank will be dissatisfied with this outcome, but I believe that this ruling is entirely correct; affirming would require taking the doctrine of judicial estoppel in a direction it’s never taken before.

One last point: today’s opinion contains a very useful discussion of the difference between judicial estoppel and the related concept of approbating and reprobating. If you’re handling litigation where you’re contending that a party has changed its position, this short opinion is required reading, and you’ll probably wind up citing it.


Limitation of actions

Heads up; there’s a major-league trap for the unwary in Allstate Property & Casualty Ins. Co. v. Ploutis. This is a suit by a homeowner to recover on a fire-insurance policy for damages to her home.

The policy provided that any action against the company had to be brought within two years of the date of loss. The homeowner did that, suing two days before that deadline. She later nonsuited and refiled just short of six months later.

So, we’re okay, right?

Well, that’s the issue in the case. The insurer sought to dismiss the case based on the fact that the second suit had been filed more than two years after the loss. The trial court disagreed, but today, the Supreme Court reverses and enters final judgment for Allstate.

How can this be? The nonsuit statute specifically tolls the statute of limitations, and this homeowner did everything by the book – or so you’d think. But the tolling statute tolls statutes of limitations. This is a contract of limitations. The language isn’t provided by statute, and parties are free to contract for any provision they wish; they don’t thereby import tolling statutes.

The homeowner tried one other tack, arguing that insurance law mandates certain provisions in fire-insurance policies. One of those provisions is a two-year period for filing claims, so arguably this is a statutorily imposed limitation period. The justices disagree, finding that the fact that contract provisions are mandated (the insurance company can use alternate language, but it has to be at least as favorable to the insured as the statute) doesn’t convert it from the realm of contract.

The trial judge had ruled, perhaps as an alternate ground, that the refiled action was just a continuation of the nonsuited one. But under well-established caselaw, that isn’t true; a refiled action is entirely separate from the original one.

The trap for the unwary here should be blindingly obvious now: in actions that are governed by contracts, you cannot nonsuit and expect to be able to refile after the expiration of the original limitation period.


Freedom of Information

I have a dim sense of a tide turning in Virginia’s FOIA jurisprudence. Going back several years, the Supreme Court’s rulings, as a whole, came down firmly on the side of those who advocated openness in government. When a governmental agency that denied access to records, a citizen who litigated the withholding enjoyed a decided advantage in court.

That advantage remains, in the form of the liberal interpretation that courts are supposed to give to FOIA, including narrow construction of exemptions. And yet, earlier this year, the court dealt open-government forces a blow in Fitzgerald v. Loudoun County Sheriff, holding that a record of a criminal investigation of a death doesn’t lose its exempt status after the investigation reveals that the death was a suicide. Today, the justices again side with a governmental entity.

Today’s decision is Department of Corrections v. Surovell. The appellee is a state Delegate who sought various records relating to Virginia’s execution chamber outside Jarratt, in Greensville County. The department resisted, noting among other things that the records might endanger the security of the prison, its inmates, and its staff.

A trial judge – and I’ll go ahead and say this now: the trial judge was Jane Roush of Fairfax, who now sits on the Supreme Court – directed the department to produce certain categories of records, and redacted excerpts of others. For our purposes, the categories aren’t crucial; what matters for us is the procedure that the justices use in reversing.

The relevant statute exempts documents relating to public safety “to the extent such disclosure would jeopardize the security of any governmental facility,” etc. Citing with approval caselaw from elsewhere, the Supreme Court rules that a trial court has to accord substantial weight to the views of the administrative officials in charge of the prison, particularly in their assessment of the effect of disclosure on security.

At the circuit-court hearing, a prison official had indeed testified about the potential for disruption, either of prison operation or the execution itself, that disclosure would produce. The Supreme Court notes that the trial judge hadn’t stated what level of deference she gave that testimony, so it remands for the trial court to reevaluate the case using the newly announced standard.

The justices next reverse on an issue that might surprise you: the court holds that there’s no authority in this section of FOIA to order redaction. In essence, if any portion of a document is exempt, the government can withhold the whole thing. That sound you just heard was a collective gasp from open-government advocates.

This aspect of the ruling draws a partial dissent; Justice Mims, writing for Justice Goodwyn, notes that another FOIA statute requires a custodian to identify when a part of requested records is exempt, and to produce the non-exempt portion. He contends that the particular exemption that relates to prison documents doesn’t override that basic obligation.

Of course, when the case is reconsidered on remand, a new judge will have to undertake the analysis, since former Judge Roush has other duties now. That being said, the Supreme Court’s opinion today telegraphs pretty well, at least to me, how that hearing is going to come out.


Res judicata

Just as the Wooten decision, discussed above, provides a very helpful explanation of the doctrine of judicial estoppel, today’s ruling in Lee v. Spoden will serve as an especially valuable discussion of the various forms of res judicata.

The factual and procedural history is a little convoluted, but the basics are these: Lee founded a company to provide consulting services to health-care professionals. A year later, he married Spoden, and he gave his new wife a 50% interest in the company. About a decade later, the business bought property in Florida.

Alas; love faded, and five years after that purchase, the wife sued for divorce. The parties reached a fairly comprehensive written agreement that provided several relevant terms. The wife surrendered her 50% share, but would become a salaried employee of the company. The company continued to own the Florida property, and when it sold, the wife would get the net proceeds. This agreement made its way into the final divorce decree.

Several years later, the now ex-wife sued her ex-husband and the company for breach of contract and of fiduciary duty, claiming that the husband had blown the deal and seeking various forms of relief. At a hearing on the defendants’ demurrer, the trial court noted that the wife’s real remedy wasn’t to file a suit for damages; it was to get a show-cause order, enforcing the divorce decree.

Wife was happy to comply; she amended her complaint and separately filed a show-cause petition. The court tried the show-cause proceeding first, and after hearing evidence, ruled in favor of the husband. With a final order in hand, the company (now 100% owned by the husband) sold the Florida property.

Right after that sale, the defendants showed the final order in the contempt case to the judge in the breach-of-contract action, and asked for summary judgment based on res judicata. No dice, the judge ruled; we’re trying the contract case next. At that trial, the court granted the wife’s motion to exclude the contempt order, on the grounds that it was prejudicial to the husband.

The final legal issue is that the wife moved, at the close of all the evidence, to amend her complaint. Her initial pleading hadn’t listed an amount sued for; she sought to make that roughly $250,000. Over the defendants’ objection, the court ruled that he didn’t think she needed to amend; but in the alternative, he granted her motion.

A jury gave the wife almost $139,000; the defendants appealed. On appeal, the results are technically mixed, but don’t be fooled; the husband and his company walk away with all the really valuable rulings today.

Justice Powell’s opinion for a divided court provides a terrific explanation of the contours of res-judicata law in Virginia. She explains the two types of claim preclusion (bar, when a defendant wins in prior litigation; and merger, when a plaintiff wins) and the two types of issue preclusion (direct estoppel and collateral estoppel) and how they apply in this case; the opinion will serve as a lasting primer for those of you with res-judicata issues of your own.

The court rules that when the husband won in the contempt proceeding, that win necessarily decided in his favor the factual issues (except one) in the contract suit. The court notes that a contempt judgment can serve as the basis for res judicata’s preclusive effect; that the husband and his company were in privity; and that the two cases involved the same conduct, transaction, or occurrence. Hence the husband was entitled to final judgment on those issues.

I mentioned just now that one issue wasn’t barred: wife asserted that the husband and his company had sold the Florida property in bad faith. (Since that sale occurred after the contempt proceeding ended, it obviously couldn’t have been decided in that earlier judgment.) The justices send this claim back for further proceedings, though they caution that the wife will still be still bound by the factual determinations in the contempt case.

The Supreme Court next takes up the issue of the exclusion of the contempt judgment as evidence in the contract trial. Observing that all evidence against you is likely to be somewhat damaging, the justices point out that Virginia’s rules only bar evidence that the court finds to be unfairly or unduly prejudicial to the opponent. The contempt judgment was undeniably the truth, and it was the heart of the husband’s defense; he actually waited until a court told him he was allowed to sell the house before he closed. The justices rule that this evidence should have been admitted, and it presumably will be on remand.

Finally, the court addresses the ad damnum issue, noting that it, too, will foreseeably arise again on remand. This is the one issue on which the wife wins; the court finds that while the trial court’s ruling on the necessity for amendment is suspect, its alternative ruling, actually granting leave, was unappealed. That ruling is therefore the law of the case, so the judgment that was in excess of a $0 ad damnum, as originally pleaded, is allowable.

Of course, that favorable judgment has just been vacated, so this is only a technical victory. In addition, please, please do not take this as an endorsement by the justices of the practice of filing a suit without a damages clause. The Rules of Court now require such a clause, and this issue only comes out this way because of the failure to appeal that ruling. Nor should you count on this case as precedent to support the amendment of the ad damnum at the conclusion of all the evidence. The defendant is entitled to a continuance if you do that, assuming the judge rules in your favor on the relief requested. The better practice, of course, is to move to amend early, as soon as you perceive the need.



One of today’s more enjoyable reads is REVI, LLC v. Chicago Title Ins. Co. It is, predictably, a claim on a title-insurance policy. REVI is a company that bought five acres of land in Fairfax County in 2000 after getting a clean title report and an owner’s policy from Chicago Title. When the company went to develop the property, it got a rude shock in the form of a set of restrictions on the land, imposed by a federal condemnation back in the 1960s.

Well, this is one of the reasons you buy owner’s title insurance. The company called Chicago Title. The insurer negotiated with the feds and obtained a limited release of the restrictions. Reading between the lines, something like the following exchange then took place:

INSURER: This is the best deal we could make with Uncle Sam. They’ve agreed to waive several of the restrictions, so you can still use the property.

OWNER: But not all of the restrictions? What if the remaining restrictions impair the value of the land? We paid good money for that property, and you guaranteed us that we’d have good title to it.

INSURER: Relax. If we determine that your land has suffered a diminution in value because of the remaining restrictions, we’ll indemnify you for any losses.

OWNER: Okay; I guess that should work, as long as we’ve got your word. [Signs agreement and hands it back to insurer.]

INSURER: Thanks. And, by the way, we’ve determined that there is no diminution in value, so we ain’t paying you anything.

OWNER: [Four-letter Anglo-Saxon words deleted]

Of course, the owner later decided that the property was indeed diminished in value – otherwise we wouldn’t have a lawsuit to talk about here – and it demanded money, which the insurer refused to pay. That led to court, where the owner sued the insurer for damage and for statutory attorneys’ fees for a bad-faith denial.

The insurer asked the court to bifurcate the trial, with a jury to decide the primary claim and the trial judge to handle the bad-faith part. The judge agreed to bifurcate, but held that the jury would decide both aspects of the case. The jury hit the insurer for $1.2 million on the main claim and $440,000 in attorneys’ fees for a bad-faith refusal to pay.

But before that verdict could be reduced to judgment, the insurer asked the judge (a different judge tried the case than the one who had ordered the limited bifurcation) to rethink the bifurcation ruling. That motion succeeded; the judge took away the bad-faith verdict and entered judgment, based on his own view of the evidence, in favor of the insurer on that part of the case.

The owner took the case to Richmond, where the justices granted a writ. Today, a majority of the court affirms the decision to set aside the bad-faith verdict. The heart of the issue is that the statute says that “the court” determines if there’s a bad-faith denial, and if so, “the court” can award attorneys’ fees. Does that phrase refer to the judge only, or can a jury decide? If the latter, then the verdict can be reinstated.

There are three opinions in today’s batch for this case. Justice Mims writes for the chief justice plus Justices Goodwyn, Powell, and Millette (who heard this case before he retired, and is now listed as a senior justice). The majority explores the legislative history of the statute and concludes that the phrase the court in this context means the trial judge, and doesn’t permit jury resolution of the bad-faith issue. Back when insurance law resided in Title 38.1, the law provided that “the trial judge” would make those calls. That’s unambiguous, of course; but when the legislature recodified that title, the new statute used the term the court.

The majority concludes that since this was a recodification instead of an ordinary amendment, the usual rule (a change in language implies a substantive change in the law) doesn’t apply. It finds support in legislative history for the premise that this change was not intended to alter the previous procedure.

Justice McClanahan files a concurrence, disdaining the legislative-history approach in favor of a contextual view:

In a vacuum, the term “court” can be understood to include both judge and jury. But in the context of a statute providing for a finding or determination to be made by “the court,” the General Assembly has consistently used the term “court” to refer to the trial judge.

This has the advantage of avoiding the messy approach of heading straight for the legislative history when attempting to understand a statute. And that brings us to Justice Kelsey’s dissent.

Trust me, when it comes to legal history, no one, no one, is going to “out-history” Justice Kelsey. In the twelve pages of his dissent, you’ll bump elbows with Blackstone and Coke and Black (the original editor of Black’s Law Dictionary). You’ll meet Justice James Wilson, a signer of that Declaration that I mentioned a while back, who went on to sit in the inaugural session of the Supreme Court of the United States. You’ll see a dizzying array of statutes in which the General Assembly has taken care to spell out when it means to exclude the jury from “the court.”

All of this comes against a powerful backdrop: Justice Kelsey is an extraordinarily strong advocate of jury resolution of factual disputes. He’s written extensively on the topic, and if you read his dissent in this case, you’ll see how ardently he believes in the jury as a bedrock component of our legal culture.

In that sense, it’s hard to argue with him. After all, the Constitution of Virginia has that wonderful language (Art. I, §11) praising trial by jury and urging that it be “held sacred.” Justice Kelsey argues that when we have a genuine dispute about what a statute means, doesn’t it make more sense to turn for guidance to our primary legal document, instead of some often-fuzzy legislative history?

In the end, statutory interpretation comes down to a simple question: what do we think the legislature meant? If it’s abundantly clear from the words themselves, then there’s no interpretation required; you just apply the plain language. In this context, Justice Kelsey chides the majority for finding that there’s a “commonly accepted definition” of the phrase the court, saying that if that were the case, the court would just “consult our favored dictionary and be done with it.”

One last point: I’ve reported in years past that the Supreme Court of Virginia has been firmly committed to jury resolution of factual disputes. In recent years, I’ve noticed some slippage in that commitment, as the court has, at least in my view, accorded less of that deference in a noticeable number of decisions. Justice Kelsey’s dissent here, and his writings elsewhere, indicate that he is now the court’s strongest trial-by-jury advocate. Personally, I regard that as a good sign.

Read this decision, even if you don’t practice in the field of insurance law. It’s entertaining and educational, and gives you a good picture of how various justices go about the task of determining what statutes mean.

Bratton v. Selective Ins. Co. presents a tragic story with a complex legal dispute. It’s a coverage question, and the justices differ sharply on the answer.

The case arose from a fatal accident involving a road construction worker. The decedent was operating a dump truck that was helping to spread hot asphalt onto the side of a roadway. He periodically got out of the cab to check for spilled asphalt, which could harden on the roadway if not cleaned up immediately. At one point, he got out and walked about nine feet toward the rear of the truck. Two drunk drivers then collided with a front-end-loader near the truck, causing that equipment to slam into him, crushing him against the dump truck. He died from his injuries.

The issue in this litigation is whether the estate was entitled to tap the coverage that applied to the dump truck and to a pickup truck that was parked about 200 feet away, with its safety flashers on as a warning to traffic. The dispositive issue is whether the decedent was “occupying” either or both vehicles. In the language of the policy, that word means “in, upon, using, getting in, on, out of or off.”

In declaratory-judgment litigation to determine if coverage existed, a trial judge heard evidence and ruled in favor of the insurance companies. The court made several specific factual findings that are set out on pages 31-32 of the slip opinion. In brief, the court ruled that the decedent had already gotten out of the dump truck and walked a short distance, so he didn’t meet the definition of occupying. As for the pickup truck, it belonged to another contracting company, and there was no evidence that the decedent even knew it was there.

Today’s decision sharply divides the justices. Justice Millette writes the opinion of the court, and he’s joined by the chief justice, Justice Mims, and Senior Justice Lacy. This is the longest opinion of the day, so I won’t go into the level of detail that the court does, but the court’s majority votes to reverse, holding that the decedent was “getting out of” the dump truck and was “using” the pickup truck at the time of the collision. That means that the estate can recover on the UIM provisions of both trucks’ insurance policies.

Coverage gurus will jump all over the legal analysis of this case, since I perceive that it breaks some new ground in Virginia law. Most important, the court adopts a test – perhaps it would be more accurate for me to call it a method of analysis – that considers:

the totality of the circumstances – including the individual’s proximity to the vehicle, the duration of time during which the individual acts, the particular actions taken, the situation in which the individual is acting, the motivation for the individual’s actions if any can be ascertained, and the purpose of the policy’s coverage – to determine whether the individual was “getting out of” the vehicle. And if those circumstances establish that the individual was no longer “vehicle-oriented,” then the act of “getting out of” the vehicle was complete.

Now you see why I’m not willing to call it a test. This analysis will necessarily be subjective. It can also lead to some incongruous results, such as the one here, where a person can get out of a truck and walk away, while still being in the process of getting out.

Justice Goodwyn files a short partial dissent, agreeing with the majority’s analysis about the dump truck while disagreeing on the pickup. But the real fireworks are in Justice Kelsey’s lengthy dissent, where he’s joined by Justice McClanahan.

The dissent begins with the age-old proposition that bad facts make bad law. (Actually, the original formulation of this adage was, “Great cases like hard cases make bad law,” from an opinion by Oliver Wendell Holmes. But it’s been expressed as “bad cases” often enough that no one will quibble.) What follows is a detailed analysis of the Supreme Court’s prior caselaw, indicating that the court is now departing from a wealth of precedent.

The trial judge made several factual findings, and based his ruling on those. The dissent notes that the majority effectively reweighs the evidence in the estate’s favor, thereby violating a venerable rule of appellate review. The dissent also cites several previous cases that would, you would think, lead to an affirmance on this record. But it’s all for naught, as the insurer does everything right in the case except get to four votes.

I’ll add one last point, and it’s to return to that Holmes quotation I mentioned just above. The full passage, from Northern Securities Co. v. US, 193 US 197, 400-01 (1904) is worth quoting, if only for the light it sheds on this case and others like it:

Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping  the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what was previously clear seem doubtful, and before which even well settled principles of law will bend.

You’ll have to forgive Justice Holmes’s use of which in place of that on a couple of occasions there — you can probably put that down to changing patterns of American English usage in the intervening century — but this passage and the sentiment behind it underlie the whole of Justice Kelsey’s argument.


Criminal law

In yet another 4-3 decision, the court arguably plows some new legal ground in Evans v. Commonwealth. It’s a Fourth Amendment case involving entry into a home without a warrant.

The facts are fairly straightforward, and are undisputed. Three police officers, on bike patrol in a Norfolk neighborhood, noticed a strong odor of marijuana coming from the second-floor window of an apartment. The knocked on the door of the apartment and a woman answered. The officers said they were investigating the odor, and asked how many apartments were in the building. The woman said it was just her apartment. Then she did a remarkable thing: she closed the door.

Okay, maybe that’s not quite so unusual, since citizens have a right to refuse entry to police officers. An officer knocked again, and the woman answered again. He told her they could smell marijuana coming from the apartment. She answered, glibly enough, “Ain’t nobody smoking weed in here.” She closed the door again, but not before the officer smelled the same odor again, this time through the doorway.

One more time, the officers knocked. This time, it took five minutes for the woman to answer, during which time the officers heard movement inside. When the woman opened the door this time, she saw the officers and tried immediately to close it, but one of the officers stopped her, placing his hand and foot against the door to prop it open. He told her, “You can’t close the door on us,” and that he and his colleagues were coming inside to investigate.

They did indeed enter, and when they got to the second floor, they found Evans, who is the woman’s son, coming out of a bedroom. He rapidly gained a pair of handcuffs. After obtaining the consent of the woman and the son to search the place, the officers found drugs, guns, ammunition, and more currency than I usually keep around the house.

Do you remember the part where the police had a warrant? No? Well, you’re on to something. Evans moved to suppress the warrantless entry and search, but the trial court denied that motion. Evans entered a conditional guilty plea and took the appellate highway.

He got no help at the first stop on that road, as the Court of Appeals refused his petition. But at least one of the justices found something interesting in the case.

Today a bare majority votes to affirm the conviction. The majority notes that police can enter a home without a warrant as long as exigent circumstances exist, and the court finds that exigency here in two circumstances:

first, the cloud of heavy and extremely strong marijuana odors, some of which blew through the open doorway “like a gust of wind,” and, second, the contemporaneous knowledge of Evans’ mother that the investigating officers at her doorway smelled the marijuana, which would naturally give her a potent incentive to destroy, discard, or hide the illegal drug (or ask others to do so) soon after she closed the door. By themselves, these facts establish exigent circumstances based upon Grissett, Cephas, and a host of analogous cases.

Not that that’s all; the court adds a belt to the suspenders in its next paragraph:

Those facts, while sufficient in themselves, are not the only facts in this case demonstrating exigent circumstances prior to the officers’ entry into the apartment. After one of the officers explained to Evans’ mother that they smelled marijuana coming from the apartment window (even as the odor continued to pour through the doorway), she slammed the door in his face. She was noticeably shaking and nervous as she did so.

The court also cites the woman’s Ain’t-nobody remark to top off the sundae, finding that, “The Lady doth protest too much.”

Now, I’m never against inserting a little literature into legal opinions from time to time, though my taste runs more to Mark Twain and Alexandre Dumas. In any event, this line from Hamlet illustrates nicely the majority’s point that a hasty denial in circumstances like this can indicate deception. And that adds heft to the conclusion that the officers had reason to suspect that criminal activity was afoot, and that evidence was about to be destroyed, two of the classic components of exigent-circumstances analysis.

But hold on; there’s a powerful dissent by Justice Mims, joined by Justices Goodwyn and Millette. There’s no Shakespeare in it, but the dissent offers sound reasons why those who value civil liberties should shudder at this holding.

I’m a big fan of stating your argument succinctly and as forcefully as you can, remaining faithful to the record. I try to do that in each brief I file, and I think it works well. Rather than subjecting you to my summary of the dissent’s key contention, I’ll give you Justice Mims’s excellent formulation of the problem. This is the introductory sentence of his dissent:

Today, the majority permits the government to dispense with the constitutional requirement to obtain a warrant before entering a private residence if law enforcement officers have probable cause to suspect criminal activity, make contact with an occupant, and announce their suspicions before entering.

How’s that grab you? At least at a visceral level, most of us probably expect more than that before the police can enter our homes. But according to the dissent, whenever the police suspect criminal activity inside a home, they can create their own exigent circumstances just by doing what cops are supposed to do: knock and announce. That (as the dissent sees today’s majority holding) leads to the conclusion that evidence of wrongdoing is likely to be destroyed simply because the inhabitants know that the police are outside.

The dissent understandably leans heavily on the Big Supremes’ recent decision in Kentucky v. King from 2011. In that case, the Court held that the mere fact that the occupant knows that the gendarmes are outside doesn’t create an exigency.

There’s plenty more where that came from. I found both the majority and the dissent to be clearly written and engaging to read; I think you will, too. But something tells me that Evans’s lawyers might be getting out the map of I-95 north from Richmond, so we may not have heard the last of this yet.




[Posted September 16, 2015] Do you need MCLE credit? Want some top-drawer training in appellate advocacy? Rejoice, for I bear good news that will bring great joy to the appellate community.

On September 30 in Richmond, the third Virginia Appellate Summit will convene at Troutman Sanders’s office on Brown’s Island in Richmond. The Virginia Bar Association graciously provides logistical support, and the price simply blows away the competition: $125 for 6½ MCLE hours of high-level appellate training. (It’s $175 if you’re not a member of the VBA’s Appellate Practice Section. Membership in that section is just $25. Do the math and join the section.) You’ll hang out for a full day with the state’s top appellate lawyers and a host of appellate jurists from the Supreme Court and Court of Appeals of Virginia and the Fourth Circuit.

Here’s a link to the VBA webpage that describes the event; you can sign up online here.

I’ve reported before about the ABA’s Appellate Summit, which every third year or so returns to Washington, DC. This is one of those years; the summit will take place from November 12 through 15 at the Omni Shoreham Hotel. There’s plenty to do the whole weekend, and you can book an entire year’s MCLE requirement, plus grab a few hours to carry over to 2017. It’s decidedly pricier at $695 (there are discounts for judges, appellate staff attorneys, professors, military lawyers, law students, and ABA members), but you get plenty for that price.

What, you doubt me? How about a Thursday night reception at the Supreme Court of the United States? With one or more of the Robes mingling in the crowd? That reception is included in the price of the summit. I got to meet Justice Thomas a few years ago, and a few years ago I heard a private chat to the assembly from Chief Justice Rehnquist. My favorite social component is the Friday night dine-around, where you pick a restaurant, sign up, and then find out when you get there who you’ll meet.

This program is attended by appellate jurists and lawyers from around the nation. The last time it was in Washington, I was astonished to learn that other than some military lawyers attached to the Pentagon, I was the only Virginia lawyer at the program. Let’s make sure that doesn’t happen again; you can get details and sign up here.

I’ll be at both programs, each of which gets my outstanding rating for program quality. I hope to see plenty of you there.




[Posted September 11, 2015] The news has been racing around the appellate bar today. At first I couldn’t imagine its being true; but I’ve checked on the Supreme Court’s website, and there it is: Opinion Day as we know it is no more at Ninth and Franklin.

For generations – at least as long as I’ve been practicing law, and probably many decades before that – the Supreme Court of Virginia has handed down its published opinions on the final day of the next session. For example, the cases argued in the April session are decided by published opinion on the last day of the June session. As I noted in a recent post here, there’s a nice ceremonial touch where each justice, in turn, announces the result of a given appeal and then literally hands the slip opinion down to the Clerk of Court, who stands below in the well of the court.

No more. Effective immediately, the court will no longer “hand down” decisions on a specific day. Starting with next week’s opinion da- I mean, next Thursday, the court will post published opinions on its website, on a rolling basis. The court won’t hold them for simultaneous release, as it’s always done before; whenever the opinion is ready, the court will post it, usually on Thursdays.

In making this change, the Supreme Court has adopted the practice of the Court of Appeals of Virginia, which posts its opinions, published and unpublished, each Tuesday, without actually “handing” anything down.

As Donald Trump would say, “This is huge.”

I’ll take a moment here to mention how this change will affect you. If you’ve argued a merits case, in the past you always knew that the opinion would likely come down on a specific day, seven weeks thence. It’s always been possible for it to be sooner (in the case of unpubs, which can arrive any Friday) or later (if the court passes the case to the next session). But in the majority of appeals, you could look to a specific date for a resolution.

Now, there’s no specific time frame for a ruling. It could come in a week or in ten; there’s no way to predict it. That’s an additional element of uncertainty. It won’t really affect the way you handle your appeals, but it’ll affect the way in which you keep your clients informed.

There’s one group for which this change may bring welcome relief: those attorneys who argue merits cases in the June and November sessions. Previously, those two groups had to wait longer than anyone else for a resolution of their cases. That’s because the next session after the November docket is in mid-January, a delay of about ten weeks; while the next session after June is a brutal 3 1/2 months later, in mid-September. Presumably those litigants will get a decision earlier than they would have under the old system, perhaps reasonably close to the old seven-week system.

The change may also help the justices. A rigid seven-week turnaround can be a bit tight with a complex case, or one where someone’s crafting a lengthy dissent. In the past, if the case needed more work, the court had two choices: rush the opinion to the Clerk, or else pass it and delay the ruling by another seven weeks or more. Now, if it takes nine weeks for the justices to polish their opinions, they can do that without any pressure.

In addition, this may make the Clerk’s life (and those of her staff) easier. It takes a considerable effort to coordinate the simultaneous release of 20 opinions – not that we’ve seen 20 in a day in a while – and this process of rolling release should make the release day more manageable.

This change will have one massive impact, and that’s on me. For over ten years now, I’ve planned my schedule carefully, blocking out the entire day on opinion day, and expecting to spend the whole day (and usually part of the next day) reading the new decisions and posting analysis. No one could interrupt me on opinion day. I accepted no appointments. I shut off my office phone; even The Boss had to call me on my cell so she could tell me what to pick up at the grocery store on the way home.

As it says above, no more. Instead of six predictable opinion days a year, now I have to plan for fifty. Not that it’s all bad; on some Thursdays I may only have one new opinion to cover. That means I can get the full day’s analysis posted here in an hour or two. And of course, some days there’ll be none.

Even so, there will be logistical difficulties. It’s easy to plan your schedule around six days a year, but now I have to block out every Thursday morning. Perhaps some of the justices are chuckling at my new predicament.

This is a good occasion to remind you of a new feature of this newly updated website. If you’d like a quick note from me whenever I’ve posted a new essay or case analysis, I can make that easy for you. Near the upper-right corner of each page on this site, you’ll find a link (in red letter) that’ll allow you to sign up for that. I’ll keep the sign-up list entirely private.

You’ll have to excuse me now; I have some “huge” changes to make in my calendar.




[Posted September 10, 2015] We’re overdue for a quick look at some of the meaningful takeaways from the appellate courts’ 2014 statistics.

Supreme Court of Virginia

First and foremost, business is off – way off. In calendar 2014, SCV Clerk Trish Harrington opened just 1,918 new files. If you go back to 2009, that figure was 2,639, so the drop-off in filings is more than 27%. In just five years! If you go back just a little further, to around the turn of the millennium, new filings hovered around 3,000 per year for several years in a row.

There are several potential explanations for the crash in new appeals, some more plausible than others. For example, it’s theoretically possible that trial judges have stopped making mistakes; but as long as humans occupy the Commonwealth’s benches, that’s not a very likely reason. Actually, if trial judges ever did become perfect, I’d be out of a job.

The more likely explanation is the economy. Appealing isn’t cheap, and a litigant who loses, say, a $75,000 judgment might not be able to find a capable appellate lawyer who’ll take the matter on for a fee that makes economic sense. Economic factors might also prompt more potential appellants to mediate or otherwise settle their cases, thus further reducing the number of appeals. (Mediation is to appellate lawyers as a lighted match is to the scarecrow in The Wizard of Oz; if the parties settle, no one appeals.)

The number of writs granted is also down, but much more sharply than the rate of new filings. From the mid-1990s through about 2010, the court granted, on average, about 200 writs per year. Then the writ market crashed: 152 writs in 2011, 123 in 2012, 109 in 2013, and 120 in 2014.

These numbers are down in a statistically significant way, and the drop in the court’s incoming business doesn’t explain the plunge. For that explanation, you have to look to increased attention paid by the court to procedural defects, and probably to increased communication before writ panels convene. Your chances of getting a writ in a civil case are now about 15%, down from 21% a few years ago.

If you’re looking for an increasing indicator, there is one, but you aren’t going to like it: procedural dismissals in civil cases have skyrocketed in the past several years. In the mid-1990s, when the court first started keeping track of such things, the court dunked about one civil appeal in nine or ten for procedural defaults. From 2009 through 2014, the average has been 23.6%, an appalling figure that reflects poorly on the lawyers who file these appeals.

Incidentally, their criminal-law cousins are doing much better; the procedural-dismissal rate in those appeals has remained around 7% for a long time. Of course, that good news is offset by the fact that the Supreme Court grants almost no criminal writs – just 3% in 2014, which is fairly typical for the previous several years.

One last statistic: Published opinions are becoming scarce. From 1995 through 2004, for instance, the court issued an average of 144 published opinions per year – right at 24 per court session. From 2010 through 2014, the court handed down more than 100 published opinions only once, in 2012. Last year, there were just 74. That number, too, is much lower than the drop of incoming appeals would indicate alone. The justices are writing far fewer opinions for publication.

Court of Appeals of Virginia

The first thing to remember is that while the CAV’s docket includes four case types – criminal/traffic, domestic relations, admin law, and Workers’ Comp – criminal filings dominate the docket. Almost three of every four new filings in that court are criminal in nature.

Business is down in the Court of Appeals, too, though not nearly as dramatically as in the SCV. From 2010 through 2014, incoming cases fell from 2,721 to 2,350, a drop of 13.6%.

The CAV can decide an appeal by published or unpublished opinion. In the past several years, there have been about four or five unpubs for each one that’s published. That matters because unpubs are generally of little or no value as precedent. Last year there were 76 published opinions, an average of seven per judge, and 327 unpubs, about 30 per judge. By way of comparison, last year the Supreme Court handed down 10.5 published opinions and 8 unpublished orders per justice (not counting the senior justices).

For quite a while now, the writ-granted rate in criminal and traffic appeals has hovered around 10% of such petitions. If you represent a criminal appellant, that gives him a sense of the likelihood of just getting a writ and moving on to the merits stage.

Fourth Circuit

Unlike in state appellate courts, business has been reasonably steady in the Fourth Circuit, with new filings dropping just 1.9% from 2010 to 2014. (Note that the federal courts’ statistics run from October 1 through September 30, while the state courts are on a calendar-year basis. For statistical purposes, the difference is essentially irrelevant.) The court takes in about 400 new filings per month.

The caseload has, however, shifted around somewhat. Criminal appeals fell by almost 30% and private civil filings were down almost 28%. Prisoner filings increased sharply over the same period.

One interesting statistic that the federal courts keep but the state courts do not is the median time between two given events in the appellate system. We’ll focus on the time between the filing of the notice of appeal and the final appellate order, in cases decided on the merits. In prisoner cases, that time was just 4.7 months in 2014. Criminal appeals took just under 8 months, and civil appeals averaged just 6 months.

This means that appeals will make their way through the federal circuit courts significantly faster than a comparable appeal in state court. (Right now, the typical span between notice of appeal and final appellate decision in the SCV is roughly one year.) That, of course, is due to the fact that in the federal court, all appeals are of-right, while the Supreme Court of Virginia operates on a writ system; it takes most appellants six to eight months just to get a writ.

In the Fourth Circuit, it takes about two months to get an opinion after the date of oral argument. That’s roughly the same as in the state courts; the SCV normally announces its ruling seven weeks after oral argument, and the CAV generally gets its opinions out within about 60 days.

In one significant respect, the Fourth is the stingiest federal circuit in the nation: The court grants oral argument just 13.1% of the time, deciding the other 86.9% of appeals on the briefs alone.

Here’s one last statistic that will affect your clients’ decisions whether to appeal or not: the reversal rate. As you might expect, criminal appellants fared poorly, securing reversals just 5.9% of the time in 2014. Prisoner petitions also got meager results for appellants, with only a 4.5% reversal rate. Private civil appeals won reversals only 7.1% of the time. In all, the court affirmed 94.4% of all appeals presented to it. Only the Eighth Circuit (95.1% affirmed) was more deferential to district courts. The nationwide average, for comparison, is an 8.3% reversal rate. The Fourth Circuit is a great place to be an appellee.





[Posted September 5, 2015] In a couple of my previous posts about the impasse over the seventh seat on the Supreme Court of Virginia, I’ve discussed the problems that might arise if the Governor reappoints Justice Roush (as looks overwhelmingly likely) and that appointment is later invalidated (which is a very different matter). Specifically, what happens to those decisions that the court hands down while she’s sitting in, say, November or January? Are they valid? Are they invalid if she joined a 4-3 majority? How do litigants challenge the judgments after the fact?

When I composed those earlier essays, I had no idea that the Commonwealth has actually plowed this ground before. It was, in my meek defense, a very long time ago, and the doctrine hasn’t exactly popped up in many (or maybe any) recent decisions. Oh, well; as the saying goes, a good lawyer doesn’t know everything, but he knows how to find anything. Here’s the story, and how it resolves that troubling set of possible problems.

After the end of the Civil War, Virginia was under military administration as part of Reconstruction. That period ended when the Commonwealth, having ratified the 13th and 14th Amendments, was readmitted into the Union on January 26, 1870.

Before that date, public officials here, from Commissioners of the Revenue to sheriffs and all the way to the highest court in the state, were appointed by the military governor, first Francis Pierpont and then Henry Wells. On the date of readmission, Governor Wells’s office terminated and he no longer exercised any power.

But what about his appointees? If the military was no longer in control, weren’t the military appointees out of office? And if so, who, if anyone, was your local sheriff, or tax collector, or judge?

In a series of three decisions, the Supreme Court of Appeals of Virginia – that was its name back then – resolved that question and more. For our purposes the important issue was this: when a judge hands down rulings, and the judge is later found not to have been properly in office, what’s the status of those rulings?

Technically, the answer is, “It depends,” but fortunately for us, there’s enough guidance in the decisions that we can now answer definitively the questions posed in the first paragraph of this essay.

The decisions explain that a judge can hold office in one of three ways: de jure, de facto, or as a usurper. A judge de jure is perfectly legitimate. One who is only de facto has a colorable claim – he’s been elected or appointed – though there may be some question as to the legitimacy of that election or appointment. A usurper has no right to the office; he’s essentially a squatter.

The court’s ultimate rulings on our problem correspond to how the judge holds office. If she’s de jure, then no one can challenge the legitimacy of her occupancy of the office. If she’s a usurper, her rulings are essentially void (or perhaps voidable; but the difference isn’t important in this context). The nuance falls in between. For de facto judges,

upon the unquestioned and uniform authority of the decisions of the English and American courts, their official acts must be held to be as valid and binding, so far as the public and the rights of third parties are concerned, as if their title to the office had been unquestioned and perfect.

Griffin’s Ex’or v. Cunningham, 20 Gratt. (61 Va.) 31, 42 (1870).

In another case decided the same term, the court cited with approval a Wisconsin decision that came out this way:

where a party was indicted, convicted and sentenced, at a term of a Circuit court held by a person who exercised the office of judge of said court, under an appointment by the governor without authority of law, there being another person entitled to said office, the sentence was, nevertheless, valid and binding. It was so decided upon an application for a writ of habeas corpus after a judgment of ouster had been pronounced against the judge, upon the ground he had been so illegally appointed.

Quinn v. Commonwealth, 20 Gratt. (61 Va.) 138, 141 (1870). An “appointment by the governor without authority of law”; doesn’t that sound familiar?

Finally, we have this:

The rule which declares that the acts of an officer de facto are as valid and binding as if he were an officer de jure, is founded on the soundest principles of public policy, and is absolutely essential to the protection of the best interests of society. Indeed the affairs of society could not be conducted on any other principle. To deny validity to the acts of such officers, would lead to confusion and insecurity, in public as well as private affairs, and thus oppose the true policy of every well regulated State.

McCraw v. Williams, 33 Gratt. (74 Va.) 510, 514 (1880).

So, from a seeming legal morass, we have clarity. At some point, unless the Fates intervene and the warring parties settle their differences, a court will probably determine whether the General Assembly is or is not in session this month, and accordingly whether the Governor had the actual power of a recess appointment. But there can be no room for debate on the legitimacy of the court’s rulings in the interim: they’ll be valid and unassailable, under uniform caselaw that goes back centuries.





[Posted August 29, 2015] Sometimes, your humble scribe is a little slow on the uptake. That happened yesterday, when I got notice that the Supreme Court has revised its September session docket. The previous edition had seven cases slated for Monday (including one of mine), six each on Tuesday and Wednesday, and three on Thursday, which was to be opinion day. (In case that sounds odd, you should know that the last day of the session is traditionally the shortest, to allow the justices to finish the week’s business and start making their way back home. A three-case opinion day is perfectly normal.)

The new schedule condenses the docket to just three days: seven cases on Monday, eight on Tuesday, and seven more on Wednesday.

The major surprise for me was the announcement that opinion day would still be Thursday, September 17. That stuck out to me, as the court has always handed down opinions on the last day of the court’s open session. Indeed, the justices literally “hand down” the decisions in a nice touch, where each justice, one-by-one, announces a decision – the result only, with a note of who if anyone dissents – and then hands the original slip opinion to the Clerk of Court, who stands below the bench in the well of the court.

This is a beautiful tradition that provides a measure of ceremonial formality to the court’s decisions. But on the September opinion day, I strongly suspect that the opinions will be “handed down” only metaphorically, when they’re posted online, on the court’s website. That’s not much of a ceremony, I mused as I silently hoped that this wouldn’t become the norm.

It didn’t hit me until this morning why the court was making this change, which is overwhelmingly likely to be a one-time event: this is the way the court addresses, at least in the short term, the problem engendered by the political fight over the seventh seat on the court. Justice Roush’s gubernatorial appointment expires on Wednesday the 16th, so by anyone’s measurement she can participate in that day’s docket. Thursday was the problem: even if the Governor were to reappoint her, there would be uncertainty over the legality of that appointment.

The court has arranged to avoid any problem with this session by calendaring the entire session’s docket for the first three days of the week. Accordingly, no litigants on the September session’s docket need worry about the legitimacy of the court’s ruling.

A cynic might point out that this action only postpones the inevitable controversy, by kicking the can to the November session. But I see the court’s reasoning, and I agree that this is a good move. Besides, who’s to say that the current impasse, ugly as it is, will inevitably last until November? Perhaps the warring political parties can find a solution before the court reconvenes on November 2. (I realize that about half of you just blurted out, “Yeah; right,” but let’s wait and see, okay?) In the meantime, the Supreme Court has done as much as it can. Now it’s up to the General Assembly and the Governor.



 [Posted August 28, 2015] The Supreme Court of Virginia recently handed down an unpublished order that highlights the danger inherent in orders that suspend final judgments. The case is Umana-Barrera v. Commonwealth, and came down on August 21.

The defendant pleaded guilty to rape and got 15 years of active prison time. Shortly after he was sentenced, he began to think better of the decision to plead, so he consulted another lawyer. That lawyer sought an order suspending the sentence, to allow him to brief and argue a motion to withdraw the plea.

The trial court entered a series of orders doing just that, before eventually denying the motion. The defendant appealed to the CAV, which originally found that the suspension had lapsed due to the delayed entry of an order. But the defendant asked that court to remand the case to allow him to seek correction of clerical mistakes in the orders. Without objection from the Commonwealth, the CAV remanded the case for that purpose.

The trial judge obliged, entering two orders nunc pro tunc. One clarified that one of its original orders had mistakenly omitted a specific ruling on one of the suspension requests. The case then made its way back to the CAV, which held the time for appealing to have expired anyway.

Against this dizzying procedural background, the justices granted a writ, and that resulted in last week’s unpublished order. The justices are agreed upon the outcome – the defendant loses because his time ran out – though they disagree on how to get there. In order to analyze the case, I’ll set out the dates of the relevant orders and hearings. This is a little complicated, but I’ll try to make it clear.

January 2, 2013 – The trial court enters the original sentencing order, calling for 15 years in prison. Under Rule 1:1, the court automatically retained jurisdiction for another 21 days, or until January 23.

January 23, 2013 – On the last possible day, the court enters an order suspending the January 2 order for 30 days. That gives the trial court another 51 days of control over the case (30+21) so now the court will lose authority to act on March 15.

February 12, 2013 – The court enters an unopposed order that extends the suspension for another ten days. Now we’re up to a drop-dead date of March 25.

February 21, 2013 – The court convenes a hearing on the motion to withdraw the plea. There’s no ruling that day, but the court orally announces that it’s adding another 30 days to the suspension, presumably taking us to April 24. Unfortunately:

March 27, 2013 – The court finally gets around to entering an order that memorializes its February 21 rulings. That order recites the 30-day extension.

Now, why did I add the adverb a couple of entries above? Because circuit courts, being of record, “speak through their orders.” Even though the judge announced the new 30 days, and even though (as I assume) a court reporter took that down, the added suspension isn’t effective until the judge puts pen to paper. In my humble legal opinion, the trial court lost jurisdiction to do anything in the case – anything – when the sun rose on March 26. It had a deadline, self-imposed, of March 25 to enter that order, and when that date passed, so did the trial court’s power over the case.

Of course, that didn’t stop further proceedings:

April 15, 2013 – An abortive hearing takes place in which, “due to a miscommunication,” the defense wasn’t ready to go forward. Everyone agrees to continue the matter, and this conversation ensues:

THE COURT: All right. Let’s go ahead and set a date, then, to do this. You need a month out?

[COUNSEL]: That would be fine, Your Honor. Of course, I would need another order.


Do you know what kind of order he’s referring to? Well, so do I; he needs another order suspending the final judgment. But look what happens:

April 22, 2013 – The judge signs a “clerk’s form order” that continues the case until May 30. Guess what? The order says nothing at all about a suspension of finality. I assume that’s because the clerk, and not counsel for the parties, prepared it. I’m not criticizing the clerk; I’m just recognizing that the clerk won’t know, the way the lawyers will, what’s necessary in the order.

May 30, 2013 – The court conducts a substantive hearing on the motion and presumably denies it. There’s one last event here, anticlimactic as it is:

June 6, 2013 – The court enters an order denying the motion.

As I mention above, the CAV remanded to allow a nunc pro tunc correction of the April 22 order, so that it will expressly rule on (and grant) the implicit request for another suspension. The trial judge complied, entering an order that specified another 60 days, tacked onto the original 30-day suspension. (Note that that 60 days takes us to mid-May, when you add in the 21 days under Rule 1:1.) It also revised the March 27 order, marking it “nunc pro tunc February 21.”

I’ll jump to the Supreme Court’s analysis of this matter, and then I’ll add my sense of things. A majority of the justices – we can’t know exactly who wrote the order, because unpubs don’t tell us that – find that the lawyer’s implicit request for another suspension (“Of course, I would need another order”) is close enough, especially viewed in context. It also agrees that the trial court had the power to “correct” its April 22 order by adding the missing language about suspension, and the ability to retroactively extend the deadline by making the March 27 order nunc pro tunc.

But the majority finds that the court lost control over the case in mid-May, so the hearing at the end of that month, and the subsequent order, were nullities. It therefore affirms the convictions.

Justice Kelsey, joined by Justice McClanahan, concurs in the outcome but insists that the majority took the wrong route. The concurrence would hold that the vague statement, “Of course, I’ll need another order,” wasn’t enough to put the issue of a suspension into play. And that, in turn, meant that the trial court’s nunc pro tunc order actually changed – not corrected – the court’s actions in that hearing. These backward-looking orders are intended only to correct errors in orders, so that the record will “speak the truth” about what actually happened. They aren’t appropriate vehicles to reopen the case generally so the court can take up and decide a new matter.

This, you will readily agree, is a tangled mess of dates, hearings, and orders. But here’s my sense: I tend to disfavor procedural waivers where it’s a close call. Here, I would agree with the majority that the lawyer’s request, in context, would be sufficient to convey to the judge that what he wanted was a suspending order.

But I’ve read this opinion twice, and I don’t see that anyone has addressed what I believe is the case-dispositive problem: the trial court didn’t have the power to enter an order on March 27, because no written suspending order was in place at that time. The last one had expired two days earlier. And entering an order nunc pro tunc can’t retroactively revive the trial court’s jurisdiction over the matter, a fact that the majority points out and the concurrence doesn’t challenge.

Here’s the danger that ignoring this problem poses. Let’s assume that a trial court does have the power, by a nunc pro tunc order, to change the date of entry on an order back to the date the court announces its ruling in open court. I believe that’s quite wrong; but let’s walk down this path together and see where it leads.

Let us imagine, then, that on February 21, a judge renders (announces orally) his final ruling in a civil case: “I order final judgment for the defendant.” He enters a final judgment order on March 27, carrying out that ruling. He then decides to make the order nunc pro tunc, back to February 21.

Now, Rule 1:1 specifically defines the date of entry of an order as the date the judge signs his name to it. But if he can effectively back-date it? Let’s go back to my fictional civil case. The unlucky plaintiff now learns to his chagrin that his 30-day period for noting an appeal has already expired. It expired before the judge ever entered the judgment order. He can’t appeal, because of that nunc pro tunc order.

Every appellate lawyer and jurist I know would agree that this can’t happen; a judge can’t change the date on which he signs a paper by a subsequent nunc pro tunc order, thereby depriving the losing litigant of an opportunity to appeal. So how is this case different?

It isn’t. The Supreme Court decided this very issue, right down to the oral announcement of judgment within the suspension period and entry of the order afterward, in Wagner v. Shird, 257 Va. 584 (1999). In that one, the judge announced his ruling at the conclusion of a hearing that took place on the last day of the suspension period. The opposing lawyer stated in open court that he agreed to an extension of the suspension. But the court didn’t enter the order until two months later, with this result:

While the circuit court may have rendered its judgment on Shird’s motion for remittitur at the conclusion of the hearing on February 24, 1998, it did not enter that judgment until April 21, 1998. At that time, the court no longer had jurisdiction over the action because the 30-day stay of the January 6th final order had expired and the court had not entered another order extending the length of the stay. Thus, the April 21st order was a nullity.

In the end, I agree with both the majority and the concurrence on the outcome of the appeal. But I believe that the judgment was final well before the dates the two opinions discuss.

The lesson of this case should be obvious: don’t play around with suspension orders. If you’re really going to undertake post-judgment remedies, seek an order that suspends finality “until further order of the court.” If you can’t get the court to agree to such language, you need to stay on top of the expiration dates, and act well before they expire. Additionally, when you come to a hearing that’s on the last day of the suspension period, or even in the last week of it, bring a proposed order with you that you can hand up, so the judge can sign it that day. An order that’s signed after the court loses control of the case is too late.