ANALYSIS OF APRIL 28, 2016 SUPREME COURT OPINIONS

 

[Posted April 28, 2016] The stream of SCV decisions continues today. We get three published opinions, including two that have been widely anticipated in their relevant fields.

 

Domestic relations

Oh, how the times have changed.

Luttrell v. Cucco is a spousal-support appeal. Husband and wife divorced in 2008 after a 16-year marriage. The divorce court ratified and incorporated their PSA into the final decree. That agreement gave the wife spousal support; it provided that that support would terminate upon:

the death of either party, the remarriage of the wife, or as a result of action by the Court taken pursuant to § 20-109 of 1950 Code of Virginia, as amended, relative to cohabitation.

Six years later, husband filed a petition seeking to terminate support, asserting that his ex-wife was now engaged to be married, and had been living in a relationship analogous to marriage (that language is from §20-109) for a year. At a hearing on that motion, the wife admitted that the allegations were true. But she resisted on the basis that she was engaged to marry another woman, so that wasn’t “analogous to marriage.”

I have your full attention now, don’t I?

The trial court agreed with the wife, holding that same-sex couples could not cohabit for the purposes of the statute. The court rejected the husband’s motion, and pouring salt in the wound, awarded the wife attorney’s fees pursuant to a fee-shifting provision in the PSA. The Court of Appeals affirmed, citing two cases that had defined cohabitation as being between persons of opposite sexes.

Now, in fairness to the trial court and the CAV, they decided the case before Obergefell v. Hodges last June. In light of that ruling from SCOTUS, you might expect the Supreme Court of Virginia to reverse, saying that the law has changed.

If so, you would be mistaken. Oh, the justices reverse, all right; they just take a strikingly different path. You’ll be surprised to note that the court never cites or even refers to Obergefell.

The legislature amended §20-109 in 1997. The bill to achieve that (disqualification of a cohabiting ex-spouse from continued support) had a noteworthy legislative history. As originally proposed, it would apply to an ex-spouse who cohabited “with a person of the opposite sex.” The bill was amended in House Courts of Justice to apply to “habitually cohabiting with another person for a year or more” – gender-neutral language.

Senate Courts of Justice had a further amendment, and this is the one that made its way into the Acts of Assembly and the published Code: “cohabiting with another person in a relationship analogous to marriage.”

The justices today note that the legislature expressly removed from the bill gender-specific language, indicating an intention to apply the disqualification regardless of the sex of the “cohabitee.”

But let’s address the ensuing issue: is a same-sex relationship analogous to marriage? Clearly the 1997 legislature would not have thought it was a marriage. But the General Assembly used the word analogous, which every word-nerd knows denotes something that’s comparable but has notable differences. Cohabiting with a person of the same sex, combined with intimacy, perhaps financial interdependence, and the assumption of conventional spousal duties is, the justices unanimously find, analogous to marriage.

The Supreme Court thus reverses and remands the case to the trial court for a hearing on the merits of whether the wife was cohabiting in a relationship analogous to marriage. (To the husband’s great relief, it also reverses the fee award.) Given the wife’s earlier admissions, that’s likely to be a short hearing.

Eminent domain

The justices find a narrow ground to decide City of Chesapeake v. Dominion SecurityPlus Self Storage LLC. Condemnation lawyers have been itching to read this decision ever since the case was argued in January, as it promised rulings on some sexy issues, such as whether a claim for loss of visibility due to a take is compensable.

If that doesn’t meet your definition of sexy, I apologize for the false alarm. But for the condemnation bar, that’s a major unaddressed question in Virginia jurisprudence. It’s still unaddressed. Here’s why.

The property in this case started out as a six-acre tract along Dominion Boulevard, maybe a mile and a half as the crow flies from where I grew up. In 2001, the owners of the land wanted to divide it into two lots and convey one of those – 4½ acres – to a self-storage company. The City initially balked at the plan, noting that the new lot would have inadequate road frontage. But the owners’ engineer revised the plans and secured approval from the Planning Commission for a variance.

That approval came with a price, in the form of a required reservation and waiver:

The owner and/or their heirs, assigns, lessee, grantees or successors in interest agrees to reserve for future purchase by the City the area hereby designated on the plat and shall convey same to the City by deed containing general warranty and English Covenants [of] Title.  … The owners agree that it shall not make or have any claims for damage to the said improvements or damages to the residue [of] the owners’ property by reason of the said purchase.

The engineer inserted this language onto a subdivision plat and the owners recorded it. They then sold the 4.5 acres to the storage company, which built its facility just south of the Elizabeth River.

A decade or so later, the City moved forward with its plans to replace an antiquated steel bridge with a huge high-rise. Consistent with the reservation, the City asked to buy the reserved area on the plat, but the storage company said no. The City then condemned the land.

Before the trial, the court made three significant rulings. It agreed that the landowner could not make a claim for diminution of the residue parcel’s value simply because it was smaller. The court found that claim to have been waived in the plat. But the court allowed the company to claim damage due to other factors.

The court also denied a motion to exclude evidence of damages due to loss of visibility – with the immense new bridge, the business was no longer visible from Dominion Boulevard – and as separate motion to exclude evidence of damages due to a lack of access, since the property would be accessible only by way of a service road. At trial, the court awarded $44K for the take and $2.16 million for damages to the residue.

As noted above, for eminent-domain lawyers, this case promised a bonanza of rulings. For instance, as far as I know, the justices have never decided the question whether a loss of visibility is a compensable item of damages. But today’s opinion is a bit of a fizzle, as the justices take the narrowest ground available. The court rules that the reservation/waiver language in the plat is enforceable, and does in fact waive any claim for damages from the acquisition and the project.

The company tried without success to persuade the court that the City din not, in fact, buy the land; it condemned it. The justices are havin’ none o’ that; the only reason there was a condemnation proceeding was because the company refused the City’s purchase offer.

Today’s opinion expressly reserves for another day the merits of the question whether a loss of visibility is compensable. It does, however, answer one previously unaddressed question.

On Februay 12, the Supreme Court handed down opinions and orders to clear out almost all of the appeals it heard in January, when Justice Roush was a member of the court. There were two appeals left, and this was one of them. I mused in February what the court would do with her involvement in those two cases, and guessed it would include her vote in any decision.

I am a well-trained husband, so I’m experienced in saying what I’m about to type here: I was wrong. This opinion is unanimous, but it still includes the votes of only six justices. There’s a short footnote on page 1 of the opinion to explain:

Justice Roush participated in the hearing but not in the decision of this case. The expiration of her term on the Court preceded the issuance of this opinion.

Why would they do that, especially with a unanimous opinion? After all, whether she voted with the majority or dissented, the outcome of the case would be the same. My best guess is that this decision eliminates the possibility that the losing appellate litigant could seek a new hearing because of the participation of an allegedly improper voter. Note the wording of the footnote: “participated in the hearing but not in the decision …”

I tend to doubt that the ruling today could be reasonably assailed if they had counted her vote, but this approach gives us finality; it makes perfect sense to me.

I was wrong.

Contracts

As I read Navar, Inc. v. Federal Business Council, I kept thinking of what was missing from the unanimous opinion: novelty. I don’t mean that word in a frivolous sense at all; it’s just that of the holdings in the case, none of them appear to break any new ground. This is the kind of opinion that might otherwise have wound up as an unpublished order, though there may be an angle that the justices thought was important enough to publish.

The appeal arose from an agreement to bid on a government contract. Because of Small Business Administration regulations, Federal Business Council and its colleague company, Worldwide Solutions, were ineligible to bid on a desired contract. The two companies approached an eligible company and reached an agreement to work together to submit a bid through the eligible company. This is a teaming agreement, a term I had never known before today.

The agreement stated that if the eligible company got the job, then the three companies would “negotiate in good faith” with an eye toward entering into subcontracts with the colleague companies, so they would share in the profits by doing some of the work.

The bid worked; the eligible company got the contract. But the ensuing good-faith negotiations soon came to an impasse, and the winning bidder made other arrangements to perform the government contract.

The colleague companies, now strangers to the contract they helped obtain, sued. They cited a non-disclosure agreement in the teaming agreement, and claimed that the successful bidder was using their corporate secrets in order to win and then perform the government contract. A jury agreed and awarded the two suing companies $500K each; one of them also got a separate $250K award for misappropriation of trade secrets.

The justices today unanimously reverse those awards and enter final judgment. The court finds that this case, like the Holtzman Oil unpub from last week, is nothing more than a contract to negotiate a contract. There’s nothing to enforce; courts cannot, in language quoted in today’s opinion, “determine the terms … upon which the parties might ultimately agree.”

Much of the remaining discussion relates to the plaintiffs’ failure to adduce evidence that you would assume would be crucial for a case-in-chief – for example, expert testimony on the quantum of contract damages. The court also rules that there was no improper use of trade secrets, since the bidding company was expressly allowed by the teaming agreement to use the other companies’ information and ideas. In the end, this case comes down to the premise that you can’t “agree to agree later” and expect to be able to enforce that in court.

I’ll mention one last secondary point here. One assignment of error contained a typo. It referred to Count VII of the complaint, but the arguments in the brief related to Count VI. If you’ve come to regard the justices as lawyer-devouring dragons, you’ll probably assume that the appellant lost that issue, because the assignment and the argument didn’t line up.

Not at all; in a footnote, Justice Powell, the author of today’s opinion, points out the typo and notes simply that “we have addressed Count VI” in the discussion.

The Duke of Wellington reportedly described the Battle of Waterloo as “the nearest-run thing you ever saw in your life,” indicating how nearly the British army came to a catastrophic loss. I sense that this issue was also a near-run thing for the appellant. If the mistake had been more significant, it might well have lost this issue by default.

It always pays to review and edit your briefs carefully, and then do it again and again to ensure that everything is correct. (I generally file about the tenth draft of my briefs; sometimes it’s later than that.) The goal is to make the brief as error-free as possible. But of all the components you need to review with a microscope, the assignments of error top the list.

This footnote illustrates that you aren’t necessarily out of court if there’s a typo in even the most crucial section. The key is whether it’s immediately clear that it’s a typo and not a substantive difference. In this case, the court no doubt focused on the closeness of the two Roman numerals, and was able to discern which count the appellant meant by looking at the context of the argument; that clearly related to Count VI.

 


ANALYSIS OF RECENT SCV UNPUBS

 

[Posted April 22, 2016] Along with yesterday’s four published opinions, the Supreme Court decided two appeals by unpublished order. Let’s take a peek at those, especially since one of them generates some fireworks.

Continuances

We don’t get many appeals involving the trial court’s management of its docket, since the justices are very deferential in matters like that. But Way v. Way proves to be well worth taking. It arises here in Virginia Beach, in competing petitions for guardianship of an incapacitated woman. The combatants are her husband on the one hand and her sister and son (by a previous marriage) on the other.

The parties agreed that the woman needed the help; the issue was where she would go. The two sides prepared for a trial in August 2014, but somehow the statutory prehearing notice didn’t go out on time. The parties and the judge consulted their calendars and agreed upon a new trial date of October 24.

Both sides filed notices with the Clerk of the new date. Two weeks beforehand, the husband delivered two letters to the Clerk, requesting the issuance of witness subpoenas. That’s when the trouble started.

Despite the presence of not one but two trial-date notices in the file, a deputy clerk somehow missed them. She placed a call to the lawyer to let her know that there was no case on the docket for the date listed on the subpoenas. The lawyer got the message and called back on either Friday the 17th or Monday the 20th – that fact was in dispute – and was told that “a hearing should be scheduled through the judge’s office.” The clerk asked the lawyer to call back afterward to arrange for the subpoenas.

At this, the lawyer must have realized that she’d never get the subpoenas out on time. She went to court on the 24th to report the deputy clerk’s mix-up and request a new trial date.

The judge – he or she is not named in the order, so it could be any one of eight jurists down here – didn’t agree. The court quizzed the lawyer about the missing witnesses, including the substance of what they would have testified to. After an extensive colloquy, the judge refused to continue the case for three reasons: it felt that the witnesses were available without a subpoena (“you still could have had those witnesses here by a simple telephone call”), that their testimony wasn’t relevant, and that the lawyer didn’t exercise due diligence in trying to fix the problem before trial.

I’ll confess that at this point, I found the court’s action breathtaking. This lawyer hadn’t created the problem; the Clerk’s Office had caused it, and had refused to issue subpoenas that the lawyer had timely and properly requested. In those circumstances, I would expect a judge – at least, one who had spent time actually litigating cases on behalf of clients – to be a tad more understanding.

This judge wasn’t, and as of yesterday, four of the justices aren’t, either. By a 4-3 margin, the court affirms the trial court’s decision based on the third stated ground: the lawyer’s ostensible lack of diligence in following up with the deputy clerk. The majority notes that after being alerted to the problem on October 14 and 16, the lawyer didn’t call the deputy clerk until the 20th. (That’s the evidence in the light most favorable to the appellee.) And even then, “counsel made no effort to advise the trial court of the problem.”

But assuming that the lawyer got the full details about the mix-up in the 20th, she couldn’t very well arrange for trial subpoenas for a hearing four days later. Still, the justices find that this constitutes a lack of diligence, so the trial court didn’t abuse its discretion in proceeding with the trial.

That being said, there’s a signal or two to indicate that the majority wasn’t completely comfortable with this outcome. But abuse-of-discretion analysis doesn’t give the justices the same opportunity as de novo review, to decide the case as they feel it should be decided. As long as the trial court selected a legally permissible option from among those choices available, the court will affirm.

Justice Kelsey writes what I see as a stinging dissent, and he’s joined by the chief justice and Justice Goodwyn. He bases his view on the single decision at issue – the continuance – and on “the overall tenor of the proceeding,” which is diplomatic way of saying that the trial court wasn’t giving the husband’s lawyer a fair shake over the course of the trial.

The dissent observes that the husband’s lawyer, in addition to calling the deputy clerk, called her opponent promptly to describe the problem. She also “attempted to either procure a continuance or schedule a conference call to no avail.” The dissent finds that the lawyer did what she could, and it was unfair to punish her (and her client) for a mistake that happened in the Clerk’s Office.

There’s more. Justice Kelsey notes that the judge was flat-wrong in saying that the witnesses were available by a phone call; at least three of them demonstrably weren’t. He also rejects the trial court’s “too hasty” conclusion that the witnesses would offer immaterial testimony. For example, the trial court expressly credited the guardian ad litem’s report, recommending placement of the woman with her sister. But that report contained hearsay statements, and several of the absent witnesses were persons quoted in the report. The husband thus missed the opportunity to examine them to ascertain if they were quoted correctly, and in context. Other witnesses would have testified about the sister’s and son’s ulterior motive to alienate the woman from her husband, a matter that’s clearly relevant.

In my view, probably the worst thing that the judge did was, in response to the husband’s lawyer’s arguments that the court should hear all of the witnesses, to threaten her with contempt “if you keep going … after I have told you I am not going to hear it. I am going to find you in contempt if you continue.”

This passage was horrifying to me – a judge who threatens a lawyer who’s making a proper record and protecting her client’s rights. There’s no indication that the lawyer argued rudely, or was otherwise contemptuous of the court’s dignity; the judge simply wanted to shut her up.

In the end, Justice Kelsey offers this simply worded conclusion: “I respectfully disagree with my trial court colleague.” Those of us who earn our livings in appellate courts will recognize that in the highly diplomatic language of appellate opinions, this is a stinging rebuke, not a gentle expression of disagreement.

Contracts

For generations, lawyers have recognized the futility in the efforts of laymen who “agree to agree later,” or in other words, who “contract” to make a contract. They reach an agreement in principle that they want to do something, but the details are ready to be filled in yet. We in the legal profession recognize that if you don;t have enough details, you don’t have a contract. That goblin grabbed the appellant in Holtzman Oil Corp. v. Green Project, LLC.

Back in 2002 a company called New Dominion Investments owned a 30-acre parcel in Loudoun County. It agreed to sell two acres to Holtzman. Three years later, it sold the 30-acre tract to Green Project, making that sale expressly subject to the previous agreement with Holtzman.

The Holtzman agreement allowed Holtzman to select whichever two acres it wished “upon the development and submission of a master plan for [the 30-acre parcel] to the appropriate governing body for approval.” Herein lies the problem: Holtzman apparently had a right to acquire two acres, but which two? In addition, the sale was contingent on permitting and on engineering studies to confirm the suitability of the site for Holtzman’s development purposes.

Here’s the problem: just what does Holtzman really have a right to acquire? That patent ambiguity caused the trial court to refuse to order specific performance of Holtzman’s claimed contract. As the order recites, “The circuit court repeatedly asked how it could enter an order specifically enforcing the contract without a description of the property.”

The justices agree with this analysis and affirm. They note that if a trial court were to undertake all of the processes inherent in this agreement-to-agree, it would “necessarily consist of a series of successive decrees over a period of years,” given the many contingencies and conditions yet to be fulfilled.

The Supreme Court’s order also firms two additional rulings. The justices agree that the trial court properly refused to allow Holtzman to amend its complaint, since Holtzman’s proposed new allegations only reinforced the lack of certainty of Holtzman’s claims. They also affirm the court’s decision to allow Green Project to amend its defensive pleading after the court sustained the demurrer. That amendment specified the sales contract as the basis of green project’s attorney’s-fee claim. The original defensive pleading had failed to do that, as required by Rule 3:25(b). The justices rule that the trial court acted within its discretion in allowing an amendment to point out what was already plainly litigated by the parties throughout the course of the case.

 

 


 

ANALYSIS OF APRIL 21, 2016 SUPREME COURT OPINIONS

 

[Posted April 21, 2016] The Supreme Court issues four published opinions today. I’m happy to note their brevity; the longest one is just eleven pages.

 

Dockets

My readers no doubt know about Code §8.01-335, the discontinuance statute that allows trial courts to weed out long-dormant litigation. In JSR Mechanical, Inc. v. Aireco Supply, Inc., we learn today whether reinstatement is mandatory or discretionary.

The trial court discontinued a stale case in early 2014. Eleven and a half months later, the plaintiff filed and served a motion to reinstate it as provided in the statute. The court convened a hearing 364 days after the date of the discontinuance order. The paperwork was all in order, but for reasons we’ll probably never know, the court refused to reinstate the case.

The plaintiff persuaded at least one justice to take a look at the matter to address the first-impression issue of whether reinstatement is mandatory or discretionary when a plaintiff properly moves for that relief. The justices today unanimously determine that there’s no discretion involved; if the plaintiff jumps through the hoops, he’s entitled to reinstatement.

The court analyzes the statute, noting that it says that a discontinued case “may be reinstated.” But viewed in context, the court concludes that this is one of those instances where may means shall. The statute doesn’t contain the phrase “good cause.” That language was added in 1997, then quickly removed two years later, so the legislature was aware of the issue. And the presence of that phrase in dozens of other locations in Title 8.01 suggests strongly that its absence here means that discretion isn’t involved.

 

Limitation of actions

In Haynes v. Haggerty, the court takes up the application – or not – of the statute of limitations for the tort of sexual abuse of minors. That statute now provides that the cause of action accrues on the child’s 18th birthday, or when a health-care professional first communicates a diagnosis of abuse to the patient.

In this case, the plaintiff asserted that the defendant abused her when she was between the ages of 14 and 18. She reached 18 in 1975, but was told of the abuse by a therapist in 2012. She filed suit in 2014.

But the delayed-accrual statute wasn’t in effect in 1975. Back then, it was two years after the plaintiff’s disability (i.e., her status as a minor) ended. When the legislature enacted Title 8.01 in 1977, it excluded from its operation all causes of action that had accrued before that date, so this new provision doesn’t apply to this claim. The justices therefore affirm the trial court’s decision to sustain a plea of the statute of limitations.

One quick note on the justices’ approach to this question: the trial court had ruled based on the defendant’s due-process right to the limitations period. He had a property right in that defense when it arose, and the trial judge felt that the legislature couldn’t constitutionally deprive him of it by legislation. The justices take a statutory approach, described above, instead since they don’t decide constitutional challenges when the case can be resolved by statutory interpretation.

Evidence and pretrial procedure

This heading has two components because Mikhaylov v. Sales decides two discrete issues, each important in its own right. This is a suit for assault and battery.

Mikhaylov was originally charged with sexual battery and abduction, but in general district court he agreed to plead to an amended charge of assault and battery. The court found him guilty on that plea. Sales, the victim of the assault, filed a civil action in circuit court on the same conduct.

Sales asked the circuit court to grant summary judgment on the issue of liability, since her assailant had pleaded guilty to the crime that was the basis for her suit. Mikhaylov wanted to describe to the jury what he felt were extenuating circumstances that led him to plead guilty. The court declined to enter summary judgment expressly, but it did something that had virtually the same effect: it ruled that Mikhaylov would be barred from denying at trial that he committed the assault. The court felt that allowing him to do that would amount to a collateral attack on his conviction.

During the trial, Mikhaylov actually did deny that he had attacked Sales, but the court instructed the jury to disregard that testimony. The jury returned a verdict for Sales.

On appeal, the justices note that the only way for the conviction to bar relitigation would be on judicial estoppel grounds. But judicial estoppel requires identity of parties – the same litigants in the former suit as the current one. It’s well-established that a complaining witness isn’t a party to a criminal prosecution; the moving party is the Commonwealth (or the locality in the case of prosecutions under ordinances).

Because of this difference, the justices unanimously rule today that the previous conviction is not a bar to relitigation of the underlying assault claim, so Sales is still going to have to prove that Mikhaylov assaulted her. By statute, she’ll be able to introduce the guilty plea into evidence when the case is retried, but Mikhaylov will be allowed to try to convince the jury that he didn’t really mean it.

I promised you a second issue. Sales offered medical evidence at trial to show, among other things, that she would need future medical care because of the attack. Mikhaylov objected to this part of the doctor’s testimony because Sales’s expert-witness disclosure said nothing about future medicals.

On this issue, the trial court did a curious thing. Most trial judges I know would sustain that objection, based on the John Crane v. Jones doctrine. This judge noted that Mikhaylov hadn’t moved before trial to exclude evidence of future medicals, and he apparently felt that the failure to file a motion in limine amounted to a waiver, so he allowed the undisclosed evidence.

If that ruling puzzles you, join the club; I’m already a member. The Supreme Court reverses this ruling, too, holding that the pretrial scheduling order required disclosure and Sales didn’t provide it. That order states that undisclosed opinions “will not ordinarily” be admitted into evidence.

Every good litigation attorney will recognize the weasel-word ordinarily in that sentence. If they aren’t ordinarily admissible, doesn’t that make it a judgment call for the court, which can allow the evidence in extraordinary cases?

If so, that’s an engraved invitation to skirt the rule. After all, all of your cases are extraordinary, right?

Okay, I’ll stop kidding around; though I suspect I generated several hundred knowing smiles just now. The justices have never defined the boundary between the ordinary and extraordinary case, and they decline to do so here. But they do go so far as to rule that the failure to make a motion in limine does not constitute a waiver of an evidentiary objection. And there’s no other plausible explanation for the admission.

The court thus remands the case for “further proceedings consistent with” its opinion. That language portends that Mikhaylov’s victory on the expert-witness issue is likely to be short-lived. On remand, I can practically guarantee you that Sales will promptly file a supplemental expert disclosure for the doctor, laying out his opinions on future medicals.

Real property

Okay, I’ll admit that I fudged the header for this section slightly. I did that because if I’d used the more accurate title, Mineral rights, you might have skipped over to the next section, since mineral cases aren’t in your portfolio.

Well, there is no next section; this is the court’s final published opinion of the day. And you’ll want to know about Dye v. CNX Gas Co. to get the answer to the burning (sorry) question: Is natural gas a mineral?

I’ve lived my whole life in the flatlands. I was born in northern Indiana, which his flat; I’ve lived here in Tidewater since the age of three, and the only promontories around here are landfills. My law practice has never included anything remotely classified as mining cases. So this is a new topic to me.

But it isn’t new to the Supreme Court; there’s a rich lode (there I go again; I swear I won’t do it anymore) of caselaw on mining disputes. This one stems from a suit by the successor to the grantor of a severance deed, granting unto CSX’s predecessor “all the coal & other minerals” contained in certain land in Russell County. The question in this litigation is whether CSX can extract natural gas based on that grant.

As a life-long flatlander, my initial thought was, “No, because minerals are rocks, and a gas isn’t a rock.” Guess what? I was wrong. Virginia is one of a solid (now, don’t accuse me of pun abuse; I have plausible deniability on that one) majority of states that hold that a conveyance – or a reservation – of mineral rights includes the right to petroleum, which is a liquid, and natural gas.

If you’re still unconvinced, here’s what Merriam-Webster’s Collegiate Dictionary, 11th Ed., has to say: “any of various naturally occurring homogeneous substances (as stone, coal, salt, sulfur, sand, petroleum, water, or natural gas) obtained usu. from the ground.”

 


 

 

THE STORIES BEHIND ALL THOSE SCV STATISTICS

 

[Posted April 20, 2016] Yesterday I analyzed some of the key statistics in the Supreme Court’s 2015 year-end report. I hope I was able to “de-math” it for you. Today’s follow-up essay will have fewer numbers and more subjective discussion.

Why is business down?

I noted yesterday that new case filings are down by a third – a thousand cases a year – over the level we saw consistently 15-20 years ago. I’ve given plenty of thought to the question why that would be. Really, any appellate lawyer needs to think carefully about this, because it affects the pipeline of available appeals, and those are the lifeblood of our practices.

Theoretically at least, the number of appeals should rise incrementally with population growth. The more people there are in Virginia, the more of them will hit each other with cars, knock over liquor stores, and run around on their spouses. Each of these events – assuming the perpetrator gets caught – and hundreds more will generate court proceedings, and a portion of those trials will inspire someone to appeal. More people = more trials = more appeals. So why would the number of appeals drop like a stone?

I’ve written about this topic before, and I continue to believe that the likeliest suspects are the economy and the rapid growth of ADR. It’s very expensive to appeal, and when a case settles, no one hires an appellate lawyer to take the dispute to Richmond.

Upon reflection, there are probably two other significant factors. One is the time it takes for a case to wend its way through the appellate courts. There’s some variation, but a good rule of thumb is that you should expect a Supreme Court opinion – assuming the appellant gets a writ – to arrive about a year after the final-judgment date in the trial court.

Some litigants just don’t want to prolong things anymore. If they have a marginally unsatisfying result, they may decide to just end the case rather than invest another year of emotional capital (we’ll omit the financial capital, which I’ve already mentioned) on keeping the case alive.

The second factor I have in mind is the undeniable fact that an appellant faces very long odds in seeking relief. In yesterday’s essay, I mentioned that a criminal appellant has about a 2% chance of getting a reversal in the Supreme Court, while civil appellants can expect a reversal 9% of the time. Those are tough odds, and if a business is evaluating its options, it may choose to forgo an appeal rather than spend a bunch of money (the cost of an appellate lawyer, printing of briefs and appendices, a supersedeas-bond premium) on what looks like a long shot.

In this way, the justices may be helping to shape an environment in which they see fewer and fewer cases, in part because they’re dissuading folks from taking the appellate route. I seriously doubt that that’s their purpose, but I just as readily believe there’s some causal relationship there.

Why the crash in the civil writ-granted rate?

Yesterday I noted that the court is granting appeals in civil cases at about half the rate of the year 2000. What gives? Do the current justices feel more antipathy toward civil appeals than their late 20th Century predecessors? Have trial judges stopped making mistakes?

[Before I resume, I’ll give you a moment to stop coughing.]

The short answer is that I cannot account for all of the collapse of the civil-writ market. Some of it is due to the fact that a few years ago, the justices made a conscious effort to spend more time weeding out procedurally deficient appeals. You’ll recall the recent rule change that now requires you to identify, for each assignment of error, exactly where in the record you preserved your issue for review. That’s caused a steep rise in the number of procedural defaults, which I’ll discuss below. It also leads to correspondingly fewer grants.

The temptation is to moan about the fact that the court is now actively looking for ways to dunk your appeal. Technically they are doing that, but that’s not the right way to look at it. In the past, a panel of the court often granted a writ, after which the appendix was prepared, the case was fully briefed, the lawyers showed up for oral argument … and then it surfaced that the dispositive issue wasn’t preserved, so the case had to be affirmed, or the writ dismissed as improvidently awarded.

That, you will admit, is a prodigious waste of time. If an appeal is destined to die, you might as well get it off the docket sooner rather than later.

That’s cold comfort to the losing appellants, of course; but from the standpoint of judicial economy, it makes sense. Even so, this one factor simply cannot account for this great a drop in the writ-granted rate. There has to be something else, and candidly, I don’t know what it is. I suspect that if you were to ask the justices, you’d get several different possible explanations.

So what about the procedural defaults?

This is a painful topic to take up. Over the past several years, I’ve watched as the procedural-dismissal rate has risen to a shameful level. Last year, the court procedurally dismissed 129 civil petitions for appeal – 24.1% of the total it acted upon. One in four civil petitions never even got to a writ panel. And as I noted in a previous essay, I’ve learned from one of the justices that even that figure is understated; in some cases, instead of dismissing the appeal, the court merely refuses the writ. The actual default rate may be 30% or higher.

By the way, in criminal appeals, the picture is nowhere near as bleak. Perhaps because criminal-defense lawyers handle appeals more often, the dismissal rate is always far lower than in civil cases. Last year it was 10.4%, which is actually a bit higher than the historic norm of about eight or nine percent.

Some of these defaulted appeals are probably filed by pro se litigants. For those, the legal profession is blameless. Given the limits of the statistical report, I have no way of segregating the pro se defaults from the ones involving lawyers. But attorneys who take up appeals need to remember that nowadays, in counseled appeals the justices refer each procedural dismissal to the Virginia State Bar for investigation. That’s a triple whammy: you lose your appeal, your client may be angry enough to sue you, and now you have to take a call from the nice State Bar investigator.

That, you would imagine, ought to be enough to convince lawyers that it’s too dangerous to dabble in the appellate field. Indeed, I strongly suspect that the one-strike rule for State Bar reports (it used to be a three-strike rule) came about as a none-too-subtle effort by the justices to induce lawyers to do a better job of rules compliance.

Guess what? It isn’t working. And as far as I know, the court is not trying another approach.

I sense an imminent rant here …

A number of years ago, I attended a local bar-association function at which the luncheon speaker was the then-chief justice. He told the attendees that once you receive a license to practice law, the Supreme Court regards you as competent to handle any and all legal matters. I don’t recall if he gave examples, but it was clearly intended to run the gamut from preparing wills to handling divorces to real-estate transactions to felony defense to rezoning applications.

When he said that, I thought but did not say aloud (I used to have wonderful inspirations of prudence in those days), That’s so cute. I bet he really believes it, too. The truth is that none of us is capable of doing everything in this profession as we’re walking away from the swearing-in ceremony. And while I know I disagree with an appellate jurist or two on this point, I firmly believe that one should not, must not, dabble in appeals without a paid-up malpractice policy.

Lest you perceive that I’m trying to drum up business for myself here, contact me and I’ll give you the names and numbers of half a dozen of my friendly competitors, any of whom can capably handle your appeal, and most of whom can do it for less than I’d charge. It’s not so important that you consult me; it’s vitally important that you consult someone.

That chief justice – who is now of blessed memory – was kidding himself. He was mistaking licensed authority to act for professional capability to act. The Earth I inhabit doesn’t look like the one he was imagining. Yes, when you get the fancy certificate from the Board of Bar Examiners, you’re allowed to draft a will, defend a murder charge, and negotiate a complex equitable-distribution agreement, complete with tax consequences. That doesn’t mean you should, at least not without help; it takes expertise to do those things. Appeals are some of those things.

What’s a lawyer to do?

The statistical report doesn’t contain recommendations, but here are mine:

Advise your clients clearly. When you’re walking out of the courthouse and your disappointed client is swearing like a stevedore and vowing to appeal, take the time to go over these statistics with her to ensure that she knows the odds and the timeline. And this isn’t appellate advice, but I will gently suggest that you schedule a meeting with that client for a day or two later to do that, so she can make a more dispassionate decision.

Read the rules. Don’t rely on what you heard in a recent (or worse, not-so-recent) CLE program, or what you once read in an old appellate opinion. Get out the book and read the rules that apply to the phase of the appeal where you are now. Do you know how many times Rule 5:17, with its lethal procedural landmines, has been amended in the past ten or fifteen years? Get out the book.

Use your strategic advantage. If you represent an appellee, you have an enormous advantage at the writ stage. Even in civil cases, you win 85% of the time simply because the panel refuses the petition. Put plenty of effort into your brief in opposition. Once the court grants a writ, your advantage evaporates: at that point, the court reverses, in whole or in part, about 60% of the time. You should use these figures in settlement talks, too; don’t be afraid to educate your opponent about the statistics in order to get a more realistic negotiating posture from him.

Get training. If you want to handle appeals, great. It’s a wonderful practice, but it has a completely different focus than does trial practice. Attend a few seminars, or better yet, find an immersive multi-day program on how to handle an appeal.

Get advice. Call me, or any of the several other full-time appellate lawyers here in the state, and ask a question if you need guidance. For simple questions, virtually no one is going to charge you a consultation fee. If it’s more complex than that … well, in those cases, you really do need to call someone, right?

 

 


 

 

A FRESH LOOK AT SCV STATISTICS

 

[Posted April 19, 2016] It’s been a while since I explored the Supreme Court of Virginia’s annual statistical report. I have the numbers from 2015 now, so let’s see what’s cookin’ up there. I’ll give you some of the raw data, but will try to translate it for those of you who were English majors.

I intend to post this essay in two parts. The first one, below, will give you that raw data and the translation. The second, which I’ll likely post later this week, will include some observations about what’s behind these trends, and what can be done about some of the troubling ones.

 

Incoming caseload

This trend has been alarming for several years now. Roughly 15 years ago, you could count on a steady arrival of about 3,000 new appeals every year. It bounced around between 2,900 and 3,100, but that was just a minor wobble; the overall trend was secure.

Those days are histoire. By calendar year 2010, we were under 2,500. The number fell every year after that until 2014, when we hit bottom with just 1,918 new filings. That tide finally turned last year, when SCV Clerk Trish Harrington opened 1,996 new files, a 4% increase over the previous year’s low-water mark. But we’re still down roughly 33% since the arrival of the court’s current senior member, Chief Justice Lemons, in 2000. For those of us who make our livings at Ninth and Franklin, business is down, big time.

Output – opinions and orders

Here again, the figures are way down, and the decline is even steeper than with new case filings. From 1995 through 2001, the court averaged 150 published opinions and 83 unpubs per year, so the justices were deciding over 230 cases on the merits each year.

Those figures look enormous in comparison with modern statistics. Last year, the court handed down 70 published opinions and 60 unpublished orders, just 130 merits decisions in all. That’s actually up noticeably since the nadir of 2013 (64 opinions and 44 orders). The upshot is that you aren’t getting anywhere near as much guidance from the justices on the contours of Virginia law.

Now let’s turn to the major components of the court’s docket.

Criminal appeals

One quick note here: I’ve decided to lump the sexually-violent-predator docket with criminal cases instead of civil, although those are technically civil petitions.

I was a bit surprised to find that criminal appeals in the SCV are down significantly: 728 petitions decided in 2015, down from 1,016 in 2012. That’s a 28% drop in just 36 months. It looks as though criminal appellants are deciding it’s just not productive to appeal on from the Court of Appeals.

The statistics bear out that perception. The justices granted just 22 criminal petitions and refused or dismissed 706 in 2015, for a grant rate of about 3%. When you factor in the subsequent affirmance rate (roughly 40%) on the merits, criminal appellants manage to secure a reversal about 2% of the time, or in one case out of fifty.

Habeas corpus

I’ll mention first that there are two components to the court’s habeas docket – appeals from lower courts and original jurisdiction (OJ) petitions. That’s because Virginia law allows a petitioner to file a habeas-corpus petition in the Supreme Court in the first instance, if he or she chooses to do that.

Nevertheless, the court grants very few writs. For both appeals and OJ cases, the grant rate is in single digits. In 2015, the court granted 7.6% of habeas appeals and 4.3% of OJ habeas petitions. If that makes you conclude that you’re better off starting in a lower court, I offer the caveat that the sample size is too small to draw that conclusion; there were just 11 OJ writs and six habeas-appeal writs granted in 2015. That being said, your odds of getting a habeas writ are better than your odds of winning a direct appeal, as noted above.

Civil appeals

Here’s where the biggest change has occurred since the calendar turned to the 21st Century. In 2000, the court granted 171 civil writs out of the 622 it acted upon – about 28%. In 2015, the writ-granted rate was – brace yourself – 14.7%. If that statistic doesn’t stun you, try switching from decaf to high-test.

This trend is attention-grabbing for those of us who primarily handle civil appeals. There has never, it would seem, been a better time to be an appellee, since you’re winning 85% of the time at the writ stage, and even when the court grants a writ, you still win a fair amount of the time when the justices affirm. By my rough calculations, the raw probability of getting a civil judgment overturned, starting the day the trial judge enters the order, is about 9% – one appeal out of eleven.

Extraordinary writs

In addition to habeas corpus, Virginia law empowers the Supreme Court to consider two other extraordinary writs: mandamus and prohibition.

Just don’t get your hopes up. Each year since 2005, somewhere in the general vicinity of 90 such petitions have arrived in Richmond, but the grant rate each year is equal to Mr. Blutarsky’s grade-point average: zero point zero. Starting in 2005 and working backward, the court granted an average of about one such writ per year, but we’ve had nothing since then.

Other docket components

There are a few other case types on the justices’ docket from year to year: attorney- and judicial-discipline cases, SCC appeals, death-sentence reviews, cases certified from the CAV. The numbers of those are so small that, based on what I recall from my Statistics class in college, I don’t think it’s meaningful to include a statistical analysis of them. (I think I got an A- in Stats, which means you can trust me.)

Rehearings

There are two phases in which a losing appellate litigant can file a petition for rehearing. The first is after the denial of a writ. There’s really no drawback to filing a petition like that, so I was a little bit surprised to learn that only about 300 of them have been filed in each of the past two years. The justices granted 12 in 2014 and 10 in 2015, so the grant rate is between three and four percent. Those aren’t good odds, but if you don’t file a PFR, your chances of success are zero. You may as well try.

The second PFR type is after a decision on the merits. Far fewer of these are filed – an average of 27 per year over the past three years. Of those 81 petitions, the court has granted only one, and that was a whopper: RGR v. Settle in 2014. That gives the petitioners a dismal 1.2% success rate over that span. In what was probably an anomaly, the court granted rehearing at the merits stage four times in 2012, but don’t bank on seeing that again.

As I noted a while back in an essay about rehearings, there’s a fundamental difference between PFRs at the writ and merits stages. If you lose at the writ panel, only three justices (often including one of the senior justices) have seen your argument. By filing a PFR, you’ll have four or five new sets of eyes, and any one of those justices can grant your writ.

In contrast, after a decision on the merits, each of the justices has considered your arguments, and at least a majority of them have concluded that you lose. In most situations like that, you just need to accept defeat and move on. Only where you have a compelling reason – usually by pointing out that the court’s ruling will have unintended consequences for future cases – should you seek rehearing.

 


 

 

ANALYSIS OF APRIL 14, 2016 SUPREME COURT DECISIONS

 

[Posted April 14, 2016] The Supreme Court today resumes its rolling releases of decisions. Today we get two published opinions.

 

Sanctions

For the second time this year, the court releases an opinion in a case involving low-dollar sanctions against attorneys. This one is Ragland v. Soggin, in which two lawyers were sanctioned the princely sum of $200 each.

This appeal arose out of a wrongful-death trial. Soggin filed suit as personal representative of the estate of her deceased son, who died as a result of injuries sustained in a fall from a horse. The defendant, the boy’s riding instructor, cited Virginia’s equine-liability statutes, which generally afford a form of immunity for activities arising out of the dangers one normally expects from riding a horse.

The instructor’s lawyers contended that in order to establish liability, the estate had to prove that any negligence by the instructor was the sole proximate cause of the death. This contrasts with ordinary tort law, in which a defendant can be liable if her actions are a proximate cause.

During the trial, the judge disagreed with this theory, ruling that the plaintiff could recover without proving that the instructor’s negligence was the sole proximate cause. This necessitated a hurried revision to the defense’s issues and finding instructions, each of which had used the phrase “sole cause.”

As sometimes happens when you try to do something quickly in a stressful situation, the lawyers modified the issues instruction, but neglected to change the finding instruction. Accordingly, the jury orally received instructions on two different standards of liability.

Fortunately, someone noticed the error just before the jury received its copy of the instructions back in the jury room. The finding instruction was quickly corrected and sent back to the jury.

The jury eventually returned a defense verdict. The administrator moved to set it aside, and pointed to possible confusion because of the erroneous finding instruction. The defense lawyers told the judge that it was an inadvertent error that was speedily corrected. They added, “If anything, if you believe this was actionable conduct on counsels’ part, then it would be a question of sanctions, not a motion for a new trial.”

The trial judge denied the plaintiff’s post-verdict motion, and she accepted the defense lawyers’ explanation that the error was inadvertent. But she sanctioned them anyway, finding that the inadvertence “does rise to the level of a sanctionable act.” The lawyers got a writ to review this $400 award.

Let’s take a small side trip, a short excursion into the land of appellate arcana. Four hundred bucks is a very small amount in controversy. You may be wondering how often the justices take up tiny awards like this. Well, it’s not very often, but it isn’t zero; the smallest one I can recall was $540, in Martin v. Duncan, 277 Va. 204 (2009). In that case, the justices held that a trial court lacked the authority to make the plaintiff pay the cost of the jury when he nonsuits. I’ve repeatedly used that case as an illustration of the principle that you still have a chance of getting a writ even in a small-dollar case.

Is there any lower limit to what cases the justices can take? Theoretically there is: Code §8.01-672 sets a $500 minimum limit on the amount in controversy. In a 1933 case, and another one in 1936, the Supreme Court referred to this limit (actually, the $300 limit that was in place at that time) as jurisdictional.

How can the justices accept and decide an appeal that falls below a discrete and unambiguous threshold like that? Good question. One possibility is the closing language of the statute: “… or some other matter not merely pecuniary.” Is the power of a trial court to award sanctions “not merely pecuniary”? Theoretically, but I doubt it; viewed in context, that language refers to truly nonmonetary matters such as appeal of a zoning variance. The mere question of the power of a court to enter a given monetary order like this one isn’t enough (that was decided in the 1936 case).

So no, I don’t have a good explanation why the justices decided to take this case despite the jurisdictional bar. And because this is a court of last resort, we aren’t likely ever to get a full explanation.

Back to our story. Today, the Supreme Court notes that the trial court didn’t explain the basis for its sanctions, so the appellate court has to sift through the possible grounds for it. (I expect that’s a frustrating situation for the Robes.) The court discards the inherent-power basis because that doesn’t authorize monetary sanctions. It finds that no rule of court applies here, and concludes that this isn’t a case of summary contempt, either, because that’s a specific-intent offense. Remember, the judge expressly accepted the lawyers’ assurance that the error was unintentional.

That leaves the sanctions statute, Code §8.01-271.1. The appellants argued that the statute doesn’t apply because it only governs pleadings, motions, and other papers that a lawyer signs. (“The signature of an attorney or party constitutes a certificate by him that …”) No one signed the jury instruction, so that situation doesn’t control here.

On this point, to my great surprise, the justices disagree. They cite the sanction statute’s application to oral motions made to the court; those can be the basis for sanctions, too. This prompts the inevitable rejoinder that the lawyer merely handed up a paper; he didn’t say anything and he didn’t make a motion. But the justices cast that plausible objection aside in what looks for all the world to me like they’re rewriting the statute:

Submitting a jury instruction to a trial court and asking that a particular instruction be given to a jury is the equivalent of making an oral motion to the court. Accordingly, this statute may serve as the basis for sanctions related to the submission of jury instructions by an attorney or party.

I will confess that I read this language three times, to ensure that I was reading it correctly. Handing up a jury instruction is the equivalent of making an oral motion? But there it is: the sanctions statute, as of today, applies to papers that a lawyer hands up to a judge even if no one has signed it, and even if no one says a word.

In the end, the lawyers avoid the sanction because – and this is the heart of today’s ruling – the justices conclude that the statute doesn’t authorize sanctions for inadvertent mistakes. They therefore reverse the sanction and enter final judgment.

Standing

We all know that a suit must be filed in the name of the real party in interest. So who is that party when a court appoints a guardian for an incompetent person? That’s the dispositive issue in Lopez-Rosario v. Habib, a medical negligence case filed by the ward in her own name.

The plaintiff is an adult with the mental capacity of a six-year-old. Her parents petitioned the local circuit court to appoint them as co-guardians under the statutes relating to incapacitated persons. The order gave them the authority “to  make decisions regarding the support care, health, safety, habilitation, therapeutic treatment and residence of” the daughter.

The daughter later had surgery that allegedly caused an injury to her. She filed a lawsuit against the surgeon, Dr. Habib, and never mentioned the guardianship.

The doctor moved to dismiss, claiming that with the advent of the guardianship, the patient could no longer file suit. The trial court agreed and dismissed the action; today the justices agree and affirm. Because previous caselaw indicates that a general order of guardianship does indeed extinguish the ward’s power to file suit, the only real issue in today’s appeal is whether the guardianship order was limited to medical decisions, or if it included the power to make legal decisions, too. The justices note that the order “did not specify any limitations on the parents’ guardianship, effectively granting them all of the authority that a court may vest in a guardian. Thus, the parents are Lopez-Rosario’s full guardians, not limited ones.” That means that only they could file a lawsuit asserting medical negligence.

 


 

 

HOW EVERY APPELLANT’S DREAM OPINION BEGINS

 

[Posted April 11, 2016] “The district court’s ruling errs in so many respects that it is hard to know where to begin.”

From the slip opinion in In re Ada M. Conde Vidal, No. 16-1313 (1st Cir. April 7, 2016). (I offer my gratitude to SCOTUSblog for the news.)

Admit it: you’ve wished for an opinion like this. You’ve hoped and dreamed for it as you prepared your appellant’s brief, explaining to the appellate panel how utterly clueless the learned trial judge was. Your brief was so compelling, it practically wrote itself; the only difficult task for you was in deciding which of your issues to place first in line, letting the other twelve fall in after that one.

I’ll offer two subtle hints here. First, if you have a dozen or more appellate issues, you’re wasting your time filing your brief. The appellate court is likely to view this as a form of desperation – the shotgun approach, where you toss out every possible issue, hoping that at least one of them will get you a reversal, and if none of them are strong enough alone, the sheer weight of them will overwhelm your adversary. It doesn’t work that way; you need to appeal only your strongest issues.

Second, no matter what you think of the learned trial judge, resist the urge to dis him at the appellate level. Attack the ruling, not the person who made it. One helpful way to do this is always to refer to “the trial court” instead of “Judge Dingelhoofer” in your brief.

In this decision, a federal judge in Puerto Rico had ruled that there was no right to same-sex marriage in the Commonwealth of Puerto Rico. Shortly thereafter, SCOTUS handed down Obergefell v. Hodges, and, well, you know how that came out. The First Circuit issued a decision concluding that Puerto Rico’s ban was unconstitutional, accompanied by a mandate.

On remand from the First, both parties (one of them probably reluctantly) asked the district court to enter judgment accordingly. But no; the judge issued an order holding that the right to same-sex marriage still wasn’t established in Puerto Rico.

There are two problems with this. First, Obergefell applies throughout America, and Puerto Rico is part of America. I know, because when The Boss and I went there a few years ago, we didn’t need passports and we got to use greenbacks to pay for our purchases. Second, the First Circuit’s original opinion had expressly held that the island’s ban was unconstitutional. The district court just decided to overrule it.

The end is swift (the guts of the per curiam opinion are only 3½ pages); the case is remanded and the court of appeals takes the unusual step of directing that it be reassigned to another randomly assigned judge for further proceedings. The appellate court isn’t taking any more chances with this district judge.

 


 

 

THE STORY BEHIND THE STORY OF

ENVIRONMENT SPECIALIST v. WELLS FARGO

 

[Posted March 28, 2016] Last month, the Supreme Court of Virginia handed down 14 opinions and orders all at once, on what turned out to be Justice Roush’s last day on that bench. One of those decisions was Environment Specialist, Inc. v. Wells Fargo Bank Northwest, an appeal of a $1,200 sanction order. A unanimous court reversed the imposition of sanctions against a lawyer who had declined to agree to extend his opponent’s deadline to file an answer in a mechanics’ lien suit.

When the opinion came down, I analyzed it in the usual way, noting that it focused on the difference between ethics and professionalism. The trial judge had sanctioned the lawyer for what amounted, at most, to behavior that could be classified as unprofessional – though there’s real doubt about even that, since the lawyer received express instructions from his client not to consent. (Really, what are you supposed to do when the client says, “Hell, no!”? Disobey him and risk a Bar complaint?)

I will admit to you, my loyal readers, that I wrote only half of the story on February 12. I had seen the petition for appeal and the brief in opp, and thereby learned plenty about the underlying issues – especially the procedural posture of the appeal. That background convinced me that this appeal was destined for the appellate morgue. I was very surprised when the justices decided the appeal on the merits instead of dismissing it for one of several procedural defects.

But after getting some advice from a professional journalist, I deliberately withheld what I thought was the major news story of the case. That’s because I don’t want to meddle in somebody else’s active appeal, and if I had written back then what you’re about to read here, it could foreseeably have spurred a petition for rehearing. Now that the court has issued the mandate, the appeal is truly over, so I can write more freely.

The first thing I’ll note is a surprising aspect of the case, for which I can conceive only one likely explanation. Note the amount of the award: twelve hundred dollars. That kind of money might buy you a 45-minute lunch with a K Street lawyer, or an extended, leisurely lunch with me if you insist that I bill you by the hour. (To my knowledge, $1,000+ hourly rates have not arrived here in Tidewater. I doubt I’ll be the first to cross that daunting line. And no, I don’t bill for going to lunch.)

Twelve hundred bucks. That’s all that was at stake in this appeal. And yet, Wells Fargo’s lawyer filed a brief in opposition to the petition for appeal; after the writ arrived, she filed a brief of appellee, prepared a speech, drove to Richmond, and participated in oral argument. That’s a lot of attorney hours in an effort to protect a $1,200 award. Most appellees in this situation would decline to spend tens of thousands of dollars in order to hold on to twelve Benjamins. It may be a fair inference that the lawyer didn’t bill Wells Fargo for that time; the stockholders might want to know why the bank would spend a dollar to collect a dime.

Accordingly, I don’t think this appeal was about money. Theoretically it could be about principle – a word that makes me wary whenever someone tells me he wants to hire me – but my suspicion is that it was more about vengeance, triggered by resentment that the plaintiff’s lawyer had declined to extend a simple courtesy. Perhaps the lawyer was trying to establish a precedent that plaintiffs’ lawyers should be susceptible to punishment if they refused to agree in situations like this. I’ll probably never know for sure if my suspicion is correct.

On to the more important issues. As I saw it, there were three fatal flaws in this appeal, any one of which should have been sufficient to dunk it. In one sense, I’m glad that the justices overlooked this, as I wholeheartedly agree that it was inappropriate for the trial judge to have sanctioned this lawyer; this sanction order had to die. But for those of us who handle appeals for a living, these three flaws will come as breathtaking surprises.

One of the problems came out on page 3 of the published opinion, and I mentioned it last month: there was no record of the sanction hearing. There was no court reporter, and while the appealing lawyer prepared a Rule 5:11(e) written statement, the judge never acted on it. That means there’s no explanation in the record for why the judge did what he did; there’s no statement of what factors he considered, no expression of his reasons for imposing the sanctions.

Normally that’s fatal to an appeal unless a transcript is unneeded – an appeal of a sustained demurrer comes immediately to mind as an example of that rare kind of case. But the justices determined that the sanction order itself was enough for them to decide the merits of the appeal. The order states that the lawyer was being sanctioned for his “failure to voluntarily extend the time in which Wells Fargo might file its answer.”  In all, I can see why the justices looked past this issue, but read on for my advice on this factor.

The second ordinarily fatal flaw didn’t find its way into the opinion, but it’s spelled out in the petition for appeal and the appellant himself mentioned it during oral argument. After the court imposed the sanction, the lawyer paid the $1,200 under protest and proceeded with the appeal.

So why is that a problem? Because the justices have expressly held that the voluntary payment of a judgment “deprives the payor of the right of appeal.” Citizens Bank & Trust Corp. v. Crewe Factory Sales Corp., 254 Va. 355, 355 (1997). You get a pass if you’re facing involuntary collection procedures, such as an execution on a money judgment, or a show-cause hearing for failure to pay a sanction like this. In that instance, you can pay it and still appeal. That’s Carlucci v. Duck’s Real Estate, Inc., 220 Va. 164, 166 (1979). But there’s nothing in the petition for appeal to indicate that this lawyer was facing a contempt hearing when he paid up; this looks to have been just a voluntary payment.

Now, perhaps there’s something that I’m just not aware of, since I didn’t review the entire record. Maybe Wells Fargo did file a show-cause motion, and nobody happened to mention it, either in writing or orally. I’ve checked the trial court’s case-information page for this litigation, and I don’t see any such motion listed, so I doubt I’m wrong. In any event, on its face, I would not have expected the justices to reach the merits of this question after the lawyer made the appeal moot.

That brings us to the last fatal problem, and I don’t see how we get past this one. The petition for appeal listed the only appellant as Environment Specialist, Incorporated. It did so twice: once on the cover and again in the mandatory Rule 5:17(i)(1) certificate. But Environment Specialist didn’t get sanctioned; its lawyer did. And he didn’t list himself as an appellant.

That means two things. First, the named appellant – the client – was not aggrieved by the sanction order, so it had no standing to appeal under Code §8.01-670. That, in turn, means the Supreme Court didn’t have jurisdiction over the case. Second, you cannot proceed with an appeal unless all necessary parties are before the court; that’s the Asch v. Friends of Mt. Vernon Yacht Club case from 1996 (251 Va. 89). Beyond question, the lawyer fits the definition in Asch of a necessary party:

Where an individual is in the actual enjoyment of the subject matter, or has an interest in it, either in possession or expectancy, which is likely either to be defeated or diminished by the plaintiff’s claim, in such case he has an immediate interest in resisting the demand, and all persons who have such immediate interests are necessary parties to the suit.

251 Va. at 90-91. The court went on to say that an appeal “must be dismissed” in the absence of a necessary party.

In the past, when the Supreme Court has taken up appeals of sanctions against lawyers, the lawyer has always been named as an appellant. The cases are legion: McNally v. Rey, Shebelskie v. Brown, the PETA cases (involving a lawyer named Petrosinelli and the Williams & Connolly law firm), Flora v. Shulmister, Nedrich v. Jones. Even Northern Virginia Real Estate v. Martins, the eye-catching $270,000 sanction from a few years back, had a companion appeal, decided in the same opinion, in which the lawyer named himself as an appellant. The same thing happened in 2013 when an even more astonishing sanction (almost $900,000) against a lawyer found its way to Ninth and Franklin; again, the lawyer was a named appellant in the case. If the lawyer is aggrieved by being sanctioned, he has to name himself as an appellant. Otherwise, the court won’t help him – at least in normal circumstances.

So does this mean that in the future, you can bring appeals without a transcript or written statement, after prepaying the judgment, and without naming the real party in interest? Don’t try this at home, folks; I strongly suspect that these issues fell by the wayside here for one overwhelming reason, for the wording of which I will borrow from FedEx: this sanction was so improper, it absolutely, positively had to be reversed.

 


UPDATE ON RECENT APPELLATE DEVELOPMENTS

[Posted March 12, 2016] You’ve noticed that it’s been a while since my last post. That’s due to a couple of factors: the Supreme Court has been deathly silent since its hurried release of opinions and unpubs on February 12, and I’ve been on the road a great deal in the interim. In truth, the actual appellate news field has been reasonably quiet recently. But appellate news has exploded in the past few days. Let’s dig in.

A new justice

On Thursday the legislature elected CAV Judge Steve McCullough to fill the seventh seat on the Supreme Court of Virginia. This ends the hyperpartisan spat over the Governor’s appointment of Jane Marum Roush to the seat, and legislative Republicans’ stalled efforts to replace her with CAV Judge Rossie Alston. The legislators knew that they had to get their acts together no later than Friday, or the Governor would simply reappoint Justice Roush, and that nod would last until February 2017.

Justice-elect McCullough will be a rarity on the Supreme Court: the first former appellate lawyer in a long, long time to sit on the other side of the lectern. He’s had experience with that role on the Court of Appeals, so it won’t be a steep learning curve. For the first time since I was admitted to the bar, we’ll have a justice who’s actually handled appeals for a living.

But what about the previous nominees? Judge Alston is less affected, as he’ll continue to sit as a judge of the CAV. He’s up for reconsideration next year, and I have little doubt that he’ll be speedily reelected.

Justice Roush (I will continue to call her that, just as I’ve done with retired justices) faces a much less certain future. Once upon a time, when the Republicans were trying to replace her last year, she may have been offered Judge Alston’s CAV seat if she agreed to step aside. That ship has sailed; the General Assembly yesterday elected Henrico GDC Judge Mary Malveaux to fill Judge McCullough’s CAV seat. On Wednesday, they elected a new circuit-court judge to Fairfax Circuit, so that bench looks to be full, too.

My uninformed suspicion is that the Commonwealth is about to gain a new mediator who’s in heavy demand, and who might make more money doing that than she did wearing a robe.

I firmly believe that both Justice Roush and Judge Alston are victims. They were used as pawns in a political temper tantrum by politicians who cared not one whit what damage they were doing to capable judges, to dedicated public servants. To people.

I’ll address one last point. Could it be possible that one or the other of the candidates was promised the next available seat on the court? It’s theoretically possible, but I highly doubt it. The next time there’s scheduled to be a vacancy on the court, barring something like an early retirement or a move to a federal court, is 2022, when the chief justice will reach mandatory retirement age. By that time, both Alston and Roush will be in their mid-60s. If you look for an example of a justice who was appointed that late in life, you have to go back to the early 1930s  (Justice Joseph Chinn was 65 at his appointment in 1931), and that was long before Virginia law enacted that mandatory-retirement statute. In any event, none of us can say what the political climate will be in 2022, so even a solemn promise like that might prove impossible to carry out.

How does this replacement affect pending argued cases?

The first thing to know is that there aren’t many of them; when the court gave us a front-end loaderful of decisions on February 12, it left, by my count, only two appeals undecided from those that had been argued up to then. One of them is Johnson v. Commonwealth, a review of a life sentence in a murder conviction; the other is Chesapeake v. Dominion Security Plus Self-Storage, a closely watched eminent-domain case from down here in Tidewater. I know that Justice Roush participated in at least the latter case, and probably in both.

So what happens in those appeals? Well, I wrote last year about the de facto officer doctrine, which legitimizes the rulings made by a judge whose commission later turns out to have been improper. But can the court issue an opinion after the date on which a justice is no longer in office?

I strongly suspect that the answer is yes. Since no sitting justice has been removed since about 1900, we don’t have a lot of direct precedent, but in the more recent past, the court has gone ahead and released opinions after justices have died or taken senior-justice status. For example, Senior Justice Compton died on April 9, 2006. Twelve days later, the court handed down Ogunde v. Commonwealth (271 Va. 639). The late justice not only took part in the decision of that appeal before his passing; he wrote the majority opinion.

Two noteworthy retirements

Virginia’s appellate bar is a small and close-knit group. While we’re technically in competition for incoming business, in reality the group of appellate lawyers here is a terrific bunch. We’re pretty much all good friends, and as a result, appellate practice in the Commonwealth is a great pleasure.

A few days ago, one of Virginia’s very few exclusively appellate lawyers hung up his iPad. My pal Jeff Summers has called it a career after serving our nation (he’s a retired Marine colonel), the public (he served as the New Kent County Attorney for a number of years), and his clients in the private sector, not to mention his work through various bar associations to better the profession. He plans to devote time to some charitable causes (The Boss will not tolerate his simply hanging out around the house), do some traveling, and generally enjoy life.

Jeff, I hope a Marine will forgive my using a Navy expression, but I live in a Navy town, and it’s the best sentiment that comes to mind: Fair winds and following seas, my brother.

The other significant retirement announcement came as a rude shock: Jonathan Goldsmith is ending a terrific nine-year run as The Most Interesting Man in the World. Here was a guy who could parallel-park a train; who won Olympic gold and silver in the same event; who’s so cool that “if he were to pat you on the back, you’d list it on your résumé.”

Dos Equis will shift its marketing focus toward a younger audience, but the memory of The Most Interesting Man will live on in advertising lore. I understand that the company will air one final ad with him, featuring a one-way Mars mission. It fits.

I mention this here because I cannot publicly confirm that the brewer has approached me to begin a series of ads focusing on The Most Interesting Appellate Lawyer in the World. The paperwork on the deal isn’t finished yet, and it would be premature to make any sort of announcement right now.

Things could always be worse

I cried because I had no shoes, until I met a man who had no feet.

Musharrif al-Dīn ibn Muşlih al-Dīn, known as Sa’di, in Gulistān (The Rose Garden)

 

Back to the SCV dispute: you think we’ve got it bad? Be glad you don’t live in Kansas, Dorothy.

Kansas’s government is effectively one-party. The governor is a strongly conservative Republican, and the GOP enjoys super-majorities in both legislative chambers, so the party can do whatever it wants. (Sen. Tommy Norment has probably been eyeing the Sunflower State with envy for some time now.) The state government has enacted sweeping legislation cutting taxes and government services for several years now.

But the judiciary – specifically the Kansas Supreme Court – isn’t such a deep-red hue. The court has in the past struck down some legislative pet projects, thereby stepping on some powerful toes.

In response, the legislature passed a statutory amendment in 2014 that took away the Supreme Court’s existing power to appoint chief judges of trial courts in the state’s 31 districts. Because that would foreseeably trigger a reversal on separation-of-powers considerations, the legislature added a new statute: if the Supreme Court were to declare that new judicial-appointment law unconstitutional, all state funding for the court system would be stricken.

Are you convinced yet that Kansans have it worse than we do? Hold on; I’m just getting started.

This budgetary threat was designed to engender a game of chicken. Would the court risk the shutdown of a vital governmental service? The justices didn’t blink; they struck down the law anyway, and the legislators backed off.

That was Round 1. Round 2 began last week, when the legislature passed Senate Bill 439, providing definitions in the state’s “high crimes and misdemeanors” statute. That sounds benign enough. But one key clause in the new bill stands out: if the governor signs the bill, supreme court justices can be impeached for, among other things, “attempting to usurp the power of the legislative or executive branch of government.”

Yes, that means exactly what you think it means. It’s a renewed threat to the independence of the judiciary: if you declare one of our laws to be unconstitutional, we’ll drag you in, impeach you, and send you back to the private sector.

Now are you convinced?

I’ve long recognized that while Virginia’s three branches are separate, they’re hardly equal. Our constitution separates powers, but it gives far more power to the legislative than to the executive and judicial branches. For example, the constitution established the court system, but it empowers the legislature to fix the limits of the courts’ jurisdiction. The General Assembly is free to control things from admissibility of evidence to the time limits for prosecutions to how much money an injured plaintiff may recover. The courts have to play by these rules, because the constitution allows the legislature to exercise these functions.

I’m happy to report that we’ve seen nothing here to match the events in Topeka, which appear to me as an appalling overreach by a legislature that’s so well-entrenched, it has nothing to lose. Sure, the legislature here occasionally steps in to “reverse” a Supreme Court decision it doesn’t like, and in most such instances, the justices have to just nod and go along.

But on occasion, the Supreme Court overturns an important legislative enactment without triggering a jurisprudential nuclear winter. One easy example came eight years ago, when the justices struck down an arrangement whereby a regional transit authority up in Northern Virginia would have the power to set tax rates. The legislators understandably didn’t want to raise taxes themselves, for fear of backlash on Election Day, so they delegated that power to the authority. No deal, the court ruled; the power to tax cannot be delegated.

Happily, the legislature didn’t get out the football and look up the nuclear launch codes in response; Virginia’s government carried on as usual after that decision. I get the impression that things would be much scarier for judicial independence if we had Kansas’s legislature.

 


 

 

RECAP OF RECENT SCV UNPUBS

 

[Posted February 18, 2016] Last week, in addition to the nine published opinions we got from the Supreme Court of Virginia, the court also resolved five cases by unpublished order. Some of those caught my eye; here’s a report on three of them.

 

Foreign attorneys

The language is right there – right there! – in Rule 1A:4(2), relating to practice by pro hac vice counsel: “Any pleading or other paper required to be served (whether relating to discovery or otherwise) shall be invalid unless it is signed by local counsel.”

And yet lawyers continue to miss this long-standing requirement. It tripped up the appellee in Harman v. Honeywell a couple of years back, resulting in a forfeiture of the appellee’s right to oral argument. (The justices eventually reversed, 7-0.) Last week it claimed another victim, in Sequel Investors LP v. Albemarle Place EAAP, LLC.

The underlying litigation almost doesn’t matter; this is a case about trespass to realty by incursion of storm water onto the plaintiff’s land. The trial court ruled in favor of the defendant, and the plaintiffs appealed.

In the trial court, the plaintiffs had been represented by two out-of-state attorneys, assisted by a Virginia lawyer. They prepared and filed a petition for appeal, but the only signature on the petition was one of the foreign lawyers. Evidently no one noticed that problem at the petition stage, because the court granted a writ and heard oral argument on the merits on January 14.

But someone was on top of it. Four weeks before the argument date, the appellee moved to dismiss the appeal, pointing out the defective signature and citing the jurisdictional requirement of a timely and rules-compliant petition for appeal. The appellants quickly moved for leave to amend their petition, citing Rule 1:9 (“Leave to amend shall be liberally granted …”). They claimed that the omission was a clerical error.

No dice. The court agrees with the appellee and dismisses the appeal. Petitions for appeal must be filed within three months of the date of judgment, and a filing that’s invalid – that’s what the statute calls it – won’t comply. Nor can the appellant get past this hurdle by calling this an amendment (which would presumably relate back to the original petition date) because, the court finds, you can’t amend something that’s invalid: “[T]here is no valid instrument pending before the Court to which the amendment can ‘relate back.’”

This last holding is very important and deserves your full attention. The court holds that a defect in a mandatory, jurisdictional filing cannot be amended where the defect renders the original filing a nullity. This isn’t the only circumstance where that can occur, so this holding isn’t limited to pro hac vice issues.

So who’s to blame here? I’ll repeat what I’ve said in other situations where foreign attorneys made a fatal mistake based on Virginia practice: it’s the Virginia attorney. His job was to ensure compliance with Virginia practice and procedure. If you’re asked to serve as local counsel, do not assume that your only obligation is to serve as a glorified babysitter; rules compliance is your job. If you’re not confident that you can fill that role, you need to decline the engagement, no matter how easy your outside counsel promise you your task will be.

 

Torts

In another instance of “it’s happened again,” Simms v. Van Son generates a reversal of a trial court who granted summary judgment in a tort case, ruling that the plaintiff was contributorily negligent as a matter of law.

Simms went to the US Post Office on Main Street in Emporia, but all six of the patrons’ parking spaces were full. She parked along the curb of the parking lot – lawfully, the Supreme Court assures us – and walked toward the building. As she was doing so, Van Son backed out of his parking space and hit her.

The configuration of the building and parking lot plays a significant role in this case; so much so that I understood the facts much better after I zeroed in on the site on Google Earth. For simplicity’s sake, I’ll mention that the post office had two doors – one in front and one to the side. Simms parked her car marginally closer to the front door, but she headed for the side door instead. In doing so, she walked across the parking lot’s travel lane. She was walking away from Van Son’s car when he hit her from behind as he backed out.

The trial court ruled that Simms was negligent as a matter of law because she was walking across a “highway.” If that seems odd to you, know that the defense seized on a curious subsection in the highway-definition statute: a “place used for purposes of vehicular travel … owned, leased, or controlled by the United States government.” Technically that definition applies to this situation, and Simms didn’t contest that this was a “highway.”

Reading between the lines, I sense that the justices were just as skeptical of this novel interpretation as you probably are; but they find it unnecessary to uncork that ruling. The court reverses the summary-judgment finding and sends the case back for trial. The justices hold that the negligence of the plaintiff, if any, was a jury question. What’s more, the fact that a plaintiff is negligent doesn’t bar her from recovery; her negligence must be a proximate cause of the injury. It must actually “contribute” to the damage. And a jury gets to decide that, too.

The court distinguishes other cases in which a plaintiff was held to be contributorily negligent as a matter of law, since those all involved “plaintiffs who were struck while jaywalking between intersections on busy streets.” In contrast, walking across a parking lot, with no indication that a car is coming, isn’t enough to take the case away from the jury.

 

Legal malpractice

The client in Dunavant v. Bagwell waited a tad too long to sue his former lawyer for malpractice in a personal-injury suit. That PI litigation ended with a defense verdict in 2010. The client sued his lawyer in 2014, but the trial court sustained a plea in bar based on the statute of limitations. That’s because the parties never signed a retainer agreement; the whole undertaking was oral.

The lawyer acknowledged that he had a form for retainer agreements, but he didn’t use one here because he had known the client for 60 years. If there’s no written contract, then it’s a three-year statute. This is looking like an easy decision, but the client has one more high card to play.

A few years ago the court decided an engineering-malpractice claim in which there was a written agreement, but the parties never got around to signing it. The court ruled that that agreement was still binding:

An unsigned agreement all the terms of which are embodied in a writing, unconditionally assented to by both parties, is a written contract … unless the parties have made [their signatures] necessary at the time they express their assent.

This is from Gerald T. Dixon Jr. LLC v. Hassell & Folkes, PC in 2012. But the Dixon decision had two parts: it ruled that there was indeed an enforceable contract, but that that contract still wasn’t in writing for statute-of-limitations purposes. (Justice McClanahan penned a particularly intriguing dissent back then on this last point.) The justices accordingly hold here that the client had three years, not five, to file suit, so the trial court properly dismissed the action.

Use of unpubs as precedent

So what use can lawyers make of these decisions? The court doesn’t have any rules that relate to unpublished orders, and there are no statutes that govern them. (The Court of Appeals, in contrast to the SCV, is obliged by statute to explain the reasons for each of its rulings. Hence the large number of unpubs in that court, and the court’s express disavowal of their precedential value.) How do you know what you can do with them?

Here’s my sense of things. First, you would be wise not to regard these as binding precedent, especially in the Supreme Court itself. Given the Court of Appeals’ express disdain for unpubs, I’d advise against citing them as authority there, too. But you can cite them as persuasive authority in both courts.

Usually the safer route is to look to the published opinions that are cited in the unpubs, and see if you can cite those for your principle. In most instances, that should serve you just as well.

In the trial courts, it’s a different story. If you have a killer unpub that’s on all fours with your case, the temptation will be overwhelming to cite it and dare your opponent to respond. So go ahead; cite it. If the case is that good, your opponent will probably fall back on the first port he can find in a storm: “Your honor, this is just an unpublished order. It doesn’t carry any weight.”

You can then give the following ominous reply: “All I can tell you, your honor, is that this is the way the Supreme Court views this issue. The appellee in this order argued just what Mr. Jones is asking you to do, and the justices unanimously reversed him and remanded the case.” Now, some trial judges might decide to tug on Superman’s cape in this way, but most of them are going to read what the SCV has to say, and take that as at least a cautionary indication.

Besides, if the result of a reversal really would be a remand in your case, you’re in a powerful position. Trial judges hate the R-word; once they enter final judgment, they never want to see the case again.

 


ANALYSIS OF FEBRUARY 12, 2016 SUPREME COURT OPINIONS

 

[Posted February 12, 2016] Remember that dizzying announcement I posted back in September, about the end of opinion days as we knew them? Well, you can forget it, at least for this month; today the justices go back to an old-fashioned mass release on a Friday. The court announces nine published opinions and five unpublished orders this morning.

It isn’t hard to guess why; the responsibility lies with the legislature, where warring factions are still unable to agree upon who’ll get the court’s seventh seat on a permanent basis. That means that Justice Roush’s interim appointment expires after today. It looks to me as though the court has accordingly cleared out all of its pending cases, so there won’t be a dispute as to her ability to participate, vote, and write opinions.

In case you’re wondering, the answer is that I don’t know if the court will go back to the Thursday rolling releases for future opinions. My best guess is that it will, and this will be a one-time aberration based on the exigency created by the petulance across Ninth Street.

Habeas corpus

This circumstance happens with some regularity: a criminal defendant pleads guilty on advice of counsel, and is convicted accordingly, sometimes of a lesser charge. The defendant later thinks better of his decision and files a habeas corpus claim, asserting that his lawyer advised him poorly. The issue in Smith v. Brown is whether, in evaluating such a habeas petition, a trial judge has to convene a hearing.

The immediate answer is that sometimes, the court doesn’t need a hearing. In those instances where the existing record suffices to enable the court to decide the merits, there’s no need to bring the petitioner over from prison. But what if he asserts grounds that are outside the court’s existing record?

Smith pleaded guilty to felony murder and drug distribution after a plea agreement. His lawyer had advised him orally, and later wrote a letter to summarize the advice and urge Smith to take a proposed plea deal. The letter stated that Smith was charged under Code §18.2-32 and noted that the plea agreement would allow him to be convicted of the lesser offense of manslaughter.

Importantly, the letter went over “the legal theories of concert of action, aiding and abetting and being an accessory before the fact.” But it said nothing of the elements of felony murder. In addition, the lawyer got the statute wrong; Smith was in fact charged under a different felony-murder statute (§18.2-33).

Smith’s habeas petition claimed that if he had known the res gestae elements of the crime he was charged with, he wouldn’t have pleaded guilty. The trial court dismissed his petition without a hearing, but today a unanimous Supreme Court reverses and sends the case back for evidence.

The key “outside the record” evidence here is likely to be a statement from the defense lawyer about what information Smith received by way of advice. If the advice was pretty much coextensive with the contents of the letter, then Smith would have a point, at least factually, and there’s no way for the trial court to know that without taking evidence.

Now, this victory may well turn out to be temporary. The last section of the opinion sets out the habeas court’s process and notes the formidable burden that Smith will have to shoulder in order to get relief.

Perhaps the highest-profile case released today is Blount v. Clarke, which has been a cause célèbre here in Tidewater for many years. The case implicates several basic premises of our lives: the weed of crime bears bitter fruit; be very careful when you take certain risks; be extra careful what you ask for; and be extra-extra careful when you choose your words.

In 2006, a 15-year-old named Travion Blount made a big mistake. He agreed with two pals (both of whom were over 18) to go to a house party and rob the people there. The trio didn’t get away with it; they were caught and prosecuted. Blount faced 51 felonies – no, I didn’t mistype the numeral 15; he had fifty-one charges. His co-defendants pleaded out, getting 10 and 13 years to serve. Blount, failing to appraise his risk wisely, elected to go to trial.

That was his second mistake. He was convicted on 49 counts and walked out of the sentencing hearing with a whopping six life terms plus 118 years to serve. Direct appeals got him nowhere.

Two years after his convictions, SCOTUS handed down Graham v. Florida, barring sentences of life without parole for juveniles who commit non-homicide offenses. Blount took that as an opportunity for habeas relief; he filed a petition but was stymied by the SCV’s insistence (expressed in Angel v. Commonwealth in 2011) that Virginia’s geriatric-release statute means that he didn’t have a life-without-parole sentence.

Well, if state court won’t work, you can always try the feds. Blount filed a §2254 habeas petition in US District Court. There, the Commonwealth moved to dismiss, arguing the same reasoning that had won the day in state court (based on Angel).

I need to shift cases for a moment here, and address yet another habeas petition in the US District Court here in Norfolk: LeBlanc v. Mathena. In a ruling that I think I can safely describe as sensational, the same district judge granted the petitioner’s habeas petition on identical grounds. (If I recall the language correctly, she wrote that reasonable jurists could not disagree that the SCV’s unanimous Angel opinion was dead wrong.)

While his federal case matured, Blount filed a request with the Governor’s office for a conditional pardon. He pointed to the wide disparity between his extraordinary sentence and the sentences imposed upon his adult colleagues. He asked for something on the order of 10-20 years.

Perhaps this was a way of hedging his bet, in case the federal case didn’t produce the kind of victory he was hoping for. But in asking for a conditional pardon, Blount inadvertently opened the door to a kind of relief that probably caused him to shudder. He wasn’t careful what he asked for.

The Governor issued an executive order. It recites Blount’s youth, the disparity in sentences, and “his complete criminal history and conduct while incarcerated,” and concludes, “I Robert F. McDonnell, do hereby immediately grant Travion Blount, a COMMUTATION OF SENTENCE, reducing his term of incarceration for a total of forty (40) years for his offenses. Pardon Granted: January 10, 2014.”

Forty years?! That’s not much better than the age-60 requirement for geriatric release! This wasn’t what Blount had asked for, by a long shot.

It gets worse: by eliminating the life sentences, the Governor may have mooted Blount’s federal habeas case – the one that seemed to be going quite well. He had to find a way out from this gift.

Blount analyzed Virginia’s constitutional framework for commutations and pardons, and saw a ray of hope. The Governor has the power to either commute sentences or pardon offenders. But by its terms, the Constitution of Virginia only allows the Governor to commute capital sentences. He can’t commute a sentence of anything less than death.

That means that this was, in fact, a conditional pardon – just what Blount had asked for. And Virginia law holds that where a Governor offers a conditional pardon, the inmate has the right to accept the conditions or refuse the pardon. Blount sought to refuse the pardon, so he could have his multiple life terms back.

If this sounds slightly backwards to you, I understand. It isn’t often you find an inmate who craves a whopping sentence instead of a lesser term of years. But Blount’s Graham claim depended on those life sentences; he needed them back.

The Commonwealth and the defense thus presented the district judge with the question of what, exactly, the Governor’s executive order amounted to. A pardon is one thing – traditionally, the elimination of the finding of guilt. A commutation is, in contrast, the substitution of one type of punishment (such as a prison term) for a different type (for example, a death penalty).

Since that question turns on state law, the judge agreed to ask the Supreme Court of Virginia – the same justices she had just publicly bench-slapped – to give her its view on the question. The SCV justices graciously agreed to decide the matter.

As is always the case with certified questions, the referring court phrases its legal questions, but the Supreme Court has the right to rephrase them as may be necessary to facilitate an answer. Today, a majority of the court (Justice Powell writes for the chief justice and Justices Goodwyn and Mims) begins by doing that.

There are two such edits, but the second one is the major news item: the district court had asked if the Governor’s executive order was “a conditional pardon or a commutation?” The majority rephrases that by deleting the word conditional.

Why would they do that? I’ll spoil the surprise – hey, this essay is long enough already – by telling you that the court rules that it was neither a conditional pardon nor a commutation, but was instead a partial pardon. Citing some very dusty Virginia caselaw, the court notes that a pardon “may be full or partial, absolute or conditional.”

The reasoning is simple: it isn’t a commutation because Blount hadn’t been sentenced to death. It wasn’t a conditional pardon because the Governor didn’t attach any conditions to it. But Virginia law, going back to the Nineteenth Century, allows governors to grant partial pardons, too – pardons that reduce the severity of a sentence without affecting the kind of sentence. And reading the document for what it says instead of how it’s titled tells the majority that this is what the Governor did.

Of course, he didn’t use exact language when he did so. In fact, in the same document, he calls his act a commutation and a pardon. That’s the last of our life lessons; if the order had stated that it was a partial pardon, we wouldn’t have needed this detour from Granby Street in Norfolk to Ninth Street in Richmond.

Since only conditional pardons require the inmate’s consent, the majority finds that the Governor effectively reduced Blount’s sentence – against his will, it seems – from multiple life terms down to 40 years.

I told you that the majority could command only four signatures, so that means we have a dissent. Justice Kelsey writes it, which means we’re in for a meticulous argument, accompanied by a history lesson.

He begins with no less a figure than John Marshall, who opined in an 1833 case that a pardon requires the consent of the inmate. That holding endured until Oliver Wendell Holmes swatted it aside nearly a century later.

Here in Virginia, the Attorney General opined in 1916 that a reduction of sentence from 90 days to 30 days is “in the nature of a commutation,” and if the inmate accepts it, it becomes a conditional pardon.

So you use, the Governor isn’t the only one using these terms too loosely. In that Nineteenth Century case, the current justices’ judicial ancestors faced the problem of what to do with a gubernatorial commutation of a non-capital sentence. That early court dodged a delicate question – whether the Governor was “ignorant of his constitutional functions, or that it was his purpose to transcend them” – by holding that a commutation that the inmate accepts “practically becomes the same thing as a conditional pardon.”

That’s nice, but it’s a perfectly open secret that Governors for generations have “commuted” non-capital sentences to shorter terms – Justice Kelsey refers to an exhibit showing over 1,600 such commutations – and no explosions have ensued. Upon reflection, that’s probably because no one was ever in Blount’s position; most other prisoners were happy to get a reduction in sentence. Only an inmate who wants to use a long sentence as leverage would fuss over whether the Governor who just shortened his sentence had the power to do so.

Justice Kelsey notes one other irony – there are many – in this case: The Commonwealth actually argued in favor of the position that the Governor has the power of commutation in non-capital cases, consistent with those 1,600 previous commutations. The majority rejects this approach, but gives the Commonwealth a victory anyway by “inventing” the concept of the partial pardon. The dissent believes that the court should enforce the Nineteenth Century decision and hold that the Governor’s action was a conditional pardon, and Blount has a right to reject it.

So, where does this leave the case? This opinion is a report to the federal court on what Virginia law is. Remember, on issues of Virginia law, the SCV is the court of last resort, so I think the district judge is bound by this ruling. (I haven’t researched this point, but that makes the most sense to me.) In that event, Blount’s federal habeas case is now moot, since only the prospect of a life sentence without parole can trigger the protection of the Graham doctrine. As of now, Blount is serving 40 years for his initial mistake.

Tort claims against the Commonwealth

Anyone who has ever fought a governmental-immunity battle against Aunt Virginia knows that the Commonwealth’s immunity is fierce. And the Attorney General defends that immunity vigorously. In Phelan v. Commonwealth, we get a new interpretation of one of the required elements for making out a claim under the State Tort Claims Act.

Phelan is an inmate in a state correctional center. She sustained a slip-and-fall injury and gave a timely notice to the AG, describing the injury and identifying the persons she regarded as responsible. She later filed suit against those two individuals and the Commonwealth.

During the course of the litigation, Phelan had to admit that her suit against the individuals was untimely, so she agreed to dismiss them. The Commonwealth pressed a different plea in bar, asserting that the notice of claim didn’t meet statutory requirements: it didn’t identify the agency that was claimed to be liable for the injury.

Now, everybody and his brother who reads the notice will conclude that the state agency is the Department of Corrections; she was held as an inmate, and the two named persons were DoC employees (one of them was an assistant warden). Even so, the Commonwealth insisted that in drafting such notices, you have to expressly name the state agency; you can’t rely upon even the most obvious inferences.

The trial court agreed with the Commonwealth, and today, so do the justices. By the language of the statute, a notice must “include … the agency or agencies alleged to be liable.” You have to comply strictly with the Tort Claims Act in order to claim its protection, and Phelan’s notice didn’t quite do that.

Easy lesson: If you file a VTCA notice, include the name of the agency, even if you think it’s perfectly obvious in context. Context won’t get it done.

Sanctions

Did you know that the assignment of opinions to a particular justice is by random draw? It’s true; the justices meet between sessions for something called “docket draw,” and they literally pick a number out of a hat – reportedly, it was former Clerk David Beach’s hat – to see who’s assigned to write each majority opinion. There’s a description of that process in my handy-dandy copy of Tom Smith’s book on the history of the court, at page 72. That paragraph concludes with this passage:

Occasionally the justices do exchange responsibility for the writing of an opinion: for example, in cases where a justice is in the minority on a case that he has drawn, or for some reason is overburdened at the time. The subject matter of the case is almost never the basis for an exchange.

That statement is probably about as true today as it was when Prof. Morris wrote it in 1974. But I would be willing to wager the princely sum of three dollars and eighty-five cents, American money, that Chief Justice Don Lemons asked to swap for Environment Specialist, Inc. v. Wells Fargo Bank NW.

This is a case about the difference between ethics and professionalism. If you’re not sure there’s a difference, the chief justice can tell you all about it (and so can I, because I heartily agree with him on this point). In this case a lawyer got sanctioned by a trial judge for a lack of professionalism, even though there was nothing unethical about what he did.

The underlying suit is almost an afterthought – a mechanic’s lien suit over $24,000. Environment Specialist is an HVAC company that sued the owners of some property to collect what was due to it. As required by law, it also named Wells Fargo, which had a credit-line deed of trust on the property.

The plaintiff served Wells Fargo through the Secretary of the Commonwealth. As often happens with such service on large entities, the process reached a lawyer for the bank on the 21st day. That lawyer picked up the phone and called the plaintiff’s lawyer to ask for an extension of time to file the answer.

The plaintiff’s lawyer called his client, who apparently said, “Hell, no.” He called his new adversary and reported to her the bad news. She accordingly filed a motion for leave to file a late answer and noticed it for a hearing. The motion requested an award of fees and costs, but didn’t say on what basis fees could be awarded.

At that hearing, the judge granted the requested extension of time. He also ordered the plaintiff’s lawyer to reimburse Wells Fargo’s lawyer $1,200 for “fees and costs, payable within 30 days, to compensate her for having to go to court to get the extension. The lawyer paid the award under protest, and appealed.

In preparation for the appeal, the plaintiff’s lawyer prepared a written statement under Rule 5:11(e), since there hadn’t been a court reporter at the hearing. Wells Fargo’s lawyer objected to it, but for some reason, they never resolved it through the court; accordingly, there was no transcript and no written statement to support the appeal.

It didn’t matter. I’ve listened to the audio of this oral argument, and it was one of the most lopsided exchanges I can recall. The justices seemed willing to overlook the absence of a detailed record – and indeed they don’t fuss over it in today’s opinion – as they pepper Wells Fargo’s lawyer over what the plaintiff’s lawyer did wrong. Sure, it would have been the professional thing to do to agree to a short extension; but the client had given express directions not to agree. As the chief justice noted in the audio, disobeying a directive like that could get the lawyer a Bar complaint or a malpractice suit.

The court’s key ruling is that “[t]here is nothing in Code § 8.01-271.1 that gives a trial court authority to impose sanctions on an attorney for failing to voluntarily agree to an extension of a deadline for an opposing party.” The sanctions award is therefore reversed, and Wells Fargo is directed to reimburse the lawyer.

The opinion could have ended there; but this case wound up in the chambers of one of the most zealous advocates of professionalism of whom I’m aware, and the chief justice is not about to truncate this discussion. He adds several pages that explain the contours of professional behavior; he lists several organizations that dedicate themselves to promoting it; he notes that Virginia lawyers are particularly keen to practice in a civil, courteous way. Nowadays, new lawyers take an oath that includes a promise to demean themselves professionally.

But neither the Rules of Court nor the Rules of Professional Conduct can enforce professionalism, as contrasted with mere ethics. (Ethics is the minimum level of conduct that’s sufficient to keep the State Bar from yanking your license. Professionalism is a far higher aspiration.) Professionalism is “enforced” by the members of the bar (not the Bar) in their dealings with each other. We “enforce” it with shame and disdain for unprofessional conduct, and are quick to grant favors and other small courtesies to those who treat us well.

Now, then: the odds that the chief justice just happened to draw the right number for this case are easy: 6 to 1 against. Who wants to take me up on that $3.85?

Criminal law

Absolutely nothing goes right for the appellant in Herrington v. Commonwealth, an appeal of a drug charge involving intent to distribute. After being arrested, he went to a preliminary hearing, where the nice judge gave him a gift: He certified the possession charge, but found no probable cause for the intent-to-distribute component. That might have knocked some significant time off the potential sentence.

But a funny thing happened at the grand jury. That body went ahead and indicted him for the original charge, notwithstanding the judge’s ruling. If you don’t handle much in the way of criminal prosecutions, that might surprise you. After all, isn’t the judge’s ruling in effect an acquittal?

No, it isn’t. Jeopardy doesn’t attach anywhere in a preliminary hearing, since you cannot be convicted in that hearing. That means the prosecutor can ignore what happened at the prelim and seek an indictment on any charge he wants.

Herrington was tried and convicted, and raised several other issues on appeal, in addition to a failed motion to quash the indictment. The justices shoot each one down:

  • He loses his speedy-trial claim because the court finds that the time to prosecute him began to run on the date of the indictment, not on the date of the preliminary hearing six weeks earlier.
  • He loses his argument that the trial court denied him the right to represent himself, because actually, the court didn’t do that. On his scheduled trial date, his appointed lawyer had to back out. He asked to go ahead with the trial, representing himself, but the judge wanted to be sure the waiver of counsel was knowing and intelligent. He continued the case, appointed a new lawyer, and invited Herrington to consult with the lawyer before making a final decision on self-representation. On the new trial date, Herrington expressed his agreement to have the lawyer try the case.
  • He loses his challenge to a motion by the prosecution to continue the case for two weeks, to permit an FBI analyst to complete his work. The reason offered for the continuance was less than stellar, but the justices conclude that he suffered no prejudice, so the reason doesn’t really affect the result.

When Justice Kelsey sat down to write the court’s opinion in Vasquez v. Commonwealth, I imagine it was a painful process for him. It was excruciating for me to read his description of the crimes committed by Vasquez and his co-defendant (and co-appellant), named Valentin. Both were 16 years old when they broke into a college coed’s apartment and inflicted a couple of hours’ worth of unspeakable horror on her, repeatedly raping and sodomizing her, threatening her with a knife, and stealing her property – which is the least of their offenses.

The two assailants were caught shortly after they left the apartment, and displayed virtually no remorse; one mused openly that they perhaps should have gone ahead and killed their victim.

Tried as adults in circuit court, both defendants were convicted by a judge of thirty counts in all. The court eventually sentenced Vasquez to 283 years, with 150 suspended; Valentin got 148 years, with 80 suspended. You can do the math; unless they get relief from an appellate court, these guys will be leaving prison feet-first.

The Court of Appeals declined to intervene, but the Supreme Court decided to take a look at two issues. One issue was the sufficiency of the evidence to prove that the men entered the apartment while possessing a knife (as contrasted with the innocence hypothesis that they found the knife after they broke in). In my view, the court’s affirmance of that conviction is entirely predictable and correct. The real issue in this appeal is a constitutional one: Do a series of discrete sentences for specific terms of years amount to a life term, when added together they exceed the natural life span of the defendant?

That matters, because neither defendant received a life sentence for any of the 30 convictions. As stated above in the discussion of Blount v. Commonwealth, you can’t just come out and sentence a juvenile (at the time of the offense) to life without any hope of parole. The question here is whether Graham v. Florida applies only when there’s an express sentence of life imprisonment, or does it also apply where the sentence is effectively life?

This issue was left unaddressed in Graham, though Justice Alito’s dissent states (without being contradicted in the SCOTUS majority) that the decision did not extend to sentences for specific terms of years. Two federal circuit courts have ruled that the doctrine only applies to a true life sentence; one has come to the opposite conclusion, and has applied Graham to a “de facto life sentence.”

Five members of the Supreme Court today agree that neither Vasquez nor Valentin received a life sentence, so neither is covered by the sentencing prohibition in Graham. They decline the defendants’ invitation to extend the Graham holding to this for-years situation.

Two justices concur in the affirmance, but would take a different route to the destination. Justice Mims writes for Justice Goodwyn, and they agree that “the sentences are wholly appropriate for crimes as wantonly evil as those recited in the majority opinion.” (In case it isn’t obvious, so do I.) But these two justices believe that the Graham doctrine does apply to a de facto sentence of life without parole, as you have to admit a 133-year sentence is.

In the end, the concurring justices hang their hat on a different peg:

Nonetheless, our precedent precludes reversing the Court of Appeals even after applying Graham. In Angel v. Commonwealth, 281 Va. 248, 704 S.E.2d 386 (2011), this Court held that Virginia’s geriatric release statute provides the requisite meaningful opportunity for release based on demonstrated maturity and rehabilitation that Graham requires. Vasquez and Valentin will be eligible for such release.

And that brings us back to the issue left unaddressed in Blount: Will the SCV’s holding in Angel survive looming SCOTUS decisions?

The Commonwealth appealed the grant of habeas relief in LeBlanc, the case I mentioned above in the section on Blount. That appeal is still pending; it’s been tentatively calendared for oral argument in May. It’s eminently foreseeable that that appeal, or one like it (Virginia isn’t the only state with a geriatric-release program), will make its way to Washington in the next year or two.

I know better than to make bold forecasts about future SCOTUS decisions, but I think I can see which way the tide is running. Both Graham and the recent Montgomery v. Louisiana decision – which held that Graham applies retroactively – were 6-3 rulings, with Chief Justice Roberts and the Court’s liberal bloc joining Justice Kennedy’s majority opinion. Those justices aren’t backing off, and I doubt we’ve reached the high-water mark of juveniles’ victories in their war against life imprisonment. It wouldn’t surprise me if the Robes in Washington eventually rule that geriatric release isn’t sufficient as a “possibility of parole.”

Justice Mims’s concurrence in Vasquez mentions a set of statistics that add weight to this view. He points out that very few prisoners who apply for geriatric release actually succeed – on the order of 4%. He writes that unless that figure increases soon, “it may become increasingly difficult to maintain that geriatric release provides a ‘meaningful opportunity’ for release.” Both the majority and the concurring opinions commend this issue to the General Assembly. Perhaps the justices can see the writing on a wall on First Street in Washington.

Homeowners’ associations

No, no, no; stop scrolling down to the next section. Hold it. Don’t bypass Tvardek v. Powhatan Village HOA just because your practice doesn’t include HOA law. Paired with the court’s decision in Phelan v. Commonwealth above, this case emphasizes the importance of reading carefully.

I might occasionally annoy salespeople somewhat when they give me a contract to sign, and I actually take the time to read it first. “It’s just a form,” they sometimes say, in order to hurry me up. I usually reply with a good-natured smile, “I’m a lawyer, so I always read the fine print, because sometimes, I write the fine print.”

This is a case of an association that didn’t read the fine print in a statute. Okay, so it’s in the same font and type size as the rest of the Code of Virginia; give me some literary slack here. This association decided in 2008 to amend its bylaws to prohibit the scourge of its members actually renting out their homes. I presume there was a duly noticed meeting of the members, at which a supermajority (the relevant statute requires a 2/3 vote) agreed to impose the new restriction. Following the statute, the president signed a certification that that majority had approved the measure; the association recorded the certification in the land records.

In 201, one homeowner decided he didn’t like the restriction. He had bought his home in 2006, and here the association had taken away a property right – the right to rent out his home – without just compensation. He filed a DJ action challenging the amendment.

The HOA was only too happy to reply with a special plea of the statute of limitations. The statute that applies to these challenges requires that you file suit within one year after the amendment becomes effective. The amendment and certificate were recorded five years before the homeowner sued, so this action was hopelessly late. The trial court agreed and pulled the plug on the case.

On appeal, the homeowner had a surprising argument: the amendment never became effective in 2008, despite the recordation. He contended that the association didn’t follow the language in the statute.

Fair enough; let’s compare what the statute requires with what the association recorded. Here’s the text of the statute; I’ll highlight the most relevant part:

Agreement of the required majority of lot owners to any amendment of the declaration shall be evidenced by their execution of the amendment, or ratifications thereof, and the same shall become effective when a copy of the amendment is recorded together with a certification, signed by the principal officer of the association or by such other officer or officers as the declaration may specify, that the requisite majority of the lot owners signed the amendment or ratifications thereof.

And here’s what the association recorded:

The undersigned President of the Association does hereby certify that this Amendment has been approved by a vote of two-thirds of the Class A votes in the Association, as evidenced by the results of the meeting at which the vote was taken, such evidence on file with the Association, as required by Section 9.2 of the Declaration.

You see the difference? The statute says the voting members have to do more than just approve the change; they have to sign it. Since this is a statutory requirement, it requires strict compliance, so the homeowner is right: that recorded certificate wasn’t sufficient to make the amendment “effective.” Since the SoL begins to run fro the effective date of the amendment, the suit isn’t time-barred; the justices send it back for trial.

One other quick point: Justice Kelsey writes the unanimous opinion, and here again, he goes back to the history books to set out one foundation of the decision. These HOA restrictions are restraints on a landowner’s use of his property. Virginia law, drawing on the common law of England, views such restraints with skepticism, and any imposition of such a limitation has to adhere strictly to the terms provided by the legislature.

Construction contracts

Senior Justice Russell joins six of the regular justices to decide William H. Gordon Associates v. Heritage Fellowship. That’s because the circuit judge who decided the case below was Jane Marum Roush, and it wouldn’t do for now-Justice Roush to review her own case.

This one’s complex. (In the back of my mind, I find myself thinking again, Poor Justice Goodwyn; he always draws the unsexy cases with complicated fact patterns.) I will try to simplify it while mentioning the key rulings.

Heritage is a church that decided to build a new sanctuary in Fairfax County. It hired Gordon Associates, an engineering firm, to design one aspect of the plan – an underground rain-tank system that would draw off storm water. In most instances, property owners deal with storm water by building retention ponds – they’re called Best Management Practices, or BMPs for short – but I infer that this site didn’t have enough space to do that, so they decided to put the storm water in tanks located below a parking lot.

The engineer designed a system and gave the plans to the church. The church evidently said, “Looks good to me,” and signed it. The engineer submitted it to the county. After 2 ½ years of fussing, the county said okay.

The church gave the plans to its architect and its general contractor, which began construction in late 2009. The contractor had some questions about the tank system and asked the engineer for information about it; the engineer gave some basic information but left some issues unaddressed.

You’ve probably figured out what happens next: the contractor installed the tank system per the plans, but three months later, the tank system (and the parking lot above it) collapsed. That led to a new storm-water-control design, the removal and replacement of the tank system, and attendant construction delays.

As you’d expect, pretty soon everybody started suing each other. The church didn’t pay the full fee, and even held onto a $400K retainer, so the contractor sued. The church sued back for defective work. The church third-partied the engineer for anything it might owe the contractor. The church separately sued the engineer for the tank collapse. It also sued an inspection company that had been hired to supervise the installation of the tank system.

Speaking as a lawyer, isn’t it wonderful when clients get angry with each other? Even better when there are multiple angry parties?

The circuit court conducted a bench trial and found that the cause of the tank collapse was the engineer’s work. It gave judgment to the contractor and against the church for $900K, and gave judgment to the church and against the engineer for $500K (deducting the retainer, which the church still held). In the church’s direct suit against the engineer, the court hit the engineer for $570K in interest costs, as a form of delay damages.

That result made everybody except the engineer happy; he appealed and got a writ. The jurist I lightheartedly referred to above as “Poor Justice Goodwyn” gets to sort all this out today.

The first issue is a statute-of-limitations claim. The engineer noted that the church filed suit more than five years after he submitted the plans to the owner. But the court finds that a claim like this accrues when the plans are finally approved.

Remember that 2 ½ years of futzing around with the county over the tank plans? That means that the plans weren’t finally approved until 2009, so the church’s 2013 lawsuit was well within the SoL.

The next issue is whether the contractor was responsible by contract for the problem. The court finds that the problem was, as the trial court found, the engineer’s. Among other reasons, “The contract itself forbade [contractor] from making any design changes without [engineer’s] express written consent.” The evidence showed that the contractor built the tanks just the way the engineer designed them, so there’s no shifting of blame here.

I mentioned above that the church had sued an inspector who was supposed to be looking over the contractor’s shoulder. Those parties settled before trial for $200K, which the parties allocated to attorney’s fees only. This was no doubt done in order to avoid imposing an offset to the church against whatever it could recover from the other Bad Guys. But the justices rule (quite correctly, in my view) that it’s improper to allocate the settlement like that. The inspector got a release from the church’s attorney’s-fee claim, but also from the underlying liability claim. That release had to be worth more than zero dollars. The justices remand the case for a calculation of how much of the payment should be allocated to the liability claim; that sum will be deducted from the church’s recovery against the engineer.

Finally, the engineer seeks relief from that $570K award of interest as a form of delay damages. Here, the engineer finally hits paydirt.

The church had obtained a loan to build the sanctuary. It was interest-only during the period of construction, then principal-and-interest for the next three years to the final due date. The construction delays set the sanctuary’s occupancy back by eight months; but that didn’t affect the loan-payment schedule; it went off just as planned. The justices therefore reverse this substantial award.

Easements

It’s been a long, long wait for the litigants in Wetlands America Trust v. White Cloud Nine Ventures, an appeal that was argued in the September session and took 21 weeks to decide. This is a case involving a relatively rare creature that has very little interpretive caselaw: conservation easements.

If you don’t recognize the name of the appellant, you’ll surely recognize the organization it supports: Ducks Unlimited. The trust “holds conservation easements across the country and provided fiduciary support to” DU. In 2001, it received via deed of gift a conservation easement over a 400-acre agricultural site in Loudoun County. Back then, the property was used for normal farming purposes.

The owner of the tract divided it and sold half, called the Caeli property, to White Cloud. That entity planned to plant vineyards (still agricultural in my book), plus graze cattle and grow wheat. But the buyer’s plans went somewhat beyond that:

White Cloud further planned to construct a building on the Caeli property in which Chrysalis would operate a creamery and bakery, using the milk and wheat derived from the Caeli property. The building would also be used to store barrels of aging wine made from grapes grown on both the Caeli and Chrysalis properties. In addition, the building would include a tasting room and would be open to the general public for the sampling and sale of the Chrysalis wine and the Chrysalis cheese and bakery products produced on site.

The question in the ensuing litigation was whether those activities were consistent with the limitations imposed by the easement. The trust thought they went well beyond the kind of farming activities that were supposed to be frozen in time by the easement. A trial court agreed with the buyer, White Cloud, that these structures and uses were permissible.

On appeal, the Supreme Court evaluates the trial court’s rulings and affirms. There are several component rulings that won’t come as much of a surprise, but there’s one major issue that produces a split among the justices. That issue is probably why this case was of such interest by lawyers in this field.

The fulcrum of this appeal is the question of how the language in the trust should be construed in cases of ambiguity. There are actually competing principles here. For example, there’s the rule that deeds are construed most strongly against the grantor, to convey as much as can be reasonably discerned from the language. That’s based on the premise that as the person who drafts the deed, the grantor can be as careful as he wants in describing what he’s conveying. That interpretive rule would lead a court to construe the language of the easement expansively.

In the other corner, as we saw in the Tvardek case above on homeowners’ associations, restrictions on the free use of land are disfavored in the law, so they’re construed strictly. That would cause a court to interpret the easement narrowly, allowing the landowner greater freedom to do as it wishes.

A majority of the court decides to use the strict-construction approach. Justice McClanahan writes the opinion of the court, concluding that a conservation easement is “appropriately viewed as a form of ‘restrictive covenant or negative easement’ on the land it encumbers.” Using this lens, the majority goes on to examine the proposed uses and find them all to fit comfortably within the rights retained by the landowner. The court thus affirms the judgment, so the buyer gets to build its creamery, storage building, and visitor center.

Justice Roush (joined by Senior Justice Lacy) sees the lure, but won’t bite. She notes that Virginia has not just a set of statutes that encourage conservation easements; we have a constitutional provision that expresses a strong public policy in favor of conservation. In that light, she thinks it’s wrong to use a principle of strict construction to defeat that public policy. The dissent argues that the passage of the statute had the effect of nullifying strict scrutiny in deeds conveying easements like this, so the trial court should have to reevaluate the case without tiling the interpretive playing field.

 


THE TUNING-FORK DEFENSE, DECIPHERED

 

[Posted February 2, 2016] Last week, the Court of Appeals of Virginia handed down a short published opinion that ought to be on the required-reading list of anyone who plies his or her trade in traffic court. The appeal is Wells v. Commonwealth, and it relates to a key preservation trap for defense lawyers.

Our play unfolds on familiar turf for me. There’s a ten-mile stretch of I-64 on the Peninsula between the Hampton Coliseum and what I call the Newport News Squeeze Play – the point just west of Jefferson Avenue where six westbound lanes converge into two. (VDOT is already doing something about it; its crews are onsite even as I type this, widening the next westward stretch of highway to three lanes.) That’s familiar to me because my home and office are in Virginia Beach. I go to Richmond a lot because that’s where they keep the justices. I-64 connects the two. I’ve been driving that route since I went to college in 1976; you’d be surprised how much I’ve memorized.

The speed limit in that stretch is 60 mph, but that evidently didn’t apply to Wells, who blew through a state trooper’s radar at 94 mph. At trial on the inevitable charge of reckless driving by speed, the trooper testified that his radar “was working properly.” Wells’s lawyer probably made a mental note of the fact that the trooper didn’t testify about the elaborate dance that’s required to make radar readings admissible:

In any court or legal proceeding in which any question arises about the calibration or accuracy of any … radar … used to determine the speed of any motor vehicle, a certificate, or a true copy thereof, showing the calibration or accuracy of (i) the speedometer of any vehicle, (ii) any tuning fork employed in calibrating or testing the radar … or (iii) any other method employed in calibrating or testing any laser speed determination device, and when and by whom the calibration was made, shall be admissible as evidence of the facts therein stated. No calibration or testing of such device shall be valid for longer than six months.

Code §46.2-882.

Since the trooper left out all those details, the lawyer decided not to cross-examine him – after all, why do anything that might trigger his memory? Instead, when the evidence was all in, she moved to strike, based on the omission. The judge swatted that motion aside, then clobbered Wells (a hefty fine, a license suspension, and two months of free room and board with the compliments of the Newport News Sheriff). His lawyer appealed, and a judge of the CAV decided the case was writworthy.

I’ll tell you now that this doesn’t end well for Wells. The CAV panel – Judge Petty, writing for the chief judge and Judge Alston – applies preservation jurisprudence that’s quite familiar to readers of this website from the civil side of the swimming pool. The court concludes that the Commonwealth doesn’t have to adduce all that tuning-fork stuff in its case in chief unless, as the statute says, “any question arises” about its accuracy. That means that the lawyer had to object when the trooper testified that his equipment was working properly. She didn’t do that, so the issue wasn’t preserved for appeal by a contemporaneous objection.

This is an issue of whether the evidence comes in or not, so the proper time for an objection is when the evidence is offered. You can’t lie in wait until the close of the evidence and then spring a motion to dismiss, because the issues in sufficiency analysis are quite different from those in admissibility analysis.

If you’re a defense lawyer, you’re probably reflecting now on the futility of such an objection if you can’t save it up for the gotcha moment. If you object while the trooper is still testifying, he’ll probably just whip out his certificate and show it to the judge, and you’ve lost your advantage. What good does that do?

If that’s your sentiment, join the club; there are a lot of civil practitioners already ahead of you. I’ve always regarded Bitar v. Rahman from 2006 as the signature decision in this line of cases. And in fact, Dr. Bitar’s lawyer even argued to the justices back then that if he had to state the objection while the opposing expert was on the stand, he’d be forfeiting a strategic advantage – the possibility of a cheap win. The justices gave him the back of their collective hand in rejecting that argument.

If you defend traffic cases, keep in mind that you have to raise an admissibility objection when the trooper asserts that his equipment is working properly. If he can’t come up with the goods – for example, he has a seven-month-old certificate – then you’ve got your easy win.

 


 

BRISK BUSINESS AT THE FOURTH

 

[Posted January 29, 2016] The Fourth Circuit hands down three published opinions today, two of which caught my eye.

First Amendment

A Norfolk business named Central Radio got its fourth view of an appellate courtroom in an appeal decided today: Central Radio Company v. City of Norfolk. My readers with good memories may recall that this is the company that won an eminent-domain battle with the Norfolk Redevelopment and Housing Authority in the Supreme Court of Virginia 2013. That case involved whether the Authority could use blight-remediation condemnation to acquire property that was not itself blighted. The justices ruled three years ago that it could not, and the company got to stay put.

This is a separate case against the City. During the ordeal with the Authority, the company placed a banner on the side of its building with a protest message:

50 YEARS ON THIS STREET

78 YEARS IN NORFOLK

100 WORKERS

THREATENED BY

EMINENT DOMAIN!

In response, a zoning inspector told the company to take down the sign, since it violated the City’s sign ordinance. That regulation specified a maximum size for several kinds of signs, including this one.

That led to secondary litigation – a suit seeking injunctive and declaratory relief, claiming that the sign ordinance was an unconstitutional restriction on freedom of speech. The district court and Fourth Circuit sided with the City, using previous Fourth Circuit caselaw. But last year, SCOTUS issued a key ruling in Reed v. Town of Gilbert that meant that the Fourth’s previous test was inappropriate. The high Court remanded Central Radio’s case to the Fourth for reconsideration in light of Reed. Today, that move finally pays off for the company.

It doesn’t get an unqualified win; the judges agree that the company’s discriminatory-enforcement claim was unsupported, so summary judgment for the City on that claim is affirmed. But the court finds that the Reed test now requires strict scrutiny of the sign ordinance, and under that harsh light, the regulation can’t stand up.

Here’s a good example of why. The City claimed that it had a legitimate interest in regulating the size of signs, so as to avoid creating a distraction for drivers. (A brief aside: the discriminatory-enforcement claim pointed out another sign that’s familiar to drivers here in Tidewater – the enormous and startling electronic billboard for Nauticus on Waterside Drive. Westbound drivers encounter that blaring sign when they round a curve, without warning. Norfolk cheerfully encourages that one.) But the ordinance banned certain types of flags and signs, while allowing others. For example, governmental and religious flags were allowed, but others were forbidden; a mural showing a work of art was cool but an advertisement for a product was uncool.

The problem is that the City never justified how one type of flag, sign, or mural would be less distracting than another. That means that the restriction is content-based, so strict scrutiny applies.

The company had also sought permanent injunctive relief against the ordinance itself. The City dodged that bullet by amending its ordinance late last year, and today’s panel agrees that that moots this issue.

The court remands the case for entry of a nominal award for the First Amendment violation, and for other relief as it sees fit. One important omission is any mention of whether Central Radio brought this claim under §1983. If so, then it might be in for a hefty attorney’s-fee award, for that nominal win and for helping to persuade the City to ditch the content-based ordinance. We’ll have to wait for the denouement.

Governmental immunity

The court decides not to decide Aikens v. Ingram, a claim by one military officer against two others. The origin of the non-decision is a 65-year-old doctrine that will be familiar to anyone handling federal tort claims involving the military.

This is a case of domestic snooping. Aikens was a colonel in the North Carolina Army National Guard, and commanded a unit known as the Rear Operations Center. His supervisor, Adjutant General Ingram, allegedly (this was a summary-judgment appeal, so the plaintiff gets the benefit of the facts) appointed one Lieutenant Colonel von Jess to serve as the colonel’s adjutant. The suit alleged that the general and the LTC were pals, and both felt antipathy toward the colonel, helped along by the colonel’s unfavorable performance evaluation of the LTC.

The colonel was activated and sent to Kuwait, but the general and LTC stayed home. While he was overseas, two enlisted men hacked into his e-mails, evidently found some salacious stuff (we don’t know for sure what was in them), and forwarded it to the LTC. That officer was only too happy – so we have to infer from the state of this record – to forward that information to the general, as well as to the Department of the Army.

So, what do you do with unlawfully obtained evidence? A civilian court may or may not have suppressed it; that’s actually doubtful here because Army regulations state that a servicemember’s e-mails can be monitored. Nevertheless, the Army used the information to essentially decertify the colonel, and he was “constructively terminated” (that’s the Fourth’s phrase) from the National Guard.

The colonel sued the general and the LTC in federal court, asserting that they “facilitated unconstitutional searches and seizures of his personal emails while he was deployed in Kuwait.” He claimed that the two officers had directed the enlisted men to hack his e-mails.

The district court dismissed the claims based on the Mindes v. Seaman doctrine from the 5th Circuit. The Fourth Circuit panel today disagrees that that’s the right standard; it applies where a plaintiff seeks equitable relief, and the colonel only sought money damages, at least at the appellate level. The Fourth turns instead to the Feres v. US doctrine that servicemembers know all too well.

Feres holds that members of the armed forces can’t sue in tort for injuries that arise out of or are in the course of “activity incident to service.” I’ll cut right to the chase and note the court’s key holding: it extends the doctrine to §1983 liability. In doing so, the court draws support from several other circuits, though as far as I can tell, this is a first-impression holding here.

The court closes the loop by finding that this claim arises under the broad (and poorly defined) ambit of “activity incident to service.” That finding requires the courts to back off and leave to the military those matters involving its officers’ and enlisted members’ relationships.

Judge Shedd files a concurring opinion, stating that even if there were no Feres doctrine, he would still vote to dismiss, because at the summary judgment stage, the colonel had no evidence to establish that either officer actually directed or authorized the enlisted men to conduct the snooping.