RULE CHANGES LOOM IN STATE APPELLATE COURTS

 

(Posted March 24, 2017) The Supreme Court of Virginia has issued three orders that amend appellate rules, effective in the near future.

One order reduces the number of paper copies of the appendix that must be filed in the Court of Appeals, from four copies to three.

The second order reduces the number of paper copies of merits briefs that must be filed in the Supreme Court, from ten copies to three, and in the Court of Appeals, from four copies to three.

The third order brings the rules into compliance with some legislative changes that passed this year. The most significant change is to modify the deadline for filing a petition for appeal. The current Rule 5:17(a)(1) states that the deadline is three months after entry of the judgment order; the new rule converts that to 90 days.

That may not sound like a big deal, but it is. Counting days is easier than counting months. That may sound counter-intuitive, but consider this example: Suppose the final trial-court order comes down November 30. If the due date is three months, that’s December 30, January 30, … February 30? Does that mean you get until March 2?

No, you don’t; or at least, you haven’t. Up to now, the court has regarded the last day of February as the deadline day when the clock starts ticking on November 30.

This change is welcome in my eyes; it eliminates the possibility of an ambiguity. In fairness to the justices, I believe they recognized this ambiguity and they would have changed it to 90 days long ago; but the three-month deadline is in a statute (8.01-671) that the court isn’t free to ignore.

The first two orders are up on the court’s website, and you can see them by clicking on the links above. They take effect May 1. The third one isn’t up yet, because it just came down today. If you’d like a copy and you can’t wait until next week to read it, drop me a line and I’ll forward it to you. This one takes effect July 1, the effective date of the statutory amendment.

Incidentally, for those of you who felt cheated because you didn’t get until March 2, relax: from November 30 to February 28 is exactly 90 days.

 


A LOOK INSIDE THE SCV’S 2016 STATISTICS

 

(Posted March 23, 2017) The Supreme Court has now gone two Thursdays without releasing any published opinions, so it’s time for a different angle. The court’s 2016 statistical report is out. Since I know that most of you hate numbers – that’s why you got into a profession that emphasizes words – I’ve done the digging and sifting for you. That being said, if you really-most-sincerely hate numbers, I might not be able to soften this enough for you. I hope you’ll bear with me, for the lessons are worth learning.

Here are a few items that caught my eye.

How’s appellate business?

Business is down (mostly). SCV Clerk Trish Harrington opened just 1,852 new files last year. That’s the smallest number since 1990, and it’s off 7% from the 2015 total of 1,996. But the drop-off is one-sided: by coincidence, the court received the same number of civil petitions in each year: 569.

The big change is in criminal petitions, which fell from 974 in 2015 to just 774 last year, a reduction of just over 20%. I could speculate whether this means that inmates are more accepting of their fates (doubtful) or they’re getting demoralized by the puny reversal rate. The justices ruled in favor of the prosecution in 25 of the 28 criminal appeals that it decided on the merits last year (including published opinions and unpublished orders). The overwhelming majority of criminal appellants never even got a writ. The accused’s overall success rate before the justices last year was on the order of one-third of one percent; the other 99.7% lost.

I do have a couple of encouraging upticks to report: the justices are granting more writs and are publishing more opinions. Last year’s 123 writs – 93 civil, 30 criminal – represented a healthy increase from the four-year average of about 106 writs a year from 2012-15. And the court handed down 78 published opinions in 2016. That’s up slightly over the past three years, though it still lags far behind the 119 opinions we got as recently as 2012. In the halcyon days of the late 1990s, we regularly got 150+ new opinions every year, but those times are gone.

What about the procedural-default rate?

I detest reporting on this, because it’s an embarrassment. In 2016, 7.8% of criminal petitions and 23.6% of civil petitions were dismissed for procedural defaults; they never even got to the writ panel. I suspect that many of the civil appeals were filed by pro se litigants, but I’m confident that an alarming number came from law offices.

Why is the criminal-petition rate so much lower? Possibly because the lawyers who file those petitions have been down this road before and they know the appellate landmarks – and landmines – better than their civil counterparts. It’s also conceivable that the justices may be a bit more lenient with a borderline defect if it occurs in a criminal appeal, but I have no way to evaluate that hypothesis.

I could start offering advice here on avoiding procedural default; but that’s a much longer essay, and it would probably get me on a rant about dabbling in appeals, so I’ll move on now.

How’s the “pace of play”?

(Pardon a golfer’s metaphor here.) My regular readers recall well that in September 2015, the Supreme Court shifted from its nice, predictable, six-days-yearly release dates for opinions, to a rolling-release practice in which opinions might hit the wire any Thursday. I heard several musings back then over how this would affect the time it takes the court to get opinions out. Faster or slower?

Since that sounded like a reasonable question, and since lawyers frequently ask me when to expect an opinion after argument, I decided to keep records on the release dates, so I could determine whether the pace of the decisions would now be faster or slower. Here’s a quick refresher on the previous setup:

The old practice gave us opinions on a seven-week turnaround, though on occasion the court would hold an opinion to the next session – a delay of seven more weeks – if the opinion wasn’t ready for release. In my estimation, that happened in about one case in twenty. Also, unpubs might arrive at any time; the court didn’t hold them until opinion day. Finally, the court’s schedule built in two extra-long breaks: January’s opinion day was about ten or eleven weeks after October/November’s, and the long summer recess meant that lawyers who argued in June would have to wait about 14 weeks before getting their rulings.

I decided to start with the appeals argued in the February 2016 session, because those argued that January were skewed by the Roush Effect. (See the opening paragraphs of my February 12, 2016 SCV analysis for the full story.) After that, I figured we’d see a normal pattern emerge.

The court took, on average, 11.2 weeks to release opinions from the March session, and 6.4 weeks to release unpubs. That makes it look like the smart betting is on “longer.”

For the April session, it was noticeably quicker: 7.8 weeks for opinions and 6 weeks flat for unpubs. That’s still about a week later than the previous seven-week schedule, but it’s not a huge difference.

For June, the court beat its previous pace. Remember, previously June-session arguments resulted in September-session opinions, a delay of 14 weeks. But in 2016, opinions arrived an average of 12.3 weeks after the previous session’s opinion day, with unpubs taking 11.3. Lawyers who argued in June got results sooner, on average, than they had in past years.

The court slipped a bit on appeals argued in the September session, releasing opinions after an average delay of 9.8 weeks and unpubs in 7.3. That’s noticeably slower than the previous seven-week pace.

But the justices more than made up for it in the November session, which previously had meant a delay of 10-11 weeks. The court released opinions from that session in an average of 9.6 weeks, and unpubs in 6.6.

In all, if you were looking for a significant change in the pace, you won’t find it. What you may find instead is that an opinion comes down in eight or nine weeks instead of the 14 that it would previously have taken if the court had held it over for further massaging. That is a decidedly good development.

What’s the trend in tort litigation?

The caveat here is that I cannot give you statistics from the petition stage, other than petitions filed, petitions refused, petitions granted, and procedural dismissals, as noted above. I cannot know how many plaintiffs vis-à-vis defendants filed unsuccessful petitions for appeal, because no one at Ninth and Franklin keeps that kind of record.

Not so on the merits; we have a handy compendium of those decisions, called Virginia Reports. The cases decided in 2016 are all published now – some of them still in advance sheets – and a little metaphorical elbow grease will tell us how the current set of justices is ruling in tort cases.

It’s one-sided. In 2016, the court handed down 15 opinions in appeals involving claims of bodily injury (including medical malpractice and wrongful death) and wrongful termination. In those 15 decisions, the injured party (including the terminated employee in this category) won twice, while the tort defendant (including the employer) won 13. This continues a trend that has been accelerating in the last few years. The last time the justices handed down a published opinion that affirmed a bodily-injury judgment in favor of the plaintiff, where the defendant sought a reversal, was almost 2½ years ago, in October 2014.

I hasten to add that this could be due to a skewed sample. After all, any statistician worth his pocket calculator will tell you that a sample size of 15 cases isn’t sufficient to draw firm conclusions. But I now have detailed statistics on these decisions going back to 1999, and we’ve never seen an imbalance like this before. The defense is winning these appeals by historic margins.

While we could theorize about unusual suspects – that skewed sample size, perhaps; or the possibility that trial courts, en masse, have all started making pro-plaintiff mistakes – I prefer the Occam’s razor approach: the Supreme Court has become far more conservative in the past few years, and that’s showing up in its current body of caselaw.

How’s the success rate for rehearings?

Grim, as always. In 2016, the court granted eight petitions for rehearing filed after a writ-stage refusal, and rejected the other 294, for a success rate of 2.6%. Keep in mind that the appellant may have won only a temporary reprieve; the court may ultimately affirm some of those eight.

After a decision on the merits, 23 losing litigants summoned the courage to seek rehearing last year, but the court refused each petition. RGR v. Settle is the only PFR that the court has granted after a merits decision since the beginning of 2013. The other 102 petitions filed in that time have all been in vain, a success rate of 0.97%. Of course, the success rate for those losing appellate litigants who do not choose to file a PFR is 0.00%, so you can see why they’d try.

 


ANALYSIS OF MARCH 9, 2017 SUPREME COURT OPINION

 

(Posted March 9, 2017) The Supreme Court of Virginia today takes up the last-clear-chance doctrine for the first time since the Twentieth Century. In Coutlakis v. CSX Transportation, the justices consider a wrongful-death suit brought by the widow of a man who was killed by a train that struck him from behind as he walked alongside train tracks.

How can someone not know a train is coming, you ask? After all, anyone who’s been near a railroad crossing as a train goes by can attest that the noise is thunderous. But the decedent in this case had effectively made himself deaf to his environment: he was listening to music through earbuds.

His widow filed a wrongful-death suit, claiming that the train’s conductor and engineer saw the man and were able to appreciate his peril far enough in advance to do something about it – presumably to stop the train, or at least sound the train’s whistle – and avoid this tragedy.

The trial court sustained the railroad’s demurrer, ruling that the pleading established the decedent’s contributory negligence as a matter of law. It also ruled that last clear chance didn’t apply because the decedent’s negligence continued right up to the moment of the injury, so the railroad didn’t have the “last” chance.

This ruling generates a unanimous reversal, as the Supreme Court concludes that the complaint states a claim that could support a plaintiff’s verdict – depending on the eventual proof, of course. The court lists the only two plaintiffs who may take advantage of the last-clear-chance doctrine: the helpless plaintiff and the inattentive plaintiff.

A helpless plaintiff is someone who negligently puts himself into a predicament that he cannot extract himself from. That’s not our decedent; he was of the second kind, an inattentive plaintiff. The elements of proof for these two are slightly different; for inattentive plaintiffs, the doctrine applies only if the defendant “saw the plaintiff and realized, or ought to have realized, his peril in time to avert the accident by using reasonable care.” The widow alleged each of these things, so the pleading was sufficient to withstand demurrer.

The railroad evidently leaned heavily on the continuing-negligence caselaw, but the court rules today that that won’t bar recovery as long as the defendant actually knew of the victim’s peril in time to prevent the injury.

Justice McClanahan files a short concurring opinion. At first glance, it appears to state, “I agree that you survive demurrer, but good luck actually proving all this stuff to a jury.” But her point is more nuanced than that. She notes that in the past, the court has declined to extend helpless-plaintiff status to plaintiffs who become voluntarily intoxicated. She notes that the court has yet to decide whether to treat similarly an inattentive victim whose “inattentiveness was produced by voluntary obstruction of his senses.” That’s an eminently reasonable observation, and if the plaintiff succeeds in getting a judgment, this is an unmistakable indication from her Honor that the railroad might want to make that Assignment 1 in a subsequent petition for appeal.

 


 

SCOTUS VACATES GLOUCESTER SCHOOL JUDGMENT

 

(Posted March 6, 2017) “Elections have consequences.” The truth of that aphorism finds added support today as the Supreme Court of the United States vacates the Fourth Circuit’s judgment in Gloucester County School Bd. v. G. G., involving a transgender student. The Trump Administration on February 22 announced that it would no longer adhere to the Obama Administration’s position in the litigation. A few minutes ago, SCOTUS reacted to that development, sending the case back to the Fourth “for further consideration” of the matter in light of the government’s changed position. The appeal had been calendared for oral argument later this month, but that’s obviously off now.

Here’s a link to the order. There is no recorded dissenting view.

 


 

ANALYSIS OF MARCH 2, 2017 SUPREME COURT OPINIONS

 

(Posted March 2, 2017) Virginia’s common law continues to grow as the justices today give us three new published opinions.

Land use

Today’s decision in Boasso America Corp. v. Chesapeake Zoning Administrator occupies much of the same turf as another recent case, Frace v. Johnson in 2015. The issue is who the necessary parties are when someone appeals an adverse decision of a board of zoning appeals. In Frace, the landowner followed the statutory script on how to style the petition for certiorari in circuit court. But he didn’t name the local governing board as a party, and that proved fatal.

The same thing happened here: Boasso got an adverse ruling from the local zoning administrator, and an appeal to the Chesapeake BZA resulted in a tie vote. Boasso timely (within 30 days) filed a cert petition in circuit court but didn’t name the city council as a party. That was the fatal error in Frace.

In fairness to Boasso’s lawyers, the ink was barely dry on the Frace decision, and they may not have been aware of it. (If they’d been regular readers of this website, they would have known. It pays to read your VANA!) When the zoning administrator moved to dismiss for lack of a necessary party, Boasso moved for leave to add the council. But the trial court ruled that it was too late to do that; the council had to be sued within 30 days, and that deadline was by then far in the rear-view mirror. The court dismissed the case.

The justices today affirm. Justice McCullough writes for a unanimous court and observes that the only difference between this procedural setup and that in Frace is that Boasso at least moved for leave to amend, something that Frace had declined to do. But the Supreme Court holds that the trial judge was right: once the 30 days pass, it’s too late to add a party whose presence is required by statute.

I’ll note an important distinction here that appears only in a footnote to today’s opinion. It’s still possible to add necessary parties after the 30 days; just not those parties the statute requires.

Conservation easements

Today is the second time in just over a year that the court has decided an appeal involving conservation easements. Last February we saw Wetlands America Trust v. White Cloud Nine Ventures; today it’s Mount Aldie, LLC v. Land Trust of Virginia.

The land in issue is in Loudoun County, an area that I’ve been too quick to dismiss as just another part of the congested State of Northern Virginia. While most of Dulles airport is in that county, it also includes at its western edge a stretch of the Appalachian Trail, a route I’ve long regarded as sacred ground. Just south of the middle of that county is the small village of Aldie, and the origin of today’s dispute.

In 2008, the owner of the land delivered unto Land Trust a deed of gift, conveying a conservation easement over part of the land abutting the Little River. It forbade certain development activities within 100 feet of the river bank. Mount Aldie, LLC later acquired the land and sought to make some changes along the route of an old Indian footpath that traced the river’s edge.

After some work within the easement area – the complaint isn’t specific as to just what happened — Land Trust sued to enjoin the work. It also sought an award of damages to restore the land to its previous condition. Evaluating reciprocal motions for summary judgment, the trial judge agreed with Land Trust and awarded damages and costs – notably including expert-witness fees – against Mount Aldie.

The analysis of the case in today’s unanimous opinion is highly case-specific; Justice McClanahan analyzes the language of the easement and concludes that it’s not at all clear that Mount Aldie has violated the easement’s terms. The trial court’s fundamental mistake was in granting summary judgment at all; the court finds that the resolution of the case will turn on disputed facts, so it remands for trial on those contested allegations.

But both parties moved for summary judgment, you may be thinking. Isn’t that a concession that there are no material facts genuinely in dispute? No; summary judgment doesn’t work that way. Even if both parties contend that the facts are undisputed, the truth may be that they very much disagree on the facts, in which case the court has to deny both motions and proceed to trial.

I’ll add one note, again on some language that appears in a footnote. The easement contained a provision that in the event its terms were found to be ambiguous, those terms should be construed liberally. The justices today decline to do that, because they find no ambiguity in the easement. Liberal-construction provisions in contracts, or in caselaw, are fine as aids to courts in interpreting doubtful text. But neither rules of construction nor those of interpretation have any place where the language used is unambiguous. In that event, you simply apply the plain language used. There is no Step B.

Taxation

There are some interesting subplots in Verizon Online v. Horbal. Not in the opinion; Justice McClanahan has composed what I view as unassailable reasoning in support of the court’s conclusion, and no one on the court dissents.

I refer instead to the turf war over which government gets to tax what. In an anti-tax environment where legislators fear backlash over any increase, one way for the state to raise revenue without raising taxes is to shift some taxation from localities to the Treasurer of Virginia. From the voter’s perspective, it’s not a tax increase; you’re paying the same amount, just to a different payee. Of course, if you’re on the localities’ end of that transaction, you might view the move a little differently: the state has just purloined “your” source of tax revenue without making up for it elsewhere.

Here’s the factual setup for this appeal: If you get cable television, you’re familiar with the converter boxes that unscramble a signal and deliver a viewable picture to you. If you hypothetically owned one, you might have to pay some sort of property taxes on it; but unless you’re very, very unusual, you don’t own it. That’s because the cable companies have figured out that they can make tons more money by renting them to you than they could by selling them at a fair-market price. Hence those contraptions belong to the company; you can’t buy one at any price.

Verizon, in connection with its FiOS service, has plenty of those boxes installed in residences across the Commonwealth. The Chesterfield County Commissioner of the Revenue decided that they were tangible business personal property, and slapped the locality’s tax on them. Verizon paid for a while and then filed an application in late 2010, seeking a refund and a declaration that they aren’t taxable, at least not by the county. The company pointed to a 1984 statute that says that cable converters are intangible personal property, taxable only by the state.

The first person to review a challenge like this is, coincidentally, the Commissioner of the Revenue himself. As you might imagine, the Commissioner ruled in his own favor, finding that the boxes were “machinery,” as described in the tax act. Verizon appealed, pursuant to the process set out in the tax statutes, to Virginia’s Tax Commissioner. That Commissioner reversed, holding that the boxes were only taxable by the state. He ordered the county to refund three years’ worth of payments.

The County Commissioner then took the next appellate step, petitioning the circuit court for judicial review of the Tax Commissioner’s ruling. The court granted summary judgment to Verizon, agreeing with the Tax Commissioner’s reasoning. But the court handed a partial victory to Verizon, ruling that the original application for relief came too late for tax years 2008 and 2009.

The Supreme Court agreed to hear the case, granting petitions filed by each side. Today the justices agree with the circuit court and the Tax Commissioner that the boxes are intangible personal property, based on the 1984 change in the law. That act removed a provision that had made converter boxes taxed locally, and substituted a limited exemption that, the court finds, doesn’t include the boxes. That statutory change shifted the tax revenue from localities to the state level.

But the court has an unpleasant surprise for the county, and a word of warning to lawyers who handle this kind of appeal. When Verizon appealed to the state Tax Commissioner, the county Commissioner raised his defenses, but he didn’t list untimeliness among them. When the Tax Commissioner ruled against him and he went on to circuit, he did raise that defense to the refund claim, and the circuit court obviously latched onto that, cutting off Verizon’s relief at one year. But the justices find that the failure to assert that defense before the Tax Commissioner operated as a waiver of the issue, so the circuit court didn’t have the ability to apply it.

In this holding, the Supreme Court notes that in reviewing rulings like this, the circuit court operates as an appellate court. And in that context, appellate waiver rules apply: since the county Commissioner didn’t assert the untimeliness defense to the state Tax Commissioner, the circuit court couldn’t consider it. That means that Verizon is entitled, under today’s ruling, to a refund for all three tax years.

This is nothing more than an application of Rule 5:25 to intervening steps in the admin-law process. You can’t withhold an issue from a given level of decisionmaker and then ask a reviewing agency (the state Tax Commissioner or a court) to rule in your favor on that ground. The justices cite two decisions from the Court of Appeals – one from 1995 and one from 2008 – that hold that if you don’t submit a given argument to an agency for decision, you can’t raise it for the first time during circuit court review.

 


 

ANALYSIS OF FEBRUARY 23, 2017 SUPREME COURT OPINION

 

(Posted February 23, 2017) Today’s lone published opinion from the Supreme Court, Francis v. NACCAS, gives us further definition of the contours of the Bowman v. State Bank of Keysville doctrine.

NACCAS hired Francis in March 2014. Less than a year later, she endured a heated encounter with a coworker, in which the coworker threatened Francis with bodily harm. The company’s HR Director met with the two and basically told them both to behave, but the company didn’t investigate the incident. The Director later sent Francis a summary of the event that pointedly omitted any reference to any misbehavior by the coworker.

Francis decided that since the company wasn’t going to protect her, she needed to look out for herself. She went to court and obtained a preliminary protective order against the coworker. That order prohibited “acts of violence, force, or threat.”  The next week, a police officer showed up at the office and served the order on the coworker. A few days later, the HR Director told Francis to clean out her desk and leave.

Francis claimed that she was fired in violation of Virginia’s public policy, as set out in the statutes relating to protective orders. The trial court sustained a demurrer, but the justices granted a writ. Today, they unanimously affirm.

This opinion lists the three recognized types of Bowman exceptions to Virginia’s approach to at-will employment, and explores two of them in the context of this appeal.

  • The first type of exception (today’s opinion calls it Scenario 1) is where “an employer violated a policy enabling the exercise of an employee’s statutorily created right.” This is a pure Bowman claim.
  • The second type, Scenario 2, is where the employee is clearly a member of a class of persons expressly protected by a statute.
  • The third, Scenario 3, arises where the employer fires the employee for his or her refusal to engage in a criminal act.

Future litigants would be well-advised to make note of these three categories, because while the court doesn’t come out and say there will be no more entries in the list, it’s clear that the justices view this as the relevant playing field for now. I expect the categories to be described henceforth as, for example, “a Bowman Scenario 2 claim.”

Scenario 3 doesn’t arise here, but Francis felt that 1 and 2 both applied to her. The justices disagree, holding that while the protective-order statutes do contain a public-policy component, there’s no allegation that “the termination of employment itself violated the stated public policy of protection of health and safety.”

I invite you to note the contrast between this claim and Bowman itself. In that case, Bowman worked at a bank and owned some of its stock. With a shareholders’ meeting looming, the bank directed her to vote her shares a certain way. Bowman refused, saying that the stock was hers and so was her vote. The bank’s ensuing decision to fire her trampled on the unfettered right of stockholders to vote without compulsion of fear of reprisal.

I sense that today’s ruling will do two things. The first is noted above; it will classify Bowman claims for future litigation. Francis will be cited numerous times for that alone. Second, it will probably narrow somewhat the opening that Bowman created. Virginia remains committed to the principle that an employee can quit at any time, so in fairness, an employer can fire her at any time, too. The employer doesn’t have to have a good reason, any more than an employee needs a good reason to leave.

One last point: If you’re tempted to conclude based on the fact pattern that the employer here is a bunch of ratfinks, keep in mind that those facts are as asserted in the amended complaint. We don’t have the employer’s side of the story, or the coworker’s.

 


ANALYSIS OF FEBRUARY 16, 2017 SUPREME COURT OPINIONS

 

(Posted February 16, 2017) Three more published decisions arrive this morning from Ninth and Franklin. Let’s dig in and see what the court hath wrought.

Torts

Specificity of pleading is the key to Ricketts v. Strange, an appeal out of the Danville Circuit Court. It begins with an auto collision in which Ricketts evidently sustained at least some injury to a disc in her back.

Seven months after the collision, Ricketts filed a voluntary bankruptcy petition. In listing her assets, she claimed as exempt various items, including, “insurance proceeds, proceeds related to claims or causes of action that may be asserted by the debtor …”

Fast-forward to the eleventh hour: Ricketts filed a personal-injury suit against the driver of the other car. That driver moved for summary judgment – an approach that can be a dicey proposition in Virginia – based on the contention that the real party in interest in any action asserting this claim should be the trustee in bankruptcy.

The trial court considered this defense and granted summary judgment, finding that the general language quoted above in the bankruptcy schedules wasn’t specific enough to preserve the bodily injury claim as exempt. Ricketts sought leave to amend her pleading to correct what she called a misnomer, substituting the trustee for her name; but the judge would have none of that. With the suit dismissed with prejudice due to the running of the statute of limitations, Ricketts sought succor in Richmond.

The justices today unanimously affirm. They conclude that the listing quoted above was just too general, citing a Maryland federal holding requiring that “a partially scheduled claim contains enough information that a reasonable investigation by the trustee would reveal the claim ultimately asserted.” While a listing of “Auto Accident Claim” has been held to be specific enough to clue the trustee into the existence of such a cause of action, the justices today find that this language is “overly general at best and boilerplate at worst.”

The court also addresses the misnomer issue. Here’s how that effort dies: “Ricketts and [the trustee] are not the same person. The ‘right person’ was [the trustee], but he was not incorrectly named. Rather, the ‘wrong person,’ Ricketts, was named. This is not a misnomer.”

Today’s opinion stops the analysis there, but I believe it could easily have gone on to another fatal hurdle. While trial courts are generally free to correct misnomers, it’s a separate question whether the amendment would relate back. That matters a great deal where, as here, the original statute of limitations has expired.

The misnomer statute does provide the contours of the relation-back doctrine: “An amendment changing the party against whom a claim is asserted, whether to correct a misnomer or otherwise, relates back to the date of the original pleading if …” I’ve added emphasis to point out that the relation-back doctrine only applies where you correct the misnomer of a defendant. It doesn’t operate when the plaintiff’s name changes. Even assuming the style of the case could be changed in this way, it would result in a dead end on the statute of limitations.

Real property

The court takes up issues of nuisance and continuing trespass in Forest Lakes COA v. United Land Corp of America. But there’s an appellate-procedure subplot that will be of particular interest to appellate advocates.

Forrest Lakes is a community owners’ association for a 50-year-old development just north of Charlottesville. The development includes a lake that’s fed by Powell Creek. About 15 years ago, some property owners upstream formulated plans to develop their land. Doing so required the creation of sediment basins; the outflow of those basins led into the creek, and thence downstream to the lake.

Construction of the new development began in 2003. But the next year, owners in the older subdivision noticed sediment flowing through the creek and into their lake.

Alas, this snippet from today’s opinion provides a clear map to what’s ahead:

In late 2004 and early 2005, members of the POAs discussed the need to take legal action. The POAs, however, waited until 2011 to file their suit seeking damages and injunctive relief against the developers, contractors, and owners of the [upstream] site …

Six or seven years? Now, why would they go and do that? (In fairness to the trial lawyers, there was probably some sort of reason; but they had to recognize the danger.) The statute of limitations for damage to realty is five years. The trial court foreseeably sustained the defendants’ pleas in bar, rejecting the COA’s argument that this was a continuing trespass with (effectively) no limitation period.

Okay; that’s oversimplifying it a tad. But the plaintiffs did assert that the statute didn’t begin to run until the continuing trespass was removed, and the Bad Guys’ silt was still clogging the good Guys’ lake. A unanimous Supreme Court agrees with the trial court, ruling that the right of action accrued when the first damage occurred – when the first silt “invasion” arrived. Since that was more than five years before the suit papers hit the clerk of court’s desk, the trial judge was right in sustaining the pleas.

I promised you an appellate-procedure angle. Justice Kelsey, the author of today’s opinion, takes care to quote several key portions of the assignments of error at the top of page 8 of the slip opinion. He notes that the way those assignments are phrased severely constrains appellate review. For example, the plaintiffs below sought damages and injunctive relief, but Assignment 1 refers only to “all trespass damages.” That means that the justices won’t review any issues relating to injunctive relief or laches.

The second assignment claims that the trial court erred in refusing to rule on the continuing-trespass theory. You can indeed assign error to a trial court’s refusal to rule on an issue, but that’ll only help if the court has, indeed, refused to rule. (In my view, if you can establish that a trial judge really has refused to rule on a material issue, that will get you special appellate scrutiny.)

What follows in today’s opinion is a short digression on the crucial nature of assignments of error. The assignments shape and constrain the issues on appeal, just as a complaint shapes and constrains the issues that a circuit court is allowed to try. Justice Kelsey adds another important aspect: the assignments “demark the stare decisis border between holdings and dicta.”

Don’t get me started on the tricks and traps associated with assignments; they contribute mightily to the humiliating procedural-dismissal rate in the SCV. For 2015, the last year in which I have full statistics, 24% of all civil petitions for appeal were dismissed even before the writ panel. Not all of those were for defective assignments; but this is merely the most challenging passage in the appellate labyrinth.

When you’re crafting your petition, do yourself a favor and take a little extra time in writing and editing your assignments. Think about them from alternative angles: If the court agrees with me, will this lead to the result I want? Am I being too narrow, so as to thwart the appellate review I want? Breezing through this part of the brief can generate fatal consequences. It’s worth the extra time to get it right.

Res judicata

Okay, let’s get this first part out of the way now. The last case of the day is The Funny Guy, LLC v. Lecego, LLC. Sound intriguing? Maybe good for a laugh or two in the midst of legal analysis?

Disappointment looms. The only invocation of humor in this decision is the name of the appellant. It isn’t even about a comedy club. It’s a collection action by one LLC against another for what I infer was subcontract work in a construction project. Funny Guy’s total bill was for about $375K, but Lecego only paid $300K.

With the rest of the bill unpaid, the two companies evidently engaged in at least some settlement discussions. Funny Guy felt that it reached a deal to resolve the claim for about 97 cents on the dollar, plus a non disparagement clause (Funny Guy had apparently said some unkind things about Lecego when it didn’t get paid).

But while Funny Guy acted on the purported settlement, Lecego declined to do so, refusing to pay even the 97 cents. Funny Guy accordingly sued for breach of the settlement, but a circuit court sustained a demurrer, finding as a matter of law that there was no meeting of minds.

Fine, responded Funny Guy; if there was no agreement, I’ll sue for 100 cents on the original debt. It filed a second action seeking recovery for breach of an oral contract, and alternatively for quantum meruit.

This produced a nasty surprise, as this time the circuit court sustained a plea of res judicata, based on the dismissal of the first action. Funny Guy argued in vain that the two transactions were separate; the court was convinced that both suits sought the same thing — payment for the work that Funny Guy had done. Since the court felt that the contract and QM claims could have been brought in the first suit, it barred them.

Left wholly without a remedy, Funny Guy got a writ. Today, the justices divide sharply; a thin majority rules that the trial court correctly applied res judicata to bar the second suit. Justice Kelsey takes us on a luxurious stroll through the development of RJ jurisprudence over the years, culminating in the promulgation of Rule 1:6 a decade ago. The rule is important enough to set out here, in pertinent part:

A party whose claim for relief arising from identified conduct, a transaction, or an occurrence, is decided on the merits by a final judgment, shall be forever barred from prosecuting any second or subsequent civil action against the same opposing party or parties on any claim or cause of action that arises from that same conduct, transaction or occurrence, whether or not the legal theory or rights asserted in the second or subsequent action were raised in the prior lawsuit, and regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended, or the particular remedies sought.

The majority concludes that the object of both suits was the same: Funny Guy wanted to get paid for its work. The fact that the company found three separate theories of recovery meant that all three had to be asserted in one action; a plaintiff isn’t entitled to split his claim or engage in serial litigation over the same “identified conduct, a transaction, or an occurrence.”

Justice Mims dissents, and he’s joined by Justices Goodwyn and McCullough. He observes that these were actually two different transactions. The claim asserted in the original suit even had a different accrual date (it arose when Lecego refused to pay the 97 cents). Only when the first suit ended with a ruling that there was no settlement, could Funny Guy know that it had to sue on the original cause of action.

There’s some first-rate legal thrust-and-parry here, and it would take me too much space here to recount it all. The upshot of this decision is that a plaintiff needs to be as inclusive as possible when crafting a pleading. You’re allowed to plead in the alternative, so the proper thing to do in a situation like this is to assert three counts, assuming that somehow your defendant is going to wiggle out of the settlement.

And yet, I acknowledge that there are practical difficulties. Let’s craft a hypothetical situation — which I promise to confine to the realm of plausibility — and see how those difficulties arise.

Consider a landowner whose property is adversely affected by a neighbor’s improvements — something like what happened in the Forest Lakes case immediately above this one. The injured party approaches the alleged trespasser/tortfeasor and negotiates a deal. The would-be plaintiff is motivated to do that because he recognizes that pressing a claim like this would be disproportionately expensive — he’d have to spend more on engineering expenses, attorney’s fees, and other litigation costs to try the case than he could recover in damages.

Happily, the other party — let’s assume it’s an LLC, as we had here — is willing to reach an agreement. The parties sign a deal by which the plaintiff releases the LLC, in exchange for a promissory note payable in one year for pretty much the full amount of damages. Note cases are child’s play to litigate compared with the engineering-intensive suit the plaintiff would have to press otherwise; you simply present the note to the judge, aver that it’s unpaid, and rest.

Except when the year expires, the obligor refuses to pay the note. The noteholder will naturally assume that his remedy is to sue on the piece of paper he’s holding. One of the reasons he agreed to it is to save all those huge litigation costs.

Today’s ruling means that that plaintiff needs to cover his bases, sue for both the note and the trespass, and go ahead and incur the expenses. If he sues only on the note and for some reason loses — there’s a typo that renders the note either void or worthless — he cannot now go back and try the long, slow, hard route.

 


 

ONE CRIME OR TWO?

ANALYSIS OF SHENG JIE JIN V. COMMONWEALTH

 

(Posted February 14, 2017) The Court of Appeals gives us a ruling on a fascinating legal issue today in Sheng Jie Jin v. Commonwealth. The defendant was accused of two counts of attempting to murder his estranged wife. The two offenses evidently occurred just minutes apart.

In the first, the husband drove his car at the wife, who was saved only when her brother pulled her aside at the last minute. Even so, the car’s side mirror struck her in the head. “Within a few minutes” thereafter, the husband drove back and succeeded in hitting the wife and the brother with the car, which then crashed into some propane tanks, generating a cloud of gas.

The husband wasn’t done. After being struck by the car, the wife had either crawled or been dragged inside a nearby building. The husband came after her with a hammer and struck her in the head “multiple times” before bystanders stopped him.

Fortunately, the wife survived. At trial, the husband asserted in a motion to strike that he could only be convicted of one offense of attempted murder, because the entire transaction was one event and it was the same victim. The judge disagreed and convicted him of both charges.

This is a Double Jeopardy problem. The way to analyze it is to determine if these attempts – one with a car, one with a hammer – were “separate and distinct acts” as contrasted with a continuing offense. Citing a 2010 CAV decision, Hodnett v. Commonwealth, involving conduct inside a jail, today’s CAV panel concludes that the trial court could well have concluded that these were separate acts, punishable separately. In Hodnett, the two offenses were the same mechanism and occurred just seconds apart. That makes today’s judgment call easy; the panel unanimously affirms.

I’ll add a few additional comments here. The first is a point of preservation. In criminal prosecutions, if a defendant claims that the prosecution would violate his right not to be subject to two punishments for the same conduct, he has to file a written motion before trial; otherwise, the objection is waived. This defendant waited until a motion to strike the prosecution’s evidence, but the CAV evaluates his argument on the merits anyway.

Why isn’t this waived? Because the Commonwealth didn’t object, and the circuit court decided the matter on the merits. Yes, the CAV could have affirmed on other grounds – Virginia’s right-for-the-wrong-reason doctrine is quite expansive now – but the court probably felt it better to evaluate the merits of a constitutional challenge.

Second, in listing the name of the case above, I’ve used the defendant’s full name: Sheng Jie Jin. Many of you know that in many cultures in Asia, a person’s family name, what you and I would call the surname, comes first. (The President recently got that part wrong when he referred to Japanese Prime Minister Abe Shinzō as “Prime Minister Shinzō.” That would be the equivalent of calling our commander in chief “President Donald.”)

Because of the differing conventions, Western media often reverse the names of Asian people, so the West generally refers to the Prime Minister as Shinzō Abe, with his family name last. Because I don’t know if the court has done that here or not, I’ve set out the full name. (The CAV panel refers to the defendant as “Jin.”)

Next, the CAV analyzes the dispositive issue under a deferential standard of review: abuse of discretion. The court does not rule as a matter of law that actions like this necessarily constitute two attempts; instead, the court concludes that the trial judge permissibly found that it was two crimes, not one. A different standard of review may well have produced a different outcome, though in truth I think that’s unlikely in this case.

Finally, as I read the awful account of the attack on the wife here, it brought to mind the famous assassination of Grigori Efimovich Rasputin in the basement of a St. Petersburg, Russia palace in December 1916. His murderers fed him poisoned cakes and poisoned wine, but the potassium cyanide in them had no noticeable effect over the course of more than an hour. Growing impatient, one of the men – Prince Felix Yusupov – grabbed a gun and shot the holy man in the back. Rasputin collapsed, still breathing but bleeding heavily. After convulsing once, he lay still.

An hour or so later, Yusupov checked the body and was surprised to find it still warm. (In December in St. Petersburg, that was noteworthy.) As the prince bent over to check more closely, the “dead man’s” eyes opened, and he leaped up to attack his attempted murderer. Breaking free, the prince ran madly upstairs, leaving Rasputin to stagger outside into the snow.

Another conspirator soon caught up with him and shot him again in the back. With the monk lying on the ground, the gunman shot again, hitting his victim in the head. When Rasputin groggily tried to crawl, the gunman kicked him viciously in the head. The body lay still and the gunman hauled the corpse back inside. There, the prince, enraged, struck the lifeless body several times in the head with a dumbbell.

The conspirators then tied up the body inside a heavy cloth. They took it to a bridge and dumped it into the frozen Malaya Nevka River. There, beneath the icy current, Rasputin died of hypothermia, with water in his lungs.

I mention this gruesome tale because under the decision handed down today, the Russian conspirators could have been charged with seven counts of attempted murder on the same victim – and one count of murder, of course.

 


THE TOP APPELLATE STORIES OF 2016

 

(Posted December 30, 2016) It’s been a few years since I prepared an end-of-year summary. Those retrospectives were always fun, so now that the last opinions are in, I may as well take a look back over Virginia’s appellate developments in the course of the year that’s now drawing to a close.

If this website were named American Appellate News & Analysis, the story of the year would obviously be the extended vacancy on the Supreme Court of the United States. But I’ll let the good folks at SCOTUSblog give that topic a try, if they see fit. Perhaps The New York Times’s principal court-watchers, Linda Greenhouse and Adam Liptak, might give this topic a spin, but we’ll stay on the good side of the Potomac.

Appellate day of the year: July 19. Normally you won’t find the justices within miles of Ninth and Franklin in mid-July; they’re at work in their chambers across the Commonwealth. (Justices Mims and Powell, both of whom live in the Richmond area, might have their principal chambers there; I’m not sure. The others are scattered across the map.) But on this sweltering day, the court convened a historic special session to consider two important cases with major political implications: Howell v. McAuliffe and Edwards v. Vesilind. In the former, the court issued a writ of mandamus to undo the Governor’s blanket restoration of civil rights to 200,000 former felons, requiring him to act case-by-case instead. In the latter, the court reversed a finding of contempt against several legislators who had refused to turn over their correspondence with the Division of Legislative Services and with an outside consultant, all relating to litigation over partisan redistricting.

I simply could not resist the allure; I traveled to Richmond, got in line extra-early, and got a reasonably good seat in the courtroom to watch the arguments. This was history and I had to see it. I had plenty of company, as a number of legislators and other dignitaries came to watch; even with plenty of added temporary seating, the courtroom overflowed. The argument quality was high, as you can hear for yourself by listening to the audio recordings on the court’s website.

I’ve written about both decisions here and I won’t repeat that analysis now. I’ll mention only that the justices plainly had good political sense in the civil-rights decision, ruling against the Governor without actually issuing a writ of mandamus directed to him. (The writ commanded several of his executive officials instead.) And while I continue to regard partisan redistricting as an ugly stain on the good name of our Commonwealth, the justices’ resolution of Edwards merely sent the case back to the circuit court for eventual trial; unlike Howell, that story isn’t over.

Appeal of the year: It’s tempting to list Howell v. McAuliffe due to the sensational nature of both the proceedings and the subject matter. But you have a right to expect variety here; and besides, Howell wasn’t an appeal at all but an original-jurisdiction proceeding. Instead, let’s turn to the October 27 ruling in Elliott v. Carter, a wrongful-death claim based on a Boy Scout’s drowning. Five justices concluded that the circumstances of that case – a Scout peer leader who led a young scout out along a sandbar into the middle of the Rappahannock River and then left him there to drown – did not rise to the level of gross negligence. The majority ruled in favor of the peer leader as a matter of law, in large part because he had tried to swim back out – 150 yards out – in response to the younger boy’s panicked cries of distress.

The basis of the majority’s ruling lies in one of the jury-instruction descriptions of gross negligence: the “want of even scant care.” But by focusing on that, the court turned its collective back on another classic definition of gross negligence, conduct that would shock fair-minded people. Arguably that test for gross negligence vel non is now out of Virginia jurisprudence, though the court didn’t come right out and say that. Justice McCullough’s dissent points out that a person who leads a helpless victim into danger shouldn’t be able to escape liability by trying to help after it’s too late; but that sensible contention fell on deaf ears.

This ruling will foreseeably influence future litigation. It establishes for the first time that a defendant who acts grossly negligently can “purge” himself of that gross negligence by making a too-late, even half-hearted, effort to help afterward. The example I used in my analysis was a driver who knowingly drives the wrong way in traffic, causes a head-on collision, and then calls 911 afterward. I don’t believe you can convert gross negligence into ordinary negligence by the simple expedient of offering ineffective aid after the fact.

In case it isn’t obvious, the peer leader’s conduct shocked me; I would have regarded this as an obvious jury issue. I suppose this ruling means that I can no longer consider myself fair-minded.

Appellate minutia of the year: This one’s very recent – this month, the justices quietly changed the rule limiting your choice of fonts for use in Supreme Court briefs. This move came just over a year after the court itself changed the font in which it hands down slip opinions. Previously those opinions came out in clunky Courier, which mimics the output of an old typewriter; but beginning in September 2015 the court switched to what looks like Times New Roman. Nowadays, lawyers can choose from among twelve permissible fonts (including TNR) for their filings.

Opinion day of the year: Also in September 2015, the court stopped holding its opinions for simultaneous release on six predictable days per year. Probably because of the number of former Court of Appeals judges now on the Supreme Court, the justices adopted the CAV’s practice of releasing opinions as they become ready, one day per week. This complicated my life significantly; previously I set aside the six opinion days two years in advance, but now I had to plan for as many as fifty opinion days.

Fortunately it’s proved to be manageable, and for some lucky litigants, it’s meant getting a ruling a week or two earlier than usual. But one opinion day in 2016 was unlike any other. On February 12, the court handed down ten published opinions and five unpublished orders – by far the busiest day of the year – deciding fifteen appeals that had been argued just four weeks earlier. Especially compared with the previous seven-week pattern, that’s a lightning pace.

Why does this one stand out? Why the “roush to judgment”? Because the Governor’s interim appointment of Justice Jane Roush was set to expire on February 13, and the court didn’t want any challenges to the validity of its rulings that happened to include her. That, in turn, leads us to Virginia’s …

Appellate story of the year: The filling of the seventh chair. I don’t have to recount this story in detail for any of my readers, as I’ve written on it extensively. And it was a saga. Justice Millette’s retirement in the summer of 2015 gave the Governor the opportunity to name an interim replacement to the Supreme Court, since the legislature wasn’t in session. He did so in early August, naming Fairfax Circuit Court Judge Roush to the vacancy. Legislative Republicans initially pronounced her well-qualified, but that lasted a matter of hours before those same Republicans decided to rebel and try to seat someone else, because the Governor hadn’t danced the proper steps to the Virginia Governmental Reel.

The legislators’ efforts to replace her in a summer special session failed when one Republican Senator couldn’t bring himself to unseat a sitting, qualified justice – something that hadn’t been done since the William McKinley Administration. The Governor reappointed her, but that expired in February, and by then the newly constituted General Assembly had settled on CAV Judge Steve McCullough for the seat. Because Justice Roush’s circuit court seat had been filled and she had no bench to return to, she “graduated” to what I trust is a lucrative mediation career.

*   *   *

What’s on tap for 2017? Well, don’t expect any more changes in judicial personnel in the appellate courts. The Supreme Court is set at least until the chief justice reaches mandatory retirement age in a few more years, and as far as I know there are no looming retirements in the CAV. Fourth Circuit judges are appointed for life, of course, so their departures are almost always voluntary retirements.

As for rule changes, those are hard to forecast, but I expect the state appellate courts to continue to evolve over time into a paperless e-filing system, as the Fourth has been for years. I doubt the courts will trim back oral arguments any further – doing so would require that they install a conveyor belt behind the lectern, and that would take a budgetary allocation – but I’ll watch the website with a nervous eye. Existing rules may get a tweak here and there, such as with the recent shift of the partial-final-judgment rule to Part 1 of the rules. As usual, disgruntled litigants may head across Ninth Street to seek legislative “reversal” of a particularly galling appellate decision.

And as for this website, please be assured that I have no plans to change. No paywall; no pop-up ads; no domineering supervisor who wants to edit out my appellate jokes. We’ll mark our twelfth anniversary in a couple of weeks, and I intend to go on posting analysis, leavened with a bit of wit where I can, and let you know how today’s decisions will affect your jury trial next week or your oral argument in the next session. Thanks for riding along this year; health, happiness, and prosperity to each of you in 2017.