(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.


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 each 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.







(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.





(Posted February 10, 2017) I don’t usually step out of the Commonwealth to analyze appellate opinions; I generally stick with the state appellate courts and the Fourth Circuit, with an occasional foray across the Potomac to One First Street. This will be my first analysis of a federal circuit court located elsewhere. Given the amount of interest in, and attention devoted to, the Ninth Circuit’s ruling last night in the matter of the President’s immigration order, I figure I owe my readers at least a few words on the subject.

State of Washington v. Trump is, as you know, a rare appellate animal, an appeal of a temporary restraining order. Generally those orders aren’t reviewable, in part because of their short duration; if an appeal takes the usual time to wend its way through even one level of appellate review, the TRO will likely have expired before oral argument.

This case is special, for reasons I don’t have to describe. The States of Washington and Minnesota urged that the appellate court didn’t have jurisdiction until and unless the district court entered a preliminary injunction. But the Ninth Circuit panel rules that “in the extraordinary circumstances of this case, the district court’s order possesses the qualities of an appealable preliminary injunction.” Many if not most TROs are ex parte, with no participation by the respondent; but here the federal government participated actively in the district-court hearing. In short, it’s a crucial public issue and everyone’s here and on board.

Thus endeth the President’s string of victories in the appeal. Literally every other decision made by the panel goes in favor of the States.

The first issue is standing: how can a state sue to vindicate the rights of individual persons, and noncitizens at that? While the States urged parens patriae standing (where the state acts as a sort of guardian of the people within its borders), the Ninth takes a simpler route: third-party standing. That allows Litigant A to sue on behalf of Litigant B whenever B’s interests are “inextricably bound up with the activity the litigant wishes to pursue.”

Sound contrived? Well, maybe it is, but it’s also firmly established in SCOTUS jurisprudence. The court gives several examples, citing case names that will be familiar to anyone who plows the field of constitutional law: Griswold v. Connecticut held that a doctor can sue to vindicate a patient’s rights; organizations can sue for the benefit of its members, as happened in NAACP v. Alabama; and schools can sue for their students, as the court held in several decisions, the most memorable of which is Runyon v. McCrary. The Supreme Court has actually held in the educational context that, in the panel’s words, “students’ educational success is ‘inextricably bound up’ in the universities’ capacity to teach them.”

Those folks in the State of Washington Solicitor General’s Office are no schnooks; they seized on this holding in their factual allegations to establish standing. Behold:

According to declarations filed by the States, for example, two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States; one was informed he would be unable to obtain a visa. Similarly, the University of Washington was in the process of sponsoring three prospective employees from countries covered by the Executive Order for visas; it had made plans for their arrival beginning in February 2017, but they have been unable to enter the United States. The University of Washington also sponsored two medicine and science interns who have been prevented by the Executive Order from coming to the University of Washington. The University of Washington has already incurred the costs of visa applications for those interns and will lose its investment if they are not admitted. Both schools have a mission of “global engagement” and rely on such visiting students, scholars, and faculty to advance their educational goals. Students and faculty at Minnesota’s public universities were similarly restricted from traveling for academic and personal reasons.

From what I see, this probably isn’t a final holding in the case; remember, we’re just here on review of a TRO, and much of the case has yet to unfold. For now, the Ninth panel is satisfied that it has the ability to decide the case.

Actually, that’s the next issue: the President asserted on brief that his immigration order – call it a ban if you want to; I’ll stay out of that fight for now – was wholly unreviewable, based on the Constitution’s unlimited grant to him of control over immigration issues. This argument brought immediately to mind a similar argument made (and resolved) in US v. Nixon in the 1970s. There, a special prosecutor subpoenaed certain documents from the President. Nixon asserted in response (1) that the materials were protected by executive privilege, and (2) that the President was the entity who was entitled by law to make the judgment call (privilege or not). The Supreme Court issued a landmark opinion that said, in essence, (3) “Oh, no, you’re not.”

The outcome is the same here. The Ninth soundly rejects the claim that the Executive Branch has unfettered discretion over matters relating to immigration and our borders, citing recent precedents including Boumediene v. Bush and INS v. Chadha. There are still important limitations on the courts’ ability to review certain decisions; for example, if Congress ever got around to declaring war on someone or something, I cannot envision a court challenge to that. But the courts are the right place to evaluate whether an executive action fits within the contours of the Constitution.

And that brings us to the nature of the claims asserted. In order to justify a TRO, the movant – here, the States – have to show a probability of success on the merits, irreparable harm in relief isn’t granted, the absence of harm to others if relief is granted, and where the public interest lies. In order to uncork the existing TRO, the President has to make the reciprocal showing in his favor. The Ninth concludes that the States are likely to succeed on the merits of their Due Process claim, and that their Establishment Clause claim raises allegations of a serious nature.

As for Due Process, it’s a fairly easy route. The executive order cut off travel to all persons within the affected group without affording those persons notice or a hearing, two of the fundamental requirements of procedural due process. The court of appeals agrees with the district court, and rules that the President hasn’t shown that he’s likely to prevail on the merits of that claim. The court also notes that the Due Process Clause applies to all persons, not just citizens – even to those who are here illegally. (Think about it. Can a prosecutor refuse, for example, to disclose Brady materials to a defendant just because that defendant is an illegal alien? That’s not a close call.)

The court also finds that the States “raise serious allegations and present significant constitutional questions” in their Establishment Clause claims. Citing “evidence of numerous statements by the President about his intent to implement a ‘Muslim ban,’” the court concludes that the President hasn’t shown that he’s likely to prevail on the merits of that claim, either.

On the balance of hardships, the court observes that while the United States has a compelling interest in combating terrorism, the President “has done little more than reiterate that fact.” In contrast to the specific harms asserted by the states, the President’s arguments don’t address the fact that the TRO “merely returned the nation temporarily to the position it has occupied for many years.” Instead, he falls back on the contention that his decision isn’t reviewable. Of course, once matters unfold after a trial, or at least a hearing on a preliminary injunction, the federal government may well prevail; but this TRO will remain in place until then.

Matters should proceed apace in the district court, assuming the President doesn’t appeal to SCOTUS. The district court set a schedule for the temporary injunction calling for briefing to conclude by next week. I don’t know if this sojourn to the Ninth has effectively stayed those briefs.

The final question that’s probably on your mind is this: What happens from here? That’s up to the President and his legal advisers. As I see it, his choices are (1) appeal immediately to SCOTUS, (2) seek en banc rehearing from the Ninth, (3) accept this temporary defeat, go back to the district court, and try to win the temporary injunction hearing, or (4) craft a new executive order that doesn’t contain the allegedly fatal features of this one.

No, I cannot read the President’s mind. In the current environment, I would probably advise him to pursue a combination of (3) and (4). The chances of getting five justices to agree to overturn a TRO are quite small; the Supreme Court far prefers to address final judgments, and the pace at which the temporary injunction hearing will proceed probably makes SCOTUS review a waste of time. Nor would appealing to the en banc Ninth help. Remember, this is the Ninth. I think there are 25 active judges, and that means you’d need to get 13 of them to vote for review. (Out there, if the court does grant en banc rehearing, the case is heard by 11 judges, not all 25.)

Of course, this is President Trump, and given what you can glean from his Twitter feed, he may already have directed the Acting Solicitor General to file a petition for emergency review at One First Street. The probability that we haven’t seen the last appellate proceeding in this case is, oh, roughly 100%.




(Posted February 9, 2017) This week’s sole published opinion from the SCV is a habeas corpus appeal, Oprisko v. Director. Oprisko was convicted in early 2009 of possession of marijuana with intent to distribute, and received a five-year suspended prison sentence. He exhausted his direct appeals in mid-2012 – an eye-catching delay that isn’t explained in today’s opinion.

A few months later, SCOTUS handed down Florida v. Jardines, in which the Court held that the use of a drug-sniffing dog by the police on a homeowner’s front porch is a search within the Fourth Amendment. Because Oprisko’s conviction depended on the use of such a dog, and the circuit court had denied a motion to suppress on that issue, Oprisko filed a habeas petition asserting that his conviction was invalid.

The primary issue in the habeas proceeding was whether the rule announced in Jardines was retroactive or not. The circuit court found that it wasn’t, so it denied habeas relief without conducting an evidentiary hearing. Oprisko got a writ to review that ruling.

The justices today unanimously affirm the denial of habeas relief. Analyzing the caselaw at the time it existed on the day Oprisko’s conviction became final, the court determines that Jardines indeed announced a new rule of law. Under established jurisprudence, such rulings don’t have retroactive effect; only if the new decision was “dictated by precedent existing at the time the defendant’s conviction became final” would it apply to previous convictions.

Prior caselaw on this point didn’t establish that the Jardines ruling was “dictated by existing precedent,” so the ruling doesn’t get retroactive effect. Based on this conclusion, the court also rejects Oprisko’s argument that he should have received an evidentiary hearing. The sole issue in the habeas proceeding was a legal one, so evidence wouldn’t have made a difference. The trial court accordingly acted within its discretion in deciding the case on the existing record.





(Posted February 2, 2017) The justices get back to business today, issuing two new published opinions. Each is very significant in its field.


What happens when a doctor performs surgery, but ends up operating on the wrong body part? Obviously, a plaintiff can sue for medical malpractice, a claim sounding in negligence. But many plaintiffs add a battery claim, asserting that the patient never consented to have surgery performed on the “wrong” body part. That’s the setup for today’s ruling in Mayr v. Osborne.

The patient went to a surgeon complaining of back pain. The doctor recommended a fusion of the fifth and sixth vertebrae of the patient’s cervical spine. The patient agreed, but the doctor mistakenly operated on the sixth and seventh vertebrae instead. That required a second surgery.

The patient sued the doctor for negligence and battery, but nonsuited the med-mal claim, leaving the battery claim to be tried by a judge, sitting without a jury. During trial, the doctor objected to the battery claim, asserting that a claim like this had to arise in medical negligence. The judge took those motions under advisement; he never formally ruled on them, but he eventually granted judgment in favor of the patient.

Time for an appellate-practice digression: Is that “election” issue preserved for appeal, since the court never expressly ruled on it? The justices decide that it is indeed preserved, because “the trial court’s award of damages to the plaintiff following two motions to strike necessarily constituted an implicit denial of the motions to strike.”

I understand this ruling, and in a sense I’m glad the court ruled that the issue wasn’t foreclosed. Procedural default is a cancer on our practices. But as your appellate guidance counselor, I advise you not to try this at home; the rulings on preservation in situations like this are perilously non-uniform. Get a specific ruling. Ask the judge for it – politely, of course – even if you have to ask more than once.

Back to our primary tale. Justice McCullough writes the opinion of the court, and he begins by noting that the legal issue here – whether a negligently performed surgery can give rise to liability for battery – is a matter of first impression. There’s caselaw that establishes that wholly unauthorized surgeries are indeed batteries; in this case the doctor had permission to perform surgery, but just made a mistake in doing it.

The court reasons that battery is a specific-intent tort. You can’t negligently commit battery, even in a non-surgery context. In addition, the purposes of battery law and negligence law differ.

That’s all true in a legal context, of course; but the practical difference between the two causes of action in the medical context is a monetary one. In a med-mal case, you almost always have to have a standard-of-care expert witness to make out a prima facie case. In claims involving relatively small sums of money, it can be wholly uneconomical for a plaintiff to hire a doctor to testify as to the standard of care. That’s what leads some plaintiffs to go the battery route; med-mal statutes and rules don’t govern battery claims.

In this sense, today’s reversal and final judgment, a complete win for the doctor, deals a significant blow to injured parties and gladdens the hearts of the medical profession (and their lawyers). The court finds that claims like this sound in negligence, not battery, so the plaintiff must go the med-mal route.

The justices also reject the patient’s theory based on informed consent. The court rules that in order to establish a battery claim in this realm, the plaintiff must prove enough “to permit an inference that the physician intended to disregard the patient’s consent regarding the procedure or the scope of the procedure.”

Good luck proving that. As far as I can tell, this ruling effectively ends battery claims as a means of recovery for all but a very limited subset of medical claims.

I’ve tried to envision the limits to this doctrine. Suppose I have a diseased kidney, and a surgeon recommends taking it out. I agree, but instead of removing Bad Kidney, he removes Good Kidney, leaving me permanently dependent on dialysis for as long as I continue to live. The doctor tells me “I meant to remove Bad Kidney; it was just a mistake on my part.”

I would assume that I wouldn’t need an expert to make out a prima facie case that my doctor committed a battery by removing the wrong kidney; but in the med-mal context I really do have to go to that expense. In this regard, one bit of trial testimony from Dr. Mayr’s expert is particularly significant: the doctor adduced evidence that “operating at the wrong level is ‘a recognized complication’ of this type of surgery.” Think about the implications of that testimony, and imagine how broadly it might spread.

Today’s opinion concludes with a note of consolation for the patient: “This does not leave a plaintiff without a remedy.” That is, he can sue for medical malpractice, taking on the expenses appurtenant to a claim like that.

Criminal law

We’ve seen Jones v. Commonwealth before. On Halloween in 2014, the justices affirmed the life sentence imposed upon Jones for capital murder. He had been sentenced more than a decade earlier, but sought relief after SCOTUS handed down Miller v. Alabama in 2012. That decision held that a state could not subject a juvenile (at the time of the offense) to mandatory life in prison without possibility of parole.

In 2014, the SCV examined Miller and decided that it didn’t apply, since Virginia doesn’t have a mandatory life sentence for capital murder. What’s that you say? The only statutory choices are death or life without parole? Ah, but you’re forgetting that a judge can suspend part or even all of a life sentence. That means that it’s not truly mandatory.

Jones filed an oh-yes-it-is petition for certiorari in Washington. Last year, with Jones’s petition pending, SCOTUS addressed this topic again in Montgomery v. Louisiana, expressly to decide whether the Miller doctrine was retroactive. This matters a lot, because if it is indeed retroactive, a whole slew of appellants with dusty convictions will be entitled to relief.

The opinion in Montgomery held that the Miller ruling was indeed retroactive. This is looking good for Jones. It looked even better when his case was among a host of others on a GVR list – where SCOTUS granted cert, vacated the sentence, and remanded for reconsideration in light of the new decision.

Today, a sharply divided Supreme Court of Virginia again rules that the Miller doctrine – even as explicated in Montgomery – still doesn’t apply, primarily for the same reason as the last SCV decision, back in 2014. The majority holds that whether Miller is retroactive or not, Virginia still doesn’t have a mandatory life sentence for juvenile defendants, or anyone else, for that matter.

Today’s opinions – Justice Kelsey’s for the court and Justice Powell’s dissent on behalf of Justices Goodwyn and Mims – are long, running fully 47 pages. The constitutional law issues are deep and complex. If you’ve got a couple of hours, we can go over it fully. For the rest of you who have to find a billable use for your time, here are just the highlights, plus a couple of observations.

While there are several components to both the majority and dissenting opinions, the primary legal issue, as I see it, is whether Jones’s sentencing order was void or voidable. If it’s merely voidable, I think the entire court would find it time-barred; Jones was sentenced in (probably) 2001, and it’s too late for a direct appeal or a habeas petition. Only if the sentence was void ab initio may Jones use the procedural vehicle he chose: a motion to vacate his sentence.

Motions to vacate typically arise when a court has entered a void ab initio judgment for things like the absence of subject-matter jurisdiction. That’s even true in civil cases: we have a statute (Code §8.01-428) that allows a party to file an independent action at any time for relief from a judgment.

If you saw the recent motion picture Loving, telling the story of Loving v. Virginia, you’ll recognize the concept. The Lovings pleaded guilty, just as Jones did here, but years later sought to vacate the conviction, asserting that the judgment was void as unconstitutional. They didn’t appeal and they didn’t file habeas petitions. How could they do that years later? By claiming, in essence, that their convictions even based on guilty pleas, were hopelessly unconstitutional. You know how that came out.

Loving v. Virginia even makes an appearance here, as Justice Powell uses it as an example of how a petitioner can assail a years-old conviction. Justice Kelsey points out in response that neither the SCV nor SCOTUS, in considering the case on the merits, ever actually touched on the issue of whether a motion to vacate was an appropriate procedural vehicle. He therefore regards it as an unadjudicated issue, and issues that the court doesn’t actually decide cannot be afforded the benefit of stare decisis.

We all know that courts will raise jurisdictional issues sua sponte, so you may well presume that both courts in the 1960s found no jurisdictional barrier to considering the issue. Bringing the issues forward to the present, it does occur to me that if this is a prohibited procedure, there will be no vitality to the Montgomery ruling that Miller is retroactive. How would a prisoner like Jones ever enforce his right to relief, assuming he was entitled to it?

There are a few bon mots here – hey, Justice Kelsey is writing; what do you expect? – such as where the majority addresses the fact that in 2001, Jones never asked for an evidentiary hearing such as the one he now seeks, and indeed stipulated in his plea agreement that life without parole was the proper sentence for his crime. “That is of no concern, Jones claims, because his sentence was void ab initio — a doctrinal ‘royal flush’ that outranks any lesser hands of procedural default, estoppel, or even judicial stipulations.”

I always like a good poker analogy, but this one, concluding the discussion of this legal issue, trumps it:

But even if, as Jones’s logic implies, the trial court — over a decade ago — had a constitutional duty to force Jones to violate his plea agreement by requesting a partial or complete suspension of his stipulated sentence and then, whether requested or not, to order Jones to present mitigation evidence in support of an unrequested suspension, we would not hold that such a violation renders his sentence void ab initio. Nothing in Virginia or federal law compels us to do so, and we can think of no good reason why we should.

(You’ll note that by using the phrase trumps it, I’ve introduced bridge and presidential politics to the table. Always looking out for the punsters among my audience.)

This case is the latest in a long string to address the perplexing boundary between void and voidable rulings. The boundary is by no means clear, no matter how many judicial opinions explore it. I’d like to say that this opinion brings clarity to a murky picture; but I can’t really conclude that. If you’re looking for a crystal-clear, bright-line rule on the division, you’re going to go hungry for quite a while.

On the substance of it, I’m inclined to agree with the majority that Montgomery goes no further than what Justice Powell describes (albeit before disagreeing): “the majority insists that the precedential holding in Montgomery amounts simply to: Miller is retroactive.” On that basis, I’d tend to agree that our capital-murder sentencing system does allow a trial court to consider the defendant’s youth and related factors. I also believe that Jones’s sentence, one where he pleaded guilty and agreed to a specific term of imprisonment – even if it is life without parole – was subject to waiver, just like the constitutional right to a jury trial.

But in doing so, I’d hate to lose the avenue for delayed review that helped Richard and Mildred Loving obtain eventual justice. The Lovings pleaded guilty before later asserting that their conviction was impermissible. There’s a low-level distinction, of course; the Lovings convinced SCOTUS in 1967 that the conduct they were punished for could not legally be prohibited. I’m not sure if that’s the ultimate answer; but I suspect we’ll see further review of these issues under the caption Jones v. Virginia in the near future.

One last point. Justice Kelsey inserts a passage into the majority that’s designed to inoculate this ruling from SCOTUS review. The issue in the case is whether or not Virginia’s criminal statutes call for a mandatory minimum sentence. The court today rules that it does not. The majority cites caselaw from SCOTUS holding that on the interpretation of state law – including whether our law imposes a mandatory minimum – state courts get the last word and the federal courts won’t second-guess them. We’ll likely see if that deference endures.





(Posted January 19, 2017) We get the first opinions of the new year today from Ninth and Franklin, as the Supreme Court decides two appeals by published opinion.

Criminal law

A shoplifting conviction sets the scene for a fight over jury instructions in Lindsey v. Commonwealth. A store employee saw Lindsey put two hats inside his clothing. Another employee confronted Lindsey, who was later charged with petit larceny, third offense.

At trial, the prosecution offered a jury instruction out of VMJI:

Willful concealment of goods or merchandise while still on the premises of a store is evidence of an intent to convert and defraud the owner of the value of the goods or merchandise, unless there is believable evidence to the contrary.

Lindsey objected to that and offered a substitute:

You may infer that willful concealment of goods or merchandise while still on the premises of a store is evidence of an intent to convert and defraud the owner of the value of the goods or merchandise.

Since this language is very similar, I’ll highlight the difference: the defense instruction tells the jury that it may infer intent from concealment, while the prosecution’s says that concealment is evidence of intent.

Lindsey was convicted, and the Court of Appeals affirmed per curiam. But Lindsey’s trip to a writ panel bore fruit; the justices agreed to take a look.

The dispositive issue here is whether the prosecution’s instruction creates a presumption, in which case it’s unconstitutional; or else allows the jury to draw a permissive inference, in which case it’s not. Presumptions don’t have to be conclusive in order to violate the Due Process Clause; even a rebuttable presumption is impermissible.

By a 5-2 margin, the SCV today rules that the VMJI language doesn’t create a presumption, so the conviction is affirmed. The chief justice, writing for the majority, notes that the instruction given

merely instructed the jury that willful concealment of goods while on the premises of a store is evidence of intent to convert and defraud. It provided that the jury could consider the concealment of merchandise as evidence of criminal intent, along with any other evidence that was presented to it.

In that sense, it describes a permissive inference that the jury may draw, and doesn’t mandate any conclusion that the jury must accept.

Justice Goodwyn, writing on behalf of Senior Justice Koontz, disagrees; he believes that this language requires the jury to find criminal intent, “unless there is believable evidence to the contrary.” No criminal defendant is required to adduce “believable evidence” in a criminal trial, given the obligation of the prosecution to prove each element beyond a reasonable doubt and the defendant’s right to remain silent. The dissent would remand the case for a retrial, “if the Commonwealth be so advised.”

As always, I don’t get a vote, but if I had been on the court, I probably would have joined the majority. I agree with those five justices that an instruction that concealment “is evidence of” intent doesn’t command the jury to find that intent; it still must evaluate that evidence along with all the other evidence in the case.

The one thing that troubles me just a bit about this conclusion is the final clause in the model instruction: “unless there is believable evidence to the contrary.” That clause doesn’t match up well with the previous language, which states that concealment is “evidence of intent,” as contrasted with, say, “proof of intent.” That phrasing would clearly run afoul of the Due Process Clause. Because of that, and despite the fact that this appeal resulted in an affirmance, it might behoove the model-instruction solons to take another look at the wording of this instruction.


In September the justices heard argument in an automobile MIST (minor impact, soft-tissue injury) appeal, Gilliam v. Immel. Immel rear-ended Gilliam and admitted that he did it; liability was conceded, so the sole issue at trial was damages. There was no discernible damage to Gilliam’s car, and today’s opinion notes that during the collision, “Gilliam was restrained by her seatbelt and no part of her body came into contact with any part of her vehicle.” Her body tensed on impact, but she had no visible signs of injury.

An ambulance came to the scene and took Gilliam to a hospital, where she told health-care providers that her back and neck were sore. They gave her some medication and released her; she went to work the next day. She received follow-up treatment from her family doctor, an orthopedist, and a neurologist after she reported that the pain in her neck had radiated down into her shoulder. She received what I infer was a cortisone injection and some outpatient surgery (which again cost her only one day of work) to address her shoulder pain.

The orthopedist who performed the surgery opined, based on Gilliam’s reports, that her medical care was traceable to the collision, despite her history of back surgery years before. Gilliam introduced medical bills of $73,000.

At trial, the surgeon testified for Gilliam, while another orthopedist testified for Immel based on a record review. (For the uninitiated in PI litigation, that means that he never examined or treated Gilliam; he just read her medical records.) Immel’s expert opined that none of the expenses were attributable to the collision; she suffered only a minor strain that would resolve itself naturally within weeks.

A jury heard all this and wound up believing Immel’s expert; it returned a verdict for Gilliam but awarded her zero dollars in damages. The trial court entered judgment accordingly.

On appeal, the justices unanimously affirm. Justice McClanahan writes the opinion, and she points out that the evidence was very much in dispute as to whether Gilliam’s medical care was causally related to the collision. Gilliam argued that had she proved, at a minimum, that her back and neck injuries were symptomatic for weeks, and she was entitled to at least something for that. No dice, Justice McClanahan answers; that claim – and the surgeon’s confirmation of it – depended entirely on Gilliam’s own report. And the jury was free to conclude that she was embellishing her symptoms, if it so chose.

The court decides one other issue here. Gilliam sought to tell the jury that in the immediate wake of the collision, Immel said to her, “You black bitch. I don’t have insurance. You’re not going to get anything out of me.” As inflammatory as that statement is, it didn’t relate to the one issue that was actually being tried: the extent of Gilliam’s injuries. Theoretically it could be relevant to a claim of infliction of emotional distress, but Gilliam didn’t plead a claim like that, so the Supreme Court affirms the trial court’s decision to exclude the statement at trial.

One last point about the primary ruling in the case. While technically this was a verdict in favor of the plaintiff, the court continues the long-standing practice of evaluating it as being in favor of the defendant, since the jury awarded zero damages. That makes a difference in this appeal, because it calls for the justices to view the evidence in a light most favorable to Immel, not Gilliam. Hence their conclusion that the jury may not have believed Gilliam’s reports of pain.




(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.