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L.Steven Emmert
Virginia Appellate News & Analysis by L. Steven Emmert - Inside the Case Decisions, RUlings & Opinions
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L. STEVEN EMMERT
   

APPELLATE COURTS CLOSE DUE TO STORM

 

[Posted March 5, 2015] The state and federal appellate courts in Richmond have both closed due to the ongoing snowstorm in that city. The Supreme Court and Court of Appeals of Virginia closed around 11:30 am, while the Fourth Circuit shut down at 12:30 pm.

 

If you have a filing deadline today, your deadline is automatically extended until tomorrow. If you have a deadline of tomorrow or later, this closing won’t affect you; you don’t get an “intermediate snow day.”

 

Here’s my usual warning: Some appellate deadlines call for filing things in trial court clerks’ offices. The notice of appeal, a mandatory and jurisdictional deadline, is the easiest example. Please note that if your local court is still open – which I know they are here in Tidewater, where it’s merely raining – then you still must file on time. The closings in Richmond don’t carry over in those contexts to the local courthouses.




HOW TO READ BETWEEN THE LINES

FOURTH CIRCUIT EDITION

 

[Posted March 5, 2015] This morning, the Fourth Circuit announced its ruling in Elyazidi v. SunTrust Bank, a published panel decision. The opinion is just over 22 pages long, and contains useful rulings on the Fair Debt Collection Practices Act.

 

But today’s sermon is about the first paragraph, in which the court first telegraphs and then summarily announces the ruling in six sentences. Let’s walk through it together.

 

Mounia Elyazidi (“Appellant”) overdrew her checking account when, despite having only a few hundred dollars in the account, she cut herself a check for nearly $10,000.

 

Here’s our first clue: “cut herself a check.” That’s a casual phrasing of the appellant’s actions in drafting, endorsing, and presenting a negotiable instrument. It foreshadows that the court doesn’t think highly of what the appellant did here, beyond merely bouncing a check.

 

A debt collector, acting on behalf of the bank, took her to court in Virginia and won.

 

Nothing really untoward here; this is a neutral description of the procedural posture. But wait; here come the fireworks:

 

Appellant, not content to pay the judgment and let the matter drop, filed this lawsuit against the bank and its lawyers (collectively, “Appellees”).

 

The phrase about her being “not content to … let the matter drop” clearly suggests that the court thinks that doing just that would have been the wisest course. At this point, midway through the first paragraph, you should have no doubt how this appeal is going to come out. Still, we have a bit more procedural posture to recite:

 

Her suit alleges that Appellees violated Maryland consumer protection laws, and that the bank’s lawyers violated the Fair Debt Collection Practices Act (“FDCPA”). The federal district court dismissed Appellant’s suit for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

 

Again, this is a neutral phrasing, showing that the panel thinks there’s nothing at all wrong with the bank’s actions. The court does that uniformly throughout today’s opinion, in contrast with what I view as some transparent exasperation with the appellant’s approach. One last step:

 

We affirm.

 

No kiddin’. The opinion goes on to evaluate the appellant’s five appealed claims, and agrees that the district court properly dismissed them. But unless you’re really good at suspension of disbelief, this paragraph will tinge your entire reading of the remainder of the opinion.




NEW RULES – HERE, AND ON THE HORIZON

 

[Posted March 4, 2015] Let’s take a look at some new and upcoming rule changes in the courts. Some of these aren’t appellate, but we may as well be comprehensive.

 

Hearsay rules

Last November, the Supreme Court of Virginia made changes in Rules 2:801 and 2:803, with a delayed effective date. The new provisions won’t take effect until July 1; the long interval was planned to allow the legislature to intervene if it saw fit. To the best of my knowledge, that didn't happen in the session that just concluded, so you should get used to the new provisions.

 

The new language in Rule 2:801 relates to when prior consistent and inconsistent statements are admissible. The amendment doesn’t change Virginia evidence law; it effectuates some recent SCV opinions by placing them into the rule.

 

Rule 2:803’s new language is in item 6 of the enumerated hearsay exceptions, relating to authentication of business records. Again, the new language just reaffirms previous Virginia caselaw.

 

Discovery limitations

Last Friday, the court announced an amendment to Rule 4:11, effective May 1. The new provision limits the number of requests for admission that a party may propound. Starting in May, you can’t propound more than thirty requests, unless you get a court order. The limitation doesn’t apply to requests that are directed to the genuineness of documents; those requests remain unlimited.

 

This one came as a real surprise to me; back in the Dark Ages, when I handled trial work, I thought that requests for admission were a particularly valuable tool in narrowing the triable issues. After all, you can deny an allegation in a pleading for a great many reasons – basically anything more than a misplaced comma or a misspelling – but in discovery, you can make the Bad Guys lay their cards on the table.

 

As I see it, this rule change will make trying cases more complex and more expensive. If there’s a bright side, we may finally get an appellate ruling on the contours of the subpart rule, as I emphatically foresee plenty of litigation over this new provision.

 

Criminal discovery

The court is now accepting public comment on a proposal to provide for discovery in criminal prosecutions. You may submit your thoughts on the idea until June 30; instructions are on page 2 of the press release. I recommend that you review this and speak up, whether you like or dislike the idea. (For those who dislike it, you can find sympathetic comments starting on page 55, coming from the State Police.)

 

Provisional Bar admission

The court has amended Rule 1A:8, covering military spouses who seek to practice in the courts of the Commonwealth. The new provision seems uncontroversial to me; it specifies the method by which such admittees are sworn in.

 

En banc briefing in Fourth Circuit

Effective January 2, 2015, the Fourth Circuit amended its Local Rule 35. Now, the court may direct additional briefing when it grants en banc rehearing of a panel decision. Previously, the rule only provided that the parties file additional copies of their panel-stage briefs. The new-briefing order may come on motion by a party, or by the court sua sponte.

 

I think this is a positive change; the full court may well wish to consider issues that barely cracked the surface at the panel stage. As with most federal-appellate provisions, rules compliance should be quite easy, since the court's order granting rehearing will spell out what the court wants the parties to do.

 

Injunction appeals

The Supreme Court of Virginia has accepted comments from the public on a Boyd Graves Conference proposal to substantially modify Rule 5:17A, which deals with review of the grant or denial of injunctions under Code §8.01-626. Currently, parties may appeal the interlocutory grant or denial of temporary injunctions, but not permanent ones that appear in final-judgment orders. For the latter category, you have to use the normal appellate process, which can take almost a year.

 

The comment period has closed, and the court will consider at an upcoming business meeting whether to implement the change. I believe that this change, too, is a very good idea. An injunction at any stage of a case can be a singularly damaging event, and prompt review of such actions is a very useful tool.

 

By the way, the proposal would also create a parallel rule in Part 5A, for immediate review of injunctions in cases where the Court of Appeals has appellate jurisdiction.

 

An early look at some federal rule proposals

If you want to monitor the deep horizon, check out this report of some contemplated changes to the Federal Rules of Appellate Procedure. There are some significant amendments, including clarity on amicus filings, amending the word-count limitations for brief lengths, and ending the three-day rule when a brief is served electronically. One key provision would address a split in the circuits on the appellate effect of a district court’s erroneous extension of the deadline for filing post-trial motions.

 

The time for public comment has passed, but if the Judicial Conference’s advisory committees decide that they like these suggestions, they’ll forward the matter to the Committee on Rules of Practice and Procedure. The next steps would be the Judicial Conference, the Supreme Court, and then Congress. The anticipated effective date of the changes is December 1, 2016, so I suspect you should still have an opportunity for some input at one stage or another.




ANALYSIS OF FEBRUARY 26, 2015 SUPREME COURT OPINIONS

[Posted February 26, 2015] Today's analysis will be a first for me. I've posted opinion-day analysis most often from my office, but occasionally I've had to take it on the road. I've borrowed offices from my priceless printing consultant, The Lex Group; I've used space borrowed from a fellow attorney at least once; and I've even done it from a hotel room. But today, the snow gods have decreed that I'll be sitting at home. The streets are impassable, and I understand that the power's out at my office anyway.

This isn't completely bad news. I have a comfortable spot on the sofa, in front of the fire. Ardie, a/k/a The Big Woof, snoozes peacefully nearby, and I've got a Thermos of coffee on the table. Best of all, the uniform of the day is my all-time favorite outfit: Levi's and tennis shoes. I can get used to this.

That being said, as I type this just before 9:30, I still don't know if the opinions will be posted to the court's website today. Court is in session right now, but the Clerk's Office is closed. I've never encountered that situation in my career. (By the way, if you have a filling deadline today, you get a reprieve until at least tomorrow.) I'll check the site in a few minutes and will give you an update by 10:00 or so.

UPDATE 9:40 am: The opinions are up, so I'll start my analysis now. Still no decision in the Yelp, Inc. v. Hadeed Carpet case; nor does the court decide the SCC ruling involving Dominion Virginia Power's plans to string power lines across the James River near Jamestown.

Sanctions
We get another entry today in the Commonwealth's growing body of sanctions caselaw. In EE Mart F.C., LLC v. Delyon, the justices address what components of attorneys' fees may be included in a sanction award.

This appeal stems from a claim by an LLC that a departing chief financial officer had converted company funds, consisting of insurance proceeds, before her departure. The company filed suit in Fairfax, but nonsuited that case just before trial. It later filed an action in a Maryland court against the insurance company, and subsequently added the CFO as a defendant. That case is still on the docket in the jurisdiction to our north.

The CFO then did something that caught me by surprise: she filed her own suit, back in Fairfax, seeking to enjoin the LLC from maintaining the Maryland action, and seeking a declaratory judgment that the Maryland suit "was without merit." This isn't the key component of today's decision, so I may be missing something important. But a collateral attack on a legal proceeding in a foreign court? I'm left to wonder how the Fairfax court could have done that.

No matter; the LLC counterclaimed with its original claims against the CFO, and the case proceeded toward trial. But before that happened, the LLC's attorneys got leave to withdraw, and the company didn't replace them. That's a bad sign, because companies, unlike individuals, cannot act pro se in legal proceedings; they have to have counsel. When the company missed a deadline to file a witness and exhibit list, the court regarded the counterclaim as abandoned, and proceeded to hear the CFO's suit in what must have been an especially one-sided trial.

The court predictably ruled in favor of the CFO. (I've noted that my own winning percentage is fairly high when my adversary doesn't show up.) Its judgment order contained language finding the counterclaim to be frivolous. And that brings us into the land of sanctions.

The CFO sought a sanction award of $25,000, which included all of her incurred legal fees from all three suits -- the original, nonsuited action, the Maryland case, and the second Fairfax suit. The trial court gave her a hundred cents on the dollar. The Supreme Court decided that that ruling was worth a closer look, and a writ.

Today, the Supreme Court reverses and remands the case for a recalculation of sanctions. The court rules that the only legal fees that are properly included in a sanction award are those in the case at bar; you can't go elsewhere to hunt up sanctionable conduct. Otherwise, litigants around the nation would be subject to sanctions in Virginia for conduct that violates our sanction statute.

This ruling makes eminent sense with me, and I found myself agreeing with everything in Justice Powell's opinion for a unanimous court. I can't help but wonder, though, about some of the unaddressed issues. How is a Virginia court going to enjoin the defense of an action in another state? What authority does it have to decide that a case pending elsewhere is frivolous? This empty feeling isn't the Supreme Court's fault; as the opinion notes, the only assignment of error in the appeal related to the calculation of the sanctions. The LLC didn't even assign error to the decision to award sanctions in the first place.

I also wonder what effect the underlying declaratory judgment will have on the pending Maryland litigation. I'm emphatically not a conflict-of-laws guru, but my best guess is that the Maryland court can simply ignore the Fairfax court's finding that the Maryland action is without merit.

Land use
The court issues an important published order today that clarifies the statutory requirements for appealing a BZA ruling. The decision is Frace v. Johnson, and it also arises in Fairfax.

We don't know the origin of this appeal, except that it began with an anonymous complaint about Frace's property. I will defer publishing here my views of anonymous complaints from nosy neighbors. All we know is that the Zoning Administrator upheld the complaint. Frace sought review by the Board of Zoning Appeals, but that body ruled against her, too.

By statute, Frace had the right to appeal the BZA ruling by a petition of certiorari in the circuit court. The Code was amended in 2010 to specify exactly how to caption such an appeal: "In Re: [date] Decision of the Board of Zoning Appeals of [locality name]." Frace prepared her petition exactly as required and filed it. The Zoning Administrator intervened and filed a motion to dismiss, claiming that Frace had failed to join a necessary party -- the county's Board of Supervisors.

Frace had an understandable response: "I titled the appeal exactly the way the statute says." But the trial court didn't see it that way; it dismissed the appeal because of the absence of a necessary party.

As it turns out, the trial court was right. Once upon a time, before 2010, you had to sue the BZA in an appeal. But now, you have to join and serve the Board of Supervisors. Here's the relevant text of the new statute:

Any review of a decision of the board shall not be considered an action against the board and the board shall not be a party to the proceedings . . . .

The governing body, the landowner, and the applicant before the board of zoning appeals shall be necessary parties to the proceedings.

That language unambiguously requires joinder of the county Board. Frace properly titled her pleading, but failed to serve the Board within the 30-day period mandated by statute. And since that deadline is mandatory and jurisdictional, the appeal was properly dismissed.

There are a couple of practice lessons here. The obvious one is that while you have to style the suit as the statute prescribes, you have to name the governing body -- a county board or a city council, for example -- as a party in the body of the petition. There's also a short but noteworthy  discussion of the jurisdictional aspect of this case on page 6 of the slip opinion. The court rules that compliance with the 30-day deadline is necessary for the court to acquire active jurisdiction in the case. This isn't subject-matter jurisdiction; that's the power to adjudicate a particular class of cases, and circuit courts definitely have that authority in BZA appeals. But a court has to acquire in personam jurisdiction over a party before it can start entering orders that affect that party. Since Frace never timely brought the Board into the case, the trial court was powerless to act on the petition.

Torts
The court addresses the special-relationship doctrine in Brown v. Jacobs, a wrongful-death clam that will hit close to home for many of us in the legal profession. The decedent was a private investigator who had been hired by an attorney to serve divorce papers on a husband. When the process server finally caught up with the husband, the latter shot and killed him. The widow sued the murderer and got a default judgment. Her suit also included claims against the wife's lawyer.

In general, you have no duty to protect others from criminal acts by third persons. There are two exceptions, both of which require proof of a special relationship: (1) if you have a special relationship with the third person, so that you have to stop him from committing offenses against victims; or (2) if you have a special relationship that requires you to protect the victim. The latter category is much more common, and it's the one in play in this appeal.

The widow asserted that the attorney had a special-relationship duty to warn the process server that the husband was armed and dangerous. She cited a 1998 Supreme Court decision in which the court had upheld the existence of a special relationship for an independent contractor. She argued that the decedent was entitled to similar protection.

In affirming the trial court's decision to sustain the lawyer's demurrer and dismiss the case, the justices today explain the limits of the 1998 decision. That case had involved the sexual assault of a 13-year-old newspaper carrier. The publisher prescribed a route and delivery schedule for the paperboy, but didn't let him or his parents know about prior instances where juvenile news-carriers had been sexually assaulted.

Unlike that 13-year-old, the investigator wasn't particularly vulnerable. Nor did the attorney prescribe his means of performing his duties; the investigator was expected to tag the husband with process in any way he could. (This, of course, is the hallmark of independent-contractor status.) Thus, even though the independent-contractor relationship can, in the right circumstances, give rise to a special relationship, it doesn't always do so.

I think this is the right ruling in this case, but my advice to you is more nuanced than just the discussion above. I strongly recommend that you not stop at a favorable holding in prior caselaw. Before you rely on a statement in a judicial opinion, be careful to examine the contours of the case, to ensure that the equities of the situation run in the same direction as your case. Justice Goodwyn's opinion goes to great lengths to explain that sometimes, a holding depends almost entirely on the circumstances of that case; in such situations, lawyers need to look beyond the black and white on the page.

Criminal law
Don't skip this section just because you only handle civil cases; there's an important preservation ruling in Hicks v. Director, Department of Corrections that you'll want to know about. This is a habeas proceeding involving a claim of a Brady violation.

Brady v. Maryland requires the prosecution to give the defense any exculpatory evidence in its possession. The evidence can be useful as positive evidence of innocence, or as impeachment; it doesn't matter whether it's in the possession of the prosecutor or just the police. 

Hicks was convicted many years ago of a string of armed robberies, and of one count of murder in a robbery gone bad, all occurring in late 1999. He exhausted his appeals in 2004. In 2013, he filed a pro se habeas petition in which he produced an affidavit from an accomplice in one of the robberies. The affidavit stated that the accomplice had told police long ago that no one else had access to the murder weapon, so Hicks could not have used it in the robberies or the murder.

Whether you believe the affiant or not, you've got to agree that this information was exculpatory and should have been turned over to Hicks's lawyer. On its face, this looks like a plausible Brady violation. But the Commonwealth responded that the habeas petition was far too late; it cited the statutory requirement that such petitions must be filed within two years of the conviction or one year after the exhaustion of appeals.

And now we're getting to the meat of the issue: Hicks answered that he had filed the petition within one year of his discovery of the existence of the exculpatory evidence, and that should be good enough for the trial judge.

It wasn't; the court dismissed the petition as untimely filed. On appeal, the justices take a circuitous route to evaluate the case.

First, the court agrees with the Commonwealth that Rule 5:25 bars Hicks's appellate argument that the prosecution's withholding the information tolled the statute of limitations under Code section 8.01-229(D). That statute provides succor to untimely filings where the defendant directly or indirectly obstructs the filing. Hicks claimed that he couldn't very well file a claim for relief where the prosecution had concealed the grounds for that relief.

The justices note that Hicks never cited that statute in the trial court, and agree that his reference to filing within one year wasn't sufficient to put the judge and the Commonwealth on notice of the nature of the argument. At first blush, this ruling looks quite strict to me; I think that if the appellant has come reasonably close to putting the issue before the trial court, he ought to be able to appeal. But on reflection, this is probably the right call; there was no real nexus between the statute and the issue that was litigated below. You have to be fair to trial judges, too.

This is the preservation issue I mentioned above: Just asking for relief isn't going to suffice to invoke an undisclosed statute. Sometimes the context is clear, of course; but habeas proceedings are almost unique, and the application of general tolling provisions isn't automatically before the court. This part is harsh, but it reflects the reality of the world we actually occupy, instead of the one we wish we had.

The court next embarks on the real jurisprudential journey of this appeal: it evaluates Hicks's claim that the court should reach the issue under the ends-of-justice exception to the contemporaneous-objection rule. These exceptions are applied so rarely that it's always useful to see any opinion that takes up the issue in detail.

This is the heart of today's opinion, and it warrants a careful reading by all litigators. That being said, the exception is applied very rarely in civil cases; today's discussion will have vastly more application in the criminal context.

The court first agrees with Hicks on the error component of the exception. It finds that the tolling provision would have applied in this case.  The justices turn aside the Commonwealth's suggestion that the violation must include moral turpitude -- a positive effort to suppress the exculpatory evidence. With a Brady violation, the concealment of the information is enough to trigger protection.

But there's still a prejudice component; the exception only applies when it's necessary to avoid a "grave injustice." The court determines that this evidence wasn't material, because when viewed against the backdrop of the other evidence in the case, its absence doesn't call the legitimacy of the conviction into serious question.

Here, that factor sinks the habeas petition. Hicks had confessed to participating in the robberies, and the statement to prosecutors that was described in the affidavit actually contradicted some of Hicks's own statements. In sum, adding this piece to the puzzle doesn't call the conviction into serious question.

The next criminal-law decision also involves an exception to the contemporaneous-objection rule. In Toghill v. Commonwealth, it's the other exception: good cause shown. This one includes some interesting federalism and comity issues.

Toghill was convicted in 2012 of soliciting sodomy from a minor. The next year, the Fourth Circuit ruled that the underlying statute was facially unconstitutional. Seizing upon this holding, Toghill's lawyers added a similar challenge to their arsenal in the Court of Appeals of Virginia. That got them nowhere -- an unpublished affirmance -- but the justices agreed to take a look at the case.

The vote in this case is 7-0 -- sort of -- but not in the direction that Toghill had hoped. The court affirms the conviction, and in doing so, gives us an interesting look into the interplay between state and federal appellate courts.The court simply disagrees with the Fourth's panel decision that the sodomy statute is incompatible with SCOTUS's 2003 decision in Lawrence v. Texas, which had struck down an anti-sodomy statute.

The justices disagree with the federal panel because Lawrence expressly carved out the kind of conduct involved here -- that involving a juvenile -- from its holding. That left states free to continue to regulate sexual conduct with minors, which is exactly what the Virginia statute does. Note that the SCV can do this because decisions of lower federal courts may be persuasive but aren't binding on state courts. SCOTUS is different, of course.

The court finds that Toghill can't raise a successful facial challenge, because he can't even establish that the statute is unconstitutional as applied to him. This is a standing issue; you can't challenge a statute because it might be unconstitutional when applied to someone else.

All seven justices agree on this result. There's a bit of disagreement, though, on how we should get there. Justices Mims and McClanahan file concurring opinions, pointing out that the majority is cutting Toghill too much slack by giving his arguments a full airing. Justice Mims notes that even in the CAV, Toghill hadn't asked for good-cause consideration; he only cited the ends of justice. That means that the majority is acting sua sponte -- something the court has done very rarely in applying Ruke 5:25 exceptions. (The CAV doesn't do it at all; you have to ask for an exception, or that court won't invoke it.)

Justice Mims notes that this approach "creates the precedent that an appellant may raise an issue for the first time on appeal simply because a federal court addressed it in a non-binding opinion after the state court has concluded its proceedings . . ." He and Justice McClanahan cite several instances where the SCV has refused to consider an issue raised in just this way.

I can recall a whopper of an issue just like this, although this isn't one of the cases cited today. In Muhammad v. Commonwealth, the DC-sniper appeal from 2005, the court rejected what looked like a wholly meritorious issue. Muhammad had been convicted in 2003, based on evidence that plainly violated SCOTUS's 2004 ruling in Crawford v. Washington. When he raised a Crawford issue in his subsequent appeal, the justices ruled that the argument was waived, because Muhammad hadn't raised the objection at trial. I mused then that he couldn't very well have known to raise the doctrine, because it hadn't been "born" yet; but that doesn't excuse you from at least trying.

The next criminal case is another habeas proceeding – Zemene v. Clarke. Zemene is a lawful immigrant from Ethiopia who’s lived here for 15 years, from the age of nine. Clarke is named as the Director of Virginia’s Department of Corrections.

 

Five years ago, in Padilla v. Kentucky, SCOTUS held that an attorney may provide ineffective assistance when he advises a criminal defendant to accept a plea agreement without considering the likely effect on the defendant’s immigration status. That’s the legal basis of today’s appeal.

 

Zemene was arrested on charges of shoplifting $33 worth of beer. After a couple of continuances, he didn't appear on the trial date, and was eventually arrested on a failure-to-appear charge. He got a court-appointed lawyer who met with Zemene briefly.

 

On the trial date, the lawyer told Zemene that the prosecution had dropped the FTA charge, and was prepared to recommend a 12-month suspended sentence in exchange for a guilty plea to the theft. Because Zemene’s birthday was the next day, and he didn’t want to be in jail on his birthday, he accepted the deal and pleaded guilty.

 

This is a side note, but is there any day on which you would want to be in jail?

 

Get back to work, Steve. A few months later, the feds came a-callin’. Homeland Security took steps to revoke Zemene’s status as a lawful permanent resident, based on the theft conviction. Federal law permits the government to do that with larceny-type offenses with a term of confinement of one year or more, and this conviction qualified.

 

The feds did eventually revoke Zemene’s status, but they agreed to defer removing him from the country, since he would likely face persecution and even death if he had to return to Ethiopia. Still, Zemene filed a habeas petition based on Padilla, claiming that the lawyer had never advised him about the immigration consequences of the plea deal. He supported the petition with affidavits – one from himself, and one from the lawyer.

 

The trial court dismissed the petition at the Director’s request. It held that Zemene failed to establish that if he had been properly advised, he would have turned down the plea deal, and that if he had insisted on being tried, he would have received a lesser sentence.

 

The justices today reverse this ruling, agreeing with Zemene that the trial court had used the wrong standard in evaluating the habeas claim. The court finds it eminently reasonable to assume that Zemene would have regarded his immigration status as more important than the ability to celebrate his birthday while at liberty. The court thus remands the case to the trial court to evaluate the petition on its merits.

Shannon v. Commonwealth is a published order that adjudicates something I haven’t previously seen in my ten-plus years of analyzing appellate decisions: a bond appeal. Shannon was arrested for a violent sexual attack on a neighbor. A GDC judge found probable cause, certified the case to the grand jury, and admitted Shannon to bail pending trial.

 

The Commonwealth didn't like that last part, particularly since Shannon was a registered sex offender, so it immediately appealed the bail decision to circuit court. That court, in turn, set Shannon’s bond at $60,000, and directed that he have no contact with the victim. It also directed that he be supervised while on bail.

 

Still dissatisfied, the prosecution appealed on to the Court of Appeals. That presented something of an analytical problem on appeal. It wasn’t the absence of a decisionmaking standard; it was the absence of an explanation from the trial judge as to what he considered in reaching his ruling. The appellate court was being asked to evaluate the judge’s decision without knowing how he had made it.

 

The CAV nevertheless reversed and ordered Shannon held in custody pending trial. Here’s the ruling:

 

Upon consideration of the motions, briefs, exhibits, and record, and applying the requisite standard of review, the Court finds that the respondent failed to rebut the statutory presumption against bail under the circumstances presented.

 

Now it’s Shannon’s turn to appeal. The justices are faced with a similarly perplexing analytical problem. While the CAV said that it applied “the requisite standard of review,” it never specified which standard it applied. Since Shannon’s assignment of error claimed that the CAV applied the wrong standard, how do the justices evaluate this appeal?

 

It’s complicated, but the justices begin by assuming, without deciding, that the CAV used the wrong standard. That convention is familiar to those who follow appellate courts; it’s similar to a trial court’s role when ruling on a demurrer: “I will assume, without deciding, that these allegations are true, and then decide if they state a claim.”

 

The justices point to what surely must have been persuasive in the CAV – there’s a statutory presumption against bail in prosecutions for certain violent offenses, including the ones that Shannon was facing. Reaching back to view the record in the trial court, the Supreme Court finds today that the record doesn’t support a conclusion that Court of Appeals erred. That court had implicitly found that the trial judge had abused his discretion in allowing Shannon to post a bail bond and walk. The CAV implicitly found an abuse of discretion by the trial court, and this record is, today’s ruling notes, too sparse to support a reversal of that decision. The justices accordingly affirm the CAV, so Shannon will remain in custody pending trial.

 

At this point, I’ll back up and discuss the reason why this published order is required reading, no excuses allowed, for every trial judge in the Commonwealth:

 

There is no general requirement that trial courts must state for the record the reasons underlying their decisions. Nevertheless, in light of the public policy underlying the laws providing for prompt and meaningful review of bail decisions, a court making such a decision has a duty to articulate the basis of its ruling sufficiently to enable a reviewing court to make an objective determination that the court below has not abused its discretion.

 

Normally, trial judges don’t have to explain themselves. For example, with motions, they can simply say “Granted” or “Denied,” and then move on.  Usually they do explain; judges often set out their reasoning on the record, and many of them write published opinion letters. But they don’t have to do anything more than rule, and then adjourn court, if that’s what they want.

 

Not so anymore in bond cases. Henceforth, the Supreme Court expects trial judges to set out enough of their reasoning in bond rulings so that an appellate court can evaluate them. This part of the order brings a dissent from Justice McClanahan, who notes that if there’s going to be a departure from the general rule, it should come from the legislature, not from the Supreme Court. She notes that there are a few explanation requirements in the Code, but whereas the General Assembly can direct trial judges to explain, she thinks the SCV can’t.


Professional liability
There are so many twists and turns in Shevlin Smith v. McLaughlin that if I were to undertake a detailed analysis of all aspects of the case, I'd still be typing on Saturday. I'd better settle for the Readers Digest version, though I'll be sure to mention the key holdings. There are, as you'll see, a lot of them; this is probably the case of the day, in terms of future citations.

This is a legal malpractice case that arises out of a legal malpractice case. The appellee is an attorney who was wrongly convicted of sexual assault against his children during the course of a heated divorce. The kids later recanted, saying that their mother had put them up to it. But in the meantime, the lawyer had been convicted and served four years in prison. After receiving a new trial in a habeas proceeding, the lawyer was acquitted by a second jury.

He then hired counsel to sue his first criminal-defense lawyers, who practiced in two firms. Because of an oversight, one of the firms had lost its malpractice coverage. The insurer did offer the wrongly convicted attorney $50,000 as a goodwill gesture, in exchange for release of one of the law firms. Needing seed money for the litigation, the lawyer told his attorneys to take the offer, but not to release the other law firm. They did as he instructed; the settlement documents expressly reserved the plaintiff's right to continue to pursue the second firm.

Four months later, the Supreme Court handed down Cox v. Geary, in which it held that a legal malpractice claim was actually a contract claim, so Virginia's joint-tortfeasor statute didn't apply. Under common-law principles, the release of one obligor released all obligors. That meant that the second law firm got off the hook for no payment; case dismissed.

Now the lawyer got different counsel, to sue the lawyers who had filed the legal-malpractice claims against the criminal-defense firms. That second malpractice case proceeded to a jury trial, in which the plaintiff got a verdict for over $5 million.

The losing lawyers appealed; the successful plaintiff assigned seven cross-errors. Today, the justices have to sort all this out. As I noted above, I'm going to list the key holdings, rather than go into significant detail on them.

First, the lawyers get a key win when the Supreme Court rules that the trial judge should have sustained their special plea. This contains two component rulings. The first component is that a special plea can apply to only part of the plaintiff's case, instead of barring the whole litigation. The trial court had erroneously denied the plea because it would only bar some of the plaintiff's theories of recovery. The second component is that the attorneys were entitled to a form of limited immunity -- the judgmental-immunity rule recognized in several states -- insofar as they were acting in an unsettled area of the law. Before the Cox decision, a lawyer could very well have read the SCV's caselaw and concluded that one could cull out one of joint legal-malpractice defendants for settlement. 

In this regard, I found myself comparing this ruling with the qualified-immunity standard for constitutional claims under Section 1983. In those cases, police may be liable "for transgressing bright lines; not for bad guesses in gray areas." Here, the lawyers shouldn't be held liable because they exercised their judgment about how the Supreme Court would decide a close-call issue, and came to a plausible conclusion.

This doesn't end the appeal, because the plaintiff had wisely pleaded other theories of recovery that didn't relate to the outcome in Cox. For example, he pleaded that the defendant lawyers hadn't advised him about the ability to collect more than the offered $50K from the released attorney by forgoing the insurance funds and pressing the suit forward. The judgment in those respects wasn't appealed, so the case has to be remanded to allow a jury to sort out which of the remaining theories are viable. In that regard, the court today offers guidance on several issues that are likely to resurface if the case is tried again. Here are those rulings:

-- In assessing the damages recoverable in a legal-malpractice case, the jury must consider the collectibility of any damage award. That is, it should determine not merely how much a jury would have awarded the plaintiff in the first case, if it hadn't gone awry, but how much the plaintiff could have collected on that judgment. As today's opinion notes, "successfully prosecuting a claim to judgment is only half of the marathon that is redressing an injury in our judicial system."

-- In determining what damages were collectible, the burden of proof is on the defendant. If he wants to claim the benefit of an impoverished-tortfeasor defense, the defendant is the one who has to come up with evidence of that. There's a sharp division between the several states' appellate courts on this question. This ruling produces the court's only disagreement in this case, as Justice McClanahan dissents in part. She notes that proving the amount of damages has always been the plaintiff's burden, and she thinks it should remain so in legal-malpractice claims.

-- Since this is necessarily a contract claim, the plaintiff cannot recover non-pecuniary damages, such as pain and suffering. Those damages are uniquely recoverable in tort cases.

-- A superseding cause still bars recovery. Part of the plaintiff's damages sprang from time he spent in prison after an ill-advised and very brief escape attempt. He argued that but for the first defense lawyers' negligence, the issue of escape never would have presented itself. But the justices rule today that his decision to bolt was a superseding cause of that part of his confinement, so he can't recover for that part.

-- A plaintiff can't ask the jury for more than the ad damnum. This is a big one, and will apply in all case areas; not merely legal malpractice. The plaintiff sued for $6 million, but asked the jury to award him $10 million. No dice; the court today expressly rules that that's impermissible argument.

This is indeed an extraordinarily instructive case. And since we get a remand, it ain't over; the case will be retried unless the parties settle it.

Constitutional officers
The court resolves the question whether a sheriff's deputy is a local employee in Roop v. Whitt, in which a deputy alleged that he was fired for reporting corruption within the sheriff's office. If the deputy was a local employee, then the Code protects him from retaliation. 

The trouble is, sheriffs aren't beholden to local governments; they're independent constitutional officers. Although the applicable chapter of the Code doesn't define the term local employee, Justice Mims, writing for a unanimous court, uses dictionary definitions to conclude that it means employees of the locality, so a sheriff's deputy doesn't qualify.

There's an important preservation ruling here. The deputy had amended his pleading twice, evidently securing leave to do so both times. (An amended pleading that's filed without getting leave is a nullity under Mechtensimer v. Wilson.) At the hearing in which the trial court sustained the sheriff's demurrer, the deputy's lawyer orally requested leave to amend again, citing the liberal-leave provisions of Rule 1:8. The court refused that leave and dismissed the case with prejudice.

The justices today find that they can't reach this issue on appeal, because the lawyer didn't submit a proposed amended pleading and didn't describe in open court the way in which he proposed to amend. This is an important practice tip: A request for leave to amend isn't made in a vacuum. The best practice is to craft and tender the amendment that you want to plead. But at a minimum, you have to describe those amendments with enough detail that an appellate court can determine whether such an amendment would have been meritorious. Since this lawyer didn't do that, the appellant hasn't made a sufficient record.

One last point about this case. You may be tempted, upon reading the facts section of today’s opinion, to conclude that the sheriff is a ratfink who fired a whistleblower in order to cover up departmental corruption. Well, maybe he is, and maybe he isn’t. As with any appellate decision evaluating the sustaining of a demurrer, the court is working off only one side of the story; it views the facts as they have been asserted in the complaint.

 

But our judicial system relies on trials to sort out the truth. As far as I know, the sheriff never filed an answer to the details in the deputy’s pleading. He didn’t have to; the demurrer was enough to end the case. The real picture may turn out to be quite different from what the deputy has alleged. Of course, because of today’s ruling, we’ll never know; the import of today’s decision is that even this set of facts – egregious as they may seem – fails to state a claim for which relief can be granted.




PROGRAMMING NOTE

[Posted February 25, 2015] Here's the deal: I'm going to do the best I can.

I live and work in Virginia Beach. According to this morning's newspaper, I can expect one to three inches of snow overnight. According to Jim Cantore, it'll be more like five to eight. That throws a monkey wrench into tomorrow's opinion day in the Supreme Court of Virginia; I expect the court to hand down decisions from the cases argued in January, and maybe even the Yelp, Inc. v. Hadeed Carpet case that was argued in October.

It won't be a slow appellate-news day. But I might have a bit of trouble getting into the office, especially if Mr. Cantore is right. Accordingly, please bear with me; I'll cover the decisions tomorrow as quickly and as efficiently as I can.



 
         
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