(Posted July 19, 2018) The heat of summer won’t dissuade the justices from giving you beach-reading material; today we see four new published opinions. Grab your sun block and let’s dig in.



Elementary principles tell us that a court cannot enter a judgment against a party over whom the court has not acquired personal jurisdiction. This is usually done by serving process. But lawyers know well that if the defendant voluntarily enters a general appearance in the case, service of process is unnecessary; that voluntary act waives service. Today, in McCulley v. Brooks & Co. Gen. Contractors, the justices address a related issue: What if the alleged general appearance comes after a default judgment?

This appeal stems from a routine commercial landlord-tenant collection. Landlord rented office and warehouse space to Tenant, and got Guarantor to sign as well, to secure payment. When Tenant didn’t make lease payments, Landlord sued them both.

Landlord served Guarantor by posting at his usual place of abode. That service method also requires that the plaintiff mail the defendant a copy of the process ten days before getting default judgment. Landlord forgot to do that (at least the record doesn’t establish that any such mailing ever went out). Appearing in court without either defendant, Landlord got a default judgment against both.

That led to proceedings to execute on the judgment. Landlord summoned Guarantor to appear for debtor’s interrogatories before a commissioner in chancery. Soon thereafter, the commissioner got a call from Guarantor’s lawyer, asking to reschedule. Why, sure, the commissioner answered. The lawyer then filed a motion to vacate the judgment, stating in all caps that he was making only a special appearance to contest service of process.

The commissioner rejected a request to stay the DIs pending resolution of the motion to vacate, and the Guarantor grudgingly cooperated. Eventually the parties got before a judge, who ruled that the initial service was defective, but that the Guarantor had waived any objection to it by “making a general appearance in this case through his post-judgment participation in Debtor’s Interrogatories.”

On appeal, the Supreme Court begins by noting that failing to satisfy the mailing and certificate requirements in the Code “renders any default judgment obtained void for lack of personal jurisdiction.” The question today is whether Guarantor’s responding to the DI summons waived that. The court holds that it did not, and accordingly reverses the judgment in favor of Landlord.

The principle is fairly simple: A void judgment has no vitality, and cannot be revived afterward. Justice Kelsey, who composes today’s opinion, explains in this memorable language:

A mere general appearance after the entry of a void judgment is too little, too late, to save the judgment. Just as medicine may cure a sick man of a fatal disease but not revive him after his burial, a litigant can “cure” the absence of personal jurisdiction by making a general appearance prior to final judgment but cannot resurrect a void judgment thereafter.

There’s actually a split in other jurisdictions on this point; today, the SCV adopts what look to be the majority view. The opinion goes on to reject the claim that the voluntary participation estopped the Guarantor from claiming that the judgment was void, drawing support from the Restatement (Second) of Judgments in doing so.

Justice McCullough files a concurring opinion, agreeing fully with the majority, but pointing out that there’s a pregnant question here: Can appearance before someone who’s not a judge constitute a general appearance? Before you answer that a commissioner is a quasi-judicial agent, how about a mediator? Does a defendant waive service of process by mediating a dispute? How about visiting the Clerk’s Office? The concurrence doesn’t try to resolve these issues, concluding that “A future case will have to answer that question.” But the question is tantalizing for those procedure geeks among us.


Sexually violent predators

There’s an important procedural holding in Commonwealth v. Giddens that will have application beyond the SVP field. This, then, is an opinion worth reading even if you don’t handle this kind of case.

Giddens qualified for SVP review based on two convictions. A psychologist evaluated him and gave him a score of five on something called the Static-99 test. Anyone scoring at least five is eligible for involuntary commitment beyond his scheduled release date.

In circuit court, Giddens moved to dismiss, claiming that his test score had been calculated incorrectly. One of the questions is whether the subject has ever lived with a lover for at least two years. This, presumably, is an indicator of stability; if the answer is yes, no points are assessed, but if it’s no, the subject gets one point.

At a hearing, Giddens testified that he had lived with two different women – one of whom he had married – for more than two years each. His brother testified and corroborated that. The Commonwealth responded that this testimony was inconsistent with its records, including reports from two doctors.

The trial court granted the motion to dismiss, finding that the Commonwealth had failed to meet its burden to prove that the test had been scored correctly. The justices granted a writ to the Commonwealth.

On appeal, the Supreme Court notes that the Commonwealth is entitled by statute to a presumption of substantial compliance with the testing procedure, absent proof of gross negligence or willful misconduct. Giddens didn’t claim willful misconduct, so the issue today is whether the evidence at the hearing showed that the Commonwealth was grossly negligent in calculating the score.

In Virginia, “a claim for gross negligence must fail as a matter of law when the evidence shows that the defendants exercised some degree of care.” The court today points out that there was conflicting evidence in the trial court – the two brothers’ testimony differed from the Director of Corrections’ records and Giddens’s previous evaluations. In that event, and given the statutory presumption, the justices unanimously conclude that the Director wasn’t grossly negligent in calculating a score of five. The court thus reverses and remands the case to the circuit court for trial on the merits.

The concept of gross negligence has been in a long; slow decline here in Virginia. If a defendant exercises even minimal care, the justices have ruled that there’s no gross negligence. That’s true even after the fact; in Elliott v. Carter, for example, the justices found that a post-negligence attempt to rescue the victim was sufficient to minimize the earlier negligence – which earlier negligence can easily be described as gross. Today’s author, Justice McCullough, dissented from Elliott, but he cites it – indeed, in the quoted passage at the beginning of the paragraph immediately above this one – in holding that there’s no gross negligence here.

On remand, Giddens may try again to show that he got the wrong score. Today’s opinion points out that while the two brothers testified at the hearing on the motion to dismiss, neither of the two women did so. I have at least some doubts about whether either of those women will be willing to help Giddens now, but it’s at least possible.

Criminal law

There’s a fascinating double-jeopardy issue in Severance v. Commonwealth, and it produces our only split decision of the day. Severance committed three murders in Alexandria, two of which occurred three months apart.

The Code describes 15 separate offenses that can constitute capital murder. Two of those are:

  1. The willful, deliberate, and premeditated killing of more than one person as a part of the same act or transaction;
  1. The willful, deliberate, and premeditated killing of more than one person within a three-year period; …

There’s no claim that these murders were part of the same act or transaction, so subsection 7 doesn’t govern this case. But at least two of the murders qualify for treatment under subsection 8. Severance killed two people in a willful, deliberate, and premeditated fashion within three years of each other.

The question in this appeal is how many capital offenses that constitutes. More specifically, under the Double Jeopardy Clause, can he receive two life sentences (the prosecution waived the death penalty) for these two murders?

Here are the competing theories. Severance contended that the criminal act proscribed in subsection 8 is murdering two people under certain conditions, including temporal proximity. He only did that once, so he can only be punished once – a single life term is his maximum sentence. The Commonwealth responded that he murdered victim #3 within two years of murdering victim #2, and he murdered victim #2 within three years of murdering victim #3. That’s “two murders, two convictions, two punishments.”

The Court of Appeals adopted the Commonwealth’s view, and today, in a 6-1 decision, the Supreme Court agrees, affirming the two life sentences that Severance received in the trial court. The court holds that Severance’s Blockburger argument is irrelevant, because that only addresses two punishments for the same act. This, the majority finds, was two acts.

In dissent, Justice Powell invokes the mathematical commutative principle: a+b = b+a. The only difference between the two indictments here was that they recited the names of the victims in a different order. That means that they are, analytically, the same act. Justice Powell believes that while the Commonwealth was free to pursue both convictions – Severance’s lawyer acknowledged as such – it could only seek punishment for one of them.

I found this to be a very interesting analytical exercise, and it’s the latest in a series of appeals involving fascinating thrusts and ripostes between Justice Powell and Justice Kelsey, who writes today’s majority.


The court disposes of a challenge to a will in Canody v. Hamblin, an appeal arising in Nelson County. In the spring of 2014, the testator went to his credit union and asked the folks there if they would witness and notarize a will for him. Since he was a good customer, they were happy to help; two witnesses and a notary formalized the process for him, signing at the end of the three-page document.

After the testator died, his son, who perceived that this will treated him ungenerously, contested its admission to probate. He noted that the three computer-generated pages were not numbered, and no paragraphs wrapped around page breaks. That made it easy to forge the first or second pages. The local clerk evidently agreed and refused to probate the will. That led to this court action.

At trial, the circuit court did two things that spur this appeal. First, it permitted testimony from one of the testator’s close friends. That witness described a conversation he had with the testator, describing how the testator wished to allocate his bounty. That description matched up with the provisions in the contested will.

The son contended that extrinsic evidence is not admissible to establish whether a will is forged or not. But the Supreme Court rules today that that was proper for the admittedly limited purpose for which the trial court considered it: “to establish that the first two pages of the will were entirely consistent with [the testator’s] stated testamentary intentions and to refute the assertion that they were not part of his original will.” The testimony isn’t admissible to prove “the substantive fact of forgery,” but as corroboration, they’re fine.

The trial court’s second ruling was to admit the three-page document without affirmative proof that those three pages were the entire will. The son urged that each page had to be fully authenticated. The witness and the notary who testified recognized their own signatures, but each said they knew nothing about the first two pages. In this day of computers, the son continued, it’s vastly easier to forge pages and substitute them – in comparison, say, with the days of handwritten or typescript wills.

The justices turn aside this challenge, too. They find that there is no positive evidence of forgery or alteration; just supposition that it might have happened. The only thing a witness has to do when testifying is to recognize his or her own signature; that’s enough to create a presumption that the will was properly executed. Since the son never rebutted that presumption with evidence – a mere opportunity for forgery doesn’t qualify – the Supreme Court affirms the circuit courts judgment admitting the will to probate.

One last point here: The trial judge comes out of this looking especially good. Justice McCullough’s opinion for a unanimous court describes his “thoughtful and thorough memorandum opinion” admitting the friend’s testimony into evidence, and cites with particular approval his observation on authentication. Praise from upstairs comes all too seldom; I trust that 24th Circuit Judge Michael Garrett will appreciate this opinion all the more for it.




(Posted July 18, 2018) One of the fringe benefits of being a member of the ABA’s Council of Appellate Lawyers is that it comes with a subscription to The Journal of Appellate Practice and Process, the nation’s premier law review for those of us who speak Appellate. The most recent issue arrived the other day, and I’ve begun to dig into the five articles. The longest of those, by a wide margin, reminds me of a topic that I’ve been meaning to address for some time now: the language of appellate advocates and courts.

Here is how early appellate judges in Virginia expressed respectful disagreement with each other:

But no such argument was addressed to the court, nor any such reason assigned in the judgment; and with the greatest respect for the opinions of my learned brethren, I must be allowed to say that I think the construction thus given by them is rather a strained construction of the decision of the court.

Lee v. Murphy, 22 Gratt. (63 Va.) 789, 807 (1872) (Bouldin, J., dissenting). Here’s an even earlier one, from the pen of one of Virginia’s greatest legal titans:

My brethren being divided in opinion, it becomes my reluctant duty to express my sentiments, for the first time, upon the subject of these revolutionary claims. And I shall begin by saying, that notwithstanding the very strong views presented by my brother Brockenbrough in the opinion just delivered, and by my brother Brooke in conference, I still incline to the opinion, that the language of the act of May 1779 cannot be otherwise construed, than to place the continental officers on the same footing with the state lines as to half pay, and to include not only those who became supernumerary afterwards, but those also who had become so before the act.

Tatum’s Exec’r v. Commonwealth, 9 Leigh (36 Va.) 56, 75 (1837) (Tucker, P.J.).

And that brings us to the topic of the new JAPP article: the acid pen of the late Justice Nino Scalia. The piece is entitled, “Disrespectful Dissent: Justice Scalia’s Regrettable Legacy of Incivility.” It’s 96 pages, chock-full of examples of the late Justice’s invectives – from which there’s a lot to draw.

The journal devotes a full page (18 J. App. Pract. & Proc. at 250) to a long block quote from Scalia’s dissent in Obergefell v. Hodges, in which he repeatedly mocks the majority, describing the ruling of the Court as containing “silly extravagances” and “showy profundities” that are “profoundly incoherent.” He concludes with this:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Obergefell v. Hodges, 135 S.Ct. 2584, 2630 n.22 (2015) (Scalia, J., dissenting).

Well, now.

Anyone with a pulse nowadays has seen this kind of abusive language in public discourse; check out the comments section in any online forum on political topics, or just follow the president’s Twitter feed. Has it become so ubiquitous that incivility like this now pervades even judicial opinions?

Not yet, it hasn’t; at least not around here. Jurists in our appellate courts can and do express vehement disagreement, but I’ve come across nothing remotely like Scalia’s demeaning approach to one’s colleagues. Here are three examples of what passes for a stinging rebuke in Virginia; see how mild they seem in comparison:

With this Court’s ever evolving limitations upon the power and duty of trial judges to order remittitur, for all practical purposes the last nail in the coffin of remittitur has been driven, sounding a death knell for the important safety-valve that remittitur has represented in operating the system of jury trials in Virginia.

Allied Concrete v. Lester, 285 Va. 295, 317 (2013) (McClanahan, J., dissenting).

The majority opinion establishes a lamentable precedent by casting adrift the determination of “judgment and discretion” from its firm moorings within authority granted by well-reasoned departmental guidance such as the General Order.

McBride v. Bennett, 288 Va. 450, 472 (2014) (Mims, J., dissenting).

In its attempt to rebut my observation that its logic is circular, the majority succeeds in further muddying the waters.

Levick v. McDougall, 294 Va. 283, 314 (2017) (Powell, J., dissenting). Indeed, respectful references to opposing opinions are commonplace in Virginia Reports, such as where Justice Kelsey, penning the majority in Levick, writes in understated terms that “On several points, we must regrettably part company with our dissenting colleagues.” Id. at 297.

Why the difference? Why do our most vigorous disagreements seem like examples of brotherly and sisterly love, compared to Scalia’s diatribes? One reason is that Scalia was, if not sui generis, at least very rare. (Even Circuit Judge Richard Posner’s most stinging rebukes pale in comparison.) We each have a place in our mind where the compositional superego, that hand-brake on our urges to vent, resides. In Scalia’s mind, that space was assuredly empty. And make no mistake: His fans loved it. He was skilled with a pen and ungoverned in his message.

I sense that there’s an unwritten ethic among most appellate jurists: The parties, and sometimes even the lawyers, may abuse each other, but we’re above that. They write in a dignified way because they’re in a serious setting. They’re also writing for posterity. The author of the JAPP article says this about Scalia: “Regrettably, his many descendants will someday look through the United States Reports and read the intemperate words written by their ancestor. What will they think of his legacy?” 18 J. App. Pract. & Proc. at 251.

The Supreme Court and Court of Appeals of Virginia are, by all the accounts I’ve heard, extraordinarily collegial. The judges and justices can disagree without being disagreeable. From what I’ve seen, that civility bleeds over into the Virginia appellate bar; we are brethren and sistren and treat each other as such. That goes for our writing, too; those thankfully rare examples of intemperate language in appellate briefs are overwhelmingly likely to come from the pens of trial lawyers who decide not to hire an appellate specialist.

Even so, I fear that the recent rapid downward turn in the level of American social discourse might someday affect judicial opinions generally. The language of populism may never truly invade the appellate courtroom, in which case I’ll be content. But schoolyard-level attacks have become more normalized in our culture. As Michael Winship, the former president of the Writers Guild of America East, wrote recently, “I yearn for a society in which civility rules, but these are not civil times.” It isn’t impossible that judicial opinions might eventually trend in Scalia’s vitriolic direction.




(Posted July 5, 2018) The Supreme Court of Virginia hands down a single published opinion this morning. The parties argued Barr v. Atlantic Coast Pipeline at the end of February; today’s decision ends a three-year battle between several Nelson County landowners and the owners of a Delaware company.

Lawyers and judges are not always universally admired by members of the general public, for a variety of reasons. One of those is the fact that, on occasion, we employ counter-intuitive definitions for ordinary words. Judicial decisions occasionally hold that shall sometimes means may (for a recent example, see Rickman v. Commonwealth from December 2017). The SCV held in February 2015 that the word above in a statute actually means above or below (Landini v. Bil-Jax). Today, a majority of the court rules that in the context of surveying access, the word and actually means or. While judicial decisions explain these incongruous interpretations, the general public usually just shakes its collective head and wonders how anyone could toss aside basic rules of English.

Here’s the setup: Atlantic Coast wanted to enter onto several parcels in 2015 to survey the properties, so it could identify the best route for a planned natural-gas pipeline. By statute, it can ask owners for permission to enter. If they say no, the company can give notice of its intent to enter, specifying the date or dates of entry, and then go ahead and conduct the surveying work.

Atlantic Coast was unable to get these landowners’ permission to enter their parcels, so it sent out notices. To be extra-special-cautious, the company filed a declaratory-judgment petition, seeking a judicial declaration that it had the right to enter. (In my opinion, that’s a very sensible approach.) The owners demurred on two grounds. First, they asserted that the notices gave more than one date for entry, not a single date. Second, they claimed that the surveying work didn’t meet the requirements in the Virginia statute.

The second issue is the real heart of today’s ruling. The relevant statutory text authorizes public service companies to:

make such examinations, tests, hand auger borings, appraisals, and surveys for its proposed line or location of its works as are necessary (i) to satisfy any regulatory requirements and (ii) for the selection of the most advantageous location or route, the improvement or straightening of its line or works, changes of location or construction, or providing additional facilities …

The primary issue in this appeal is the word and, located between parts (i) and (ii). It’s important because Atlantic Coast had only one basis for needing to enter: to select the most advantageous route. The owners argued that the right to enter must be based on both needs – that’s what the word and means – so the absence of a regulatory need means the company had no right to enter before condemning.

A trial judge disagreed and ruled in favor of Atlantic Coast. Today a divided Supreme Court agrees and affirms. Justice Powell writes for the majority. She disposes of the one-date requirement, noting that in last year’s decision in Chaffins v. Atlantic Coast Pipeline had required only “dates certain,” not a single date for performance of all the work. Atlantic Coast’s specified windows were reasonably narrow, and many of them overlapped, so the court finds this aspect of the notices to be appropriate.

As I indicate above, the real issue here is that troublesome and. The majority finds that, viewed in context, the word actually means or here. There are judicial decisions that permit that counterintuitive interpretation, and the court rules today that this situation falls in that class of decisions.

There are four rationales for this ruling. First, the court finds that viewing the requirements as alternatives facilitates the clear legislative intent, which is to permit pipeline companies to create a workable plan to build an important public project. Second, a literal interpretation of and here would render other parts of the statute meaningless. Specifically, some of the statutory reasons for entry occur before construction and some are after; interpreting and as conjunctive would mean that the later-phase work would never be relevant. Third, requiring that work satisfy both requirements would mean that the company couldn’t do any work outside the narrow regulatory requirements; that means that the second requirement would be coextensive with the first, and the company would lose all discretion “for no discernible purpose.” And fourth, the legislature has used and in both the conjunctive and disjunctive forms in the same sentence.

Late last year, the Supreme Court handed down a 4-3 decision in Levick v. McDougal, involving the legitimacy of a wedding that the parties celebrated before they went out and got a license. I found that case utterly fascinating, because of the marvelous back-and-forth between Justice Kelsey’s majority opinion and Justice Powell’s dissent. Today those same combatants go at it again, this time with Justice Kelsey alone in dissent. The exchange is just as vigorous, and just as fascinating to follow, as it was in Levick.

There are several components to the dissent’s argument, but the theme is that taking rights by condemnation is supposed to be hard, because of the importance that we place on ownership of private property. To exercise the right of eminent domain, a condemnor has to follow statutory requirements to the letter.

Justice Kelsey points out that, pursuant to federal law, a pipeline company doesn’t acquire the power of eminent domain until it gets a permit. This company sought access to the owners’ properties long before it got a permit. The dissent points out that last year’s decision in Palmer v. Atlantic Coast Pipeline had noted that companies “vested with eminent domain authority,” are granted the right of entry. That authority doesn’t vest until the company gets a permit, so it can’t exercise the right of entry until then.

The dissent then tackles the four-pronged analysis in the majority. First, the legislature could well have intended that both conditions occur before the company has the right of entry. Second, the phrase regulatory requirements in the Virginia statute doesn’t say “regulatory requirements required to obtain the certificate,” and agencies can require additional surveys after the initial construction. Third, Justice Kelsey practically erupts at the concept that pipeline companies would lose all discretion for no reason:

No discernible purpose? What about the legislative purpose to withhold from a pipeline company the legal license to trespass onto private property when no “regulatory requirements” make it “necessary” to do so …?

Finally, the dissent argues that the use of and in the conjunctive in the same sentence indicates that that’s the natural reading of the word here, too. Substituting a disjunctive use in the other part of the sentence produces an absurd result; interpreting and to mean and in this part is perfectly understandable.

I’ll close by noting two things that aren’t present in today’s opinion. First, in last year’s Palmer decision, the landowner wound up waiving what looked like a killer argument: Virginia law authorizes only Virginia companies to exercise the powers of public-service companies, including the right of entry at issue here. Atlantic Coast is a Delaware company. I expected that objection to be front-and-center here; but no. The landowners raised the objection in their demurrer to the initial DJ action, but when Atlantic Coast filed amended pleadings, the owners didn’t renew it. At some point, the justices will confront what looks like a real barrier to this company’s work here, but this isn’t the case.

The second thing missing is the chief justice, who sat this case out. (Senior Justice Millette sat in for him.) The likeliest explanation for that is the fact that this case originated in the chief justice’s home county, and he probably knew one or more of the appellants, so he recused himself.





(Posted June 29, 2018) Now that the dust is starting to settle from all that federal appellate news this week, it’s safe to return to Virginia courts. At the midpoint of 2018, let’s see what the Virginia appellate numbers show.




The Supreme Court of Virginia has handed down 34 published opinions and orders, and 12 unpublished orders. For comparison’s sake, the court decided 79 appeals by opinion and 59 by order in calendar 2017.



The court’s website lists 49 writs that have been granted since the beginning of the year. It is conceivable but not likely that there may be a couple more that aren’t showing up on the page because they’ve already been decided. (The court removes appeals from the writs-granted page after an opinion comes down.) Last year, the court granted 112 writs, including one certified-question case.


Upcoming panels and sessions

The justices will convene three more sets of writ panels in 2018, in addition to the three that are already in the books. In late August, we’ll get the annual road shows, where the court sends two panels out of Richmond to hear arguments. This year’s road shows will convene in Lovingston (Nelson County) and here in Virginia Beach, both on August 30. We’ll also see one in Richmond, probably on August 29. After that, conventional panels (all in the Supreme Court Building in Richmond) will meet October 16 and December 4.

There are two sessions (where lawyers argue merits appeals to the full court) left: the weeks of September 10-14 and October 29-November 2. Four sessions are already in this year’s rearview mirror.


The David/Goliath Index

As I promised you on May 11, I will quarterly announce how the Big Guys and the Little Guys are faring at Ninth and Franklin. (See that essay for a description of the concept.) For the second quarter, David won four appeals in published opinions and Goliath won eight times, for a D-GI of 33/67. While that may sound lopsided, David actually has won almost twice as frequently as he did in 2017 and 2016. For the year, the Index is 32/68.




Thus far the CAV has decided 29 appeals by published opinions and 137 by unpub. (The CAV releases far more of these decisions because by statute, it has to explain the reasons for each ruling. Most appeals in the SCV die with a one-sentence refusal order that virtually no one sees.)


David-Goliath Lite

It’s possible to calculate something of a David-Goliath Index for the Court of Appeals, too, using two case areas: criminal appeals and Workers’ Comp cases. The court has decided 12 Comp appeals and the employee has gone 4-8, resulting in a 33/67 D-GI in that field.

In the other field, Goliath is running away with it. The prosecution has won 89 out of the 97 criminal decisions thus far in 2018; that adds up to an Index of 8/92.