REPORT ON TWO IMPORTANT APPELLATE ITEMS

 

(Posted March 18, 2024) There’s significant appellate news out of Richmond, coming from opposite sides of Ninth Street.

 

A tweak to the preservation-rescue statute

I learned today that the General Assembly has passed, and the Governor has signed, a bill that expands slightly the wording of the appellant’s old friend, Code §8.01-384. For years now, that statute has eliminated the need for a party to keep renewing arguments on each adverse ruling again and again until final judgment. The general premise is that once a judge rules against you, you aren’t deemed to have waived the argument unless you expressly do so.

Supreme Court caselaw has generally embraced this lifeline against a ghastly Rule 5:25 death. There are commonsense exceptions: A litigant can still waive an argument where he “has abandoned the objection or has demonstrated by his conduct the intent to abandon that objection.” That’s from Kellermann v. McDonough in 2009. But generally, the court has applied the saving provision where the appellant has received an unmistakable adverse ruling and hasn’t backed off.

Three years ago, the Supreme Court issued a remarkable opinion that shouldered aside the statute. In Lucas v. Riverhill Poultry, 300 Va. 78 (2021), a judge ruled in limine that the plaintiff could not use a proposed expert witness at the eventual trial. The circuit court added, in language that I found superfluous, that its order was “without prejudice to plaintiff, by counsel, moving the Court to reconsider its ruling based on developments at trial.”

How is that superfluous? Because rulings made days or weeks before trial – come to think of it, even rulings made during trial – are interlocutory, meaning the court can always revisit them until 21 days after final judgment. A ruling like that is by definition without prejudice to a party’s right to ask the court to rehear the matter while it retains jurisdiction.

At the Lucas trial, the plaintiff didn’t renew the objection, knowing that he had the protection of §8.01-384 in his back pocket. He never expressly withdrew or waived the earlier argument, so the statute should allow him to appeal the exclusion of the expert.

Except the Supreme Court didn’t see it that way. It described the original ruling as “preliminary” and held that the plaintiff “deprived the circuit court of an opportunity to make a final ruling on the admissibility ….” That resulted in a Rule 5:25 waiver.

I recall being astounded at this opinion, and my pals in the appellate guild were, too. We foresaw the need, after Lucas, for each trial litigant to reassert at trial each issue on which the court had ruled before trial, on pain of a waiver ruling that seemed to fly in the face of the statute.

But now the legislative cavalry has ridden to the rescue. The new law, HB901, adds a provision that a litigant need not “move for reconsideration in order to preserve his right to appeal a ruling, order, or action of the court, even if such ruling, order, or action is without prejudice to a motion to reconsider.” The specific language makes it unmistakable that the bill was expressly designed to reverse the Lucas ruling.

My one caution is that there’s no emergency clause in the bill, so the new terms in the statute won’t take effect until July 1, 2024.

 

New proposed rule on temporary injunctions

As I noted in an essay here back in 2013, Virginia has never adhered to a specific set of rules, or even guidelines, for a trial court to consider in deciding whether to award temporary injunctive relief. We have an unhelpfully vague statute that requires the chancellor to be “satisfied of the plaintiff’s equity,” but nothing like the specificity of the Winter v. NRDC doctrine in federal courts. That’s left lawyers and circuit court judges trying their best to divine a Virginia standard.

If you’re one of those frustrated litigants or jurists, be of good cheer: The Robes have heard your cries of anguish. The Supreme Court of Virginia has posted to its website a proposed new Rule of Court that would specify the factors that go into temporary-injunction analysis. In reviewing it, you’ll see a lot of highly familiar language, especially if you’ve litigated injunctions in federal courts.

The court has set a deadline of May 1, 2024 to receive public comment on the draft rule. This is what you’ve been waiting for; take them up on the offer to participate in the decisionmaking process by submitting your comments. Here, I’ll even make it easy for you: The e-address for comments is scvclerk[AT]vacourts.gov, with the @ symbol in place of the bracketed characters. You’ll need to insert, “Draft Rule 3:26” in the subject line.

 


A TRUNCATED OPINION DAY AT THE SCV

 

(Posted March 14, 2024) It’s opinion day! Sort of. The Supreme Court of Virginia decides two appeals this morning, both by published order. But there’s no new analysis; both Warren v. Commonwealth and USAA v. Estep are affirmed on the reasoning of the Court of Appeals. Warren is a DUI appeal involving a circuit court’s decision to strike a venireman for cause and its exclusion of evidence relating to a claimed defense of necessity. In a quirk of timing made possible by last month’s Leap Day, the Court of Appeals handed down its published ruling one year ago today. Estep holds that a driver’s actions in loading the trunk of a car in a hotel parking lot suffice as “use of a vehicle” for insurance purposes.

Both decisions come in one-page rulings; Justice Powell dissents from the Estep result, but Warren is unanimous. Both of these appeals come from the January session, seven weeks ago, and both, coincidentally, arose in the Chesapeake Circuit Court.

 


REPORT ON APPELLATE DEVELOPMENTS

 

(Posted March 9, 2024) A quiet week at Ninth and Franklin gives us time to once again scan the appellate landscape for news.

Legislature fills appellate seats

On Thursday, the General Assembly elected two new judges to seats on the Court of Appeals of Virginia. Judge Bob Humphreys retired at the end of 2023 and Judge Glen Huff will do the same at the end of this year. That, in case you’re keeping score, would deprive the Commonwealth’s largest city, my beloved Virginia Beach, of 100% of its representation on the court. Fortunately, it’s not to be: The legislature has chosen Circuit Court Judges Steve Frucci (also from Virginia Beach) and David Bernhard (Fairfax) to fill the vacancies. Judge Frucci will start his new job later this month, while Judge Bernhard will step up next January. I know both men and am very happy at this news.

Appellate bonds in the news

Level with me: Did you ever expect to see a header like that? Suspending bonds generally occupy one of the dusty sub-basements of public attention, far from the public eye. We appellate geeks know about them, but the knowledge that we have is arcane by public standards.

These days I find that I’m answering questions from my pals about the purpose, effect, and workings of these bonds. The bonds are in the news because of former President Trump, of course; he has recently suffered adverse monetary judgments aggregating to nearly half a billion dollars. I read yesterday that he has secured a bond for the smaller of the two judgments, posting one with a penalty of around $90 million. The larger judgment, in the $400 million range, will present greater difficulty, in part because few bonding companies will be willing to take a risk like that.

In one important respect, the bonding situation would be different if the judgments had come down in our fair Commonwealth. Code section 8.01-676.1(J) caps suspending bonds at $25 million. That’s per judgment, of course, so if the two cases had both arisen in Virginia, he’d still be on the hook for $50 million worth of security. But not a half-billion. 

My best guess is that this limitation was part of Aunt Virginia’s efforts to be seen as a business-friendly state. The Trump judgments illustrate the weakness of this provision, perhaps unforeseen by the 2000 General Assembly that inserted the cap. A judgment creditor should be entitled to adequate security if the debtor wants the privilege of appealing without paying the judgment (or being subject to execution). The Virginia system would allow a judgment debtor in this situation to bond off a tiny portion of a huge judgment, giving the creditor no security at all for the remainder of what the trial court says it’s entitled to recover.

A bittersweet moment

A week and a half ago, I appeared in the Supreme Court of Virginia to argue a merits case. It was a medical-malpractice appeal about a refused jury instruction. The primary questions are preservation of the appellate issue and whether the subject of the offered instruction was covered by other instructions.

As appeals go, that doesn’t sound all that unusual. It’s significant for me because, in all likelihood, that will be my last argument to the full court before I call it a career early next year. I foreseeably may rise to argue a petition or two to writ panels later this year, but given the time it takes for an appeal to mature to a merits argument these days, I can’t see another one on a short-enough horizon.

I owe a debt of gratitude to the Chief Deputy Clerk, Basil Tsimpris. He was kind enough to place the case in a privileged position, the last case of the day. That meant that I got to experience the honor accorded to last-case advocates: The justices came down from the bench to shake hands with counsel at the end of the argument. The other two appellate courts in Richmond — the Court of Appeals of Virginia and the Fourth Circuit — do that after each oral argument; but the justices do so only at day’s end.

As I’ve mentioned often, the justices are all very pleasant people, and they were enormously gracious to me when they greeted me on this occasion. For a very long time, I’ll treasure the memory of those two or three minutes.

After the justices filed out, heading back toward their robing room, I packed up my satchel and then stepped briefly back to the lectern, lingering for a moment. I thought of the roughly two dozen justices before whom I’ve appeared over the years — many of them even then gazing down wordlessly from the walls beside and behind me — and remembered their consistent courtesy to me.

The six square feet behind that lectern — a space roughly three feet wide by two feet deep — really are the best place I know to practice law.

 


ANALYSIS OF FEBRUARY 29, 2024 SUPREME COURT OPINION

 

(Posted February 29, 2024) The Supreme Court today decides Commonwealth v. Smith, an appeal of convictions for rape and object sexual penetration, where the victim was a child under the age of 13. You’ll readily appreciate that this is a very serious charge; the mandatory sentence for the charges is life in prison. The defendant appealed to the Court of Appeals, which reversed the convictions, holding among other things that the trial court erroneously denied his request for funds to hire an expert.

The Commonwealth sought and received a writ, and today the Supreme Court reverses and reinstates the life sentences. The justices find that the trial court acted within its discretion; it did allot some funds for one expert who, for reasons not apparent in the record, didn’t end up testifying or even appearing to proffer his evidence. The Supreme Court also agrees with the circuit court’s decision not to permit a law professor to testify about the prevalence of false confessions and the susceptibility of some suspects to a specific interrogation technique. The justices conclude that this is really psychiatric evidence; not a law professor’s turf.

The court turns aside an Eighth Amendment challenge to the mandatory life sentence. Justice McCullough, writing for a unanimous court, observes that stiff prison sentences are fairly common among our sister states, and there’s nothing about this crime that militates against life in prison.