APPELLATE NEWS AND NOTES
(Posted November 8, 2019) Here’s a glimpse around the appellate landscape.
SCV calendars remarkable motion argument
I won’t claim that I’ve seen it all, even within the narrow confines of Virginia appellate practice. But it takes something highly unusual to generate the reaction I felt when I learned yesterday – through the kindness of Virginia Lawyers Weekly’s Peter Vieth – that the Supreme Court of Virginia will next month hear oral argument on a motion. That’s so far out of the ordinary that I just had to dig for more details.
In addition to the many incoming case filings they process, the justices adjudicate numerous motions each year. In 2018, the court received over 1,300, usually for things like extensions of time, amendment of briefs, or leave to proceed in forma pauperis. To the best of my knowledge, the court has always disposed of those in the manner provided in Rule 5:4. A panel of the court considers the motion and any response that the other party may file, then issues an order adjudicating it. The rule expressly says that the parties don’t get oral argument on motions.
Well, it actually says more than that. The rule’s wording is, “No motion shall be argued orally except by leave of this Court.” But I had never heard of the court’s granting such leave, ever, until yesterday.
The litigation may be familiar to you if you read VLW. The court granted a writ early last year, and the appellant duly filed the opening brief. Two weeks before the due date for the brief of appellee, the appellee’s lawyer moved to stay proceedings under Code §30-5, since its lawyer is a member of the General Assembly. If you know about that statute, the continuance is automatic; the mere invocation of the request means that the court must grant it. The SCV accordingly extended the due date for the brief of appellee until 30 days past the end of the 2018 special legislative session.
Except that day never arrived. Technically, the legislature never adjourned sine die from that session; it remained in session through and including the 2019 regular session and thereafter. The appeal languished for a year and a half before the appellant got tired of waiting and filed a get-on-with-it-already motion, asking the court “to compel counsel for the appellees to file his response to the appeal.” The motion recites that the lawyer-legislator had, in the intervening time, found time to appear in local trial courts a couple hundred times.
Under standard Rule 5:4 practice, a respondent to a motion has ten days to file a response. In what was probably a poor judgment call, the appellee didn’t respond, thus adding fuel to the accusation that the appellee was ignoring the appeal. By last week, the justices had seen enough.
On October 30, the court issued a two-page order, directing the filing of letter briefs and scheduling the motion for hearing on the next writ-panel day, December 3. Underscoring the importance that the court places on this issue, the hearing won’t be before a three-justice panel, but before the full court. (As far as I know, the order isn’t available on the court’s website. If you want a copy, contact me and I’ll forward it to you.)
For appellate practitioners, the standard reaction to this news is “Wow!” This motion carries the potential of an inter-branch dispute that we’ve never seen before; it may be unsurprising that the court settles on a procedure that we’ve never seen before, either. And it makes sense that an issue of this magnitude would justify a hearing by all seven justices.
I won’t miss this spectacle; I have a petition on the December 3 writ panels, so I’ll be in Richmond anyway, but I emphatically will be in the courtroom to watch this play out. Of course, the appellee may pull the plug on the hearing by the simple expedience of going ahead and filing the merits brief, assuring that this motion ends not with a bang but a whimper.
On a couple of recent occasions I’ve written to urge Virginia appellate lawyers to sign up for next week’s ABA Appellate Summit in Washington, DC. It is, in my view, the best nationwide meeting of the appellate bench and bar each year.
If you postponed deciding whether to attend, the decision has been made for you: For probably the first time ever, the Summit is sold out, with over 400 registrants. If you’re experiencing non-buyer’s remorse, next year’s Summit will be in Austin, Texas.
Two published orders from the SCV
Yesterday the Robes decided two appeals by published order.
In Schmuhl v. Commonwealth, the court affirms a conviction of kidnapping, burglary, malicious wounding, and a companion firearms charge. The court does so summarily, adopting the holding and the reasoning of the Court of Appeals in a half-page order.
In Spruill v. Garcia, the court agrees with the appellant in ruling that the trial court erroneously admitted documentary evidence over a hearsay objection. But this proves to be a hollow victory as the court goes on to find that the admission of the evidence was harmless error. The information in the records mirrored the contents of fully admissible live testimony, so the justices rule that the error didn’t affect the outcome, and affirm the judgment.
A PIONEER STEPS ASIDE
(Posted November 7, 2019) There was no fanfare; no significant public announcement. Instead, at the beginning of the final oral argument of last week’s October session of the Supreme Court, Chief Justice Don Lemons asked the appellant’s counsel to give him a moment. There, before what must have been a very small audience — few people outside the immediate litigants stick around for the last argument of the day — he announced that Senior Justice Liz Lacy has decided to end her tenure as a Senior Justice of the Court, and this would be her final time participating in a session of the full court
Justice Lacy is a true pioneer: Roughly ninety justices had occupied a seat on the court before she arrived, all of them men. She was our Sandra Day O’Connor, a mold-breaking justice who broke up what had been the exclusive province of male jurists.
In my experience, she always displayed a welcome demeanor. Her questions were tough but fair, and it was clear that she was asking not to make a clever point but genuinely to find out what a party’s position was. No advocate who appeared before her got the impression that she had treated that advocate with anything short of respect. I’ll miss her.
The chief justice’s announcement indicated the possibility that Justice Lacy may participate in an upcoming writ panel, presumably the one on December 3, but this would be her last merits docket. I infer that this means that her full retirement will take effect at the end of the year.
From a practical standpoint, this development leaves the Supreme Court with precious few senior members. The Code authorizes a maximum of five at any one time. With Justice Lacy’s withdrawal, that leaves the court with just three: Senior Justices Charles Russell, Lawrence Koontz, and Lee Millette. The court will feel that shortage most acutely during writ panels, when it divides into groups of three (with sometimes a fourth in one panel). Justice Russell usually winters in Florida, so for the coming cold-weather panels, it’ll require all hands on deck if the court will continue to split into three groups of three justices each.
ANALYSIS OF OCTOBER 31, 2019 SUPREME COURT OPINIONS
(Posted October 31, 2019) Just in time for Halloween, the Supreme Court of Virginia delivers a bag of goodies today, as we get four new published opinions.
When a court convicts and sentences a defendant, but suspends part of that sentence without indicating whether, or for how long, the defendant must be on good behavior, is the defendant still on the hook? And for how long? The court answers those two questions in Burnham v. Commonwealth this morning.
Burnham received suspended sentences for one felony and one misdemeanor in 2008. The sentencing order imposed a term of good behavior and placed him on supervised probation for a year. He evidently didn’t get the message, because the next year he faced a revocation proceeding. This resulted in resuspended sentences and a new, indefinite period of probation, but no express requirement of good behavior. He managed to struggle through this process to the point that he was released from probation in 2011.
All that goodwill he thus generated collapsed in 2015 when he was convicted of two new felonies. That brought on a new revocation proceeding for the original sentences. In response, Burnham claimed that the old sentences were now beyond the court’s reach: He had been released from probation, and besides, the second order superseded the first, and that second one didn’t require him to behave. An unimpressed trial judge revoked the suspension and then – surprise! – resuspended both sentences in full. Burnham went back on probation and now faces another ten-year period of good behavior.
The Court of Appeals was unmoved and shrugged off his appeal, but the justices agreed to take a look. Today they affirm in part and reverse in part. Good behavior is an understood, implicit part of any suspension of sentence, and while the court notes today that the better practice is to expressly include it to avoid a misunderstanding like this, no convicted person can expect a suspension to survive a new conviction.
As to Burnham’s other contention, a statute provides that when there’s no express period of suspension or probation, the court has jurisdiction to revoke the suspension for the maximum term of confinement authorized for the crime involved. That generates today’s divided result: The justices affirm the revocation of the suspension for the felony conviction, because the maximum sentence was ten years; but they reverse the one for the misdemeanor, because the trial court only had control of that for one year.
I’m always on the alert for issues of first impression in opinions, and there’s a whopper in Everett v. Tawes. The question is whether a trial court has the authority to retroactively modify a pendente lite support award before final judgment.
Shortly after the wife filed for divorce, the trial court conducted a pendente lite spousal-support hearing. The court received evidence that the wife’s financial needs were over $11,000 a month, while the husband’s tax returns reflected his income of $33,000 a month. The husband replied that his returns may show that, but his status as part-owner of several restaurants, and the use of pass-through entities, meant that he didn’t actually receive anywhere near that much.
The judge remarked that he really needed an expert to understand the returns, but the wife insisted that the local support guidelines required the court to use gross income.
The court eventually entered an order granting temporary support calculated from the full amount shown on the tax returns. This created an immediate arrearage of about $47,000. The husband paid what he could, but didn’t pay down the arrearage. The wife sought a show-cause order, and the husband moved the court to reconsider the pendente lite award.
At a hearing on those motions, a new judge presided. This time, the husband brought a CPA who explained that the husband was right: He only received income of about $10,000 a month, regardless of what the tax returns showed. The wife answered that the court had no authority to modify the arrearage, because her right to that amount had effectively vested.
At this, the judge found himself in a pickle. He felt that the existing award was unjust, but wasn’t sure he had the power to correct it. He asked for additional briefing on the issue, but even that didn’t leave him with a clear path; he stated that there was apparently “no answer to this question.” Clearly unhappy with the prior award, the court nevertheless declined to change the earlier ruling or erase the arrearage, either pendente lite or in the final divorce decree. The final decree calculated future support payments at a far smaller number.
Here’s an issue that will interest appellate lawyers and their trial cousins alike. Ordinarily, a court can modify an interlocutory order at any time before final judgment. But the wife pointed to statutes that prohibit vacating an existing award. The Court of Appeals held that “support payments vest as they accrue and may not be modified retroactively,” and affirmed.
Today the Supreme Court unanimously reverses in a two-step approach. Justice Goodwyn’s opinion first concludes that a pendente lite support award is indeed an interlocutory order. That means that the court had the full power to modify or vacate the earlier award, and the ability to correct errors in it, while it retained jurisdiction. The statutes cited by the wife, the court holds, refer to judgments in final divorce decrees, not interlocutory orders.
The second step is a simple one. The justices rule that the trial court’s ruling was influenced by an error of law, and under established precedent, that makes it an abuse of discretion. The Supreme Court thus remands the case so the trial court can evaluate fully the motion to rehear.
Both sides had sought awards of appellate attorney’s fees and costs. No doubt because of the novelty of this issue, the final sentence of the opinion denies both sets of requests. In a case like this, the court finds that the circumstances don’t support shifting either party’s costs and fees.
In my former life in the City Attorney’s Office, I handled several trials of challenges to real-estate tax assessments. That’s one of two claims in Virginia Int’l Gateway, Inc. v. City of Portsmouth. The tax payer owns and operates a huge marine-container terminal on the Elizabeth River down here in Tidewater. The facility receives container ships and uses cranes to offload containers and place them on waiting trucks. The City taxes the land and personalty separately; some of the cranes are on movable gantries.
For the tax year 2015-16, the taxpayer felt that the City’s assessment was too high. And we’re talking about a lot of zeroes here – the total assessment for realty was $360 million and for personalty around $30 million. The taxpayer’s experts put those figures at about $200 million and roughly $20 million, respectively. The taxpayer sued to correct those assessments, to obtain a correspondingly lower tax bill.
Portsmouth has a number of problems, but one of the most important ones is the way it’s hamstrung for real-estate-taxation purposes. It’s a small city, less than 47 square miles, and most of it is fully built out. More important, a large portion of that land is tax-exempt, because it’s owned by a government (several federal facilities are located there) or a religious institution. As an aging city that can’t expand by annexation, Portsmouth needs to hang on to whatever tax revenue it can. It hired an expert of its own and prepared for trial.
Today’s opinion evaluates two man issues. First, the taxpayer’s real-property appraiser hailed from New York and isn’t permanently licensed here in Virginia. He preliminarily valued the property for negotiation purposes; when that didn’t pan out, he obtained a one-year license from the Commonwealth. During that year, he conformed his prior work to Virginia requirements, reaching his ultimate conclusion toward the end of – but well within – the period of licensure.
So far, so good; but the trial came later, after the Virginia license had expired. The City objected to his testimony, pointing to a statutory requirement that one must be licensed to perform appraisal services here. The trial court found him well-qualified and allow him to testify. But months later, when the court got around to entering a final order, it reversed its previous ruling and found that it couldn’t allow the New York appraiser to testify because of the statute. Because this was the only basis for the taxpayer’s realty challenge, the court entered judgment for the City.
That left the personal-property-tax issue. There, the taxpayer’s expert traveled even farther, from Europe. He knew nothing about Virginia valuation standards, but was otherwise one of the premier experts in the world at valuing this kind of property. His assessment differed from the City’s largely because he applied a discount for transportation. He felt that there was no market for the property elsewhere in the U.S., so it would have to be sold to a European buyer. That entailed significant costs to ship the equipment overseas, thus depressing the price that such a buyer would pay.
The trial court ultimately rejected this testimony, too, finding the discount to be inappropriate and the valuation accordingly flawed. Here as well, the court entered judgment for the City. The taxpayer got a writ.
The justices today affirm in part and reverse in part. On the smaller personal-property-tax issue, the court finds that the trial judge acted well within his discretion in finding the European expert’s testimony didn’t overcome the presumption of correctness that all tax assessments enjoy. The court finds the question about transportation costs as a component of fair market value to be “intriguing,” but ultimately doesn’t reach that, because the trial judge made a legitimate finding that those costs were too speculative.
The court reverses today, however, on the real-estate-tax issue. Specifically, it points to a 1995 amendment to the statutory requirement for licensure. That amendment reserved to trial judges the right to decide if a particular expert was qualified to offer opinions, regardless of her Virginia licensure status at the time of the testimony. That means that the court erred in excluding the taxpayer’s expert on this ground alone. The justices accordingly remand the case for a new trial on the realty aspect only.
Given the numbers, this is a small win for the City and a larger win for the taxpayer. But it’s only an interim win: The taxpayer still has to overcome that presumption of correctness. My experience in City Hall tells me that that’s a formidable dragon.
The day’s longest opinion, at 41 pages, is Tingler v. Graystone Homes, Inc. This is a claim by a family who had a home built, moved in, and found significant mold problems. They demanded that the builder remediate the mold, but the remediation efforts only worsened the problems, to the point that the family had to abandon the home, fearing for their health.
I’m looking out for you, my dear readers, in giving you that Reader’s Digest version of the complex facts. If you want them in meticulous detail, click on the hyperlink to get Justice Kelsey’s copious recitation. For now, you need to know that the primary focus of this opinion is the familiar battleground of the boundary between tort and contract claims.
Over the years, the court has criticized the “more or less inevitable efforts of lawyers to turn every breach of contract into a tort.” There’s a reason behind this, of course: Tort damages are a lot sexier than their contract-law cousins. The homeowners sued both in tort and in contract, but the trial court sustained demurrers to all claims and dismissed the case.
Today the Supreme Court affirms in part and reverses in part, remanding the case for trial on some of the stated claims. The justices agree that the claims for negligent construction are contract claims only, but the negligent repair claims are different. The former assert that the contractor had a duty to do something (construct a home that was safe from water damage and the resultant mold intrusion) and didn’t do it, while the latter asserted that the contractor tried to perform the remediation and botched the job.
Today’s opinion lays out what should be a helpful decisionmaking standard for these claims. Allegations of nonfeasance of duties, where a contract underlies those duties, sound in contract. Allegations of misfeasance (and, a fortiori, of its malevolent cousin malfeasance) can give rise to tort claims. The rub is that, on remand, the homeowners are going to have to distinguish which of their claimed injuries stemmed from the later efforts to repair the damage, because that’s all they’ll be able to recover for.
The case has an interesting angle on the contract claim that isn’t likely to reoccur often. The land on which the contractor built the home was owned by a family LLC. But the homeowners themselves signed the construction contract. The builder defended against the LLC’s contract claim by pointing out that the LLC wasn’t a party to the contract. Today, the justices throw the LLC a lifeline, accepting the argument that the pleadings stated a facially valid third-party beneficiary claim. That means that the homeowners and their company are all back in the litigation.
The lesson for lawyers representing tort plaintiffs is to craft your allegations, to the extent you can, to allege that the defendant’s misstep was misfeasance or malfeasance. Alleging nonfeasance, the failure to do something, will foreseeably consign you to the contract aisle, and those more-limited damages.
One last point: The justices heard oral argument in this case in June. This is the last remaining appeal in which now-retired Justice McClanahan participated. The listing of the justices to begin the slip opinion inconspicuously omits any mention of her; it simply lists the other six justices who voted (unanimously, as it turns out) on the outcome.
In the past, when an opinion came down after a member of the court retired, died, or otherwise left the court, a footnote to the opinion noted that fact: “Justice X participated in the hearing and decision of the case prior to the effective date of her retirement on ________.” “Senior Justice Y participated in the hearing and decision of the case before his death on ________.”
As my faithful readers will recall, the Supreme Court endeavored to decide as many appeals as possible that had been argued before Justice McClanahan’s retirement. That resulted in a flurry of rulings in late August. The last such flurry came on February 12, 2016, the day Justice Roush’s gubernatorial appointment was set to expire. The court achieved a rare 100% clearance rate that day. It almost did so again this August.
This opinion took longer to decide than was reasonably practical for an August decision date. Reading the opinion will show you why; Justice Kelsey packs no fewer than 30 footnotes into the 41-page ruling. It’s quite an effort. The omission of Justice McClanahan’s name, even in a footnote, signals to me that the court doesn’t want to create controversy. But with a unanimous opinion, it’s hard to argue that the presence of a now-retired jurist could have affected the outcome.
HOW TO SPEAK TO AN APPELLATE COURT
(Posted January 22, 2019) It’s been quite a while since I’ve addressed the topic of oral advocacy. While there are numerous speaking styles, and no one of them is definitively correct, here are some notes on the way I do things.
Part 1 – How to Speak
This section is simultaneously breathtaking in its scope and dangerous in its connotation. The topic of how to speak is immense; the study of rhetoric and oratory goes back at least to Aristotle and Demosthenes. And tackling the task of telling people – educated people, at that – how to do something as basic as talking risks giving offense. After all, while we may realize that we’re not very good at painting portraits or singing or ballet, everybody perceives that he or she can talk well. You do, right?
As for the scope, I won’t try to be comprehensive here. I couldn’t possibly set out in an essay everything I’ve learned about public speaking since I was 13 years old and received my first training in it. It’s far too voluminous, and besides, there are some things that I don’t even realize that I know; they just come naturally after a lifetime of practice.
As for giving offense, please be assured that I’m not here to insult anyone. One of my primary goals in publishing this website is to help you to become a better appellate advocate. But even professionals who are highly skilled in their chosen craft may not know how to convey ideas clearly, forcefully, and persuasively. Here are a few basic suggestions.
EMERGENCY APPEALS: A HOW-TO GUIDE
(Posted October 15, 2018) I’ll confess that I’ve tended to take a lighthearted view of what I’ve described as “omigod appeals,” where a party just has to have immediate review of a trial court’s ruling. I’ve given the example of, “You’re litigating over an ice cream truck, and it’s 97 degrees outside.” I never really gave much thought to when a real need for such an appeal might arise, or how I would go about pursuing one.
All that changed recently when I was asked to speak at an upcoming conference. My topic is how to appeal in denial-of-care cases. Yet another confession: My immediate reaction to that request was, “What’s a denial-of-care case?” I really have lived a sheltered life.
I soon found out that these cases are nothing to take lightly. They refer to the circumstance where a hospital denies medical care needed to preserve someone’s life. There may be squabbling family members, and maybe even a do-not-resuscitate provision in an advance medical directive. In these cases, if a circuit court issues an order allowing or directing the hospital to deny care, and a family member wants to appeal, the normal appellate process is out of the question. These days, it takes well over a year to get from circuit-court judgment to Supreme Court opinion, and most patients in that circumstance don’t have anywhere near that much time. For these folks, there has to be a faster way.