(Posted November 7, 2018) Tomorrow is the Supreme Court’s normal opinion day. It is also a travel day for me, as I’m flying to Atlanta to attend this year’s ABA Appellate Summit, which runs tomorrow through Sunday. Between my morning travel and the scheduled afternoon programming at the summit, I won’t be able to post analysis of any opinions that might come down tomorrow. I may be able to do so Friday afternoon; if not, it’ll be Monday before I can get a report out to you.





(Posted November 1, 2018) Two new opinions arrive on the doorstep this morning; one criminal and one civil.


Criminal law

The issue in Botkin v. Commonwealth is straightforward. The Code imposes a mandatory minimum two-year sentence for possession of a firearm by certain convicted felons. The statute also provides, “The mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence.” Now the question: If a defendant is convicted in a single proceeding of two violations of this statute, may those two mandatory-minimum sentences run concurrently?

A trial court in southwest Virginia thought so; it imposed five-year sentences for each charge, suspending three years, and specified that the sentences would run concurrently with each other. The Commonwealth appealed, and the Court of Appeals reversed, holding that the two sentences must be consecutive. Today, the justices agree with the CAV, holding that the phrase, “consecutively with any other sentence” includes any other sentence for violation of this same statute. The court finds that interpreting the statute to permit concurrent service would impermissibly rewrite the statute.

Because a defendant is entitled to a new sentencing when the trial court imposes a legally impermissible sentence, the court directs that the trial court must now conduct a new sentencing hearing.



There’s much to commend to you about Parker v. Carilion Clinic. It’s a claim by a patient who insists that two clinic employees got information about the patient’s medical condition, and one of them blabbed to a mutual acquaintance outside the practice. The patient sued the clinic, pleading vicarious-liability and direct-liability claims.

The circuit court sustained the clinic’s demurrers, holding that the complaint pleaded the plaintiff right out of the case. There’s a presumption that an employee is acting within the scope of her employment. But the court ruled that the patient alleged actions by the employees that were outside their employment duties. Ergo, no liability.

On appeal, the Supreme Court reverses the dismissal of the vicarious-liability count, but affirms dismissal of the direct-liability claim. The latter is the simpler ruling: A company can be directly liable only for corporate action – something that the company itself, instead of its employees, commits or authorizes. If a board of directors takes an action that breaches a duty, and that breach causes harm, that’s a case for direct liability. There were no allegations along those lines here.

The bigger question in this case is vicarious liability. The justices unanimously rule that the patient stated a claim that survives demurrer, though they take two different paths to get there. The employees’ actions, while not authorized by the employer, still fell within the scope of their duties. Here’s how Justice Kelsey, the author of today’s opinion for the court, explains the analytical framework:

It simply is not enough … that the employee’s claim “arose out of an activity which was within the employee’s scope of employment or within the ordinary course of business.” Instead, the employee must have committed the tort while actively engaged in a job-related service. Respondeat superior liability cannot be established merely by showing that the employee was “on the clock,” using the employer’s property, or on the employer’s premises at the time of the alleged tortious acts or omissions.

The court goes on to examine the relevance of the employees’ motives:

[T]he employee’s improper motive is not irrelevant to the issue whether the act was within the scope of employment.” To the contrary, “it is merely a factor to be considered in making that determination, and, unless the deviation from the employer’s business is slight on the one hand, or marked and unusual on the other, but falls instead between those two extremes, the question is for the jury.”

 Justice Mims files a concurring opinion, joined by Justice Powell. He agrees with the outcome, but finds the majority’s focus on personal motives to be inadvisable. He believes that this analysis implicates two questions:

The first question seeks to ascertain the employee’s task or function (which the majority opinion describes as the employee’s service). In short, we must answer, what did the employer pay the employee to do? The second question seeks to ascertain whether the encounter—which need not be physical or face-to-face—between the employee and the plaintiff in which the tortious act occurred (which the majority opinion describes as the transaction) was within that task or function. The first question evaluates the relationship between the employer and the employee; the second question evaluates the relationship between the employee and the plaintiff, insofar as they are brought into contact by their respective relationships with the employer.

The concurrence cites examples of previous decisions where employees clearly had personal motives in mind – not the employer’s best interests – but the court approved vicarious liability anyway.

I don’t get a vote in this, as usual, but I will say that I find the concurrence’s view produces cleaner analysis of claims such as this one. For now, though, the employee’s motive is “not irrelevant” in these cases.

But wait! There’s more! We get an important ruling in the always-sexy field of finality. When the circuit court sustained the demurrer, it gave the patient leave to amend within 21 days. The patient declined to do so, and when dawn broke on the 22nd day, the case stood dismissed. The patient filed a notice of appeal within 30 days thereafter.

On appeal, the clinic argued that the notice came too late. Rule 5:9 establishes a 30-day filing deadline after entry of the final order, and Rule 1:1 defines entry as the day the judge signs that order. The notice came more than 30 days after the judge last put pen to paper. So is this timely?

You’ve already figured out that the answer is yes; otherwise we wouldn’t have an opinion on the merits. When the judge signed the order, it wasn’t final, because the plaintiff could still keep the case alive by amending. It became final when no amendment came into the clerk’s office. The court today notes that in the absence of a statute, “an order must be both entered and final before the 30-day period for filing a notice of appeal commences.”



(Posted October 18, 2018) The justices continue to clear their desks today, handing down four new published opinions.

Real property

There’s no new ground (sorry) broken in Ettinger v. Oyster Bay Community POA, an appeal of a dispute between a property owner on the Eastern Shore and the local property owners’ association.

The owner sought to develop a roughly 4 ½ acre site at the corner of two roads. The POA didn’t like that idea, so it put up construction fencing and no-trespassing signs at the edge of one of the roadways.
The owner sued, seeking a declaration that he owned the land all the way to the middle of the road. The judge ruled that the owner had a right of way in the road, but he owned only to the road’s edge.

The justices reverse today, relying on a long-standing principle of property law: When someone receives title to land that’s bounded by a street, that person owns the land all the way to the middle of the street, unless the conveyance expresses a different intention. The deed into this landowner didn’t include any express limitation, so the POA can’t shut him off from access.

The POA also contended that the deed into the landowner set forth the boundaries, including the two roads, but it also specified a number of square feet, and that total excluded any part of the road. Dirt lawyers will know what’s coming here: Under Virginia law as elsewhere, “a designation of acreage must yield to definite boundaries.”

Criminal law

The shortest opinion of the day comes from Justice McCullough’s pen: Thomas v. Commonwealth implicates a creative sentencing order. A jury convicted Thomas and sentenced her to seven years in prison. But the trial judge eventually entered an order sentencing her to ten years, with three years suspended.

Okay, that still subtracts out to seven years, so why the fuss? The fuss is because a judge can’t impose a sentence exceeding the one the jury fixed. He can suspend all or part of it, but he can’t add to it. What the judge wanted to do was provide for a three-year period of post-release supervision – the modern term for what used to be parole.

The court reverses and remands the case for proper sentencing. The opinion concludes with a footnote spelling out just how the trial court can do what it presumably wanted to do.

There’s plenty of caselaw indicating that the procedural protections accorded to criminal defendants don’t apply to ancillary proceedings like probation revocations. Today, in Johnson v. Commonwealth, the justices evaluate whether the respondent in a revocation proceeding has the right to be confronted with the witnesses against him.

A trial court convicted Johnson of rape in 2005 and sentenced him to 30 years in prison, suspending 20. He served the ten years and was released, subject to probation. But soon thereafter, his probation officer reported a violation.

One of the conditions of probation was that Johnson was to have no contact with juveniles. A detective told the probation officer that two girls, aged 16 and 17, reported that a man matching Johnson’s description approached them and started chatting them up. They got suspicious with the situation and, after he gave them his phone number and left, they decided to start checking. The detective reported that the girls had checked a site called, and found a photo of their guy, who turned out to be Johnson.

Johnson objected to this report at the hearing, because the girls weren’t present to testify. The court asked for some indicia of the statements’ reliability. The detective explained several corroborating facts, such as the girls’ positive identification of Johnson, Johnson’s residence nearby the location of the alleged contact, and a series of text-message exchanges between the girls and Johnson using an app called, showing Johnson’s attempts to meet with the girls.

In their conversations, the suspect said that he was 28 years old and worked at Dollar Tree; the detective learned that Johnson had recently worked at that store or Dollar General.

The trial judge ruled that all of these things added us to sufficient corroboration to indicate that the girls’ statements were reliable, so the detective’s description of them was permissible evidence at the hearing. That and the fact that Johnson had been convicted of a felony at about this time were enough for the trial judge. The court reimposed the suspended 20 years, and then resuspended 15 of those.

The Court of Appeals took the easy route to affirmance. The felony conviction alone, plus a relatively minor aggression toward his probation officer, meant that Johnson had violated the terms of his parole and could be sent back to prison. Assuming for argument’s sake that the evidentiary ruling was erroneous, that error was harmless.

Today, the Supreme Court arrives at the same destination – alas for Johnson, his is the only appeal decided today that isn’t reversed – but the justices take the harder route of addressing the substance of the girls’ statements’ admissibility. The court rules that the corroborating circumstances in the record do indeed make the statements admissible without confrontation.

It may surprise you that a man can be sent to prison based on what’s obviously hearsay, without the right to be confronted by his accusers. But post-conviction proceedings really are quite different.

Education law

The court explores the boundary between in-state and out-of-state tuition today in George Mason University v. Malik. A student attended Northern Virginia Community College for almost three years before transferring to GMU under the transfer policy implemented by the State Council of Higher Education. The community college had treated her as in-state, but GMU regarded her as out-of-state, so it charged higher tuition. It found that she was in Virginia primarily for educational purposes, not as a permanent resident.

The student asked for a reclassification, but the school refused, so off the student went to circuit court. The judge reviewed numerous facts before concluding that the school’s decision was arbitrary and capricious. The justices reverse today by holding that the trial judge improperly reweighed the evidence.

I’ve preached often that the standard of review is outcome-determinant in an enormous percentage of appeals. Here, the trial judge applied the wrong standard in reviewing GMU’s administrative decision. The circuit court reviews the school’s decision to determine if it can “reasonably be said, on the basis of the record, not to be arbitrary, capricious or otherwise contrary to the law.”

That standard puts the burden on the student to show arbitrariness or caprice. And that burden is stiff: clear and convincing evidence, significantly more than a mere preponderance. By statute, schools must consider the entire case, including an enumerated list of items such as driver’s licensure, income tax payments, voter registration, and employment.

The justices unanimously find today that while it might be possible to view the student’s case favorably, there was plenty of reason for skepticism about several factors. At least one factor that seemed to bode well for the student – she registered to vote here – occurred less than the statutory one-year cutoff before the semester began. There was, the Supreme Court ultimately rules, nothing arbitrary or capricious about the university’s decision, so the trial court exceeded its authority in reversing.




(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.

The Rules of Court are silent on this. So is the Code. No treatise or appellate handbook – at least none of which I’m aware – explores this subject or tells the practitioner how to get timely review when timely means a matter of hours, not months.

Hence this essay, the theme of which is advance preparation. In litigation that’s as time-sensitive as denial of care, if the trial judge rules against you, bangs her gavel, and walks out before you start to prepare for the appeal, it’s too late. You have too much work to do to facilitate a quick appellate adjudication. Here’s a checklist of what you need to do, along with an explanation of why each step is necessary.

Planning for the circuit-court hearing
In addition to the preparation you would normally expect for a circuit-court hearing – marshaling evidence, preparing witnesses and exhibits, legal research, etc. – you have some additional tasks:

Seek injunctive relief in your pleadings. This is because Code §8.01-626 allows you to file an immediate petition for review of the grant or denial of an injunction – even a temporary one. If you don’t request injunctive relief, you have to wait for a final order in the case before appealing, and that can take many moons.

Prepare two orders. One of these will be the “good” order, granting you the relief you want. (If the judge enters that one, relax and hope that the Bad Guy hasn’t read this essay.) The other is the “bad” order, in case things go wrong and you have to appeal. Don’t leave it to your opponent to prepare it. He may arrive for the hearing without an order, expecting the judge to tell him, “Mr. Johnson, you prepare the order.” Guess how long he’ll take to draft it? You should be proactive and draft it yourself. Bring four copies; you’ll need that many, as I explain below.

Prepare a notice of appeal and bring four copies of that to the hearing, too. Yes, I really do mean that you should bring a notice of appeal to the circuit-court hearing, even before the court decides how to rule. One of the basic requirements for appellate jurisdiction is that you must file a notice of appeal in the trial court. If you want a lightning appeal, you have to trigger appellate jurisdiction immediately. By the way, bring more than four copies if you have more than one adversary in the case. See Rule 5:9 for the required contents of the notice, but the “guts” can be as simple as this: “Jane Jones notes her appeal to the Supreme Court of Virginia of this Court’s October 15, 2018 order [granting/denying] an injunction. A transcript of the hearing has been ordered and will be filed.”

Call the circuit court’s clerk of court before the hearing and explain your situation. If you assume that the courtroom clerk will be at your beck and call for anything you need done, think again. (In fact, you probably should rethink how you view courtroom clerks.) Tell the clerk of court what’s involved, and that if there’s an adverse ruling, you’ll need to file an emergency appeal. That means you’ll want to get a certified copy of the order right after the judge signs it, and you’ll want to get a datestamped copy of the notice of appeal at the same time. If you’re pleasant, polite, and earnest, most clerks will make arrangements to help you, especially in a life-or-death situation. This phone call should take place as early as possible – ideally before the day of the hearing, if you can do that.

Call the Supreme Court Clerk and do the same thing. This is an extremely important step, because letting the appellate court know that there may be an emergency petition on its way can make your job much easier. The Clerk’s Office processes a lot of paper each day, and you don’t want your filing to become buried among other papers. You may be able to arrange for a means of filing after hours, should that be necessary. The telephone number is (804) 786-2251. Ask to speak with the Clerk or the Chief Deputy Clerk, either of whom will have the ability to arrange for your emergency filing.

Scan copies of all of the pleadings and other documents to a PDF. This will facilitate the SCV Clerk’s distribution of your appeal to the justices. You won’t be able to include the order beforehand, of course, but make sure everything else is in there. You can scan the order after the judge enters it, along with the notice of appeal after the clerk datestamps it.

Contact a reputable court reporter and explain what’s going to happen. You’re going to need a super-expedited transcript, so you can file one with the trial court and send an e-transcript or PDF to the Supreme Court. If you make arrangements in advance, and the reporter is set up for a fast turnaround, you might be able to get a transcript in a matter of hours. Just make sure the reporter knows what you need, specifically including something in an electronic version.

If you can, prepare a petition for review now. If you’re hired the day of the hearing, you may not have time to do this. If you have more time than that, at least prepare a petition that lays out the facts and the procedural posture, and explains that refusal of the petition will foreseeably lead to the death of a person. I recommend that you title it, “Emergency Petition for Review.” You have to include legal argument on the merits of the case, too – just saying that someone will die if the court doesn’t act won’t suffice. See Rule 5:17A for requirements for the petition.

Prepare a motion asking the Supreme Court to stay the circuit court’s order pending review. If the trial judge stays her order to allow you to appeal, this will be wasted effort. But if she refuses to stay it, this can literally be a lifesaver.

At the circuit-court hearing
We’ll assume that at the conclusion of the hearing, the learned judge has ruled against you. Here’s how to act.

Before the hearing begins, speak with the courtroom clerk. Be very polite, because you’re going to need his help. See if his boss, the clerk of the circuit court, has explained to him what your situation is. Then go over what you’ll need to do if the judge rules against you.

Don’t panic, and don’t lash out at the ruling or the judge. The former behavior impairs good judgment, while the latter might earn you a trip to lockup that will delay your appeal, among other disadvantages. Besides, you’ll want the judge to know that, given the importance of the issues, you’ll need to file an emergency appeal. She may look more favorably upon your request for an accommodation or two if you act in a professional way.

Ask the judge to stay her ruling while you file a petition for review. You should promise that you will file within, say 48 hours, though you should obviously do so sooner if you can. That will convey to her that preserving the status quo – that is, ensuring that the object of the litigation is still alive long enough for the Supreme Court to consider the matter – will be minimally intrusive. If the judge agrees to do that, and will order hospital care in the meantime, you will have won an important battle. If she refuses, you’ll ask the justices to stay it.

When the judge rules against you, hand up the “bad” order. Mention that you’ll need to get a certified copy of it after she enters it.

Get at least four copies of the “bad” order after the hearing. The original order will go into the trial court’s file. You want two more – one for your file and one to give to the Supreme Court Clerk along with your petition for review. The other one you’ll grudgingly give to the Bad Guy.

Tell the judge that you have a notice of appeal to file. Explain that you’ll want a datestamped copy to send to Richmond, so you’d like to get that copy immediately, too. You will already have arranged this with the circuit-court clerk, so the courtroom clerk probably knows what to expect. You’ll hand one copy to your adversary – that one doesn’t have to be datestamped – and give the original to the courtroom clerk to stamp as filed. If you’ve followed my advice and have been polite and respectful, the courtroom clerk may be willing to say, “I’ll make the copies and be back in a few minutes.”

How to proceed in the Supreme Court
Contact the SCV Clerk as soon as you’re sure you’re going to appeal. You’ve already apprised the Clerk or Chief Deputy in advance, so he’ll know what to expect. Tell him that the judge has ruled against you, that you have a datestamped notice and a PDF copy of the record, and you’ve ordered a super-expedited transcript. You should arrange then for how to transmit the appeal documents to Richmond. Now would be a good time to ensure that the Clerk or Deputy Clerk has your cell phone number.

Checklist for what to submit: (1) the datestamped copy of the notice of appeal; (2) the certified copy of the judge’s order; (3) copies of the documents in the record in a PDF; (4) your petition for review; (5) the motion to stay, if the trial judge has refused to do so, and (6) the $50 filing fee for an appeal. It will make the SCV Clerk’s job much easier if you also simultaneously send all of these documents in electronic format. That’s because the Clerk needs to forward everything to the justice or justices who will decide what to do with your petition. Anything you can do to make the SCV Clerk’s job easier, you should do. Please note that this process is not e-filing. You can’t e-file a petition for review or petition for appeal in the Supreme Court. You’re supplementing your paper filing by providing electronic copies of everything. Even the datestamped notice of appeal is technically a courtesy copy, but you want to avoid a delay while the SCV Clerk confirms filing below.

Serve your opponent electronically. This is one of those situations where snail mail, or even FedEx, won’t do. You can mail a copy the next day, but if you’re zapping it to the Clerk, do the same for your opponent.

Know how to handle the filing fee. The SCV does not accept credit cards, so you’ll have to have a check ready for the $50 filing fee. Ideally, you’ll submit that along with your other materials. If you’re filing after hours, make arrangements to pay the fee the next morning. Rule 5:17A allows you to pay the fee up to five days after you file in a situation like this.

Leave it in the Clerk’s hands. At this point, you’ve done everything you can to expedite consideration of your appeal. The Clerk is a thorough professional and will do what’s necessary to get your petition into the hands of the Robes for a ruling.

Stay in touch with your client. As if you didn’t have enough to do in this process, RPC 1.4 demands that you keep your client “reasonably informed about the status of a matter.” Your client foreseeably will be highly emotionally invested in the case and the process, so from time to time, send word, even if it’s only by e-mail, of what’s happening. Adding a copy of your filings wouldn’t hurt.

Know how to notify the hospital if you get relief. This includes relief on the merits – an outright reversal of the circuit court – or the grant of a stay by the Supreme Court, directing that the hospital do what it can to keep the patient alive while the justices consider the petition. Figure out who the right person is to receive a copy of the SCV’s order. Don’t assume that just because the SCV Clerk has sent copies of the ruling to you and your adversary, that adversary will promptly notify hospital staff. That will probably happen, but don’t take chances.

*   *   *

I realize that all this is complex. It’s a lot of work to take on during a stressful time. But this is the only available path to truly expedited review, where hours count. If you’re a solo practitioner and figure you won’t have time to do these things, that doesn’t mean it’s safe to skip them; in that case, associate another attorney to help you.

Lest you perceive that I just made all this up with my industrial-strength imagination, I offer my deep thanks to Trish Harrington, the current SCV Clerk, and Doug Robelen, the current Chief Deputy who will take over as Clerk when Trish retires early next year. They were very generous with their time, advice, and suggestions on how best to facilitate this extraordinary filing.

One final point: If you’d like to learn more about denial-of-care cases and related matters, here’s a link to the registration page for the program. It’s next Monday and Tuesday, October 22/23, here in Virginia Beach. All net proceeds from registration fees will, I’m told, benefit charity.




(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.