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



[Posted April 16, 2015] Today is opinion day for the Supreme Court of Virginia’s April session. Unlike the last opinion day back in late February, when I was snowed in at my home, today is play-hooky weather; right now my golf clubs are sobbing to be let out of my trunk. But no recreation for me today; we get 15 published opinions, so let’s dig in.



After waiting for many moons, we finally – finally! – get a ruling today in Yelp, Inc. v. Hadeed Carpet Cleaning. Hadeed suffered the indignity of negative reviews on Yelp, and thought that a competitor might be behind all those nastygrams. But they were posted anonymously, as I understand most Yelp reviews are. So how do you determine whom to sue for defamation in that context?


Hadeed decided to sue several John Does, and then sent a subpoena duces tecum to Yelp, asking for the identities of those posters. Yelp resisted on First Amendment grounds (among other reasons), saying that the right to freedom of speech includes the right to anonymous speech. The trial court sided with Hadeed and ordered production. Yelp refused and was held in contempt, producing this appeal.


This case is simply dripping with First Amendment issues. For example, does Yelp have standing to assert its posters’ First Amendment rights? But if you were looking for a broad freedom-of-speech ruling today, you’ll be disappointed; the court rules on jurisdictional grounds that Virginia courts weren’t empowered to enforce the SDT against Yelp, which is a California company.


Now, in case you’re disappointed with the absence of a fiery First Amendment holding, please allow me to reassure the procedure geeks among you, this is a fascinating decision. The decisive question is whether the Virginia statutes provide for service of subpoenas against non-party foreign citizens. It’s related to, but separate from, the issue of longarm jurisdiction, the power to hale a foreign person or entity into a Virginia court.


Today’s majority – Justice McClanahan writes the opinion of the court – finds that the Virginia statutes don’t provide for that subpoena power. The discussion is complex, but the ultimate ruling is that Hadeed has to proceed under the Uniform Interstate Depositions and Discovery Act. That leaves the plaintiff an out, although it may have to go to California to get the names, and hope that the courts of that state will allow a peek into the database.


There’s a dissent/concurrence, written by Justice Mims and joined by Justice Millette, that takes a different route. It tracks recent SCOTUS jurisprudence on longarm jurisdiction and notes that for constitutional – not statutory – reasons, Virginia can’t exercise any kind of jurisdiction over Yelp on this record. Yes, the company has appointed a registered agent here, but under that recent caselaw, that fact isn’t enough to allow our courts to exercise power over a California resident. Companies now are subject to suit (and concomitantly service of process) only where they’re “at home,” and for Yelp, that home is on the west coast.


For this reason, the dissent is really a concurrence, stating that the majority is right for the wrong reason. I could spend hours untangling the web of Virginia statutes that generate the primary dispute between the parties, and after doing that, I might side with the majority or the dissent; I'm not sure. But I'd like to get you this analysis today, rather than sometime next month.

In the end, I can at least say that I agree with the dissent, that current SCOTUS caselaw compels the dismissal of this show-cause order on due-process grounds. Keep this in mind as you consider suing out-of-state defendants; this landscape has changed enormously in the last five years. The old longarm caselaw that you learned back in law school, assuming you’re roughly my generation, is probably no longer good law. I think we’re much closer now to Pennoyer v. Neff from the 1870s (no out-of-state jurisdiction) than we are to International Shoe in 1945 (minimum-contacts analysis).


It’ll pay to keep a careful eye on One Capitol Street for further developments on this issue. For now, Hadeed is left with a bunch of judgment-proof John Does.

Eminent domain

Virginia’s condemnation statutes require that a condemnor obtain an appraisal of property before negotiating to purchase it, and of course before filing an eminent-domain action. The dispositive issue in Ramsey v. Commissioner of Highways is whether that initial appraisal is admissible at trial, where the condemnor later gets a lower appraisal.


The Commissioner appraised the landowners’ property at $500,000, and stated that just compensation was about $246,000 for the portion he wanted to take (including damages to the residue). He gave the landowners an oral and written report, and then made an offer to purchase the required rights. That didn't produce a deal, so he filed a certificate, deposited the $246K, and “quick-took” the land.


As allowed by statutes, the landowners withdrew the deposited funds and prepared for a just-compensation trial. But the Commissioner hired another appraiser – the original one had retired – who reported much lower figures: $250,000 for the full value of the land and $92,000 for just compensation.


At trial, the Commissioner used this second appraiser’s more-favorable testimony, and obtained a ruling from the trial court that the landowners weren’t allowed to tell the jury about the original appraisal. The landowners appealed that ruling, and got a writ.


Today, the justices unanimously reverse, holding that under Virginia law, the precondemnation statement wasn’t made during settlement negotiations. Indeed, the statute says that the Commissioner must state the value before initiating negotiations, so the Supreme Court holds that by definition, it isn’t part of the negotiation process. The case is remanded for a new trial, in which the court is directed to use ordinary rules of evidence to determine the admissibility of the original statement, presumably as a party admission.

Civil procedure

Code §8.01-428 provides a remedy for a defendant who suffers a default judgment and wants to be relieved of it. If he can show things like fraud on the court, an accord and satisfaction, or a void judgment, a court can reopen the case, even after the passage of the appellate deadlines.


But what about a plaintiff who wants to canopener her own judgment? Can she use that statute to get another crack at a defendant who didn’t appear to defend? That’s one of the questions in Sauder v. Ferguson.


This case arose after an automobile collision. Before Sauder sued Ferguson for her injuries, some insurance carriers got into a declaratory-judgment scrap over who might be on the hook. During that DJ proceeding, in which Sauder was present and represented by counsel, Ferguson testified to his current address, which was different from the one listed on the accident report.


When she got around to suing – using a different lawyer – Sauder unfortunately forgot about that testimony, because she tried to serve Ferguson at the address on the report. She also served an insurer called Rockingham Mutual, as her UIM carrier, instead of its corporate cousin, Rockingham Casualty, despite the finding that the latter was the UIM provider. (Rockingham Mutual doesn’t insure cars.)


Ferguson got a default judgment against Ferguson and Rockingham Mutual, and a judge awarded her the full $100K that she was seeking. But for reasons that we may not know, she later desired to reopen the case, nonsuit it, and refile it – presumably to seek more damages than she had recovered the first time.


A trial judge initially rejected Sauder’s argument that the court had no discretion to refuse to reopen – after all, the statute uses the word may – and later ruled that he would not exercise discretion to do so, either. Today, the Supreme Court affirms both holdings. On the abuse-of-discretion angle, the court holds that refusing to reopen was a permissible action, given these circumstances.


There’s a short concurrence, written by Justice Powell and joined by Justice Mims, that would use a simpler route: estoppel. The dissent notes that Sauder made her choice of how to serve Ferguson, and later proceeded to judgment on the assertion that she had good service. Since you can’t take contrary positions in the course of the same litigation, the dissent feels that she should be barred in the first place. In my view, there’s a very small difference between this view and the majority’s conclusion that Sauder was “the architect of [her] own misfortune.”


In a published order also released today, the court reverses the grant of a nonsuit in Anheuser-Busch Companies v. Cantrell. The plaintiff in an asbestos-exposure case asked for a nonsuit after fully briefing and arguing a defense demurrer. The nonsuit came as the parties were awaiting a written ruling from the court, which had heard the parties’ arguments and had promised them a ruling in the coming weeks.


The Supreme Court today finds that that nonsuit came too late, since it was taken after the case had been submitted to the court for decision. A demurrer is a dispositive pleading, so it counts among the issues that qualify for the treatment as “submitted for decision.”


Normally you can’t appeal a nonsuit, which isn’t a final order. But when the issue is, as here, whether the trial court had the authority to grant the nonsuit, the justices will indeed entertain it.

Subject to a few specific exceptions, affirmative defenses have to be pleaded, or else they’re waived. The court determines today, in Howard v. Ball, whether adverse possession is such an affirmative defense in a boundary-line action.


Somewhere between the crags of Buchanan County lie two adjacent farms, one owned by Howard and the other owned by Ball. The parties’ common grantor divided the tract in 1905.


Ball’s predecessor had his farm surveyed in 1957, and later built a fence along the boundary line between the farms, as shown on that plat. Howard commissioned a survey of her farm in 1996, and it confirmed that boundary line. In 2009, she had yet another survey done, and this one showed the property line inside the fence line, on Ball’s side.


If this newer survey is right, then Ball has been farming some extra acreage for quite a while. When the survey showed the discrepancy, Howard filed a boundary-line suit. Ball, acting pro se (cue the ominous music here), filed a response in which he disputed Howard’s claim and relied on his 1957 survey.


At trial, the two most recent surveyors testified. Over Howard’s objection, Ball put on a defense of adverse possession, showing that he and his predecessors had controlled the disputed land since the Eisenhower Administration, comfortably beyond the 15-year limitations period for land possession.


The trial judge sent out a letter opinion, ruling in favor of Howard. He noted that the outcome would have been different if Ball had actually pleaded adverse possession; but since he hadn’t, he couldn’t rely on it at trial. Ball moved for reconsideration and gave the judge a copy of a 1921 case that holds that “adverse possession is a defense which can be made in [an ejectment] action under the general issue.” And since boundary-line suits “are governed by the same legal principles” as ejectment actions, it looks like Ball might not have waived anything at all.


The trial judge read the 1921 case and changed his mind. He issued a second opinion that granted judgment in favor of Ball.


As it turns out, he should have stuck with his first instinct. The Supreme Court points out today that in the substantial interim between 1921 and now, pleas of the general issue have been abolished in the Rules of Court. Nowadays, a defendant is required to set out what his defenses are. There are still some exceptions, such as for matters that are defined in statutes; but the court finds that none of those exceptions apply here. That means the judgment is reversed, and Howard’s farm will remain intact.

Freedom of Information Act

Today’s ruling in Fitzgerald v. Loudoun County Sheriff’s Office resolves a narrow question about an exemption from FOIA’s disclosure requirements. The act provides that criminal investigative files need not be released. The precise question here is whether those documents are still exempt even after the police have concluded that no crime occurred, and have closed the file.


The investigation here involved a death that was determined to be a suicide. During the investigation, a deputy sheriff found “what appeared to be a suicide note” that was addressed to the decedent’s supervisor at work.


Fitzgerald sought production of all documents about the investigation. Today’s opinion doesn’t describe his relationship to the decedent, if any, so I don’t know if he was, for example, a distant relative or a newspaper reporter. The sheriff’s office resisted the request, citing the criminal-investigation exemption. Fitzgerald went to GDC and later circuit court, but got nowhere. The justices agreed to take this case, to settle the question.


The court affirms today, noting that a document doesn’t lose its character as a criminal-investigative file merely because it’s closed, or even because the department concludes that there was no crime at all. At the time the documents were gathered, there was unquestionably a criminal investigation in progress, and the court holds today that the exemption doesn’t contain a provision that ends the exemption when the case is closed.


Fitzgerald also cited a separate statute that requires disclosure of “noncriminal incidents records.” The Code defines that term as “compilations of noncriminal occurrences of general interest to law-enforcement agencies, such as missing persons, lost and found property, suicides and accidental deaths.” Since suicides are specifically listed, it looks like the suicide note – which by the time of oral argument was the only thing Fitzgerald was really interested in – was subject to disclosure.


But go back to the beginning of the definition: compilations. The court finds today – and speaking as a word-nerd, I think this is the right interpretation – that a single note isn’t a “compilation” of things, so this provision doesn’t convert the note into something that had to be disclosed.

Name changes

As you can imagine, it takes a highly unusual set of circumstances for a name-change petition to make its way to Ninth and Franklin. In re Brown is such a case.


Brown is an inmate in a federal prison in Petersburg. He’s been diagnosed with Gender Identity Disorder, and “is transitioning from the male gender to the female gender.” He asked a Prince George County court to change his name from Robert Floyd Brown, Jr., to Alicia Jade Brown.


The trial court found that no good cause existed to grant the change, so it refused. Brown appealed and in late 2013, the justices remanded by unpublished order, directing the trial court to apply a 2007 decision that disposed of the issue in its reconsideration of the petition. At this point, it looks like the trial court is going to have to grant the petition. 


But on remand, the trial court wouldn’t budge. It refused again, saying that Brown’s “stated reasons for the name change do not outweigh the potential negative impact on the community.”


At this point Brown headed back to Richmond. (Well, the petition did so; Brown stayed in custody in Petersburg.)


Today, the justices reverse and remand again, this time with a specific directive to grant the name change. The court notes that there was a 2014 amendment that added one burden in inmate-name-change petitions, so that now they must show that the change wouldn’t “frustrate a legitimate law-enforcement purpose.”


The first legal issue is whether this amendment is substantive or procedural. If it’s substantive, then it won’t apply to this proceeding, which was filed before the amendment took effect. If it’s merely procedural, then Brown is stuck with proving another element.


The majority decides that it’s substantive, so it applies the pre-2014 version of the statute. Justice McClanahan, dissenting alone, thinks it’s just procedural, and the case should be remanded for reconsideration, not merely summary issuance of the change.


Bartolomucci v. Federal Insurance Company is a declaratory-judgment proceeding to determine whether an employee is covered by his business’s insurance policy when he’s involved in a collision while commuting to work from home. Since the employee is a lawyer and the company is a law firm, I will assume that I have everyone’s attention.


The lawyer had a personal liability policy with what look to me like unthinkably low limits: $100,000. The injured party in the collision wasn’t willing to take that, so the lawyer sued his law firm’s carrier, seeking a declaration that that company was on the hook for the excess up to its $1 million limits.


The trial judge convened a jury to decide the factual question whether the lawyer was using his car in the law firm’s “business or personal affairs” when the accident happened. The jury responded that he was indeed, but the judge set that aside and entered judgment for the insurer, holding that there was no evidence to support that verdict.


The lawyer and the injured party – both of whom earnestly wanted a ruling in favor of coverage – appealed and got writs. Today the Supreme Court affirms. In separate holdings, it rules that:


The firm’s excess-coverage provision doesn’t apply because the law firm didn’t own the lawyer’s car;


The Named Insured was the law firm, not the lawyer (if it’s any consolation, he is found to be an Insured; jut not a Named Insured);


The “use in business or personal affairs” provision wasn’t ambiguous, even though you may not conceive of a business as having “personal affairs”; and


The “autos you do not own” provision doesn’t apply here because of other language in the policy.


There’s an interesting issue on which we don’t get a definitive ruling. Since the jury rendered an opinion in a DJ action, was its finding advisory, or binding on the judge? Appellate lawyers will tell you immediately that the answer means a great deal. That’s because a binding jury determination is reviewed under the very tough standard of Code §8.01-680; while an advisory ruling is much more forgiving on review. The justices today assume without deciding that the stricter standard applies, so they leave to another day the ultimate resolution of this question.

Criminal law

The rapid pace of technology change again makes its way into a Supreme Court opinion in Kelley v. Commonwealth. It’s a prosecution for distribution of child pornography. Kelley downloaded images using a program called Ares, which is a peer-to-peer program. When he did so, the images were automatically available to anyone else in the file-sharing community. You can restrict access if you want, but Kelley didn’t do that.


One key issue here is whether the mere act of downloading the material is sufficient to prove distribution in this context. Kelley argued that he had to do something volitional in order to be convicted. But setting up his software without restricting access was enough to support a conviction. I’ll add that the standard of appellate review is a major contributing factor to this outcome, as it is to so many appeals.


I got to watch the oral arguments in the next two criminal-law decisions, so it’s interesting to compare my impressions then with today’s opinions. Walker v. Commonwealth is a drug-distribution appeal that involved four alleged sales of crack cocaine by the defendant to a police informant over a 13-day period. Walker asked for separate trials on the four indictments, but the trial judge agreed that the sales were part of a common scheme or plan, so he ordered a joint trial. The jury got ‘im and Walker received four 6-year sentences.


The Court of Appeals affirmed, agreeing that there was enough commonality to justify the judge’s decision to order a single trial. But today, a majority of the Supreme Court reverses and sends the cases back for separate trials, if the Commonwealth chooses to proceed.


The first difference of opinion arises early, in the standard of review. The majority, written by Justice Mims, notes that a ruling like this is generally reviewed with an abuse-of-discretion standard. But he notes that in interpreting the rules – which is really what this appeal is about – it’s de novo, which is much more favorable for Walker. The dissent (Justice Kelsey, joined by Justice McClanahan) would stop at abuse of discretion.


That matters, because the majority finds that this doesn’t fit the elements of a common plan. (Common scheme is a different animal, and doesn’t really come into play here.) Such a plan has to have an element that’s extrinsic to each of the offenses. The majority gives an example of a bandit who breaks into a banker’s home, steals a key, and then uses the key to break into the bank. The extrinsic purpose of burglarizing the house is to steal the loot in the bank's safe.


In contrast, “[t]he object of selling drugs for money is to make money selling drugs.” As Justice Mims puts it, “the cultivation of return customers is intrinsic to the goal of profiting from the sale of drugs.” (emphasis mine)


The dissent agrees that “[e]xpanding the common plan definition to this level of generality would render the joinder test unreasonably broad.” But it would still leave these decisions to the trial courts, which are able to see and appreciate the minute similarities – or distinctions – in the case and make a reasonable judgment.


What it comes down to, of course, is the question of propensity. If a jury hears that Walker is charged with a single instance of distribution, it might well conclude, depending on the witnesses, that he isn’t guilty. With a joint trial, the jury hears about four separate transactions, so an innocent-mistake defense is far less likely to fly. Evidence of other bad acts isn’t admissible if it only shows propensity.


But it can be admissible to show something else. For the dissent, this makes a dispositive difference. Walker’s lawyer telegraphed at trial that he wanted to challenge the proof of his client’s knowledge that the substance was crack. The dissent finds that to be a legitimate reason to allow joint trials, since he wouldn’t be likely to be mistaken when he did the same thing over and over again.

The next case is another drug-distribution appeal. Williams v. Commonwealth started in the City of Norfolk, and … well, that's actually the whole issue.


This is a case about whether the prosecution proved the venue of the crime. Williams met a man on O’Keefe Street in Norfolk one evening; that man asked about buying crack cocaine. Williams offered to help. The two got into the man’s car – by now you’ve figured out that we’re talking about an undercover cop – and Williams told him to drive to the 800 block of Fremont Street. The officer testified that at that point, the two “drove over there.”


When they got to Fremont, Williams made a small drug buy as an intermediary for the officer; a grand total of twenty bucks changed hands. The two then drove back to O’Keefe Street, where Williams met his fate, in the form of “an arrest team.” At that point, he had the right to remain silent.


The key component of this appeal is that while the officer testified that O’Keefe is in Norfolk, he never said where Fremont was. When the Commonwealth rested, Williams moved to strike on two grounds, one of which was venue. The prosecutor invited the judge to take judicial notice of the location of Fremont Street, since the officer had said it was “a relatively short drive.”


Well, actually, he never said that. But in ruling on the motion, the judge merely denied it without explanation. Williams rested without putting on any evidence, and again the judge denied a motion to strike. He convicted Williams and gave him ten years to serve. (This was a third conviction of this offense; hence the stiff sentence.)


The Court of Appeals affirmed. It inferred that the judge had done as the prosecutor had asked and had taken judicial notice of the location of Fremont Street, even though he didn't say that out loud. Today, a divided Supreme Court reverses.


The chief justice writes the majority opinion. He acknowledges that a judge doesn’t have to intone the words judicial notice in order to accept it in lieu of formal proof. But here, the judge didn’t do anything except issue a plain-vanilla ruling – “I overrule the motion” – before moving on. The judicial notice rule (2:201) allows a party to “an opportunity to be heard as to the propriety of taking judicial notice,” and the majority rules today that this record doesn’t reflect that Williams was ever warned that the judge was doing that.


In the absence of proof of venue, the court reverses the conviction. But the dissent – Justices Powell and McClanahan – see nothing wrong with the simple conclusion that the judge did exactly what the prosecutor asked in his short argument. The dissenters think it perfectly rational to view the record in just this way; there’s just no other way to look at what happened and explain the ruling.


Back in the medieval period, when I occasionally prosecuted cases in Virginia Beach, I learned to conclude my direct examination of my police officer with a stock question: “In what city and state did these events occur?” Failing to prove venue is one of those often-overlooked items on a prosecutor’s checklist, and sensible defense lawyers are eager to pounce if the prosecutor forgets.


One last point: Williams wins, but he probably loses. Since venue isn’t part of the crime – it’s just something that the prosecution has to prove in order to establish that the case is being tried in the right place – the Supreme Court doesn’t direct a dismissal of the indictment. Instead, it directs the CAV to send the case back to circuit court, where the Commonwealth may try Williams again, if it be so inclined. If that prosecution does go forward, I invite you to consider how early in the officer’s testimony my old stock question will appear.

I had to read the analysis portion of Wagoner v. Commonwealth twice in order to be sure I understood it. It involves a conviction of felony abuse or neglect of an incapacitated adult. The story is heartbreaking, but the legal analysis can be puzzling.


Wagoner is the owner of a residential group home for men with intellectual disabilities. A resident sustained serious scald injuries when he was left alone in a bathroom for five or six minutes; he had evidently gone into the shower and turned on the hot water. The home’s staff discovered him and undertook to treat his injuries in-house instead of taking him immediately to a hospital.


When the resident’s skin condition worsened the next day, a staff member started to take him to a hospital, but was countermanded by Wagoner. Wagoner came to the home, looked at the resident’s injuries, and directed his staff to continue to treat the man in-house after consulting a pharmacist.


The resident died nine days later; a pathologist concluded that death was a result of sepsis and pneumonia from the untreated scalding, resulting in second-and third-degree burns that covered 30% of the resident’s body. A grand jury indicted Wagoner for felony abuse or neglect.


At trial, in addition to the pathologist, a medical examiner testified that a patient with second-and third-degree burns over 30% of his body “would require automatic admission to a burn unit.” He opined that the appropriate treatment for this injury included debridement, or surgical removal, of the affected skin, in order to prevent bacterial infection.


The medical examiner concluded that the patient actually had serious burns over 18% of his skin. He estimated that those injuries would be 100% fatal if untreated, and 75% fatal even if treated.


That brings to the fore the primary legal issue at trial and on appeal. The felony-neglect statute requires proof that the defendant’s actions or inaction “resulted in” the victim’s death. As I understand it, Wagoner wasn’t being prosecuted for the original scalding injury; just for failing to secure appropriate and timely treatment.


Wagoner argued at trial, in motions to strike, that this evidence didn't prove that the failure to obtain treatment “resulted in” death; it was actually more likely that the original scalding injury was the cause of death. The trial court, borrowing from medical-malpractice jurisprudence, denied the motion because it felt that a 25% chance of survival represented a substantial possibility. In doing so, it rejected Wagoner’s contention that the prosecution had to prove not possibility, but probability.


I think this warrants a brief grammar-geek digression, on the difference between probability and possibility. In the field of mathematics, there may not be much of a difference; one can say that the possibility of an event of the probability of an event is 7%, and either is correct.


But outside the field of math, the words have undergone differentiation. A “possibility of survival” and a “probability of survival” mean slightly different things. Anything with more than a zero percent chance of happening is possible, but we wouldn’t call it probable. The best illustration is to consider the words’ antonyms: The opposite of possibility is impossibility, which means that zero percent chance; while the opposite of probability is improbability, conveying unlikelihood.


In that sense, you can see Wagoner’s point: it’s actually three times more likely that the original scalding caused the death, as compared with anything he did or failed to do. Doesn’t the Commonwealth have to prove beyond a reasonable doubt that the patient’s death “resulted from” Wagoner’s actions? Isn’t it reasonably likely that, no matter what Wagoner had done, the patient would have died anyway?


That brings us back to that med-mal doctrine, the deprivation of a substantial possibility of survival. The court is careful in today’s opinion to note that what it says in this criminal-law decision won’t affect existing med-mal jurisprudence – see footnote 3 on page 12 of the slip opinion – but it nevertheless accepts the loss of a substantial possibility of survival as furnishing some proof of proximate causation.


The court’s decision is almost unanimous. Justice Powell writes for the majority of six, and she concludes that the trial court and the Court of Appeals incorrectly used “loss of a substantial possibility of survival” as the fulcrum for deciding proximate causation.


But the court affirms the conviction anyway, on different grounds. It finds that the medical examiner’s testimony established that the purpose of a debridement was to remove potentially lethal bacteria, and the pathologist said that she had found such bacteria had caused the decedent’s sepsis. That was enough for the jury to infer that the death was the result of the absence of proper medical care.


Justice McClanahan concurs in the judgment. In a footnote, she wonders what the majority’s fuss is all about, since it essentially affirms the trial court’s decision that there was sufficient evidence to support a finding of proximate causation. She also points out that the standard for deciding a motion to strike the evidence is exactly the same as that for deciding a motion to set aside the verdict, so she expressly rejects Wagoner’s contention that the trial court should have applied a tougher standard once the verdict came in.

Real property

When I read the first page or two of Bailey v. Spangler, my heart sank. It’s a certified-question proceeding from federal court over the effect of a 1981 statute that relates to ownership rights in depleted mines. The brain reels, just in pondering it. I’ll admit that I thought to myself, “Poor Justice Goodwyn, who drew the short straw for a dreadful case.”


But I was wrong; it’s actually an interesting issue that’s easy to understand, in no small part because his honor does a good job of making it so. Here’s the setup:


Bailey owns a parcel in Dickenson County, out in coal country. In 1887, her predecessor in title executed a severance deed, granting mineral rights in the land to a mining company while retaining the surface rights.


In 1920, the Supreme Court decided, as a matter of first impression, the question of which party owns what’s called the “mine void.” As you might imagine from the name, a mine void is the space that’s left after the minerals have been extracted and the mining company has packed up and gone home. You might think of it as the underground tunnels.


That 1920 decision held that unless the severance deed specified otherwise, the surface owner owned the mine void, and the mining company couldn’t continue to use it after mining operations there ceased. Sixty years later, the General Assembly entered the fray; it passed an act that effectively reversed that presumption, giving the holder of the mineral estate the continuing right to use the space for transportation, ventilation, and so forth. The statute contains a limitation:


The provisions of this section shall not affect contractual obligations and agreements entered into prior to July one, nineteen hundred eighty-one.


Let’s fast-forward to the 21st Century, when Spangler, who’s the Director of the Department of Mines, Minerals and Energy, issued permits to mining companies to conduct operations in the mine voids under Bailey’s property. Bailey didn’t like that, so she filed suit. The case got removed to federal court, and the learned judge there decided it would be a good idea to get the justices’ views on the effect of this statute. The certified question asks whether the old case or the newer statute governs this situation.


Spangler acknowledged the limitation in the statute, but he argued that deeds are different from “contractual obligations and agreements,” and so should be treated differently. He noted that almost all severance deeds in Virginia predate the 1981 effective date of the statute, so ruling in favor of Bailey would gut the law’s effectiveness.


Today, the justices decide that it doesn’t matter whether a deed is the same as a contractual obligation, because the ultimate answer is the same either way. If a deed is a contractual obligation, then clearly the limiting sentence applies and Bailey owns the mine void, since her deed was way, way before 1981. And if a deed is different, Bailey still wins because of the principle that the courts won’t apply a statute retroactively unless the legislature clearly manifests an intention that it should be retroactive. There’s no such language in the 1981 act, so the court rules that this situation is governed by the 1920 decision, not the statute; Bailey wins and the director loses.


There; that wasn’t so hard, was it?

Public utilities

One of the most eagerly anticipated rulings of the day is BASF Corporation v. SCC, consolidated with an appeal by James City County, also against the SCC. This is the appeal over the siting of transmission lines across the James River, in the area of Jamestown.


Dominion Virginia Power finds itself in need of more electrical capacity on the Peninsula and beyond. EPA regulators will require the utility to shut down six coal-fired generation units in the near future, and doing that without replacing the electricity thus generated would subject customers to rolling blackouts.


The utility studied the problem and decided that the easiest and most cost-effective way to do address it would be to string transmission lines from the Surry nuclear power plant across the James to an area near Fort Eustis, and thence to the areas that need more electricity.


This proposal met with opposition from a company (BASF) that owned property where the lines would be located, plus James City County and some historical/environmental associations. They expressed concern that the new system would create adverse environmental impact and would destroy pristine vistas from some of Virginia’s most treasured historic sites: Jamestown Island, Carter’s Grove, the Colonial Parkway, and others.


As part of my evaluation of this case, I zoomed in on the area on Google Earth, one of my favorite cyber-toys. I had originally envisioned that the line would run north from Hog Island, where the nuclear plant is located, across the James and right by the eastern end of Jamestown Island. I was slightly surprised to find that it wouldn’t run north at all; it’s eastbound, away from the Historic Triangle. It would pass just north of yet another of our hidden treasures, the Ghost Fleet on the river.


But the amateur historian in me digresses; I need to stay on-topic. Because the new lines would require approval and a certificate (of public convenience and necessity) from the State Corporation Commission, Dominion applied for that approval. The Commission conducted a very detailed evaluation, including a multi-day evidentiary hearing, before deciding to approve the project and issue the CPCN.


The opponents, including the County, appealed, and since SCC appeals are of-right, they didn’t even have to go through the writ process.


The opinion is easily the longest of the day; 43 pages of majority, written by Justice Millette, and a 5½ page partial dissent by Justice Mims, who writes on behalf of the chief justice and Justice McClanahan.


The bottom line on this is that the court affirms the placement of the lines on the route approved by the SCC. It reverses on only one issue – and this is where the dissenters part company – holding that while Dominion doesn’t need local zoning approval for the lines themselves, it still needs that approval for a switching station that would be built in the County.


There’s an interesting appellate nuance of today's appeal. Originally, the SCC approved a different route for the lines. Dominion noted an appeal of that under Rule 5:21(a), and the adverse parties filed appropriate notices certifying that they’d be participating in the appeal, too. But then Dominion went back to the Commission and obtained an amended order that approved a different location. Now Dominion is satisfied, but the opponents feel aggrieved.


Dominion moved to dismiss the appeal because the opponents had never filed an original notice of appeal of their own; they had merely piggybacked on an appeal that was no longer being pursued.


Note that in non-SCC cases, Dominion would be right and the opponents would be out of luck. If you want relief from the trial court’s judgment and the other side notes an appeal, you can assign cross-error; but if the court refuses that petition, or the appellant withdraws its appeal, then you’re out of court. But Rule 5:21 is a different animal. And the justices rule today that once the opponents were properly in, Dominion’s subsequent abandonment of its appeal didn’t end the matter; the court proceeds to decide the issue on the merits.


Much of today’s lengthy opinion is fairly standard evaluation, using a very deferential standard, of the sufficiency of the evidence before the Commission. The court rules that the SCC adequately considered the relevant factors, including economic, environmental, and historic, before concluding that Dominion’s route was the best approach to solving a very real electricity-distribution problem.


As I mention above, the only disagreement is in the majority’s decision to reverse on the zoning issue. The statute on CPCNs states that when the SCC grants you a certificate, that “shall be deemed to satisfy the requirements of … local zoning ordinances with respect to such transmission line.” In order to apply to the switching station, you have to define a station as part of the transmission lines, and this the majority cannot stomach. If the legislature had wanted stations to be included, it could have included them in that provision.


The dissenters would instead defer to the Commission’s interpretation of the term transmission lines, noting that it isn’t defined in the Code. Since it forms an integral part of the lines and isn’t involved in either electricity generation or distribution (those are the first and third steps, respectively, of the process) the court should accept the Commission’s informed views on matters within its particular expertise. The majority finds that this is a matter of statutory interpretation, something that’s expressly left to the courts.

I’ll mention one last aspect of the case, and this is one issue on which all seven justices agree. BASF pointed out that the land it owned was in the process of environmental remediation; it was a former industrial site that the company is in the process of cleaning up. The company noted that the lines would interfere with its remediation efforts, and would thereafter damage the property’s economic value.


The justices note that Dominion has agreed to adjust its project in such a way as to allow the remediation to be completed. They also agree that the Commission properly evaluated the overall economic impact of the entire situation, balancing the effect on BASF with the risk to consumers, businesses, and governments on the Peninsula. The court concludes that “the Commission did not err by considering the impact of economic development on residents of the entire region and not simply to BASF.”



[Posted April 13, 2015] For appellate rule geeks, Christmas comes in April, as the Supreme Court of Virginia showers us with a host of new and revised rules. The court announces the changes, all of which will take effect July 1, in four separate orders, each dated April 10. I’ll discuss the changes order-by-order.


Wholesale change to petitions for review (order 1)

The Supreme Court has always had a procedure for immediate review of injunctions, in Rule 5:17A, based on Code §8.01-626. The rule contains a procedure for very prompt review of injunctions by a Supreme Court justice. While the statute isn’t limited to review of temporary injunctions, the Supreme Court has heretofore taken the position that injunctions contained in final orders aren’t entitled to the expedited review.


That limitation vanishes as of July 1, at which point you’ll be able to obtain expedited review of all forms of injunctions. The new version of Rule 5:17A also comports with the court’s established practice of review by a three-justice panel, instead of a single justice as the existing rule provides.


There’s a wholly new Rule 5A:38 for comparable review of injunctions in the Court of Appeals. The statute has always empowered that court to consider such petitions, but before now, there was never a rule to explain the process.


This order carries out a recommendation of the Boyd Graves Conference.


Digital appellate record (order 2)

There’ll be a new Rule 5:13A (and a companion new Rule 5A:10A in the CAV) that recognizes the emerging use of case imaging systems in trial courts that have arranged for e-filing of pleadings and other documents. Those courts will now be able to prepare a digital appellate record, instead of a paper one, for transmission to the SCV or CAV Clerk when a litigant notes an appeal. The order that carries this out also contains a few minor alterations, such as replacing the word papers with documents in appropriate contexts.


Proposals from the Virginia Bar Association (order 3)

Early last year, the VBA’s Appellate Practice Section proposed to the Supreme Court a number of rule changes, ranging across the rulebook. The court has made most of those changes, though it – alas! – declined to adopt one that I had pushed, to allow briefs to be printed on both sides of the page, to save paper. There are no tree-huggers on the court – or at least not enough to make a majority.


But still, this order makes a number of sensible changes to streamline procedures. Here are the highlights:


Citation of supplemental authorities. New Rules 5:6A and 5A:4A now permit the parties to bring to the court’s attention “pertinent and significant authorities” that they discover after briefing or oral argument. The process is purloined from FRAP 28(j), and provides for very limited discussion of the new authority. Either court may reject the filing if it “unfairly expand[s] the scope of the arguments on brief.” In addition, if you should have previously briefed it, the courts might disregard the new material. The best use of this provision is a newly published treatise or a new judicial decision that was handed down after your briefing or argument.


Transcript notices. Current Rules 5:9(b) and 5A:6(d)(4) require that you state whether you’ve already filed a transcript, or have ordered one. A new tweak adds a third possibility, where you already have such a transcript in your possession.


Extension, modification, or reversal. The current Rules 5:17(c)(1) and 5A:12(c)(1) require that in your assignments of error, you have to identify the specific lower-court error you’re raising. What if the lower court’s ruling comports perfectly with existing law, but you’re arguing for a reversal of that law? The new provision expressly permits you to do that.


Oral-argument notices. Before last year, the Chief Staff Attorney notified counsel for the appellant of the date for oral argument before a writ panel. Counsel for the appellee had to ask to be notified. The new Rule 5:17(j)(4) makes that second notification automatic. Interestingly, the CSA anticipated this change last year; when it began to send out oral-argument notices electronically, she started adding the appellee’s counsel. When I asked about that procedure change last year, I was told, “It’s just easier this way.” The new rule provision brings the rulebook into line with existing practice.


Brief in opp signatures. An anomaly in the current rules requires an appellant to sign the petition for appeal, but doesn’t require the appellee to sign the brief in opposition. A new sentence at the end of Rule 5:18(b) now makes both signatures required.


Petition-stage reply briefs. A minor amendment to Rule 5:19(b) addresses what I’ve always felt was an unfair provision in the current rules. Most appellants don’t file reply briefs, because they waive an extremely valuable oral argument. But if the appellee assigns cross-error, the appellant may file a reply directed only to the cross-error, and still get the right to be heard orally.


Right now, the deadline for filing that reply is seven days. That’s calendar days, not business days; and you don’t get an extension for service by mailing. This can result in a sudden emergency for appellants: The appellee files a brief in opp on a Friday that contains an enormous cross-error issue. She mails the BIO on Friday; Monday is a holiday; and the poor appellant’s lawyer gets to read the brief for the first time on Tuesday, with a Friday filing deadline.


Now, I often solve this problem by agreeing with my opponents to exchange electronic versions of brief on the date of filing. This eliminates the omigod factor of the previous paragraph. But absent such an arrangement, the VBA Appellate folks felt it was only fair to extend the reply deadline from 7 to 14 days; this new order makes just that change.


Petitions for rehearing. The current rules contain two separate entries for petitions for rehearing after the denial of a writ – Rules 5:20 and 5:20A. Those two rules result in a great deal of confusion; I get plenty of phone calls from lawyers who have trouble with them, and I’m confident that the Clerk’s Office gets more than I do. After July 1, there’ll only be one rule – Rule 5:20A is rescinded – and the process should be a lot more uniform. The Readers Digest version of the most confusing element now: You get 15 pages and can file a paper brief if you’re an inmate, or if you’ve obtained special dispensation from the court. (I’ve never heard of anyone getting that.) You get ten pages and have to e-file if you’re anyone else.


Amicus briefs in OJ proceedings. Right now, an amicus curiae can only file a brief in the course of an appeal. But both appellate courts entertain some proceedings that invoke original jurisdiction, such as habeas corpus or actual-innocence petitions. New provisions in Rules 5:30(a) and 5A:23(a) will now permit the filing of amicus briefs in those OJ actions.


Changes in briefs and appendices (order 4)

I’ve known for years that this day was coming. If you own stock in a brief-printing company, you may need to take a hard look at how you bill for your services. The court is significantly changing the means of filing and serving briefs and appendices in cases that it hears on the merits.


Right now, once the justices grant a writ, an appellant has to file 15 copies of his brief and either 10 or 15 copies of the appendix. He also has to serve on the Bad Guys three copies of the brief and two of the appendix. Those figures drop under new provisions in Rule 5:26(e) and 5:32(a)(3). Beginning in July, an appellant still files 10 paper copies of the brief, but now serves zero; service will be all-electronic. That goes for appendices, too, with a sharper drop-off; instead of filing ten and serving two, now the appellant files three and serves none.


This matters a great deal for those printing companies whose billing model is built on a per-page basis. They make a lot of money when chicken-hearted lawyers grossly over-designate, in an effort to get everything that’s even arguably helpful into the appendix. Those folks often wind up with a 2,000 page appendix, of which perhaps 175 pages are truly relevant. The sharp reduction in the number of appendix pages that will be printed, bound, and filed is the significant news in this rule change.


The news is even darker in the Court of Appeals: the new Rule 5A:19(f) reduces paper filings of briefs to just four copies. You also file and serve one electronic copy. You also have to file four paper copies of the appendix – down from the current seven – but service of that document will be all-electronic, too.


Both courts get a new provision that states that if the Clerk directs you to correct an erroneous filing, but you don’t do that in time, your appeal can be dismissed. The new provisions are in Rules 5:6(c) and 5A:4(c).


There’s a notable change in Rule 5:26(b) that eliminates another anomaly in the current rules. Those rules permit amicus briefs at any stage of the case, including rehearing, but contain an unchanging page limit of 50 pages – even if the amicus brief supports a ten-page petition for rehearing. Starting in July, the rule will limit the amicus to the number of pages that its supported party gets. (This was another of the changes recommended by the VBA Appellate folks.)


There’s a minor change – again, in both courts – that reflects changes in technology over the past 25 years. The rules now require a signature block that contains your signature, plus your State Bar number, “address, telephone number, facsimile number (if any), and email address (if any).” The new changes will delete the second “(if any),” reflecting the fact that nowadays just about everyone has an e-mail address. Indeed, I believe that after July 1, if you don’t already have an e-address, you’ll need to get one in order to file anything.


Relax; if you’re a technophobe, you can use your secretary’s email account.


I do wonder how long the requirement for a fax number will stick around. I know that many folks still use fax machines, but I suspect this technology will be going the way of the telegram before long. We’ll know for sure when the court deletes the fax number entirely from the signature block.


Finally, the new rules contain technical information for e-filing, including what to do if there’s a technical problem at the receiving end. (If the problem is at your end, you’re probably out of luck; the new rules provide no succor for such situations.) The court also will also set up a website that lists e-filing guidelines. Those will, I’m sure, be enormously useful to those persons, smarter than me at such things, who actually work the magic of filing my petitions and briefs. I’ll list the URL for the website here, although as I type this, the site isn’t live yet:




[Posted March 25, 2015] For the first time in the 21st Century, the Supreme Court of the United States has issued a show-cause order to a lawyer, threatening to sanction him for conduct in the course of appellate litigation. The Court directed a lawyer at the megafirm Foley & Lardner to explain why some of the language in his cert petition was – get this – hard to understand.


That may sound benign to you. And indeed, I suspect that the justices at Ninth and Franklin get that kind of brief all the time; they’re rolling their eyes now at the concept.


Here’s the lowdown: SCOTUS’s rules require that cert petitions be written “briefly and in plain terms.” Rule 14.3. But this was a highly technical case involving intellectual-property claims and artificial intelligence.


If that were all, we might not have an issue. After all, one of the requirements of appellate advocacy is to be able to express complicated subject matter in terms that legal generalists (that would be the justices) can understand without having to spend a lot of time looking up terms. Using English instead of technology-ese (or even legalese) helps a lot.


But this case was different because of the client, a German inventor who insisted upon retaining control over the content of the brief. The client sculpted the problematic portions of the brief himself – probably to ensure that the lawyer wouldn’t screw things up in a technical subject – and the lawyer signed and filed the petition. Now we have a problem.


I’ll let you know that it all ends happily; the Court dismissed the show-cause on Monday, so the lawyer can breathe more easily. He does, however, now have to pay Paul Clement’s bill for representing him in the show-cause proceeding.


I have a couple of observations about this highly unusual proceeding. First, I earnestly hope that the SCV justices and the CAV judges don’t derive any inspiration from this, that they can threaten to sanction lawyers for filing 35 pages of mush. In truth, I really doubt they’ll follow suit; but don’t think that it hasn’t crossed their minds by now.


Second, I deal with this situation in a way that probably wasn’t available to the Foley & Lardner lawyer: In all of my appeals, I insist that I’ll have the final say in all briefs that I file. That isn’t negotiable; if my signature is going on the brief, I won’t let anyone else compel me to say anything a particular way. I solicit input and comments from my clients and customers all the time, of course; but in the end, a ship can have only one captain.


Reading between the lines, I suspect that the lawyer in this IP case was put on terms to agree to the client’s authorship. Major clients can and sometimes do exert that kind of pressure on lawyers – do it my way, or I’ll take my business to another law firm. In such situations, it falls to the lawyer to use a bit of diplomacy – backed by a fair dose of professional courage – in advising the client that it’s not in the client’s interest to do things that way.


I can guarantee you that Foley & Lardner has that policy firmly in place by now.




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


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


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


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


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


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


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


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


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


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


We affirm.


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

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