[Posted April 28, 2016] The stream of SCV decisions continues today. We get three published opinions, including two that have been widely anticipated in their relevant fields.

Domestic relations

Oh, how the times have changed.

Luttrell v. Cucco is a spousal-support appeal. Husband and wife divorced in 2008 after a 16-year marriage. The divorce court ratified and incorporated their PSA into the final decree. That agreement gave the wife spousal support; it provided that that support would terminate upon:

the death of either party, the remarriage of the wife, or as a result of action by the Court taken pursuant to § 20-109 of 1950 Code of Virginia, as amended, relative to cohabitation.

Six years later, husband filed a petition seeking to terminate support, asserting that his ex-wife was now engaged to be married, and had been living in a relationship analogous to marriage (that language is from §20-109) for a year. At a hearing on that motion, the wife admitted that the allegations were true. But she resisted on the basis that she was engaged to marry another woman, so that wasn’t “analogous to marriage.”

I have your full attention now, don’t I?

The trial court agreed with the wife, holding that same-sex couples could not cohabit for the purposes of the statute. The court rejected the husband’s motion, and pouring salt in the wound, awarded the wife attorney’s fees pursuant to a fee-shifting provision in the PSA. The Court of Appeals affirmed, citing two cases that had defined cohabitation as being between persons of opposite sexes.

Now, in fairness to the trial court and the CAV, they decided the case before Obergefell v. Hodges last June. In light of that ruling from SCOTUS, you might expect the Supreme Court of Virginia to reverse, saying that the law has changed.

If so, you would be mistaken. Oh, the justices reverse, all right; they just take a strikingly different path. You’ll be surprised to note that the court never cites or even refers to Obergefell.

The legislature amended §20-109 in 1997. The bill to achieve that (disqualification of a cohabiting ex-spouse from continued support) had a noteworthy legislative history. As originally proposed, it would apply to an ex-spouse who cohabited “with a person of the opposite sex.” The bill was amended in House Courts of Justice to apply to “habitually cohabiting with another person for a year or more” – gender-neutral language.

Senate Courts of Justice had a further amendment, and this is the one that made its way into the Acts of Assembly and the published Code: “cohabiting with another person in a relationship analogous to marriage.”

The justices today note that the legislature expressly removed from the bill gender-specific language, indicating an intention to apply the disqualification regardless of the sex of the “cohabitee.”

But let’s address the ensuing issue: is a same-sex relationship analogous to marriage? Clearly the 1997 legislature would not have thought it was a marriage. But the General Assembly used the word analogous, which every word-nerd knows denotes something that’s comparable but has notable differences. Cohabiting with a person of the same sex, combined with intimacy, perhaps financial interdependence, and the assumption of conventional spousal duties is, the justices unanimously find, analogous to marriage.

The Supreme Court thus reverses and remands the case to the trial court for a hearing on the merits of whether the wife was cohabiting in a relationship analogous to marriage. (To the husband’s great relief, it also reverses the fee award.) Given the wife’s earlier admissions, that’s likely to be a short hearing.

Eminent domain

The justices find a narrow ground to decide City of Chesapeake v. Dominion SecurityPlus Self Storage LLC. Condemnation lawyers have been itching to read this decision ever since the case was argued in January, as it promised rulings on some sexy issues, such as whether a claim for loss of visibility due to a take is compensable.

If that doesn’t meet your definition of sexy, I apologize for the false alarm. But for the condemnation bar, that’s a major unaddressed question in Virginia jurisprudence. It’s still unaddressed. Here’s why.

The property in this case started out as a six-acre tract along Dominion Boulevard, maybe a mile and a half as the crow flies from where I grew up. In 2001, the owners of the land wanted to divide it into two lots and convey one of those – 4½ acres – to a self-storage company. The City initially balked at the plan, noting that the new lot would have inadequate road frontage. But the owners’ engineer revised the plans and secured approval from the Planning Commission for a variance.

That approval came with a price, in the form of a required reservation and waiver:

The owner and/or their heirs, assigns, lessee, grantees or successors in interest agrees to reserve for future purchase by the City the area hereby designated on the plat and shall convey same to the City by deed containing general warranty and English Covenants [of] Title.  … The owners agree that it shall not make or have any claims for damage to the said improvements or damages to the residue [of] the owners’ property by reason of the said purchase.

The engineer inserted this language onto a subdivision plat and the owners recorded it. They then sold the 4.5 acres to the storage company, which built its facility just south of the Elizabeth River.

A decade or so later, the City moved forward with its plans to replace an antiquated steel bridge with a huge high-rise. Consistent with the reservation, the City asked to buy the reserved area on the plat, but the storage company said no. The City then condemned the land.

Before the trial, the court made three significant rulings. It agreed that the landowner could not make a claim for diminution of the residue parcel’s value simply because it was smaller. The court found that claim to have been waived in the plat. But the court allowed the company to claim damage due to other factors.

The court also denied a motion to exclude evidence of damages due to loss of visibility – with the immense new bridge, the business was no longer visible from Dominion Boulevard – and as separate motion to exclude evidence of damages due to a lack of access, since the property would be accessible only by way of a service road. At trial, the court awarded $44K for the take and $2.16 million for damages to the residue.

As noted above, for eminent-domain lawyers, this case promised a bonanza of rulings. For instance, as far as I know, the justices have never decided the question whether a loss of visibility is a compensable item of damages. But today’s opinion is a bit of a fizzle, as the justices take the narrowest ground available. The court rules that the reservation/waiver language in the plat is enforceable, and does in fact waive any claim for damages from the acquisition and the project.

The company tried without success to persuade the court that the City did not, in fact, buy the land; it condemned it. The justices are havin’ none o’ that; the only reason there was a condemnation proceeding was because the company refused the City’s purchase offer.

Today’s opinion expressly reserves for another day the merits of the question whether a loss of visibility is compensable. It does, however, answer one previously unaddressed question.

On February 12, the Supreme Court handed down opinions and orders to clear out almost all of the appeals it heard in January, when Justice Roush was a member of the court. There were two appeals left, and this was one of them. I mused in February what the court would do with her involvement in those two cases, and guessed it would include her vote in any decision.

I am a well-trained husband, so I’m experienced in saying what I’m about to type here: I was wrong. This opinion is unanimous, but it still includes the votes of only six justices. There’s a short footnote on page 1 of the opinion to explain:

Justice Roush participated in the hearing but not in the decision of this case. The expiration of her term on the Court preceded the issuance of this opinion.

Why would they do that, especially with a unanimous opinion? After all, whether she voted with the majority or dissented, the outcome of the case would be the same. My best guess is that this decision eliminates the possibility that the losing appellate litigant could seek a new hearing because of the participation of an allegedly improper voter. Note the wording of the footnote: “participated in the hearing but not in the decision …”

I tend to doubt that the ruling today could be reasonably assailed if they had counted her vote, but this approach gives us finality; it makes perfect sense to me.

I was wrong.


As I read Navar, Inc. v. Federal Business Council, I kept thinking of what was missing from the unanimous opinion: novelty. I don’t mean that word in a frivolous sense at all; it’s just that of the holdings in the case, none of them appear to break any new ground. This is the kind of opinion that might otherwise have wound up as an unpublished order, though there may be an angle that the justices thought was important enough to publish.

The appeal arose from an agreement to bid on a government contract. Because of Small Business Administration regulations, Federal Business Council and its colleague company, Worldwide Solutions, were ineligible to bid on a desired contract. The two companies approached an eligible company and reached an agreement to work together to submit a bid through the eligible company. This is a teaming agreement, a term I had never known before today.

The agreement stated that if the eligible company got the job, then the three companies would “negotiate in good faith” with an eye toward entering into subcontracts with the colleague companies, so they would share in the profits by doing some of the work.

The bid worked; the eligible company got the contract. But the ensuing good-faith negotiations soon came to an impasse, and the winning bidder made other arrangements to perform the government contract.

The colleague companies, now strangers to the contract they helped obtain, sued. They cited a non-disclosure agreement in the teaming agreement, and claimed that the successful bidder was using their corporate secrets in order to win and then perform the government contract. A jury agreed and awarded the two suing companies $500K each; one of them also got a separate $250K award for misappropriation of trade secrets.

The justices today unanimously reverse those awards and enter final judgment. The court finds that this case, like the Holtzman Oil unpub from last week, is nothing more than a contract to negotiate a contract. There’s nothing to enforce; courts cannot, in language quoted in today’s opinion, “determine the terms … upon which the parties might ultimately agree.”

Much of the remaining discussion relates to the plaintiffs’ failure to adduce evidence that you would assume would be crucial for a case-in-chief – for example, expert testimony on the quantum of contract damages. The court also rules that there was no improper use of trade secrets, since the bidding company was expressly allowed by the teaming agreement to use the other companies’ information and ideas. In the end, this case comes down to the premise that you can’t “agree to agree later” and expect to be able to enforce that in court.

I’ll mention one last secondary point here. One assignment of error contained a typo. It referred to Count VII of the complaint, but the arguments in the brief related to Count VI. If you’ve come to regard the justices as lawyer-devouring dragons, you’ll probably assume that the appellant lost that issue, because the assignment and the argument didn’t line up.

Not at all; in a footnote, Justice Powell, the author of today’s opinion, points out the typo and notes simply that “we have addressed Count VI” in the discussion.

The Duke of Wellington reportedly described the Battle of Waterloo as “the nearest-run thing you ever saw in your life,” indicating how nearly the British army came to a catastrophic loss. I sense that this issue was also a near-run thing for the appellant. If the mistake had been more significant, it might well have lost this issue by default.

It always pays to review and edit your briefs carefully, and then do it again and again to ensure that everything is correct. (I generally file about the tenth draft of my briefs; sometimes it’s later than that.) The goal is to make the brief as error-free as possible. But of all the components you need to review with a microscope, the assignments of error top the list.

This footnote illustrates that you aren’t necessarily out of court if there’s a typo in even the most crucial section. The key is whether it’s immediately clear that it’s a typo and not a substantive difference. In this case, the court no doubt focused on the closeness of the two Roman numerals, and was able to discern which count the appellant meant by looking at the context of the argument; that clearly related to Count VI.