Virginia Beach appellate lawyer Steve Emmert analyzes the impact of The Supreme Court of Virginia’s rulings issued today

January 14, 2005

On Friday, January 14, 2005, the Virginia Supreme Court handed down seventeen decisions on a variety of topics. There were six criminal appeals; the court affirmed convictions in each of them. Of the eleven civil cases, five were affirmed, four were reversed, and two were reversed in part and affirmed in part.

This essay will discuss the practical effect of these recent decisions. It is generally understood that no one can accurately predict the long-term impact of very recent decisions, with few exceptions; only the lens of historical context can discern that with any accuracy. (This problem is best illustrated in another genre – the 1955 Academy Award for Best Picture went to a movie now largely forgotten, Marty , starring Ernest Borgnine; history has shown that Mister Roberts , starring Henry Fonda, might have been a wiser selection.)

Constitutional issues
The only case to attract the attention of the major media was Martin v. Ziherl, in which the court struck down as unconstitutional the Virginia anti-fornication statute, in light of the U.S. Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003). The largest effect of this decision will probably be the extent to which it applies, by implication, to other consensual sex crimes.

Martin arose in a civil context, which is probably the only way it could reach the courts. The case involved a tort suit by an unmarried woman who allegedly contracted herpes from a man. The trial court sustained a demurrer based on the statute, holding that the woman could not recover for injuries sustained while committing an illegal act.

Given the scarce enforcement of the statute in the criminal context (news reports have indicated that no one has been prosecuted in Virginia for fornication since the mid-19th century, an assertion unconfirmed by this writer, but believed to be accurate), the case will find its greatest application in challenges to other consensual sex acts that are proscribed by the state code. The strong language in the opinion leaves little doubt that the state court will adhere to the U.S. Supreme Court’s admonition that governments have no business in the bedrooms of consenting adults.

Expert testimony
The court decided four cases involving expert witnesses. In two of them, it addressed the issue of waiver of objections to such testimony, when the objecting party adduces similar evidence in its case in chief.

In Drinkard-Nuckols v. Andrews, a medical malpractice case, the court specifically held that the plaintiff, who objected to certain so-called “expectation evidence” (relating to what the defendant doctors expected other doctors would do), waived that objection. The plaintiff had moved the court in limine to exclude such evidence; the trial court partially sustained this motion. But at trial, the plaintiff introduced evidence that the Supreme Court found to be “similar” to the defendant’s evidence. This constituted a waiver of the objection. The court noted that this waiver cannot arise simply by cross-examining an opposing witness, or by adducing rebuttal testimony. The plaintiff’s sin here was in preemptively bringing up the subject in her own case.

In Pettus v. Gottfried, the court distinguished this holding on the facts, finding that the evidence adduced by the plaintiff was not, in fact, similar to the defendant’s evidence on the point. The greater application of the case, however, may be its prohibition of expert “non-opinion” testimony as to other doctors’ views, particularly that a specific cause of a condition cannot be determined. The testimony at issue was as follows:
Over the Plaintiff’s objection, the following testimony was admitted:

Q: Do you have an opinion within the reasonable degree of medical certainty what the cause of Mr. Pettus’ death was?

A: No. In fact, that’s the reason why many times we feel that unless an autopsy is done, it’s really difficult to know what may have happened.
* * *

Roger T. Creager, an attorney familiar with the case, provides this analysis:

“The Plaintiff claimed at trial that the Defendant gastroenterologist had incorrectly diagnosed the Plaintiff’s chest pain and negligently discharged him from the emergency room at the time of an impending myocardial infarction or heart attack.

“The Defendant sought at trial to persuade the jury that no reasonable doctor could reliably determine what actually caused the Plaintiff’s death, since the treating doctors felt they could not do so. The defense, lacking any real defense, could in many cases create the implication that the hired experts are unreliable because none of the ‘local’ treating doctors could form an opinion regarding cause of death or other issues.”

The legacies of these two cases will in all likelihood be their refinement of the waiver doctrine. It is always difficult to walk the fine line afforded by the rule, especially in the heat of a litigation battle. Pettus will require defense attorneys to approach the difficulty-of-diagnosis issue from a new angle.

The court struck certain expert testimony as speculative in Vasquez v. Mabini, a wrongful death case. The decedent worked part-time just before her death, making $8 per hour. She cared for an adult son who, in the words of the court, “was bipolar and had emotional and psychological problems.” Damages were claimed for the decedent’s losses of future income, and for the cost of care required by her son.

The plaintiff called an economic expert, who testified based on certain assumptions the Supreme Court found untenable. For example, he assumed that the decedent, had she lived, would have found full-time clerical work the following day at $8 per hour, plus benefits and annual raises, until her retirement age. He further assumed that the adult son would survive another 24 years. The former assumption was belied by the facts; the decedent had no history of steady earnings and little clerical experience. The latter assumption had an even greater problem – it was, as the defense argued, “counterfactual,” since the son had died nineteen months before trial.

The court had little difficulty in finding the expert’s testimony to be speculative; that portion of the ruling may be a very small addition to the state’s jurisprudence, based as it is on the unique facts of the case. The greater import of the decision, however, may be in an important refinement of the contemporaneous objection rule ( Rule 5:25) relating to the expert’s testimony. The economic expert testified without objection on direct. Ordinarily, this failure to object would be fatal on appeal. But as the court noted, the underlying assumptions didn’t come out until cross-examination of the expert. The defense had advised the trial judge after opening statements that it thought the opinions might not be admissible; the court deferred a ruling until the matter arose in the course of the trial. When the defense uncovered the problematic assumptions on cross, and then renewed its motion, that was a sufficient contemporaneous objection.

The final expert testimony case decided Friday is Hinkley v. Koehler, an obstetrical malpractice case, where the issue on appeal was the meaning of the term “active clinical practice” in the context of section 8.01-581.20(A). That statute requires a standard of care expert to have both knowledge of the specialty, and an active clinical practice within one year of the date of the alleged malpractice.

The defendant called an obstetrician who had ceased delivering babies almost three years before the alleged malpractice. The expert had, however, taught within his field, and performed consultative work on a regular basis, apparently through the time of trial. The trial court found that he met the statutory requirements, and admitted the doctor’s testimony.

The Supreme Court disagreed. Interpreting the statute strictly, it found that consultative work did not meet the requirement for active clinical practice. This ruling represents a case of first impression on this question.

Torts/Workers’ Compensation
Hudson v. Jarrett presented two distinct issues. The first was the statutory employer provision of the Workers’ Compensation Act. Plaintiff and defendant worked for different companies as longshoremen, loading and unloading cargo at the Virginia International Terminals in Norfolk. In response to a personal injury suit arising out of an automobile collision at the terminal, defendant raised a plea in bar, asserting the exclusivity provision of the Act. Defendant asserted that both employees were, in fact, statutory employees of VIT, since their respective employers were both contracted to perform work for VIT. The trial court sustained the plea, but the Supreme Court reversed, holding that the contracts between the employing companies and VIT give those companies the right, but do not impose the obligation, to load and unload cargo. Accordingly, the parties were not fellow employees, and the bar did not apply.

The second issue is less fact-specific, and will affect the way many tort cases are tried. Plaintiff had collected Workers’ Compensation benefits for his injuries. During the pendency of the case, the Comp insurer moved for, and was granted, leave to intervene as a party, in order to protect its right to reimbursement for the benefits it had paid to plaintiff. The Supreme Court reversed this ruling as well, holding that the insurer did not have a justiciable interest in the action sufficient to make it either a plaintiff or a defendant.

The court decided only one pure contract case this term, that of Zelnick v. Adams. This was a suit by an attorney who had performed legal work for a minor, and was suing to collect his fee. The minor filed a plea of infancy. The court thus addressed the three-part question of whether the plea should be sustained. The case had reached the court once before, Zelnick v. Adams , 263 Va. 601 (2002), and had been reversed and remanded for further proceedings that resulted in this second appeal.

In analyzing an infancy plea, the first inquiry is legal: Whether what is supplied to the infant (here, legal services arising out of an estate) may be within the class of “necessaries.” This question had been answered in the 2002 appeal in the affirmative. The case was then remanded to the trial court for the factual determinations required by the second and third prongs. The second is whether the services could, on the evidence adduced, be found to be necessary in fact. The third, the ultimate issue, is whether the services were, in fact, actually necessary to the position and condition of the infant.

The trial court answered the second question in the affirmative, and this ruling was not challenged on appeal. The real battle was over the third question.

The trial court answered it in the negative, ruling that (a) a minor nearing majority has a right to be consulted on matters affecting him, and (b) delaying the services until the minor reached majority (which he did eleven months after suit was filed) would not have prejudiced the minor’s rights. The Supreme Court disagreed with the trial court on the first ruling, but agreed on the second, and affirmed the judgment.

The most important aspect of this case will be its effect on decisions by attorneys hired by parents of minors. The attorney must ask herself whether the minor would be prejudiced by waiting until majority, at which point he can make his own decisions, including those about the course of litigation. As in the Zelnick decision, the factors militating in favor of waiting are strongest when the minor is close to his eighteenth birthday, and when filing suit immediately is not necessary to preserve an important interest of the minor.

Administrative law
A dispute over the design and installation of an Internet call center led to the ruling in Mid-Atlantic Business Communications, Inc. v. Virginia DMV. Mid-Atlantic received a notice of cancellation of a contract under the Public Procurement Act. It protested, but received a letter on August 22, 2002, denying its request for payment. Four days later, it sent a letter to the DMV Commissioner, requesting payment; that, too, was denied. It then sent a letter to the Commissioner and to the state Comptroller, seeking payment. After a delay of several months, the Comptroller wrote back on January 31, 2003, again denying the claim. Mid-Atlantic filed suit four weeks later, on February 27.

The Act requires that any suit be filed within six months after the final decision of a public body. This suit was filed six months and five days after the initial denial letter. One fact-specific issue on appeal was whether the repeated denials were sufficient to restart this six-month clock; the Supreme Court held that they were not. Of more general interest and application, however, is the court’s ruling on an ancillary issue in the case. Mid-Atlantic had argued in both courts that the statute of limitations was tolled by the DMV’s obstruction of its filing of the suit, pursuant to section 8.01-229(D) of the Code.

The trial court had overruled this argument, holding that the tolling provisions, like statutes of limitations generally, “[c]an’t run against the Commonwealth.”

The Supreme Court found no such provision in the law relating to the tolling statute, and nominally “reversed” the trial court on this ruling. But using reasoning familiar to appellate attorneys as “right for the wrong reason,” the court upheld the judgment by finding that the facts did not establish a sufficient basis for tolling the running of the statute in this case. While the court noted that there was a considerable delay in the Comptroller’s response, it found no evidence that the official intended thereby to prevent the filing of suit. It specifically reaffirmed that actual fraud, not merely constructive fraud, must be shown to implicate the tolling provision.

The court ruled in Nat’l Bank of Fredericksburg v. Virginia Farm Bureau F&C Ins. Co, that a union mortgage clause of a liability insurance policy did not create a separate policy of insurance for the lienholder/bank.

A Mr. and Mrs. Adams bought a vehicle, and paid for it with a loan from NBF. They gave the bank a lien against the vehicle, and arranged for the bank to be named a loss-payee on the collision coverage provided by the policy. Late in 2001, the Adamses received a notice from the insurer that their insurance premium was due before January 5, 2002, or their policy would lapse. The insurer simultaneously sent the bank a renewal declaration defining the next policy period (January 5 to July 5, 2002). The notice contained a union mortgage clause, providing that any act or neglect of the insured would not invalidate the bank’s insurance. It also provided that if the owner did not pay the premium, then the bank would have to pay it on demand.

The Adamses did not pay the premium. The insurer sent them a notice on January 9, stating that the premium was overdue and that they would receive no further notices. They did not respond to this note; the insurer did not demand payment from the bank, as it had a right to do.

As if on schedule, Mrs. Adams totaled the car on January 19.

When the bank filed a claim, the insurer denied coverage, stating that the policy had expired on January 5. The bank contended that the union mortgage clause created a policy in the bank’s favor, and that the “neglect” of the owner to pay the premium could not work to the bank’s detriment. The Supreme Court ruled in favor of the insurer, holding that “the lienholder’s coverage is subject to all the terms of the original policy except for his protection against the owner’s wrongful or negligent acts,” and specifying that the bank is bound by the time limits in the underlying policy. Finding that the policy had lapsed, the court held that the bank could not recover under this adjunct to it.

In a highly fact-specific case, the court ruled in LZM, Inc. v. Virginia Department of Taxation that a service of pumping out portable toilets, which service was ancillary to the underlying leases of the toilets, was subject to taxation under the “true object test” governing the provision of such services. This ruling follows the initial finding that the test applies to lease/service transactions as well as sales/service transactions.

This case provides the Department the opportunity to tax a two-part transaction as though it were a unitary service contract. LZM leased portable toilets, and offered to its lease customers contracts for the pumping of the toilets. The customers did not have to sign the second contract in order to lease the toilets (though, as the court points out, the leased toilets, if not pumped out, would not be commercially viable). The court found that the true object of the contracts was to provide toilets that were usable, i.e., that were pumped out from time to time. As such, all of the company’s revenues from the two sets of contracts were taxable revenues.

Land Use
The court took up Orange County’s zoning ordinance in Capelle v. Orange County, a challenge to a special use permit granted in furtherance of a mining operation. A brick manufacturer purchased land to be mined for materials to be used in the manufacture of its product. It submitted an application for a special use permit for the site. The large parcel included land in two separate zoning districts – one agricultural and one residential. The mining operation would occur in the agricultural district, while the plan called for the construction of a private access road that would partially run through the residential sector.

Some residents sued, claiming that the grant of the permit was arbitrary and capricious. Fearing an onslaught of dump trucks hauling the spoil of the mine, they asked the trial court to overturn the grant of the permit. The court sustained a motion to strike at the conclusion of the plaintiffs’ case, reasoning that the construction of a road was a customary accessory use of a mine, and that mining operations were specially permitted within the agricultural zone.

The landowners obtained a writ from the Supreme Court, and then a reversal of the trial court’s ruling. The Supreme Court carefully read the zoning ordinance, and concluded that “the term ‘accessory use’ in the context of this disputed provision . . . refers to uses customarily incidental to the listed permitted uses in limited residential zoning districts.” The court found this ruling to be in harmony with the ordinance’s stated purpose to protect residential districts from the noise and annoyance typical of other districts.

It is tempting to read into this decision a hidden agenda of siding with the common man who seeks to defend his castle against the noise, vibrations, and other annoyances attendant to living near a mine. But the court was careful to base its ruling on the precise wording of the ordinance. The court also took pains to note the County’s position that the narrow construction the court ultimately adopted might limit the mine owner’s property rights onsite. The court pointed out that this was a matter for the legislative process, in formulating the ordinance in the first place.

Criminal law
The court affirmed all six criminal convictions that it considered this term. At least one of them, Jefferson v. Commonwealth, has implications for civil cases as well. Jefferson deals with the effect of a nunc pro tunc order on the ensuing period of probation. Jefferson was sentenced in 1999 for grand larceny. His sentence (20 years, with all but six months suspended) included a term of supervised probation. The trial judge announced his ruling from the bench; an order carrying out the sentence was prepared, but not signed.

Jefferson served six months in prison and was released. In 2002, a revocation proceeding was initiated, based on his recent conviction of obtaining money by false pretenses. In September 2002, the same judge conducted a revocation hearing, and discovered for the first time that he had not entered the 1999 sentencing order. He then signed the order “ nunc pro tunc March 18, 1999.”

Jefferson contended on appeal that a court of record speaks though its orders, and his subsequent conduct could not logically be found to have violated a sentencing order that had never been entered. (He also attempted to argue on appeal that the nunc pro tunc order did not accurately reflect the 1999 proceedings. The Supreme Court discerned that this argument had not been raised below, and was therefore waived pursuant to Rule 5:25.) In answering Jefferson’s contentions, the Supreme Court distinguished between rendition of judgment (which can be oral) and entry of judgment (which must be in writing). It found that the rendition of judgment was a “valid judicial act of sentencing” and affirmed the conviction.

There is no logical reason to limit the application of this rule to criminal cases. Courts often enter orders nunc pro tunc in law and equity cases. Those orders provide “evidence of judicial action, that is, a declaration of historical fact.” The effect of the trial court’s order, however, begins immediately, in criminal as well as civil cases. Only those subsequent acts that are specifically dependent on the “evidence of judicial action” (for example, issuance of a writ of execution) will be postponed by a delay in entry of an order.

The court decided a constitutional challenge to the fruits of a Terry stop in El-Amin v. Commonwealth. El-Amin was found in the company of three other men as a result of an anonymous tip. When police officers arrived, one of the men (not El-Amin) turned away and put his hand in his waistband. That produced a stop-and-frisk of the suspect, at which point the officer found a pellet gun in the suspect’s waistband. This fact was announced to the other officers present.

During all this time, El-Amin had done nothing suspicious or threatening. Still, the presence of the gun led the police to frisk everyone. El-Amin had a weapon and drugs in his possession. His motion to suppress was denied; that motion formed the basis for the appeal.

The sole issue on appeal was whether police officers may perform a Terry stop on an individual, based on the conduct of his companions. The officers conceded that El-Amin had given them “no particularized safety concerns,” but felt that the presence of one gun was enough to justify further searches, for the safety of the officers. On appeal, the Commonwealth asked the Supreme Court to adopt a “companion rule” that has found favor in several U.S. Courts of Appeals, including the Fourth, to provide that a reasonable suspicion of one person automatically justifies a search of all his companions. The court declined this invitation. Still, it found that the totality of circumstances justified the additional searches in this case, and affirmed the conviction.

The long-term effect of this case will, ironically, probably be the failed effort to convince the court to adopt a companion rule. Deciding a case on the facts by pointing to the totality of circumstances is nothing new, and the factual basis of this case is sufficiently unique that it may be hard to apply the court’s ultimate ruling to other cases.

The court decided a narrow factual issue, albeit one of first impression, in Morris v. Commonwealth. The specific rule of the case is that a flare gun is a firearm, within the meaning of the statute prohibiting the brandishing of firearms. The case is noteworthy for an evidentiary point. The defendant introduced in a post-trial motion a letter from the Chief of the Firearms Branch of the federal Bureau of Alcohol, Tobacco, and Firearms. The letter stated that, in the view of the bureau, a flare gun was not, in fact, a firearm, and was not regulated by the bureau as such. The court, in a pointed footnote, held that such evidence was irrelevant. “How the BATF interprets the federal statute and decides what is and what is not a firearm is not binding upon this Court, or even persuasive.”

In Collins v. Commonwealth, the court distinguished between the suspension of a sentence and probation. The case arose when Collins, having been convicted on a drug charge, was admitted to bail pending an appeal. His sentence called for two years of incarceration, with 21 months of that sentence suspended. While he was free on bail, he committed, and was convicted of, a separate drug offense. In a revocation proceeding, the court revoked his probation and imposed the suspended 21 months of his original sentence.

Collins argued that he could not be found in violation of a term of probation that had not yet begun; the original sentencing order stated that Collins was to be on probation after his release from custody. Citing section 19.2-306 of the Code, the Supreme Court found that there are two distinct periods in which convicts are required to be of good behavior. The first begins immediately upon the pronouncement of a suspended sentence, whether expressly stated by the court or not, whether appealed or not. The other is the period fixed in the sentencing order as a period of probation. Finding that Collins was subject to the sentencing order from the time it was announced, it ruled that the trial court properly required him to serve the entire two-year sentence.

This case will be helpful for its analysis of the related concepts of suspension of a sentence (which can occur with or without a term of probation) and probation (which can never arise without a suspended sentence).

Carter v. Commonwealth presented the court with a conviction for assault on a police officer where the defendant had no actual ability to harm the officer. At a nighttime traffic stop in a high-crime area, a passenger in a car suddenly pointed his fist, with thumb raised and index finger pointed to mimic a gun, at the officer before saying, “Pow.” The officer initially thought the passenger had a gun, and testified that before the defendant spoke, he was terrified that he was about to be shot.

In analyzing this appeal, the court considered the common law definition of assault (the statutes do not define the term), and concluded that the present actual ability to inflict harm is not an element of the crime. As the gravamen of assault is the intentional emotional harm done to the victim when he perceives the threat, the court found that Carter had been properly convicted. This ruling should apply to the tort of assault as well.

The defendant in Correll v. Commonwealth was convicted below of felony neglect of her elderly, infirm mother. The mother had advanced Parkinson’s disease, and Correll was her caretaker. The mother eventually died as a consequence of chronic starvation, malnutrition, and dehydration.

Finding that Correll was the court-appointed legal guardian of the decedent, the court swept aside Correll’s assertion that the evidence was insufficient to convict her under section 18.2-369 of the Code. The evidence clearly established the chronic nature of the decedent’s health problems, and the fact that they were apparent to Correll before her mother’s death.