[Posted January 13, 2011] Today begins the seventh year of Virginia Appellate News and Analysis, as the Supreme Court issues 21 published opinions. From the standpoint of criminal-law practitioners, this is a landmark day, as the court finally decides the previously open question of whether trial courts have the authority to defer findings in prosecutions after finding the evidence sufficient to convict. Let’s start today’s analysis there.

Criminal law
When the court decided Moreau v. Fuller in 2008, if left open the merits of the question whether a trial court could hear the evidence, find it sufficient to establish guilt, but then defer a finding to allow the defendant to prove himself worthy of leniency. Moreau was decided on procedural grounds – the court held that mandamus was not available to compel a judge to rule. Today, in Hernandez v. Commonwealth, the Supreme Court determines that trial courts have the authority to defer findings in situations like this.

The court relies on one premise in Moreau to decide this appeal: Adjudicating a criminal case necessarily involves the use of judgment and discretion. In Moreau, the court used that premise as the basis for refusing mandamus, which is only available to compel the performance of ministerial acts. Today, the court rules that a recitation that the evidence is sufficient to establish guilt is not the same as a finding of guilt; the court still has to employ its judgment and discretion on whether to find the defendant guilty, and if guilty, to apply an appropriate sentence. Trial courts, being courts of record, speak through their orders, not through the oral comments of judges. The Supreme Court rules today that in the interim between the close of evidence and the entry of a judgment order, the trial court retains the inherent authority to weigh the matter and to defer a finding to permit that.

It’s probably an understatement to call this a hot-button issue among criminal practitioners. In prosecutions involving defendants without a significant history of convictions, this tool has been highly valued, and widely used, by defense lawyers who sought the only conceivable means of shaking loose a client who demonstrably committed the offense. Today’s ruling, coming on a matter of immense practical application in the trenches, will surprise some lawyers by its spare nature; at just six pages, it’s the shortest opinion of the day.

Let’s move next to the longest of the day: Crawford v. Commonwealth is the appeal of several convictions, including capital murder, of a man for the death of his estranged wife. This is the third time I’ve written about this appeal, so I won’t repeat the facts here; you can click here to see what I’ve written before. The en banc Court of Appeals had ruled that the victim’s affidavit, used to obtain a protective order against her abusive husband, was admissible because it wasn’t testimonial under Crawford v. Washington. Today, the Supreme Court takes a different route to get to the same destination. It rules that while the admission of the affidavit was erroneous (because it was testimonial), that error was harmless given the “overwhelming” strength of the prosecution’s other evidence. For the most part, the court finds that the affidavit was cumulative of other evidence in the case; in other areas (for example, the conviction for use of a firearm in the commission of a felony), the affidavit was irrelevant.

In case you’re wondering how the court could find a plain constitutional violation that is somehow harmless, the court cites a 1986 US Supreme Court decision that specifically authorizes harmless-error analysis in situations like this.

From one Crawford case to another, except this one doesn’t involve a Virginia defendant by that name: Walker v. Commonwealth is where the court decides the constitutionality of the Virginia statute that allows the prosecution to use blue-book values when proving the value of a stolen auto. There’s no doubt that Walker did it; they caught him red-handed behind the wheel of the stolen car. The only issue on appeal is how much the car was worth. The Commonwealth relied on the blue-book statute despite the threat of a Melendez-Diaz objection. (Melendez-Diaz v. Massachusetts sprang inexorably from Crawford v. Washington.)

The trial court found that the blue-book’s recitation of value wasn’t testimonial, and convicted him of grand larceny. On appeal, first the Court of Appeals and now the Supreme Court give Walker no succor; his conviction is affirmed. In order to be testimonial, the challenged statement must be accusatory in some respect, instead of being prepared for some non-litigation purpose.

Of course, we all know what the primary purpose of the blue book is: for haggling with used-car dealers. Senior Justice Russell, who authors this opinion, provides one of the best bon mots of the day to illustrate how this evidence could not possibly be testimonial:

“It is most improbable that the compilers of the ‘blue book’ ever heard of Walker or the charges against him and they certainly did not prepare the book for the purpose of assisting the Commonwealth in securing his conviction.”

There are two opinions today dealing with the crime of construction fraud. One of them is actually a tort suit for malicious prosecution (O’Connor v. Tice, discussed below). The other is Bottoms v. Commonwealth, which involves a defendant’s request to withdraw a guilty plea.

Bottoms is a contractor who entered into two renovation contracts in Dinwiddie County, one for work on a home and the other calling for repairs to a church building. He finished work on the house, but the owners thought that the quality of his work was poor; they claimed to be “out” $1,642. (Sorry; that’s as much detail as I can give you on what was wrong with the work, since that’s pretty much all the opinion tells us about the prosecution’s evidentiary proffer.) He began work on the church, but a building inspector soon discovered that he didn’t have the right kind of contractor’s license, and that the work he’d performed to that point wasn’t up to Code. The contractor accordingly stopped working on the project, which was completed by another contractor. For these defaults, a grand jury indicted him for two counts of construction fraud; each count carried a potential maximum sentence of twenty years in prison.

(The first lesson I derive from this scenario is to steer well clear of Dinwiddie County grand juries. But that’s getting away from our story.)

At his arraignment, the contractor, having been advised by counsel, indicated that he would plead guilty to the charges. After a guilty-plea colloquy, the trial court accepted his plea and set a date for sentencing. But before that date, the contractor hired a new lawyer who did some research and figured that his new client actually had a defense, one that had not been explored by the first lawyer. He accordingly requested leave to withdraw the guilty plea, citing a statute and a 2007 SCV opinion.

At the hearing on this request, the lawyer explained that his client was suffering from depression, for which he had been taking prescription medication. But the client had not had access to that medicine before the arraignment. The lawyer went on to explain that there was a legitimate defense to the charges, in that a conviction of construction fraud requires an intent to defraud at the inception of the contract. Even the Commonwealth’s evidence showed that, for example, the contractor continued work on the church until he was ordered by a building inspector to stop work.

The trial court refused this request, noting that during the arraignment the contractor had been asked whether he was taking any medications, and that he had answered in the negative. The defense lawyer argued in vain that a legitimate defense existed. The trial court eventually sentenced the contractor to two concurrent ten-year prison terms, with eight years suspended. A panel of the Court of Appeals unanimously affirmed the conviction in 2009, noting that the contractor had brought this problem on himself by incorrectly stating at the arraignment that he wasn’t taking any medication. It also held that the proffered defense was too vague to remove it from the category of merely dilatory defenses, for which trial courts may justifiably refuse to allow the withdrawal of a plea.

The Supreme Court today reverses the conviction and remands the case, directing that the contractor be permitted to withdraw his guilty plea. The court contrasts this situation with a habeas-corpus proceeding, where a judgment has already been entered; it notes that the presumptions in favor of finality that weight heavily in habeas cases simply don’t apply here. Until the court enters a final order (which, in a criminal case, is the sentencing order), the matter is still within the control of the circuit court, where errors may be freely corrected. The court also rejects the CAV’s finding that the proffered defenses were vague, particularly since the prosecution’s own evidence showed that he at least tried to perform the work on both contracts.

The opinion concludes that the evidence certainly could show that the contractor entered into the contracts without any intent to perform them in a workmanlike manner; but that dispute is one for the ultimate factfinder.

I’m going to read between the lines here just a bit and suggest that the trial court’s sentence played at least some part in this outcome. A contractor who performs the agreed work on the home, but who faces two years in prison because the owner finds he doesn’t like the quality of the workmanship, calls to mind something out of Kafka. Like the O’Connor decision discussed below in the torts section, this should have been a civil matter, where the owner and the contractor could have litigated their dispute to a money judgment if appropriate. Turning it into a criminal charge looks for all the world like overreaching, at least as the evidence is presented here. (I recognize that if witnesses had been called, it could well have been more damning than the summary we get in today’s opinion.)

We next turn to two DUI cases. The first of these is the last round of the epic struggle Roseborough v. Commonwealth, which has already appeared on the pages of this website, back when a highly fractured en banc CAV just barely affirmed the conviction. My earlier analysis is here, in which (ahem) I correctly predicted “further appellate scrutiny.” (I’ve got to get some of these calls right from time to time, or my audience will head for another website.) At issue is whether a police officer can arrest a DUI suspect after an accident the officer didn’t witness, where the offense is on private property. The irrevocably intertwined second question here is whether that kind of arrest can trigger the implied-consent statute.

In contrast to the sharp division in the Court of Appeals, today a unanimous Supreme Court reverses the conviction and remands for a new trial. The court finds the CAV majority’s reasoning (the driver helpfully volunteered to take a breath test, so the result was automatically admissible) to be beside the point. The implied-consent statute is the only thing that makes this admittedly hearsay document admissible, and under the facts of this case, the officer did not have the authority to arrest without a warrant. That makes the certificate of analysis inadmissible. The Commonwealth can still go forward without the test results if it wishes (based on the officer’s field observations, for example), but obtaining a conviction without the certificate will be much more of a challenge.

The next case is the court’s latest statement defining just when one is “operating” a vehicle: Nelson v. Commonwealth involves a highly intoxicated defendant, found right behind the wheel of a car, who nevertheless contends that he wasn’t operating the vehicle. As he noted at trial, the engine was off; the transmission was in park. The only thing operating in the car was the radio, no doubt broadcasting the soothing sounds of the Ray Conniff Singers performing “Somewhere My Love.” (Okay; maybe something a bit more modern than that.)

The ultimate question in this case is whether sitting in a car with the engine off, but the radio on, constitutes “operating” the vehicle. The DUI statute forbids anyone “to drive or operate any motor vehicle” while under the influence. Everyone recognizes what driving is, and that it requires moving the vehicle. Several decisions in the past few decades have focused on the broader question of whether the defendant could be said to be operating a vehicle, even without driving it.

This appeal generates a split decision: Six members of the court vote to affirm, noting that the ignition key was in the “on or accessory position.” That switch at least enables a person to use the electrical system in the car in order to listen to the radio. Judging from the cases cited today, in all of the Supreme Court’s prior decisions affirming convictions, either the car was moving or the engine was running. This is, as far as I know, the first time in our Commonwealth’s history when the Supreme Court has affirmed a conviction of DUI when the engine has been turned off.

This situation is just too much for Justice Koontz to stomach; he files a dissent that cites an earlier dissent by three of his judicial ancestors, arguing that the defendant was being convicted for occupying, not operating, a vehicle while under the influence.

There is substance behind his objection, in my opinion. I’m a former DUI prosecutor, and someone with this high a BAC (.40%, an astronomical level of intoxication) probably should not look to me for sympathy, especially since this was a fourth conviction in ten years. But the evil that the DUI statutes is designed to address is that of persons who endanger themselves and others by operating the machinery of something as dangerous as a vehicle while they’re in no shape to do so. In my view, listening to the radio doesn’t fall in that class of activities.

It also occurs to me that the majority’s view might theoretically be based on the premise that with the ignition key in the “on/accessory” position, it would be easy for an intoxicated person to turn the key and start the engine, and the Commonwealth can legitimately proscribe conduct that’s’ this close to being dangerous. But the inescapable conclusion from the majority opinion is that if the ignition key had been turned one more click counterclockwise, to the “off” position, then Nelson would be facing, at most, a drunk in public charge. I therefore doubt the majority had that view in mind.

In terms of the name of the offense, the most ponderous case of the day is Preston v. Commonwealth, involving a conviction of (take a deep breath here) possession of a firearm after having been adjudicated delinquent, as a juvenile 14 years of age or older, of an act that would be a violent felony if committed by an adult. He contended that the evidence established his guilt only of the lesser offense of (inhale again) possession of a firearm after having been adjudicated delinquent, as a juvenile 14 years of age or older, of an act that would be a nonviolent felony if committed by an adult.

This opinion focused solely on the evidence used to prove the predicate offenses. At trial, the prosecution produced proof of two prior charges: one grand larceny and one breaking and entering. The opinion assures us that B&E is considered a violent offense.

There’s no dispute about the larceny conviction, so Preston is guilty of at least the lesser offense. But the trial court convicted him of the greater offense based on the B&E charge. The juvenile court’s records showed an accusation on that charge, a plea of guilty, and a disposition of “Probation, 25 hrs c.s.” I’m going with “community service” as the likeliest explanation for this last abbreviation.

So how is that deficient? As today’s unanimous opinion points out, it never stated what charge Preston had pleaded guilty to, or what charge he had been convicted of. That conviction could itself have been on a lesser included offense, but the conviction record was blank in the areas listed for “Plea” and “Findings of Court.”

The trial court gave Preston a mandatory five-year sentence; the case is remanded for resentencing under the lesser conviction, where the defendant will face a term of two to five years. He isn’t getting off completely; but avoiding a mandatory minimum like this is one of the primary goals of most criminal defendants.

I’ve sometimes joked with friends that one of the benefits of going to law school is that you can learn how to cuss someone out in Latin, so they have no idea they’re being insulted. Today’s opinion in Commonwealth v. Morris includes a discussion of one seldom-used Latin term (coram vobis), and another I had never even heard of before this (audita querela). Fortunately, we have Justice Lemons to explain them to us, and to describe their role in modern criminal practice.

The common theme in these two appeals, consolidated for today’s single opinion, is the devastating effect of even a relatively minor criminal conviction upon the status of resident aliens, particularly those who would seek to join us as American citizens. Such a conviction can turn a promising case for naturalization into a fast-track deportation proceeding. Last year, the US Supreme Court ruled that a criminal-defense lawyer must advise his alien client of the immigration effects of a conviction, or provides ineffective assistance.

The boundary between a disqualifying conviction and one that would cause an immigration official merely to shrug is a one-year sentence. The federal regulations refer to an “aggravated felony,” but most lawyers will be surprised to learn that simple assault, which is neither aggravated nor a felony under Virginia law, qualifies under the federal worldview. The same thing goes for a crime of moral turpitude with a penalty of one year or more.

One of today’s appellees was convicted of grand larceny; the other, simple assault. Both received 12-month sentences, with most or all of that suspended. And both found, to their chagrin, that these convictions would mandate a dramatic, involuntary change of address. Neither had filed a timely habeas-corpus petition (which require that the defendant be in custody anyway) asserting ineffective assistance.

Their lawyers seized upon the old Latinisms I’ve described above. Coram vobis is a common-law writ issued by an appellate court to correct a factual error underlying a judgment, where the true facts would have prevented the court from rendering judgment. The two aliens argued that if the court had known about the immigration effect, they would have sentenced the defendants to just under one year. Indeed, both courts granted the relief; one sentence got changed to 364 days, and the other one to 360. (The second one must have had a marginally better lawyer, to get the extra four days knocked off.)

That’s a nice try, the Supreme Court rules today, but it’s a misapplication of a coram vobis writ. Even if the trial court would have issued a different sentence had it known the effect of a 12-month term, that fact didn’t prevent it from rendering judgment; each court still had the authority to sentence the defendant to any term within the statutory range. Today’s opinion illustrates some of the past uses of this writ, and they’re distinguishable from this kind-hearted but incorrect use. (For example, “where a judgment is rendered against a party after his death, or who is an infant.”)

The court similarly rejects the use of audita querela, in a very interesting manner: by plumbing the depths of Virginia’s reliance on the English common law. First, as a fascinating bit of legal history, we learn that Virginia’s adherence to English common law ends, statutorily, in 1607. Any common-law doctrines after that must have arisen here in Virginia. The court then notes that the legislature has never abolished the writ, so it still exists, but points out that “it has fallen into disuse in civil practice.” (I admire Justice Lemons’s surgical use of understatement here; I doubt there are more than a dozen lawyers across the Commonwealth who have ever heard of these writs before today, and even fewer who have ever tried to get one.)

But before 1607, the writ was only used in England in civil proceedings; never in criminal cases. Its purpose is to challenge a civil judgment based on facts that weren’t available to the judgment debtor before the case became final. Nowadays, we use motions for relief from a judgment to pursue relief like that.

The court concludes that, while a couple of states have applied this writ to canopener and then amend criminal sentences, we won’t be joining them. That means that the writ can’t help these two aliens, whose avenues of relief from the consequences of their convictions may be running out.

One last thing: In case you’re curious, coram vobis means “before you,” referring to the premise that a writ was presented to one court to review a ruling by another court. The related term coram nobis means “before us,” where you ask a court to review its own order. Audita querela seems like a more general term (“hear a complaint,” something that courts do all the time). If you’re interested in cussing someone out in Latin, shame on you (but get back to me offline and we’ll see what we can come up with).

The final criminal case of the day is Angel v. Commonwealth, an appeal of a triple-life sentence for a particularly aggravated sexual assault. There are several individual holdings in this 41-page unanimous opinion, most of which are findings that various trial-court rulings were at most harmless error. The court affirms the CAV’s findings along those very lines; both courts assume without deciding that the rulings were error.

There are, however, a couple of rulings that do break some new ground, or at least explain the contours of existing law. First, the court rules as a matter of first impression whether the failure to provide parental notification in an initial advisement hearing and a transfer hearing, where the defendant is 17 years old at the time, violates the Due Process Clause. (The authorities hadn’t notified Angel’s parents because his mother lived in an unknown location in Central America, and Angel didn’t know his father.) The court had decided back in the 1960s that there was no such right in non-adjudicatory hearings, but Angel argued that the law regarding juveniles has evolved since then. Maybe so, the court rules, but not to the point that notification is required at these early stages. Besides, the juvenile court had appointed both counsel and a guardian ad litem for Angel, so the court finds that his interests were protected.

There’s a key preservation ruling relating to two objections to the prosecution’s closing argument. The first is waived, the court rules, because of the familiar requirement that merely objecting isn’t enough; you have to move for a mistrial in the trial court, or the appellate court won’t give you one. The second objection was, however, accompanied by a motion. The CAV had ruled that this objection, too, was waived; but the Supreme Court reverses that ruling, finding that under the particular circumstances here, the motion was timely. Having opened the door to analysis of the motion on the merits the court closes it promptly by finding that the motion was properly denied.

Finally, the court addresses Angel’s newly-added challenge based on Graham v. Florida, which was decided by the US Supreme Court last year, after the CAV announced its ruling in this appeal. Graham holds that states can’t sentence a juvenile to life without parole for nonhomicidal crimes. Both Angel and the Commonwealth asked the justices to go ahead and decide the issue, despite the fact that it hadn’t been raised below, because of the importance of the question and the virtual certainty that it will recur. To my slight surprise, the Supreme Court agrees to do just that.

Virginia has abolished parole, of course, and Angel got three life terms for offenses that occurred when he was 17, so presumably this doctrine applies to him. But Virginia has had a statute, dating back long before Graham, that permits the release of what it calls “geriatric prisoners” in certain circumstances. Some of you may be surprised to learn that the earliest threshold for “geriatric” is 60 years old, assuming the prisoner has served at least ten years. (If you’re a young 60 and are feeling offended by being called geriatric, don’t blame the justices; this was the Code Commission’s descriptive term.) The court today finds that this satisfies the mandate in Graham that youthful offenders must be given some hope of eventual release, so the life sentences are affirmed.

Constitutional law
After decades of jurisprudential neglect, the Second Amendment has gotten quite a workout in the courts in the past three years. First came DC v. Heller in 2008, where the US Supreme Court ruled that the District of Columbia couldn’t prohibit people from arming themselves. Last year, in McDonald v. Chicago, the same court applied the bar to the states. Today, in DiGiacinto v. George Mason University, the Supreme Court of Virginia gets its turn.

Did you know that the Constitution of Virginia has a companion to the Second Amendment? It’s Art. I, §13, and believe it or not, the court has never, in all its history, issued an opinion interpreting it. I was surprised when I read that news in today’s opinion, but given the paucity of Second-Amendment caselaw before Heller, perhaps I shouldn’t have been. In any event, the issue here is GMU’s prohibition of carrying weapons in university buildings or at athletic or cultural events. The petitioner, a non-student but a frequent visitor to the campus, sought a ruling that the prohibition was unconstitutional in the wake of Heller and McDonald.

The trial court upheld the school’s regulation, and on appeal, the Supreme Court affirms. The court today notes that in Heller, the US Supreme Court describes certain “sensitive places,” specifically including schools, where regulation of firearms is permissible. The court unsurprisingly finds that GMU’s buildings are “sensitive places” within that definition, so it rules that the regulation is permissible. The court notes that the regulation doesn’t prohibit carrying arms throughout the campus; just where people are likely to gather (in school buildings or at the described events).

There’s a separate issue here that deals with an arcane constitutional provision. That provision (Art. I, §14) prohibits anyone from setting up a separate government within the boundaries of our fair commonwealth. The petitioner had argued that by promulgating its own on-campus regulation, GMU had acted as a separate sovereign, since the General Assembly has never seen fit to enact such a ban. The court first notes that the university isn’t immune from a declaratory judgment on this issue, since this provision is self-executing. That’s the petitioner’s lone victory today; having ruled that it can decide the case on the merits, the court goes on to rule that the regulation isn’t an attempt to set up a separate government. That’s because the legislature has granted unto the school the authority to promulgate regulations. The trial court’s judgment is accordingly affirmed.

There are several tort-law decisions today. In Addison v. Jurgelsky, the court takes up the question of what happens when only one of two co-administrators files a wrongful-death suit. The co-administrators here are a husband and wife who qualified on behalf of their son, who died after receiving medical care at a facility in southwest Virginia. The father sued several defendants just before the statute of limitations ran, but the mother didn’t join the suit. The defendants filed motions to abate the action, since the mother was a necessary party. The trial court denied the motion, but allowed the father to amend his pleadings to name the mother as an additional plaintiff.

Once the amended complaint was in the clerk’s office, the defendants asserted the running of the statute of limitations, claiming that the original suit was a nullity that didn’t toll the running of the statute. This time, the trial court bit, and dismissed the action.

There are two issues presented in this appeal. The first is whether all joint personal representatives must join as plaintiffs in a wrongful-death action. The Supreme Court today affirms the trial court’s finding that they must indeed, and the reasoning makes sense: Otherwise, two or more personal reps could file separate actions (in case they disagreed on trial strategy), leading to inconsistent results or even multiple recoveries. From the standpoint of statutory interpretation, the telltale use of the definite article the, instead of an indefinite article such as a, in the phrase “must be brought by and in the name of the personal representative” means that all personal reps must join in the suit.

The Supreme Court then turns to the second question: Does the filing of an action that omits one necessary plaintiff nevertheless toll the running of the statute? The answer this time favors the parents; the court rules that you can join a missing plaintiff under the statute permitting the adding or dropping of parties, even after the statute expires. This means that the parents’ amended complaint wasn’t barred by the statute of limitations, so the case goes back for trial.

It’s important to constrain this holding to its particular circumstances. For example, it deals with the addition of a missing plaintiff; not a missing defendant. The defendants were already in the case, so they didn’t suffer from any of the time-based prejudice that underlies statutes of limitations. If the plaintiffs had tried to use §8.01-5 to add a new defendant after the statute had run, they’d have a very different problem that probably wouldn’t survive an assertion of the statute as a defense.

The next tort case implicates a very narrow question involving a thrill ride at a ski resort. Vuich v. Great Eastern Resort Corp. arises out of an injury at the Massanutten ski resort in something I’d never heard of before – a “snow tubing park.” It’s somewhat like a normal ski trail, except that riders descend not on skis but riding on what I assume are inflated tubes, much like the old inner tubes in tires. Since the riders can’t control their forward (downhill) motion, the track is carefully landscaped to provide a sort of chute, from which the tubes presumably do not stray. There’s a “landing area” at the bottom with a padded rear wall.

One rider was injured when her tube didn’t slow in the landing area and she crashed into the wall, resulting in “serous spinal injuries.” She sued the resort alleging negligence, and later sought leave to file an amended complaint, raising the provisions of the Virginia Amusement Device Regulations in the Virginia Administrative Code. Those regulations contain safety specifications for “gravity rides,” and the rider plausibly asserted that this arrangement was a gravity ride.

The resort responded that the regulation defined a gravity ride as “a device or structure,” and this wasn’t an animal of that stripe; this was terrain. True, the slope contained a conveyor belt that lifted riders to the top of the ride, and that was indeed a device or structure; but that wasn’t involved in the injury at all. The trial court agreed and entered partial summary judgment on that portion of the rider’s claim that was based on the VADR.

The Supreme Court awarded the rider an interlocutory appeal to consider this ruling. It finds today that the resort’s setup was a structure, so it reverses for adjudication of the claim on the merits. In reaching this conclusion, the court notes that this isn’t natural terrain; it’s carefully shaped to serve as the conduit for thrill riders. In addition, the wall at the end of the run, on which this rider injured herself, is unquestionably a structure.

My sense is that this ruling isn’t likely to make the Top-10 citations lists for Virginia caselaw, because it’s narrowly tailored to this regulation, and this ride is so unique. Still, it will give litigants some ammunition where their cases depend on the question of what a structure is.

Malicious prosecution is a disfavored action in Virginia. Still, that doesn’t stop plaintiffs who have been unjustly accused (at least in their minds) from suing for damages. O’Connor v. Tice is just such a case; it involved an ill-fated prosecution for construction fraud against a house painter.

In conjunction with their purchase of a commercial building on the Northern Neck, a husband and wife contracted to have the building painted. The painting contractor quoted a price of just under $7,000, with 1/3 down and the rest to be paid later. The owners paid the up-front money and the contractor started work. Soon afterward, the owners perceived that the contractor and his crew had damaged their roof during the work, so they ordered him off the job.

The parties disputed how much of the work had been completed; the contractor claimed it was almost 2/3 done, while the owners claimed it was far less than that. According to the contractor, he spoke with the husband and offered to keep the $2,300 down payment and everyone would just walk away; the husband accepted that. The husband had a materially different view of the conversation, claiming that the contractor simply claimed that he was keeping the money and quitting the job.

The owners decided to sue. But acting on advice from a deputy sheriff, they decided to threaten criminal charges for construction fraud if the contractor didn’t turnover the deposit. When the contractor got their letter, he had his lawyer contact the owners, offering to accept service of civil process, since this was, the lawyer felt, a civil matter, not a criminal one.

The owners disdained this suggestion. They returned to the deputy and gave him a copy of the letter, but never told him about the contact from the lawyer. The deputy took the materials to the local prosecutor, who got a warrant from a magistrate for construction fraud. The contractor was arrested the next day.

From the looks of things, the preliminary hearing went fairly poorly for the prosecution. Presumably the judge learned of the contractor’s effort, through his lawyer, to resolve the matter civilly; the prosecutor must have been surprised to be learning this information for the first time in the course of the hearing. The judge dismissed the charge for want of probable cause.

The contractor sued the owners and the deputy for malicious prosecution. The deputy settled, but the case against the owners went to trial, resulting in s six-figure verdict. The owners got a writ to review the ensuing judgment.

The Supreme Court affirms the judgment today, holding that the owners’ failure to make a full disclosure of facts to the prosecuting authorities barred them from shielding themselves behind the prosecutor’s and the magistrate’s probable-cause decisions. The court finds that the evidence adduced was sufficient for a jury to have found an absence of probable cause at the time the owners initiated the charges.

There’s an important point in a footnote on page 12 of this opinion. As noted above, the owners tried to rely on the prosecutor’s conclusion of probable cause. But since the jury was instructed to consider the owners’ state of mind at the time the charges were initiated (that is, when they made the criminal complaint), the prosecutor’s later conclusions were irrelevant.

One sensible bit of advice from this case is that when you’re thinking of accusing someone of a crime, you should get your advice from a lawyer instead of from a deputy sheriff. But that advice comes too late to help the owners here.

Today’s opinion in Isle of Wight County v. Nogiec presents an interesting discussion of several issues related to defamation and damages. Indeed, the court’s holding on damages here will be of vital importance to this type of tort claim, and potentially other damage claims as well, making this a must-read for most types of litigators.

The appellee is a former director of the county’s Parks & Rec Department. He retired early, and he and the county signed an agreement that contained, among a lot of other things, a mutual non-disparagement clause. Shortly after he left public employment, a county administrator appeared before the Board of Supervisors to report on flood damage to a county museum. The administrator mentioned that the flood damage was more than merely predictable; it had been predicted, in documents presented to the former P&R Director. The administrator claimed that his inaction in the face of that clear warning “bordered on negligence.”

We may assume that the administrator had never read the non-disparagement clause; if he had, he probably would have found a way to rephrase his comments and thereby saved himself a lot of litigation expense. The director sued the county for breach of contract and the administrator for defamation. (Another claim, for defamation against the county, was predictably struck on immunity grounds.) A jury returned a verdict in favor of the plaintiff; it hit the county for $45K and the administrator for $150K, most of which was for punitive damages. Both defendants appealed, presenting wholly separate appellate issues.

The Supreme Court first analyzes the judgment against the county. It rules that the director failed to prove his damages with reasonable certainty. He had claimed that he was unable to find employment after the statements were made, in that despite two months’ worth of searching, no employer would even give him an interview. But the court reaches into its jurisprudence from another field to craft a rule for evaluating damages for loss of employment opportunities.

Two years ago, in a case involving a claim of breach of fiduciary duty arising out of management of a trust, the court held that an appraisal of the value of real property must be accompanied by evidence that there is a willing buyer at that price. This ruling surprised me greatly back then, because all of the appraisals I had ever seen up to that point had merely said something along the lines of, “This is what price the market would fix for this land.” The new requirement for showing, not just the likelihood, but the actual existence of such a buyer made the appraisal business that much harder, in my view. Today, the court grafts this requirement into the field of employment-law claims, holding that the director had to prove the existence of a willing employer to support his claim of income loss. He didn’t do that, so his damage claim for pecuniary losses fails.

If you’re reading this analysis and you’re about to shrug and move on to the next ruling, I invite you to pause and reflect on where this puts us, and where the Supreme Court’s jurisprudence on damages is clearly headed now. The court signals here, quite clearly, that it won’t allow damage calculations based on market assumptions or generalizations; a plaintiff in this field – and probably a lot of others – has to come up with a solid “buyer,” either for his services or for a parcel of land. Caveat plaintiffs: Your task of proving damages is noticeably more complex now.

Turning to the claim against the administrator, the court addresses whether he was entitled to either an absolute or a qualified privilege, since his statement came in the course of a legislative proceeding. If it’s absolutely privileged, then the plaintiff is out of luck; if the privilege is qualified, then the plaintiff has to prove malice. The trial court had ruled that the privilege existed here, but that it was merely qualified, and the jury found malice.

The Supreme Court affirms this ruling and the judgment against the administrator, and in the process introduces an important refinement into Virginia’s body of privilege law. It holds that absolute privilege attaches where the legislative body is in the process of creating legislation, but it does not attach where (as here) the body is merely receiving information from its staff. In that event, the body acts in a supervisory or administrative capacity, where the most the defendant can get is a qualified privilege.

In terms of day-to-day application inside courtrooms, this opinion won’t have quite the impact of Hernandez v. Commonwealth, discussed at the beginning of today’s analysis. But in terms of its effect on or body of law, I think this is the most important opinion of the day.

Expert witnesses
CNH America v. Smith is the latest in a series of decisions exploring the contours of permissible expert-witness testimony. The plaintiff below was a farmer who suffered a severe hand injury when a hydraulic hose burst on a new tractor, during its first use. At trial, he offered two experts to explain how the injury occurred. One such witness, qualified as an expert in hoses, testified that a hydraulic hose had burst because of a manufacturing defect in that component. The other, an expert in hydraulic systems, explained how the design of the tractor permitted the hose to be crushed by the operation of a mower attachment.

A jury returned a $1.75 million verdict for the farmer. The manufacturer appealed, challenging the admissibility of the two experts. Today, the Supreme Court reverses, finding both experts’ evidence to be inadmissible. The hose expert’s testimony should have been excluded, the court rules, because it was not based on an adequate factual foundation. That expert testified that there were three ways to determine the cause of the defect, but he admitted that he had not performed any of those tests. Instead, he examined the inside of the hose with a borescope (one of those snaking tubes that have a camera attached to the business end). Even this examination didn’t reveal the exact defect that the expert concluded had caused the injury.

This, the court finds, is not enough to support even an expert’s conclusion that a given cause is the one that produced the injury. Experts’ conclusions must rest on some evidentiary foundation, and this one, according to the record, had no such basis.

The hydraulics expert suffers a similar fate, though along a different track. The court notes that he had worked on hydraulics systems in the mining industry; not those relating to farm equipment. The expertise of a witness “must correlate to the opinions for which the expert is being offered,” and expertise in even a related area won’t suffice to qualify an expert in a given case. The court rules that the hydraulics expert should not have been permitted to give testimony about specific matters of causation relating to this mechanism. Indeed, the trial court had ruled that the witness could testify about “hydraulic systems generally,” but the witness’s testimony here went beyond that, extending to an opinion about the mechanism of this particular failure.

At this point, everything seems to be going the manufacturer’s way. But on the last page of this 12-page opinion, the clouds suddenly part for the farmer, and the sun comes out. The court notes that one form of relief requested by the manufacturer at all stages of the case (in post-trial motions and on appeal) was a new trial. In argument in the Supreme Court, the manufacturer contended that without the two experts’ testimony, the farmer’s case necessarily failed, so the Supreme Court should enter final judgment in its favor. But the three assignments of error challenged the admissibility of the experts’ opinions and the trial court’s refusal to set aside the verdict, not the trial court’s decision to send the case to the jury.

Even when you win, you can only get what you ask for; the Supreme Court accordingly remands “for a full trial on the merits” of the case, using the exact phrase in the conclusion of the manufacturer’s brief. This means that the farmer will have an opportunity, before trying the case again, to shore up his case by hiring different experts, or perhaps by having the hose expert conduct one or more of the three available tests.

The lesson here is that you should never be afraid to press for full relief, at all stages of the case. The last page of this opinion hints that if the manufacturer had assigned error to the trial court’s denial of its motion to strike, the Supreme Court might be ordering final judgment now. Instead, the justices breathe new life into the farmer’s claims.

While this decision primarily benefits the manufacturer, it is in reality neutral in terms of its effect on the law of evidence. Plaintiffs and defendants alike may offer evidence that suffers from one of these defects. This case will arm litigants on both sides of the aisle who challenge their opponents’ experts.

Workers’ compensation
When the Supreme Court decided Hilton v. Martin in 2008, comp lawyers and tort lawyers alike probably wondered whether the decision, arising in a horrifying case of misconduct between fellow employees, had opened up a can of worms. In that case, an emergency medical services employee was the victim when one of her fellow EMTs decided that it would be fun to zap his colleague with a fully-charged cardiac defibrillator. Instead of getting a playful jolt, the victim received a 150-joule charge that eventually killed her.

The issue in that case was whether the horseplay doctrine rendered the injury one that arose out of employment, so that the decedent’s only remedy was within the Workers’ Comp Act. The Supreme Court ruled that this injury did not arise out of the employment, because the act was directed at the employee as a person, rather than because of her status as an employee.

As with many rulings in this field, that holding can cut two ways. Sometimes the injured party earnestly seeks coverage within the Act; just as often, the employee wants to bring a tort action involving far more significant sums than the average weekly wage would provide. Because of the comp bar, an employee can’t have it both ways. In today’s ruling in Simms v. Ruby Tuesday, the Supreme Court takes up one of the former kind of cases.

I described the injury and the factual posture when I covered this decision in the Court of Appeals back in 2009; you can see that analysis here (you’ll need to scroll down a ways). Today, the Supreme Court reverses the CAV’s ruling, holding that the lower court had misapplied the Hilton doctrine. As befits a close call like this, the reasoning merits careful study by comp lawyers and tort lawyers alike, since it affects both of their practices so dramatically.

The Supreme Court rules today that Simms’s injury (a dislocated shoulder, sustained while fending off ice chunks flung by fellow employees) was indeed due to horseplay, a foreseeable workplace condition. That means that it’s compensable under the Act. In contrast, the injury in Hilton wasn’t the result of horseplay, but an assault. The rule that emerges here is a simple one: If the injury arises from an assault, it isn’t within the Act because it doesn’t arise out of the employment. Employers, the opinion clearly implies, should expect horseplay among employees, but not assaults.

The problem here, as today’s opinion points out, is that “[i]t is hard to imagine a form of horseplay that causes injury that is not [technically] either an assault or a battery.” (This is a quote from a very early CAV opinion.) Despite this problem, all seven justices vote to reverse, but two (Justice Mims, joined by Senior Justice Russell) would do so on slightly different grounds than the five in the majority. The concurring justices argue (quite plausibly, in my view) that while the employee in Hilton was unquestionably assaulted, Simms was not. That’s because proof of a battery requires that the offending act be committed in a “rude, angry, or insolent manner.” The evidence here shows quite the contrary; the fellow employees were, in the words of the concurrence, “jocular and playful” when they tossed ice at their colleague. And assault contemplates the victim’s apprehension of “harmful or offensive contact,” a situation that the concurrence finds absent here.

Appellate jurisdiction
Here’s a novel question for you: The appellate courts can, by specific statutory grant of authority, review a trial court’s decision to hold a litigant in civil contempt for failing to obey one of its orders. But can the appellate court review a trial court’s finding that the litigant is not in contempt? That’s the issue in Jenkins v. Mehra, a code-compliance appeal involving a home in Fairfax County.

The appellant, Jenkins, is the director of the county’s Department of Public Works and Environmental Services. He initiated a code-enforcement action against Mr. and Mrs. Homeowner for certain conditions at their house, including alleged violations of the Chesapeake Bay Preservation Ordinance and the county’s Erosion and Sediment Control Ordinance. The parties chatted during the pendency of the case and came up with a consent order that found the Homeowners to be in violation, and gave them a specified time to bring the property into compliance. The court entered the order late in 2008.

It didn’t work. The deadlines passed without the required remediation, so the director sought and obtained a rule to show cause directed to the homeowners. At the hearing on that rule, Mrs. Homeowner told the judge that her husband had lost his job, so they just couldn’t make the required changes. Given the state of the economy since late 2008, the judge decided to go lightly on the Homeowners; he entered an order noting that they’d missed the deadlines, but that their failure to meet them was “not willful and therefore not contemptuous.” The judge denied the director’s motion to reconsider; the director got a writ from the Supreme Court.

From here we reach back into the aged annals of Virginia jurisprudence. Further than that, actually; all the way back to the English common law, where (believe it or not) appellate courts could never review a trial court’s finding of contempt. In each courtroom, under that system, each judge was the lord of his own realm (I use the masculine here because of the paucity of feminine jurists in 18th Century England). The English common law rebelled at the idea of any encroachment of a judge’s authority over what went on in his own courtroom, and over those who disobeyed his orders.

Of course, contempt findings can now be appealed; there’s a statute for that, and it gives the Court of Appeals the right to review an order finding a litigant to be in contempt. So why are we in the Supreme Court and not the Court of Appeals, you ask?

Good question. The answer, it seems, is that the statute authorizing such appeals only enables that court to consider judgments for contempt; that is, orders finding John and George to be in contempt. But it doesn’t extend to the finding that Paul and Ringo aren’t in contempt. When the legislature abrogates the common law, that abrogation is considered strictly; never expansively. So the common law remains.

The final question is whether the Supreme Court has the ability to review this as a final order in a civil case. True enough; we have a clear statute for that: §8.01-670(A)(3). Here’s the tricky part of this analysis. You can stare at that statute for as long as you want and never spot the loophole in it. The loophole is that abrogation doctrine. Those English-common-law guys were dead serious about their refusal to allow review of contempt findings, even by higher courts. In addition, a finding of authority to review a refusal to find someone in contempt would create an anomalous situation that the legislature surely did not intend: John’s and George’s contempt convictions would be reviewable in the CAV, while Paul’s and Ringo’s contempt exonerations would have to go straight to the SCV.

The Supreme Court today finds that the legislature did not, by this general grant of appellate authority, terminate this “great bulwark” of the common law. Since there is no court with the authority to hear this proceeding, the appeal is dismissed.

Commercial law
Last year, the Supreme Court decided a case involving the statute of repose for improvements to real property. The court was called upon there to distinguish between equipment and ordinary building materials, since the statute bars actions based on claimed defects in the latter category after five years, while claims based on equipment defects aren’t similarly limited.

Last year, the defect arose in a pole used in firehouses, for firefighters to access the lower floor of the station quickly. Today, in Royal Indemnity Company v. Tyco Fire Products, it’s exterior sidewall sprinkler heads. Certain sprinkler heads malfunctioned during a fire, causing $10 million in damage to a building that Royal insured. After paying the claim, the insurer filed an action as subrogee against the manufacturer and installer of the sprinkler system, basing its claims on negligence and breach of warranty. The trial court sustained pleas in bar based on the statute of repose, and dismissed the action.

On appeal, the Supreme Court affirms most of these rulings, reversing only the dismissal of the negligence-based claim against the manufacturer. In doing so, it analyzes the nature and function of the sprinkler heads and finds that they are in fact equipment, not ordinary building materials.

The warranty claims fall not to the statute of repose, but to the court’s interpretation of what language constituted a warranty. The insurer contended that a description of the equipment’s use and operation constituted an express warranty, but the court finds that it merely describes how to use the heads. Converting that description into a warranty would result in a warranty of unlimited duration. Besides, the documents contained an express one-year warranty elsewhere.

In a sense, this decision breaks new ground, in that we now have the court’s view of yet another kind of product that is or isn’t an ordinary building material. That’s the problem that leads Justice Mims (joined by Justice Goodwyn) to file a short concurring opinion, echoing his dissent last year. In that case, he described the court’s jurisprudence on “ordinary building materials” to be a hopeless morass that could never be adequately confined to a manageable definition.

Ah; the tragedies that ensue when you see the same surname on both sides of the “v.”

The testator in Parish v. Parish came about his fortune in a way none of us would want to imitate: by getting clobbered in the head with a metal pipe while at a bar, suffering an incapacitating brain injury. He recovered $3.5 million for that injury, but most of us would cheerfully forgo even twice that much in exchange for a fully functioning brain.

The injury was incapacitating under the law, although it hardly rendered the victim a vegetable; he could walk and talk and even reason. He was not, however, capable of managing his affairs, and a Florida court ascertained that he was an incompetent. A later decree in Tennessee, where he moved several years later, provided much the same thing. Various family members served as his guardian and conservator.

Twenty years after his injury, he told his conservator (who was his brother) that he wanted to make a will. The brother assisted the victim by taking him to a paralegal and translating the victim’s expressions of his wishes because, the victim had undergone a tracheotomy and spoke through a voice box. The victim arranged for his estate to be divided into quarters, with one share going to his son, another share to the brother, a third share going to the brother’s wife, and the final quarter going to other family members. Somehow, no one told the son about the existence of the will.

Four years later, the victim died, and his son qualified as administrator of his estate. But this was not destined to end well; the decedent’s sister-in-law showed up with the will and petitioned to be appointed as executor. The son responded that his late father lacked testamentary capacity to execute a will (he was, after all, incompetent as a matter of law), and argued that the decedent’s brother – his own uncle! – had exercised undue influence to steer the will his way. (As it turns out, if the will didn’t exist or were invalid, the son would get the entire estate.)

The trial court ruled in favor of the executor, ruling that on the whole, the evidence favored the testator’s capacity to make a will. The Supreme Court affirms today, noting that being incompetent to make a contract or manage one’s affairs doesn’t disqualify a person from making a will. The reason for this is simple: A contract is at least presumptively adversarial, but it takes less acumen to know the extent of your property and form an intention what to do with it.

The court also affirms the trial court’s ruling that there was no proof of undue influence. A presumption arises in situations involving advanced age, a person in a confidential relationship who turns out to be a beneficiary, and a previously expressed intention to dispose of property in some other way. The “old man factor” doesn’t technically apply here because the decedent was only 41 when he made the will; but importantly, the court grafts this case’s facts (a testator of diminished capacity) onto the rule. Probate practitioners should take note of this new but thoroughly understandable development.

The opinion closes with a phrase that, lacking proper editorial self control, I just have to quote in full:

“[N]otwithstanding the impairments that he suffered, [the testator] was a stubborn man. . . . if he did not want to do something, he damn well knew how to resist.”

In case you would ascribe this profanity to me, rest assured that I would never inflict such language on my genteel audience. No; that fault lies with Justice Mims*, who wrote today’s unanimous opinion.

[* Quoting the trial judge]

Gifts to minors
The court addresses one appeal today involving Virginia’s Uniform Transfers to Minors Act. In Carlson v. Wells, a father freely commingled his children’s funds and employed them, sometimes for his own purposes. He also engaged in speculative investments, such as purchasing stock in US Airways shortly before that company filed a bankruptcy petition. He refused to allow his maturing children access to the financial records relating to the accounts under his control. Under these circumstances, it will come as little surprise that the justices affirm nearly all of the award in favor of the children, against the father and a fellow trustee (the father’s brother).

This opinion will likely have a narrow appeal among practitioners, but there are a couple of points worth mentioning in some detail here. First, the court applies the Prudent Person Rule instead of the Prudent Investor Rule to evaluate the custodians’ handling of certain investments. Under the former, the custodian is responsible for the performance of each individual asset in the portfolio; not merely for the aggregate performance of the funds as a whole. Thus, even if the entire portfolio did fairly well, the purchase of speculative stock such as US Airways in its final pre-bankruptcy days was inappropriate. The duty of a custodian here is to preserve the principal; not to engage in speculative investments.

Second, even this doctrine may have a limited shelf life. The opinion describes the Prudent Person Rule as “anachronistic,” and notes that it applied until it was absorbed into the Uniform Prudent Investor Act in 2007, after the date of the actions complained of here.

Third, the court affirms the trial court’s decision to award attorney’s fees to the successful plaintiffs. Here is yet another exception to the American rule, where each party pays her own lawyer. The court notes that the custodians “callously disregarded their custodial obligations,” conceivably opening the door to attorneys’-fee awards in other situations involving breaches of duties to care for others’ property.