[Posted June 10, 2010] Opinion day once again comes a day early, as the Supreme Court issues 18 published opinions from cases argued in April. The court also decides one case by published order. The biggest news item of the day is the reversal of judgments in two appeals involving Virginia’s Episcopal Church. I’ll post analysis of today’s opinions over the course of today and tomorrow.

I am greatly indebted to my friends at Tremblay & Smith, who are generously providing me with the space to post analysis remotely, since I have to be out of the office today.

Land use
An inter-agency dispute is at the heart of Columbia Baptist Church v. City of Falls Church. The church acquired several contiguous lots of varying size, and wanted to consolidate them into one 5.7-acre lot. It consulted the local zoning administrator to ask if he had any qualms about the plan; he responded that under his interpretation of the zoning ordinance, the church was good to go.

The church accordingly submitted an application to the planning commission for the consolidation. A senior planner within the planning department looked it over and saw a problem: Under the ordinances, a too-small lot (such as the smallest of these, at about 1/6 acre) cannot be reduced in size. The planner reasoned that the result of this application would be to reduce that size to zero, so she recommended disapproval. The planning commission went along with her recommendation, over the church’s disbelieving objections.

Stymied by the commission, the church applied to the circuit court, but found no succor there; the court heard the church’s evidence and promptly struck it, finding that the commission didn’t act in an arbitrary or capricious manner. The Supreme Court agreed to review the case.

Today, the court sides with the city and affirms the ruling. It holds that the administrator’s interpretation isn’t binding on the commission, because the commission was acting within its area of responsibility – the administrator enforces zoning laws, but only the commission can approve resubdivisions.

Are you surprised by this? Perhaps you think it’s an exercise in sophistry to find that a lot is being reduced in size when the result is clearly a much larger lot; after all, the whole purpose of the effort was to create a single parcel that’s clearly large enough to meet all requirements of the ordinance.

Think again. Whether you agree with the zoning administrator or the planner, you have to admit that there are at least two plausible interpretations of the reduction-in-size requirement. This case illustrates the deference the Supreme Court affords to legislative bodies acting within the permissible limits of their discretion.

Church property
It’s always worrisome when there’s trouble in God’s house.

A few years back, the American branch of the Anglican Communion started doing things that didn’t sit well with certain of the faithful. Specifically, it elevated a homosexual priest to the position of bishop, and it started permitting same-sex unions. That led a number of congregations to separate themselves from the mother (father?) church and ally themselves with a branch that had more or less emigrated here from Nigeria.

That division prompted a thorny question: When a congregation breaks away, who gets the keys to the building? That issue prompted today’s opinion in Protestant Episcopal Church v. Truro Church, although that thorny question doesn’t actually get resolved today.

To say that this case has a complex factual background is the very soul of understatedness. I won’t attempt to recite everything here, as I know you prefer these analyses to be relatively short and pithy; suffice to say that you can’t tell the players without a scorecard, which today’s opinion helpfully provides, starting on page 4. The appeal centers on the application of an old Virginia statute that governs the allocation of church property when there’s a division between two sections of a “parent” church. (There; I avoided the mother vs. father problem.)

That statute requires the existence of a division within the church, and whether the majority now allies itself with a branch of the parent. The first issue produces some very interesting legal analysis over the question of who gets to define the term division. The court today rules that courts can properly define that term, without involving themselves in matters of church governance (something no court is empowered to do). In that sense, the appellees (the breakaway segment) secure a temporary victory.

But that win proves fleeting, as the court rules that the African arm of the Anglican Communion is in no sense a branch of the American church. That results in a reversal, where the trial court will now have to take up the issue of who gets the building. Peace be with them all, although I suspect it’ll take a good deal of simmering down before that happens.

The court takes up the case of a seriously injured child in Evans v. Evans. The fact that the same name occurs on both sides of the “V” in the caption is not coincidence; it’s a suit by the child (suing by her mother as next friend) against her father for negligence.

A few years ago, the father took his four-year-old daughter for a ride in his pickup truck. Instead of properly securing her in a proper seat, he placed her in a foam seat on the floorboard of the truck, then went out and promptly collided head-on with another vehicle. The little girl suffered serious injuries and was hospitalized for extensive treatment.

If you handle matters in traffic court, you know about the child-safety-seat statute, which mandates that parents properly secure small children, and provides a $50 fine for failing to do so. But another subsection of that statute says this: “A violation of this section shall not constitute negligence, be considered in mitigation of damages of whatever nature, be admissible in evidence or be the subject of comment by counsel in any action for the recovery of damages in a civil action.”

Well, now. The girl’s lawyers decided to press a simple common-law claim, not mentioning or relying upon the statutory requirement at all. The father defended by saying that the statute has to apply to this case, and the child can’t plead around it. The trial court agreed with the father and sustained a demurrer.

Today’s resolution of the case by the Supreme Court requires three separate opinions. The majority, written by Justice Lemons, reverses, finding that all the subsection means is that there can be no claim of negligence per se purely because of a violation of the statute. The majority holds that the legislature intended to leave intact the common-law negligence claims asserted by the child. In doing so, it reads the subsection in pari materia with the provisions of a related statute, which clearly do deal with per se negligence.

Justice Kinser dissents, based on a direct view of the language of the statute. She finds that there is a difference between plain old negligence and per se negligence, and the legislature knows how to separate them when it wants to. Indeed, she cites numerous statutes where the legislature used one term or the other.

Justice Mims adds a very interesting concurrence, in which he gently chides his colleagues for missing the forest for the trees. He points out that there is no way the legislature would have meant to enact a statute for the protection of children, attach a $50 fine to it, and forever cut those children off from any and all civil remedies.

Personally, I agree with Justice Mims’s view. I don’t think the legislature intended to craft such a provision when it undertook to protect children. Really, if you were a defendant, would you rather face a $50 fine or a multi-million-dollar tort suit? The trouble with this otherwise-sensible approach is that the legislature used the unambiguous language that it did. Unambiguous language doesn’t need to be construed, and you don’t go peering into legislative intent or other methods of statutory construction when the language is plain. The problem is that Justice Kinser’s analysis, harsh as it is for the child, is probably the correct one, and the normal way to deal with that problem is to add the words per se to the statute. But given today’s ruling, that won’t be necessary; the court remands the case for a trial on the merits.

There are several significant rulings in the business-tort case of Syed v. ZH Technologies, another appeal with a complicated set of facts and procedural history. I’ll just summarize the key holdings instead of spending paragraph after paragraph on the complex stuff; you can always hit the hyperlink above if you want to unravel the ball of yarn.

The primary fact you need to know is that on one of the counts, alleging business conspiracy, the jury rendered judgment in favor of the plaintiff and awarded damages of $0 compensatory and a lot more than that punitive. Any tort lawyer can tell you that you can’t have an award of punitive damages that isn’t founded upon compensatory damages. The judge decided that the jury had misunderstood the instructions, but that the misunderstanding didn’t extend to liability issues, so he ordered a new trial on damages alone.

The second trial went very, very well for the plaintiffs, who got several awards (correctly allocated this time) and ultimately a deep-six-figure attorney’s fee award. But all that vanishes today, as the court finds that that zero-dollar verdict was, in effect, in favor of the defendant, not the plaintiff. Statutory conspiracy, unlike its common-law cousin, requires actual proof of some damage suffered by the plaintiff. Accordingly, when the jury found no damages, that meant the defendant was entitled to judgment.

There’s one other key ruling here, in another count dealing with breach of fiduciary duty. Plaintiff asserted that a defendant breached that duty in his status as an employee. But at trial, the evidence (as it shook out) established that he was a partner, not an employee. That’s different, so the plaintiff asked the court for leave to amend the complaint to conform to the evidence. The trial court has the discretion to do that, as long as there’s no prejudice. The defense claimed prejudice, and the judge agreed, so he didn’t allow the amendment. But he did allow a jury instruction based on the partnership status, and the jury returned a plaintiff’s verdict on those grounds.

Today, the Supreme Court notes that it’s just as unfair to allow a jury instruction on an unpleaded allegation as it was to allow a late amendment. The case thus gets remanded for a new trial, from square one, on that count; presumably the plaintiff will replead to assert the correct status, and the defendant can adduce evidence to fight it, armed with foreknowledge of what he’s facing.

Let’s suppose you’re handling a complicated case with a lot of documents. You manage to get your hands on a smoking-gun letter, written by your opposing party to his lawyer. You didn’t pilfer it; you got it honestly, as a result of checking documents that were disclosed in previous, related litigation. The letter admits a key fact that’s in issue in your case. You’re happy, right?

Of course you are. When your adversary propounds interrogatories that ask for any statements that you contend are admissions, you cheerfully tell him about your piece of golden evidence. Nothing happens for well over a year, and as you approach the trial date, you’re eagerly anticipating using the letter to devastating effect before the jury.

But then your opponent falls awake and recognizes that you have access to material that’s within the attorney-client privilege. He files a motion in limine that asks the court to prohibit you from using or referring to the document. The trial court accepts the Bad Guys’ argument that the disclosure was involuntary, so he grants the motion. Without your not-so-secret weapon, the jury finds against you. What do you do?

Why, you appeal; that’s what. In Walton v. Mid-Atlantic Spine Specialists, the plaintiff got a letter in which the defendant doctor basically admitted that he looked at the wrong X-ray before telling the patient that her wrist was just fine. The doctor had responded to a request for production in a prior Workers’ Comp case by making his records available to a copying company, but he had done an imperfect job of segregating confidential materials, and the zinger of a letter made its way into the Comp record, from which plaintiff got it for her medical malpractice claim.

We now have a torrent of available guidance on this once-barren legal landscape. First, the General Assembly enacted a new statute that deals with inadvertent disclosure. And today, beating the effective date of the new statute by three weeks, the Supreme Court reverses and sends the case back for a new trial, this time with the letter.

The court lays down a set of guidelines for evaluating when disclosure of evidence is inadvertent, and how courts should evaluate what should be done about such disclosures. Today’s opinion adopts caselaw from elsewhere that provides five factors to be analyzed:

“(1) the reasonableness of the precautions to prevent inadvertent disclosures, (2) the time taken to rectify the error, (3) the scope of the discovery, (4) the extent of the disclosure, and (5) whether the party asserting the claim of privilege or protection for the communication has used its unavailability for misleading or otherwise improper or overreaching purposes in the litigation, making it unfair to allow the party to invoke confidentiality under the circumstances.”

Evaluating these factors in this case, the court finds that the doctor failed to take reasonable precautions to prevent inadvertent disclosure; that his lawyers waited far too long after learning about it before doing something; and that preventing the patient from using it at trial was unfair to her. This case, addressing a matter of first impression, is, we are assured, in harmony with the new statutory provisions, so the two should be read together from here forward whenever litigants discover that such devastating and private matters have been allowed to roam free.

One last point: Lest you think this ruling is pro-plaintiff, I will assure you that it will cut both ways. Any party, on either side of the aisle, can make a mistake like this, so the protections of the new statute will help any lawyer or litigant who finds himself in this situation.

A short, late-life marriage complicates matters in Dolby v. Dolby, a suit for aid and direction relating to a decedent’s debt. Mr. Dolby was single when he bought a home and mortgaged it. In 2006, he married, and eventually recorded a deed that created a tenancy by the entireties with his new bride. But he must have had some sense of his own mortality; in September, he made a will, and in December he breathed his last. The question in this case is whether the mortgage passed with the property (so the grieving widow would be responsible for the debt) or whether it’s a debt of the estate.

Note that the creation of a tenancy by the entireties means that the land wasn’t part of the decedent’s estate; it passed to Mrs. Dolby immediately upon her husband’s death. His will directed his executors to pay his just debts, but not to pay prior to maturity any mortgage debt; that was to pass with the property.

That last provision leads you to the conclusion that Mr. Dolby wanted the debt to ride with the title, so Mrs. Dolby’s loss in the trial court isn’t too surprising. But the Supreme Court reverses, holding that the property did, indeed, pass free of the obligation to pay the debt. That doesn’t mean that the creditor gets stiffed, of course; the estate still has to pay the outstanding balance. But the decedent can’t direct his estate not to pay his lawful debts, and given the status of the title, this was a lawful, and immediately-due, debt.

The next estate case is a short one: Schilling v. Schilling covers just five pages, and involves one simple rule of statutory application. It’s a will contest in which a decedent made a holographic will in 2005, three years before her death. As I learned the rules governing holographic wills, they had to be entirely in the handwriting of the testator; no filling out forms, and no helpful additions by next-of-kin.

The testator made a short holographic will in 2005 in which she left everything to her son. She asked her son to add two things: Her address, and the words, “I bequeath to.” Under the old rules, those benign additions would be fatal to the will. But in 2007, the General Assembly passed curative legislation that eased the effect of the former rule, to permit certain minor variances like this one.

That’s fine, except the testator put pen to paper in 2005, before the new act took effect. The heirs under an earlier will (also holographic, by the way) complained that the statute couldn’t be applied retroactively, and the trial court agreed, sustaining a demurrer filed by the son’s siblings.

The Supreme Court reverses and sends the case back, to enable the son to try to prove that the will was valid under the new statute. The court explains that the operative date for a will is the date of death – a will “speaks at death” was the way I learned it – so there’s nothing at all retroactive about the application of the new provisions to a will written even years before.

Smith v. Mountjoy is the forlorn tale of the end of a marriage that lasted for 61 years. I’m not sure if I’ll make it that long; I waited until I was 30 before getting married, and anyway, there’s no telling whether my wife will tolerate me for that long. But this husband and wife got married right after World War II, and it lasted until wife’s death in 2007.

The previous year, husband had a health setback that led him to craft a durable power of attorney in favor of wife. She took that opportunity to create two revocable trusts – one for herself and one for her husband. She then conveyed one-half interests in the couple’s six real parcels into each trust.

The effect of those conveyances, you will appreciate, was to sever the tenancy by the entireties under which the couple had previously held title. Still, they each held half of the title, so there’s no harm, right?

On closer inspection, there is a harm, or at least a plausible element of unfairness. It’s in the language of the trusts. Husband’s trust provided that in the event he died, everything went to wife (or to wife’s niece if wife predeceased husband). But if wife died first, her property did not go immediately to husband; instead, he got the trust income for life, and upon his death, the principal would go to wife’s niece.

The difference is subtle but case-dispositive in this appeal. In essence, wife was (1) giving herself fee-simple title to the property she once held as a tenant by the entirety; and (2) ensuring that her niece, who wasn’t related to husband by blood, would get the property in the end.

Alas, wife died unexpectedly a year later, leaving a grieving husband. That grief probably turned to astonishment and maybe even a sense of betrayal when husband discovered the trust documents, which wife had never told him about. He filed suit to revoke the conveyances, and demanded an immediate payment of funds from the principal of wife’s trust for his medical expenses.

But even husband was not destined to see the end of this proceeding; he joined his wife in the Great Beyond two days after filing a second-amended complaint. (We can only imagine the scene when she greets him at the Pearly Gates. “Theodore; you’re here at last.” “Nice to see you, Evelyn. Now what the hell were you thinking?”) His sister qualified as his personal rep and stepped into the litigation.

The trial court ruled in favor of husband’s estate, finding that the power of attorney gave wife the power to sell land but not to make gifts to herself. And since the provisions of the two trusts weren’t equal, this qualified as a gift to wife. The Supreme Court affirms that ruling today, and goes on to hold that husband’s actions in the immediate wake of his wife’s death did not amount to a ratification of the gift.

There’s one small procedural ruling that will be of interest. The circuit court decided the case on reciprocal motions for summary judgment, which was fine, because all the material facts were undisputed. Wife’s estate sought to use the deposition of husband’s sister/executrix in the motion, ostensibly to defend against the MSJ filed by husband’s estate. While depositions can’t be used in support of summary judgment motions, they can be used to oppose your opponent’s MSJ. Under that rule, it looks as though the deposition couldn’t come in. But in disposing of this assignment in a single paragraph, the court observes that “the deposition was not offered just to oppose such a [summary judgment] motion,” so the court correctly excluded it.

This ruling refines the rules slightly for situations in which a party wants to use a deposition in a summary-judgment context. If the use is purely defensive, then it’s okay to use the deposition; but if there’s any component of offensive use, then it’s out.

Local governments
Our old pal Judge Dillon drops in for a visit in Advanced Towing Co. v. Fairfax County, testing the validity of Fairfax’s towing ordinance. The ordinance permits towing only to storage lots that are located in the county. Three towing companies from adjacent jurisdictions filed suit, claiming that the territorial limitation denied them equal protection, since it favored Fairfax towing companies over those in, say, Arlington County.

The trial court didn’t exactly scoff at the complaint, but it swiftly sent the companies packing, sustaining two consecutive demurrers and then denying a motion to reconsider in which the companies added a Dillon-Rule challenge. The city objected to the late addition of the new ground, but the judge considered it and rejected it anyway.

On appeal, the Supreme Court affirms, based largely on the separation-of-powers doctrine. Courts afford great deference to legislative enactments, and where no suspect classifications or fundamental rights are involved, those courts use kid gloves to evaluate the statute or ordinance in question. The standard of review is whether any rational basis exists, based on any reasonably conceivable state of facts.

As a former local-government attorney who defended his share of challenges to city ordinances, I can tell you that prevailing against a presumption like that is extraordinarily difficult, and today, the towing companies fail to move the justices to come to their aid. The court sustains the legitimacy of the ordinance, finding that the county could legitimately base its restriction on a desire to ensure that towed vehicles are afforded the protections found elsewhere in Fairfax ordinances – and perhaps not elsewhere.

The Dillon-Rule challenge meets the same fate. The enabling statute permits localities to regulate towing, and specifies that if a car is towed to another jurisdiction, the law of the pickup situs will govern. But that statute doesn’t require localities to permit inter-jurisdictional towing; it simply permits them to do so. Not even Judge Dillon himself could argue that the statute mandates that the county permit towing across county lines.

Two final thoughts about this case: First, note that the court doesn’t fuss with the late arrival of the Dillon-Rule argument. This probably wasn’t fully presented as an issue on appeal, so this hardly qualifies as controlling precedent; but it illustrates that, at least as far as legal issues are concerned, a motion to reconsider isn’t too late to inject an issue into a case. It’s probably way, way too late to add new evidence; but if the only issue you have to add is purely legal, and the 21-day period in Rule 1:1 hasn’t run yet, it probably isn’t too late to raise that killer argument that just occurred to you.

Second, I wonder about the effect of the statute on the conceivable “rational basis” the court used to illustrate the legitimacy of the ordinance. As the statute says, the law that applies to the towing is the law where the car was originally parked. Under that provision, why would it matter what protections other jurisdictions provide for stored vehicles? Fairfax’s ordinance would still mandate those protections even if the car were towed to Kansas. Nevertheless, I think the court reached the right result here; I just wonder about the particular illustration the court chose.

Sexually violent predators
I’m just a bit surprised that Smith v. Commonwealth isn’t decided by unpublished order. It’s a challenge by a prisoner to a circuit-court finding that he be retained for treatment for a sixth straight year. His progress through the treatment program has been slow, and indeed it hasn’t always been progress. During the hearing, the trial court admitted copies of Smith’s treatment records over a hearsay objection. The court found that the business-records exception to the hearsay rule applied to the records.

That, in my mind, wasn’t exactly a close call, given the nature of the records, but the Supreme Court granted a writ to review it anyway. Today’s opinion stands for the proposition that in a civil proceeding like SVPA commitments, the shopbook rule is a perfectly satisfactory means of admitting documentary evidence. (If it were a criminal case, then Melendez-Diaz v. Massachusetts would require a live witness.) The court also makes a wholly unsurprising finding that the evidence in the case was more than sufficient to warrant Smith’s continued confinement for treatment.

Senior Justice Carrico, who authors today’s majority opinion, has one bon mot that’s worth quoting. He recites Smith’s contention that almost everything in the record is hearsay. “That is obviously not true,” Justice Carrico writes, “but Smith may find some comfort in the fact that this was a bench trial, and ‘[a] judge, unlike a juror, is uniquely suited by training, experience and judicial discipline to disregard potentially prejudicial comments and to separate, during the mental process of adjudication, the admissible from the inadmissible, even though he has heard both.’” I will confess to having laughed out loud at this memorable bit or irony.

Criminal law
The right to trial by jury is on of the foundations of our criminal-justice system, but defendants waive that right all the time, for various reasons. Today the court takes up the question of how and when a defendant may revoke that waiver and insist upon a jury trial. The case is Cokes v. Commonwealth, involving convictions for possession of marijuana and heroin.

Cokes really didn’t have much time to confer with his lawyer on the initial trial date. The lawyer acknowledged that he mistakenly set the case for a bench trial, despite the fact that Cokes had demanded a jury trial when he was arraigned, but a subsequent colloquy muddied the waters somewhat. The court agreed to continue the trial, but warned Cokes that if he insisted upon a jury trial, the case would be “double or triple booked.” I’m not sure exactly what that means, but the court noted that doing so would probably lead to a longer period of pretrial detention. You see, the court planned to revoke Cokes’s bond, since he had been charged with another offense while out on bail.

You know what happens next; a probably nervous Cokes assured the judge that a bench trial would be just fine, thanks. The court set the new trial date five weeks later. On that date, Cokes had an unpleasant surprise for the court: He had thought long and hard about the matter, and trial by jury seemed like a good idea after all.

The prosecutor objected, saying that he had all of his witnesses and was ready to go. The judge, no doubt convinced that Cokes was playing footsie with the jury-trial requirement in order to stall the machinery of the system, refused the request and convicted Cokes after a bench trial. The Court of Appeals refused his petition for appeal, but the Supreme Court agreed to take the case.

When I was reading the facts and procedural history just now, I thought his case might concern whether the trial court had overborne Cokes’s will by threatening an adverse consequence for a jury demand, back on the original trial date. But that’s not what this case is about. It’s about the standards to be used by a trial court in deciding whether to allow a defendant to withdraw a jury-trial waiver. There is a body of caselaw on this – you may not be surprised to know that Cokes isn’t the first defendant to have trouble making up his mind on this important issue – and it holds that the trial court should grant the motion if it can be done without substantially delay[ing] or imped[ing] the cause of justice.

As the prosecutor noted, his witnesses were there, so it looks bad for Cokes. But surprise! He wins today, because the record didn’t affirmatively show anything to establish that the trial would be delayed if the court had to empanel a jury. Knowing a little about the way juries are summoned, I suspect that getting a collection of impartial citizens might well have been impossible; but the record simply didn’t show that. As far as we know, the courtroom clerk could have picked up a phone and said to the court’s jury administrator, “Please send me thirteen veniremen,” in which event the trial would have been delayed by a good, solid ten minutes, hardly enough to worry about. The court thus holds that the trial court abused its discretion in refusing the request to demand a jury.

In sum, this case isn’t so much about a defendant’s ability to rescind a jury waiver, as it is about making a record. The majority opinion, written by Justice Lemons, acknowledges as much in plain terms. A defendant who wants to delay matters shouldn’t look to this case and consider it a formula for a new continuance. As long as the trial judge sets out onto the record the reasons why honoring the request would result in a significant delay, then the justices will almost certainly uphold her actions.

There is a short dissent, written by Senior Justice Carrico, who subscribes to the theory that this is nothing more than the aforementioned case of footsie by a defendant who figured he could work the system to his benefit.

Midkiff v. Commonwealth is a case I covered previously, back when a panel of the CAV handed down a published opinion last year. I won’t repeat the analysis here, but the Supreme Court addresses only one of the issues that arose in the CAV: Whether a digital image copied from a computer’s hard drive is satisfactory evidence. Midkiff claimed that it wasn’t in his prosecution for possession of child pornography; he insisted that only the original image was sufficient protection against tampering.

The Supreme Court affirms the conviction, finding that (1) each image is itself an original, so the best evidence rule doesn’t bar using the copy generated by the police; and (2) the best evidence rule relates to written documents, not photographs.

The appellant in Herndon v. Commonwealth has what looks like a facially valid point. He was convicted of possession of cocaine, based in part on a certificate of analysis from the Department of Forensic Science. The issue in this appeal is a first-blush inconsistency between the officer’s description of the item and that furnished by the DFS analyst. The officer sealed the bag and described its contents as “six off-white rocks.” DFS described the package this way: “One (1) small ziplock plastic bag which contained off-white substance and four (4) knotted plastic bag corners each of which contained off-white substance.”

Since maintaining chain of custody requires that the prosecution demonstrate that what was seized is the same as what was analyzed, the prosecution may have a problem here. But the officer testified about his process in securing the evidence, noting that his name and the correct date and file number were on the plastic bag, just as he sent it off. The Commonwealth acknowledged that the evidence was “repackaged” at the lab, and Herndon argued that that made it unclear whether the evidence that as submitted was the same as what was analyzed.

After an evidentiary hearing, the trial court found that the prosecution’s explanation was sufficient, so it admitted the evidence and convicted Herndon. The Supreme Court affirms that ruling today, finding that the trial court’s factual finding was supported by credible evidence. The prosecution doesn’t have to “exclude every conceivable possibility of substitution, alteration, or tampering” in order to establish a valid chain of custody. The fact that the officer chose to describe the evidence in one way (by number of rocks) and the lab chose a different means of description (by means of packaging) won’t keep the evidence out because, as the trial court noted, those two descriptions aren’t contradictory. This became a judgment call for the trial judge, and the Supreme Court chooses not to second-guess that.

Another case comes to us for a second round: Carter v. Commonwealth was decided in November by a divided panel of the Court of Appeals, and today, a similarly divided Supreme Court finally decides the matter. Again, I won’t repeat all of the analysis I posted here (and it was fun to write, as I recall clearly). In summary, it’s perfectly obvious to all seven justices that Carter was, as the saying goes, guilty as sin; the only question is what offense he was guilty of. Having been caught trying to fraudulently claim a refund in a hardware store for paint he hadn’t actually bought, Carter was charged with grand larceny.

A majority of the court, led by Justice Goodwyn, affirms the conviction, finding that the would-be thieves committed a trespassory taking, even though they never took the paint out of the store. The holding is that one can commit a theft even if one never removes property from the victim’s premises, and that satisfies the requirement of an intent to permanently deprive the victim of the property.

Justice Millette, joined by Justice Koontz, dissents. The dissent maintains that the only offense the evidence proved was an attempt to obtain money by false pretenses. The prosecutor freely acknowledged that Carter never actually attempted to steal the paint; what he was trying to steal was money. But at this point, the difference doesn’t matter; Carter gets to keep his larceny conviction.

The court decides two contract cases today, and in each case, both parties probably walk away grumbling somewhat. The first is Station #2, LLC v. Lynch, and involves a three-story building in the Granby Street corridor in Norfolk. The owner of the building sold the top two floors to a developer who planned to build residential condominiums; it then leased the ground floor to Station #2, which planned to build a restaurant. The lease included a provision that the tenant would install sound-attenuation measures between the first and second floors, so the planned live music from the restaurant wouldn’t rattle a bunch of Waterford vases and otherwise annoy the neighbors upstairs.

Before signing the lease, the tenant sensibly met with the developer of the condos to discuss the soundproofing measures. The developer agreed to allow the tenant to install the materials before it placed the flooring for the second floor. Then, inexplicably, the developer went and installed the floor anyway, without telling anyone.

Now we’ve got a problem. Without any way to install soundproofing, the restaurant was bound to get complaints after opening, and complaints it got, in droves. Eventually the City of Norfolk shut down the musical performances, and the restaurant’s fortunes declined steeply thereafter, eventually resulting in the closing of the place. The tenant decided to sue anybody it could find with a hand in the mess. It sued the condo developer for breach of its contract to allow access into the space between the floors and for fraudulent inducement, and it sued the developer and the landlord for business conspiracy.

The trial court sustained a demurrer to the fraud and conspiracy claims, and sustained a plea in bar (based on the statute of frauds) to the contract claim. The parties then headed two hours up I-64 to see what the justices would say about all this.

The justices today hand a victory and a loss to each side. The court affirms the sustaining of the demurrers, since this isn’t a situation in which a fraud can be established. That requires the existence of a duty that arises outside the contractual relationship. It also finds that the alleged prevention of the sound-attenuation materials wasn’t an “unlawful act” as required by the conspiracy statute.

The tenant fares better on the breach-of-contract claim. The condo developer contended that the tenant needed an easement to perform the work, and easements have to be in writing. The tenant was suing on an oral contract to allow access to the space. But the court finds that this situation didn’t describe an easement (which generally grants permanent access to land); it’s just a license (non-recurring access). Licenses aren’t within the statute of frauds, so there’s no bar to the contract action, and that claim is remanded for trial on the merits. In addition, the developer never adduced any evidence to prove that it owned the interstitial space – indeed, it never adduced any evidence at all on the special plea, preferring to rely on the pleadings.

This last ruling marks what might have been a lost opportunity for the developer. In a footnote near the end of the opinion, the court holds that since the developer declined to present any evidence, it can’t do so on remand, as that tactical decision operates as a waiver.

The next case is TC MidAtlantic Development v. Commonwealth. It’s a claim based on a construction contract for certain government buildings near Capital Square up in The Holy City. The relationship soured over the course of the deal, and the Department of General Services eventually notified the contractor that it was terminating the arrangement.

The heart of this litigation is a provision in the agreement between the parties. I don’t know whether this is a form contract used by General Services, in which case this opinion will provide useful guidance for future contractors who find themselves on the wrong end of a General Services scowl. If it were a truly unique provision, then this appeal would likely be decided by published order, so I’ll assume that this one is boilerplate as far as the Commonwealth is concerned.

The provision requires claimants to do several things before suing to collect money. They must (1) give written notice of their intention to file a claim; (2) actually file the claim, within 60 days after final payment; (3) get an adverse ruling, or no ruling within 90 days; and (4) file suit within six months thereafter.

The problem that midwifes this appeal is that this contractor evidently decided not to bother with all that intervening stuff (especially since it was obvious that General Services had already decided not to pay anyway); it went ahead and sued roughly ten weeks after it received notice of cancellation.

That brought on a demurrer in which the Commonwealth pointed out that the contractor hadn’t satisfied the host of conditions precedent to bringing an action. The contractor argued that certain documents effectively met the requirements, but in my review of the Supreme Court’s opinion just now, I never saw a single reference to at least one of them: The denial letter (or passage of 90 days) from the government. The trial court thus finds that the claim is barred, and the Supreme Court agrees today.

Suing the government is tricky business. Assuming you get past immunities for torts and implied contracts, you may have to navigate a procedural maze in order to get to the courthouse door. This case illustrates that unilaterally shortening that process is unwise.

What; you thought that was it? Remember, I promised you a kiss-your-sister finish for both of the contract appeals today. The contractor raised a second count, in which it claimed money for a second phase of the work (which eventually got cancelled in toto). The trial court sustained a demurrer that proved somewhat fluid with regard to that count. This claim wasn’t subject to the procedural-maze requirement, but at the hearing, the Commonwealth argued that the contractor still had to exhaust administrative remedies. The trial court bought that and dismissed that count, too.

This approach suffers from the fact that that the demurrer statute limits the grounds upon which a court can sustain a demurrer; it can only rule on the specific grounds asserted in the pleading. Here, the only basis for striking this count is that the contractor didn’t meet the procedural-maze requirement. The court stepped outside that pleading to find another ground upon which to dismiss the suit, and that, the Supreme Court rules today, isn’t permitted. This count accordingly gets remanded for “further proceedings”; I wonder whether that includes the filing of an amended demurrer, correctly stating the grounds this time, followed by another speedy dismissal of the action.

There’s one final ruling in this appeal. The contractor assigned error to the trial court’s decision to dismiss the suit without leave to amend. As I have written recently, in my experience the justices expect trial courts to give a plaintiff at least one shot at amending, assuming he asks timely. Dismissing a suit without leave to amend is a sure appellate-review magnet, unless the futility of an amendment would be obvious.

But the contractor made one key mistake here: It didn’t specify what amendment it wanted to make. The justices won’t speculate on what your amendment would be, so unless the scope of the amendment is abundantly clear from the record (e.g., “Your honor, since you’ve found there can be no actual fraud, I’d like leave to amend to assert a claim of constructive fraud”), the smart approach is to craft and file a proposed amended pleading. That way, the appellate court can see exactly what you mean, and decide if it’s reversible error to refuse that pleading.