ANALYSIS OF JUNE 24, 2008 CAV OPINIONS

 

[Posted June 24, 2008]  The Court of Appeals of Virginia offers three published opinions today.  As I have been tied up most of today on a couple of projects, I’ll just have time today to report the results on two of the cases, and will fill in additional analysis on those cases tomorrow.

 

Domestic relations

The court decides a very interesting first-impression appellate procedure issue today in Burke v. Burke , in which a wife claimed that her lawyer husband had defrauded her in the context of a property settlement agreement.  The wife succeeded in persuading the trial court to reform the agreement to correct the fraud, but she appealed, contending that the trial court hadn’t gone far enough.

 

On the merits of the case, the first thing you need to know is that the wife’s lawyer drafted the PSA, so her claim of fraud was destined to get careful scrutiny anyway.  But that issue never really reached the fore, because the CAV rules today that the “no appeals” provision in the PSA is enforceable.  That means that the parties are stuck with whatever the trial court decides.

 

Wife argued that the no-appeal provision is void as against public policy, and she cites a few cases in which courts have found such provisions to be void, in that they deny a party the right of access to the courts.  But the appellate court today distinguishes those earlier decisions and holds that in this context (the waiver of the right of appeal, not of the right to one judicial evaluation), this agreement passes muster under the public policy of the Commonwealth.  In reaching this conclusion, the court cites decisions from other jurisdictions, which hold that such agreements are enforceable in these circumstances.  The parties weren’t waiving anyone else’s rights (such as a right to child support, in which the children have a very real interest), and they were free to contract away the seemingly endless course of appellate review of decisions.

 

Of course, as an appellate lawyer, I’m supposed to excoriate this ruling, since any agreement that waives the right to appeal is a direct threat to my livelihood.  But I’ll let that opportunity pass.

 

Criminal law

In today’s criminal ruling, Williams v. Commonwealth , the court affirms convictions of possession of drugs with intent to distribute.  The key ruling in the case appears to be the court’s rejection of Williams’s argument that the police only analyzed one of ten methadone tablets they seized from his person.  The court finds that the trier of fact, looking at the ten identical tablets, could reasonably have inferred that they were of the same chemical makeup as the analyzed tab.

 

Workers’ compensation

In Jenkins v. Webb , the court affirms an award of benefits to an injured employee, based in part on a procedural default by the employer.  The employer contended that the employee deliberately injured himself (because he was distraught over a romantic relationship), but neglected to give the advance notice of that defense, as required by the rules of the commission.  The deputy commissioner had ruled for the employer anyway, but the commission reversed that and awarded benefits.  The court today holds that the commission was entitled to enforce its notice rules, so the employer forfeits that defense.