[Posted June 5, 2014] I will be somewhat delayed in beginning analysis of today’s six published opinions, as I appeared this morning in the Supreme Court to argue a case of my own. I expect to begin posting analysis somewhere around noon.

Decedents’ estates
There’s an interesting procedural issue in Bartee v. Vitocruz, which is a wrongful-death case arising out of a claim of medical malpractice. After a patient died, the local court appointed two men to serve a co-administrators of his estate. During the period of their service, one of the personal representatives died. The surviving administrator filed a wrongful-death suit within the limitations period.

The defendant doctor moved to dismiss the action because, she claimed, the late co-administrator was a necessary party to the case. She argued that the surviving personal rep lacked the capacity to sue alone. The trial court agreed and dismissed the action.

The Supreme Court reverses today, applying for the first time to administrators the same rule that applies, by statute, to co-executors. The justices unanimously rule that the deceased personal rep could not be added as a party, and his estate did not succeed to his office upon his death. In the interest of judicial economy, it makes sense to allow the surviving administrator to file suit alone. The court notes that the office of personal representative was not vacant, so it was not necessary for the surviving representative to seek reappointment.

Gardner v. Commonwealth is a criminal appeal, but it doesn’t belong in the criminal-law section, because this decision is all about the admission or exclusion of evidence. The prosecution was for aggravated sexual battery and object sexual penetration of juveniles who were at the defendant’s home for a sleepover with the defendant’s daughter. At trial, he sought to introduce evidence of his reputation in the community as . . . well, as someone who wouldn’t do that kind of thing. The trial court sustained the Commonwealth’s objection, and the defense lawyer, evidently a reader of this website, duly proffered what each of two character witnesses would have stated.

If you regularly practice criminal law, you probably know that reputation evidence in such cases isn’t limited to reputation for truth and veracity; the defendant can adduce evidence that he had (or has) a reputation in the community as someone who isn’t of the character to commit such crimes. The justices today, by a vote of 6-1, reverse the conviction and remand the case for a new trial at the Commonwealth’s discretion. Justice Goodwyn’s majority opinion outlines the contours of admissibility for such reputation evidence, and concludes that the trial court improperly excluded it.

Justice McClanahan dissents, primarily because she feels that the proffer wasn’t sufficient to establish the admissibility of the testimony. She notes that one’s overall reputation in the community is what’s admissible under this hearsay exception; that means you have to have more than the views of a half-dozen or so people. The lawyer’s proffer didn’t specify how many people felt this way about the defendant, and in the absence of such a specific proffer, it’s impossible, in Justice McClanahan’s view, for the Supreme Court to know whether the evidence would have been admissible.

Justice Lemons offers a short concurrence in which he highlights for the trial court the need to tread carefully when deciding whether to consolidate the several charges for trial.

I’ll list Harman v. Honeywell International here in the evidence section, too. It’s a wrongful-death claim against the manufacturer of an autopilot system for small aircraft. The case arose in the wake of a crash, shortly after takeoff, of such a plane, killing the pilot and his father, who was a passenger.

The decedents’ personal representatives sued numerous defendants, including Honeywell and a company called Mooney Airplane Co., which had build the plane. In the course of the litigation, Mooney had prepared a 4½-page report that opined that the plane’s auto-trim component had not malfunctioned, as the plaintiffs claimed.

Mooney was dismissed before trial, which proceeded only against Honeywell. The defendant called an expert witness and asked him about the Mooney report. He indicated that he had seen it and that he agreed with it; over the plaintiffs’ objection, he was permitted to read relevant portions of it, and the report was admitted as an exhibit. The jury returned a defense verdict; the plaintiffs got a writ to review it.

The Supreme Court today unanimously reverses the judgment and remands the case for a new trial. It holds that the trial court’s admission of evidence about the Mooney report was erroneous, since the report was not (as the trial court had found) a learned treatise, and the expert never testified that it was a reliable authority in the field. In the absence of that, the expert wasn’t permitted to comment on it, and the document didn’t qualify for admission. (As to the latter, Code §8.01-401.1 flatly prohibits the admission of the report into evidence.) The court finds that the admission was not demonstrably harmless, so the case returns to the circuit court for another trial.

Under the “likely to recur on remand” doctrine, the opinion also reviews additional evidentiary issues, specifically including the ability of a lay witness to offer opinion testimony under Rule 2:701. The court rules that the trial court properly allowed one layman to offer opinions, but erroneously allowed another to so opine. The justices also agree with the plaintiffs that Honeywell’s lawyer improperly argued to the jury that the autopilot system had been accident-free for decades, contrary to a specific in-limine order entered by the trial court, but for some reason not enforced at trial. Finally, the court affirms the trial court’s decision to strike two sentences from the plaintiffs’ proximate-cause instruction.

This last ruling is noteworthy because of the first struck sentence. This case was tried before Model Jury Instruction 5.000 was amended to add the phrase, “There may be more than one proximate cause of an accident, injury, or damage.” This is almost exactly what the plaintiffs had sought. But the court notes that this language only applies where there may indeed be more than one cause, and the plaintiffs’ evidence here revealed no other possibility; it was either a malfunction of the system or else pilot error. Accordingly, that deletion isn’t erroneous, and presumably on remand, the language will again be stricken, even though the amendment is in place in the model by now.

“When parties come before us with a jury verdict that has been approved by the trial court, they hold the most favored position known to the law.” So saith the Supreme Court, over and over. This reflects the most important single determinant of appellate outcomes – the standard of review. In my opinion, the standard of review is outcome-determinative in 80-85% of all appeals, and you can probably make a decent case for the number to be 100%.

Today the justices take up a most-favored-position appeal, and I’ll spoil the surprise: The part with the verdict loses anyway. This doesn’t happen often, but it does happen. Today’s example is RGR, LLC v. Settle; the culprit here is a finding of contributory negligence as a matter of law.

This is another wrongful-death claim; it was brought by the widow of a dump-truck driver who was killed in a collision with a train in Prince William County. The truck was laden with 13 tons of gravel, and had to travel along a narrow, privately owned lane called Kapp Valley Way. Adjacent to that lane’s crossing of a railroad track, the property owner had stacked lumber that encroached seven feet into the railroad’s 60-foot right-of-way, restricting the view down the railroad tracks of drivers along the lane.

Because this was a privately owned lane, there was no elaborate crossing warning; just one of those X-shaped signed (called a crossbuck) that warned drivers of the danger of railroad crossings. On an ill-fated day in October 2004, the truck driver crossed the grade at the slow speed necessitated by his truck’s load and its gearbox (about three to five miles an hour) and was clipped by a passing 100-car train, traveling at 45 mph.

There were witnesses, since other vehicles had stopped to let the train pass. The jury heard that this driver didn’t stop before entering the crossing, but that not stopping was normal, particularly with slow-moving trucks. This is because the sight line along the track was restricted by the piles of lumber. There are many more facts – the chief justice’s factual recitation takes about seven pages – but for brevity’s sake I’ll leave it at that and commend the slip opinion to you.

The driver’s widow sued the owner of the property, claiming that the lumber created an inherently dangerous condition that was a proximate cause of the collision. A jury agreed with the widow and awarded $2.5 million in damages; the trial court entered judgment on the verdict. The property owner appealed.

I’ll cut to the chase here: A majority of the court votes to reverse, directing final judgment in favor of the property owner. Five justices conclude that the truck driver was contributorily negligent as a matter of law. The majority notes the eerie similarity of the fact pattern here between this case and the 1993 decision in Wright v. N&W Ry. (245 Va. 160, if you like to look those things up). In Wright, the court found that a truck driver was negligent as a matter of law when he failed to see an oncoming train until it was ten feet away. For many of the same reasons, the majority concludes that this truck driver, too, had an opportunity to see the oncoming train, but drove on, heedless of the danger.

But wait; there’s a pointed dissent from Justice Powell, joined by Justice Mims. The dissent thinks that this issue is one for the jury, not a judge, to decide, and the jury has had its say. It notes a crucial difference between this case and Wright: In Wright, the driver’s inability to see the oncoming train was due to his own actions. In this case, the dissent concludes, the inability to see was the landowner’s action in stacking lumber in such a way as to block a driver’s view.

The dissent also finds the situation to be patently unfair, given the low speeds at which these trucks must operate. I drive a Mustang, so acceleration isn’t a problem, but this dump truck can only get up to 2 mph in first gear and 3 mph in second. It thus takes a long, long time to cross a railroad track, even if (especially if!) the driver stops to carefully look out for trains. Given the sight line in one direction of only 600 feet, the dissent effectively concludes that the property owner had constructed a death trap for truckers, one that could only be addressed by the driver’s getting out and personally moving the lumber piles.

Proximate cause in intersection cases is almost always a jury issue. But this decision and the recent one in Patten v. Kurtz (unpublished, 2013) illustrate that sometimes, the circumstances are enough even to overcome a verdict and enter judgment as a matter of law.

One last point: You can easily find this crossing by checking Google Earth. If you zoom in, you’ll see a big empty space adjacent to the railroad tracks on the imagery that was taken in October 2013 – nine years after this tragedy. The lumber piles, happily, are gone now.

Preservation of error
Few areas of the Supreme Court’s jurisprudence have befuddled practitioners more than assignments of error. These are one of the few mandatory, jurisdictional, get-it-wrong-and-you-die requirements in the appellate rulebook. Lawyers who craft sloppy assignments are begging for dismissals and the now-automatic reports from the court to the State Bar. And given the less-than-uniform rulings that we’ve seen in the past few years on how much specificity is required, sometimes even careful lawyers get caught, too.

Today, in Commonwealth v. Herring, we get another entry in the recent collection of cases interpreting assignments and their sufficiency. There are several components to the discussion, so appellate practitioners will want to take a careful look at this opinion, especially pages 4-14 and 25-32, which cover sufficiency of the assignments. In the end, you may well agree with Justice Powell, who sighs in concurrence/dissent that there my no longer be any such thing as an insufficient assignment.

This is a combination of two appeals, one by each party. The defendant in the prosecution, having been confronted by his wife with an allegation that he was unfaithful, responded in a growing rage; he attempted to strangle her, and then went for a shotgun, shouting at her that he was going to kill her. Worse, he did so while the couple’s three children and the defendant’s own father (the kids’ grandfather) were in the house. Eventually the grandfather confronted the defendant on the porch, knocking the shotgun skyward where it discharged harmlessly. Even so, the grandfather and children clearly were in fear for their lives.

The defendant was prosecuted for attempted murder of his wife, a companion firearm charge, and abduction of the grandfather and the children. The trial judge, sitting without a jury, got him on all counts, giving him 11 years of active time and 22 years of suspended time. On appeal to the CAV, the abduction convictions were overturned, based on the absence of evidence on intent. The other convictions were affirmed. As noted above, both sides appealed to the Supreme Court; today we get a single opinion that disposes of both appeals.

I could lay out in detail here the criminal-law findings; but in my view, they’re straightforward and entirely correct. The justices unanimously reinstate the abduction convictions and affirm the attempted-murder and firearm convictions. As far as I’m concerned, the real news in this case is the extended and controverted discussion of the sufficiency of the defendant’s assignments of error in the CAV and the SCV. (For those of you who just have to know, and don’t want to take the time to read today’s opinions, the court finds that the totality of the defendant’s actions, including threats directed at the children and grandfather, were sufficient for the factfinder to conclude that he intended to confine them inside his house.)

There are three issues relating to assignments. The first relates to whether the defendant’s assignment in the CAV was sufficient. Here’s that language:

The trial court erred by failing to grant the defendant[‘]s motion to strike the Commonwealth’s evidence as being insufficient as a matter of law to sustain his convictions for attempted murder, abduction[,] and the use of a firearm in the commission of a felony.

The Commonwealth contended that this is tantamount to a bare assignment that the evidence was insufficient, but the Supreme Court disagrees. Citing the recent Findlay decision (January 2014), the majority concludes that this assignment identifies the specific ruling by the trial court of which the appellant complains. Justices Powell and McClanahan dissent from this ruling, and would hold that this assignment was so insufficient as to deprive the Court of Appeals of jurisdiction over the case.

Next, the court takes up a challenge by the Commonwealth to the defendant’s assignment as stated in his petition for appeal in the Supreme Court. That language is a bit more expansive, and it begins by asserting that the CAV erroneously upheld the trial court. The Commonwealth objected that this language wasn’t identical to what was assigned in the CAV, so it was an impermissible change in the assignment. This argument puzzled me, as I have always understood the rules to require that you change the language of your assignments when you appeal on from the CAV to the SCV. (This requirement has now been changed by rule, as I reported on May 21.) In any event, the justices find nothing wrong with this revision.

The Commonwealth then went on to make another argument that struck me as exceedingly odd – it argued that the assignment was deficient because of the cases that hold that you can’t change the language in assignments. And it’s true – sort of – that there’s caselaw saying that you cannot alter the language of assignments. What the Commonwealth left out of those citations is that this rule applies only after the Supreme Court has granted a writ; after that, you can make a material change in the language only with the court’s permission. There is no prohibition of changing the language of your assignments when you move from one court to the next. This objection, too, is speedily rejected.

Ah, but at this point, it the defendant’s turn for a compositional boo-boo. Wouldn’t you know it, after the justices granted him a writ, he went and changed the language of his assignment in his opening brief. Now that you emphatically cannot do, as noted above. The Commonwealth accordingly asserted that the appeal should be dismissed, and this motion appears to contain some danger for the appellant.

But automatic dismissal isn’t the remedy when an appellant alters his assignments. Instead, the justices evaluate the case based on the original language – the words contained in the petition for appeal. (Technically, it’s the language of the assignments as granted by the writ panel; but that’s virtually always exactly what’s contained in the petition.) As long as the appellant’s arguments on brief relate to that phrasing, the court will go ahead and decide the case on the merits. Fortunately, this appellant’s sin was venial and not mortal, so the case gets fully decided. As we’ve seen above, it doesn’t end well for the defendant, who now has 11 years of free room and board, with the compliments of the Director of Corrections, to address his significant and dangerous temper issues.

Federal jurisdiction
Where does a litigant go when a federal judge says the case belongs in state court, and a state judge says it belongs in federal court? We don’t get a categorical answer to this conundrum in Anthony v. Verizon Virginia, Inc., but at least the justices give these particular plaintiffs a lectern to lean on.

The plaintiffs are several Verizon employees who were members of a union. In 2010, the company and the union sent them an urgent memo, indicating that the company had too many employees in their sector, and layoffs were imminent. They were offered a severance package, and were told to “ACT NOW,” because if the company’s stated deadline passed, the generous package would be off the table. They all decided to accept the offer.

In a subsequent proceeding before the Virginia Employment Commission, Verizon stated emphatically that there was no surplus of employees in this sector, and the several employees had resigned of their own volition, without any compulsion to do so. Since this statement seemed 180 degrees off from the earlier statements, the employees filed suit in Portsmouth Circuit Court, alleging actual and constructive fraud by the company and the union. They contended that the whole scheme was a ruse to get rid of long-tenured employees so the company could hire less-experienced workers, who would be paid less.

(In case you’re thinking that this whole scenario stinks to high heaven, keep in mind that because of the procedural posture of the case, these are only the employees’ allegations. We don’t have the company’s or the union’s side of the story yet.)

The defendants removed the case to the Rocket Docket, claiming that the state-law claims were completely preempted by federal law. But once there, a district judge granted a remand motion. The court noted that the preemption motion was based on the existence of a collective bargaining agreement, and the plaintiffs hadn’t relied on the CBA in their complaints. (Their lawyers had paid careful attention during Avoiding Federal Court 101.) This sent the case back to Portsmouth Circuit.

And that’s where the door swung back. A circuit-court judge agreed to dismiss the claim, finding that the claims were indeed preempted by federal law.

Okay, now what? Is this the case that no one wants to adjudicate? The plaintiffs can’t exactly go back to federal court (whence the case has already been booted once), and they’re now out of state court, too, based on two rulings that seem to contradict one another.

The place for such a litigant to go, of course, is Ninth and Franklin. Today the Supreme Court reverses the state judge’s ruling and sends the case back toPortsmouth for trial. The court analyzes preemption jurisprudence and notes that while a federal remand order isn’t generally binding on subsequent proceedings in state court, that rule doesn’t apply to a federal court’s finding of the absence of federal jurisdiction. In such a case, where a federal court determines that there’s no complete preemption, a state court can’t revisit that ruling, presumably because it would lead to exactly this kind of problem.

Justices McClanahan and Powell file separate opinions, each concurring in part and dissenting in part. They would hold that the employees’ claims necessarily depend in part on the CBA, and that’s an issue that’s purely (and completely) federal. Justice Powell also believes that the employees can’t show that they reasonably relied on the early-termination offers without referring to the CBA. Justice Lemons’s majority opinion finds that these views share a “common error” in that they ignore the ability of plaintiffs to state claims independent of the CBA. Here, the claims are for common-law fraud; and since the company allegedly approbated and reprobated, the plaintiffs can at least state a claim without any nexus to the CBA.