[Posted March 2, 2007] This morning, the Supreme Court of Virginia hands down sixteen published opinions in a variety of case areas. Several others are decided in unpublished orders, among those the rehearing of Taboada v. Daly Seven, originally decided a year ago. Two appeals involving People for the Ethical Treatment of Animals are held over to the April session. I’ll post commentary on today’s opinions throughout the course of the day.

Civil procedure
Everyone has a right of access to the courthouse. That includes appellate courthouses. But a few years back, the Court of Appeals of Virginia decided that Thomas Switzer had abused the privilege, by filing frivolous appeals; it sanctioned him by fining him $500, and ordered that he would not be permitted to file any more appeals until the fine was paid.

Switzer, who was at all relevant times proceeding both pro se and in forma pauperis, didn’t pay the fine, or even any part of it. He did, however, continue to appear in the CAV, filing two appeals of domestic relations rulings. True to its word, the CAV refused to open the courthouse doors to him; it entered orders dismissing both appeals because of Switzer’s failure to pay the sanction.

Today, in Switzer v. Switzer, the Supreme Court reverses, holding that an automatic dismissal is too stern a sanction for a litigant who might, after all, have a meritorious claim. The court doesn’t disagree that some sort of sanction is appropriate – neither, the opinion hints, does Switzer – but finds that the “ultimate sanction that the Court of Appeals could have imposed” was an abuse of discretion. Instead, the court points with approval to a “leave of court” provision, requiring Switzer’s appellate filings to undergo a pre-screening to determine some degree of appellate merit. The cases are remanded to the CAV for evaluation under that standard.

The court takes up a thorny statute of limitations issue in Lambert v. Javed, a wrongful death case filed in Russell County. The death occurred in May 2001, and the administratrix filed Suit #1 in April 2003. That’s timely, according to the two-year statute of limitations. But for reasons that aren’t entirely clear to me, she filed Suit #2, adding more defendants and a couple of additional causes of action, in August 2003. This one, you will note right off the bat, has significant statute of limitations problems.

Fortunately for the administratrix, she still had Suit #1 pending; she didn’t ditch that suit when she filed #2. She did, however, nonsuit Suit #1 in June 2004, and refiled (that’s Suit #3, if you’re keeping track) that November. That, too, is timely, since the tolling provisions of Code §8.01-299(E)(3) give her a six month window for that.

Inevitably, the defendants moved to dismiss Suit #2 on limitations grounds. At (or possibly after) the hearing on that motion, the administratrix asked for a nonsuit of Suit #2. In a letter opinion, the trial court recognized her right to nonsuit, but felt that he couldn’t consider it because the action was obviously time-barred; the court dismissed Suit #2 with prejudice. (Side note: If the nonsuit request came after the hearing had concluded, and after the matter had been submitted to the court for decision, then it’s too late to nonsuit. If it came during the hearing, before the matter had been fully submitted, then the nonsuit request absolutely was timely, and the trial court would not have been permitted to deny it simply because of the existence of a meritorious defense. But since no one appealed the dismissal of #2, the point is academic.)

That action gave the defense an idea; it now moved to dismiss Suit #3 on the basis of res judicata. It’s well established that a dismissal with prejudice operates as though the matter had been fully tried to the merits, and the defendants now had in their collective pocket a dismissal order. In this case, it worked; the trial court was faced with the undeniable fact that a suit on the same issues as Suit #3 had been dismissed with prejudice. That triggered the res judicata doctrine, and resulted in the dismissal of this case.

On appeal, the Supreme Court affirms, although hardly with unanimity of voice. The majority opinion, authored by Justice Lacy, rejects the administratrix’s argument that this interpretation puts the nonsuit statute and the res judicata doctrines hopelessly at odds. (This very argument is the hallmark of the dissent, written by Justice Koontz and joined by Justice Lemons.) It concludes that both res judicata and dismissals with prejudice protect defendants from having to litigate the same matter twice. Justice Kinser, joined by Justice Agee, files a short concurring opinion, emphasizing the preclusive effect the court has traditionally given procedural dismissals.

While I don’t know the full reasons behind the multiple filings in the trial court in this case, it’s clear that the administratrix outsmarted herself by proceeding as she did. On the merits of this issue, I have to say that my sentiment lies with the dissent, under the facts of this case. The majority holds that the administratrix sabotaged her (perfectly valid) principal action by filing an ill-advised, untimely second action. In my thinking, the second suit was subject to dismissal, although that dismissal should not have affected the valid action. But as I have noted on several previous occasions, I have neither a robe nor a vote in this issue, so that’s the law in Virginia.

Criminal law
In one of two long sagas that finally reach their conclusions today, the court decides an appeal by the Commonwealth in Commonwealth v. Epps, the dispute between the Petersburg Sheriff and a circuit court judge over courthouse security issues. I have reported extensively on this case before – it was one of my Top Ten Appellate Stories of 2005, back when it was still at the Court of Appeals – and will not repeat the extensive factual and procedural history here. Today, the court rules that a judge herself is not the “victim” of contempt of court; the court, as an institution, is the only victim. As such, the judge should not have been permitted to testify at the trial of the sheriff, in light of the statute making a judge incompetent to testify “as to any matter [that] came before him in the course of his official duties.” (For those nonlawyers who may read this and not understand, “competency” in this sense merely means that the judge is not allowed to testify to these facts; not that she isn’t mentally competent to take the stand.)

Have you ever heard stupid criminal stories, where hapless crooks practically ensure their own arrest and conviction by making dumb choices? Well, okay; turning to a life of crime is a dumb choice in and of itself. But if you’re a fan of the Darwin Awards, you know what I’m talking about.

Lawrence McDowell decided to shoplift at a drug store. He initially got away, and the merchandise was never recovered. Although he was captured, the prosecution had the problem of proving just what he had stolen, and showing its value.

This is where the dumb criminal part comes in – McDowell had the great misfortune to commit his theft just three to four hours after the store had conducted inventory. The inventory had been conducted using one of those hand-held bar-code readers that looks like a space gun from a sci-fi movie. The gun (which is called a Telethon gun) electronically records what’s on the shelves, and that information is sent to a database. By comparing the inventory with what was found after the theft, and adjusting for sales made in the intervening few hours, the store’s security detective was able to put an exact price tag on the wages of sin: $1,179.93.

At trial, McDowell challenged the use of a report generated from the data entered by the Telethon gun, but found little sympathy; the trial court admitted the report under the shopbook rule, and McDowell was convicted. On appeal, in McDowell v. Commonwealth, the Supreme Court affirms.

This is really a case about evidence, and has application beyond criminal law. The holding incorporates a very similar decision from 1980, also involving a theft occurring shortly after an inventory. The only difference between the 1980 case and this one is that the inventory had been conducted by employees of the victim in the earlier case, while the one in this case had been performed by a contractor. The court holds that the evidence at trial was sufficient to establish the requisite reliability of the business records, and finds that it was proper to admit the evidence.
Today also brings to a close the long journey of Taboada v. Daly Seven through the appellate system. Originally decided in March 2006 (and reported at 271 Va. 313), the decision imposed liability upon an innkeeper for criminal acts occurring on its premises. In doing so, the court applied the law of common carriers to find an enhanced duty on the part of the innkeeper to protect its guests.

Last August, the court sanctioned the innkeeper’s attorney for filing an ill-advised petition to rehear. In doing so, it permitted the hotel to withdraw the offending brief and file another; that effort bore fruit when the court granted rehearing, albeit without withdrawing the earlier opinion. Today, by published order, the court reaffirms its 2006 ruling, thus sending the case back to the trial court for a trial on the merits. (In that sense, perhaps this isn’t the last we’ll se of this case in the appellate system; who knows what will happen on remand?)

The hotel wins at least a symbolic victory today. Last year’s was a unanimous ruling, but today, two justices (Justice Agee, joined by Justice Kinser) abandon the rest in a long dissent, pointing out, among other things, that hotels now occupy a position that is actually inferior to common carriers. They reason that no common carrier has ever been held liable for assaults occurring in parking lots, but that is the precise holding here.

There is one medical malpractice opinion today; in Doherty v. Aleck, the court reinstates a jury verdict against a Portsmouth podiatrist who performed surgery that evidently wasn’t such a good idea after all. The patient came in with a callus on his toe. The doctor treated it conservatively at first, but the toe became increasingly problematic. Allegedly ignoring the patient’s prior medical history, the doctor opted to perform surgery to remove a bone spur. A week later, the patient’s wife called the doctor’s office, reporting that he was having major pain. The next day, the podiatrist saw the patient and determined to admit him to a local hospital immediately with a very bad case of gangrene. A vascular surgeon was unable to save the toe, and it was amputated.

In the ensuing medical malpractice trial, the principal issue was not whether the podiatrist performed the bone spur surgery negligently; it was whether she should have performed it at all. The patient’s medical expert testified, well, . . . let’s say, less than overwhelmingly on the standard of care, but enough to get the issue to a jury. The jury returned a verdict in favor of the patient for $850,000, but the trial court set it aside, since the patient’s expert had failed to testify using the magic words, “to a reasonable degree of medical probability.” The court also found the patient’s proof of causation lacking, given his extensive prior medical history.

Today, the Supreme Court reverses and reinstates the verdict. It deals swiftly and decisively with the reasonable-degree issue, citing last year’s ruling in Bitar v. Rahman. In that case, the court held that an objection like this goes to the admissibility of the expert testimony, not to its weight. Accordingly, defendants cannot lie in wait and spring the issue in a motion to strike; the objection must be made while the expert is on the stand, so that something can be done about it.

On the second issue, the court acknowledges that the patient’s expert didn’t offer the most compelling proof that the gangrene, and therefore the amputation, were caused by the bone spur surgery. But help arrived for the patient, in the form of the vascular surgeon himself, who ostensibly testified for the podiatrist. Asked whether the podiatrist had done anything to cause the amputation, he answered, “I’d like for you to clarify that, because clearly that occurred as a result of the previous procedure she had performed.”

At this point, the podiatrist must be musing, “With friends like this, who need adverse witnesses?” The court finds that this testimony is “the clincher” on this issue; the jury emphatically could have credited this testimony to resolve this disputed issue against the podiatrist.

I will add one other comment here, and it’s something I have preached before. Where, as here, the trial judge has taken a jury’s verdict away, the appellant really is in the driver’s seat in any appeal. Ordinarily, an appellant is fighting an uphill battle on the facts, which are viewed in a light most favorable to the party who prevailed in the trial court. But when the court sets a verdict aside and enters judgment, suddenly the appellant gets the benefit of the evidence. This factor should make litigants think long and hard about the advisability of the trial judge’s taking a motion under advisement, presumably to see if the jury bails him out by doing what the judge had in mind in the first place. If the jury returns a surprise verdict – and I have to imagine that $850,000 for a toe probably came as a surprise to this doctor – that finding might wind up getting embalmed, so to speak.

The court decides two cases today on essentially the same issue: Whether indemnification provisions that relieve a party liability for future acts of negligence, causing personal injuries, is void as against public policy. The two cases are Estes Express Lines v. Chopper Express and W.R. Hall, Inc. v. HRSD. While these are technically contract cases, I’m putting them in the torts section because they implicate tort concepts, and both involve the ultimate responsibility for paying personal injury claims.

The factual scenarios of the two cases are very similar. Estes Express involved the leasing of trucks from one company to another; the lease agreement contained a provision requiring the lessee to indemnify the lessor for any claims arising out of the lease of the equipment. W.R. Hall, Inc. involved a construction contract for the placement of sewer lines under a set of railroad tracks; HRSD’s contract with the railroad company required the sanitation district to indemnify the railway for injury claims.

In both cases, workers sustained injuries and sued the indemnified companies. The appeals address questions raised in the trial courts as to whether those indemnity agreements are void, since analogous agreements for the advance release of personal injury claims are clearly barred as against public policy.

The court resolves these cases by holding that the indemnity provisions do not offend Virginia’s public policy. In doing so, the court contrasts the advance-release agreements, which would result in an injured party’s being held without any remedy at all, from these agreements, which leave the injured party with a remedy, but allocate in advance which party will ultimately bear the responsibility for those damages.

One aspect of the public policy analysis merits separate mention here. Both indemnitors argued that one of the underpinnings for the public policy is that advance knowledge that a party will not bear the costs of its own negligence might make that party less careful. The argument seems plausible; I can readily envision a construction crew’s being instructed to cut some corners, because “if anything happens, it’ll be XYZ Company’s problem.” The court deals with this concern in the only way it can, by pointing out that no one can be sure that another party will actually pay such damages – for example, the indemnitor might not be solvent enough to pay them, leaving the negligent party still on the hook to the original plaintiff.

This analysis is troubling to me, because I can just as readily envision many situations in which an indemnitee can be perfectly confident that the indemnitor will be perfectly solvent. What if the indemnitor is Exxon/Mobil, or Microsoft, or the United States? What if the indemnity agreement is bonded? In either case, the indemnitee will lose no sleep whatsoever wondering whether that indemnity agreement will hold up, and will have no economic incentive to be careful. As the court’s analysis seems to depend on extrinsic factors that will vary widely from case to case, I have trouble agreeing with the justification for this conclusion, leading as it does to a universal rule.

There is one defamation opinion today, Raytheon Technical Services v. Hyland. Hyland was a high-ranking executive at Raytheon, and received satisfactory performance evaluations before a company-wide audit in 2002, designed to find out why the company was losing bids for government contracts. During the audit, conducted by an outside consultant, Hyland gave candid opinions about her boss, after being guaranteed by the interviewer that her comments would be kept confidential. She offered some positive feedback, and some that was not so positive.

If the interviewer had, indeed, kept her confidence, then, . . . well, you’ve already figured that we wouldn’t be having this cyber-conversation right now. In going over the results of the audit with the boss, the interviewer blabbed.

Guess how Hyland’s next performance evaluation went?

After she was fired, she filed a suit against the company and her boss, alleging several causes of action; the only ones that are relevant to this appeal are a claim that she was defamed by her 2002 evaluation. At first blush, you might think that she’d get nowhere; performance evaluations are usually subjective, and almost always include healthy doses of opinion. But as the Supreme Court’s caselaw indicates, just couching a statement as an opinion doesn’t relieve anyone of defamation liability. If the statement is capable of being proved true or false, then it can, indeed, form the basis for a defamation suit.

The jury thought so, in this case; it awarded Hyland $1.5 million in compensatory damages and $2 million in punitives. Raytheon and the boss got a writ, on three sharply limited issues.

I’ll cut to the chase here – Hyland wins the first two issues, easily. In the first, she wins because the appellants essentially briefed the wrong issue, a mistake that is more common in appellate courts than you might think. She wins the second because the appellants didn’t assign error to the jury’s finding on a parallel issue that precluded the second assignment.

In the third assignment, the appellants finally hit pay dirt. The assignment challenges whether the trial court erred in submitting five specific statements to the jury, and the Supreme Court, evaluating only the issue of whether or not the statements were capable of being proved true, finds that three of the five are not, and are thus opinions for which no recovery can be had. Since the jury didn’t segregate its award according to the various classes of claimed defamation, the court remands for a new trial, as it can’t determine whether the jury awarded anything for the three statements of opinion.

Cynics will note that the appellants in this case win by slowly losing. The overwhelming theme of this opinion is a recitation of issues not briefed; of errors not assigned; of arguments not made. In the end, though, the appellants get what they want, which is relief from a large judgment, and a fresh crack at the case with a new jury.

Two familiar “victims” of strict contractual interpretation receive additional body blows today.

In Parikh v. Family Care Center, the court addresses a covenant not to compete. These covenants, which are in restraint of trade, are painfully difficult to enforce, and a string of recent Supreme Court decisions have found many reasons to avoid the prohibitions in the covenants. This one was signed by a physician who, in 1993, hired on with a small family practice office in Lynchburg. The office was run as a professional corporation, with one Dr. Dennis Burns as the sole director and shareholder.

The covenant provided that if Dr. Parikh entered into competing employment with the group within twenty miles of the firm’s office, at any time up to three years after his termination, then he would pay the company $10,000 per month in damages.

The trouble in this case started with a tragedy; Dr. Burns was killed in a collision in 2003. By operation of law, that meant that the company was no longer a professional corporation, but was now, well, . . . a plain old corporation. Virginia law prohibits plain old corporations from practicing medicine.

This didn’t become an issue until Dr. Parikh jumped ship at the end of 2003, landing at another medical office that provides the same type of care as Family Care. The new office was one mile away from Family Care. The good news for Dr. Parikh is that his commute didn’t worsen; the bad news is that he got sued. In the trial court, Dr. Parikh filed an ingenious motion to dismiss, asserting that since Family Care could not, under Virginia law, practice medicine, he was not competing with his old shop, so the plaintiff had no legitimate business interest in enforcing the covenant.

The trial court wasn’t having any of that; it overruled the motion and, after a bench trial, awarded Family Care $210,000 in damages for 21 months of competition. Today, the Supreme Court reverses, holding that Dr. Parikh was right; since Family Care isn’t allowed to practice medicine, it “cannot engage in a competing practice with Dr. Parikh.” (Careful readers may wonder how this situation got reversed, so that now it’s the center that’s competing with Dr. Parikh, not the other way around.) One of the elements of an enforceable covenant not to compete is that it must be “narrowly written to protect the employer’s legitimate business interest.” Since no one can have a legitimate interest in practicing what he’s not licensed to practice, Dr. Parikh gets out of the covenant, and those lawyers seeking ways to avoid these covenants have a new tool in their belts.

The other redheaded step-contract is the insurance policy. In Allstate v. Gauthier, it gets comparable treatment to the noncompetition covenant.

Gauthier owned a boat, a hole in the water into which you pour money. When the water pump in his engine malfunctioned, he disconnected it in order to take it to a repair facility. When he did so, he jerry-rigged the valve that kept water from flowing freely into the boat; he then took the pump to a repair facility. The next morning, his boat had a new mooring, at the bottom of the creek; the makeshift valve arrangement had slipped, and the creek spent the entire evening and night pouring into the craft through the hole it left.

Gauthier admittedly was negligent in failing to make more secure provision for the open valve, but that doesn’t vitiate an insurance contract; he filed a claim for the boat, which Allstate agreed was a total loss at some $40,000. But the insurer still didn’t pay, citing a provision in the policy that excluded coverage for losses arising out of “repairing, renovating, servicing, or maintenance” of the boat. Plainly, the only reason why the water got in was that Gauthier had taken the pump out so it could be repaired.

Gauthier sued, and the trial court found coverage. On appeal, Allstate raised the entirely plausible contention that this type of repair activity fit squarely within the exclusion in the policy. The Supreme Court didn’t bite. Today, it holds, under very familiar principles, that insurance policies are strictly construed in favor of the insured, and exclusions are “read narrowly in favor of coverage.”

The heart of today’s ruling is the trial court’s factual finding that Gauthier’s actions did not themselves constitute repairing the boat; everyone agreed that he was taking the pump to a professional for service. The Supreme Court finds that this factual determination is not “plainly wrong,” and so is bound by it.

There is one side note in this case that’s worth remembering for trial lawyers who handle an occasional appeal. After the writ was granted, Allstate, in its brief of appellant, rephrased its assignment of error significantly. This one cannot do; assignments of error, once an appeal is awarded, are chiseled in stone, and neither the parties nor the court are free to alter them. Questions presented can and often are amended, and the appellee often restates the appellant’s questions. In this case, the Supreme Court didn’t exactly blast the appellant – the change was more stylistic than substantive, and Allstate’s counsel didn’t land in the Ninth Street doghouse. But the court did resolve the appeal by utilizing the assignment as originally phrased in the petition for appeal.

Experienced trial lawyers will tell you that, while Virginia caselaw readily establishes the right of a plaintiff to obtain the equitable remedy of specific performance in a proper case, the reality is that such relief is rarely granted. There’s just something about the remedy that seems to stick in the craw of most trial judges, who are customarily called upon to order someone to sell his home, after he’s had a change of heart; or the reverse, compelling someone to go through with a purchase that he later recognizes is beyond his financial means. The trial courts often find a way not to compel such a sale.

With the sale of personalty, some of that reticence often disappears. Unlike a home, this is just money. And money is at the root of today’s holding in Hamlet v. Hayes, a specific performance suit involving shares of a closely held corporation.

When Commonwealth Wood Preservers, Inc. was formed, the owners agreed among themselves that the shares of the company would not be publicly traded. They agreed that if one of the owners received an offer to purchase his shares, the company would have a right to redeem those shares at the price thereby offered. And if the company decided not to reacquire the shares, the remaining owners would have an opportunity to purchase a proportionate share of the departing member’s stock – again, at the offered price, but on terms that included 20% in cash and the rest by promissory note.

The company evidently did quite well, and fourteen years after it was founded, one of the owners received a written offer to purchase his stock for $700,000. The company declined to redeem the stock, thus giving the other shareholders a crack at it, for the agreed price. (The court classifies this arrangement not as an option to purchase, but as a right of first refusal.) Evidently, $700,000 was a bargain price; the other stockholders timely notified the company that they would acquire proportionate shares of the departing owner’s interest.

At that point, something unexpected happened: The prospective purchaser backed out, and sent a letter confirming that. The selling stockholder thereupon sent a note to the company, telling it that he withdrew his offer to sell. This, you will readily see, was the origin of a lawsuit.

The other owners filed a suit seeking specific performance of what they termed their contract of purchase. The ostensibly departing owner answered that he didn’t have a contract with the plaintiffs; he had only an offer from a third party, and that offer had been withdrawn. The plaintiffs responded that, once they exercised their right, a contract was imposed upon the seller.

The trial court had some heartburn over this suit, and ruled (on demurrer) that the defendant couldn’t be required to sell his shares. It dismissed the suit. On appeal, the Supreme Court today reverses, despite the fact that specific performance is a matter confided to the trial court’s sound discretion. (The procedural posture of the case no doubt affects this holding, because the trial court never, in fact, exercised any discretion. The ruling below, just as the one today, was on a matter of law, whether the plaintiffs stated a potentially valid claim.)

The plaintiffs are helped today by the language of the contract, which waives any defense based on the adequacy of a legal remedy, thereby making specific performance more readily available. In the end, the Supreme Court recognizes what the trial court had declined to find – an obligation upon the selling member, based upon the allegations in the complaint, to convey his shares. The matter is remanded for a trial, so now we’ll see if the plaintiffs can prove what they have alleged.

The court hands down the latest in a troubling series of recent cases involving sanctions imposed against attorneys. Today’s opinion is Nusbaum v. Berlin, two consolidated appeals that both arise out of a minor physical altercation between two attorneys during a Virginia Beach jury trial.

The case took weeks to try, and must have started to tax the patience of the lawyers, as such protracted litigation often does. At one point, an attorney for the defendant more or less gently suggested to the trial judge that one of the plaintiff’s lawyers had made a factual recitation that was untrue. The accused lawyer’s partner, who was trying the case with her, came to her rescue during a bench conference, with the jury still sitting in the box; during this conference, apparently at a moment when the judge had turned his head, the knight in worsted wool armor confronted his partner’s accuser, got into his face, and told him he did not think it was appropriate to accuse another lawyer of, well, lying.

If it were just a verbal confrontation, matters never would have reached the Supreme Court. This went further. Right in front of an astonished bailiff, the confronting lawyer shoved his adversary with his elbow, knocking him back into the bailiff’s podium.

Somehow, the trial judge didn’t see this happen, but the bailiff obviously did. When court reconvened, the judge asked the bailiff to recount her tale in front of everyone (except the jury, of course). He offered to place the bailiff under oath, but no one required that. When the bailiff described what had happened, the judge allowed anyone who wanted to ask questions of her, to do so. No one stepped forward, and the bailiff’s grueling time as a witness ended after perhaps 45 seconds.

Now, you will appreciate, we’ve got trouble. As physical assaults go, this was at the far low end of the spectrum; the recipient of the unwanted contact initially told the judge that he “didn’t take offense at that,” but the judge surely did. After additional colloquy, during which the two lawyers each gave an account of the event, the judge announced that he was granting a mistrial – remember, this was a multi-week trial, so that’s no small measure – on the possibility that the jury may have seen what happened. When he suggested that he would impose upon the assailant the costs of the proceedings thus far, the lawyer asked for a separate hearing; the judge gave it to him, and the parties agreed to reconvene for that purpose a month later.

It’s worth noting at this point that the assailant is not exactly a baby lawyer who has yet to learn how to behave in a courtroom; Robert Nusbaum is one of the deans of the Tidewater bar, and has had a distinguished legal career stretching over several decades. This, you will readily appreciate, was accordingly major news.

Nusbaum filed a pleading in the intervening month, attaching to that his affidavit in which he contested the bailiff’s version of the brief event. The trial judge, upon convening court on the hearing day, told Nusbaum that he was “astounded” that the deputy’s statement was now being challenged, after no one had done so when given an opportunity during trial; nor had anyone else offered back then to testify as to what had happened. Nusbaum’s ship, you will observe, is starting to sink.

At the conclusion of the hearing, the trial court announced that it did not feel that it could impose the costs of the proceedings as a sanction, but that it would find him in contempt of court. It offered Nusbaum a separate hearing date for that. Knowing that the maximum punishment for a summary contempt finding like this is $250 or ten days in jail, Nusbaum responded that as long as the judge wasn’t planning on throwing him in the slammer, he didn’t need a separate hearing for just a $250 fine. Good enough for me, noted the judge; he fined Nusbaum $250.

Again, if that were the end of it, we probably wouldn’t have a Supreme Court opinion (the longest of the day, at 36 pages). Nusbaum moved the court to reconsider an additional sanction it had imposed (disqualifying both Nusbaum and his law firm from continuing to represent the plaintiffs), but noted that he was not asking the court to reconsider any other ruling (which would include the contempt conviction and the $250 fine). The defendants, in turn, opposed Nusbaum’s request, and also asked the court to reconsider its decision not to impose costs upon Nusbaum.

At yet another hearing (this one two months after the first, and three months after the mistrial), the court eased its earlier sanction by permitting Nusbaum’s firm to continue to handle the case. But (and this is where the fireworks arise) it also reversed its previous holding and imposed $52,000 in sanctions, representing the defendants’ costs of preparing for and attending the two post-trial hearings, upon Nusbaum. (Side note: In my personal view, $52K is an astounding figure for two hearings, but I haven’t seen the lawyers’ time records, so I’ll reserve judgment.)

One last procedural point, and then we’ll (finally!) get to the appellate stage. Before the first hearing, Nusbaum heeded Ben Franklin’s advice and got himself a lawyer. That lawyer had made only a general objection to the court’s rulings the first time. Evidently recognizing that he hadn’t made a sufficient record, he asked the court in the second hearing for leave to state his objections more fully, being careful to note that he wasn’t asking the judge to change any rulings; he just wanted to protect the record. The trial court permitted him to note any objections he wanted to note; at that point, the parties were off to the land of appeals.

Keen appellate observers will note that the trial court had entered two separate judgments, and that the two called for appeals to two separate appellate courts. The contempt conviction is criminal, so appeal there lies to the Court of Appeals; the sanctions order is civil, so that goes straight to the Supreme Court. But recognizing the importance of the case, and in the interest of judicial economy, the Supreme Court took the unusual step of exercising its statutory right to “certify” the criminal appeal (that is, remove it from the CAV and take direct appellate jurisdiction); it then consolidated the cases for purposes of the appeal.

At long last, this case has arrived at Ninth and Franklin in Richmond, so we can start talking about the resolution of the appeal. Because this discussion is long enough already, I’ll summarize the court’s rulings and add a couple of comments. The court reverses the imposition of sanctions, finding that such an award cannot be made solely under the trial court’s inherent power to punish malfeasance among attorneys who act up in open court. That power exists, under a long line of cases, not to punish the attorney, but to protect the public. This award, which was ordered to be made payable to the defendants, was clearly an effort to punish Nusbaum for his actions. The court rules today that trial courts can take a number of actions to control disobedient lawyers, but it can’t take this one.

The criminal contempt conviction, however, stands, largely because of the appellate lawyer’s ancient goblin, Rule 5:25. On appeal, Nusbaum argued a number of things that he had not raised in the trial court, including the impropriety of permitting the bailiff to testify while not under oath (you’ll recall that no one responded to the judge’s offer to swear her in). Perhaps most interestingly, the court finds that Nusbaum’s lawyer’s assurance at the final hearing that he wanted to note some specific objections, but was not asking the judge to change his ruling, waived the right to present those to the appellate court, again due to Rule 5:25. In truth, the lawyer had not recited more than a general objection at the first hearing, and listed several specific objections at the second, without ever asking the judge to rule on them. This ye may not do, the court rules today.

This case, while it deals with the narrow issues of sanctions and contempt, is a must-read for anyone trying to preserve an issue for appeal. (Raytheon Technical v. Hyland, in the torts section above, is another.) In the final calculus, one must conclude that Nusbaum substantially prevails on appeal, although he remains adjudicated guilty of contempt. But saving $52,000 makes it worth his while to have appealed (depending, of course, on whether his lawyers billed their time at the same rate the defendants’ lawyers charged for the two hearings).

Land use
Dating back to the Seventeenth Century, shortly after the Jamestown colonists planted the first permanent English settlement in Virginia, the City of Norfolk is among Virginia’s (and America’s) oldest municipalities. It has a number of historic districts, including one in the west central portion of the city, called Ghent. The city’s zoning ordinance prescribes certain restrictions on the development of property in Ghent, including the requirement that no more than 55% of the acreage of the lot can be covered with buildings.

Located at one of Ghent’s key intersections (Olney Road and Stockley Gardens) is a beautiful old church known as Christ and St. Luke’s. The church and its attendant structures occupy more than 55% of the area of the lot on which they’re sited, but those structures predate the zoning ordinance, and are therefore “grandfathered” as lawful nonconforming structures. They can continue in use indefinitely, but if the owners want to change the structure, they have to comply with the ordinance, assuming the change would increase the nonconformity.

The trustees of the church wanted to renovate the lot, including an expansion of the sanctuary. Doing that would result in lot coverage of 66%, which is a problem. But the trustees also owned a lot across the street, and proposed to renovate that one, too. If the two lots were to be considered together, then the combined coverage of the lots would just squeeze into the ordinance, at 54.98% coverage.

Better still, the ordinance provides that a lot, for zoning purposes, “may consist of combinations of adjacent individual lots.” Problem solved; all the trustees need to do is submit their plans to develop the two lots together, consider them as one lot, and they’re legal.

Well, the City didn’t see it quite that way. When the trustees asked the zoning administrator to bless their approach (sorry), he balked because of the fact that the two lots, being across the street from one another, weren’t “adjacent,” at least in his view. Aw c’mon, the trustees urged; what about that 1988 Supreme Court decision in the billboard case? (Transp. Comm’r v. Creative Displays, 236 Va. 352) You know, the one that says that a billboard can be “adjacent” to an interstate highway even when there’s a city street separating them? The administrator wouldn’t budge, and the Board of Zoning Appeals agreed with him. That meant the parties were off to court.

The circuit court, affording the usual high degree of deference to the BZA’s decision, affirmed, but the trustees weren’t done fighting; they got a writ from the Supreme Court, which today affirms all the previous rulings in Christ and St. Luke’s v. Norfolk BZA. In doing so, it finds that under Norfolk’s ordinance, the separation of the two lots by a public street renders then passably not “adjacent” to one another. The specific holding is that the BZA was not plainly wrong in interpreting the law or the purposes of the zoning ordinance.

This case includes the court’s latest iteration of the rule of practical construction, which provides that when officials are charged with the task of interpreting and enforcing provisions of an ordinance, their consistent, long-standing interpretation of the ordinance is afforded significant weight by the courts. The courts observe and respect the expertise those officials (here, the zoning administrator and the BZA) have developed in analyzing their own ordinance. There are practical limitations to this doctrine (for example, the court ruled in 2005 that such an official can’t issue an interpretation that’s plainly contrary to the wording of the law, in Davenport v. Little-Bowser), but it’s still a powerful weapon in the arsenal of a government official who’s defending his turf.

The day’s lone estates decision exposes a significant trap for the unwary. The decision is Belton v. Crudup, and involves the claim of a child who was born out of wedlock, seeking to share in her father’s estate.

Illegitimacy isn’t the stigma it once was in our society; children are routinely born to unwed parents, and our current mores differ widely from those held just a generation or two ago. But even mores change more quickly than does the Code of Virginia, which still classifies a child born out of wedlock differently than one born to married parents. Proponents of this treatment may point to avoidance of fraud as a reason for the current statute, and not knowing what was on the minds of the legislators when the provision was passed, I can’t refute that.

The statute in question is Code (1950) §64.1-5.1, the code section defining the term child. Subsection 4 of that statute creates a special procedure for a child born out of wedlock to claim a share of an inheritance, one not required of “legitimate” children. In order to make such a claim, the child must file an affidavit alleging paternity, and file a suit seeking adjudication of parenthood, both within one year after the date of death. There are three circumstances in which the one-year period may be tolled, but they don’t apply here.

James Crudup died in 1999. His widow, Paula, qualified as administratrix and filed a list of heirs three months later, listing herself and Cheryl Belton as his wife and daughter, respectively. She listed the value of the estate as less than $10,000. So far, so good.

A year and a half later, Paula filed an amended list. Now, Cheryl Belton was nowhere to be found – Paula was the only heir on this list – and the estate had a value of $100,000. As you have figured out by now, Belton was born out of wedlock; the widow cited that fact in a subsequent letter to Belton, telling her she was cut out of the estate.

Belton went straight to court, seeking a declaration that she was her father’s natural daughter and heir. She alleged that Paula had assured her for 18 months that she would share in the estate, but suddenly and without warning, filed the amended list. In response, Paula pleaded the failure of Belton to file the affidavit and petition within the initial year after the date of death.

Belton then asked the court to rule that the one-year statute of limitations should be tolled by the widow’s inequitable conduct, upon which she understandably relied. She acknowledged that she had not filed an action within the one year (she alleged that the initial list of heirs satisfied the affidavit requirement), but her failure to do that was due to the widow’s assurances. The trial court denied that request and entered judgment against Belton.

Do you find yourself subtly rooting for Belton here, considering how she was (allegedly, one must admit) misled? Then get ready for disappointment; the Supreme Court affirms today, finding that when the General Assembly created three specific circumstances where the statute is tolled, the court is not free to create a fourth. Belton’s failure to file the declaratory action within one year means that she can never share in the estate.

Attorneys handling estate matters absolutely must be aware of this doctrine, and must start asking the difficult question, “Are you legitimate?” of potential heirs who consult them. In my view, while I believe it is unfortunate that the law differentiates between children born in and out of wedlock (each child is utterly powerless to do anything about this circumstance), this decision is absolutely correct under the law as it stands. And unless a cadre of citizens who were born out of wedlock gathers into a substantial voting bloc, this statute is unlikely to change in the near future.