ANALYSIS OF MAY 3, 2018 SUPREME COURT OPINIONS

(Posted May 3, 2018) There are two published opinions from the Supreme Court today. For those appellate geeks (present company included) who closely follow preservation rulings, this is a signal day.

Preservation of issues for appeal

Today’s decision in Cherry v. Lawson Realty Corp. is about a tort claim for mold in an apartment. But for me, the biggest aspect of the case is a preliminary ruling on preservation.

This is an interlocutory appeal. Two tenants sued their landlord, claiming that their apartment was infested with mold and the landlord didn’t properly remediate it. They stated common-law claims and added claims under the Residential Landlord and Tenant Act.

The trial court dismissed the common-law counts before trial, holding that the enactment of mold provisions in the RLTA abrogated common-law claims. The tenants sought an interlocutory appeal, and the justices granted a writ.

The Supreme Court reverses today, ruling that the legislature did not, in fact, abrogate common-law remedies for this kind of claim. The Act spells out several matters relating to such claims, but it never covers the entire waterfront, so the court finds that the common-law remedy is intact.

The sexier issue for appellate geeks is the landlord’s contention that the tenant never objected to the court’s ruling on this issue; it simply asked for the interlocutory appeal, and noted its objections in an endorsement to the final order.

I have long perceived a tension between the preservation statute, Code §8.01-384, and the court’s holdings on preservation, specifically as they relate to a bare objection above an endorsement. The best-known case for this is Nusbaum v. Berlin from 2007, and that case features prominently in today’s analysis.

In Nusbaum, a lawyer handed up to the judge a set of specific objections that had never been lodged before. As he did so, the lawyer assured the judge, perhaps as a matter of politeness, that he wasn’t asking the judge to change his ruling; he just wanted to preserve the issue for appeal.

The Supreme Court held that that statement waived the issue for review, since the justices can only review a lower court’s rulings, and the judge had never ruled on these arguments, because the appellant had never asked him to do so. That’s simple enough.

But the appellant in Nusbaum had a separate angle of attack: He listed the appellate issues in his endorsement of the final order. That seems to comply with §8.01-384, which expressly says that “[a]rguments made at trial via … recital of objections in a final order . . . shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.”

The Nusbaum court nevertheless ruled that the issue was waived, despite the endorsement. In today’s case, the landlord cited this holding in Nusbaum to bar the issue.

The Supreme Court today disagrees, finding the issue to be preserved. In doing so, it limits Nusbaum to its unusual fact pattern, where a lawyer expressly disclaims a desire for a ruling. (That’s not going to happen very often.) Justice McCull0ugh’s opinion for today’s unanimous court states that Nusbaum is distinguishable; as I see it, the court today actually overrules that endorsement ruling from Nusbaum. Either way you view it, this broadens an appellant’s ability to squeeze in a last-minute objection, simply by listing it in his endorsement of the final order.

Torts

My travel schedule today affords me only a few minutes to outline the holdings in Coward v. Wellmont Health System. The case involves a claim for the relatively new (at least in Virginia) tort of intentional interference with parental rights. The justices first recognized it in Wyatt v. McDermott in 2012; today’s ruling refines that doctrine.

The court’s key holding is that a claim for interference with parental rights must rest on allegation and proof of wrongful interference. Here, a teenage mother decided to give up her newborn child for adoption. She orally agreed with the adoptive family, signed relevant documents (the child’s father joined in), and consented to an order from a JDR court for a custody order in favor of the adoptive parents. She appeared in a lawyer’s office and signed documents to effectuate the transfer. Only after all this did she have second thoughts and attempt to rescind her consent.

Justice Kelsey’s opinion for a unanimous court is, in my view, unassailable; whether or not the mother actually may rescind her consent, it’s fairly clear, even from her pleading, that the appellee defendants – health care professionals and the lawyer who drew up the papers – did nothing tortious. They simply acted to carry out the mother’s express directives. It is entirely right that this claim was dismissed, and today’s opinion cements that.