(Posted October 27, 2016) Here they come! After a hiatus lasting several weeks, the justices have begun to hand down opinions from appeals argued in the September session. Today we get eight published opinions.

Criminal law

I’ve listened online to the oral argument in Hines v. Commonwealth, a conviction of murder that includes consideration of a claim of self-defense. Hines was at home with some family members and a friend named Hudson. Hudson was intoxicated and rambunctious. When Hines tried to calm him down, Hudson pulled a gun.

That led Hines to leave the living room, go to another room, fetch his own gun, and return. Hines said he hoped that this would convince Hudson to back down, but it evidently had the opposite effect. Hines’s gun spoke five times, and three slugs found Hudson.

In the ensuing murder trial, Hines told the judge that he legitimately feared for his life. The judge believed him, but noted that Hines had been able to remove himself from the area of danger. The court felt that once he had moved to a position of safety, he couldn’t return, shoot the victim, and claim self-defense.

The Court of Appeals agreed, refusing a petition for appeal, but at least one justice on a writ panel found something interesting. The panel gave him a writ, and today the justices unanimously reverse.

The key element of the case that springs Hines is the fact that he was in his own home. If this encounter had taken place in an art gallery or on a golf course – or even in a back alley somewhere – the result would likely be different. But when you’re inside your own home, under Virginia law, you have a right to repel an intruder by as much force as is necessary, including deadly force. Since the trial judge found Hines’s story credible, the Supreme Court vacates the convictions and enters a final judgment of acquittal.

There’s a jurisdictional ruling in Velasquez v. Commonwealth that will interest appellate lawyers. At least, it interested me. Velasquez pleaded guilty to computer solicitation of a child and ostensibly agreed to a 15-year prison term with ten years suspended. That deal provided for the nolle prosequi of another charge against him. But a few days later, he reconsidered and sent a handwritten letter to the court, advising that he wanted to appeal.

This letter arrived after rendition of sentencing but before the court entered the sentencing order. When the court signed the sentencing order, it apparently saw the letter. The court treated it as a request to appeal, so it appointed separate appellate counsel. That lawyer filed two documents: a motion to withdraw the guilty plea and a notice of appeal.

The jurisdictional issue arose sua sponte at the ensuing hearing: Since the defendant had filed a notice of appeal, did the trial court have jurisdiction to do anything more than shrug?

About a year and a half ago, I posted here an essay on this topic. I noted that the Supreme Court’s pronouncements on just what does divest the trial court of jurisdiction have not been wholly consistent. At first, it required the perfection of an appeal; but in 1998, without explanation, the court changed that to just noting an appeal. As I read through today’s decision, I leaned forward, eagerly anticipating a resolution of the seemingly inconsistent holdings.

Alas; no resolution is coming today. That’s because this case is decided by a specific statute that covers this situation in criminal cases:

A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of a sentence is suspended; but to correct manifest injustice, the court within twenty-one days after entry of a final order may set aside the judgment of conviction and permit the defendant to withdraw his plea.

Code §19.2-296. Thus, the General Assembly gives trial courts continuing jurisdiction to allow defendants to withdraw guilty pleas.

Today’s opinion, written by the chief justice, helpfully points out that trial courts still have a role or two to play even after someone notes an appeal, and this is one of them. But the trial court erroneously had ruled that it no longer had jurisdiction to do anything. Oh yes, you do, the justices say today.

Even so, this case isn’t going back. Because Velasquez sought to withdraw his plea after he was sentenced, his motion is evaluated under the very strict manifest-injustice standard. The trial court had wisely tacked onto its no-jurisdiction ruling an alternative finding that Velasquez had not adduced a sufficient showing to uncork the plea. The justices seize on this ruling and use it to speedily affirm.

Employment law

Prepare yourself. There are some places where you just don’t expect to see claims that are tantamount to sexual harassment. In Robinson v. Salvation Army, we see a claim of unwelcome sexual advances in the context of wrongful termination.

Robinson worked at the Salvation Army, where she claimed that her supervisor pestered her to sleep with him. She outlined a tale of hounding by the supervisor, with crude comments, innuendoes, and a clear pattern of lascivious intent. When she recorded some of these and played the tape for the Human Resources officer, she got fired without explanation.

Robinson chose to file an action against the organization for wrongful termination. Now, we all know that employment in Virginia is presumptively at-will, but Robinson pleaded a Bowman claim, stating that she was fired for refusing to commit the crime of fornication.

The defense responded that after Lawrence v. Texas and Martin v. Ziherl, fornication was no longer a crime in Virginia, so that legal theory didn’t fit. The judge agreed and granted summary judgment.

Today the justices affirm. They hold that while the fornication statute is still in the Code of Virginia, it’s no longer a viable criminal offense. In Lawrence, SCOTUS had struck down the criminalization of private sexual conduct between consenting adults, and the SCV ruled in Martin that given that holding, Virginia’s prohibition of fornication was no longer enforceable. Robinson contended that Martin had excluded from its operation other sexual matters, and she contended that this was non-consensual; but the justices aren’t having any of that. They hold that in order to justify a claim, the supervisor’s activities would have to amount to an exhortation to “public fornication, prostitution, or other such crimes.”

The court’s citation to Martin reminds me that that’s the first case I ever analyzed on this website on the day of its launch – January 14, 2005. You may be able to win a bar bet with that information, if you can ever find a bar where people bet on appellate trivia.

Real property

Always buy title insurance. Along with “Read the fine print” and “Don’t screw around with the IRS,” that’s some of my better foundation-level legal advice. I tell people I wouldn’t even buy a vacant lot without title insurance.

One Ravi Prasad chose not to follow this advice. Retired from a chemical-engineering career, he became a real-estate investor, “flipping” houses for fun and profit. In contrast to a buy-and-hold investor, who makes money by rental income and appreciation, a flipper buys a house at a distress-level price, fixes it up a bit, and then sells it for a profit.

We learn in Washington v. Prasad that in his flipping career, Prasad regarded title insurance as an unnecessary expense, since “I trust the courts and I trust the County.” He got notice one day of a tax sale to be held by a local government, and decided to check into the properties being sold. One site looked good – a vacant home identified with the address of 17211 Shands Road in Prince William County. The county’s property records showed a picture of the property, which evidently didn’t look too bad. Prasad attended the auction and bought it for $11K.

Soon thereafter, he began to make repairs and improvements to his new purchase. He must have been surprised to get a letter from a lawyer saying, “Stop banging on my client’s house, and by the way, get off their land.” Prasad rechecked the street number on the front of the house; sure enough, 17211 Shands Road.

Eventually he figured out the problem. The proper street address for the Washingtons’ property was 17201 Shands Road. Years before, it had been designated #17211, but the street number had changed to 17201 in 2004. Even so, the family never changed the street number that hung on the front of the building. Hence Prasad’s confusion: he was improving a house with his house number, but it was two doors down from the land he owned.

Prasad could have shrugged and moved on, but he had put $23,000 into the property, and he wanted his money back. He filed suit seeking a constructive trust on the grounds of unjust enrichment, claiming that the Washingtons had defrauded him by displaying the wrong street number. He also asked for $23,000 in damages for what he had spent on repairs.

At trial, the Washingtons produced a plat showing that while their property fronted on a straight stretch of the road, the property in the tax sale – of which Prasad was now the proud owner – was on a curve in the roadway. The judge sided with Prasad, rejecting the Washingtons’ claim that Prasad had failed to exercise due diligence. It imposed a constructive trust and awarded Prasad judgment based on quantum meruit.

The justices reverse this judgment today and direct final judgment for the Washingtons. They hold that Prasad had at least constructive notice of where the correct property was, but he failed to take care to be sure he was banging nails into the right building. He could have checked the tax map – which he had in his possession – and another map in his chain of title to be sure he had the right spot. But in buying the property, he elected to economize: no survey, no closing attorney, no title insurance. That’s what we in the legal profession call a false economy.


The court takes up a tragic appeal involving juveniles in Elliott v. Carter. It’s a wrongful-death case arising out of the drowning death of a 13-year-old member of a Boy Scout troop. The group went on a camping trip on the Northern Neck, settling on a site by the banks of the Rappahannock.

The appellee here was a 16-year-old leader in the troop. One of his charges was a 13-year-old who had been taking swimming lessons but was not yet able to swim. The leader took three boys, including the 13-year-old, wading into the river, along a partially submerged sandbar. They got about 150 yards from the bank when the leader and one other boy chose to swim back; the leader told the other two boys, who couldn’t swim, to retrace their steps along the sandbar.

It didn’t work out that way. Both boys plunged into deep water. The leader dove in and tried to swim back; he rescued one of his young charges, but the other one drowned.

Elliott qualified as personal representative and filed a wrongful-death suit against the scout leader, four adult leaders, and the Boy Scouts. The trial court sustained a plea of charitable immunity, but the administrator amended to claim gross negligence, which is beyond the reach of the immunity. The defendants moved for summary judgment, arguing that the circumstances in the case didn’t rise to the level of gross negligence. The court granted that motion and dismissed with prejudice.

The administrator appealed the dismissal only as to the 16-year-old peer leader. Today a divided Supreme Court affirms. Justice Goodwyn, writing for the court, notes that gross negligence is the absence of any care at all. Here, the peer leader had given the 13-year-old scout a swimming lesson earlier that morning, and swam out toward him when he heard the boy’s cries of alarm. Those efforts were unsuccessful, of course, but the majority finds that they amount to at least “scant care,” in the language of our caselaw.

Justice McCullough, joined by Justice Mims, dissents. He notes that gross negligence is usually a jury issue. As for the majority’s cited degree of care, the dissent points out that the peer leader actually brought the boy out onto the river and into danger. It concludes, “When the defendant has led the plaintiff into danger, an ineffectual and doomed to fail rescue attempt does not in my judgment take away from the jury the question of gross negligence.”

Update October 28: I’ve been thinking about this decision since writing about it yesterday afternoon, and the ruling continues to trouble me. The majority expressly bases its conclusion – no gross negligence as a matter of law – on two factors: the earlier swimming lesson and the futile effort to save the drowning boy.

But the swimming lesson apparently took place a couple of hours earlier. That kind of temporal separation would have led an earlier edition of this court to conclude that it was irrelevant, since it was remote in time from the negligent conduct and had no real nexus with the negligence. The other factor, the attempt to rescue, came after the negligent act had already happened. Last year, in Cain v. Lee, the justices held that the defendant’s post-accident conduct was irrelevant, as it had “no direct connection to the incident that precipitated the present case.” In fairness to the court, that case turned on a claim for statutory punitive damages in a DUI suit; but in my view, the concept is the same.

I believe that a reasonable jury could view the swimming lesson not as an insulating factor, but as evidence that the peer leader knew damn well that the boy couldn’t swim. As for the other factor, if a defendant engages in conduct that clearly constitutes gross negligence – let’s say he’s racing on a highway and causes a head-on collision – is that conduct no longer grossly negligent if the perpetrator calls 911 to summon help? By the time the peer leader started to swim back out, the grossly negligent act was complete: He had led a non-swimming boy 150 yards out into the current of one of the state’s largest rivers, and then abandoned him there. I don’t think he can erase his gross negligence just by turning around. Now, I can see that in many cases — maybe even this one — post-negligence conduct may be relevant. But that makes out a jury issue; not grounds for dismissal as a matter of law.

This should have been a matter for a jury to decide.


Today’s ruling in Suntrust Bank v. PS Business Parks has significant application beyond the field of debtor/creditor relations, so I recommend that you pull up a chair even if you aren’t a collections attorney.

This is the second time we’ve seen this case. It took a turn through Ninth and Franklin back in 2014, and I covered it then. It’s a garnishment dispute between a judgment creditor and a bank that held accounts belonging to an obligor (a guarantor of the original lease obligation). Because the precise banking holding is fairly arcane, I’ll take the liberty – for which I respectfully solicit Justice Mims’s indulgence, since he clearly spent plenty of time explaining the transactional details – and cut to the broader issue.

This is a case about the burden of proof – or one component of it:

“The phrase ‘burden of proof’ refers to two related but distinct concepts: (1) The ‘burden of production,’ which is the obligation to come forward with evidence to make a prima facie case . . ., and (2) the ‘burden of persuasion,’ which is the obligation to introduce evidence that actually persuades the fact finder to the requisite degree of belief that a particular proposition of fact is true.”

For that holding, the court cites Friend on Evidence. I will turn to a classical source to emphasize its importance: “This must be distinctly understood, or nothing wonderful can come of the story I am going to relate.” C. Dickens, A Christmas Carol, ch. 1, “Marley’s Ghost.”

When you try a case, and you represent the plaintiff, you generally have both versions of the burden of proof. Once you present evidence sufficient to make out a prima facie case, the burden to present evidence can often shift to the defendant to come forward with contrary evidence. If she does that, that burden can shift back to you.

One clear example of this is a Batson challenge. A litigant who wants to make such a challenge has the initial burden to show that he’s a member of a protected class, and the Bad Guys struck one or more members of that class. Once the movant makes that showing, the burden of production shifts to the aforementioned Bad Guys to show a nondiscriminatory reason for the strikes. If they do that, the original movant then has the obligation to show that that offered reason is pretextual.

But the second burden, the ultimate obligation to persuade the decisionmaker, never shifts. The plaintiff in most suits bears the “risk of non-persuasion,” and if she fails to persuade the decisionmaker, she ultimately loses.

In this case, the judgment creditor made a prima facie showing that there was plenty of money in the garnished bank account during the garnishment period. The trial court found that the bank, in return, had introduced evidence that that money was phantom, but it had failed to persuade the court – failed to meet the “burden of proof” – to establish that fact. The court ruled that the bank thus failed to meet what turns out to be a nonexistent burden. That means the court’s judgment in favor of the creditor and against the bank has to be reversed again.

From talking to a lot of trial judges over the decades, I’ve learned that they absolutely hate the R-word. Not reversed; most of them are thick-skinned enough to know that getting reversed from time to time is part of the job. No; what they absolutely hate is to have the case remanded. Once they close a file, they want it to be as dead as Old Marley – well, perhaps this is a bad example, considering what happens in the rest of Chapter 1.

This second reversal contains a second remand, and the trial judge is going to have to take one more crack at untying this financial knot.


I’ve noted recently that the Supreme Court has been an uncomfortable place for appellees with large – let’s say eight-digit – judgments. I was thinking in the tort context, but today we get review of a large contract award, in Shareholder Representative Services v. Airbus Americas, Inc. This appeal arises from a corporate merger; the primary issue is how damage claims are capped pursuant to the merger agreement.

Our tale begins with a company called Metron, which created a software program used in air-traffic control. Five years ago, Airbus, the American division of the giant European manufacturer of airliners, agreed to buy Metron for tens of millions of dollars. The merger contract contained three separate provisions limiting damage for any breach of the agreement. The first limit capped liability for breaches of most representations and warranties at $5.8 million, an amount that the seller escrowed. The second limit applied to “Fundamental” and “Special” representations; that cap was $15 million. The final cap applied to other warranties not relevant here.

The deal went bad for Airbus, and it sued SRS, the agent for Metron’s stockholders. It sought $17 million plus attorney’s fees and litigation costs. The case went to a bench trial, and a judge found that the seller had breached its obligations by submitting inaccurate figures during negotiations. That finding wasn’t contested on appeal; the real battle is which cap applied.

The trial court found that the inaccuracies resulted in $9.4 million in damages. It awarded Airbus the contents of the escrow account plus a money judgment for another $3.6 million. After considering Airbus’s fee petition, the court tacked on almost $4 million more. By my math, that comes to over $13 million, which takes us up into eight-digit territory.

There are two issues on appeal. One relates to preservation, always a meaningful topic for my readers.

SRS argued on appeal that damages were fully contained within the categories covered by the first cap, so judgment should be limited to $5.8 million. Airbus responded that SRS had only raised this issue after the trial court had rendered its decision (that is, announced it in a letter opinion). It argued that a motion to reconsider is too late, so the issue was waived.

My faithful readers know where this is going: it’s perfectly permissible to preserve an issue for appellate review in a motion to rehear, as long as the court acts on it. In this case, the judge stated on the record that she had considered SRS’s last-minute arguments and rejected them, so that’s good enough to get the issue to Richmond.

One side note: in a footnote, Justice Koontz refers to a novel argument by the appellant, SRS. It observed in its merits briefs that Airbus had not raised its preservation challenge at the writ stage, and argued that that waived the issue for discussion after the writ was granted. No dice; the court rules that an appellee doesn’t have to play all its cards in the opening hand. (I would have been astonished by a contrary ruling on this.)

On the merits, the justices reverse the trial court, finding that the sins of omission (or commission, for that matter) are all covered by the $5.8M cap. That means that Airbus loses its fee award, too, because the contract classified that as a form of damages for breach. The court directs final judgment for the amount of the escrow.

Sexually violent predators

Today’s decision in Commonwealth v. Proffitt will apply in case areas that have nothing to do with treatment of SVPs. This opinion is about the standard of appellate review when a trial court excludes evidence.

Experienced appellate practitioners are probably now looking at the computer screen with a puzzled look. It’s abuse of discretion, they muse. Why do we need a published opinion to establish that? True enough, that’s the standard. But this opinion walks us through the process when the Supreme Court finds that a judge abused his discretion by excluding evidence.

Take a moment to ponder that distinction. The justices frequently decide appeals where the issue is the admission of inadmissible evidence. In situations like that, where a statute or well-established caselaw makes the evidence inadmissible, the analysis can be quite straightforward. But when a judge refuses evidence, there’s an elaborate dance involved at the appellate level.

The evidence at issue in this appeal is testimony from two former victims of sexual assault, allegedly at the hands of Proffitt. For one victim, Proffitt was convicted of rape; for the other, a similar charge was nolle prosequied. The Commonwealth’s clinical psychologist had testified, and her expert testimony didn’t consider the second victim because of the nol pros, though she did consider the other offense. The trial court ruled that the victims’ statements would be irrelevant, unfairly prejudicial, and cumulative. Remember, Proffitt isn’t being tried here for the crimes; he’s facing involuntary confinement, and the doctor has already told the jury the relevant part of the story.

The jury found in favor of Proffitt, but the Commonwealth got a writ. The issue on appeal is whether the trial judge should have allowed the victims to testify, using that seemingly familiar abuse-of-discretion approach. Justice Mims, writing for a unanimous court, maps out the trail and then leads us down it.

The court first finds that the evidence was relevant and material under Rule 2:401. Relevance is, as you probably know, a low threshold: does it make it more or less likely that a fact in issue in the case is more or less probable?

Today’s discussion points out one thing that I had missed in my previous view of relevance and materiality. I’ve always known that the two are separate concepts. But Justice Mims points out that our rule-based expression of the relevance principle actually incorporates materiality, by including the phrase, “any fact in issue.” Thus, in Virginia, evidence cannot be relevant but immaterial, as I had always assumed. I’ll keep that in mind if I’m ever imprisoned against my will in the terrible environment of a trial court.

The statutory definition of a sexually violent predator includes the fact that a person “finds it difficult to control his predatory behavior, which makes him likely to engage in sexually violent acts.” The justices today find that a history of such violent acts is clearly material – that’s what the inquiry is all about – and it’s relevant because that evidence has some tendency, even if small, to make this fact more likely.

The next step is the “more prejudicial than probative” analysis. Here again, the Supreme Court disagrees with the trial judge. All of a party’s evidence is presumptively somewhat prejudicial to his opponent; the question is whether the probative value of that evidence outweighs “unfair or unduly prejudicial effects.” (Emphasis original)

Here, the justices find that the trial court abused its discretion in finding that the balance tipped in favor of prejudice. They rule that the evidence of the attacks could bolster the doctor’s conclusions and could lead the jury to conclude that Proffitt was unable to control himself, thus presenting a future danger. The court cites SCOTUS rulings that past acts are usually important indicators of “future violent tendencies,” so these stories were “highly probative” of a material issue.

My readers know well the formula (in Landrum v. Chippenham & Johnston-Willis Hospitals) for abuse of discretion. Today, the justices find that the judge incorrectly weighed the probative value of the direct evidence.

We’re not done; there are two steps left. The judge had found that the evidence would be cumulative, and the justices again disagree. This kind of evidence was different in kind from the doctor’s summary narrative. Indeed, she hadn’t considered one of the attacks at all, and the court has already found that that evidence would be probative. Finally, the court concludes that the exclusion isn’t harmless error, because “In a civil case, the erroneous exclusion of evidence is reversible error when the record fails to show plainly that the excluded evidence could not have affected the verdict.”

The court thus reverses and sends the case back for a new trial where the victims will get to testify. That won’t necessarily produce a win for the Commonwealth; it still has to make a clear-and-convincing showing sufficient to justify keeping a man penned up past the expiration of his prison sentence.

While the defendant in an SVP proceeding gets many of the rights afforded to criminal defendants, this is in truth a mental-health proceeding, and the law understandably makes it tough to lock someone up just because we believe he’ll commit a crime in the future. To the best of my knowledge, we don’t do that for other crimes – there’s no provision to civilly commit felons who were convicted of embezzlement or arson or even murder, once their terms are up. This provision is, as far as I know, unique.

For those of you who don’t handle anything remotely like SVP cases, the detailed analysis of the decision to exclude the evidence will still prove quite valuable. And for lawyers appealing the exclusion of evidence, this opinion is a handy guide of how the justices evaluate this kind of issue.