ANALYSIS OF SEPTEMBER 14, 2007 SUPREME COURT OPINIONS

[Posted September 14, 2007] The Supreme Court today hands down 22 published opinions and three unpublished orders. All but one of the cases were argued in the court’s June session. There are six cases in the field of criminal law, reflecting a noticeable and significant upward trend in criminal petitions granted by the court (in the session that ends today, the court heard an astonishing 20 criminal cases out of the 29 appeals on the docket).

Injunctions
One of the most intriguing cases of the day is Fancher v. Fagella, which presents a fact pattern that will sound familiar throughout much of suburbia. Fancher and Fagella own neighboring townhomes in Fairfax County, separated by a grass strip. Fancher has a tree on his side of the property line, a sweet gum about two feet in diameter, and about two feet away from Fagella’s lot. As the tree grew over time, its root system decided not to respect the boundary line. It pushed aside a retaining wall between the properties; dislocated several pavers in Fagella’s back yard, blocked Fagella’s drainage system; and started in on the foundation of Fagella’s home. The branches also deposited lots of those nasty gumballs atop Fagella’s roof, clogging his gutters.

Fagella, to his credit, tried to resolve the matter peacefully, by trimming the encroaching portions of the branches and repairing the retaining wall and foundation. But as the tree continued to grow, the damage continued to spread, and it soon came time to head off to court. Fagella sought a mandatory injunction requiring Fancher to remove the tree, plus a monetary award for the previous damage. At trial, the court turned to a 1939 Supreme Court of Virginia decision that held that in case of an arboreal invasion like this, the plaintiff’s only remedy was to sue for damages. The trial court accordingly held that no injunctive relief was available, and limited the case to monetary damages.

There is an interesting procedural matter here – the Supreme Court awarded Fagella an interlocutory appeal under Code § 8.01-670.1. Appellate practitioners will immediately recognize that those don’t come around very often, so this case is worth a look for the civil procedure-minded. Yes, both of you.

On appeal, the Supreme Court acknowledges that the trial court correctly applied its previous finding in the 1939 case. But remarkably, Fagella wins anyway, because the court decides it’s time to rethink the old rule in light of modern (suburban) society. We thus have a new rule of law for dealing with these incursions; adjacent landowners take note.

The court reviews the four basic approaches that appellate courts have taken to these questions. The Massachusetts Rule says that you can only use self-help; no court cases allowed. The Virginia Rule, as noted above, is that you can only sue for monetary damages, not equitable relief, and even then, you can only get damages if the growth is “noxious.” The Restatement Rule says you can get relief if the growth is “artificial” (no, not a plastic tree; they just mean that it applies where your neighbor has planted a tree), but not if it’s naturally growing there. And the Hawaii Rule provides that living plants are okay until and unless they start actually damaging adjoining property.

As of today, we side with the Hawaiians. The new Virginia doctrine enables Fagella to seek injunctive relief from the trial court, irrespective of whether the tree is noxious or not. (My two cents’ worth is that all sweet gum trees are noxious, even obnoxious, until they are converted to firewood; but the court doesn’t address this issue.) There are some limiting factors cited by the court in today’s ruling, and attorneys handling cases like this should pay close attention to that language.

Criminal law
When the police arrest you, they take your picture, fingerprint you, and nowadays, take a sample of your DNA, either by collecting a few drops of your blood or by swabbing the inside of your mouth. Most people understand that once they have your fingerprints, the police can use those prints in future investigations, to determine whether you have committed any other crimes. (The use of fingerprints goes back at least as far as 1894, with the publication of The Tragedy of Pudd’nhead Wilson by a particularly illustrious author, but that’s a digression I’ll skip for now.) Same goes for your photo – we’ve all seen depictions of crime victims going through “mug shots” of past arrestees to see if they can identify a bad guy. But what about that DNA sample? Can the police use your DNA, collected in the investigation of one crime, to figure out if you committed a wholly unrelated act?

Civil libertarians have no doubt been watching the development of Anderson v. Commonwealth, in which just this question is presented. Anderson was arrested in 2003 on charges of rape and sodomy. Pursuant to state law, the police got a DNA sample from him. When forensic scientists analyzed the sample, they came up with a hit – for an assault that had happened in 1991. This appeal stems from Anderson’s conviction of that earlier crime. The trial court permitted evidence of the DNA match to be presented to the jury over Anderson’s objections.

Today, the Supreme Court approves the process and affirms the conviction. Citing a number of cases from other jurisdictions, it finds that “the taking of a DNA sample . . . is permissible as a part of routine booking procedures.” Accordingly, it’s not an illegal search under the Fourth Amendment, even though the police may not have had a particularized suspicion of wrongdoing by the defendant.

The next ruling in the case relates to the US Supreme Court’s landmark 2004 ruling in Crawford v. Washington, in which the high court ruled that the Confrontation Clause forbade most hearsay exceptions for testimonial evidence in criminal cases. Anderson argued that the certificate of analysis was testimonial hearsay, and was therefore inadmissible under Crawford. The problem with this argument, at first blush, is that the author of the certificate, a forensic scientist named Ambrozy, was in court, testified, and was subject to cross-examination by Anderson’s lawyer. That would, you must acknowledge, tend to take care of the confrontation problem. The court also notes (and this is a very important lesson for criminal practitioners, on both sides of the aisle) that the only purpose for the certificate was to establish a statutory presumption of regularity on the chain of custody. Accordingly, this is just a predicate fact for admissibility of the evidence, not the substance of the evidence. That means that the evidence isn’t testimonial, so Crawford doesn’t bar its introduction.

Earlier this year, the court decided Farrakhan v. Commonwealth, 273 Va. 177 (2007), in which it held that possession of an ordinary knife by a felon was not within the coverage of the statute barring such persons from possessing weapons. Today, two logical descendants of that ruling arrive. The newborn twins are Harris v. Commonwealth and Pruitt v. Commonwealth.

Harris is the more direct descendant because the Farrakhan holding compels the result in the new case. Upon his arrest for being drunk in public, Harris was found to be in possession of a box cutter. Anyone familiar with the airplane hijackings in the September 2001 terrorist attacks knows that the perpetrators used box cutters to gain control of four airplanes, so this is a particularly sensitive subject, as the court acknowledges.

Harris argued that the box cutter was not a weapon, despite the fact that it contained two razor blades, one actively mounted and the other stored in reserve in the handle. Pointing to the Farrakhan ruling, he argued that the cutter was merely a tool of his trade (he laid carpet for a living, so that’s at least plausible), so he could not be convicted of carrying a weapon.

The most interesting feature of this case is that the statute, Code § 18.2-308, specifically lists a razor as one of the prohibited items. The trial court found that statutory provision dispositive, and convicted Harris. The Court of Appeals didn’t even let him in the metaphorical courthouse door, denying his petition for appeal in reliance on a 2000 published opinion in which that court had held that a box cutter is a weapon for the purposes of this very statute. Accordingly, in order to prevail in the Supreme Court, Harris had to persuade the court to overturn the Court of Appeals’ earlier ruling.

I’ll let you cheat and peek at the ending of the story now: He does it. The Supreme Court rules that the previous CAV ruling is erroneous, and finds that a box cutter is neither a razor nor a “weapon of like kind” to those enumerated in the statute. The analysis of whether it’s a razor is wonderful for we fans of history; the court cites two dictionaries from the 1880’s, when the term razor was added to the statute, and notes that both refer to shaving implements, not weapons. Given the strict construction the court must apply to penal statutes, it finds that possession a box cutter does not violate the statute.

The Commonwealth tried to rely on one aspect of the Farrakhan ruling in today’s other case, Pruitt, but the court finds the comparison inapposite. Here’s what happened:

Pruitt had a gun. No question about that aspect of it. He laid it on the seat of his ’95 T-Bird and drove through Danville on his way to North Carolina one day in 2004. Another car pulled out in front of him, and he couldn’t avoid the collision, which was violent enough to deploy his air bags. Pruitt had some minor injuries, but was convinced that his car wasn’t driveable. He accordingly picked the gun up off the floor, where it had fallen in the collision, and placed it in the center console beside the driver’s seat. He immediately got out of the car and waited for the police.

When the officer went into the car to inventory it before the tow truck could take it away, guess what he found? The officer then told Pruitt that he was being charged with carrying a concealed weapon. (Talk about rubbing salt in a fresh wound – the gendarme delivered this news to Pruitt while he was in an ambulance, being treated for his injuries.)

The news got worse for Pruitt when the officer learned that he had been previously convicted of carrying a concealed weapon. You’ll never guess where he had the previous weapon, so I’ll tell you: In the center console of a car, perhaps the very one he had wrecked that day. Pruitt admitted as much during the guilt phase of his trial. (In case any sharp-eyed criminal practitioners will protest that prior convictions should only come in during a separate penalty phase, I’ll add that this was charged as a second offense.)

The trial judge seemed genuinely sympathetic, but felt constrained to convict Pruitt on the evidence presented. He sentenced him to three years in prison, but in consideration of the circumstances, he suspended the entire sentence. But Pruitt’s lawyer believed he could get the conviction overturned. The Court of Appeals again refused to grant a writ, but once again, the Supreme Court took the case. Today, it reverses the conviction and dismisses the indictment.

The key issue in today’s holding is whether Pruitt carried the weapon “about his person,” as the penal statute requires. The Supreme Court reaches back nearly a century to Sutherland v. Commonwealth, 109 Va. 834 (1909), which I know as “the saddlebags case,” to find that the gun, once placed in the compartment and out of Pruitt’s reach, was no longer readily accessible to him. Admittedly, there was a fleeting moment when the gun was concealed inside the console before Pruitt could get out of the car, but the court finds that that’s not enough to convict. By getting out of the car immediately after storing the gun out of sight, Pruitt ensured that he did not carry the gun, concealed, “about his person,” so the conviction is overturned.

“Coram vobis.” Okay, I’ll pause a moment to give you a chance to remember what that means. No doubt many of you are reciting the title of a popular radio show right now.

Give up? It’s one of two Latin phrases (the other is coram nobis) that describe civil writs used to address errors in a trial court’s record. You can read the etymology of both terms, and find out what you can and can’t do with the writ, in today’s opinion in Neighbors v. Commonwealth, where a criminal defendant thought better of a plea he entered in general district court one day.

Neighbors entered an Alford plea to a charge of resisting arrest in 2004. The judge accepted it and fined him the princely sum of $50. Three months later, long past time to appeal, he evidently awoke from a long-term medication-induced stupor and wondered why the hell he had done that. Full of enthusiasm and convinced of his innocence, he filed a coram vobis petition, asking the same court to let him withdraw the appeal due to an alleged lack of capacity to plead on the original trial date.

The court refused the petition, reasoning that general district courts don’t have jurisdiction in coram vobis matters. The judge, evidently noting the purpose of coram vobis (to correct errors in the record) probably reasoned that courts “not of record” don’t have the capacity to correct “records.”

If you’re still with me, Neighbors promptly appealed that ruling to the circuit court, which emphatically is a court of record, and emphatically can handle coram vobis petitions. But the circuit court judge had an unpleasant surprise for him: It ruled that he couldn’t appeal this ruling, since it involved a civil matter that did not exceed $50, the jurisdictional minimum for appeals from GDC to circuit.

Now spending a major multiple of $50, Neighbors sought and obtained a writ from the Supreme Court. (By the way, the filing fee in the Supreme Court is now $50, so this is not a money maker for the appellant, win or lose.) The court agreed to consider two issues: Whether the circuit court had the authority to consider the appeal, and whether a coram vobis writ is a proper means of challenging a party’s capacity to enter a plea. The trial court had ruled against him on these two alternate grounds, so he had to win both in order to prevail.

Alas, Neighbors only bats .500 today. The Supreme Court agrees with him that the circuit court had the authority to consider the appeal, but rules that he cannot challenge his plea in this way. Accordingly, he’s still guilty of resisting. Of these two rulings, the latter is strictly based on the text of the coram vobis statute, but the former implicates the circuit court’s appellate jurisdiction generally, so I’ll spend a moment describing that.

As noted, a losing litigant in a civil case can appeal from GDC to circuit if the value of the matter exceeds $50. This petition is definitely civil, not criminal, so the jurisdictional minimum should apply. But the court turns to a 1997 case in which it held that the jurisdictional limit only applies to those cases that are about money. Needless to say, not all civil cases are about money; this is a perfect example. If it were otherwise, then no non-monetary GDC judgments could ever be appealed. This is an important jurisdictional reminder for those who practice in those two levels of courts.

FOIA
Can you remember the last time a public body won a FOIA appeal? Well, neither can I. FOIA cases, along with covenants not to compete, are two areas in which one side routinely gets beat up like a small kid on a tough playground. Today’s lone FOIA case, Fenter v. Norfolk Airport Authority, will not change that; here, as usual, the big kid walks away from the appellate playground with the Authority’s lunch money in his pocket.

Recently, for understandable reasons, signs have sprouted up at the Norfolk Airport, announcing that “All vehicles entering airport are subject to search.” Fenter, evidently a devoted civil libertarian, wanted to know on what authority airport police could search a vehicle without any articulable suspicion or a search warrant. He sent a FOIA request to the Airport Authority, asking for copies of statutes or regulations that permitted such a constitutional shortcut. This first request isn’t the subject of today’s decision, but the two follow-up requests are. In those, he asked for background documents on the decision to erect the signs, and for correspondence relating to the signs themselves.

Fenter got cursory responses to his requests. One came from an attorney who said the Authority was waiting for information from the federal Transportation Security Administration. The second simply referred Fenter to the Authority’s attorney. Beyond that, he got nothing until after he filed suit. And by then, it was too late.

Make no mistake about it – FOIA is tough on public entities. It requires them to respond pronto (within five business days) to any request for documents. The entity can only answer in one of four possible ways. It can agree to disclose the documents; it can claim, with specificity, an exemption from disclosure; it can agree to disclose some documents and specifically claim an exemption for others; or it can claim an additional seven days in the event of hard-to-find records. In this case, the Authority didn’t do any of those four things in response to Fenter’s second and third requests, and this failure is destined to bring about a legal avalanche.

The trial court was sympathetic to the Authority, which had disclosed several documents after suit was filed months later. It found that the Authority’s provision of those documents, late as they may have been, was sufficient to comply with FOIA. It accordingly denied Fenter’s request for a mandatory injunction and his request for an award of attorney’s fees and costs.

It takes the Supreme Court just 9 ½ pages to turn this whole thing into a train wreck for the Authority. Providing documents late isn’t enough to comply with FOIA, the court predictably finds, and reverses the principal holding of the trial court. But there’s more. Remember the attorney’s fees and costs request? The Authority argued in the appellate court that Fenter couldn’t recover those, because he had not substantially prevailed. Well, the Supreme Court answers, we’ve taken care of that little problem now. The case is thus remanded for the trial court to calculate how much Fenter‘s lawyer gets from the Authority’s operating budget.

As you know, I always like to add a summary lesson from these decisions, whenever I can. But the lesson here is too plain to require much discussion from me: If you’re going to try to resist a FOIA claim, you’d better have an ironclad reason to do so. Either that, or bring extra lunch money to the playground.

Civil procedure
Virtually every trial lawyer knows that one can appeal an unfavorable general district court ruling to the circuit court. They also know that the time limit for noting that appeal is very short. Frequently, clients come into a lawyer’s office after an unsuccessful effort to play amateur lawyer themselves, and ask the lawyer to step in and do something. Very often, that consultation occurs after the time for noting an appeal has expired. This is what we in the legal profession call trouble. Something like that trouble exploded in Architectural Stone, LLC v. Wolcott Center, LLC.

The principal of Architectural Stone, LLC evidently consulted with a lawyer after having suffered a default judgment five months earlier in GDC. The lawyer promptly filed a motion to set aside the default pursuant to Code § 8.01-428. The GDC judge was only too happy to deny that motion. So the enterprising attorney for the judgment debtor did the sensible thing – he noted an appeal of the denial of his motion, figuring that a circuit court judge might be more sympathetic to his plight. This might be a back-door means of getting the circuit court to hear the entire case, de novo. The judgment creditor quickly responded by asking the circuit court to dismiss the appeal for lack of jurisdiction. He argued that appeals can be taken only from final orders, and the final order now had plenty of dust on it. The debtor’s lawyer answered that by pointing to the statute authorizing appeals of “any order entered . . . in a court not of record . . .”

So who’s right? The creditor; that’s who. Citing an earlier case involving an analogous motion (a motion in the GDC for a new trial), the court sticks to its earlier ruling that “any order” means “any final order,” and thus only the final order can be appealed. The circuit court was thus correct in dismissing the appeal, and in cutting off one possible avenue of rescuing a less than diligent client from a GDC judgment.

The next civil procedure case is a whopper, and produces our first split in the court’s views. Collins v. Shepherd presents a complicated fact pattern (which I will struggle to distill here, rather than go on for page after web page) and a very close call on an important legal issue.

Collins sued Shepherd in Norfolk Circuit Court, alleging negligence in the operation of Shepherd’s car. He sued her, but he didn’t serve her, and eventually a year passed.

Now, we all learned the lesson of Berry v. F&S Financial Marketing, 271 Va. 329 (2006), where the Supreme Court held that the passage of a year under Rule 3:5 (e) doesn’t deprive a plaintiff of his right to nonsuit. Under that rule, Collins couldn’t get a judgment against Shepherd even if he later served her, but he had the right to nonsuit the case and start over.

But this case was in Norfolk. Tidewater practitioners know that that court has a local rule that is designed to encourage plaintiffs to move their cases forward. It provides that if service isn’t effectuated within a year of filing, the clerk sends a notice to plaintiff’s lawyer, telling him that the case will be dismissed on a date certain. This, together with an implicit nod and wink, is the plaintiff’s hint to get his nonsuit order in before that date certain dawns.

The Norfolk clerk sent out the notice, but the plaintiff did nothing. His lawyer didn’t appear at the hearing, and pursuant to the court’s practice, the case was dismissed with prejudice.

The reason the lawyer didn’t show up is because he never learned about the hearing; a disloyal employee in his office threw away the notice and the subsequent order (the blackguard!). Several months later, the lawyer found out about it and filed a motion to reopen, which the trial court did out of the goodness of its heart. Collins immediately nonsuited and refiled. When Shepherd’s lawyer learned about all this, he objected to the order reopening the case on Rule 1:1 grounds, and the current fracas was on.

The trial court eventually concluded that it should honor its original dismissal order. Eschewing its previous goodness-of-heart approach, it vacated the order reopening the case and the nonsuit order. Collins, accordingly, was out of court, at least in Norfolk. The Holy City of Richmond beckoned.

Today, a bare majority of the court finds that Collins should be let back into the trial court. Justice Koontz, writing for a majority that includes the chief justice plus Justices Keenan and Lemons, finds the local rule to be wholly inconsistent with Rule 3:5 and Code § 8.01-335, since it permits the trial court to dismiss cases, sua sponte and with prejudice, just over one year after filing. The existing state law structure gives the plaintiff his right to nonsuit, and the court can only discontinue, not dismiss with prejudice, a case after two years. A state statute prohibits the adoption of local rules that countervail either the Code of the Rules of the Supreme Court, so the docket control procedure adopted by Norfolk is found to be improper.

Believe it or not, that’s not the disputed part of this case. Justice Kinser, writing for Justices Agee and Lacy, agrees that this local rule is out, by TKO. The difference of opinion is over whether the court’s dismissal order is void, or merely voidable. This matters, a lot, because Collins’ motion to set it aside didn’t hit the clerk’s office for far more than 21 days after the dismissal. The majority finds that the order is void, since the trial court adopted a “mode of procedure the court could not lawfully adopt” (that’s one of the tests for a void order). The dissent argues that it was merely voidable (and therefore had to be challenged within 21 days), since the trial court had jurisdiction over the subject matter and the parties; it contends that at most, the trial court committed legal error that could have been addressed by a timely motion or appeal.

This is a really, really close call, even for us procedure geeks. Perhaps the most wide-ranging legacy of this case will be its clarification of the court’s view as to the boundary between void and voidable judgments. That alone makes this one of the day’s must-read opinions for courtroom practitioners.

Eminent domain
Today’s opinion in CTC v. Target Corp. doesn’t break any new ground in the substantive field of eminent domain law. It is, however, a primer in how not to preserve issues for appeal.

Target owns and operates a big box store in Fairfax County. Certain nearby citizens didn’t like the presence of the store so close to residential neighborhoods, so they persuaded the various Powers That Be to design an intervening highway with super-elevated barrier walls, to block off Target’s visibility from the new roadway (and, of course, the neighborhoods). At the condemnation trial, the Commonwealth Transportation Commissioner contended that the amount of just compensation to Target for the sliver of land it had to take was on the order of $170,000. Target responded that the take had, in fact, changed the highest and best use of the property, given the artificial and intentional loss of visibility. The jury saw it Target’s way, and awarded damages to the residue of over $3 million.

The CTC challenged several rulings made by the trial court. Some of the assignments of error promised important new refinements on eminent domain issues, particularly relating to valuation questions; the most intriguing of the questions was whether loss of visibility is compensible at all in Virginia.

But these questions will have to await another day, and another appeal. The court finds virtually all of the CTC’s arguments to be procedurally defaulted. Rather than recite all the arguments here and set forth how the court analyzes and resolves them, I’ll just summarize the preservation lessons:

  • If a trial court orders parts of a document redacted, and one of the litigants objects to the redaction, that litigant must furnish a clean (unredacted) version of the document for insertion in the record. Otherwise, the appellate court has no way of knowing what, exactly, has been redacted.
  • If you object to a trial court’s ruling and cite Reason A to the judge, you cannot then urge Reason B to an appellate court as a reason to reverse. (The CTC had argued in favor of a “reasonable visibility” instruction at trial, but turned to a per se, no-compensation-for-visibility rule on appeal.)
  • If a trial court cites a reason why it will not give an instruction, you must address that reason in your appellate brief; you cannot simply argue that the instruction is correct. (The trial judge had found one instruction confusing, but the CTC didn’t argue that it was, in fact, clear.)
  • In assigning error, you have to say more than that the judgment is contrary to the law and the evidence.

Contracts
In a short opinion in Boots, Inc. v. Singh, the court today helps to define the difference between a valid liquidated damages clause in a contract, and an impermissible forfeiture. Boots, Inc. owned a Denny’s restaurant in Hopewell, and contracted to sell it to Singh for $1.5 million. The contract provided for a $50,000 earnest money deposit, which would become nonrefundable if the contract were not cancelled within 40 days.

Singh got a short extension of the 40-day period, but even at the end of the extra time, he didn’t have financing in line to permit him to close. Several months later, when the deal had obviously fallen through, the company demanded that the closing agents pay over the deposit. Singh protested, saying among other things that the provision was a forfeiture. The closing agents, being attorneys, were smart enough to do the sensible thing: They interpleaded the money into the court, and got the hell out of the dispute. The company subsequently sold the restaurant to another buyer for $1.3 million.

Today, the Supreme Court reverses a trial court ruling that had found that the provision was a forfeiture. The court reviews the definitions from its previous holding of what constitutes a valid liquidated damage provision. In familiar prose, such an agreement can be made where actual damages are difficult to ascertain at the time of contracting, and the amount is not disproportionate to the actual loss. Here, Singh argued that the $200K difference in the contracts was more than compensated by the lack of a broker’s fee in the new deal; he showed that the company actually netted more money by selling the restaurant to the new buyer.

The trouble with this argument, the court notes, is that the parties had no way of knowing that at the time they signed the first contract. The amount of actual damages must be reasonably foreseeable at the time the parties reach their deal (and, of course, disproportionate to the deposit) in order to enable a party to get out of that agreement. Since the parties couldn’t have known about the second deal when they made the first deal, Singh failed to meet his burden to can-opener the provision apart. Boots, Inc. thus gets to keep the $50K, plus its sale proceeds from the new contract (minus, a cynic might point out, its legal fees).

Torts
Sudden emergency cases have made it clear that the Supreme Court believes that instructions on that doctrine are rarely appropriate. But in Vahdat v. Holland, such an instruction seems to have been the decisive issue in the trial. It emphatically is the decisive issue in the appeal.

The case arose out of an unusual auto accident. (While the opinion doesn’t describe the damage in detail, I infer that the plaintiff sustained only property damage, not personal injury. But the lessons of this case apply to personal injury cases.) While driving southbound, Vahdat noticed that Holland was tailgating her. She then observed his car swerve to the left, cross two lanes of incoming traffic, and then strike a utility pole. The pole then toppled over, and the heavy cables struck Vahdat’s car.

Holland, a diabetic, explained his actions by asserting that he had blacked out. He said that he had never blacked out before, and had no warning that this would happen. The issue at trial became whether he had experienced a sudden emergency, so as to relieve him from this negligence claim. Both sides submitted jury instructions on the doctrine (Vahdat, having unsuccessfully argued against the issue in the first place, submitted her instruction essentially under protest), and the two drafts had one key difference. Vahdat’s instruction set forth a burden of proof (simple preponderance) by which Holland was required to prove the existence of the sudden emergency. Holland’s draft was silent as to a burden of proof. The trial court gave Holland’s version; the jury found in his favor, awarding Vahdat nothing.

Today, the Supreme Court reviews several recent and not-so-recent sudden emergency cases, and reiterates that it is not an affirmative defense. In essence, the plaintiff has the burden of showing (as in any tort case) the existence of a duty, breach of that duty, and resulting damage. Proving that the defendant was negligent is part of the plaintiff’s case in chief. At that point, the burden shifts to the defendant to explain his actions. If his evidence demonstrates the existence of an emergency, then the plaintiff must show that her injuries were in fact caused by the defendant’s negligence.

The court finds that Holland’s instruction accurately sets forth the law relating to sudden emergency instructions. There is no need to include a burden of proof, the court holds, because Holland doesn’t have such a burden. If he wants to rely upon it, then of course he must adduce some evidence to place the matter in issue; otherwise he doesn’t get an instruction at all. But where the evidence could support such a defense, it’s not up to the defendant to meet any particular burden.

My sense is that this case will enable a few more such instructions, but it leaves open the question of just how much evidence must come in before the instruction gets granted. Is it a scintilla rule? I doubt it; the court seldom approves rules like that.

One last point. While reiterating that these instructions are “rarely appropriate,” the court observes in a footnote that the issue of whether the trial court erred by giving the instruction at all was not before it in this appeal. That is, the only issue in the appeal was whether the instructions should or should not have included the burden-of-proof language. That leads the discerning appellate reader to wonder whether the outcome of this case would have been different if Vahdat had assigned error to the giving of the instruction in the first pace, instead of merely its phrasing.

The court provides some key guidance on a couple of recurring procedural issues in what looks like the largest case of the day, John Crane, Inc. v. Jones. It’s a wrongful death case filed on behalf of the estate of a former shipworker who developed a terminal case of asbestosis. The court first determines, using much of the same analysis as in the recent case of Garlock Sealing Tech. v. Little, 270 Va. 381 (2005), that maritime law applies to the claim. The court finds that the plaintiff satisfied the two-part test for the applicability of such law (which is more favorable to wrongful death plaintiffs than general Virginia law), given the relationship between the decedent’s shipbuilding and repair activities and maritime activity.

The procedural issues arise in the contexts of discovery and damages. In a ruling that is the first of its kind from the Supreme Court, the court analyzes the degree of specificity that must be used in disclosing the testimony of expert witnesses. One ruling relates to a defense expert (apparently a pathologist) who offered (fully disclosed) opinions about the diagnosis of the decedent’s disease and about asbestosis and its potential causes. But the pretrial disclosure didn’t include anything about ambient levels of asbestos in the decedent’s work environment. When the expert offered such an opinion at trial, the plaintiff objected. The defense pointed out that the plaintiff was not prejudiced by any omission in the disclosure, because all of the proposed testimony had been flushed out during the plaintiff’s deposition of that expert.

A similar issue arose at trial with regard to another defense expert, whose report was supposed to be attached to the disclosures, but somehow was not. Again, the defense argued that the plaintiff knew fully well what the witness was going to say, because the same lawyers had cross-examined him in other litigation over the years, in which he offered apparently identical testimony.

The Supreme Court’s treatment of both of these defense arguments can be summarized as follows: “No dice.” The rules require disclosure. They don’t exempt written disclosure just because the opposing party has conducted a thorough deposition, and they don’t give anyone a free pass because the opposing lawyer and the expert can snarl at each other on a first-name basis. The court thus takes a strict view of what must be included in expert disclosures (now required pursuant to the Uniform Pretrial Scheduling Order), and approves the trial court’s remedy of exclusion of the evidence.

Despite the fact that this decision is technically one of first impression, in my view this ruling is about as predictable as tomorrow morning’s sunrise. No, the Supreme Court is not a pack of dragons on the lookout for ways to make lawyers look bad. They are, in truth, very kind, pleasant people, as I have written elsewhere in another essay. But they can be fervent in the enforcement of their own rules, for reasons I don’t have to explain here, and the lawyer who thinks he can take a cavalier attitude toward rules compliance is not safe in this court.

The court also reaffirms its aversion to excessiveness challenges based on a comparison of other verdicts. It methodically and emphatically rejects the defendant’s contention that the verdict — $10 million, of which Crane was responsible for 34% — was excessive, in view of the evidence adduced in the trial. This ruling emphasizes the court’s great deference to juries’ determinations of damages; where the amount is a matter of judgment instead of mere calculation, the court will generally refrain from touching a damage award.

The final tort case of the day is King v. Cooley, a medical malpractice case that also implicates pretrial disclosures. The patient, Cooley, got a $3.5 million verdict against Dr. Cooley and his practice for a post-surgical brain injury; the verdict was reduced to the med mal cap of $1.65 million. The doctor (and his practice, of course) appealed and got a writ.

The two issues here are exclusion of evidence because of failure to make a pretrial disclosure, and limitation of the doctor’s cross-examination of one of Cooley’s experts. The first issue has an interesting twist. The doctor sought to introduce testimony from another doctor of his diagnosis of the cause of Cooley’s surgical distress. He gave that opinion outside the hearing of the jury, and but for the nondisclosure, it probably would have been admissible. But the defendant doctor argued that Code §8.01-399(B) specifically permits a treating physician to give such testimony, and the witness was the doctor who assisted the defendant in the surgery. In a sense, the defendant was arguing that this doctor was giving factual testimony, not expert, so the expert disclosure requirements didn’t apply.

The justices weren’t having any of that; a diagnosis is an opinion, and that’s the subject of expert testimony. The court distinguishes two recent cases in which it had reached a contrary result, since in those instances, the challenged testimony was merely a factual observation of what was happening at the time.

All of that being said, the court dodges the issue by finding that the exclusion of the testimony was at most harmless error. You see, three other experts had already testified to the same thing, making the rejected testimony cumulative. I will confess to wondering, upon getting to this point in the opinion, why the court spent time analyzing the opinion-versus-fact issue, and carefully distinguishing those two cases, only to rule that it doesn’t matter anyway. But the doctor loses the issue under either analysis.

The second issue seemed to be more promising for the doctor. The plaintiff offered testimony from an expert who saw “no document[ary] evidence” to support the defendants’ theory of the case. The defense attorney no doubt smiled as he rose for cross-examination, holding in his hand just such a document, eager to pounce upon the witness. But the trial court sustained a hearsay objection to this proposed exhibit, much to the consternation of the defense lawyer.

At first blush, this appears to be a winner for the doctor; the lawyer was planning to use the document to impeach the witness, not to prove the truth of the matters asserted. But here, the defense lawyer forgot to proffer the damaging testimony he would have elicited from the opposing witness. Employing long-established precedent, the court holds that it cannot decide matters like this in a vacuum; it has to have the challenged testimony in the record, in some form, in order to evaluate the issue. Finding that assignment of error to be procedurally foreclosed, the court affirms the judgment.

How could the lawyer have ensured that the record was sufficient for appellate purposes? Two ways come immediately to mind. One is to examine the witness outside the presence of the jury, and on the record, using actual questions and answers. The other, less valuable but still perfectly satisfactory in most instances, is for the lawyer to summarize (again, while the jury is absent) what the testimony would have been. In this case, the first approach would have been better, and it might even have persuaded the trial judge to change his mind on the hearsay ruling. But this lawyer has lots of company in the preservation-of-error club; a failure to preserve is among the commonest complaints you’ll hear from appellate jurists over the state of the records presented to them.

Land use
For the major media, the sexiest case of the day is probably Miller v. Highland County, involving citizen protests of a plan to erect a windmill farm in the county that calls itself Virginia’s Switzerland. The nickname is fully justified, in my opinion; the county is a gorgeous mountainous area. Perhaps that’s part of the problem.

A couple of companies came up with a plan to erect several windmills on a crestline or two near the West Virginia line. They filed the necessary applications for conditional use permits, and immediately encountered some very vocal citizen opposition.

You might wonder why anyone would object to windmills. They provide cheap energy, as long as Aeolus is still around. They aren’t dirty, like coal; nor potentially radioactive, like nuclear. They aren’t particularly dangerous, unless perhaps you’re a migratory bird. No, the problem, it seems, is aesthetics. What these windmills are, is big – 400 feet high, much larger than their Dutch ancestors, and way over the maximum height limit in the county. That’s what necessitated the application.

The county, no doubt recognizing the economic boon this new light industry wold bring to the county’s property tax coffers, approved the application, subject to what appears to be a retroactive review by the county planning commission. The companies went through that process, too, and passed. That left the citizens asking their lawyers what they could do to stop the project. The lawyers decided to file two suits challenging the approvals. Those two cases are consolidated for today’s opinion, although the legal issues are addressed separately.

In the first case, the court’s decision is almost an anticlimax. This set of plaintiffs sued only the county, and today’s opinion is limited to the finding that the plaintiffs sued the wrong defendant. The entity they should have sued, the court finds, is the board of supervisors. Turning to provisions in the state code and its own prior rulings, the court determines that there is a difference in this context between a suit against the locality (that’s Highland County) and its governing body (the board). And here, the board was a necessary party.

The plaintiffs try to salvage their suit by asking for leave to substitute the board in under Code §8.01-6 (the misnomer statute), but that won’t work because these plaintiffs sued the wrong party, not the right party by the wrong name.

The second set of plaintiffs falls victim to a different procedural flaw. They sued the board, all right, but they sought a declaratory judgment that the approval of the permits was arbitrary and capricious. The dispositive issue here is, in essence, their standing to bring such a suit.

Readers of this site may recall the court’s April opinion in Philip Morris USA v. The Chesapeake Bay Foundation, 643 S.E.2d 219 (2007). In that case, the court approved the right of nearby residents to challenge a permit given by a state agency to the cigarette manufacturer. The permit allowed the dumping of a certain level of pollutants into the James River. In that case, the court held that a third party could challenge the government’s grant or denial of a permit to a nearby landowner.

If you applied the same reasoning to this case, then the plaintiffs would at least pass the standing test. But they don’t, because the Philip Morris case was based on special standing provisions, liberally granting affected persons the right to protest. In contrast, there is no such right with regard to land use decisions – the only parties who can appeal the grant or denial of a CUP like this are the applicant and the governing body of the locality. Neighbors need not apply.

Under that set of rules, the plaintiffs have effectively tried to use the DJ Act to give them a right they didn’t have before, to appeal someone else’s permit. And this, the Supreme Court rules, ye may not do.

Ironically, the trial court had ruled against the plaintiffs, on the merits of the case. The Supreme Court affirms the ruling in favor of the board of supervisors and the other defendants, using the “right for the wrong reason” rule. Appellate litigants need to remember that just because the trial court may have made a mistake, doesn’t end the inquiry. This case provides a clear example of the wisdom of that advice.

Amendments to local zoning ordinances require an elaborate dance, as prescribed by statute. First, the local governing body, or its planning commission (or an affected landowner) must initiate the process by resolution, in which the public purpose for the change is set forth. The body then considers the proposed change over two meetings, after which it can vote. This process comes into question today in Ace Temporaries v. Alexandria City Council.

As indicated by its name, Ace is a temp (or “day labor”) agency. It occupied space in a commercial zone that the city fathers and mothers (no sexism on this web site) wanted to devote to other, preferred uses. The city’s planning commission accordingly proposed a text amendment to the zoning ordinance, requiring day labor agencies in commercial areas to get a special use permit. Reading between the lines, it appears clear to me that the political climate was such that SUP’s would be distributed with about the same frequency as single malt scotch and osetra caviar in a maximum security prison.

As required, the initiating motion set forth the public purpose for the amendment. The planning commission then voted to recommend the amendment, complete with an 18-month abatement period for existing uses that would now be nonconforming. Basically, they proposed to give Ace and other temp agencies 18 months to get out of Dodge.

The City Council received the proposal, and loved the idea, but thought the planning commission was being way too generous with the temp agencies; it decided to implement a 12-month abatement period instead.

Now, if you’re Ace, you’re wondering at this point what you have done to deserve this bum’s rush. Maybe an indiscreet comment at a cocktail party . . . In any event, the local government is clearly out to shut you down.

But here, the council ran up against a higher law – Murphy’s – and when the amendment was prepared for the first of two readings, some unfortunate municipal scrivener, whose head I earnestly hope is not rolling right now, kept the original 18-month abatement period. Nobody on the council noticed, and when the body eventually passed the change, the 18-month period survived.

At some point within the next couple of months, someone in City Hall noticed the error. A new amendment was promptly drawn up to change the “18” to “12,” and after the required two readings, the council voted in favor of the change, and the council finally had what it wanted. The Planning Director waited a respectable amount of time – three days – after the enactment of the new ordinance to send Ace its get-out-of-Dodge letter. Ace tried the conventional route, filing a BZA appeal and asking for an extension of time. Both requests were rejected. That left going to court as Ace’s only option.

The trial court ruled in favor of the municipality, permanently enjoining Ace from continuing its operations. Ace got a writ, and today the Supreme Court resolves two issues that decide the case. First, it rejects Ace’s contention that the initial resolution by the planning commission, way back at the beginning of the process, was invalid because the commission didn’t have a written version of the proposed amendment at the time. That one seems almost perfunctory; the statutes don’t require a written proposal at that point in the game.

But the other assignment of error produces an interesting result. Ace had argued that the 18-to-12 month change was invalid because there was no initial statement of the public purpose for it. “Of course there was,” the city replied; “we did that way back at the beginning. This latest change was just to correct a typo.” The trial court had agreed with that response, but the Supreme Court doesn’t. It finds the adoption of the second change to be statutorily infirm because the city skipped a step. Ace thus gets a reprieve, in the form of a reversal. Of course, its victory will be short-lived, since the city now knows perfectly well how to amend this provision, and do it right. A betting man might be tempted to lay a dollar or two on the possibility that a revision to the ordinance, correctly implemented this time, will be in place before the next snowfall in downtown Alexandria. After that, Ace’s stay in its current location will have to be, . . . well, temporary.

Have you ever felt that someone just had it in for you? That that person would do anything he could to frustrate your plans, squash your dreams, even make your dog desert you? Well, if you really want to make this nightmare worse, envision your local government as such an enemy. That’s the way life must have looked for the appellee in Umstattd v. Centex Homes, involving a subdivision application by a developer who thought he was playing by all the rules and being thwarted by an antagonistic local official.

Centex bought a 300-acre tract in Loudoun County that was zoned for one-acre residential lots. At first it tried for a rezoning to permit denser development than that, but eventually it read the writing on the wall, and gave up on that. It revised its plans to conform to the existing zoning, and submitted a plan for development of 191 lots, paying the required fee of over $21,000. The Town of Leesburg’s Planning Department rejected it. Centex revised it and submitted it again. The town turned thumbs down again. Centex tried a third time, and went down again. Deciding that the fix was in, Centex filed a mandamus suit in circuit court, asking the court to require the town to process the application for consideration by the planning commission. Centex also sought a declaratory judgment, contending that the town’s failure to process the plan was unlawful.

Centex figured that the real reason why the plan was being deep-sixed was that the town wanted it to dedicate part of the land to accommodate a parkway that ran up to, but did not enter, the large parcel. It reasoned that it had not caused the need for the parkway, so the town couldn’t demand it as an exaction, something government emphatically cannot do. Dolan v. City of Tigard, 512 US 374 (1994).

The trial court agreed, and entered a writ of mandamus, requiring the town to process the application. Given the issuance of that writ, the court felt that declaratory judgment was unnecessary, so it didn’t pass on that count of the complaint.

The appeal produces an interesting result. The town persuades the Supreme Court that mandamus is an inappropriate remedy for this case, because mandamus cannot be issued to compel the performance of a discretionary act. Centex had argued that the processing of the plans was ministerial, since standards for approval were set forth in the town’s ordinance. The court disagrees, noting the several judgment calls the planning official must make in evaluating the plans. It reverses the judgment and vacates the writ.

But the opinion doesn’t stop there; the court then finds that declaratory judgment is, after all, an appropriate way to address this case. DJ actions are suitable for situations where parties seek declarations of rights without having to go through the steps necessary for someone to sustain an actual injury. This is such a case, the court finds, so it remands for consideration of the case under that theory. One might assume that if the same judge gets the case on remand, he might well reach the same conclusion as to the propriety of the town’s actions, in which case Centex may again find itself in the driver’s seat.

In the past, I have considered how a plaintiff can avoid the problem of suing a local official for acts that fall near the boundary between discretionary and ministerial acts. It isn’t just in the realm of mandamus that this distinction is important; for example, tort suits against many local officials and employees may turn on this very distinction. See Colby v. Boyden, 241 Va. 125, and Heider v. Clemons, 241 Va. 143, both decided on the same day in 1991, for a clear example of the difference. I came to the conclusion that the best approach is to find out how detailed the official’s “instructions” (usually found in places like training manuals, internal policy statements, or even the municipal code itself) are. The more constrained he is to act in a specific way, the more likely you are to be able to establish that his task is ministerial, and therefore actionable. I think that today’s opinion involves duties that are very, very close to the boundary between discretionary and ministerial, so this discussion will help future litigants to assess how their fact pattern measures up.

Contracts
Every lawyer who litigates attorneys’ fee issues in contract cases will want to review West Square, LLC v. Communications Technologies, Inc., in which the appellate issues center entirely on fees and costs, not the merits of the underlying contract dispute. This is a breach of lease case in which the landlord got a judgment against the tenant for $35K for breach of the lease. The landlord had also sued for some associated construction claims, but nonsuited those during the trial.

After the case was tried, the landlord filed a petition for fees and costs, since the parties had agreed that that claim could be bifurcated. (Warning: In case you don’t recall Lee v.Mulford, 269 Va. 562 (2005), you must obtain an agreement in advance and on the record to reserve this issue for separate adjudication, or else it must go into your case in chief.) The landlord sought fees and expenses of over $71,000 for litigating the claim, citing a contract provision that obligated the loser to pay the winner’s legal fees in any litigation over breach of the lease.

The trial court saw that the post-trial claim was twice the amount of the substantive recovery, and that didn’t sit well. Noting that the contract called for “reasonable” attorneys’ fees, the court found the petition to be unreasonable. It concluded that the case could have been tried for $10,000 in fees, so that’s what it awarded. (I will keep to myself my opinion that a judge who thinks that commercial litigation can be completed for $10,000 has probably been on the bench for quite a while.) The court declined to award plaintiff any costs at all; not even the filing fee.

On appeal, the Supreme Court evaluates the fee award under an abuse of discretion standard. There is no issue in today’s decision about whether fees should have been awarded or not; the only question is the amount. Noting that the winning party isn’t entitled to an award of fees for prosecuting unsuccessful claims, the court evaluates the case by determining whether the landlord has satisfactorily filtered out the construction claims (which were abandoned) from the breach of lease claims (on which the landlord was the prevailing party).

The court finds that the landlord didn’t do such a hot job. Unquestionably, the landlord prevailed at trial, but the Supreme Court finds that the trial judge acted within his discretion in holding that the “winning” tasks were not sufficiently set apart from the losers (or at least the no-decisions, since the construction claims were nonsuited). There are a couple of important refinements in this field that practitioners should be aware of.

First, while the court’s prior holdings enumerate a nonexclusive list of seven factors that trial courts should consider in evaluating fees petitions, the trial court isn’t required to consider all of the items on the list. This trial court had mentioned at least a couple of those, and the court finds that this is enough. This contrasts with federal jurisprudence, in which district courts are required to consider no fewer than twelve factors in arriving at a figure for reasonable attorney’s fees, under the celebrated doctrine of Johnson v.Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974).

Second, the landlord wins a Pyrrhic victory on costs. The appellate court finds that, as the prevailing party, the landlord should have been entitled to some minimal level of costs. The landlord had claimed some $5,000 in those, and while the Supreme Court reverses, it awards only $418. The remaining costs claim is for depositions, and those fall victim to the same problem as the majority of the fee claim – no segregation of work on non-winning issues. This ruling helps to clarify just what costs the court regards as taxable (here, the filing fee, service costs for subpoenas, and the court reporter’s appearance fee at trial). Implicit in the court’s ruling is that the excluded costs, for the depositions, could have been recovered under the contract if they had been properly segregated. I should emphasize that there is almost certainly a difference between costs recoverable under this contract provision and ordinarily taxable costs; I doubt the depositions could be recovered under the latter theory.

The court then rains on the landlord’s very modest victory parade by noting that the tenant is the prevailing party on appeal; technically, the landlord came out $418 better that it was before appeal, but it lost the principal issue on appeal. The court thus remands the case to the trial court for an assessment of appellate attorney’s fees in favor of the tenant. In my view, the odds are roughly 10 out of 10 that those fees and costs will dwarf the $418 the landlord receives today. So the landlord will have to pay its own attorney for most of the trial fees and all of the appellate fees, and now it will have to pay the tenant’s appellate fees. Maybe we should reexamine just who is the “prevailing party” here . . .

One last thing. As virtually every lawyer knows, the American Rule provides that each side in litigation pays its own lawyer. The only exceptions are if the parties contract for a “loser pays” arrangement, as was the case here, or if a fee-shifting statute applies to make the losing party responsible for the winner’s fees. (I think there may be a third exception in fraud cases, but that’s very rarely applied in practice.) Today’s ruling makes it clear that the winner must cull out work on his winning claims in contract cases. In my view, the same requirement does not apply in statutory fee-shifting cases. Those are generally based on public policy considerations, and even if the plaintiff loses some issues, she can and should still get fees for work on her other claims, if they are related to the claims she won. The Supreme Court of the United States held as much in the landmark case of Hensley v. Eckerhart, 461 US 424 (1983).

Insurance
If you read between the lines, you’ll probably conclude that the justices themselves figured that Heron v. Transportation Casualty Ins. Co. was the easiest decision of the session. In just seven pages, the court evaluates the language of a required endorsement in a motor carrier insurance policy, and concludes that the policy covers what it says it covers.

Really. That’s about as complicated as this declaratory judgment case gets. The dispute in the trial court was whether an endorsement required (by federal law) for interstate carriers provided coverage while the vehicle was on a wholly intrastate voyage. The trial judge looked to the federal act and regulations that mandated the endorsement, and found that no coverage applies during intrastate travel. But the Supreme Court finds that it need not look beyond the plain language of the endorsement. The trucking company owned a vehicle subject to the federal act? Check. Claim by injured parties and potential judgment, arising out of the operation of the vehicle? Check. The endorsement doesn’t mention any specific territorial limitation, so the court finds that it provides protection even on a purely local trip, and reverses.