[Posted September 18, 2009] The Supreme Court hands down 15 published opinions today, including two in death penalty cases. The court affirms the death sentence of William Morva, who famously murdered a deputy sheriff and a security guard in Blacksburg after escaping from police custody. It affirms the conviction of Alfredo Prieto, but remands for a new sentencing hearing. The court issues a writ of actual innocence to Thomas Edward Haynesworth, who had been convicted of rape but was later proved innocent by DNA evidence. In addition, the court has granted rehearing in Kellermann v. McDonough, which had been decided during the summer recess. I’ll post analysis of today’s rulings throughout the course of the day.

Medical malpractice
There are two med mal decisions today. The first, Howell v. Sobhan, has some very important lessons in civil and appellate procedure.

Howell developed lower-intestine problems that turned out to derive from polyps. When a conventional colonoscopy proved inadequate to remove two polyps, she was scheduled for surgery. During that surgery, Dr. Sobhan removed almost all of her lower intestine, leaving her with essentially zero chance of normal bowel functions for the rest of her life.

The procedure was not without complications or controversy. Starting with the controversy, the polyps proved to be benign, leading subsequent doctors to question the necessity of removing the whole large intestine. And when the anastomosis (the attachment of one end of the small intestine directly to the colon) ruptured (producing a leak called a fistula), quick surgical intervention became necessary.

Howell sued for medical malpractice, and introduced testimony from two doctors. Both doctors agreed on cross-examination that fistulas are known complications of colon surgery.

The doctor moved to strike. He lost the motion at the conclusion of Howell’s evidence, but won when he renewed the motion at the end of all of the evidence. That means that on appeal, the Supreme Court reviews the evidence in a light most favorable to the patient, to determine whether there is any possible jury issue.

There was. Both doctors had testified that they believed that the removal of the entire colon was unnecessary, and would significantly impair Howell’s lifestyle. And one of them had testified that this kind of approach to the surgery had increased “slightly” the risk of developing fistulas. That makes it a jury issue, so the case is remanded for a retrial.

From an appellate perspective, this illustrates a very important principle. Taking a case away from a jury is a risky proposition for a trial judge. This court is strongly committed to jury determinations of fact issues, and a judge who refuses to send a case into the jury room is begging for appellate scrutiny. Essentially the court will crawl all over the record with a microscope to find a material factual dispute. (Permit me some poetic license here, but the principle is undoubtedly true.)

Second, this case was tried on an amended complaint. The trial court had sustained a demurrer to the first complaint, including a claim of lack of informed consent. Howell didn’t restate that claim in her amended complaint, and that fails to preserve the consent issue for appellate review, no matter what Code §8.10-273(B) seems to say. But Howell now has the opportunity to replead if she chooses, and to reassert her consent claim before retrial.

If you’re one of those lawyers who mentally keeps score of which side of the litigation aisle wins and loses, I see no way to interpret this as anything short of a major win for plaintiffs. The recognition of a “slight” increase of risk as presenting a jury issue will dishearten many a defense lawyer, and the court’s suggestion of a second amended complaint as a way to revive the consent claim will have those same lawyers reaching for the ibuprofen bottle.

The court issues an opinion with a comprehensive discussion of certain aspects of expert testimony today, in Graham v. Cook. Dr. Cook performed surgery on Graham’s broken hip, inserting several screws into (I presume) the pelvis. The patient continued to have problems with the hip, and he saw four other doctors. One of those doctors felt that one of the screws might be projecting beyond the bone and rubbing up against the head of the femur. That doctor operated to remove the screw, and a third doctor later repaired damage to the femoral head.

The patient sued Dr. Cook for medical negligence in the first surgery, since that, he felt, necessitated the later operations. A jury returned a verdict in favor of the doctor, and the Supreme Court gave the patient a writ.

This is a case involving a number of evidentiary issues. In order to review each one of them in detail, I’d have to use a lot more space here than I traditionally devote to case summaries, so I’ll just give you the kernels (along with the hyperlink to the slip opinion, above, so you can check out the details for yourself).

First, the court again turns to the difference between opinion testimony and factual impressions by doctors. The latter are admissible under Code §8.01-399(B); the former have to be stated to a reasonable degree of medical probability. The court finds that most of the statements constituted factual impressions, so the defendant-doctor was permitted to offer the witness’s deposition testimony into evidence.

There’s one exception – a clear diagnosis – but the patient’s objection comes too late, the court rules. The rule on the use of depositions requires that objections to the form of the question must be raised during the deposition, or else they’re waived. (Objections on other grounds, such as hearsay, can be cleaned up after the deposition and before trial.) The court finds that while the doctor didn’t specifically state his opinion to a reasonable degree of medical probability, any objection to that omission goes to the form of the question. That’s an important caveat for practitioners who take depositions in lieu of live testimony.

The court also rules on the admissibility of habit – sort of. The problem here is one of waiver of an objection. As often happens in trials, the lawyer made an objection, the proponent resisted, the judge offered what seemed to be a reasonable middle ground . . . and who can resist his honor’s gentle suggestion? The objector understandably said, “I don’t have a problem with that.” And that statement, the court finds today, was an affirmative waiver of the original objection. The lesson here is that accepting compromise offers suggested by the bench might earn you Brownie points, it won’t preserve issues for appeal.

The court declines to address one assignment of error, involving a challenge to the trial court’s decision to sustain a defense objection to certain testimony. The ruling may or may not have been correct, but the patient’s lawyer didn’t make a proffer of what the answer would be. Supreme Court jurisprudence is very well-established that if the rejected answer isn’t in the record somewhere, the appellate court won’t speculate on what it would have been. Easy lesson: Make a proffer.

Finally, the court approves the trial court’s decision to sustain a defense objection to the patient’s effort, in closing argument, to have the jury compare two X-rays. What can be wrong with that, you might wonder? If the films are in evidence, the parties ought to be allowed to argue them. The trouble here is that making that comparison would have required scientific testimony, and would have required the jury to speculate as to a causative factor. Trial judges can prevent litigants from making arguments like that – the right to argue is not boundless – so the court affirms the judgment for the doctor.

This case has enough in the way of evidentiary issues, preservation problems, and expert-witness discussion that it will merit careful study by any lawyers who rely on experts, even in fields far from the med mal arena.

Civil procedure
Eleven hundred dollars. Is that enough of a controversy to warrant Supreme Court intervention and a published opinion? The answer, we learn today, is “Absolutely.” The case is City of Suffolk v. Lummis Gin Co., and the opinion packs a number of very important lessons into just 8 ½ pages.

This is a delinquent real estate tax case. The city originally filed suit to collect such taxes in 1995, against a group of the current owners of the property. It nonsuited that case back then as to Lummis Gin, either because it had reached an agreement with the taxpayer or because Lummis Gin had done the sensible thing and paid its part of the taxes. But a delinquency on the same parcel popped up a decade later, and the city filed another suit, again naming Lummis Gin, and this time including other co-owners.

During the pendency of this second suit, the city again sought to nonsuit the case. Some of the other defendants sought an award of attorney’s fees, claiming that this was a second nonsuit. (The statute allows the plaintiff one nonsuit of right; if she wants a second one, she might be liable for some of her opponent’s fees and costs.) The trial court decided to grant the nonsuit, but stated that the fee petition would remain on the docket for later adjudication.

Six months after entering the nonsuit order, the court convened a hearing to consider the issue of fees. The City argued that the nonsuit order was final, so the court could not award fees and costs more than 21 days later. The court sided with the taxpayers, determining that it retained jurisdiction over the fee petition (presumably citing Williamsburg Peking Corp. v. Kong, the first case that came to my mind when I read what the court had done), and finding that this was, indeed, a second nonsuit. It awarded the owners $1,113 in fees and costs for the second nonsuit.

The Supreme Court’s analysis this morning begins with the finding that this wasn’t the same cause of action. That’s because the “taxes sought to be satisfied in the 1995 proceeding could not have been the same delinquent taxes sought to be satisfied in the proceeding commenced in 2006.” A nonsuit for unpaid taxes that had accrued during the Clinton Administration doesn’t bar a suit for later taxes, incurred during the Bush Administration, on the same property. Since this isn’t the same cause of action, this isn’t a second nonsuit, so the court erred by awarding fees.

That would be enough to end this opinion, but the court goes on to offer us a free bonus that will warm the hearts of appellate lawyers – a discussion of, and a decision on, the finality issue. Finality is, in my opinion, so misunderstood by bench and bar alike that I am always happy to see a pronouncement by the court on this topic. Upon reading this ruling, though, I am (at least for now) a bit troubled by what I’m reading.

The court finds that the nonsuit order was, indeed, final, and if the court was going to award fees and costs, it had exactly 21 days within which to act. This is so despite the court’s specific retention of the case on the docket to consider that as-yet-unadjudicated request for fees and costs. I have seen many instances in which trial courts tried in vain to convert an interlocutory order into a final one; here is the opposite scenario, in which a court is trying to hang on to a case, only to see it slip away.

Unlike Williamsburg Peking, the court today finds that the court’s specifically-stated intention to reserve an issue for later adjudication is ineffective to stop the relentless march of Rule 1:1. In the earlier case, the court ruled that a trial court had the authority to reserve for later decision a motion for sanctions that was filed before the plaintiff nonsuited to save his in-court skin. That doctrine would seem to lead to the opposite result from what we see today, since a motion for sanctions is the analytical cousin of a motion for an award of attorney’s fees.

The court cites Williamsburg Peking in the first part of the opinion (dealing with the question of an award on a first nonsuit). But it is conspicuously absent from the second part of the opinion, where in my view it really belongs. The court cites well-established precedent that holds that a nonsuit is a final order, so 21 days later, poof! No more jurisdiction. But if that were the hard-and-fast rule, how did Williamsburg Peking get decided the way it did? In that case, the trial court had ruled that it no longer had jurisdiction to award sanctions after a nonsuit order, and the Supreme Court reversed, saying in essence, “Yes, you do.”

The only distinction I can conceive between the two cases is the following language from Williamsburg Peking: “A motion for sanctions is an application made to a court for the imposition of a penalty for alleged misconduct of a party or lawyer for alleged abuse of the system. The motion has no bearing on the facts giving rise to a right to seek judicial remedy. Thus, the entry of a nonsuit order does not conclude a case as to any pending motion for sanctions.” The court then goes on to find that the public policy considerations behind the sanctions statute warrant continued jurisdiction in the trial court after a nonsuit. You’ll find this discussion at 270 Va. at 354-55.

This explanation still leaves me unsatisfied; I don’t see the means for a clear distinction between these two very opposite rulings. I may write more on this case in a subsequent essay, as this is clearly an important decision for those of us in the appellate field. [Note: I published further analysis on this decision, and reconciled the apparent incongruity, in a subsequent post on October 5, 2009. You can access that discussion here.]

One last quick lesson: Don’t ever assume that your case is too small for the Supreme Court to take notice. As this case proves, an important legal issue will get appellate attention even if the dollars are small.

Criminal law
As noted above, there are two death penalty opinions today. The first is Prieto v. Commonwealth, involving two capital murder convictions. Prieto was tagged in a sort of cold-case investigation; the murders occurred in 1988, before the widespread availability of DNA testing. Seventeen years later, a forensic investigator tested his DNA sample against evidence found at the crime scene and got a hit.

The first thing to note about this opinion is the number of assignments that are waived or procedurally defaulted. Prieto had assigned 82 errors, but by the time the court gets through sifting out the ones that aren’t argued in the brief, or are otherwise defaulted, there are only 18 left.

I recognize that lawyers defending capital cases have enormous obligations, and I will not criticize them for handling the case in the way they deem advisable. But merely listing an assignment of error without arguing it (or, as happened to a few of them, merely restating the assignments in the brief without giving any supporting analysis) will always result in a defaulted issue.

That still leaves 18 potentially-viable assignments of error, a large number in just about any other context, but hardly surprising in a capital appeal. Here’s a summary of the court’s key holdings:

It rejects Prieto’s challenge to the conviction based on the government’s loss of two hairs that were recovered from one of the victims. The loss of evidence is a due process violation if it’s exculpatory; but if the evidence is only potentially useful, then the defendant gets relief only if the police acted in bad faith. There was no assertion of bad faith here, so the court’s finding that the hairs were only potentially useful ends that avenue for Prieto.

It affirms the trial court’s decision to declare a mistrial the first time this case came to court. In that proceeding, the court trifurcated the proceedings – one phase for guilt, a second to consider Prieto’s mental retardation defense, and a third for punishment. After the jury unanimously found Prieto guilty, trouble arose in the jury room during the second phase when a juror reported, in a note to the judge, that he was outnumbered, 11 to 1, and the rest of the group was using peer pressure against him. (Imagine that.) The court issued an Allen charge (the use of which the court specifically approves today), telling the jury to go back and resume deliberations after lunch. Instead of doing that, the juror wrote a second note, this time saying that he wasn’t convinced that Prieto was guilty at all (a tad late for that pang of conscience), and asking to be excused because his mind was irrevocably made up. The Supreme Court agrees that declaring a mistrial for “manifest necessity” was the right thing for the trial court to do.

Fast-forward to the second trial: Now the really interesting part – the part with the reversal. The trial court gave the usual instructions at the sentencing phase, telling the jury to consider vileness and future dangerousness in deciding whether to sentence Prieto to death or life in prison; it handed the jury a verdict form that said the same thing. But that verdict form, even though it comes right out of the Code, contains a flaw. It tells the jury that if it finds either or both of those aggravating factors, it shall recommend death. That isn’t consistent with Virginia law; no jury can be compelled to recommend death, even if it finds vileness or future dangerousness. The jury always has the option to sentence the defendant to life without parole. Since this set of instructions didn’t do that, the case gets remanded.

There’s another problem with the verdict form. It advised the jury that it had to find one of the aggravating factors unanimously, but it left open the possibility that, for example, exactly six jurors could have found vileness beyond a reasonable doubt, and the other six found future dangerousness by the same standard. In that event, one of the essential elements of an enhanced punishment would not have been found beyond a reasonable doubt by a unanimous jury.

On remand, the only issue is sentencing, so there may yet be another round in this case. Remember that review of death sentences is automatic (even if the defendant doesn’t want to appeal), so if the next sentencing jury also recommends death, we will see this case again.

There are two key quotes in Rawls v. Commonwealth that give you a pretty good idea of what’s to follow. The first one is the very first sentence of the opinion:

“In this appeal, we consider whether a criminal defendant who was convicted of a felony and sentenced to a punishment in excess of a statutorily prescribed maximum range of punishment is entitled to a new sentencing hearing for that conviction.”

Whoops. Sentences in excess of statutory maximums are not going to hold up, period. Rawls was sentenced in 1996 for, among other things, second-degree murder. At the time of his trial, the penalty for that crime was 5-40 years in prison, and that’s the way the jury was instructed; they gave him 25 years. But at the time of the offenses (which is what matters), the penalty was 5-20 years. Hence the problem.

Here’s the second foreboding quote:

“Our determinations, whether a defendant who has been sentenced in excess of the statutorily prescribed range of punishment is entitled to a new sentencing hearing, have not been uniform.”

That lets you know that the court recognizes that it has come down in the past on both sides of the same issue, and it means to set things straight from this point on. And that’s what the court does today.

Rawls insisted that he be given a new sentencing hearing. The Commonwealth thought that a bit much; it urged the trial court to simply drop the excess of the sentence, reducing it to the ceiling of 20 years. That’s what the trial court did, but it doesn’t hold up today. The Supreme Court reverses, laying down the firm rule that “a sentence imposed in violation of a prescribed statutory range of punishment is void ab initio because ‘the character of the judgment was not such as the [C]ourt had the power to render.’ . . . Thus, a criminal defendant in that situation is entitled to a new sentencing hearing.”

The chief justice, who authors today’s opinion, notes that the jury, having been given the option of shipping Rawls out to the Big House for 40 years, sentenced him to 5/8 that amount. He then poses the rhetorical question (and offers the emphatic answer): “Can we infer with any confidence that had the jury been properly instructed that the maximum punishment it could impose upon Rawls for the second degree murder conviction was 20 years imprisonment the jury would have fixed his punishment at 13 years imprisonment, which is approximately five-eighths of 20 years? Absolutely not.” That sounds awfully convincing in my mind. Criminal practitioners won’t have to try to reconcile the conflicting decisions in the reports from now on; now you have a hard-and-fast rule for what to do in these very rare situations.

The time-honored analytical tool called the process of elimination gets a judicial workout today in Whitehead v. Commonwealth, involving a conviction for possession of heroin. After a routine traffic stop, a drug-detection dog alerted on the driver’s door of the car. The police officers directed the driver and his three passengers to get out, at which point they searched the car and found nothing. They then turned their attention to the occupants; first the driver and then two of the passengers turned up clean. Would you like to venture a guess now as to whether the last passenger had any controlled substances on his person?

Good guess; an officer discovered two syringes and a bottle cap containing heroin residue in the pocket of the last passenger, which immediately converted him into the first arrestee. At trial, the dog’s handler acknowledged that the dog may occasionally alert on a car that has no drugs inside it, based on “an old odor” of drugs. Despite this, the trial court denied a motion to suppress, at which point the passenger entered a conditional guilty plea. A unanimous panel of the Court of Appeals affirmed the conviction.

Today, an equally-unanimous Supreme Court reverses. Analyzing a series of decisions involving similar circumstances, the court concludes that something more than a general belief that drugs are in the car is needed to justify a search of a particular person inside. That’s enough to search the car, of course; but each occupant retains his Fourth-Amendment freedom from being searched in the absence of probable cause to believe that he has committed a crime.

But what about the venerable process of elimination? Once the car and the first three occupants turned up clean, didn’t that point strongly toward the last passenger? Not necessarily, the court rules today; it also highlights the possibility that the dog alerted on an “old odor,” just as his handler said can happen. The lesson here is that mere presence with others usually isn’t enough to establish probable cause to arrest (which is a prerequisite for a search of the person like this one). Even a minor additional evidentiary component might have been enough to save this conviction, but since there isn’t one in this record, the court reverses and dismisses the indictment.

The remaining two criminal law decisions produce split decisions. I have written previously about Commonwealth v. Anderson, involving the too-clever plan to feign an armed robbery of a store by involving an accomplice who worked there. After the Court of Appeals reversed Anderson’s robbery conviction, the Commonwealth got a writ from the Supreme Court to review that part of the case. Since I described the facts in my analysis last year when the CAV issued its opinion, I’ll jump right to the holdings today.

A majority of the court votes to affirm the judgment of the Court of Appeals. As with the CAV panel’s unanimous ruling, the majority finds that the robber didn’t use force or intimidation against the person identified by the Commonwealth as the real victim – a store supervisor who watched the faked robbery. Justice Lemons, joined by Justice Kinser, dissents. The dissent criticizes the majority for failing to afford proper deference to the trial court’s factual determinations, specifically the part where the court found that the supervisor felt fear when he saw what he believed to be a handgun. The supervisor never used the word fear in his testimony, an omission that the majority regards as crucial and the dissent finds almost superfluous in light of the normal reaction to the display of a handgun. But as the minority notes, the trial court hear the witnesses and viewed the security videotape of this event, and could well have concluded that the supervisor really was afraid, even though he didn’t use the precise word.

Anderson can only celebrate a modest victory; he gets out from under the seven-year sentence for the robbery conviction, but he still has a five-year term for conspiracy and another three years for a weapons charge. He’ll enjoy the hospitality of the Attorney General for a good while yet.

From the perspective of an appellate lawyer, there is one professionally troubling aspect of today’s opinion. The majority chastises the Commonwealth for taking liberties with the record. That’s a major sin in the appellate catalogue, and when I first encountered the phrase, “the Commonwealth misstates the record,” it unquestionably caught my eye. The first instance identified in the opinion was, in my view, a close call; I thought that it was arguably fair game for disagreement over how to interpret the evidence. But the addition of two other instances is trouble of a different magnitude.

I might well have come to a different conclusion if I had been called upon to decide whether these three instances truly were misrepresentations of the record; there are probably two arguable sides to each of them, and the dissent doesn’t address them at all. But I don’t get a vote, and what really matters here is that the ultimate consumer of our briefs and arguments – the court itself – has come to that conclusion. Five members of the court (including Senior Justice Carrico, who participated in this case because Justice Millette was on the CAV panel last year) are on the record as viewing the Commonwealth to be guilty of this major sin. No litigant and no lawyer can afford that kind of credibility damage.

Finally, the court takes up the combined appeal and death-sentence review in the case of Morva v. Commonwealth. Morva notoriously escaped from jail and stole a deputy’s handgun; he then shot an unarmed and compliant security guard in the face at a range of two feet, and hours later executed another sheriff’s deputy by shooting him in the back of the head. He was found shortly thereafter, still in possession of the stolen double-murder weapon.

For many people, the question of whether such cold-blooded actions warrant the death penalty answers itself. But Virginia law requires a finding by a jury that the crime was sufficiently vile, or that the defendant is likely to be so dangerous in the future, that life in prison is not a suitable sentence.

Morva raises a number of challenges that are essentially foreclosed by well-established precedent. The only really debatable issue today is the trial court’s refusal to approve the appointment of an expert witness to assist the defense. The prospective witness’s expertise is in the field of prison risk assessment – specifically, whether within the context of life in maximum-security prison, Morva would probably “commit criminal acts of violence that would constitute a continuing serious threat to society.”

At the outset, it matters how you define society. Doubtless, if sentenced to life without parole, Morva would present essentially zero risk of future dangerousness to those living in tony suburban neighborhoods or in quiet rural areas; the escape from a maximum-security facility of a prisoner who has been convicted of murdering a law-enforcement officer is so unlikely as to be unimaginable. But what about those members of the law-abiding part of society who find themselves within prison walls on a daily basis?

I have visited prison inmates roughly ten times in my legal career. Without exception, the corrections officers in those facilities have treated me with complete professionalism and courtesy; it’s nothing like the stereotypical image you have of the arrogant, redneck “prison guard” (I don’t use that phrase anymore) from the movies. My point is that these law-abiding people have lives, too, and it’s that part of “society” that would have to accept the risk of future violence. That’s why an assessment of future dangerousness goes beyond the simple answer, “He’ll never get out of prison.”

That brings us to the question of what this proposed expert would bring to the case. The defense proffered that he would analyze Morva’s hypothetical future as a life-without-parole inmate – that was clearly one of the choices available to the jury, as the Prieto decision today makes clear – to assess the probability that he would commit future acts of violence while inside the razor wire. The trial court refused to permit the testimony, finding that the premise of the expert’s testimony wasn’t particularized to Morva; it related to all inmates, and under recent Supreme Court precedent (including last year’s decision in Porter v. Commonwealth), it could not be introduced. A majority of the justices agree with this conclusion today, so the judgment, including the sentence of death, is affirmed.

Justice Koontz dissents, and he’s joined by Justice Keenan. He begins his dissent by writing that “the majority effectively adopts a per se rule that expert prison risk assessments are inadmissible” on the issue of future dangerousness. He finds that this effectively denies the defendant due process, because it leaves him essentially defenseless on this key component of death-sentence analysis. The majority describes the doctrine in this way today: “The relevant evidence surrounding a determination of future dangerousness consists of the defendant’s history and the circumstances of the defendant’s offense.”

In other words, the only way to assess this future risk factor is to look backwards; no forecasts of the future allowed. The dissent finds this approach to be too restrictive, and would remand the case for a new sentencing hearing, this time allowing the expert to testify.

I am certainly no expert in capital cases, but in one sense I see things the dissent’s way: I think this really is a per se rule, because as the law stands right now, I simply cannot conceive of any way in which evidence about the defendant’s likely future dangerousness, viewed prospectively, can ever be admitted. Capable capital defenders might find a way to squeeze such evidence through the needle’s eye that might theoretically be still open (see the quote from the majority opinion, two paragraphs up, to see how small that is), but I simply can’t see one.

Education law
There’s a provision in the Code that grants some relief to persons who have been convicted of violent sexual offenses, but have paid their debt to society. Ordinarily, such persons are permanently barred from going onto the property of any school. The statute provides a process whereby such persons can petition the courts to lift that ban, subject to a few conditions, thereby enabling those persons to do things like attend Junior’s school play.

Article VIII, §7 of the Constitution of Virginia provides that local school boards have supervisory control over public schools.

So in the end, who gets to decide whether such a person gets to go to the play or not? That’s the issue in Commonwealth v. Doe. Several uneventful years after Doe finished his sentence and his probation, he asked the local circuit court for permission to go onto City of Charlottesville school property to attend his stepson’s school-related events. The judge reviewed the case and decided that he could do so, as long as the principal gave permission (“. . . which permission shall not be unreasonably withheld . . .”).

The Commonwealth, on behalf of the school board and the division superintendent, hollered, and the Supreme Court answered that call by granting a writ. Today the court reverses the judgment, not because Doe doesn’t deserve the right to go onto school property but because (according to the Constitution) the school board, not the court, is the entity that gets to make that decision. It comes down to some fine statutory analysis, but really, now; when’s the last time you saw a statute trump a constitutional provision?

The court delivers one zinger at the end of this short opinion, to which zinger there really is no answer. The statute applies to public and private schools, and even to day care facilities. Can a circuit court judge tell a private day care provider that it must permit a given person (sexual offender or not) onto its property? Of course not; day care providers and private schools retain the traditional sovereignty over their private property that any other property owner has. The court uses this little analytical dead-end to illustrate that Doe’s interpretation of the statute leads to “absurd results,” which is generally the end of the line for a legal argument.

Over the years, the Supreme Court has issued a number of opinions that describe the boundary between contract claims and tort claims. Today we get another one, in Dunn Construction v. Cloney.

In 2005, a man hired a company to build a house on a lot the man owned. The contractor completed the work, but not exactly in what you’d call good, workmanlike fashion. When the time for final payment arrived, the owner wanted to put the retainage in escrow pending an engineering inspection that had been directed by a county building inspector. No dice, the contractor replied; I want my money now, like it says in the contract. The impasse resolved itself when the owner cut a check and the contractor issued a ten-year warranty, and stated the manner in which certain repairs to the foundation had been made.

Except they hadn’t been made; at least not in the manner described by the contractor. When the engineer looked at the foundation, he almost fainted; he told the owner that the house was “a candidate for catastrophic failure.”

Some dream house, eh? The owner sued under theories of negligence, breach of contract, and fraud, although he acknowledged that he couldn’t recover the same compensatory damages (which were common to all of the counts) twice. The dispute today comes from the fact that the owner added a claim for punitive damages, and the jury awarded them. The contractor appealed.

The Supreme Court reverses that part of the judgment that represents punitive damages. It harks back to a line of cases in which litigants, eager to multiply their damage claims, have alleged a tort (including fraud) arising out of a contractual arrangement. The court explains that the boundary I alluded to above is defined by the source of the duty. If the defendant has a duty arising by general law (such as the duty to stay on the correct side of the double-yellow line when driving down the road), then the claim sounds in tort. But if the duty arises only because the parties have contracted with one another, then it’s a contract claim, and you can’t get punitive damages in contract claims. Hence the court reverses and directs final judgment for only the compensatory damages, which weren’t involved in this appeal.

Over the years, I have traveled to many corners of this Commonwealth, and in doing so I generally prefer, when I have time, to take secondary roads and byways instead of using the mind-numbing Interstate system. I get to see a lot of pleasant scenery that way, and I get to explore a number of small towns that I would otherwise never know about. Still, despite having lived here almost all my life (and certainly all the time since I got a driver’s license), I don’t think I have ever been to Clover, Virginia, a small hamlet (pop. 198, according to my atlas) in northeast Halifax County, a short jog off US 360.

I might have to make a point of going there some day soon, to see the site of all the fuss in VEPCO v. Norfolk Southern, a titanic battle between two of the state’s largest corporate citizens. At issue is a contract for the transportation by the railroad of coal to a generating facility in Clover. The case turns on whether a given rate clause in the contract was ambiguous, and today’s decision includes discussion of issues such as judicial estoppel and damage calculation.

What, that doesn’t sound interesting to you? Maybe you’re only intrigued by sensationalized litigation, or by emerging caselaw in your particular field, which doesn’t happen to include suing utility companies over rates for hauling coal by rail. You want sexy? Okay, I’ll give you sexy: Eighty-six million dollars. That’s the amount of the trial court’s judgment.

On the assumption that I now have everyone’s attention, I will begin by telling you that I’m going to truncate this analysis and get right to the hotly-disputed part of the ruling. (This is the only 4-3 split in this session’s opinions.) The majority opinion is 40 pages long, and I can’t devote the space to that level of detail here, or else you would turn away, despite the amount in issue.

The trial court agreed with the railroad’s interpretation of a 20-year-old contract, and found that VEPCO had been under-paying its freight charges for pretty much the whole time. The primary ruling in the case is that the trial court correctly ruled that the contract unambiguously said what the railroad said it did; hence the trial court properly sustained the railroad’s demurrer to the utility’s complaint. It also correctly refused leave to amend, since the amendment would simply renew previously-addressed rulings. All seven justices agree on these holdings.

The dispute arises over the trial court’s refusal to permit the utility to assert certain defenses, specifically estoppel and waiver. You see, the two entities had used a lower rate for 14 years, before the railroad fell awake and realized that it was entitled to charge more than it had been getting. The utility alleged in its suit that the original contract unambiguously required the lower rate; it lost that argument. The trial court refused to allow the utility to later assert in those defenses that the contract had been amended to require the lower rate, since that assertion would be at odds with its original pleading. It also refused to permit the utility to raise the defenses of estoppel and waiver.

In making these rulings, the court relied upon the doctrine of judicial estoppel. Today, in my view, the Supreme Court turns back its previous rulings on that doctrine, and expands the reach of this procedural bar to pleading.

I first wrote about judicial estoppel in the early days of this site, when I analyzed Bentley Funding Group v. SK&R Group, 269 Va. 315 (2005). I summarized the ruling in that case in these terms: “[W]here a party takes a position in an earlier proceeding and loses on that argument, common sense (and, thankfully, Virginia law) do not weld him to that unsuccessful strategy in the next case. The party is free to accept the earlier court’s ruling and file his later suit in acknowledgement of the incorrectness of his earlier position.”

Well, that may be the rule in subsequent litigation. But judicial estoppel applies within the same litigation, too (that’s usually where you see that Scottish “approbate and reprobate” language). As of today, I think the law is different for judicial estoppel, as it’s applied in the course of a single suit, than it is for subsequent litigation. The majority takes pains to justify this result, going to the extent of (in my view) repudiating one of its previous holdings, summarized in my 2005 quote above. Today, the court rules that if the court relied upon the previous assertion in making its ruling, then the party is estopped from taking a contrary position, even if he wound up losing that first ruling. The court doesn’t further define relied upon, so it’s quite possible that a party could make an argument in good faith, lose that point, and then be prevented from accepting that ruling and arguing onward.

Whether you think this principle is right or wrong, it’s now the law. It’s the opposite result from the one I would have expected, based on my reading of Bentley Funding, and the dissent (Justice Koontz, joined by the chief justice and Justice Millette) finds it far too restrictive. I tend to agree with the dissent in this one; I still think that if a party asserts a position and loses, it ought to be free to accept the court’s ruling and contend that it can still win under a different theory. That being said I recognize the fundamental contradiction – not just an incongruity – of these two arguments, so upon further reflection, I may modify my views.

So what about the 86 mil? The utility wins a major battle by getting a ruling that the trial court used the wrong date to start calculating periodic rate increases. That sole issue will be remanded for determination by the trial court. If the utility prevails on remand, then its obligation will be the far-more-palatable $3.8 million, a scant five cents on the dollar from the original award. So this one isn’t over yet, but given the other rulings in the case, all of which went against the utility, it looks like VEPCO dodged a bullet by winning this one.

Wills and trusts
Virginia enforces no-contest provisions in wills strictly – ruthlessly, you might conclude upon reading some of the caselaw. But what about trusts? The court takes up this first-impression issue today in Keener v. Keener.

When you do what I do, you usually let out a sad sigh when you read the same name on both sides of the “v.” in case names. That usually means either a divorce or an intra-family squabble over an estate, and neither of those things are much fun. This one’s a fight over Dad’s will; the combatants are his seven siblings. Dad executed an inter vivos trust and a pour-over will back in 2003. (For those of you who don’t practice in this field, those are perfectly legitimate tax-avoidance vehicles. The trust holds the legal title to most of Dad’s property during his lifetime, and his will directs that upon his death, all of his other assets get deposited directly into the trust, and then distributed according to the trust’s provisions, avoiding the probate process.)

In 2007, several of the siblings met with their father, who was apparently ailing. A heated argument ensued over the will and trust documents; I infer that several bridges got burned, because the opinion recites that when Dad died five months later, one of the heirs was on speaking terms with only one of her six siblings.

I could offer some editorial comment on how tragically sad this must have been for Dad, who presumably watched his family thus deteriorate before his eyes at the close of his life. But I won’t presume to live another person’s life, so we’ll stick with the legal issues. After the argument, Dad executed a no-contest addendum to the trust, providing that if any heir tried to fight the trust provisions, he or she would be cut off, limited to a token bequest of $1.

When Dad died, the sibling who was named as the successor trustee realized that he really didn’t need to offer the will for probate (these will/trust packages really are extraordinarily efficient). One of the other siblings asked about the will, and was told, “There really is no will.” That didn’t make sense to her, because she had a photocopy of what looked for all the world like Dad’s signature on a will. She went to the circuit court and tried to offer that copy into probate, but was predictably told that in matters like this, photocopies won’t do; you need the original.

She accordingly did the sensible thing. Having been told that there was no will, she sought to qualify as the administratrix of Dad’s intestate estate. Good enough for me, the Clerk responded, and qualified her.

That sent her brother (the trustee of the trust) off; he stopped payment on her trust distribution check, and before long, the parties were headed into court. The trustee offered the original will for probate and asked the court to declare that Sis had violated the no-contest provisions of the trust. Sis replied that if the original will were indeed offered, she would agree to step aside as administratrix. She appended to her answer a counterclaim, asking for the removal of the trustee for malfeasance.

The trial court heard all of this evidence, presumably with more than a modicum of unease over the family warfare, and ruled in favor of the trustee. Since everyone agreed to admit the original will to probate, the court did that; it also ruled that Sis’s actions in qualifying as personal rep amounted to a contest of the trust, so he barred her from getting more than the aforementioned dollar.

Today, the Supreme Court reverses on a single issue, but not before laying down a new doctrine. The court applies to trusts, for the first time, the strict-enforcement provisions applicable to wills. That’s because the settlor of a trust is entitled to dispose of his property in any way he chooses, and is presumed to select with care the provisions of his trust and the language used to implement his intentions.

This looks like bad news for Sis, but in the end, she gets an important victory when the court rules that her qualification as administratrix did not amount to a contest of the trust. It might very well have been at least an implied contest of the will; but Dad didn’t execute a no-contest addendum for that document. Accordingly, Sis didn’t trigger the forfeiture provision in the trust, so she gets her full share.

One other note about this case: The trustee probably left the winning argument on the table in this case. There is an ominous footnote on page 7 of the slip opinion that observes that Sis’s counterclaim, by which she asked that the trustee be removed, might well have triggered the no-contest addendum. But inexplicably, the trustee didn’t raise this argument at trial, so that issue is stillborn on appeal. The opinion doesn’t come right out and say that the result would have been different in this case if the trustee had raised this point, but that’s the way I read between the lines.

Real property
Dirt lawyers rejoice! You get not one but three published opinions today. Considering the relative paucity of recent Supreme Court opinions in this field, that qualifies as a bountiful harvest.

The first case we’ll take up is Burdette v. Brush Mountain Estates, LLC, in which the owners of two neighboring parcels fight over whether one of them owns an easement as a result of a plat notation. This appeal addresses two issues; the first is whether the Statute of Conveyances requires that an easement must be created by deed or will.

That matters a lot here, because the owner who claimed to own the easement did so by virtue of a notation on a plat. That notation seemed to be fairly clear; it provided that a 50’ ingress/egress/utility easement “is hereby conveyed.” But given what the Statute of Conveyances says, does that language have to be in a deed?

No, it doesn’t. That’s because an easement is not an estate in land; it’s merely a right granted to one person to use land belonging to another person. Today, the Supreme Court notes that it joins a large number of other state appellate courts in reaching this conclusion.

While that’s a significant ruling in its own right, it doesn’t end this appeal. The court still has to decide whether that plat notation was sufficient to convey the easement, including the question of whether language in a deed of bargain and sale, stating that the conveyance is “subject to” things like recorded easements, will validate the “conveyance” in the plat. The resolution of that question isn’t quite so easy.

Unquestionably, the plat was signed by the predecessor in title to the current owner of the ostensible servient tenement. But “subject to” language has usually been held by this court not to be words of conveyance but a phrase of “qualification and notice.” And referring to a plat in a deed is just fine for the purpose of defining the parcel conveyed, but (as the court rules today) it isn’t enough to operate as a conveyance. For that, you really do need a deed, and since there wasn’t one that created this easement, the claimant loses.

There is one seeming incongruity between the two main rulings of this case. In the first part of the opinion, the court rules that the Statute of Conveyances doesn’t require a deed for the conveyance of an easement. In the second part, the court effectively rules that without a deed, you can’t create an easement. Well, do you need a deed, or don’t you? The answer is that you do need one; it’s just that that requirement doesn’t come from the statute.

Another family dispute arises in de Benveniste v. Aaron Christensen Family LP, although this one is nowhere near as metaphorically-bloody as the one in today’s Keener decision. The subject of this suit is a family-owned farm. Four siblings acquired title to the property from their parents, though in a circuitous way; their father first conveyed his 51% ownership interest to a family trust, the ultimate owners of which were the siblings; the mother’s 49% interest passed on her death directly to the children.

The dispute in this case arose when one of the siblings balked at a plan to eventually develop the farm into a subdivision, instead of just dividing it into four parcels, one for each sibling. The holdout sister didn’t want to accept the risk and the expense involved in pursuing approval of the subdivision plans. But incongruously, she expressed delight when it was discovered that there were 71 separate drain fields on the farm – enough to convert it into a very profitable subdivision.

But still she held out. No doubt frustrated, the partnership (which technically still owned 51%) went ahead with efforts to have it subdivided. It did so in order to get the approval under the wire before a threatened downzoning would render the project virtually impossible. And it worked; the county approved the application to create 68 separate parcels. This act, the trial court found, increased the property’s value by $4 million. The subsequent collapse of the real estate market reduced that profit to $1.2 million by the time the property could be sold to a developer, but that still comfortably exceeded the roughly $600K development costs to get the approval.

Wouldn’t you know it? The sister still wasn’t satisfied. The partnership asked her to chip in her one-fourth of the development costs, but she refused, saying that she had never agreed to the subdivision. (Evidently the 1.2 million reasons to change her mind didn’t faze her.) Accordingly, her share (about $150K) was placed into escrow, and the parties headed for the courthouse. The trial court ruled in favor of the partnership, and the Supreme Court granted a writ.

There are two distinct issues in today’s decision of the case. The first is whether the approval of the land-use plan was a “permanent improvement” to the property. Existing caselaw firmly supports the obligation of dissenting co-owners to make good on expenses for the creation of permanent improvements that benefit the property. The sister argued that unlike the construction of or repair to a building or a roadway, a subdivision plan is hardly permanent; it’s wholly intangible.

The court resolves this issue in favor of the partnership. It holds that the plan approval increased the property’s value (a factual finding made by the trial court and unchallenged no appeal), so it qualifies as the kind of improvement for which the sister is liable for her share of the expense.

The second issue is a claim by the sister that the partnership had unclean hands. That matters because this is inherently an equitable claim. The sister contended that the partnership knew at all times that she opposed the project, so it couldn’t claim to be equitably entitled to reimbursement. But the evidence at trial showed that the sister vacillated, early and often, in her views of the project. She agreed that she thought the discovery of the drain fields was excellent news, and she chipped in a capital contribution to the partnership after the date on which the dispute arose. Her protestations against the project, viewed alongside these contrary expressions of approval, warranted the trial court in refusing to apply the unclean hands doctrine.

There’s one more aspect to this second contention. The partnership signed the subdivision application in its own name, as the sole owner, even though it only owned 51% of the parcel. I will admit to muttering an “uh-oh” when I read this part of the facts. The trial court simply blended this contention into the sister’s ambivalent approach to the affair, and held that it didn’t amount to unclean hands.

This last ruling is a tad unsatisfying, in that the partnership unquestionably misstated a material fact in the application. (Indeed, the county might decide to revisit the application when it reads today’s opinion.) This significant issue gets only one paragraph from the Supreme Court today. But I’m going to put this down to the fact that I don’t have the benefit of the full record; the trial court may have made additional findings on this point that simply didn’t make it into the appellate opinion. In my view, clearly the right party won here; it would have been wholly inappropriate for the sister to get a windfall because she dragged her feet while the rest of the family set about the task of enhancing the family fortune.

I have never beheld Smith Mountain Lake, but the descriptions I have heard are enough to make a nature-lover like me salivate. Predictably, a lot of folks want to grab a small slice of paradise. That brings us to a subdivision of some lakefront land, and the case of Anderson v. Delore.

Back in the 50’s, a company purchased 140 acres of the aforementioned paradise and broke it up into lots. It retained a strip of land along the water’s edge, but granted to each purchaser an easement “over and across the strip of land lying immediately between the lot herein conveyed and Smith Mountain Lake for the purpose of securing access to Smith Mountain Lake from the aforesaid property.” Over the years, that language, or similar language, passed down in the chains of title to the various platted lots.

The Andersons and the Delores bought adjacent lots relatively recently (that is, not from the original purchaser; there were intermediate lot owners). When the Andersons commissioned a survey of their lot to see the exact dimensions of their realm, they got a rude surprise. Basing the extent of the easement on an extension of their lot lines toward the lake’s shore, they learned that a preexisting pier and some rip-rap, ostensibly belonging to their neighbors, was actually within the Andersons’ easement. The Delores evidently refused a more-or-less polite request to remove the intruding structures. Da noive o’ dem guys!

The case landed in circuit court, where the Andersons sought an injunction for the removal of the structures. They based their claim in part on the survey, and in part on alleged violations of the local zoning ordinance. The trial court refused to award it, but the Supreme Court granted a writ to review the decision.

The appellate court affirms today, finding that the Andersons didn’t meet their burden of proof to show an encroachment, primarily because the language in the deeds didn’t define the precise boundaries of the easement. Easements like that aren’t void; the boundaries can still be established extrinsically, by things like the intention of the parties creating it. But the Andersons didn’t offer any of that kind of evidence; they just handed the judge the deeds and their survey, without anything else. This is a situation in which strict adherence to the parol evidence rule was a real problem for the Andersons.

The court is careful to note that it isn’t deciding the true boundaries of the lots. Indeed, it can’t, on this record. It also rejects the zoning-based challenge, since the Andersons don’t have a private right of action to enforce that; only the county can do so.