ANALYSIS OF JULY 19, 2018 SUPREME COURT OPINIONS
(Posted July 19, 2018) The heat of summer won’t dissuade the justices from giving you beach-reading material; today we see four new published opinions. Grab your sun block and let’s dig in.
Elementary principles tell us that a court cannot enter a judgment against a party over whom the court has not acquired personal jurisdiction. This is usually done by serving process. But lawyers know well that if the defendant voluntarily enters a general appearance in the case, service of process is unnecessary; that voluntary act waives service. Today, in McCulley v. Brooks & Co. Gen. Contractors, the justices address a related issue: What if the alleged general appearance comes after a default judgment?
This appeal stems from a routine commercial landlord-tenant collection. Landlord rented office and warehouse space to Tenant, and got Guarantor to sign as well, to secure payment. When Tenant didn’t make lease payments, Landlord sued them both.
Landlord served Guarantor by posting at his usual place of abode. That service method also requires that the plaintiff mail the defendant a copy of the process ten days before getting default judgment. Landlord forgot to do that (at least the record doesn’t establish that any such mailing ever went out). Appearing in court without either defendant, Landlord got a default judgment against both.
That led to proceedings to execute on the judgment. Landlord summoned Guarantor to appear for debtor’s interrogatories before a commissioner in chancery. Soon thereafter, the commissioner got a call from Guarantor’s lawyer, asking to reschedule. Why, sure, the commissioner answered. The lawyer then filed a motion to vacate the judgment, stating in all caps that he was making only a special appearance to contest service of process.
The commissioner rejected a request to stay the DIs pending resolution of the motion to vacate, and the Guarantor grudgingly cooperated. Eventually the parties got before a judge, who ruled that the initial service was defective, but that the Guarantor had waived any objection to it by “making a general appearance in this case through his post-judgment participation in Debtor’s Interrogatories.”
On appeal, the Supreme Court begins by noting that failing to satisfy the mailing and certificate requirements in the Code “renders any default judgment obtained void for lack of personal jurisdiction.” The question today is whether Guarantor’s responding to the DI summons waived that. The court holds that it did not, and accordingly reverses the judgment in favor of Landlord.
The principle is fairly simple: A void judgment has no vitality, and cannot be revived afterward. Justice Kelsey, who composes today’s opinion, explains in this memorable language:
A mere general appearance after the entry of a void judgment is too little, too late, to save the judgment. Just as medicine may cure a sick man of a fatal disease but not revive him after his burial, a litigant can “cure” the absence of personal jurisdiction by making a general appearance prior to final judgment but cannot resurrect a void judgment thereafter.
There’s actually a split in other jurisdictions on this point; today, the SCV adopts what looks to be the majority view. The opinion goes on to reject the claim that the voluntary participation estopped the Guarantor from claiming that the judgment was void, drawing support from the Restatement (Second) of Judgments in doing so.
Justice McCullough files a concurring opinion, agreeing fully with the majority, but pointing out that there’s a pregnant question here: Can appearance before someone who’s not a judge constitute a general appearance? Before you answer that a commissioner is a quasi-judicial agent, how about a mediator? Does a defendant waive service of process by mediating a dispute? How about visiting the Clerk’s Office? The concurrence doesn’t try to resolve these issues, concluding that “A future case will have to answer that question.” But the question is tantalizing for those procedure geeks among us.
Sexually violent predators
There’s an important procedural holding in Commonwealth v. Giddens that will have application beyond the SVP field. This, then, is an opinion worth reading even if you don’t handle this kind of case.
Giddens qualified for SVP review based on two convictions. A psychologist evaluated him and gave him a score of five on something called the Static-99 test. Anyone scoring at least five is eligible for involuntary commitment beyond his scheduled release date.
In circuit court, Giddens moved to dismiss, claiming that his test score had been calculated incorrectly. One of the questions is whether the subject has ever lived with a lover for at least two years. This, presumably, is an indicator of stability; if the answer is yes, no points are assessed, but if it’s no, the subject gets one point.
At a hearing, Giddens testified that he had lived with two different women – one of whom he had married – for more than two years each. His brother testified and corroborated that. The Commonwealth responded that this testimony was inconsistent with its records, including reports from two doctors.
The trial court granted the motion to dismiss, finding that the Commonwealth had failed to meet its burden to prove that the test had been scored correctly. The justices granted a writ to the Commonwealth.
On appeal, the Supreme Court notes that the Commonwealth is entitled by statute to a presumption of substantial compliance with the testing procedure, absent proof of gross negligence or willful misconduct. Giddens didn’t claim willful misconduct, so the issue today is whether the evidence at the hearing showed that the Commonwealth was grossly negligent in calculating the score.
In Virginia, “a claim for gross negligence must fail as a matter of law when the evidence shows that the defendants exercised some degree of care.” The court today points out that there was conflicting evidence in the trial court – the two brothers’ testimony differed from the Director of Corrections’ records and Giddens’s previous evaluations. In that event, and given the statutory presumption, the justices unanimously conclude that the Director wasn’t grossly negligent in calculating a score of five. The court thus reverses and remands the case to the circuit court for trial on the merits.
The concept of gross negligence has been in a long; slow decline here in Virginia. If a defendant exercises even minimal care, the justices have ruled that there’s no gross negligence. That’s true even after the fact; in Elliott v. Carter, for example, the justices found that a post-negligence attempt to rescue the victim was sufficient to minimize the earlier negligence – which earlier negligence can easily be described as gross. Today’s author, Justice McCullough, dissented from Elliott, but he cites it – indeed, in the quoted passage at the beginning of the paragraph immediately above this one – in holding that there’s no gross negligence here.
On remand, I’m candidly not sure what happens. The case was dismissed before a trial on the merits, so in theory, it should go back for trial. If so, Giddens may try again to show that he got the wrong score. Today’s opinion points out that while the two brothers testified at the hearing on the motion to dismiss, neither of the two women did so. I have at least some doubts about whether either of those women will be willing to help Giddens now, but it’s at least possible.
On the other hand, the Supreme Court has ruled that, as a matter of law, the Director was not grossly negligent, and that means that the presumption of substantial compliance holds. If the Director has substantially complied as a matter of law, what’s left to try? But I think the better reading of the opinion is that the judge has to hold a trial, in which the Director will get the benefit of the presumption and Giddens will have to overcome it by evidence that he really isn’t a sexually violent predator.
There’s a fascinating double-jeopardy issue in Severance v. Commonwealth, and it produces our only split decision of the day. Severance committed three murders in Alexandria, two of which occurred three months apart.
The Code describes 15 separate offenses that can constitute capital murder. Two of those are:
- The willful, deliberate, and premeditated killing of more than one person as a part of the same act or transaction;
- The willful, deliberate, and premeditated killing of more than one person within a three-year period; …
There’s no claim that these murders were part of the same act or transaction, so subsection 7 doesn’t govern this case. But at least two of the murders qualify for treatment under subsection 8. Severance killed two people in a willful, deliberate, and premeditated fashion within three years of each other.
The question in this appeal is how many capital offenses that constitutes. More specifically, under the Double Jeopardy Clause, can he receive two life sentences (the prosecution waived the death penalty) for these two murders?
Here are the competing theories. Severance contended that the criminal act proscribed in subsection 8 is murdering two people under certain conditions, including temporal proximity. He only did that once, so he can only be punished once – a single life term is his maximum sentence. The Commonwealth responded that he murdered victim #3 within two years of murdering victim #2, and he murdered victim #2 within three years of murdering victim #3. That’s “two murders, two convictions, two punishments.”
The Court of Appeals adopted the Commonwealth’s view, and today, in a 6-1 decision, the Supreme Court agrees, affirming the two life sentences that Severance received in the trial court. The court holds that Severance’s Blockburger argument is irrelevant, because that only addresses two punishments for the same act. This, the majority finds, was two acts.
In dissent, Justice Powell invokes the mathematical commutative principle: a+b = b+a. The only difference between the two indictments here was that they recited the names of the victims in a different order. That means that they are, analytically, the same act. Justice Powell believes that while the Commonwealth was free to pursue both convictions – Severance’s lawyer acknowledged as such – it could only seek punishment for one of them.
I found this to be a very interesting analytical exercise, and it’s the latest in a series of appeals involving fascinating thrusts and ripostes between Justice Powell and Justice Kelsey, who writes today’s majority.
The court disposes of a challenge to a will in Canody v. Hamblin, an appeal arising in Nelson County. In the spring of 2014, the testator went to his credit union and asked the folks there if they would witness and notarize a will for him. Since he was a good customer, they were happy to help; two witnesses and a notary formalized the process for him, signing at the end of the three-page document.
After the testator died, his son, who perceived that this will treated him ungenerously, contested its admission to probate. He noted that the three computer-generated pages were not numbered, and no paragraphs wrapped around page breaks. That made it easy to forge the first or second pages. The local clerk evidently agreed and refused to probate the will. That led to this court action.
At trial, the circuit court did two things that spur this appeal. First, it permitted testimony from one of the testator’s close friends. That witness described a conversation he had with the testator, describing how the testator wished to allocate his bounty. That description matched up with the provisions in the contested will.
The son contended that extrinsic evidence is not admissible to establish whether a will is forged or not. But the Supreme Court rules today that that was proper for the admittedly limited purpose for which the trial court considered it: “to establish that the first two pages of the will were entirely consistent with [the testator’s] stated testamentary intentions and to refute the assertion that they were not part of his original will.” The testimony isn’t admissible to prove “the substantive fact of forgery,” but as corroboration, they’re fine.
The trial court’s second ruling was to admit the three-page document without affirmative proof that those three pages were the entire will. The son urged that each page had to be fully authenticated. The witness and the notary who testified recognized their own signatures, but each said they knew nothing about the first two pages. In this day of computers, the son continued, it’s vastly easier to forge pages and substitute them – in comparison, say, with the days of handwritten or typescript wills.
The justices turn aside this challenge, too. They find that there is no positive evidence of forgery or alteration; just supposition that it might have happened. The only thing a witness has to do when testifying is to recognize his or her own signature; that’s enough to create a presumption that the will was properly executed. Since the son never rebutted that presumption with evidence – a mere opportunity for forgery doesn’t qualify – the Supreme Court affirms the circuit courts judgment admitting the will to probate.
One last point here: The trial judge comes out of this looking especially good. Justice McCullough’s opinion for a unanimous court describes his “thoughtful and thorough memorandum opinion” admitting the friend’s testimony into evidence, and cites with particular approval his observation on authentication. Praise from upstairs comes all too seldom; I trust that 24th Circuit Judge Michael Garrett will appreciate this opinion all the more for it.
Assignments of error
You no doubt remembered my opening line in today’s analysis, that there are four published opinions. If you’ve been counting, you know we’ve exhausted those. But there’s more! The court hands down an unpublished order that nevertheless contains an important ruling on the always-treacherous ground of specificity of assignments of error. If this really is your beach reading, now would be a good time to reapply that sun block while we go over the circumstances of Arthur v. Commonwealth.
Arthur stood indicted for possession of a firearm by a convicted felon. At the jury trial, he offered to stipulate to his convicted status, evidently perceiving that the jury would be inflamed by the violent nature of the felony (robbery). He argued that admitting the conviction order would be more prejudicial than probative.
The learned trial judge refused to allow him to stipulate away the sting of the prosecution’s evidence; she allowed the Commonwealth to introduce the conviction order. She did, however, offer to address any improper effects of that by instructing the jury, if Arthur wished, that it could not consider the prior conviction to establish the current crime or as character evidence against him. Arthur declined this invitation, and after deliberating, the jury got ‘im.
Arthur took his cause to the Court of Appeals, where his assignment of error claimed that the circuit court “erred in allowing the Commonwealth to introduce Arthur’s previous felony conviction in that Arthur offered to stipulate to that element of the offense.” The CAV refused to intervene, noting that a curative instruction is perfectly appropriate in situations like this, and since Arthur neither asked for one nor moved for a mistrial, the objection was waived. The appellate court never reached the merits of the more-prejudicial argument.
Arthur persevered and got a writ from the justices. He listed one assignment of error: “The trial court erred in allowing the Commonwealth to introduce Arthur’s previous felony conviction in that Arthur offered to stipulate to that element of the offense.” You can go back and compare that with what he assigned in the CAV, but I’ve already done so; the language is identical.
Once upon a time, that approach was plainly erroneous, because the Supreme Court reviews the Court of Appeals’ ruling, not the trial judge’s. Back then, you had to begin with, “The Court of Appeals erred in …” But a few years ago, the justices amended Rule 5:17(c) to add this saving provision:
An assignment of error in an appeal from the Court of Appeals to the Supreme Court which recites that “the trial court erred” and specifies the errors in the trial court, will be sufficient so long as the Court of Appeals ruled upon the specific merits of the alleged trial court error and the error assigned in this Court is identical to that assigned in the Court of Appeals.
That takes care of that little trap for the unwary.
Except Arthur didn’t read the new rule carefully enough. You can “reach through” the CAV using this provision only if the Court of Appeals “ruled upon the specific merits of the alleged trial court error.” That didn’t happen here; the CAV ruled that the argument in Arthur’s sole assignment was waived, and never reached those merits. In that event, Arthur’s assignment addresses an argument other than the one that the CAV decided. And that means that the justices dismiss the appeal for an insufficient assignment of error.
The modern Supreme Court has been especially strict in evaluating assignments of error, and appellants pay a high price for drafting assignments that fall short in one way or another – too narrow, too broad, or as here, assigning error to a ruling that never happened. This order is an object lesson that practitioners need to pay particular attention when crafting assignments, and they need to read the rules very carefully. The stakes are too high to proceed otherwise.