[Posted December 12, 2008] My faithful readers will know that the Supreme Court occasionally decides appeals by unpublished orders, and those are announced on Fridays. Normally we might get no more than one or perhaps two in a given week; zero is the mode, as mathematicians would call it. But today, the court decides no fewer than seven appeals by order. Six of these were argued in the November session, and one hasn’t even been argued yet; the court dismisses one appeal that was slated to be argued in 2009, based on a procedural defect.

As usual, none of these orders are available on the court’s web site. If any of you would like a copy of any of them, just let me know. The orders are essentially worthless as authority in the sense of stare decisis, but if you happen to get an identical fact pattern in your case, they make splendid reading material for your local circuit court judge.

In Zapata v. Community Alternatives, the court reverses the dismissal of a negligence claim brought against two defendants who had won a judgment on the grounds of charitable immunity. This case is by no means a landmark on that kind of immunity (if it were, it would be published). Instead, it deals with a premature ruling by the trial court on whether the entire suit should be dismissed due to a finding that such immunity protected the defendants. The trial court dismissed the suit despite the plaintiff’s assertion that his gross negligence claim was viable even against an immune defendant. Today the Supreme Court reverses, holding that no pleading testing the sufficiency of the gross negligence claim was before the court. Last week’s ruling in Halsey v. Grafton School probably presages an eventual jury trial on this point.

Weldon v. Campbell is a personal injury claim in which the plaintiff claimed lost wages of $1,200 and medical bills of almost $13,000. The jury returned a verdict for $10,000, and the plaintiff appealed, claiming that the amount was below her undisputed damages. But the defendant hadn’t conceded quite that much – only about $7K in all, so the court rules today that the jury had the discretion to award the $10,000.

KBH Corp. v. David R. McGeorge Car Co. is the latest in a string of losses for those who seek to enforce covenants not to compete. These covenants are almost never identical to one another, so the exact language here won’t govern future cases (again, that’s a big part of why this is unpublished). But again, the court finds a way to rule that this disfavored clause in an employment contract is unenforceable. This clause was, in my mind, reasonable in duration (one year) and in geographic extent (45 miles). The problem here is that the employee would be barred from engaging in activities that don’t actually compete with the employer.

Parish v. Parish involves an intra-family dispute over the qualification of a personal representative of an estate. One Parish qualified as administrator of a decedent Parish’s estate in 2006. But the plaintiff, yet another Parish, contended that she had a 2002 will from the decedent, naming her as executrix. Accordingly, the question in the trial court was whether the will was valid. The trial court ruled in favor of the executrix. On appeal, the Supreme Court reverses, since not all interested parties were joined in the suit. Three potential heirs under the will were never made parties, and the trial court therefore erred in adjudicating the merits of the case. This is true even though the result of the trial was to vindicate those missing heirs’ rights. The case is remanded to the missing three can be joined; after that, I foresee another win for the executrix, and another appeal, this time with all hands on board.

Schmidt v. Triple Canopy is a wrongful termination suit in which the plaintiffs contended that they were fired because they dared to report their supervisor’s criminal actions. They contended that the firings violated Virginia public policy. The trial court gave two jury instructions, one of which correctly told the jury that the plaintiffs had to show that they were fired for a reason that violated public policy. The other one told the jury that the plaintiffs had to prove that the improper purpose was the sole cause of the firings. There’s a subtle difference here, and that makes all the difference in this appeal – the truth is that a plaintiff doesn’t have to show that the improper purpose was the sole motivating factor for the termination in order to get a verdict. The jury returned a defense verdict, but since the two instructions gave them differing sets of tests (one of which was an incorrect one) to evaluate the evidence, the verdict was tainted and the whole thing has to go back for a retrial.

Matzuk v. Commonwealth is a petition for a writ of actual innocence, originally presented in the Court of Appeals (as all such petitions involving non-biological evidence must be). The CAV ruled against the petitioner, and he appealed upstairs; the Supreme Court granted a writ. But today, without waiting for oral argument, the court dismisses the appeal. The problem here is that the appellant’s lawyer changed the wording of the single assignment of error after he got the writ. This is one of those clear-cut appellate no-nos; once the court grants the writ, you cannot change the wording of the assignments (questions presented are different).

In the past, the court has simply proceeded to decide the case on the original assignment. See, for example, White v. Commonwealth, 267 Va. 96, 102-03 (2004). But today, it applies the death penalty and dismisses, even though this is an actual-innocence petition where the petitioner can’t use habeas corpus (alleging ineffective assistance of counsel) to get a new trial. The court takes this drastic step implicitly because the original assignment wasn’t sufficiently briefed. In essence, the appellate lawyer’s desire to straighten out his brief cost the client the opportunity to prove that he’s actually an innocent man.

The final appeal decided today is Holland v. First Dominion Land, a boundary line dispute from Isle of WightCounty. The issues are a bit hard to follow without seeing the plats; let it suffice to say that that the defendant prevails because the trial court found that the plaintiffs’ survey didn’t match up with the original property description. The court then went on to declare, as boundary line suit final orders are specifically supposed to do, the location of the true boundary line, based on what the defendant had urged. The Supreme Court today affirms in part and reverses in part. How can that be, you ask? Isn’t the location of the boundary either here, or there?

First, the court affirms the trial court’s finding that the plaintiffs had failed to meet their burden of proof. That means the trial court was right in refusing to declare the boundary to be where the plaintiff wanted it. But when the trial court went ahead and said the boundary was where the defendant wanted it to be, a problem arose: Using that interpretation, the two parties would no longer be adjoining neighbors. That turns out to be a big deal, because now the trial court can’t make a declaration of the boundary line of a stranger to the proceedings. That makes this case a bit like the Parish will dispute I described above; unless you have all necessary parties, a court can’t go adjudicating controversies. Since the case is reversed, but not remanded for further proceedings, my sense is that the boundary is in limbo as I type these words, and will remain so until and unless the defendant or the intervening landowner – howdy, neighbor! – decides to head to court to establish it.

Justice Kinser is the lone dissenter from today’s orders; she differs with the rest of the court as to the Zapata and Weldon appeals, but does not file an opinion in either case to say why. All five of the remaining orders are unanimous.