SUPREME COURT HANDS DOWN FOUR DISPOSITIVE ORDERS
On Friday, May 19, the Supreme Court of Virginia decides four cases by unpublished order. Each of the cases was argued in the April session of the court’s 2005-06 term.
Trusts and estates
The court decides two cases involving testamentary language today. Doherty v. Langdon involves a claim by a trustee for income from business handled outside the trust. Instead of reaching this issue, the court finds the question presented to be procedurally defaulted, in a sense, since it finds that the trial court never made the ruling that the appellant identified in his assignment of error. The court finds “that Doherty’s first assignment of error does not reflect an actual ruling of the trial court and, thus, Doherty cannot rely on it to challenge the trial court’s judgment on appeal.” This ruling is an admonition to appellate attorneys to take great care in framing the issues for appeal; if you assert a ruling the trial court did not actually make, you may be out, just as this appellant is now.
The other will case is Yates v. Latham, involving a will in which the testator directed that all of her estate be divided into four equal parts, to be divided by “the children.” She then went on to list, unfortunately, five children, in this way:
“1.) Carolyn S. Wood;
2.) Barbara S. Yates;
3.) Virginia S. Latham and Lloyd Ray Latham; and
4.) William H. Sims, Jr.”
Reading between the lines, it appears as though Lloyd Ray Latham was either an adopted son or a stepson of the testator; there really were four biological children. So does Lloyd get a share, or not? The answer is, Sort of. Since she used the term the children instead of my children, the court reasons that she did not intend to exclude Lloyd. And the will divides the property into four shares, and then enumerates the recipients of each part. So Lloyd gets half a share, which is better than being cut out entirely.
Tidewater attorney and former legislator William P. Robinson, Jr. today finds himself unable to practice law for three years, as a result of the court’s order affirming an order of license suspension ordered by the Virginia State Bar. The sole issue in the appeal is whether Robinson’s demand for consideration by a three-judge panel (as opposed to the Bar’s Disciplinary Board) was timely filed. The rules relating to such appeals require that the demand must be made within 21 days after service of the certification of the charges; Robinson mailed his demand on the 21st day by certified mail, and it arrived the next day. The Bar decided it was too late, and convened a hearing before the Disciplinary Board instead; the Board suspended his license for the three year period. Robinson appealed, and obtained a stay of the suspension during the pendency of the appeal.
In many instances, certified mailing of documents on the deadline day is timely. Unfortunately, this isn’t one of those instances; the court finds today that the demand must be filed and received within the 21-day period. This turns out to be a day late, and for Robinson, the effects will be lasting. This decision is likely to be considered by the major media (especially those in Tidewater) as the most significant story of the day today.
The final order issued today appears in Salyer v. Johnson, which arose out of an intersection collision in Washington County. A jury found in favor of the defendant, after the trial court instructed it (over the plaintiff’s objection) on contributory negligence. On appeal, the plaintiff contended that the court had no basis on which to submit the contributory negligence defense to the jury.
Today, the court affirms on the facts presented in the record. Chief among these is the plaintiff’s concession that she knew that the roadway was wet; it was near dusk; and she had 150 yards of visibility. She claimed that she only saw the defendant for “a split second” before the collision, so there were no skid marks.
The problem with this combination of concessions, the court finds, is that it raises at least the prospect of contributory negligence. One with an unobstructed view for 150 yards who nevertheless fails to see another car until a split second before a collision is at least arguably failing to keep a proper lookout. That makes it a jury issue.
As these rulings are by order, they do not appear on the court’s web site, and will not be published in Virginia Reports. If any readers of this site would like a copy of any of them, I will be happy to provide them upon request.