FOUR UNPUBLISHED DECISIONS FROM SCV
On Friday, March 30, the Supreme Court handed down four unpublished rulings in cases pending on the court’s docket.
The court issues a companion order to one handed down earlier, in Patterson v.Commonwealth. This appeal, like its earlier cousin, is dismissed as improvidently awarded, because the appellant’s counsel assigned error to the trial court’s ruling, instead of the Court of Appeals’ decision that the appellant’s argument was procedurally defaulted. Appellants’ counsel take note: When appealing a case on to the Supreme Court from the Court of Appeals, you must assign error to what the Court of Appeals did; not to what the trial court did. I wrote about the companion case on March 17, and won’t repeat that sermon here.
One estate case that was argued in the March session gets an early adjudication. In Froehlich v. Haynes, the court reverses a trial court’s ruling in favor of an administrator, finding that the lower court had improperly refused to place the burden on the administrator to disprove improper use of estate assets. Citing last year’s decision in Grubb v. Grubb, the court notes that once a plaintiff establishes that the personal rep used estate assets to his own benefit, a presumption of fraud arises, and the representative must overcome that – by clear and convincing evidence, no less. In an interesting turn of phrase, the court simply quotes two dispositive paragraphs form the Grubb decision, substituting the names of the parties in this case for the names of the earlier parties.
The court also reverses one criminal conviction for insufficiency of evidence, in Nelson v. Commonwealth. That case involved a grand larceny conviction in which the defendant was near, but never in possession of, the larceny victim’s stolen purse. The court notes that “[t]he mere opportunity to commit an offense raises only a suspicion of guilt and is not sufficient to sustain a conviction.” My own sense is that “the mere opportunity to commit a crime” raises nothing rising to the level even of suspicion, without something more; but Nelson won’t fuss with the court’s phrasing, as her charges are dismissed.
Finally, the appellant’s lawyer in Driscoll v. Ridgewood Homes falls into a familiar appellate trap. Driscoll pleaded five different theories of recovery against Ridgewood Homes arising out of the construction of his home. The trial court sustained a demurrer, and did not give Driscoll leave to amend before dismissing the case. Driscoll appealed, arguing plausibly that he should at least have the opportunity to correct the defaults in his original pleading. (In my experience, most trial courts will give just about any plaintiff one opportunity to amend, unless the case is completely and demonstrably hopeless.) But the Supreme Court needs one thing in order to evaluate whether a given amendment should have been permitted: A copy of the amended pleading. Driscoll forgot to tender that, evidently planning to argue for the abstract principle that amendments ought to be granted for a first sin of omission. That failure dooms the appeal to an untimely death. The lesson here is simple: In order to preserve an amendment issue for appeal, you must tender a copy of the proposed amendment to the trial court, and ask that it be placed in the court’s file.
As these rulings are unpublished and are not available on the court’s web site, readers of this site who would like copies can e-mail me to receive them.