SCV Unpublished Orders

SCV Unpublished Orders


Moore v. Fuller (5/11/2017)
I’ve had a couple of requests for comment on last week’s unpub in Moore v. Fuller, involving competing family trusts. The primary holding is that a court has no authority to adjudicate a claim that hasn’t been properly pleaded. The appellees filed a petition for aid and direction, and in a brief supporting a motion to show cause, they asserted that the appellants had defrauded them. The trial court  took that as a fraud claim and adjudicated it, but the Supreme Court reversed, holding that since a brief isn’t a pleading — see Rule 3:18(a) — there was no valid fraud claim before the court.

In a second ruling, the justices also reverse the too-late entry of an order that had modified the final judgment. The original order compelled the parties to comply with a settlement agreement, and one of the terms of that agreement was reciprocal global releases of all claims. Five weeks after entering that order, the trial court modified it to exclude from the releases any potential right of action for fraud. The court justified its act as correction of a scrivener’s error, but the justices find that this is a substantive change. Scrivener’s errors are more like typos — for example, entering an order that uses the word there where the context clearly indicates that three was intended. This signals that the Supreme Court takes a very narrow view of technical corrections under Code §8.01-428, a holding that’s in line with previous caselaw.


Cawley v. Spickermann (12/29/2010)
Jury returned Bowers verdict in case of uncontested liability. When sent back to deliberate further, jury returned note asking if it had to award more than specials; it eventually returned verdict for $0. Case remanded as inadequate as a matter of law; to be retried.

Bailey v. Keith Irwin Installations (12/29/2010)
Contractor built catwalk for Aramark, a company that rents linens and uniforms. Aramark helped with construction, but not as normal part of its business. Statutory-employee doctrine does not apply to bar tort claim against contractor under Workers’ Comp Act.

Appellate Procedure

Landrum v. Chippenham and Johnston-Willis Medical Center (11/10/2010)
Assignments of error struck where appellant changed wording of assignments after writ was granted.

Criminal Law

Newby v. Commonwealth (8/13/10)
In this case, a conviction for distribution of obscene materials is reversed where the defendant was charged with preparation of obscene materials, and the warrant was never amended.

Pettaway v. Commonwealth (10/8/2010)
Denial of motion to suppress affirmed. Defendant struggled to prevent officer from conducting a patdown search of his pocket; this constituted a separate offense (obstruction of justice), so subsequent search of pocket was incident to lawful arrest.

Riddick v. Commonwealth (10/8/2010)
Simultaneous prosecutions for (1) use of firearm in commission of felony and (2) wounding during commission of felony are permissible because each requires proof of an element the other does not.

Bennett v. Commonwealth (10/8/2010)
Simultaneous convictions for two counts of use of firearm in commission of felonies can support “second or subsequent offense” component of five-year minimum sentence.  Sentence of eight years on two firearms charges affirmed.

Sexually Violent Predators

Graves v. Commonwealth (10/8/2010)
Civil commitment of sexually violent predator affirmed over Crawford and hearsay challenges. Crawford does not apply to SVPA proceedings, because they’re civil, not criminal. Hearsay objection should have been sustained, but error was harmless in light of overwhelming weight of other evidence.

Civil Procedure

Pittkin v. Loddon (U.S.) Ltd.


[Posted June 3, 2011] There were 23 cases argued in the Supreme Court’s April session, and the court has already announced decisions in four of them. The fourth comes today (as usual, by unpublished order) in Pittkin v. Loddon (U.S.) Ltd. It involves the seldom-used remedy of attachment, and explains the measure of damages when an attachment is released.

In 1996, Pittkin attached (wrongfully, it turns out) certain building materials that were being held by Loddon for the construction of stalls for horses. The materials were metal poles (for framing) and lumber (used to construct walls). They were held for eight years, and evidently were left out in the elements for a good chunk of that time.

Wood, my loyal readers, rots when it’s left out for that long. And even steel corrodes. The owner sought damages for the loss of value of its property. The trial court awarded it $83,000, representing the original amount of the attachment bond less the salvage value of the materials.

There are a couple of interesting points here. The primary issue in the trial court was Pittkin’s argument that Loddon didn’t adduce satisfactory evidence of the value of the goods. First, the trial court ruled that the fair market value of the goods at the time of the attachment was $100,000, which was the amount the attaching party (Pittkin) certified the goods were worth when he seized them. The court noted that no one had taken issue with the amount of the bond, so he felt that was a fair “starting point.” Today’s order doesn’t give us an extensive review of the evidence, but I wonder whether the owner of the materials tried to offer evidence that the value back in 1996 was higher than $100K.

The Supreme Court affirms the award of damages, noting that the measure of the owner’s recovery is the difference between the value on the date of seizure and the value on the date the attachment is released. That’s fine as far as it goes, but the owner had tried a different tack: It argued that the materials, if they had not been damaged by the weather, would actually have been worth over $300,000 on the release date. (Must have been quite a rising market for this kind of lumber in the intervening eight years.) It accordingly sought a much higher recovery in an assignment of cross-error. But the Supreme Court rejects that claim today, reaffirming the previous calculus for this kind of damage: Original value minus release-date value.

I was in court in April when this case was argued; I represented the appellant in the argument immediately following it. When I was called to the lectern, the devil within me could not be restrained, based on what I had just heard. I began my argument (after introducing myself, of course) with, “Unfortunately, I don’t have the beautiful irony of arguing a case about lumber that was decided by a judge named Wood . . . .”

Davis v. Davis (10/1/2010)
Error for court to grant summary judgment where no motion for SJ is pending.  Ruling based on procedural due process.