(Posted June 4, 2020) After last week’s bumper crop of opinions, the Supreme Court of Virginia today hands down a single decision. Green v. Diagnostic Imaging Associates is a wrongful-death claim involving medical malpractice. The decedent’s personal representative filed separate suits in Virginia and Kentucky, as the decedent had received medical care in both states from separate providers.

The Kentucky defendants settled, leaving the Virginia lawsuit pending. The Virginia defendants moved the court to dismiss the case, asserting that a plaintiff can only get one recovery for a given set of injuries, and the personal rep had received that recovery in Kentucky. The circuit court judge agreed and dismissed the case. The court ruled that a Virginia statute requires an election of remedies, and the plaintiff had made that election by settling in Kentucky. It went on to hold that judicial estoppel barred any recovery in the Virginia case.

This morning, the Supreme Court unanimously reverses and sends the case back for trial. Unlike in Virginia, Kentucky law permits a plaintiff to recover for both personal injuries and wrongful death, even if the injuries lead to the death. The Virginia statute isn’t an election of remedies; the law makes the choice for the plaintiff once the evidence establishes whether those injuries caused the death.

The justices go on to rule that this isn’t a case of claim-splitting, because the defendants in the two lawsuits were different. If the circuit court perceives that an award in Virginia compensates the personal rep for some of the same injuries as the Kentucky settlement did, it can reduce the Virginia judgment by that amount. And the doctrine of judicial estoppel doesn’t apply here, again because the parties in the two suits are different.

I noticed one detail in today’s opinion that reflects the modern reality of appellate practice in Virginia. The circuit court entered final judgment in November 2018. That means that this case took over 18 months to reach final decision on appeal. It took just over ten months to get to the writ grant, and another 8½ from that point to today.

Twenty or so years ago, 15-18 months was roughly the norm for a fully matured appeal (one where the full court decided the case by opinion or order). When Justice Hassell became chief justice in 2003, that time lag rankled him. He made it a priority to accelerate the pace at which the court processed its caseload.

I’m not sure how Chief Justice Hassell did it, but he lit a fire under the court and the pace picked up noticeably. I don’t have firm statistics on this, by my clear sense back then was that he had reduced the average lifespan of an appeal – the time from final circuit court judgment to Supreme Court merits decision – to about 11 months.

I infer that that need for speed hasn’t carried over to his successors. To be sure, Green is a bit of an outlier at 18 months. But in my experience, 15 months is close to the average these days; 13 is a lightning decision. The time factor isn’t related to caseload; the 2005 court, for example, received almost 2,700 new filings and granted 182 writs. Last year, in comparison, the court received 1,740 and accepted just 98. Today’s court is taking noticeably longer to process a much smaller docket.

I’m not writing this to be critical. I have enormous respect for the justices and for their highly professional support crew, both the Clerk of Court and the Chief Staff Attorney and their very capable staffs. I write this because you may need to know this if you’re advising your client on the prospect of an appeal. A client who’s mulling whether to appeal generally wants to know three things: What are our chances? How long will it take? And how much will it cost?

I’ve written elsewhere about the odds of securing a reversal on appeal (Reader’s Digest version: not very good). The cost is a matter for each appellate lawyer to shape for individual cases; there’s no standard appellate attorney’s fee. The “pace of play” considerations I’ve discussed here answer the remaining question.





(Posted June 1, 2020) Time for a look around the corridors of the appellate courts. Not the literal corridors, of course; they’re pretty much empty these days. Let’s be satisfied with the virtual ones for now.


State appellate courts shuttered

The Supreme Court and Court of Appeals of Virginia are closed today after demonstrations over the weekend in and around Capitol Square. The court system’s website contains this notice:

Due to the ongoing cleanup from the recent events in Richmond and areas around Capitol Square this past weekend, the Governor and Capitol Police have asked that state office buildings around Capitol Square close on Monday. In cooperation, the Supreme Court and Rose Lafoon Buildings will be closed on Monday, June 1, 2020. Court employees who have been teleworking or are able to telework should continue to do so tomorrow.

Yes, this means that if you have a deadline that expires today, you get another day, unto tomorrow. Just remember that the rule providing extensions for court closures only applies to the last day of a deadline period. If the court reopens tomorrow and that’s your normal deadline to file something, you don’t get an extra day.


Fourth Circuit issues operating notice

The Court of Appeals for the Fourth Circuit has posted this notice on its website, explaining operating procedures. The court continues to offer remote oral-argument options to litigants. The procedures are in effect through the end of August, though it won’t surprise me even a little to see them extended then.


A historic SCV argument docket

The Supreme Court of Virginia has notified litigants that it will consider just five appeals on the June merits docket. There are two criminal appeals, one State Bar disciplinary hearing, and two civil cases up for argument during the session week. My best guess is that the court will condense the schedule to a single day, assuming there is such a day that works for all of the lawyers arguing that day.

I introduced this passage by calling this docket historic. I can’t speak for the early years of the Commonwealth, but in all my time following the court, the closest I’ve ever seen to this five-appeal docket was the one containing just nine appeals this past January.

Unless the court awards a host of new appeals for argument and decision before the end of the year – and that’ll be a challenge, with trial courthouses shuttered – 2020 will give us historic lows in terms of the argument docket. The justices received oral argument in 52 appeals in the January, February, and April Sessions; these five make 57 for the entire year. If the current closure of courts extends much further – and it assuredly will – we could see comparably sparse session schedules for September and especially November.

The real mystery here will be whether the justices will again convene only remote, telephonic arguments, as they did in the April session, or will permit lawyers inside the building to argue in person. I don’t have any insight into that, but we’ll find out shortly.


SCOTUS hands mandatory bars a victory

This morning the Supreme Court of the United States denied certiorari in a case I’ve been watching for months, Jarchow v. State Bar of Wisconsin. This is a challenge to Wisconsin’s mandatory state bar on First Amendment grounds.

Here’s the setup: In 1977, SCOTUS ruled that public employees could be required to pay union dues, without violating their freedom of speech. That ruling came in Abood v. Detroit Bd. of Ed. Thirteen years later, in Keller v. State Bar, the justices applied that analysis to lawyers, holding that mandatory bar membership (and the mandatory collection of dues) was constitutional. The reasoning of Keller followed the Abood holding.

Two years ago, in Janus v. ASCME, the Supreme Court overturned Abood, holding that its reasoning was unsound. That led to this challenge by a Wisconsin lawyer in Jarchow. The appellant argued that he had a First Amendment right not to join that state’s bar. Keller’s vitality depended on Abood, and with Abood overturned, that left Keller without its decisional underpinning.

The Supreme Court’s cert denial this morning in Jarchow includes Justice Thomas’s short dissent, joined by Justice Gorsuch. The dissent concludes with this paragraph:

Short of a constitutional amendment, only we can rectify our own erroneous constitutional decisions. We have admitted that Abood was erroneous, and Abood provided the foundation for Keller. In light of these developments, we should reexamine whether Keller is sound precedent. Accordingly, I respectfully dissent from the denial of certiorari.

Keep in mind that a denial of cert isn’t a formal ruling on the ultimate issue in the case. It’s possible that a separate lawsuit alleging the same constitutional violations might grab the attention of at least four members of the Court.

You can see Justice Thomas’s dissent here; scroll down to page 5.





(Posted May 28, 2020) We get a bountiful harvest of rulings today from the Supreme Court of Virginia. The court hands down seven published opinions and two published orders.


Freedom of Information

Let’s start with an open-government case: Cole v. Smyth County Board implicates the exception from open-meeting requirements for consultations with counsel.

This litigation turns on what I regard as one of the most important governmental duties, that of furnishing a public library. This one’s called the Smyth-Bland Regional Library, named for the two adjacent counties that it serves. In 2016, the Smyth County Board of Supervisors voted to replace all seven of its appointees to the library’s board of trustees.

As you can imagine, this mini-putsch generated backlash. Three of the ousted trustees sued, claiming that their removal was unlawful. While that litigation was pending, the County Board went into executive session during four scheduled meetings. As required by FOIA, the County Board explained the reason for the closed discussions: “discussion with legal counsel and staff pertaining to actual or probable litigation.” The announcement didn’t specify the name of any such litigation, or otherwise describe it.

During those closed sessions, the County Board “discussed potential disbandment of the Library,” including the financial costs and benefits” of doing so. Finally, in a public session in which no member spoke and no citizen input was allowed, the County Board passed, by a 6-1 vote, a resolution to disband the library, citing the rationale that “administrative costs associated with the operation of a regional library now exceed the financial benefit of maintaining a regional library system.”

None of us are immune from viewpoint bias, and I’ll go ahead and state mine right now: I was horrified when I read this justification. I’m a collector and lover of books, and I realize what these board members don’t: You don’t measure the benefit of a library in dollars. A library is one of the fundamental pillars of a community; a society loses an essential part of its culture by closing it. I found myself rooting against the County Board immediately.

A FOIA lawsuit ensued, with a local citizen – the president of the local Friends of the Library chapter – claiming that the County Board violated the open-meeting requirement by going into closed session. She insisted that the announcement of the purpose of the discussions was improper in that it didn’t identify specific litigation, and that the County Board improperly went beyond discussing litigation in the closed meeting.

A circuit court judge ruled in favor of the County Board, finding that the public announcement was sufficient and that the discussions were germane to the pending lawsuit. The court dismissed the suit with prejudice.

That was in 2017. The citizen promptly appealed and got a writ. She filed her opening brief, and waited for the appellee’s brief.

And waited. I reported on a separate aspect of this appeal last autumn. The County Board’s lawyer is a member of the General Assembly, and invoked his privilege under Code §30-5 to receive an automatic extension of the deadline to file. This went on for a year and a half before the appellant asked the Supreme Court to intervene and require the legislator to file something. The justices directed the parties to file briefs on the issue. Just before the legislator’s deadline to respond to that, he went ahead and filed the brief of appellee.

The subtext of that short proceeding was the concept that the legislator was abusing the statutory privilege, and decided to avoid a potentially embarrassing order from the Supreme Court. Today, almost three years after the circuit court’s final order, we get a ruling.

The Supreme Court reverses the judgment and sends the case back to circuit court. It finds that the public announcement in these situations must go beyond mentioning the statutory basis for the exemption; it has to describe the litigation. I suspect that county boards and city councils elsewhere may already do this, but for the rest of them, the requirement is now out in plain sight.

The justices also rule that the County Board exceeded the scope of the exemption by discussing financial aspects of the library’s operation. That’s governmental financial management; not litigation. Because exemptions have to be construed narrowly, and the County Board bore the burden of proving that the exemption applied, the case now heads back to Marion, where the judge will evaluate the now-successful citizen’s claim for attorney’s fees. And those fees will now have an appellate component.


Local governments

The justices take up a police-power case today, deciding Hooked Group, LLC v. City of Chesapeake. This is an inverse-condemnation action that followed the closure of a street that abutted the landowner’s property. The commercial parcel still had access to another street, but the landowner insisted that the closure had a significant and negative effect on the property’s highest and best use.

A circuit court judge agreed with the City, ruling on demurrer that the remaining access was reasonable as a matter of law. He rejected the landowner’s reliance on one of the seminal cases in condemnation law, State Highway Comm’r v. Dennison, which had also involved the closure of one of two adjacent roads, leaving access through the other road. There, the Supreme Court had held that the closure presented a jury issue on whether remaining access was reasonable.

This morning, the justices affirm the circuit court’s decision. The Supreme Court finds Dennison inapposite, because in that case, the Commissioner closed access to a four-lane road, leaving access to a two-lane road; in this case, it was the other way around. Justice McCullough’s opinion for a unanimous court concludes that this setup means that the remaining access was reasonable as a matter of law.

This last aspect of the case is an enormous win for condemnors. In the past, issues like this were typically matters for the factfinder. That was the ruling in Dennison. The Supreme Court has rarely taken on the task of finding what remaining access is reasonable, but it does so today.

The court also rejects the landowner’s contention that the 2012 amendments to the Constitution of Virginia, strengthening protection for property rights, meant that a loss of access was compensable. The General Assembly added a statute that provides for compensation for “a material impairment of direct access to property.” This, you might perceive, means that landowners are on a much stronger footing in these cases than they were before the amendments.

The justices disagree; they hold that their pre-2012 caselaw is “still relevant.” The new rule it announces today – fans of George Orwell might term the doctrine, “four lanes good; two lanes bad” – still requires the same reasonable-access-remaining analysis as before. This calls into question whether the entire process of amending the Constitution was meaningful.

Despite the court’s observation that Dennison is “simply inapposite,” I sense that the Hooked Group decision represents a noticeable retreat from that old doctrine. The fundamental holding of Dennison was that the issue of reduced access was ripe for jury determination, because there was some evidence of a significant reduction in that old parcel’s value. The trial court decided this case on demurrer, in which the courts must accept the landowner’s pleading that the street closure was a material detriment to its property. This, in turn, may signal that the justices are more open to early termination of litigation than before, when they openly protected the right to a jury trial. This opinion holds that judges, not juries, may be the ones to decide what’s reasonable.



We see another appeal with family members on both sides of the “v.” today, in Larsen v. Stack. It’s a familiar setup:

Dad owns a farm that we’ll call Blackacre in his own name. He executes a will that leaves the farm to Son and Daughter, but he gives Stepmom “the right to reside in [Blackacre] for so long as she is physically and mentally able to do so.” As long as Stepmom lives there, she also gets rental payments for an onsite cell tower.

After Dad died, trouble arose. Son and Daughter believed that Stepmom didn’t have a life estate, and they perceived that they had a right to use the property in conjunction with her. They sought a declaratory judgment to construe the will.

The circuit court ruled that the will was ambiguous in some material respects, so it permitted parol testimony from the attorney who drafted Dad’s will. That lawyer told the judge that Dad wanted his children ultimately to own the farm, and he didn’t give Stepmom a life estate for fear she’d have to sell it to qualify for Medicaid.

Satisfied with this explanation, the judge construed the will exactly as Son and Daughter had asked. But Mom got a writ. Today the Supreme Court affirms. The court notes that Dad did give Stepmom a life estate in another piece of property, so if he had meant to do so with the farm, he would likely have used that word. And the will gave Stepmom the right to reside on the farm, not exclusive ownership of it, so Son and Daughter could use it, too, so long as they didn’t interfere with Stepmom’s use of it.

I commend this short (9 pages) opinion to you for the clarity of Justice Chafin’s writing. Of all the justices, I’m least familiar with her style, because I’ve seen comparatively little of it. She writes in clear language with refreshingly many paragraph breaks. (Keep that in mind for your writing. Text with frequent paragraph breaks is easier to read.)


Civil procedure

Speaking of clarity in writing, we get an opinion today from Justice Russell in a land-use context, but the major lesson is in an arcane procedural tool. The opinion in Byrne v. City of Alexandria is short – aren’t all of Justice Russell’s opinions short? – at just over seven pages, and involves a fence in Old Town Alexandria.

Byrne bought a house in Old Town that dates to the 1780s. It was a fixer-upper, and Byrne got all the required approvals and permits to renovate it. He started work. But he hadn’t obtained approval from the local architectural board to demolish the brick fence in front. When he removed it to facilitate the renovation, the board cleared its throat and told him to stop.

As I see it, Byrne did the responsible thing: He submitted plans to put in “a Victorian ‘wicket and spear’ fence pierced by two gates.” His plans showed one of those gates as being narrow, for pedestrian access only, and the other as eight feet wide, to facilitate things like deliveries to the home. The board allowed him six feet only. Byrne didn’t like that, so he pursued administrative appeals and then a court challenge.

That’s what we’re here about today: a two-foot difference in the width of a gate. I recognize that property values in Old Town are astronomical. But two feet? Even so, it was enough to interest at least two justices on the panel that the case was worth a slot on the argument docket.

The circuit court took oyer of the administrative record that the City Council had when it heard Byrne’s appeal. After considering that, the court affirmed the six-foot requirement. On appeal, the Supreme Court first takes up the question whether oyer was appropriate for such documents.

The procedural tool of taking oyer is the process by which a defendant asks the trial court to metaphorically staple a document onto the plaintiff’s complaint. Normally in evaluating a demurrer, the court is limited to the four corners of the plaintiff’s pleading. Oyer allows the court to furnish a document on which the plaintiff’s claim depends, even if the plaintiff hasn’t attached it.

In an 1895 decision, the Supreme Court had seemingly limited oyer to “deeds and letters of probate and administration, not to other writings.” More recent decisions, however, have approved of courts’ taking oyer of many other kinds of documents. Today’s decision cements the broader approach: The Supreme Court rules that a trial court may take oyer of a missing document if “the missing document is essential to the claim.” This doesn’t mean that the court can consider anything that the plaintiff mentions obliquely, but if his claim depends on the document, then the plaintiff can’t force the court to decide a demurrer without it.

On the merits, the justices have little trouble in concluding that the City Council didn’t act arbitrarily or capriciously when it affirmed the architectural board’s determination. The Supreme Court accordingly affirms.



We visit the dark world of subrogation agreements today in Erie Ins. Exch. V. Alba, which arises here in sunny Virginia Beach. This appeal arises from a particularly scary event, a fire at a condominium complex. There’s no word in today’s opinion of any personal injuries, but the fire, sparked by one or more smoldering cigarettes, caused over $800,000 in damage to the building.

The condo association had purchased an insurance policy from Erie that contained a provision waiving subrogation by the insurer against individual unit owners. That means that Erie can’t sue the owner of the unit for negligence in causing the fire.

Ah, but the owner of the unit had leased it to a tenant. Erie paid for the damage and then sued her, claiming that her negligence had caused the fire. She responded by claiming the benefit of the provision that protected her landlord, the unit owner. Erie answered that the policy says nothing about releasing tenants; the tenant countered that she stood in the shoes of her landlord. Who’s right?

The circuit judge entered a declaratory judgment in favor of the tenant, but today the Supreme Court reverses and sends the case back for trial. The court interprets the policy language exactly as it’s written, and it never mentions tenants. As for the stand-in-the-shoes argument, the court rules that the tenant had no contractual relation with the condo association, so there’s nothing to indicate an intention to vary the relationship from the terms of the policy.

So, is Erie going to get a check from the tenant for $800,000? Not likely; she’s almost certain to be judgment-proof for a claim that large. But Erie has obtained a precedential ruling that might help it, and other insurers, with other claims.


Limitation of actions

It was painful to read Mackey v. McDannald, an appeal growing out of a claim that a lawyer had misappropriated stock proceeds that should have gone to his former partners’ survivors. The stock came from the conversion of a health insurer from a mutual company to a stock company in the 1990s. The surviving lawyer had been a partner with the firm for eight years before leaving in 1995. When he left, the remaining three partners organized a new partnership in their names only. The stock conversion came two years later.

The three former partners died between 1999 and 2002. After the last death, the former partner, now the only living member of the old partnership, learned about the stock. At this point, the survivor did something that he would no doubt come to regret: He changed the mailing address for the old, defunct firm to his own home.

Meanwhile, a former associate of the firm, assisting the widow of one of the deceased lawyers, found a reference to the stock and asked the surviving former partner about it. The response was, “I have looked into it. There is not enough money involved.”

Ah, but there was plenty of money. The account represented over 600 shares of the insurance company, plus another $20,000. Six years later, in 2009, the surviving partner directed the stock administrator to liquidate the shares and send the proceeds to him. In doing so, he used a letterhead – printed on his own computer – showing the old, pre-dissolution partnership name and his home address. The administrator mailed him two checks totaling almost $100,000.

Six years later, the former associate found documents referring to the stock. He tried to contact the surviving partner but got no answer. (Bad sign #1.) He called the stock administrator, and was told that he couldn’t get any information unless he represented someone entitled to the stock. But the administrator revealed that there had been some activity, suggesting that he contact the former partner. (Bad sign #2.) The associate eventually got confirmation of the liquidation and payment. He informed the widow he’d been helping and representatives of the other two estates. That led to this lawsuit, filed in 2015.

The circuit court faced a tough preliminary decision at trial. The defendant raised the bar of the five-year statute of limitations. The claimed conversion happened in 2009, six years before suit. The plaintiff estates asserted the tolling provision relating to using “direct or indirect means to obstruct the filing of an action.” The defendant replied that the action they posited – the defendant’s telling the associate that the stock was essentially worthless – predated the conversion, so it couldn’t have obstructed their filing suit; there was at that point no cause of action.

The court overruled this defense, finding that the timing of the obstruction was irrelevant. By misleading the associate, who had completely trusted the former partner, the defendant put the victims off the trail, with foreseeable results. Only when the associate stumbled on suspicious documents six years after the stock liquidation was anyone aware of what happened.

The circuit court found that the surviving partner had indeed converted stock belonging to the three estates. It awarded judgment for almost $260,000 in compensatory damages and added $100,000 in punitives. The surviving partner appealed.

Today the justices affirm in part. They agree with the trial court’s analysis of the tolling issue, ruling that “intent – not timing – is the touchstone of the inquiry.” The Supreme Court reverses one aspect of the award, holding that the surviving partner’s misleading statement to the associate inured only to the benefit of the widow for whom the associate was working; not the other two estates. But it concludes that the third estate had a valid claim for conversion of the stock. The justices remand the case; as I see it, the circuit court must now calculate the amount due to that one widow.

This opinion was hard to read because it speaks ill of the fitness of a lawyer. Justice Mims’s opinion for a unanimous court recites that the misleading of the associate “was an act that ‘involved moral turpitude.’” Yes, those quotation marks are real; this passage is in this opinion. And the opinion is going into Virginia Reports, for the appellant’s great-grandchildren to read decades from now. Finally, it’s foreseeable to me that the appellant lawyer will be getting a call – if he hasn’t received one already – from a State Bar ethics investigator, now that the justices have pronounced the death sentence for his future credibility as a lawyer.