APPELLATE MUSINGS ON A SIGNAL DAY

 

(Posted March 28, 2024) The weather here in Tidewater is dreary; an enduring, driving rain with no meaningful sign of Apollo all day. But it’s still a happy day because several men around the continent will utter the priceless phrase “Play ball!” today. My beloved Dodgers entertain a certain avian group from eastern Missouri. I know better than to start dreaming of the postseason already; I’m just delighted that baseball is back.

I’ve long thought that Opening Day should be a national holiday. I infer that The Robes have declared an informal one, because we have nothing new today out of the Supreme Court of Virginia. Let’s take a look at some other happenings in our field.

 

Whither 302 Va.?

Some of us dinosaurs still subscribe to print editions of Virginia Reports. I prefer to read cases in a physical book, and you have to admit that a bookcase full of the reporters looks prettier than its cyber-parallel, whatever that is.

In addition to getting the hardbound volumes, we also receive their paperback predecessors: the advance sheets. These are preliminary publications that give you an early look at the reporter’s paginations for the reported cases. Traditionally, three sets of advance sheets make up a single hardback volume.

I’m now wondering whether the most recent sets of advance sheets have fallen into the Appellate Bermuda Triangle. My office has received the hardbound volume 301 of Virginia Reports, but no advance sheets for anything since. The most recent reported decision we have is Arch Insurance v. FCVbank, 301 Va. 503, decided December 29, 2022 – fifteen months ago.

Several years ago, the former publisher of the advance sheets abruptly stopped publishing them. We subscriber/dinosaurs were left in limbo for a time, but Thomson Reuters picked up the contract and has published them ever since. Now I’m wondering if something comparable has happened.

Before posting a bold note of warning like this, I decided to check another source to be sure. I ran a Lexis search for “302 Va. 1” but got no results. That tells me that there’s no official-reporter pagination yet for the first case decided in 2023, Forness v. Commonwealth, handed down January 19 of that year. Even if you solely use online legal research, the best you can do for that case now is to cite it as 882 S.E.2d 201.

If any of my readers are heading off on a cruise to Bermuda anytime soon, I’d be grateful if you’d keep an eye out for those missing advance sheets. Tell them I miss them.

 

First Quarter D-GI

New year; new David-Goliath Index. The quiet passing of today’s opinion day means that we have three months’ worth of decisions in the books. (Given the note immediately above this one, I use the term books loosely.) It’s time to see how our familiar litigation adversaries have done in the first quarter.

Among the published and unpublished decisions of the Supreme Court this year, I count three wins for our Davids and five for our Goliaths, for a very preliminary D-GI of 37/62. I offer three observations about this: Goliath is still winning most of the SCV appeals; David is doing a little better than usual, in that he isn’t losing quite as often as before; and you can’t draw any meaningful conclusions where the sample size is just eight decisions. This last point essentially erases the first two. Let’s see how things develop as the year unfolds.

 

State court stats are out

I am, as usual, very grateful to the clerks of the two Virginia appellate courts – Muriel Pitney in the SCV and John Vollino in the CAV – for sending me copies of the courts’ year-end statistical reports, now hot off the electronic presses. For a stats geek like me, this is a wonderful trove of analytical goodies. I’ll take the time to go through them, glean what I can, and post a plain-English report here in the coming days.

 


TWO SHORT APPELLATE NOTES

 

(Posted March 22, 2024) With no new business in the opinion mill at Ninth and Franklin this week, let’s take a look at a couple of developments this week.

 

April writ panels

The Supreme Court has posted a list of cases on the April 2 writ-panel docket. There are 46 appeals on the list, a healthy uptick from recent panels. (There were 29 cases in February, 28 in December, and 36 in October.) The number of appeals on panel dockets is a fair indicator of appellate business overall at the court, so this jump is nice to see.

 

A return to the keyboard

I was delighted to note yesterday that my appellate colleague and friendly competitor, John Koehler, has returned to posting analysis of CAV decisions after an absence of several weeks. John is a former court insider – something I never was – and he writes engagingly, making you want to come back. Instead of declaring analysis bankruptcy and just starting afresh, he’s catching up on the decisions that he missed. Welcome back, my brother.

This raises a question that I get occasionally: How do we appellate blawgers make time for analysis while handling a caseload? Contrary to the usual phrasing, you can’t “make time”; Chronos has stopped manufacturing that, and we get the same 24 hours in a day that you, the king of England, and every one of his lords and commoners get. Nor can you “find time.” The only way to do this right is to set the time aside, preferably in advance; you “block time.”

There will be occasions where life intervenes. Someone schedules a hearing for an opinion day and you can’t move the argument date; you get an invitation for an irresistible speaking engagement; you need to attend a memorial service (preferably not your own). In those situations, you shrug and resolve to make it up, just as John is commendably doing here.

Elsewhere, Juli Porto continues to provide her readers with terrific nutshell summaries of new CAV decisions; Thomas Chappell, a former law clerk to the current SCV chief justice, posts an occasional essay on highly useful topics; Jay O’Keeffe posts dazzling notes when he can. John O’Herron posted actively through last summer; I hope he’ll resume analysis soon. Here at VANA, the next post is always just an opinion day away.

 


REPORT ON TWO IMPORTANT APPELLATE ITEMS

 

(Posted March 18, 2024) There’s significant appellate news out of Richmond, coming from opposite sides of Ninth Street.

 

A tweak to the preservation-rescue statute

I learned today that the General Assembly has passed, and the Governor has signed, a bill that expands slightly the wording of the appellant’s old friend, Code §8.01-384. For years now, that statute has eliminated the need for a party to keep renewing arguments on each adverse ruling again and again until final judgment. The general premise is that once a judge rules against you, you aren’t deemed to have waived the argument unless you expressly do so.

Supreme Court caselaw has generally embraced this lifeline against a ghastly Rule 5:25 death. There are commonsense exceptions: A litigant can still waive an argument where he “has abandoned the objection or has demonstrated by his conduct the intent to abandon that objection.” That’s from Kellermann v. McDonough in 2009. But generally, the court has applied the saving provision where the appellant has received an unmistakable adverse ruling and hasn’t backed off.

Three years ago, the Supreme Court issued a remarkable opinion that shouldered aside the statute. In Lucas v. Riverhill Poultry, 300 Va. 78 (2021), a judge ruled in limine that the plaintiff could not use a proposed expert witness at the eventual trial. The circuit court added, in language that I found superfluous, that its order was “without prejudice to plaintiff, by counsel, moving the Court to reconsider its ruling based on developments at trial.”

How is that superfluous? Because rulings made days or weeks before trial – come to think of it, even rulings made during trial – are interlocutory, meaning the court can always revisit them until 21 days after final judgment. A ruling like that is by definition without prejudice to a party’s right to ask the court to rehear the matter while it retains jurisdiction.

At the Lucas trial, the plaintiff didn’t renew the objection, knowing that he had the protection of §8.01-384 in his back pocket. He never expressly withdrew or waived the earlier argument, so the statute should allow him to appeal the exclusion of the expert.

Except the Supreme Court didn’t see it that way. It described the original ruling as “preliminary” and held that the plaintiff “deprived the circuit court of an opportunity to make a final ruling on the admissibility ….” That resulted in a Rule 5:25 waiver.

I recall being astounded at this opinion, and my pals in the appellate guild were, too. We foresaw the need, after Lucas, for each trial litigant to reassert at trial each issue on which the court had ruled before trial, on pain of a waiver ruling that seemed to fly in the face of the statute.

But now the legislative cavalry has ridden to the rescue. The new law, HB901, adds a provision that a litigant need not “move for reconsideration in order to preserve his right to appeal a ruling, order, or action of the court, even if such ruling, order, or action is without prejudice to a motion to reconsider.” The specific language makes it unmistakable that the bill was expressly designed to reverse the Lucas ruling.

My one caution is that there’s no emergency clause in the bill, so the new terms in the statute won’t take effect until July 1, 2024.

 

New proposed rule on temporary injunctions

As I noted in an essay here back in 2013, Virginia has never adhered to a specific set of rules, or even guidelines, for a trial court to consider in deciding whether to award temporary injunctive relief. We have an unhelpfully vague statute that requires the chancellor to be “satisfied of the plaintiff’s equity,” but nothing like the specificity of the Winter v. NRDC doctrine in federal courts. That’s left lawyers and circuit court judges trying their best to divine a Virginia standard.

If you’re one of those frustrated litigants or jurists, be of good cheer: The Robes have heard your cries of anguish. The Supreme Court of Virginia has posted to its website a proposed new Rule of Court that would specify the factors that go into temporary-injunction analysis. In reviewing it, you’ll see a lot of highly familiar language, especially if you’ve litigated injunctions in federal courts.

The court has set a deadline of May 1, 2024 to receive public comment on the draft rule. This is what you’ve been waiting for; take them up on the offer to participate in the decisionmaking process by submitting your comments. Here, I’ll even make it easy for you: The e-address for comments is scvclerk[AT]vacourts.gov, with the @ symbol in place of the bracketed characters. You’ll need to insert, “Draft Rule 3:26” in the subject line.

 


A TRUNCATED OPINION DAY AT THE SCV

 

(Posted March 14, 2024) It’s opinion day! Sort of. The Supreme Court of Virginia decides two appeals this morning, both by published order. But there’s no new analysis; both Warren v. Commonwealth and USAA v. Estep are affirmed on the reasoning of the Court of Appeals. Warren is a DUI appeal involving a circuit court’s decision to strike a venireman for cause and its exclusion of evidence relating to a claimed defense of necessity. In a quirk of timing made possible by last month’s Leap Day, the Court of Appeals handed down its published ruling one year ago today. Estep holds that a driver’s actions in loading the trunk of a car in a hotel parking lot suffice as “use of a vehicle” for insurance purposes.

Both decisions come in one-page rulings; Justice Powell dissents from the Estep result, but Warren is unanimous. Both of these appeals come from the January session, seven weeks ago, and both, coincidentally, arose in the Chesapeake Circuit Court.