[Posted February 8, 2008] Friday brings a spate of activity to the appellate landscape in Virginia. Here’s what’s happening:

The electrons are coming. The Fourth Circuit has given notice of the upcoming implementation of electronic filing of appellate documents. The system, which has been undergoing installation, testing, and an internal “tryout” for some time, will go live on April 1, and will become mandatory two months later, on June 1. Practitioners who are accustomed to e-filing in US District and Bankruptcy Courts will recognize the procedure; others had better get onto the learning bandwagon pronto. There are exemptions for pro se litigants, and for those forlorn neo-Luddite lawyers who manage to persuade the court that they just can’t file electronically. In addition, a specified list of documents must be filed in paper form, or in both paper and electronic formats.

The jurists are staying. Early this afternoon, both houses of the General Assembly elected Justice Goodwyn and Judge Millette to regular terms on the Supreme Court and the Court of Appeals, respectively. Today’s action was necessitated by Art. VI, section 7 of the state constitution, which gives Governor Kaine the right to make recess appointments. But those appointments expire 30 days after the legislative session convenes. And that 30 days was set to expire today, so today’s action comes just in the nick of time to keep both benches at their full complements. (The Fourth, alas, is a far different story; if only Congress and the president could reach five such accords, we’d be fully staffed in Richmond.)

The docket is dwindling. The Supreme Court hands down no fewer than seven unpublished orders today, deciding cases argued in the January session. There are three criminal cases. The companion drug conspiracy cases of Adams v. Commonwealth and Montgomery v. Commonwealth both get reversed (after the CAV refused even to grant a writ) because no one at the trial court bothered to prove that one of the alleged conspirators ever knew anything about cocaine. You can’t have a conspiracy, it seems, if only one defendant really knows what’s going on. The irony of these results is that even the defendant who knew what was going on get shaken loose, since the charge is not distribution but conspiracy. The other criminal appellant fares not so well, as the court affirms a conviction of driving after a habitual offender adjudication in Smith v. Commonwealth. Smith argued that the trial court impermissibly allow the prosecution to introduce an order of revocation, but his failure to object to a DMV transcript that showed the same information rendered the admission of the revocation order harmless at best.

In the civil context, there are four rulings today. Ailer v. Ailer involves either a gift or a loan (depending on which family member you ask) from parents to a son for a down payment on a home. The trial court had held that the mother (the father died before trial) had proved that it was a loan, and the son didn’t assign error to that ruling. Instead, he pinned all of his hopes on the statute of frauds, since even Mom’s testimony provided that he didn’t have to repay the “loan” for two years. But that gets him nowhere because, as the court explains in affirming today, the “agreement not to be performed within one year” part of the statute only applies where both parties won’t be performing within a year. Here. Mom and Dad were to give Junior the money immediately (and they did), so that statutory bar doesn’t apply. This isn’t new Virginia law, but it’s an important reminder of a limitation that many lawyers may not know about.

Elsewhere, the court affirms a trial courts decision to set aside a jury verdict in a title insurance case (Balzano v. First American Title); hands a public entity its latest in a string of appellate losses in FOIA cases (Rivera v. Long); and in the most intriguing “gotcha” ruling of the day, hands Mr. and Mrs. Homeowner a surprise win over a builder in a breach of contract case (Zambrana v. D.R. Horton, Inc.).

The Zambrana holding is remarkable for the unfortunate choice made by the builder. He alleged that the Homeowners had breached their construction contract. The agreement stated that in the event of their breach, he got to either retain the $81K deposit as liquidated damages, or else sue for damages and retain the deposit “as a prejudgment attachment by consent.” At trial, the judge ruled in favor of the builder, but ruled that he had proven zero damages, so he simply let the builder keep the deposit under the liquidated damages clause.

When I first read quickly through this procedural recitation, I didn’t catch the inconsistency; but it’s there, and it’s fatal to the builder. If he had just wanted the liquidated damages, then he shouldn’t have filed a suit. Under the contract, all he has to do it keep the money and go about his business. But he sued, and that constitutes an election to pursue the second remedy, a suit for actual damages. The trial court, you’ll recall, found that he had proven no actual damages. That means that the Homeowners get all of their money back, despite having breached the contract.

As all of these decisions are unpublished and will not appear in Virginia Reports, readers of this site who would like a copy of any of them may contact me by e-mail, and I’ll be happy to forward them.