ANALYSIS OF APRIL 15, 2010 SUPREME COURT OPINIONS[Posted April 15, 2010] What, you’re still worrying about filing your tax returns on time? The Supreme Court justices have already filed their returns, so today they have time to give us 18 published opinions from appeals argued in the February session — and a day early, at that. Two more appeals are decided by unpublished orders.
In equitable distribution, there’s a statutory rebuttable presumption that all assets acquired by either spouse during the marriage are marital. But what about debts? The Court of Appeals found that the same presumption should logically apply, since equitable distribution consists of, well . . . assets and debts. The Supreme Court gives us the final word today in Gilliam v. McGrady.
Husband and wife were married for 15 years before separating. Husband started a paint contracting company ten years into the marriage, and in running it, he played it close to the vest; he specifically kept his wife out of those affairs, claiming that she “had no business sense.”
Unfortunately, husband had no plain-old sense, because he violated one of Emmert’s Primary Laws of Peaceful Living: “Never screw around with the IRS.” Husband failed to pay trust fund taxes (for his payrolls), and when wife found out about it and complained, he told her that he couldn’t afford to pay the taxes.
Those of us with law licenses know that this is a wholly inadequate reason not to pay taxes, but that didn’t dissuade husband; he ran up over $100,000 in unpaid taxes, penalties, and interest. When the marriage dissolved, the trial court was faced with the problem of allocating that debt. Because at least some of it went to pay the couple’s living expenses, the trial court decided that the debt was marital, despite the fact that wife was kept strictly out of the company’s business.
The CAV affirmed, holding that the debt was presumptively marital, and that wife hadn’t overcome that presumption. But today, the Supreme Court reverses, holding that the statutory presumption relating to property doesn’t apply equally to debts. The legislature crafted a specific presumption in the part of the ED statute dealing with property, but it left that provision out of the debts subsection. That means that the matter goes back to the trial court, where the parties get to litigate the matter from square one using “traditional rules concerning the allocation of the burden of proof.”
In Johnson v. Hart, we learn today whether a beneficial owner of a legal malpractice claim can sue the attorney. Ordinarily, malpractice claims can’t be assigned. But the plaintiff here is the beneficiary of an estate who claimed that the estate’s attorney’s negligence caused her to be removed as executor of her mother’s estate, costing her big bucks (the opinion doesn’t describe how big).
The daughter unquestionably filed this suit in her own name, not on behalf of the estate. That fact is case-dispositive, the court rules today, because the lawyer represented the estate, and only the estate (technically, the administrator CTA) had standing to sue. Otherwise, this case is no different from a garden-variety assignment, which is clearly prohibited under existing caselaw.
There’s an important procedural lesson in this case that will apply in a wide variety of case areas, even those well-removed from the malpractice field. The defendant attorney objected to the trial court’s application of Code §8.01-13 (the beneficial-owner statute) to permit the daughter to sue. The trial court held that the statute applied, but ruled in favor of the attorney on other grounds, granting him summary judgment. He endorsed the SJ order, “Seen and consented to.”
A fair number of trial lawyers are sucking wind right now as they read these words. They’ve been taught never to consent to an order if it contains any sort of ruling against their client, for fear of waiver. The court today calms the nerves of all those lawyers (well, at least the ones who will read either the slip opinion or this web site) by ruling, pursuant to Code §8.01-384, that this endorsement isn’t a waiver of a specifically-raised prior objection. Under the 1992 amendments to that statute, an objection once raised remains viable unless it is waived. And the court holds today, in affirming based on the lawyer’s assignment of cross-error, that the attorney “cannot be deemed to have abandoned this position by acquiescing in a summary judgment order in his favor.” (Emphasis mine.)
Perfecting your record by preserving objections is serious business, of course; it remains (by far) the #1 topic that trial lawyers want to hear from me in CLE presentations. But this opinion reaffirms that you don’t have to be either slavish or manic about it. A clearly-stated objection to a trial court’s ruling will almost always suffice to get your issue before the appellate court.
In case anyone somehow hasn’t gotten this message by now, I’ll restate it here, as clearly as I can: The Supreme Court of Virginia really, really, really doesn’t like it when trial judges take issues away from juries. That’s why, in my opinion, we don’t have a Daubert rule in this Commonwealth. It’s why summary judgment is a disfavored remedy in Virginia courts, in contrast to federal court. And it’s why Kimble v. Carey gets reversed and remanded for a new trial today.
This case arises under the rescue doctrine, which is (in the court’s words today) “a limitation on the defense of contributory negligence.” When a person comes upon a situation in which another’s life is in danger, the rescuer cannot be found guilty of contrib, unless she acted rashly or in reckless disregard for her own safety.
The rescuer here unquestionably came upon a situation in which the victim’s life was at least apparently in danger. Driving on a rural Interstate highway one very dark night, she saw a car that had rear-ended a construction truck; the driver was slumped over the wheel and the car was on fire. She decided to stop and help if she could. Unfortunately, when she attempted to wave down a passing motorist to get help, the driver of that car couldn’t see her due to the dark conditions, so he struck her at 65 mph. (I will admit to cringing when I got to this part of the opinion.)
The rescuer sued the victim of the first crash and the driver of the car that hit her; she eventually nonsuited the latter defendant. After filing suit, she discovered that the original victim had a BAC of .15, which is far too high to have a steering wheel in your paws; she sought leave to amend her complaint to assert his intoxication to allege that he was willfully and wantonly negligent in creating the situation that led to her injuries.
The trial judge said no. He reasoned that in a rescue case, the victim’s actions in bringing about the danger don’t matter. And in any event, his (allegedly wantonly negligent) conduct wasn’t directed at his rescuer. For the same reason, the court excluded the plaintiff’s solid-gold evidence of the BAC, which we can agree would have set your average juror well down the road to a seven-figure verdict.
Based on what I wrote above, you will probably be surprised to read that the Supreme Court today affirms both of those rulings, finding them to be perfectly consistent with established caselaw. Since the rescue doctrine is a form of special privilege given to those who take risks on behalf of others (something I’d hope I would have the guts to do in a similar situation), it rules that the lofty “rash or reckless” standard is enough protection for a civil plaintiff.
No; the reversal comes from the trial court’s decision to grant a motion to strike after all of the evidence was in at trial. The court found that, as a matter of law, the rescuer was indeed reckless by standing in the middle of a travel lane on an Interstate highway on a dark night, and that reasonable minds could not disagree on that conclusion.
Seven reasonable minds disagree today – at least with the conclusion that this wasn’t a jury issue. Reaffirming that solid, oft-reiterated preference for jury resolution of factual disputes, the court reverses the case and sends it back for a new trial. I’ll venture to read between the lines here, that the court is frustrated that the trial judge didn’t at least let the case go to verdict (even if he planned to take the verdict away), because then today’s opinion would end with “Reversed and final judgment” instead of with the word every trial judge hates to see: Remanded.
The plaintiff in Idoux v. Helou made the same mistake as did the plaintiff in last year’s case of Estate of James v. Peyton: He sued a decedent’s estate instead of the personal rep. As the court has often held, you can’t sue an estate, which is a collection of property; you have to sue the fiduciary. As in Estate of James, the statute of limitations expired before the plaintiff tried to substitute the proper party, and as was the case in Estate of James (and several predecessor cases in which lawyers made the same mistake), this suit perished as a result. The court affirms that ruling based on the same rationale as in the earlier decision.
In case plaintiff’s lawyers are shaking their heads at the ruthlessness with which this rule is enforced, I have news for you: This decision was obsolete before it was handed down this morning. This year, the General Assembly created a new statute, designed to overturn the doctrine of Estate of James, and the Governor signed the bill earlier this week. It applies to all suits pending as of the new statute’s effective date, which is as close to retroactivity as you’re likely to see. Here’s the text of the new statute, which will become Code §8.01-6.3:
Actions or suits against fiduciaries; style of the case; amendment of pleading.
A. In any action or suit required to be prosecuted or defended by or in the name of a fiduciary, including a personal representative, trustee, conservator, or guardian, the style of the case in regard to the fiduciary shall be substantially in the following form: “(Name of fiduciary), (type of fiduciary relationship), (Name of the subject of the fiduciary relationship).”
B. Any pleading filed that does not conform to the requirements of subsection A but otherwise identifies the proper parties shall be amended on the motion of any party or by the court on its own motion. Such amendment relates back to the date of the original pleading.
This new law comes too late to help Idoux, whose lawsuit against the estate is gone forever. But future mistakes by lawyers (something we really shouldn’t have to be talking about, given how long-standing this doctrine was) won’t be punished anywhere near this severely.
City of Alexandria v. J-W Enterprises is a tragic tale set in the context of an action for contribution among joint tortfeasors.
An Alexandria location of the International House of Pancakes chain agreed with the Alexandria Police Department to hire off-duty officers to provide a police presence at the restaurant. One night, a group of diners left without paying, and the officer at the restaurant pursued them in order to get them to come back inside and pay. Instead, they got into a car and sped off in the parking lot. The officer positioned himself at the exit of the parking lot and motioned for the car to stop. Instead, the driver sped toward the officer. Fearing for his life, the officer stepped aside, drew his pistol, and fired several times at the vehicle, killing one passenger.
The decedent’s estate sued the City, which entered into a settlement agreement with the family. The City also agreed to file a contribution action against the IHOP franchisee, and to turn over to the family whatever it recovered in that action. It filed that suit, but after a bench trial the trial court granted judgment for the franchisee on five alternate grounds. (This is a judge who knows how to insulate his rulings from reversal.)
Today the Supreme Court affirms that decision, finding it necessary to analyze only one of the grounds: It affirms the finding that the officer was acting in an official police capacity at the time of the shooting. Issues such as this are matters for the finder of fact, and the trial judge had evidence before him from which he could reasonably conclude that the officer was acting in a public capacity, off-duty or not. Specifically, the officer testified that when he saw the patrons leaving, he believed that they were committing a misdemeanor in his presence, and no one from the restaurant directed him to arrest them. Under those circumstances, the trial judge could easily have reached the factual conclusion he reached, and the appellate court, as usual, won’t touch factual findings that are supported by at least some credible evidence.
The fact-intensive nature of this finding means that if you have a case similar to this one, you need to pay careful attention to the agreement between the police or sheriff’s department and the employer. In this case, the agreement was heavily weighted in favor of departmental control over the officer, even while in an off-duty capacity. Other relationships might well be less-carefully defined, so practitioners handling cases like this should spend plenty of time exploring that relationship.
Probably the most instructive case of the day, gauged purely by the number and variety of the legal issues decided, is Hawthorne v. VanMarter. VanMarter is a Roanoke County police officer who collided with a car while in high-speed pursuit of a speeding vehicle. The collision resulted in the death of the driver (Hawthorne’s decedent) and serious injuries to her passenger. The officer had not activated emergency lights or his siren before the crash, so the plaintiffs probably had no advance warning of their peril.
The officer raised a plea in bar, contending that he was protected from liability for simple negligence by sovereign immunity. He maintained that due to the pursuit, Virginia law shielded him from liability for all but gross negligence (which he figured would be hard for the plaintiffs to prove at trial). The trial judge took up this matter in an ore tenus hearing, since no one asked for a jury on that issue. At the hearing, the plaintiffs offered no evidence; the court understandably accepted the officer’s description of the events and sustained the special plea.
Soon afterward, the plaintiffs moved the court to rehear that matter. They asserted that they had located two witnesses who were within earshot, and said they never heard any speeding vehicle before the crash. If that’s true, it presents a jury issue on the officer’s story. A skeptical jury might conceivably find that he made up the whole story in order to avoid getting himself in hot water.
But the trial judge refused to reopen the matter. He noted that the plaintiffs had known these witnesses’ names before the hearing, so the exercise of reasonable diligence (such as picking up the phone) would have given them this key information in plenty of time to permit them to testify. The trial went on, solely as to gross negligence, and the jury returned a defense verdict.
Half of this combined appeal vanishes immediately. The estate sued by counsel in the trial court, but the administrators elected to proceed pro se on appeal. The Supreme Court grants the officer’s motion to dismiss the appeal, because as we learned in Kone v. Wilson in 2008, personal representatives can’t appear pro se in court. That’s because while the law gives the personal rep the right of action, the cause of action belongs to the beneficiaries. Since no one but a licensed attorney can represent another in litigation, the administrators’ decision to proceed without an attorney proves to be a perfect example of a false economy. (The court predictably refuses the administrators’ invitation to create a distinction between suing in the trial court and handling an appeal. You need a lawyer in both places.)
Turning to the passenger’s appeal, the court affirms the defense judgment on several grounds. The key holdings are:
1. The trial court had the discretion to refuse to reopen the evidence to permit the two witnesses to testify on whether the officer really was involved in a pursuit. Since the plaintiffs knew about the witnesses in advance, the court finds that they waived the right to have them testify in a hearing that had already taken place.
2. Venue was originally laid in the City of Roanoke, on the basis of the officer’s residence and his alleged substantial business activity in the city. But he succeeded in getting venue transferred to Roanoke County, where the crash occurred, by proving that he had moved out of the city a few months before suit was filed. The Supreme Court agrees with the trial court that his contacts within the city weren’t sufficient to establish permissive venue there.
3. The court affirms the trial court’s limitations on voir dire and its refusal to strike several veniremen for cause, and agrees that certain jury instructions accurately presented the relevant law to the jury.
Of these rulings, I found one to be at least potentially troublesome. On the venue issue, the plaintiffs presented evidence that the officer had attended college classes in the city for several months before suit was filed. His other contacts within the city seemed to be more personal and recreational (the venue statute requires “substantial business activity”), but this one sounds like it might qualify. Here’s what today’s opinion says about the matter, in full: “Although VanMarter testified about his enrollment in classes at a community college in the City of Roanoke, the record does not provide any further details about these classes and does not indicate that they were related to his work as a police officer.”
That’s it; that’s the full extent of the court’s analysis of this important issue. I’m left to wonder whether the last clause, in particular, requires that the “substantial business activity” requirement can only be satisfied by activity that relates to the subject matter of the suit. I seriously doubt it; I would think that if the officer had a side business as, say, a real estate investor, and was taking classes in property management, that ought to qualify for venue purposes.
My advice is not to read too much into this particular clause of today’s opinion. Perhaps if the classes had turned out to be in English Literature or Philosophy, the justices would have classified the attendance as being for personal, non-business reasons, and the statement that the record is insufficient will probably be the extent of the court’s future citations of this doctrine. Nevertheless, since venue battles ye shall always have with ye, this opinion warrants study by trial lawyers as the court’s latest pronouncement on this often-vital litigation issue.
Beware the wrath of a mother whose son is scorned. Clark v. Commonwealth starts with a little boy who was sufficiently disruptive on his school bus that the bus driver asked the school administration to suspend his riding privileges. The bosses agreed, but that decision didn’t sit well with the grade-schooler’s mother. She decided to blame the bus driver.
The mother appeared at the school at 7:00 am one morning and walked up to the recently-arrived bus and started fussin’. Specifically, she told the driver, “I’m going to get you, . . . I don’t care where you at, if you’re on the school ground, if you’re in the school, or you’re in the grocery store . . ..” (No; surely, not there.) She added a dose or two of what I will charitably describe as unladylike language before leaving when the principal arrived.
That afternoon, when the driver returned to school to pick up students, the mother was back. She walked up to the open door of the bus, saying, “like I say, I’m going to get you.” The driver closed the door, and the mother stood outside, presumably glowering at her adversary.
The question in this assault case is whether the mother committed some overt act intended to place the bus driver in fear of bodily harm. A panel of the Court of Appeals reversed, noting that words alone cannot support an assault conviction, but the en banc court affirmed the trial court, based on the totality of the mother’s actions. Today the Supreme Court agrees, again affirming the conviction. Noting that “Words and prior conduct are highly relevant in shedding light on intent and the context in which certain actions transpired” (a phrase that will predictably make its way into numerous briefs filed by prosecutors from now on), the court rules that the mother first made the threat of future violence in the morning, and then overtly returned to the school and came up to the bus in the afternoon. That was both a fulfillment of her original threat and an overt act that satisfied the definition of assault.
In Jones v. Commonwealth, a police detective improperly seized Jones’s wallet and took a nice, long peek inside. The court today finds that this action, taken during a Terry stop, violated Jones’s constitutional rights. So why is Jones reading today’s opinion and still complaining?
Here’s why. Portsmouth detectives saw Jones’s car “parked in a public roadway impeding traffic.” Since this was in a high-crime area, they watched closely as a pedestrian leaned into the driver’s window and appeared to complete what one detective had seen a gazillion times before – a hand-to-hand drug transaction.
According to the opinion, the detectives then “stopped Jones’s vehicle,” which leads me to believe that he was no longer impeding traffic. But this was a Terry stop, and the detectives unquestionably had an articulable suspicion. One detective spoke with Jones who, despite being the driver, said he had no identification on him. He gave the police a name that wasn’t Jones and a Social Security number, and somehow, those two eventually matched up. But in the meantime, the detective, in consideration of Jones’s overly fidgety demeanor, decided to conduct a pat-down for weapons and contraband.
Instead of those items, what he found was a wallet. This surprised him, because Jones had disavowed possession of any ID. But the driver had a ready explanation” “It’s my cousin’s wallet.” Now, I don’t know about you; I’ve got quite a few cousins, and I like them and all, but they can’t have my wallet. The detective decided to look inside, and he found there a check with the name Michael Eugene Jones printed on it. Now we’re getting somewhere, the detective reasoned; he then allowed Jones to borrow some silver jewelry (a pair of matching, connected bracelets) as a consolation prize for having been placed under investigative detention.
At this point, our story takes on a surreal glow: The detectives asked if they could search the car. Jones replied, “Sure; no problem,” probably safe in the knowledge that there was no ID in the car, either. Perhaps he failed to recall the presence of the heroin and the two guns, which the detectives inevitably found, resulting in today’s charges. (No, he’s not before the Supreme Court on a charge of impeding traffic.)
The question today is whether Jones’s inexplicable consent to the search was tainted by his improper seizure after the detective unconstitutionally searched his wallet. The Supreme Court unanimously finds that the search of the wallet was indeed unconstitutional, since it clearly wasn’t either a weapon or contraband. But it just as unanimously finds that the search wasn’t tainted at all, because Jones’s detention was permissible. That’s because the detectives had apparently witnessed a crime, and were investigating just who, indeed, they had with them. Justice Millette, writing for the court, summarizes the court’s holding in two cogent lines:
Although the seizure of Jones’ wallet was unlawful, Jones’ detention remained lawful because at the time of the seizure the detectives were still trying to ascertain Jones’ identity, which was within the scope of the traffic stop. Because Jones was lawfully detained at the time he consented to the search of his vehicle, his consent was not the result of an illegal detention and remained valid.
The final criminal opinion of the day involves someone we’ve met before. Orndorff v. Commonwealth is the second appeal by a woman who was convicted of murdering her husband. At trial, she maintained that the killing was in self-defense; but after the conviction, she was diagnosed with dissociative identity disorder, something that was once called multiple personality disorder.
Her lawyers moved for a new trial based on after-acquired evidence, claiming that she could now establish an insanity defense. Such a motion is analyzed using a four-part test, evaluating whether the new evidence:
(1) appears to have been discovered subsequent to the trial; (2) could not have been secured for use at the trial in the exercise of reasonable diligence by the movant; (3) is not merely cumulative, corroborative or collateral; and (4) is material, and such as should produce opposite results on the merits at another trial.
Items (1) and (3) above were never questioned. In her first trip to the Supreme Court in 2006, Orndorff succeeded in getting a reversal based on the trial court’s misinterpretation of item (2); the court held that she satisfied the reasonable-diligence standard. The case was then remanded for consideration of the fourth component.
The trial court conducted a lengthy evaluation, including review of a transcript, reading his own detailed notes (100 pages’ worth), and additional briefing and argument. It concluded that Orndorff had failed to satisfy the fourth part of the test because she had failed to demonstrate that the new diagnosis was material, and because she had not shown that the admission of the evidence would lead to a different result. At that point, it was back to the appellate courts for the parties.
The Court of Appeals affirmed, deciding only that the trial court had correctly determined that Orndorff had failed to meet her burden to show that a different result was likely. It declined to address the materiality component. Today, the Supreme Court affirms.
In conducting this evaluation, the trial judge acts as a fact finder, judging the credibility of witnesses just as though he were a jury. That might sound counter-intuitive, but it’s perfectly consistent with the caselaw on after-acquired evidence. The court finds today that the trial judge had ample evidence from which he could conclude that, among other things, the admission of the evidence would have created a jury issue on sanity.
There is one issue that remains undecided by this opinion. Both parties spent considerable time on brief in arguing whether a diagnosis of this disorder can ever justify an insanity defense. But the court decides the case on narrower grounds, so that question will await another appeal.
In addition to these three published opinions, there’s one unpublished order in a criminal case today – Hutcherson v. Commonwealth analyzes an appellant’s claim that the prosecution adopted an inconsistent position in the trial court. The result is a highly-split decision in this appeal over a rubber check.
The check itself couldn’t have been too large, as one of the two convictions was for petit larceny. That means it was for less than $200. (The other charge was for uttering a worthless check.) Still, Hutcherson took his case to a jury of his peers, and that jury pounded him with six months to serve on each offense.
The bad check was passed at a bank in Danville. Hutcherson contended that he couldn’t have passed it, because he was in Lynchburg at the time. He even had proof: A check drawn on another branch of the same bank, 20 minutes before the bad one appeared in Danville.
Some of my readers from Tidewater or the State of Northern Virginia may not know Virginia geography well enough to know that Danville and Lynchburg are 65 miles apart. So if Hutcherson really did cash the check in Lynchburg, he couldn’t have been in Danville 20 minutes later, unless he’s figured out how to fax himself down there. The problem was, how to get the check into evidence? Hutcherson asked for a continuance to enable him to get some proof – either testimony from a teller, or else a video from the Lynchburg branch’s security cameras. The trial judge said no.
At that point, evidently as a compromise, the prosecutor agreed to stipulate to the authenticity of the Lynchburg check, so it was admitted into evidence. Unfortunately for Hutcherson, the trial also featured testimony from a Danville teller who pointed at the defendant and said, “That’s the guy.” The jury chose to believe the teller, and that was all for Hutcherson.
In closing, the prosecution argued, among other things, that there was “no live witness who can say he was in the bank in Lynchburg. . . . That is a[n] authentic check. Who cashed it? I don’t know.” And this, dear readers, is the heart of today’s controversy. The issue is whether the prosecutor tried to “impeach” his own stipulation by arguing that no one could testify who passed the Lynchburg check. The trial court thought there was nothing untoward about the argument, and the Court of Appeals agreed. So do three justices today.
That leaves four votes unaccounted for, and they belong to today’s majority, which reverses the conviction and dismisses the indictments. The court finds that “after this stipulation, the Commonwealth should have been precluded from arguing that [Hutcherson] presented no evidence of his presence in Lynchburg.” The majority also notes that uncontradicted evidence from a forensic documents examiner established that it was very unlikely that Hutcherson had signed the Danville check, so this one doesn’t even go back for a retrial.
At just 3½ pages, this ruling is easily the shortest decision of the day, but it has given me the greatest pause. I think the dissent (Justice Lemons, on behalf of Justices Keenan and Millette) is right to object to this result. Here’s why:
1. The prosecutor only stipulated to the authenticity of the document; not to its materiality or to its persuasive value. A stipulation of authenticity is merely a threshold matter for admission of a document into evidence, not a conclusive concession that the document establishes an element of an offense or of an alibi. “Authentication is the process of showing that a document is genuine in the sense that it is what its proponent claims it to be, or comes from the source claimed.” C. Friend, The Law of Evidence in Virginia (6th ed.) §15-1. The prosecutor effectively stipulated that the document was indeed a check that had been cashed in the Lynchburg branch, and maybe he even stipulated as to the time of day. But I don’t see anywhere in today’s order that he stipulated as to who presented it. The issue of this alibi defense is that Hutcherson couldn’t be in two places at the same time. He unquestionably presented some evidence that showed he was in Lynchburg, but unfortunately . . .
2. . . . he presented it to a jury, and that jury elected to believe the Danville teller. In my view, a stipulation that a given document is authentic doesn’t constitute an admission that the jury should accept all possible inferences from it. It only means that it can be admitted into evidence, after which the jury gets to evaluate it for whatever the jury thinks it proves. Hutcherson still had to prove that he was the one who appeared at the bank in Lynchburg, and assuming he himself testified to that, the jury had the right to disbelieve him.
3. The same thing goes for the document-examiner’s testimony. The order doesn’t state whether this testimony was part of the prosecution’s or the defendant’s evidence. If he was a defense expert, the jury was entitled to weigh his credibility, too. In my opinion, once the prosecution presented the Danville teller’s “J’accuse” testimony, it put on a prima facie case that the jury was entitled to believe.
And now, having probably written more words in my analysis of this order than the order itself contains, I’ll move on.
How about this: A short, understandable opinion on the difference between vested and contingent interests, complete with a discussion of whether those interests were subject to conditions precedent or subsequent. Only Justice Russell, writing with his usual clarity, can pull this off in less than eight pages, and he does so in Lane v. Starke. For the T&E lawyers out there, you’ll find this smooth sailing. For those of you who aren’t sure if you can spell T&E, you might be surprised that you’ll be able to follow along better than you think. In case you’re worried, you can relax; there’s nary a mention of the rule against perpetuities.
Dad made a will before his death in 1991. The residual clause (where he gives away the bulk of his estate, excepting specific bequests and devises) gave his wife a life estate in everything. Upon her death (which eventually followed in 2002), he gave Blackacre to No. 1 Son and Brownacre to his two daughters. The will contained an express condition, though, in each instance: The heir had to pay unto the estate half of the assessed value of the properties.
I was actually proud of myself when I read this opinion a few minutes ago, in that I recognized the ambiguity in those words: As of what date are the heirs supposed to calculate the assessed value? Somehow, I got that issue right – I am not even close to being an estate lawyer – and the court today, observing the ambiguity, applies the rule of early vesting to note that the interests vested as of the date of Dad’s passing.
The court finds that the express conditions were conditions subsequent, since Dad postponed the kids’ enjoyment of the property until some time after his death. Accordingly, the kids didn’t have to make their payments until Mom died, and the assessments are to be calculated as of that date.
This ruling is bad news for No. 2 and No. 3 Sons, who would have acquired an intestate share (1/5 each) of all of the properties if the court had ruled the other way. The opinion doesn’t note whether there was other property in which they could share, and we’re left to wonder what they did to get cut out (well, trimmed back, anyway) like this.
As long as we’re on the subject of decedents, let’s take up Shilling v. Baker, an internecine dispute over the family cemetery. Actually, the heart of the dispute is whether there was a cemetery at all.
If you drive the country roads of this Commonwealth, as I love to do, then you’ve seen family cemeteries from the roadside in countless rural locations. The Baker property in Rockingham County contained a spot on a scenic hillside where the ashes of departed family members have been scattered, starting with the family patriarch in 1949. A series of plaques have been placed there, and the area has long been delineated with a “chain-rope fence.”
In 1991, a grandson of the patriarch got title to the land; the ceremonies continued, and he didn’t raise a fuss. He allowed his aunt’s remains to be buried in an urn there in 1999, and permitted the erection of a larger wrought-iron fence around the area seven years later.
The first problem with all this was that in 1984, the county had enacted a zoning ordinance that defined (for the first time) cemeteries and regulated land put to that use. The second problem, which triggered this litigation, was that the grandson contracted to sell the land to a buyer from outside the family, who wanted to move the memorial area far down the hillside.
Before you go getting any ideas about an Alfred Hitchcock movie, keep in mind that there are no bodies buried here; with the exception of the burial of the one urn, all the rest of the ceremonies have consisted of the scattering of ashes. Except for the markers, you wouldn’t be able to distinguish this tract from any other hilltop, even with a metal detector. The ultimate question in this case is whether you can have a cemetery without having a corpse buried there.
If the property really was a cemetery, then its prior use for that purpose means that it is grandfathered (I beg your pardon for the unavoidable pun) right straight through the zoning ordinance. If it wasn’t, then its use for that purpose isn’t entitled to special consideration.
The trial court found that since no one was buried there, it wasn’t a cemetery as of 1984. Just scattering cremains (the ashes from a cremated body) on a site isn’t enough to make it a cemetery, the court ruled. It therefore ruled in favor of the grandson in his cousin’s declaratory-judgment suit and in the consolidated BZA appeals. The case then headed to Richmond for appellate consideration.
This appeal leaves the court divided; by a 4-3 margin it affirms the judgment, finding that the property wasn’t a cemetery back in 1984. The majority evaluates several statutes before concluding that an actual burial is required before a property can be regarded as a cemetery. Justice Koontz dissents; writing for Justice Lemons and Senior Justice Carrico, he would hold that the scattering of ashes is merely one of many means of laying a loved one to rest.
The other land use case decided today, Schefer v. Falls Church, is a uniformity challenge involving lots that don’t conform to the minimum lot sizes in the local zoning ordinance. Schefer owned twelve small lots in a zoning district that required a 7,500-square-foot lot size. For years, the ordinance limited building heights to 35 feet; but in 2006, the City amended the ordinance to limit further the height of these smaller lots (which the ordinance defined as “substandard”). The limit was the ratio of the actual lot size, divided by 7,500, times 35 feet. One of Schefer’s lots was 6,000 square feet, so the effect of the new ordinance was to reduce his maximum building height to 28 feet. Essentially, the smaller your lot is, the shorter the building has to be.
That didn’t seem fair to Schefer, so he filed a DJ action, seeking a declaration that the ordinance ran counter to state law and deprived him of equal protection. The EP argument was a facial challenge, so when the matter came on for trial, Schefer sat back and argued that it was up to the City to introduce evidence of the fact that the ordinance was reasonable and not arbitrary or capricious. The learned trial judge disagreed and entered judgment for the City.
Today, the Supreme Court unanimously affirms. It holds first that the regulation was indeed uniform. Schefer argued that the law needed to treat standard and substandard lots the same, or else it wasn’t uniform in its application. The Supreme Court finds that it’s perfectly permissible to treat the class of standard lots in one fashion and the separate class of substandard lots in another way. The ordinance was uniform within those two classes, and didn’t have to be applied identically across those two classifications.
On the equal-protection challenge, the court notes that the burden is on the party challenging an ordinance to first prove that it’s clearly arbitrary, capricious, or unreasonable. If he does that, then the burden shifts to the defender of the ordinance. By sitting back with his arms metaphorically folded at the counsel table, Schefer failed to adduce evidence to meet his initial burden of proof, so he loses that argument from the start.
And that’s too bad; this contention might well have had some juicy aspects. For example, if he had chosen to go forward with evidence, Schefer might have adduced testimony about the number of substandard lots in similarly-situated areas (within the same zoning classification, of course) with 35-foot-high rooftops, and then argued that the sky had never yet fallen in the decades in which such properties had existed. In my view, the toughest possible issue for the City would have been justifying this new height limitation on a rational basis other than giving it another hammer with which to crack down on substandard lots. But Schefer left that card on the table, so we won’t know how that hand would have played out.
Sexually violent predators
The latest ruling under the Sexually Violent Predators Act is going to make civil libertarians howl in protest. In Boyce v. Commonwealth, the court affirms the civil commitment of a former inmate based in part on a criminal charge that was the subject of a nolle prosequi. At the evidentiary hearing, a clinical psychologist testified that he believed that Boyce was indeed a sexual predator who would likely commit sexual crimes. He based his views in part on an indecent-liberties charge that had been withdrawn in 1979.
The psychologist stated that he didn’t assume that Boyce had actually committed the offense. As set forth in the opinion, here is the heart of his views of that charge, and the source of the libertarians’ future wailing and gnashing of teeth:
[f]rom an actuarial standpoint, it doesn’t matter whether [Boyce] did it. The reality is that individuals [who] are charged with more sexual assaults have a higher risk of being re-convicted [sic] of a new sex offense. It doesn’t matter whether he did it. The reality is that research indicates that those charged have a higher risk of re-convicting [sic] in the future. (Alterations in original)
Did you follow that? The doctor has opined that the mere fact that a guy is arrested for a sexual crime, whether he’s convicted or not, makes it statistically more likely that he will be convicted in the future of a new sexual offense.
Partly on the basis of this evidence, the Supreme Court affirms the commitment. In truth, this part of the testimony is but one element in the decision; the court also notes that the doctor’s testimony was based on a large number of circumstances, specifically including three actual convictions for sexual offenses between 1979 and 1994. In that context, even the libertarians will understand.
The problem is that the evidence as a whole included that testimony, and unless the justices were prepared to rule its inclusion harmless error as a matter of law, it had to either reverse for a new adjudication (on the assumption that the introduction of inadmissible evidence is presumed to result in prejudice) or else find that it’s okay to commit someone based on an actuary’s view of what it means to be charged but not convicted of a crime. The court today takes the latter path to affirming the judgment. In the justices’ defense, I’ll mention that the nolle prosequi occurred on the same day on which Boyce pleaded guilty to a wholly separate sexual offense, so this looks awfully like a plea deal in which the prosecutor decided that one conviction would be enough for his purposes.
SVPA proceedings are quasi-criminal, so does this mean that prosecutors can now use statistical probabilities to prove a criminal defendant’s guilt? Not in my opinion; the justices would never stand for such a thing in a society that insists upon proof of guilt beyond a reasonable doubt. But it’s acceptable to civilly commit someone for psychiatric treatment based in part on such testimony. Today’s ruling points out that SVPA proceedings really are a class apart from other forms of litigation.
There are two insurance-law decisions today. Simpson v. Virginia Municipal Liability Pool involves a claim by a deputy sheriff arising out of injuries he sustained while arresting a less-than-cooperative motorist.
It was probably chilly on the February afternoon when Malcolm Robertson decided to go for a spin in Nottoway County. No doubt in order to keep himself warm from the inside, he brought along a 40-ounce bottle of beer and popped the top while he tooled down the highway at a cool 68 mph.
That glint of silver you see in the median is the chrome from a State Trooper’s cruiser. His radar picked up Robertson at the aforementioned speed, at which point the chase was on. Yes, chase; because Robertson wasn’t about to do anything as pedestrian as pull over. (In fact, a pedestrian is what he should have been, because his license was suspended.) He took off, trying numerous maneuvers in an attempt to lose the trooper.
But the trooper had access to a radio, and soon other law-enforcement officers were on their way. One of those, Deputy Charles Simpson, joined the trooper as they tried to stop Robertson. After a crash in which, happily, no one was injured, the three men got out of their respective cars. The deputy and the should-be pedestrian approached each other, and when they met, the trooper tackled Robertson from behind.
In the process of attempting to handcuff Robertson while the three men were on the ground, Simpson sustained an injury to his left shoulder. He eventually filed a civil suit against the ne’er-do-well. At issue in this litigation is which insurance carrier, if any, is required to defend the suit and cover the deputy’s injuries.
On the assumption that you can’t tell the insurers without a scorecard, here are the interested parties: GEICO covered Robertson’s car (just because his license was suspended doesn’t mean he was so irresponsible as to drive without insurance); National Grange covered the deputy’s personal car, and thus afforded him UM protection; and Virginia Municipal covered the deputy’s car, owned by the County, so it also had UM coverage.
The common issue in this case is whether the relevant driver was using or occupying his car at the time of the injury. Use doesn’t require actually driving; you can use your car by putting it in park while you make a cell phone call, for example. But all three men had stopped driving, and all three had climbed out and walked some distance (the trial court found that distance to be ten feet) away. The injury clearly didn’t arise from any act of occupying a car, so the only remaining question is whether anyone was using a vehicle at the time.
The Supreme Court today affirms the trial court’s finding that no one was using a vehicle, so none of the policies cover this injury. The deputy used his car to pursue, stop, and apprehend Robertson. As today’s opinion points out, “all those purposes had been accomplished” at the time of the injury, so none of the policies apply.
The other insurance case, Copp v. Nationwide Mutual, starts with a typical American pastime: a fistfight among neighboring college students. These students were from the higher-academic institution in Blacksburg, and tempers flared during a nice, normal game of beer pong back in 2002. I’ll fast-forward to the meaningful part – Copp found himself angry and ready to fight, but unfortunately outnumbered, caught, and surrounded by people he figured were Bad Guys. He thus started swinging his arms in an attempt to get away; one of those arms had his fist attached to it and unfortunately that fist impacted one Mr. Jacobson in the eyeball. The resulting orbital fracture required two surgeries.
Jacobson sued, of course (another solid American pastime), and Copp asked Nationwide to defend him under his umbrella policy. But Nationwide pointed out that the suit alleged only intentional conduct, and its policy clearly excluded coverage for intentionally-inflicted injuries. (For this reason, many plaintiffs’ lawyers add a count alleging negligent injury, so as not to void coverage. If the suit alleges even one claim that is covered, the insurer has to defend.) Copp answered that the policy exclusion itself had an exception, for injury intentionally inflicted in the defense of person or property. He argued that he was just defending himself, so the exception should apply, in which case he gets coverage.
In the trial court and on appeal, the insurer relied on something called the eight-corners rule. That rule provides that duty-to-defend disputes are adjudicated by looking only at the four corners of the policy and the four corners of the complaint. If the complaint alleges claims that are covered, then the insurer must defend; if not, the insurer can safely remain a bystander to the tort litigation. Since Jacobson’s suit mentioned nothing about self-defense, the eight-corners rule operated to cut off coverage.
The trial court bought that analysis. Indeed, it didn’t even consider the policy exception for self-defense, because the lawsuit didn’t raise that issue. On appeal, Copp argued plausibly that no sane plaintiff is going to allege that the defendant acted in self-defense, so the strict use of an eight-corners rule would always defeat the exception; it would literally never apply.
As of today, at least in a dispute like this, Virginia now has a twelve-corners rule. The Supreme Court holds today that it’s appropriate to consider the answer as well, to see if the insured raises any issues that would bring the policy into the case. As for Messrs. Copp and Jacobson, one hopes that they have graduated from beer pong to less volatile pursuits by now, since they’re probably pushing 30 or so. Maybe chess; very few fistfights there.
The court takes up the potentially vexing question of what certain language meant a hundred years ago in Bailey v. Town of Saltville. At issue is a railroad right-of-way that ran through a family farm in Washington County.
Way back in Nineteen-Aught-Nine, the owners of the farm shook hands with the Norfolk & Western Railway (permit me an element of personification here; I know railroads can’t shake hands) over an agreement to give the company an 80’ right-of-way to permit the railroad to run through their farm. The couple got the princely sum of $250, plus several practical concessions including things like regrading their property for their benefit. The parties simultaneously executed an agreement to that effect, and a deed conveying the property.
The deed didn’t specify the exact nature of the estate conveyed, in that it never used the words fee simple or easement. Nevertheless, it contained a general warranty, and both documents got recorded in the land records.
Many years later, the railroad discontinued its use of the track, and it then conveyed unto the Town the title to the entire line. In the interim, Bailey had acquired the farm, and when the Town declared its intention to pull up the tracks (perhaps to use the property for a bike path), she erected “No Trespassing” signs to prohibit that. That sent the now-warring parties to court.
The issue in the case is whether the old agreement conveyed full title or just an easement. Bailey contended that the two documents (both recorded, remember) had to be read together, and the agreement expressly stated that the railroad would get a right-of-way. She contended that back then, the phrase right-of-way meant an easement, not fee-simple title. The Town merely pointed to the language of the deed, which contained no limitation on the estate conveyed, and maintained that it now owned the land outright.
The trial court held that the deed conveyed fee-simple title, so it ruled in favor of the Town. The Supreme Court today affirms, applying basic principles of interpretation. Deeds are always construed most strongly against the grantor (the reasoning is that he gets to choose the words of the grant), and there is nothing in the deed to limit the extent of the estate conveyed. The court assumes without deciding that the agreement should be read alongside the deed, but it nevertheless concludes that one can convey a right-of-way by either a fee-simple conveyance or by an easement. Since the original landowners didn’t specify a limitation, they gave the railroad full title to the strip.
The next real-estate case involves a claim of an easement by prescription. Hafner v. Hansen deals with an underground sewer pipe along one side of a residential lot. The pipe has been there since at least 1940, and unknown to the current owner, it provided service to an apartment building in the next lot back.
That normally isn’t a problem, but in this case, there was no recorded easement permitting the use of the land for that purpose; it was as though the apartment building had tapped into the line without the consent of the landowner. Of course, proving what everyone knew back in the Roosevelt Administration can be a tough job.
I was impressed at the lawyers’ ingenuity in coming up with ways to show who knew what, and when. They researched old county plumbing records to show when the county installed taps on the line. They referred to old county street plans to see if the line was shown. Ultimately, the issue came down to whether the apartment building’s owner had an easement by prescription, by means similar to establishing adverse possession of land.
The key factual component of the court’s analysis in this case is whether the apartment building’s use of the line was known to the owners of the dominant land. If it were a driveway, then the use would presumably be easy to establish. But how do you establish knowledge of a pipe that’s buried eleven feet underground?
The apartment building’s owner satisfied the trial court that the landowners’ predecessors had known of the use for the requisite 20 years without fussing, but today, the Supreme Court reverses, finding the trial court’s decision to be plainly wrong. It notes that, at best, any such knowledge could have been proved for a period of 17 years, so it remands the case to the trial court to adjudicate what relief the landowner is entitled to.
This case will be useful as a guide for the establishment of easements by prescription. It doesn’t describe all of the elements of such an establishment, as today’s opinion focuses only on the element at issue here; but it clearly outlines the level of proof required for one claiming such an easement.
The final real-property case of the day also involves an easement – Snead v. C&S Properties deals with an express 60’ ingress-egress easement adjacent to the Fredericksburg Battlefield Industrial Park. The easement was the subject of a recorded deed back in 1971. The owners of the servient tenement sold the property to the Fredericksburg Industrial Development Authority in 1997, and the IDA conveyed it to a couple of companies that now do business there.
The owners of the easement filed suit a few years ago, claiming that the businesses had obstructed the easement by placing riprap, erecting signs and a fence, and planting trees and bushes there. They asked for a permanent injunction requiring the businesses to clear away all obstructions on the 60’ strip. The businesses responded that the easement was still useful for its established purpose, in that none of these supposed obstructions prevented the use of a gravel road on the site for ingress and egress.
The trial court concluded that it would be “a useless and unduly burdensome act” to require the companies to clear away all of the claimed obstructions, since the use of the gravel road was unimpaired. The Supreme Court today unanimously reverses this ruling, finding that the usefulness of the road is by no means dispositive of the issues in the case. The owners of the easement got the right to use a 60’-wide parcel, not merely a much narrower gravel road. Allowing the businesses to obstruct a portion of the easement area would allow them to lop off 2/3 of the easement’s width, and the law won’t allow that. The case is thus reversed, and the owners will get their requested injunction.
The corporation-law case of Mirzada v. Farzayee gives us a useful lesson in motions practice. It’s a derivative suit by one member of an LLC, and it has a complex procedural posture that I’ll spare you. But the holding, even in an unpublished order, is one you need to know about. I’ll condense the case history to illustrate what the court says today.
Plaintiff moved for judgment against defendants in a four-count complaint. Defendants responded by filing motions and pleas in bar, and noticed those for a hearing on a date certain. Before that date, plaintiff filed a separate suit involving a related company. He noticed a hearing for the same day as the previously-scheduled hearing on his motion to consolidate the two cases.
On the hearing date, the defendants appeared and argued “an entirely new issue” in opposition to the original suit, based in part on the filing of the new suit. (They contended that the plaintiff had taken an inconsistent position as to property ownership in the two actions.) The trial court accepted that argument and dismissed the first suit on the basis of this new argument. So what’s wrong with that?
The Supreme Court holds today that the defendants “did not give notice for their new grounds of dismissal before the . . . hearing.” Citing Rule 4:15(b), one of the most-ignored rules in the book (in my humble view), the court holds today that trial courts can’t allow litigants to ambush each other by raising new matters in motions hearings.
That sound you just heard was of hundreds of judicial eyebrows simultaneously rising, all across the Commonwealth. “Hmmm. That means that both sides are entitled to advance notice of what the other is going to argue.” This is hardly a revolutionary idea, nor is it oppressive; it calls for fair play among litigants even at the motions stage. If you think this rule is already being enforced in your jurisdiction, then good for you; but I think you’re probably being overly optimistic.
The problem with this ruling, as with all unpublished orders, is how to present it to your trial judge. You can’t cite it to the justices in a Supreme Court brief, but there’s nothing to prevent you from handing it up to your circuit court judge and saying, “This is how the Supreme Court sees this issue.” I believe that just about every trial judge will respect that, regardless of its unpublished status. You won’t find this ruling on the court’s web site or in Virginia Reports, so if you need a copy, let me know and I’ll send it to you.