ANALYSIS OF APRIL 15, 2021 SUPREME COURT OPINIONS
(Posted April 15, 2021) Today is the traditional deadline for filing federal income tax returns. It’s different this year, as so many other things are different this year; the government has given taxpayers another month. But in my childhood, this was an important day because my late father was an accountant. This meant that for the last half of March and the first half of April, he usually worked 100-hour weeks, coming home well after midnight six days a week, and at dinnertime on Sundays. I only dimly appreciated back then how grueling that was.
The day after the tax deadline was important, too. On that morning, my family was careful to make as little noise as possible, “so Daddy can sleep.”
The Supreme Court today provides guidance on what a plaintiff must establish to prove damages. The case is Northern Virginia Kitchen, Bath & Basement, Inc. v. Ellis, and comes to us from the Loudoun County Circuit Court. The appellant is a company that specializes in remodeling homes. It employed the appellee, Ellis, as an independent contractor to perform that kind of work.
Shortly after Ellis started work, the company assigned him to install a bathroom for a homeowner. The relationship between the homeowner and the company soured, and she canceled the contract. But she seemed to like Ellis, so she asked him to continue to perform the work. He agreed to do so.
When the company’s owner found out about this, he angrily left voice mails on Ellis’s phone. It wasn’t pretty:
He left two angry voicemails on Ellis’s cellular telephone stating, among other things, that Ellis had made “a ni***er move” that would not work out well for him; that “we don’t play that s**t down here in Virginia, boy;” that he had “better not see [Ellis] over there [at Ms. C’s house];” and he had “motorcycle clubs and gangs around” and that Ellis was in “the wrong part of town to be playing that dirty s**t . . . .” Powell also said that he had hired Ellis “for his color;” because he is “black” and “a minority,” but that Ellis had “pulled the same s**t that f***ing black people around here do” and had “ruined it for the next black man.”
Ellis told the president to stop calling him, but the calls continued.
The company eventually sued the homeowner because she had posted online copies of the president’s messages to Ellis. Perceiving that suing the homeowner alone wasn’t enough, he added a claim against Ellis for defamation and conspiracy. Ellis countersued for racial harassment and stalking.
The circuit court dismissed the company’s suit, leaving the counterclaim for adjudication. The company eventually admitted liability, leaving only the issue of damages for trial. A jury awarded Ellis $100,000 in compensatory damages and $150,000 in punitives. The trial judge denied a motion to set the verdict aside and entered judgment on the verdict.
On appeal, the Supreme Court evaluates the company’s argument that Ellis’s testimony wasn’t sufficient to support a compensatory award, and that without a valid compensatory award, punitives were impermissible. The justices note that while Ellis didn’t call the police or incur any medical expenses. Citing a string of earlier decisions, they hold that mental anguish alone is enough to create a jury issue on damages.
The court specifically rejects the company’s argument that a single line of testimony by Ellis should scuttle his case. He testified on cross-examination that the company involved him in a lawsuit that he had nothing to do with, so he filed a counterclaim.
The company argued that under Massie v. Firmstone – the venerable decision holding that a plaintiff can’t rise above his own testimony – the motive for the suit wasn’t to redress emotional distress, but as retribution for getting sued. The justices don’t buy into this, noting that a person’s motive for filing suit is immaterial to whether he has sustained compensable damages.
I caution my readers about reading too much into this ruling. It’s important, of course – published opinions generally are – but please remember that Ellis stated statutory causes of action that expressly provide for damages for violation. The court might not be as expansive in its views of some common-law claims.
It all started in 1875. In that year, 15 horses ran the first Kentucky Derby; Henry Morton Stanley, having found Dr. Livingstone four years earlier, continued a grueling transect of central Africa; and a couple named Edna and Levi Lynn took $5 in exchange for an acre of land, conveying it to a church in Prince William County. While the first two items made all the news that year, it took 145 years for the Lynns’ deed to become controversial.
Canova Land and Investment Co. v. Lynn relates the tale of the deed, in which the couple gave the land to the church “to use it for the worship of God,” expressly noting that the property would “revert to the grantors or their heirs if it ceases to be used for the purposes expressed in the deed.” For over a century, that use continued without incident.
In the 21st Century, the corporate successor to the original unincorporated church took out a $1.37 million loan, giving the one-acre tract plus another four acres as collateral. Alas, the timing was poor; the loan occurred in 2007, just before the great recession humbled the American economy. The modern church did what it could, but default followed in 2011. The bank foreclosed.
At the sale, Canova Land, a subsidiary company of the bank, bought the five acres. At that point, someone did what the bank should have done back at the loan-processing stage: a full title examination. That exam showed the conditions set forth in the 1875 deed.
As a former title examiner myself – baby lawyers used to do that kind of stuff back in the medieval period, when I started practicing – I’ll offer this defense of the examiner: He or she traced the title all the way back to 1900. Most title exams go back about 60 years, so this was arguably diligent. But missing the deed into the mortgagor’s grantor was a vital oversight here.
Canova Land did the sensible thing: It filed a suit to quiet title, asking for a judicial declaration that it had fee simple title. The Lynns’ heirs replied that the limiting language in the old deed was perfectly permissible and entirely enforceable. They cited the Commonwealth’s strong preference for charitable donations, and asked the court to rule that if Canova Land were to use the land for a purpose other than “the worship of God,” then title to the acre would revert to them.
The circuit court held that the deed created the complicated beast known as a fee simple determinable subject to a possibility of reverter. This passage will no doubt stir dim, nauseating memories for my readers who hated taking Property in law school. Bear with me, folks; I’ll sandpaper the rough edges for you.
The judge ruled that the restrictions on the use of the land were permissible, so the Lynn family still could claim the land if the use changed. On appeal, the Supreme Court unanimously agrees. This isn’t a restraint on alienation, which is disfavored; it’s a restraint on use, which can be upheld if it’s reasonable. The court sees nothing unreasonable about this limitation.
Justice Mims’s opinion contains this wonderful passage: “Canova claims that upholding the restraint would significantly limit its ability to develop the land for arguably more efficient purposes, and would, to quote Minor [on Real Property], ‘put the lands of the living in the cold grip of the hands of the dead.’” The court sympathizes, but rules that the interest in promoting charitable giving outweighs the company’s interest in developing the property.
So what happens now? Presumably the company can offer the Lynn family enough money to purchase their interest in the reversion. If it can do that inexpensively enough to go on with its unspecified development plans, then the project will be a go. In the meantime, the property is still used for religious purposes, and will continue to be so used until and unless such a deal blooms.
The water, not the roads, is the tableau for today’s ruling in Green v. Commonwealth, a civil conviction for unreasonable refusal to take a breath or blood test after an arrest for boating under the influence of alcohol. The principles are the same, though, so this decision will apply to DUI refusals, too.
A VMRC patrol tried to stop Green while he was boating one evening. He tried to bolt, but as so often happens, he was caught and charged with boating under the influence. He refused to take a breath or blood test after failing a preliminary test.
At the ensuing trial, Green tried to cross-examine the arresting officer about the claimed probable cause for the arrest. The circuit court sustained an objection to this testimony because Green hadn’t brought a suppression motion before trial, as required by statute. Green – no doubt a faithful reader of VANA, and up on his preservation requirements – sensibly proffered the evidence that he would have adduced to show that the arrest was without probable cause. At the close of the case, the trial judge got ‘im, so Green appealed.
Because this is a civil charge, the appeal went straight to the Supreme Court. (This path will be overtaken by events starting in January 2022.) Today a bare majority of the court reverses and sends the case back for a retrial. We don’t know the identity of the author of today’s order, but it must have been one among Justices Goodwyn, Mims, Powell, and McCullough.
The majority rules that the statute only requires a pretrial motion when the defendant seeks to suppress evidence. Green, the opinion points out, wasn’t trying to suppress anything and wasn’t making a constitutional challenge. He was offering evidence against one of the elements of the charge, a valid arrest. Because the trial court prohibited him from introducing that evidence, the court remands so the circuit court can consider that evidence in the first instance.
Justice Kelsey, joined by the chief justice and Justice Chafin, pens a dissent in which he argues that the name of the motion isn’t the issue; its substance was identical to the argument that would be made on an ordinary suppression motion. The dissent scoffs at the suggestion that there was no constitutional issue here, because the validity of an arrest is measured by Fourth Amendment standards.
I’m a little surprised that this is a published order instead of an opinion. It still carries precedential weight; that’s what publishing something gives you. But the court, as usual, offers no explanation for the distinction.