[Posted April 17, 2009] The Supreme Court gives us 17 new published opinions today, plus one published order in an attorney discipline case. Another five appeals are decided by unpublished order. The court has passed on to the June session the two proceedings involving Daryl Atkins, and the appeal involving questions of accessibility to Virginia Lottery vendors by handicapped persons.

We’ve all heard the criticism that so-and-so “exalts form over substance. “But sometimes form matters, too. Today’s ruling in Estate of James v. Peyton gives us a clear example of such a situation.

Careful attorneys know the importance of accurate pleading, especially when it comes to naming the party defendant, and especially especially when that party is a fiduciary, such as a personal representative for a decedent. Sue the wrong party and you can get tossed out of court. In this case, Peyton was injured in an automobile collision, and filed suit against the other driver, James. Unfortunately (and apparently unknown to Peyton’s lawyer), James had died three weeks after the collision, and a year before suit was filed.

Virginia law is absolutely clear on this much: You can’t sue a dead guy. You have to sue his personal rep instead. Peyton accordingly requested and speedily got leave to amend the suit to reflect, “Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esquire” as the defendant. Gentry, the lawyer who had qualified as James’ personal rep, duly filed an answer in the name of the estate, and the case developed from there.

For four years. The matter dragged on that long before the defendant finally got around to filing a motion for summary judgment, alleging that the new suit improperly named the estate, not the personal rep, as the party defendant. The law, as noted in the previous paragraph, is quite clear that the personal rep is the proper defendant, and suing an estate isn’t an option. Peyton responded by pointing out that this was merely an error in syntax; it was clear who was intended as the defendant. The whole thing shouldn’t fall apart simply because he listed the estate first and the (admittedly correct) name of the administrator second, instead of the other way around.

The trial court initially thought the defect was fatal, and announced that it would grant the MSJ. But two weeks later, on rehearing, the court reversed its initial ruling and found that the defect was a minor matter of form. The parties agreed to seek certification of an interlocutory appeal, and the Supreme Court took the case.

Today, the court rules that, at least in this context, form is just as important as substance. There is a fundamental difference between suing an estate (which isn’t permitted) and suing a personal rep (which is the only correct way to do it). In reversing, the court cites caselaw holding that “the party filing a civil action has an obligation to express the nature of the claim being asserted, and the identity of the party against whom it is asserted, in clear and unambiguous language so as to inform both the court and the opposing party of the nature of the claim being made.” It holds that this isn’t a misnomer (incorrectly naming the right party); it’s a misjoinder (naming the wrong party), so even now Peyton can’t amend and relate back to the original filing date. Since the statute of limitations has long since expired for filing suit against the personal rep, the court enters final judgment in favor of the esta- I mean, the personal rep.

If any of you need me to spell out a practice tip from this case, I can take the time to do that, but I suspect you already have discerned it by now.

Smith v. Kim is a wrongful death action alleging medical malpractice, but the holding will apply to non-medical tort cases. The question is whether the trial court should have instructed the jury about the effect of initial negligence on subsequent aggravating acts.

The patient was admitted to a hospital with a severe bowel obstruction. He underwent two exploratory procedures, the second of which apparently went wrong, leading to a severe injury to his lungs. He underwent several subsequent surgeries, but eventually died a bit over a year later. The plaintiff, the patient’s personal rep, contended that the original procedures and some of the later medical care were negligent.

At trial, the personal rep asked for a jury instruction that would have told the jury that the doctors were responsible for additional injuries that develop afterward, including death. (This instruction springs from the familiar premise that a negligent motorist can be responsible for injuries suffered by his victim if the victim gets negligent emergency medical care that’s necessitated by the original injuries.) The trial court refused to give that instruction, and the jury imposed the painful Levy of a defense verdict.

On appeal, the personal rep argued that she was entitled to an instruction on her theory of the case. A party whose jury instruction has been refused is in an unusually strong position on appeal because the appellate court will view the facts in a light most favorable to her, instead of in a light most favorable to the prevailing party below (which is the normal course in appeals). But here, the Supreme Court stops at an analytically earlier point: The instruction didn’t correctly state the law.

The problem is that the offered instruction would have made the original doctors automatically liable for the subsequent medical negligence. They might well be so, if the evidence indicated as much. But the instruction essentially imposed absolute liability upon the original doctors for subsequent medical negligence. As the court notes today, that’s a peremptory instruction that takes away from the jury one of its essential functions, in determining causation. In order to impose such liability, the jury would have had to find as a matter of fact that the future medical negligence “naturally flows from the original injuries.” Accordingly, the trial court properly refused the instruction, and the judgment in favor of the doctors is affirmed.

There was one other instruction at issue in the appeal, but that part of the case fizzles. Both sides refer to (and quote in their briefs) an Instruction 15, and there is indeed an instruction by that number in the record. But the one in the record doesn’t match up with the one the parties discuss in their briefs. Since the court can’t specifically identify what’s at issue here, it doesn’t consider that assignment in reaching today’s conclusions. I don’t know whether this is a typographical error, once inserted by the appellant and then picked up by the appellee; or else if the parties jointly had something else in mind and made their mistaken references based on their mutually flawed understanding of what numbers the trial court assigned to the draft instructions. Either way, it’s a loss for the appellant, who bears the responsibility of making sure the record is sufficient to enable the court to decide the appeal.

Constitutional law
Today’s ruling in Tanner v. Virginia Beach takes me back to the days of my youth, when I was told of a marvelous place down at the Virginia Beach oceanfront known as the Peppermint Beach Club, an open-air dance hall that was right on the beach. The people who told me about it spoke wistfully about how great it was to hear live music and party with their friends.

Of course, I didn’t get to participate, because I was about seven years old, and these were my babysitters telling me stories. But there really is a PBC (so it’s known locally) and it really does have live music. That music offended the sensibilities of certain city fathers, and maybe mothers, but definitely some police officers. Those officers sought to enforce the city’s noise ordinance, which prohibited “unreasonably loud, disturbing and unnecessary noise” throughout the city.

Side note: There is a hint in today’s opinion that some of the enforcement might have been directed less toward the volume and more toward the type of music being played. Back when I was seven, it was the clean-and-scrubbed Beach Boys genre; nowadays, it’s far more ominous music, described in today’s opinion as including hip-hop, punk, emo, and the dreaded “indie.” May my own teenage daughter never, ever find out about the place.

In response to police warnings about the level of the music, the owners of the PBC filed a suit asking for a judicial declaration that the noise ordinance was unconstitutional. They got no love in the circuit court, but today on appeal, they score a major victory as the Supreme Court strikes down the noise ordinance as facially invalid. The problem, it seems, is that the whole scheme is tied to whether a “reasonable person” would regard the level of noise as offensive; there are no objective criteria to define what’s permissible and what’s impermissible. I don’t know if you’ve got any of those standard-issue reasonable people lying around, but the court finds today that there is no meaningful way for the PBC, or anyone else for that matter, to ascertain exactly what level of noise is forbidden.

This isn’t to say that all legal standards involving reasonable sensibilities are invalid. But this ordinance impinges on First Amendment rights (James Madison may not have envisioned hip-hop, but he crafted some general language that covers this situation nicely), so it gets added scrutiny. In the absence of a clear statement of what’s forbidden, a government can’t enforce a penal ordinance like this one, and the PBC gets to keep the party going.

Public contracts
Ordinarily, parties to a contract are free to negotiate terms pertaining to calculation of damages, and even to limit the damages that can be recovered. We get to see what happens to such a contract provision in the public sector today in Martin Bros. Contractors v. VMI.

VMI entered into a contract with Martin Bros. for the renovation of the on-campus dining hall. The project was delayed for nine months; VMI, not the contractor, was the cause of the delay. The contractor sought $430,000 in delay damages, but VMI pointed to a clause in the contract that limited what the contractor could recover.

If you don’t swim in the waters of public contracting law, you may not know about a statute that prohibits any limitation of delay damages that may be suffered by a contractor. It’s framed in pretty strong language, and evinces a public policy in favor of permitting full compensation to contractors when public entities cause delays. The trial court held that the statute didn’t apply to this type of claim, but today the Supreme Court disagrees and reverses. Restating the holding of a 2003 case, which implicated the same statute, the court reaffirms that the prohibition must be given its full effect. The court thus remands the case for further proceedings, in which the contractor will get the opportunity to prove the full extent of its damages.

Beware the thoroughly honest juror.You already know about the sneaky ones who make misstatements in voir dire, perhaps because they want to sit on a particular jury so they can fry a particular criminal defendant.I’m talking about the candid one who answers your questions honestly, and then later decides that he needs to add something later. Want to know more?Then check out today’s opinion in The Robert M. Seh Company v. O’Donnell.

The O’Donnells were homeowners who hired a contractor to install a pool in their back yard.The contractor promised to install a Fox brand pool, but allegedly used a liner manufactured by a different company, Vyn-All. The homeowners weren’t happy, and they sued for damages under, among other things, the Consumer Protection Act, which offers bonus goodies such as treble damages and attorney’s fees. The homeowners got a verdict, and the trial court entered judgment in their favor for about $100,000 in all.

During voir dire, the veniremen had been asked if any of them had worked in the pool industry. The Honest Juror replied that he had helped his father-in-law on occasion with a pool installation company. There was no follow-up question to this disclosure, and The Honest Juror was among those selected to serve on the jury.

Fast-forward to opening statements:The contractor’s attorney acknowledged that a Fox liner hadn’t been used, but he told the jury that the Vyn-All one was just as good. That triggered a memory in the back of The Honest Juror’s mind. He eventually indicated that he wanted to talk to the judge, and while the rest of the jury cooled its collective heels back in the jury room, he explained that he was no longer confident that he could judge the case impartially. He told the judge that he recognized his potential bias as soon as the contractor’s lawyer had said that a Vyn-All liner was just as good as a Fox liner. His father-in-law had told him, way back when, that Vyn-All “was of inferior quality.”

Accordingly, The Honest Juror told the judge that he was now biased against the contractor’s lawyer, who “doesn’t know what he’s talking about. “On subsequent questioning, he promised to use the evidence in the case to make his decision, but said that he couldn’t erase from his brain what he already knew.

Now, that’s what I call Honest. The trial judge invited the contractor, who now wanted The Honest Juror the hell out of the courtroom, to consider whether to proceed with six jurors, or else leave him on the panel. (The original panel had included alternate jurors, but those had all been excused by this point in the trial.) Neither of those options met with the contractor’s approval; it wanted a mistrial. The trial court declined to do that, and that ruling is the focal point of this appeal.

Today’s ruling helps to map the largely uncharted territory of juror expressions of potential bias after the jury has been sworn. There are lots of cases that address what to do during voir dire, but once the jury is sworn, it looks like a different ballgame.

Today, the court adapts holdings in criminal cases to the civil context, ruling that “once a jury has been empanelled and the impartiality of a juror is subsequently brought into question, it is an abuse of discretion to deny a motion for mistrial if the proponent of the motion establishes the probability of prejudice such that the fairness of the trial is subject to question. “The Honest Juror’s disclosures revealed at least two means by which his impartiality could be plausibly called into question (his distrust of the contractor’s lawyer and his preexisting belief about the quality of the Vyn-All liner). The court thus reverses the case for a new trial.

Okay, here’s a quick pop quiz.You go to your local Bentley dealer and ask to test drive one of those snazzy Arnage models. You take it off the lot and drive within the speed limit, mostly. During one of your gentler moments (i.e., you’re driving safely), some clown runs a stop sign and clobbers you. Even worse, he’s uninsured.The question is, will the Bentley dealer’s UM/UIM policy provide coverage to you? No fair Googlin’; this is a pop quiz.

Give up?If the Bentley dealer is Atlantic Motors, Inc., then you’re covered.So the court rules today in Seals v. Erie Insurance, a declaratory judgment action out of Petersburg. The trial court had ruled in favor of the insurer, focusing on a tortuous stroll through the dealer’s policy. The Supreme Court takes the same stroll, but finds one fork in the road where the trial court took the wrong turn. Because this case is likely policy-specific, I don’t plan to retrace those steps in this summary; the opinion is short (just 8 ½ pages) and you can easily follow along by clicking on the hyperlink above to see the slip opinion. As applied to other cases, the primary holding is that the so-called garage keeper’s exclusion (which generally states that the dealer doesn’t provide you with liability coverage during test drives) doesn’t apply to UM/UIM claims.

The court doesn’t reach one tantalizing question, of whether the UM/UIM statute itself requires such coverage. That was one of the assignments of error, but the court finds that obligation here in the language of the policy, so it leaves for another day the question of whether such coverage is mandated by statute.

I don’t know if Seals was really driving a Bentley (or even if Atlantic Motors sells them); it just seemed like more fun to imagine it so.

Domestic relations
Because of the finality presumption in Code §17.1-410(A), the Supreme Court hands down very few opinions in domestic cases. We get one today in the child custody case of Florio v. Clark, where the court considers competing requests for custody of a now-13-year-old boy. The antagonists are the boy’s father and his aunt and uncle.

The boy’s father and mother never lived together during the boy’s life; they agreed to an order that gave custody to the mother and liberal visitation to the father. The father evidently didn’t take much advantage of his rights. The mother soon thereafter moved in with her sister and brother in law, and for the next few years, the boy’s uncle acted as a surrogate father in many respects.

When the boy was five, his mother developed a heart condition. Perhaps sensing her own frailty, she executed a will around the time of her son’s sixth birthday, in which she nominated her sister as the boy’s guardian.Soon thereafter, the family had to gather for the mother’s funeral.

Two days after the mother died, the father filed a custody petition; the local JDR court entered a pendente lite order granting him that custody. The aunt and uncle then filed a custody petition of their own. After an initial order and a reversal and remand from the Court of Appeals, the case was tried in circuit court. That court considered all of the circumstances and granted custody to the aunt and uncle, citing (among many other things) the father’s poorly-established housing arrangements, his lack of education and health insurance, and his lack of candor with the IRS (uh-oh . . .) and court-appointed investigators.The CAV affirmed en banc.

Today’s opinion recites the presumption in favor of a natural parent in custody cases, and points out that it can be rebutted. The trial court found that that presumption had indeed been rebutted, and the Supreme Court agrees today, affirming the full CAV. The court holds that the combination of circumstances that the trial court (quite properly) considered were ample to rebut the presumption by the required clear and convincing evidentiary standard.

One thing to keep in mind:Unlike the court’s recent decision in Mitchell v. O’Brien, this ruling is by no means truly final. Unquestionably, the father is out of appellate options here. But a custody determination is always subject to modification by changes of circumstances; all the father has to do is file a new petition and set forth those changes.

If the father cleans up his act a bit more, he might plausibly make out a case for the return of his son. In the recent Mitchell case, in which the court affirmed a ruling in favor of adoptive parents, the father is now permanently a legal stranger to his child. Custody, an intrinsically temporary determination, is a far less drastic step than adoption, which severs all legal ties between the child and his or her birth parents.

Business license taxes. There; did I turn anyone off? Well, if you think big numbers are sexy, then you might want to check out Lynchburg v. English Construction Company, in which the court settles a sort of territorial dispute. Here’s the playing field, somewhat simplified:

Construction contractors pay license taxes in the locality where they have their principal place of business. They also may, under certain circumstances, have to pay such taxes in other jurisdictions where they perform work. Thus, if a City of Roanoke company gets a job in New Kent County, the county may be able to collect a tax on the part of the company’s income that it collects as a result of its operations in the county.

In practice, some localities decide to forgo the collection of this tax. Maybe they think it’s good for business development; maybe they don’t have the staff to perform audits of out-of-town contractors. Whatever the reason, sometimes they just don’t make the contractors cough up the tax. The question in this appeal is as follows:If the county doesn’t collect the tax, can the City of Roanoke go ahead and collect it, even though the money was earned elsewhere?

As I hinted above, there are big bucks involved. English Construction operates out of the City of Lynchburg. When it has a job outside that city, it establishes something called a “definite place of business” (basically, an office of some sort, as defined by statute) in the construction locality. The parties stipulated to that fact, and it turns out to be the dispositive fact in this appeal. That’s because the statutory taxation scheme doesn’t give the “home” locality the power to collect all taxes that might be due, anywhere in the Commonwealth, subject only to its obligation to refund local taxes actually paid elsewhere.(This was the statutory construction urged by the City.)

The Supreme Court affirms the trial court’s ruling that Lynchburg can’t tax monies earned in other jurisdictions where the contractor had a definite place of business, so the contractor, who had paid disputed taxes under protest, gets a nice refund. (That ringing sound you just heard was dozens of large contractors calling their lawyers, asking how to set up “definite places of business” in nice, pro-development venues. As for whether New Kent County is such a place, you should know that I used that as a hypothetical example.It’s quite possible that my friend Jeff Summers is laughing uproariously at my suggestion that his locality might deliberately let some form of tax revenue go uncollected.)

Attorney discipline
If you recognize the case name of Barrett v. Virginia State Bar, then, . . . well, you’re not exactly going to be alone. Barrett is a lawyer who has twice been disciplined in published dispositions for misconduct arising out of his divorce, in which proceeding he disregarded Ben Franklin’s sage advice and set out to represent himself. (Ben’s adage applies to members of the bar, too.) Today we get our third dose of Mr. Barrett’s legal adventures in just the four-plus years that I’ve been following and analyzing all of the Supreme Court’s rulings.

I’ll cut to the chase here – after several years of accumulating frequent flyer miles with the State Bar, Barrett’s license finally gets taken away from him today, by published order. Along the way, the Supreme Court swats aside a too-clever assertion that the Bar had no authority to discipline him because his license had been suspended at the time of the acts complained of. The Bar can only regulate lawyers, he reasons; and since his license was suspended, he wasn’t a lawyer. Ergo, no disciplinary proceedings. The Supreme Court implicitly credits him for creativity, but it concludes that one cannot escape disbarment by the simple act of getting one’s license suspended. A suspended lawyer is still a lawyer, and is still subject to the disciplinary rules until and unless he gets disbarred.

Barrett also raises an Equal Protection argument, contending that he was singled out because he is a lawyer. He contends that no other litigant would suffer the disability charged to him, so it’s a denial of Equal Protection. No dice, the court rules; you have to compare yourself with a similarly situated group, and there has been no suggestion that you have been treated any differently from any other suspended lawyer.

Finally, and almost anticlimactically, the court affirms the finding of a three-judge panel that Barrett made “completely frivolous” assertions in the divorce proceeding, so it affirms the disbarment. In my view – and this is probably stating the obvious – if this had been a single instance of making a frivolous argument, nothing remotely approaching disbarment would have been imposed. Clearly, the Bar, the three-judge court, and the Supreme Court all had in mind Barrett’s previous Bar record in imposing the ultimate form of attorney discipline.

Administrative law
Admin law cases in the Supreme Court are fairly rare, as that’s another area in which the Court of Appeals’ rulings are presumptively final.It essentially takes special dispensation from the Supreme Court to take such a case beyond the CAV. Today we get two such rulings. I covered each of them in detail when they were decided last year, so instead of reciting all the facts again, I’ll just summarize the key rulings here.

The two cases have one other thing in common – the Supreme Court reverses the Court of Appeals both times.

In Smit, Commissioner v. Shipper’s Choice of Virginia, a truck driving school employed a person who occasionally filled in for licensed teachers. This person wasn’t licensed as a teacher, but his appearances to cover classes were reportedly rare, and he allegedly did not cover new material. (I suppose that makes him akin to a substitute school teacher who presides over study hall.) He was conducting a class one day when a couple of DMV agents stopped by. The DMV imposed a modest civil penalty and a not-so-modest six month license suspension against the school. A hearing officer reduced the suspension to thirty days, and the DMV Commissioner upheld that decision; so did a circuit court. The Court of Appeals reversed, holding that the unlicensed teacher didn’t meet the definition of an instructor because, while he was on the company payroll, he wasn’t getting paid to teach a class. Evidently he was volunteering his time, and since the statute applies to those who act “for compensation,” he didn’t fall within the coverage of that statute.

The Supreme Court reinstates the lower court’s ruling, holding that the CAV had misread the statute. It observes a clear statutory purpose in preventing unlicensed persons from teaching people how to drive trucks – no argument here with that little public policy – and holds that since this good fellow was employed “for compensation” by the company, it didn’t matter that he wasn’t specifically paid a teacher’s wage. My description of the case at the CAV level can be found in the archives, dated May 20, 2008.

The other admin law case is Virginia Tech v. Quesenberry, in which Tech had terminated an employee, allegedly for making improper statements to a coed. A hearing officer in that case found that the coed had overreacted to what most observers would conclude is a fairly benign comment; but he still recommended the employee’s termination. This time, the trial court reversed, evidently troubled that a man would lose his job over a clear overreaction; the CAV affirmed. The Supreme Court reverses this one because, it rules, the university has the right to determine for itself what kinds of behavior are to be proscribed. The Court of Appeals had incorrectly looked at caselaw interpreting Title VII sexual harassment cases, instead of the body of Virginia administrative law (specifically including Tech’s own policies). My description of that case in the CAV is in the archives dated April 15, 2008.

Criminal law
So far, all of the opinions I’ve digested above reflect unanimous rulings. Are you the sort of court-watcher who craves controversy? Then let’s step over to Elliott v. Commonwealth, where we get our first dissent of the day.

Elliott and his girlfriend were the parents of a child. But the home life must not have been one to wish for, as the parties eventually found themselves in juvenile court, where a judge issued a protective order against Elliott. The order required him to (among other things) “have no further contact of any type” with his girlfriend or specified family or household members for two years. This was done in order to “protect the health and safety” of the girlfriend and her family.

Of course, the order wasn’t faithfully followed; otherwise we wouldn’t have an appeal to talk about today. Six weeks after the issuance of the order, Elliott allegedly called the girlfriend and asked to speak with their child. (Elliott denied making that call.)And eleven days after that, the parties went back to JDR court, this time on Elliott’s own request for a protective order. After the hearing, Elliott approached the girlfriend’s mother (who evidently was not among those named in the first protective order) and in crude language, said something on the order of, “I’ll beat you to your house. “He then took off and, true to his word, he arrived in the neighborhood of the girlfriend’s house first.

But he didn’t go to her house.Instead, he stopped a block away and got out of his car. The girlfriend, her mother, and another witness saw him off in the distance, talking on a mobile phone and pointing at the girlfriend’s house.

The Commonwealth prosecuted Elliott for two instances of violating the protective order — one for the phone call, and one for the apperance in the girlfriend’s neighborhood.

The trial court convicted him, sentencing him to 90 days in jail for the first event and 180 days for the second. It then ran the sentences consecutively – that’s nine months to serve, without even throwing in the gratuitous charge of felonious stupidity that I would have recommended. The Court of Appeals refused a petition for appeal, but the Supreme Court granted a writ.

Today, everyone on the court agrees that placing the phone call was a violation of the protective order. Elliott contended that he couldn’t be convicted because the evidence was in conflict; but any appellate lawyer could tell you that that argument was going to be stillborn. The trial court had some evidence in the record (the girlfriend’s testimony) that supported the finding of guilt, and an appellate court isn’t gong to touch a trial court’s credibility determination in a case like this one.

The conflict comes in on the second instance. The majority (Justice Koontz, writing for the chief justice and Justices Keenan and Millette) finds that while Elliott came within a block of the girlfriend’s home, he didn’t thereby intentionally initiate any contact with her.

The majority notes that the whole point of the protective order was to protect the girlfriend’s health and safety; thus, while he may have been visible at a distance to his girlfriend, he was on a different street, “and posed no threat of harm to the health and safety” of the girlfriend while standing at that distance. The majority thus reverses the second conviction (the one carrying the six-month jail term).

The dissent takes all of two paragraphs to light into the majority’s reasoning. Here is the second paragraph of the dissent (authored by Justice Lemons, on behalf of Justices Kinser and Goodwyn), in full:

The majority holds that because Harvey was “a block away from Harvey’s residence, on a different street,” he “posed no threat of harm to the health and safety of Harvey. ” If this reasoning is sound, then Elliott posed even less threat of harm to the health and safety of Harvey when he was on the telephone with her during the July 6, 2007 incident.

Hmmm . . . I bet you hadn’t thought of that during our tour through the majority’s reasoning, had you? True enough, from a block away, Elliott could have pulled a gun, shot a crossbow, or (if he had the arm strength) chucked a rock at the girlfriend; but there was virtually no threat to her health and safety during the first instance, when they only talked over the phone. And remember, that’s the event that all seven justices agree was a violation of the protective order.

I have written previously about the next case, Payne v. Commonwealth, based on the Court of Appeals’ June 3, 2008 published opinion (and you can find that discussion in the archives if you want). Here, the Supreme Court affirms two simultaneous and incongruous convictions, one for felony homicide and the other for aggravated involuntary manslaughter. Why are those two incongruous? Because there was only one victim, that’s why.

The Supreme Court conducts a Blockburger analysis and finds, as did the CAV last year, that each of these offenses contains an element that isn’t present in the other one. That means that one is not subject to double jeopardy by being convicted of both crimes for the same killing.

The ruling above is the principal precedential holding of the case. The court goes on to consider three additional issues that were not addressed in the Court of Appeals’ much shorter ruling last year, but none of these would likely have justified a published opinion, either separately or together. The court turns aside a Brady objection, finding that the evidence, even if it was exculpatory, would not have made a difference on the relevant issue, since the other evidence on that issue was overwhelming. It also finds that the trial court did not abuse its discretion in admitting certain expert testimony on the ability of alcoholics “to conceal certain effects of alcohol. “Finally, it rejects a sufficiency challenge that, in my view, was lucky to find itself the subject of a writ; Payne argued that the Commonwealth didn’t prove that she knew her victim had been injured. The force of the collision alone would probably be sufficient to trigger at least constructive knowledge, but the court goes on to list other factors that seal the deal.

We get more dissension in the appellate ranks in Rowe v. Commonwealth, an appeal of a deceptively benign-sounding conviction for assault and battery of a police officer. I called it deceptively benign because it started out as attempted capital murder.

Along the way, there’s an interesting discussion of waiver and judicial estoppel, and a rare glimpse into what at least some of the justices feel is an appropriate circumstance to invoke the ends-of-justice exception to the contemporaneous objection rule. Safe in the knowledge that this last factor has riveted the attention of appellate lawyers, I’ll set forth a slightly trimmed-down summary of what happened.

Criminal defense lawyers here at the Beach must hate it when the arresting officer in their cases is Virginia Beach Police Officer Brian Fair. After all, how do you impeach a guy named Fair? (Ahem.) Having completed his shift after what must have been a busy July 4, 2005, this officer set out for his home in Chesapeake early on the morning of the 5th. He got into his personal car and drove along I-64, the primary Interstate highway down here. Along the way, he spotted a truck that was being operated very erratically.

He called his dispatcher and asked that the State Police (who have concurrent jurisdiction on the Interstate) be notified. The dispatcher replied that no troopers were available, so Officer Fair continued to follow the truck, which continued to be operated erratically (including driving into oncoming traffic in the opposing lanes). Eventually the truck ran off the road and went into a ravine. Officer Fair stopped his car and got out to investigate.

Now, keep in mind, all this is happening in Chesapeake.Officer Fair is sworn in Virginia Beach. On the face of things, you’d assume that he has no jurisdiction to do police work in a neighboring city. But Chesapeake and Virginia Beach, which are contiguous, have entered into an agreement to provide reciprocal police support, particularly in circumstances where exigent circumstances make it impractical to wait for local law enforcement officers to arrive. A seemingly drunk driver running his truck into a ravine at 1:30 am? Bingo.

Officer Fair went down into the ravine to investigate. His investigation revealed that the truck, while damaged, was still operable, and eventually the driver started to operate it, straight at the officer. During the course of the evening before this, Officer Fair had informed the as-yet-unknown driver that he was a police officer, and before the driver put the truck back into gear, the officer was clearly illuminated, in full uniform and badge, for several seconds in the truck’s headlights.

In case there’s any question in anyone’s mind whether the driver, who turned out to be Rowe, knew he was dealing with an officer, I offer:
Exhibit A – The officer had his gun drawn when he went down into the ravine.
Exhibit B – The officer identified himself and directed Rowe to put his hands in plain view; Rowe complied.

Unfortunately, before anyone could identify an Exhibit C, Rowe put the truck in gear and took off straight for the officer, who fired several shots as he evaded being run down.

Rowe got away, but was nabbed by Chesapeake police soon thereafter. When he got a look at Officer Fair at the time of the arrest, Rowe, smelling of alcohol, asked something on the order of, “Are you the police officer who shot at me?” (I guess that’s a pretty good Exhibit C.)

Indicted for attempted capital murder, Rowe elected a bench trial. The judge initially found him guilty, but Rowe’s motion to rehear actually paid off (one of few instances of success for that often-overused procedural vehicle), and the judge agreed to find him guilty of the lesser offense of assault and battery of an officer. This reduction comported with Rowe’s lawyer’s request to the court to do so; the lawyer assured the judge that the A&B charge was a lesser-included offense of the murder charge.

Well, it turns out, it isn’t. Assault and battery, of a police officer or anyone else, requires proof of a battery; attempted capital murder doesn’t.  Rowe argued on appeal that since he was never indicted for the A&B charge, and since that isn’t a lesser-included offense of the charge of which he was indicted, his conviction is invalid and he should be allowed to walk. “But wait a minute,” the question must inevitably have been posed during oral argument in the Supreme Court, “Didn’t you tell the trial judge that it was a lesser-included offense?” “Yes, your honor,” Rowe’s lawyer answers, earnestness seeping out every pore, “and I was mistaken.”

Well, what on earth do you do with this? A criminal defendant has essentially asked a trial court for certain relief; the trial judge gave him what he asked for; and now the defendant says that what the judge did was impermissible. Appellate lawyers refer to this as “invited error,” and it virtually always results in a ruling that the assignment of error has been waived. That’s what a majority of the court decides today in affirming the conviction; the majority (written by Justice Lemons on behalf of Justices Kinser, Goodwyn, and Millette) cited the ancient prohibition of a party’s attempt to “approbate and reprobate” in the course of a judicial proceeding.It describe the procedural conundrum as “the result of [Rowe’s] own strategy and actions at trial.”

Justice Koontz, joined by the chief justice and Justice Keenan, dissents, arguing that the majority stretches the bounds of waiver too far. The dissent contends that even the invited error doctrine cannot confer authority upon a trial court to convict a defendant of a crime of which he was not indicted. (Let’s leave aside the question of truly lesser-included offenses, or situations where a defendant consents to an amended charge, usually as part of a plea bargain. Neither of those situations applies here.) In this discussion, the dissent perceives that this is an appropriate time to invoke the ends-of-justice rule, to permit the defendant to make an argument on appeal that he didn’t first make in the trial court.

Any detailed discussion of the ends-of-justice rule is worth reading. Usually judicial opinions mention it only to reject it outright, so it’s always instructive to get any information on situations in which the court – or even a significant part thereof – thinks it would be appropriate to apply it.

One other note for you court-watchers: You will observe by consulting your judicial scorecard that the three most senior members of the court have been outvoted by the four members with “juniority.”

Is it possible to commit a crime while in the arms of Morpheus? I’m not talking about a status offense, such as being an illegal alien; nor am I referring to something relatively passive, such as possession of controlled substances. I mean a good, old-fashioned criminal offense, committed while the defendant is asleep. Give up? Let’s take a look at Riley v. Commonwealth and see.

Riley had a lot of trouble sleeping, judging by the variety of pills he took to help him. One January afternoon in 2006, he took several medications, plus about four Ambien capsules (the regular dose is one), and lay down for a nap. He woke up, he says, in jail.
In the meantime, he had gotten into his car, turned the key, and driven through certain northern Virginia streets before hitting a pedestrian, a couple of cars, and eventually an unyielding tree. When initial witnesses and eventually police officers spoke with him afterward, he seemed what you would probably call “out of it”: Able to answer questions, but not necessarily in a coherent way. (For example, when asked to describe his car, he said that it was “either green or green.” (As it turns out, it was neither.)

The toll from this adventure was significant; the pedestrian lost a leg. Riley was charged with DUI-Drugs and with maiming by driving while intoxicated. His defense at trial was that he must have been sleepwalking (something he had apparently done before, only on a smaller scale). During closing arguments in the bench trial, the judge asked the defense lawyer some pretty pointed hypothetical questions – in his view, would this sleepwalking defense prevent a conviction for burning down a building and killing twenty people? Why, yes; the lawyer answered. In a manner that must be familiar to experienced trial lawyers everywhere, the judge leaned back and said, “Okay. We understand each other.”

(The translation of this is something like, ”If that’s what you’ve got, you’re going down.”)

And down he went, as the trial court convicted Riley, finding that he was merely voluntarily intoxicated. The trial judge explained his ruling this way: “I find that he either knew or should have known what the probable consequences were or if he didn’t, taking voluntarily such an overdose of a drug which he certainly knew or should have known had a lot of side effects including sleepwalking if, in fact, he was, was in itself reckless disregard.”

The Court of Appeals affirmed, and today, the Supreme Court does, too. Riley’s appeal focuses on the inconsistency between the trial court’s finding that he was sleepwalking and the conviction. But the court notes today that the trial court never made such a finding. Check back in the immediately preceding paragraph – see that little qualifier there? “. . . if, in fact, he was, . . ..” That means the judge was making at most alternate findings. Since the trial court did not firmly conclude that Riley was sleepwalking (sleep driving?) at the time, then all we have is a case of voluntary intoxication, exactly as the trial court set it out.

From there, the affirmance inexorably flows; the evidence was sufficient, the court finds, to establish that Riley voluntarily ingested drugs, knowing it to be an ill-advised combination and knowing it was far more than the proper dose, so he’s responsible for what he did even though he may not have been conscious.

Appeals from decisions of the State Corporation Commission enjoy a special status in the Supreme Court. Unlike most other appeals, they are of-right, meaning you don’t have to file a petition for appeal. (Attorney discipline cases, such as Barrett’s above, and death sentence reviews are the only other ones of which I’m aware.) SCC cases often involve a lot of zeroes, and today’s decision in Appalachian Voices v. SCC is one of those.

Appalachian Voices is a public interest group that, with several colleagues, decided to challenge an application by Dominion Virginia Power to build something called a clean-coal powered electric generation facility in Wise County. Perhaps finding the term “clean-coal” to be an oxymoron, the project’s opponents seized on what they perceived to be a weak point in the statute that authorized such a facility. They argued that the statute gave an impermissible preference to Virginia coal, by providing special treatment for “a coal-fueled generation facility that utilizes Virginia coal.” That provision, they argued, violates the dormant Commerce Clause of the federal Constitution, by providing a preference to coal that’s mined here.

Is this the real, fundamental reason for the groups’ opposition? Perhaps; but I suspect it’s more likely an any-port-in-a-storm argument that has nothing to do with the groups’ primary (environmental) concerns. Nevertheless, if it’s unconstitutional, then it doesn’t matter what motivated the objection.

It isn’t unconstitutional, the Supreme Court rules today in affirming the SCC’s ruling to approve the project. The court determines that “the phrase ‘utilizes Virginia coal’ is descriptive and not prescriptive in content.” That means that the statute doesn’t mandate that only Virginia coal must be used; it just means that the plant has to be built in such a way that Virginia coal can be used. The court thus distinguishes US Supreme Court caselaw that found impermissible preferences for “home-grown” commodities. It also notes that Virginia law requires the utility company to use the most economical means possible to generate electricity, and if that isn’t Virginia coal, then there’s no reason why VEPCO can’t look elsewhere for a supply.

In a final paragraph, the court also notes that the challenged three-word phrase is severable from the statute, in that the statute can still be applied even without the Virginia coal requirement if necessary to ensure constitutionality.

I’m a bit surprised that this ruling didn’t generate at least some dissent. Not that I think it’s obviously wrong; indeed, I follow the court’s reasoning in reaching the decision to affirm. But as constitutional calls go, I think this is a close one, and I’m somewhat surprised that the justices’ views all fell on the same side of the fence.

One last point: Yes, Appalachian Voices can appeal on to the US Supreme Court, since this case implicates the federal Constitution. It occurs to me that the discussion of severability, coming as it does almost as an afterthought, might well provide a measure of reversal insurance, making the constitutional question merely one of two alternative grounds for affirmance. If the Big Supremes agree that it does, then resolution of the constitutional challenge won’t be necessary to the appeal, and the justices in Washington might well deny certiorari.

Trusts and estates
As long as we’re throwing about terms like approbate and reprobate (carry-overs from Scottish law), let’s see how those principles get a judicial workout in Matthews v. Matthews, a will contest appeal out of Spotsylvania County. A man I’ll call Dad entered twice into wedded bliss; once with Mom and once with Stepmom. He had three kids from his first marriage.

Upon the remarriage, things must have deteriorated with the kids (now apparently fully grown). Dad made a will in 1993 in which he bestowed upon each kid the princely sum of a dollar, leaving all the rest of his lands, estates, and fortunes to Stepmom. He executed another will two years later, but the terms that interest us here were unchanged.

Dad passed away in 2005, and one of his sons qualified as administrator of his estate in the local circuit court. If you practice in the field of trusts and estates, you already saw something glaring there – an administrator qualifies where the decedent was intestate; if he had a will at death, then an executor qualifies instead. Sure enough, the administrator stated that Dad had left no will.

A month later, Stepmom showed up with the 1995 will and asked that it be probated. At least, it was sort of the will; it was actually a photocopy. She explained that the original had been stored in a safe that had been stolen from the family home. (In the ensuing jury trial, a police officer backed her up on the stolen-safe story.) The Clerk of Court wasn’t having any of that; he rejected the will, because it wasn’t the original.

On to Plan B: Since the ’93 will contained the same bequests and devises, Stepmom decided to offer that one (of which she had the original) instead. Good enough for me, the Clerk said, and admitted that will to probate.

When they learned of that, two of the kids filed a bill to impeach the ’93 will. The kids asserted that, in effect, Dad had died intestate, because the ’95 will could not be probated and the ’93 will had been revoked. Stepmom, covering her bases, timely appealed the Clerk’s rejection of the ’95 will. The trial court consolidated the two proceedings for a jury trial.

The key issue for today’s discussion is the kids’ assertion that Stepmom was barred from offering the ‘93 will because of the doctrine of judicial estoppel. (This is where the Scottish-law stuff comes in.) They contended that she had taken the position that the ’95 will was proper, and could not now assert that the ’93 will was the right one. And besides, the ’95 will revoked the ’93 will, so that one was dead for probate purposes. In essence, the kids argued that Stepmom was approbating and reprobating by claiming first that one will, and then another, was the true will.

Stepmom was undaunted. “I can do that,” she explained, defiantly. “It says so right here in my copy of Rule 1:4(k).” The trial court ruled that the ’93 will was not Dad’s last will and testament, and submitted the issue of the ’95 will to the jury. The jury ruled in favor of Stepmom on that one.

On appeal, the Supreme Court rules that Stepmom isn’t approbating and reprobating. Her copy of Rule 1:4(k) comports with the ones in the justices’ chambers, and that means that she can assert inconsistent theories in her pleadings. Moreover, Stepmom had lost the initial ruling (the Clerk’s decision not to admit the ’95 will to probate was in effect a judicial act), so she was free to assert the contrary by offering the ’93 will. Finally, the court rules that Stepmom’s tender of the ’93 will wasn’t a collateral attack.

In the end, it all doesn’t matter, the court notes. If Stepmom had indeed approbated and reprobated, then the remedy isn’t to throw her out of court; it’s to hold her to the position she took first. Stepmom’s first position was that the ’95 will was valid, and the jury ruled in her favor on that question, so whatever she did with regard to the ’93 will was immaterial at that point.

One last point here: I’m not sure that the trial court’s ruling in striking the ’93 will was correct. A will speaks at death, not before. The ’95 will, assuming Dad really did execute it, admittedly revoked the ’93 will. But I believe that Dad could have gone into the safe (before it was stolen, of course) and ripped up the ’95 will if he wanted to, thereby “reinvigorating” the ’93 will. I think the jury should have had the option to consider that even if the ’95 will wasn’t valid, the estate could pass under the ’93 will. But that’s all academic at this point, since apparently no one appealed the court’s ruling on the ’93 will, and the ultimate outcome of the case produces the same result.

There’s another T&E case decided today. SunTrust Bank v. Farrar involves an old family trust that contained a single asset for decades – a large coal mine in Kentucky.

The settlor of the trust really, really liked the safety and security of an investment in coal, so he directed in his will that the trustees continue to hold the coal mine “unless conditions undergo a very radical change from what they are at present.” Considering that the settlor died in 1921, you can imagine the kind of radical changes that might have occurred. Back then, encyclopedias described uranium as a worthless metal, nobody had heard of an association called OPEC, and coal-fired furnaces were all the rage – at least, in comparison with their place in today’s methods of heating.

The trust was scheduled to terminate 20 years after the death of the last of the settlor’s children. That death occurred in 1984. Soon thereafter, the trustee (a bank that was later eaten by SunTrust) asked the circuit court for authority to sell the coal mine and diversify the trust’s assets. It got an estimate from a mining engineer that the property was worth $1.1 million. The court authorized the bank to sell the tract, but that didn’t happen for about ten years; by that time, owing to the declining market for coal, the bank could only get $350,000 for it.

You know what’s coming next – the eventual beneficiaries filed suit, claiming that if the bank had sold the property for $1.1 million back in ’87, and had invested the proceeds in a nice mix of securities and bonds, the assets would be worth almost $5.5 million. The trial court didn’t go along with that large damage estimate, but he did award the beneficiaries relief totaling almost $2.5 million. The bank got a writ.

Today, the court issues a ruling that could well have significant application beyond the field of trusts and estates – essentially any litigation involving the valuation of property. The court rules that the beneficiaries’ damage estimate was predicated on an unsupported assumption, specifically that there really was a willing buyer in 1987 for $1.1 million. The testimony in the ’87 hearing (before the mining engineer estimated the value) was admittedly pretty sketchy; the engineer had assumed certain things about how much coal was actually there. But the key component that was missing, in both the ’87 proceeding and the 2007 trial of the beneficiaries’ claims, was any evidence that there was actually a buyer who would have been willing to pay $1.1 million for the property back in the 80’s.

As an intellectual proposition, I follow that. Saying that property is worth $X is all well and good, but if there’s no one who will really pay $X, then the property isn’t really worth that. The trial court in ’07 did receive testimony of the falling value of coal-based assets, so you already have some uncertainty about the bank’s ability to market it at the stated price. (Indeed, the beneficiaries’ own economic expert acknowledged that the appraisal was probably too high, but he noted that it was based on information available at the time.)

But walk with me just a moment and let’s see where this road (mineshaft?) leads. If it’s true that an estimate of value, commonly known as an appraisal, must also certify that there would be a willing and able buyer at a given price, how does that affect appraisals in partition suits? In divorce cases? In eminent domain proceedings? Does every appraiser who testifies in those cases have to certify, not only that $X is the price upon which a willing buyer and a willing seller would agree for Blackacre, but also that such a willing buyer exists, and that he would actually have paid that much? If so, then appraisal testimony just got a lot more complicated.

I may be reading too much into this requirement, which the court cites in reversing and entering final judgment for the bank. The opinion today refers to the above-listed definition of fair market value (willing buyer; willing seller), but it criticizes the 1987 testimony because it “was insufficient to show there was a willing buyer.” I don’t think that today’s opinion was intended as a dramatic departure from time-honored principles governing the admissibility of appraisal evidence. I merely point out that it is possible to read into this opinion a new requirement that a willing buyer cannot merely be a hypothetical concept, and the proponent – in any of these case areas – must be prepared to show that one actually exists.