ANALYSIS OF APRIL 21, 2016 SUPREME COURT OPINIONS
[Posted April 21, 2016] The Supreme Court issues four published opinions today. I’m happy to note their brevity; the longest one is just eleven pages.
My readers no doubt know about Code §8.01-335, the discontinuance statute that allows trial courts to weed out long-dormant litigation. In JSR Mechanical, Inc. v. Aireco Supply, Inc., we learn today whether reinstatement is mandatory or discretionary.
The trial court discontinued a stale case in early 2014. Eleven and a half months later, the plaintiff filed and served a motion to reinstate it as provided in the statute. The court convened a hearing 364 days after the date of the discontinuance order. The paperwork was all in order, but for reasons we’ll probably never know, the court refused to reinstate the case.
The plaintiff persuaded at least one justice to take a look at the matter to address the first-impression issue of whether reinstatement is mandatory or discretionary when a plaintiff properly moves for that relief. The justices today unanimously determine that there’s no discretion involved; if the plaintiff jumps through the hoops, he’s entitled to reinstatement.
The court analyzes the statute, noting that it says that a discontinued case “may be reinstated.” But viewed in context, the court concludes that this is one of those instances where may means shall. The statute doesn’t contain the phrase “good cause.” That language was added in 1997, then quickly removed two years later, so the legislature was aware of the issue. And the presence of that phrase in dozens of other locations in Title 8.01 suggests strongly that its absence here means that discretion isn’t involved.
Limitation of actions
In Haynes v. Haggerty, the court takes up the application – or not – of the statute of limitations for the tort of sexual abuse of minors. That statute now provides that the cause of action accrues on the child’s 18th birthday, or when a health-care professional first communicates a diagnosis of abuse to the patient.
In this case, the plaintiff asserted that the defendant abused her when she was between the ages of 14 and 18. She reached 18 in 1975, but was told of the abuse by a therapist in 2012. She filed suit in 2014.
But the delayed-accrual statute wasn’t in effect in 1975. Back then, it was two years after the plaintiff’s disability (i.e., her status as a minor) ended. When the legislature enacted Title 8.01 in 1977, it excluded from its operation all causes of action that had accrued before that date, so this new provision doesn’t apply to this claim. The justices therefore affirm the trial court’s decision to sustain a plea of the statute of limitations.
One quick note on the justices’ approach to this question: the trial court had ruled based on the defendant’s due-process right to the limitations period. He had a property right in that defense when it arose, and the trial judge felt that the legislature couldn’t constitutionally deprive him of it by legislation. The justices take a statutory approach, described above, instead since they don’t decide constitutional challenges when the case can be resolved by statutory interpretation.
Evidence and pretrial procedure
This heading has two components because Mikhaylov v. Sales decides two discrete issues, each important in its own right. This is a suit for assault and battery.
Mikhaylov was originally charged with sexual battery and abduction, but in general district court he agreed to plead to an amended charge of assault and battery. The court found him guilty on that plea. Sales, the victim of the assault, filed a civil action in circuit court on the same conduct.
Sales asked the circuit court to grant summary judgment on the issue of liability, since her assailant had pleaded guilty to the crime that was the basis for her suit. Mikhaylov wanted to describe to the jury what he felt were extenuating circumstances that led him to plead guilty. The court declined to enter summary judgment expressly, but it did something that had virtually the same effect: it ruled that Mikhaylov would be barred from denying at trial that he committed the assault. The court felt that allowing him to do that would amount to a collateral attack on his conviction.
During the trial, Mikhaylov actually did deny that he had attacked Sales, but the court instructed the jury to disregard that testimony. The jury returned a verdict for Sales.
On appeal, the justices note that the only way for the conviction to bar relitigation would be on judicial estoppel grounds. But judicial estoppel requires identity of parties – the same litigants in the former suit as the current one. It’s well-established that a complaining witness isn’t a party to a criminal prosecution; the moving party is the Commonwealth (or the locality in the case of prosecutions under ordinances).
Because of this difference, the justices unanimously rule today that the previous conviction is not a bar to relitigation of the underlying assault claim, so Sales is still going to have to prove that Mikhaylov assaulted her. By statute, she’ll be able to introduce the guilty plea into evidence when the case is retried, but Mikhaylov will be allowed to try to convince the jury that he didn’t really mean it.
I promised you a second issue. Sales offered medical evidence at trial to show, among other things, that she would need future medical care because of the attack. Mikhaylov objected to this part of the doctor’s testimony because Sales’s expert-witness disclosure said nothing about future medicals.
On this issue, the trial court did a curious thing. Most trial judges I know would sustain that objection, based on the John Crane v. Jones doctrine. This judge noted that Mikhaylov hadn’t moved before trial to exclude evidence of future medicals, and he apparently felt that the failure to file a motion in limine amounted to a waiver, so he allowed the undisclosed evidence.
If that ruling puzzles you, join the club; I’m already a member. The Supreme Court reverses this ruling, too, holding that the pretrial scheduling order required disclosure and Sales didn’t provide it. That order states that undisclosed opinions “will not ordinarily” be admitted into evidence.
Every good litigation attorney will recognize the weasel-word ordinarily in that sentence. If they aren’t ordinarily admissible, doesn’t that make it a judgment call for the court, which can allow the evidence in extraordinary cases?
If so, that’s an engraved invitation to skirt the rule. After all, all of your cases are extraordinary, right?
Okay, I’ll stop kidding around; though I suspect I generated several hundred knowing smiles just now. The justices have never defined the boundary between the ordinary and extraordinary case, and they decline to do so here. But they do go so far as to rule that the failure to make a motion in limine does not constitute a waiver of an evidentiary objection. And there’s no other plausible explanation for the admission.
The court thus remands the case for “further proceedings consistent with” its opinion. That language portends that Mikhaylov’s victory on the expert-witness issue is likely to be short-lived. On remand, I can practically guarantee you that Sales will promptly file a supplemental expert disclosure for the doctor, laying out his opinions on future medicals.
Okay, I’ll admit that I fudged the header for this section slightly. I did that because if I’d used the more accurate title, Mineral rights, you might have skipped over to the next section, since mineral cases aren’t in your portfolio.
Well, there is no next section; this is the court’s final published opinion of the day. And you’ll want to know about Dye v. CNX Gas Co. to get the answer to the burning (sorry) question: Is natural gas a mineral?
I’ve lived my whole life in the flatlands. I was born in northern Indiana, which his flat; I’ve lived here in Tidewater since the age of three, and the only promontories around here are landfills. My law practice has never included anything remotely classified as mining cases. So this is a new topic to me.
But it isn’t new to the Supreme Court; there’s a rich lode (there I go again; I swear I won’t do it anymore) of caselaw on mining disputes. This one stems from a suit by the successor to the grantor of a severance deed, granting unto CSX’s predecessor “all the coal & other minerals” contained in certain land in Russell County. The question in this litigation is whether CSX can extract natural gas based on that grant.
As a life-long flatlander, my initial thought was, “No, because minerals are rocks, and a gas isn’t a rock.” Guess what? I was wrong. Virginia is one of a solid (now, don’t accuse me of pun abuse; I have plausible deniability on that one) majority of states that hold that a conveyance – or a reservation – of mineral rights includes the right to petroleum, which is a liquid, and natural gas.
If you’re still unconvinced, here’s what Merriam-Webster’s Collegiate Dictionary, 11th Ed., has to say: “any of various naturally occurring homogeneous substances (as stone, coal, salt, sulfur, sand, petroleum, water, or natural gas) obtained usu. from the ground.”