ANALYSIS OF APRIL 9, 2020 SUPREME COURT OPINIONS

(Posted April 9, 2020) Today provides a bountiful harvest of six new published decisions from the Supreme Court of Virginia.

Criminal law

Modify. The definition of that word is the fulcrum on which today’s published order in Jefferson v. Commonwealth turns. This is an issue of finality and hence of automatic interest for the appellate bar.

In 2015, a circuit court gave Jefferson a break: It gave him a precious deferred finding after finding the evidence sufficient to convict him of abduction and assault charges. He got two years to clean up his act. Alas for him, he didn’t fulfill the terms prescribed by the judge, so he returned to court on August 28, 2017 to face sentencing. The court gave him a period of involuntary free room and board, but mistakenly dated the sentencing order 2018 instead of 2017.

Jefferson’s lawyer presumably noted the error upon receiving a copy of the order, and notified the court. On the 18th day after the first order, the court entered an amended order that corrected the date but didn’t make any other changes. Jefferson noted an appeal three weeks after that.

In what must have come as a surprise to Jefferson’s lawyer, the Court of Appeals dismissed the appeal as untimely. It ruled that the August 28 sentencing order was the final order in the case, even though the court had corrected it later. The notice of appeal here came more than 30 days after the August date, so the CAV felt it didn’t have jurisdiction. Jefferson headed upstairs and got a writ.

The Supreme Court unanimously affirms today. It holds that the correction of a scrivener’s error isn’t a modification for purposes of Rule 1:1. Indeed, a trial court can correct such an error even long after it otherwise loses jurisdiction. The justices today note that the amendment didn’t do anything different; it didn’t add to Jefferson’s sentence or impose more onerous supervision terms on him. 

I will admit that this one caused my eyebrows to rise a bit. As I see it, it’s emphatically possible to view a date correction as a modification. The court chooses instead to interpret the word modify narrowly, so it covers only substantive modifications. Today’s order also observes that the amended order didn’t recite that it was modifying the sentencing order, thus seemingly imposing a dual requirement: an amendment must substantively modify the original order, and it must state that it’s modifying.

In the end, I see the SCV’s point, particularly when it comes to correcting a scrivener’s error a year or so after final judgment; doing so would presumably not revive a long-passed deadline for filing a notice of appeal.

I have a theory that, in another era a generation or more ago, the Supreme Court of Virginia’s opinions were shorter than they are now. I’ve thought about performing an empirical analysis involving word counts, but that seems time-intensive. Still, the older opinions seem more concise to me on average. Against that backdrop, we get today’s five-page opinion in Lambert v. Commonwealth, from the pen of Justice Russell, a jurist whose tenure on the court extends back a generation or more ago. I always appreciate the conciseness and clarity of his writing, and today is no exception.

This is a prosecution for aggravated involuntary manslaughter and DUI. Lambert caused a collision that resulted in the death of a passenger in another vehicle. A paramedic noticed that his speech was slurred, although he seemed cogent. He initially denied ingesting alcohol or drugs, but later admitted that he had just come from a treatment session at a methadone clinic. He also had traces of Valium and Xanax in his blood.

A jury found him guilty of the charges and recommended a prison sentence. On appeal, Lambert contended that the evidence didn’t establish beyond a reasonable doubt that he had “self-administered” the drugs. Evaluating that, the Supreme Court notes today that methadone treatment is voluntary. Thus, even if a healthcare professional technically delivered the drug to him, the treatment was still self-administered. Because the drugs patently affected his ability to drive safely, the court affirms the convictions.

Caldwell v. Commonwealth presents an interesting temporal question involving intent. Caldwell delivered a couple of people to a Lexington hotel, promising to return the next morning to join them for breakfast. The nightly lodging charge at this facility included breakfast for guests. Caldwell ate as well, likely assuming that she was permitted to eat for free as she was the guest of a paying customer. But an employee told her that, because she wasn’t staying at the hotel, she had to pay eight dollars.

Eight dollars. In retrospect, it would have been far cheaper (to say nothing of less stressful) to pay the money and be done with it. But Caldwell didn’t think this was right. She asked to speak with a manager to plead her case, but the manager insisted on payment. After a few energetic words, Caldwell left without paying.

Perhaps heedless of the value of good public relations, the manager called local law enforcement, and a prosecution ensued under a statute that makes it a crime for a person “without paying therefor, and with the intent to cheat or defraud the owner or keeper to . . . obtain food from a restaurant or other eating house.” A trial judge convicted Caldwell, observing that she unambiguously understood before leaving that she had to pay. The Court of Appeals affirmed. But today, the Supreme Court unanimously reverses the conviction and dismisses the indictment.

How did that happen? As I hinted above, it’s a temporal issue. The prosecution had to prove that Caldwell obtained the food with the intent to cheat the restaurant out of the price. The statute doesn’t criminalize a later-formed intent; the Commonwealth had to prove that she intended, at the time she was served, to cheat the restaurant. Here, the evidence is wholly consistent with the theory that Caldwell understood at the time she ate that her breakfast was free; she only learned afterward that the hotel expected her to pay. Since that doesn’t fit the statutory requirements, the evidence wasn’t sufficient to sustain a conviction.

Insurance

Justice McCullough is determined to give Justice Russell a run for his money in VACORP v. Young; today’s opinion in a complex insurance dispute comes in at just over six pages. This appeal resolves the question whether the $50,000 policy requirement for municipal vehicles is a ceiling or a floor.

Young is a student who was injured while riding a school bus that was involved in a collision with a car. She sued the drivers and the school board. The board had purchased a $1 million policy through VACORP, which is the Virginia Association of Counties Risk Pool (I’ve truncated the name slightly; but that’s where the acronym comes from). When the insurer balked at providing coverage beyond the private insurance covering the car, Young filed a declaratory-judgment action to see what coverage existed.

The trial court ruled that the insurer’s liability wasn’t capped at $50,000, as VACORP argued. That meant it was potentially on the hook for up to $875,000 (the $1 million less the $125K covering the car). Young was entitled to the benefit of the policy because she was riding in an insured vehicle. The court observes that the legislature, in requiring $50K in coverage, would not have chosen to forbid localities from buying more coverage for the benefit of its employees and, as here, schoolchildren.

Today’s opinion indicates that this is an issue of first impression for the court. In theory, VACORP could chose to stop issuing these policies, now that its maximum liability has been increased by a factor of twenty. That’s a corner-office level decision and I won’t speculate on it. Meanwhile, in the underlying tort suit, the student will have far more leverage to negotiate favorable settlement terms, knowing that she has the benefit of a million dollars in coverage.

Unjust enrichment

The Supreme Court explores the sometimes-fuzzy boundary between quantum-meruit and unjust-enrichment claims in T. Musgrove Constr. Co. v. Young. The case arose when the son of a construction company’s owner borrowed a company dump truck to haul some logs. Dad may have admonished his son to fill the tank before bringing the truck back, but he blessed the venture.

Unfortunately, after the son and an associate loaded the truck and drove off, they were involved in an accident in which the dump truck tipped over. (That must have been a terrifying experience, knowing that they had a load of logs behind them.) A dump truck on its side is no good to anybody, and not many towing facilities have the ability to right and then tow away something that large. There was also the matter of the logs, which were probably strewn over the scene like pick-up sticks.

This, then, called for help from a specialist. That’s where Young comes in; he’s the owner of a business trading as FoxFire Towing. He arrived at the scene, assessed what had to be done, and then did it. He brought several pieces of heavy equipment to return the truck upright, collect the logs and deposit them, clear away a tree that had been knocked over in the crash, and even perform environmental containment by hauling away soil that had been contaminated by fluid leaking from the truck. He even paid for disposal of these hazardous materials. FoxFire towed the truck away and stored it in a forest near Young’s home.

For this prodigious undertaking, Young sent the construction company a bill for the work, plus an administrative fee and $45 a day to store the truck. The company declined to pay, perhaps reasoning that the owner’s son had borrowed the truck, so it wasn’t on company business at the time of the crash. Young eventually sued for $29,000 — those $45-a-day fees add up quickly — and by the time of trial, the bill was over $50,000.

Young’s suit sought a recovery without an express contract, so it necessarily required the intervention of equity. The circuit court empaneled an advisory jury that gave Young what he asked for, less the $2,000 salvage value of the truck. The judge entered judgment accordingly.

On appeal, the Supreme Court observes that this really isn’t a case for quantum meruit — Latin for “the amount merited” — because that remedy is only available where the debtor asks for the creditor’s help. A quantum-meruit recovery gets the creditor paid the fair value of his work. Unjust enrichment is a kind of contract that the law imposes when the debtor doesn’t ask for the help but the creditor provides it anyway. The measure of damages there is the amount by which the debtor profited by the creditor’s efforts.

In this situation, no one from the construction company called FoxFire for help. That means that the towing company is stuck with recovering the amount of the construction company’s benefit. The Supreme Court rules today that that includes the cost to right the dump truck and to tow it away; plus storage charges capped at the truck’s value, $2,000. Young cannot, however, get paid for the substantial extra efforts at the scene, such as containing the hazardous materials. That work didn’t benefit the construction company. As for the administrative fee, which was largely tied to the towing firm’s overhead, that benefited the towing company, not the construction company, so there won’t be a damage award for that, either. The justices remand the case for further proceedings that will result in a sharply limited recovery by Young.

I’ll confess that I was rooting for the towing company here. It went the extra mile to perform a professional job, only to be told that all that first-rate work was voluntary on its part. One of the key facts here was that the dump truck wasn’t on company business; it had been loaned out to the owner’s son. In theory, Young might be able to recover more from the son than from Dad’s business. But the lion’s share of this award was for storage fees, and since those are capped at $2,000, this is now a small claim.

Medical malpractice 

Finally, the court hands down a published opinion in Curtis v. Highfill, a wrongful-death claim asserting that a doctor recklessly prescribed over 7,000 pain pills to a patient without monitoring her progress. The patient overdosed and died; her personal representative sued the doctor for compensatory and punitive damages. The doctor admitted that his actions did not meet the standard of care, but denied liability based on proximate causation.

At trial, the personal rep presented evidence and rested. The doctor moved to strike the punitive-damage claim, and the circuit court granted that motion. A jury subsequently awarded compensatory damages only. The Supreme Court granted a writ to review the dismissal of the punitive-damage claim.

The court reverses today and remands the case for retrial on punitives. In an opinion by Justice Chafin, the court finds that the personal rep asserted a valid claim that the doctor acted with willful and wanton disregard for his patient. He had reason to know about her alcohol use, but continued to prescribe a torrent of addictive and dangerous medication. A jury could accept this as conscious disregard of the danger to the patient.

On remand, it’s foreseeable to me that the doctor’s insurer may find this a suitable claim to settle. I doubt there will be a second trial.