(Posted August 26, 2019) I leave the Commonwealth for a week and all Hell – at least in the refined and understated way of appellate developments – breaks loose. I need to rethink my vacations.

While I was away, it started raining opinions. The Supreme Court issued three last Thursday, August 22. It then stepped away from its normal Thursday-only practice to announce three more decisions, including two published orders, on Friday the 23rd. This morning, we got another opinion and an unpublished order. No, I don’t know what prompted this monsoon season. All I can do is dig in and let you know what’s transpired.

Appellate procedure

Given the subject of most of the discussion in Henderson v. Cook, I just have to start here. This is an appeal of a final order in litigation over a living trust. The meaningful part of the proceedings below is that the trial judge issued an order saying that the case would be concluded upon the filing, by the Commissioner of Accounts, of a final report.

When the Commissioner filed that report, one litigant filed exceptions. But the circuit court evidently didn’t rule on those, because it regarded its earlier order as being the last judicial fingerprint in the case.

The justices today unanimously reverse, but the dominant issue in Justice Powell’s opinion for a unanimous court is a familiar thou-shalt-not: The appellant, after getting a writ, decided to be helpful and tinker with the language of the assignments.

Of my audience, those who are experienced appellate lawyers just cringed. This drives the justices crazy: The court has repeatedly chided appellants who change the assignments mid-appeal. This practice doesn’t automatically result in a dismissal – though there may be a rising sentiment among the justices to adopt a rule like that, for simplicity’s sake – as long as the appellant’s brief adequately addresses the issues framed in the original assignments.

Fortunately for this appellant, the court can address the original language within the context of the arguments in the brief of appellant. It determines that the trial court adopted an impermissible setup, whereby court action precedes the Commissioner’s final report. It’s supposed to be the other way around, and the court today sends the case back for the circuit court to have the last say – at least in the trial court.

There’s a complicating factor. The judge who originally entered the final order has retired and is “unavailable to determine the issue.” This means that proceedings on remand might be more complicated than they would be if the original judge could simply reacquaint himself with the case and issue the required final rulings.

The best rule for dealing with changing assignments is the simplest: Don’t change them. Doing so creates more work for the justices, who have to deconstruct your “helpful” amendments. If it turns out that you really do need to make a change after getting a writ, file a motion in which you explain why the change is appropriate. If you have a good enough reason, the court may well grant you that leave. Just don’t use self-help to address a problem like this.


Res judicata

In Lane v. Bayview Loan Servicing, LLC, the court takes up the often-vexing subject of issue and claim preclusion. This litigation began when the holder of a deed of trust on residential property took steps to foreclose for nonpayment of the mortgage. The debtor filed a pro se injunction suit against the law firm handling the foreclosure. The trial court dismissed the suit with prejudice because the homeowner didn’t name the substitute trustee or the noteholder as parties. They are, under well-established law, necessary parties.

The substitute trustee foreclosed, and the loan servicer was the highest bidder. After a trustee’s deed, the servicer sold the property to a new homeowner. The original debtor then got capable counsel who filed a suit to invalidate the foreclosure and both deeds. The trial court sustained a plea of res judicata, finding that the court had already entered a final judgment against the debtor in the injunction suit.

The Supreme Court reverses this judgment and remands the case. Rule 1:6, our relatively new res judicata rule, is quite a dragon, but it requires that the parties be identical, or at least in privity. Here, the only defendant in the injunction suit was a law firm. The justices announce their agreement with other jurisdictions in holding that an attorney is not in privity with his client merely by virtue of the representation. The trial court correctly dismissed the injunction action because the real parties in interest weren’t named. The court strayed, though, when it used that procedural ruling to protect the very parties who weren’t present in the first case.


Criminal law

In a published order entered in Trevathan v. Commonwealth on August 23, the court takes a rare procedural step. In SCOTUS practice, it’s called a GVR, where the court grants a petition for cert, vacates the judgment appealed from, and remands for further proceedings, all in a single order.

The appellant here pleaded guilty but then decided to appeal anyway. Because a voluntary, intelligent guilty plea waives all non-jurisdictional defects, the Court of Appeals dismissed the appeal. The appellant sought succor in the Supreme Court.

Normally, appeals in the Supreme Court of Virginia are two-step dances. The appellant seeks a writ, and only after the court grants one, the parties enter a second round of briefing, followed by oral argument to the entire seven-justice court. Friday’s order eliminates that second step, sending the case back to the Court of Appeals. The justices rule that even after a guilty plea, a criminal defendant has a statutory right to note an appeal and file a petition. The proper thing to do in that circumstance is to refuse the petition; not dismiss it as happened here. The justices accordingly reverse and send the case back to the Court of Appeals, which can grant or refuse the petition on the merits.

This batch of rulings includes another published order in a habeas appeal. In Murphy v. Smith, the petitioner is being held on a charge of capital murder, awaiting trial. But doctors have determined that he isn’t competent to stand trial. That requires a series of reviews, one every six months, to determine if his condition has improved enough to permit such a trial.

By 2014, fourteen years after the indictment, the local circuit court ruled that the petitioner was “likely to remain incompetent for the foreseeable future.” You can’t try him and you can’t release him. What is to be done with such a person?

After receiving a court order in May 2018, requiring another six-month review, the petitioner’s lawyer moved the Supreme Court to dismiss the indictment. This is an “OJ” proceeding, one invoking the Supreme Court’s original jurisdiction, so this isn’t truly an appeal.

The justices decide to dismiss this appeal based on what many observers would call a technicality. (Don’t knock technicalities. Especially for lawyers, details matter.) The court notes that the habeas petition was filed more than six months after the date of the May 2018 order. That means that, since that order expired six months later, it was no longer in effect when the lawyer sought review. And that means that this case seeks review of a lapsed order.

What’s next? The published order hints at that: “This dismissal is without prejudice to petitioner filing a habeas petition challenging a current order of confinement under Code § 19.2-169.3(F) or his seeking expedited review so as to permit timely resolution of his claim.” This is an engraved invitation to file a timely petition raising the same arguments, at which point the court will have to address the merits of this thorny problem.



We encounter a procedural curiosity in Handberg v. Goldberg, a defamation dispute between a father and a person who served as an educational advocate for the father’s son. This relationship lasted for a time until the father felt that the advocate was billing inappropriately for her services. That led the father to do something we all wish we hadn’t done on one occasion or another: fire off an e-mail. This one, sent to the advocate and to others, stated that “Dr. Goldberg no longer represented his son, stating he was terminating Dr. Goldberg for fraudulent billing, and criticizing the billing practices of Dr. Goldberg and the Morgan Center as unethical.”

The advocate sued for defamation, identifying eleven separate statements in the e-mail that she claimed were actionable. The trial court ruled that eight were potentially defamatory, but the other three were statements of opinion.

But when the case came to be tried before a jury, the court allowed an instruction that referred to all of the statements in the e-mail; not segregating the eight actionable ones. The jury returned a verdict for the advocate and gave her $90,000 in damages. The court entered judgment accordingly.

On appeal, the Supreme Court notes the inconsistency of the court’s rulings. It is a matter for the court, as gatekeeper of which claims are potentially actionable, to winnow out the non-defamatory chaff from the actionable wheat. The judge, having ruled that three statements were matters of opinion, then incorrectly failed to tell the jury about that ruling, allowing the juror to consider all eleven statements. Because the jury returned a general verdict, it was impossible for the justices to allocate a particular portion of the verdict to the permissible claims, so they remand for a new trial.

This case features one other procedural quirk. The father counterclaimed for money that he claimed he was wrongfully billed, and the jury agreed with him on that, awarding him the princely sum of $35 in compensatory damages. But it tacked on another $45,000 in punitive damages. The advocate either didn’t appeal this award, or the justices refused cross-error on it, so that part of the judgment looks to be final. The father argued that these verdicts were inconsistent; the jury vindicated him on his claim of conversion, so he should win on the remaining claims. The Supreme Court rejects this argument, finding the two issues to be separate.

Justice McClanahan writes this opinion for a unanimous court. This may be her last as an active justice; her retirement takes effect this weekend, after which she takes the reins at the Appalachian School of Law. I’m going to miss seeing her from the lectern. She was uniformly gracious to me in my appearances before the court.


Property owners’ associations

The decision whether to move to a neighborhood governed by a POA requires a balance of competing interests. Sure, you sacrifice some freedoms on how you use your property. But the countervailing benefit is that you know you’ll never have to live next door to someone who’s decided to paint his house lavender and neon green.

The property owners in Sainani v. Belmont Glen HOA found themselves on the business end of an enforcement action related to holiday lights. The HOA imposed strict limits on how owners could decorate their homes. Here’s one illustration: Halloween lighting had to be green, orange, or purple. Other limits specified which holidays its residents could observe with lighting, required that lights be off after midnight, and exterior lighting may not be “directed outside the boundaries of the Lot.” (Really, isn’t that the point of holiday lights? You want your neighbors to see how holiday-minded you are. But I digress.)

But I’m straying. The owners here started displaying lights for “several Hindu, Sindhi, and Sikh religious holidays throughout the year.” In eventual court proceedings, a judge found that the owners’ lights were on “24/7” for 300+ days each year. That resulted in administrative enforcement actions and a series of fines, which the owners ignored. The HOA eventually went to GDC to collect on the fines. The owners ignored that, too, so the HOA got a default judgment. The owners appealed to circuit.

At this point, the owners finally wised up and hired a lawyer. That advocate counterclaimed, but now the HOA was also seeking injunctive relief prohibiting further violations. The trial court ruled for the HOA, dismissing the counterclaims and awarding the HOA monetary and injunctive relief.

On appeal, the Supreme Court analyzes the case and rules that the HOA’s holiday-lighting guidelines exceed the authority granted in the declaration of restrictions. The declaration grants various powers to the association’s board, but the court adopts a narrow construction of those powers, consistent with prior holdings that esteem the free use of one’s property over any restrictions on that right. Viewed in that light, the court rules today that the holiday-lighting limits “exceed the scope of the restrictive covenants and are not reasonably related to any of them.” The Supreme Court remands the case to the circuit court for consideration of the owners’ counterclaims.

Justice Kelsey writes today’s opinion, so there’s an obligatory citation in there to Blackstone’s Commentaries. I assure you that William Blackstone, who lived in the Eighteenth Century, never heard of homeowers’ associations. But Justice Kelsey makes the citation sing anyway.