[Posted February 25, 2010] Opinion day arrives 24 hours early this week, as the Supreme Court has condensed the February session into four days. Tomorrow the court will take up writ arguments that were postponed because of the February 9 snow storm across the Commonwealth.

Today’s batch of cases includes 21 decisions but only 20 published opinions, because two related appeals were consolidated into a single opinion. In contrast to the recent trend where a majority of decisions are in the field of criminal law, today we get only six criminal decisions – still a plurality, but nowhere near the numbers we have seen lately.

This week’s schedule adjustment at the court will delay my posting of analysis here to a degree, because I have one of the writ arguments in Richmond tomorrow. My plan is to post analysis all day today, then resume when I return to the office from Richmond tomorrow, probably somewhere around noon. I expect to be finished with today’s decisions by Sunday, or Monday morning at the latest.

Preservation of error

Let’s start with the decision that will have the greatest effect on trial practice: United Leasing v. Lehner Family Business Trust. This ruling will affect every trial lawyer across the Commonwealth who appears in state court. And it cuts across all case types, even including criminal law. From a major-news perspective, this decision won’t even be a blip on the radar. For trial lawyers, it’s massive.

Let’s say you’re defending a contract suit, and the plaintiff presents her evidence and rests. You make a motion to strike, on two distinct grounds. Despite your compelling argument and your lofty rhetoric, the judge denies the motion, so you go ahead and present your case in chief. At the conclusion of all the evidence, you have the presence of mind to rise and say, “Your honor, I renew my motion to strike.” The judge notes that you have renewed it, but he proceeds to take up jury instructions, saying you can discuss that motion later on.

The issue in this case is whether that phrase – “I renew my motion to strike” – is enough to preserve for appellate review your challenge to the sufficiency of the evidence. The phrasing is extraordinarily common; you’ve used it, I’ve used it, and the lawyer two doors down uses it every day. It’s a shorthand way of making the same arguments without taking all the time to repeat the arguments you have already made at length.

The problem with this phrase is that, as the court has reemphasized as recently as last month, the motion after all the evidence is not the same one as the one you made at the close of the plaintiff’s case in chief. That’s because the motion at the end of the case encompasses a different quantum of evidence – specifically including yours – than the earlier one did. The first time around, you were essentially arguing that Facts A, B, and C (from the plaintiff’s case) aren’t enough to warrant a plaintiff’s verdict. By the end of the case, you must argue that Facts A, B, C, D, and E aren’t enough to warrant such a verdict. That, you see, is a different analysis, so it calls for a different motion.

So, if you merely “renew” your earlier motion, what good have you done, really? Making just the “A, B, and C aren’t enough” motion at the close of all the evidence will obviously not preserve for appellate review your challenge to all of the evidence, since in effect you never made the correct motion.

In this case, there was a twist. When the court did, as promised, take up the motion to strike, all the defendant’s lawyer said was, “I wanted to renew my motion to strike at the end as we had stated, stating that the plaintiff did not prove that there was a deficiency in this situation.” Period; end of argument. That issue was one of the two he had asserted at the close of the plaintiff’s evidence, but he made no mention at all of the other one (the validity of an assignment). Today the Supreme Court holds that, despite the non-waiver language in Code §8.01-384(A), the assignment issue is therefore waived, because the lawyer never specifically asserted it at the end of the case.

This opinion doesn’t come right out and say that the mere phrase, “I renew my motion to strike” is insufficient, but in my view, it might as well do so. I perceive that the court will regard such a blanket statement, without any explanation at all, to be a waiver of the sufficiency issue on appeal, assuming the defendant has put on some evidence. This means that as a defendant, you must state, in at least some detail, the grounds of your “renewed” motion to strike at the conclusion of all the evidence (or in a motion to set aside the verdict) if you intend to ask an appellate court to set aside a plaintiff’s verdict on sufficiency grounds. I think you can probably incorporate the argument by reference to a degree, as long as you make some reference to the additional evidence you adduced in your case. You are welcome to ignore this advice, as long as your malpractice premiums are paid up.

For another important preservation ruling, scroll down to the discussion of Scialdone v. Commonwealth, in the criminal-law section.


If you know much about arbitration, then you probably either really, really love it or you really, really hate it. Very few lawyers will find themselves on the fence when it comes to this ADR procedure. Today we get an illustration of why some folks really, really hate it, in Cotton Creek Circles, LLC v. San Luis Valley Water Co.

This appeal somehow involves land in Colorado, and like most good Western stories, it’s fundamentally about water rights. But for our purposes, we can limit the discussion to this: In a dispute between an LLC and one of its members over a non-compete provision, the parties went to arbitration. The plaintiffs sought a ruling that the Bad Guy (note the black hat he’s wearing) was cheatin’ on the operating agreement by acquiring land within a geographic zone of exclusivity. The Bad Guy responded that he wasn’t doin’ nuthin’ wrong, and besides, he would agree to give the plaintiffs a water easement, so they should just go away happy.

It looks like the arbitrators have a fairly simple choice – either the Bad Guy was violating the agreement, or he wasn’t. But instead of rendering such an either/or ruling, they played Solomon and ruled that as long as the Bad Guy gave the plaintiffs the easement, then all would be right. The plaintiffs went to circuit court, seeking to overturn this creative ruling.

The problem with the circuit-court route is that judicial review of arbitration rulings is sharply constrained (today’s opinion notes that such review is “among the narrowest known to the law”). There are only a handful of judicial challenges you can make to an arbitration award. The only one that offered the plaintiffs any hope was the argument that the arbitrators had exceeded their powers. The plaintiffs argued that they had done so by ignoring the plain language of the operating agreement. The circuit court declined to disturb the ruling, but the Supreme Court granted a writ.

Today, the court fuels the fires of the “really, really hate it” bonfire by affirming. It notes that arbitrators are allowed to get the merits of the ruling wrong, even egregiously; but that doesn’t invalidate the award. Basically, when parties agree to arbitrate a dispute, they sign away their right to what we normally perceive as appellate review of the outcome. The arbitrator doesn’t have to do anything that even makes sense; he just has to resolve the dispute he was hired to decide. These arbitrators plainly did that, as the dispute clearly arose “with respect to” the operating agreement. Accordingly, the guy wearing the black hat can now ride smilingly into the sunset.

(For defamation purposes, I hereby disavow any actual suggestion that the appellee was a Bad Guy. That was just an application of poetic license within the Western genre.)

Sovereign immunity

If you accept the facts as pleaded by the plaintiff in Ligon v. Goochland County, he’s got the county dead to rights. Ligon was a county employee who got solid performance appraisals for quite some time, until he reported his supervisor within the Building and Grounds Department for operating what looked to him like a fiefdom – directing his employees to run personal errands for him, and telling them to complete their work off-the-clock. Ligon’s report led to an investigation of the supervisor.

This, it turns out, was a bad career move. The supervisor immediately (and I mean the same day as the initial investigative interview) wrote up a blistering report on Ligon, criticizing his attitude. The next day, he decided that a written reprimand wasn’t enough; he went ahead and fired Ligon.

Plaintiffs’ employment lawyers are salivating now at the prospect of a clear case of retaliation for whistleblowing. But when Ligon filed suit, the circuit court promptly dunked it because of sovereign immunity. It ruled that the Virginia whistleblower statute doesn’t specifically abrogate the sovereign immunity of counties, which are arms of the Commonwealth. Ligon headed to Richmond.

The justices offer him no succor today; they affirm unanimously, finding no specific legislative abrogation of the immunity. Such an abrogation has to be explicit – no implied waivers allowed – and the statutory framework of this act just doesn’t contain any waiver of the immunity. That means that, fiefdom or not, the county can’t be sued on a whistleblowing theory for the acts of its staff.


The court today takes up again the issue of when I trial court can find a plaintiff to be contributorily negligent as a matter of law, in Rascher v. Friend.

I have witnessed one bicycle/automobile collision, and trust me, that’s enough. I wouldn’t have given you five cents for the cyclist’s survival chances as she flew through the air after impact. (Fortunately, I was wrong and she recovered.) Fast-forward to today: The genesis of this appeal was a lower-speed collision that was still quite painful; the cyclist incurred $15,000 in medical expenses alone.

The cyclist actually saw the driver of the minivan as he pedaled toward a school. The driver was stopped in an oncoming lane, waiting to turn left into a school parking lot. About 50 feet away from the entrance, the cyclist looked down to check his speed – 19 mph, well under the 25 mph limit – and when he looked up, he was right on the vehicle. He was thrown to the pavement, after which the driver apologized to him, noting that she just hadn’t seen him.

Well, so much for proving primary negligence. At trial, the defense focused on contrib, claiming that with a car waiting to turn across his path, the cyclist was negligent by looking down to his speedometer. The trial judge let all the evidence come in before ruling on the defense’s motion to strike; he granted it, finding that if the cyclist hadn’t looked down, “maybe he could have avoided the accident.”

(Ahem.) Maybe? This is a motion to strike, theoretically meaning that no jury could possibly rule that the cyclist wasn’t negligent. Today the Supreme Court unanimously reverses, noting both that it isn’t necessarily negligent to glance down to check your speed, and even so, any such “negligence” may or may not have been a proximate cause of the collision. The court remands the case for a new trial, after noting that the best course of action for trial judges is to go ahead and get a verdict in close cases, so the Supreme Court can enter a final judgment instead of remanding.

Okay; if you cringed at the mental picture of a bicycle/auto accident, you’re really not going to enjoy reading about the injury in Sales v. Kecoughtan Housing Co. It’s a claim by a tenant against his landlord and the property management company, alleging an infestation of mold in the tenant’s apartment. The tenant notified the landlord, which sent a workman in to fix the problem. But according to the tenant, the work largely consisted in painting over the affected areas, without any real mold remediation. Despite that, the landlord assured the tenant that the repairs had been made and the property was safe to occupy.

Mold is nasty, and this stuff, according to the tenant, eventually destroyed all of the personalty he had in the place. Much, much worse, it started growing in his eye, causing serious injury and concomitant medical bills. The tenant sued for negligence in the repairs, plus fraud. The defendants demurred, and the trial court sustained those demurrers, dismissing the case.

The Supreme Court sends this case back for trial, too. It finds that the landlord undertook to complete the repairs, so it had a duty to do so in a non-negligent manner. The tenant plainly alleged that the repairs had been performed negligently, so he gets to a jury on that claim.

The fraud counts are a bit tougher, since the defendants had a fairly sharp arrow in their collective quiver. The tenant sued on the statement that the property was safe to live in. That sounds an awful lot like it might be an expression of opinion (for which no fraud count can lie). But the court finds that it’s a statement of existing fact – the condition of the property is currently thus-and-so – making it suitable for a fraud claim.

Keep in mind that since this case was decided below on demurrer, the facts reviewed by the court are just those asserted in the complaint. The tenant still has to prove them. But as insight into the review of demurrers, this case is a reminder that a plaintiff gets plenty of leeway in pleading most matters.

Next up is Hollingsworth v. Norfolk Southern, a FELA suit against the railroad by one of its employees. The employee asserted that he sustained foot and ankle injuries because he had to walk across the rough ground adjacent to railroad tracks. In order to prove the causation of the injury, he understandably called in a couple of podiatrists to testify.

The employee must have been puzzled when the railroad argued that the foot doctors were not qualified to testify as to causation. Treatment, yes; but not causation. Whatever can they mean? These guys are foot doctors, for Pete’s sake; that’s what they do.

To his eternal consternation, the trial court agreed, since he found that podiatrists aren’t “medical doctors” under Virginia law. And since only medical doctors can testify in Virginia as to medical causation, and since the expert-disclosure deadline had passed, the plaintiff had no admissible causation evidence, so the case got dismissed.

The Supreme Court took the case to review whether podiatrists should be permitted to give causation evidence in a case like this. By a vote of 6-1 (the chief justice dissents, but posts nary a word to say why), the justices rule that the podiatrists are out. Primarily that’s because the statutes define the practice of medicine, and that definition includes the word diagnosis. The definition of the practice of podiatry, in contrast, doesn’t include that key word. That evinces a legislative intent to classify the two professions separately. The court finally declines an invitation to carve out a special exception for podiatrists to permit them to testify, so the defense judgment is affirmed.

If at first blush the idea that a podiatrist shouldn’t be permitted to testify about a foot injury sounds a bit odd to you, you’ve got company. At least two legislators thought it made no sense, either; hence the introduction of two bills in the current General Assembly session to redefine the practice of podiatry to include the word diagnosis. Both bills have overwhelmingly passed their respective chambers and are being reported favorably out of committees in the other chamber, so it looks as though today’s ruling may have a very short shelf life.


Would the Catholic Church ever breach a contract? Could it? We find out today (at least at the demurrer stage) in C. Porter Vaughan, Inc. v. DiLorenzo. According to the complaint, the Catholic Diocese of Richmond had some property it wanted to sell in the Fan, near the VCU library. It hired a broker to market the property, but they ominously didn’t sign a listing agreement.

Now, what on earth would inspire a sensible, experienced real estate company, which surely knows about the Statute of Frauds, to forgo signing an enforceable contract with a seller? Nothing that I can think of, expect perhaps the thought that the Church would never try to stiff the broker out of a commission. But according to the allegations in the complaint, that’s exactly what did happen; after an initial contract fell through, the bishop allegedly contacted the VCU Real Estate Foundation and sold the property directly, bypassing the agent. This despite the fact that the agent had previously marketed the property you the university. For shame!

Obviously, you know what the issue is going to be here: The bishop, named as the defendant as the nominal head of the diocese, demurred because there was no signed agreement setting forth the relationship between agent and principal. The agent pointed to several ancillary documents that referred to some sort of relationship; one of those was the initial, failed contract, which clearly called for payment of a commission to the agent. But the trial court sustained the demurrer. None of those documents set forth the specifics of the alleged relationship, and none mentioned what percentage the commission would be. As for the former contract, the court reasoned that that one died when the deal fell through, so it was of no use to the poor agent.

On appeal, the Supreme Court breathes new life into the suit. It finds that the initial contract contained a perfectly satisfactory statement that there was an ongoing relationship between principal and agent. To the bishop’s argument that that earlier contract was insufficient to entitle the agent to sue for an entirely different transaction, the court recites the primary lesson of today’s case, taken from an earlier ruling:

“[T]he statute [of frauds] does not require that contracts within its purview be written. It merely interposes a bar to the enforcement of certain oral contracts, which bar may be removed by proof of a sufficient written memorandum of the transaction. When the bar is removed, it is the oral contract which is subject to enforcement, not the memorandum. Because the memorandum serves only to remove a bar to the enforcement of the oral contract, the validity of the oral contract may be established by other evidence.”

Accordingly, all that the agent needed in order to maintain the suit was something to take the case out of the statute. Once the agent did that, it was free to prove the terms of the contract by other means – even parol. This one, too, heads back to the trial court where, the court helpfully reminds us today, the broker will have the ultimate burden of proof.

Since insurance policies are contracts, this looks like a good place to discuss Newport News School Board v. Commonwealth. This appeal implicates an insurance policy issued by the Commonwealth to protect the school board from liability. But aren’t school boards immune from liability, you might ask? Yes, they are; but not where the right to sue comes from federal law. The boards’ common-law immunity can’t overcome a federally-created right.

The federal right involved here arises from the Individuals with Disabilities Education Act, which requires localities to provide certain educational opportunities for students with disabilities. A family claimed that the Newport News schools hadn’t provided such opportunities for their son, and a hearing officer agreed with them, finding that they were entitled to $118,000 as reimbursement for educational costs and their fees and costs. A hearing officer reviewed that award and lopped off more than $60K.

Under IDEA, that ruling triggered the family’s right to file a legal action; they did so in US District Court. That court eventually entered judgment for about $103,000 plus interest, and the Fourth Circuit affirmed.

Back to the insurance policy: The school board had tendered the claim to the Commonwealth under the policy, but the folks in Richmond said no dice; this is a suit for the equitable remedy of reimbursement, not a claim for damages, and the policy doesn’t cover such things. No coverage, and no defense, either. The law is well established on at least one point here: If the question of coverage is a close call, then an insurer refuses a defense at its peril.

Today, the Commonwealth gets nailed right in the wallet for that decision, as the Supreme Court rules that there is coverage for this claim, and there was a duty on the part of the Commonwealth to defend. The court reverses a trial-court finding of no coverage and directs payment of the $103K ordered by the federal court, plus another $53,000 in fees for this case. But wait! There’s more. Because the school board had to litigate this claim all the way to the Supreme Court, the Commonwealth will find itself on the hook for the costs of the appeal, too.

Insurance-law practitioners will find some familiar language here, including the premise that “the obligation to defend is broader than the obligation to [indemnify].” An insurer has to defend even a specious claim, as long as at least some of the allegations in the complaint would fall within the policy.

From a substantive standpoint, the most important ruling here is one of first impression in Virginia. The court finds that an IDEA claim for reimbursement is indeed a suit for damages. When the district judge took up the case, he wasn’t reviewing the hearing officer’s ruling, sitting as a sort of appellate court, because lower federal courts aren’t empowered to do that with regard to state proceedings. The most notable development in this context is the court’s distinguishing a seemingly-incongruous ruling by the US Supreme Court in Burlington School Committee v. Dep’t of Education (1985), describing the high court’s ruling there (that reimbursement isn’t a form of damages at all) as dictum.

The court also rules today that this IDEA award isn’t an administrative procedure. This matters because the policy excludes that kind of claim from coverage.

Criminal law

The first two cases I’ll mention in this section are de facto companion cases, in that they address the same kind of issue, although they arose entirely separately. Both, coincidentally, came out of Virginia Beach. The first is Ghameshlouy v. Commonwealth and the second is Roberson v. Commonwealth. The issue in each case is the identity of the prosecuting authority.

Normally, identifying who’s prosecuting you isn’t hard; you just look at the summons, warrant, or indictment and read the first name in the caption. But the procedural posture of these cases isn’t quite so clear. In Virginia Beach, once upon a time (such as back in the 90’s, when I worked in City Hall) the City Attorney prosecuted misdemeanors arising under the City Code, while the Commonwealth’s Attorney prosecuted all state offenses. Several years ago, that division ended when the City ceded all prosecutorial authority to the Commonwealth’s Attorney.

Sometimes, as here, there’s a combination of state and local charges in the same trial. For example, Ghameshlouy was charged with failing to identify himself to law enforcement (City Code §23-7.1) and with possession of cocaine (Code of Virginia §18.2-250). The same prosecutor handled both charges. Ghameshlouy pleaded to the cocaine charge, but was tried and convicted on the local charge.

So when you file a notice of appeal from such a case, who do you list as the appellee? Both appellants listed the Commonwealth, and sent copies of their notices and petitions for appeal to the Commonwealth’s Attorney. Roberson did so based on the recitation in the sentencing order that he had been charged and convicted of both the local DUI ordinance and its state counterpart (“City law section 21-1/18.2-266”).

The discrepancy initially didn’t register with anyone; around here, we’re accustomed to some fuzziness over which is the prosecuting authority, especially when the language of the code provisions is the same. But eventually, on appeal, someone noticed and raised the issue. Today, on essentially the same procedural defect, Ghameshlouy wins and Roberson loses. The difference is a waiver argument.

Fundamentally, these two cases are about appellate jurisdiction. Specifically, the question is whether an appellate court can acquire jurisdiction over a case when the notice of appeal names the incorrect appellee. The Supreme Court resolves this dispute from the following language in the Roberson opinion:

“Any defect in the notice of appeal that does not touch on its timeliness or the identity of the case to be appealed is procedural only. Thus, the failure to identify a necessary appellee in the notice of appeal is subject to being waived by subsequent actions of the unnamed appellee participating in the appeal if the appellant properly asserts the waiver when an objection is subsequently raised.”

I added the italics toward the end to show why one of these appellants wins (sort of; he only gets a remand to the CAV for further analysis) and the other one loses. Ghameshlouy raised a waiver issue because the local prosecutor entered an appearance in the CAV proceedings and helped defend the case, so he gets the remand. Roberson loses because he “steadfastly, although incorrectly,” insisted that the Commonwealth was the actual prosecuting authority in his case.

If you know something about jurisdiction, you might recall the principle that subject matter jurisdiction cannot be waived. In that vein, the court today explores (in Ghameshlouy) the four components of such jurisdiction, and concludes that this isn’t among the nonwaivable species of that genus.

The court gets its first chance to address the provisions of the drug court program today, in Harris v. Commonwealth. Harris pleaded to possession of heroin and received a three-year prison term with 2½ years suspended. His conviction and sentence were deferred to give him a chance to participate in and complete a treatment program, with the promise that if he made it, the charges would be dropped. He eagerly entered the program.

Alas, someone just as eagerly booted him out. He was returned to the circuit court for sentencing, and now he’s staring hard at doing at least those six months. He asked the trial judge to consider the reasons why he was tossed from the program, alleging vaguely that he was doing quite well but was only kicked out because he had been “poking fun” at some of the staff in Internet postings. But by the time he found out about the whole thing, he had already been removed from the program. The issue on appeal is whether the trial-court judge should have at least considered his explanation before removing him.

Okay, here’s one you don’t see every day: The appellant unquestionably did not proffer into the record the evidence that he wanted to present, and the Supreme Court reverses anyway. The court finds that one does have a limited liberty interest in participation in a program like this (analogous to probation and parole). The trial court, by summarily removing Harris from the program with no advance notice, had given him no opportunity even to address the court on why, exactly, he was sent away. Thus, the court prevented the appellant from making a proper proffer. And when the Supreme Court finds that a trial court has effectively thwarted appellate review, it will grant relief. It does so here, sending the case back to give Harris “the opportunity to be heard regarding the propriety of the revocation of his liberty interest.”

I have written previously about Fullwood v. Commonwealth, back on May 12 when the Court of Appeals released a published opinion. Today the Supreme Court again affirms the convictions. The issue in the case is whether one can be convicted of two counts of possessing drugs within 1,000 feet of a school, merely because one possesses both cocaine and marijuana. The court finds that nothing in the Double Jeopardy clause forbids two such prosecutions, especially since Fullwood was seen completing multiple drug transactions.

The court also rejects his argument that an apartment complex’s private parking lot wasn’t “open to public use.” It may not have been open to legitimate use by you and me, but it sure did draw a lot of bystanders, according to the record. And as the court notes, deliverymen and tenants’ visitors came there all the time, not to mention the parade of folks who came there from time to time to make illegal drug purchases.

As long as we’re hanging around apartment complexes, let’s take up Jones v. Commonwealth, an appeal of a conviction for driving after a habitual offender adjudication. In the wee hours of an unspecified date, Jones pulled into a parking space at an apartment complex and headed for the building. He returned shortly thereafter and poked around the trunk for a few moments. All the while, he was observed by a couple of off-duty sheriff’s deputies who had been hired by the apartment complex to maintain security. One of their jobs was to shoo away interlopers who weren’t on the (private) premises legitimately.

The deputies decided to ask Jones what he was doing there. He didn’t have the requested ID, but he told them his name and other identifying information. He also said that he was there because his baby daughter was sick. That sounds all well and good, but these officers were undeterred by a single plausible-sounding answer; they followed up with, “Okay; which apartment?” That got a general gesture in the direction of the building, but Jones couldn’t say which specific apartment.

A consensual pat-down produced nothing. At this point, Jones isn’t in any hot water, but as far as the deputies are concerned, he’s got to go. They asked politely if he would accompany them to the management office, “to fill out the paperwork” to have him barred from the premises.

A short explanation is in order. An owner of private property obviously has the right to determine who can and who cannot enter upon the premises. Landlords have an understandable interest in preventing trespassers, drug dealers, and other assorted ne’er-do-wells from setting up shop on their premises. Trespassing charges, by which such bans are generally enforced, require proof that the offender has been barred from the property. In situations like this, the usual practice is to serve on a given trespasser (who thus gets one “free” trespass) a notice that he signs, with the landlord keeping a copy as proof of notice. That’s what the deputies had in mind.

Jones came along quietly, and that was his undoing. While they were at the office, one of the deputies ran a quick DMV check and found that Jones’s licensed had been popped. That got him the opportunity to wear some silver bracelets, and the right to remain silent (not to mention a free ride in a police car), since the deputies had watched as he drove up to the building just a few minutes earlier.

The issue in the trial, and today on appeal, is whether the deputies seized Jones when they herded him off to the office. If so, then we get the tantalizing question of whether the use of private security personnel constitutes state action. Alas, the anticipated big-bang fizzles. That’s because the court assumes without deciding that there was state action, and finds that this wasn’t a seizure at all.

As with other cases involving the boundaries between consensual encounters and seizures, the primary question is whether a reasonable person would have felt free to disregard the officers and go about his business when they asked him, “Will you come with us, please?” This is always a case-by-case judgment call, and the court today finds none of the elements of compulsion that accompany findings of seizures. The deputies never drew their weapons, never placed their hands upon Jones, and didn’t even raise their voices to him. Indeed, one of them testified that they never even ordered Jones to coma along: “No. He was cooperative.” Under these circumstances, Jones’s cooperative approach means that the deputies never seized him – until, of course, they saw his driving record, by which point it was too late.

There’s a vital preservation-of-issues ruling in Scialdone v. Commonwealth, involving a summary finding of contempt against two Virginia Beach attorneys and their summer law clerk. This is the third time I’ve addressed these three consolidated appeals, as the Court of Appeals issued an en banc opinion in January 2009. Replowing all that factual and procedural ground would occupy a lot of space here (the facts and procedural-posture segment of today’s opinion takes up 15 pages), so I’ll give you hyperlinks to my earlier analysis (the original panel decision is discussed here, and the en banc discussion is here) and move straight to today’s findings.

A bare majority of the sharply-divided CAV found last year that the appellants had failed to preserve their request for an evidentiary hearing, because they only mentioned the issue in a motion for a stay of sentence. Specifically, the majority found that asking the trial court to stay proceedings isn’t the same thing as asking the court to reconsider its underlying finding of contempt. Today, a unanimous Supreme Court reverses that ruling, in language that will make a lot of trial lawyers breathe a little easier. The operative language of today’s ruling comes straight from Judge Elder’s dissent in the CAV:

“[W]here a party makes his objections known to the court prior to or at the time of entry of a final order or decree and does not specifically disclaim the desire to have the court rule on those objections, entry of a final order or decree adverse to those objections constitutes a rejection of them and preserves them under Rule 5A:18 [and Rule 5:25] for purposes of appeal.”

The court is quick to note that there are still circumstances where an immediate objection is required, and it also includes some language about the unique circumstances of this case. But what the court has just ruled is that even raising an issue in an oblique manner can suffice to preserve the issue for appellate review. Here, the trial court was aware (before entering final judgment) of the attorneys’ argument that they were entitled to certain Due Process protections. Even though that argument was raised in what is at best an ancillary motion, that’s enough to preserve the issue.

This part of the ruling surprised me, as I didn’t expect the court to be quite that expansive in a matter as vital to the court’s operation as preservation of issues. I sense that this ruling will apply in all contexts (civil as well as criminal). Just remember the important limitation that the judge below must have ruled on the objection, either actually or constructively. In this sense, the case differs from Nusbaum v. Berlin in that the attorney in Nusbaum specifically told the judge that he wasn’t asking for a ruling on his objection.

On the merits, in contrast, there are no surprises. The court finds that a number of the events forming the alleged contempt occurred outside the judge’s presence, so she was required to give the lawyers an evidentiary hearing, the right to counsel, and so forth. The case is thus remanded for such a hearing.

One last point: No one comes away from today’s ruling looking particularly good. The lawyers’ conduct, while it will be the subject of a new plenary hearing, looks just awful (at least to me), and as I wrote last year, careers can get damaged by such things. The trial judge doesn’t escape, either; the excerpts cited in today’s opinion could easily lead a reader to the conclusion that she acted out of anger. That anger would probably be fully warranted under these circumstances, but it certainly can’t justify discarding constitutional rights. Today’s ruling isn’t a censure of the judge, by any means. But the fact that this kind of language gets quoted here will remind trial judges to be circumspect in their response to what they perceive as attorney misconduct.

Attorney discipline

We all know that filing frivolous pleadings can get an attorney sanctioned under Code §8.01-271.1. That rule is far more ruthless than its federal counterpart, Fed.R.Civ.P. 11, primarily because it doesn’t have a safe-harbor provision. But did you ever stop to think that filing a frivolous pleading can affect your Bar record? Check out Weatherbee v. Virginia State Bar for the answer.

Weatherbee filed a med mal suit against some doctors, arising out of an allegedly botched surgery. One of the doctors was Ward P. Vaughan. Dr. Vaughan didn’t perform the surgery – that would have been Dr. Backer – but the medical records showed that Dr. Backer was assisted by someone known as “Bob Vaughan.” There were only three Virginia-licensed doctors named Vaughan who practiced in this field, and two of those were female, so Weatherbee deduced that Bob and Ward P. were the same person; he accordingly included Dr. Vaughan as a defendant when he filed suit.

That’s excellent reasoning, with one little flaw: It’s wrong. Dr. Ward P. Vaughan doesn’t go by the name “Bob”; he didn’t assist in the surgery; and he doesn’t even work at that hospital. State Bar investigators concluded that this problem would have been obvious to Weatherbee if he had performed even routine inquiry, so they slapped him with three ethics charges. A three-judge panel determined that Weatherbee had violated the rule on meritorious claims (RPC 3.1) and imposed a reprimand without terms, one of the lighter forms of discipline available. Weatherbee appealed; so did the Bar, asking the court to overturn the dismissal of one of the other two charges, dealing with competence.

Today the Supreme Court affirms the three-judge panel in each respect. It agrees that the fact of Dr. Vaughan’s non-involvement should have been clear to Weatherbee, and that he had a duty to ascertain the identity of the correct defendant before firing off any pleadings. It also rejects the Bar’s cross-appeal, finding that the record did not clearly indicate that the three-judge panel misapplied the evidence or the law.

This ruling isn’t exactly earth-shattering, but it still gives me significant concern. Sanctions motions saw at least a brief (and maybe a prolonged) explosion in the wake of Ford Motor Co. v. Benitez a couple of years ago, as lawyers started getting aggressive in filing sanctions motions. So what happens now that this case lets the more impatient, or more aggressive, among us know that they can also make an opponent’s life miserable far beyond any sanction? Let’s face it; getting slapped with sanctions isn’t pleasant by any measure, but in the end, you stroke a check and you move on with your life. In contrast, a Bar record is forever. I can easily see this decision used far too freely as a weapon of intimidation by too-zealous lawyers.

In this sense, this case may have unintended consequences that will be bad news for the practicing Bar. I’m not criticizing the justices for ruling as they did; on the law, this is the correct ruling. But looking forward, I see trouble developing out of this. They say that if the only tool you own is a hammer, all your problems start looking like nails. This decision might well give the less-civil members of our profession the idea that they’ve got a second tool – or at least a second hammer – with which to make their adversaries’ lives miserable. It falls to us to exercise restraint in using these tools, and reserve them for situations in which a Bar investigation is truly warranted.

Land use

Today’s ruling in W&W Partnership v. BZA raises at least one unanswered question that might have had a profound effect on the analysis of the case. But as of today, the dispute’s over. Let’s explore it.

Back in the second Franklin Roosevelt Administration, before the nation entered World War II, a couple in Prince William County owned a 48-acre tract. The Commonwealth bought a 1½-acre strip of it to extend Route 234. The strip cut through the middle of the tract, leaving two noncontiguous parcels, one of which was just 5.2 acres. Many years later, the county adopted a zoning ordinance, and later still, it amended that ordinance to require a minimum of 10 acres for lots in the relevant zoning classification.

The appellant partnership acquired the property in 2005. It sought a separate GPIN for the 5-acre section, since it was physically separated from the rest by a divided highway; there was no way the smaller portion was still a part of the original lot.

Or so the partnership thought. The zoning administrator felt otherwise, declining to issue a GPIN because, in its view, the smaller segment and the remainder across the road were just one parcel. And subdividing now was out of the question, because of the 10-acre requirement. The BZA and the circuit court, in turn, agreed with the administrator.

Today the Supreme Court affirms, holding that since the original landowners never did anything to legally separate the parcels (such as recording a plat), the two lots are, and always have been, one lot, no matter how separate they might look when you drive past.

The nagging unanswered question is this: Did the county have a subdivision ordinance back in 1940 when the Commonwealth bought the strip? If not, then it’s quite possible that, under the common law, the mere act of physically dividing the property into two discrete portions would well have effected a subdivision; and in that case, the small tract was a legal nonconforming lot. But apparently no one raised this issue before the Supreme Court; the existence or absence of an old subdivision ordinance appears nowhere in the opinion.

The next land-use case has no such hidden goblins: Chesterfield County v. Tetra Associates presents a conflict between a county’s zoning ordinance and its subdivision ordinance. The zoning ordinance permits one-acre residential lots in agriculturally-zoned land as a matter of right. But the subdivision ordinance prohibits breaking land into individual residential lots smaller than five acres. Those two provisions are incompatible on their faces. Which one has to give way?

The trial court ruled that the subdivision ordinance had to yield; it found the relevant section of that ordinance to be void in its entirety, and ordered the county to process Tetra’s preliminary subdivision application. Today the Supreme Court reels in this ruling just a tad. It agrees that the subdivision ordinance can’t be used in this fashion, to effectively rezone land, and it affirms the directive that the county must process the application. But it isn’t necessary to throw out the entire ordinance section; the court finds it suitable to invalidate just the one subsection that deals with this incongruity.

By the way, my sense is that the county can still prohibit this kind of small subdivision arrangement within the agricultural district; it just has to do so through the zoning ordinance itself. Doing that may entail some practical difficulties, but you can be sure that the county is exploring that option right now.

For our last land-use decision, let’s check in on the continued health of our old pal Judge Dillon, who plays a key role in Marble Technologies v. City of Hampton. This one deals with water-quality restrictions, specifically the Chesapeake Bay Preservation Act.

The Act consigns to local governments the right and responsibility to protect certain areas on or adjacent to the extended waters of the bay (including inland rivers such as the James) from development that would impair water quality. Those localities may adopt land-use regulations in areas defined by a state board, and Hampton did that. But in 2008, it decided to be ultra-cautious with the provisions, so it added within its local ordinance coverage for areas governed by a federal act as well.

That addition had a profound effect on land owned by Marble Technologies. Previously, most of its property was unencumbered by the regulations, but with the addition of the federal act’s parameters, now the land was undevelopable. The company sued, seeking an injunction and declaratory relief. Marble argued that the city didn’t have the authority to add the federal act to its checklist, because the state statute didn’t authorize it to do that. The trial court ruled in favor of the city.

In an opinion that serves as an excellent primer on the Dillon Rule, the Supreme Court today reverses. It rules that several provisions in the state law mention the authority given to localities, but in every case, it refers to guidelines developed by the state board, not the federal government. Since the city didn’t have an express grant of that authority, its actions in incorporating the federal act were ultra vires and void.

One key point here is the issue of arbitrariness. Marble didn’t assert that the city’s actions were arbitrary or capricious, and the city demurred on that point. The Supreme Court rules that with a Dillon Rule challenge, you don’t get to the issue of arbitrariness; the question there is one of authority to enact a rule in the first place. If the locality doesn’t have that authority, then it simply can’t act.

This decision will be useful for all sorts of challenges to local authority, not merely those relating to land use.

Sexually violent predators

In the very few years since the Supreme Court began considering appeals brought under the Sexually Violent Predators Act, the court has applied a sort of strict scrutiny to these cases. And with good reason; while the proceedings are civil in nature, they implicate obvious liberty interests, and if the Commonwealth is successful, they result in the continued confinement of inmates who have unquestionably paid their debt to society. Against this backdrop the court considers Lawrence v. Commonwealth, in which the trial court had ordered commitment.

The dispositive issue here is the reliance by the Commonwealth’s expert on unadjudicated allegations of past sexual offenses. Reaching back into old police files, the expert found several allegations that Lawrence had engaged in sexual misconduct many years ago. The expert relied upon those allegations in forming the opinion that Lawrence had an antisocial personality disorder. At trial, the court permitted the expert to testify about the nature and circumstances of the prior alleged conduct, and to use them to support her conclusion.

Such a ruling is bound to attract appellate scrutiny, and today the court reverses on two grounds. First, the court finds that the trial court should never have permitted the expert to testify about the details of the prior allegations. The familiar rule is that an expert may rely upon hearsay in formulating an opinion, but the hearsay information itself can’t be disclosed on direct examination. (The opponent can bring it out on cross-examination if he deems it wise to do so.) The Supreme Court applies a ruling from last year in which it reaffirmed that holding in the SVPA context.

If that were as far as it went, perhaps the Commonwealth would just lick its wounds and move on. But the second ruling is likely to be far more devastating to future SVPA proceedings: The court strikes down the expert’s reliance on these unadjudicated allegations as the foundation for the expert’s opinion. The trial court had reasoned that they were merely background information of the type normally relied upon by experts in this field, but given the nature of these allegations, the justices just can’t stomach that kind of approach. The court rules that relying on such unadjudicated allegations results in opinions that are “speculative and unreliable as a matter of law.”

From the standpoint of those defending SVPA proceedings, it doesn’t get any better than that. Respondents no longer have to contend with out-of-court accusations by unknown complainants, either as substantive evidence or as the basis for an opposing expert’s views. That means that in future cases, the experts must go beyond merely reviewing police records; they have to contact the victims, and the Commonwealth probably will have to persuade those victims to testify in the SVPA proceeding.