ANALYSIS OF FEBRUARY 25, 2010 SUPREME COURT OPINIONS
[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.
Todays 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.
Preservation of error
Lets 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 wont even be a blip on the radar. For trial lawyers, its massive.
Lets say youre 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; youve used it, Ive used it, and the lawyer two doors down uses it every day. Its 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 plaintiffs case in chief. Thats 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 plaintiffs case) arent enough to warrant a plaintiffs verdict. By the end of the case, you must argue that Facts A, B, C, D, and E arent 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 arent 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 defendants 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 plaintiffs 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.
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
It looks like the arbitrators have a fairly simple choice either the Bad Guy was violating the agreement, or he wasnt. 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 (todays 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 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 doesnt 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 doesnt 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.
If you accept the facts as pleaded by the plaintiff in Ligon v. Goochland County, hes 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. Ligons 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 wasnt 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
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, thats enough. I wouldnt have given you five cents for the cyclists 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 along the side of the road. 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 hadnt 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 defenses motion to strike; he granted it, finding that if the cyclist hadnt looked down, maybe he could have avoided the accident.
Okay; if you cringed at the mental picture of a bicycle/auto accident, youre really not going to enjoy reading about the injury in Sales v. Kecoughtan Housing Co. Its a claim by a tenant against his landlord and the property management company, alleging an infestation of mold in the tenants 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 its a statement of existing fact the condition of the property is currently thus-and-so making it suitable for a fraud claim.
Next up is Hollingsworth v.
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. From his standpoint, the argument was baffling: Whatever can they mean? These guys are foot doctors, for Petes sake; thats what they do.
To his eternal consternation, the trial court agreed, since he found that podiatrists arent medical doctors under
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 thats because the statutes define the practice of medicine, and that definition includes the word diagnosis. The definition of the practice of podiatry, in contrast, doesnt 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.
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 didnt 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 si