[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 “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 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 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.  From his standpoint, the argument was baffling:  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 correct the statutes by redefining 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 si