(Posted February 27, 2020) After a week’s hiatus, the Supreme Court of Virginia issues two published opinions this morning.



It’s always dismaying to find members of the same family on opposite sides of the “v.” in civil litigation. Family disputes are never pleasant. Today’s decision in Alexander v. Cobb relates to ownership of what I assume is the family farm.

Spouses whom I’ll call Mom and Dad owned three tracts of land in western Virginia, holding title as tenant in common. Dad executed a will providing that, upon his death, Mom would have a life estate in his undivided half interest, with the remainder going to the couple’s two children, Son and Daughter. The will contained a provision that I found remarkable, empowering Mom to sell the land that was the subject of her life estate, invest the proceeds, and spend any portion of it necessary for her support.

Dad died first, and Mom soon moved in with Daughter because of failing health. Mom executed deeds of gift, conveying all of the property to Daughter. Son filed suit, claiming that the deeds were fraudulent conveyances. After a bench trial, the circuit court eventually ruled in favor of Son, voiding the deeds because Mom hadn’t followed the will’s provisions. No one appealed that ruling.

The next year, Mom signed deeds of bargain and sale, again conveying the property to Daughter. The two later filed suit against Son, seeking an interpretation of Dad’s will and confirmation of the conveyance. Son claimed that the earlier judgment collaterally estopped this second suit. That court agreed with Son that the first lawsuit had resolved the matter in Son’s favor, and dismissed the complaint. No one appealed that, either.

A couple of years later – we’re now into 2017 – Mom died. Son sued Daughter a few months later, seeking an accounting and a declaration that he owned 25% of the properties, representing half of Dad’s half. Daughter answered with a request of her own, seeking to quiet title in the entire property in herself.

In a bench trial, a circuit judge sat down to sort all this out. He found himself “constrained” by the judgment in the second suit, which had held that Daughter didn’t have a right to all of the property. It found that second final order to be an adjudication on the merits, so it ruled that Son owned 25% of the land. This time, someone (Daughter) appealed.

This case presents an issue of claim preclusion. That applies where three circumstances occur: a final judgment on the merits; the same parties (or their privies); and the same conduct or transaction.

Today, a unanimous Supreme Court affirms the judgment in Son’s favor. The court rules that the second judgment was indeed final and on the merits. The parties are obviously the same. And this is the same transaction, the matter of what rights Dad’s will conveyed.

In my view, the most important part of today’s opinion is Justice Goodwyn’s discussion of what a judgment “on the merits” is. The Supreme Court has previously ruled that sustaining a plea in bar on the statute of limitations is not on the merits, so it doesn’t trigger claim preclusion. This case differs from that holding because it “was based on the factual and legal determination that [Daughter] failed to prove that she had a 100% ownership in the Properties.”

This holding, in turn, depends on the standard of review. The justices hold that the characterization of the first judgment order is a mixed question of law and fact, “to which direct estoppel applies.” To my slight surprise, Justice Goodwyn cites only federal authority (from SCOTUS) and Restatements. I would have expected that there would be Virginia caselaw on this. There is now.


Criminal law

I had modest expectations when I began to read Butcher v. Commonwealth. It’s an appeal of a conviction for misdemeanor hit-and-run. I expected that perhaps we’d get a discussion of sufficiency of the evidence, leading to a minor adjustment to traffic law.

Boy, was I wrong. This is a fascinating case, of interest to word nerds across the Commonwealth. While the entire Supreme Court agrees on the outcome, there are four separate opinions on how best to get there. This quickly became one of the most interesting decisions I’ve seen in months and perhaps years.

Here’s the setup: Back in the medieval period, before 1989, former Title 46.1 governed traffic matters. The General Assembly, in its wisdom, saw fit in that year to recodify the title, giving us new Title 46.2, which survives today and is cited daily in traffic courts across Virginia.

The relevant text in the hit-and-run statute in Title 46.1 required each driver involved in an accident resulting in death, injury, or property damage to notify state or local law enforcement, “and, in addition, the person struck or injured … or to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property ….” Such driver has to furnish identifying information so the police can investigate and an adverse party knows whom to sue if necessary.

When the 140 Level Heads approved new Title 46.2, the language was a tad different. The relevant statute now requires such a driver to report name, address, etc., “to the State Police or local law-enforcement agency, to the person struck and injured …, or to the driver or some other occupant” and so forth.

Did you notice the change? In the past, you had to notify police and the other persons affected, whether injured or otherwise. Now you have to notify, in essence, A, B, or C. It looks like notifying any one of them will suffice, right?

That’s the basis of today’s fascinating discussion. The facts of the case are remarkably simple: The appellant, Butcher, engaged in a high-speed chase in Petersburg, ran another driver off the road, and then went up to her car and started banging angrily on her window. This, in case you’re wondering, makes him a singularly unsympathetic appellant; I’m having a hard time imagining a constituency that would be rooting for him in this appeal.

A trial court judge wasn’t in that constituency; he convicted Butcher based on a failure to notify anyone at all. A panel of the Court of Appeals agreed. But noticing the little linguistic nuance I mention above, the panel decided it was wise to resolve the question whether the new statute contains a newly disjunctive requirement, or retains the old conjunctive one. The panel read the plain language of the statute and held that, “to meet the statutory command, appellant only needed to report forthwith the required information to one person described in the statutory list.”

The court went on to affirm the judgment, agreeing that Butcher didn’t notify anyone. Fortunately for the Commonwealth, Butcher appealed and got a writ.

How is this fortunate for the prosecution? Because Aunt Virginia would prefer that the statute retain its conjunctive meaning, even after the recodification. And because the CAV affirmed the conviction, the Commonwealth wasn’t aggrieved and hence probably couldn’t appeal.

Today, as noted above, four separate opinions emerge from the fifth floor at Ninth and Franklin. Each of them ends at the same destination: Butcher is guilty, since he didn’t notify anyone. If you’re keeping score, that’s Jurists 11, Butcher 0, counting seven justices, three CAV judges, and one trial judge in the former column.

Here’s where the linguistic debate gets interesting. I’ll start with the concurring opinions. Justice McCullough, joined by Justice Mims, believes that the best reading of the statutory language is the good ol’ conjunctive requirement. First, with recodifications there’s a presumption that the legislature doesn’t intend to make a substantive change. The old statute was clearly conjunctive, and SCV caselaw reinforced that.

Justice McCullough next writes that there’s an ambiguity in the statute, because in the enumerated list, there’s neither an and nor an or in the text. That means that the conjunction “must be supplied by implication.” He perceives this as the key that opens the door to statutory construction, a process that isn’t available when a statute is unambiguous.

He argues that a disjunctive reading would create an anomaly in that the next paragraph of the statute, involving personal injuries to the affected driver, clearly creates a conjunctive requirement: notify law enforcement and the other affected party. The two requirements address distinct purposes – law enforcement and civil damages. He concludes that the most harmonious reading of the newer statute is to continue to require multiple reportings.

Senior Justice Koontz, joined by Justice Powell, also agrees with affirming the conviction, but he perceives that the recodified statute is indeed different. He recognizes the presumption of no substantive change, but emphasizes the rest of the sentence: “… unless a contrary intent plainly appears in the recodified statute.” Here, the legislature chose to remove the “and, in addition” clause, leaving a series of ors in the list. And in reading any enactment, the place to start is “the language employed in the statute.” In his view, the most natural reading of “A, B, or C” is that a driver satisfies the statute if he notifies anyone on the list.

This concurrence turns to the practical world, observing that many collisions resulting in property damage don’t require the intervention of a police officer. The parties exchange information and go on about their business; that happens many times every day. The conjunctive reading would require a police report every time a driver dings a fender, with no injures to anyone. Surely the police don’t want to be dragged into every such minor civil matter. The legislature, he believes, must have been aware of that when it removed the unmistakable conjunctive language in 1989.

Now let’s jump to today’s opinion of the court, which Justice Kelsey authors. I’ll summarize his conclusion in this way: This is a nice intellectual discussion, but beyond question, Butcher didn’t notify anyone. So why do we have to address this distinction at all? He insists that the best approach to this and any other appeal is to decide it on the best and narrowest grounds possible. In his view, the narrowest ground here is on the facts: Whether you have to notify one person or multiple people, Butcher struck out. That makes the conjunctive/disjunctive debate moot; he didn’t meet either one.

I mentioned a fourth opinion. Justice Mims writes a solo concurrence, noting his agreement with Justice McCullough’s conjunctive interpretation. But he also has a unique perspective on the court: He’s the only former legislator among the justices. He’s been through the sausage-making process, and realizes that the common presumption, that the legislature chooses with care the words it employs, is a polite fiction. In short legislative sessions, Delegates and Senators don’t have time to study minute differences in phrasing. The 1989 crop of legislators likely didn’t pay much if any attention to this peculiar statutory change in the very large bill to recodify an entire title.

He also perceives, unlike Justice Kelsey in the opinion of the court, that while this question may be technically unnecessary to decide, it’s vitally important to do so, to clarify what the law truly requires. He ends with a plea: For God’s sake, General Assembly, fix this statute! (No, that’s not an actual quote. Give me some literary license.)

For now, there’s no majority opinion on what the law is. We have only two votes for the conjunctive, two votes for the disjunctive, and three votes for “it doesn’t matter.” That makes this a plurality opinion, and thus not binding authority for any principle other than this: If you don’t give your information to anybody, you’re guilty.

Here’s a quick pointer on what this issue means, as Justice Mims points out in a section emphasizing how urgent he perceives the problem to be. Let’s suppose that you’re involved in a low-speed collision. You and the other driver get out, ascertain that no one is injured, and exchange identity and insurance information. The at-fault driver – either you or the Bad Guy – offers a sheepish handshake along with an apology; the other driver offers a friendly word of reassurance that everything will be all right. You and the other driver then drive away with a little extra newly inspired caution, relieved that you’re both safe.

If the requirement really is conjunctive, you’ve just become a criminal. And if the total property damage in the collision is more than $1,000 – an easy threshold in this day of $80,000 cars with expensive polymer bumpers – then you and the other driver have each committed a felony. A felony!

Going forward, you know what you have to do now.