[Posted June 4, 2009] Surprise! For those of you who have come to expect the Supreme Court of Virginia to release its opinions on the Friday of session week, the bundle of joy comes a day early, thanks to a slightly truncated argument docket this time around. The court hands down 17 published opinions today. There are plenty of criminal cases out of the Court of Appeals, and a spate of civil decisions.

The major news of the day is the court’s latest ruling in the Darryl Atkins capital murder saga. The court also hands down an opinion in a case asserting that Virginia Lottery vendors discriminated against the handicapped in terms of accessibility.

Today marks the end of the 2008-09 term; as of this afternoon, the court is in recess until the beginning of the next term with the September session. While the court will conduct writ panels during the summer, the next formal session of the full court begins on Monday, September 14.

As long as we’re marking special occasions, tomorrow marks the 20th anniversary of one of the greatest acts of personal courage ever seen in my lifetime. This week’s analysis is accordingly dedicated to the remarkable yet anonymous man (whose name is usually reported as Wang Weilin, but that’s just an assumption) who somehow summoned the guts to stand tall in a thoroughly intimidating situation.

Does this language sound just a bit familiar? “[W]e are increasingly confronted with appeals of cases in which a trial court incorrectly has short-circuited litigation pretrial and has decided the dispute without permitting the parties to reach a trial on the merits.” That’s from today’s ruling in Fultz v. Delhaize America, and it pretty much telegraphs to you how this one comes out.

Fultz is a grandmother who took her three-year-old grandson shopping one day at a Food Lion grocery store in Roanoke. After shopping, she stopped at an ATM, presumably to replenish her wallet after paying for groceries. The ATM was located outside the store, near where shopping carts were usually gathered.

No doubt to protect the dollar-bill machine from being dinged by carts, either the store or the bank had placed some metal bars along the ground, running parallel to each other. Customers had to stand between them to use the ATM, and had to step over them if approaching from the side.

While Fultz was at the machine, her grandson darted away. Fultz went after him, and tripped over one of the bars, shattering her wrist when she fell. In subsequent litigation, the defendants predictably asserted a defense of contributory negligence, claiming that the bars were open and obvious – as no doubt they were, to someone looking down. But Fultz claimed that she was distracted by the actions of her grandson, and that that distraction created a jury issue on whether she was negligent or not.

The trial court disagreed. It found Fultz contributorily negligent as a matter of law, and granted the defendants’ motions for summary judgment. Today, the Supreme Court reverses and remands the case for trial. It holds that this situation is one in which reasonable people could disagree (assuming they’re not all defendants, of course) on whether Fultz’s “excuse for inattention was reasonable.” That makes it a jury question, and it was incorrect to take the case away from that jury.

My sense is that trial judges are going to react to this ruling by denying motions for summary judgment unless it’s not even a close call that one should be granted. That’s consistent with the Supreme Court’s caselaw, in which summary judgment is a disfavored remedy (unlike federal court, where it’s a favored procedural tool).

One last point – this case was brought in Albemarle County, nowhere near Roanoke, presumably because one of the defendants (Food Lion) regularly conducts substantial business activity there. The defendants didn’t question venue, and the court doesn’t express an opinion on that question.

The next case presents two issues that are seemingly slam-dunks: A rear-end collision and a suit against an attorney for missing the statute of limitations. In both kinds of cases, negligence is usually fairly easy to show. But in Williams v. Joynes, a wrinkle in the statute of limitations presents a novel question.

Williams was injured in a double rear-ender; Truck A hit Car B, driving that car into Williams’s Car C. Williams was stopped in traffic, and sustained injuries in the collision, so somebody’s almost certainly going to wind up owing him some money.

He hired an attorney five months later, but by the time the attorney got around to suing the two drivers (and the company that owned the truck), 24 ½ months had passed since the incident. That, as Virginia practitioners know, is just a tad late. The attorney did the right thing and notified Williams of his error. He also pointed out that there might be a way out of this jam: The truck driver (and maybe the company, too) was a resident of Maryland. Maryland has a three-year statute for personal injury actions, so Williams could go ahead and sue those two defendants across the Potomac.

Understandably, Williams was going to need a new lawyer for this venture. But none of the lawyers he contacted up there were willing to take the case. “Too tough to get witnesses up from Virginia.” “Too far from the events.” “Too expensive to try it here.” So Williams punted and tried a different tack: He sued his Virginia lawyer for missing the statute.

The lawyer defended by asserting that Williams brought this on himself by his own decision to give up the effort in Maryland. He contended that that decision was the real proximate cause of Williams’s loss of the right to recover against the two primary defendants. The trial court agreed, finding this decision to be, as a matter of law, a superseding cause of Williams’s loss. The court dismissed the case.

Just as in Fultz, the Supreme Court today reverses and remands the case for trial. It points out that in its previous decisions, it has sharply limited the availability of a superseding cause defense to those circumstances where the original defendant’s actions don’t contribute to the loss “in the slightest degree.” Here, the opposite situation occurred – Williams’s difficulties in getting a Maryland lawyer, and his ultimate decision to give up looking, were direct products of the lawyer’s negligence. In addition, the court observes that Williams would necessarily lose one defendant by suing in Maryland, as the driver of the car was a citizen of Virginia, and the Maryland courts wouldn’t have jurisdiction over him. Accordingly, Williams gets to press his malpractice claim in Virginia.

This case is noteworthy in one additional respect. Readers of this site will recall my alarming essay last summer, relating to the Supreme Court’s crackdown on assignments of error. Originally, the Supreme Court dismissed this appeal because it found the assignment too vanilla. But as I noted in a supplement to that essay, the court later reinstated the appeal, eventually deciding it on the merits today.

Another lawyer finds himself on the wrong end of a pleading in Bell v. Saunders. The lawyer prepared a will for Dad, in which will Dad named the lawyer as executor. The will also provided for the creation of a trust for the benefit of his two sons; in essence, the executor was supposed to pay half of the net income of the trust to each of the two sons for as long as they lived. If either of those sons left a widow, then the executor was to pay the deceased son’s share to her, for as long as she lived.

I read long ago that we all know that all men are destined to die, although we’re each secretly hoping the Almighty will make an exception in our case. But the Grim Reaper got Dad back in 1999. His son Edward died five years later, leaving a widow. Inexplicably, the lawyer who had drawn the will seemed determined not to carry it out; he told the widow that he wasn’t going to pay her a dime. He asserted that he didn’t have to pay anything until her death. The widow and her son David filed a declaratory judgment action seeking entry of an order declaring the rights of the parties. They also asked for related relief, including an accounting. But the lawyer focused on the overall DJ action, claiming in a demurrer that this wasn’t an appropriate case for a DJ proceeding.

The grandson, David, also sued the lawyer in the same proceeding, claiming that the lawyer had dragged his feet in qualifying as personal rep of his late father’s estate. He asked the trial court to require the lawyer to get on with the process of qualifying, and then to wrap up his father’s estate.

The trial court sided with the lawyer; it sustained the demurrer and dismissed the entire case. The Supreme Court granted a writ and today it reverses in part. The court holds that the widow’s claim is indeed perfectly suitable for a declaratory proceeding, since it involves the assertion of a right and the denial of that assertion. But the grandson’s suit is different; he pleaded that the lawyer hadn’t qualified to manage the second estate, so there is nothing the court can do in a declaratory proceeding. The court thus sends the case back for a trial on the widow’s claim only.

I suspect the grandson has some other form of relief available; I strongly doubt that Virginia law will allow a named personal rep to hold an estate hostage by the simple expedient of refusing to qualify. But this isn’t the right proceeding, the court notes today.

Intrapolicy stacking is a phrase that may well draw shrugs from lawyers who don’t handle tort cases, but for the tort lawyers, it’s a big deal. The Supreme Court gives us its latest view on the practice today in Virginia Farm Bureau Mutual v. Williams.

It must have been some collision; a child was injured, apparently quite significantly, while riding in a car. Both that car and the car that hit hers were underinsured. But the child’s parents had a policy that provided separate policy limits for the family’s three vehicles, and the child was emphatically an insured under that policy. The question in this case is whether the three policy limits can be stacked to provide $850,000 of coverage, or whether (as the insurer argued) she was stuck with a single policy limit of $300,000. (Under Virginia law, stacking of coverages of multiple vehicles is permitted. But the insurer can contractually eliminate such stacking. The big problem is usually finding the right language to do that unambiguously.)

The trial court took a middle ground, declaring that $550,000 was available. That seemingly Solomonic decision satisfied nobody; both parties sought Supreme Court review, and both parties got it.

Today, the Supreme Court sides wholly with the child and against the insurer. Comparing the policy’s anti-stacking language with that of a policy in an earlier decision, the court finds that there is still at least one ambiguity in this one. And as required in the interpretation of insurance policies, any ambiguity is resolved against the insurer and in favor of coverage. The court rules that the anti-stacking language doesn’t exclude the stacking sought here, so it enters judgment for the child, who thus gets to tap nearly a million dollars of coverage for her evidently quite substantial claim.

How long will this doctrine last? Perhaps only as long as it takes some very smart insurance company lawyers to rewrite the policy language and then send out amendment notices to its policyholders. But this isn’t one of those opinions where the court gives the parties, or a lower court, easy guidance on how to remedy the problem, so we may yet see another such case in the future in which stacking is permitted.

Administrative law
What’s the difference between construction waste and recycling material? Enough to warrant a multi-level appeal, judging from the long course of Frederick County Business Park v. Virginia DEQ. That course finally ends today, as the Supreme Court decides whether DEQ acted arbitrarily and capriciously in deciding that the business park was subject to state permitting requirements.

The business park collected waste from construction sites, preparatory to sorting al the stuff out and recycling the valuable parts of it (usually concrete, wood, cardboard, etc.). It planned to dispose of the remainder, which it estimated as 30% of the total. It argued that it thus qualified as a “recycling center,” which it contended was not subject to DEQ regulation and permitting.

The DEQ didn’t budge; it ruled that, because the materials were intermingled when collected, and because a good chunk (pun intended) of the materials was not going to be recycled, this didn’t qualify as a recycling facility. The trouble is, recycling facility isn’t defined, either in the state Code or in DEQ regulations. DEQ determined that what the business park was operating was a materials recovery facility, and that is defined, and is regulated.

The business park appealed DEQ’s decision to the circuit court and to the Court of Appeals, but the ruling was affirmed both times. Today is the third strike, as the Supreme Court affirms yet again. It notes the substantial deference the courts pay to interpretive decisions of regulatory agencies with special expertise, and determines that DEQ had a legitimate basis to conclude that this wasn’t a recycling facility. Note that the ruling technically is not that this is, or is not, a materials recycling facility; the court merely rules today that DEQ didn’t act arbitrarily and capriciously in saying that it was. Admin law decisions frequently involve this kind of hands-off approach from the courts, and today is no exception.

Department of Health v. NRV Real Estate returns for another appellate bout today. In April of last year, the Court of Appeals had reversed a trial court’s decision that had denied NRV’s request for certification of 21 relocated nursing-facility beds. My analysis of that decision is here (you’ll need to scroll down to the last case discussed).

Today, the Supreme Court reverses and reinstates the trial court’s ruling. It finds that based on a clear statutory provision, the Department of Health had no discretion to approve the application.

The most interesting part of today’s opinion is the court’s discussion of whether the Department was bound by a dozen prior cases in which it had applied an exception to approve requests similar to NRV’s. The Court of Appeals had held that a departure from that well-established line of precedent required an explanation, and if no such explanation was forthcoming, that made the departure arbitrary and capricious. The Supreme Court notes that this departure was based on a correct ruling of the statute, and in that event, no explanation is necessary. The court finds that it’s better to correct a mistake than to embalm it for posterity.

Criminal law
First things first: The court today hands down the latest in a string of rulings involving convicted capital murdered Daryl Atkins. The most famous step in Atkins’s long waltz through the legal system came in 2002, when the US Supreme Court ruled that mentally retarded persons cannot be executed, thereby reversing the Supreme Court of Virginia’s affirmance of the death sentence.

Today, in In re Commonwealth, the Supreme Court considers two petitions filed by the Commonwealth for the extraordinary writs of mandamus and prohibition. The court in 2006 had remanded the case back to circuit court for a separate trial to determine whether Atkins was mentally retarded. But during those proceedings, Atkins raised a couple of significant objections, including an asserting that the prosecutors had engaged in misconduct and had withheld Brady materials. Instead of proceeding straight to the retardation trial as the Supreme Court’s mandate had directed, the trial judge conducted a hearing on Atkins’s complaints against the prosecutors.

The judge found those complaints to be meritorious. He accordingly reduced the sentence of death to one of life without parole, thus sparing Atkins’s life and saving himself the time and cost of a separate retardation trial.

But the Commonwealth really, really wanted the death penalty for Atkins. It accordingly filed these extraordinary-writ motions, both invoking the Supreme Court’s original jurisdiction (note that these are not appeals at all, but cases originating in the appellate court) and asking the court to direct the trial court to conduct the hearing, as the most recent mandate had directed.

I am going to give my readers the abbreviated result here, in the interest of time; today’s opinion, including a lengthy dissent, runs 74 pages. Accordingly, I’ll write separately once I analyze the dissent. For now, you should know that the court rejects the Commonwealth’s requests and dismisses both petitions. It rules that mandamus is not an appropriate remedy here, for two primary reasons. First, the writ is intended to require that a person perform an act in the future; not that he undo something he has done in the past. Second, what the Commonwealth is doing here is, in essence, appealing the trial court’s decision to go ahead and impose the life sentence. The Commonwealth has a limited right of appeal in criminal cases, but this, the court rules today, isn’t among those permissible classes of cases. It also notes that prohibition operates only prospectively, not retroactively, so that isn’t available in this situation.

The dissent is written by Justice Kinser, joined by Justice Lemons. It’s fully 54 pages long, almost three times as long as the majority, which was authored by the chief justice. As I say, I’ll get more detailed analysis to you once I post commentary on the day’s other cases.

The court decides two cases today involving a suspect’s right to counsel during a custodial interrogation. I have written about both of these cases before, back when they were decided in the Court of Appeals, so I’ll keep the discussion brief here.

In Commonwealth v. Ferguson, the court affirms the decision of the CAV, which ruled in December 2007 that the defendant had made an unequivocal request for counsel before giving an inculpatory statement. A police officer continued his interrogation despite this request, and the Supreme Court today agrees that the subsequent statements should have been suppressed. In Zektaw v. Commonwealth, the defendant also asked to consult a lawyer, but then kept right on talking before police could do anything about it. In his case, the Court of Appeals had affirmed the trial court’s denial of the motion to suppress, but today the Supreme Court reverses, again ruling in favor of the suspect.

Here are the statements that the court today finds were sufficiently unambiguous assertions of the right to counsel:

Ferguson: “Nah, I want a lawyer, you know what I’m saying?”
Zektaw: “Right, and I’d really like to talk to a lawyer because this – oh my God, oh, my Jesus, why?”

You’ll see right away that Ferguson’s invocation of the right is clearer than is Zektaw’s, but the court today decides that both of them are good enough. The lesson to take out of this is that while some “invocations” are indeed ambiguous or unclear, the Supreme Court of Virginia jealously guards the guarantees of the Fifth Amendment and Miranda v. Arizona. The US Supreme Court uses categorical language in this regard: “Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease.” Smith v. Illinois, 461 US 91, 98 (1984) (emphasis supplied). The police didn’t do that in these two situations, so the court orders the suppression of all subsequent statements.

Back in the 90’s, when I worked in City Hall in Virginia Beach, one of my office’s duties was the prosecution of traffic and misdemeanor appeals in circuit court. I recall well the great risk that my city’s Bad Guys took whenever they drove on the streets of our fair city; our men and women in blue caught many such Bad Guys by the simple but unassailable probable cause of a burned-out tail light. When the officer stops the car and approaches the driver, he smells the odor of marijuana or alcohol, or he sees the open container or the handgun on the floorboard, hastily and ineffectually hidden. When you’re committing a crime on the road, you have to be perfect. Today we see an appeal in which the ol’ brake light gets another victim – Williams v. Commonwealth, involving possession of various drugs with intent to distribute. You want to know the biggest irony of all? Williams wasn’t even driving; he was a passenger.

As the Portsmouth police officer approached the car in which Williams was riding, he observed Williams toss something into the back seat. (Nice hiding place.) The officer retrieved three plastic bags, one containing heroin, one with cocaine, and one with 38 tablets. Forensic scientists tested one of the tablets, and it came up as methadone.

Now, you need to know that Williams had frequent-flier miles for all three of these substances; he was charged with possession with intent to distribute, third offense, for each. He was convicted of all three charges, and the Court of Appeals affirmed. The Supreme Court granted a writ to review only the methadone conviction.

At trial, a police detective testified that the drugs, taken as a whole, were inconsistent with personal use. He noted that he had never seen a user possess all three drugs at once (evidently users typically focus on one substance at a time). As for the methadone, he told the trial court that a heavy user would consume perhaps seven capsules in a day, and would not go carrying 38 of them around.

Interestingly, Williams himself gave the police one key tidbit. At the initial stop, the police officer asked him where he worked; he said he was unemployed. What does that have to do with the case, you wonder? (So did I.) The detective testified that the whole quantum of drugs had a street value of almost $600. He noted that it would be very unusual for an unemployed person to be carrying around $600 worth of drugs for personal use. (Ah-ha. Now I see.) Finally, the detective observed that the 38 capsules were stored in the corner of a plastic bag; not in the pill bottles that prescription methadone is dispensed in.

The court today finds all of these circumstances to be quite sufficient to enable the trier of fact to find Williams guilty of possession with intent. It notes that intent to distribute must usually be proved by circumstantial evidence, but that the prosecution produced ample such evidence.

I suspect that one lingering effect of today’s decision will be that police officers will start asking suspects about their job status. That was a pretty neat trick of evidence-gathering, in my view.

Okay, here’s the situation. Boyfriend is a thief who steals property as the next best alternative to honest labor. He brings his loot back to his apartment, where Girlfriend and their child also live. Girlfriend knows he’s stealing, and tells him not to bring the stuff back to the apartment; but really, where else is there? Boyfriend fences the property from time to time and uses the proceeds to pay the couple’s bills, including the rent; Girlfriend is fully aware that he’s doing that.

The question is, Is Girlfriend guilty of receiving stolen property? The answer comes today in Whitehead v. Commonwealth. The trial court had convicted Girlfriend based on the prosecution’s contention that she had constructively received them. She didn’t actually receive them, but she received the benefits of the thefts in the form of the payment of her bills and living expenses. The Court of Appeals, in an unpublished opinion last year, accepted this position. The prosecution based this argument on an old (1919) New York case.

But the Supreme Court takes a careful look at the former New York statute at issue in that case, and finds a key, and dispositive, difference in the wording, as compared with Virginia’s stolen-property statute. It rejects the notion of constructive receipt on these facts.

That isn’t the end of the match; that was only the first set. The second consists of the Commonwealth’s alternative argument that Girlfriend constructively possessed the goods. (This was the basis of the CAV’s eventual ruling.) The trouble here is that the prosecution had never advanced this theory at trial; the first time it appeared in the case was in the CAV’s opinion (which theory the Commonwealth cheerfully adopted in the further appeal to the Supreme Court). As you must know by now, having visited this site more than a couple of times, you can’t raise an argument in an appellate court if you didn’t present it to the trial court. The trial court has to have “an opportunity to rule” on the argument.

That omission trips up the Commonwealth here, as the Supreme Court refuses to consider this new and alternative ground for conviction. It declines to utilize the “right for the wrong reason” rule because a litigant must at least try to get the trial court to accept the alternate ground, and that didn’t happen here. At this point, Girlfriend is up, two sets to love, as the court today reverses her convictions.

The third set deals with her companion adjudication for a probation violation, based on prior convictions. Since that proceeding was founded on her convictions here, and since (based on the transcript of the probation proceeding) these convictions played an important role in the court’s decision to revoke her probation, that ruling is remanded for reconsideration in light of today’s reversal. And that, fans, is game, set, and match.

As long as all these criminal defendants are not guilty, let’s talk about expungement, shall we? Virginia law recognizes that an arrest record can provide a significant impediment to a person who, it turns out, was innocent after all. It accordingly includes a provision for expungement of criminal records, assuming certain conditions are met.

This all sounds nice, but the reality is that the Supreme Court’s recent opinions on this topic have all pointed out the limitations of this mechanism. If your charges were dismissed based on a first offender statute, you’re not really innocent, so you can’t get that record expunged. Ditto for those defendants who got a deferred finding after the trial court found the evidence sufficient, but decided to give them a chance to redeem themselves by things like good behavior and community service. And forget about the idea of entering a nolo contendere plea; ever since Spiro Agnew, everybody knows that’s the functional equivalent of pleading guilty. In all, it’s proving difficult for many applicants to take advantage of the provisions.

Today the tide starts to turn, in two separate cases that are consolidated for a single opinion under the name Brown v. Commonwealth. The facts and procedural postures of the cases are slightly different, but the key similarity is that in both, the defendant hadn’t entered a plea and the trial court hadn’t made a finding of sufficiency. In these cases, therefore, no court had made a finding that the defendants had done the acts they were accused of committing. That means these defendants had a legitimate claim to being innocent (not merely not guilty), so they could take advantage of the statute.

This finding alone doesn’t get the defendants all the way to the Promised Land; there still has to be a finding by the trial court that the continued existence of the records might wreak a manifest injustice to the petitioner. In one of the appealed cases, the trial court had made a specific finding of such manifest injustice, and the Commonwealth hadn’t appealed that finding. That ends that issue; the petitioner wins. In the other one, the Commonwealth asserted that while the trial court had made such a finding, there was no evidence to back that up.

This might be a problem for the petitioner; even a favorable finding has to rest upon some evidentiary basis, and if there really was none, then she might be out of luck.

Her luck supply holds out just fine. The Supreme Court today notes that nothing in the record established what evidence, exactly, the trial court had considered in making this ruling. In this case, there was no transcript; the appeal proceeded on a written statement under Rule 5:11(c). That rule is a useful safety valve but a dangerous insurance policy. The statement didn’t say one way or the other what the evidentiary basis for the finding was, and the appellant always bears the burden of presenting an adequate record to permit appellate review. In this case, the Commonwealth was the appellant, so the Supreme Court finds for the petitioner on this issue.

This case has two useful lessons. First, criminal defense lawyers will want to review it to be certain they leave the expungement option open for their clients. That will require asking the trial court to defer a finding without a plea or evidence; entering a plea of guilty and then stipulating to the evidence won’t work. The second lesson has to do with written statements. If there’s no testimony at trial on a certain issue, and the appellant wants to challenge it, then he’d better insert a paragraph that recites that there was no such evidence. Mere silence on the point won’t suffice. (Of course, the sensible thing to do is to always hire a court reporter and never rely on a written statement. But that’s another rant, for another day.)

Civil rights
In a case that was argued in February and held over from the April opinion day, the court today decides whether the Virginia Lottery discriminates against disabled persons if some ticket retailers don’t have accessible sites for the sale of those tickets. The case is Winborne v. Virginia Lottery, and is brought under companion provisions of the Virginians with Disabilities Act and the Americans with Disabilities Act.

It’s virtually impossible to wander the Commonwealth without encountering a lottery retailer; they seem to be in every gas station and grocery store from here to Cumberland Gap. The petitioners in this case are persons with qualifying disabilities, and they identified 16 licensed ticket retailers who don’t have handicapped access. They filed suit seeking declaratory and injunctive relief.

The trial court considered the parties’ reciprocal motions for summary judgment, and ruled in favor of the Lottery. It based its holding on two premises. First, it found that the Lottery doesn’t offer “a program, service, or activity” as defined in the acts (presumably, the court found that it offered a product instead, but the opinion doesn’t mention that). Second, it ruled pursuant to a recent Fourth Circuit case that the Lottery isn’t “charged by law with the operation and maintenance of the retailers”; they’re essentially independent sales contractors.

In reviewing the case, the Supreme Court first takes what appears to me to be a very expansive view of the words program and activity. It finds that the lottery engages in a “program” of selling lottery tickets for money, thus making that “activity” a part of its “normal function and operation.” In my view, if this is the kind of definition the court will use, then the reach of the acts will be virtually unlimited from here on out.

That may not be a bad thing, depending on your view of these acts. Some critics describe the ADA as a massive unfunded mandate imposed by Congress on the states and localities; its backers describe its salutary purpose of ensuring that people with disabilities are not marginalized in our society.

The court next turns its attention to the Fourth Circuit case, Bacon v. Richmond, 475 F.3d 633 (4th Cir. 2007). The trial court had relied on that case for the proposition that if the defendant doesn’t control the premises, then it can’t be held responsible for violations. But the Supreme Court today correctly notes the fundamental difference between the cases. In Bacon, the plaintiff had sued the City of Richmond for alleged ADA violations at city schools. But the City doesn’t run the schools; the school board does. Bacon sued the wrong defendant. Here, Virginia Lottery, Inc. could theoretically decide which retailers to license based in part on accessibility considerations.

That isn’t the specific reason offered in today’s opinion – that’s much more akin to respondeat superior liability. Judge for yourself; here’s the key language of the opinion on this point: “Because the Virginia Lottery is responsible for the operation of the lottery, it is responsible for any VDA or ADA violations involving the Virginia Lottery’s duties under Code § 51.5-40 and 42 U.S.C. § 12132.” And here: “In short, although the Virginia Lottery is not responsible for the violations of the lottery retailers concerning their individual retail sites, the Virginia Lottery is responsible for its own violations in failing to provide disabled persons access to the Virginia Lottery’s programs and activities.” If we were talking about access to Virginia Lottery’s home office in Richmond, I’d buy that; but it’s clear to me that the import of this ruling is to make the Lottery responsible for ensuring that every retailer operates fully within the acts. This reasoning comes perilously close to making Virginia Lottery an insurer for any civil rights violations committed by any of its retailers, which would be even more of an expansion of the acts than the previous one I identified above.

Again, that may well be a good idea; but I am skeptical that that’s what the language of the statutes require. (Of course, as of this morning, that’s exactly what they do require in Virginia.)

But the case isn’t over; remember I said that the trial court decided reciprocal MSJ’s? The petitioners also appealed the denial of their own motion. But today the court rejects their entreaty, finding that genuine issues of fact prevent summary judgment for anyone at this point. So everyone loses (in a sense); the case is sent back for further proceedings, which will probably mean a trial on the merits.

Land use
Civil procedure geeks (and I use the term lovingly and respectfully, especially since I’m one of you) will get a kick out of a seemingly dry subject in McLane v. Vereen, arising in Fairfax County. It’s a finality doctrine case masquerading as a land use dispute. Appellate fans, rejoice; this is the third decision this year on this arcane and often misunderstood area of appellate practice.

McLane is the county’s zoning administrator. Back in 2006, she notified Mr. and Mrs. Vereen that they had to clean up some junk (comprising things like cars, boats, trailers, and the like) in their yard, or else face a citation for operating a nonconforming junkyard. After four months, the junk was still there, so she filed an enforcement proceeding in circuit court. The Vereens responded to this by doing what they should have done in the first place – sitting down with the administrator and working out a timetable to get everything cleaned up.

Having agreed to settle the matter, the parties drew up a consent decree, giving the Vereens 60 days to clean everything up. The order contained a provision that failure to comply by the deadline would produce a $100 per day penalty. The trial court entered the order.

I’ll give you two guesses as to whether the mess was still there 61 days later.

The Vereens didn’t completely ignore their obligations; they just sought to postpone them. They got an agreement from the county to extend the deadline by 30 days. Four months after that, the administrator was done waiting; she asked for a rule to show cause why the daily fine should not be imposed. The trial court issued the rule, returnable more than six months after the original deadline. The trial court gave the Vereens two continuances. Finally, as the second anniversary of the initial warning letter loomed, the Vereens got everything cleared out. They then got around to filing a brief opposing imposition of the fine.

The trial court, having amply demonstrated by the continuances that it had a heart, decided not to hammer the homeowners with a fine that, we can all agree, would greatly exceed any fine that would be imposed in a criminal case of this magnitude. The court decided that the $20,600 the county wanted (covering 206 days from the original deadline set in the consent order) would amount to a penalty, since the county wasn’t using the threat of it to compel action. The court settled on the nice, round sum of $3,500 as an appropriate sum, and fined the Vereens that much. End of case.

The county took a different view. It felt that “end of case” had arrived almost a year earlier, when the court entered the consent order. That order had contained magic language of finality (“This cause is ended”) and didn’t require the trial court to do anything except see to its enforcement. At this point, the county argued, the trial court didn’t have the power to amend the consent order; all it could do was enforce it.

Today, the Supreme Court sides with the county; it orders final judgment for the twenty grand. That’s because the consent order was, indeed, quite final. The test for finality is whether the order “disposes of the entire matter before the court, giving all the relief that is contemplated and leaving nothing to be done by the court except the ministerial execution of the court’s order or decree.” The shorthand rule of thumb I sometimes use is, If there’s anything left for the trial court to do, then it’s not final. In this case, there was nothing left for the court to do once the consent decree was entered (except enforce it), so the trial court erred when it started playing around with the numbers.

This is the third straight decision in which the Supreme Court has taken a strict view of the finality doctrine. The two earlier ones, Comcast of Chesterfield v. Chesterfield County and Seguin v. Northrop Grumman, both decided in the February session, held that the parties couldn’t appeal non-final orders. This one, based on Rule 1:1, draws a bright line on the calendar after which the trial court can’t touch the case. All three are well worth your attention.

From the arcane world of finality we proceed to the even more specialized topic of vested rights. Stafford County v. Crucible, Inc. revolves around the acquisition of land to expand a private school.

Oh, did I neglect to mention what kind of school it was? It was a school for . . . well, for government muscle. The opinion describes the instructional subjects as “individual protective measures,” “firearms training,” unarmed combat defensive tactics,” “surveillance detection,” and “anti-terrorist evasive driving.” (All of the quotation marks above are in the original opinion, meaning the court is quoting Crucible’s promotional literature.) This looks like the kind of school that every red-blooded American male would love to attend, right?

Before buying the property, Crucible decided to do the responsible thing. It met with county officials to ensure that its training facility would be consistent with the county’s zoning laws. The property was zoned agricultural, but schools were permitted by right in that classification. A week or less after the explanatory meeting (there’s a turnaround time that will have developers in other jurisdictions seething with envy), the zoning administrator issued a letter confirming that the training facility was consistent with the zoning classification as it existed at that time. The letter added, subtly but ominously, that the classification was “subject to change.”

Now comes the surprising part. Nothing. Nothing happened for fourteen months. Most land use lawyers would insist upon filing at least a preliminary site plan, in order to secure a vested right to develop; but that didn’t happen here. Instead, after fourteen months, Crucible closed on the property. It took all of 30 days after that for the county to amend the zoning ordinance to require a conditional use permit to build a school in an agricultural zone.

Well, that wasn’t very nice of them, now, was it? The county essentially lures the company into buying the land, and then goes and changes the rules on them, requiring the thorough headache of a CUP application, which Crucible figured would contain onerous conditions. Instead of applying for one, and instead of asking the zoning administrator to determine that the company had a vested right, it went straight to court.

The first question presented here is whether the company can skip the ZA in this way. Once upon a time, determination of vested rights was exclusively within the province of the courts. In 1993, the legislature passed a bill that gave zoning administrators the right to make those determinations. The question here is whether that new statute made an appeal to the ZA a prerequisite to heading to court. The trial court ruled that it did not, and the Supreme Court today affirms that part of the judgment. The fact that the administrator was added as a party who can make vested rights determinations doesn’t divest the courts of the right to do so. Accordingly, part 1 of the Crucible Doctrine (assuming history will mark such a creature dating from today) is that a person who claims to have a vested right can go either to the ZA or to circuit court to press his views.

The ultimate issue in the case is whether Crucible acquired a vested right by virtue of the administrator’s prompt letter. Vested rights are governed by statute, and the Code identified six nonexclusive events that can trigger vested rights. A simple letter isn’t one of those, but since the statute says that the list is “without limitation,” that still leaves the matter up to the court. Today, in a reversal of the trial court’s ruling, the Supreme Court finds that this letter isn’t enough. To trigger vested rights, it would have to be a “significant affirmative governmental act,” and the court finds that this just isn’t enough. Accordingly, the court reverses on this point and enters final judgment.

There are a couple of additional issues worth mentioning here. First, as hinted above, if Crucible had filed a site plan, and had either received approval of that plan or had diligently pursued the satisfaction of any corrections required by the county, then it probably would have won this appeal. That’s because both of these acts are specifically included in the vested rights statute. Second, there is a pregnant hint in one of the footnotes (where the goblins of appellate opinions generally reside) that the court might entertain a constitutional challenge to the delegation to zoning administrators of the right to make vested rights analyses. Okay, my readers; remember the language from good ol’ Marbury v. Madison? “It is emphatically the province and duty of the judicial department to say what the law is.” 5 US 137, 177 (1803). Well, here’s another quote from the same case that isn’t quite so famous: “The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority.” Id. at 167.

This doctrine, if the Supreme Court chooses to apply it in this context, could well be the death knell of ZA determinations of the (purely legal) question of whether rights have vested or not. But as the pregnant footnote points out, the issue wasn’t raised in this appeal, so the question stays on the table for now.

Remember the Good Old Days, when you could do business on a handshake? Never mind that those Good Old Days also included the Cold War, segregated schools, McCarthyism, polio, and the Yankees winning the pennant every blasted year; we’re talking about honor here. In Mongold v. Woods, the court confronts a handshake deal that didn’t quite pan out.

Woods was a farm laborer who worked, starting in the mid-80’s, for Mr. and Mrs. Dove, who owned some agricultural property in Rockingham County. The Doves weren’t rich, but they had dreams. Those dreams included the operation of a poultry farm on part of their property, while raising other livestock and crops on another part. They hired Woods, who was then 21 years old, for a salary of just under $8,000 a year, which they figured would cover 35-40 hours a week.

Soon after the employment began, it became apparent that 40 hours a week wouldn’t begin to cover what needed to be done. Woods found himself working almost double the anticipated number of hours. The Doves couldn’t afford to pay him more, but Mr. Woods offered to “take care of him” in other ways. A few years later, he got specific: The couple would leave the farm to Woods when they died. That was good enough for Woods, who stayed on and took on even more responsibility. According to today’s opinion, he was treated pretty much like family.

Mr. Dove died unexpectedly in 2005. He hadn’t made a will, but the property passed to his wife because they owned the property as tenants by the entireties. Mrs. Woods wasn’t in good health; she suffered a stroke after her husband’s death, and Woods took on even more chores. She assured Woods that she had made a will leaving the farm to him.

As it turns out, that was true. She had made such a will; she just hadn’t gotten around to signing it. Instead, after she died in 2006 after another stroke, her family produced her executed will, made just two months before her promise to Woods, in which she left Woods nothing. That will was probated, and Woods, who had trusted the couple for more than two decades, was out in the cold.

Woods sued the executors under two theories. First, he asserted that a constructive trust should be imposed on the estate, basing his claim on unjust enrichment. His second count sought quantum meruit damages. The trial court refused to impose the trust, but it did award damages of $115,000. Importantly for Woods, the trial court started the QM calculus in 1996, roughly corresponding to the date on which Mr. Dove made his promise to leave the property to Woods. (Woods had sought those damages going all the way back to 1985, when it became apparent that his workload had doubled.)

The first matter the Supreme Court takes up is the question of whether Woods’s claims are based on promissory estoppel, as the executors asserted they were. Promissory estoppel is not a viable cause of action in Virginia. (Editorial aside: based on this set of facts, it probably should be. But Woods, recognizing the 1997 caselaw that held that no such claim exists in Virginia, didn’t press for a review of that principle.) If that’s really the basis of Woods’s claims, then the estate gets away free.

The court rejects this argument, noting that quantum meruit has different elements, and is a distinct doctrine that is perfectly valid in Virginia. Indeed, the court goes all the way back to the Victorian Era to cite a case in which the court had upheld that theory of recovery. It then notes that the doctrine covers this situation quite well; Woods performed services without any specific agreement as to compensation, so the law will imply a contract to pay him.

Careful readers will note that Woods and the Doves did indeed have an agreement – remember the $8K a year? – and the existence of an express contract prevents application of QM for the same work. The executors asserted that bar in their second assignment of error. But the court holds that the QM claim was for the extra work that Woods unquestionably took on, over and above his expected 35-40 hours per week. The trial court thus had a legitimate means of awarding such damages.

Woods assigned cross-error to the trial court’s decision to start his QM damages midway through the relationship. Today, the Supreme Court agrees with him and remands the case to recalculate the damages, going all the way back to the beginning. The lower court had fixed that start date based on the timing of Mr. Dove’s promise to leave the property to Woods, but the appellate court notes that that promise had nothing to do with the quantum meruit claim. It might have been relevant to the constructive trust claim, but Woods wasn’t appealing that.

I believe that just about anyone reading this opinion will sympathize with Woods, who devoted over half his life to caring for this farm and for its owners. In Hollywood, a happy ending based on the Good Old Days mindset would have the appellate court awarding him the farm he was promised, in recognition of the many hours of work he did in reliance on that promise. That doesn’t happen here (although Woods is clearly the winner in today’s decision; he’ll probably wind up with something approaching $225,000 in damages). Think about that, and the absence of a cause of action for promissory estoppel, the next time you shake someone’s hand.

Attorney discipline
This is almost always the toughest category of cases for me to write about; a proceeding against one of our own is always an unpleasant thing to ponder. This is the second proceeding I have reported on by the name of Green v. Virginia State Bar, and the name is no coincidence; it’s the same lawyer this time as it was in 2007. I suppose that could salve the sting of this kind of case, but in truth, it just makes it more unpleasant.

The substantive charges against Green this time around aren’t exactly major felonies; in one case, he failed to properly segregate a retainer in his escrow account until he earned the fee, and in the other, he did an admittedly poor job of pressing a small insurance claim and of keeping the client informed. He didn’t steal hundreds of thousands of dollars or violate client confidences. But the second charge clearly implicates his fitness to practice, and the Bar accordingly suspended his license for 18 months.

Appeals from such disciplinary orders are of right, meaning the attorney didn’t have to file a petition for appeal; the Supreme Court just proceeds directly to the merits of the case. The attorney raises a number of procedural complaints; the court finds that a couple of those are waived. His best argument is that the Bar delayed unduly in certifying the disciplinary charges. Beyond question, the Bar did sit on the matter for over a year without explanation, and today the court takes the Bar to task for “failing to comply with the same standard of professionalism that it expects from the lawyers it regulates.”

But in order to take advantage of this delay, the attorney has to show that he was prejudiced by it. He makes a fair pass at doing that, contending that some witnesses at the hearings were unable to remember factual details going back several years. But the court notes that those memory lapses hurt the Bar’s case, not the lawyer’s, so this challenge doesn’t avail him. The court affirms the imposition of the suspension, so the lawyer will be able to resume his practice in late 2010.