[Posted June 7, 2012] Opinion day comes a day early this week, thanks to the four-day session that ends the Supreme Court’s 2011-2012 term today. The court hands down 20 published opinions and three published orders, in cases argued in March and April. We get a ruling in a death-sentence case in which the defendant refused to appeal, and we sort-of learn whether a criminal-defense lawyer can testify against his former client at trial. The court also resolves an appeal in which a trial court had imposed what eventually amounted to an $11 million discovery sanction.

While I’ll be focused on today’s opinions over the next two days of analysis, I’ll confess that my attention is likely to wander from time to time. Tonight in Norfolk, the graduation ceremony for the Governor’s School for the Arts will be held, honoring the Class of 2012. One of those honorees is my favorite daughter (also my only daughter; but that’s just a technicality), an extraordinarily talented musician who will soon be abandoning her mother and me to go off to college. Over her high-school career, she was named to the Virginia Band and Orchestra Directors Association’s All-Virginia Band and Orchestra in her sophomore, junior, and senior years. I don’t know about you, but three-time all-state is better than anything I ever did in high school. But more important, I admire her as a bright, energetic, kind-hearted, confident person who makes everyone around her happier.

Last night, I got to enjoy a dazzling senior recital, her payoff for all those long hours of practice. Tonight I will experience the mixed emotions of a father whose eyes see a tall, beautiful, poised young lady striding across a stage to receive a diploma, but whose heart sees a pretty six-year-old girl in her fairy-princess Halloween costume, smiling up at her daddy. My spirit mourns the permanent loss of that little girl, even as it exults over the wonderful promise of a rapidly unfolding life, with limitless potential. If an occasional teardrop falling onto the keyboard somehow makes it onto the pages of this website today, at least you’ll know why it’s there.

You will always be my princess, Caroline; your father is very proud of you.

Criminal law
The court considers, but tantalizingly does not decide, a troublesome evidentiary issue in Turner v. Commonwealth. In this malicious-wounding prosecution, a prosecution witness testified at a preliminary hearing that he saw the defendant shoot the victim. The defendant’s attorney later withdrew and was replaced. At trial, the same witness stated that he couldn’t remember who shot the victim.

The prosecution then tried the very unusual tactic of calling the defendant’s former lawyer (the one who had handled the preliminary hearing) to testify as a prosecution witness as to what the now-forgetful witness had stated under oath earlier. If your antennae rocketed upward at the suggestion of a lawyer’s testifying against his former client, you’re on the right track here. Over the defendant’s vehement objection, the trial court permitted the lawyer to restate what the witness had said at the prelim, and the defendant was subsequently convicted.

There are two issues on appeal. The first is whether the trial judge erred in declaring the forgetful witness unavailable, thus justifying the use of the lawyer’s summary of his earlier testimony. The second issue is the propriety of the lawyer’s testifying against his former client. The Court of Appeals affirmed the conviction, but today the Supreme Court unanimously reverses. It holds that the trial court was too quick to conclude that the witness was unavailable due to lack of memory. It’s true that a genuinely forgetful witness may be regarded as unavailable for hearsay purposes, but the trial court is obligated to test his protests of memory loss, and the trial judge didn’t do that here. Accordingly, the justices reverse the conviction and remand for a new trial.

Actually, the case is almost unanimous; Justice Lemons files a concurrence in which he reaches the issue that the majority finds beyond its reach: the use of the lawyer’s testimony. Justice Lemons would hold that the lawyer was not permitted to testify, and indeed that he violated RPC 1.9 by taking the stand against his former client. The trial court and CAV had ruled that the information (the prior testimony) was “generally known,” so it falls within an exception to the prohibition of a lawyer’s testifying. But the only way in which this information was public is that it came out in a hearing in a court not of record. As the concurrence points out, there’s a difference between information that is somehow public and information that’s generally known.

I can’t say that Justice Lemons is alone in this view; in fact, I suspect that he has plenty of company on the court in his thinking on the merits. No one in this profession will be completely comfortable with the concept of a defense lawyer taking the stand to help convict his former client. But the majority simply declines to reach this issue, finding it unnecessary to do so. That means that, technically, the issue hasn’t been resolved in Virginia (Justice Lemons cites a New Jersey case to bolster his conclusion). But if any prosecutor takes heart in the fact that the issue was left on the table, I recommend a reality check; I seriously doubt that this set of justices would allow this testimony if the matter were squarely presented.

Two decisions announced today address the requirement of obscenity in certain criminal statutes. One is published – Barson v. Commonwealth is a conviction (with corresponding $250 fine) of harassment by computer. Barson, angered by what he saw on a website, sent his estranged wife hundreds of harassing e-mails. But the statute requires that harassing e-mails, in order to violate the statute, must also be obscene.

In the famous case of Miller v. California, the Supreme Court of the United States in 1973 defined obscenity in terms that required a showing of “a prurient interest in sex.” Accordingly, calling someone a foul term, even one with a sexual connotation, is not necessarily obscene. (We’ll leave aside the question of whether it’s profane or not; if that were criminal, Mark Twain would have the right to remain silent.) This criminal statute has been interpreted to employ that definition, although the statute doesn’t come right out and say that. Barson’s e-mails, while they were clearly offensive and even related to sexuality, clearly didn’t display that prurient interest, and a panel of the Court of Appeals reversed the conviction.

But the CAV granted en banc rehearing, and that full court affirmed the judgment by the simple expedient of using a different definition of obscene; this one came out of a dictionary. The justices granted a writ, and today they unanimously reverse and dismiss the complaints. The court reaffirms the applicability of the Miller obscenity standard in this statute. Three justices concur, agreeing that the Miller standard applies, and adding that the CAV’s approach would deny Barson due process of law by changing the rules of the prosecutorial game after his conduct had been committed.

In a published order, the court affirms a conviction in Rives v. Commonwealth on a related issue. Rives also sent profane e-mails, but these contained “threats to commit illegal or immoral acts, where the threat is made to coerce, intimidate or harass.” In that instance, it doesn’t matter if the language is obscene or not; the way the legislature has framed the act, obscenity isn’t part of the prosecution’s proof requirements. You could probably get a conviction for this conduct based on words that appear in One Fish, Two Fish, Red Fish, Blue Fish – assuming you rearranged the words, of course.

Criminal-law practitioners will get something of a surprise in Rushing v. Commonwealth. This one’s an appeal of convictions for use of a firearm during a burglary, and for criminal street-gang participation. The key issue is the testimony of a prosecution expert on gangs.

In order to establish the existence of a gang, the prosecution has to show two criminal acts by members of the gang. Note that I didn’t say acts by the defendant; the two acts could have been committed in Toledo, and that’ll be good enough. Here, the prosecution admitted conviction orders for two persons. The expert expressed the opinion that one of those two was a member of a gang because he had once seen him, sitting in a chair, wearing black and blue beads. The expert noted that “black and blue beads are insignia worn by [this gang’s] members.”

That isn’t good enough, the Supreme Court rules today. Just because this gang’s members wear those beads doesn’t mean that everyone who wears those colors is a member. (If you took Logic in college, go straight to footnote 2 in Senior Justice Russell’s opinion, and be reminded of the good old days back at your alma mater.) The court also rules that a photograph of the defendant here was improperly admitted because of Authentication 101 – no one testified that it fairly and accurately represented what was depicted.

Now for the surprise that I promised you. In evaluating sufficiency challenges where the defendant also raises evidentiary issues, the Court of Appeals first considers whether all of the evidence, including the erroneously admitted stuff, is sufficient for a conviction. If not, then it’s reversed-and-final-judgment in favor of the defendant. If that totality of the evidence is sufficient, then that CAV sends the case back for a new trial, if the Commonwealth still wants to do so. This procedure is consistent with a 1988 US Supreme Court decision in a habeas-corpus appeal.

That isn’t the rule in Virginia, the justices rule today. Disdaining the federal procedure, the court rules today, as a matter of state appellate procedure, that improperly admitted evidence must not be considered in evaluating whether the evidence is sufficient. That’s in line with a decision handed down by the court last year. In this instance, the last line is indeed “reversed and final judgment.” (Please note that Mr. Rushing will still enjoy free room and board with the compliments of the Department of Corrections for a number of years, as his convictions of three other felonies were not involved in this appeal.)

The most chilling opinion of the day also provides the most predictable analysis: Gleason v. Commonwealth is the statutorily mandated review of the death sentences pronounced upon a prison inmate who managed to kill two of his fellow inmates, one of those in the state’s most secure prison. He planned each attack, carried each out with ruthlessness and without remorse, and stated without hesitation in open court that he would kill again if given an opportunity. Having been twice sentenced to death based upon guilty pleas, he refused to exercise his right to an appeal, so the only thing left for the court to do today is review the sentences for proportionality and the presence of passion, prejudice, or some other arbitrary factor.

The court finds no defect in the sentences. That’s because there is none.

Today is a day of mixed news for tort lawyers. The first case we’ll take up is a narrow win for the plaintiff’s side of the aisle – Funkhouser v. Ford Motor Co. It’s a wrongful-death claim based on an alleged failure by the manufacturer to warn of an electrical danger that caused a fatal fire in a Ford minivan.

The issue here is the admissibility of evidence of seven other fires in these minivans, to prove that Ford had notice of a defective condition in the vehicles before it sold this one to the Funkhousers. The trial court held that because the Funkhousers could not identify the precise cause of the fire in this vehicle, it could not admit evidence of the other fires, since there was no way of knowing if those fires were “caused by the same or similar defects and dangers” as the ones in the Funkhouser vehicle. Without that evidence, the Funkhousers acknowledged that they couldn’t prove notice, so they stipulated to dismissal under protest, reserving the right to appeal.

As my introduction blabbed, the justices reverse this ruling and send the case back for trial. A bare majority of the court (Justice McClanahan, writing for Justices Lemons, Millette, and Mims) holds that the trial court framed the issue improperly. The question for admissibility of this information is not, as the court had held below, whether the manufacturer had “actual knowledge of a defective condition”; since this is a failure-to-warn claim (not a defective-manufacture claim), the issue is whether “Ford had notice and actual knowledge of the danger of key-off electrical dashboard fires,” a noticeably broader concept.

The court therefore reverses the judgment and notes that the Funkhousers may introduce evidence of four of the seven other fires (the remaining three contained insufficient detail as to origin to bring them within the Virginia rule), and their experts may rely upon them in formulating opinions. The remaining justices dissent; Justice Powell criticizes her colleagues for ignoring the second half of the admissibility test – whether the other fires were “caused by the same or similar defects and dangers.” If the Funkhousers can’t pinpoint the exact cause of this fire, how can anyone say that this was caused by the same defect or danger?

As of now, that’s a question for trial courts to ponder. The ruling makes it easier for plaintiffs to establish notice – though the evidence still isn’t admissible to prove a defect.

The court decides two cases today that implicate the Workers’ Comp bar. Giordano v. McBar Industries involves two separate issues. The first is whether a person who is not an employee, such as a personal representative, is bound by the exclusivity provisions of the Act. Giordano filed a Comp claim when her estranged husband was killed in an accident at a job site. Her request for benefits was denied, because she was not a dependent of the decedent.

That means that she’s free to sue the employer, right? After all, you have to be able to get Comp benefits or sue, one or the other, right? Wrong. The court rules today that there are two ways in which benefits can be denied: if the claim isn’t covered, or if it is covered but a defense applies. If it’s not a covered claim – say, the injury didn’t arise in the course of the employment – then the Act doesn’t apply, and you can sue away, to your heart’s content. But if it does apply but a defense bars coverage, then you get no benefits and no lawsuit, either. That’s what happened here, as the Supreme Court affirms a ruling in favor of the employer in the ensuing tort litigation.

The court goes on to rule that a defense that bars the employee also bars anyone claiming through him, so the estranged wife, as personal rep of her husband’s estate, is just as barred as he would be.

Finally, the court gives the wife one glimmer of hope for a recovery. The accident occurred when a supplier of sheetrock delivered a two-ton load and propped it up against a wall. The weight caused the wall to collapse, crushing the decedent. The court rules today that the delivery company is a stranger to the work, since its business wasn’t building construction, as the decedent’s employer was. That means that the widow can sue the delivery company.

The statutory-employer doctrine also decides Napper v. ABM Janitorial Services. The employee worked at a call center – one of those places where the phone rings when you call a company’s toll-free number, but you’d never have any reason to walk in there. She slipped in some liquid in the building’s main lobby, away from her employer’s offices. She filed a tort action against the company that was hired to maintain the lobby floors, claiming that that company had left the floor in an unsafe condition without warning her.

The trial court sustained a plea in bar based on the Comp bar, holding that the cleaning company was performing an essential part of the call-center’s business. The justices reverse, given the nature of this particular setup. In the past, the court has held that a cleaning company is not a stranger to the work of a retail store (such as a Sears store), since keeping a clean, attractive retail area is obviously part of Sears’s business. But no customers are expected to enter this call center; while cleaning might be essential to the company’s business, it’s not part of the company’s business, and that’s the proper test.

In Steward v. Holland Family Properties, the court considers a claim by a tenant that her child sustained serious injuries by ingesting lead-based paint at their apartment. The issue is whether the landlord had a duty to the tenant to keep the premises free of that substance, based on the common law, the lease, or the Residential Landlord-Tenant Act. Recently, in Isbell v. Commercial Inv. Assocs., the court had rejected a similar claim based on defects in the condition of leased premises, where the landlord surrenders possession to the tenant. In that instance, the court held, the landlord doesn’t have a duty to keep the property safe; that’s the tenant’s duty.

In today’s opinion, the court declines to peel back its holding in Isbell. It notes that the lease creates only contractual duties upon the landlord, so the plaintiff can’t sue in tort. Nor does the RLTA; that’s the specific Isbell holding. Finally, the court agrees with the trial court’s decision to reject claims based on the common law. It’s true that when a landlord undertakes to perform repairs, it must do so with due care. But the complaint didn’t allege that this landlord had ever undertaken any such repairs; it was the failure to act that served as the gravamen of the complaint.

In this last claim, the court notes that this cannot survive, on the facts, as a failure-to-warn claim. The lease specifically contains a notice that there may be lead-based paint, so the landlord did provide the warning. And as the opinion notes, the complaint alleged that the paint was peeling and cracking, a condition that the court finds to be open and obvious. The opinion doesn’t disclose the court’s thinking on whether it was obvious that the peeling paint was lead-based – I’m not sure how a layman could tell from looking at a paint chip whether or not it has lead in it – but this issue apparently wasn’t part of what the parties addressed in their briefs.

The law in Virginia remains caveat lessee.

It’s regrettable that nastygrams are firmly entrenched in the practice of law. Lawyers seem to think that writing a scathing letter will intimidate an opponent into knuckling under in settlement discussions, or will yield some other important concession. Perhaps that’s the lesson learned from an unlucky choice of early-career mentor, and the “mentee” has never rethought the wisdom of this practice. I long ago gave up writing nastygrams, for several reasons, one of which is that they have an unfortunate tendency to wind up in the hands of judges who decide motions in the case. I can honestly say that it’s been many, many years, and a considerable amount of career wisdom banked, since I sent one out.

If you’re still on the fence, today’s decision in Mansfield v. Bernabei gives you another reason to come over from The Dark Side: you can get sued. The letter in this case may have been well short of a true nastygram, but it clearly conveyed accusations that one of the subjects, an attorney, regarded as defamatory. The letter was a pre-lawsuit missive, telling the addressees that the author’s client felt that their acts constituted discrimination in employment. The letter threatened legal action if the parties could not reach a peaceful settlement.

No such settlement resulted, and the author of the letter did indeed sue several people, including the offended lawyer, in federal court. The action fizzled and eventually died, and the lawyer filed a defamation action against the attorney and law firm who sent out the initial letter.

The trial court sustained demurrers to the defamation suit, concluding that the letter was absolutely privileged as being incident to litigation. In so ruling, the trial judge rejected the plaintiff’s contention that privilege only applies to actual litigation; not to a threatened but as-yet-unfiled suit. The Supreme Court had previously (2004) refused to extend the privilege to “mere potential litigation.” In that case, the court had expressed a desire to avoid “permit[ting] defamatory communications to be made with impunity merely upon an assertion that litigation might be subsequently initiated.” At this point, it’s looking like the case is in for a reversal.

But no; the court affirms today, in the process adopting a provision of the Second Restatement of Torts. That provision entitles an attorney to send out defamatory matter “preliminary to a proposed judicial proceeding,” as long as the material “has some relation to the proceeding.” The court embraces a comment to the rule that requires that the litigation be “contemplated in good faith and under serious consideration.” You can’t send out this kind of nastygram behind a façade of potential litigation; but if it’s contemplated in good faith, the communication is absolutely privileged.

I cringed when I read the facts of Cline v. Dunlora South, LLC. Cline was driving along Rio Road (which I know to pronounce RYE-oh) in Charlottesville, minding his own business, when all of a sudden, a tree falls onto his car, crushing it (and him). He sustained significant and serious injuries, and sued the owner of the parcel on which the tree had stood. The complaint alleged that the tree was “dying, dead, and/or rotten,” and that this condition was apparent to the landowner.

The trial court sustained the landowner’s demurrer, holding that the owner of real property has no duty to prevent a tree from falling onto a public right-of-way. Since that didn’t seem to jibe with Fancher v. Fagella (2007), which set forth how one neighbor can be liable for damage that his tree causes to another neighbor’s property, the driver got a writ.

This case produces a 4-3 split in the justices. A majority (Justice Goodwyn, writing for the chief justice and Justices Millette and McClanahan) affirms the dismissal of the action, finding no duty on the part of a landowner to prevent his trees from falling onto a public road. The majority draws support from the absence of such a duty from the English common law.

Justice Lemons, joined by Justices Mims and Powell, files a dissent in which he asserts that “[w]ell known and ordinary principles of negligence should control this case.” The dissent recognizes that there’s a difference between different kinds of property. It would be onerous, for example, to require an owner of a 150-acre forest to conduct a periodic survey of the perimeter of her land to see if any of the trees had hidden health problems that might lead to problems on adjacent roads. The calculus might be much different for the owner of a suburban rectangle who can claim exactly two trees as his own.

The minority would apply a rule that calls for fact-specific inquiries to see whether the owner knew or should have known of the danger, without imposing a duty to inspect. This approach actually finds support in the Restatements and in caselaw from other states; the dissent draws particularly on a North Carolina decision for the rule that it urges Virginia to adopt. But that urging falls one vote short, so as of now, a landowner has no duty, even with an obviously rotten tree, to protect passersby on adjacent highways.

Today’s opinion doesn’t precisely address this question, but I did wonder whether the same rule would apply to bar an action by a pedestrian on a sidewalk, or walking along the side of a road. As I read this opinion, I believe that the answer is yes. The majority speaks of a highway (“The duty owed by adjoining property owners is to refrain from engaging in any act that makes the highway more dangerous than in a state of nature or in the state in which it has been left.”), but I see no logical reason why this wouldn’t apply to a suit brought by a pedestrian, too.

Okay; so what’s left of Fancher? Does it only cover property-damage claims, leaving those who suffer personal injuries on their own? I’m not sure; it may be that in the majority’s view, an obviously diseased tree that falls from my neighbor’s yard and hits me in the head might not produce liability. The majority’s decision to turn its back on the Restatement’s case-specific approach surprised me in this appeal. Since claims like this are probably rare, we might have to wait quite a while for more guidance.

By the way, as for the unusual pronunciation of “Rio,” keep in mind that Charlottesville is notorious for errors in matters like this. One of the city’s main thoroughfares, US 29, is named Emmert Street, an honor for which I’m profoundly grateful and humbled. But inexplicably, all of the street signs misspell this simple name as Emmet. You’d think that they’d at least get the spelling right . . .

In the first of today’s two eight-figure business tort cases (for the next one, see the very next section, on sanctions), the court takes up the issue of how a plaintiff company proves the damages component, loss of goodwill. The decision is 21st Century Systems v. Perot Systems Gov’t Services.

Perot sued 21st Century and a whole host of individuals alleging several business torts, raising ten separate counts. A jury ruled in favor of the plaintiff on each count, awarding damages from five to seven figures on each claim. The court trebled certain conspiracy damages; reduced a punitives award to the statutory cap; eliminated certain redundancies in the damage awards; and entered final judgment.

The analysis is fairly detailed, so I’ll cut right to the rulings: The court sets aside one damage award that’s based on an expert’s calculations of a business’s goodwill. As every business-school sophomore knows, goodwill is the value of the company over and above its identifiable assets. The value of Starbucks, for example, is measured in its market capitalization (number of shares outstanding times the stock’s current price). The figure is significantly higher than the fair market value of all of the company’s retail stores, intellectual property, and physical assets – even its supply of coffee beans. The difference is called goodwill, and that represents value that the company has added simply by being around for a while and cultivating a loyal crop of folks who are willing to fork over five bucks for a cup of coffee.

Perot hired an expert to say how much goodwill the company had lost as a result of the defendants’ actions. That expert noted that Perot had actually been sold, along with its parent company, to no less a commercial titan than Dell, Inc., shortly before the expert got hired. Accordingly, the expert felt that he didn’t have to estimate the goodwill in that transaction; he had the actual purchase price for the companies, and he had a list of their respective identifiable assets. He used Dell’s allocation of the proportion of the gross transaction that was attributable to Perot, so that gave him an easy baseline. From there, he applied a multiplier (about 2½ times, based on a capitalization of Perot’s income stream) to arrive at a full damage figure of over $4 million (later trebled).

The majority today agrees with the defendants that this expert used the wrong kind of analysis. Among other things, it notes that Dell paid a significant premium for the company over its trading price right before the sale. That means that there’s no way to say that the company lost any goodwill at all; Dell bought it for more than its previous identifiable assets and goodwill combined.

The defendants’ other appellate arguments don’t enjoy similar success. The most interesting ruling for many attorneys will probably be the finding that trebled damages aren’t redundant of punitive damages. Yes, trebling is a way to punish the defendant by hitting it for more money than the plaintiff actually lost; but these claims arise under separate counts, and the court concludes that it isn’t a double recovery.

The court also affirms an award of forensic costs of $371,000. The defendants claimed that this was just a litigation expense, but Perot had hired the forensic consultant in the wake of the exodus of its employees, just to figure out what had happened and what the economic impact was. Significantly, the defendants did not object when evidence of the forensic consultant’s costs was adduced, and it did not object to the submission of the question to the jury for decision; its first objection to this point came after the verdict. That’s too late; you have to raise an issue like that before the jury gets the case, or it’s regarded as having been conclusively consigned to the jury for decision.

In terms of its effect on the net recovery, from what I can tell, the original judgment was for over $14 million, but since the Supreme Court has taken away the biggest chunk of that due to the goodwill claim, it looks to me as though there’s something on the order of $2.5 million left in dispute. The court remands the case to the trial court for reconsideration of an attorney’s fee award relating to the conspiracy claim.

Two justices dissent in part. Justice McClanahan would affirm the judgment, since she feels that the expert’s approach is not distinguishable from one in a 1998 case (and the majority spends plenty of attention to distinguishing that case from this one). She observes that today’s decision makes it tougher for a plaintiff with an actual sale figure to prove damages than it is for a company that must estimate its goodwill, in the absence of a sale of the business. Justice Powell joins this view, and writes separately to express her sense that the evidence, taken in a light most favorable to Perot, could well have supported the jury’s decision.

In the business-tort case of Nolte v. MT Technology Enterprises, the court addresses several issues, but the primary theme of the case is sanctions. This case may be loosely described as a messy corporate divorce that resulted in litigation alleging fraud, conspiracy, and tortious interference. When the defendants (a Virginia LLC and several of its principals) failed to respond to discovery and then didn’t obey an order compelling discovery, the trial court imposed a harsh sanction, prohibiting the defendants from opposing any of the plaintiff’s claims.

As you can imagine, that made the eventual trial a tad one-sided. The trial judge told the defendants that they would be allowed to adduce evidence, but only if that evidence supported their opponent’s lawsuit against them. Beginning with the second day of the two-day trial, she expanded that ruling to prohibit them from cross-examining the plaintiff’s witnesses – again, subject to the exception that the defendants could do so to help the plaintiff, if they wanted to.

Eventually, the trial judge told that jury that it would be deciding damages only; the jury returned a verdict in seven figures. In preparing post-verdict motions, the defendants discovered that the plaintiff was a Delaware LLC that had never obtained a certificate of authority to conduct business here; they accordingly moved the court to set aside all events in the case after the initial suit filing, since a statute prohibits a foreign LLC from maintaining an action in Virginia courts until is obtains a certificate. (The court has defined maintain so as not to prohibit the filing of an action – thus saving plaintiffs from a statue-of-limitations nightmare – but to prevent them from pressing the suit forward after filing.)

The trial court denied all of the defendants’ post-verdict motions and entered judgment for the plaintiff on the verdict. The judge later trebled the damages, since one of the claims was based on statutory conspiracy. In the end, the practical effect of the court’s pretrial order was to sanction the defendants in an amount that turned out to be $11 million. The defendants got a writ on eight assignments of error.

The court first addresses the certification requirement. It holds that, despite the statute’s use of the word until, a plaintiff can retroactively validate all of the previous actions in the case as long as it obtains the required certificate before judgment. This plaintiff did that, so the interim proceedings are appropriate.

The court next addresses the sanction that was actually imposed. The defendants had contended that this one was too drastic, since it effectively gave the plaintiff everything it wanted without a fight. While the court discusses the requirement for proportionality between the offense and the sanction, it ultimately holds that this sanction was within the range of available courses of action, and the judge didn’t abuse her discretion in doing what she did.

Up to a point, that is. The court finds that the judge’s decision to cut off all opposition including cross-examination, was error. The right of cross-examination is so fundamental that a court can almost never prohibit it. The exceptions to that are where the right has already been exercised, such as a case where a judge decides that four hours of cross is enough, already. Here, the court prevented any cross-examination at all, depriving the judicial arena of its most important crucibles of truth-finding.

In the end, the Supreme Court affirms the imposition of the sanction, but remands for a new trial on damages alone, in which the defendants may cross-examine the plaintiff’s witnesses and adduce damages evidence of their own. Justice Powell filed a partial dissent; she would hold that the relief ordered today doesn’t go far enough. She would permit a new trial on all issues, and permit the defendant to cross-examine plaintiff’s witnesses on any issue, including that of liability.

Preservation of error
Today’s majority opinion in Brandon v. Cox notes that the issue decided is one of first impression in Virginia. Because that issue relates to how to preserve an issue for appeal, a matter near and dear to the heart of every appellate lawyer, this one deserves a careful reading.

Brandon is a low-income tenant in Section 8 housing. She was required to terminate her tenancy for what the court calls “reasons beyond her control,” and received a certificate from the landlord that she didn’t owe anything as a result of the termination, by way of rent, damage, or otherwise. Despite that letter, the landlord hung onto her security deposit of $995.

She went to general district court to get the deposit back, but that court refused her request. She appealed to circuit court and again lost. Twelve days after entry of the judgment order, she filed a motion to reconsider. The trial court didn’t rule on that, so she timely filed a notice of appeal within 30 days of the final order. Since there was no court reporter, she filed a written statement (again, timely), and the judge signed it.

Here’s the problem: The trial record is barren of any detail as to what was argued, except for the motion to reconsider, which does contain the arguments raised on appeal. The judgment order is bare-bones, and even the written statement recites only what happened in GDC, not circuit. The issue, then, is whether arguments that are adequately briefed in a motion to reconsider that is never noticed for a hearing can suffice to preserve those issues for appellate review.

A majority of the court decides today that it doesn’t. Unlike her request for entry of a written statement, the tenant never brought the post-trial motion before the court for decision. The contemporaneous-objection rule requires that you give the trial judge the first crack at getting the decision right, and this record just doesn’t show that that happened here.

The lesson here is simple: In order to preserve an issue for appellate review, you can’t just plop down a document in the clerk’s office and walk away; you have to ensure that you get a ruling on that argument no later than 21 days after entry of final judgment. Even the most compelling legal argument won’t be preserved if the record doesn’t show that the judge actually considered and ruled on it.

Today’s decision isn’t unanimous. Justice Mims dissents alone, arguing that the court should apply the ends-of-justice exception within Rule 5:25 to enable it to consider the issue. He remarks that the landlord committed an obvious breach by holding on to money that he clearly, based on this record and on the law, wasn’t entitled to keep. For Justice Mims, taking nearly a thousand dollars away from a low-income tenant is exactly the kind of “grave injustice” that the EOJ exception should cover.

There are a couple of points worth noting about the issue raised by the dissent. The majority opinion (written by Justice Powell) discusses the exception by citing four criminal-law decisions. Those cases stand for the premise that a “grave injustice” usually involves things like getting convicted of a crime of which you’re actually innocent, and that generally reflects the court’s sparing use of the exception. I noticed that neither opinion cites any civil decisions – where money but not liberty is at stake – on this issue. In my experience, as rare as it is to apply the exception in a criminal case, it’s far rarer in civil cases. If you’re hoping to get the benefit of the rule in a civil context, don’t get your hopes up.

Second, the dissent notes that the tenant didn’t ask the court to apply the ends-of-justice exception; Justice Mims would still do it anyway, pointing to a couple of cases (again, criminal) in which the court has applied the exception sua sponte, despite the fact that the litigants never mentioned it. I point this out because the practice in the Court of Appeals of Virginia is different; that court has repeatedly stated that it will not apply the exception absent an affirmative request from the appellant to do so. I don’t know if the justices will ever speak on the CAV’s practice, but for now, it’s important to keep in mind the procedural difference between the two courts.

UPDATE (June 8, 2012) – One of the advantages of having a core of loyal readers who are also first-rate lawyers is that I get insights from time to time in the immediate wake of my analyses. I received a note last evening from one of those lawyers to point out a rules-based anomaly in the majority’s ruling. The holding is that the record doesn’t show that the plaintiff ever got a ruling on her motion to reconsider, which is the only place where the detailed basis for her objection appears.

That’s fine as a statement of appellate procedure is concerned, but what about Rule 4:15, which governs motions practice back in the trial court? “Oral argument on a motion for reconsideration . . . shall be heard orally only at the request of the court.” That means that the plaintiff couldn’t have just set a hearing to argue her motion to reconsider, as the majority implicitly chides her for not doing; the trial court might well have refused to calendar such an argument unless the judge consented.

The simplistic answer is that the plaintiff could have put her previous arguments on the record sooner, rather than wait for a post-trial motion with a 21-day clock ticking. But I think that begs the question; these two rules conflict in their application. It’s abundantly clear that the amount at issue here played a part in the parties’ decision not to expend a lot of money, such as for court reporters; the landlord didn’t even make an appearance in the Supreme Court, since doing so would have cost it more than the amount at stake in the litigation.

This next case barely fits in the subject header of “preservation of error,” but I’ll put it here instead of in the criminal section because this is where it’ll get the most attention, and therefore where it’ll do the most good.

Normally on opinion day, I read through the decisions as efficiently as I can, so I can post as much analysis as possible on the same day. I spend only as much time on a given opinion as is necessary for me to understand it, and then I start typing. Today, I’ll admit to having lingered over Belew v. Commonwealth, a criminal-law appeal that’s really all about the late filing of a transcript. I could zip through the opinions (there is a spirited dissent) and fairly appreciate the two positions, but this one was a fascinating exploration of the relatively new rule on the filing deadline for transcripts. I’ll try to pick up the pace with the next case.

The underlying facts of the prosecution are superficial to this decision; the real meat of the case is the procedural history. Belew was convicted of leaving the scene of an accident (felony) and sentenced to five years, with 90 days to serve. She timely noted an appeal, and her lawyer timely filed a transcript notice, describing that transcripts of proceedings on March 17 and 25 were in the record. So far, so good.

The problem is that the trial was held on March 3. Those two other dates weren’t misprints; there actually were proceedings on those days, and the sentencing took place on the 25th. But the main testimony in the case, including the stuff that Belew was asserting as error, took place on the 3rd.

So why wasn’t the trial transcript in the record? The court’s docket mistakenly indicated that “proceedings scheduled for that day had been continued.” The defense lawyer discovered the omission in September, after the record had already been shipped to Richmond. The lawyer hastily arranged for the preparation of the transcript, and it was filed six days after the omission was discovered. The lawyer then moved the trial court for relief under Code §8.01-428(B), alleging a clerical error; the prosecution did not object, and the trial judge entered an order making the new transcript part of the record, at which point it, too, was dispatched to Richmond.

The eagle-eyes at the Court of Appeals noticed this procedural end-run, and the court summarily dismissed the appeal because the key transcript was filed too late to be considered part of the record under the rules. The Supreme Court agreed to take a look at the case.

Today, a bare majority of the court votes to reverse; the court remands the case back to the CAV with a direction that it consider the merits, including the new transcript. Justice Mims, writing for the chief justice and Justices Lemons and Millette, begins by noting that the clerical-error statute is an exception to the normal rule that trial courts lose jurisdiction to act after 21 days. Since the statute permits correction of such errors “at any time,” there is no 21-day limit (or any other temporal limit) to when the court can act.

The next question is whether this was indeed a clerical error. There’s a fair body of caselaw interpreting that phrase in this context. Trial courts can correct a typographical error within a transcript. They can also direct the preparation of a nunc pro tunc order, many years after one was ordered but inadvertently not prepared by counsel. The majority concludes that there’s nothing analytically different between, say, furnishing a missing word and furnishing an entire missing transcript.

Since the original fault for the missing transcript was a mistake for which neither Belew nor the court reporter was to blame (the fire started with a mistake in the court’s case-management system), the majority sees its way to allowing the supplementation of the record in this way. The dissent (Justice Powell, writing for Justices Goodwyn and McClanahan), erupts, albeit in the reserved fashion of appellate opinions.

While the majority focuses on the originating error, the dissent hones immediately on a different pressure point: the defense lawyer’s certification of the transcripts that had been filed. That lawyer signed a paper that indicated that only two transcripts were present in the record; it can hardly be called inadvertent if that lawyer didn’t do the job as required. Previous caselaw establishes that counsel’s failure to comply with a Rule of Court isn’t a clerical error, so the dissent sees no way to approve this late supplementation.

There’s more discussion in this opinion on both sides, but I don’t want to get bogged down here, as is quite possible with an appellate-procedure-geek topic like this one. All I’ll add is my own sentiment, which evolved as I read today’s opinions. When I began reading, my sympathies fell squarely with the appellant, Belew. She didn’t really do anything wrong, and the idea of being left without an option because of a mistake by someone you didn’t hire seems . . . I dunno, Kafka-esque. But even as I finished the majority opinion, I felt uneasy. The majority’s equitable approach was satisfying to my sense of fair play (I’m an appellate lawyer, so I’m all in favor of giving someone a day in appellate court), but the dissent’s more legal approach won me over. As troublesome as this is for Belew, I have to agree that her lawyer clearly knew, well before the 60-day deadline, that the March 3 transcript wasn’t in the file. When your lawyer makes a mistake like that, you’re stuck; he’s your agent.

Here’s the probable legacy of this case: When the Rules of Court (specifically, those relating to the filing deadlines for transcripts) were amended two years ago, they liberalized the previous harsh rule. Before then, in the Bad Old Days, if you missed the deadline, you were out. The new deadlines included some soft, fuzzy provisions that allowed some flexibility in appropriate circumstances, and I applauded that. Sometimes, circumstances arise that . . . well, you know.

But today’s ruling might just, as the dissent warns, do away with any enforceable deadline at all. Justice Powell warns, “I believe that the majority’s holding runs the risk of effectively negating all filing deadlines under the Rules of Court, so long as a party claims that the failure was due to inattentiveness.” If that’s true, and not merely a Chicken-Little fear, then this might be the most profound opinion of the year thus far.

Freedom of Information
In this modern era, where electronic communications are sent zinging through the ether at roughly the speed of light, and more and more discussions take place virtually, interpreting what a meeting is for FOIA purposes can be a challenge. Let’s take up Hill v. Fairfax School Board to see what the justices have to say.

As you might guess from that introduction, the question is whether an exchange of e-mails among several members of a public body constitutes a “meeting” for open-government purposes. Several members of the school board evidently exchanged e-mails in advance of a public hearing to consider whether to close an elementary school; Hill found out about it and filed a FOIA request for the documents. She then filed suit, seeking several forms of relief – primarily reopening the board’s decision to close the school, and asking for unredacted copies of the e-mails.

The trial court was then confronted squarely with Issue A: What’s a meeting? The Supreme Court has actually considered this question, way before the dawn of the modern electronic era, in a case called Beck v. Shelton (2004). There, the court held that e-mails lacked the required component of simultaneity, so they weren’t true meetings. The Supreme Court notes today that the pace of electronic communications has advanced in the intervening span of years, but the doctrine is the same, and so is the analysis.

The court affirms the trial court’s decision not to reopen the school-closure issue, since these e-mails, as fast as they may have circulated, still weren’t simultaneous, in the way that face-to-face communication is. That means that there was no “e-meeting” and no FOIA violation. The court also rejects Hill’s request for attorney’s fees, as the trial court correctly found that, while she did get some minor relief, she wasn’t the substantially prevailing party.

Those familiar with the court will chuckle at the irony of one aspect of this opinion: it was written by Senior Justice Koontz, who is, to put it diplomatically, the least cyber-philic of all the justices. Reading his description of the accelerating pace of modern communications, including the advent of smartphones, brought something of a smile to my face. How would he know?

Real property
There are a few interesting procedural issues in Piney Meeting House Investments, Inc., v. Hart, a dispute over encroachments to an ingress-egress easement. The Harts owned the dominant tenement, and a company (Piney Meeting House) bought the servient tenement. It then decided to spruce things up a bit and improve the servient property by putting in “an electric box, generator, well, propane tank, trees, and mulch.” The Harts complained that all of this . . . this stuff constituted an encroachment on the easement, and diminished the value of the dominant tenement.

The Harts filed suit, and the trial judge referred the matter to a commissioner in chancery, who acted as the factfinder in this case. (This is an important point for you to remember for the pop quiz that may follow this discussion.) The commissioner, after an evidentiary hearing, concluded that most of the items did encroach upon the easements. The key dispute related to the propane tank and the well, both of which were underground. The well contained an above-ground fixture and the tank had a cap at the surface. With regard to these items, the commissioner recommended that the company be given 90 days to remove or relocate the well, and to satisfy the court that the cap on the tank could withstand vehicular traffic.

The Harts excepted to this set of recommendations, contending that any encroachment upon their easement was prohibited by Virginia caselaw. The trial judge agreed and ordered the removal of al of the encroachments. It also awarded costs and attorneys’ fees to the Harts, because the company had denied the following request for admission during discovery: “Admit that you have no defenses to the Plaintiff’s claims.” The company got a writ.

Today, the justices affirm in part and reverse in part (though they mostly reverse). The justices agree with the company that the trial court took too broad an approach in deciding what constituted an encroachment. The owner of a servient tenement can, indeed, make use of the easement area, so long as he doesn’t materially encroach upon it. The trial judge took an absolutist view of this premise instead of focusing on whether the relocated well and a good-to-go tank cap constituted material encroachments. The commissioner in chancery had determined that these encroachments would not be material, and the trial court was bound to approve those findings if they were supported by the evidence. The commissioner was, after all, acting as the finder of fact here, so the trial judge was bound to accept those findings, as he would a jury’s. (Now, there I’ve gone and blown the spontaneity of the pop quiz by giving away the key factor.)

The court then turns to the trial court’s award of costs and fees to the Harts. It affirms the award of costs, since the Harts “substantially prevailed” in the litigation; they got most of what they asked for below. Attorneys’ fees, however, are different. The court recites the American rule (each party pays his own lawyer), and finds that the trial court abused its discretion when it applied Rule 4:12(c) to shift to the company the Harts’ fees. Without embellishment, the court rules that the deadly request for admission was not a proper use of Rule 4:11, so the court could not make an award of fees for the failure to admit. The court reasons that the trial court’s approach “would render the American Rule of attorney’s fees defunct in many contested proceedings when the requesting party ultimately prevailed on the merits of a case.”

You have to do a substantial amount of reading between the lines here, but I find this last ruling to be very important in view of the modern tendency of many trial lawyers to use requests for admissions very aggressively. Basically, the Harts asked the company to “Admit that we’re entitled to win this case,” and then asked for an award of fees when they ultimately did win.

That isn’t what Rule 4:11 allows. Under that rule, you can request the admission of “the truth of any matters within the scope of Rule 4:1(b),” and those requests have to relate to “statements or opinions of fact or of the application of law to fact.” The statement, “I’m right and you’re wrong,” while it would indeed be a dynamite admission to lay before a trial judge, isn’t one of those kinds of matters.

I’m aware, as I alluded above, that trial lawyers are making more aggressive use of this rule these days because, alone among discovery tools, it’s self-executing. If you propound a request and your Bad Guys blow off the 21-day deadline, the matter is automatically deemed admitted, without the necessity of a confirming court order, for the purpose of that suit. These requests can be absolutely deadly, so may lawyers who receive them along with other requests will take care to answer these timely, and then just ignore companion interrogatories and requests for production until they get a motion to compel. That’s sloppy, unprofessional lawyering, of course, but it’s all too common.

The lesson here is that while these are still deadly tools, they have to be crafted to comply with the rules, and with the purposes behind those rules.

The next real-property case is a whopper: Livingston v. VDOT is an inverse-condemnation suit involving claims of flooding adjacent to the Capital Beltway. Years ago, when the Beltway was constructed, VDOT straightened out a watercourse known as Cameron Run. The beltway was then built adjacent to the new stream. Over the years, the stream silted in significantly, making is shallower and able to carry less water.

In 2006, a severe storm dropped an enormous amount of rain on the State of Northern Virginia, and Cameron Run overflowed its banks and started flooding adjacent homes. The homeowners filed an inverse-condemnation suit against VDOT, asserting that their properties had been damaged for a public purpose. The trial court sustained VDOT’s demurrer, and the homeowners headed down I-95, seeking succor from the justices.

Today’s opinion contains a number of key holdings in this field, but my guess is that its importance will be felt in the broad sweep of things instead of in one or two individual rulings. A divided court (Justice Millette, writing for the chief justice and Justices Lemons, Mims, and Powell) finds that these landowners stated a claim for which relief can be granted, so the judgment is reversed and the case remanded for further proceedings. The majority holds that VDOT’s actions in failing to maintain the relocated stream led to the damage of the plaintiffs’ homes, and they’re entitled under the constitution to just compensation for that damage.

To understand why that ruling is so important, let’s turn immediately to the dissent, which Justice McClanahan writes on behalf of Justice Goodwyn. She contends that the majority has dramatically expanded the reach of inverse-con actions, since those are supposed to be parallel to actual condemnation proceedings. According to the dissent, if the condemnor couldn’t have condemned the rights at issue in the case, then the landowner can’t bring an inverse-con claim. The dissent argues in a footnote that VDOT could not have condemned the rights at issue here (basically, the right to flood the homeowners’ properties).

Stated broadly, the dissent’s position is that condemnation only occurs when private property is damaged for a public use. That isn’t the same as damaged that’s caused as a result of public use. Assigning liability whenever a public improvement causes damages would reduce inverse-con liability to that of mere negligence (requiring proximate causation), something the court has refused to do in the past.

Eminent-domain lawyers will immediately recognize the importance of this dispute; we’re talking about the very nature of a damages claim. In many instances, such as here, the condemnor may be entitled to sovereign immunity from tort liability, so the only other avenues of available relief for property that’s damaged by the acts or omissions of a public entity are the Tort Claims Act and inverse con.

The majority focuses primarily on the trial court’s stated reason for dismissing the suit. That court had phrased the triable issue as follows: “[D]oes a single occurrence of temporary flooding state a cause of action for inverse condemnation?” Answering the question in the negative, the court reasoned that this extreme storm was not reasonably anticipated by VDOT, so it couldn’t be liable. The majority rejects this position, noting that worse flooding occurred in 1972 during a hurricane, so this damage, while comparatively unlikely, was by no means unprecedented. The majority also points to other cases in which it has held that each flooding or inundation by a condemnor is a separate claim. It doesn’t require multiple instances for the agency to be liable; stated in legal vernacular, this dog doesn’t get one free bite.

The decision contains other significant rulings, starting with the finding that the plaintiffs had standing to sue, regardless of the fact that they didn’t own their properties in the 1960 when the beltway was built. The claims arose by the failure to maintain the relocated and narrowed stream. It also rejects VDOT’s claim that it can only be liable for “affirmative and purposeful acts,” as contrasted with the failure to act; that language isn’t in the constitutional provision that’s behind these claims, and the court declines to insert it. As the majority puts it, “the government cannot evade liability for a damaging under Article I, Section 11 by simply choosing not to act when it has a duty to do so.”

If you practice regularly in this field, you already know this: This decision is big. It states emphatically the court’s belief that when the government acts (or fails to act), and by doing so damages private property for a public purpose, inverse condemnation furnishes a property owner or tenant a remedy.

Land use
In Town of Leesburg v. Long Lane Associates LP, a trial judge ruled that a landowner had a vested right in the enforcement of a neighboring landowner’s zoning proffers. That may sound innocuous (or maybe even like Greek) to you, but this ruling, as described in this morning’s opinion, might explain an atmospheric phenomenon that you might have noticed. If you heard a loud thud around 9:45 am today, that was the sound of every local-government attorney in the Commonwealth fainting dead away all at once.

This saga starts with a rezoning of 38 acres. The owner sent in eleven proffers to smooth the rezoning process, and the town agreed. One of the proffers would eventually require the owner to construct and dedicate a public road through the property. The rezoning was made subject to the proffers.

A few years later, Long Lane bought five acres that had been subdivided out of this parcel, and built a commercial building on that new tract. It built a short segment of the proffered road, ending in a cul-de-sac that would eventually be cut through if the rest of the parent property was developed in accordance with the original proffers.

We’ll now fast-forward 16 years to 2008, when another company bought most of the residue parcel. That company asked the town to amend the conditions so it could build a church and operate a daycare facility. The proposal would remove the obligation to build the rest of the promised road.

The town evaluated its then-current anticipated traffic needs and determined that, given the way the neighborhood had expanded around it, there was no longer a need for the road. It agreed to waive that provision, and consented to amend the zoning classification as the company had asked.

But not everyone was happy with this arrangement; Long Lane felt slighted by the decision to remove the obligation to extend the road. It had built its cul-de-sac on the assumption that the rest of the road would eventually be built; it had even built its portion to the specifications of the required road. When the town approved the amendment anyway, Long Lane went to court.

The trial judge held that Long Lane had a vested right in the enforcement of the proffers affecting its neighbor’s property. (That’s the specific holding that produced a run on smelling salts in local-government offices across Virginia.) The court ruled that the town’s amendments were illegal, void, and of no effect.

The Supreme Court reverses this ruling after a chambers conference that must have lasted a good, solid forty-five seconds. No property owner has a vested right in seeing that his neighbor’s property is developed in a certain way; you only have vested rights in your property. As the court concludes today, “Future expectations concerning zoning do not create vested property rights.”

Zoning is a legislative act, and only the town could decide what conditions would affect this residue parcel. It, not Long Lane, had the right to decide whether the road network in the area was sufficient without the extra roadway, so it could decide to permit the elimination of that requirement.

We get some volcanic language (relatively speaking, of course) in City of Richmond v. Jackson Ward Partners, involving the decidedly unsexy subject matter of a real-estate tax-assessment appeal. The unique feature of this case is that it involves eight discrete parcels, each containing one or more dwelling units. And when I say discrete, I mean discrete; the parcels aren’t even contiguous. That didn’t stop the landowner’s appraiser from appraising them as a unit and then allocating the gross value among all 18 units.

How can the appraiser get away with that? It’s because of a covenant in the owner’s financing agreement with the state’s Housing & Development Authority. In exchange for favorable tax treatment, the owner agreed to use all of the properties for low-income housing; it also agreed not to sell the units piecemeal. In effect, this became one economic unit. The appraiser thus concluded that it made the most sense to appraise the units as a single 18-unit housing complex.

The amount of money here is not insignificant; the city had taxed the parcels at an average of about $1.9 million per year over the four relevant years, while the owner’s appraiser put the aggregate figure at $600,000 per year. At issue is the decision by the appraiser to value all of the units as one group, and then divide the resulting value by 18.

The appraiser thought that the group-appraisal approach was appropriate because, he reasoned, the units couldn’t be sold separately. If they can only be sold as a group, then it’s impossible to value them individually; there would be exactly zero market for a single unit that could not be sold singly. The trial judge accepted this valuation method and ordered relief.

On appeal, five members of the Supreme Court vote to reverse. The chief justice writes the majority opinion, which holds that this method of appraising property runs afoul of two recent decisions involving multi-unit properties. The majority finds that the landowner has failed to meet its fundamental burden of proving what the value of each individual unit is, and absent that proof, no relief can be awarded, even if the composite assessment is too high. The majority concludes that even the restrictive covenant against piecemeal sales cannot override the statutory obligation to assess and tax each unit separately.

Let’s jump straight to the judicial pillow fight. Here’s a quote from just the first paragraph of Justice McClanahan’s dissent (writing on behalf of Justice Powell):

Applying an overly simplistic analysis, the majority has isolated one aspect of the holdings in TB Venture and West Creek to formulate its own policy of appraisal methodology in Virginia. Furthermore, the majority has summarily judged the highest and best use of the parcels comprising Jackson Ward Apartments – a determination which necessarily drives methodology, but which neither TB Venture nor West Creek address. In short, the majority has placed its judicially created policy of appraisal methodology above the constitutional mandate requiring assessment of property at fair market value, and appointed itself both finder of fact and expert to justify its reversal of the circuit court’s judgment.

Lest you be deluded into thinking that this is merely a demure expression of disagreement, let me assure you, my dear readers, that this is very strong language. (It’s okay; the justices in the majority will get over the emotional trauma of such accusations.) The primary accusation here is that the majority has reweighed the evidence and found the landowner’s appraiser not worthy of belief. Candidly, I don’t think that’s what the majority had in mind; but that’s the dissent’s take on the effect of this decision.

The dissent notes that there’s a key difference between this case and the recent West Creek decision; in the earlier case, the justices had affirmed a trial judge’s decision under the very lenient “plainly wrong or without evidence to support it” standard. In that case, the Supreme Court afforded substantial deference to the trial court’s decision, coming as it did after receiving and weighing the evidence. That’s a far cry form taking a judicial decision that goes the other way and finding that it’s legal error, which is what happens here. Tax lawyers will understand the valuation issues, but appellate lawyers will be keenly interested in the standard-of-review dispute here.