Today, March 3, the Supreme Court hands down eight published decisions. All of the rulings are unanimous.


It is well settled in Virginia that the owner of a business owes no duty to invitees on the premises to protect them from criminal assaultive behavior by third persons, unless the owner knows that such an assault is imminent. A Roanoke trial court applied that doctrine to strike a claim by a guest at a hotel who was horribly attacked in the hotel’s parking lot when he went to his car after initially checking in to the hotel.

Today, the Supreme Court reverses that judgment and remands the case for trial on the guest’s $5 million claim. The decision is Taboada v. Daly Seven, Inc.

Daly Seven operates a Holiday Inn Express in downtown Roanoke. Taboada arrived at the hotel at about 2:00 am one morning and went into the lobby to check in while his family stayed in the car. After taking care of the paperwork, he returned to his car, but was accosted by an assailant who demanded money and then shot Taboada eight times. He robbed Taboada’s seven-year-old son of a wristwatch, and then drove off in the family’s car; Taboada’s infant daughter remained in the vehicle, strapped into a child safety seat, as the robber drove off.

Police apprehended the robber shortly thereafter, and the daughter was found safe. Taboada survived his injuries and brought this suit against the hotel, alleging that it knew of significant criminal activity in and around its parking lot, but took no effective actions to prevent such attacks. The hotel had discontinued its practice of maintaining a security presence in the lot during the night, allegedly for economic reasons.

The trial court looked to previous Supreme Court precedent holding that a business owner is not an insurer of the safety of its invitees. It ruled that unless the hotel knew that the attack was imminent, it had no duty to warn Taboada, and no duty to take steps to prevent the attack.

In reversing, the court today turns to the law of common carriers for analogous determinations. In both contexts, the court reasons, guests entrust their safety to their hosts, since the hosts can better appreciate the environment and the likely risks in those environments. The court rejects an analogy to landlord-tenant law, in which such a heightened duty does not exist. The specific precedential holdings of today’s opinion include a finding that a hotel occupies a special relationship with its guests, sufficient to warrant the heightened duty.


In the wake of the September 2001 terrorist attacks in Virginia and New York, the federal government shut down airline travel for several days, and closed Reagan National Airport for several weeks. That cost a lot of airlines a lot of money. US Airways, which operated numerous flights out of Reagan National, had an insurance policy, with a $25 million limit, that covered it for business losses in certain circumstances, including business interruption. It filed a claim, which was denied; the airline then sued, seeking a declaratory judgment of coverage and an award of damages for breach of policy provisions.

After some initial proceedings, the trial court distilled the dispute down to one key issue, relating to an act of Congress that compensated airlines for the same losses at issue here. In the Air Transportation Safety and System Stabilization Act, it authorized the president to give $5 billion to various airlines to prevent massive bankruptcies, layoffs, and possible shutdown of the airline industry. US Airways’ share of that pie was $310 million. In view of that payment, the insurer pointed to the requirement in the policy that allowed it to offset against the claim all “salvages, recoveries, and payments . . . recovered or received” by the airline. Since the ATSSSA payments dwarfed the policy limits, the insurer argued that it had no liability.

The trial court disagreed, and entered judgment for the airline (although in the case of this appellant, the amount was only $2.5 million, since it was only one of several insurers in a pool). The court reasoned that the term payment was not defined in the policy, and under Black’s Law Dictionary’s view, that term refers to the “fulfillment of a promise, or the performance of an agreement.” Since the Act was neither of these things, those enormous payments did not count.

But, you may wonder, what about the words salvages and recoveries in the policy? The Supreme Court wondered the same thing. So it turned again to Black’s, where it found this definition for recovery: “The regaining or restoration of something lost or taken away.” Well, that certainly qualifies, since Congress specifically acted to restore to the airlines the profits they would have earned, and that they counted upon for continuing viability. Using this definition and this language from the policy (as well as plenty of legislative history from the Act), the court finds today, in PMA Capital Ins. Co. v US Airways, that the insurer is off the hook, since the airline has already received funds in excess of the maximum the insurer would have had to pay.

Civil procedure

In every civil case, the plaintiff has the right to nonsuit once, and start again from square one. In default situations, there is seldom any reason for the plaintiff to do that; he normally gets judgment without a fuss. In Berry v. F&S Financial Marketing, the plaintiff (F&S) filed suit in general district court, but assumed, based on earlier proceedings, that it would be unable to serve Berry; it therefore sent the requisite paperwork to the Secretary of the Commonwealth, certifying that it had exercised due diligence, but could not find her. Predictably, it got a judgment.

Once the judgment was secure, though, F&S had little trouble getting in touch with Berry. It garnished her bank account, which turned out to be the first notice Berry ever received of the suit. She filed a motion to reopen the case in GDC, and at the hearing, succeeded in persuading the judge that the certification of due diligence by F&S was a sham. The judge reopened the case, at which point F&S immediately took a nonsuit.

If that were the end of things, we wouldn’t be having this cyber-conversation. When F&S took the nonsuit, it was more than one year after the suit had been filed. The judge had just determined that F&S did not use due diligence in trying to serve Berry. An alert Berry thereupon objected to the nonsuit request, noting the passage of the time provided by former Rule 3:3(c) (now new Rule 3:5(e)). She contended that the court did not have the power to enter a judgment against her after one year, and that the dismissal of the case should have been with prejudice. The judge allowed the nonsuit anyway.

The parties agreed to a unique procedural arrangement whereby they appealed the propriety of the grant of the nonsuit. The circuit court affirmed, also finding that the nonsuit was permissible despite the passage of the one year. The Supreme Court granted a writ in order to take up once again “the interplay between a plaintiff’s right to a voluntary nonsuit . . .and the bar against judgment in former Rule 3:3(c).”

Today’s analysis of this issue is straightforward. The court finds that the jurisdictional prerequisites for a nonsuit have been met, and affirms the two lower courts’ decisions. It notes that there had been no previous nonsuit; that there was no pending counterclaim; and that the case had not been submitted to the court for final determination as of the time the nonsuit was taken. The fact that an affirmative defense was available did not affect this status. (Slight digression: The Rule 3:3 defense is not jurisdictional, a fact implicit in the court’s ruling in January in Lyren v. Ohr. There, the court held that such a defense is waived if not presented at or before the time a pleading to the merits is filed. The Lyren case is not cited in today’s opinion.) The court also finds that Berry did not have a vested right to this defense, because, among other things, she had not raised it as of the time the nonsuit was taken.


The court ventures into the almost indecipherable (okay, that’s intended as a pun, not a commentary on the state of the law) world of holographic wills in Berry v. Trible, a will contest pitting a decedent’s niece and sister against one another.

Louise St. Martin and her niece, Tamara, got along well, up to a point. Before that point, Louise made out a proper will in 1993, leaving her estate to Tamara, in consideration of the care and comfort Tamara extended to her elderly relative. But after Louise executed the will, things went south in their relationship; Tamara became concerned about Louise’s apparently eccentric behavior and her ability to care for herself. When she expressed that concern, Louise became defensive and told her niece to back off. Shortly thereafter, Louise all but ordered Tamara out of her life.

In 1997, Louise was hospitalized, and decided to revoke her will and name some new heirs. She contacted her lawyer by phone and gave her directions on a new will, in which she would leave everything to her sister, Esther, with Tamara to be cut out entirely. The attorney prepared such a will and faxed a copy to the hospital; a nurse took the fax to Louise, who proceeded to review it for some time.

A few weeks later, the attorney found on her fax machine a marked-up copy of the redrafted will, containing several handwritten changes on most of the pages. Louise had signed every one of the pages, and on one, the former page 7, she wrote, in some disjointed places, the words, “I give and bequeath all,” above an arrow pointing from the handwritten name “Esther Maddox Trible,” just above the typewritten phrase, “. . . my property, real and personal . . .” (Victor Hugo I’m not. The only way to appreciate this document is to click on the hyperlink above and scroll down to the last page of the court’s opinion, where the page is reprinted.) The lawyer squinted at the marked-up pages, decided she needed at least a modicum of clarification, and picked up the phone to call Louise, who was apparently still in the hospital, to ask for help in understanding what Louise wanted to achieve. Louise curiously forbade the attorney to make any changes, and later ignored a letter from the attorney repeating the request. The attorney did the only thing she could: She tucked the entire treatise into a file for safekeeping.

Louise made it out of the hospital, but never again revisited the issue of the will before her death five years later. At that point, persons cleaning out her house, which the court reports was in disarray, eventually found the fully executed 1993 will. Tamara offered that for probate. Esther, having evidently been told by Louise about the 1997 changes, hunted around for the original of the 1997 document as modified by Louise, and eventually settled on the fax copy that was still in the attorney’s file. These two competing documents formed the basis for the ensuing litigation between Tamara and Esther over their late relative’s estate.

The trial court submitted the probate issue to a jury, and that body ruled that the single page, which I hope by now you have seen, was in fact Louise’s last will and testament, in holographic form. The trial court entered judgment accordingly. On appeal, the Supreme Court is called upon to determine whether, as a matter of law, the document can qualify as a holographic will.

The short answer to that question is no; the court today reverses and enters final judgment in favor of Tamara. The decision is a careful analysis of the law relating to holographic wills, which (many laymen may not realize) are perfectly legal and enforceable in Virginia. But in order to be enforceable, the court emphasizes today, they must be entirely in the handwriting of the testator.

This is one of those instances in which entirely means, well, not entirely. For example, a holographic will can be made on a page on which there is typewriting, as long as the typewriting doesn’t form part of the will itself. (In one previous case discussed today, the court approved a holographic will that was written on the back of a page of a previous, superseded, will.) But it can’t incorporate the typewriting, or any part of it, and this Esther necessarily had to ask the court to do in this case. She also lost in part because she insisted that the single page attached to the opinion was the entire will, but at the very top of the page, it begins with the (handwritten, of course) words, “Article #Two.” This, the court notes wryly, means there was meant to be an Article #One somewhere, and Esther wasn’t offering that.

This case is very useful as an explication of the law relating to holographic wills, and their contours and limitations.

Debtor-creditor relations

When you owe the government a whole lot of money, and you get a judgment against the same government for a smaller amount of money that it owes you, you can imagine what happens. The Setoff Debt Collection Act provides that the government can, after notice to you, simply apply your judgment to the amount you owe, and it doesn’t have to pay you.

In one case decided today, Virginia Tech v. Interactive Return Service, a company that got a judgment against Virginia Tech for just over $100,000, but acknowledged that it owed the school roughly $750,000, acted surprised when the school offset the debt and asked that the judgment be marked satisfied in the judgment lien docket book. It contended, in the trial court and on appeal, that the SDCA only applies to tax refunds, not to money judgments. In one of the two least surprising decisions of the day (Juniper v. Commonwealth is the other), the court holds that the Act is not limited to tax refunds; it applies in all instances where a state agency “has on deposit any funds which are due to the debtor.” Well, as the company found out today, as soon as you get a judgment against a state agency that has a penny to its name, that agency has on deposit funds that are due unto you. That means it can set off the debt.

Interactive Return’s argument actually worked in circuit court; there, the court declined to order the judgment marked as satisfied. Today’s ruling reverses that; the case is reversed and remanded for the limited purpose of noting that the judgment is satisfied.

Land use

Two cases involving land use and local governmental regulation thereof are announced today. In Fairfax County v. BZA, the court reverses a finding of both a Board of Zoning Appeals and a circuit court – and given the standard of review of such decisions, that is no small feat for the county. There are two issues here, one of which is procedural (but implicates a wide-ranging discussion of what, exactly, is subject matter jurisdiction), and one of which involves the definition of a lawful nonconforming use.

In case you’ve been away for a while, Fairfax County has changed significantly since 1950. In that year, the owners of a certain real parcel decided it would be good to earn a few extra dollars, in a perfectly legitimate way, by building a garage with an apartment on the second floor, and then renting out the apartment. They did that. Fifty-four years later, someone from the county finally got around to noticing that the apartment was a second dwelling unit on the same lot as the principal home. A violation notice was speedily prepared and served on the current owners, Mr. and Mrs. McCarthy. They appealed the violation notice to the local BZA, asserting that the garage had been there, bothering no one, for over half a century, and was a lawful nonconforming use, since the use predated the more recent zoning ordinance adopted by the county.

They found a favorable audience in the BZA, which, over the county’s objection, found in favor of the McCarthys. As was typical at the time, the BZA sent out a notice that described the decision, made on May 25, 2004, but stated that its effective date was eight days later, on June 2. The county filed a petition for a writ of certiorari in the circuit court on July 1, which was within 30 days after June 2. The trial court, after a hearing, affirmed the BZA’s decision. The county appealed that finding to the Supreme Court.

As a threshold matter, the county knew that it was in trouble as soon as it got its hands on last year’s opinion in West Lewinsville Heights Ass’n v. Fairfax County, in which the Supreme Court found that an appeal must be noted within 30 days after the date of the BZA’s vote. An appeal noted after then, even though it’s within 30 days after the “effective date,” is too late. Things looked grim, but the county manages to pull this one out for the simple reason that the McCarthys didn’t know about the West Lewinsville Heights doctrine at trial, either. In fact, no one did, since the case hadn’t been decided yet. Since they assumed that the county’s petition for cert was timely, they didn’t object in the trial court. And that, the court finds today, constitutes a waiver.

But, you may ask, how can that be? A timely petition is jurisdictional, and jurisdictional arguments can be raised for the first time even on appeal. You’re right, sort of. An assertion that the court lacks subject matter jurisdiction can be raised for the first time in an appellate court. But (and this is the part of the opinion that procedure gurus will love) this aspect of the case didn’t implicate the court’s subject matter jurisdiction; it only affected an “other condition of fact” rendering the trial court capable of adjudicating the merits of a case. This is a very fine point of distinction, and admittedly will not come up all that often. But practitioners will find it rewarding to read this ruling and to know the difference between these two aspects (there are other, listed in the opinion) of the jurisdiction of the court over a given case. Here, the court finds that the objection was indeed waived for a failure to preserve it below.

There is one other aspect of this ruling that merits mention. Just as in last year’s criminal decision in Muhammad v. Commonwealth, the court today notes that the fact that a doctrine hasn’t been created yet (in the Muhammad case, it was the Crawford v. Washington doctrine) doesn’t excuse a litigant from having to raise it at trial. In essence, you are required to anticipate future changes in jurisprudence when you’re on your feet in a trial court. This is a daunting prospect, but it remains the law of the Commonwealth.

The merits of this case are almost anticlimactic. The court finds that the BZA and the trial court erred in holding that the garage was a lawful nonconforming use. In doing so, it returns to the 1941 zoning ordinance to determine that the creation of the garage was not permitted under the law in effect at the time of construction of the apartment. In order to qualify as a lawful nonconforming use, a use has to conform to an earlier land use law, only to be outlawed by an amendment to that law. Here, the use of the garage predated the modern zoning ordinance, but it wasn’t conforming at any point, so it doesn’t qualify for this special protection.

The opinion contains one final, almost poignant, ruling. It notes the BZA’s “expressed concern about displacing the garage apartment after approximately 54 years of use.” That’s a fairly sympathetic argument; if the garage hadn’t caused any trouble since the Eisenhower Administration, where’s the harm in allowing it to remain? But, as the court notes, equitable considerations in the land use arena are precious and few; they are permissible only in cases involving “whether to grant a special use permit.” This isn’t such a case, so the McCarthys’ income supplement will come to an end.

The other land use case handed down today is Culpeper County v. Greengael, LLC, a protest by the developer of a proposed high-density mixed residential and commercial development in that county. The developer filed a preliminary subdivision plan for the development with the county. Under the subdivision ordinance, the developer had to include with his plan a letter indicating how it would handle water and sewer service. The county evidently didn’t have such utilities onsite, and its nearby utility services would be insufficient to serve the proposed development, although under the terms of a proposed agreement with the Town of Culpeper, that might be possible in the future.

When the developer asked the county for approval, it said no, for that reason. The real reason, the developer began to suspect, was that the county wanted to downzone the property to industrial (which in fact did happen), making the property worth substantially less. Undeterred, the developer went to the town to ask for its help. The town deferred the request, and suggested that the developer coordinate things with the county. Having just received the county’s cold shoulder, the developer was not about to go and ask for more of that; it said as much to the town. Ultimately, the town declined to extend services to the area of the project, in an affirmative and unanimous vote of the town council.

I am necessarily filleting the facts here, since they occupy fully ten pages of today’s opinion, and I don’t want to lose my audience here. Let it suffice to say that the developer felt he was getting the runaround by not one but two governments. He eventually filed a comprehensive suit challenging the denial of the subdivision and seeking damages against as many defendants as he could think of – he named the county and its board of supervisors (in both their official and individual capacities), the town and its council (ditto), plus a host of officials and administrators. The suit included requests for money damages, declaratory relief, and an injunction. The defendants, as is their habit with such suits, filed pleas including sovereign immunity. The trial court granted all of the immunity pleas and dismissed the case as to every claim except the developer’s statutory appeal of the denial of its plan. The developer also filed a separate suit seeking approval of the subdivision plat; those suits were consolidated for trial.

At trial, the judge was convinced by the runaround argument. He directed approval of the plat and invalidated the county’s downzoning of the property. On appeal, the Supreme Court reverses today, finding the board’s actions to be neither arbitrary nor capricious. It rejects the trial court’s factual finding (and that is a rare step indeed) that the county and town more or less conspired against the developer, although no formal conspiracy was ever asserted. It finds the county’s actions entirely consistent with the subdivision ordinance, and predictably takes issue with the developer’s flat refusal to work with the county once it became initially frustrated with the process.

With regard to the rezoning, the court finds today that the developer did not have a vested right to the use he contemplated, since it refused to comply with a requirement that was in the subdivision ordinance at the time it acquired the property. Under the usual vested rights analysis, the court notes that the only “affirmative governmental act” upon which the developer could have relied was the trial court’s original ruling. Since the Supreme Court had just finished overruling that finding, it has no trouble today holding that no such governmental act could be established on this record.

This case and the Fairfax County case discussed above share one interesting characteristic. Both contain references to testimony from members of governmental bodies (the BZA in the Fairfax case; the board of supervisors in the Culpeper case) on the reasons underlying their particular votes or decisions. Generally, testimony from a single member of a body like these is incompetent at trial to prove the motive for a particular vote. The fact that these witnesses were permitted to testify, and that the Supreme Court discusses the testimony without comment, indicates to me that it is likely that no objection was raised at trial to the evidence.

Criminal law

The longest opinion of the day is Juniper v. Commonwealth, a death penalty appeal arising out of a quadruple homicide in Norfolk. The opinion, at 100 pages, is just 39 pages shorter than last year’s massive decision in the Muhammad case.

Death penalty cases result in automatic review by the Supreme Court, so many of them present no realistic issue for appeal. Here, while Juniper assigned 33 errors (actually 34, one of which was waived once the matter got to Richmond), he is found to have waived several of them by virtue of his failure to brief them. Rule 5:17 includes an inflexible requirement that all assignments of error be actually argued, in a manner that enables the court to identify what arguments are advanced in support of each assignment. This rule, plus the contemporaneous objection rule (5:25) mean that a number of Juniper’s arguments are procedurally defaulted.

The case does contain at least one unusual issue: The Commonwealth’s Attorney, John Doyle, had represented Juniper ten years earlier in an unrelated matter. Juniper objected that this representation deprived him of a fair trial, even though neither lawyer nor client could recall anything about the previous case. Since the key issue in such a claim is whether the defendant suffers any disadvantage as a result of the previous representation, the prosecutor, in a clever move, offered not to use the prior conviction in this trial. Juniper acknowledged that this agreement “benefited him,” and fell back on an unavailing argument that the previous representation created a per se disqualification. The court rejects this argument, as well as all of Juniper’s other assignments, as it affirms the trial court’s imposition of the jury’s recommendation of the death penalty.

The opinion contains some discussion of many familiar issues from previous death penalty cases — voir dire to jurors; denial of a bill of particulars; the constitutionality of the death penalty. None of these matters break particularly new ground. There are challenges to evidence, at both the guilt and penalty phases of trial, including autopsy photographs, and a familiar assertion that the evidence was not sufficient. In all, the court finds the evidence of Juniper’s guilt to be sufficient to establish his guilt. There are a couple of guilt-phase issues that I want to study in further detail, and will comment upon in a future post.

In case you’re wondering, the answer is that Juniper can file a petition for a writ of certiorari in Washington as to his constitutional claims, and then may embark on a course of habeas corpus petitions.