ANALYSIS OF MAY 26, 2022 SUPREME COURT OPINIONS
(Posted May 26, 2022) I learned this morning that today is the birthday of sportscaster Brent Musburger. I’ve long admired his work, but one phrase that he uttered has always stood out in my mind. It was several years ago, at the beginning of the broadcast of the one football game that I never miss: Army vs. Navy. (I’m not much of an NFL fan, so I don’t usually watch the Super Bowl. Yes, I’m an American citizen.) Musburger began the broadcast this way:
This game has no national championship implications. There are no conference championships or bowl bids at stake, and there are no Heisman Trophy candidates on either team.
This is MUCH more important than all that.
This morning, the Supreme Court of Virginia issues the latest in a significant recent flurry of decisions involving standing. Anders Larsen Trust v. Fairfax County involves a challenge to a land-use decision affecting residentially zoned property in McLean.
An entity named Newport Academy bought a house in an established residential neighborhood, and sought permission from the Zoning Administrator to open a residential treatment facility for girls there. The plan was to allow up to eight teenage girls to live there, though the applicant insisted that it wasn’t a drug-treatment program. The facility would employ a staff of professionals who live off-site. To minimize traffic, it planned to use shuttles and off-site parking.
The next-door neighbors of the house complained that the planned use was incompatible with current zoning, and argued that their properties would be impaired in use and in value. They “fear that drug addicts will populate the treatment center and that the center will, in fact, provide treatment for drug addiction.”
The Zoning Administrator sided with the applicant, finding that the use was a “Group Residential Facility,” a permitted use in the zoning district. The Board of Zoning Appeals agreed with the Administrator.
That led the neighbors to circuit court. They showed the court photos of 12 cars parked on the property, and of a Newport Academy van stuck in a ditch in front of another home. They argued that their homes would lose value if the court allowed the treatment center to continue operations.
The circuit court dismissed the case sua sponte by holding that the neighbors didn’t have standing to challenge the BZA’s decision. The justices granted a writ, and today they rule in favor of the neighbors. The SCV finds that they satisfy the two tests needed to show standing in zoning appeals: They own nearby property – the two petitioners here owned lots directly adjacent to this house – and they alleged a particularized harm that’s “different from that suffered by the public generally.”
This conclusion requires some fine line-drawing. Today’s opinion, from the pen of Justice McCullough, goes to some length to distinguish a 2013 ruling that seemed on all fours but reached the opposite conclusion. The property in that older case was along the Rappahannock River; the neighbors there raised comparable challenges to a proposed sand/gravel mining operation. The primary distinctions today are distance and zoning: the 2013 case’s challengers were some distance away from the large subject tract of 500 acres, and the site was already zoned industrial. Here, next-door neighbors in a residential subdivision were complaining, and the proposed use would bring “a commercial establishment [into] a residential neighborhood.”
Today’s opinion doesn’t mention the other major recent decision that went the other way: VMRC v. Clark from 2011. There, neighbors in a residential area objected to the Virginia Marine Resources Commission’s plan to insert a pipeline adjacent to their homes, running in to the Atlantic Ocean. That edition of the Supreme Court found their arguments too tenuous to establish standing, in language that stands in contrast to the court’s ruling today.
It all ends well, as far as I’m concerned, because my sentiments lie with the neighbors here, and I believe that Clark was incorrectly decided. The court today remands the Fairfax action so the circuit court can evaluate the neighbors’ objections on the merits.
Misnomer and misjoinder
Here’s another area where we’ve received a relative wealth of recent SCV decisions: In Edwards v. Omni International Services, the court takes up another case where the plaintiff misnamed the defendant in the case.
This is a personal injury action arising from a resort guest’s fall at Lake Gaston. The plaintiff’s research indicated that a corporation with the curious name of Company X – I assume that’s a real company name, and not a corporate equivalent to “John Doe” – operated the resort. That’s who she sued. During the pendency of the case, she learned that Company X only provided publicity for the resort; the real owner was Omni.
She accordingly nonsuited and refiled, this time correctly naming Omni as the defendant. But the new suit hit the clerk’s office over 2 ½ years after the injury. Omni pleaded the statute of limitations; the plaintiff claimed protection from the misnomer statute and cited Hampton v. Meyer from 2020.
The circuit court ruled that this was a case of misjoinder, not misnomer. That is, the plaintiff sued the wrong defendant; she hadn’t sued the right defendant but made a mistake in its name. The court accordingly dismissed the case, citing the expired statute of limitations. The plaintiff got a writ.
The justices today affirm, though their reasoning is a bit fractured. A majority of four justices hold that under Hampton, this was indeed a misnomer, but the plaintiff – who has the burden of proof to bring herself within the aegis of the misnomer statute – failed to establish one of the four prongs of that doctrine. Specifically, she failed to establish a lack of prejudice to the defendant from the mistake. The court finds that, unlike the proper defendant in Hampton, Omni would have no idea that an injury had occurred. (In Hampton, the proper defendant had been driving a car involved in an accident. You have to agree that a person like that wouldn’t exactly be surprised that someone would sue.)
This requires a bit of explanation. The original suit papers named Company X as the sole defendant, and called for service of process on its registered agent. You’ll never guess who the registered agent was, so I’ll go ahead and blab. It was Omni! Omni thus received an actual copy of the suit papers and passed that copy along to Company X.
Senior Justice Russell, who authors today’s opinion of the court, explains this away:
A registered agent’s sole duty is to forward to its principal, at its last known address, any process served upon it as registered agent. Code § 50-73.135(B). The registered agent has no duty to read or interpret any attached pleadings or warn or give legal advice to the principal. An inference that Omni was made aware of the plaintiff’s claim when her first action was filed would be conjecture at best.
I’ll confess that I found this reasoning to be somewhat incongruous with what I know about the legal principal of notice; but that’s the ruling of the court today. Because Omni didn’t have notice of the claim until well past the limitations date, the court finds that it would be prejudiced by the delay.
Two justices would affirm on different grounds. Justice Kelsey, writing for Justice Chafin, would find that this isn’t a misnomer but a misjoinder, for which no relation-back relief is available. These two, along with former Chief Justice Lemons, dissented in Hampton, and today they stick to the views expressed back then. The concurring opinion acknowledges that today’s opinion of the court is faithful to the Hampton holding, but argues that the facts of Hampton compel the conclusion that that pleading error was a misjoinder.
To me, this appears to be setting the table for a future appeal involving similar facts. The Supreme Court is about to get two new justices – assuming the General Assembly can agree on them – and those might theoretically join today’s dissenters and overrule Hampton. We’ll see.