ANALYSIS OF MAY 9, 2024 SUPREME COURT OPINIONS

(Posted May 9, 2024) This morning brings us three new decisions from the Supreme Court of Virginia.

Longarm jurisdiction

Minimum-contacts is the star of the legal-analysis show in Carter v. Wake Forest University Baptist Medical Center. It’s a medical-malpractice case involving treatment for skin cancer. A patient in southwestern Virginia went to Winston-Salem, North Carolina for evaluation and treatment. He saw doctors there on several occasions, and he and his family communicated with the doctors remotely – by phone calls and text messages – for follow-up inquiries and advice.

The question here is whether those follow-up communications constituted sufficient minimum contacts with the Commonwealth to give Virginia courts jurisdiction over a med-mal claim. Our longarm statute – the first step in personal-jurisdiction analysis – seems to cover this situation, so the next step is figuring out whether Virginia’s exercise of jurisdiction is consistent with due process.

This, in turn, takes us to the modern state of personal-jurisdiction jurisprudence analysis from SCOTUS. That Court has – in my humble view – revolutionized longarm jurisdiction in the past dozen or so years, to the point that I believe we’re noticeably closer to the old Pennoyer v. Neff standard (almost no out-of-state jurisdiction) than to the more recent and more liberal rule in International Shoe v. Washington.

Applying the modern general caselaw, and a handful of lower-court cases deciding the precise issue whether follow-up care constitutes a defendant’s availing itself of the privilege of conducting business in the forum state, the Supreme Court holds that Wake Forest can’t be sued in Virginia – at least under (get ready for a familiar phrase here) “the unique fact pattern in this case.” The court declines to adopt a broad rule for all medical care, so analysis in future cases depends on how close the facts are to what happened here.

Today’s ruling affirms a judgment of the Court of Appeals last year. Justice Powell authors the opinion for a unanimous court.

Criminal law

Most criminal appeals feature the convicted defendant’s name on the port side of the “v.,” but occasionally we get appeals by the Commonwealth. Today’s decision in Commonwealth v. Garrick is one such. A circuit court convicted Garrick of possession of heroin and a firearm by a convicted violent felon, but the Court of Appeals reversed in a short opinion.

Our story opens in the parking lot of a Virginia Beach convenience store. Someone there – patrons, perhaps, or maybe an employee – noticed a man slumped over at the wheel, snoozing, as the engine idled. When police arrived, they eventually, and with some difficulty, awakened the driver and got him out of the car.

At this point, the evidence against the driver started cascading, as “the officer observed that Garrick had trouble keeping his eyes open, his speech was slow and slurred, his eyes were watery and glassy, and his general demeanor was ‘dazed and confused.’ Additionally, the officer detected a strong odor of alcohol on Garrick’s breath and a faint odor of marijuana inside the vehicle and on Garrick’s person.”

A long time ago in a galaxy far, far away – okay, back in the 1990s, here in Virginia Beach – I prosecuted a number of DUI cases, and I recognize the classic signs of probable cause here. Officers searched the car and found in the glove compartment a loaded .38, plus a bag with 24 grams of heroin. Also in the glove box were receipts for maintenance work on the car; Garrick’s name appeared each time as the customer.

Uh-oh. A person alone in a car with contraband in the glove compartment is plenty of ammunition for an experienced prosecutor. The defense offered at trial was that there was insufficient evidence to show that the defendant knew that the drugs and gun were there. The car belonged to the defendant’s mother, although he admitted to driving it three days a week.

The learned judge, trying the case without a jury, was assuredly too calm and professional to scoff openly at this. He nonetheless entered a sentencing order granting Garrick five years of free room and board with the compliments of the Director of Corrections.

On direct appeal, a panel of the Court of Appeals unanimously reversed, holding that the evidence wasn’t sufficient to prove beyond a reasonable doubt that Garrick knew the gun and drugs were in the car. The panel cited caselaw for the proposition that “occupancy of a car and proximity to a controlled substance, without more, are insufficient to prove that an appellant is aware of the presence and character of a controlled substance.”

Today, the Supreme Court rules that there was more here, and reinstates the conviction. The maintenance receipts showed that Garrick wasn’t just an occasional driver. Their presence also indicated that Garrick used the glove box, making it, in conjunction with all of the other evidence, most probable that he knew what else was inside.

The Supreme Court thus reverses the Court of Appeals and reinstates the convictions and the prison sentence. Even the casual observer will note that Garrick’s primary defense was, in essence, an attempt to create doubt over whether his mother had placed the contraband in the car. He thus implicitly tried to cast suspicion on his mother to exculpate himself. In that sense, I note with wry irony that a certain important holiday is just three days hence.

Public contracts

The last case of the day – assuming you line them up that way – contains a fascinating discussion of sovereign immunity issues. Montalla, LLC v. Commonwealth involves a claim by the successor in interest of a VDOT contractor. It asserts millions of dollars in damages and involves a settlement agreement that may or may not have resulted from duress.

The facts here are quite complex, so to treat your attention span with kindness and consideration, I’ll list the issues generally and then get straight to the holdings. If you’re a facts-section junkie and you just have to have a fix, click on the link above and have a blast. Fair warning: Pages 2 through 6 of the slip opinion carry a significant risk of Death by Initialism. For example: “… the IIM demonstrates that the FHWA endorsed the position taken by NXL and the chief engineer ‘and rejected the ACO’s interpretation of FAR.’”

The contractor claimed from VDOT unreimbursed construction-inspection expenses. The parties eventually mediated the claims and agreed upon a settlement agreement that the contractor felt it had no choice, given its economic situation, but to sign. It later received information, previously withheld, that led to this five-count lawsuit, filed in part to invalidate the settlement agreement.

A circuit court ruled that the entire action was barred by sovereign immunity. The Court of Appeals affirmed, though it found that two of the contractor’s five counts were barred by the settlement agreement, not by immunity.

Today the justices throw all of that out and reinstate the case. The Supreme Court notes that sovereign immunity doesn’t apply to claims based on express contracts, and that was undoubtedly the source of the contractor’s claims here. The fact that the suit requested equitable relief doesn’t bar the action, because it’s the basis of the plaintiff’s claim, not the nature of relief requested, that determines whether it’s a contract claim or not.

As for the CAV’s holding that the doctrine of accord and satisfaction, springing from the mediated agreement, bars two counts, the justices rule that that’s premature because it requires factfinding. On remand, one of the circuit court’s tasks is to resolve any disputes in those facts.

While this looks like a win for the contractor, there’s an important limiting subtext here. The circuit court resolved the case on the Commonwealth’s special pleas, and didn’t take any evidence at a hearing on those pleas. That means that the courts must accept as true the facts as pleaded in the complaint. On remand, those facts may not come out favorably, so the contractor hasn’t won a complete victory yet.

I noticed one interesting aspect of this subtext, planted (as the goblins so often are) discreetly in a footnote. At the special plea hearing, the court did receive one document outside the pleadings: a copy of the settlement agreement. The Commonwealth had asked the circuit court to take oyer of that document, and the parties agreed to allow the court to do just that.

Facing the question whether that takes us out of Facts-as-Pleaded Land, the justices note that when a court takes oyer of a document, it considers that document as part of the pleadings; not as extrinsic evidence. One of the primary uses for motions craving oyer is to metaphorically staple a relevant document onto the complaint, so the court can consider it in evaluating a demurrer. That means that the addition of this document wasn’t evidence.

As noted above, I’ve truncated the descriptions a bit for this 23-page decision. The full opinion has even more procedural goodies, and subject to the caution about initialism, I commend it to you. I assure you that lawyers will be citing this case often in years to come, so you may as well get to know it now.

Justice Russell pens both Montalla and the criminal decision in Garrick, both for a unanimous court. If you’re noticing a lot of unanimity lately, you’re on to something. In published opinions, we’ve seen only a single dissenting vote all year. That was Justice Powell’s solo dissent in the short published order in USAA v. Estep in March. (Justice Mann issued a solo dissent in a criminal appeal decided by unpublished order in February.) The other 14 published decisions have all been unanimous. If you’re looking for bar fights over interesting legal doctrines, this isn’t the place to start hunting.