(Posted November 1, 2018) Two new opinions arrive on the doorstep this morning; one criminal and one civil.


Criminal law

The issue in Botkin v. Commonwealth is straightforward. The Code imposes a mandatory minimum two-year sentence for possession of a firearm by certain convicted felons. The statute also provides, “The mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence.” Now the question: If a defendant is convicted in a single proceeding of two violations of this statute, may those two mandatory-minimum sentences run concurrently?

A trial court in southwest Virginia thought so; it imposed five-year sentences for each charge, suspending three years, and specified that the sentences would run concurrently with each other. The Commonwealth appealed, and the Court of Appeals reversed, holding that the two sentences must be consecutive. Today, the justices agree with the CAV, holding that the phrase, “consecutively with any other sentence” includes any other sentence for violation of this same statute. The court finds that interpreting the statute to permit concurrent service would impermissibly rewrite the statute.

Because a defendant is entitled to a new sentencing when the trial court imposes a legally impermissible sentence, the court directs that the trial court must now conduct a new sentencing hearing.



There’s much to commend to you about Parker v. Carilion Clinic. It’s a claim by a patient who insists that two clinic employees got information about the patient’s medical condition, and one of them blabbed to a mutual acquaintance outside the practice. The patient sued the clinic, pleading vicarious-liability and direct-liability claims.

The circuit court sustained the clinic’s demurrers, holding that the complaint pleaded the plaintiff right out of the case. There’s a presumption that an employee is acting within the scope of her employment. But the court ruled that the patient alleged actions by the employees that were outside their employment duties. Ergo, no liability.

On appeal, the Supreme Court reverses the dismissal of the vicarious-liability count, but affirms dismissal of the direct-liability claim. The latter is the simpler ruling: A company can be directly liable only for corporate action – something that the company itself, instead of its employees, commits or authorizes. If a board of directors takes an action that breaches a duty, and that breach causes harm, that’s a case for direct liability. There were no allegations along those lines here.

The bigger question in this case is vicarious liability. The justices unanimously rule that the patient stated a claim that survives demurrer, though they take two different paths to get there. The employees’ actions, while not authorized by the employer, still fell within the scope of their duties. Here’s how Justice Kelsey, the author of today’s opinion for the court, explains the analytical framework:

It simply is not enough … that the employee’s claim “arose out of an activity which was within the employee’s scope of employment or within the ordinary course of business.” Instead, the employee must have committed the tort while actively engaged in a job-related service. Respondeat superior liability cannot be established merely by showing that the employee was “on the clock,” using the employer’s property, or on the employer’s premises at the time of the alleged tortious acts or omissions.

The court goes on to examine the relevance of the employees’ motives:

[T]he employee’s improper motive is not irrelevant to the issue whether the act was within the scope of employment.” To the contrary, “it is merely a factor to be considered in making that determination, and, unless the deviation from the employer’s business is slight on the one hand, or marked and unusual on the other, but falls instead between those two extremes, the question is for the jury.”

 Justice Mims files a concurring opinion, joined by Justice Powell. He agrees with the outcome, but finds the majority’s focus on personal motives to be inadvisable. He believes that this analysis implicates two questions:

The first question seeks to ascertain the employee’s task or function (which the majority opinion describes as the employee’s service). In short, we must answer, what did the employer pay the employee to do? The second question seeks to ascertain whether the encounter—which need not be physical or face-to-face—between the employee and the plaintiff in which the tortious act occurred (which the majority opinion describes as the transaction) was within that task or function. The first question evaluates the relationship between the employer and the employee; the second question evaluates the relationship between the employee and the plaintiff, insofar as they are brought into contact by their respective relationships with the employer.

The concurrence cites examples of previous decisions where employees clearly had personal motives in mind – not the employer’s best interests – but the court approved vicarious liability anyway.

I don’t get a vote in this, as usual, but I will say that I find the concurrence’s view produces cleaner analysis of claims such as this one. For now, though, the employee’s motive is “not irrelevant” in these cases.

But wait! There’s more! We get an important ruling in the always-sexy field of finality. When the circuit court sustained the demurrer, it gave the patient leave to amend within 21 days. The patient declined to do so, and when dawn broke on the 22nd day, the case stood dismissed. The patient filed a notice of appeal within 30 days thereafter.

On appeal, the clinic argued that the notice came too late. Rule 5:9 establishes a 30-day filing deadline after entry of the final order, and Rule 1:1 defines entry as the day the judge signs that order. The notice came more than 30 days after the judge last put pen to paper. So is this timely?

You’ve already figured out that the answer is yes; otherwise we wouldn’t have an opinion on the merits. When the judge signed the order, it wasn’t final, because the plaintiff could still keep the case alive by amending. It became final when no amendment came into the clerk’s office. The court today notes that in the absence of a statute, “an order must be both entered and final before the 30-day period for filing a notice of appeal commences.”