(Posted October 12, 2017) After a two-week opinion drought, the Supreme Court of Virginia hands down two published decisions this morning.


Attorneys’ fees

A lawyer up in the State of Northern Virginia is kicking himself this morning after reading Justice McCullough’s opinion for the court in Graham v. Community Management Corp.

Heather Graham served as CEO for Community Management, and had an employment contract. That contract contained a fee-shifting provision: In any litigation between the two over the contract, the loser had to pay the winner’s attorneys.

Graham left the company, and the company sued her, claiming that she had breached a confidentiality agreement. That suit went all the way to a jury trial; the jury found in favor of Graham.

With a favorable judgment in her pocket, Graham filed this lawsuit, seeking an award of attorneys’ fees under the fee-shifting clause. The trial court dismissed her claim, finding that she needed to raise it in the original litigation. The justices agreed to take a look at the case.

The Supreme Court unanimously affirms today, finding that Rule 3:25 required Graham to plead her fee claim in the first lawsuit. The court rejects her argument that her claim didn’t accrue until she got the favorable judgment. When you think about it, this ruling makes perfect sense: Plaintiffs have to set out their fee claims in advance, even though they aren’t entitled to an award of fees until they win, so the same rule should apply to defendants.

The lesson here is simple: If you think you have a fee claim, raise it in your opening or responsive pleading. If you leave it out, you can still get leave to amend to add it; Rule 3:25(C) states that expressly. But if you don’t make the claim, and list the basis for it (contract, statute, fraud), then the same subsection provides that your claim is waived.


Criminal law

When a penal statute specifies a mandatory minimum sentence, but no maximum, what’s the maximum? That’s the issue in Graves v. Commonwealth.

To be fair, this situation doesn’t occur often. In fact, according to the opinion released today, there’s only one instance of it in the entire Code: §18.2-53.1, which sets a mandatory minimum sentence for use of a firearm in the commission of a felony. That mandatory minimum – which the sentencing judge may not suspend – is three years for a first offense and five years for second and subsequent offenses.

Graves pleaded guilty to various crimes, including a first-offense firearm count. The trial court assigned a five-year prison term for that count, and suspended two years. Graves later moved to vacate the sentence, claiming that the trial court wasn’t authorized to assign a sentence greater than three years. The circuit court wouldn’t budge, but today a divided Supreme Court reverses.

This appeal is rare in one respect: The Commonwealth, in the person of the Attorney General, agreed that in this situation, the mandatory minimum is also the maximum. In doing so, it evidently relied on a 2-1 panel decision from the Court of Appeals in 2012, holding that the minimum is also the maximum.

Justice McCullough, writing for four other justices, turns to legislative history to conclude that in this unique situation, the only permissible sentence is three years. He notes that the previous sentencing structure called for a unitary sentence, and this statute was amended as part of a set of corrective changes designed to make mandatory-minimum language uniform throughout the Code. He also observes that if the legislature had really intended to change the maximum penalty for use of a firearm from one year (the penalty back then, before the legislature made it three years) to life in prison, there would have been a budgetary analysis and at least some legislative discussion of such a major change.

Justice Kelsey, joined by Justice McClanahan, dissents. He feels that there’s nothing at all anomalous about a statute that fixes a sentence with a minimum but no maximum. In that situation, it’s up to the discretion of the court to fix an upper limit, which can reach all the way to life in prison. (A quick query: Why not death? But I digress.) That’s the way it works in federal courts and elsewhere in America. The dissent goes on to chide the majority for utilizing legislative history to effectively amend the statute.

That brings us to the remedy. Graves sought remand for a new sentencing hearing, but the majority finds that unnecessary. Here, there’s only one permissible sentence, and that’s three years. The court thus enters final judgment accordingly. Careful readers will note that while Graves wins this appeal, it really does almost nothing to him other than remove a two-year suspended sentence. He still has the same number of years to serve for his crimes.

This ruling is only the latest in a string of rulings that will cause grammar geeks to cringe. The court has often interpreted statutes so that may means shall (and vice versa), and I’m aware of at least one decision in which the court unanimously held that above means above or below. Here, the court finds that the word minimum also means maximum.

One last point: Justice Kelsey must have found it easy to pen this dissent. In that 2-1 decision in the CAV five years ago, guess who the dissenting judge was?