[Posted April 22, 2016] Along with yesterday’s four published opinions, the Supreme Court decided two appeals by unpublished order. Let’s take a peek at those, especially since one of them generates some fireworks.


We don’t get many appeals involving the trial court’s management of its docket, since the justices are very deferential in matters like that. But Way v. Way proves to be well worth taking. It arises here in Virginia Beach, in competing petitions for guardianship of an incapacitated woman. The combatants are her husband on the one hand and her sister and son (by a previous marriage) on the other.

The parties agreed that the woman needed the help; the issue was where she would go. The two sides prepared for a trial in August 2014, but somehow the statutory prehearing notice didn’t go out on time. The parties and the judge consulted their calendars and agreed upon a new trial date of October 24.

Both sides filed notices with the Clerk of the new date. Two weeks beforehand, the husband delivered two letters to the Clerk, requesting the issuance of witness subpoenas. That’s when the trouble started.

Despite the presence of not one but two trial-date notices in the file, a deputy clerk somehow missed them. She placed a call to the lawyer to let her know that there was no case on the docket for the date listed on the subpoenas. The lawyer got the message and called back on either Friday the 17th or Monday the 20th – that fact was in dispute – and was told that “a hearing should be scheduled through the judge’s office.” The clerk asked the lawyer to call back afterward to arrange for the subpoenas.

At this, the lawyer must have realized that she’d never get the subpoenas out on time. She went to court on the 24th to report the deputy clerk’s mix-up and request a new trial date.

The judge – he or she is not named in the order, so it could be any one of eight jurists down here – didn’t agree. The court quizzed the lawyer about the missing witnesses, including the substance of what they would have testified to. After an extensive colloquy, the judge refused to continue the case for three reasons: it felt that the witnesses were available without a subpoena (“you still could have had those witnesses here by a simple telephone call”), that their testimony wasn’t relevant, and that the lawyer didn’t exercise due diligence in trying to fix the problem before trial.

I’ll confess that at this point, I found the court’s action breathtaking. This lawyer hadn’t created the problem; the Clerk’s Office had caused it, and had refused to issue subpoenas that the lawyer had timely and properly requested. In those circumstances, I would expect a judge – at least, one who had spent time actually litigating cases on behalf of clients – to be a tad more understanding.

This judge wasn’t, and as of yesterday, four of the justices aren’t, either. By a 4-3 margin, the court affirms the trial court’s decision based on the third stated ground: the lawyer’s ostensible lack of diligence in following up with the deputy clerk. The majority notes that after being alerted to the problem on October 14 and 16, the lawyer didn’t call the deputy clerk until the 20th. (That’s the evidence in the light most favorable to the appellee.) And even then, “counsel made no effort to advise the trial court of the problem.”

But assuming that the lawyer got the full details about the mix-up in the 20th, she couldn’t very well arrange for trial subpoenas for a hearing four days later. Still, the justices find that this constitutes a lack of diligence, so the trial court didn’t abuse its discretion in proceeding with the trial.

That being said, there’s a signal or two to indicate that the majority wasn’t completely comfortable with this outcome. But abuse-of-discretion analysis doesn’t give the justices the same opportunity as de novo review, to decide the case as they feel it should be decided. As long as the trial court selected a legally permissible option from among those choices available, the court will affirm.

Justice Kelsey writes what I see as a stinging dissent, and he’s joined by the chief justice and Justice Goodwyn. He bases his view on the single decision at issue – the continuance – and on “the overall tenor of the proceeding,” which is diplomatic way of saying that the trial court wasn’t giving the husband’s lawyer a fair shake over the course of the trial.

The dissent observes that the husband’s lawyer, in addition to calling the deputy clerk, called her opponent promptly to describe the problem. She also “attempted to either procure a continuance or schedule a conference call to no avail.” The dissent finds that the lawyer did what she could, and it was unfair to punish her (and her client) for a mistake that happened in the Clerk’s Office.

There’s more. Justice Kelsey notes that the judge was flat-wrong in saying that the witnesses were available by a phone call; at least three of them demonstrably weren’t. He also rejects the trial court’s “too hasty” conclusion that the witnesses would offer immaterial testimony. For example, the trial court expressly credited the guardian ad litem’s report, recommending placement of the woman with her sister. But that report contained hearsay statements, and several of the absent witnesses were persons quoted in the report. The husband thus missed the opportunity to examine them to ascertain if they were quoted correctly, and in context. Other witnesses would have testified about the sister’s and son’s ulterior motive to alienate the woman from her husband, a matter that’s clearly relevant.

In my view, probably the worst thing that the judge did was, in response to the husband’s lawyer’s arguments that the court should hear all of the witnesses, to threaten her with contempt “if you keep going … after I have told you I am not going to hear it. I am going to find you in contempt if you continue.”

This passage was horrifying to me – a judge who threatens a lawyer who’s making a proper record and protecting her client’s rights. There’s no indication that the lawyer argued rudely, or was otherwise contemptuous of the court’s dignity; the judge simply wanted to shut her up.

In the end, Justice Kelsey offers this simply worded conclusion: “I respectfully disagree with my trial court colleague.” Those of us who earn our livings in appellate courts will recognize that in the highly diplomatic language of appellate opinions, this is a stinging rebuke, not a gentle expression of disagreement.


For generations, lawyers have recognized the futility in the efforts of laymen who “agree to agree later,” or in other words, who “contract” to make a contract. They reach an agreement in principle that they want to do something, but the details are ready to be filled in yet. We in the legal profession recognize that if you don’t have enough details, you don’t have a contract. That goblin grabbed the appellant in Holtzman Oil Corp. v. Green Project, LLC.

Back in 2002 a company called New Dominion Investments owned a 30-acre parcel in Loudoun County. It agreed to sell two acres to Holtzman. Three years later, it sold the 30-acre tract to Green Project, making that sale expressly subject to the previous agreement with Holtzman.

The Holtzman agreement allowed Holtzman to select whichever two acres it wished “upon the development and submission of a master plan for [the 30-acre parcel] to the appropriate governing body for approval.” Herein lies the problem: Holtzman apparently had a right to acquire two acres, but which two? In addition, the sale was contingent on permitting and on engineering studies to confirm the suitability of the site for Holtzman’s development purposes.

Here’s the problem: just what does Holtzman really have a right to acquire? That patent ambiguity caused the trial court to refuse to order specific performance of Holtzman’s claimed contract. As the order recites, “The circuit court repeatedly asked how it could enter an order specifically enforcing the contract without a description of the property.”

The justices agree with this analysis and affirm. They note that if a trial court were to undertake all of the processes inherent in this agreement-to-agree, it would “necessarily consist of a series of successive decrees over a period of years,” given the many contingencies and conditions yet to be fulfilled.

The Supreme Court’s order also firms two additional rulings. The justices agree that the trial court properly refused to allow Holtzman to amend its complaint, since Holtzman’s proposed new allegations only reinforced the lack of certainty of Holtzman’s claims. They also affirm the court’s decision to allow Green Project to amend its defensive pleading after the court sustained the demurrer. That amendment specified the sales contract as the basis of green project’s attorney’s-fee claim. The original defensive pleading had failed to do that, as required by Rule 3:25(b). The justices rule that the trial court acted within its discretion in allowing an amendment to point out what was already plainly litigated by the parties throughout the course of the case.