[Posted September 16, 2010] In case you hadn’t noticed, summer break is over. Today is the Supreme Court of Virginia’s opinion day, one of the six busiest days of the year here at VANA. We get 17 published opinions, including one very long decision in a capital-murder case; the death sentence is reversed and the case is remanded for resentencing. I’ll post analysis of today’s opinions throughout the day and into tomorrow.

There’s one anomaly about today’s batch of opinions that struck me as I sorted through them. It’s a phrase I’m accustomed to seeing in a majority of the court’s opinions, listed at the top of each slip opinion: “Present: All the Justices.” In 16 of today’s 17 opinions, at least one senior justice takes part, and quite often it’s two. I have an easy explanation for at least some of those: Justice Mims recuses himself for criminal appeals that were heard in the Court of Appeals during his tenure as the Commonwealth’s Attorney General. I haven’t yet stopped to count which active justice sat out most often, but the frequency of participation by the court’s senior justices stuck out in my mind.

One matter that isn’t technically an appeal, but was argued today and decided within hours, is the show-cause order directed to an attorney who said in a moment of levity in a trial-court colloquy, that the Supreme Court “didn’t have the guts” to take up a particular issue. Today, the attorney appeared before the justices and offered an apology, which the court has immediately accepted in these terms:

“Upon consideration of the apology proffered by [the attorney], the Rule to Show Cause is dismissed.”

I’m pleased to be able to report this news, which shows appropriate action on all sides. This show-cause order has had the legal community buzzing, citing its potential chilling effect on zealous advocacy. This one ends appropriately, in my humble view.

Legal malpractice
I recall well that day, five years ago, when I first learned of the underlying circumstances of Wintergreen Partners, Inc. v. McGuireWoods, LP. I sucked wind audibly as I read about the devastating transcript-filing error that led to the dismissal of an $8 million appeal. After a jury verdict in that amount, Wintergreen’s lawyers arranged for the filing of a transcript for purposes of the appeal, but somehow only the transcript of the post-verdict motion got filed; the trial transcript never made it into the record in time to comply with Rule 5:11(a).

That omission resulted in the death of the appeal, and a legal malpractice claim ensued. The trial court, relying on a 1992 Supreme Court ruling, dismissed the suit because it found that Wintergreen would not have been entitled to a reversal as a matter of law if the transcript had been properly filed. More below on why I emphasized that particular phrase.

Today, the Supreme Court affirms the dismissal. In the jury trial, there was a procedural anomaly known as an inconsistent verdict. The plaintiff had sued Wintergreen and two of its employees. The jury returned a defense verdict for the employees, but a plaintiff’s verdict (with that whopper of a dollar sign) on the claim against the partnership. Given caselaw establishing that, in a respondeat superior context, a verdict for the employee requires a verdict for the employer, Wintergreen no doubt figured that it had a clear path to reversal in the Supreme Court.

But one instruction permitted the jury to return a premises-liability verdict against the resort, and the Supreme Court finds today that that gave the jury an independent ground for finding liability, other than vicariously. That’s why this ruling gets affirmed – the partnership wouldn’t necessarily have been entitled to a reversal, even if the transcript had been filed in time.

That illustrates one key difference between malpractice suits alleging trial error, and those alleging appellate error. In the former, the jury is asked to decide whether the lawyer’s conduct breached the standard of care. Sometimes that’s blindingly obvious, such as when a lawyer misses a statute of limitations. But in other contexts, the jury gets to decide, based on expert testimony, whether the lawyer’s conduct fell below the standard of care.

No such thing in appellate courts: On causation, at least, somebody is going to have to get summary judgment. I can conceive of no evidence that would be admissible on the question of whether an appellate lawyer’s mistake would or would not necessarily have resulted in a reversal. I can conceive of no witnesses who would be competent to testify on such a question. I read and analyze every single Supreme Court opinion, but I wouldn’t qualify. Theoretically, the justices might be competent, but trust me; they ain’t talkin’.

In this sense, and because very, very few appeals are absolute slam-dunk reversals, in my opinion it is almost impossible to get a legal-malpractice recovery against an appellate lawyer. I suppose I should take some comfort in that, since I’m of that ilk; but it does present a formidable barrier to a litigant who has suffered because of a lawyer’s plain mistake.

There’s one more malpractice case today: Van Dam v. Gay involves the interesting question of when a cause of action for malpractice accrues. In this instance, a wife’s attorney prepared a property-settlement agreement in a divorce case in 1986. The agreement gave the wife a right to survivor’s benefits from the husband’s military and civil-service pensions upon his death. But when the husband passed away twenty years later, the federal government denied the wife’s claim for those benefits, pointing out that the separation agreement didn’t comply with federal law.

Wife sued her former attorney, who understandably pleaded the statute of limitations for a claim based on such a dusty file. The wife responded that one element of her cause of action, her damages, hadn’t arisen until the husband’s death, so her suit was timely. A claim for breach of contract does, after all, require that the plaintiff have sustained at least some damage, before it ripens.

The trial court dismissed the suit, and today, the Supreme Court affirms. While the court acknowledges the damage component, it holds that a right of action for this variety of breach of contract accrues when the malpractice occurs, and not years later when the effect of the malpractice surfaces. This language from the court’s opinion will lead to considerable dismay among malpractice plaintiffs in situations involving long delays like this one:

“Some injury or damage, however slight, is essential to a cause of action, but it is immaterial that all the damages resulting from the injury do not occur at the time of the injury. The running of the limitation period will not be tolled by the fact that actual or substantial damages did not occur until a later date. Difficulty in ascertaining the existence of a cause of action is similarly irrelevant. This time-honored rule may produce inequities by triggering a statute of limitations when the injury or damage is unknown or difficult or even incapable of discovery, but we have long concluded that it is the role of the General Assembly, not the courts, to change a rule of law that has been relied upon by the bench and bar for many years.”

The problem here, far beyond the “incapable of discovery” situation the court describes, is that in most jury trials, the parties will be entitled to a jury instruction that places on the plaintiff the duty to adduce sufficient evidence to enable the jury to “make a reasonable estimate of each item” of damages. The instruction (VMJI 9.010) then goes on to state that, “If the plaintiff fails to do so, then he cannot recover for that item.”

Thus, in this suit, the wife had no prayer of ever recovering, even if she had filed suit back in the Reagan Administration. If she had sued then, all of her damages would have been sheer speculation. If she waits until they can be “reasonably estimated,” then she’s too late. The court thus sends the problem across Ninth Street to the General Assembly, which may or may not fix this kind of patent unfairness in litigation in the 2011 session.

Civil procedure
We get two related decisions today relating to the requirement that pleadings must be signed. One deals with a signature on behalf of a pro se litigant, and the other one concerns a signature authorized by one attorney, but appended by another.

The pro se case is Aguilera v Christian. Aguilera, acting without a lawyer, filed a tort suit one day before the statute of limitations ran. For some reason, he authorized a pal, who’s a lawyer in the District of Columbia, to sign his name on the pleading. She did so, and added her initials to indicate who actually put ink to paper.

The defense, noting that the pleading hadn’t actually been signed by a party or by a Virginia lawyer, pounced. The trial court agreed with the defendant and dismissed the case, despite Aguilar’s argument that he had authorized his pal to sign the document for him. That doesn’t cut it, the Supreme Court holds today. Pro se pleadings must be signed by the party, not by another person acting on his behalf. Anything short of that would authorize the unauthorized practice of law.

Let’s now turn to Shipe v. Hunter, in which one lawyer (admitted in Virginia) asked a DC-admitted co-counsel to sign the complaint for him. This one was filed a good, solid two weeks before the statute ran, but the result in the trial court was the same: The court struck the pleading because it wasn’t signed by a member of the Virginia State Bar.

On appeal, the Supreme Court again affirms, but this time, there’s an additional factor that may give some attorneys pause. Analyzing the sanctions statute, Code §8.01-271.1, plus Rule 1:4 and RPC 3.1, the court finds that “a lawyer who files a pleading in a Virginia tribunal must append his personal, handwritten signature to the pleading.” That’s a step beyond the bare holding of Aguilar, in that it purports to identify the method by which a signature must be inscribed.

My sense is that if, for example, a lawyer’s scanned handwritten signature is electronically attached to a pleading, that will still be acceptable; but a typewritten signature definitely will not be, and one affixed by, say, a rubber stamp, might not be. No doubt some zealous counsel will attack anything but what I have termed a “live” signature – one in which the lawyer has actually taken a pen and written his name on the particular sheet of paper that gets filed. But I believe that approach goes too far. In my view, if the lawyer’s name appears on a document in his own peculiar scrawl, then the pleading should be acceptable under Virginia’s rules, even if it has been photocopied or added from a scanned signature (as is often done in these high-tech days). What you can’t do is import someone else’s scrawl and adopt it as your own.

Our first disagreement of the day comes in Albemarle County v. Keswick Club, which gets a return engagement in the Supreme Court. We saw it back in 2007, when the tony country club (which evidently has a wonderful golf course that I’ve never played) secured reversal of a trial court’s refusal to reduce its real-estate-tax valuation. Back then, the Supreme Court found that the tax county tax assessor hadn’t properly considered all available valuation methods, so it reversed the judgment, directing the trial court to reconsider the case using a more lenient standard.

If you don’t know much about land valuation, here’s the easy, Reader’s-Digest version of the three primary methods for determining the value of land. The first and simplest is to figure out what similar properties are selling for in the same locality, and then assign a value that’s in line with those prices. That works well with suburban rectangles, but when you don’t have a whole lot of country-club sales, it’s pretty hard to do. The second method, popular with the investor crowd, is the income approach. If you know that the property brings in $200,000 a year in income, and you capitalize that at 10%, then the property is worth $2 million. The problem here is where you have a business that’s losing money, as the club apparently was a few years ago, when this case arose. The third is the cost method, by which the appraiser figures out how much it would take to rebuild the exact property on a similar site.

The county tax man had used the cost method exclusively, because he didn’t have any financials from the club, and he also didn’t have any other country-club sales figures to work with. The Supreme Court in 2007 found that to be an inappropriate explanation for tossing out the first two methods, so it ruled that the county’s number wasn’t entitled to a presumption of correctness. It sent the case back for the trial court to decide whether the club had proved the simple matter of an incorrect assessment by a preponderance of the evidence.

Somehow, the exact meaning of this ruling got lost in transit between Richmond and Charlottesville, because the trial court decided that the Supreme Court had already found the assessment to be erroneous. It hadn’t; the appellate court only ruled that the county’s figure wasn’t presumptively correct. The trial court then threw out both parties’ experts’ opinions ($12.5 million for the county and $2.9 million for the club) and split the baby, deciding to accept the club’s general manager’s figure of $7 million. The county got out its map of I-64 and headed back to Richmond.

Today, by a 6-1 vote, the Supreme Court affirms. The majority notes that the trial court got the earlier Supreme Court ruling wrong, but it finds that the court nevertheless used the proper method of determining value. Once the court finds that the county’s method is incorrect, it can then take over the task of fixing a value itself. The Supreme Court finds today that the trial court acted within its discretion in picking a number that had at least some evidentiary support.

Justice Kinser dissents. She concludes that the trial court still has yet to apply the correct method to determining whether the property is assessed for more than its fair-market value. She urges remand to enable the trial court to decide the case without its apparent misunderstanding of the prior appellate ruling.

There’s one intriguing evidentiary issue that, alas, escapes resolution today. In the first trial, the club called as an expert witness an Ohio appraiser who had a temporary license to practice in Virginia. When the case was remanded, that same witness was called on rebuttal to criticize the county’s expert’s appraisal method. But in the meantime, the Ohio guy’s Virginia license had expired. The county objected to his testimony, and the club responded that this was just a continuation of the previous trial, at which the witness had been accepted without objection.

That presents a fascinating issue, one I looked forward to seeing resolved. But I had to go hungry, as the court finds today that if the admission of this testimony was erroneous, the error was harmless. Don’t mistake my disappointment for criticism; I fully agree that the error, if error it was, was indeed quite harmless. Perhaps we’ll get that issue in another case soon.

For civil-procedure geeks like me (and yes, I’m proud of it), there is an absolutely fascinating chicken-or-egg issue in Virginian-Pilot Media Companies v. Dow Jones & Company. Some of you non-geeks might even like it. For those of you in the second group, rest assured that since this one’s so interesting to me, I’ll be extra-careful to try to make the following prose sparkle.

Do you read the legal ads in the classified section of your newspaper? No? Well, neither do I. But some people do. And lenders who foreclose on deadbe- (ahem!) – on properties whose owners have accidentally failed to pay the mortgage for several months running, absolutely must use those ads. Virginia law requires advance public notice in newspapers of general circulation before a mortgage can be foreclosed.

For the newspapers, this is big business. Each one of those ads brings in multiple bucks, and most of them have to be run for three successive weeks. The Dow Jones Company, which publishes the Wall Street Journal, decided in this day of declining revenues for newspapers, to get into the local advertising business. It started offering classified ad rates that significantly undercut those offered by most local newspapers. You can see where this one’s going.

Some people – probably local commissioners of accounts – balked at the idea of running inherently local ads in a national newspaper. So Dow Jones decided to get some insurance. It filed a petition in Virginia Beach Circuit Court, asking the court to declare that its paper was, indeed, a legitimate vehicle under the statutes for this kind of ad. The proceeding was ex parte – who would be the party opponent? – and the court entered an order blessing the use of the Journal for legal ads.

The local newspaper, The Virginian-Pilot, got wind of this order, perhaps when it started to see its classified-advertising revenues slip. It filed a petition to intervene along with a challenge to the trial court’s jurisdiction to declare anything at all about the Journal. The statute, it seems, defines the components for complying newspapers, but it doesn’t give the courts the authority to make pronouncements about who qualifies and who doesn’t.

Dow Jones responded that the trial court did-so have such authority, but it added another line of attack, challenging the Pilot’s standing to intervene. Under traditional concepts of standing, it looked like the Pilot was on the outside looking in. But the local paper pointed to caselaw holding that a judgment entered without jurisdiction was void, and could be attacked by any person in any proceeding. That meant that traditional standing rules didn’t matter, since the underlying judgment was void anyway.

That’s the chicken-and-egg question. Which of these juridical principles will trump the other? The trial court ruled in favor of Dow Jones, but today, a fractured Supreme Court reverses and vacates the order, leaving the Journal on the outside looking in at the lucrative Tidewater classified-ad market. (This ruling portends similar results elsewhere, as the Journal has filed similar petitions in other major population centers across the Commonwealth.)

Today’s majority opinion is written by Senior Justice Russell, writing on behalf of Justices Koontz and Millette. (Yes, I can add; I know that’s only three justices out of seven, which doesn’t quite edge into majority territory. Trust me on this one for a few moments.) The court rules that since the order was indeed void for want of jurisdiction – there seems to be no disagreement on this point among the justices who heard the case – it’s literally true that anyone, even a stranger to the litigation, can ask to have it thrown out. The majority acknowledges the standing requirement, but basically gives it the back of its judicial hand. I was astonished, upon reading this opinion just now, to find the majority giving such a serious issue such a cavalier dismissal.

Today’s dissenters, Justices Lemons and Kinser, are just as surprised. The dissent peels away each layer of support for the premise that this particular “anyone” can include a party with no standing whatsoever. It analyzes all of the caselaw that included that fateful language, and even goes on to analyze all of the caselaw that’s cited in those decisions. The enumeration of decisions is ruthless and inexorable: In none of them has the court ever considered a jurisdictional challenge made by a party with no standing at all. Hence the dissent’s beginning premise, which no one contradicts:

“For many years, this Court has held as one of its first principles that a party must have standing to bring a case to the Court for resolution. That is, until today.”

That still leaves us with only five Robes accounted for. Justice Mims, accompanied by Senior Justice Carrico, tips the balance by concurring in the judgment. He confronts the problem head-on: We have a void judgment, filed by a party with no legal standing, that’s challenged by another party with no standing to object. Which is the bigger problem? The concurrence concludes that there’s only one thing that can be done with an order that no one had the right to ask for, no one had the right to object to, and no court had the right to issue, and that’s to vacate it. Otherwise, the concurrence concludes, “our inaction would make this Court accomplice to a lower court’s exercise of jurisdiction contrary to the constraints constitutionally placed on the judicial branch by the legislative.”

Back in June, when the court handed down Evans v. Evans, I found myself in exactly the same position: I agreed with the dissent’s legal analysis of the issue before it, and I also agreed with Justice Mims’s practical approach to resolving the fundamental problem that that legal analysis produced. The law, alas, does not always provide us with disputes that are susceptible of tidy resolutions that are based wholly on principle, but are also just. Analytically, you simply cannot argue with the dissent’s premise that we are embarking on a brand-new course here, or with its warning that we may not like the consequences of this journey. On a broader level, it’s impossible to approve an ex parte order that never should have been entertained in the first place. Today’s fractured ruling gives us no clear view of how this aspect of our jurisprudence will unfold after this.

[Supplemental post, September 17 – While thinking about this case last evening, I realized that I shouldn’t take the cop-out approach of not saying which of these competing views I would adopt. I need to have the “guts” to make a call, so here it is: I’d vote with the dissent. Of the two potential evils here – either allowing a single extra-jurisdictional order to stand, or else opening the well of the court up to a host of non-parties who want to canopener decisions they don’t like – I dread the second one more.]

Criminal law
The court reviews a life sentence for murder in Blanton v. Commonwealth, in which a wife was convicted in the shooting death of her husband. Today’s opinion is long on facts and fairly short on discussion, because while there was a lot of evidence of the wife’s guilt, today’s appeal focuses exclusively on two comments made b the prosecutor in closing arguments.

The first of these comments was an arguable reference to the wife’s decision not to testify. As any criminal practitioner knows well, the prosecution can’t comment at all on the defendant’s exercise of her Fifth Amendment right. This prosecutor said something along the lines of, “If there were any evidence that she were not guilty, you would have heard that.” The defense objected, and the trial court sustained that objection. But the defense asked for neither a mistrial nor a cautionary instruction.

Not good enough. It’s a cardinal rule of preservation that when you object to your opponent’s closing argument, you must accompany that objection with a request for an instruction or a mistrial. That’s because the defense actually won on this issue, and the trial court gave the defendant everything he actually asked for: It sustained the objection. If you don’t ask the trial court for more than that, then the appellate court isn’t going to give you more than that.

The second issue relates to one possible motive for the killing, which was money. Seeking to defuse this issue, the defense closing included a statement that the wife never received a cent from the murder, because she was arrested seven days later. In rebuttal, the prosecutor agreed:

“She was in jail ten days after [husband’s death] happened. That’s why she didn’t get one penny. That’s why she didn’t get the house.”

If that sounds innocuous to you, you’ve got good company. The wife analogized that to bringing her into court in prison garb. The prosecutor acknowledged that he had misspoken when he said “ten days”; he later corrected that in front of the jury. The court finds that this minor issue had no bearing on the trial, so it affirms the conviction.

Last year, when the US Supreme Court decided Melendez-Diaz v. Massachusetts, the ripple effects washed clear across the country. The decision struck down a state-law provision that permitted the introduction of certificates of analysis in criminal cases, for things like the chemical identity of drugs or a driver’s blood-alcohol content. The statute and its cousins in other states (including here in Virginia) were born of practicality – forensic scientists are in relatively short supply, and it made no sense to drag them all across the state to testify as to routine matters.

It makes sense now, since the Melendez-Diaz decision requires such testimony unless the defendant waives the right to be confronted. Shortly before that decision came down from Washington, the Supreme Court of Virginia had issued an opinion in three consolidated cases, titled Magruder v. Commonwealth, in which the Virginia court approved of Virginia’s companion statute. In the wake of Melendez-Diaz, the Big Supremes remanded what was left of the Magruder decision (poor Magruder didn’t appeal on to Washington, so only his two virtual companions got the benefit of the ruling) for further consideration.

Today, we get two opinions involving three separate defendants, all in response to the remand. One of the appellants loses, and two of them win, but one of the winners ends up losing anyway. You got that straight?

In Aguilar v. Commonwealth, the SCV incorporates one of the stated exceptions on the Melendez-Diaz opinion, ruling that not every person in the chain of custody, or every person who performs at least some testing work, has to testify live. Here, the primary forensic scientist had indeed testified live, although two of his subordinates, who had played comparatively minor roles in the testing, did not. Citing specific language in Melendez-Diaz, the court rules today that this was enough to satisfy the Confrontation Clause.

In the other case, Cypress v. Commonwealth (the leftover appellants from Magruder), the court finds that the essential witness did not testify, so the court finds that the admission of the certificates for two cocaine charges was error. One of the appellants, Cypress, gets a remand for a new trial, if the Commonwealth elects to retry him. The other one, named Briscoe, wins the battle but loses the war, as the court finds that the admission of the certificate was harmless error beyond a reasonable doubt. You see, after his arrest, Briscoe ignored Emmert’s First Law of Criminal Procedure (“You have the right to remain silent. Use it!”) and sang like a canary, freely admitting not only that the material seized by the police was cocaine, but also that he had more than an ounce of it. That’s enough, the court finds today, to independently convict him of the possession charge.

The court unanimously affirms an involuntary-manslaughter conviction in the tragic death of a toddler, in Noakes v. Commonwealth. The appellant was a child-care provider who set up an improvised contraption to keep the 15-month-old boy inside his crib/playpen. Evidently struggling to get out, the child asphyxiated himself while the appellant was in the next room.

The court affirms this case based essentially on the reasoning of the en banc Court of Appeals, which decided this case in August 2009. I covered the case back then, so I won’t repeat the analysis here.

The longest opinion of the day – indeed, the court’s longest opinion in quite a while – is the capital-murder appeal of Andrews v. Commonwealth. It’s 112 pages (I read it all, so you won’t have to), and is decided by a unanimous court, with Justice Koontz doing the honors. By the way, if you think it’s easy to get unanimity in a 112-page ruling, think again.

The appellant’s death sentence is vacated, and the case is remanded for resentencing only. (I use the term loosely; the actual phrase for part 2 of a capital-murder trial is the penalty-determination proceeding.) The underlying conviction of capital murder stands, despite a slew of assignments of error relating to that phase. The closest the appellant gets to a reversal is a finding that the trial court erroneously admitted evidence related to a national weapons database. But assuming without deciding that that violation was of constitutional significance, the court today rules that the admission was harmless beyond a reasonable doubt, because the improperly admitted evidence “was not essential to proving” the appellant’s participation in the crimes.

Also in the guilt phase, the court decides a first-impression issue. The Commonwealth adduced evidence that while in custody, the appellant attacked a man who was also involved in the crimes. The court rules that the jury is permitted to determine whether the attack took place in order to, for example, intimidate the victim from offering inculpatory evidence against the assailant.

In the sentencing phase, things don’t go quite so smoothly for the prosecution. One key ruling that led to reversal is the fact that the jury found the appellant guilty of two separate subsections of the capital-murder statute, on related terms. One, subdivision 7, is where the defendant kills two or more persons as part of the same transaction. The other, subsection 8, applies where the prosecution proves that the defendant has killed two or more persons during a three-year period. This appellant was originally indicted under both subsections (and the court confirms today that the Commonwealth can do that). The evidence showed that he killed two persons during an armed home-invasion robbery. The Commonwealth also sought to show that the same killer had murdered another man on a separate occasion three weeks earlier.

The problem is that the appellant was acquitted of the one separate killing, but the jury convicted him of both of the capital-murder charges. The defense argued on appeal that this amounts to double jeopardy – two punishments for the exact same conduct, namely, the killing of the two men during the robbery. The Supreme Court today finds that the same two deaths cannot result in separate death sentences under the two subsections. It therefore remands the case to permit the Commonwealth to elect which subsection it wants to pursue in a new proceeding.

The court also addresses a number of evidentiary and procedural matters that may arise in the new proceeding. It approves the use of victim-impact testimony over the appellant’s objection, but it limits that to the impact of the capital crime; the trial court had incorrectly permitted victim-impact testimony from another shooting, this one fortunately not fatal but still devastating. (But for this error, the case probably would have been remanded merely for a new sentencing order, not a whole new proceeding.) It also notes that the prosecutor, having prevented the defense from adducing evidence of prison conditions (to show that the defendant, if sentenced to life in prison, wouldn’t have the opportunity to commit other crimes), then impermissibly commented in closing upon the life the appellant would lead if he were given life. Sound familiar?

Finally, the court rules that the appellant will be given wide latitude in offering mitigation evidence. In the original proceeding, he had been prohibited from offering a poem he composed before these events, and psychological evidence of the traumatizing effect of the appellant’s troubled family history. That evidence will come in during the reconvened penalty-phase proceeding.

As with any long opinion involving numerous issues, there are lots of lessons, large and small, on criminal procedure in this opinion. If you really want to plow through the 112 pages, reading this opinion will reward you with a better understanding of several important and even tricky legal questions.

Sexually violent predators
This touchy area of the law gets one published opinion today, in Warrington v. Commonwealth. In this case, the Commonwealth admittedly goofed when it submitted a preliminary report, in which an inmate was preliminarily determined to be suitable for post-sentence treatment. You see, the report was signed by a doctor who did not meet the “treatment” criterion for qualification to make these preliminary findings. The Commonwealth promptly moved for leave to file a complying report by a qualified doctor.

That didn’t stop the inmate from filing objections to the report and to the Commonwealth’s request to replace it. He also demanded release from custody, since his mandatory-release date had passed and no valid report had been filed to permit his involuntary detention within the applicable 90-day period in the statutes. The trial court decided to permit the amendment; it accepted the new report and eventually found the inmate to be a sexually violent predator.

On appeal, the Supreme Court finds that the violation didn’t rise to the level of gross negligence, so it finds that the Commonwealth substantially complied with the statutes governing these proceedings. (The inmate never asserted that the problem was intentional; merely grossly negligent.) Given substantial compliance, the court rules that the trial court acted within its discretion in permitting the amendment and accepting the substituted report.

The jurisprudence of contracts and of torts collide yet again in Abi-Najm v. Concord Condominium. This appeal is a consolidation of suits by buyers of condo units from the builder. The primary allegation in the complaints is that the builder substituted cheaper flooring material in place of the better grade of flooring that was promised in the purchase agreements. The buyers didn’t discover the swap until after they had taken title. The trial court sustained the builder’s demurrers, basing its holding on the doctrine of merger.

The Supreme Court reverses. It notes that the merger doctrine, despite being alive, isn’t exactly well. In this area, a little knowledge is a dangerous thing: Those attorneys with only a surface understanding of it might well reach the wrong conclusion. The primary rule is that when an agreement is supplanted by a document of a higher dignity – typically, when a deed is delivered pursuant to a contract to sell – then the obligations of the earlier agreement are “merged into” the later one, and extinguished.

That’s true as far as it goes. But the doctrine has some pretty sharp limits; the court today refers to the rule’s “narrow scope and disfavored status.” The key exception, and the one that decides this appeal, is that only those undertakings in the contract that deal with the conveyance itself are merged; collateral or ancillary matters, such as builder’s warranties, remain unaffected by delivery of the deed. In this case, the court finds that the promise to deliver the particular foo-foo flooring was collateral to the agreement to sell the condos, so the claims will survive demurrer.

The trial court had also sustained demurrers to Consumer Protection Act claims, and others based on fraud in the inducement. But the Supreme Court finds that the economic-loss rule doesn’t bar an action based on this statute. It only bars claims where the duty breached is one undertaken by agreement; not those imposed by the law. Similarly, the court reverses on the fraud claims as well, since the complaints alleged that the builder knew when it signed the contracts that substandard materials were being used.

This isn’t to say that the buyers will eventually get judgments or collect a nickel. The effect of this ruling is to set the suits back up on their feet again, and send the parties back to court, presumably for trial. This appeal presents an instance in which the trial court employed a disfavored procedure (a demurrer) to apply a disfavored doctrine (merger), with predictable results.

Uniwest Construction v. Amtech Elevator Services is a very complicated fact pattern with a relatively simple judicial solution. The facts and procedural posture take up 12 pages of the 23-page opinion, and unless I want to lose my audience, I’d better engage in some strategic condensing here. It’s a dispute among several companies about who is going to pay for the defense of, and eventual settlement of, $9½ million worth of tort claims arising out of the collapse of a scaffold in an elevator shaft. The key issue in the case is whether one provision in a construction contract is void as against public policy.

The challenged provision required Company A to indemnify Company B against certain claims, even including claims that Company B was negligent. The Code of Virginia has a prohibition against contracts to indemnify a party from injuries “caused by or resulting solely from” that party’s own negligence, and the Supreme Court today holds that this provision does, indeed invalidate the indemnity provision at issue here. From there, the opinion analyzes the various agreements to indemnify and sorts them out according to the unique facts of the case and the unique language of these contracts. In this sense, while an insurance-law jock might disagree with me, I think the second part of this opinion will be less cite-worthy than the fundamental holding, applying the statutory bar.

One public-contracts case gets decided today: Commonwealth v. AMEC Civil is the latest word on the lawsuit arising out of the construction of a series of bridges on the Route 58 Bypass in Clarksville, Virginia. I analyzed the Court of Appeals’ resolution of this case when it was decided on June 16 of last year, and I won’t repeat that analysis here. The court largely affirms the CAV’s many holdings in the case, tinkering with a few, but remanding the case (indirectly) back to the trial court for further calculation of the contractor’s claim for additional costs. I am sorely tempted to repeat the joke with which I closed my CAV coverage last year, but if you want to read it, you’ll just have to click on the link above and skim down.

There’s one particular holding that many practitioners may find interesting. Most of the contractor’s claims for additional compensation stemmed from abnormally high water levels on Kerr Lake for a prolonged time; those water levels prevented work from progressing because much of it had to be done from the water level, presumably using construction barges. The Commonwealth argued that the water levels were an act of God, for which it was not liable. The Supreme Court notes that since the water level is controlled by the Kerr Dam downstream, that makes it an act of the Army Corps of Engineers, which is slightly different from God.

Trial lawyers have wrestled with the statute of repose in Code §8.01-250 for years now. The statute gets its most recent judicial treatment today in Jamerson v. Coleman-Adams Construction, and all seven justices vote to affirm. But if you’re one of those sensationalistic court-watchers who only read the opinions for the jurisprudential train wrecks, don’t turn aside quite so fast; there’s an interesting concurrence here that takes the court to task for an unclear body of caselaw.

The fact pattern will be reasonably familiar to a number of trial lawyers. Many years after a building is built, a part of it collapses, injuring a plaintiff. The statute slaps a five-year limit on suits alleging defects in the premises (except against the owner, of course), and the plaintiff tries to get around the statute by applying an exception that was inserted by the legislature, and has been interpreted in a halting way by the courts.

The building in this case is a fire station, and the defective part was that pole you’re always seeing firemen slide down in TV shows and movies. Seven years or so after the station was built, the platform at the top collapsed, sending the unfortunate Jamerson plummeting 20 feet to the concrete floor below. I cringe when I imagine what his injuries were, but the $10 million ad damnum in his lawsuit should give us a decent clue of their severity.

The defendants in the suit were the general building contractor and a sub who built and delivered the pole and platform. They understandably asserted the bar of the statute. The fireman turned to Supreme Court caselaw defining the undefined statutory term machinery and equipment. The statute exempts those two things from the five-year bar, so every plaintiff in a remote-injury case like this one wants to call the defective part “machinery or equipment.”

In the years after 1973, when the legislature inserted that exception into the statute, the Supreme Court interpreted it by providing that “ordinary building materials” weren’t machinery and equipment. Hence defendants have clung to that exception-to-an-exception like a four-year-old gripping a teddy bear, trying to make it as expansive as possible. (If your concept of building materials is limited to 2x4s and ten-penny nails, you’re not being nearly imaginative enough.) The question here, as in many similar cases since the Nixon Administration, is whether the failed part is “machinery or equipment” or “ordinary building materials.”

Five members of the court today agree that the pole-and-platform apparatus isn’t machinery or equipment, so the trial court’s decision to sustain the pleas in bar is affirmed. But I promised you at least some controversy, and once again, Justice Mims volunteers to provide it in the form of a concurring opinion. Writing for Justice Goodwyn, he concludes that the court’s jurisprudence on this statute is a bloody mess, based on the court’s decision to go off on the “ordinary building materials” road many years ago. The court’s analysis would be far simpler, he contends, if it were to jettison the confusing array of decisions and return to a simple application of the statutory language.

This ruling is therefore technically unanimous, but the concurrence portends that this issue probably isn’t dead yet. Why do I conclude that? By counting noses – something I seldom do, but it’s hard to ignore what I see here. Two of the court’s three least senior justices form this concurrence, and would toss out that confusing caselaw. Justice Lemons didn’t participate in today’s case, and I can’t speculate on how he would vote on this issue if he were involved; let’s put him in the maybe column for now. One member of today’s majority, Justice Koontz, will be retiring in a few months, and we have no idea right now who his replacement will be, or how he or she would view this issue. That leaves, from the court’s active justices, only the chief justice plus Justices Kinser and Millette who find the current state of the caselaw to be satisfactory. (In case you think I’ve miscounted, the author of today’s opinion is Senior Justice Lacy.)

That doesn’t necessarily mean that this doctrine is on its way out the door; you’d need to count to four noses before you could conclude that. But it isn’t as firmly entrenched as many lawyers might think. I mention this possibility for the benefit of the attorneys who are now shaping their pleadings for cases that will be argued in the next few years; take my advice and keep an open mind.