ANALYSIS OF MAY 28, 2020 SUPREME COURT OPINIONS

(Posted May 28, 2020) We get a bountiful harvest of rulings today from the Supreme Court of Virginia. The court hands down seven published opinions and two published orders.

Freedom of Information

Let’s start with an open-government case: Cole v. Smyth County Board implicates the exception from open-meeting requirements for consultations with counsel.

This litigation turns on what I regard as one of the most important governmental duties, that of furnishing a public library. This one’s called the Smyth-Bland Regional Library, named for the two adjacent counties that it serves. In 2016, the Smyth County Board of Supervisors voted to replace all seven of its appointees to the library’s board of trustees.

As you can imagine, this mini-putsch generated backlash. Three of the ousted trustees sued, claiming that their removal was unlawful. While that litigation was pending, the County Board went into executive session during four scheduled meetings. As required by FOIA, the County Board explained the reason for the closed discussions: “discussion with legal counsel and staff pertaining to actual or probable litigation.” The announcement didn’t specify the name of any such litigation, or otherwise describe it.

During those closed sessions, the County Board “discussed potential disbandment of the Library,” including the financial costs and benefits” of doing so. Finally, in a public session in which no member spoke and no citizen input was allowed, the County Board passed, by a 6-1 vote, a resolution to disband the library, citing the rationale that “administrative costs associated with the operation of a regional library now exceed the financial benefit of maintaining a regional library system.”

None of us are immune from viewpoint bias, and I’ll go ahead and state mine right now: I was horrified when I read this justification. I’m a collector and lover of books, and I realize what these board members don’t: You don’t measure the benefit of a library in dollars. A library is one of the fundamental pillars of a community; a society loses an essential part of its culture by closing it. I found myself rooting against the County Board immediately.

A FOIA lawsuit ensued, with a local citizen – the president of the local Friends of the Library chapter – claiming that the County Board violated the open-meeting requirement by going into closed session. She insisted that the announcement of the purpose of the discussions was improper in that it didn’t identify specific litigation, and that the County Board improperly went beyond discussing litigation in the closed meeting.

A circuit court judge ruled in favor of the County Board, finding that the public announcement was sufficient and that the discussions were germane to the pending lawsuit. The court dismissed the suit with prejudice.

That was in 2017. The citizen promptly appealed and got a writ. She filed her opening brief, and waited for the appellee’s brief.

And waited. I reported on a separate aspect of this appeal last autumn. The County Board’s lawyer is a member of the General Assembly, and invoked his privilege under Code §30-5 to receive an automatic extension of the deadline to file. This went on for a year and a half before the appellant asked the Supreme Court to intervene and require the legislator to file something. The justices directed the parties to file briefs on the issue. Just before the legislator’s deadline to respond to that, he went ahead and filed the brief of appellee.

The subtext of that short proceeding was the concept that the legislator was abusing the statutory privilege, and decided to avoid a potentially embarrassing order from the Supreme Court. Today, almost three years after the circuit court’s final order, we get a ruling.

The Supreme Court reverses the judgment and sends the case back to circuit court. It finds that the public announcement in these situations must go beyond mentioning the statutory basis for the exemption; it has to describe the litigation. I suspect that county boards and city councils elsewhere may already do this, but for the rest of them, the requirement is now out in plain sight.

The justices also rule that the County Board exceeded the scope of the exemption by discussing financial aspects of the library’s operation. That’s governmental financial management; not litigation. Because exemptions have to be construed narrowly, and the County Board bore the burden of proving that the exemption applied, the case now heads back to Marion, where the judge will evaluate the now-successful citizen’s claim for attorney’s fees. And those fees will now have an appellate component.

Local governments

The justices take up a police-power case today, deciding Hooked Group, LLC v. City of Chesapeake. This is an inverse-condemnation action that followed the closure of a street that abutted the landowner’s property. The commercial parcel still had access to another street, but the landowner insisted that the closure had a significant and negative effect on the property’s highest and best use.

A circuit court judge agreed with the City, ruling on demurrer that the remaining access was reasonable as a matter of law. He rejected the landowner’s reliance on one of the seminal cases in condemnation law, State Highway Comm’r v. Dennison, which had also involved the closure of one of two adjacent roads, leaving access through the other road. There, the Supreme Court had held that the closure presented a jury issue on whether remaining access was reasonable.

This morning, the justices affirm the circuit court’s decision. The Supreme Court finds Dennison inapposite, because in that case, the Commissioner closed access to a four-lane road, leaving access to a two-lane road; in this case, it was the other way around. Justice McCullough’s opinion for a unanimous court concludes that this setup means that the remaining access was reasonable as a matter of law.

This last aspect of the case is an enormous win for condemnors. In the past, issues like this were typically matters for the factfinder. That was the ruling in Dennison. The Supreme Court has rarely taken on the task of finding what remaining access is reasonable, but it does so today.

The court also rejects the landowner’s contention that the 2012 amendments to the Constitution of Virginia, strengthening protection for property rights, meant that a loss of access was compensable. The General Assembly added a statute that provides for compensation for “a material impairment of direct access to property.” This, you might perceive, means that landowners are on a much stronger footing in these cases than they were before the amendments.

The justices disagree; they hold that their pre-2012 caselaw is “still relevant.” The new rule it announces today – fans of George Orwell might term the doctrine, “four lanes good; two lanes bad” – still requires the same reasonable-access-remaining analysis as before. This calls into question whether the entire process of amending the Constitution was meaningful.

Despite the court’s observation that Dennison is “simply inapposite,” I sense that the Hooked Group decision represents a noticeable retreat from that old doctrine. The fundamental holding of Dennison was that the issue of reduced access was ripe for jury determination, because there was some evidence of a significant reduction in that old parcel’s value. The trial court decided this case on demurrer, in which the courts must accept the landowner’s pleading that the street closure was a material detriment to its property. This, in turn, may signal that the justices are more open to early termination of litigation than before, when they openly protected the right to a jury trial. This opinion holds that judges, not juries, may be the ones to decide what’s reasonable.

Wills

We see another appeal with family members on both sides of the “v.” today, in Larsen v. Stack. It’s a familiar setup:

Dad owns a farm that we’ll call Blackacre in his own name. He executes a will that leaves the farm to Son and Daughter, but he gives Stepmom “the right to reside in [Blackacre] for so long as she is physically and mentally able to do so.” As long as Stepmom lives there, she also gets rental payments for an onsite cell tower.

After Dad died, trouble arose. Son and Daughter believed that Stepmom didn’t have a life estate, and they perceived that they had a right to use the property in conjunction with her. They sought a declaratory judgment to construe the will.

The circuit court ruled that the will was ambiguous in some material respects, so it permitted parol testimony from the attorney who drafted Dad’s will. That lawyer told the judge that Dad wanted his children ultimately to own the farm, and he didn’t give Stepmom a life estate for fear she’d have to sell it to qualify for Medicaid.

Satisfied with this explanation, the judge construed the will exactly as Son and Daughter had asked. But Mom got a writ. Today the Supreme Court affirms. The court notes that Dad did give Stepmom a life estate in another piece of property, so if he had meant to do so with the farm, he would likely have used that word. And the will gave Stepmom the right to reside on the farm, not exclusive ownership of it, so Son and Daughter could use it, too, so long as they didn’t interfere with Stepmom’s use of it.

I commend this short (9 pages) opinion to you for the clarity of Justice Chafin’s writing. Of all the justices, I’m least familiar with her style, because I’ve seen comparatively little of it. She writes in clear language with refreshingly many paragraph breaks. (Keep that in mind for your writing. Text with frequent paragraph breaks is easier to read.)

Civil procedure

Speaking of clarity in writing, we get an opinion today from Justice Russell in a land-use context, but the major lesson is in an arcane procedural tool. The opinion in Byrne v. City of Alexandria is short – aren’t all of Justice Russell’s opinions short? – at just over seven pages, and involves a fence in Old Town Alexandria.

Byrne bought a house in Old Town that dates to the 1780s. It was a fixer-upper, and Byrne got all the required approvals and permits to renovate it. He started work. But he hadn’t obtained approval from the local architectural board to demolish the brick fence in front. When he removed it to facilitate the renovation, the board cleared its throat and told him to stop.

As I see it, Byrne did the responsible thing: He submitted plans to put in “a Victorian ‘wicket and spear’ fence pierced by two gates.” His plans showed one of those gates as being narrow, for pedestrian access only, and the other as eight feet wide, to facilitate things like deliveries to the home. The board allowed him six feet only. Byrne didn’t like that, so he pursued administrative appeals and then a court challenge.

That’s what we’re here about today: a two-foot difference in the width of a gate. I recognize that property values in Old Town are astronomical. But two feet? Even so, it was enough to interest at least two justices on the panel that the case was worth a slot on the argument docket.

The circuit court took oyer of the administrative record that the City Council had when it heard Byrne’s appeal. After considering that, the court affirmed the six-foot requirement. On appeal, the Supreme Court first takes up the question whether oyer was appropriate for such documents.

The procedural tool of taking oyer is the process by which a defendant asks the trial court to metaphorically staple a document onto the plaintiff’s complaint. Normally in evaluating a demurrer, the court is limited to the four corners of the plaintiff’s pleading. Oyer allows the court to furnish a document on which the plaintiff’s claim depends, even if the plaintiff hasn’t attached it.

In an 1895 decision, the Supreme Court had seemingly limited oyer to “deeds and letters of probate and administration, not to other writings.” More recent decisions, however, have approved of courts’ taking oyer of many other kinds of documents. Today’s decision cements the broader approach: The Supreme Court rules that a trial court may take oyer of a missing document if “the missing document is essential to the claim.” This doesn’t mean that the court can consider anything that the plaintiff mentions obliquely, but if his claim depends on the document, then the plaintiff can’t force the court to decide a demurrer without it.

On the merits, the justices have little trouble in concluding that the City Council didn’t act arbitrarily or capriciously when it affirmed the architectural board’s determination. The Supreme Court accordingly affirms.

Insurance

We visit the dark world of subrogation agreements today in Erie Ins. Exch. V. Alba, which arises here in sunny Virginia Beach. This appeal arises from a particularly scary event, a fire at a condominium complex. There’s no word in today’s opinion of any personal injuries, but the fire, sparked by one or more smoldering cigarettes, caused over $800,000 in damage to the building.

The condo association had purchased an insurance policy from Erie that contained a provision waiving subrogation by the insurer against individual unit owners. That means that Erie can’t sue the owner of the unit for negligence in causing the fire.

Ah, but the owner of the unit had leased it to a tenant. Erie paid for the damage and then sued her, claiming that her negligence had caused the fire. She responded by claiming the benefit of the provision that protected her landlord, the unit owner. Erie answered that the policy says nothing about releasing tenants; the tenant countered that she stood in the shoes of her landlord. Who’s right?

The circuit judge entered a declaratory judgment in favor of the tenant, but today the Supreme Court reverses and sends the case back for trial. The court interprets the policy language exactly as it’s written, and it never mentions tenants. As for the stand-in-the-shoes argument, the court rules that the tenant had no contractual relation with the condo association, so there’s nothing to indicate an intention to vary the relationship from the terms of the policy.

So, is Erie going to get a check from the tenant for $800,000? Not likely; she’s almost certain to be judgment-proof for a claim that large. But Erie has obtained a precedential ruling that might help it, and other insurers, with other claims.

Limitation of actions

It was painful to read Mackey v. McDannald, an appeal growing out of a claim that a lawyer had misappropriated stock proceeds that should have gone to his former partners’ survivors. The stock came from the conversion of a health insurer from a mutual company to a stock company in the 1990s. The surviving lawyer had been a partner with the firm for eight years before leaving in 1995. When he left, the remaining three partners organized a new partnership in their names only. The stock conversion came two years later.

The three former partners died between 1999 and 2002. After the last death, the former partner, now the only living member of the old partnership, learned about the stock. At this point, the survivor did something that he would no doubt come to regret: He changed the mailing address for the old, defunct firm to his own home.

Meanwhile, a former associate of the firm, assisting the widow of one of the deceased lawyers, found a reference to the stock and asked the surviving former partner about it. The response was, “I have looked into it. There is not enough money involved.”

Ah, but there was plenty of money. The account represented over 600 shares of the insurance company, plus another $20,000. Six years later, in 2009, the surviving partner directed the stock administrator to liquidate the shares and send the proceeds to him. In doing so, he used a letterhead – printed on his own computer – showing the old, pre-dissolution partnership name and his home address. The administrator mailed him two checks totaling almost $100,000.

Six years later, the former associate found documents referring to the stock. He tried to contact the surviving partner but got no answer. (Bad sign #1.) He called the stock administrator, and was told that he couldn’t get any information unless he represented someone entitled to the stock. But the administrator revealed that there had been some activity, suggesting that he contact the former partner. (Bad sign #2.) The associate eventually got confirmation of the liquidation and payment. He informed the widow he’d been helping and representatives of the other two estates. That led to this lawsuit, filed in 2015.

The circuit court faced a tough preliminary decision at trial. The defendant raised the bar of the five-year statute of limitations. The claimed conversion happened in 2009, six years before suit. The plaintiff estates asserted the tolling provision relating to using “direct or indirect means to obstruct the filing of an action.” The defendant replied that the action they posited – the defendant’s telling the associate that the stock was essentially worthless – predated the conversion, so it couldn’t have obstructed their filing suit; there was at that point no cause of action.

The court overruled this defense, finding that the timing of the obstruction was irrelevant. By misleading the associate, who had completely trusted the former partner, the defendant put the victims off the trail, with foreseeable results. Only when the associate stumbled on suspicious documents six years after the stock liquidation was anyone aware of what happened.

The circuit court found that the surviving partner had indeed converted stock belonging to the three estates. It awarded judgment for almost $260,000 in compensatory damages and added $100,000 in punitives. The surviving partner appealed.

Today the justices affirm in part. They agree with the trial court’s analysis of the tolling issue, ruling that “intent – not timing – is the touchstone of the inquiry.” The Supreme Court reverses one aspect of the award, holding that the surviving partner’s misleading statement to the associate inured only to the benefit of the widow for whom the associate was working; not the other two estates. But it concludes that the third estate had a valid claim for conversion of the stock. The justices remand the case; as I see it, the circuit court must now calculate the amount due to that one widow.

This opinion was hard to read because it speaks ill of the fitness of a lawyer. Justice Mims’s opinion for a unanimous court recites that the misleading of the associate “was an act that ‘involved moral turpitude.’” Yes, those quotation marks are real; this passage is in this opinion. And the opinion is going into Virginia Reports, for the appellant’s great-grandchildren to read decades from now. Finally, it’s foreseeable to me that the appellant lawyer will be getting a call – if he hasn’t received one already – from a State Bar ethics investigator, now that the justices have pronounced the death sentence for his future credibility as a lawyer.

ANALYSIS OF MAY 7, 2020 SUPREME COURT OPINION

(Posted May 7, 2020) Today is a high holy day in the Emmert family calendar. Before we take up today’s lone Supreme Court opinion, I’ll take a moment to thank The Highest Ranking Authority of Whom I Am Aware, who agreed 32 years ago today to stick with me for better or for worse, for richer or poorer, in sickness and in health, and so forth. I also thank her for not having fired me in the interim. I’ll try to do better from here out, my wonderful wife.

Meanwhile, at Ninth and Franklin, the justices break a month-long drought by handing down a published opinion in a Workers’ Comp appeal, Loudoun County v. Richardson. This case involves an interesting procedural issue and the chronicler’s best friend, a split decision.

Richardson sustained a work-related injury in his work with the Loudoun County Fire Department. His doctor eventually determined that he needed hip replacement surgery, as his conservative post-injury treatment left the patient in significant pain. Despite the patient’s relatively young age – just 55 – he agreed to the surgery.

You would have to consider that procedure to be a success. The doctor testified that he had an impairment of 74% before the surgery, and only 11% afterward.

The patient filed a comp claim for an 11% permanent impairment, but eventually amended that claim to the pre-surgery 74%. The Comp Commission awarded him permanent partial benefits at the 74% rate, and the Court of Appeals affirmed. A Supreme Court writ panel granted the county’s request to review the case.

The main issue here is this: When an injured worker receives successful treatment that restores most of his pre-injury capacity, should the award be based on his pre-surgery impairment, or his condition after surgery? Justice Mims, writing for the majority, concludes that the pre-surgery impairment is the proper measure. He turns to a 1956 ruling in which the Supreme Court ruled that an eye injury merited an impairment award even though eyeglasses restored the employee’s vision. The majority sees no meaningful analytical difference between furnishing eyeglasses and furnishing a fake hip.

The majority notes that this ruling has achieved acceptance since then, in the form of rulings by the Court of Appeals – one of which had expressly applied the 1956 principle to a corneal implant – and the Workers’ Comp Commission, which extended it unto a knee replacement in a 2002 decision.

Justice Mims also cites medical literature that outlines the long-term risks of hip-replacement surgery, especially for patients younger than 65. He lists activities that the patient’s doctor advised him against trying, for fear of a joint failure. Finally, he observes that a state senator introduced a bill, right after that 2002 VWCC ruling, that would expressly provide that a patient’s post-implant condition is the measure of benefits. But the senator pulled the bill and so the legislature presumably acquiesced in this line of cases.

Fifteen years of analyzing Supreme Court rulings for this website has honed – I won’t say perfected – my ability to read between the lines in the justices’ writing. But I needed none of that skill in reading Justice Kelsey’s stinging dissent, in which Justice Powell joins. The dissenters believe that the 1956 decision in no way compels this result, as adding a pair of eyeglasses doesn’t cure a patient with an eye injury; it merely accommodates the condition. In contrast, they point out, this surgery restored all but 11% of Richardson’s functionality.

The dissent also chides the majority for reaching outside the record of the case to cite medical literature that the parties hadn’t cited below. They regard this as the majority’s taking judicial notice of hearsay matters, without bothering to hear from an expert or subjecting his opinions to cross-examination. I’m reading between the lines here; Justice Kelsey’s jab is more direct: “The apparent purpose of taking judicial notice of these articles is to imply that, as a matter of law, a medical expert can never give a truly reliable opinion on a patient’s permanent impairment following a hip-replacement surgery.” As an aside, my handy-dandy copy of The Law of Evidence in Virginia discusses judicial notice in §3.2, and medical literature doesn’t easily fit within any of the accepted categories of matters of which courts can take judicial notice.

Nor do the dissenters accept the legislative-acquiescence angle advanced in the majority opinion. First, they point out that this doctrine only applies to decisions by the state’s court of last resort. That means that all those rulings from the CAV and VWCC don’t help. And the fact that a senator pulled a bill doesn’t indicate that the legislature has considered a court ruling and agreed with it. Quite the opposite: It means, in the dissenters’ view, that the legislature has not considered this question, and so it can hardly be said to have acquiesced.

The dissent would fashion a simple rule: Impairment ratings are to be measured upon a patient’s reaching maximal medical improvement, and if a surgery is what gets the patient to that point, then benefits should be calculated on the patient’s post-surgical condition.

When you read the dissent, you’ll see the usual subdued phrasing in such opinions, such as “I respectfully disagree,” and so forth. But there’s a clear subtext of almost scorn for the majority’s reasoning; it’s unmistakable. This is an unusually vigorous dissent, though perhaps not for Justice Kelsey, who quite often expresses his views in strong terms.

I understand that this appeal is one of a small number of cases where the Supreme Court granted a writ before hearing a writ argument. When the panel decides in advance to award an appeal, the appellant’s lawyer receives a very enjoyable phone call from the court, saying, “You don’t need to come to court; you’re getting your writ.”

The chief justice sat out this appeal; Justice Millette participated in the case in his stead, and joined the majority.

UPDATE: SCV POSTPONES JUNE SESSION;

EMERGENCY STILL EXPIRES APRIL 26

(Posted April 21, 2020) There are fewer and fewer slow news days right now, even in the comparatively placid swimmin’ pool of the appellate world. The Supreme Court of Virginia announces this afternoon that it has postponed the June session by two weeks, from June 1-5 to June 15-19. The court may be hoping that the state of emergency declared by the Governor last month will have ended by then.

Meanwhile, the court’s March 27 extension of the judicial-emergency declaration is still set to expire this Sunday, April 26. I had expected that the court would issue another order during last week’s April session, extending the judicial emergency to at least match the Governor’s declaration, which runs into May for now. But as of today, there’s no word from the court.

This is affecting lives, and I earnestly hope that the Supreme Court acts soon. Parties have trials scheduled for next week, and they need to know if they have to be ready for those. I’ve fielded numerous questions in the past week from lawyers who perceive that I somehow have insight on this, but I don’t. Those questions have accelerated today as lawyers have looked nervously at their calendars and have wondered what to do.

No, I don’t believe that the justices will really require litigants, lawyers, court staff, and venire panels to assemble inside a closed courtroom next week, at the height of the pandemic in Virginia. The Governor certainly doesn’t want assemblies like that. But until the Supreme Court acts, it’ll be up to local trial judges to decide whether to continue trials on their own. My best advice for those lawyers is to contact the local court now and ask for guidance. The Supreme Court has taken steps to address its own calendar; the calendars of other courts should be next.

UPDATE April 22: The justices have extended the declaration another 21 days, to May 17. The order is here. It contains valuable guidance on some matters that had vexed litigants before now. This is a most welcome development.

ANALYSIS OF APRIL 9, 2020 SUPREME COURT OPINIONS

(Posted April 9, 2020) Today provides a bountiful harvest of six new published decisions from the Supreme Court of Virginia.

Criminal law

Modify. The definition of that word is the fulcrum on which today’s published order in Jefferson v. Commonwealth turns. This is an issue of finality and hence of automatic interest for the appellate bar.

In 2015, a circuit court gave Jefferson a break: It gave him a precious deferred finding after finding the evidence sufficient to convict him of abduction and assault charges. He got two years to clean up his act. Alas for him, he didn’t fulfill the terms prescribed by the judge, so he returned to court on August 28, 2017 to face sentencing. The court gave him a period of involuntary free room and board, but mistakenly dated the sentencing order 2018 instead of 2017.

Jefferson’s lawyer presumably noted the error upon receiving a copy of the order, and notified the court. On the 18th day after the first order, the court entered an amended order that corrected the date but didn’t make any other changes. Jefferson noted an appeal three weeks after that.

In what must have come as a surprise to Jefferson’s lawyer, the Court of Appeals dismissed the appeal as untimely. It ruled that the August 28 sentencing order was the final order in the case, even though the court had corrected it later. The notice of appeal here came more than 30 days after the August date, so the CAV felt it didn’t have jurisdiction. Jefferson headed upstairs and got a writ.

The Supreme Court unanimously affirms today. It holds that the correction of a scrivener’s error isn’t a modification for purposes of Rule 1:1. Indeed, a trial court can correct such an error even long after it otherwise loses jurisdiction. The justices today note that the amendment didn’t do anything different; it didn’t add to Jefferson’s sentence or impose more onerous supervision terms on him. 

I will admit that this one caused my eyebrows to rise a bit. As I see it, it’s emphatically possible to view a date correction as a modification. The court chooses instead to interpret the word modify narrowly, so it covers only substantive modifications. Today’s order also observes that the amended order didn’t recite that it was modifying the sentencing order, thus seemingly imposing a dual requirement: an amendment must substantively modify the original order, and it must state that it’s modifying.

In the end, I see the SCV’s point, particularly when it comes to correcting a scrivener’s error a year or so after final judgment; doing so would presumably not revive a long-passed deadline for filing a notice of appeal.

I have a theory that, in another era a generation or more ago, the Supreme Court of Virginia’s opinions were shorter than they are now. I’ve thought about performing an empirical analysis involving word counts, but that seems time-intensive. Still, the older opinions seem more concise to me on average. Against that backdrop, we get today’s five-page opinion in Lambert v. Commonwealth, from the pen of Justice Russell, a jurist whose tenure on the court extends back a generation or more ago. I always appreciate the conciseness and clarity of his writing, and today is no exception.

This is a prosecution for aggravated involuntary manslaughter and DUI. Lambert caused a collision that resulted in the death of a passenger in another vehicle. A paramedic noticed that his speech was slurred, although he seemed cogent. He initially denied ingesting alcohol or drugs, but later admitted that he had just come from a treatment session at a methadone clinic. He also had traces of Valium and Xanax in his blood.

A jury found him guilty of the charges and recommended a prison sentence. On appeal, Lambert contended that the evidence didn’t establish beyond a reasonable doubt that he had “self-administered” the drugs. Evaluating that, the Supreme Court notes today that methadone treatment is voluntary. Thus, even if a healthcare professional technically delivered the drug to him, the treatment was still self-administered. Because the drugs patently affected his ability to drive safely, the court affirms the convictions.

Caldwell v. Commonwealth presents an interesting temporal question involving intent. Caldwell delivered a couple of people to a Lexington hotel, promising to return the next morning to join them for breakfast. The nightly lodging charge at this facility included breakfast for guests. Caldwell ate as well, likely assuming that she was permitted to eat for free as she was the guest of a paying customer. But an employee told her that, because she wasn’t staying at the hotel, she had to pay eight dollars.

Eight dollars. In retrospect, it would have been far cheaper (to say nothing of less stressful) to pay the money and be done with it. But Caldwell didn’t think this was right. She asked to speak with a manager to plead her case, but the manager insisted on payment. After a few energetic words, Caldwell left without paying.

Perhaps heedless of the value of good public relations, the manager called local law enforcement, and a prosecution ensued under a statute that makes it a crime for a person “without paying therefor, and with the intent to cheat or defraud the owner or keeper to . . . obtain food from a restaurant or other eating house.” A trial judge convicted Caldwell, observing that she unambiguously understood before leaving that she had to pay. The Court of Appeals affirmed. But today, the Supreme Court unanimously reverses the conviction and dismisses the indictment.

How did that happen? As I hinted above, it’s a temporal issue. The prosecution had to prove that Caldwell obtained the food with the intent to cheat the restaurant out of the price. The statute doesn’t criminalize a later-formed intent; the Commonwealth had to prove that she intended, at the time she was served, to cheat the restaurant. Here, the evidence is wholly consistent with the theory that Caldwell understood at the time she ate that her breakfast was free; she only learned afterward that the hotel expected her to pay. Since that doesn’t fit the statutory requirements, the evidence wasn’t sufficient to sustain a conviction.

Insurance

Justice McCullough is determined to give Justice Russell a run for his money in VACORP v. Young; today’s opinion in a complex insurance dispute comes in at just over six pages. This appeal resolves the question whether the $50,000 policy requirement for municipal vehicles is a ceiling or a floor.

Young is a student who was injured while riding a school bus that was involved in a collision with a car. She sued the drivers and the school board. The board had purchased a $1 million policy through VACORP, which is the Virginia Association of Counties Risk Pool (I’ve truncated the name slightly; but that’s where the acronym comes from). When the insurer balked at providing coverage beyond the private insurance covering the car, Young filed a declaratory-judgment action to see what coverage existed.

The trial court ruled that the insurer’s liability wasn’t capped at $50,000, as VACORP argued. That meant it was potentially on the hook for up to $875,000 (the $1 million less the $125K covering the car). Young was entitled to the benefit of the policy because she was riding in an insured vehicle. The court observes that the legislature, in requiring $50K in coverage, would not have chosen to forbid localities from buying more coverage for the benefit of its employees and, as here, schoolchildren.

Today’s opinion indicates that this is an issue of first impression for the court. In theory, VACORP could chose to stop issuing these policies, now that its maximum liability has been increased by a factor of twenty. That’s a corner-office level decision and I won’t speculate on it. Meanwhile, in the underlying tort suit, the student will have far more leverage to negotiate favorable settlement terms, knowing that she has the benefit of a million dollars in coverage.

Unjust enrichment

The Supreme Court explores the sometimes-fuzzy boundary between quantum-meruit and unjust-enrichment claims in T. Musgrove Constr. Co. v. Young. The case arose when the son of a construction company’s owner borrowed a company dump truck to haul some logs. Dad may have admonished his son to fill the tank before bringing the truck back, but he blessed the venture.

Unfortunately, after the son and an associate loaded the truck and drove off, they were involved in an accident in which the dump truck tipped over. (That must have been a terrifying experience, knowing that they had a load of logs behind them.) A dump truck on its side is no good to anybody, and not many towing facilities have the ability to right and then tow away something that large. There was also the matter of the logs, which were probably strewn over the scene like pick-up sticks.

This, then, called for help from a specialist. That’s where Young comes in; he’s the owner of a business trading as FoxFire Towing. He arrived at the scene, assessed what had to be done, and then did it. He brought several pieces of heavy equipment to return the truck upright, collect the logs and deposit them, clear away a tree that had been knocked over in the crash, and even perform environmental containment by hauling away soil that had been contaminated by fluid leaking from the truck. He even paid for disposal of these hazardous materials. FoxFire towed the truck away and stored it in a forest near Young’s home.

For this prodigious undertaking, Young sent the construction company a bill for the work, plus an administrative fee and $45 a day to store the truck. The company declined to pay, perhaps reasoning that the owner’s son had borrowed the truck, so it wasn’t on company business at the time of the crash. Young eventually sued for $29,000 — those $45-a-day fees add up quickly — and by the time of trial, the bill was over $50,000.

Young’s suit sought a recovery without an express contract, so it necessarily required the intervention of equity. The circuit court empaneled an advisory jury that gave Young what he asked for, less the $2,000 salvage value of the truck. The judge entered judgment accordingly.

On appeal, the Supreme Court observes that this really isn’t a case for quantum meruit — Latin for “the amount merited” — because that remedy is only available where the debtor asks for the creditor’s help. A quantum-meruit recovery gets the creditor paid the fair value of his work. Unjust enrichment is a kind of contract that the law imposes when the debtor doesn’t ask for the help but the creditor provides it anyway. The measure of damages there is the amount by which the debtor profited by the creditor’s efforts.

In this situation, no one from the construction company called FoxFire for help. That means that the towing company is stuck with recovering the amount of the construction company’s benefit. The Supreme Court rules today that that includes the cost to right the dump truck and to tow it away; plus storage charges capped at the truck’s value, $2,000. Young cannot, however, get paid for the substantial extra efforts at the scene, such as containing the hazardous materials. That work didn’t benefit the construction company. As for the administrative fee, which was largely tied to the towing firm’s overhead, that benefited the towing company, not the construction company, so there won’t be a damage award for that, either. The justices remand the case for further proceedings that will result in a sharply limited recovery by Young.

I’ll confess that I was rooting for the towing company here. It went the extra mile to perform a professional job, only to be told that all that first-rate work was voluntary on its part. One of the key facts here was that the dump truck wasn’t on company business; it had been loaned out to the owner’s son. In theory, Young might be able to recover more from the son than from Dad’s business. But the lion’s share of this award was for storage fees, and since those are capped at $2,000, this is now a small claim.

Medical malpractice 

Finally, the court hands down a published opinion in Curtis v. Highfill, a wrongful-death claim asserting that a doctor recklessly prescribed over 7,000 pain pills to a patient without monitoring her progress. The patient overdosed and died; her personal representative sued the doctor for compensatory and punitive damages. The doctor admitted that his actions did not meet the standard of care, but denied liability based on proximate causation.

At trial, the personal rep presented evidence and rested. The doctor moved to strike the punitive-damage claim, and the circuit court granted that motion. A jury subsequently awarded compensatory damages only. The Supreme Court granted a writ to review the dismissal of the punitive-damage claim.

The court reverses today and remands the case for retrial on punitives. In an opinion by Justice Chafin, the court finds that the personal rep asserted a valid claim that the doctor acted with willful and wanton disregard for his patient. He had reason to know about her alcohol use, but continued to prescribe a torrent of addictive and dangerous medication. A jury could accept this as conscious disregard of the danger to the patient.

On remand, it’s foreseeable to me that the doctor’s insurer may find this a suitable claim to settle. I doubt there will be a second trial.

ANALYSIS OF APRIL 2, 2020 SUPREME COURT OPINION

(Posted April 2, 2020) The Supreme Court of Virginia hands down a significant decision today in the context of foreclosure. The decision is Young-Allen v. Bank of America.

This appeal arises from a residential mortgage loan. The borrower fell in arrears; the bank appointed a substitute trustee who sent out the usual foreclosure notice.

A day later, the borrower wrote to the bank, asking for a reinstatement figure – that is, how much she had to pay to restore herself to the bank’s good graces. Her pleading asserted that the bank ignored her, and that she then told the substitute trustee that the bank had breached the terms of the loan by doing so.

A day before the scheduled foreclosure sale, she filed a declaratory-judgment suit – alleging breach of contract and seeking rescission of any future sale – and recorded a lis pendens memorandum. But the trustee conducted the sale anyway, knocking down the property to an investment company that saw equity in the property.

The bank then demurred to the suit, arguing that the complaint failed to allege that the borrower was damaged. The circuit court sustained that demurrer and allowed an amendment.

The borrower did amend, abandoning her original claims and seeking equitable rescission. The new pleading added a claim of breach of fiduciary duty against the substitute trustee, arguing that that entity had a duty to hold off foreclosing once it received word of a possible breach of contract by the bank.

This time both defendants demurred; the circuit court sustained those and dismissed the suit with prejudice. The Supreme Court granted a writ to review the matter.

The court today unanimously affirms. The ruling really comes down to a single holding: A borrower in this situation must affirmatively allege in her suit that she had the capacity to reinstate the loan. That is, she must allege that she had the funds – or at least the ability to raise the funds – to bring the loan current. If she doesn’t do that, she has failed to plead that she was damaged by the bank’s and trustee’s actions. Because this borrower didn’t assert that, the trial court was correct to dismiss the claims.

This, then, is a decision about pleading (as is so often the case with appeals of demurrer rulings). Today’s opinion continues what I see as a trend in the Supreme Court toward an ever narrower application of the notice-pleading rules that apply here in Virginia. Courts evaluating a demurrer must accept the facts as the plaintiff pleaded them. Traditionally, they must also accord plaintiffs the benefit of all reasonable inferences from those facts.

An expansive view of this process would likely conclude that the borrower’s pleading here would permit the reasonable inference that the actions she assails deprived her preemptively of a well-recognized property right: the equity of redemption. That’s the right of a borrower who’s in default “to recover property before a foreclosure sale by paying the principal, interest, and other costs that are due.” Black’s Law Dictionary (10^th ed. 2014) at 657. Deprivation of a recognized property right ought to be cognizable, assuming you view the reasonable-inference process expansively.

Instead, the Supreme Court today adopts a narrow reading of the notice-pleading requirements. It holds that even invoking a recognized property right, the borrower must plead and eventually prove that she would have been able to raise the money to reinstate the loan, if only the bank had answered her e-mail with a reinstatement figure.

In this sense, this dirt-law opinion will cast ripples that spread far beyond the foreclosure-law pool. In my opinion, the reasonable-inference rule is in hospice care in Virginia. To be safe, careful pleaders must set out each element expressly, or risk a court’s declining to draw what the pleader might think is a reasonable inference.

Finally, lest you perceive that I’m rooting for the borrower here, please know that I’m well aware that many borrowers assert gotcha defenses in foreclosure litigation, thereby enabling them to remain for months or years in properties without paying their mortgages. I won’t defend that practice; you need to pay for what you want to keep, in the sense of making agreed mortgage payments.

*   *   *

The court also hands down a published order in a criminal appeal, McQuinn v. Commonwealth. There, a jury acquitted McQuinn of abduction and robbery, but convicted him on companion firearms charges. He argued unsuccessfully that the verdicts were inconsistent in the trial court and in the Court of Appeals.

Today the Supreme Court makes it unanimous. In doing so, the court sticks with prior rulings that prohibit looking behind the jury’s verdict to see whether that jury simply cut the defendant a break. The evidence in the case, as recited in today’s opinion, was certainly sufficient to convict McQuinn had the jury decided to do so. In such situations, an inconsistent verdict stands.

*   *   *

Finally, I’ll add a personal note. Today is an important day in the Emmert household: It’s the 108^th anniversary of the birth of my paternal grandfather, Stan Emmert. He was an architect and engineer, two professions that I esteem highly.

Back in the day, members of three professions could be distinguished by the fact that they wore bow ties. The three were architecture, medicine, and law. My grandfather always wore bow ties, and in his honor, I’m wearing one today in lieu of my normal necktie. (Yes, I’m aware of the Governor’s current order within his administration to eschew neckties for the duration of the pandemic.)

I still possess the last letter I ever received from my grandfather, written a few months before his death in early 1987. I was a young lawyer then, still in my 20s. He offered this advice, which I reread this morning: “We [he and my grandmother] want you to be totally in command of yourself. We want you to be all that you want to be, as we know your sights are high. Success is not measured in dollars and cents; but rather, in happiness, self-dignity, pride, and accomplishment.” This is the manner of man from whom I am descended; this is the man I’m trying to live up to.

I’m sort-of named for my grandfather. He was Lorenzo Stanley Emmert. Before I was born, he learned that my parents were thinking of naming me after him, assuming I turned out to be a boy. (This was long before amniocenteses could identify a child’s gender months before birth.) He responded, “For God’s sake, don’t name him Lorenzo!”

My parents heeded this plea and Anglicized my first name to Lawrence. As for my middle name, well … my mother idolized the multitalented entertainer Steve Allen. So I’m named for my grandfather and a comedian. Explains some things, doesn’t it?

ANALYSIS OF MARCH 26, 2019 SUPREME COURT OPINION

(Posted March 26, 2020) We get one short opinion today from Ninth and Franklin, resolving a finality issue in a criminal appeal. The case is Akers v. Commonwealth.

Akers, having previously received a partially suspended sentence on drug charges, incurred new criminal convictions three years later. A circuit court judge determined to revoke the suspension and impose the remaining prison time on him. The court entered a sentencing order carrying that out.

Four months later, Akers moved the court to modify the sentence. He relied on Code §19.2-303, which provides a limited exception to the 21-day rule in Rule 1:1. That statute allows a trial court to modify a felony sentence at any time before the Department of Corrections takes custody of the prisoner. Akers was still in a local jail when he filed the motion.

The court scheduled a hearing for 2 ½ months later. Alas for Akers, the jail transferred him to the DoC a few days before that hearing date, so he was in prison when court convened. The trial court concluded that it accordingly was powerless to adjudicate the motion.

The Court of Appeals agreed, employing the plain language of the statute. Today the Supreme Court affirms. If Akers wanted to ensure continuing trial-court jurisdiction, he could have moved the circuit court to suspend the sentencing order, or to enter an order staying the transfer. Today’s opinion notes that if the court enters the latter kind of order, it’s the prisoner’s obligation to ensure that DoC knows about it. Presumably if the Department takes custody without knowing about such an order, the trial court still loses jurisdiction.

ANALYSIS OF MARCH 19, 2020 SUPREME COURT OPINION

(Posted March 19, 2020) The Sixth Amendment is the backdrop for this morning’s published opinion in Weatherholt v. Commonwealth, an appeal involving two convictions on drug-distribution charges. After being indicted, Weatherholt hired a lawyer. During the pendency of the proceedings, the State Bar suspended the lawyer’s license when she failed to respond to a subpoena in a disciplinary proceeding.

The prosecutor, seeing a jury-trial date just 15 days away, asked for a hearing to determine how to proceed. The court set one for six days before trial, and the defendant appeared, sans counsel. The judge asked him what he would like to do if the lawyer got her license back before trial. He answered that he wanted to go forward with her as his lawyer. He noted that he didn’t have funds to hire another lawyer, and “I just want to get it over with.”

Fair enough, the judge concluded, and ruled that if the lawyer were not reinstated by two days before trial, the case would be continued. She evidently got her license back in time, and everyone appeared on the scheduled trial date. Everyone, that is, except a sufficient venire panel; the case had to be continued anyway.

To speed things along, everyone agreed on a bench trial two weeks later. At the conclusion of the case, the court found the defendant guilty; it eventually sentenced him to a lengthy prison term. A few days later, a new lawyer appeared; he moved the court to set aside the conviction. This lawyer asserted that the hearing six days before trial, where the previous lawyer had been absent, was a violation of the defendant’s right to counsel. The court ruled that that hearing wasn’t a critical stage of the proceeding, so there was no violation.

That prompted this appeal. The CAV granted a writ but affirmed. Today the justices unanimously agree, finding that merely asking the defendant if he wants a new lawyer isn’t a critical stage. It’s analogous to other steps in the prosecutorial process, such as an initial arraignment.

The subtext of today’s short opinion is that this defendant isn’t out of options. His first lawyer is now off the State Bar’s rolls, having surrendered her license for impairment. The defendant argued in the circuit court and on appeal that her performance constituted ineffective assistance, but that’s a matter for habeas relief.

ANALYSIS OF MARCH 12, 2020 SUPREME COURT OPINIONS

(Posted March 12, 2020) The Supreme Court of Virginia announces two new rulings this morning.

Trusts

The court takes up the question whether filing a declaratory-judgment action to interpret a trust provision triggers a no-contest forfeiture. The case is Hunter v. Hunter.

A person we’ll call Mom created a living trust late in her life, directing that her husband was the primary beneficiary. Contingent beneficiaries, each entitled to one third of the trust corpus, were her son, daughter, and granddaughter. The trust contained a clause that disinherited any beneficiary who contests the trust, further defining a contest as taking “any action seeking to invalidate, nullify, set aside, render unenforceable, or otherwise avoid the effect of” the trust.

Mom’s husband died two years before she did. Upon her passing in 2015, the daughter, named in Mom’s trust as co-trustee, sent her brother a brokerage statement showing a significant decline in assets from 2009 to 2015. That didn’t seem right to the son; the stock market had rebounded quite nicely in that post-recession period. The difference in value was millions of dollars. He asked his sister for more financial details.

He got a letter in return, not from his sister but from a lawyer. The letter asserted that the sister had no obligation to give any further information because the trust also contained a provision waiving the trustee’s statutory duties to report.

Now the son has to walk a tightrope. He could swallow hard and accept whatever his sister decided, or he could file a lawsuit and risk violating the no-contest clause. If he triggered that, even by accident, he’d wind up with one-third of nothing.

The son wisely hired a very smart lawyer who filed a well-crafted, sophisticated pleading. It contained two counts. Count 1 asked the court to determine whether a DJ action seeking interpretation of the trust violated the no-contest clause. If the court were to find that it did, that would be the end of things. But if the court were to decide that an interpretive request was permissible, Count 2 sought an interpretation of certain provisions relating to the trustee’s duties. The pleading asked for a ruling on Count 2 “if, and only if,” the court found in the son’s favor on Count 1.

The circuit court construed the pleading as a whole instead of count-by-count, and determined that it was indeed a trust contest. The court entered judgment for the daughter, ruling that the son would take nothing under the trust.

The Supreme Court today unanimously reverses and remands the case for further proceedings. Courts enforce no-contest clauses strictly, Justice Kelsey tells us today, but construe them narrowly. This is because they impose a forfeiture for the sin of seeking to enforce one’s rights. And age-old caselaw holds that “equity abhors a forfeiture.”

The Supreme Court rules today that the son’s DJ complaint carefully tracks a path that the SCV has previously found does not trigger a no-contest provision in the context of wills; today the court applies that to trusts as well. Asking a court to decide what trust language means isn’t the same as asking that court to invalidate that language.

On remand, the circuit court will get the first crack at that interpretation. I’m a little surprised that the justices didn’t go ahead and make this judgment call, since they can read documents just as well as a trial judge can. But they may have felt that some parol evidence might have been admissible to explain Mom’s intention, thereby requiring remand. Regardless, this is a win for the son, who’s back in the game; he now knows that even if the circuit court rules against him, he’ll get 1/3 of something.

One last point: In exploring the long history of no-contest clauses, Justice Kelsey blows the dust off the history books to describe such a clause in a Mesopotamian will from the 13^th Century BCE. My curiosity thus piqued, I did a quick Lexis search on the word Mesopotamia and found zero hits in all reported Virginia cases. This is the first time in our long jurisprudential history that any Virginia jurist has cited the Land Between the Rivers.

Evidence

The Supreme Court also hands down a short published order in a criminal appeal, Wakeman v. Commonwealth. It’s a rape conviction in which a forensic nurse testified about her examination of the victim. The nurse had completed all of the coursework to be certified as a Sexual Assault Nurse Examiner, though she hadn’t taken the test. Satisfied that she still possessed expert-level knowledge, the circuit court allowed her to testify.

After a jury convicted the defendant, he moved to set aside the verdict. He claimed that the court erred in permitting the nurse to testify because she wasn’t certified. The court refused this request, and the Court of Appeals affirmed.

The justices swiftly agree today, handing down a short (1½ pages) order adopting the CAV’s rationale. Rule 2:702(a) requires a certain level of knowledge, but doesn’t require a certification. Since the legislature hasn’t created such a requirement, the circuit court had ample discretion to admit the testimony.

ANALYSIS OF FEBRUARY 27, 2020 SUPREME COURT OPINIONS

(Posted February 27, 2020) After a week’s hiatus, the Supreme Court of Virginia issues two published opinions this morning.

Estoppel     

It’s always dismaying to find members of the same family on opposite sides of the “v.” in civil litigation. Family disputes are never pleasant. Today’s decision in Alexander v. Cobb relates to ownership of what I assume is the family farm.

Spouses whom I’ll call Mom and Dad owned three tracts of land in western Virginia, holding title as tenant in common. Dad executed a will providing that, upon his death, Mom would have a life estate in his undivided half interest, with the remainder going to the couple’s two children, Son and Daughter. The will contained a provision that I found remarkable, empowering Mom to sell the land that was the subject of her life estate, invest the proceeds, and spend any portion of it necessary for her support.

Dad died first, and Mom soon moved in with Daughter because of failing health. Mom executed deeds of gift, conveying all of the property to Daughter. Son filed suit, claiming that the deeds were fraudulent conveyances. After a bench trial, the circuit court eventually ruled in favor of Son, voiding the deeds because Mom hadn’t followed the will’s provisions. No one appealed that ruling.

The next year, Mom signed deeds of bargain and sale, again conveying the property to Daughter. The two later filed suit against Son, seeking an interpretation of Dad’s will and confirmation of the conveyance. Son claimed that the earlier judgment collaterally estopped this second suit. That court agreed with Son that the first lawsuit had resolved the matter in Son’s favor, and dismissed the complaint. No one appealed that, either.

A couple of years later – we’re now into 2017 – Mom died. Son sued Daughter a few months later, seeking an accounting and a declaration that he owned 25% of the properties, representing half of Dad’s half. Daughter answered with a request of her own, seeking to quiet title in the entire property in herself.

In a bench trial, a circuit judge sat down to sort all this out. He found himself “constrained” by the judgment in the second suit, which had held that Daughter didn’t have a right to all of the property. It found that second final order to be an adjudication on the merits, so it ruled that Son owned 25% of the land. This time, someone (Daughter) appealed.

This case presents an issue of claim preclusion. That applies where three circumstances occur: a final judgment on the merits; the same parties (or their privies); and the same conduct or transaction.

Today, a unanimous Supreme Court affirms the judgment in Son’s favor. The court rules that the second judgment was indeed final and on the merits. The parties are obviously the same. And this is the same transaction, the matter of what rights Dad’s will conveyed.

In my view, the most important part of today’s opinion is Justice Goodwyn’s discussion of what a judgment “on the merits” is. The Supreme Court has previously ruled that sustaining a plea in bar on the statute of limitations is not on the merits, so it doesn’t trigger claim preclusion. This case differs from that holding because it “was based on the factual and legal determination that [Daughter] failed to prove that she had a 100% ownership in the Properties.”

This holding, in turn, depends on the standard of review. The justices hold that the characterization of the first judgment order is a mixed question of law and fact, “to which direct estoppel applies.” To my slight surprise, Justice Goodwyn cites only federal authority (from SCOTUS) and Restatements. I would have expected that there would be Virginia caselaw on this. There is now.

Criminal law

I had modest expectations when I began to read Butcher v. Commonwealth. It’s an appeal of a conviction for misdemeanor hit-and-run. I expected that perhaps we’d get a discussion of sufficiency of the evidence, leading to a minor adjustment to traffic law.

Boy, was I wrong. This is a fascinating case, of interest to word nerds across the Commonwealth. While the entire Supreme Court agrees on the outcome, there are four separate opinions on how best to get there. This quickly became one of the most interesting decisions I’ve seen in months and perhaps years.

Here’s the setup: Back in the medieval period, before 1989, former Title 46.1 governed traffic matters. The General Assembly, in its wisdom, saw fit in that year to recodify the title, giving us new Title 46.2, which survives today and is cited daily in traffic courts across Virginia.

The relevant text in the hit-and-run statute in Title 46.1 required each driver involved in an accident resulting in death, injury, or property damage to notify state or local law enforcement, “and, in addition, the person struck or injured … or to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property ….” Such driver has to furnish identifying information so the police can investigate and an adverse party knows whom to sue if necessary.

When the 140 Level Heads approved new Title 46.2, the language was a tad different. The relevant statute now requires such a driver to report name, address, etc., “to the State Police or local law-enforcement agency, to the person struck and injured …, or to the driver or some other occupant” and so forth.

Did you notice the change? In the past, you had to notify police and the other persons affected, whether injured or otherwise. Now you have to notify, in essence, A, B, or C. It looks like notifying any one of them will suffice, right?

That’s the basis of today’s fascinating discussion. The facts of the case are remarkably simple: The appellant, Butcher, engaged in a high-speed chase in Petersburg, ran another driver off the road, and then went up to her car and started banging angrily on her window. This, in case you’re wondering, makes him a singularly unsympathetic appellant; I’m having a hard time imagining a constituency that would be rooting for him in this appeal.

A trial court judge wasn’t in that constituency; he convicted Butcher based on a failure to notify anyone at all. A panel of the Court of Appeals agreed. But noticing the little linguistic nuance I mention above, the panel decided it was wise to resolve the question whether the new statute contains a newly disjunctive requirement, or retains the old conjunctive one. The panel read the plain language of the statute and held that, “to meet the statutory command, appellant only needed to report forthwith the required information to one person described in the statutory list.”

The court went on to affirm the judgment, agreeing that Butcher didn’t notify anyone. Fortunately for the Commonwealth, Butcher appealed and got a writ.

How is this fortunate for the prosecution? Because Aunt Virginia would prefer that the statute retain its conjunctive meaning, even after the recodification. And because the CAV affirmed the conviction, the Commonwealth wasn’t aggrieved and hence probably couldn’t appeal.

Today, as noted above, four separate opinions emerge from the fifth floor at Ninth and Franklin. Each of them ends at the same destination: Butcher is guilty, since he didn’t notify anyone. If you’re keeping score, that’s Jurists 11, Butcher 0, counting seven justices, three CAV judges, and one trial judge in the former column.

Here’s where the linguistic debate gets interesting. I’ll start with the concurring opinions. Justice McCullough, joined by Justice Mims, believes that the best reading of the statutory language is the good ol’ conjunctive requirement. First, with recodifications there’s a presumption that the legislature doesn’t intend to make a substantive change. The old statute was clearly conjunctive, and SCV caselaw reinforced that.

Justice McCullough next writes that there’s an ambiguity in the statute, because in the enumerated list, there’s neither an and nor an or in the text. That means that the conjunction “must be supplied by implication.” He perceives this as the key that opens the door to statutory construction, a process that isn’t available when a statute is unambiguous.

He argues that a disjunctive reading would create an anomaly in that the next paragraph of the statute, involving personal injuries to the affected driver, clearly creates a conjunctive requirement: notify law enforcement and the other affected party. The two requirements address distinct purposes – law enforcement and civil damages. He concludes that the most harmonious reading of the newer statute is to continue to require multiple reportings.

Senior Justice Koontz, joined by Justice Powell, also agrees with affirming the conviction, but he perceives that the recodified statute is indeed different. He recognizes the presumption of no substantive change, but emphasizes the rest of the sentence: “… unless a contrary intent plainly appears in the recodified statute.” Here, the legislature chose to remove the “and, in addition” clause, leaving a series of ors in the list. And in reading any enactment, the place to start is “the language employed in the statute.” In his view, the most natural reading of “A, B, or C” is that a driver satisfies the statute if he notifies anyone on the list.

This concurrence turns to the practical world, observing that many collisions resulting in property damage don’t require the intervention of a police officer. The parties exchange information and go on about their business; that happens many times every day. The conjunctive reading would require a police report every time a driver dings a fender, with no injures to anyone. Surely the police don’t want to be dragged into every such minor civil matter. The legislature, he believes, must have been aware of that when it removed the unmistakable conjunctive language in 1989.

Now let’s jump to today’s opinion of the court, which Justice Kelsey authors. I’ll summarize his conclusion in this way: This is a nice intellectual discussion, but beyond question, Butcher didn’t notify anyone. So why do we have to address this distinction at all? He insists that the best approach to this and any other appeal is to decide it on the best and narrowest grounds possible. In his view, the narrowest ground here is on the facts: Whether you have to notify one person or multiple people, Butcher struck out. That makes the conjunctive/disjunctive debate moot; he didn’t meet either one.

I mentioned a fourth opinion. Justice Mims writes a solo concurrence, noting his agreement with Justice McCullough’s conjunctive interpretation. But he also has a unique perspective on the court: He’s the only former legislator among the justices. He’s been through the sausage-making process, and realizes that the common presumption, that the legislature chooses with care the words it employs, is a polite fiction. In short legislative sessions, Delegates and Senators don’t have time to study minute differences in phrasing. The 1989 crop of legislators likely didn’t pay much if any attention to this peculiar statutory change in the very large bill to recodify an entire title.

He also perceives, unlike Justice Kelsey in the opinion of the court, that while this question may be technically unnecessary to decide, it’s vitally important to do so, to clarify what the law truly requires. He ends with a plea: For God’s sake, General Assembly, fix this statute! (No, that’s not an actual quote. Give me some literary license.)

For now, there’s no majority opinion on what the law is. We have only two votes for the conjunctive, two votes for the disjunctive, and three votes for “it doesn’t matter.” That makes this a plurality opinion, and thus not binding authority for any principle other than this: If you don’t give your information to anybody, you’re guilty.

Here’s a quick pointer on what this issue means, as Justice Mims points out in a section emphasizing how urgent he perceives the problem to be. Let’s suppose that you’re involved in a low-speed collision. You and the other driver get out, ascertain that no one is injured, and exchange identity and insurance information. The at-fault driver – either you or the Bad Guy – offers a sheepish handshake along with an apology; the other driver offers a friendly word of reassurance that everything will be all right. You and the other driver then drive away with a little extra newly inspired caution, relieved that you’re both safe.

If the requirement really is conjunctive, you’ve just become a criminal. And if the total property damage in the collision is more than $1,000 – an easy threshold in this day of $80,000 cars with expensive polymer bumpers – then you and the other driver have each committed a felony. A felony!

Going forward, you know what you have to do now.

ANALYSIS OF FEBRUARY 13, 2020 SUPREME COURT OPINIONS

(Posted February 13, 2020) The Supreme Court of Virginia hands down two published opinions this morning.

Medical malpractice

Tahboub v. Thiagarajah is a wrongful-death action filed by the personal representative of an obstetrical patient. The patient had experienced complications in an earlier pregnancy. Her doctor placed a suture in her cervix and left it there after a Caesarean delivery.

When she became pregnant again two years later, the doctor couldn’t find the suture in an ultrasound, so he placed another one there. A week and a half later, the patient called and reported pain and a fever, for which the doctor prescribed ibuprofen and a hypertensive drug. He didn’t direct the patient to come in for an examination.

Four days later, the patient again called and reached another doctor, who was on call for the first one. She told him of continued pain and fever, but he again prescribed only the same two drugs plus acetaminophen. When she called again later that day, he directed her to go to a hospital.

When she arrived, the nursing staff found that she had significant symptoms. A nurse called the first doctor and described the patient’s condition, but he didn’t go to the hospital to meet her and didn’t give the nurse any instructions. The patient’s condition dramatically worsened an hour later. The doctor eventually came to the hospital to find a patient experiencing what today’s opinion calls multiple organ dysfunction.

Doctors immediately performed a C-section delivery, but the strain was too much for the mother; she suffered major bleeding and died five days later. Her personal representative sued the original doctor and the on-call doctor, claiming that a timely examination (instead of telephone conversations) would have revealed the danger and saved the patient’s life.

At trial, the doctors moved to strike the plaintiff’s evidence, claiming that that evidence didn’t establish causation. The trial judge agreed and dismissed the lawsuit.

Today, the Supreme Court unanimously reverses and sends the case back for trial. In deciding a motion to strike, trial courts “must rule based on the presumption that the jury will believe all the evidence that the plaintiff adduced.” Here, plaintiffs’ experts testified that the standard of care required the original doctor to see the patient in-person upon her report, ten days after insertion of the suture, that she experienced pain and a fever. That consultation, they opined, would have saved her life. They also testified that the on-call doctor should have had the patient come in immediately when she reported continued problems four days later. That, too, probably would have saved her.

That’s enough to get to a jury, the court rules today. While defense evidence might impeach the experts, and might convince the jury that the patient’s telephone report was too vague, those issues are for the jury to decide.

Criminal law

The court today takes up a question of first impression: Can felony hit-and-run serve as a predicate offense for felony murder? The case is Flanders v. Commonwealth, and originates right here in Virginia Beach.

In the predawn hours one September day in 2014, a utility crew halted work as a pedestrian passed through the work zone. He likely waved a greeting to them and walked on. A few minutes later, a Dodge Durango SUV approached the work crew abruptly. The driver asked the startled crew to call 911, explaining that it looked like someone had been run over behind a nearby school. She added that the person was bleeding to death, then sped away quickly, leaving the crew and the injured man behind.

A supervisor drove in the direction she had indicated and indeed found a man, the same pedestrian he had seen moments before, lying gravely injured near visible tire tracks. The man said he had been hit. He later identified himself to an ambulance crew when it arrived, but medical treatment was unavailing; he died a few hours later of his injuries.

Police discovered the victim’s personal effects, including a cell phone. They were able to access his call log, and found a short phone call, an hour before the incident, with a woman named Flanders. As it turns out, Ms. Flanders drives a Durango. Investigators spoke with her and learned that she knew the victim; they had been friends for years and had once lived together. But she insisted she had nothing to do with the incident; she said she had last seen him a few days earlier.

In these days of DNA analysis, it isn’t so easy to evade the law; forensic analysis of Flanders’s Durango showed the victim’s blood on the front bumper. A grand jury indicted her for felony hit-and-run and felony murder.

At trial, Flanders moved to dismiss the latter charge, arguing that the hit-and-run charge wasn’t a sufficient foundation. The learned judge didn’t bite, finding Flanders guilty of both charges. In announcing his ruling, he offered a nod to the defense argument, self-deprecatingly forecasting that the defense offered “a very interesting legal conundrum that minds wiser than mine will have to sort out …”

As of today, ten wise minds – three in the Court of Appeals and seven in the Supreme Court – have considered the matter, and all ten have concluded that the humble trial judge correctly solved this conundrum. The Supreme Court analyzes generations of caselaw to conclude, first, that felony hit-and-run can serve as the predicate offense for felony murder, and second, that the evidence here showed that the death was within the res gestae of the hit-and-run. In the latter analysis, the court utilizes the “time, place, and causal connection” test to rule that there was a real nexus between the hit-and-run and the death. The court accordingly affirms the convictions.

ANALYSIS OF FEBRUARY 6, 2020 SUPREME COURT OPINION

(Posted February 6, 2020) Today is noteworthy for three reasons. It’s the exact midpoint of winter, meaning that starting tomorrow, we’re closer to the first day of spring than the last day of autumn; it’s Babe Ruth’s birthday, for those baseball fans among us; and it’s opinion day in the Supreme Court. Today the justices hand down one short opinion in a criminal appeal, Taylor v. Commonwealth, involving a prosecution for identity theft.

The facts are simple: Taylor was convicted of breaking into an apartment and stealing various things including a checkbook. Shortly after the theft, she appeared in a bank with a check made out to herself and sought to cash it. A teller thought the handwriting was suspicious, so she called the account owner. By the sheerest coincidence, local police were at the owner’s home, investigating the break-in. “Here, talk to the nice officer,” the owner told the teller.

Something convinced Taylor that remaining in the bank wasn’t in her long-term interest; she bolted. But she had already given the teller her own identification — what, you expected her to be a rocket scientist? — so it was an easy matter for the police to catch her.

A grand jury indicted Taylor for plenty of offenses, including breaking and entering, grand larceny, forgery, attempted uttering, and attempted false pretenses. The prosecutor also secured an indictment for attempted identity theft. At first blush, that charge doesn’t seem to fit; Taylor never attempted to convince anyone that she was the account owner; just that she had a check from that owner. That’s what the forgery, grand larceny, and false pretenses charges were for.

But the circuit court read the identity-theft statute differently and refused to dismiss that count. It convicted Taylor of all the listed charges after a bench trial. The Court of Appeals affirmed, but the Supreme Court agreed to take a look at the identity-theft conviction.

Today, in a unanimous opinion written by Senior Justice Millette, the justices affirm. The court finds no ambiguity in the statute, which proscribes using another person’s identifying information to obtain money. It gives several examples of identifying information, such as name and bank-account number, plus several other data points. Taylor argued that she didn’t use the victim’s identity; she made the check out to herself and gave the teller her own driver’s license. That is, she never held herself out as someone else.

The Supreme Court reads the statute more expansively. There was, after all, identifying information about the victim printed on the check: her name and bank account number. To cash the check, the bank would have to use, at a minimum, the account number to know which account to debit when cashing the check. Because Taylor unambiguously used a check containing that information, her conduct fits within the statute.

In a closing paragraph, today’s opinion notes that perhaps this isn’t the precise conduct that the statute was intended to reach. If that’s the case, it’s up to the General Assembly to modify it; courts can’t judicially amend statutes even if they think the legislature meant to do something else.

ANALYSIS OF JANUARY 23, 2020 SUPREME COURT OPINION

(Posted January 23, 2020) While today’s published opinion in Portsmouth 2175 Elmhurst, LLC v. City of Portsmouth is about real-estate taxes, the second issue decided today will be of interest to lawyers who don’t handle tax challenges. That issue is contingency fees. Let’s take a look.

For many years, a local meat-packing company used a large building on Elmhurst Lane in Portsmouth to make hot dogs. The company shut down the plant in 2012. Evaluating the structure against modern manufacturing processes, the company decided it could no longer utilize the building, so it listed the property for sale.

The offering price of $1.9 million, for 12 ½ acres, must have seemed a bargain; the City’s tax assessment was over $6 million. But the best offer the seller got was $875,000. The company signed on the dotted line in 2013 and probably felt relieved to be rid of a non-income-producing asset.

The buyer decided to strip certain fixtures from the building, by then in disrepair, and sell it for market price. It offered the land, with the building still there, for $1.1 million, but eventually sold it in 2015 for about half that asking price.

Meanwhile, the buyer felt that three years’ tax assessments for an obsolete and vacant building were too high. It applied for tax relief for the years 2013 through 2015. The City reduced the assessment from $6 million to about $3.8 million for the last tax year only. The buyer paid the taxes under protest and sued for a correction.

The substance of today’s opinion is a complex recitation of competing expert opinions on fair market value. The buyer offered testimony from an appraiser whose work I know and respect; he opined that FMV for all three years was $950,000. The City responded with the tax assessor, who described his mass appraisal of this site along with others. Each party called one other expert to bolster its case. The trial court ruled that the buyer hadn’t overcome the appraisal’s presumption of correctness.

The court also ruled on the attorney’s-fee petition filed by the lawyer hired by the City. That lawyer agreed to a 20% contingency fee, as specified in the tax-collection statute. The lawyer sought about $36,000. He didn’t keep time records but outlined for the judge the nature of the duties he performed. The judge cut the fee award to $24,000.

The buyer appealed both the principal judgment and the fee award. Today, the Supreme Court affirms the judgment on the tax-relief petition. After outlining the taxpayer’s burden in such challenges, the court rules that, while the buyer certainly made out a prima facie case that the parcel was taxed above its fair-market value, it didn’t establish that the City used an impermissible method of mass appraisal.

This is the part of the opinion that will primarily interest lawyers who handle litigation like this, and not many others. That being said, I found one passage particularly interesting. One of the taxpayer’s experts testified, and the court admitted her expert report into evidence. On appeal, the buyer points to certain details in the written report that weren’t in her oral testimony. It argued that she shouldn’t have had to repeat all those details orally, since they were undeniably in evidence.

Addressing this, Justice McCullough’s opinion for a unanimous court contains this wise counsel for trial lawyers:

That may be correct in the abstract, but practices, procedures, rules, and standards in this technical area are generally beyond the expertise of judges. Submitting a written report, without additional clarifying testimony from the expert at the trial, may not be sufficient to persuade the factfinder that the assessment is deficient under the second part of the two-part test specified in Code § 58.1-3984(B). In other words, asserting in relatively conclusory fashion violations of the practices, procedures, rules and standards as prescribed by nationally recognized professional appraisal organizations is not the same thing as proving such violations.

That’s solid advice in many contexts. Your case at trial shouldn’t be a matter of handing an unassembled jigsaw puzzle to the finder of fact, and expecting that finder to put everything together. Assembling the pieces is your job.

On to the fees issue. Today’s opinion notes that the court has previously set out a non-exclusive list of seven items for a court to consider when shifting fees under a statute or contract. The buyer argued that there was no evidence at trial on six of those, but the Supreme Court finds that a court need not consider all of them, particularly where, as here, there’s a contingency fee. That’s because in such an arrangement, the lawyer is assuming part of the risk of the litigation.

In evaluating this retainer, the court notes that the amount awarded is below the statutory 20%, so it’s presumptively reasonable. And the absence of time-sheet records “is hardly surprising under a contingency fee arrangement.” The justices find no abuse of discretion in the fee award.

I believe that other lawyers seeking fees from an adversary will look with interest on this last passage. In a footnote, the court does observe that time records can be useful to show reasonableness, or in a quantum meruit situation. But they aren’t essential.

One last point: The secondary buyer, the one who took the property off this taxpayer’s hands in 2015, razed the obsolete building and built a brand-new structure for its intermodal transportation business. The City, hard-strapped for revenue, is no doubt delighted by the new facility – especially for the tax revenue it brings.

SCV RULES ON CAPITOL SQUARE GUN BAN

(Posted January 17, 2020) I don’t know if the Eastern District has pondered securing protection for the term Rocket Docket®, but today the Virginia courts are showing that they belong in the conversation, too. In litigation that has raced through the court system, the Supreme Court of Virginia today issues a ruling in a lawsuit that didn’t exist three days ago. The case is Gun Owners of America, Inc. v. Northam, and addresses the Governor’s emergency temporary ban on firearms in Capitol Square.

If you’ve followed the news this week, you know that next Monday is the planned date for a Capitol Square rally by the Virginia Citizens Defense League. They call it Lobby Day, when members come to Richmond to urge legislators to protect Second Amendment rights. To the best of my knowledge, all previous such rallies have been peaceful.

This year, the Governor has received word that trouble might be on Monday’s agenda. Citing what he called credible reports that alarmed him – word that thousands of persons, some from outside the state, were coming to Richmond on Monday, and not all of them had a peaceful demonstration in mind. This Wednesday, January 15, he decided to act to stem what he feared would become a tragedy.

That day, the Governor issued an executive order that bans weapons from Capitol Square for a period from 5:00 p.m. today, January 17, to next Tuesday, the day after the planned rally. In response, two organizations and three individuals filed suit the next day, January 16 – note that that’s yesterday – to enjoin the order as unconstitutional and in violation of Virginia statutory law.

The circuit court didn’t sit on the matter; a judge convened a hearing on the request for a temporary injunction at 1:30 p.m. the same day. In truth, this was the full trial; once next Tuesday dawns, the whole matter will be moot. The petitioners squared off against Solicitor General Toby Heytens, and the two sides presented their cases and their arguments.

Realizing that quick action was essential, the circuit court judge issued an opinion and order around 4:30 p.m. yesterday, denying the requested injunction. How’s that for speed? Filing, hearing, and decision all in the space of one business day.

You think that’s fast? We’re just getting started. The petitioners, in what I see as a herculean briefing effort, filed an emergency petition for review under Code §8.01-626, and got it to the Supreme Court Clerk while the calendar still showed January 16. That is, the petitioners appealed less than 15 hours after initially filing suit. They served the Solicitor by e-mail. I’ve read the petition; it’s quite well written.

Not to be outdone, the Solicitor filed a brief in opposition this morning. I don’t know if he and his staff pulled an all-nighter, or if they had some previous research handy. But they filed a forceful, well-researched response perhaps ten or twelve hours after getting the petition for review. The brief is 22 pages, beyond the 15-page limit in Rule 5:17A; the Solicitor simultaneously moved for leave to exceed the page limits, pointing out that he hadn’t had time to file anything at all in the circuit court.

We’re not done with the briefing magic: The petitioners managed to file a reply brief, either late this morning or early this afternoon. It’s eleven pages long and replies directly to points made in the brief in opposition. They prepared that brief in perhaps a couple of hours.

Folks, when it comes to briefwriting, I can crank ‘em out quickly; but this was greased lightning work on both sides. I’ve read all three briefs, and they’re quite good; well written and chock full of relevant case citations. I won’t close this paragraph without expressing my appellate admiration for Toby and his staff, plus the three lawyers for the petitioners: David Browne of Richmond and Robert and William Olson of Winchester.

Perhaps you’ve noticed that today is a state-government holiday. The courts are closed, and you can’t get into the building. But with a time-critical issue like this, the parties managed to file briefs and get them into the hands of the SCV Clerk, Doug Robelen. How does one do that when the doors are locked? The best answer I can give you is advance communication. I posted an essay in late 2018 on how to handle emergency appeals, and one bit of advice there is to let the SCV Clerk know in advance that you might have an emergency filing that can’t wait until the next business day. I haven’t spoken with the petitioners’ lawyers, but I’d wager three dollars and eighty-five cents, American money, that they did just that. This procedure allows the Clerk to establish a mechanism for a form of e-filing.

It also enables the Clerk to notify the chief justice, who can assign three justices – or, if he chooses, the entire Supreme Court – to receive the pleadings electronically to permit a quick evaluation, maybe a phone discussion, and a vote. Rule 5:17A(f) allows a single justice to consider and decide the petition, but in practice the court always refers these to at least a three-justice panel.

This evening, six of the seven justices hand down a two-page order that refuses the petition, for a painfully familiar reason. Petitions for review have to be accompanied by the entire trial-court record. This came down Ninth Street so fast that the petitioners didn’t have time to prepare a full record. That means that the justices had no information about any evidence that may have been taken; no idea who said what. The court is left only with “pleadings accompanied by cursory attachments.” The court thus resolves the appeal without confronting the truly difficult issues involved. The gun ban remains in place.

ANALYSIS OF JANUARY 16, 2020 SUPREME COURT OPINION

(Posted January 16, 2020) We have our first published opinion of the New Year from the Supreme Court of Virginia. Today, in Cromartie v. Billings, the justices take up civil rights claims in a false-arrest lawsuit.

Our story begins simply enough: A Petersburg police officer, Billings, stopped a car for speeding. The driver, Cromartie, was a small 56-year-old woman with numerous health issues. When she stopped her car, she started to get out, but Officer Billings told her to get back inside. She complied. The officer, despite having seen her size, decided to wait for a backup officer before approaching her car. (In fairness to him, this might be department policy; the opinion doesn’t address this and I have no way of knowing.)

When the second officer arrived, Officer Billings approached Cromartie’s car. He saw her sitting in the driver’s seat, talking on a cell phone. The car’s engine was off. He knocked on her window. Cromartie looked up from her phone call and said “What” through the window. She then went back to her phone conversation as Officer Billings said, “I need you to roll down your window.” She gave no indication of having heard him, so after a few seconds, he knocked again.

Three seconds later, this minor encounter went south in a hurry. Officer Billings opened the door, grabbed Cromartie by the arm, and yanked her out of the car. He forced her face-down onto the pavement, placing his weight on her back – and inflicting several injuries in the process. He and his backup officer handcuffed her, stood her up, and placed leg shackles on her. They then sat her on the curb near her car.

It gets worse. Officer Billings, evidently knowing little about search-and-seizure law, went twice into Cromartie’s car and started searching her purse. Cromartie asked why he was doing so. He answered that she was under arrest and he needed her identification. It evidently did not occur to him to ask her for her name and license.

An ambulance crew soon arrived, and an emergency medical technician asked Cromartie where her identification was. She gave the EMT the requested information and her correct name. This was the first time anyone had asked for it.

In his second search of Cromartie’s car, Officer Billings found a small metal container. Today’s opinion states that Officer Billings believed that it might contain residue of marijuana or cocaine. That prompted a trip to the magistrate’s office. There, Officer Billings gave the magistrate a sanitized version of his actions, and obtained warrants charging Cromartie with possession of marijuana and obstruction of justice.

How do we know that the officer’s sanitized version wasn’t true? Because of the wonders of modern technology: a body camera. Officer Billings knew that he was recording the entire incident, yet he still chose to spin the events in his favor. But I digress.

At the ensuing criminal trial, Cromartie’s lawyer moved to suppress the fruits of the search of Cromartie’s purse and car. The prosecutor chose not to oppose that motion, so the court dismissed the possession and obstruction charges and tried Cromartie for speeding.

This litigation ensued. Cromartie sued Officer Billings, asserting numerous claims including assault, battery, and malicious prosecution. She also stated §1983 claims for unreasonable force and false arrest, plus a state-law statutory claim for an unlawful search. At a jury trial, the judge struck the last three claims, based on immunity. The jury then decided the remaining common-law claims in Cromartie’s favor, awarding her damages of about $23,000.

Cromartie appealed the dismissed counts. Today, the Supreme Court unanimously reverses – but that’s only half the story.

The court first takes up the unlawful-search claim. Virginia has a statute that permits a civil action for such a search, because mere exclusion of the evidence – assuming the search turns up any evidence – isn’t likely to fully compensate someone whose right have been violated. The trial court held that sovereign immunity shielded the officer from liability, but today the justices rule that his actions constituted wanton and willful misconduct, so the immunity won’t help him.

Next, the court discusses the §1983 claims. Those are subject to qualified-immunity analysis, and again, the trial court had ruled that that doctrine protected Officer Billings from liability. But that doctrine, too, has important limits. It applies unless a reasonable officer wouldn’t have been aware that he was violating clearly established rights.

The original basis of the traffic stop, speeding, isn’t a crime but a traffic offense, so there was no cause to arrest her or search her car and purse for that. As the chief justice notes in today’s opinion, a search incident to a lawful arrest has to be for evidence of the crime, and one would not expect to find evidence of speeding inside a lady’s purse. As for the second, merely declining to roll down one’s window after having been asked once isn’t obstruction of justice under clear precedent.

The Supreme Court rules today that no immunity protected the officer from liability, so it sends these three claims back for trial. But when addressing the scope of the retrial, the justices note that the jury has already resolved the underlying facts, in Cromartie’s favor. Officer Billings didn’t appeal that judgment, so the jury’s findings are the law of the case. That means that liability is established, so the retrial will be on the issue of damages only.

This matters a great deal, because one of the remedies for violation of civil rights is §1988 attorneys’ fees. Billings is going to have to pay Cromartie’s lawyer, in addition to any other damages the second jury may award.

I’ll offer three closing notes about this remarkable ruling. First, the opinion describes Officer Billings as “a former police officer.” I have no idea whether this incident led to his former-officer status; the City may have fired him or he may have resigned or retired for unrelated reasons. But if he was terminated, the City may not be indemnifying him for the damages and fees that Cromartie is entitled to. He was represented in this appeal by a lawyer in private practice, not a City Attorney, though that might be a nod to specialized legal expertise.

Second, the closing lines of today’s opinion state that while retrial will focus on damages only, “we note that evidence ordinarily presented for liability purposes may also be relevant to the question of compensatory and punitive damages, an award of costs, interest, attorneys’ fees, and such other damages as Cromartie sought in her complaint.” That means that the second jury will get to hear the whole story; not just a dry recitation of Cromartie’s injuries and medical costs.

Third, if this case were in the federal system, the officer would likely serve a Rule 68 offer of judgment on Cromartie, to try to limit his liability. But we’re in state court, and Virginia doesn’t have a Rule 68 equivalent. There’s no way for Billings to make this case go away now, except to pay what Cromartie demands. I suppose Chapter 7 is an option, though I don’t know if intentional-act liability like this can be discharged in bankruptcy.

In my previous gig in Virginia Beach City Hall, I defended numerous §1983 suits. We had an excellent set of risk managers, and I had a terrific boss who understood which cases we could try and which ones we had to settle. Thankfully, we almost never had to try a case with as much merit as this one has.

ANALYSIS OF JANUARY 2, 2020 SUPREME COURT ORDER

(Posted January 2, 2020) Already? The year isn’t even 48 hours old and we’ve got a decision from The Robes. This is an unpublished order, something I don’t usually analyze; but in my view, this decision is important and ground-breaking, and should be published. The least I can do is spread the word through this website.

Flint Hill School v. McIntosh is a declaratory-judgment action brought by the mother of a student at the school in Fairfax. When the girl’s parents enrolled her in the school, they received a contract and were told to sign. Sign they did, even though the document contained what, upon sober reflection, might be an unwise term from their perspective: “We (I) agree to pay all attorneys’ fees and costs incurred by Flint Hill School in any action arising out of or relating to this Enrollment Contract.”

In case the problem isn’t clear, this broad language doesn’t say that the costs must be reasonable; in any future litigation, the school could hire a team of Philadelphia lawyers, each billing four figures an hour. More important, the parents have to pay no matter who sues, and regardless of the outcome.

This is probably best described as the Litigation Disincentive Clause – it’s plainly designed to thwart any effort to sue the school for any reason, however meritorious. The parents developed a reason: They believed that they had a claim against the school based on unlawful conduct by a school employee. But faced with that awful clause, they feared ruinous consequences even in a winning lawsuit.

The solution they settled upon was for the mother to file a DJ action, seeking a declaration that the clause was unenforceable. The school responded in three ways: This isn’t a case for declaratory relief; the suit sought an advisory opinion; and the mother couldn’t sue without the father’s joining. The school wisely waived the right to seek attorneys’ fees and costs for the DJ action. The circuit court sided with the mother, denying all of the school’s defenses and ruling that the provision was unconscionable and against public policy.

In today’s order, the justices unanimously agree, and affirm. They first rule that this controversy is perfectly suited to declaratory action, because the mother wanted to know before filing suit what her rights were as they relate to fees liability. The court cites prior DJ holdings interpreting insurance contracts, and finds that this case is much like those. It also rules that the circuit court’s decision was an actual adjudication of the parties’ rights, and not advisory at all.

Second, the Supreme Court holds that the absence of the father doesn’t defeat the case. Each parent had the right to sue the school for the alleged conduct, and nothing about the parents’ status as joint obligors mandated that they sue together or not at all. Besides, if the father were a necessary party, the correct approach is to add him, not to dismiss the action.

Finally, the justices rule that the provision is indeed unconscionable. Today’s order cites a previous decision defining an unconscionable term as “one that no man in his senses and not under a delusion would make, on the one hand, and as no fair man would accept, on the other.” It notes that contracts of adhesion – the take-it-or-leave-it scourge of consumers – draw particular scrutiny in unconscionability analysis, and this was that kind of deal.

Ultimately, the justices agree that no sensible party would agree to become liable for unlimited fees and costs even if she wins the litigation. Because this suffices to affirm, the court doesn’t take up the circuit court’s separate finding about public policy.

The single factor that stands out most to me is this decision’s unpublished status. This case cries out for a published opinion; the issues are sufficiently novel that the court should provide published guidance to bench and bar in future suits.

So why does the court choose to mark a given decision as unpublished? I can’t say for sure, because I am not and have never been a court insider. I sense that some decisions are unpublished because the circumstances are so quirky that they aren’t likely to reoccur, so publication wouldn’t have much value as precedent. Indeed, one sentence of today’s order hints at a factor like that: “This case is highly unusual because a specific and anomalous clause of the contract, if applied as written, would have the practical effect of foreclosing litigation on the contract itself.” But the way the court analyzes the unconscionability issue deserves wide distribution, in my opinion.

I’ve long suspected that in the past, previous editions of the court relegated some decisions to unpubs because they wanted them to be invisible for some reason. Before January 2014, those orders were truly unpublished; they didn’t appear online or anywhere but in the court’s order book. But for the last six years, the court has posted them on a separate page on its website. They aren’t digested the way published opinions are, and searching them on the court’s site is laborious. But legal-research resources such as Lexis now report them, and for the pre-2014 unpubs, you could get reports on this website.

If one of the litigants files a motion to publish this one, I earnestly hope the court grants that motion. This decision deserves a spot in Virginia Reports, to benefit all of us.

ANALYSIS OF DECEMBER 19, 2019 SUPREME COURT OPINION

(Posted December 19, 2019) The Supreme Court of Virginia hands down one published opinion today, in an insurance-coverage appeal. The case is Corriveau v. State Farm Mut. Automobile Ins. Co.

This is a declaratory-judgment action in which a policy beneficiary sought a declaration of coverage on an uninsured motorist policy. The case arose from an assault on a school bus designed to transport special-needs children. The bus was equipped with harnesses to restrain the children and protect them during transport.

The victim here is a ten-year-old autistic boy who didn’t speak. The suit alleged that the bus driver and a bus aide buckled two children, including the claimant here, into harnesses and then began to beat and choke one of them. In the process, the two assailants struck the claimant more than once, injuring him.

The claimant, suing through his mother, sought a declaration that his family’s UM policy covered his injuries. (The suit implicated the UM policy presumably because the local school division, which owned the bus, is immune.) The insurer defended on the grounds that the policy only covered losses arising out of the “ownership, maintenance, or use” of the uninsured vehicle, and there was no nexus between the assault and the use of the bus for transportation purposes.

On cross motions for summary judgment, the circuit court agreed with the insurer and dismissed the case. A panel of the Supreme Court agreed earlier this year to review that judgment.

Today, in a short, unanimous opinion, the justices affirm. While the court technically reviews the case as a mixed question of law and fact, there were no disputed facts here for summary-judgment purposes, so this was in essence a demurrer ruling. That means that the justices reviewed the only appealed issue de novo.

The court first turns to caselaw requiring “a causal connection between the accident and the use of the vehicle as a vehicle.” It further notes that if one uses the vehicle “in a manner foreign to its designed purpose,” then the policy doesn’t apply. (This telegraphs that the court is going to affirm.) One cited case described the use of a car door as a shield during a gun battle.

Today’s opinion acknowledges that the bus was the situs of the assault, but holds that assault is “a use wholly separate from the intended use as a means of transportation.” The court concludes that the parties to the insurance contract never intended to include an in-vehicle assault to be within the scope of coverage.

Responding to this contention, the claimant pointed to a 1990 SCV decision involving the discharge of a rifle as the owner removed it from a vehicle, causing injury to another person. There, the court had held that a sufficient nexus existed between the use and the injury, “in part because the driver had left his vehicle door open while placing an object in the back of the vehicle, and thus ‘had not completed his use of the Jeep when the rifle discharged.’” The claimant also urged that the harnesses in the bus restrained the victims, making them helpless, another factor that should count for something. All of that seems to counsel in favor of a finding of coverage.

Ah, but 1990 was another time and another Supreme Court of Virginia. This one is far more conservative and, as its body of decisions shows, far more likely to rule in favor of insurers. Faced with this inconvenient 1990 precedent, the court today simply overrules it, citing a distinction that the 1990 court had not embraced. That results in not one but two victories today for the insurance industry: They win this appeal, and they get a troublesome precedent erased.

But what about stare decisis? Isn’t our body of caselaw supposed to provide stability and predictability? Today’s opinion acknowledges this concept, as it must; but in my view, it then gives this doctrine the back of its hand, answering this problem in half a paragraph stating only that stare decisis isn’t immutable. In short, I perceive that the court reverses the 1990 decision because it wants to.

Stare decisis – more specifically, the failure to adhere to it – has been in the news across the Potomac this year. A change in SCOTUS personnel has led the high Court to “revise” prior holdings with a comparably thin acknowledgement of the value of adhering to precedent. This has led dissenters to muse openly, in published opinions – see Justice Breyer’s dissent in Franchise Tax Board v. Hyatt, decided in late May, for an example – what other precedent a newly constituted majority will choose to reverse next. That, of course, is a thinly veiled reference to Roe v. Wade, a doctrine that may be in danger with the appointments of Justices Gorsuch and Kavanaugh.

We don’t have a Roe v. Wade at stake here in Virginia. But as I’ve described before, the current Supreme Court of Virginia has embarked on a steady rightward march in its jurisprudence, and this decision is the latest milestone in that trek. Virginia is a terrific place to run a business, and to operate an insurance company. It is a terrible place to get injured, at least in terms of the victim’s ability to obtain redress in the courts. That won’t change in the near future, regardless of who controls the legislature across Ninth Street.

ANALYSIS OF DECEMBER 12, 2019 SUPREME COURT OPINIONS

(Posted December 12, 2019) It never fails: Whenever I’m out of the office on a Thursday, it starts raining published opinions from Ninth and Franklin. Today I was in the Fourth Circuit to watch en banc oral arguments in DC v. Trump and In re Trump, two appeals involving challenges based on the Emoluments Clauses. When I got back to my car and turned on my cell phone, I learned that the Supreme Court of Virginia – no doubt metaphorically chuckling at me the whole time – handed down eight published decisions today.

Since I’m getting a late start, I’ll analyze some of today’s decisions now and compete the project tomorrow. The dominant theme of today’s batch is criminal law: Six of the eight decisions come in criminal appeals.

Local governments

Local governments are immune from tort liability for negligence in the performance of governmental functions, but they may be liable when the right of action stems from the exercise of proprietary functions. The Supreme Court explores the boundary between these two today in Massenburg v. City of Petersburg.

This is a tragic wrongful-death case involving a house fire. Firefighters responded to the scene but found the nearest fire hydrant inoperable. They located another one 1,000 feet away, but by the time they strung that hose and got to the burning house, the occupant had died from smoke inhalation.

The decedent’s personal rep sued, claiming that a systemic deficiency in the water supply to fire hydrants. The City filed a demurrer and a special plea, admitting the factual allegations but claiming that fire suppression was a governmental function to which absolute immunity applies. Because there were no factual disputes, the trial judge undertook to rule on the special plea over the plaintiff’s objection.

A note about that objection: If a party demands trial by jury, normally he gets a jury trial on a special plea. That’s the Bethel Investment v. City of Hampton ruling from 2006. But there’s a caveat, in that the right to a jury trial applies only where the facts are in dispute. The City admitted all of the facts, so there’s nothing for the jury to do here. Hence the judge correctly took up the matter himself.

The court sustained the plea and dismissed the case. On appeal, the dispositive issue is whether the pleadings here asserted a claim implicating the operation of a fire department (governmental) or the maintenance of a water system (that’s proprietary).

The justices today unanimously find that this claim relates to the operation of a fire department. It cites an old case that rejected immunity for liability related to water-supply issues because, in that case, the water issue was “not directly connected with the extinguishment of fires.” This claim was just that. Moreover, the court adds a cite holding that where governmental and proprietary functions overlap, the governmental function overrides and immunity protects the locality. The court thus affirms the dismissal of the suit.

Criminal law

Murder includes the components of killing another person with malice. A defendant may act with malice when he intends to harm one person but inadvertently kills another, such as when a stray bullet strikes a bystander, through the doctrine of transferred intent. But can a defendant be guilty when the prosecution can’t prove that he was shooting at anyone? That’s the issue in Watson-Scott v. Commonwealth, where the decedent, a mother of three, was admittedly killed by a shot fired by Watson-Scott.

The hypothetical above fits this case well. The decedent was struck by a bullet while sitting in a car with her mother and her children. The defendant had been seen walking a bicycle along the same street with a companion. When a witness looked up at the sound of shots, he saw only the defendant; the companion was nowhere to be seen. The prosecution argued at trial that the judge, as factfinder, could infer that he was firing the gun at his erstwhile companion; the defense insisted that without proof of another person, there could be no malice and hence no murder.

The trial judge agreed with the reasonable-inference argument and convicted the defendant; the Court of Appeals agreed. Today, the Supreme Court affirms on different reasoning. The court cites a line of caselaw that permits a finding of malice not directed toward “any one or more particular persons,” and that malice “may be implied from the deliberate use of a deadly weapon.”

Well, we emphatically have that here, and the justices apply that to rule that this established implied (not transferred) malice, and affirm. The prosecution satisfies the malice component by proving that a defendant intentionally engages in “wrongful conduct likely to cause death or great bodily harm.”

The next decision involves a criminal statute that you don’t see often: felony destruction of property. That statute proscribes destroying the property of another, and makes it a felony if the value of the property is more than $1,000. My best guess as to why this is a relatively rare prosecution is that most folks who do the damage will pay the owner to replace the item, and the owner decides that getting a new item is as easier resolution than prosecuting and taking several trips to court to testify.

Today we get one of the exceptions. In Spratley v. Commonwealth, the property was a grocery scale in an upscale grocery store. Security video showed Spratley in a lively discussion – we don’t know if it was an argument because there’s no audio – with another person. In the course of that encounter, Spratley knocked over the scale, which broke into a gazillion pieces.

The grocer tried to order a replacement from its customary supplier, but the supplier replied that there were no scales of that model available. The company accordingly bought a different, though very similar, scale made by a different company. The purchase price was a bit over $4,000, and that’s what the prosecution claimed was the value of the broken scale.

In court, Spratley argued that this evidence was insufficient to prove the value of what she broke. It was a different model and it was brand-new, not used as the old one was. The trial court looked at the statute and found this passage:

The amount of loss caused by the destruction, defacing, damage, or removal of such property, memorial or monument may be established by proof of the fair market cost of repair or fair market replacement value.

Did you catch the or in there? The court reasoned that the “fair market replacement value” was the cost to buy a substitute. Since the court found the replacement scale to be functionally equivalent to the old one, it convicted Spratley of the felony. The Court of Appeals offered he no succor.

Today the justices affirm, holding that this quoted passage distinguishes this statute from larceny cases, where the value proved must account for depreciation. In destruction-of-property cases, proving the cost of the replacement item is sufficient.

In a short published order, the court today resolves an unaddressed jury-instruction question involving alternative theories. The case is Davison v. Commonwealth. A jury convicted Davison of several crimes including forcible sodomy and aggravated sexual battery. Over Davison’s objection, the trial court gave a combined instruction that covered three alternate ways in which Davison may have overcome the victim’s will: by force, by her mental incapacity, or by her physical helplessness. The jury convicted and the CAV rejected the challenge to unitary instruction. Davison appealed to the Supreme Court, arguing that the instruction could produce a non-unanimous verdict if some jurors found one component and other jurors found a different one.

Today’s order notes that this issue has evaded a definitive ruling. In at least one prior case, the CAV assumed without deciding that the instruction was erroneous but found the error to be harmless; the justices, on further appeal, found that the argument hadn’t been preserved. Today the Supreme Court ends speculation by embracing the CAV’s holding here. In alternative-cause situations like this, where the evidence is sufficient to establish each of the three alternatives, a unitary instruction like this is appropriate.

In yet another published order, Yoder v. Commonwealth, the court takes up yet another case of a defendant who regards the revocation of her driving privileges to be a suggestion instead of a mandate. Yoder was twice convicted of driving after a revocation, once in 2010 and once four years later. On the later of those occasions, she served jail time. When a sheriff’s deputy pulled her for a minor traffic infraction in 2016, she handed over the scarlet letter of a government-issued ID card, not a driver’s license. A quick computer check of her driving record led the deputy to return to her car with a pair of handcuffs.

Despite all this, Yoder complained when the trial court convicted her. She asserted – first in the CAV and then in the SCV – that the evidence was insufficient to prove that she knew her license was suspended. But the abstracts of her convictions showed that she was present in court on both prior occasions, in 2010 and 2014, and that she pleaded guilty and stood there while the judges successively found her guilty. This, the justices hold today, furnished ample support for the conclusion that she knew her licensure status, so the court unanimously affirms her conviction.

Next, in Cilwa v. Commonwealth, the court takes up the question whether a trial court validly imposed an indefinite period of probation. Cilwa found herself on the wrong end of the law in a series of adventures, starting with grand larceny and proceeding to drug offenses. The trial courts treated her with consideration, as I perceive it, offering her sentencing leniency and access to drug-treatment programs. Despite this, she continued to commit crimes and continued to get caught.

In 2009, Cilwa and a prosecutor agreed to extend her previous probation from one year to an indefinite period “in order to complete inpatient substance abuse treatment” and so she could resolve an outstanding felony charge. A year later, a court again imposed indefinite probation, for reasons we can understand.

Several years later, after being arrested yet again, Cilwa challenged the 2009 consent order imposing indefinite probation. She asserted that the court could only modify her probation terms before the original term expired. She also asserted that the deal allowed her to escape supervision by completing her drug-treatment program, and she had a contractual right to be free of that probation.

Justice Kelsey does an excellent job of explaining in detail why both of these arguments are unavailing, so I won’t try to improve on that. Instead, here’s the Reader’s Digest version:

• Assuming the 2009 order came too late to validly extend the probation, Cilwa consented to it, and then didn’t challenge it for many years. Because any claimed error in the order doesn’t implicate subject-matter jurisdiction, any objection to it is waived by that lapse. In other words, the order was at most voidable, not void ab initio.
• No criminal defendant can claim that an agreed period of supervision or parole is a contract. It is, under established caselaw, “a free gift of the Commonwealth” to help him turn his life around.

The court thus affirms the revocation of suspended incarceration.

The final criminal appeal of the day is Watson v. Commonwealth, involving convictions of murder, robbery, and companion firearm counts. A jury convicted Watson of shooting two victims, one of them fatally, outside a night club. The surviving victim identified Watson as the shooter.

Because this eyewitness identification was crucial to the case, Watson hired an expert to testify about the reliability of such testimony. In particular, the expert was hired to explain two key concepts: confidence inflation (where a witness’s confidence in his identification rises based on extrinsic factors) and unconscious transference (where a witness unknowingly “transplants” a known person onto an unknown assailant).

The trial judge considered the admissibility of these expert opinions outside the jury’s presence. After a thorough hearing in which the judge participated actively, querying the expert in addition to questions from counsel, the court ruled that the expert could testify as to other matters about identification, but not these two. As to the first, the court felt that the confidence testimony was a matter of common sense and thus within the jury’s province. As for transference, the witness stated that he wasn’t able to identify any in this case, so the court found that testimony irrelevant.

Before sending the case to the jury, the judge refused a model jury instruction that Watson offered, keyed to eyewitness testimony. See VMJI (Criminal) 2.800 (you’ll need to scroll down). The court felt that other instructions in the case adequately covered the topic. The jury convicted Watson, and the court imposed the jury’s recommended sentence of life plus 58 years in prison.

The Court of Appeals rejected Watson’s appeal in a per curiam order, but a writ panel at the Supreme Court agreed to take a look. Today the court unanimously affirms the convictions, agreeing with the trial court’s reasoning in excluding the expert testimony and in refusing what would have been a redundant instruction. On the latter issue, the court notes that the model instruction permits a court “in its discretion” to give the instruction, nothing requires it where the other instructions adequately address the issue.

If you were keeping score today, you noted that in these decisions, criminal appellants went 0-6. The Supreme Court of Virginia is a particularly tough place to get a criminal conviction reversed.

FOIA

The final published decision of the day – that’s because I read the shorter opinions first, and save the long ones for last – is Transparent GMU v. George Mason University. It evaluates whether a private foundation that exists to support a public university is subject to the Freedom of Information Act.

It’s no secret that George Mason University is a favorite of conservative donors, and maybe even conservative causes. Its notable donors include Charles Koch and his late brother David. An entity named Transparent GMU submitted a FOIA request to the university and its privately owned foundation, seeking records of donations from the Kochs and one other donor.

The university replied that it had no such records, since donations went to the foundation. The foundation responded that, as a private entity, it wasn’t subject to FOIA and had no duty to disclose anything. In the ensuing lawsuit, a circuit court agreed with the respondents and dismissed the case.

Today the Supreme Court unanimously affirms. Justice Powell’s opinion for the court spells out the history of the university and its foundation, noting the separation between the two. The court notes that the foundation is not a GMU entity and, except for a minimal payment to pay student employees, doesn’t receive public funding. The court rejects Transparent GMU’s effort to pierce the university’s corporate veil – assuming the school is a corporation that possesses a veil – because there’s nothing to show that it uses the foundation as an alter ego for improper purposes. Finally, one overlapping official – a university vice president who also sits on the foundation’s board – doesn’t warrant a conclusion that the two entities are actually one.

I’m as big a proponent of open government as the next guy, but I have to agree with the court’s reasoning here. It’s understandably frustrating that donor records for a public school aren’t publicly available, but in my mind there’s no arguing with this arrangement. Today’s opinion notes that the legislature considered a bill in 2017 that would expand the definition of public body to encompass foundations like this, but the bill died in a Senate committee. It is at least conceivable that the new Democratic majority in the legislature could revisit that, in which case today’s ruling would have a short shelf life.

ANALYSIS OF DECEMBER 5, 2019 SUPREME COURT OPINION

(Posted December 5, 2019) The Supreme Court of Virginia today decides Davis v. Davis, involving the question whether a power of attorney granted the attorney-in-fact the power to give away all of the maker’s property. The maker granted to his mother the power to “sell and convey any and all personal property and all real property” that he owned and to “execute and perform all and every act or acts …  to all intents and purposes whatsoever as [her son] might or could do if acting personally ….”

Twelve years later, the son made a will leaving his property to various family members, to a church, and to a family employee who performed some caretaking tasks for him. The mother knew that the will existed, but didn’t know what it provided.

Another eight years later, the son fell ill. The family placed him in a nursing facility. On October 1 of that year, the son married the family employee in what today’s opinion describes as a closed-door ceremony, presumably with no family members present or even aware of the wedding. The mother found out two weeks later.

The son’s condition worsened to the point that he was moved to a hospital. On the 25^th day of his marriage, he became “incapacitated and in jeopardy of dying.” On the 31^st day of his marriage – we’re now up to Halloween – the mother transferred most of her son’s personalty to herself and executed deeds of gift conveying his real estate to her other two children. She didn’t tell her son about these transfers, the value of which exceeded $2 million. The son died 15 days later.

Back to the will: The son’s brother found himself in what may have been an uncomfortable dual position. In addition to being the grantee on a deed conveying real property, he was also the executor of his late brother’s will. He sensibly filed a petition seeking the aid and direction of the court to sort out the legality of his mother’s gifts. The trial court ruled that they were indeed legitimate, considering the expansive language of the power of attorney and the decedent’s history of giving property away during his lifetime.

Except, the Supreme Court rules today, the language wasn’t so expansive and there was no such history. The Uniform Power of Attorney Act requires an express grant of authority to make gifts, and you won’t find that word in the language I quoted above. The mother argued that the phrase sell and convey equated to the power to make gifts, because a gift is a form of conveyance. But interpreting the phrase narrowly, the justices today rule that this only gives the power to convey property for money. Reading the phrase the way the mother urged would convert it into “sell or convey,” and the court declines to edit the document in this way.

As for a history of giving, the court considers the three events of which the trial court received evidence. In the first two, the son had made a 90-year lease of land, for a one-time payment of $1,000, to the son of his late-in-life wife, and allowed that man to use the land as collateral for a loan to enable him to build a barn on it. But that’s not a gift, no matter how low the rental payment was; and besides, the owner got the benefit of a new barn on his land. The tenant also paid real estate taxes on the land for many years. That makes the transaction a contract, not a gift.

Similarly, the trial court heard that the maker had once, many years earlier, given $10,000 to his brother, the executor. The justices today rule that that’s different in character from giving away all of one’s property; and in any event it was just one gift, not a pattern of giving.

The court thus reverses and remands the case for a fuller construction of the will. Today’s opinion fills in at least one gap in our jurisprudence; as the court notes, “There is little Virginia case law interpreting the phrase ‘sell and convey.’” Practitioners who seek to cite this case need to be aware of the interpretive context, though; here, the court was required by statute to construe the term strictly and narrowly. In another context – ordinary contract interpretation, for example – a different rule of construction might apply. But in my view, this ruling is entirely correct within the realm of powers of attorney.

A TRAIN WRECK AVOIDED

(Posted December 2, 2019) I reported recently on a very rare development at Ninth and Franklin: a looming motion hearing before the full Supreme Court. I’d never heard of such a thing, and after mentioning this to some of my appellate pals, they shrugged as well. The motion sought to compel a lawyer-legislator to stop using Code §30-5 to extend indefinitely the deadline to file a brief of appellee in a granted appeal.

For those of you hoping to see some fireworks, I’m going to have to disappoint you. The appellee saw the freight train coming and decided to get off the tracks. The brief of appellee hit the Clerk’s Office one day before the appellee’s pre-hearing letter brief was due. Since that filing resolved the motion, the Supreme Court has removed the hearing from tomorrow’s docket.

This is good news in one regard for the lawyers who’ll be presenting or monitoring writ arguments tomorrow: They’ll get home sooner. The court had set the motion hearing for 1:00, which is the normal start time for writ panels. That would have set everyone’s schedule back by 30-45 minutes. At this point, I expect writ arguments to begin at 1:00, ending somewhere around three hours later.

Back to the motion itself: I strongly suspect that the justices were relieved that the lawyer capitulated instead of defending his statutory right to an automatic continuance. This could have been a real turf war between the legislative and judicial branches of government, at the highest level. With a declining number of lawyers in the General Assembly, perhaps this perk is less important to the legislators now. But an endless delay is an intolerable price to pay for that statute, and I sense that the court would have found a way to compel him to file, holding that he had somehow waived the privilege. For now at least, we won’t know the answer. Let’s hope we never do.

ANALYSIS OF NOVEMBER 27, 2019 SUPREME COURT OPINIONS

(AND HOLIDAY CLOSING SCHEDULES)

(Posted November 27, 2019) Looking at the weather forecast for much of the eastern half of the nation, I hereby offer my sincere wish that, wherever you’re planning to spend your Thanksgiving, you’re there already.

The appellate courts are closing for the holiday weekend, starting this afternoon for the state courts and tomorrow for the Fourth Circuit. Both will remain closed through the weekend, reopening Monday. This means that if you have a filing deadline in the appellate court that falls today through Sunday in state court, or tomorrow through Sunday in federal court, you get an automatic extension until Monday, December 2.

For those of you who like long-term planning, I know the state court schedules for the end of December. The Supreme Court and Court of Appeals of Virginia will close December 24-26 and December 31-January 1. For Christmas week, that means an oddball calendar: open Monday and Friday only. I imagine there will be more than a few requests for vacation days in there, especially if someone has use-‘em-or-lose-‘em days.

Meanwhile, we’ve got opinions! With the courts closed tomorrow, the Supreme Court hands down two published opinions today from appeals argued in the October session. Both of today’s opinions are short, for which boon I thank Justices Mims and Lacy, the authors of the decisions.

Liens

Perhaps you’re one of those folks who collectively yawn at the prospect of an opinion that sorts out liens subject to a subordination agreement. I’m not about to tell you what you should be interested in, but give Futuri Real Estate v. Atlantic Trustee Services a fair read. The conundrum in it will at least make you think.

Here’s the setup: A particular Blackacre in Fairfax County is encumbered by three deeds of trust. To be consistent with today’s opinion, we’ll call them Liens A, B, and C. They were recorded in that order, and aggregate to nearly a million bucks, so this Blackacre must be pretty valuable.

Wells Fargo Bank held Liens A and C; SunTrust held B. For internal reasons that today’s opinion doesn’t discuss, Wells Fargo wanted to subordinate Lien A to Lien C. It therefore recorded a subordination agreement doing just that. The document didn’t mention SunTrust or Lien B.

Well, you know what happened: The debtor, eager to see what would happen, defaulted on Lien B. SunTrust’s substitute trustee foreclosed, knocking down the sale at $468K, which is somewhat short of the amount necessary to satisfy everyone. The trustee paid the costs of sale, paid SunTrust its lien, and had about $200K left over.

At this point, the auction buyer and Wells Fargo started arguing over where that money should go, and whether the bank’s first lien still encumbered the property. The issue here is what effect the subordination agreement had on Lien B. If Lien A is now subordinate to Lien C, that puts it last in line, so the foreclosure of what was then a first lien wiped out all junior liens. Right?

That’s not the way the learned circuit court judge saw it. Believe it or not, this kind of dispute crops up often, and American courts have diverged on which approach to use. A majority follow the partial-subordination approach, whereby the agreement leaves Lien B in second position, and Liens A and C fight over the money attributable to Lien A. A minority of courts take the simpler complete-subordination approach: By subordinating itself to the last lien in line, Lien A has now become, well, last in line. That would make Lien B seniormost.

The judge sided with Wells Fargo, ruling that Virginia law requires partial subordination. Today the Supreme Court unanimously agrees and affirms. The court rules that in Virginia, we interpret contracts so that we carry out the intention of the parties. We also require that if someone is to be a third-party beneficiary of someone else’s contract, that fact should be apparent in the contract. This means that SunTrust is paid in full, but Wells Fargo is still entitled to be paid up to the amount of the first lien.

I work in a firm with a lot of dirt lawyers, and they love this stuff. When I saw the assignments of error here, I sent word around my firm, spurring a host of predictions about how the appeal would come out. Most of them guessed wrong.

Finality

This header is bound to get the attention of the appellate lawyers in my audience. Jackson v. Jackson resolves the power of a circuit court to make substantive changes in a pension-distribution order more than 21 days after final judgment.

This appeal involves spouses who divorced in 2011. The circuit court entered two decrees on the same day. The divorce decree stated the parties agreement to divide marital property, including the husband’s military pension. The second, entitled “Order Dividing Military Pension,” carried out that agreement by specifying a monthly annuity amount to be paid to the wife. The second order provided that the court retained jurisdiction under Code §20-107.3(K)(4) to enter orders necessary to effectuate and enforce it.

Six years later, the wife moved the court to reopen the case to modify her pension amount. She asserted that the husband’s benefits had increased over the years, but her annuity payment remained fixed. The trial court ruled that the parties had agreed to a fixed monthly amount, so the second order was consistent with the divorce decree.

The wife appealed to the Court of Appeals, which ruled that the circuit court didn’t have jurisdiction six years later to modify the second order anyway. It also ruled that the statutory authority to modify a distribution order doesn’t extend to changing the substance; it only allows a court to correct errors and omissions. Since both original orders were by consent of the parties, the court couldn’t use the statutory power to materially alter the agreement.

The justices affirm today, agreeing fully with the CAV’s reasoning. The court holds that trial courts indeed can’t use the statute to change the parties’ deal; only to effectuate it.

I’ll note here my gratitude to Justice Mims, who writes today’s opinion for a unanimous court. Here’s the second sentence of the opinion: “Marie Dolores Jackson and Dennis Michael Jackson married in June 1974.” Did you see what’s missing? Identifiers, that bane of legal writing. Another writer might have written, “Marie Dolores Jackson (“Marie”) and Dennis Michael Jackson (“Dennis”) married in June 1974.”

While this runs counter to what lawyers have learned, it’s almost always better to omit the modifiers where there’s no reasonable probability of ambiguity. There’s only one Marie and one Dennis in today’s published opinion, and Justice Mims wisely doesn’t insult the reader by telling us what to expect.

ANALYSIS OF OCTOBER 31, 2019 SUPREME COURT OPINIONS

(Posted October 31, 2019) Just in time for Halloween, the Supreme Court of Virginia delivers a bag of goodies today, as we get four new published opinions.

Criminal law

When a court convicts and sentences a defendant, but suspends part of that sentence without indicating whether, or for how long, the defendant must be on good behavior, is the defendant still on the hook? And for how long? The court answers those two questions in Burnham v. Commonwealth this morning.

Burnham received suspended sentences for one felony and one misdemeanor in 2008. The sentencing order imposed a term of good behavior and placed him on supervised probation for a year. He evidently didn’t get the message, because the next year he faced a revocation proceeding. This resulted in resuspended sentences and a new, indefinite period of probation, but no express requirement of good behavior. He managed to struggle through this process to the point that he was released from probation in 2011.

All that goodwill he thus generated collapsed in 2015 when he was convicted of two new felonies. That brought on a new revocation proceeding for the original sentences. In response, Burnham claimed that the old sentences were now beyond the court’s reach: He had been released from probation, and besides, the second order superseded the first, and that second one didn’t require him to behave. An unimpressed trial judge revoked the suspension and then – surprise! – resuspended both sentences in full. Burnham went back on probation and now faces another ten-year period of good behavior.

The Court of Appeals was unmoved and shrugged off his appeal, but the justices agreed to take a look. Today they affirm in part and reverse in part. Good behavior is an understood, implicit part of any suspension of sentence, and while the court notes today that the better practice is to expressly include it to avoid a misunderstanding like this, no convicted person can expect a suspension to survive a new conviction.

As to Burnham’s other contention, a statute provides that when there’s no express period of suspension or probation, the court has jurisdiction to revoke the suspension for the maximum term of confinement authorized for the crime involved. That generates today’s divided result: The justices affirm the revocation of the suspension for the felony conviction, because the maximum sentence was ten years; but they reverse the one for the misdemeanor, because the trial court only had control of that for one year.

Domestic relations

I’m always on the alert for issues of first impression in opinions, and there’s a whopper in Everett v. Tawes. The question is whether a trial court has the authority to retroactively modify a pendente lite support award before final judgment.

Shortly after the wife filed for divorce, the trial court conducted a pendente lite spousal-support hearing. The court received evidence that the wife’s financial needs were over $11,000 a month, while the husband’s tax returns reflected his income of $33,000 a month. The husband replied that his returns may show that, but his status as part-owner of several restaurants, and the use of pass-through entities, meant that he didn’t actually receive anywhere near that much.

The judge remarked that he really needed an expert to understand the returns, but the wife insisted that the local support guidelines required the court to use gross income.

The court eventually entered an order granting temporary support calculated from the full amount shown on the tax returns. This created an immediate arrearage of about $47,000. The husband paid what he could, but didn’t pay down the arrearage. The wife sought a show-cause order, and the husband moved the court to reconsider the pendente lite award.

At a hearing on those motions, a new judge presided. This time, the husband brought a CPA who explained that the husband was right: He only received income of about $10,000 a month, regardless of what the tax returns showed. The wife answered that the court had no authority to modify the arrearage, because her right to that amount had effectively vested.

At this, the judge found himself in a pickle. He felt that the existing award was unjust, but wasn’t sure he had the power to correct it. He asked for additional briefing on the issue, but even that didn’t leave him with a clear path; he stated that there was apparently “no answer to this question.” Clearly unhappy with the prior award, the court nevertheless declined to change the earlier ruling or erase the arrearage, either pendente lite or in the final divorce decree. The final decree calculated future support payments at a far smaller number.

Here’s an issue that will interest appellate lawyers and their trial cousins alike. Ordinarily, a court can modify an interlocutory order at any time before final judgment. But the wife pointed to statutes that prohibit vacating an existing award. The Court of Appeals held that “support payments vest as they accrue and may not be modified retroactively,” and affirmed.

Today the Supreme Court unanimously reverses in a two-step approach. Justice Goodwyn’s opinion first concludes that a pendente lite support award is indeed an interlocutory order. That means that the court had the full power to modify or vacate the earlier award, and the ability to correct errors in it, while it retained jurisdiction. The statutes cited by the wife, the court holds, refer to judgments in final divorce decrees, not interlocutory orders.

The second step is a simple one. The justices rule that the trial court’s ruling was influenced by an error of law, and under established precedent, that makes it an abuse of discretion. The Supreme Court thus remands the case so the trial court can evaluate fully the motion to rehear.

Both sides had sought awards of appellate attorney’s fees and costs. No doubt because of the novelty of this issue, the final sentence of the opinion denies both sets of requests. In a case like this, the court finds that the circumstances don’t support shifting either party’s costs and fees.

Tax assessments

In my former life in the City Attorney’s Office, I handled several trials of challenges to real-estate tax assessments. That’s one of two claims in Virginia Int’l Gateway, Inc. v. City of Portsmouth. The tax payer owns and operates a huge marine-container terminal on the Elizabeth River down here in Tidewater. The facility receives container ships and uses cranes to offload containers and place them on waiting trucks. The City taxes the land and personalty separately; some of the cranes are on movable gantries.

For the tax year 2015-16, the taxpayer felt that the City’s assessment was too high. And we’re talking about a lot of zeroes here – the total assessment for realty was $360 million and for personalty around $30 million. The taxpayer’s experts put those figures at about $200 million and roughly $20 million, respectively. The taxpayer sued to correct those assessments, to obtain a correspondingly lower tax bill.

Portsmouth has a number of problems, but one of the most important ones is the way it’s hamstrung for real-estate-taxation purposes. It’s a small city, less than 47 square miles, and most of it is fully built out. More important, a large portion of that land is tax-exempt, because it’s owned by a government (several federal facilities are located there) or a religious institution. As an aging city that can’t expand by annexation, Portsmouth needs to hang on to whatever tax revenue it can. It hired an expert of its own and prepared for trial.

Today’s opinion evaluates two man issues. First, the taxpayer’s real-property appraiser hailed from New York and isn’t permanently licensed here in Virginia. He preliminarily valued the property for negotiation purposes; when that didn’t pan out, he obtained a one-year license from the Commonwealth. During that year, he conformed his prior work to Virginia requirements, reaching his ultimate conclusion toward the end of – but well within – the period of licensure.

So far, so good; but the trial came later, after the Virginia license had expired. The City objected to his testimony, pointing to a statutory requirement that one must be licensed to perform appraisal services here. The trial court found him well-qualified and allow him to testify. But months later, when the court got around to entering a final order, it reversed its previous ruling and found that it couldn’t allow the New York appraiser to testify because of the statute. Because this was the only basis for the taxpayer’s realty challenge, the court entered judgment for the City.

That left the personal-property-tax issue. There, the taxpayer’s expert traveled even farther, from Europe. He knew nothing about Virginia valuation standards, but was otherwise one of the premier experts in the world at valuing this kind of property. His assessment differed from the City’s largely because he applied a discount for transportation. He felt that there was no market for the property elsewhere in the U.S., so it would have to be sold to a European buyer. That entailed significant costs to ship the equipment overseas, thus depressing the price that such a buyer would pay.

The trial court ultimately rejected this testimony, too, finding the discount to be inappropriate and the valuation accordingly flawed. Here as well, the court entered judgment for the City. The taxpayer got a writ.

The justices today affirm in part and reverse in part. On the smaller personal-property-tax issue, the court finds that the trial judge acted well within his discretion in finding the European expert’s testimony didn’t overcome the presumption of correctness that all tax assessments enjoy. The court finds the question about transportation costs as a component of fair market value to be “intriguing,” but ultimately doesn’t reach that, because the trial judge made a legitimate finding that those costs were too speculative.

The court reverses today, however, on the real-estate-tax issue. Specifically, it points to a 1995 amendment to the statutory requirement for licensure. That amendment reserved to trial judges the right to decide if a particular expert was qualified to offer opinions, regardless of her Virginia licensure status at the time of the testimony. That means that the court erred in excluding the taxpayer’s expert on this ground alone. The justices accordingly remand the case for a new trial on the realty aspect only.

Given the numbers, this is a small win for the City and a larger win for the taxpayer. But it’s only an interim win: The taxpayer still has to overcome that presumption of correctness. My experience in City Hall tells me that that’s a formidable dragon.

Torts

The day’s longest opinion, at 41 pages, is Tingler v. Graystone Homes, Inc. This is a claim by a family who had a home built, moved in, and found significant mold problems. They demanded that the builder remediate the mold, but the remediation efforts only worsened the problems, to the point that the family had to abandon the home, fearing for their health.

I’m looking out for you, my dear readers, in giving you that Reader’s Digest version of the complex facts. If you want them in meticulous detail, click on the hyperlink to get Justice Kelsey’s copious recitation. For now, you need to know that the primary focus of this opinion is the familiar battleground of the boundary between tort and contract claims.

Over the years, the court has criticized the “more or less inevitable efforts of lawyers to turn every breach of contract into a tort.” There’s a reason behind this, of course: Tort damages are a lot sexier than their contract-law cousins. The homeowners sued both in tort and in contract, but the trial court sustained demurrers to all claims and dismissed the case.

Today the Supreme Court affirms in part and reverses in part, remanding the case for trial on some of the stated claims. The justices agree that the claims for negligent construction are contract claims only, but the negligent repair claims are different. The former assert that the contractor had a duty to do something (construct a home that was safe from water damage and the resultant mold intrusion) and didn’t do it, while the latter asserted that the contractor tried to perform the remediation and botched the job.

Today’s opinion lays out what should be a helpful decisionmaking standard for these claims. Allegations of nonfeasance of duties, where a contract underlies those duties, sound in contract. Allegations of misfeasance (and, a fortiori, of its malevolent cousin malfeasance) can give rise to tort claims. The rub is that, on remand, the homeowners are going to have to distinguish which of their claimed injuries stemmed from the later efforts to repair the damage, because that’s all they’ll be able to recover for.

The case has an interesting angle on the contract claim that isn’t likely to reoccur often. The land on which the contractor built the home was owned by a family LLC. But the homeowners themselves signed the construction contract. The builder defended against the LLC’s contract claim by pointing out that the LLC wasn’t a party to the contract. Today, the justices throw the LLC a lifeline, accepting the argument that the pleadings stated a facially valid third-party beneficiary claim. That means that the homeowners and their company are all back in the litigation.

The lesson for lawyers representing tort plaintiffs is to craft your allegations, to the extent you can, to allege that the defendant’s misstep was misfeasance or malfeasance. Alleging nonfeasance, the failure to do something, will foreseeably consign you to the contract aisle, and those more-limited damages.

One last point: The justices heard oral argument in this case in June. This is the last remaining appeal in which now-retired Justice McClanahan participated. The listing of the justices to begin the slip opinion inconspicuously omits any mention of her; it simply lists the other six justices who voted (unanimously, as it turns out) on the outcome.

In the past, when an opinion came down after a member of the court retired, died, or otherwise left the court, a footnote to the opinion noted that fact: “Justice X participated in the hearing and decision of the case prior to the effective date of her retirement on ________.” “Senior Justice Y participated in the hearing and decision of the case before his death on ________.”

As my faithful readers will recall, the Supreme Court endeavored to decide as many appeals as possible that had been argued before Justice McClanahan’s retirement. That resulted in a flurry of rulings in late August. The last such flurry came on February 12, 2016, the day Justice Roush’s gubernatorial appointment was set to expire. The court achieved a rare 100% clearance rate that day. It almost did so again this August.

This opinion took longer to decide than was reasonably practical for an August decision date. Reading the opinion will show you why; Justice Kelsey packs no fewer than 30 footnotes into the 41-page ruling. It’s quite an effort. The omission of Justice McClanahan’s name, even in a footnote, signals to me that the court doesn’t want to create controversy. But with a unanimous opinion, it’s hard to argue that the presence of a now-retired jurist could have affected the outcome.

ANALYSIS OF OCTOBER 24, 2019 SUPREME COURT OPINIONS

(Posted October 24, 2019) The long (almost eight weeks) drought is over; for the first time since late August, we’ve got published opinions from the Supreme Court. The justices hand down two decisions today from appeals argued in the September session.

Limitation of actions

The Supreme Court has handed down precious few decisions interpreting the provisions of Code §8.01-232, describing rules for promises not to plead the statute of limitations. Today we get Radiance Capital Receivables v. Foster, from Gloucester County. It’s a proceeding to collect on an unpaid promissory note.

The appellee is one of the guarantors on the note, executed over ten years ago. The guaranty, signed roughly contemporaneously with the note itself, contains a provision whereby the guarantor “waives the benefit of any statute of limitations or other defenses affecting” his liability.

If you’re wondering about the validity of a provision that waives all defenses, as the last clause quoted above seems to indicate, join the club; that looks to me like a breathtakingly broad provision. But there’s no statute covering that, and there is one for promises not to plead the statute of limitations. Here’s what that statute says, in pertinent part:

a written promise not to plead such statute shall be valid when (i) it is made to avoid or defer litigation pending settlement of any case, (ii) it is not made contemporaneously with any other contract, and (iii) it is made for an additional term not longer than the applicable limitations period.

When the noteholder sued almost ten years after the guarantee, and more than five years after a notice of default, the guarantor asserted the statute of limitations. The noteholder pointed to the waiver language and the guarantor pointed to the statute. The trial court sided with the guarantor and dismissed the suit on a special plea.

Today the justices affirm. In her first opinion for the court, Justice Chafin explains that this guaranty doesn’t fit in any of the three categories in the statute. There was no litigation pending at the time of the waiver; the waiver and the note arose at practically the same time; and the waiver had no temporal end. That means it isn’t enforceable as a promise not to plead the statute of limitations.

The noteholder answered that this wasn’t a promise but a waiver, a different creature entirely. The court turns that aside, noting that the two have the same practical effect. To hold otherwise would enable parties to evade the statute merely by calling the promise something else.

The noteholder had one last attack. An earlier sentence in the statute provides, “Whenever the failure to enforce a promise, written or unwritten, not to plead the statute of limitations would operate as a fraud on the promisee, the promisor shall be estopped to plead the statute.” The noteholder insisted that the court’s refusal to enforce the waiver would act as a fraud.

The Supreme Court observes that fraud requires a statement of existing fact; not a promise to do something in the future. A party may maintain a fraud action based on a promise only if she proves that the promisor had no present intention to perform at the time he made the promise. There’s no evidence of such a state of mind here, so the fraud clause doesn’t help the noteholder. The court thus unanimously affirms the dismissal.

The lesson here is not to get caught unawares by the promise-not-to-plead statute. If you’re going to utilize such a promise, always ensure that it’s in writing, always ensure that you meet the terms of the statue, and (this is my suggestion only) always recite in the body of the agreement how the three statutory factors apply in your case.

Criminal law

As with the statute at issue in the appeal above, we don’t get many welfare-fraud appeals out of Ninth and Franklin. Today the justices decide Jefferson v. Commonwealth, involving a prosecution of a woman for receiving roughly $3,400 more in SNAP benefits than she was entitled to.

In applying for benefits, Jefferson duly reported her income from her job at a clothing store, but didn’t report anything from what looks to be a part-time job elsewhere. A social worker found out about the second job and interviewed Jefferson, who responded that she didn’t believe she needed to report the income because the extra money didn’t bring her over a gross-income limit of just under $4,000 a month.

The local DSS calculated the amount of payments that Jefferson received and the amount she would have received if she had reported everything, resulting in that $3,400 difference. Jefferson was indicted for two counts of fraud, each covering a six-month reporting period. A circuit court judge found her guilty and sentenced her to six years in prison, all of which the court suspended, and restitution of the $3,400.

The primary issue on appeal is whether the evidence was sufficient to convict because the DSS calculations didn’t account for a 20% credit that should have applied to the extra income. The prosecution’s witness never calculated the difference using that discount, citing an internal policy that the discount doesn’t apply to undisclosed income. On this issue, the justices disagree, holding that

the proper valuation method is the difference between the amount of public assistance or benefits the defendant received, and the amount of public assistance or benefits he would have been entitled to absent fraud. The amount of public assistance or benefits a defendant would have been entitled to necessarily includes any deductions he would have been eligible for if he had reported all of his income.

But that’s the end of the good news for Jefferson. The Supreme Court finds that, even with the 20% allowance, the evidence clearly showed that she received more than the $200 threshold for grand larceny. That makes these felony convictions valid. The court thus affirms the convictions, but remands the case for recalculation of the correct amount of the restitution owed.

ANALYSIS OF AUGUST 30, 2019 SUPREME COURT OPINIONS

(Posted August 30, 2019) For the seventh straight business day – a string that is likely unprecedented in the long history of our Commonwealth and its highest court – the Supreme Court of Virginia issues decisions today. There are two new published opinions this morning, leaving one solitary appeal undecided from the cases argued before now. (It’s possible that the court could decide that one by unpub later today.) We are walking an unmapped path.

Criminal law

A suppression motion is the only appellate issue in Hill v. Commonwealth. Here’s the setup: Two veteran police detectives saw a car parked in a “high crime, high drug area” of Portsmouth one April afternoon. They saw Hill sitting alone in the car, in the driver’s seat. Here’s how the court describes the scene (omitting appendix citations):

[Hill] was “leaning back in the seat watching” and not “moving around.” The detectives made a U-turn and observed Hill for approximately “a minute or so.” As the detectives pulled up near Hill’s vehicle, Hill began “looking up and down, up and down, and he was constantly doing a bunch of movement inside of the vehicle.” The detectives pulled up “right beside [Hill’s] vehicle” and parked approximately 25 feet away without using any lights or sirens. Wearing their “police vest[s]” and “badge[s] of authority,” the detectives walked up to Hill “on the driver’s side of the vehicle, at which time when [they] approached [Hill], he put his left hand on the steering wheel and then … he turned his back and head away from [them]” and “began digging with his right hand between … the driver’s seat.”

The detectives feared that Hill was reaching for a gun. They identified themselves as police and shouted, “Show us your hands” several times, but Hill just “kept digging around inside the vehicle.” That was enough for the detectives; they opened the door and yanked Hill outside. A quick search under the driver’s seat revealed a stash of cocaine.

Hill moved to suppress the evidence, claiming that the police had no right to search him. He asserted that the seizure was not a valid Terry stop because police couldn’t articulate any suspected criminal activity. The trial court felt that the officers had a legitimate fear that they might be facing a deadly weapon, so the court denied the motion to suppress.

Justice Kelsey writes today’s opinion for a divided court. He concludes that the trial judge got it right: These officers, seeing a suspect reaching into a concealed area at their approach, could easily have been in peril of being shot at point-blank range if the object of Hill’s search was indeed a concealed weapon. In my former life as a local-government lawyer, I represented a lot of police officers, so I’m keenly aware of officer-safety concerns. When I finished reading the majority opinion, I was convinced that it was the correct result.

That view did not survive my reading of the third paragraph in Justice Millette’s dissent, in which Justice Mims joins. The dissent points out that Terry analysis is a two-phase endeavor, and the majority has jumped straight to the second step, while ignoring the first one: The police have to have an articulable suspicion of some likely criminal activity before they conduct a Terry stop. Justice Millette begins by quoting this line from a Fourth Circuit ruling in a Terry appeal: “[A]n officer may not conduct a protective search to allay a reasonable fear that a suspect is armed without first having a reasonable suspicion that supports an investigatory stop.”

There are more quotations in the dissent to the same effect, but it comes down to this: If the only thing necessary for a Terry stop is that the officer fears that his safety might be at risk, then the Fourth Amendment is an empty promise. Any police officer could stop and frisk any person in any situation, simply by claiming a subjective fear of personal harm.

The Terry doctrine requires more. As the dissent notes, the stop must be objectively reasonable, and that requires objective facts to back up a claim that the officer legitimately feared for his safety. The only factor supporting such a claim was the location – high-crime, high-drug – while other circumstances here militated against such a conclusion. The encounter was in broad daylight; Hill was just sitting in a car; and while weapons often accompany drug activity, one of the detectives here acknowledged that he had never recovered a weapon in all his previous work in that area.

I don’t handle criminal appeals, so I’m loath to offer bold opinions on criminal rulings. But I believe that the Fourth Amendment groans at today’s decision. If police really can jump straight to the “I was legitimately fearful” justification for a stop-and-frisk encounter, without naming any specific suspected crime, we are all less free.

Torts

Justice Kelsey also gives us the majority opinion in today’s other opinion. Our Lady Of Peace, Inc. v. Morgan is a lawsuit against a nursing home alleging that an employee raped an 85-year-old resident. This one features quite a procedural novelty.

There seems little doubt that the employee committed the rape. The home tasked him with personal care of residents – dressing, bathing, etc. – and he pleaded guilty in a criminal court to the assault. The resident’s personal representative sued the employee and added claims against the home based, among other things, on respondeat superior.

In an action like this, the plaintiff has the burden of proof on a respondeat superior claim. But a showing that the employee was working for the employer at the time creates a rebuttable presumption (of the bursting bubble variety, for those evidence geeks among you) that the employee was acting within the scope of the employment. There’s no dispute here that that presumption applied.

The home answered the suit in part with a special plea in bar on respondeat superior liability. Neither party demanded a jury on the plea, so the issue came before the trial court in an ore tenus hearing. At that hearing, the home called only one witness, its executive director, who said nothing about the assault. She instead “generally described Our Lady of Peace’s policies and practices, the regulations to which it was subject, the role of nursing assistants, [the employee’s] employment record, and the medical and daily-activity assistance provided to [the resident].”

The personal rep replied that the question whether the assault was within the scope of employment was ultimately for the jury to decide. The trial court took the matter under advisement and eventually issued an order, ruling in favor of the personal rep. But instead of finding that the issue was unripe for immediate decision, the court handed the personal rep an unexpected boon: It ruled that the act was indeed within the scope of the employment. It later barred evidence relating to the scope-of-employment issue and issued a peremptory jury instruction, taking the issue away from the jury.

That jury returned a verdict of $1.75 million in damages against the home and the employee. Both appealed, but the justices awarded the home only an appeal. Today a majority of the court reverses and remands the case for a new trial.

Justice Kelsey, again writing for the court’s majority, chides the trial court for deciding a special plea based solely on allegations in pleadings. That’s the process for a demurrer, while a plea raises a distinct issue – usually one of fact – that makes the rest of the issues in the case irrelevant. The majority would hold the personal rep to the position it asserted in response to the plea, that this was a question for the jury at trial, and today it remands for just that proceeding.

Justices Mims and Powell see this differently. The home elected to roll the dice on the respondeat superior issue by presenting it to a judge. But at the evidentiary hearing on that plea, the home adduced insufficient evidence to win on that issue. What does that mean?

It means, in the dissent’s view, that the home’s argument was foreclosed when the dice came up snake-eyes. That is, it’s the home that should be held to its strategic decision, and when that backfired, that’s the end of that issue; the rest of the case is for the jury.

There’s more. Justice Mims, who has a devilish sense of irony, takes pains to quote an authoritative source in arguing that “[t]he litigants—not the judges—determine the issues to be decided, the facts to be presented, and the range of remedies to be sought.” That source is an article by Justice Kelsey himself. The dissent uses this passage to illustrate that when the litigants decide to use a given approach to resolving a dispute, it isn’t up to the judge to second-guess them. Justice Mims also cites a recent SCV opinion, also authored by Justice Kelsey, on the presumption issue.

The dissent also identifies one other point that, if they’re right, has ominous overtones for appellate practice. Noting that the home had below asked the trial court to make a factual finding in its favor, only to have that finding go the other way, the dissent points out that the home doesn’t contend on appeal that the trial court got the facts wrong. “Indeed, it acknowledges on brief that it ‘does not contend that the Circuit Court “erroneously resolved the facts.”’”

Why does this matter? In the dissent’s next sentence, it accuses the majority of “ignor[ing] the arguments Our Lady of Peace actually made and instead revers[ing] the trial court for a reason that was not advanced in Our Lady of Peace’s briefing or oral argument: that it was impossible for the trial court to reach its conclusion based on the limited evidence presented at the plea-in-bar hearing.” That is, the home never made the argument in the appellate court that the majority seizes on to reverse. The dissent understandably calls this approach “wrong-result-wrong-reason,” something the Supreme Court has never done before other than on jurisdictional grounds.

Is this the new normal? Will Supreme Court majorities start finding unpleaded reasons to reverse, instead of limiting the “wrong reason” remedy to affirmances? I doubt it. This appears to be a case-specific approach, one driven by the need to reach a particular appellate outcome in this appeal. In short, don’t assume that the justices will do this for you in your appeal.

That leaves us with proceedings on remand. There’ll be another trial, of course, unless the parties settle. The employee’s liability is fixed, so retrial will relate only to the home’s potential liability. The home had asked the Supreme Court to rule as a matter of law that it isn’t liable for this criminal assault, since that clearly exceeded the scope of the employee’s authorized duties. The court balks at that, holding that as the personal rep pleaded it, it is indeed a matter for the jury. You’ll find the customary language in the majority opinion, stating that the appellate court takes the facts as the personal rep pleaded them. You’ll also see a passage – by now also customary – on page 16 expressing essentially unveiled skepticism that the plaintiff can actually prove the case.

Justice McCullough, joined by Justice McClanahan, files a concurring opinion, joining fully in the majority but expressing grave reservations that an employer can be liable for a rape. That abhorrent act, these justices feel, deviates much too far from the employee’s authorized activities for the employer to have to answer for it. The dissenting justices approach this entire discussion by describing it as unnecessary dicta, and condemning it as “overruling sub silentio a sizeable portion of this Court’s respondeat superior precedent.”

While I’ve spent plenty of space exploring this decision, I’m still concerned that I’m not doing it justice. The discussion on both sides of the question is fascinating; this case merits your full reading for the joy of the analysis, in addition to the procedural lessons it imparts.

*   *   *

The court’s release of these two decisions means that the justices have decided all but one appeal argued to date. That sole outlier, Tingler v. Graystone Homes, was argued in June. As I mention above, the court still might release an unpublished order later today, in which case the court will have achieved a truly rare 100% clearance rate. This, too, is an unexplored path for those of us who follow appellate developments here in Virginia.

Finally, I’ll add a note of gratitude. I’ve noted my surprise at the unexpected distribution of opinions over the past week. I speculated that it had something to do with Justice McClanahan’s impending retirement. Peter Vieth of Virginia Lawyers Weekly inquired and got the following response from the court. I’m very grateful to him for sharing it with me; you should see an article from him today on the paper’s website.

In the past, the Court occasionally handed down an opinion wherein a footnote explained the participation of a justice in the opinion after death or retirement.   For example, in Commonwealth v. Smith, 281 Va. 582 (2011), which was handed down on April 21, 2011, a footnote stated:

Former Chief Justice Hassell presided and participated in the hearing and decision of this case before his death on February 9, 2011; Justice Koontz participated in the hearing and decision of this case prior to the effective date of his retirement on February 1, 2011; Justice Kinser was sworn in as Chief Justice on February 1, 2011.

Additionally, in Ellis v. Commonwealth, 281 Va. 499 (2010), the opinion of the Court was authored by Justice Barbara Keenan and handed down on April 15, 2010.  A footnote in the opinion stated:

Justice Keenan participated in the hearing and decision of this case prior to her retirement from the Court on March 12, 2010.

Subsequent to the cases cited above, the court changed its practice. Now a Justice’s vote will not be counted in any case unless the Justice served in that capacity on the date of the handing down of the Court’s opinion or order. With regard to an opinion, the mandate that follows is a ministerial act of the clerk and will not have any bearing on the date the vote is counted.

Justice Elizabeth McClanahan is retiring from the Court on September 1, 2019.   In order to have her vote counted on the cases upon which she sat, under these circumstances, the Court decided to hand down opinions or orders as they became otherwise final and ready for release.

ANALYSIS OF AUGUST 29, 2019 SUPREME COURT OPINION

(Posted August 29, 2019) Another day, another decision from the Supreme Court of Virginia. Today we get an important ruling in the field of eminent domain, including an expansive discussion of the framework for proving a reasonable probability of rezoning. Today’s appeal is Helmick Family Farm, LLC v. Commissioner of Highways.

The subject property is in a beautiful part of the Commonwealth, just east of downtown Culpeper. The farm comprised 168 acres and was zoned Agricultural. The Commissioner took two acres in fee, plus a little over half an acre in easements, in connection with a road project.

Despite its zoning, the farm was near other property zoned for commercial or industrial use. The landowner sought at trial to adduce evidence of the property’s value, considering the probability that part of it – including the area that the Commissioner condemned – would be rezoned to permit a similar, more intensive use. The landowner hired a land planner to testify about the zoning probability, and an appraiser to opine about the value given the likelihood of that rezoning.

The Commissioner objected to this testimony on the basis that it was speculative. The trial court agreed and excluded it, leading to a one-sided trial: The Commissioner called an expert who estimated just compensation based on a low per-acre figure, reflecting the Agricultural zoning, and the condemnation commissioners returned a report that tracked almost exactly the condemnor’s number.

Today, the Supreme Court takes up an issue that Justice McCullough’s majority opinion describes as unaddressed in the court’s previous jurisprudence: “whether evidence concerning the reasonable probability of a rezoning is admissible in a condemnation proceeding.” Previous decisions have talked all around this precise question, and today the court rules squarely that it is indeed admissible. Land that is likely to be upzoned will understandably be more valuable to a prospective buyer than is land that has no reasonable prospect of changing from a lower zoning classification.

I found the most important part of today’s majority opinion to be part C, on pages 13-15 of the slip opinion. This discussion sets out key “parameters” of admission of such evidence, including the burden of proof (it’s on the landowner), the initial decisionmaker (the trial judge has a gatekeeper function here to determine if the rezoning probability is reasonable), the factors to consider, and the duty to discount the value because any prospective rezoning is not yet complete.

Three justices file a partial dissent. Justice Goodwyn writes on behalf of Justices McClanahan and Powell. The dissent takes no issue with the holding that this evidence is generally admissible, and agrees with the guidelines in part C of the majority. That means that those holdings enjoy unanimous judicial approval, and you should regard them as firmly established going forward.

The dissent parts company with the admissibility of the landowner’s specific expert testimony here, finding that there was no proof that rezoning was truly “reasonably likely” for this site. The landowner pointed to, for example, no evidence of demand for commercial or industrial property near this farm. Justice Goodwyn cites earlier SCV decisions holding that future developments are remote and inadmissible if they depend on contingencies outside the landowner’s control. The dissent feels that a rezoning is an act outside the landowner’s control here, so the evidence should be inadmissible.

Who’s right? In one sense, the side that gets four votes is, because the Supreme Court is the court of last resort in cases like this. But I agree with the majority here. Here are two sentences from the dissent that I find impossible to reconcile:

“I agree with the majority opinion that the reasonable probability of rezoning of property taken through condemnation may be relevant to the property’s fair market value ….”

“The future approval of rezoning by the County is a contingency outside the control of the landowner.”

I don’t think you can have this both ways. If the probability of rezoning is relevant, and if (as the dissent specifically states) there is a proper framework for admitting evidence of it, how can you bar such evidence by saying that it’s out of the landowner’s hands? The ultimate decision on rezoning will always be out of any landowner’s hands, and if you hold that that makes it remote and speculative, then such evidence will always be inadmissible.

The dissent suggests that one key factor is whether rezoning proceedings are already underway. Here, they weren’t; the Commissioner filed a certificate of take before the landowner did anything to try to rezone any portion of this farm. In future cases, this may be a key factor, but given today’s majority ruling, it isn’t essential to secure the admission of the evidence.

The justices reverse the judgment today and remand for a new trial.

ANALYSIS OF AUGUST 28, 2019 SUPREME COURT OPINION

(Posted August 28, 2019) “Once is happenstance. Twice is coincidence. Three times is enemy action.” Ian Fleming’s arch-villain Auric Goldfinger offers this observation in one of the James Bond novels. So what does five times signify?

Today, for the fifth consecutive business day, the Supreme Court of Virginia hands down a decision. Today’s is a published opinion in a murder case; yesterday we got an unpub dealing with preservation of issues.

Once upon a time, the Supreme Court handed down decisions on just six days a year – the last day of a given session week. That’s when we generally got rulings in appeals argued during the previous session, usually seven weeks earlier.

That ended four years ago, when the court posted a notice on its website that thenceforth, it would issue opinions weekly, usually on Thursdays. That language is still on the court’s homepage: “Effective immediately, the Supreme Court of Virginia will no longer hold opinions for release during a session of Court following oral argument. Instead, opinions will be released when deemed ready by the Justices and will typically be issued and posted on the Court’s website on a Thursday.”

So what gives with the now-daily opinion days? I’d tell you if I knew. The possibilities are: (1) This is the new normal, and we have to adapt to the possibility of getting rulings on any business day; or (2) this is a one-time deck-clearing operation to reduce the backlog of undecided appeals. If I had to guess, I’d go with the second explanation. But I won’t rule out the first.

Here’s a flight of fancy: Maybe the justices want to clear out all of the appeals argued during Justice McClanahan’s tenure, so they’re releasing a large batch now. And they know that dumping fifteen or so decisions in a single day would be cruelly hard on me, as I have to write up all that analysis. So they’re doing this to make my life easier. (I told you it was a flight of fancy.)

One last point: If you choose to misinterpret my Goldfinger quote to believe that I regard the justices as “enemies,” I can’t stop you, but you’re wrong, and you need to allow me some literary license here.

Criminal law

We know very little about the crime in Bethea v. Commonwealth, except that it was a prosecution for first-degree murder. That’s because all of the discussion in today’s roughly 37 pages of opinions is about a Batson challenge.

Bethea, who’s black, was indicted for the murder of a white victim. A first jury trial resulted in a hung jury, where three black jurors held out for an acquittal. In the wake of this mistrial, the defense lawyer learned of a conversation between his law partner and the prosecutor. In that conversation, as the defense lawyer explained, the prosecutor stated  “the jury was nine-to-three to convict, and the three people who voted to acquit were black and then something about the Black Lives movement.”

In the second trial, the prosecution exercised four peremptory strikes, and two of the struck veniremen were black. The defense timely raised a Batson challenge, mentioning the earlier conversation between the two lawyers.

If you know your Batson jurisprudence, you’ll recognize the three-step process. As Justice Kelsey sets it out in today’s opinion,

(1) the opponent of the strike “must make out a prima face case” of purposeful discrimination; (2) “the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes”; and (3) “if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination.”

The first step is usually quite easy. In this case, the Commonwealth struck two veniremen who were of the defendant’s race. If a prosecutor wants to challenge that prima facie showing, he or she must do so specifically. If, as happened here, the prosecutor goes straight to the second phase, that’s a waiver of a challenge to the first element.

At this point, then, the burden is on the Commonwealth to produce a race-neutral reason for striking one juror. (Bethea waived a Batson objection to the other black venireman.) The prosecutor offered two: The prospective juror seemed emotional, and she didn’t raise her hand, as the rest of the venire did, when the prosecution asked during voir dire whether everyone would promise to consider all of the evidence.

That seemed race-neutral enough to the judge, who let the peremptory challenge stand. Trouble intruded later, when a transcript showed that the prosecutor had never asked that question. That produced a post-trial renewal of the Batson challenge in a request for a new trial, and that, in turn, sets the table for our discussion.

There’s plenty of analysis in the opinions about what happens at each phase of the Batson analysis. The dispute comes down to this: When the defendant makes out a prima facie case, and the Commonwealth’s race-neutral explanation turns out to be false, does that mean that the court must sustain the challenge? A majority of the court finds that the answer is no, primarily because a prima facie showing isn’t necessarily case-dispositive. For a parallel explanation, consider a defense motion to strike in a civil suit. In resolving such a motion, the trial judge analyzes whether the plaintiff’s evidence makes out a prima facie case, such that if the factfinder believes that evidence, a judgment for the plaintiff would be permissible. But the factfinder is not, at the end of the case, required to believe that evidence, and if it doesn’t, the defense still wins, even if there’s no defense evidence.

In this light, the court’s majority believes that the trial court could still rule that the prima facie case didn’t make out a convincing case for purposeful racial discrimination, even without a meritorious countervailing explanation. That’s not good enough for Justice Powell and her colleague in dissent, Justice Mims. The dissent would find that the second Batson step requires something, and once it became clear that the proffered explanation was false, there’s no counterweight to the uncontested showing that the prosecution struck a black juror. In the dissent’s view, if Batson means anything, it requires more than a false explanation from the government.

Today’s opinion includes side issues, such as whether the defense lawyer waived any claim of intentional discrimination (probably as he was trying to be polite to the assistant Commonwealth’s Attorney trying the case) and whether the phrasing of the assignment of error constrains the appeal. But the enduring feature of Bethea v. Commonwealth will be the fact that the justices have staked out competing positions on just how strong the Batson prima facie showing is.

It’s conceivable that this isn’t the last word on this question. Since the defense raised an argument based on federal law, Bethea could seek succor at One First Street. The odds there are dauntingly small, of course, and the current makeup of SCOTUS isn’t promising for criminal appellants now that Justices Scalia and Kennedy are gone. But “dauntingly small” is better than “none,” which is Bethea’s chance of success if he doesn’t at least try.

Preservation of issues for appeal

A quick note about yesterday’s unpublished order in Brayboy v. Durrette, a defamation appeal. In the trial court, the defendant filed a demurrer (asserting various reasons why her statements weren’t defamatory) and a special plea (asserting immunity). The plaintiff didn’t file a written response to those pleadings; instead, he moved for leave to amend and showed up on the argument date to urge that amendment.

The trial court considered the amendment motion first and refused it. The defense then argued the demurrer and special plea. Responding, the plaintiff’s lawyer addressed the immunity issue, but didn’t say anything specific about the demurrer arguments. The court sustained both the demurrer and the special plea and dismissed the action.

On appeal, the plaintiff briefed both defensive pleadings, but the justices yesterday ruled that the plaintiff waived any objection to the demurrer ruling, because the lawyer didn’t argue against it in circuit court. That violates Rule 5:25. And since the demurrer is an independent ground for the underlying judgment, the Supreme Court doesn’t have to address the immunity issue. That’s because of something the court calls the Manchester Oaks doctrine: If the judgment rests on two separate grounds, and the aggrieved party appeals on only one ground, the court will simply affirm on the unappealed ground. This is a little different from Manchester Oaks, because the plaintiff really did appeal on the immunity issue; but when the court found that issue to be waived, it made case disposition simple.

This is a classic, though painful, lesson for trial-court litigants: Don’t hold back. If your opponent asserts parallel attacks, be sure to offer a meaningful response to each one, or your appeal will be tragically short.

ANALYSIS OF AUGUST 22-26, 2019 SUPREME COURT OPINIONS

(Posted August 26, 2019) I leave the Commonwealth for a week and all Hell – at least in the refined and understated way of appellate developments – breaks loose. I need to rethink my vacations.

While I was away, it started raining opinions. The Supreme Court issued three last Thursday, August 22. It then stepped away from its normal Thursday-only practice to announce three more decisions, including two published orders, on Friday the 23^rd. This morning, we got another opinion and an unpublished order. No, I don’t know what prompted this monsoon season. All I can do is dig in and let you know what’s transpired.

Appellate procedure

Given the subject of most of the discussion in Henderson v. Cook, I just have to start here. This is an appeal of a final order in litigation over a living trust. The meaningful part of the proceedings below is that the trial judge issued an order saying that the case would be concluded upon the filing, by the Commissioner of Accounts, of a final report.

When the Commissioner filed that report, one litigant filed exceptions. But the circuit court evidently didn’t rule on those, because it regarded its earlier order as being the last judicial fingerprint in the case.

The justices today unanimously reverse, but the dominant issue in Justice Powell’s opinion for a unanimous court is a familiar thou-shalt-not: The appellant, after getting a writ, decided to be helpful and tinker with the language of the assignments.

Of my audience, those who are experienced appellate lawyers just cringed. This drives the justices crazy: The court has repeatedly chided appellants who change the assignments mid-appeal. This practice doesn’t automatically result in a dismissal – though there may be a rising sentiment among the justices to adopt a rule like that, for simplicity’s sake – as long as the appellant’s brief adequately addresses the issues framed in the original assignments.

Fortunately for this appellant, the court can address the original language within the context of the arguments in the brief of appellant. It determines that the trial court adopted an impermissible setup, whereby court action precedes the Commissioner’s final report. It’s supposed to be the other way around, and the court today sends the case back for the circuit court to have the last say – at least in the trial court.

There’s a complicating factor. The judge who originally entered the final order has retired and is “unavailable to determine the issue.” This means that proceedings on remand might be more complicated than they would be if the original judge could simply reacquaint himself with the case and issue the required final rulings.

The best rule for dealing with changing assignments is the simplest: Don’t change them. Doing so creates more work for the justices, who have to deconstruct your “helpful” amendments. If it turns out that you really do need to make a change after getting a writ, file a motion in which you explain why the change is appropriate. If you have a good enough reason, the court may well grant you that leave. Just don’t use self-help to address a problem like this.

Res judicata

In Lane v. Bayview Loan Servicing, LLC, the court takes up the often-vexing subject of issue and claim preclusion. This litigation began when the holder of a deed of trust on residential property took steps to foreclose for nonpayment of the mortgage. The debtor filed a pro se injunction suit against the law firm handling the foreclosure. The trial court dismissed the suit with prejudice because the homeowner didn’t name the substitute trustee or the noteholder as parties. They are, under well-established law, necessary parties.

The substitute trustee foreclosed, and the loan servicer was the highest bidder. After a trustee’s deed, the servicer sold the property to a new homeowner. The original debtor then got capable counsel who filed a suit to invalidate the foreclosure and both deeds. The trial court sustained a plea of res judicata, finding that the court had already entered a final judgment against the debtor in the injunction suit.

The Supreme Court reverses this judgment and remands the case. Rule 1:6, our relatively new res judicata rule, is quite a dragon, but it requires that the parties be identical, or at least in privity. Here, the only defendant in the injunction suit was a law firm. The justices announce their agreement with other jurisdictions in holding that an attorney is not in privity with his client merely by virtue of the representation. The trial court correctly dismissed the injunction action because the real parties in interest weren’t named. The court strayed, though, when it used that procedural ruling to protect the very parties who weren’t present in the first case.

Criminal law

In a published order entered in Trevathan v. Commonwealth on August 23, the court takes a rare procedural step. In SCOTUS practice, it’s called a GVR, where the court grants a petition for cert, vacates the judgment appealed from, and remands for further proceedings, all in a single order.

The appellant here pleaded guilty but then decided to appeal anyway. Because a voluntary, intelligent guilty plea waives all non-jurisdictional defects, the Court of Appeals dismissed the appeal. The appellant sought succor in the Supreme Court.

Normally, appeals in the Supreme Court of Virginia are two-step dances. The appellant seeks a writ, and only after the court grants one, the parties enter a second round of briefing, followed by oral argument to the entire seven-justice court. Friday’s order eliminates that second step, sending the case back to the Court of Appeals. The justices rule that even after a guilty plea, a criminal defendant has a statutory right to note an appeal and file a petition. The proper thing to do in that circumstance is to refuse the petition; not dismiss it as happened here. The justices accordingly reverse and send the case back to the Court of Appeals, which can grant or refuse the petition on the merits.

This batch of rulings includes another published order in a habeas appeal. In Murphy v. Smith, the petitioner is being held on a charge of capital murder, awaiting trial. But doctors have determined that he isn’t competent to stand trial. That requires a series of reviews, one every six months, to determine if his condition has improved enough to permit such a trial.

By 2014, fourteen years after the indictment, the local circuit court ruled that the petitioner was “likely to remain incompetent for the foreseeable future.” You can’t try him and you can’t release him. What is to be done with such a person?

After receiving a court order in May 2018, requiring another six-month review, the petitioner’s lawyer moved the Supreme Court to dismiss the indictment. This is an “OJ” proceeding, one invoking the Supreme Court’s original jurisdiction, so this isn’t truly an appeal.

The justices decide to dismiss this appeal based on what many observers would call a technicality. (Don’t knock technicalities. Especially for lawyers, details matter.) The court notes that the habeas petition was filed more than six months after the date of the May 2018 order. That means that, since that order expired six months later, it was no longer in effect when the lawyer sought review. And that means that this case seeks review of a lapsed order.

What’s next? The published order hints at that: “This dismissal is without prejudice to petitioner filing a habeas petition challenging a current order of confinement under Code § 19.2-169.3(F) or his seeking expedited review so as to permit timely resolution of his claim.” This is an engraved invitation to file a timely petition raising the same arguments, at which point the court will have to address the merits of this thorny problem.

Defamation

We encounter a procedural curiosity in Handberg v. Goldberg, a defamation dispute between a father and a person who served as an educational advocate for the father’s son. This relationship lasted for a time until the father felt that the advocate was billing inappropriately for her services. That led the father to do something we all wish we hadn’t done on one occasion or another: fire off an e-mail. This one, sent to the advocate and to others, stated that “Dr. Goldberg no longer represented his son, stating he was terminating Dr. Goldberg for fraudulent billing, and criticizing the billing practices of Dr. Goldberg and the Morgan Center as unethical.”

The advocate sued for defamation, identifying eleven separate statements in the e-mail that she claimed were actionable. The trial court ruled that eight were potentially defamatory, but the other three were statements of opinion.

But when the case came to be tried before a jury, the court allowed an instruction that referred to all of the statements in the e-mail; not segregating the eight actionable ones. The jury returned a verdict for the advocate and gave her $90,000 in damages. The court entered judgment accordingly.

On appeal, the Supreme Court notes the inconsistency of the court’s rulings. It is a matter for the court, as gatekeeper of which claims are potentially actionable, to winnow out the non-defamatory chaff from the actionable wheat. The judge, having ruled that three statements were matters of opinion, then incorrectly failed to tell the jury about that ruling, allowing the juror to consider all eleven statements. Because the jury returned a general verdict, it was impossible for the justices to allocate a particular portion of the verdict to the permissible claims, so they remand for a new trial.

This case features one other procedural quirk. The father counterclaimed for money that he claimed he was wrongfully billed, and the jury agreed with him on that, awarding him the princely sum of $35 in compensatory damages. But it tacked on another $45,000 in punitive damages. The advocate either didn’t appeal this award, or the justices refused cross-error on it, so that part of the judgment looks to be final. The father argued that these verdicts were inconsistent; the jury vindicated him on his claim of conversion, so he should win on the remaining claims. The Supreme Court rejects this argument, finding the two issues to be separate.

Justice McClanahan writes this opinion for a unanimous court. This may be her last as an active justice; her retirement takes effect this weekend, after which she takes the reins at the Appalachian School of Law. I’m going to miss seeing her from the lectern. She was uniformly gracious to me in my appearances before the court.

Property owners’ associations

The decision whether to move to a neighborhood governed by a POA requires a balance of competing interests. Sure, you sacrifice some freedoms on how you use your property. But the countervailing benefit is that you know you’ll never have to live next door to someone who’s decided to paint his house lavender and neon green.

The property owners in Sainani v. Belmont Glen HOA found themselves on the business end of an enforcement action related to holiday lights. The HOA imposed strict limits on how owners could decorate their homes. Here’s one illustration: Halloween lighting had to be green, orange, or purple. Other limits specified which holidays its residents could observe with lighting, required that lights be off after midnight, and exterior lighting may not be “directed outside the boundaries of the Lot.” (Really, isn’t that the point of holiday lights? You want your neighbors to see how holiday-minded you are. But I digress.)

But I’m straying. The owners here started displaying lights for “several Hindu, Sindhi, and Sikh religious holidays throughout the year.” In eventual court proceedings, a judge found that the owners’ lights were on “24/7” for 300+ days each year. That resulted in administrative enforcement actions and a series of fines, which the owners ignored. The HOA eventually went to GDC to collect on the fines. The owners ignored that, too, so the HOA got a default judgment. The owners appealed to circuit.

At this point, the owners finally wised up and hired a lawyer. That advocate counterclaimed, but now the HOA was also seeking injunctive relief prohibiting further violations. The trial court ruled for the HOA, dismissing the counterclaims and awarding the HOA monetary and injunctive relief.

On appeal, the Supreme Court analyzes the case and rules that the HOA’s holiday-lighting guidelines exceed the authority granted in the declaration of restrictions. The declaration grants various powers to the association’s board, but the court adopts a narrow construction of those powers, consistent with prior holdings that esteem the free use of one’s property over any restrictions on that right. Viewed in that light, the court rules today that the holiday-lighting limits “exceed the scope of the restrictive covenants and are not reasonably related to any of them.” The Supreme Court remands the case to the circuit court for consideration of the owners’ counterclaims.

Justice Kelsey writes today’s opinion, so there’s an obligatory citation in there to Blackstone’s Commentaries. I assure you that William Blackstone, who lived in the Eighteenth Century, never heard of homeowers’ associations. But Justice Kelsey makes the citation sing anyway.

ANALYSIS OF AUGUST 1, 2019 SUPREME COURT OPINIONS

(Posted August 1, 2019) After a one-week hiatus, opinions reappear this morning, as the Supreme Court hands down three published decisions.

Pleading

An interesting procedural issue features prominently in Ferguson Enterprises, Inc. v. F.H. Furr Plumbing, Heating and Air Conditioning, Inc. This is a suit by one business, an HVAC installer, against its supplier. The HVAC company contended that, beginning in 1995, the supplier had made false and fraudulent statements that led the buyer to overpay for HVAC equipment.

The buyer sued in 2013 and the supplier understandably filed a special plea of the statute of limitations, along with a demurrer to other counts. The court sustained the demurrer as to non-fraud claims, but declined to rule on the limitations plea, holding that the court would require evidence to adjudicate it. It granted the buyer leave to amend the other claims, adding that the buyer must restate the fraud claims verbatim in the new pleading. The court told the supplier that it could respond to any new claims by answer.

The buyer did as it was told, filing an amended complaint with new non-fraud claims and identical fraud claims. The supplier dutifully answered but didn’t reassert the limitations plea. The court again sustained the demurrer and set the fraud claims for a jury trial.

That trial took nine days. Nine days! This is one of the chief advantages of an appellate practice; my “trials” are over in thirty or forty minutes, resulting in far less stress and a much happier person when I return home to The Boss each evening. But I digress.

The supplier moved to strike at the appropriate points in the trial, but the court let the jury decide the actual-fraud claims. It refused the supplier’s instruction on due diligence, believing that it had already overruled the special plea. The jury returned a $3 million verdict. The supplier moved the court to set that aside, and the court convened a hearing on that.

During the post-trial hearing, the judge realized his error during the trial; the court had never ruled up-or-down on the special plea. But it ruled that the supplier had waived that plea by not reasserting it after the buyer amended. Adding a belt to those suspenders, the court ruled that the supplier also abandoned the argument by not setting the plea for hearing. It finally ruled that the instruction was incorrect because it placed the burden of proof on the plaintiff, instead of the defense where it belonged. The court entered judgment on the verdict.

The Supreme Court today addresses only two of these three justifications for the judgment. First, it rules that the plea was very much alive despite the supplier’s failure to raise it anew when the buyer repleaded, because of the unique circumstances of the amendment order. The justices note that the trial court had expressly directed the buyer to replead its fraud claim verbatim. It ordered the supplier to respond with an answer and didn’t require it to replead the limitations defense. This meant that the plea was still alive.

When I read this passage in the opinion, it surprised me. I recalled that the effect of filing an amended plea is to nullify the original, and it occurred to me that any previously filed defenses wouldn’t apply to a now-nullified plea. I figured the defendant has to replead or waive its original defenses.

Even apart from the special circumstances that the Supreme Court identifies here, it turns out that I was wrong. Some very old caselaw holds that a defense raised to original pleading still survives the amendment, unless the defendant withdraws it. Power v. Ivie, 7 Leigh (34 Va.) 147 (1836). Despite this, my advice to trial-court pleaders is not to rely on this Alamo-era ruling; if the plaintiff amends, you’re best advised to reassert any defenses that you want to present to the jury. That failure doesn’t cost the supplier here, but as I’m fond of observing, you don’t want to be a test case in an issue of procedural default.

The justice also hold that the failure to calendar the plea for a hearing isn’t a waiver, because the same jury that decides the merits can adjudicate the plea. Imbedded here is an important point. The buyer, not the supplier, had demanded a jury trial, and the buyer argued that to preserve the right to a jury trial on the plea, the supplier had to file its own jury demand. No dice, the justices hold today; under the rules, a single jury demand is sufficient, and an adverse party can reply on his opponent’s jury demand.

The court remands the case for a limited trial on whether the statute of limitations barred all or part of the buyer’s claim. Justice Powell’s opinion for a unanimous court telegraphs that the primary – and maybe the only – issue for that trial will be when the buyer should have learned of the allegedly fraudulent nature of the statements. That fixes the accrual date for the fraud claim, and starts the limitations clock ticking.

Corporations

It’s dismaying to discover the same surname on both sides of the “v” in litigation. One way or the other, it’s almost always a tragedy. Today’s ruling in Knop v. Knop resolves a family dispute over just how much of a family-held corporation the principal’s children owned.

A man we’ll call Dad incorporated a company in 1982. It owned a large tract of land – almost 1,000 acres – in Loudoun County. Back then, the land’s value may have been relatively modest, but if you know today’s Loudoun, you’ll realize that it’s now probably worth a fortune for development purposes.

In 1987, Dad owned about 73% of the shares; his three adult children owned 9% each. The corporate books reflected these certificated ownership shares. For estate-planning purposes, Dad decided to transfer to his children stock in the amount of the maximum annual gift allowance each year for several years. The company issued K-1s to Dad and the children showing their new percentages, and everyone filed tax returns showing the new percentages. But the company issued no new certificates for the extra shares.

Let’s now turn to the modern era, with that fast pace of growth. Dad evidently perceived that a developer might want to turn this parkland into a neighborhood. Preferring to see things remain the way they had been for years, he proposed to sell or donate some of the company’s land to create a scenic easement. His three children, who perceived by then that they each owned almost 15% of the company, disagreed.

This simple disagreement ensures that this happy situation can only end in tears. The children pointed to the company’s bylaws, which required a 90% vote to sell company property. At this point, Dad decided to play hardball.

The Code of Virginia states that if a shareholder owns more than 2/3 of a company’s stock, he or she can convert it to another form. Dad claimed that while he may have meant to give his kids extra stock, he never actually completed those gifts, so he still owned 73%. Flexing that muscle, he took steps to convert the corporation to an LLC, giving himself complete control, including the right to sell land regardless of the 90% threshold.

Having been thus outflanked, the children went to court, seeking a declaratory judgment that they together owned almost 45% of the company and could block the shift to an LLC. At a bench trial, the judge noted that nothing showed an effective transfer of shares, so Dad really did have the power to do what he did. The court expressly rejected a claim that Dad was estopped from maintaining that there was no transfer.

For a gift to be effective, Virginia law requires proof of (1) donative intent and (2) actual or constructive delivery. That means that a stated intent to donate, no matter how clear or forceful, isn’t enough to transfer ownership. On these facts, the Supreme Court notes today, there’s clearly no actual delivery. On the issue of constructive delivery, the court rules today that that doesn’t occur unless the donor surrenders control of the shares. That didn’t happen here, and the kids failed to establish the detriment component of estoppel. The justices accordingly affirm the circuit court’s judgment in Dad’s favor.

Criminal law

The justices finally decide Stoltz v. Commonwealth today by published order. It’s a conviction for use of a computer to solicit a minor. The appellant is an adult who sought a sexual encounter, not expressly directed to juveniles, on a Craigslist page (since terminated by Craigslist’s publisher) devoted to social encounters. When Stoltz got a reply from a 13-year-old girl, he decided to follow it up.

As so often happens, Stoltz was actually communicating with a quite-adult detective, posing as a juvenile. The conversation continued in sufficient length and detail to make Stoltz’s intentions unmistakable. He arranged a meet-up location and traveled there, but found no 13-year-old waiting for him. A subsequent search of his home computer closed the trap.

The primary issue at trial and on appeal was whether the applicable statute is unconstitutional, for either vagueness or overbreadth. In today’s published order, the justices reject both challenges.

On vagueness, the justices rule that there’s nothing vague about the phrase “reason to believe” in the statute, which proscribes use of a computer to solicit a person who the defendant “knows or has reason to believe is a child younger than 15.” That phrase appears in numerous statutes and the court has never found fault with it before.

The court also rules that the statute isn’t overbroad. Its gravamen isn’t speech but the use of a communication system: “The act of using a communications system is the actus reus of the crime, while the purpose of soliciting the child is the mens rea.” The justices thus unanimously affirm Stoltz’s conviction.

ANALYSIS OF JULY 18, 2019 SUPREME COURT OPINIONS

(Posted July 18, 2019) They knew. Someone up there had to know. My schedule kept me out of my office this morning and half of the afternoon, and someone at Ninth and Franklin figured this would be a good day to hand down three published opinions, two published orders, and one unpub. They must have been chuckling at me this morning.

This means that I won’t be able to complete analysis of the decisions this evening; this will be a two-day job, bringing back memories of six opinion-stuffed days a year, before the Supreme Court moved to rolling release dates.

Real estate taxation

Back in the 90s, when I worked in City Hall, I handled a fair number of landowners’ challenges to their real-estate tax assessments. That gave me intimate familiarity with appraisal methods and the presumption in favor of validity of a locality’s assessment. The justices explore this field today in McKee Foods Co. v. Augusta County, involving taxation of a food-processing facility.

The building is a whopper – over 800,000 square feet located on 170 acres. When the County assessed it at roughly $30 million over a four-year period, and the County and the Board of Equalization refused to budge significantly, the owner sought relief in court. It contended that the true value of the building was more like $17 million.

In these proceedings, the taxpayer has the burden of proof, and that burden is stiff:

there shall be a presumption that the valuation determined by the assessor or as adjusted by the board of equalization is correct. The burden of proof shall be on the taxpayer to rebut such presumption and show by a preponderance of the evidence that the property in question is valued at more than its fair market value or that the assessment is not uniform in its application, and that it was not arrived at in accordance with generally accepted professional appraisal practices, procedures, rules and standards …

This means there’s now a two-step process: The owner first has to show either a valuation above fair-market value or one that isn’t uniform. If the owner achieves that, it next needs to show that the appraisal process deviated from applicable procedures and standards.

The County’s appraiser wasn’t a County employee; it hired a contractor to do the work. That contractor didn’t use any of the Big Three methods: sales comparison, depreciated reproduction cost, or income. Citing prior holdings, the justices today rule that when an assessment fails to use any of those three methods, that doesn’t make it automatically wrong, but it isn’t entitled to a presumption of correctness.

The trial judge, ruling in favor of the county, had employed that presumption to break what he felt was a tie in the evidence. The Supreme Court thus sends the matter back to the trial court for reconsideration without affording the County assessment any presumptive weight.

But there’s a catch. The trial judge who heard the voluminous evidence in this case – the trial-court record is well over 5,000 pages – is retired and isn’t subject to recall to sit as a judge designate. Part of the decisionmaker’s job is to weigh the competing appraisals and make credibility determinations, something that’s nearly impossible with a cold transcript. That leads to this remarkable coda to today’s opinion:

Accordingly, due to the unique circumstances of this case and the trial judge’s unavailability, we will remand this matter for a new trial, consistent with holdings expressed in this opinion. However, if the parties and the circuit court all agree to forego a new trial and have the circuit court review the existing record under the proper standard of review, our remand authorizes the circuit court to exercise its discretion whether to conduct a new trial or limit its review to the existing record.

These are unpalatable options, but that’s one of the risks of securing a reversal and remand for a new trial.

Workers’ Compensation

In the field of Comp law, Virginia adheres to the two-causes rule. That rule states that where there are two causes for a worker’s disability, and one is related to the employment while the other is not, the employee gets benefits if she shows that the employment contributed to the disability. That’s the backdrop for Carrington v. Aquatic Company.

The two causes here probably couldn’t be more dissimilar. The employee suffered from a kidney condition that initially didn’t prevent him from working. He later injured his arm on the job and received temporary total benefits. He had an operation and his doctors ultimately cleared him to return to light-duty work.

A that point, his kidney condition took a major turn for the worse, resulting in total disability. The employee asked for a continuing award of the temporary total benefits due to his arm, but the Comp Commission ruled that the employer wasn’t liable, since the sole cause of the total disability was the kidney condition, and that had nothing to do with the work. The Court of Appeals affirmed that ruling.

The justices today affix their stamp of approval on these holdings. The two-causes rule assumes that the two factors produce the same disabling condition. Here, the conditions were unrelated, and the arm injury had nothing to do with the employee’s inability to work.

Real property

The tony streets of Old Town Alexandria are the setting for Robinson v. Nordquist, a dispute between two neighbors over water damage. The owner of a corner lot sued her neighbors, claiming that their sprinkler system caused water damage to her home. She set out claims for nuisance and trespass; the neighbors demurred and filed a special plea of the statute of limitations.

The trial court considered the pleadings and ruled against the corner-lot owner and in favor of the neighbors. The water intrusion, according to the complaint, began after the neighbors installed a sprinkler system, and that installation came seven years before the corner owner filed suit. Since the statute is five years for property-damage claims, the suit came too late.

The Supreme Court today reverses and remands the case, holding that the corner owner is entitled to a jury trial on the limitations plea. The complaint alleged that “significant water intrusion and damage did not begin” until four-plus years before the filing of suit, and claimed that the intrusions were intermittent. With a continuous trespass, the statute begins to run immediately; but intermittent intrusions constitute separate causes of action. The Supreme Court concludes that the pleadings alone don’t establish when the damage began or whether it was intermittent. Those are factual disputes, so the corner owner gets a jury trial on the special plea.

Insurance

Two years ago, the Supreme Court resolved a dispute between two carriers over who had to pay what in a wrongful-death claim. Today, in Nationwide Mutual v. Erie Insurance Exchange, we learn that, in the words of the celebrated expert Miracle Max, the dispute was only mostly dead.

Nationwide had three separate million-dollar policies in place, while Erie had one for a million and one for five million. The trial court ruled that Nationwide’s three policies came first, so it was on the hook for the first $3 million; Erie’s coverage kicked in after that. In response to this ruling, Nationwide settled with the tort plaintiff for $2.9 million.

Nationwide then went to Richmond and got a reversal of the trial court’s allocation of coverage. The justices in 2017 ruled that one of the three Nationwide policies didn’t apply, and that each insurer had primary coverage of $1 million, with the companies sharing excess liability over that figure on a pro rata basis. This was a major win for Nationwide, but it proved elusive.

That’s because Erie refused to contribute, claiming that Nationwide had settled voluntarily without Erie’s consent. When Nationwide sued, the trial court agreed with Erie, holding Nationwide fully liable for its voluntary payment.

The justices, viewing this litigation for a second time, reverse for a second time. A majority of the court holds that when an insurer denies coverage, it waived the right to insist on a consent-to-settle provision in its policy. Since Erie had insisted in the first proceeding, and at all points up to the 2017 SCV reversal, that it owed nothing, its consent wasn’t needed for an equitable contribution order.

We don’t know which of the justices wrote today’s majority order, except it wasn’t Justices Goodwyn or Kelsey, because they dissent today. Justice Kelsey pens the minority opinion, arguing that contribution is only available for a voluntary settlement when the insurers are contemporaneously obligated. At the time Nationwide paid the settlement, Erie wasn’t obligated. It had a circuit-court judgment in its pocket, stating that Erie owed nothing. The dissent would find that distinction dispositive, and would leave Nationwide fully liable for its settlement payment.

Attorney discipline

Morrissey v. Virginia State Bar doesn’t reflect the first time that the Bar has disciplined Richmond attorney and politician Joseph Morrissey. Nor is it the second, or the third. Today’s published order refers to eight prior disciplinary actions. This is the ninth, and unless Morrissey seeks rehearing or eventual reinstatement, it should be the last.

Today’s order sets out two causes for this most recent set of charges. The first is Morrissey’s sending a young associate to court to participate in an agreed nolle prosequi of criminal charges. The associate had just passed the Bar exam but had not yet been admitted to practice by taking the required oath. (That admission happened two days after the nolle pros.) The second is his Alford plea to a charge of contributing to the delinquency of a minor. This stemmed from his having sexual relations with a juvenile employee in his office, then attempting to cover up or explain away the activity. (The juvenile is now an adult and is now Morrissey’s wife.)

The justices today affirm the ruling of a three-judge panel, which had revoked Morrissey’s license to practice law. The court approves the factual findings on each count and rules that three factors establish that revocation is appropriate. First, Morrissey refused to take responsibility for his violations, attempting instead to pass the blame on to others. Second, these actions occurred within a year after Morrissey regained his license after a previous revocation. And third, there’s what the order describes as “the long and notorious book of Morrissey’s disciplinary history,” reflecting his “chronic unwillingness to practice law in conformity with the rules that govern our profession.”

ANALYSIS OF JULY 3, 2019 SUPREME COURT OPINION

(Posted July 3, 2019) As the Supreme Court will be closed tomorrow (and Friday, too), today is opinion day at Ninth and Franklin. The justices hand down a single published opinion, Young v. Commonwealth, which arrives by way of the Court of Appeals. While the overall subject is criminal procedure, the primary lesson of this opinion is preservation, always a topic of interest in the appellate world.

This is a case about Virginia’s speedy-trial statute. When a defendant is in custody before a felony trial, that act requires that the trial begin within five months from the date of indictment or preliminary hearing. If that doesn’t happen, the defendant is “forever discharged from prosecution for such offense.”

On occasion, the defense desires a continuance of a compliant trial date. If these situations, the time attributable to the defense request isn’t counted against the five months.

Young stood accused of several felonies. The court set a trial date one day before the expiration of the deadline. Reading between the lines a bit, I infer that three weeks or so (I’m guessing as to the exact date) before the trial, the prosecution metaphorically pulled a front-end loader up to the defense lawyer’s office and dumped 1,005 recorded phone calls, running to 225 hours.

Perhaps there was exculpatory information in there; maybe something inculpatory, too. The defense had no way to know other than assigning someone to listen to all 225 hours’ worth. Instead of that, the lawyer moved the court to dismiss the charges, claiming that this ninth-inning dump forced Young “to choose between his right to a speedy trial and the right to effective assistance of counsel.”

Well, now. The court convened two hearings, both before the original trial date, to consider what to do. The court eventually declined to dismiss the indictments, but imposed sanctions against the prosecution, barring it from using the materials and ordering it to supplement discovery by seven days after the scheduled trial date.

After? The defense lawyer indicated his dissatisfaction:

[We] don’t feel this should be a situation which Mr. Young has to forfeit his rights to a speedy trial in light of his rights to have the information that he’s entitled to, which again, once we move this court date will all but ensure we will be outside the speedy trial time.

The lawyer agreed to place the case on the scheduling calendar two weeks after the original trial date, but repeated that he wasn’t agreeing to a continuance past the speedy-trial deadline. He argued that attributing the continuance to Young “would be fundamentally unfair and quite frankly inappropriate,” adding that “this [added] time should be attributable to the Commonwealth.”

After the speedy-trial deadline passed, Young’s lawyer moved to dismiss. The prosecutor fired back that the defense lawyer had stated that he wouldn’t be ready to try the case on the original date. The judge took that argument and ran with it, ruling that while Young hadn’t moved for a continuance, he essentially consented to it. The court ruled that the prosecution hadn’t acted in bad faith, so it declined to dismiss the charges.

Young pleaded to one of the indictments. At a jury trial, the court dismissed two charges and sent the other two to the jury, which convicted Young. The Court of Appeals affirmed, holding that the continuance was court-ordered and not attributable to the Commonwealth. Since the finding of no bad faith wasn’t challenged on appeal, the time didn’t count against the five-month clock.

Today’s opinion, crafted by Justice Powell, acknowledges early on that the trial occurred well after the five-month deadline. But the court affirms on a ground I found surprising, holding that Young’s lawyer didn’t make an affirmative objection to the extension, so he can’t raise the bar of the statute.

I will confess to experiencing a “Wait; what?” moment upon reading this. What about those passages that I quoted a few paragraphs up? Today’s opinion of the court holds that there’s a word missing: objection. The Court of Appeals’ opinion in this case had observed that Young “repeatedly and emphatically stated at multiple stages of the proceeding that he was not waiving his speedy trial right.” Justice Powell confirms that that was the holding, but concludes that Young “reads too much into this statement.” She then writes that those things, vigorous as they may have been, did not amount to an objection: “While Young did not explicitly concur, agree to, or request a continuance, nowhere in the record is there an actual affirmative objection to the court-ordered continuance.”

This opinion is not unanimous, though the result is. Justice McCullough writes for Justice Mims, dissenting from the no-objection ruling – “The record is crystal clear that Young strenuously objected to any continuance counting against him for purposes of speedy trial” – but agreeing with an affirmance on the grounds set out in the CAV’s opinion.

There’s an important lesson here for trial practitioners: You should regard objection as a magic word. Here’s an illustration. You’re in the middle of a jury trial and your opponent adduces evidence that’s unmistakably hearsay. You stand and say, “Your honor, this evidence violates Rule 2:802; it’s clearly hearsay, as it’s offered to prove the truth of the matter asserted.” The judge disagrees and allows the evidence. Today we learn that a solid majority of the Supreme Court believes you can’t raise that issue on appeal, despite the specificity of your interjection, because you didn’t use the magic word.

To me, the majority’s approach is hypertechnical, and unfairly so. Young’s lawyer made his position abundantly clear, and the judge ruled against him. This outcome is the triumph of form over substance. Now, I recognize that form is important; I’m an appellate lawyer, after all. But I’m disappointed that the court used this approach to deny Young a decision on the merits.

One other angle here warrants mention. The speedy-trial doctrine has been seriously eroded by caselaw that allows exceptions to swallow this basic premise: The court needs to try a felony defendant quickly. The statute contains no bad-faith provision; jurists wrote that in, essentially amending the statute so that it operates in a more prosecution-friendly way. Is the denial of other procedural protections subject to bad-faith analysis? Can the prosecution deny the accused a court-appointed lawyer, and make him go to trial pro se, so long as it does so in good faith? How about the right to trial by a jury of one’s peers? There is, to my knowledge, no good-faith exception to the Seventh Amendment.

This suggests one other outcome in this appeal, one that none of the seven justices embrace: Reversed and indictments dismissed. If you read the speedy-trial act the way it’s written, Young was entitled to judgment in his favor. An affirmance is only possible because of the way judicial opinions have modified the statute.

I’m grateful for the chance to discuss these ideas today with a pal who deals with far more criminal appeals than I do. Thanks, Chris.

ANALYSIS OF JUNE 27, 2019 SUPREME COURT OPINIONS

(Posted June 27, 2019) Today is a busy appellate day. Across the Potomac, SCOTUS announces its final decisions of October Term 2018. We get a 5-4 ruling in the partisan gerrymandering cases out of Maryland and North Carolina (the bare majority rules that the redistricting litigation is a nonjusticiable political question, much to my chagrin) and a fractured ruling in the census-question appeal.

But we’re here to focus on developments by the rive gauche of the James. (If you want coverage of those SCOTUS rulings in depth, I heartily recommend SCOTUSblog. I may post a future essay discussing some of the more significant late-term SCOTUS rulings.) Today the Supreme Court of Virginia hands down two published opinions and one published order. Let’s dig in.

Criminal law

Post-trial proceedings in criminal cases carry some, but not all, of the procedural protections at trial. One difference is that some hearsay may be admissible against the accused. That’s the origin of Mooney v. Commonwealth, involving probation-revocation proceedings.

Having twice been convicted of grand larceny and given mostly suspended sentences, Mooney backslid and committed three violent felonies. A circuit court issued a show-cause order to revoke probation on the larceny convictions.

At that hearing, Mooney acknowledged the new convictions, but objected when the prosecutor read to the judge a newspaper account of the victim’s plight in the violent-felony case. The judge ruled that “this is a show cause hearing and hearsay is allowed.” The court then gave Mooney three years to serve. The Court of Appeals affirmed, ruling that the news account wasn’t testimonial hearsay.

Today, the justices affirm in a split decision. Justice McCullough, writing for the chief justice and Justices McClanahan and Kelsey, assumes without deciding that the evidence was improper, and holds that any such error was harmless as a matter of law. The trial judge knew of the violent felonies from the major violation report, and the court imposed far less prison time than it could have, and even less than what the prosecutor urged.

Justice Goodwyn pens a dissent on behalf of Justices Mims and Powell. He contends that while hearsay may be admitted at a hearing like this, that’s not the case for testimonial hearsay, and he feels that the news account was patently testimonial. If a court is going to admit hearsay, precedent commands it to set out the reasons why good cause exists to permit it. The trial judge didn’t do that here; the court merely asserted a blanket rule of admissibility.

As for the harmless-error angle, the dissent notes that all error is presumptively prejudicial. Justice Goodwyn opines that this record doesn’t show the extent to which the newspaper story affected the judge’s decision.

One last note: I always enjoy a good turn a phrase in judicial opinions, and there are some of those in today’s opinion. My favorite is from Justice McCullough’s pen, when he describes Mooney’s conduct after his latest probation release. Trial courts found that Mooney had violated probation six times in seven years, “which suggests a less than optimal adjustment to probation.”

Given the greater freedom that I have as an unofficial expositor, I might have described this as Mooney’s having accumulated a wealth of frequent-flyer miles in the criminal-justice system. But I like his way of phrasing the same thing.

Defamation

There’s a whopper of a published order today in Sroufe v. Waldron, a libel judgment out of Patrick County. It’s not a whopper in length – at just six pages, it’s a quick read – but in terms of the message sent.

This is a dispute between an elementary-school principal and the superintendent of schools. The superintendent decided to remove the principal from her job and eventually reassign her to a teaching position. He told her that in person and followed it up with an explanatory letter. The letter recited the superintendent’s conclusion that the principal didn’t properly understand and apply the Virginia Alternative Assessment Program for students with disabilities.

Somehow, the local news media got a copy of the letter; today’s order doesn’t say how. It also doesn’t expressly say this, but the news must have published the letter. The teacher sued.

At a jury trial, the superintendent claimed that the statement wasn’t actionable for three reasons. It was either opinion, or true, or “lacked defamatory sting.” The superintendent raised these three arguments in a motion to strike after the teacher’s evidence and after all of the evidence. The judge sympathized, feeling that in light of the teacher’s on testimony that “reasonable people can disagree” on her adherence to the VAAP, this was indeed a matter of opinion.

But the court decided to let the full case unfold, to see what the jury would do. The jury decided to award the teacher half a million dollars, American money. The superintendent moved the court to set the verdict aside, raising the same three arguments.

As the saying goes, that’s where the trouble started. In a letter opinion, the judge agreed fully with the superintendent: “It is opinion; if it is not opinion, it is true; and if it is factual and false, it is too mild to be defamatory.” That bodes well for the superintendent. But somehow, this train jumped the tracks. The judge decided to enter judgment on the verdict, despite his affirmative knowledge that the superintendent was entitled to judgment:

Accordingly, and in light of the foregoing, and with the full expectation that I will be reversed by a unanimous Supreme Court of Virginia, I hereby affirm the verdict.

To no one’s surprise, a unanimous Supreme Court of Virginia reverses this remarkable order and enters final judgment for the superintendent. What may surprise careful courtwatchers is the tone of the order entered today. It’s sharply critical of the judge’s decision to abandon his role to ensure that his orders comport with the law to the best of his ability. Rather than quote it at length, I’ll commend it to you – as I noted above, it’s short and won’t take you long to read – to get a sense of how deeply upset the justices are with this court.

We don’t know who drafted today’s order; it is unsigned, as are virtually all dispositions by order. (On occasion, there’s a dissent from an order, and those carry the name of the author.)

Sexually violent predators

The newest entry in Virginia’s SVP caselaw arrives today. The court combines two appeals, each raising the same issue, into a single opinion styled Harvey v. Commonwealth. The issue is whether the Commonwealth must provide a psychological expert to the respondent in a proceeding to determine if a released SVP has violated the conditions of his release.

Here, I’ll cut straight to the ruling. Four justices rule today that the answer to the question above is no. If this were a criminal prosecution, SCOTUS precedent requires a state to furnish such an expert where, for example, the defendant’s sanity is in issue.

Today’s majority rules that while there are parallels, this isn’t a criminal prosecution, and a respondent in an SVP proceeding has a diminished liberty interest. Among other reasons, he’s already been adjudicated a sexually violent predator, and this detention is temporary – up to six months, until another evaluation takes place.

Three members of the court – interestingly, the same three justices who dissent in today’s Mooney decision – dissent here. Justice Mims writes an opinion that describes a psychiatric expert in this context as essential for the mounting of an effective defense. In the dissent’s view, “the appointment of a mental health expert is essentially an extension of the right to counsel,” and no one disputes the Commonwealth’s obligation to provide counsel.

This conclusion will resonate with many lawyers who know plenty about legal procedures and rules of evidence but not much about psychiatry. I’ve never handled SVP proceedings and don’t plan to start now, but I would have no clue how to evaluate psychiatric issues; nor would I know how to cross-examine a psychiatric expert effectively.

Because these appellants’ claims found support in the Due Process Clause, it’s foreseeable that we could read about a future appeal styled Harvey v. Virginia, back across the Potomac. This is one of those cases – unlike appeals involving purely state law – where a federal constitutional claim enables SCOTUS to review a decision from Virginia’s highest court.

PROGRAMMING NOTE FOR THURSDAY, JUNE 20

(Posted June 19, 2019) Because tomorrow foreseeably may be a busy day, I thought I’d get a jump start on things by giving you an admin note on what I expect tomorrow.

If you’ve followed the Supreme Court of the United States, you know that that Court issues opinions in all cases argued during a given term, before recessing for the summer. That recess customarily begins at the end of June. This often results in a rush of opinions in the second half of the month.

This year is no outlier: Of the 69 appeals argued in this term, the court has yet to hand down rulings in 20 of them. And as you’ve seen, the end of June is next week. Normally the Court hands down opinions on Mondays, but when enough opinions remain, the justices add one or more opinion days. Tomorrow is one such.

I expect to see five published opinions tomorrow, though I don’t know which ones we’ll see. I then expect the Court to add two more opinion days next week – likely Wednesday and Thursday, so it can announce rulings in all of the remaining cases.

Meanwhile, on the correct side of the Potomac, tomorrow is a presumptive opinion day for the Supreme Court of Virginia. We could see zero opinions, or ten, or something in between. My best bet is something in between, and I seriously doubt we’ll get anything approaching ten. There’s plenty to choose from; five appeals remain undecided from the February Session, and most of the April Session appeals are still pending. It’s extremely unlikely that the court will hand down any rulings from the June session, just two weeks ago.

My readers know that I don’t often focus on SCOTUS rulings, unless they have a significant Virginia nexus, or unless they’re of particularly major significance. You can get analysis of that court in many places, though the best site is SCOTUSblog. If you want something approaching real-time news, you can follow their live blog; opinions start arriving at 10:00.

My focus is always first on the Supreme Court of Virginia. If that court announces rulings – they hit the website shortly after 9:00 – I’ll analyze those and post commentary as quickly as I can. If something comes down from One First Street that I feel I should cover, I’ll follow up on that after I finish the Virginia analysis.

ANALYSIS OF MAY 30, 2019 SUPREME COURT OPINIONS

(Posted May 30, 2019) What had been a slow month for opinions turns lively today, as the Supreme Court of Virginia hands down five published opinions and one published order.

Criminal law

The court takes up a twist on the familiar language of Miranda warnings in Spinner v. Commonwealth. After a bench trial, the circuit court convicted Spinner of the stabbing death of his father-in-law in Campbell County. Police initially spoke with Spinner in a carport of his brother’s home, where they executed a search warrant and took a fingernail sample for DNA analysis.

During that conversation, an investigator informed Spinner as follows; I’ll highlight the key provision:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you’re being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any question and if you wish one. And I always caveat that with: ‘If you’re charged with a crime.’ You can decide at any time to exercise any of these rights and stop answering questions or to stop answering—making any statements.

During the ensuing conversation, Spinner made some inculpatory statements before stating that he didn’t want to answer any more questions. The investigator ended the discussion then.

Two days later, police arrested Spinner and gave him the same Miranda warnings. During the ride to the police station, the investigator suggested to Spinner that he hadn’t gone to the victim’s house with the intention of killing him. Spinner said nothing but nodded his head affirmatively.

Spinner moved to suppress both the statements and the head nod, based on a claim that the Miranda warning was improper. The trial judge ruled that the conversation in the carport wasn’t custodial, so a Miranda warning was unnecessary. The statements and the head nod both came into evidence; the court sentenced today’s appellant to two life terms.

The Court of Appeals declined to tinker with the convictions, but the justices agreed to take a look. Today they unanimously affirm. They hold that the conversation at the carport wasn’t custodial, citing the trial judge’s factual findings about that event. Viewed in a light most favorable to the Commonwealth, that ruling wasn’t plainly wrong, so the carport statements were unaffected by Miranda.

That leaves the head nod. Today’s short opinion traces the development of Miranda warnings in this context – where an officer adds something extra to the familiar language – from Miranda through two more SCOTUS decisions, California v. Prysock in 1981 and Duckworth v. Eagan eight years later. That results in the following synthesis:

Miranda warnings don’t require exact language; a “fully effective equivalent” is sufficient. A warning cannot imply that the right to counsel only attaches during court hearings, since that right applies during the investigation of a crime. But this warning (from Duckworth) is acceptable: “We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.”

The Supreme Court today holds that the proper reading of the investigator’s added language in this appeal is the same as in Duckworth. Police officers can’t immediately bring on a lawyer, but a suspect can insist on having a court appoint one. That means that there was nothing wrong with the warnings given here.

The justices decide two companion appeals today involving a novel procedural posture. The cases are Watson v. Commonwealth and Commonwealth v. Watson. In 2007, Watson entered Alford pleas on several felony charges, including four use-of-a-firearm indictments. The circuit court convicted him on those pleas and sentenced him to a lengthy term of imprisonment. The sentences on the firearms charges were identical: three years each, to be served consecutively.

But the law requires that a second or subsequent use-of-a-firearm conviction must carry a five-year sentence; no more and no less. In 2017, Watson learned of this and filed a motion to vacate his sentence as void ab initio, demanding a new sentencing hearing. He argued that the sentences imposed were outside the statutorily prescribed range, so the court didn’t have jurisdiction to enter the sentencing order.

He had good reason to feel that way. In 2009, the Supreme Court perceived that its rulings in improper-sentence appeals were difficult to reconcile, so in Rawls v. Commonwealth, it decided to end the uncertainty by handing down specific guidelines:

Today we adopt the following rule that is designed to ensure that all criminal defendants whose punishments have been fixed in violation of the statutorily prescribed ranges are treated uniformly without speculation. We hold that a sentence imposed in violation of a prescribed statutory range of punishment is void ab initio because the character of the judgment was not such as the [c]ourt had the power to render.

Six years later, the court described this rule as “bright line” and “purposefully broad,” intended to apply to all defendants sentenced outside a statutory range. Watson pointed out in his motion that he was inarguably sentenced outside a statutory range, so he was entitled to a new sentencing hearing. The Commonwealth responded that Watson’s sentence wasn’t void but voidable, so his motion, filed ten years after sentencing, came too late.

There’s more. Watson similarly moved the circuit court to vacate the sentences of twelve other felons for the same reason. He didn’t join the others as parties, but cited familiar language from numerous Supreme Court opinions: an order that’s void ab initio may be challenged “by all persons, anywhere, at any time, or in any manner.” Because Watson clearly falls within the category of “all persons,” he asked the circuit court to order new sentencing hearings for the other twelve, too.

On Watson’s motion to vacate his own sentence, the Rawls language persuaded the trial court that this sentencing order was void. The court accordingly ordered a new hearing. But it balked at ordering relief for the other twelve, finding that Watson didn’t have standing to challenge their sentences. The court rejected a broad reading of “any person,” insisting that any such challenge had to come from a person affected by the judgment.

Watson then did something that many, indeed most, lawyers find difficult: He persuaded a panel of the Supreme Court to grant him a writ to review the standing ruling. The court simultaneously awarded the Commonwealth an appeal on the vacatur of Watson’s sentence.

Well, now. How do we resolve this? The plain language of the Supreme Court’s jurisprudence seems to favor Watson. That broadly phrased void-ab-initio precedent looks like it covers this situation, and unless the court is going to backtrack on its oft-repeated “any person” holdings, Watson may get to canopener a bunch of other felons’ sentences, conceivably against their will.

Except it doesn’t come down that way. In the standing appeal, the justices rule that traditional standing requirements implicitly limit the class of the “any persons” who may challenge a void judgment, so Watson can’t raise this objection on behalf of the other felons. In doing so, the court limits the application of its prior holding in the Virginian-Pilot Media case in 2010, so now the ability of a person without standing to make a challenge is limited to subject-matter-jurisdiction objections. The court also declines to vacate those other felons’ sentences sua sponte, as the Virginian-Pilot concurrence had suggested; that’s because those felons should be made parties to the proceeding.

That leaves the Commonwealth’s appeal of Watson’s vacatur. Here, the court turns to two decisions from 1953, holding that a too-short sentence is merely voidable, while a too-long one is void. Today’s opinion holds that these old cases were not among the difficult-to-reconcile decisions that the court undertook to encompass within its broad doctrine in the 2009 Rawls decision. A too-short sentence is still merely voidable, so Watson’s challenge to his sentence comes years too late.

This, then, is what the court rules today:

• In the numerous earlier decisions holding that “all persons, anywhere, at any time, or in any manner” may challenge a void sentence, the ruling really meant “a person with standing.”
• In the bright-line Rawls doctrine, the phrase “a sentence imposed in violation of a prescribed statutory range of punishment” the court really meant “a sentence imposed in excess of a statutorily prescribed maximum punishment.”

That’s the law henceforth.

Venue

Here’s one for the procedure geeks among us: Is venue improper if the plaintiff sues somewhere other than the place specified in a forum-selection contract clause? Let’s dig into RMBS Recovery Holdings I v. HSBC Bank USA to find out.

This is a derivative suit filed by several entities that collectively invested in mortgage securities during the real-estate boom of about 12-15 years ago. HSBC Bank serves as trustee to three trusts that held those securities. The investors contracted with two entities that today’s opinion calls sponsors; the sponsors’ job was to ensure that only high-quality loans made their way into the trusts. The sponsors agreed to a sort of quasi-guaranty arrangement: If any poor-quality loans made it through the cracks, the sponsors would either replace or repurchase them. This afforded the investors a separate measure of security.

I don’t have to tell you what happened, do I? The recession happened, and the boom market went bust. The investors, facing a huge capital loss, insisted that the bank force the sponsors to make good on their promise. The bank agreed to do so only if the investors signed confidentiality and indemnity agreements.

While these folks are firing letters back and forth, the statute of limitations is ticking. To beat that clock, the investors filed derivative actions in New York against the sponsors. The bank and the investors then signed the confidentiality/indemnity agreements, each containing a forum-selection provision requiring any litigation to occur in New York City.

Once the ink was dry on these, the bank substituted itself in the New York suits as plaintiff. Bad news: By then, the statute of limitations had expired. The New York court accordingly dismissed the suit as untimely.

That led the investors to sue the bank in Fairfax, site of the bank’s headquarters, claiming that the bank failed to act timely to protect the investors’ rights. The bank replied with a motion to dismiss, claiming that Fairfax was a forum non conveniens. It argued that New York was more convenient due to, among other things, the presence of several witnesses there, plus the fact that New York law governed anyway. The motion said nothing about the selection clause in the confidentiality agreement.

The Fairfax court quickly convened a hearing. The judge was astounded at the contention that a bank could claim that it was inconvenient to litigate a claim in its home county. The motion to dismiss died a quick death.

The parties continued to conduct pretrial litigation in Fairfax. At one point, the court sustained a demurrer with leave to amend. The investors timely amended, and this time the bank moved to dismiss based on the forum-selection clause in the confidentiality agreement. This time, it worked; the circuit court agreed that it had to dismiss without prejudice and allow the parties to litigate up north. The court rejected a claim that the bank had waived the clause by litigating the case here in Virginia for over a year before raising this objection.

If you’ve waded through this complex tale this far, take heart: It’s time for some appellate rulings. Both sides appealed, and today the justices hand two victories to the investors. In their appeal, the court agrees that the presence of a forum-selection provision in a contract is a personal defense that a party can waive. It also rules that, on this record, the bank did waive it; objections to venue have to be raised and pressed on to a ruling promptly. The bank didn’t do that, so it lost the ability to insist upon trying the case in New York.

In the bank’s appeal, the Supreme Court rules that the trial court didn’t abuse its discretion by keeping the case in Fairfax, rejecting the claim that our courts are inconvenient. Here, the bank is undone by an unfavorable standard of appellate review. The trial court didn’t abuse its discretion, the justice rule today, because there are plenty of connections with Virginia, document transfer is simple and easy in this digital age, and it would take several years to get to trial in the Big Apple.

I saw one important tidbit in today’s opinion: “Code § 8.01-264(A) does not address an instance, as here, in which venue is properly laid but another forum has been otherwise agreed to by the parties in a forum selection clause.” That factor is relevant in a motion under § 8.01-265. The former statute deals with suits filed in an improper forum; the latter is where the plaintiff chooses a forum that’s proper, but inconvenient. Keep that distinction in mind if you’re moving to transfer or dismiss.

School discipline

There’s a complex procedural setup in Fairfax County School Board v. S.C., so I’ll give you a truncated version of the facts and then jump straight to the holdings. A high-school freshman in a Fairfax public high school found herself in hot water when three other students reported that she had sexually touched each of them. An assistant principal notified her of the accusations; she submitted a written reply, admitting the touching but insisting that it was consensual.

The school system’s behavioral policy bars sexual touching regardless of consent, so the principal issued an interim 10-day suspension to the freshman, notifying her in writing that the school division would conduct a hearing for sexual assault within that time. The student brought a lawyer with her to the hearing, in which two hearing officers presided.

During the hearing, the freshman admitted to the conduct; her lawyer acknowledged that “there’s a very good possibility that this does fall within a disciplinary realm.” The hearing officers found that the conduct was nonconsensual sexual touching, but didn’t find sexual battery as defined in the Code of Virginia. They imposed longer-range discipline, including transfer to an alternative school; the school board affirmed that.

The freshman sued in circuit court, arguing that the discipline imposed was arbitrary because the student had been exonerated of sexual assault or battery. The trial judge agreed and vacated the finding of misconduct.

The Supreme Court reverses today. There are a few key reasons for that, but the primary one is the strong deference that courts must accord to school divisions in disciplinary cases. The circuit court had focused on the legal definition of sexual battery, which requires proof of “force, threat, intimidation, or ruse.” But the school division’s policy required none of these factors; it simply banned all sexual touching, and the student unquestionably did that. The justices accordingly dismiss the freshman’s petition for judicial review.

ANALYSIS OF MAY 16, 2019 SUPREME COURT OPINION

(Posted May 16, 2019) I’m a bit late in getting to today’s analysis, as I was out of the office this morning. Today the justices hand down a single published opinion, augmented by a published order.

Criminal law

Resolving a question of first impression, the justices explore the evidence required to sustain a conviction of using a communications system to solicit a late adolescent with lascivious intent. The case is Commonwealth v. Murgia, and involves text messages sent back and forth between a 16-year-old student and her 40-year-old track coach.

The messages started innocuously enough; the student wanted to improve her performance in the high jump and asked the coach to help. He responded affirmatively, followed by what plausibly cold be described as playful banter.

It graduated from banter by the third set of messages, as the coach spelled out in a long text a detailed and graphic sexual fantasy involving the student. He must have sensed something when she abruptly stopped texting back. Soon enough, police came to interview him. By then, they were armed with a printout of the highly inculpatory thread.

The relevant statute forbids using a communications system “for the purpose of soliciting, with lascivious intent,” a child of the age of 15-17 to perform any of various sexual acts. The coach admitted that he texted the student and that his messages were, well, creepy; but he insisted that he never proposed any such act with the student. It was merely a description of a dream and not an enticement to make it come true.

A circuit-court judge disagreed, considering the nature of the athlete/coach relationship and the “pattern of communications.” The court convicted the coach and handed him a ten-year sentence, all suspended. A divided panel of the Court of Appeals reversed the conviction, adopting the coach’s contention that, creepy as it was, nobody actually solicited anything.

While the case was in the appellate system, the justices handed down a 2017 decision interpreting a related subsection of the same statute. The justices accordingly remanded the appeal back to the CAV for reconsideration. The Court of Appeals again reversed the conviction, and the Commonwealth appealed, seeking to reinstate the original judgment.

The Supreme Court today unanimously reverses. The court finds that the CAV Panel failed to accord the trial judge’s factfinding the proper deference. Specifically, the court had evaluated the context of the messages, not merely the words used, and inferred – as the law permits factfinders to do – that the coach was actually proposing illicit contact. The court thus reinstates the conviction.

This opinion is independently noteworthy from a word-nerd perspective. The author, Senior Justice Koontz, recites that the student and coach

… began communicating by “text messages” in October 2014 …

He appends a footnote to explain what a text message is. The note also refers to “graphic devices known as emojis.”

My readers in the Millennial and Gen X crowds will find it amusing that the court encloses the words text messages in scare quotes, and that it finds it necessary to define the term and the word emoji. So will most Boomers who are even passably familiar with cell phones. The excellent usage book Dreyer’s English, written by the copy chief at Random House, advises writers to avoid scare quotes because, a generation from now, a reader will find it quaint. (Quaint is my euphemism for what Dreyer actually says. Go check page 52 if you’re curious.)

Insurance

The court also releases a published order in James River Ins. Co. v. Doswell Truck Stop, LLC. This appeal involves a coverage question that turns on an auto exclusion from a commercial general liability policy.

James River issued the CGL policy to the truck stop; the exclusion stated that the policy wouldn’t cover “bodily injury and property damage arising out of the maintenance of” any auto. This claim arose when a trucker asked a mechanic to repair or replace one of the tires on his rig. During the process, the mechanic invited the trucker into the shop to watch. He then allegedly over-inflated the tire, causing it to explode and injure the trucker.

The insurer denied coverage, citing the exclusion. A circuit-court judge ruled in favor of the truck stop, but today the Supreme Court reverses, holding that the policy’s language unambiguously excludes this claim. The court also rejects the truck stop’s argument that this was really a premises-liability claim:

Thus, regardless of whether allowing Smith into a dangerous location was a proximate cause of his injuries, the fact remains that a significant causal connection exists between the maintenance on the tire and Smith’s injuries. As such, Smith’s injury arose out of the maintenance of a vehicle and the Auto Exclusion applies.

ANALYSIS OF MAY 2, 2019 SUPREME COURT OPINION

(Posted May 2, 2019) After a one-week hiatus, the justices today resume the process of clearing their desks by handing down one published opinion. In Brown v. Commonwealth, they address a motion to withdraw a guilty plea.

A loss-prevention officer at a department store observed Brown concealing merchandise. Recognizing her as a person who had been barred from the store for previous larcenies, he confronted her. Today’s opinion describes succinctly what happened next: “she asked if he was going to press charges. She then left the items behind, ran to a vehicle, and fled.”

Uh-oh. This looks bad, especially since this would be a third larceny offense, and that means a felony charge. When Brown got to court, it looked bad enough that she agreed to a plea deal, reducing the larceny charge to second offense. The deal called for a 12-month jail sentence, with only one month to serve. The judge thought that sounded okay, and announced judgment accordingly.

Bad news soon arrived for Brown, as she realized that she could lose her home and her job – presumably by being locked up and not at her place of employment for 30 days – by taking the deal. Her lawyer filed a motion to withdraw the guilty plea two days after trial. The court hadn’t entered the sentencing order yet, but it denied the motion and sentenced Brown according to the agreement.

Brown got nowhere in the Court of Appeals, but the justices agreed to take a look. Today the Supreme Court unanimously affirms. The opinion provides a useful primer on the standards that apply to motions to withdraw such pleas.

There are two different sets of criteria for these motions. The first is where the defendant makes the motion before judgment. There, the defendant gets a more forgiving playing field: “a motion to withdraw should be granted if the guilty plea was ‘made involuntarily’ or ‘entered inadvisedly, if any reasonable ground is offered for going to the jury.’” To meet that standard, the defendant has to show only that his motion is in good faith and there’s a reasonable basis for it.

After judgment, it’s much tougher sledding for a movant. By statute, he has to show manifest injustice, and that requires proof of “an obvious miscarriage of justice” or a direct and obvious error.

The Supreme Court’s first task is deciding which set of rules applies after rendition (oral announcement) of judgment but before entry (signing an order) of judgment. The court concludes that the more logical approach is to apply the tougher manifest-injustice standard as soon as the court announces its decision.

This starts us down an inexorable road to ruin for Brown. The justices first note that her proffered defense to the charge – the fact that the merchandise never left the store – is legally insufficient as a defense to a larceny charge. One can commit larceny from a store just by concealing merchandise with an intent to steal, even without getting outside. Second, her claim that collateral consequences (loss of job and home) fails to establish a miscarriage of justice. The court surveys rulings from other states before reaching this conclusion:

In accord with these decisions, we conclude that actual or potential adverse employment or housing consequences that flow from Brown’s guilty plea do not satisfy the manifest injustice standard and, therefore, did not provide a basis upon which to set aside her guilty plea.

SCV ANNOUNCES IMPORTANT MANDAMUS RULING

(Posted May 2, 2019) In addition to today’s published opinion on withdrawal of a guilty plea, the justices today summarily decide a mandamus petition with important ramifications for criminal prosecutions and the separation of powers. The case is In re Underwood, and is the latest development in an ongoing dispute between the Norfolk Commonwealth’s Attorney and some of that city’s circuit court judges.

Norfolk Commonwealth’s Attorney Greg Underwood recently made a decision that his office would no longer prosecute simple-possession charges involving marijuana. Drug distribution charges would be unaffected, as were DUI-drug cases. But because of a perception that the current setup has a disproportionate impact based on race, Underwood decided that his office wouldn’t participate in that anymore.

In two pending cases in circuit court, Underwood’s assistant prosecutors moved the court to dismiss the prosecutions. The circuit judges refused, feeling that this trod upon legislative turf; they felt that Underwood was effectively decriminalizing simple possession in Norfolk. Underwood filed mandamus petitions, asking the Supreme Court to compel the judges to perform what he described as a ministerial act.

Today, by unpublished order that isn’t available on the court’s website, a panel of the court dismissed the petitions. The court finds that entry of dismissal is still discretionary, in that the judge has to decide how to resolve he motion. Underwood had cited a 2006 Supreme Court decision, Roe v. Commonwealth, 271 Va. 453, for the proposition that a dismissal is different from a nolle prosequi, in that a nol pros requires the prosecutor to state a reason for the request, while a dismissal doesn’t.

If you get Roe out and read it, it really does say that, and that might lead a casual reader to conclude that Underwood has a point. Today’s SCV panel dispenses with this problem in a time-honored manner, by ruling that the no-reason-required language was mere dicta, and not binding on the current court.

There’s more. Today’s order notes that because a nol pros requires court consent, and because a dismissal without prejudice is effectively a nol pros, a dismissal without prejudice also requires judicial consent. That still doesn’t get us to the point of a dismissal with prejudice. But the court isn’t finished. It finally rules that a dismissal with prejudice operates as a judgment of the court because it’s a final determination of the parties’ rights. And since rendering judgment is a fundamentally judicial function, implicating judicial discretion, mandamus isn’t available; mandamus only lies to compel ministerial acts.

I don’t have a horse in this race. I don’t handle criminal appeals as part of my appellate practice, and I certainly don’t represent any of the litigants here. But this ruling has troubling implications, in my view. Let’s take a peek at the map and see where this road leads.

If it really is true that a court can refuse to allow the party with the burden of proof to dismiss the case without proceeding further, what about civil suits? If a plaintiff decides to pull the plug on her lawsuit and hands up a dismissal order, can the judge refuse it and require her to call her first witness? Under the rationale of today’s order, the answer is yes. That isn’t likely to happen often, but this ruling opens the door to just such a remarkable scene.

Back to the criminal milieu: Does this mean that a circuit court judge can force the elected Commonwealth’s Attorney to try a case that he wants to dismiss? Does he have no prosecutorial discretion? On this pregnant question, today’s order is a little less decisive. The order merely denies the mandamus petition because, the court holds, a dismissal is discretionary. But if a prosecutor really wants to dismiss a misdemeanor case (the Code mandates that he prosecute felonies, so those are outside the scope of today’s discussion), in theory the prosecutor could show up for trial, wait for the witnesses to be sworn, and then announce, “We rest.” What’s the judge to do now? She can’t refuse a defense motion to strike; jeopardy attached with the witnesses’ oath, and the defendant is entitled to a judgment of acquittal.

Foreseeably the judge could hold the prosecutor in contempt (an order that is, I hasten to point out, immediately appealable). That would produce a three-alarm fire on appeal, as the parties to the case would debate issues of prosecutorial independence and discretion, manpower issues, and the like.

There’s another option for the prosecutor. The law allows a Commonwealth’s Attorney to withdraw from the prosecution of a misdemeanor. In that instance, the court can either appoint a special prosecutor — I’m not sure if there’s funding for that — or just allow the trial to proceed as in general district court, with the arresting officer testifying as the Commonwealth’s case in chief.

But even this approach has a major drawback: Suppose the defendant in such a case, knowing that there will be no prosecuting attorney, demands a jury trial? Now who’s going to handle the prosecution’s case in chief? Who’s going to exercise the prosecution’s peremptory jury strikes? Who’s going to give its opening statement and its closing argument? Unless the police officer happens to be a member of the State Bar, that answer is nobody; that’s who.

This order comes from a three-justice panel — the chief justice, plus Justices Goodwyn and Kelsey — who decided the matter very promptly. Underwood filed the petition just a few days ago, and the panel announced its ruling today without waiting or a response from the judges, the respondents in today’s proceeding.

ANALYSIS OF APRIL 18, 2019 SUPREME COURT OPINION

(Posted April 18, 2019) If you enjoy delving into the arcane world of suretyship law, the Robes today hand down an interesting and informative opinion for you. If you aren’t in this select group, the sun is shining and the temperatures are moderate; why don’t you take the afternoon off? You won’t get weather like this in mid-July.

In Callison v. Glick, the court takes up the topic of subsuretyship. Yes, that’s a word, though my computer’s Spell Check feature finds it objectionable. Today’s opinion resolves an incredibly complex fact pattern. To avoid getting bogged down in that, and risking losing your attention, I’ll just say that it involves a loan against property used as an “automobile service center,” though the opinion elsewhere calls it a dealership. You can read about all the facts in the slip opinion; I’m going to jump straight to the holdings.

There are normally three parties in a surety arrangement: The creditor, the debtor, and the surety. A surety promises to make good on the loan if the debtor defaults. Until the debtor defaults, the creditor can’t touch the surety.

This decision defines the boundary between a cosurety and a subsurety. Cosuretyship is where two sureties each agree to protect the creditor – presumably equally, though it’s certainly possible that they could agree to be sureties in different amounts. In that situation, if the debtor doesn’t pay, the creditor can go after either or both cosureties.

A subsurety is different: That’s where the subsurety agrees to step in only after the debtor and the original surety fail to pay what’s due.

Today’s ruling turns on that distinction. The trial court ruled that the appellant here was a cosurety, and the creditor could tag her immediately upon nonpayment. On appeal, she asked the justices to reverse that, but the Supreme Court finds that the trial court didn’t abuse its discretion in its ruling. Finding that “reasonable jurists could differ” as to the conclusion, and that the trial judge didn’t make a mistake of law, the court unanimously affirms today.

This, then, is possibly the latest in a long line of appellate decisions where the standard of review is case-dispositive on appeal. Justice Goodwyn writes today’s opinion, and he makes it clear that the seven justices may or may not have agreed with the trial court’s view of the case. But they don’t second-guess judgment calls like this.

The appellant assigned error to one additional ruling. She had asked the trial court to clarify its ruling, to specify that the judgment was without prejudice to her later right to seek contribution from the original surety and the debtor, but the court refused to do that. Resolving this assignment, the justices cite recent caselaw that excuses trial courts from having to explain their orders. They also note that doing so in this context would amount to rendering an advisory opinion, since the appellant’s contribution claim wouldn’t be ripe until she made good on the obligation. My best guess is that this ruling effectively gives the appellant what she wants; a holding that the claim isn’t ripe almost certainly means that the judgment here isn’t res judicata as to that future claim under Rule 1:6. But that’s a question for another day.

ANALYSIS OF APRIL 11, 2019 SUPREME COURT OPINION

(Posted April 11, 2019) If you’re playing semi-hooky today, sitting in your office while live-streaming The Masters, here’s a reason to break away for a few moments. The justices today decide a first-impression issue in Dominion Resources v. Alstom Power.

Tort lawyers know all about the collateral-source rule: Where the victim of a tort had protected herself by buying insurance, the tortfeasor doesn’t get to apply any insurance payments to reduce his liability for damages. That’s because the tortfeasor didn’t buy the insurance, and thus shouldn’t benefit from it. While this can result in a double recovery of sorts, the law chooses to err on the side of the victim instead of the Bad Guy.

On a few occasions, the Supreme Court has come close to deciding whether the doctrine applies in the contract milieu. In each of those instances, the court has decided the appeal on different grounds, leaving the ultimate question for another day. Today is that day.

The underlying dispute is complex, so I’ll give you the simplified version. Alstom did work at some of Dominion’s power plants. An accident at one of those plants killed three workers and injured two more. Dominion paid over $5 million to compensate the victims and incurred almost twice that in legal fees defending the claims.

The contract between Dominion and Alstom required the latter to purchase insurance, naming Dominion as an additional insured. Alstom did so, and Dominion separately bought an excess policy to cover itself.

After resolving the claims, Dominion collected from its excess carrier and then sued in a Connecticut federal court to recover the litigation expenses from Alstom. (The suit charged that Alstom had failed to defend Dominion in the tort suits and had bought the wrong kind of insurance.) Alstom responded by saying that Dominion couldn’t sue, because it had already been paid. Dominion replied that the collateral-source rule barred Alstom’s defense.

The Connecticut judge decided that it would be wise to ask the justices whether the rule applies in the world of contracts. The justices agreed to decide the certified question, and today they unanimously rule that it does.*

Yes, that was an asterisk. The Supreme Court finds that the same reason for the rule applies in contract as in tort. You shouldn’t be able to escape liability for your contract breaches merely because your victim has been cautious. But the court stops short of a full-throated endorsement of this principle. Instead, we have this language:

The same rationales supporting this Court’s long recognition of the collateral source rule in tort cases also support the rule’s application in certain breach-of-contract actions. Whether the rule applies to a given case, however, requires a case-specific determination of whether the parties’ expectations, in light of those rationales, support the rule’s application.

I added italics to highlight the key qualifier. The court decides that the doctrine can apply in some contract cases, but it declines to draw the boundaries. That’s for future trial judges to do. And that, in turn, means more work for trial lawyers, so who’s to complain?

In addition to this published opinion, the court also hands down three published orders:

In Brown v. Warden, the justices rule that the limitation-of-actions period for filing habeas corpus petitions does not violate the constitutional prohibition of suspension of that writ.

In Turner v. Commonwealth, the court affirms a conviction for failure to register as a sexually violent offender. Turner was convicted in another state of a nonviolent sexual crime. The Virginia statute requires frequent (every 90 days) registration by sexually violent offenders, in contrast with once a year by nonviolent offenders. But a quirk in the Virginia statute classifies all offenses for which the offender must register in the state of the crime, as violent. The justices note that there’s “no obvious explanation” for why the General Assembly chose to isolate offenses from elsewhere, but the court isn’t free to rewrite the act.

Finally, in Spear v. Omary, a divided court rules that when a litigant appeals a JDR judgment to circuit court, and then withdraws the appeal, that automatically remands the case to JDR, even if the withdrawal order doesn’t say so. Justice Kelsey, joined by Justice McClanahan, dissents, maintaining that some affirmative language evincing remand is necessary.

FURTHER ANALYSIS OF MARCH 28, 2019 SCV DECISIONS

(Posted March 29, 2019) As promised, here’s some additional detail on yesterday’s published opinion from the Supreme Court, plus notes on the two published orders handed down yesterday, and a first-quarter David-Golilath Index.

Criminal law

Yesterday’s note on Collins v. Commonwealth gave you the decision and the voting lineup. The majority opinion concludes that the officer’s actions didn’t violate clearly established controlling appellate opinions, so the officer could have had a good-faith basis to believe that he could conduct a limited search on the curtilage of Collins’s home. You’ll see the majority’s line of reasoning in the analysis section of the opinion. But it isn’t hard to read between the lines — you don’t even have to squint — to perceive the majority’s patent hostility to the exclusionary rule.

The opinion begins by citing a string of decisions that limit the rule’s application, pointing out for example that the rule is a creature of caselaw and was unknown to the Founders. You will search in vain for any mention of the numerous decisions that explain the salutary purpose of the rule; this opinion is not intended to be a balanced presentation. (In fairness, that’s the dissent’s job.) The majority cites, for example, dissenting SCOTUS opinions and other writings from some of the Court’s most conservative members. 

Here’s a good illustration, a line from a dissent by Justice Thomas: “Historically, the only remedies for unconstitutional searches and seizures were ‘tort suits’ and ‘self-help.’” I will confess that I never envisioned self-help as a remedy for Fourth Amendment violations; perhaps his Honor expects that the criminal defendant’s remedy is to break into the Police Department’s evidence room and steal the incriminating evidence back, so the prosecutor can’t use it. As for tort suits, you can imagine that a monetary damage award — assuming you can get one from a jury while serving prison time — is likely to be cold comfort for someone who’s lost his liberty.

The court then applies prior holdings from SCOTUS and the SCV to rule that, given the state of the law at the time of this arrest, the right to be free from a vehicular search in one’s curtilage wasn’t well-established. That right became established when the folks at One First Street sent this case back for reconsideration. Thus, although the search violated the Fourth Amendment, the exclusionary rule doesn’t apply.

Three members of the majority would go on to add anther ground for affirming the conviction. That’s the one that the Big Robes gently suggested at the conclusion of Collins v. Virginia: exigent circumstances. These three justices would have held that a number of factors, such as the inherently mobile nature of a vehicle like this, made it all too possible for Collins to run over to it, hop on, and speed away, much as he had eluded police at high speeds before. They also cite the officer’s minimal incursion into the curtilage. But since only three justices vote this way, that doesn’t form a part of the court’s ruling in this appeal.

Justice Mims’s dissent begins with the ruling that the majority didn’t make, that of exigent circumstances.  He notes that it wouldn’t have been possible to make a quick getaway here, because the bike was covered with a form-fitting cover that was secured at the bottom, and was basically wedged into a tight space next to a car. In his words:

Thus, driving the motorcycle away would first require Collins or the hypothetical accomplice to approach it; remove the cover (which, incidentally, would have exposed it to plain view); either back it out of the driveway for the length of the retaining wall or attempt to turn it around, if the narrow width of the driveway between the retaining wall and the house accommodated the turning radius increased by its extended body; mount it; and turn it on. 

As for the Commonwealth’s contention that sending an officer to get a warrant might have taken too long, the dissent points out that the officer at the scene could have secured the driveway for the limited time it took, a minimal seizure that’s less intrusive than a warrantless search.

The dissent then turns to the good-faith argument. The dissenting justices believe that the two prior decisions on which the officer here could have relied are distinguishable. They conclude with this memorable passage: “This is a fundamental question of whether the government has a right to search or whether a citizen has a right to privacy. The Founders protected only the latter in the Constitution.“ I believe they’re right. Don’t mistake my bias here; I used to prosecute vehicular crimes like this, and criminal suspects who come to me looking for a sympathetic ear have probably signed up for disappointment. But as the dissent urges, in close calls, the courts should err, if at all, on the side of requiring a warrant. I believe that the majority has erred here, in the other direction.

In a published order, the court also decides the appeal of a police officer who was convicted of voluntary manslaughter in the shooting of a suspect. The case is Rankin v. Commonwealth, and comes to us via the Court of Appeals. For our purposes, the key factual issue is that immediately after the shooting, a recording device caught the officer saying to a fellow officer, “I need you as a witness. It’s my second one. Don’t leave.” (Rankin had one prior fatal shooting in his police career.) The officer moved in limine to exclude this statement, fearing its prejudicial effect on a jury. The trial court denied that motion, the statement came into evidence, and the jury got him.

The Court of Appeals affirmed, holding that the statement “did not indicate [Rankin] had shot and killed another person.” It also decided that the statement came within recognized hearsay exceptions and so was admissible. Finally, the court held that any error in admitting the evidence was harmless, as the officer had had a fair trial.

The officer got a writ from the justices, but yesterday the Supreme Court affirmed without reaching the merits of the officer’s arguments, finding that he hadn’t assigned error to the harmless-error ruling. Since that was an independent ground for the affirmance below, the Supreme Court affirms on the unappealed ground, applying something known at the court as the Manchester Oaks doctrine. That rule sensibly holds that you can’t do an end-run around an adverse ruling by ignoring it and appealing only a companion finding.

But wait. Here’s the officer’s assignment of error: “The trial court erred and abused its discretion when it permitted, over Mr. Rankin’s objection, the admission of the statement: ‘It’s my second one,’ which was made by Mr. Rankin to Mr. Provo immediately following the shooting of Mr. Chapman. This statement was unduly prejudicial to Mr. Rankin and it was irrelevant as it was not probative of any fact before the court.“ (Emphasis supplied)

A finding of harmless error rests on the assumption that the error could not have affected the outcome of the case: Even if it’s wrong, it didn’t matter. But the officer here has asserted that the evidence was unduly prejudicial. To most legal observers, that necessarily means that the officer was harmed by the admission of the evidence. That’s what unduly prejudicial means. This is at least a plausible attack on the harmless-error finding, but the justices today rule otherwise.

In case you’re wondering, I suspect (without reading the briefs) that the answer is no: The officer can’t appeal to SCOTUS. That’s because there are no obvious federal-law issues involved here. On questions of Virginia law, the Supreme Court of Virginia is the court of last resort.

Finality

In another published order, the court breaks new ground in the field of finality, always a subject of keen interest for appellate lawyers. In Dwyer v. Town of Culpeper, the justices explore yet again the effect of a trial court’s retaining jurisdiction over a case while entering an otherwise final, appealable order.

This appeal implicates the unity-of-lands doctrine. Dwyer owned eight contiguous parcels in Culpeper, and desired to develop them together for multifamily housing. He contracted for the requisite engineering work and submitted a site plan to the Town for approval. While the site plan was under review, the town condemned parts of three of the parcels. This, in the landowner’s view, made the development unviable. He sought damages based on his development plans.

If this sounds vaguely familiar, you may be thinking of a previous major unity-of-lands decision, CTC v. Glass from 2005. The justices reversed a damages award there because Glass’s development plans — really just vague ideas — were too ill-defined to be anything other than speculative. Here, the landowner was much further along, so he hoped to persuade the jury that these parcels should all be considered together. But the trial court refused his proposed jury instruction and the jury gave the owner a reduced award.

The trial court entered two orders. The first, in September 2017, overruled the owner’s exceptions to the report and vested title in the Town. It expressly retained jurisdiction to allow the court to consider two ancillary matters, primarily relating to the disposition of the money deposited by the Town. In November, the court entered a second order that resolved those issues and closed to the file.

The owner appealed from the second order, perceiving that to be the final order in the case. The Town moved to dismiss, arguing that the September order was final and hence immediately appealable. Here’s a passage from the statute on which the Town relied: “The order confirming, altering or modifying the report of just compensation shall be final.” The owner replied that that may be true, but the trial court, exercising a right inherent in the courts, had postponed finality by retaining jurisdiction. He cited caselaw holding that the use of that exact phrase does keep the case alive and postpones finality.

Yesterday, the justices ruled, in a matter of first impression, that the “retain jurisdiction” doctrine doesn’t apply in eminent-domain cases. That’s because those proceedings are two-phase actions. The first phase deals with the take and just compensation, while the second resolves any disputes as to ownership of the funds. Because of this distinction and the statutory language, trial judges have no authority to postpone finality by retaining jurisdiction over the case, so any appeal must be taken from the award confirming the jury’s report, even while the parties may continue to litigate in the circuit court.

To my knowledge, this exception to the finality doctrine is sui generis; this is the only context in which an order that expressly retains jurisdiction does not postpone finality.

The David-Goliath Index

Today marks the end of the first quarter of the year, so it’s time to look back and see how the big guys and the little guys did over the past three months. In that time, the Supreme Court has issued published opinions and published orders in eleven appeals with what I consider to be identifiable David-vs.-Goliath features. In those, the court ruled in favor of our Davids three times and our Goliaths eight times, for a D-GI of 27/73. That’s statistically indistinguishable from the final figure of 31/69 from all of the appeals decided in 2018.

ANALYSIS OF MARCH 28, 2019 SUPREME COURT OPINION

(Posted March 28, 2019) While most of America is focused on the national holiday today, the Robes in Richmond give us one published opinion and two published orders today. Because of my travels, I’ve had limited time to address today’s rulings. I’ll post some limited commentary on the opinion here, and will go back and add more detail (including on the orders) next week.

What do you mean, “What holiday?” It’s Opening Day. Life begins again today. Be happy.

Criminal law
We’ve seen Collins v. Commonwealth before; this is the case involving the driveway search of a motorcycle that had pointedly eluded police in high-speed chases. An officer saw what he thought was the suspect bike covered by a tarp in a driveway, so he walked a few feet onto the property, lifted the tarp, and took a peek. The Court of Appeals and Supreme Court of Virginia affirmed the conviction, but SCOTUS reversed and remanded, holding that the automobile exception to the Fourth Amendment doesn’t permit a warrantless search of a motorcycle in the curtilage of private property.

The Folks at One First Street directed our justices to reexamine the case to determine among other things whether exigent circumstances justified the search. Today a fractured court, in three opinions, rules that the search was permitted under a different exception: the officer’s good faith.

Here’s the lineup of votes today: Justice Kelsey, joined by Justices Goodwyn and Powell, believe that the good-faith exception alone wins the case for the prosecution. Justice Kelsey also agrees with today’s concurrence, written by Justice McClanahan and joined by the chief justice, and would add the exigent-circumstance exception to good faith to affirm the conviction on two grounds. Justice Mims dissents, joined by Justice Koontz; they believe that neither exception justified the search.

Since the only holding that commands four or more votes is the good-faith exception, that’s the official ruling of the court; only three justices found exigent circumstances, so Collins wins what may turn out to be a meaningless victory on that issue.

As promised, I’ll add more detail next week.

ANALYSIS OF MARCH 21, 2019 SUPREME COURT OPINION

(Posted March 21, 2019) On a day when we mark the end of a storied Major League career, we get a single, short opinion from the justices. Anderson v. Warden is a §1983 claim by an inmate who asserts that prison officials violated his due process rights during a disciplinary proceeding that resulted in a $10 fine.

After failing a drug test, Anderson faced administrative charges. Before the hearing, he asked for a chain-of-custody report and a list of his current medications, presumably to examine whether those legitimate drugs could generate a false positive. Instead of giving him what he sought, the hearing officer postponed the hearing and asked the prison’s medical staff if Anderson’s medications could produce an effect like that.

The medical staff said no, and the officer passed this conclusion along to Anderson. The officer then found a violation of regulations and imposed the fine. Anderson exhausted his administrative appeals before filing this civil-rights action, claiming that he should have received the requested evidence for his own defense.

A circuit-court judge sustained a demurrer, but a Supreme Court writ panel agreed to review the case. Today the justices unanimously affirm.

Today’s analysis begins with the Sandin doctrine, which Justice Kelsey describes today:

[P]rison disciplinary proceedings do not implicate a constitutionally protected liberty interest unless they impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”

The same rule applies to a property deprivation. Thus the question is whether this deprivation of evidence rises to that level. The court finds that it does not. Due process in this context requires, as relevant here, the ability to present evidence in your own defense.

But in criminal cases, you don’t have a constitutional right to discovery. You have even fewer rights in a disciplinary proceeding. That means that the inability to exercise a nonexistent right can’t be a constitutional deprivation.

If today’s opinion had ended there, this would be an unremarkable conclusion; call the next case. But the court goes on to add a belt to those suspenders, and in doing so will raise more than a few eyebrows.

The court rules, as an independent basis for affirming, that to find a constitutional violation, a defendant must show prejudice, in the sense that the evidence, if admitted, would have affected the outcome of the proceeding. Here’s how the court evaluates this factor in the context of this case:

At no point, either in the circuit court or on appeal, has Anderson proffered what the chain-of-custody report or list of medications would have proven. He has never alleged that the report would have shown a gap in the chain of custody or that it would have provided any other basis for exonerating him of the charge.

In my view, this imposes an impossible obligation on Anderson. The court says to him, in essence, “Because the prison concealed the requested information from you, you can’t prove that it would have helped you. Accordingly, you lose.” Today’s opinion notes that the hearing officer did investigate the drug-interaction possibility and concluded that there was no foundation for it. This ruling means that Anderson has to accept the officer’s word for it. As for the chain-of-custody evidence, the opinion merely says that Anderson hasn’t asserted that there actually was a gap. How could he know?

The finer points of this legal analysis foreseeably may be lost on a layman who reads this opinion. Withholding evidence results in disciplinary action against the accused? The context matters here, as prisoners in disciplinary proceedings don’t get the procedural protections of those defending against criminal charges in the first place. Even so, I believe this opinion would have been easier to swallow without the last two substantive paragraphs.

ANALYSIS OF MARCH 14, 2019 SUPREME COURT ORDER

(Posted March 14, 2019) On a day that we University of Richmond alumni hold sacred, the Supreme Court hands down a single unpublished order. In years past, I frequently reported on unpubs because they weren’t available anywhere online or otherwise published. They’ve been available here for over five years now, so given their limited utility as precedent — see Rule 5:1(f) — I haven’t focused on them.

But today’s order will resonate with trial lawyers everywhere, and I think it deserves mention. In Seeraj-Montague v. Friendly Ride Access, LLC, the justices address a matter that’s usually left to the trial court’s discretion: continuances.

This is an appeal in a personal-injury lawsuit over an automobile collision. It was set for trial and thrice continued by agreement. The trial judge noted on the last continuance that there would be no more continuances except for good cause.

Except two days before the trial date, the plaintiff’s lawyer got very, very sick. I won’t go into detail, on the chance that some of you might be reading this essay while you grab a bite of lunch; let’s just say that it seemed like a good enough reason to me to continue the case. The lawyer sought medical help the day before trial.

The lawyer apprised his opposing lawyer, warning that he might not be able to make it to court the next day. When he woke up early the next morning feeling no better, he called the court and his opponent to apprise everyone of the situation. He gave contact numbers and offered to verify his health status. He told his client to go to court to let the judge know about his situation and request a continuance. Instead, when the client was an hour late, the judge sua sponte dismissed the lawsuit with prejudice.

The lawyer moved the court to reconsider; the defense lawyer filed what I see as a commendable response, acknowledging that the ill lawyer had stayed in touch. I infer that the response didn’t oppose the relief requested, a highly professional reflection on that defense lawyer. The plaintiff’s lawyer assured the court that he was “physically unable to be present at trial.” The circuit court, unmoved, refused relief.

If you’ve ever been in this situation, you’re already feeling for the plaintiff’s lawyer (even if you’re a defense lawyer yourself). Today the justices step in and do what I perceive to be the right thing: They reverse the dismissal and send the case back for trial. It’s noteworthy that the justices review this judgment under the highly deferential abuse-of-discretion standard. The Robes usually leave daily docket-management decisions to their trial-court brethren and sistren, rather than micromanage something that the trial judges will know better.

But this judge crossed a line. Normally in abuse-of-discretion cases, the Supreme Court will spell out the several ways in which a trial court can abuse its discretion. For example, a court may abuse its discretion “when an irrelevant or improper factor is considered and given significant weight.” That’s the Landrum decision from 2011, one of the most frequently cited recent decisions to come down from Ninth and Franklin.

Today’s order doesn’t spell out in which specific way, exactly, the trial court abused its discretion. Even so, it plainly did. The Supreme Court’s rationale is that the judge’s decision “was unduly harsh.” Today’s order notes that the original dismissal may have been appropriate, but once the lawyer laid out the facts in detail in the reconsideration motion, there was only one suitable course of action.

Once in my career, back in the late 90s, I came to circuit court for day 2 or 3 of a multi-day jury trial. I was sick, weak, and unsure of my stamina, but I was determined to do the best I could, and I told the judge so before the jury came out. That judge – Bert Sachs of the Norfolk Circuit Court – looked at me for a moment and then said, “The law gives me discretion in matters like this, and today I’m going to exercise it.” He brought the jury in and told them to go home and return the next day. You can imagine how grateful I was, and remain, for that act of kindness.

In contrast, the “unduly harsh” approach in Seeraj-Montague is one of the things that can give the legal system a bad name. Today the justices unanimously right this wrong. I don’t know if the case will be reassigned on remand.

ANALYSIS OF MARCH 7, 2019 SUPREME COURT OPINION

(Posted March 7, 2019) Today the justices reach far back, ruling on a petition for a writ of actual innocence relating to a crime that occurred in 1975. In In re: Scott, the Supreme Court analyzes DNA evidence that the defendant claims exonerates him.

A jury convicted Scott of rape, based on an identification by the victim. She testified that she was assaulted in her bedroom by a single attacker. She acknowledged that “her drapes were drawn, and the room was dark except for some light from a ‘pole light’ outside. She did not get a good look at the man.”

Scott offered an alibi defense from two witnesses, but the jury found him guilty. The circuit court sentenced him to 14 years in prison. An appeal and a habeas petition were both unsuccessful, and Scott served several years before being paroled.

In the Twenty-First Century – first in 2010 and again in 2017 – the Department of Forensic Science conducted DNA testing on some of the evidence in the case, most importantly a pair of the victim’s jeans and a buccal swab from Scott. Those tests indicated that sperm on the jeans could not have come from Scott; nor were they from the victim’s boyfriend, who was her only consensual sexual partner at the time. This petition followed.

Today’s opinion is just over 24 pages, and almost ¾ of that is a recitation of the facts and the procedural posture. That’s an indication of how fact-intensive these proceedings are. The justices evaluate the petition and conclude, unanimously, that “no rational trier of fact would have found him guilty beyond a reasonable doubt” given the results of the DNA tests. The court accordingly grants the writ and vacates the convictions.

There’s one ruling that will prove useful in future petitions. One of Scott’s witnesses was a forensic DNA expert from a private company. She explained the meaning of the tests conducted by DFS, the official state agency charged with conducting testing. The Commonwealth objected to the testimony, citing last year’s In re Brown ruling, where the justices held that tests conducted outside DFS and not reviewed or certified by the state agency, are irrelevant in actual-innocence proceedings.

The court rules that it may consider Scott’s expert here, because she conducted no testing. She merely commented on and explained the DFS test results. That’s acceptable, and in a hypothetical trial, a jury would certainly be allowed to hear her testimony. Lawyers filing petitions like this in the future should keep this distinction in mind when marshaling evidence.

ANALYSIS OF FEBRUARY 21, 2019 SUPREME COURT OPINIONS

(Posted February 21, 2019) After a slow drip-drip-drip of recent opinions, today the Supreme Court turns the faucet on fully. We get five published opinions plus a published order today.

Personal jurisdiction

Virginia’s long-arm jurisdiction statute is at the heart of Mercer v. MacKinnon, a suit against a Canadian citizen. This is a family dispute in which one party (the American) accuses another (the Canadian) of self-dealing after obtaining a power of attorney from an elderly relative.

This is actually the second action involving these parties. The first was fully litigated and ended in an appeal that the Supreme Court refused in 2016. The American then filed this lawsuit. Unlike in the first case, where the Canadian appeared and participated without objecting to the Virginia court’s jurisdiction over her, the Canadian moved to dismiss this second suit on jurisdictional grounds.

The American asserted several grounds for jurisdiction, but the court ruled otherwise, finding that the only possible basis was subsection A(4) of the statute:

Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth …

The trial judge ruled that the facts didn’t establish a persistent course of conduct here, so the Virginia court couldn’t adjudicate this claim against the Canadian.

Despite her having asserted several arguments below, the American chose to raise only the A(4) argument on appeal. Today the justices agree with the trial court and affirm. The key to this holding is the requirement that the defendant’s conduct here must be persistent.

In this case, the Canadian allegedly did several things. She (1) came to Virginia and took her ward back to Canada; (2) got a power of attorney and allegedly used it to change ownership or POD nominee of bank accounts; (3) filed a guardianship petition in the original litigation; (4) defended that litigation without objecting; and (5) appealed the original judgment. The Supreme Court rules today that this limited contact wasn’t persistent enough to satisfy the statute.

It is at least possible that one of the other asserted grounds for long-arm jurisdiction might have succeeded on appeal, but we’ll never know. The justices limit their analysis to the only ground in the assignments of error, without discussing any of the other grounds.

Arbitration

Here’s an elementary arbitration question: Is a disagreement over whether a given dispute is arbitrable, arbitrable? In Brush Arbor Home Construction, LLC v. Alexander, two homeowners sued a construction company over claimed defects in their home. The construction contract contained an arbitration clause that consigned to arbitration “any controversy or claim arising out of or relating to this contract,” but it didn’t specify whether a dispute over arbitrability was itself subject to arbitration.

There’s a twist here: The clause specified “arbitration administered by the Better Business Bureau under its Construction Industry Arbitration Rules.” The fact that the last four words are capitalized indicates to me, at least, that that’s the title of a document. But there is no such document; the BBB doesn’t have any rules relating to arbitration in the construction industry.

The trial judge seized on this in denying the motion to compel arbitration. He concluded that the absence of such rules made this clause impossible to perform.

The builder filed an interlocutory appeal – the Arbitration Act allows that when a court refuses to compel arbitration, though not when it actually compels it – and today the Supreme Court reverses in a short opinion. The justices conclude that the question whether this dispute can be arbitrated is a “controversy or claim arising out of or relating to” the contract, so it’s presumptively arbitrable even without a specific clause saying that.

As for those phantom BBB rules, today’s opinion states that that doesn’t require that the BBB have promulgated the rules; it’s perfectly okay for the BBB arbitrator to employ generic construction-industry arbitration rules.

This last point gives me at least minor heartburn for a reason I’ve mentioned here: The capitalized words in the contract do indicate to me that the parties contemplated a specific – though, as it turns out, nonexistent – document. When page 4 of this opinion refers to generic arbitration rules, the capital letters are notably absent. I’m not sure if I would have dissented on this basis if I had a vote; I still believe that the court correctly decided that this call belongs to an arbitrator.

Civil forfeiture

For the second consecutive day, we’ve received an appellate decision in this field. The first one, yesterday, arrived at One First Street across the Potomac, as the Supreme Court of the United States ruled in Timbs v. Indiana that the Eighth Amendment’s ban on excessive fines applies to the states, and thus can apply to a forfeiture. Today, by the banks of the beautiful James, we get Commonwealth v. Hall, where the Virginia justices rule that a valid forfeiture doesn’t require proof of more than one drug transaction.

Hall fell for a time-honored police trick: a controlled drug buy. He drove to an agreed location in his pickup truck to meet the police’s informant. Without getting out of his truck, he made the exchange – the informant handed over cash and Hall tendered oxycodone pills – after which Hall drove away.

Because the gendarmes had him cold, Hall pleaded guilty to the crime. The Commonwealth later sought forfeiture of the truck, reasoning that Hall had used it in substantial connection with the sale. After a hearing on stipulated evidence, the trial court denied the forfeiture, because Hall had only used the truck in a single drug sale.

The Commonwealth got a writ to review that ruling, and today the justices unanimously reverse. There’s nothing in the forfeiture statute that requires multiple drug transactions, so the Supreme Court remands the case for entry of a forfeiture order.

But wait; what about yesterday’s ruling from SCOTUS? Doesn’t that mean that the forfeiture of a truck – exactly the forfeiture in issue in Timbs – is an excessive fine? Not necessarily; the Robes in the District didn’t come out and say that all such forfeitures are excessive. The only question before the court in that appeal was the ruling below that the Excessive Fines Clause didn’t apply to the states. What’s more, it’s quite possible that Hall – the Virginia drug dealer – didn’t preserve an Eighth Amendment objection, so he might not be able to assert it now.

Hall will assuredly try to make that argument, given the gentle cattle prod of a SCOTUS opinion (and a unanimous one, at that). You should expect the Commonwealth to oppose that, since today’s Hall opinion remands specifically for the circuit court to enter forfeiture orders; not to conduct further hearings. We may have to stay tuned on this one to see what eventually happens.

Criminal law and procedure

The Code of Virginia carries out the mandate of Miranda v. Arizona, providing for appointment of counsel for indigent criminal defendants. One such statute provides that if a defendant’s financial circumstances change after the court appoints an attorney for him, he must hire his own lawyer and forthwith notify the court of the change. The statute continues, “The court shall grant reasonable continuance to allow counsel to be obtained and to prepare for trial.” That’s the playing field for today’s decision in Reyes v. Commonwealth.

Reyes responded, “guilty” when arraigned on a robbery charge. Between then and sentencing, he became able to hire a private lawyer. His family paid that lawyer just before the sentencing hearing, so the new lawyer filed an appearance and a motion to continue the day before, and appeared at the hearing to press his request for a continuance.

After an extensive colloquy, the trial judge refused the continuance request, despite that troublesome shall in the statute. This would have been a second continuance at the defendant’s request, both times inconveniencing a victim who had appeared to testify. The court allowed the appointed counsel to handle the sentencing hearing, which resulted in a lengthy prison term.

The Court of Appeals affirmed the judgment, noting that Reyes hadn’t shown “exceptional circumstances” to warrant the continuance. Today the justices agree. This ruling rests on what may be a surprising conclusion: The defendant isn’t the intended beneficiary of the statute I quoted above. The real beneficiary is the taxpaying public; the statute is designed to minimize the financial burden on the state when a defendant turns out not to be so indigent after all.

The only basis for relief here would be the Sixth Amendment, but Reyes didn’t press that argument at trial, so it was waived for appellate review. As for that pesky shall, Justice Mims’s opinion for a unanimous court cites the recent Rickman decision for the premise that, in this context, it’s directory and not mandatory, leaving it up to the trial court to fashion a remedy. Here, the ultimate issue may be the adjective in the phrase, “reasonable continuance.” The justices today agree that the trial court’s approach was reasonable.

A small percentage of appellate dockets comprise proceedings that aren’t truly appeals. These are original-jurisdiction proceedings, known to court insiders as “OJ cases,” where the appellate court is the original decision-maker, and isn’t reviewing a lower-court finding.

One key issue in many of these proceedings is the appellate court’s inability to take evidence. That issue is the determining factor in Dennis v. Commonwealth, which stems from a petition for a writ of actual innocence.

Because the grounds for this petition were non-scientific – testimony, not DNA findings – the court of original jurisdiction was the Court of Appeals. Dennis was convicted after a jury trial twenty years ago of malicious wounding and attempted murder in connection with a robbery. Years later, while in prison, he learned that another man had confessed to other inmates that he had committed the crime. Other witnesses testified that the two men were lookalikes – almost like brothers.

Dennis filed an actual-innocence petition, supported by numerous affidavits calling the conviction into question. The Commonwealth responded to the petition with affidavits of its own, including two from inmates who suggested that Dennis tried to bribe two of his own supporting affiants to implicate the other man. The Court of Appeals considered the competing submissions and dismissed the petition, finding that Dennis hadn’t shown that the evidentiary support for his petition was true and not merely contrary to the trial evidence.

Dennis appealed that dismissal to the Supreme Court. The standard of review in such appeals is lenient: abuse of discretion. Nevertheless, the justices reverse here, ruling that the CAV did abuse its discretion by not employing the statutory tool of remand to the trial court for an evidentiary hearing. Trial courts, unlike appellate courts, can listen to and observe witnesses as they testify. That’s the key to resolving conflicted testimony, and the justices today direct the CAV to go back and employ that approach. Dennis doesn’t have his writ yet, but he’s back in the game.

ANALYSIS OF FEBRUARY 14, 2019 SUPREME COURT OPINION

(Posted February 14, 2019) Looking for a last-minute gift for your Valentine? I probably can’t help you with that, unless your sweetheart is a Workers’ Comp defense lawyer. If that’s the case, run off a copy of Jeffreys v. Uninsured Employer’s Fund and present it to him or her. It’s your call whether to draw hearts and arrows on it.

This is an appeal about the statutory-employer doctrine. The claimant worked for an unlicensed contractor who had agreed to relocate and renovate an old school building in Pittsylvania County. The contractor was hired by a nonprofit historical society that was loosely affiliated with a local church.

The claimant sustained injuries while working on the church building. He filed a claim for Workers’ Compensation benefits, naming as respondents the society and one of its members, plus the church. None of those respondents had Comp insurance, so the Uninsured Employer’s Fund entered the fray.

A deputy commissioner entered an award finding that the claimant was the direct employee of the society and its member, and that the society was part of the church. The Commission set aside the award against the individual member, because she exerted no control over his work, but otherwise affirmed benefits. After a quick trip to the CAV and a remand for more factfinding, the Commission ruled in favor of the society and the church, finding insufficient evidence of control. On the statutory-construction issue, the Commission found “no evidence the Church and Historical Society were in the construction business,” so that doctrine got the claimant nowhere.

The case returned to the Court of Appeals, which affirmed the denial of benefits. The justices granted a writ, and today they affirm.

Before addressing the merits, today’s opinion explores the premise that the Comp Act is remedial and should be given a liberal construction. That’s true as far as it goes, Justice Kelsey writes for a unanimous court, but it doesn’t mean that the claimant automatically wins, or that the Commission or the courts can basically rewrite the Act by liberally interpreting it.

This seems to me to be parallel to other rules of construction in one sense. For example, in contractual-interpretation cases, there’s a rule that calls for construing language against the drafter. But that rule is a sort of last resort; if the language is clear, you can’t change it by construction or interpretation. It’s the same in the statutory context. You only resort to rules of construction or interpretation if applying the plain language doesn’t resolve the issue.

The court today rules that the Court of Appeals wasn’t plainly wrong in ruling that the facts here were consistent with a finding that the church and society weren’t in the building-renovation business. That, in turn, means that the claimant can’t get benefits from those organizations.

For whatever reason, the claimant didn’t name his direct employer, the unlicensed contractor, as a respondent to his Comp claim. An employer-employee relationship probably existed there, but since the claimant chose not to seek benefits from him, that issue never arises here.

I’ll confess to one small degree of surprise: I don’t see why the justices chose to take this appeal, and to decide it by published opinion. From my review, it appears to break no new ground. By statute, the Supreme Court has no jurisdiction over the CAV’s Workers’ Comp rulings unless one of two exceptions applies: either there’s “a substantial constitutional question” at the heart of the matter, or else the case carries significant precedential value.

There’s no real constitutional question here. The claimant makes an oblique stab at raising one, claiming that because the CAV got the facts wrong, that denied his right to due process. The justices swat this aside in a footnote. As for precedential value, my reading of this opinion convinces me that this holding fits squarely within the previous Comp caselaw. Of course, the simple answer to the question why the court took this case for merits decision is because at least two members of the writ panel voted to take it.

APPELLATE MEDIATION PROGRAM GETS ITS FIRST TEST

(Posted February 11, 2019) Tomorrow the Supreme Court of Virginia convenes writ panels for the first time since the calendar turned. Soon thereafter, the Clerk will start delivering good news, in the form of writs, to a select few appellants. And that will trigger the first uses of the new appellate mediation pilot program in that court; the clerk will also send notices to counsel in qualified appeals, letting them know that the program (and its automatic 30-day stay of deadlines) is available.

I reported on the program last year, and Virginia Business magazine ran a story on it this week. Those of us who put the program together will watch with a mix of hope and eagerness to see how many pairs of civil litigants will take advantage of the crop of newly certified appellate mediators. They, unlike those who see the appellate process all the way through to the mandate, will get to resolve their own appeals, on their own terms.

One last point: The Court of Appeals also is participating in this program, though with a very limited number of cases. That program is limited to domestic-relations appeals where the appellate issue is equitable distribution. In case you’re wondering, no one will mediate an appeal over a protective order or child custody.

ANALYSIS OF FEBRUARY 7, 2019 SUPREME COURT OPINION

(Posted February 7, 2019) Corporate income taxation is the milieu for today’s published opinion in Corporate Executive Board Co. v. Dep’t of Taxation. CEB is an Arlington business that provides what I’ll loosely call business-management services to major corporations around the world. Some of those services include the management of an online database of resources and analytical tools. It also provides company-specific education and analysis.

Here‘s an early paragraph from today’s opinion that sets the table for today’s dispute:

The vast majority of CEB’s sales of its Core Product and Solutions, over 95%, occur outside of Virginia. The Commonwealth accounts for less than 5% of CEB’s gross revenue. For the three years at issue, CEB earned $1.76 billion in total sales. Of that total, Virginia accounted for about $66 million.

Hence the problem: Can Virginia tax all of that $1.7B of income when the customers are elsewhere? It’s more complex than you might think; numerous states have adopted tax-allocation formulas that tax such income in their states, where a customer in one of those states buys services from a Virginia company like CEB.

Virginia has for 60 years used a formula that fully (indeed, doubly) weighs sales for taxation where the “income-producing activity is performed in the Commonwealth …” A trial court considered the matter and ruled that all of the sales, even those to remote locations, counted toward Virginia taxable income.

I’ve done the math on this three times, because the result is so staggering: The difference between a business-friendly interpretation and a tax-man-friendly interpretation is on the order of $300 million, for this one company alone. That many zeroes make for a judgment well worth appealing, so CEB went to Richmond and got a writ.

Today the justices unanimously affirm. The court analyzes constitutional challenges under the Commerce Clause and the Due Process Clause, concluding that SCOTUS precedent lines up with the trial court’s ruling. It may surprise you that double taxation – where the identical income from the identical transaction is taxed by two different states – isn’t unconstitutional. The Supreme Court today finds that Virginia’s tax scheme isn’t externally inconsistent. And citing language from the Notorious RBG, the Supreme Court agrees that the Constitution doesn’t require one state to “recede simply because both have lawful tax regimes reaching the same income.” The court finds that Virginia’s method of apportionment doesn’t extend beyond the value fairly attributed to activity here.

That doesn’t end the matter, because Virginia has a savings statute, and CEB sought relief there, too. That act allows relief where the allocation method is inequitable. That, in turn, requires proof of two elements, under a tax regulation. The first is double taxation, which definitely applies here. The second criterion is that “the inequity is attributable to Virginia, rather than to the fact that some other state has a unique method of allocation and apportionment.”

It’s this second one that trips up the taxpayer here. Justice McCullough’s opinion for the court analyzes several other states’ apportionment methods, finding it impossible to describe them as “unique.” More fundamentally, the inequity is attributable to the other states’ more recent taxation changes. Virginia uses an approach based on a 1957 uniform model act. Today’s opinion notes that that approach “has faced mounting criticism” as the American economy shifts from manufacturing to service and information. But the Commonwealth has resisted efforts to change.

The changes, instead, have come from other states’ efforts to modernize their tax codes. Using the common definition of attribute, the justices today hold that any inequity is attributable to those states’ amendments.

This opinion notes that the few legislative proposals to move Virginia’s allocation model toward a “market-based sourcing approach” have failed in the past eight years. This ruling will no doubt spur pro-business legislators to try again next year, lest the Commonwealth be viewed as an unfavorable state for business taxation. Of course, our 6% tax rate, one of the lowest in the nation, may offset that; but I do expect Corporate Virginia to try.

ANALYSIS OF JANUARY 31, 2019 SUPREME COURT OPINION

(Posted January 31, 2019) The Supreme Court hands down one published opinion today. But before we get to that, let’s pause to mark the passing of a torch.

Last October, I noted briefly that Trish Harrington, the Supreme Court Clerk since 2003, had announced plans to retire, and the court wisely chose her chief deputy, Doug Robelen, to serve as the next Clerk. The time for that transition has arrived; today is Trish’s last day in office, and Doug will assume her duties tomorrow.

I won’t wax eloquent over the events of Trish’s tenure, which includes 13 years as chief deputy to her predecessor, David Beach. Instead, I’ll lay out here a story that illustrates her wonderful wit. (At a ceremony this month to mark her retirement, the chief justice tried to tell this tale, but he didn’t quite get it right.)

In Trish’s days as chief deputy, one of her roles was to handle correspondence with pro se litigants, including a fair number of persons who were receiving free room and board with the compliments of the Director of Corrections. She was conscientious about that, doing what she could to help these litigants as long as she didn’t have to give them legal advice.

One such individual sent her a letter that concluded with two questions: What do you look like? And can you fly a helicopter? Trish couldn’t resist replying, “If I can fly a helicopter, why do you care what I look like?”

Supreme Court Clerks tend to stick around for a long time; there have only been five since 1933. Trish is just the 14^th in the long history of the Commonwealth. I’m definitely going to miss her, but she’s leaving the shop in very capable hands.

Torts

Today’s opinions – majority and dissent – in Norfolk Southern Railway v. Sumner provide a vital lesson in causation analysis. It’s a FELA claim by an injured conductor on a freight train. He was performing a role that required him to get off the train and separate several cars so they could be left on a side track near Danville for another locomotive to pick them up.

The conductor arranged to stop the train in the right place. The next thing he knew, he was lying in a ravine with broken bones and other injuries. A coworker found him there and arranged for help. The conductor was out of work for eight months; he had no recollection of how he fell.

The spot where he fell included only a narrow walkway between the elevated portion of the track and that ravine, which plunged downward at an angle of 70 degrees for 36 feet. The footpath was only 15” wide, well short of the industry-standard of 24”, and it contained larger, rougher gravel than would be safe to walk on. (For those of you who care about these things, the larger stuff is called track ballast, and is two inches or more in diameter. Smaller gravel, the kind that’s suitable for footpaths, is called yard ballast.)

The conductor sued under FELA, a highly remedial statute that provides for relaxed standards of proof for proximate causation. Contributory negligence doesn’t apply, and if the railroad’s negligence contributes to an injury “in the slightest degree,” the railroad can be liable.

The railroad objected at trial that there was no evidence that its negligence in providing a too-narrow footpath actually caused the conductor’s fall. There are, it argued, a host of possibilities, and since the conductor had no memory of the fall, the jury would have to speculate to conclude that a wider path would have made a difference. The judge decided to let the jury sort that out. The verdict came in for the conductor, fixing damages north of $300,000.

On appeal, the justices narrowly affirm the judgment. Senior Justice Russell writes on behalf of the chief justice plus Justices Mims and Powell, citing some comparable cases in which SCOTUS has approved plaintiffs’ judgments despite wafer-thin causation evidence. The majority rules that “There was evidence to support the inference that the defendant’s negligence played a part, however small, in causing the fall which was the source of the plaintiff’s injury.” That makes it a jury issue.

Justice McCullough crafts an interesting dissent on behalf of Justices McClanahan and Kelsey. He points out that there are two components of causation: proximate causation and the analytically earlier but-for causation. While it’s true that FELA greatly relaxes the requirements for proximate causation, you still have to prove that but for the defendant’s negligence, the injury would not have occurred. Here, judge his words for yourself:

From this evidence, a number of possible conclusions emerge:

• The plaintiff slipped, tripped, or stumbled in such a way that he pitched forward and fell with no opportunity to recover;
• The plaintiff fell because he lost consciousness due to some medical episode;
• The plaintiff was walking on the edge of the path such that the hypothetical extra width would not have helped him recover;
• The plaintiff was not walking on the level portion of the path at all;

OR

• The plaintiff was positioned in the path and slipped, tripped, or stumbled in such a way that the extra inches would, in fact, have helped him recover his step and he would not have fallen.

The dissent can’t agree that the conductor’s proof met this but-for test, so it would reverse and enter final judgment for the railroad.

I’ll engage in a little barely educated guesswork here. This is the second recent case in which the presence of a senior justice may have been case-dispositive. As in last October’s decision in Quisenberry v. Huntington Ingalls Inc., Justice Goodwyn sat this one out. Back then, Senior Justice Millette furnished one of the four majority votes in what I will subjectively describe as a plaintiff-friendly ruling. Today, Senior Justice Russell does the same thing, with a similar result.

I can’t know how Justice Goodwyn would have voted if he had participated in this case, but my leaning is that he would have joined today’s dissenters. That means that in his absence, the court reaches a different result. And that, in turn, means that appellate advocates should be careful about citing this doctrine in future FELA cases. If my suspicion is correct, a future decision on this issue might well come down the other way.

ANALYSIS OF JANUARY 17, 2019 SUPREME COURT OPINION

(Posted January 17, 2019) The legal issue in today’s lone SCV decision, Erie Ins. Exch. V. EPC MD 15, LLC, is fairly straightforward. Does an insurance policy covering property owned by a company also cover property owned by a wholly owned subsidiary?

The parent is a Maryland company that held a policy from Erie. That policy covered losses from fire damage to property owned by the parent. The parent later bought a Virginia LLC that owned commercial property in Winchester. When that property sustained fire damage, the parent submitted a claim.

Erie denied coverage, saying in essence, “We insure you; not your subsidiary.” When the parent sued to establish coverage, a trial court looked to policy language providing coverage for “newly acquired buildings.” The court ruled that when the parent bought the LLC, it “newly acquired” the building in Winchester. At worst, the court reasoned, this is an ambiguity, and the court construed the ambiguity against the insurer, who drafted the policy language.

The justices today unanimously reverse. Because companies, including LLCs, are separate entities from their owners, the parent didn’t “acquire” the building; it still belonged to the subsidiary. And the policy covered property owned by the named insured, which is the parent. The court accordingly enters final judgment in favor of the insurer.

There’s an interesting preservation issue in a footnote on pages 3-4 of today’s slip opinion. When the trial judge issued an interlocutory order interpreting the policy language, he added that the parties had ten days to file exceptions to that ruling. Neither party filed anything. On appeal, the parent asserted that this waived Erie’s right to appeal.

No dice, Justice Kelsey explains today. By statute, exceptions aren’t required in Virginia (unless you’re in an eminent-domain proceeding; but that’s another story). All you have to do is explain on the record, orally or in writing, your position and what it is that you want the court to do, and then get a ruling on that issue. Trial judges aren’t free to create additional preservation requirements on a case-by-case basis. Because Erie had fully briefed its argument, the justices have no reluctance about reaching the merits.

ANALYSIS OF JANUARY 10, 2019 SUPREME COURT OPINION

(Posted January 10, 2019) The Supreme Court of Virginia kicks off the new year today with a single published opinion, in an appeal argued in the October session. Today’s ruling in May v. R.A. Yancey Lumber Corp. addresses statutory provisions for the protections of minority shareholders in stock corporations.

This small family-owned company is, as you would deduce from the name, in the timber and lumber businesses. The overwhelming majority of its revenues – 98.5% – comes from its operation of a mill, where it processes logs into lumber. The remaining 1.5% comes from the timber business, through which it sells logs to other buyers.

Today’s opinion reports that the mill business, despite bringing in almost all of the company’s revenue, wasn’t always profitable. The owners of the stock were three siblings and their spouses (including one ex-spouse, but I’ll ignore that here for simplicity’s sake), and four of those six wanted to sell the mill business, especially when a $10 million offer came in for it. The other two wanted to keep the entire company intact.

And that brings us to the statute I mentioned in the beginning of today’s post. That act requires the approval of more than 2/3 of a company’s shareholders for any sale not in the usual and regular course of business, if that sale “would leave the corporation without a significant continuing business activity.” The objecting sibling and her spouse – the ones who didn’t want to sell – owned a tad more than one-third of the stock. That seems to scotch that idea.

But the statute also contains something of a safe harbor. If the company retains at least 20% of its prior assets and 20% of its prior revenue stream, “the corporation will conclusively be deemed to have retained a significant continuing business activity.” The statute also says that the company’s articles of incorporation may provide for a greater or lesser vote than the 2/3 requirement in the Code.

The majority owners read these provisions and realized that they could amend the bylaws by simple majority vote. Accordingly, by a 2-to-1 margin, the company amended those bylaws to specifically provide that the lumber business was a significant continuing business activity, so selling the mill business wouldn’t require a 2/3 vote. With the deck thus reshuffled in their favor the majority signed the purchaser’s offer. That led the dissenter to circuit court.

The court construed the statute to permit the amendment of the bylaws as happened here, so the judge refused the dissenter’s request for a temporary injunction to halt the sale. It also granted a plea in bar and entered judgment for the company.

Thus endeth the good news for the company; today the justices unanimously reverse. Justice Goodwyn’s opinion for the court cites the plain meaning of the statute, noting that it exists to provide protection for minority shareholders. The court rejects the idea that the company can redefine “significant continuing business activity” to mean anything it wants; that interpretation would gut the protections of the statute. In addition, the company didn’t actually amend its articles of incorporation, as the statute allows; it amended its bylaws.

The Supreme Court today finds that the trial court incorrectly applied the statute and therefore used the wrong standard in considering and denying the injunction request. The justices remand the case for trial on whether the sale left the company without a significant continuing business activity.

ANALYSIS OF DECEMBER 20, 2018 SUPREME COURT OPINIONS

(Posted December 20, 2018) That late Christmas shopping you were planning to do is going to have to wait; we’ve got opinions! For the third straight week, the justices hand down five sets of early Christmas presents – at least for the winning parties. From the other perspective, it’s five lumps of coal.

One side note: The justices have been clearing their desks at a remarkable pace. Everything argued this year before the November session has been decided, and they’ve handed down rulings in well over half of the November cases already.

Pleadings

Another lawyer gets caught in a familiar pleading trap in Ray v. Ready. It’s an action by a widow to claim an elective share of her deceased husband’s estate. His will made no provisions for her, so she sued claim what the statute says is rightfully hers.

Except she didn’t sue the husband’s personal representative; her action was unfortunately styled, Widow v. Estate of Husband. On a number of occasions, the justices have held that a suit against an estate is a nullity; litigants have to be persons (including corporate “persons”), and you can’t correct that under the misnomer statute.

But there’s a twist here: After the most recent pleading misstep, Estate of James v. Peyton in 2009, the legislature decided to smooth the playing field. It amended the Code to provide a safe harbor, allowing amendment where a pleading improperly identifies a fiduciary or personal rep, and directing that such an amendment relates back to the original filing date.

That would seem to cure this problem, but the justices hand the unfortunate plaintiff’s lawyer today’s first lump of coal. The lawsuit never mentions the personal rep at any point. That means that the only available approach to curing this legal nullity is to file another action with the proper party name. And in this case, it’s too late to do that, as the statute of limitations had run.

The Supreme Court thus affirms the trial court’s dismissal of the action with prejudice.

Criminal law

Virginia’s drug-distribution laws contain some fairly stiff minimum sentences in some cases. But the General Assembly is not without a heart; it built into the Code a provision that allows some defendants, under narrowly defined circumstances, to avoid those minimums. One of the requirements is in issue today in Hall v. Commonwealth:

Not later than the time of the sentencing hearing, the person has truthfully provided to the Commonwealth all information and evidence the person has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan …

After a guilty plea, a trial court set a sentencing hearing for 9:00 a.m. on a given court date. When Hall and his lawyer showed up a bit before 9 that day, the lawyer filed a motion for relief from the minimum sentence. Attached to the motion was a two-page handwritten disclosure of what Hall knew about the matter.

The prosecutor received the motion and the disclosure a few minutes before the court took the bench. When the judge considered the motion before proceeding with the sentencing hearing, the prosecutor objected that a literally last-minute filing didn’t suffice, because it didn’t allow the prosecutor or the court to evaluate the information to determine its truth and sufficiency.

This made sense to the judge, who declined even to read the submission, finding it untimely. The court proceeded to hit Hall with the mandatory minimum sentence, and the Court of Appeals affirmed that.

Today the Supreme Court reverses and remands the case for resentencing. The record shows that Hall filed his narrative “not later than the time of the sentencing hearing.” The statute doesn’t say “x days before the hearing” or “a sufficient time before the hearing to allow evaluation,” and the courts aren’t free to insert that language by way of construction. The justices reject an argument that allowing these last-minute filings would result in an absurdity, noting that that’s the interpretation in several federal appellate courts, and the skies aren’t falling in those cases.

This early Christmas gift comes with a word of caution for Hall and those similarly situated. A trial court is permitted to weigh the late filing time in deciding whether the disclosure really is full and truthful. It’s possible that the sentencing judge might so rule on remand. But his or her prior approach was to reject the statement without even reading it.

Real property

I humbly predict that lawyers handling foreclosures are going to suck wind when they read Crosby v. ALG, Trustee, LLC. A borrower sued to rescind a foreclosure sale on property he owned in Albemarle County, naming as defendants the substitute trustee, the foreclosure purchasers, and Fannie Mae. While the suit was pending, he reached an agreement with the defendants to repurchase the property. He then settled with Fannie and the buyers, and obtained leave to amend his complaint to seek money damages from the trustee for what he saw as an improper foreclosure.

The amended complaint asserted a claim for breach of fiduciary duty. The borrower contended that the trustee sold the property for an unconscionably low price, far below its obvious value, and that it did so after only the bare minimum advertising of the sale. It also alleged suspicious circumstances – the only two bidders in that day’s series of auction sales submitted a joint bid for this property at roughly 5% of its assessed value. The trial court sustained the trustee’s demurrer and dismissed the case.

Today a divided Supreme Court reverses and remands the case. Justice Powell writes for a five-member majority, and she concludes that the amendment stated a viable claim. The trustee is, contrary to the trial court’s finding, a fiduciary for both parties in a foreclosure – both borrower and lender. The trustee’s fiduciary duties are not limited by the terms of the deed of trust; they include common-law duties as well. The majority finds that the borrower properly alleged that “the foreclosure sale overwhelmingly benefited the creditor at the debtor’s expense and there was a significant discrepancy between the sales price and the value of the property,” thus stating a claim.

Justice Mims, joined by Justice Goodwyn, dissents on the key holding in this appeal. He notes that the deed of trust defines what a trustee must and may do, and the trustee here did exactly what that document directed:

Crosby alleged that ALG sold the property at auction after advertising it only twice—but he agreed in the deed of trust that the trustee could sell the property after advertising it that many times. He alleged that ALG sold the property to the highest bidder at the auction—but he agreed in the deed of trust that it could. In fact, he agreed that it shall. Thus, ALG did exactly what the parties to the deed of trust agreed that the trustee would do: advertise that the property would be sold at auction, and sell the property to the highest bidder there.

The dissent points out that neither the borrower nor today’s majority can identify what provision the trustee violated. It warns that today’s ruling “makes the trustee under a deed of trust a guarantor by implication of the price that a foreclosed property sells for at auction,” a warning that will shake the confidence of even the most ethical of trustees.

I find the majority’s conclusion problematic. As the dissent points out, the trustee here did just what the deed of trust expressly authorized and directed. Future trustees, mindful of this opinion, may perhaps choose to advertise more often than the deed of trust specifies, to give added assurance that they won’t face this kind of lawsuit. But how much is enough? Once you implicitly require more than the parties’ contract specifies, without explaining exactly what will suffice to insulate the trustee from liability, you require those trustees to guess in what should be a bright-line area.

Evidence

There are two primary issues in Shumate v. Mitchell, but one of them proves far more controversial than the other. This is a tort case stemming from a rear-end collision. As sometimes happens with these things, the collision was either a fearsome crash or a minor fender-bender, depending on who’s describing it to you.

After the collision, the defendant dies of unrelated causes, so his personal rep became the defendant. The defense admitted liability, and the parties tried the case to a jury on damages. The verdict came back in favor of the plaintiff, of course, but the jury fixed damages at zero.

The plaintiff got a writ on two issues. One is almost anticlimactic: The court rules that a verdict of zero is perfectly permissible here. The plaintiff had a long history of prior complaints due to three previous accidents. The defense called a doctor who testified that the plaintiff’s complaints came from those earlier traumas, not this one. And there was minimal damage to the two cars, so the jury might have found that there was nothing to award here.

By far the more interesting issue – at least from my perspective – is a debate over the application of the Dead Man’s Act. The personal rep called the decedent’s son to tell the jury how his father had described the accident – a low-speed bump. The trial court admitted that testimony, and today the justices affirm that ruling (and the zero-dollar judgment).

Justice Mims’s opinion for a unanimous court explores the history and development of the Act. He cites Prof. Kent Sinclair’s clear criticism of the current wording of our Act, calling it unique among American law and a “sweeping abolition of hearsay principles.” The justice implicitly embraces this criticism with this passage:

Shumate’s collection of misgivings on brief—that unless we adopt her interpretation of the statute, “the party asserting the Dead Man’s Rule could bring in a plethora of out of court, unreliable hearsay of what the decedent said to others to bolster unfairly the decedent’s case”—is actually an accurate statement of the statute.”

Well, now. If it really is such a problem child, why doesn’t the court just overrule it? Because it’s a statute; that’s why. The court can’t just jettison statutes that it doesn’t like. Things like that are up to the legislature. Perhaps the General Assembly will take the hint.

Will contests

It’s a poorly kept secret that in general, I tend to read and analyze opinions from shortest to longest, thus allowing me to post analysis as quickly as possible. It will thus come as no surprise that the last case of the day, using my protocol, is the chief justice’s opinion in Parson v. Miller, involving litigation between cousins over a decedent’s will. Even so, at just 21 pages, this isn’t exactly burdensome reading.

This is an opinion about presumptions. There are two kinds: a Thayer presumption evaporates as soon as the opponent adduces evidence against it, while a Morgan presumption endures even after it is rebutted. The Thayer variety shifts only the burden of going forward with the evidence, while the Morgan shifts the burden of persuasion. With Thayer presumptions, the burden of proof always remains with the person who bears that burden initially; it never shifts.

Virginia employs both types, in varying contexts. In will contests involving claims of undue influence, the Supreme Court has made it clear that we use the Thayer approach. In this appeal, the contestant pleaded and proved the three elements that trigger the presumption:

(1) the testator was old when his will was established; (2) he named a beneficiary who stood in a relationship of confidence or dependence; and (3) he previously had expressed an intention to make a contrary disposition of his property.

The plaintiff, the 80-year-old testator’s daughter, found herself cut out of a will that her father executed a week before his death. The new beneficiary was her cousin, the testator’s niece, who had cared for him in his last few months of life, through a period of declining health. The testator had previously assured his daughter that she was getting everything.

If you’re keeping score, that’s 3-for-3, so the trial court decided that the presumption applied. The niece adduced competent evidence to rebut the presumption. The court denied a motion to strike and decided to let the jury decide whether the presumption was rebutted and whether the daughter had met her ultimate burden of proof. The jury sided with the daughter, and the trial court refused to set that verdict aside.

The justices do, though. They rule today that when the niece properly rebutted the presumption, the burden remained on the daughter to prove that the testator’s will was overborne. She never could do that; at trial, when asked what the niece had done to gain control over the testator, she could only shrug: “I don’t know.”

The court today rules that the trial court should have granted a motion to strike at the close of all the evidence. The jury only gets these questions if there’s evidence showing “manifest irresistible coercion which controls and directs the testator’s actions.” The Supreme Court unanimously reverses and remands for the trial court to enter judgment for the niece.

ANALYSIS OF DECEMBER 13, 2018 SUPREME COURT OPINIONS

(Posted December 13, 2018) The Supreme Court continues to clear its collective desk apace, releasing five published opinions this morning.

Name changes

The court returns to recently plowed turf in Leonard v. Commonwealth, a petition filed by a transgender federal prisoner seeking a name change to reflect a preferred gender.

The trial court reviewed the petition and forwarded it to the local Commonwealth’s Attorney, as provided by statute. That official filed an opposition, citing two key factors: (1) The inmate had been convicted of sex offenses and would have to register as a sex offender; and (2) the inmate’s only nexus with Virginia was temporary residence to serve part of a criminal sentence. The inmate was scheduled to be returned to Missouri in three more years, so (the Commonwealth asserted) that state has a greater stake in the name-change petition than does Virginia.

The judge reviewed the response and issued an order four days later, without convening a hearing. The order denied the petition in a form order, ruling that “good cause does not exist for consideration of the petition.” A panel of justices agreed to take a look.

The Supreme Court today unanimously reverses and sends the case back for reconsideration. The statutory framework provides for an initial review for legal sufficiency, which the court today analogizes to a demurrer. If the petition is in good form and sets forth a claim for which a name change can be granted, the next step is to send the petition to the local prosecutor, who may reply, after which the court must conduct an evidentiary hearing.

The trial court skipped that last step. It issued a summary ruling without “receiving and considering evidence,” and the justices rule that a court can’t adopt that procedure. On remand, the trial court will still have the discretion to grant or deny the petition after considering all of the facts; but it can’t short-circuit the litigation in this way.

Land use

Dirt lawyers, rejoice; we have another decision on nonconforming uses. The justices today take up Fairfax County v. Cohn, involving the use of two accessory structures as additional residential units.

The subject property is a home in McLean. The property includes a main residential building, a detached garage, and something called a Garden House – evidently a conservatory or greenhouse. The property owner built the house in 1962, the garage the next year, and the Garden House in 1972.

When the county granted building permits for the two accessory structures, it expressly provided that “there are no kitchens or bathrooms approved” for each structure. That didn’t stop the owner, who went ahead and installed electric wiring, plumbing, septic tanks, and kitchens, turning each facility into a separate dwelling unit. The owner rented out all three structures to different tenants.

The tenant of the main house bought the entire property in 1998. For a generation, the county did nothing to challenge the use of the property. Even after a neighborhood survey in 2008 revealed this use, the county did nothing.

That ended in August 2016, when the Zoning Administrator notified the owner of a violation, directing the removal of the electrical and plumbing facilities and the kitchens. The ZA wanted to trim the number of dwellings back to one, to comply with the zoning ordinance.

The owner sought relief from the BZA, but got nowhere. A trip to circuit court was more fruitful; the court ruled that since the owner had been paying taxes on the structures for more than 15 years, so by statute, the continued use was nonconforming but legal.

The justices today reverse and enter final judgment for the county. They note that this isn’t a matter of a lawful nonconforming use; that’s what happens when a lawful use becomes nonconforming due to a subsequent change in zoning. This use was never legal, and the passage of time can’t change that.

As for that 15-year tax statute, Justice Goodwyn points out for a unanimous court that that protects structures, not uses. The buildings can stay, but they can’t be used as residential units anymore.

Criminal law

There are three victims in Smith v. Commonwealth, involving a conviction of voluntary manslaughter. One is the homicide victim. The other two are his two young daughters. They’re victims not only because they lost their father, but because their mother is now behind bars for his slaying.

There’s no doubt that Smith shot and killed her husband. She fired a single bullet at him from a few feet away, and he died at the scene. The real issue in this case is where in the spectrum that runs from first-degree murder down to involuntary manslaughter her conduct fell.

The couple were moving furniture out of an upstairs bedroom in their Spotsylvania County home, so they could replace the flooring. One item in that room was a gun safe. During this process, the victim invited his wife to go and get her “pea-shooter,” a small handgun, so it they could place it in the safe. He instructed her, “Don’t forget to un-cock it.”

According to Smith, she went downstairs, removed the gun’s magazine, and ejected a bullet from the gun’s chamber. She then returned upstairs, where her husband asked if she had done as he instructed. She replied, “See, it’s empty,” pointed the gun toward him, and pulled the trigger, presumably to show him that she knew how to ensure that a handgun is unloaded. You know what happened next.

The Commonwealth adduced evidence that the couple had been arguing before Smith went downstairs. (Adding to this overall tragedy, some of this evidence came from the young girls.) That and some inconsistencies in Smith’s story led the prosecutor to seek a conviction for first-degree murder. The parties agreed to what today’s opinion calls a “waterfall” instruction, one that outlines the elements of first- and second-degree murder, plus voluntary and involuntary manslaughter. The jury returned a verdict of guilty on the voluntary-manslaughter charge.

Smith filed a post-trial motion, asking the court to set the verdict aside because the evidence didn’t support the charge. The court noted that Smith had agreed to the jury instruction. Smith replied that she found no fault with the instruction; just the quantum of evidence to support the verdict. The court denied the motion and sent Smith to prison.

The Court of Appeals affirmed the conviction, finding that the evidence would actually have been sufficient to support the higher charge of second-degree murder. The Supreme Court affirms today, though on different grounds.

One of Smith’s primary arguments here is that words alone “are not enough for heat of passion,” the key demarcation between murder and voluntary manslaughter. The justices decline to address this because, while the doctrine is well-established in Virginia law, Smith never sought an instruction to so inform the jury. It proceeds instead to a thoroughly unsurprising review for sufficiency, and equally unsurprisingly concludes that a reasonable jury could have credited the evidence of heat of passion.

The chief justice writes today’s opinion for the court. Justice Kelsey writes separately, not to dissent – he joins the majority opinion fully – but to underscore a point made by his former colleague in the Court of Appeals, Judge Humphreys. He notes that this case doesn’t provide a vehicle to consider whether “‘heat of passion upon reasonable provocation’ has evolved into the only currently legally recognized factor in the Commonwealth that negates malice,” but the next case might give the court that chance. The fact that he’s writing this at all telegraphs his skepticism of that view. The fact that Justices McClanahan and McCullough join him gives that issue added importance.

What’s next for Smith? Given the Supreme Court’s recognition today of the words-alone doctrine, my best guess is a habeas petition under Strickland, asserting that her trial lawyer should have offered this instruction. That might get her a new trial.

Staying in the criminal-law arena, we’ll take the long step down from homicide to bad-check larceny. That leads us to McGinnis v. Commonwealth. From the procedure-geek’s standpoint, this is the opinion of the day, as it (1) discusses at length an important, unresolved preservation/pleading issue, and (2) answers a first-impression question about a 1978 amendment to the bad-check law.

McGinnis operated what I take to be a booking agency that dealt with hotels on behalf of groups attending events. His company’s deal with a certain hotel in Lynchburg called for his company to collect money from his customers and then pay the hotel. In 2015, he sent to the hotel three company checks as payment for events; each of those checks came back unpaid for insufficient funds.

The hotel wrote to McGinnis, asking about payment of the amount due, roughly $4,500. But by then, McGinnis had folded the company. Since that made civil collection impractical, the hotel went to the police. McGinnis soon thereafter found himself on the business end of an indictment charging three felony counts of larceny by worthless check.

After a bench trial, the circuit court convicted McGinnis and sentenced him to nine years in prison, with 6½ years suspended. (Side note: I don’t know who the judge was, but I infer that he got up on the wrong side of the bed on the trial date. Nine years in prison for a $4,500 debt? I know that most of it was suspended, but unless McGinnis had frequent-flier miles in criminal court, that sticks out in my mind as an unusually harsh sentence – and I say that as a former local prosecutor. End of digression.) On the twentieth day after the sentencing order, when jurisdictional control over the case is slipping out of the circuit court’s hands, McGinnis filed a motion to reconsider, invoking the 1978 amendment to the bad-check statute, providing: “Any person … delivering any such check … in payment as a present consideration for goods or services for the purposes set out in this section shall be guilty as provided herein.” The motion pointed out that the checks were drawn for payment of an antecedent debt, so he couldn’t be guilty.

My tongue-in-cheek criticism of the trial court above must give way to what happened next: The court summarily entered an order denying the motion. Appellate lawyers know well that the judge didn’t have to do that. He could have ignored it, knowing that an unresolved post-judgment motion effectively vanishes from the appellate radar after 21 days. I commend his honor for going the extra mile to enable McGinnis to present this issue on appeal.

Almost. There’s one fly in McGinnis’s ointment: He himself signed and filed the motion; his trial counsel didn’t. The rules allow a lawyer in the case or an unrepresented party to appear as counsel of record. They say nothing about pro se filings by someone who isn’t actually pro se.

This produces some fascinating but ultimately disappointing analysis of what happens when a represented party bypasses his own lawyer. It’s disappointing not because of how the justices resolve it, but because they don’t. Today, the court notes that the statute governing signing of pleadings doesn’t address this situation, and the court doesn’t feel at liberty to fill in the gap. In a footnote, the court today expressly invited the General Assembly to do that, noting that “the circumstances of this case are likely to recur in the future ….”

So how does the court resolve the case? It assumes without deciding that the “quasi-pro-se” filing is legit, and addresses the merits. Doing that produces an affirmance, as the court rules that the added language adds to, rather than constrains, the coverage of the statute.

Before 1978, the statute criminalized delivering a bad check “with intent to defraud.” A 1977 Supreme Court decision had held that one could not be convicted for delivering a bad check for services, because one cold not under the common law steal services. (You can’t take them and carry them away.) The first-impression ruling of today’s opinion is that the statute, passed in response to that decision, added greater breadth to the statute, rather than limiting its previous reach to present consideration.

The final case of the day is a petition for a writ of actual innocence, styled In re Phillips. In 1991, Phillips was convicted of particularly egregious felonies in connection with the forcible rape and sodomy of a ten-year-old girl. I found the process of reading the facts to be painful, as I’m the father of a daughter who happily never had her innocence stolen in this way.

Phillips filed an actual-innocence petition in 2005, but the Supreme Court dismissed it. He tried again in this case, asserting that DNA evidence tested by a private laboratory was inconsistent with his guilt.

While the case was pending, the justices handed down an opinion in another such case, ruling that the court cannot grant these petitions based on analysis by private labs; only testing by the Virginia Department of Forensic Sciences. Perhaps swallowing hard at the impending doom of his petition, Phillips moved to nonsuit it, presumably to afford him an opportunity to send the private results to DFS for confirmation.

The justices today first rule that an actual-innocence petition is criminal in nature, so the petitioner can’t nonsuit it. It’s in Title 19.2, which governs criminal procedure, and it employs a burden of proof used in criminal, not civil, cases. On the merits, the court predictably applies its relatively new ruling to dismiss this petition, since Phillips doesn’t have the right lab evidence.

ANALYSIS OF DECEMBER 6, 2018 SUPREME COURT OPINIONS

(Posted December 6, 2018) If you’re shivering in the cold snap that now afflicts the Commonwealth, the justices today give us four published opinions and one published order to keep you warm.

Criminal law

The Code of Virginia contains a provision that makes it a felony to shoot at an occupied vehicle. Jones v. Commonwealth answers the interesting question whether one must be outside the vehicle while shooting, to violate the statute.

In a sadly familiar scene, this case arises from a drug deal that turned violent. Jones climbed into the victim’s car to purchase pills from the victim. While sitting in the car, Jones shot the victim several times, killing him. Among other charges, Jones faced an indictment for shooting at an occupied vehicle. The trial court refused a motion to dismiss that count, and convicted Jones. The Court of Appeals affirmed.

In the Supreme Court, Jones repeated his contention that one cannot shoot at a vehicle while sitting inside it. He notes that a separate statute criminalizes dangerously shooting a weapon while in or on a vehicle, and urges that this second statute would be superfluous if his conviction were to stand.

The justices apply the plain language of the statute and note that it doesn’t require a defendant to be outside the vehicle. For example, a person could sit in the front passenger seat and shoot a bullet at the driver’s-side door. The door is a part of the car, so a shot fired at the door is fired at the car. If the statute criminalized shooting into a vehicle, this analysis might be different; but that’s the way the legislature wrote it.

As for the other statute, the court observes that it’s similar but not identical. Most violations of the second statute will involve shooting out of the car. As the Court of Appeals had observed, “Code § 18.2-154 focuses on the direction of the shot, while Code § 18.2-286.1 focuses on the location of the shooter.”

This case illustrates some advice I read a year or so ago from an expert in personal security. He had three tidbits of advice to minimize your risk of being murdered: Don’t use illegal drugs or associate with people who do; don’t stay out after midnight; and don’t marry a psychopath. The expert opined that if you do none of these things, your chances of getting murdered are “an inch tall.” If you break one of the rules, your odds go to two feet tall. If you violate all three, your odds are 30 feet tall.

Perhaps this is the mark of a boring existence, but I’ve managed to adhere to all three recommendations, and I’m happy to still be here.

Freedom of Information

Years ago, when I was a municipal attorney, I defended litigation filed against my city. During the pendency of the suit, my adversary, not content with the discovery process, submitted a request for documents under FOIA. I objected, claiming that the proper remedy while parties are litigating is the discovery process. Otherwise, I contended, the city is a second-class litigant. A circuit-court judge ruled against me.

As a municipal lawyer, that rankled; but we didn’t appeal the ruling. I always wondered how the justices would approach this issue. Today we find out: In Bergano v. Virginia Beach, the Supreme Court evaluates the extent to which billing records are exempt from disclosure under FOIA.

Bergano was embroiled in federal litigation against the City of Virginia Beach. Anticipating a fee claim in that court, he submitted a FOIA request to the City for copies of its outside counsel’s billing records. The City produced the records, but with virtually every legal task redacted. The documents as produced showed the date, amount of time, and responsible attorney for each entry, but no hint as to what the attorney had done.

Bergano filed a mandamus petition, seeking unredacted records. A circuit-court judge reviewed unredacted copies of the records in camera, and ruled in favor of the City.

The Supreme Court reverses today, ruling that the trial court interpreted FOIA exemptions too broadly. The relevant exemptions are for the attorney-client privilege and the work-product doctrine. Work product normally covers documents “prepared in anticipation of litigation or for trial.” These billing records don’t fit that description.

That leaves the attorney-client privilege. The Supreme Court today cites with approval a Fourth Circuit decision, noting that the privilege typically “does not extend to billing records …” The court also embraces an opinion of the Attorney General, which states that “an attorney’s analytical work product or legal advice” is exempt, along with confidential communications from the client to the attorney.

If you’re familiar with attorneys’ bills, most of them don’t contain narrative analysis or advice; nor do they recite the client’s confidential disclosures. The Supreme Court accordingly sends the case back to the trial court with instructions to permit Bergano to have non-confidential billing records. The trial court will also evaluate Bergano’s own request for an award of attorney’s fees, which the courts usually award when a citizen successfully sues to obtain access to public documents.

Dangerous animals

Two key issues mark Frouz v. Commonwealth as noteworthy. This is a case originally brought under a statute that makes the owner or custodian of a dangerous dog liable for injuries caused when that dog attacks another dog. After hearing evidence, the trial court ruled that Frouz was liable to pay almost $4,000 to her neighbor, when Frouz’s dog, Blue, attacked the neighbor’s dog.

Actually, the first issue is whether Blue was Frouz’s dog at all. Her son owned it, and he was in New York for a period of time; Frouz and her husband had agreed to care for Blue while the son was away. During that time, Blue and the neighbor’s dog got into a scrape near the boundary between the properties. The encounter started in Frouz’s yard, but moved over to the neighbor’s yard. That’s when Blue attacked and seriously injured the other dog. A trial judge ruled that Frouz was liable for the neighbor’s vet bills.

On appeal, the first issue is one of jurisdiction. Frouz appealed straight to the SCV because, she felt, this is a civil case. The justices asked the parties to brief the issue whether this appeal belongs in the Court of Appeals, because the statute specifies that “[t]he procedure for appeal and trial shall be the same as provided by law for misdemeanors.”

The parties argued that jurisdiction was appropriate in the SCV, and today the justices agree. This is like a refusal appurtenant to a DUI charge. While the procedure is like a misdemeanor, the substantive right of appeal is civil.

That sets the table for the real battle: Whether Frouz was Blue’s owner or custodian. Before and at the trial, she had referred to Blue a couple of times as “my dog,” probably causing her attorney to wince. But the justices today find the evidence satisfactory to show that she was at least Blue’s custodian, in that she provided shelter or refuge to the dog in her son’s absence. Under this statute, that makes her liable.

Prisoners

The Red Onion State Prison in Wise County is Virginia’s lone maximum-security penal facility. It houses long-term prisoners with the following reported criteria: “Disruptive; Assaultive; Severe Behavior Problems; Predatory-type behavior; Escape Risk.” That’s enough to make me relieved that I’m on the far end of the state from the prison.

An inmate at the prison has accumulated plenty of frequent-flier (actually, in this case it’d be “filer”) miles in the judicial system. When he filed yet another suit in the Wise County Circuit Court, the warden moved to dismiss and sought an order to thwart future filings. Before the court could rule on that, the inmate filed a motion for a temporary injunction. Six days later, and with a hearing looming on the docket, the inmate filed a motion to nonsuit, or in the alternative an extra 30 days to respond to the warden’s motion.

The local judge may have seen more than enough of this repeat litigant. He granted the motion to dismiss and imposed a prefiling-review requirement that would enable the court to summarily dismiss future filings. The court did not address the nonsuit or extension requests.

By statute, if a given inmate has had three suits dismissed as frivolous, malicious, or for failure to state a claim, it can deny that prisoner in forma pauperis status unless circumstances exist such as an imminent risk of serious bodily harm. The trial court found this to be the inmate’s fifth such dismissal, so it imposed the IFP limitation.

That generates plenty of legal issues for the justices in today’s opinion, Gordon v. Kiser. The first is whether the trial court erred in refusing the nonsuit. Because the case hadn’t been submitted to the court for decision – the inmate had asked for extra time to respond, and there was a hearing set on the docket – the justices today rule that this ruling was error; the court should have allowed the inmate his one of-right nonsuit.

In theory, you might think that that moots the rest of the case. But that’s not what happens; a nonsuit doesn’t automatically extinguish a pending motion for sanctions. Trial courts have jurisdiction to consider such motions even after the plaintiff nonsuits, as long as they act within 21 days after the nonsuit, or if they retain jurisdiction over the case to adjudicate the motion.

That allows the justices to evaluate the sanctions imposed by the trial court. The first is the pre-filing review requirement. Citing last year’s Adkins decision, in which the SCV itself imposed such a requirement on a frequent litigant, the justices require consideration of four factors before a court may so act. The record here shows that the trial court considered only one, so the Supreme Court remands the case with direction to look into all four.

As to the second limitation, the denial of IFP status, the justices have bad news for the litigant. The statute only requires three “strikes,” and he already has four. Today’s opinion walks us through the first three, confirming that they do indeed qualify as “strikes” under the statute. That means that the trial court wasn’t wrong when it suspended the inmate’s right to file IFP.

Criminal law

The justices hand down one published order today, in Martinez v. Commonwealth. It addresses – rather, it declines to address – a baffling problem in a criminal prosecution.

Martinez is a deaf mute who doesn’t communicate in any language. Police arrested him on two indictments for capital murder in 2005. He hasn’t been to trial yet, long after the deadlines prescribed in the Speedy Trial Act. What gives?

The fact that Martinez can’t communicate means that he can’t assist in his own defense, and that, in turn, means he’s not competent to stand trial. He isn’t insane, so the insanity statutes don’t apply. Pursuant to statute, the Commonwealth has performed evaluations twice a year for twelve years to determine if he has become competent. But experts for the Commonwealth and the defense agree that he’s not much better now, and the trial court found that he has plateaued and won’t ever be competent.

This raises several thorny questions. The big one is, What are we to do with this man? Simply releasing him, because he probably will never be competent to stand trial, is practically unthinkable. This is a capital murder case. Placing him in a mental hospital for psychiatric treatment would be appropriate if he were insane; but he’s not insane. Trying him is out of the question.

Martinez’s lawyers moved the trial court to dismiss the indictment. The trial court denied the motion and, sensitive to the need for appellate review, decided that its decision “was appealable as a civil commitment order.” Martinez’s lawyers dutifully appealed, and since they’re appealing a civil order, they went straight to the Supreme Court, just as the appellant in Frouz, above, did.

The justices granted a writ and directed the parties to brief the issue of appellate jurisdiction. That turns out to be the entire battle today as the court rules that the denial of the motion to dismiss occurred in the criminal case, so any appeal has to go to the Court of Appeals. Normally that means that the justices will simply transfer the appeal to the CAV under Code §8.01-677.1. But the court declines to do that, ruling that the CAV doesn’t have jurisdiction, either, since this plainly isn’t a final order in the criminal case. (We call those sentencing orders.)

Okay, now what? Martinez is being held on suspicion of the most heinous crime in our book. He can’t stand trial, Virginia doesn’t want to release him, and he probably doesn’t even know what’s happening to him. Now the courts are saying he cannot obtain any appellate review of his detention.

My best guess is that the only way the courts are going to be able to get off the dime here is if Martinez files a habeas corpus petition. I assume that his lawyers can pursue that even if he isn’t competent for a criminal trial, and if so, the trial court will rule in favor of one party or the other. If it refuses to issue the writ, Martinez can appeal that (and that one definitely would go to the SCV). If the court grants the writ, the Commonwealth can appeal, and I suspect the trial judge would readily suspend execution of the release order pending an appellate decision. In that sense, today’s jurisdictional ruling postpones a ruling on the ultimate issue in this painfully difficult case.

ANALYSIS OF NOVEMBER 21, 2018 SUPREME COURT OPINIONS

(Posted November 21, 2018) To whet your appetite for tomorrow, the justices give us two new published opinions in two cases, each of which stated claims for breach of contract and related torts.

The first of these (only if you line them up this way) is Francis Hospitality, Inc. v. Read Properties, LLC, from Lynchburg. It arises from a commercial lease, in which the landlord and tenant each agreed that the procuring broker would receive 5% of the rental payments over the course of the lease term. That term eventually extended to 15 years.

In about the 12^th year of the tenancy, the landlord sold the property to Francis Hospitality, which became the new landlord by virtue of an assignment of the lease. As soon as that sale closed, the landlord and tenant cut off payments to the broker. They executed an amendment to the lease, expressly removing the obligation to pay the broker.

The broker sued, claiming breach of contract, tortious interference with contract, and statutory conspiracy. The trial court ruled in favor of the broker, fixing damages at $34,000 for each of the first two counts and treble damages plus attorneys’ fees for the third. The landlord and tenant got a writ to review the awards for the second and third claims.

Today the justices reverse those two awards, because under Virginia law, as elsewhere, you can’t tortiously interfere with your own contract. Tortious-interference claims are available only against strangers to the contract, so this is a plain-vanilla breach of contract. And since the predicate unlawful act for the conspiracy count was the now-failed tortious-interference claim, the conspiracy claim dies as well, taking with it the treble damages and attorneys’ fees that might well have exceeded even the damage awards. The court affirms the judgment on the breach-of-contract count.

The next case is Sweely Holdings, LLC v. SunTrust Bank. This one involves $18 million in loans secured by personal property and four real parcels. The timing was unfortunate: The loans closed in 2008, just at the time the economy was tanking. When the borrower defaulted two years later, the bank seized $1.8 million in cash and made plans to foreclose on the realty. The borrower threatened bankruptcy.

Cooler heads intervened in this escalating situation, and the parties negotiated a workout agreement, giving the borrower time to raise money or liquidate property. The agreement obligated the borrower to make four payments on a set schedule. If the borrower couldn’t make those payments, it agreed to deliver deeds to the properties, one at a time, and cooperate in subsequent foreclosures.

On the second of these scheduled dates, the borrower offered a deed to the relevant property in lieu of foreclosure. The bank refused, realizing that foreclosure would wipe out inferior liens but a deed wouldn’t.

The borrower sued the bank, plus three of its employees for breach of contract, plus fraud in the inducement to execute the workout agreement. It claimed that the bank had falsely stated that it had lowball appraisals that would diminish the value of bankruptcy protection, thus falsely leading the borrower to reach an agreement.

A circuit court judge sustained a demurrer and dismissed the case. Today the justices agree and affirm. The contract claim fails because its terms allowed the bank to do exactly what it did: refuse to accept a deed in lieu of foreclosure. Indeed, the requirement for a “friendly foreclosure” contemplates just that. The fraud claim fails because of the Murayama doctrine: Once you’re in an adversarial relationship against someone, you can’t justifiably rely on their representations to support a fraud claim.

Both of today’s decisions are unanimous.

ANALYSIS OF NOVEMBER 1, 2018 SUPREME COURT OPINIONS

(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.

Torts

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 22^nd 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.”

ANALYSIS OF OCTOBER 18, 2018 SUPREME COURT OPINIONS

(Posted October 18, 2018) The justices continue to clear their desks today, handing down four new published opinions.

Real property

There’s no new ground (sorry) broken in Ettinger v. Oyster Bay Community POA, an appeal of a dispute between a property owner on the Eastern Shore and the local property owners’ association.

The owner sought to develop a roughly 4 ½ acre site at the corner of two roads. The POA didn’t like that idea, so it put up construction fencing and no-trespassing signs at the edge of one of the roadways.
The owner sued, seeking a declaration that he owned the land all the way to the middle of the road. The judge ruled that the owner had a right of way in the road, but he owned only to the road’s edge.

The justices reverse today, relying on a long-standing principle of property law: When someone receives title to land that’s bounded by a street, that person owns the land all the way to the middle of the street, unless the conveyance expresses a different intention. The deed into this landowner didn’t include any express limitation, so the POA can’t shut him off from access.

The POA also contended that the deed into the landowner set forth the boundaries, including the two roads, but it also specified a number of square feet, and that total excluded any part of the road. Dirt lawyers will know what’s coming here: Under Virginia law as elsewhere, “a designation of acreage must yield to definite boundaries.”

Criminal law

The shortest opinion of the day comes from Justice McCullough’s pen: Thomas v. Commonwealth implicates a creative sentencing order. A jury convicted Thomas and sentenced her to seven years in prison. But the trial judge eventually entered an order sentencing her to ten years, with three years suspended.

Okay, that still subtracts out to seven years, so why the fuss? The fuss is because a judge can’t impose a sentence exceeding the one the jury fixed. He can suspend all or part of it, but he can’t add to it. What the judge wanted to do was provide for a three-year period of post-release supervision – the modern term for what used to be parole.

The court reverses and remands the case for proper sentencing. The opinion concludes with a footnote spelling out just how the trial court can do what it presumably wanted to do.

There’s plenty of caselaw indicating that the procedural protections accorded to criminal defendants don’t apply to ancillary proceedings like probation revocations. Today, in Johnson v. Commonwealth, the justices evaluate whether the respondent in a revocation proceeding has the right to be confronted with the witnesses against him.

A trial court convicted Johnson of rape in 2005 and sentenced him to 30 years in prison, suspending 20. He served the ten years and was released, subject to probation. But soon thereafter, his probation officer reported a violation.

One of the conditions of probation was that Johnson was to have no contact with juveniles. A detective told the probation officer that two girls, aged 16 and 17, reported that a man matching Johnson’s description approached them and started chatting them up. They got suspicious with the situation and, after he gave them his phone number and left, they decided to start checking. The detective reported that the girls had checked a site called Watchdog.com, and found a photo of their guy, who turned out to be Johnson.

Johnson objected to this report at the hearing, because the girls weren’t present to testify. The court asked for some indicia of the statements’ reliability. The detective explained several corroborating facts, such as the girls’ positive identification of Johnson, Johnson’s residence nearby the location of the alleged contact, and a series of text-message exchanges between the girls and Johnson using an app called Pinger.com, showing Johnson’s attempts to meet with the girls.

In their conversations, the suspect said that he was 28 years old and worked at Dollar Tree; the detective learned that Johnson had recently worked at that store or Dollar General.

The trial judge ruled that all of these things added us to sufficient corroboration to indicate that the girls’ statements were reliable, so the detective’s description of them was permissible evidence at the hearing. That and the fact that Johnson had been convicted of a felony at about this time were enough for the trial judge. The court reimposed the suspended 20 years, and then resuspended 15 of those.

The Court of Appeals took the easy route to affirmance. The felony conviction alone, plus a relatively minor aggression toward his probation officer, meant that Johnson had violated the terms of his parole and could be sent back to prison. Assuming for argument’s sake that the evidentiary ruling was erroneous, that error was harmless.

Today, the Supreme Court arrives at the same destination – alas for Johnson, his is the only appeal decided today that isn’t reversed – but the justices take the harder route of addressing the substance of the girls’ statements’ admissibility. The court rules that the corroborating circumstances in the record do indeed make the statements admissible without confrontation.

It may surprise you that a man can be sent to prison based on what’s obviously hearsay, without the right to be confronted by his accusers. But post-conviction proceedings really are quite different.

Education law

The court explores the boundary between in-state and out-of-state tuition today in George Mason University v. Malik. A student attended Northern Virginia Community College for almost three years before transferring to GMU under the transfer policy implemented by the State Council of Higher Education. The community college had treated her as in-state, but GMU regarded her as out-of-state, so it charged higher tuition. It found that she was in Virginia primarily for educational purposes, not as a permanent resident.

The student asked for a reclassification, but the school refused, so off the student went to circuit court. The judge reviewed numerous facts before concluding that the school’s decision was arbitrary and capricious. The justices reverse today by holding that the trial judge improperly reweighed the evidence.

I’ve preached often that the standard of review is outcome-determinant in an enormous percentage of appeals. Here, the trial judge applied the wrong standard in reviewing GMU’s administrative decision. The circuit court reviews the school’s decision to determine if it can “reasonably be said, on the basis of the record, not to be arbitrary, capricious or otherwise contrary to the law.”

That standard puts the burden on the student to show arbitrariness or caprice. And that burden is stiff: clear and convincing evidence, significantly more than a mere preponderance. By statute, schools must consider the entire case, including an enumerated list of items such as driver’s licensure, income tax payments, voter registration, and employment.

The justices unanimously find today that while it might be possible to view the student’s case favorably, there was plenty of reason for skepticism about several factors. At least one factor that seemed to bode well for the student – she registered to vote here – occurred less than the statutory one-year cutoff before the semester began. There was, the Supreme Court ultimately rules, nothing arbitrary or capricious about the university’s decision, so the trial court exceeded its authority in reversing.

ANALYSIS OF OCTOBER 11, SUPREME COURT OPINIONS

(Posted October 12, 2018) Yesterday, while I was on the road, the Supreme Court of Virginia handed down two important opinions. Let’s check them out.

Torts

In a certified-question case from the Rocket Docket, the justices explore the source of a legal duty in the context of asbestos litigation. The appeal is Quisenberry v. Huntington Ingalls Inc.

For 35 years ending in the late 1970s, a man named Bennie Plessinger worked at Newport News Shipbuilding, the predecessor to Huntington Ingalls. Like many shipbuilders, he worked in an asbestos-laden environment. After his shifts, he came home, shed his work clothes, and changed into something more comfortable.

Unfortunately, those clothes contained asbestos fibers. In the ordinary course of daily life, his family was exposed to those fibers. His daughter, in particular, inhaled them when she did her father’s laundry for 15 years starting in 1954.

Late in 2013, the daughter received a dreadful diagnosis: mesothelioma, caused by her exposure to that asbestos. She died of that awful disease in 2016. Her personal representative sued in state court; Huntington Ingalls removed the case to U.S. District court. The federal judge assigned to the case decided to consult the justices on this question (as the SCV rephrased it to facilitate the analysis):

Does an employer owe a duty of care to an employee’s family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer’s negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home?

This question produces a sharp split on the court. Senior Justice Millette writes the opinion of the court, joined by Justices Mims, Powell, and McCullough. The majority answers the question in the affirmative.

The majority begins with the ancient tort-law maxim, sic utere tuo ut alienum non laedas (loosely, “Use what’s yours so as not to harm others.”). Four years ago, in RGR, LLC v. Settle, the court applied that doctrine in holding that a person or entity owes that duty “to those within reach of a defendant’s conduct.” This in turn requires “a sufficient juxtaposition of the parties in time and space to place the plaintiff in danger from the defendant’s acts.”

This facially presents a problem for the personal rep; his decedent didn’t work at the shipyard and hence wasn’t juxtaposed (literally, side-by-side) with the place where the asbestos was. The majority finds this to be a distinction without a difference. The shipyard created a hazardous condition that turned out to be portable. It could have provided its employees lockers, changing rooms, and showers to prevent spread of the risk, but didn’t. It was thus foreseeable that its employees would travel home and spread the danger to others.

The court today rules that this foreseeable risk of harm created a duty on the shipyard to protect the daughter from the danger that asbestos carries, so the personal rep may maintain an action against the shipyard for this claim.

The chief justice is not sold on this logic:

Today a majority of the Court: (1) eviscerates the well-established tort concept of particularized duty; (2) conflates duty and proximate cause by relying on foreseeability to determine whether a duty exists; (3) undermines the Workers’ Compensation Act, Code § 65.2-100, et seq., a carefully balanced bargain defining how injuries arising from the workplace are to be compensated; (4) creates a new cause of action in territory that should be the domain of the legislature; and (5) creates a duty to a potentially limitless class of plaintiffs. This opinion adopts the concept of duty to mankind generally, an empty duty “owed to all the world,” and is unprecedented in Virginia. I respectfully dissent.

Yesterday’s opinion and dissents (there’s another one, as we shall see) turn out to be a robust discussion of the merits of RGR, another highly contested 4-3 ruling. This latter concept is a key element of tort liability, but it’s relevant only to the proximate-cause discussion. Duty is a question of law, and the company’s duty is not defined by foreseeability. Otherwise, he warns, a defendant’s duty is limitless.

Justice McClanahan joins in the chief’s dissent, and pens one of her own. (Justice Kelsey signs up for both dissents, too.) She argues that RGR really isn’t relevant to this decision. She cannot square the facts of this case with the juxtaposition requirement, and rejects the idea of a “traveling hazard.”

Followers of what’s been called “Netiquette,” the etiquette of the Internet, know that typing in all caps is considered shouting. We don’t use all caps in the appellate world, unless quoting a printed warning or citing a treatise; something innocuous like that. Justice McClanahan doesn’t shout in her dissent, but she comes close. The way she does that is by using italics for emphasis. Read her roughly eight pages of text and you’ll find a dozen or so instances where she has added italics to a quote, or has used them to emphasize her own passages. In the genteel world of judicial writing, this is what passes for a really-most-sincerely strong view.

I’ll add one last point about this case. Senior Justice Millette sat in for Justice Goodwyn. That’s no doubt because Justice Goodwyn’s wife works at a law firm that represented the shipyard in this appeal; he routinely recuses himself from all of that firm’s cases.

Back in 2014, when the Supreme Court resolved RGR, Justice Millette joined the majority, ruling that one can owe a duty to the world, so long as the risk is foreseeable. Justice Goodwyn joined Justice McClanahan’s dissent there. I have no reason to believe that Justice Goodwyn’s views have changed in the last four years. That means that that recusal was probably case-dispositive here. It also portends that if another appeal presents this precise issue and no one on the court is recused, this doctrine may not survive; yesterday’s 4-3 may morph into 3-4.

Criminal law

A dramatic story that fortunately did not end in tragedy underlies Secret v. Commonwealth, and appeal of convictions for arson and attempted murder.

Secret was a temporary resident at a Louisa County site called the Acorn Community. From the brief description in Justice McClanahan’s opinion, it looks to me like a commune. The community centered on a lodge that contained dormitory-style residences, a kitchen, offices, and a dining room.

Secret stayed at the site for a few weeks in the autumn of 2013 at the invitation of one of its members, living at a campsite instead of in the lodge. He asked to stay on, but some of the members weren’t comfortable with what they felt was erratic behavior. The group told Secret that he’d have to find another place to live.

Two weeks later, a member of the group smelled smoke in the lodge in the predawn hours. Cries of alarm quickly spread, and the nine people in the lodge managed to scramble out – four of them by clambering out of second-story windows and then dropping to the ground below. Everyone got out safely.

An arson investigator quickly suspected that the fire was not accidental, and attention soon focused on Secret. The investigator arranged to interview him at a local sheriff’s office. Secret came of his own volition, and wasn’t restrained in the interrogation room. During initial questioning, he gradually began to inculpate himself. The investigator stopped the questioning and issued Miranda warnings. Secret indicated that he understood. When the investigator asked if Secret was willing to continue to speak without a lawyer, the reply was, “Sure.”

I’ve often marveled at decisions like this. Any criminal-defense lawyer would tell a person in Secret’s situation, “You have the right to remain silent. Use it!” But no; there must exist a deep longing to tell one’s tale. Secret did just that, and found himself on the business end of a series of indictments.

The real battle in this appeal is the motion to suppress. The trial court agreed to suppress Secret’s initial, pre-Miranda-warning, statements. But it found that the later inculpatory information was suitable for jurors’ consumption. A predictable conviction, and an equally predictable affirmance in the CAV, ensued.

Yesterday, the Supreme Court unanimously affirmed. The court evaluates the suppression motion in the context of two SCOTUS decisions, Oregon v. Elstad and Missouri v. Siebert, and finds that the investigator’s questioning was proper. The Siebert decision proscribes a deliberate two-step questioning procedure, where police conduct un-Mirandized interrogation, then Mirandize the suspect and beat him over the head with his prior statements. The trial court ruled that that wasn’t what happened here, especially as the arson investigator testified credibly that he had never heard of such a tactic.

The justices rule – in a matter of first impression – that this is a factual finding, so the standard of review is more lenient: the court will reverse only if the decision is plainly wrong or without evidence to support it. Given the record here, and the trial court’s factual findings, the justices have no difficulty concluding that the interrogation was permissible. The court goes on to affirm the finding that Secret’s subsequent inculpatory statements were voluntarily made.

There’s one last hurdle. Secret contended that there was no evidence of intent to commit murder – just proof of “general malevolence.” Because I don’t wade often into criminal-justice waters, I hadn’t heard this phrase before, but there’s caselaw on it.

The Supreme Court turns this contention aside. Although Secret may not have known the identities of those who snoozed inside the building, he knew that there would likely be people there, and that his setting the building afire, using plenty of flammable accelerants, would foreseeably imperil someone’s life. Justice McClanahan cites this particularly apposite holding from a California case: “The mental state required for attempted murder is the intent to kill a human being, not a particular human being.”

ANALYSIS OF OCTOBER 4, 2018 SUPREME COURT OPINIONS

(Posted October 4, 2018) It’s opinion day here in the Commonwealth, and today brings two new additions to Virginia jurisprudence.

Torts

The setting for Haynes-Garrett v. Dunn is right here in beautiful Virginia Beach. The dispositive issue is what duty arises when the owner of a beach house rents it out by the week.

The Dunns own the house in the Sandbridge area of our fair city. They bought it as a beach escape, as a means of some rental income, and as an eventual retirement home. For the second purpose, they engaged the services of a local realty company to manage the rentals. The owners instructed the company not to rent it to college-age partiers; only to families.

Haynes-Garrett and her extended family decided to rent the cottage for a week in the summer of 2014. When she arrived at the property, she tripped and fell, badly injuring her elbow. She sued the owners and the realty company, claiming that her fall stemmed from a dangerous condition on the floor.

The case went all the way to trial. When the plaintiff rested, the defendants moved to strike. The owners asserted that they owed only the duty that the law imposes on a landlord toward a tenant. That is, since the tenant is in control of the property during the lease period, the tenant takes the property as-is (assuming the landlord hasn’t done something foolish, like leaving booby traps). The realty company argued that it owed no duty at all.

The plaintiff responded that both defendants owed the duty of an innkeeper toward a guest. In that scenario, the defendant owes an elevated duty to ensure that the premises are safe. Specifically, it’s a duty “to take every reasonable precaution to protect the person and property of their guests and boarders.”

The trial court ruled in favor of the defendants and struck the plaintiff’s evidence. On appeal, the plaintiff’s assignment of error contended that the trial court “erred in granting the defendants’ motion to strike at the end of Mrs. Haynes-Garrett’s evidence on the grounds the defendants only owed Mrs. Haynes-Garrett a duty of care commensurate with that of landlord and tenant.”

Today, the justices unanimously affirm the dismissal. The path to affirmance is painfully short for the plaintiff’s appeal against the realty company. In an all-too-familiar pattern, the plaintiff assigned error to a ruling that the trial court didn’t make. Remember, the company had moved to strike by asserting that it owed no duty at all to the renting family. The trial court granted that motion. Thus, the court never ruled that the company owed a duty based on landlord/tenant law. Since you must appeal the ruling that the trial court actually made, the justices quickly affirm the dismissal of the company.

For the owners, the justices examine the facts of the rental and conclude that this is much more like a landlord/tenant lease than a drop-in visit to an innkeeper. There are a few key differences, but in reading Justice McClanahan’s opinion for the court, the most important ones seem to be the facts that the owners of the cottage weren’t onsite, didn’t actively control the property during the week, and provided no daily housekeeping or security services – things that an innkeeper typically does.

Since the plaintiff only appealed the duty-of-care issue, not the finding that the owners didn’t breach that duty, this ends the appeal. It may not end the question, however, in other related contexts. For example, while this rental looked like a middle ground between a long-term lease from a landlord and a nightly rental from an innkeeper, there remain gradations between this weekly rental and your typical overnight stay at the Hilton. Airbnb, anyone? Does a homeowner who rents out his home to someone in that context owe a heightened duty or the one the justices settle on today? That question will await another appeal.

Today’s ruling continues an enduring losing streak for tort plaintiffs in the Supreme Court. For the year, those plaintiffs (including quasi-tort claims, such as for disability benefits) have won twice and lost seven times in the court’s published opinions. Going back to the beginning of 2016, plaintiffs have won just six times and have lost 23, a clear signal of the court’s unmistakable rightward drift. These are difficult days to be a tort plaintiff in Virginia. (In contrast, the defense bar is smiling quietly.)

Arbitration

Today’s opinion in Meuse v. Henry is just over 25 pages, and fully half of it is a detailed recitation of facts and procedural posture. I could recount those in detail, but then you’d have an impossibly long essay. Because I value your time, I will instead say only that the appeal involves the arbitration of a dispute over commercial properties in Alexandria. This in turn implicates the creation of a trust to hold that property because of a bankruptcy filing, and subsequent litigation over the management of that trust.

Here are the key holdings in today’s opinion:

• A challenge to an award under Code §8.01-581.010(3), asserting that arbitrators exceeded their powers, cannot be used as a roundabout way of asserting that the award is legally incorrect.
• If an arbitration agreement is void, any party can challenge it before or after the arbitral award. If it’s merely voidable, that challenge has to precede the award, or it’s waived.
• A violation of public policy may make an agreement to arbitrate void.
• Where an arbitration agreement exists between a lawyer and his client, the agreement doesn’t automatically violate public policy merely because the lawyer failed to get his client’s consent in writing, as RPC 1.8(a)(3) requires. If the evidence shows, as here, that the client knowingly and intelligently consented orally, that’s sufficient.
• Arbitrators do not fail to conduct a hearing merely because they decline to subpoena documents that one party wants to use. This matters because Code §8.01-581.010(4) requires that there must be an arbitration hearing.
• A sanction award of over $900,000 (admit it – that got your attention) is proper under the Arbitration Act and Code §8.01-271.1, where the arbitrators found that the plaintiff filed unwarranted pleadings that were also for an improper purpose.

Because I’m always interested in the development of sanctions law, this last ruling caught my eye. The justices’ approval of the award under the general sanctions statute doesn’t even touch on one issue that I wondered about: Can an arbitrator award sanctions? The statute allows a court to do that, but doesn’t mention an arbitrator. This distinction may not have been presented in the briefs, so I won’t regard it as fully settled; but the implicit approval probably means that the answer is yes.

Second, whenever anyone gets hit with a ruinously large sanction award, I always wonder about a still-unaddressed issue in our jurisprudence: Must a court consider the “sanctionee’s” ability to pay, as it must with punitive-damage claims? It appears that the appellant didn’t raise this issue, so the justices don’t touch it, and it, too, will have to await another appeal and another day.

ANALYSIS OF SEPTEMBER 27, 2018 SUPREME COURT OPINIONS

(Posted September 27, 2018) In two published opinions handed down this morning, the Supreme Court of Virginia provides a careful explication of accrual dates for statutes of limitations, and fashions a new pleading rule in assumed-duty tort cases.

Limitations of actions

Meticulous lawyers know that there’s a difference between a cause of action and a right of action. In Kerns v. Wells Fargo Bank, the Supreme Court analyzes when a claim for breach of contract accrues in the context of a mortgage. Remember the housing bubble and meltdown of roughly ten years ago? Of course you do. This appeal stems from that.

In 2009, when the housing market was in turmoil, Kerns decided to buy some real property. He financed the purchase with a mortgage loan; the lender eventually assigned the note to Wells Fargo. Within a year, Kerns fell behind on his payments (as millions of other Americans were doing back then). The bank sent him a notice, giving him the contractually required 30 days to bring the payments current, or else it would accelerate the balance and foreclose. The letter was dated June 20, 2010, and gave Kerns until July 20 to make good on the loan. That, you will readily understand, is 30 days.

Except Kerns noticed that the letter from the bank actually bore a Post Office mark showing a mailing date of June 21. That makes this a 29-day notice, and that doesn’t comply with the language in the note. The next year, with the loan still in default, the bank advertised a foreclosure sale. That sale took place on August 23, 2011.

The bank subsequently evicted the now former owner from the property. Five years to the day after the sale date, Kerns sued the bank for breach of contract, claiming that the improper notice deprived him of the contractual right to redeem the property, as set out in the note. The bank filed a special plea of the statute of limitations, asserting that while the SoL for this claim is indeed five years, that time had expired.

The trial court agreed with the bank and dismissed the case. The justices agreed to take a look, and today they unanimously affirm. Justice Kelsey’s opinion for the court is must-read for those who want to understand the nuances of this area of the law.

The problem starts across Ninth Street, where those notorious troublemakers in the General Assembly have used two different terms in what is at least facially a confusing way. We start with the basic statute of limitations for contract claims: five years after the cause of action accrues. That’s Code §8.01-246, and that language has been intact since 1964.

So when does a cause of action for breach of contract accrue? For that, we turn to Code § 8.01-230, which originally stated, “In every action for which a limitation period is prescribed, the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run … when the breach of contract occurs in actions ex contractu and not when the resulting damage is discovered …” That language dates to 1977.

In 1996, the legislature amended this to replace cause of action with right of action. Now, why’d they have to go and do that? We had a perfectly parallel statutory scheme, both provisions of which used the same phrase. This change creates ambiguity where none existed before. Now you see why I referred to them above as troublemakers. But without ambiguity, there would be far less work for lawyers, so I shouldn’t complain. In this case, it generates the need for a Supreme Court opinion to explain when, exactly, the statute of limitations begins to tick.

The court today notes that a cause of action is a set of operative facts, while a right of action is a present right to sue based on those facts. In many contexts – think of most tort claims – the dates of those two are the same. But in some contract claims, they might be different. Any sort of claim has to include at least some damage; without that, there’s neither a cause of action nor a right of action. In many cases, the real damage occurs well after the date of the breach.

That seems to be the case here: Kerns’s real complaint is that because of the bank’s wrongful acceleration, he lost his house. He regarded that loss as the damage that completed the cause of action, and triggered the right of action. The justices see it otherwise: This is a claim for breach of contract, and the identified breach was the wrongful acceleration of the note balance. That definitely occurred before the foreclosure date, so the five-year SoL had definitely expired before the date on which Kerns filed suit.

I’ll repeat that this opinion deserves a careful read from anyone who deals with statutes of limitations, and I’m assuming that that includes most of you.

Torts

The story behind Terry v. Irish Fleet, Inc. is a genuine tragedy. Irish Fleet is a taxi-dispatch company that serves several cab drivers in the Tri-Cities area (Petersburg, Hopewell, and Colonial Heights). One night it received a series of highly suspicious calls from a single phone number. The dispatcher originally dispatched a cab to pick up the fare, but then quickly decided against it, fearing for the driver’s safety. She also called another dispatch company to warn it about the caller. That dispatcher had a duty to log this suspicious set of calls in a book, so other Irish Fleet dispatchers would know about it.

The next morning, with a different dispatcher on duty, another call came in from the same number. The new dispatcher sent a cab to the indicated location. That driver picked up a man there. The fare then murdered the driver.

The driver’s personal rep sued the two dispatchers and the company. Claiming that either the first dispatcher didn’t log in the suspicious calls, or the second dispatcher failed to check the log book, the personal rep sought wrongful-death damages. The defendants demurred, contending that there was no legally imposed duty on the dispatchers to protect the driver from criminal activity.

But the personal rep had pleaded an assumed duty, as discussed in Kellermann v. McDonough in 2009 and Burns v. Gagnon in 2012. Unlike a duty imposed by law, which is a legal issue, assumed duty is a question for the factfinder. The personal rep contended that this was a jury issue. The trial court agreed with the defendants and dismissed the suit. It considered the following language in the complaint, and ruled that it was insufficient to allege an assumed duty:

[The defendants] undertook, gratuitously or for consideration, to render services, including but not limited to[,] screening calls of potential cab fares callers, pick up locations, drop off locations[,] including the Caller as described in this complaint, and determining the safety risk of the call, caller, and/or location for the health and safety of cab drivers they dispatch, using ordinary car[e] in the screening and selection process of whom they accept fares from and when, or if, they dispatch a cab to the potential callers and location, and the warning of known dangerous or troubling callers or fares to Irish Fleet and all other employees and/or agents of Irish Fleet which Irish Fleet, [the two dispatchers], and/or John Doe should recognize as necessary for the protection of people and other cab drivers, including [the cab driver].

The first key issue in this appeal is whether an allegation of an assumed duty presents a question of law for the court or of fact for a jury. Justice McClanahan, writing for a bare majority of the court, decides this key issue in favor of Irish fleet. Here’s the language, from footnote 6 of the slip opinion: “[T]he court determines whether the law recognizes an assumed duty based on the facts alleged and the fact-finder determines whether plaintiff has proven those facts.”

The majority then addresses what will be the dispositive ruling in the case. Kellermann and Burns had both held that a defendant may, by his conduct, assume a duty to protect someone, even where the law doesn’t impose such a duty. The personal rep had alleged that Irish Fleet and the dispatchers had done just that – not by an express undertaking, but by their actions.

The court today rules that when it comes to protecting others from criminal activity, assumption by conduct won’t suffice; it has to be an express statement: “[W]e believe the recognition of a voluntarily assumed duty to warn or protect against the danger of criminal assault by a third person should be confined to express undertakings.” Four justices thus vote to affirm the dismissal of the suit.

Justice McCullough dissents, joined by Justices Mims and Powell. He notes that in an effort to rule the way it did, the majority had to create a brand-new pleading rule that’s unique to Virginia. He examined authorities from elsewhere, plus treatises and law-review articles, but that search “yields no support for the proposition a duty to warn or protect of a crime, uniquely among all assumed duties, can be assumed only by an express promise.” The dissent would include claims like this within the traditional assumption-by-conduct doctrine, subject to five conditions:

1. Purposeful conduct is required. You can’t accidentally assume a duty.
2. An isolated act does not qualify. Doing something once doesn’t obligate you in perpetuity.
3. The assumed duty must be toward a specific person or an identifiable and limited class.
4. Liability is limited by the extent of the undertaking.
5. The plaintiff must have detrimentally relied on the assumed duty.

Applying these parameters to this case, the dissent would reverse this case for further proceedings. Needless to say, this is an important change in Virginia tort law. It affects pleadings and proof, and will leave some injured parties without recourse despite their detrimental reliance, a fact that Justice McCullough points out in his conclusion.

One last point: This was obviously a complex and difficult decision for the justices. I can dispel any doubt on that point by noting that it took the court 30 weeks to decide it. Since I began analyzing these decisions almost fourteen years ago, that’s the longest delay we’ve seen between oral argument and decision. The court is taking its time with tough judgment calls.

SNAP DECISION IN A SNAP APPEAL

(Posted September 13, 2018) There are no decisions, published or unpublished, from the justices today, so let’s take a peek at another appellate story.

I live in Virginia’s Second Congressional District, a place with a purplish hue. The incumbent Congressman, Scott Taylor, is facing a serious challenge from Democratic nominee Elaine Luria, in a year in which being a Republican can warrant hazardous-duty pay. The 2016 Democratic candidate, Shaun Brown, sought to join Taylor and Luria on the ballot, running as an independent. The effect of her candidacy would patently hurt Luria, as Brown would drain Democratic voters and help assure Taylor’s reelection.

Brown circulated petitions and gained enough signatures to get onto the ballot. Democrats fumed; Taylor probably smiled quietly. And then a local radio station started poking around at the petitions, and found some irregularities. This signatory is dead. That one moved to another state a few years ago. Things got worse: Several of the persons who circulated the petitions, and swore that the signatures were genuine, turned out to be paid campaign staffers of Taylor. The local newspaper got involved, and discovered that many of the persons whose names were on the petitions denied ever having signed them.

Why am I talking politics here at the notoriously apolitical VANA? Because this campaign generated litigation, and that litigation made its way to Ninth and Franklin this week. The Democratic Party sued Brown, joining the State Board of Elections, seeking Brown’s removal from the ballot. A Richmond Circuit Court judge held a hearing last week and ruled in favor of the party; he described the petitions as containing “out-and-out fraud.”

The court granted a writ of mandamus and an injunction last Wednesday, September 5, directing the Board to remove Brown’s name from the petition. The Board, which (I understand) had taken a passive approach to the litigation, made the necessary preparations to obey the court’s order. But on Monday, September 10, Brown appealed, asking the Supreme Court to expedite the appeal and stay the circuit court’s order pendent lite. You’ll note that that’s three days ago.

Last night, the Supreme Court dismissed the appeal without prejudice. It noted that while the circuit court had granted mandamus relief, there was still other pleaded relief on which the court hadn’t ruled. That made the order interlocutory and hence unappealable.

The Supreme Court’s order also observes that it’s possible to get immediate review of an injunction by a petition for review under Code §8.01-626, so in theory, Brown could get review that way. Brown had filed a plain-vanilla petition for appeal, not a petition for review, but the court goes ahead and addresses the case as though she had properly requested that relief. Even that approach falls flat: a 626 petition “shall be accompanied by a copy of the proceedings, including the original papers and the court’s order respecting the injunction.” Brown’s petition didn’t include those papers, so the justices can’t proceed that way. Seeing no way to adjudicate the appeal, the court dismisses it without prejudice.

Without prejudice? Doesn’t that give Brown an avenue to refile? Technically, yes; but by the time she can do that, it will assuredly be too late. The court’s order allows her to appeal a final order in the litigation, and that will come after a trial. By that point, likely well after November 6, the issue will be moot.

This case presents two key issues. The first is the importance of knowing how to properly file a snap appeal. Those don’t come along very often, so lawyers who don’t handle many appeals need to be very careful in preparing them. (Either that, or hire an appellate lawyer.)

The second issue warrants a separate essay, and I’ll do what’s necessary to post one in the near future: How does an appellant proceed in a truly urgent situation, when he or she needs immediate review? This case involved a matter of days – the Board of Elections needs to print ballots, I think starting today, so this had to be resolved quickly. What if you need review in hours? The rules are less than helpful, so I’ll try to lay out in that upcoming essay how to achieve what you need.

Last night’s order isn’t on the court’s website; any of my readers may write to me for a copy.

ANALYSIS OF SEPTEMBER 8, 2018 SUPREME COURT OPINION

(Posted September 8, 2018) The phrase penny-wise and pound-foolish came to mind as I read today’s lone published opinion from the Supreme Court of Virginia. Roberts v. State Bar is a disciplinary appeal that traces its origin to the princely sum of a hundred and forty-three dollars. We begin with a personal-injury claim. The client hired a lawyer, signing an agreement that provided for a contingent legal fee. The agreement also required the client to deposit into the lawyer’s trust account $150, from which the lawyer could bill for expenses. If the client fired the lawyer before the end of the case, “the law firm will be entitled to a fee quantum merit [sic] for services rendered. Client agrees that the reasonable value of the services rendered to it by the law firm shall not be less than the fees set forth in this Agreement.” The client became dissatisfied with the lawyer and fired him after eight months, before any resolution of the claim. She demanded a return of her $150, and instructed the lawyer to forward her file to her new counsel. The lawyer complied with the latter request, and billed $6.70 to reimburse the mailing cost. Instead of refunding the remaining $143.30, the lawyer transferred it to his operating account, reasoning that the quantum-meruit value of his services easily exceeded that sum. The client eventually filed a Bar complaint. During the disciplinary hearing, the client agreed with certain charges on the lawyer’s bill that totaled about $500. The lawyer then turned to the District Committee and insisted that he had done nothing wrong; the agreement gave him the right to transfer money from his trust account to his operating account for unpaid legal fees whenever the client terminated the representation. The Committee disagreed and found that the lawyer had violated rules relating to safekeeping property, imposing a public reprimand with terms. The lawyer appealed to the Disciplinary Board, but got the same outcome. That generated this trip to Ninth and Franklin. The justices today unanimously affirm. That may seem incongruous, since everybody knows that the lawyer performed $500 or so in legal services, so he should be able to offset that by the $143, right? Except the client had a plausible argument that that quantum meruit fee should be contingent, since that’s the basic fee arrangement. She had not recovered anything at any time while this disciplinary case made its way through the system. The Supreme Court finds that that made the ownership of the $143 a disputed matter, so the lawyer had no right to summarily “adjudicate” ownership of the money in his own favor. If the new counsel had secured a recovery for the client, either by collected judgment or settlement, this might be a different matter. But the question whether a termination automatically converts a contingent fee to a fixed fee is still debatable, and the lawyer acted hastily in grabbing this small sum.

ANALYSIS OF AUGUST 30, 2018 SUPREME COURT OPINION

(Posted August 30, 2018) I’m later than usual in posting analysis of the Supreme Court’s Thursday morning opinions. I have a good excuse: I appeared this morning before a writ panel that convened here in beautiful Virginia Beach. The justices were gracious as always – the legendary mean ones are all long-gone by now – and I’m back to analyze today’s lone published opinion.

Before jumping in, the history geek in me needs to mark today’s anniversary of the first convening of the Supreme Court, in Williamsburg in 1779. The original court had six judges — not an ideal number for resolution of disputes; but they managed somehow — and Edmund Pendleton was the first president of the court. Upon being sworn in, he turned around and swore in his colleagues, including a couple of estimable jurists named Wythe and Blair.

Public service companies

Appeals from the State Corporation Commission are of-right, meaning that the appellant doesn’t have to go through the writ process as I did this morning. Because there’s no petition stage, you might expect that there would be a host of SCC appeals in Virginia Reports, but actually there are relatively few. Today, the justices decide City of Alexandria v. SCC, an appeal of the SCC’s approval of a surcharge by three water utilities.

The utilities asked the SCC to approve a small surcharge – less than 50 cents a month – to help them update aging infrastructure. The SCC approved a three-year pilot program in one jurisdiction with several limitations and consumer protections. That didn’t sit well with two of the cities involved, so they exercised that automatic-appeal right and headed to the Supreme Court.

There are two issues in today’s appeal. The first is whether the SCC has the authority to approve the surcharge. The analysis of this issue takes several pages, but the ultimate ruling is that such authority does exist. The Constitution of Virginia gives the SCC authority over railroads, phone companies, and gas/electric companies. That doesn’t include water utilities. But the constitution also allows it to exercise “such other powers and duties not inconsistent with this Constitution as may be prescribed by law,” and the legislature has statutorily extended to the SCC the right to regulate water rates charged by public service companies.

The second issue today is sufficiency of the evidence. The justices have no difficulty in affirming on the SCC’s record. While there was a disagreement among experts, the factfinder gets to resolve that. The court also finds the limitations and consumer protections to be appropriate, and concludes that the SCC’s decision is consistent with the evidence before it.

Sanctions

Yesterday the court handed down a short published order in Madison v. Loudoun County. Madison is a frequent flier in the judicial system, especially when it comes to suing Loudoun County and its departments and officials. Last year, she filed an original-jurisdiction action in the Supreme Court, but the court dismissed that in February and directed Madison to show cause why she should not be sanctioned.

We don’t know what cause she tried to show, but whatever it was, it wasn’t enough. Today the court imposes two sanctions. It directs Madison to pay over $4,000 to the county for its legal fees in responding to the petition. And it imposes a prefiling injunction against her, prohibiting her from suing the County or its divisions or departments, unless she obtains either a licensed Virginia lawyer to represent her, or leave of court.

It’s this last holding that gets the per curiam order published. This is the second prefiling-injunction sanction that the Supreme Court has imposed in just over a year; the most recent one was in Adkins v. CP/IPERS Arlington Hotel in June 2017. This signals that while the justices respect the public’s right of access to the courts, they won’t tolerate abuse of that right.

ANALYSIS OF AUGUST 23, 2018 SUPREME COURT OPINION

(Posted August 23, 2018) Virginia’s common law grows incrementally today with the release of a single published opinion by the Supreme Court of Virginia. In Primov v. Serco, Inc., the justices evaluate the effect of a condition precedent to filing suit.

Primov worked for Serco for two years. He later sued the company, claiming that he was underpaid by about $60,000. The company defended in part by citing a provision in the employment agreement:

The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by confidential mediation. If the dispute has not been resolved by mediation within 60 days of a written request to mediate made by one of the parties, then either party may bring suit in the state or federal courts located in Fairfax County, Virginia.

That seems to make mediation – or at least a request to mediate – a prerequisite to filing suit. The employee hadn’t offered to mediate; he just charged straight into court. The parties worked the case up for trial before the employee nonsuited and refiled. In the refiled action, the employer filed a plea in bar, based on the employee’s failure to satisfy a condition precedent.

In reply, the employee showed the court a letter that he had sent to the employer during the first action, including this key language: “[The employee] would not be opposed to pursuing mediation concurrently with the court proceedings, so long as Mr. Primov does not have to incur any portion of the expense related to that process.” The trial court was unmoved. It ruled that an expression of willingness isn’t the same thing as a request to mediate. The court dismissed the complaint with prejudice for failure to satisfy a condition precedent.

With prejudice? The employee felt that was a tad harsh, since this was a condition that he could satisfy with a one-sentence letter. He appealed, and got a writ from the justices.

Today’s opinion, written by Justice Goodwyn, begins by noting that the court reviews this decision for abuse of discretion. When a trial court finds the failure to satisfy a condition precedent, it has some leeway in fashioning an appropriate remedy, considering the totality of the circumstances. Here, the court could have dismissed without prejudice, or even stayed the proceedings long enough to allow the parties to consult a good mediator.

The justices today find that dismissal of the action, as opposed to staying it, was well within the court’s discretion. The ultimate question, then, is whether a dismissal with prejudice was an abuse of that discretion.

Justice Goodwyn notes that this situation is unlike a dismissal for something like immunity, where refiling is futile. The employee can cure the deficiency. That means that a dismissal without prejudice is the appropriate remedy, as long as there’s no unfair prejudice to the opposing party.

Today’s opinion contains that holding at the bottom of page ten in an eleven-page opinion. When I got to the bottom of that page, I fully expected a reversal on the last page. Surprise! The court affirms, holding that the employee’s long delay in requesting mediation, including working the case up for trial and pressing the refiled action thereafter, does prejudice the employer:

Considering the efforts expended by the parties in the Initial Action and Primov’s repeated failures to comply with the Mediation Provision, we cannot say that the circuit court committed “a clear error of judgment” by dismissing this case with prejudice.

There are a couple of important lessons here. First, this is another appeal where the standard of review is case-dispositive. In the past, I’ve written that that standard is outcome-determinative in perhaps 85% of all appeals, and you can make a plausible argument for 100%. If the justices had made the initial call on what to do, or had been reviewing this ruling de novo, it’s entirely plausible that they would have found that a dismissal without prejudice was the way to go. But appellate review is often, as here, more deferential than that to the trial judge’s original call.

Second, this is another reminder not to play around with conditions precedent, even if you think they’ll be fruitless. I presume that that’s why the employee didn’t pursue the matter before suing; he probably thought that the employer would never agree to anything meaningful, so mediating would be just a waste of time. Instead, the failure to request mediation ends up wasting this cause of action.

ANALYSIS OF AUGUST 16, 2018 SUPREME COURT OPINION

(Posted August 16, 2018) Trouble in God’s house. That’s the setting for today’s ruling in Pure Presbyterian Church of Washington v. Grace of God Presbyterian Church, which comes to Richmond from the Fairfax Circuit Court. The issue underlying the trial was whether two churches had validly merged into one successor church. But today’s appeal turns on the issue of subject-matter jurisdiction.

Pure Presbyterian was a small congregation in Fairfax that had what looks like a terrific facility. It also had a lot of bills. Late in 2015, the church filed a bankruptcy petition. When word of that got out, another church – Grace of God Presbyterian – approached one of Pure’s elders and asked if Grace could buy Pure’s church property. Alternatively, “we could always merge …”

Not wanting to abandon its mission, Pure decided to explore merger instead. In February 2016, each congregation voted on a formal merger proposal, and each voted yes.

Denominational leaders determined that the two had no doctrinal conflicts, so the merger process began. In March, the two congregations met for a joint Easter service. Grace listed and promptly sold its former site in Falls Church, and assumed liability for Pure’s debts. Leaders of the two congregations drafted a merger agreement that settled who would preach, which elders would govern, and so forth. Pure submitted a reorganization plan to bankruptcy court based on this arrangement; the court approved the plan in September.

That seemed to settle matters once and for all. Except it didn’t. Justice McCullough explains:

On November 6, 2016, leaders of the unified church received an email stating that Pure Presbyterian wished to withdraw from the “proposed” merger. This announcement came as a surprise to the leaders originally from Grace Presbyterian. At that point, Grace Presbyterian had sold its building and the two congregations had been worshipping together for almost seven months. On December 5, 2016, the pastor and a deacon discovered that they were locked out of the church building. A notice was posted on the door, which stated, in part: “Please do not trespass. Property of Pure Presbyterian Church Members Only! Violators will be prosecuted.” In addition, Pure Presbyterian attempted to sell the property to a third party.

Grace understandably reacted by filing suit, seeking a declaration that the merger agreement was valid and an injunction to allow it into the building. Pure replied that it had never agreed to merge; just to a trial period to see if everyone could get along. The case proceeded to a jury trial. The jury found that the merger agreement was valid, and the court entered judgment accordingly.

On appeal, Pure argued for the first time that this was an internal church matter, and that Virginia’s courts thus had no jurisdiction to adjudicate the matter. In most instances, the failure to raise an issue in the trial court is fatal to an appeal on that ground, but subject-matter jurisdiction is a well-established exception to that rule. The Supreme Court thus goes ahead and analyzes the argument before concluding that the courts can indeed adjudicate this issue.

Mr. Jefferson’s “wall of separation between church and state” does bar our courts from deciding ecclesiastical or theological questions. But this isn’t an issue of church doctrine; this is plain-vanilla contract law. Both the SCV and SCOTUS have ruled that the courts can rule on matters like this. “[A]s long as courts avoid religious questions, church property disputes can be resolved just like other property disputes within a voluntary association.” Justice McCullough’s opinion also notes that if courts didn’t have subject matter jurisdiction over pure church-contract issues, that would make churches second-class citizens when it comes to property and contract rights.

The Supreme Court goes on to hold that the trial court had jurisdiction to award declaratory relief, and that the bankruptcy court’s approval of the reorganization plan meant that the circuit court was free to entertain the subsequent lawsuit here.

ANALYSIS OF AUGUST 9, 2018 SUPREME COURT OPINIONS

(Posted August 9, 2018) The justices continue to clear off their desks with three published opinions this morning.

Qui tam proceedings

We’ll pay a rare visit to the world of false-claims law in Commonwealth v. Commonwealth ex rel. Hunter Laboratories, LLC. This appeal stems from a proceeding under the Fraud Against Taxpayers Act, which is the Virginia version of the federal False Claims Act. The Virginia act provides that when an action results in a recovery, the relator is entitled to a percentage share of the proceeds.

The question in this appeal is whether that percentage is calculated on the gross or the net recovery. This was an action to recover Medicaid overpayments. As you may know, Medicaid is a joint program administered by states and the federal government. Since Uncle Sam and Aunt Virginia split the costs 50-50, that means the feds get 50 cents out of each dollar recovered.

This proceeding produced a gross recovery of $1.25 million. The Commonwealth and the relator agreed that the relator’s share would be 28%. But they unwisely didn’t specify whether that was 28% of gross or net. The difference is about $210,000, an amount worth litigating.

The trial court ruled in favor of the relator, and today the justices unanimously affirm. The plain language of the statute doesn’t limit the relator’s recovery to a portion of the net recovery, and in many other instances, the General Assembly has been careful to spell out when it means “net, not gross.” The court also turns aside the Commonwealth’s contention that viewing things its way would mean more money in public coffers – a desirable thing if you’re in the governing business. But Justice McCullough’s opinion reveals the weakness in that view:

A significant reduction in the relator’s share will discourage relators from bringing these lawsuits. The Commonwealth receives nothing when a relator decides to stay home and foregoes the risk and expense associated with a qui tam suit. Speculation about the potential for the Commonwealth to recover less from qui tam actions constitutes an insufficient basis upon which to depart from what constitutes the most natural, plain language reading of Code § 8.01-216.7(B)

Criminal law

I saw a report this week saying that Dubai, in the United Arab Emirates, is the most cosmopolitan city in the world, with 83% of its residents born outside the country. I don’t know how far down the list our own Arlington is, but that’s the setting for Tirado v. Commonwealth, involving a confession by a native of Guatemala.

Police brought Tirado in to ask questions about an alleged rape of his cousin, a juvenile. The questioning – which appears from the opinion to have been fairly low-key – began in English, but Tirado switched to Spanish when another police officer came into the room. An officer fluent in Spanish and English acted as a translator.

The officers went over Tirado’s Miranda rights with him in Spanish. At each step, he indicated that he understood his rights; he even read the Miranda form back to the police in Spanish. He thereafter made one or two statements that you would likely regard as highly inculpatory. Thereafter, the officers asked him if he would like to write a letter of apology to his cousin. He agreed, and when they gave him pen and paper, he wrote it in Spanish – with 22 spelling and grammatical errors, but well enough for a translator to understand what he was writing.

At a motion to suppress, Tirado insisted that his native language was not Spanish but Mam, a language of Mayan origin that’s spoken in Guatemala. The trial judge watched the video of the interview and heard from the interrogator, but not the translating officer. The court denied the suppression motion, finding that Tirado understood what he was doing in waiving his right to remain silent. At trial, both officers testified. During cross-examination at the jury trial, Tirado admitted that he spoke Mam until he was six years old, and then shifted to Spanish.

That was good enough for the jury, which got ‘im. The Court of Appeals refused his petition for appeal, but a panel of the Supreme Court granted him a writ.

That was the last of Tirado’s victories; today the justices unanimously affirm the conviction. While Tirado makes much of the translator’s failure to testify at the suppression hearing, she did testify at trial. In evaluating suppression-motion appeals, appellate courts consider all relevant evidence, including what’s adduced at trial.

As for the merits, Tirado is undone by that ruthless slaughterer of appeals, the standard of review. Appellate courts review the admission or exclusion of evidence for abuse of discretion. The justices find today that the trial court’s admission of the video recording was an appropriate exercise of discretion. They also reject the contention that the confession was not knowing and voluntary, again bowing to the trial court’s superior knowledge of the circumstances (since the judge watched the video and heard witnesses testify).

Land use

Let’s step into the arcane world of lawful nonconforming uses to take up Prince William County v. Archie.

The county fathers (and no doubt the mothers, too) up in Prince William have no appetite for auto graveyards within their jurisdiction. The county’s zoning ordinance, enacted in 1958, doesn’t allow the facilities anywhere in the county. That doesn’t mean that they don’t exist; in fact, there’s a great big one on Minnieville Road in Woodbridge.

The reason that graveyard still exists, and presumably thrives, is because it was established in 1954. A use that predates a zoning ordinance is grandfathered and may continue as a lawful nonconforming use. That privileged status can vanish if the use ceases for two years. And that sets up our tale.

The Archie family has long owned the property, which was originally intact but now comprises three contiguous lots. Justice Goodwyn explains the layout: “The three parcels are ‘stacked up like boxcars,’ with Parcel 20 fronting Minnieville Road, Parcel 20B in the back, and Parcel 20A in the middle between Parcels 20 and 20B.” The family partitioned it in 1974, assigning the front and back parcels to Mr. and Mrs. Archie and the middle one to a relative we’ll call Aunt Dorothy. At all relevant times, the place simply teemed with vehicular cadavers, regardless of the lot lines.

In 1987, Aunt Dorothy sold her lot to a company. That company sued the Archie family, essentially saying, “Get your %#&!! dead cars off my property.” The court in that case ordered the Archies to remove the cars within 30 days.

I will admit that as I read this far into the opinion, I figured that a month was nowhere near enough time to clear out a junkyard. It turns out that I was right; the family never got the body count below 100 or so. That led the court to hold the family in contempt. But the parties eventually submitted a consent order, calling for the family to pay money to the company for what looks to me like rent.

Meanwhile, the county’s zoning folks initiated enforcement proceedings against all three lots, claiming that the use was illegal. Testimony established the grandfathered use for Parcels 20 and 20B, and the company certified that it had reached agreement for the Archies to clear off 20A. Based on that, the court let the company out of the zoning case and declared the uses on 20 and 20B to be lawful.

The company eventually defaulted on its mortgage. At the ensuing foreclosure sale, Aunt Dorothy reacquired it. She sold it in 1995 to the owners’ son, whom we’ll call Junior, so that Junior now owned all three lots. (I infer that Junior inherited Parcels 20 and 20B when his parents passed away.)

Let’s fast-forward to 2015. Junior still operated the family business, but to be safe, he asked the county to confirm that he had a lawful nonconforming use on all three parcels. The Zoning Administrator said yes for 20 and 20B, but no dice on 20A, since there had been an interruption in ownership, and the company hadn’t consented to the continued use.

Junior appealed to the BZA, which ruled against him by a 3-2 vote. He appealed to circuit court and found better luck there; the learned judge read the ordinance differently, holding that actual use, regardless of who the owner is, governs. Several witnesses testified that there had been cars all over Parcel 20A for many, many years. The judge bought that and ruled in favor of Junior.

The county got a writ, but today the justices affirm. The court respects the trial judge’s factual finding that the use was continuous, so no matter who the owner was or what his intent was – those factors are actually immaterial – the extended, continuous use of the property as an auto graveyard means that the use is grandfathered across all three parcels.

At this point, you’re wondering if there’s anything those county fathers and mothers can do to rid themselves of a business they don’t like. The answer is yes, but they may not like their options: They can offer to buy the property from Junior, or they can condemn it, assuming they can find a public use for the land.

ANALYSIS OF JULY 26, 2018 SUPREME COURT OPINIONS

(Posted July 26, 2018) What, you thought that the justices were on a luxurious three-month summer vacation? We’ve got opinions! The Supreme Court hands down two published decisions today in appeals argued in the June session.

Criminal law

We get an important probable-cause ruling today in Curley v. Commonwealth. The whole issue boils down to Curley’s motion to suppress the evidentiary goodies that a search of his car generated – cocaine, marijuana, a Glock, and a fistful of twenties. The question is whether the arresting officer had probable cause to search the car to get those things.

My experience as a former government attorney showed me that on many occasions, it’s the little things that trip up crooks. Here, Curley was driving around Pittsylvania County with no front license plate on his car. As violations of the law go, that’s on the mild end of things. A deputy stopped him, approached the driver’s side, and noticed a backpack in the front passenger seat next to the driver.

Let’s let Justice McClanahan take over the narrative here:

When Officer Wyatt asked Curley for his driver’s license, Curley said it was located inside the backpack. Curley then took approximately thirty seconds to retrieve it. During that time, Curley was “bent all the way” over the backpack “with his chest to the top of the bag,” which blocked Officer Wyatt’s view of the backpack’s contents. As Curley handed over his driver’s license, he appeared very nervous, his hand was shaking and he was breathing heavily. Due to Curley’s movements, Officer Wyatt became concerned about the possibility of weapons in Curley’s vehicle and instructed Curley to place his hands on the steering wheel.

Once Curley stepped out, the deputy (and a backup who had arrived) asked Curley for permission to search the car. No dice, Curley replied. “Well, how about if we search you?” To this, Curley answered that he didn’t possess anything illegal, but he consented to the search.

Bad move. The deputies found a digital scale, with a white residue on the pan, in Curley’s back pants pocket. (What; he was sitting on it?) Suspecting that this was used for cocaine distribution, the deputies proceeded to search the car, where they found that cascade of incriminating evidence.

As noted above, the primary issue in this appeal is whether the evidence accumulated before the search of the car constituted probable cause. The trial court felt that it did, denying Curley’s motion to suppress. After a conditional guilty plea to a host of charges, Curley appealed to the Court of Appeals. That court ruled that the combination of the officers’ observations of Curley, the scale, and the discovery of the cash were sufficient.

Curley no doubt saw a glimmer of hope in this ruling: The cash hadn’t emerged until after the search of the car. That couldn’t possibly establish probable cause for the search. On appeal, the justices agree with this objection … but affirm the conviction anyway. Today’s opinion describes three pre-search factors:

Curley’s furtive movements while in his vehicle after the traffic stop, causing Officers Wyatt and Owens to be concerned that Curley might be in possession of a weapon; Curley’s overly nervous demeanor; and Curley’s possession on his person of a digital scale with suspected cocaine residue, which Officer Owens opined was consistent with drug distribution.

Analyzing those as a whole (instead of separately, as Curley had urged), the court finds that this was enough evidence to establish probable cause to search the car.

Confessed judgments

One measure of the complexity of an appeal is when the setup – the facts and procedural posture – is longer than the analysis. That’s the case in Catjen, LLC v. Hunter Mill West, LC from Fairfax County, which results in a 9 ½ page opinion, five of which is the setup.

Because of that complexity, I’m going to truncate this analysis and get to the rulings quickly. The Reader’s Digest version of the setup is as follows: Debtor signed a deed of trust note securing a seven-digit loan with a lien on five acres. The note contained a confession-of-judgment provision and a balloon payment. When the debtor didn’t pay, the creditor declared a default, triggering a much higher interest rate. After foreclosing on the five acres and getting less than full payment, the creditor’s attorney in fact showed up in court and confessed judgment for the $2.4 million deficiency.

The debtor then came to court and moved to reopen the case under Code §8.01-433, claiming that the prejudgment interest in the judgment was way too high. The trial court agreed and reduced the judgment to the debtor’s calculated figure of $1.1 million.

Now it’s the creditor’s turn to complain. It moved to nonsuit the case, but the judge decided that that motion came too late, since the matter had already been submitted to the court for decision. The creditor then asked that the case be set for trial, but the court refused.

The creditor got a writ, and today the Supreme Court unanimously vacates the judgment, reverses, and remands. Justice Powell’s opinion explains that the only issue in a motion to reopen a confessed judgment is “whether the judgment debtor’s pleadings assert a facially adequate defense or setoff.” Once the trial court found that it did, the remedy is set forth in the statute:

… the case shall be placed on the trial docket of the court, and the proceedings thereon shall thereafter be the same as if an action at law had been instituted upon the bond, note or other evidence of debt upon which judgment was confessed.

That is, the court doesn’t adjudicate the claim and defenses then and there; it calendars the case for a later trial. This trial court short-circuited that process by adjudicating the entire dispute with no witnesses; no jury; no trial.

That, you will readily understand, is a ruling that’s bound to be reversed. The justices accordingly send this case back for trial, at which the parties can hash out what the proper interest calculus is.

ANALYSIS OF JULY 19, 2018 SUPREME COURT OPINIONS

(Posted July 19, 2018) The heat of summer won’t dissuade the justices from giving you beach-reading material; today we see four new published opinions. Grab your sun block and let’s dig in.

Appearances

Elementary principles tell us that a court cannot enter a judgment against a party over whom the court has not acquired personal jurisdiction. This is usually done by serving process. But lawyers know well that if the defendant voluntarily enters a general appearance in the case, service of process is unnecessary; that voluntary act waives service. Today, in McCulley v. Brooks & Co. Gen. Contractors, the justices address a related issue: What if the alleged general appearance comes after a default judgment?

This appeal stems from a routine commercial landlord-tenant collection. Landlord rented office and warehouse space to Tenant, and got Guarantor to sign as well, to secure payment. When Tenant didn’t make lease payments, Landlord sued them both.

Landlord served Guarantor by posting at his usual place of abode. That service method also requires that the plaintiff mail the defendant a copy of the process ten days before getting default judgment. Landlord forgot to do that (at least the record doesn’t establish that any such mailing ever went out). Appearing in court without either defendant, Landlord got a default judgment against both.

That led to proceedings to execute on the judgment. Landlord summoned Guarantor to appear for debtor’s interrogatories before a commissioner in chancery. Soon thereafter, the commissioner got a call from Guarantor’s lawyer, asking to reschedule. Why, sure, the commissioner answered. The lawyer then filed a motion to vacate the judgment, stating in all caps that he was making only a special appearance to contest service of process.

The commissioner rejected a request to stay the DIs pending resolution of the motion to vacate, and the Guarantor grudgingly cooperated. Eventually the parties got before a judge, who ruled that the initial service was defective, but that the Guarantor had waived any objection to it by “making a general appearance in this case through his post-judgment participation in Debtor’s Interrogatories.”

On appeal, the Supreme Court begins by noting that failing to satisfy the mailing and certificate requirements in the Code “renders any default judgment obtained void for lack of personal jurisdiction.” The question today is whether Guarantor’s responding to the DI summons waived that. The court holds that it did not, and accordingly reverses the judgment in favor of Landlord.

The principle is fairly simple: A void judgment has no vitality, and cannot be revived afterward. Justice Kelsey, who composes today’s opinion, explains in this memorable language:

A mere general appearance after the entry of a void judgment is too little, too late, to save the judgment. Just as medicine may cure a sick man of a fatal disease but not revive him after his burial, a litigant can “cure” the absence of personal jurisdiction by making a general appearance prior to final judgment but cannot resurrect a void judgment thereafter.

There’s actually a split in other jurisdictions on this point; today, the SCV adopts what looks to be the majority view. The opinion goes on to reject the claim that the voluntary participation estopped the Guarantor from claiming that the judgment was void, drawing support from the Restatement (Second) of Judgments in doing so.

Justice McCullough files a concurring opinion, agreeing fully with the majority, but pointing out that there’s a pregnant question here: Can appearance before someone who’s not a judge constitute a general appearance? Before you answer that a commissioner is a quasi-judicial agent, how about a mediator? Does a defendant waive service of process by mediating a dispute? How about visiting the Clerk’s Office? The concurrence doesn’t try to resolve these issues, concluding that “A future case will have to answer that question.” But the question is tantalizing for those procedure geeks among us.

Sexually violent predators

There’s an important procedural holding in Commonwealth v. Giddens that will have application beyond the SVP field. This, then, is an opinion worth reading even if you don’t handle this kind of case.

Giddens qualified for SVP review based on two convictions. A psychologist evaluated him and gave him a score of five on something called the Static-99 test. Anyone scoring at least five is eligible for involuntary commitment beyond his scheduled release date.

In circuit court, Giddens moved to dismiss, claiming that his test score had been calculated incorrectly. One of the questions is whether the subject has ever lived with a lover for at least two years. This, presumably, is an indicator of stability; if the answer is yes, no points are assessed, but if it’s no, the subject gets one point.

At a hearing, Giddens testified that he had lived with two different women – one of whom he had married – for more than two years each. His brother testified and corroborated that. The Commonwealth responded that this testimony was inconsistent with its records, including reports from two doctors.

The trial court granted the motion to dismiss, finding that the Commonwealth had failed to meet its burden to prove that the test had been scored correctly. The justices granted a writ to the Commonwealth.

On appeal, the Supreme Court notes that the Commonwealth is entitled by statute to a presumption of substantial compliance with the testing procedure, absent proof of gross negligence or willful misconduct. Giddens didn’t claim willful misconduct, so the issue today is whether the evidence at the hearing showed that the Commonwealth was grossly negligent in calculating the score.

In Virginia, “a claim for gross negligence must fail as a matter of law when the evidence shows that the defendants exercised some degree of care.” The court today points out that there was conflicting evidence in the trial court – the two brothers’ testimony differed from the Director of Corrections’ records and Giddens’s previous evaluations. In that event, and given the statutory presumption, the justices unanimously conclude that the Director wasn’t grossly negligent in calculating a score of five. The court thus reverses and remands the case to the circuit court for trial on the merits.

The concept of gross negligence has been in a long; slow decline here in Virginia. If a defendant exercises even minimal care, the justices have ruled that there’s no gross negligence. That’s true even after the fact; in Elliott v. Carter, for example, the justices found that a post-negligence attempt to rescue the victim was sufficient to minimize the earlier negligence – which earlier negligence can easily be described as gross. Today’s author, Justice McCullough, dissented from Elliott, but he cites it – indeed, in the quoted passage at the beginning of the paragraph immediately above this one – in holding that there’s no gross negligence here.

On remand, I’m candidly not sure what happens. The case was dismissed before a trial on the merits, so in theory, it should go back for trial. If so, Giddens may try again to show that he got the wrong score. Today’s opinion points out that while the two brothers testified at the hearing on the motion to dismiss, neither of the two women did so. I have at least some doubts about whether either of those women will be willing to help Giddens now, but it’s at least possible.

On the other hand, the Supreme Court has ruled that, as a matter of law, the Director was not grossly negligent, and that means that the presumption of substantial compliance holds. If the Director has substantially complied as a matter of law, what’s left to try? But I think the better reading of the opinion is that the judge has to hold a trial, in which the Director will get the benefit of the presumption and Giddens will have to overcome it by evidence that he really isn’t a sexually violent predator.

Criminal law

There’s a fascinating double-jeopardy issue in Severance v. Commonwealth, and it produces our only split decision of the day. Severance committed three murders in Alexandria, two of which occurred three months apart.

The Code describes 15 separate offenses that can constitute capital murder. Two of those are:

7. The willful, deliberate, and premeditated killing of more than one person as a part of the same act or transaction;

8. The willful, deliberate, and premeditated killing of more than one person within a three-year period; …

There’s no claim that these murders were part of the same act or transaction, so subsection 7 doesn’t govern this case. But at least two of the murders qualify for treatment under subsection 8. Severance killed two people in a willful, deliberate, and premeditated fashion within three years of each other.

The question in this appeal is how many capital offenses that constitutes. More specifically, under the Double Jeopardy Clause, can he receive two life sentences (the prosecution waived the death penalty) for these two murders?

Here are the competing theories. Severance contended that the criminal act proscribed in subsection 8 is murdering two people under certain conditions, including temporal proximity. He only did that once, so he can only be punished once – a single life term is his maximum sentence. The Commonwealth responded that he murdered victim #3 within two years of murdering victim #2, and he murdered victim #2 within three years of murdering victim #3. That’s “two murders, two convictions, two punishments.”

The Court of Appeals adopted the Commonwealth’s view, and today, in a 6-1 decision, the Supreme Court agrees, affirming the two life sentences that Severance received in the trial court. The court holds that Severance’s Blockburger argument is irrelevant, because that only addresses two punishments for the same act. This, the majority finds, was two acts.

In dissent, Justice Powell invokes the mathematical commutative principle: a+b = b+a. The only difference between the two indictments here was that they recited the names of the victims in a different order. That means that they are, analytically, the same act. Justice Powell believes that while the Commonwealth was free to pursue both convictions – Severance’s lawyer acknowledged as such – it could only seek punishment for one of them.

I found this to be a very interesting analytical exercise, and it’s the latest in a series of appeals involving fascinating thrusts and ripostes between Justice Powell and Justice Kelsey, who writes today’s majority.

Wills

The court disposes of a challenge to a will in Canody v. Hamblin, an appeal arising in Nelson County. In the spring of 2014, the testator went to his credit union and asked the folks there if they would witness and notarize a will for him. Since he was a good customer, they were happy to help; two witnesses and a notary formalized the process for him, signing at the end of the three-page document.

After the testator died, his son, who perceived that this will treated him ungenerously, contested its admission to probate. He noted that the three computer-generated pages were not numbered, and no paragraphs wrapped around page breaks. That made it easy to forge the first or second pages. The local clerk evidently agreed and refused to probate the will. That led to this court action.

At trial, the circuit court did two things that spur this appeal. First, it permitted testimony from one of the testator’s close friends. That witness described a conversation he had with the testator, describing how the testator wished to allocate his bounty. That description matched up with the provisions in the contested will.

The son contended that extrinsic evidence is not admissible to establish whether a will is forged or not. But the Supreme Court rules today that that was proper for the admittedly limited purpose for which the trial court considered it: “to establish that the first two pages of the will were entirely consistent with [the testator’s] stated testamentary intentions and to refute the assertion that they were not part of his original will.” The testimony isn’t admissible to prove “the substantive fact of forgery,” but as corroboration, they’re fine.

The trial court’s second ruling was to admit the three-page document without affirmative proof that those three pages were the entire will. The son urged that each page had to be fully authenticated. The witness and the notary who testified recognized their own signatures, but each said they knew nothing about the first two pages. In this day of computers, the son continued, it’s vastly easier to forge pages and substitute them – in comparison, say, with the days of handwritten or typescript wills.

The justices turn aside this challenge, too. They find that there is no positive evidence of forgery or alteration; just supposition that it might have happened. The only thing a witness has to do when testifying is to recognize his or her own signature; that’s enough to create a presumption that the will was properly executed. Since the son never rebutted that presumption with evidence – a mere opportunity for forgery doesn’t qualify – the Supreme Court affirms the circuit courts judgment admitting the will to probate.

One last point here: The trial judge comes out of this looking especially good. Justice McCullough’s opinion for a unanimous court describes his “thoughtful and thorough memorandum opinion” admitting the friend’s testimony into evidence, and cites with particular approval his observation on authentication. Praise from upstairs comes all too seldom; I trust that 24th Circuit Judge Michael Garrett will appreciate this opinion all the more for it.

Assignments of error

You no doubt remembered my opening line in today’s analysis, that there are four published opinions. If you’ve been counting, you know we’ve exhausted those. But there’s more! The court hands down an unpublished order that nevertheless contains an important ruling on the always-treacherous ground of specificity of assignments of error. If this really is your beach reading, now would be a good time to reapply that sun block while we go over the circumstances of Arthur v. Commonwealth.

Arthur stood indicted for possession of a firearm by a convicted felon. At the jury trial, he offered to stipulate to his convicted status, evidently perceiving that the jury would be inflamed by the violent nature of the felony (robbery). He argued that admitting the conviction order would be more prejudicial than probative.

The learned trial judge refused to allow him to stipulate away the sting of the prosecution’s evidence; she allowed the Commonwealth to introduce the conviction order. She did, however, offer to address any improper effects of that by instructing the jury, if Arthur wished, that it could not consider the prior conviction to establish the current crime or as character evidence against him. Arthur declined this invitation, and after deliberating, the jury got ‘im.

Arthur took his cause to the Court of Appeals, where his assignment of error claimed that the circuit court “erred in allowing the Commonwealth to introduce Arthur’s previous felony conviction in that Arthur offered to stipulate to that element of the offense.” The CAV refused to intervene, noting that a curative instruction is perfectly appropriate in situations like this, and since Arthur neither asked for one nor moved for a mistrial, the objection was waived. The appellate court never reached the merits of the more-prejudicial argument.

Arthur persevered and got a writ from the justices. He listed one assignment of error: “The trial court erred in allowing the Commonwealth to introduce Arthur’s previous felony conviction in that Arthur offered to stipulate to that element of the offense.” You can go back and compare that with what he assigned in the CAV, but I’ve already done so; the language is identical.

Once upon a time, that approach was plainly erroneous, because the Supreme Court reviews the Court of Appeals’ ruling, not the trial judge’s. Back then, you had to begin with, “The Court of Appeals erred in …” But a few years ago, the justices amended Rule 5:17(c) to add this saving provision:

An assignment of error in an appeal from the Court of Appeals to the Supreme Court which recites that “the trial court erred” and specifies the errors in the trial court, will be sufficient so long as the Court of Appeals ruled upon the specific merits of the alleged trial court error and the error assigned in this Court is identical to that assigned in the Court of Appeals.

That takes care of that little trap for the unwary.

Except Arthur didn’t read the new rule carefully enough. You can “reach through” the CAV using this provision only if the Court of Appeals “ruled upon the specific merits of the alleged trial court error.” That didn’t happen here; the CAV ruled that the argument in Arthur’s sole assignment was waived, and never reached those merits. In that event, Arthur’s assignment addresses an argument other than the one that the CAV decided. And that means that the justices dismiss the appeal for an insufficient assignment of error.

The modern Supreme Court has been especially strict in evaluating assignments of error, and appellants pay a high price for drafting assignments that fall short in one way or another – too narrow, too broad, or as here, assigning error to a ruling that never happened. This order is an object lesson that practitioners need to pay particular attention when crafting assignments, and they need to read the rules very carefully. The stakes are too high to proceed otherwise.

ANALYSIS OF JULY 5, 2018 SUPREME COURT OPINION

(Posted July 5, 2018) The Supreme Court of Virginia hands down a single published opinion this morning. The parties argued Barr v. Atlantic Coast Pipeline at the end of February; today’s decision ends a three-year battle between several Nelson County landowners and the owners of a Delaware company.

Lawyers and judges are not always universally admired by members of the general public, for a variety of reasons. One of those is the fact that, on occasion, we employ counter-intuitive definitions for ordinary words. Judicial decisions occasionally hold that shall sometimes means may (for a recent example, see Rickman v. Commonwealth from December 2017). The SCV held in February 2015 that the word above in a statute actually means above or below (Landini v. Bil-Jax). Today, a majority of the court rules that in the context of surveying access, the word and actually means or. While judicial decisions explain these incongruous interpretations, the general public usually just shakes its collective head and wonders how anyone could toss aside basic rules of English.

Here’s the setup: Atlantic Coast wanted to enter onto several parcels in 2015 to survey the properties, so it could identify the best route for a planned natural-gas pipeline. By statute, it can ask owners for permission to enter. If they say no, the company can give notice of its intent to enter, specifying the date or dates of entry, and then go ahead and conduct the surveying work.

Atlantic Coast was unable to get these landowners’ permission to enter their parcels, so it sent out notices. To be extra-special-cautious, the company filed a declaratory-judgment petition, seeking a judicial declaration that it had the right to enter. (In my opinion, that’s a very sensible approach.) The owners demurred on two grounds. First, they asserted that the notices gave more than one date for entry, not a single date. Second, they claimed that the surveying work didn’t meet the requirements in the Virginia statute.

The second issue is the real heart of today’s ruling. The relevant statutory text authorizes public service companies to:

make such examinations, tests, hand auger borings, appraisals, and surveys for its proposed line or location of its works as are necessary (i) to satisfy any regulatory requirements and (ii) for the selection of the most advantageous location or route, the improvement or straightening of its line or works, changes of location or construction, or providing additional facilities …

The primary issue in this appeal is the word and, located between parts (i) and (ii). It’s important because Atlantic Coast had only one basis for needing to enter: to select the most advantageous route. The owners argued that the right to enter must be based on both needs – that’s what the word and means – so the absence of a regulatory need means the company had no right to enter before condemning.

A trial judge disagreed and ruled in favor of Atlantic Coast. Today a divided Supreme Court agrees and affirms. Justice Powell writes for the majority. She disposes of the one-date requirement, noting that in last year’s decision in Chaffins v. Atlantic Coast Pipeline had required only “dates certain,” not a single date for performance of all the work. Atlantic Coast’s specified windows were reasonably narrow, and many of them overlapped, so the court finds this aspect of the notices to be appropriate.

As I indicate above, the real issue here is that troublesome and. The majority finds that, viewed in context, the word actually means or here. There are judicial decisions that permit that counterintuitive interpretation, and the court rules today that this situation falls in that class of decisions.

There are four rationales for this ruling. First, the court finds that viewing the requirements as alternatives facilitates the clear legislative intent, which is to permit pipeline companies to create a workable plan to build an important public project. Second, a literal interpretation of and here would render other parts of the statute meaningless. Specifically, some of the statutory reasons for entry occur before construction and some are after; interpreting and as conjunctive would mean that the later-phase work would never be relevant. Third, requiring that work satisfy both requirements would mean that the company couldn’t do any work outside the narrow regulatory requirements; that means that the second requirement would be coextensive with the first, and the company would lose all discretion “for no discernible purpose.” And fourth, the legislature has used and in both the conjunctive and disjunctive forms in the same sentence.

Late last year, the Supreme Court handed down a 4-3 decision in Levick v. McDougal, involving the legitimacy of a wedding that the parties celebrated before they went out and got a license. I found that case utterly fascinating, because of the marvelous back-and-forth between Justice Kelsey’s majority opinion and Justice Powell’s dissent. Today those same combatants go at it again, this time with Justice Kelsey alone in dissent. The exchange is just as vigorous, and just as fascinating to follow, as it was in Levick.

There are several components to the dissent’s argument, but the theme is that taking rights by condemnation is supposed to be hard, because of the importance that we place on ownership of private property. To exercise the right of eminent domain, a condemnor has to follow statutory requirements to the letter.

Justice Kelsey points out that, pursuant to federal law, a pipeline company doesn’t acquire the power of eminent domain until it gets a permit. This company sought access to the owners’ properties long before it got a permit. The dissent points out that last year’s decision in Palmer v. Atlantic Coast Pipeline had noted that companies “vested with eminent domain authority,” are granted the right of entry. That authority doesn’t vest until the company gets a permit, so it can’t exercise the right of entry until then.

The dissent then tackles the four-pronged analysis in the majority. First, the legislature could well have intended that both conditions occur before the company has the right of entry. Second, the phrase regulatory requirements in the Virginia statute doesn’t say “regulatory requirements required to obtain the certificate,” and agencies can require additional surveys after the initial construction. Third, Justice Kelsey practically erupts at the concept that pipeline companies would lose all discretion for no reason:

No discernible purpose? What about the legislative purpose to withhold from a pipeline company the legal license to trespass onto private property when no “regulatory requirements” make it “necessary” to do so …?

Finally, the dissent argues that the use of and in the conjunctive in the same sentence indicates that that’s the natural reading of the word here, too. Substituting a disjunctive use in the other part of the sentence produces an absurd result; interpreting and to mean and in this part is perfectly understandable.

I’ll close by noting two things that aren’t present in today’s opinion. First, in last year’s Palmer decision, the landowner wound up waiving what looked like a killer argument: Virginia law authorizes only Virginia companies to exercise the powers of public-service companies, including the right of entry at issue here. Atlantic Coast is a Delaware company. I expected that objection to be front-and-center here; but no. The landowners raised the objection in their demurrer to the initial DJ action, but when Atlantic Coast filed amended pleadings, the owners didn’t renew it. At some point, the justices will confront what looks like a real barrier to this company’s work here, but this isn’t the case.

The second thing missing is the chief justice, who sat this case out. (Senior Justice Millette sat in for him.) The likeliest explanation for that is the fact that this case originated in the chief justice’s home county, and he probably knew one or more of the appellants, so he recused himself.

ANALYSIS OF JUNE 7, 2018 SUPREME COURT OPINIONS

(Posted June 7, 2018) The Supreme Court of Virginia today hands down two published opinions in cases argued in the February and April sessions.

Disability law

The Code of Virginia includes a laudable provision to look out for certain public employees who become disabled as a result of their work. The enactment is the Line of Duty Death and Disability Act, and extends health-insurance benefits to workers who become disabled due to their work. That act is the focus of Jones v. Comptroller.

Jones is a retired firefighter on the Peninsula. When his employer, the City of Hampton, offered certain tenured employees a financial incentive to retire early, he accepted the offer and stepped down in the summer of 2010. The following spring, a doctor diagnosed him with throat cancer.

The dispositive question in this appeal is whether the act’s insurance benefits apply retroactively, when a retiree is first diagnosed after his separation date. A circuit court held that it did not, because the act provides these benefits only when an individual becomes disabled “so as to prevent the further performance of duty.” A retiree doesn’t perform any “further” duty, so the court denied insurance benefits.

In a short opinion written by Justice Goodwyn, the justices unanimously affirm that ruling. The court turns to dictionary definitions of further and performance to find that the statute unambiguously excludes insurance benefits to persons who become disabled after retirement.

The court points also to a parallel statute that contains a “look-back” provision, whereby retirees are eligible for benefits where a diagnosis occurs within five years after separation. This statute doesn’t contain that provision, and the court presumes that the omission was intentional.

Contracts

With teaming agreements becoming more common in the field of government contracts, today’s opinion in CGI Federal Inc. v. FCi Federal, Inc. takes on added significance. It involves a contract with the State Department to provide visa-processing services. CGI is a large company and had the ability to provide the services; but the feds wanted a small business for this, so CGI was ineligible to bid.

FCi, in contrast, is a small company, so it fit the mold of an acceptable bidder. But it wasn’t able to perform the required work alone. If you sense the opportunity for a productive marriage here, you’re onto something. The two companies got their heads together and came up with a plan for the smaller company to submit a general-contract bid, with the larger company as a subcontractor. They fashioned and executed a teaming agreement to permit joint work on the bidding and performance processes.

Trouble arose – as it must, or else there will be no appeals, and appellate lawyers and their families will go hungry – in the language of the teaming agreement. Here’s the key provision, as paraphrased by Justice McClanahan today: “If the [bid] proposal resulted in a contract award to FCi, the teaming agreement provided a framework for the parties to negotiate a [performance] subcontract.”

Uh-oh. This isn’t a performance agreement; it’s an agreement to agree. Actually, it’s less than that: it’s an agreement to negotiate for an agreement. We saw two years ago, in Navar, Inc. v. Fed. Bus. Council, that nobody’s going to collect damages based on an agreement to negotiate a contract in the future.

I’ll cut to the chase here: Nobody collects on this language, either. After the feds awarded FCi a contract that wasn’t as favorable to CGI as the latter had expected, the big company sued for breach of contract, fraudulent inducement, and unjust enrichment. A friendly jury awarded $12 million in damages, but the mean old trial judge took it all away, and today the justices affirm without a dissenting voice.

The court’s analysis is simple and straightforward, once you accept the Navar premise. The big company tried to collect damages for breach of the performance agreement. That is, it sought to recover what it expected to receive if the parties had negotiated an agreement after the award of the government contract. But since there was no such subsequent contract, there’s nothing on which a court can base such an award. Courts can’t draft contracts for parties, and an award of damages would have required that.

On the fraudulent-inducement count, today’s opinion announces what looks to me like a first-impression ruling: “we conclude that lost profits are not recoverable for a fraudulent inducement claim when they are premised on the unenforceable provisions of a contract.” The big company pointed to the jury’s finding that the little company had committed fraudulent inducement, and argued that a party can’t escape tort liability by relying on the terms of a fraudulent contract. Here’s Justice McClanahan’s rejoinder:

[T]his principle is inapplicable to CGI’s claim. CGI’s recovery of lost profits is not limited by the terms of the amended teaming agreement, but by the parties’ failure to include terms in the amended teaming agreement by which lost profits could be reasonably measured. Stated simply, CGI cannot recover profits based on a bargain for a subcontract it never struck.

Finally, the justices affirm the dismissal of the unjust-enrichment count. The terms of the teaming agreement itself barred this claim. And by suing for damages instead of seeking rescission of the teaming agreement, FCi was bound by its terms.

ANALYSIS OF MAY 31, 2018 SUPREME COURT OPINIONS

(Posted May 31, 2018) The Supreme Court of Virginia today announces published rulings in four appeals, including the closely watched redistricting case of Vesilind v. Board of Elections.

Before we get to the analysis, I’ve seen that the argument docket for the June session is on the court’s website. There are 15 cases scheduled for next week. That brings to 65 the number of arguments this year.

There are only two more sessions in 2018 – one in mid-September and the other at the end of October. The court is on a pace to hear fewer than 100 merits arguments this year. That would be the smallest number in a long, long time. That being said, September’s docket tends to be somewhat larger, because more appeals mature over the three-month summer break, so perhaps we’ll crack the century mark after all.

Elections

The justices heard oral argument in Vesilind v. Board of Elections on the last day of February, and today, on the last day of May, we get a ruling. This is a challenge by 14 Virginia voters who asserted that the 2011 General Assembly gerrymandered five House districts and six Senate districts to ensure Republican control of the legislature. The challengers asserted that the eleven districts violated the requirement in the Constitution of Virginia that legislative districts must be compact.

We learn from today’s opinion that there’s a great deal of science in the districting process, but it’s a social science; not something as readily definable as physics. Both the challengers and the legislature (the Board of Elections was the only named defendant, but the trial court permitted the House and its speaker to intervene as parties) adduced expert testimony exploring the issue by various means of calculating compactness.

In the end, the trial court found that the legislature’s judgment call on compactness was fairly debatable, in that reasonable, objective persons could have come to different conclusions. That court ruled against the challengers, and today the justices affirm. Justice Goodwyn’s opinion for the court lays out the competing evidence in detail, but in the end it’s a combination of a deferential decision-making standard at trial and another deferential standard of appellate review that compel affirmance.

Given the subject matter of this litigation, I’m going to add some editorial comment here on an issue other than appellate procedure. I have no quarrel with the Supreme Court’s opinion, given those deferential standards. I only wish there had been some way to reverse.

I’m well aware that, depending on who’s in power, both political parties have engaged in gerrymandering districts to benefit their respective candidates. Regardless of who does it, it’s wrong. I regard partisan redistricting as a form of blatant political corruption; as a cancer on our republican form of government. The justices’ decision today means that we, the voters, are the surgeons who must remove this cancer. We can do so by telling our legislators that we insist upon it, and by voting for candidates who will pledge to commit the redistricting process to a nonpartisan group, as six states have already done. Once I finish today’s analysis, I plan to let my Delegate and my Senator know that.

Corporations

I will admit to having drawn in a sharp breath on just the second page of Davis v. MKR Development, LLC, an appeal involving a derivative action by a majority member of a limited liability company. It’s when I got to the part where the member sued the managers. Those managers are siblings, and in their youth, they no doubt referred to the eventual plaintiff in the case as “Mom.”

Uh-oh. We’ve seen family disputes many times here since the early days of VANA, and most of them end in tears. Here’s the setup for this one:

Dad established a business. He sells the stock to his children, the siblings. He and Mom own land that the business leases. Mom and Dad form an LLC to hold title to the property; that LLC lists the siblings as managers.

One day, Mom checks the balance on her bank account. She expects there to be over a million bucks in there from lease payments; but the balance is a measly $35K. She asks the siblings for payment; they give her the brush-off. She asks for an accounting, but they ignore that, too. Cue the lawsuit.

In the circuit court, the siblings demurred, saying that Mom had to make a formal statutory demand to bring suit in the corporate name, instead of straight-out filing a derivative action. The judge agreed and dismissed the suit.

On appeal, the justices turn to age-old caselaw on derivative suits. These were chancery causes, fashioned by the courts to permit shareholders from being fleeced by unfaithful corporate directors. That caselaw did require a formal demand by the shareholder to file a corporate action before the derivative remedy was available. But that hoary law also provided something called the futility exception; if it’s obvious that making the formal demand would be useless, the shareholder can go ahead and sue.

Mom’s situation seems tailor-made for this exception. But you need to know that the legislature amended the corporate title of the Code in 2011; that amendment seems to require a formal demand before a shareholder can sue, and there’s no mention of the futility exception.

The Supreme Court evaluates the amendment under the two competing canons of construction. First, new legislation that covers the area of previous common law is presumed to work a change in that law, and supersede it to the extent they’re inconsistent. That militates in favor of the siblings’ position.

But there’s another modern Code provision that cuts the other way: “In derivative action, the complaint shall set forth with particularity the effort of the plaintiff to secure commencement of the action by a member or manager with the authority to do so or the reasons for not making the effort.” If “the effort” is mandatory, what is this emphasized text; a useless appendage that can be ignored? Courts are loath to construe statutes so that part of it is useless surplusage.

In the end, the justices decide to construe the amendment in such a way that the futility exception survives. Since it plainly applies here, the court reverses and sends the case back for further proceedings.

I’ll add one last point on a finality issue. In a footnote, the Supreme Court notes that the trial court dismissed Mom’s complaint without prejudice. Instead of refiling, she went ahead and appealed, fearful that if she filed a new suit, the siblings would assert the statute of limitations. As we’ve seen, the justices decide this case on the merits.

That’s noteworthy because it’s probable that the federal circuit courts would regard a dismissal without prejudice as nonappealable. Such a dismissal puts the plaintiff back in the position where she was before filing suit in the first place. Be careful not to translate this ruling into your federal-court practice.

Criminal law

At what point would you say that a defendant has been convicted of a crime? It’s not when the judge says that the evidence is sufficient to convict; we learned in Moreau v. Fuller (2008) that the court still has the authority to acquit. By the time of the sentencing order, there’s definitely been a conviction; that’s the final, appealable order in a criminal prosecution. That’s Burrell v. Commonwealth from 2012.

What about the time in between? Has a defendant been convicted when the judge states, “I find you guilty, and we’ll defer sentencing”? That’s the key issue in today’s Lewis v. Commonwealth.

A grand jury indicted Lewis on two felony counts of domestic assault. Assault of a family or household member is a felony if the defendant has two prior convictions of such assault. The grand jury tagged Lewis for assaulting his girlfriend on October 2015 and in December of that year.

Here’s our first complication: Lewis had only one prior before the October assault. The prosecutor thus agreed to reduce the charge on the October charge to a misdemeanor. When Lewis presumably asked about reducing the December charge, too, the prosecutor refused. A conversation something like this probably ensued: “So how are you going to show a prior conviction for the December charge?” “I’m going to get a conviction on the October charge, and then use that as the second prior.”

The civil advocate within me reacted to this with scorn: Oh, come on; that’s too cute by half. But I know plenty about what I don’t know about criminal law, so I kept reading to see how the analysis unfolds.

The trial court did just as the prosecutor wanted, bifurcating the two charges (over Lewis’s objection), then conducting a bench trial on the October charge. The judge convicted Lewis and deferred sentencing. Without missing a beat, the court then arraigned Lewis on the felony indictment, got a not-guilty plea, and tried him then and there. Guilty again. Lewis argued in vain that both prior convictions had to precede the December assault.

Lewis appealed the felony conviction. The CAV shrugged him off with a per curiam order, but the justices granted a writ.

I warned you a moment ago that my civil practice doesn’t give me criminal-law expertise. I will accordingly report that I read today’s 12-page opinion agape, not believing what I was reading, as the Supreme Court affirms the conviction. Here are the rulings that lead to this result:

The domestic-assault statute provides that “where it is alleged in the … indictment on which a person is convicted” that the defendant has two priors, a conviction is a felony. Here, the indictment clearly asserted that. There may well have been a defect in the evidence that the prosecution presented to the grand jury to establish that second prior, but as usual, there’s nothing in the appellate record to show what happened in the grand-jury hearing.

Justice Mims’s opinion for the court notes the obvious: At this stage, there’s no way the October assault could have triggered the felony, because Lewis hadn’t been convicted of it yet.

“But, while intriguing, that question is not before us in this case.” While the prosecutor amended the October indictment down to a misdemeanor, Lewis didn’t object to the December indictment, or ask for a bill of particulars to spell out what the claimed second prior was. The opinion doesn’t call this a waiver, but that’s just what it is: The clear implication is that if he had done so, the trial court would have to step in and stop the felony proceeding.

So let’s go to the real question: What’s a conviction? You’ll recall that that’s where we began to explore today’s decision. Today, the Supreme Court holds that when a judge announces, “I find you guilty,” that’s a conviction. Thus, when the trial judge here found Lewis guilty of the October charge, he had been convicted of a second predicate offense, and could be tried and convicted for the felony on the December charge.

If you’re still skeptical, here’s a quote from a couple of the court’s recent decisions in this field: “once a court has entered a judgment of conviction of a crime, the question of the penalty to be imposed is entirely within the province of the legislature …” Thus, the court recognizes that the finding of guilt is when conviction takes place, even before sentencing.

Lewis had one more angle of attack: While the trial judge announced his finding of guilt on the trial date, he didn’t get around to entering an order to that effect for another eleven days. Note that the quote immediately above refers to a court’s entry of judgment. As of the trial on the December charge, no judgment of conviction had been entered against him. (Entry of a judgment is the act of signing an order. Rendition of judgment is the announcement of a ruling, usually orally, but sometimes in letter opinions.)

Lewis takes home the silver medal in this contest, too. The Supreme Court notes that an order is just evidence of what has happened in a case. It’s not the only possible evidence. Here, the trial judge was able to take judicial notice of the fact of Lewis’s conviction of the October charge, because he had just decreed that conviction a few minutes earlier. Lewis didn’t appeal the judge’s taking judicial notice, so that plays no part in the analysis.

That’s how we get from a proposition that was facially implausible to me, all the way to a unanimous affirmance.

The next criminal appeal is a joint one, decided by a single opinion styled Gerald v. Commonwealth. It involves convictions for driving on suspended licenses, third or subsequent offense, and perjury. The defendants are a mother and daughter.

On January 22, 2017, two days after “the largest crowd ever to witness a presidential inauguration” had allegedly assembled, presidential adviser Kellyanne Conway gave birth to the unforgettable phrase, “alternative facts.” She invited the public to believe the president’s boast instead of their own lyin’ eyes, spurring creation of a hundred memes to mock the idea that lies are facts. Today’s opinion gives the clear impression that the appellants are Conway devotees.

It started simply enough, with a rear-end fender-bender. Fortunately no one appears to have been seriously hurt. The driver of the front car – we’ll call him the victim – got out and saw the mother getting out of the driver’s side of her car. She said she was sorry. The daughter then got out of the passenger side and told the victim that the car was hers. The victim saw groceries and another passenger in the back seat. There followed a routine exchange of insurance information.

Normality vanished, though, when the victim asked for the mother’s driver’s license. At that request, the daughter “ran around to the driver’s side, hopped in the car,” at which point the mother “got in the passenger seat, and they sped off.” Now what brought that on? The victim jotted down the license plate number and called police.

It wasn’t hard to find the escapees; a police officer drove to the registered address for the license plate and found daughter, mother, and several others unloading groceries at their apartment. If the mother was planning to be coy, her first question to the officer blew that chance: “Is this about the crash?” Why, yes, the officer must have replied with a concealed chuckle.

It’s at this point that mother and daughter unleash a dizzying series of alternative-fact statements about who was driving, about who had a suspended license, and who the car belonged to. Rather than try to outline all of them, I’ll let you sift through the slip opinion at your leisure.

The important thing for our purposes is that when the two women were tried for driving on suspended operators’ licenses – remember, they each drove the car that day – the alternative facts wouldn’t stop. There was no court reporter in the traffic-court trial, but the prosecutor must have sensed that something would happen, so he asked a police officer to take detailed notes on what the mother and daughter said. Sure enough, their version parted ways in significant respects from reality – at least in the prosecutor’s judgment. After the Albemarle GDC judge convicted them and they appealed, those notes became the basis for felony indictments for perjury.

In circuit court, the women offered two primary defenses in their joint perjury trial. First, they insisted that they couldn’t be convicted without proof of the verbatim questions. There may have been ambiguities, for example. Second, they objected to venue of the perjury trial, because the Albemarle GDC is actually in the City of Charlottesville.

Both defenses fail; the Supreme Court today affirms based largely on the trial court’s factual findings, particularly his statement that he found the victim particularly credible. As for venue, the Charlottesville city charter provides that the county courthouse is under the joint jurisdiction of the city and county.

The daughter also appealed her driving conviction, insisting that the victim was incredible as a matter of law. For example, she noted that he was driving east, so when he turned around to see who had hit him, the sun would have blinded him from seeing accurately who was driving. Justice McClanahan, who writes for a unanimous court, is gracious enough to refrain from inserting, “Oh, give me a break” in the slip opinion. This is a pure-credibility issue, and the justices predictably won’t touch that.

ANALYSIS OF MAY 17, 2018 SUPREME COURT OPINION

(Posted May 17, 2018) The long losing streak is over; a citizen wins an appeal in a Freedom of Information case for the first time in several years. The decision in Bragg v. Rappahannock County is unanimous, and the chief justice provides the story.

As my readers no doubt know, FOIA requires that meetings of government bodies such as boards of supervisors must occur in public. There are exceptions, for which the body can recess behind closed doors to what’s generally called executive session. But when a body does that, it can only discuss specifically exempted matters — for example, advice from its lawyers on whether to settle pending litigation. Upon its return to open session, the members must certify that the board discussed only exempt matters in the executive session.

Bragg is a citizen who got word that on several occasions, the county board had discussed nonexempt matters in executive sessions. She secured a smoking-gun memo from one of the supervisors, acknowledging that the board had indeed discussed in private matters that should have been open to the public. Bragg filed a petition against the board and attached the acknowledgement as an exhibit.

The board filed a motion to dismiss, claiming that the petition was improper in form, since it has to be accompanied by an affidavit showing good cause. The board insisted that the language of the notarial certificate was inadequate. Here’s what it said:

THIS DAY personally appeared before me, the undersigned Notary Public, Marian M. Bragg, who, upon being duly sworn by me, stated under oath that all of the allegations in the attached Petition for Enforcement of the Virginia Freedom of Information Act are true and correct, except to the extent therein stated to be on information, and to such extent she believes them to be true.

The board argued that this “on information and belief” stuff was wholly inadequate for a FOIA petition, and besides, the petition didn’t indicate the source of the information. A judge designate bought that argument and dismissed the petition.

To predict how the appeal came out, all you need to know is this statutory tidbit: “when an affidavit is required in support of any pleading or as a prerequisite to the issuance thereof, it shall be sufficient if the affiant swear that he believes it to be true.” Code § 8.01-280. There was nothing wrong with the notary’s certificate. And the source of Bragg’s information, assuming that’s required in a petition, is fairly obvious: the board member’s acknowledgement. In a brisk 7 1/2 pages, the justices send this case back to Little Washington for a hearing on the merits.

ANALYSIS OF MAY 10, 2018 SUPREME COURT OPINIONS

(Posted May 10, 2018) The Supreme Court issues two published opinions today in appeals argued in the February session. Justice Kelsey writes both of these, and they’re both unanimous.

Eminent domain

Condemnation lawyers are well-acquainted with the formula for determining damages to a residue parcel: You subtract the residue’s value after the take from its value before the take. Any difference is damage that’s owed to the landowner. Today, in Commissioner of Highways v. Karverly, Inc., we get an important refinement of that calculus.

The landowner operates a day-care center on five acres in eastern Henrico County, on Route 5. VDOT decided to expand the right-of-way, and took a strip of land plus a couple of easements from the site.

At the just-compensation trial, the landowner sought damages. It called an appraiser who testified that the take generated certain functional obsolescence on the site, requiring adjustments including relocation of fencing and equipment. Considering the residue’s value before and after the take, the expert testified to damages of about $190,000.

VDOT’s appraiser testified about the value of the take itself – a matter not in issue in this appeal – but when he tried to move on to the subject of damages, the landowner objected. VDOT’s appraiser had not valued the residue before and after the take; he simply concluded that based on his view of the property, including factors such as its permissible uses, there was no change in value. The trial court sustained the objection and excluded the damages opinion.

The condemnation jury returned a divided report (that’s permissible in condemnation trials). Three members awarded the landowner damages of roughly $168,000; the other two reported that they “felt that the value of the remainder after take was not correct, which prevented us from agreeing to the damages.” The circuit court entered judgment on the majority report; VDOT got a writ.

The justices today reverse and remand the case for retrial – presumably though not expressly on the issue of damages alone, since VDOT didn’t appeal the award for the take itself. The court finds that the exclusion of the VDOT appraiser’s testimony was an abuse of the trial court’s discretion.

The primary ruling today is that an appraiser need not calculate the before and after values before testifying that there are no damages. (This rule obviously benefits condemnors only, not landowners.) The justices rule that the VDOT expert did enough investigation to conclude that there was no adverse effect on the property, so it was unnecessary to perform the calculations.

There’s a clear subtext in today’s opinion that the Supreme Court was not comfortable with the testimony by the landowner’s expert. Justice Kelsey repeatedly writes critically of that expert’s methods and conclusions. This is noteworthy because in the appeal, VDOT didn’t assign error to the foundation for the landowner’s expert’s opinions; it only appealed the exclusion of its own expert. There’s also an unusual emphasis on the split nature of the jury’s report, something I haven’t seen before in these decisions. In the end, the court decides that these factors militate in favor of admission of VDOT’s expert’s testimony.

Leases

While most lawyers are aware of the Statute of Frauds, Code §11-2, most don’t know that it has a cousin, the Statute of Conveyances, Code §55-2. The latter statute requires that a lease for a term of more than five years must be by deed or will. The justices explore the Statute of Conveyances this morning in The Game Place, LLC v. Fredericksburg 35, LLC.

This appeal is about a commercial lease for a store in the shopping megalopolis known as Central Park in Fredericksburg, just west of I-95 at Exit 130. Both the landlord and tenant are successors to the original parties to a 15-year lease. The Game Place operated a store – presumably selling video and computer games – and paid monthly rent to the landlord, Fredericksburg 35, for 13½ years. At that point, probably facing declining sales due to the rapid rise of online gaming, the tenant decided to close up shop. It handed the landlord the keys and a check for the current month’s rent, and said farewell.

The landlord sued the tenant and its guarantor for the remaining rent over the term of the lease – about $68,000 – plus 25% attorney’s fees. The tenant asserted our new friend the Statute of Conveyances as a defense, claiming that the landlord based its suit on a plain-vanilla lease, not in the form of a deed. The trial court rejected that argument, holding that “The law looks at substance not form,” and ruled in favor of the landlord. The tenant and the guarantor got a writ.

Today’s opinion is yet another stroll through centuries of legal history, courtesy of Justice Kelsey’s enduring love of that topic. (I’m not complaining; I like it, too. I’m a history geek in addition to being a word nerd.) That history leads the court to the conclusion that the Statute of Conveyances is not merely an obsolete relic; it’s still a part of Virginia law and still governs leases such as this one. Since this lease wasn’t in the form of a deed, wasn’t executed under seal, and didn’t meet any of the requirements for a seal-substitute under Code §11-3, it’s unenforceable as to its term.

Note the emphasis in that last sentence. All of the other provisions in the lease are binding on the parties; but the courts must treat this lease as unenforceable for its provision of a 15-year lease period. Instead, the term is governed by the usual rhythm of rent payments. In this case, the tenant had paid rent monthly, so it is, in effect, a month-to-month lease. Since the tenant was current on rent when it surrendered possession, it owes the landlord nothing. And since the guarantor’s liability is contingent upon the tenant’s, he gets off, too. The Supreme Court reverses and enters final judgment.

One last point about today’s decisions: If you like footnotes, you’re going to have a blast reading these. There are 20 footnotes in Karverly and 24 in The Game Place, while the two opinions add up to just over 33 pages. (You can probably gloss over the notes in The Game Place unless you really like the history lesson, but the notes in Karverly are important to understanding the ruling.) I haven’t performed a statistical analysis, but my general sense is that Justices McClanahan, Powell, and Kelsey tend to use far more footnotes than do their brethren on the court.

But wait! There’s more …

Torts

In an unpublished order – probably unpublished because the circumstances are so bizarre – the justices modify an assault-and-battery judgment from Hampton. The case is Mack v. Blount, brought by a man who sustained “a small scratch” on his hand when Mack struck him. Mack was evidently offended that Blount was walking his dog and encroached upon her property.

Normally in disputes like this, I’m on the side of the dog person. I regard cat ownership as an affliction that probably indicates an unstable mind. But I don’t know the circumstances here — conceivably, Blount might have declined to scoop up his dog’s deposit in Mack’s yard, or something like that — so I won’t judge too harshly.

Blount sued for $200K in compensatory damages and the statutory max for punitives. A jury saw his claim as more modest: In a question sent back to the court, it asked, “Can we place legal fees as the $ amount for compensatory damages or does it have to be an exact dollar amount?” This is a bad sign for the plaintiff.

The problem with this is that, while Blount had sought fees in his pleadings, he hadn’t adduced any evidence of them at trial. Under Lee v. Mulford from 2005, that means it’s too late. But instead of answering “No,” the judge just told the jury to reread the instructions and return a verdict.

What came next won’t be a surprise: The jury fixed damages for battery as “legal fees not to be [sic] exceed $35,000 plus $1.00.” (There was also an award of $1 for the assault claim and punitives of $1.) That led Mack to ask the court to instruct the jurors that they cannot award legal fees. The judge declined to do that. Instead, the court gave the jury a fresh verdict form and told it to go back and insert a numeral in the blank for damages. The jury did so, awarding the plaintiff $35,001 for battery.

You know what’s going on here, right? The jury figures that Mack shouldn’t have slugged Blount, and should have to pay his lawyer. But the jurors assessed one scratch as being worth one buck.

The court entered judgment for the $35K+3 – don’t forget that punitive award – but today the justices rule that the trial judge should have instructed the jury that no legal fees could be awarded in the case.

Normally, that would result in a remand for a new trial. But we’re not done with the strange developments here. Asked at oral argument whether Blount would prefer a new trial or a reduction of the damages to $3, Blount’s lawyer said, “We’ll take the $3, thank you,” or words to that effect. The lawyer explained that that would at least represent a victory, even if it would only be symbolic. Since that’s the relief that Mack wanted, too, the justices shrug and say, “Good enough for us, too.” The court reduces the award to $3, enters final judgment, and remands for an award of costs.

Who said that appellate litigation is mundane?

ANALYSIS OF MAY 3, 2018 SUPREME COURT OPINIONS

(Posted May 3, 2018) There are two published opinions from the Supreme Court today. For those appellate geeks (present company included) who closely follow preservation rulings, this is a signal day.

Preservation of issues for appeal

Today’s decision in Cherry v. Lawson Realty Corp. is about a tort claim for mold in an apartment. But for me, the biggest aspect of the case is a preliminary ruling on preservation.

This is an interlocutory appeal. Two tenants sued their landlord, claiming that their apartment was infested with mold and the landlord didn’t properly remediate it. They stated common-law claims and added claims under the Residential Landlord and Tenant Act.

The trial court dismissed the common-law counts before trial, holding that the enactment of mold provisions in the RLTA abrogated common-law claims. The tenants sought an interlocutory appeal, and the justices granted a writ.

The Supreme Court reverses today, ruling that the legislature did not, in fact, abrogate common-law remedies for this kind of claim. The Act spells out several matters relating to such claims, but it never covers the entire waterfront, so the court finds that the common-law remedy is intact.

The sexier issue for appellate geeks is the landlord’s contention that the tenant never objected to the court’s ruling on this issue; it simply asked for the interlocutory appeal, and noted its objections in an endorsement to the final order.

I have long perceived a tension between the preservation statute, Code §8.01-384, and the court’s holdings on preservation, specifically as they relate to a bare objection above an endorsement. The best-known case for this is Nusbaum v. Berlin from 2007, and that case features prominently in today’s analysis.

In Nusbaum, a lawyer handed up to the judge a set of specific objections that had never been lodged before. As he did so, the lawyer assured the judge, perhaps as a matter of politeness, that he wasn’t asking the judge to change his ruling; he just wanted to preserve the issue for appeal.

The Supreme Court held that that statement waived the issue for review, since the justices can only review a lower court’s rulings, and the judge had never ruled on these arguments, because the appellant had never asked him to do so. That’s simple enough.

But the appellant in Nusbaum had a separate angle of attack: He listed the appellate issues in his endorsement of the final order. That seems to comply with §8.01-384, which expressly says that “[a]rguments made at trial via … recital of objections in a final order . . . shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.”

The Nusbaum court nevertheless ruled that the issue was waived, despite the endorsement. In today’s case, the landlord cited this holding in Nusbaum to bar the issue.

The Supreme Court today disagrees, finding the issue to be preserved. In doing so, it limits Nusbaum to its unusual fact pattern, where a lawyer expressly disclaims a desire for a ruling. (That’s not going to happen very often.) Justice McCull0ugh’s opinion for today’s unanimous court states that Nusbaum is distinguishable; as I see it, the court today actually overrules that endorsement ruling from Nusbaum. Either way you view it, this broadens an appellant’s ability to squeeze in a last-minute objection, simply by listing it in his endorsement of the final order.

Torts

My travel schedule today affords me only a few minutes to outline the holdings in Coward v. Wellmont Health System. The case involves a claim for the relatively new (at least in Virginia) tort of intentional interference with parental rights. The justices first recognized it in Wyatt v. McDermott in 2012; today’s ruling refines that doctrine.

The court’s key holding is that a claim for interference with parental rights must rest on allegation and proof of wrongful interference. Here, a teenage mother decided to give up her newborn child for adoption. She orally agreed with the adoptive family, signed relevant documents (the child’s father joined in), and consented to an order from a JDR court for a custody order in favor of the adoptive parents. She appeared in a lawyer’s office and signed documents to effectuate the transfer. Only after all this did she have second thoughts and attempt to rescind her consent.

Justice Kelsey’s opinion for a unanimous court is, in my view, unassailable; whether or not the mother actually may rescind her consent, it’s fairly clear, even from her pleading, that the appellee defendants – health care professionals and the lawyer who drew up the papers – did nothing tortious. They simply acted to carry out the mother’s express directives. It is entirely right that this claim was dismissed, and today’s opinion cements that.

ANALYSIS OF APRIL 26, 2018 SUPREME COURT OPINION

(Published April 26, 2018) Personal-privacy advocates are cheering this morning as the Supreme Court of Virginia hands down Neal v. Fairfax County Police Department.

I’m going to go out on a limb and wager a couple of bucks, American money, that you didn’t know about the Government Data Collection and Dissemination Practices Act. Back in the 1970s, the General Assembly created a law to protect personal privacy. This was way before the explosion of data in the social-media age. The act applies to recordkeeping agencies that collect personal information about individuals.

Let’s jump forward to the modern era. These days, many police departments – including Fairfax’s – employ automated license-plate readers, either mounted on police cars or fixed in a stationary location. Those readers take snapshots of cars as they pass by, creating a record that police use, among other things, to check against a list of stolen vehicles. That function is an example of “active use” of the information; there’s also “passive use,” which is to bank the information in case it becomes useful somehow in the future. This appeal is about passive use.

Fairfax’s protocol states that the information is kept for 364 days, whether or not there’s an ongoing investigation of the car or its owner. A citizen learned through a FOIA request that Fairfax had twice taken such photos of his car over the previous year, and had retained the information. The scope of the data ventures into the creepy, at least for the privacy advocates among you: it included the picture itself, plus the date and time of the photo and the GPS location where the reader snapped the picture. He sued, seeking an injunction against the practice.

On cross motions for summary judgment, the circuit court ruled in favor of the department. The court reasoned that a license plate doesn’t contain personal information; it contains vehicle information that says nothing about who’s actually driving the car. That means that the act doesn’t apply.

Today the justices unanimously reverse and remand the case. The court considers three discrete issues. First, it rules that the photos do contain personal information, using an expansive definition as the statute requires. A license plate contains an “agency-issued identification number” and “affords a basis for inferring personal characteristics.” Justice Powell’s opinion cites a couple of cases where the court has cited a car’s license plate as evidence of the registered owner. And since the readers take photos of the car and mark their date, time, and location, they “afford a basis for inferring personal characteristics” about the driver.

The second issue is whether the Fairfax setup is an “information system” as defined in the act. On this point, the justices decide that they need more information, so they send the matter back downstairs for further proceedings:

Although the ALPR database does not contain any information related to the individual to whom a specific license plate number is registered, that does not mean that the total components of the Police Department’s ALPR record-keeping process do not provide a means for discerning that information.

The final issue is whether a police department can retain personal information for passive use. Five years ago, the Attorney General opined that such use violated the act. Today the other shoe drops as the justices agree with the AG; only active use, dealing with “investigations and intelligence gathering related to criminal activity” are exempt. Thus, if the citizen prevails on the second issue on remand, he’s entitled to relief.

On that second point, while I know better than to prejudge a matter with which I have only this much familiarity, my money’s on the citizen. Police officers have more or less instant access to vehicle licensure information in their onboard computers, and I can’t envision that the trial court will somehow wall off that information.

One last point: In a footnote, Justice Powell writes that while “investigations and intelligence gathering related to criminal activity” usually refers to past or present crimes, it could conceivably relate to future crimes, such as where the police get word of an intended crime and take action to prevent it. The police might offer that as a rationale for retaining passive-use data. But the tenor of today’s opinion signals that the police had better have that particularized information, because the court won’t stand for the “banking” of private information about law-abiding citizens. George Orwell wrote a book about that.

ANALYSIS OF APRIL 12, 2018 SUPREME COURT OPINION

(Posted April 12, 2018) April 12 is simply teeming with historical significance. Today is the anniversary of the opening shot of the Civil War, fired by a Virginian named Edmund Ruffin of Charles City County. In 1945, President Roosevelt died, just weeks short of victory in the European Theater in World War II. Yuri Gagarin became the first man in outer space on this date in 1961; twenty years to the day later, the United States launched the first space shuttle, Columbia. On a less favorable note, it’s the 24th anniversary of the first commercial spam – the e-mail type; not the processed-meat variety. It’s also the anniversary of the birth of a baseball player who’s the answer to a great trivia question: Who’s the only player-member of the Hall of Fame who did not complete the required ten years of play? (Hint: His initials are Addie Joss, and by one important metric, he’s the greatest pitcher of all time.)

We’ll have to await history’s verdict on whether the justices’ release of Feeney v. Feeney today will enter the annals of history, or become just another footnote. It’s a nine-page unanimous opinion that construes a provision in a will.

The testator expressly left to his widow all tangible personal property. The residuary clause gave everything to the widow, too, but it contained some restrictive language:

It is my intention that she use the assets of my estate to provide for her health and support, and to continue providing for the health, support and education of my son SEAN while he is a minor, and in matters past the age of eighteen (18) at her discretion; and that upon her death any remaining assets of this estate pass to him, IN TRUST, per stirpes.

Sean is one of the testator’s two sons from a previous marriage. After the widow probated the will, litigation ensued to construe the residuary clause: Did it give the widow fee-simple title to the residuary property, or just a life estate?

Acting on cross motions for summary judgment in which the parties agreed that the language was unambiguous, the trial court ruled in favor of the widow. There’s a presumption that a grant conveys as much of an estate as is possible, absent a clear expression of a limiting intent. The will didn’t say that the widow got only a life estate, to the court found that she possessed unlimited rights over the residuary property.

The justices today disagree, and reverse. Justice Mims’ opinion for the court notes that the testator specifically expected that his son would reap the benefit of the property upon the widow’s death. He also employed the term use when describing the widow’s rights to the property before her death. While this might seem counterintuitive to a layman, in legal terms that’s actually a restriction upon a person’s ability to do whatever he or she wishes with the property.

The sons – both of whom were appellants here – also asked the trial court for an award of attorney’s fees, based on the doctrine of judicial instructions. If you’ve never heard of that before, join the club; neither had I before seeing today’s opinion. That’s because the Supreme Court of Virginia has never yet embraced it. This doctrine holds that “[i]f judicial instructions are needed to interpret an ambiguous will or trust, all expenses of that litigation, including attorney’s fees, are to be paid by the estate.”

As it turns out, the sons’ argument falls victim to a single adjective. This doctrine only applies where a term is ambiguous, and everyone agreed below (and in the Supreme Court) that the will was unambiguous. The court accordingly declines to decide whether to recognize the judicial-instructions doctrine until a more suitable appeal comes along.

ANALYSIS OF APRIL 5, 2018 SUPREME COURT OPINIONS

(Posted April 5, 2018) The Supreme Court today hands down three published opinions, including one of the last two remaining from appeals argued in 2017.

Criminal law

The Commonwealth is on the anterior side of the “v.” in Commonwealth v. Gregg, an appeal implicating the Double Jeopardy Clause. A jury convicted Gregg of common law involuntary manslaughter and statutory manslaughter in connection with a shooting during the repossession of a car.

The sole issue here is purely legal: Can you be convicted of both of those crimes for the same conduct, involving the same victim? The Court of Appeals held that you cannot. The prosecution got a writ, but today the justices unanimously affirm. The court notes that in some statutes, the legislature expresses an intention that “cumulative convictions” are permissible for the same conduct. In other statutes, the statute expresses the opposite directive.

Here, the statute proscribing involuntary manslaughter doesn’t express either preference. Evaluating the statute in light of the common-law crime, the court concludes:

A conviction under Code § 18.2-154, the legislature has determined, is “involuntary manslaughter,” and common law involuntary manslaughter also is “involuntary manslaughter.” Involuntary manslaughter under Code § 18.2-154 is the “same offence” as common law involuntary manslaughter. We therefore conclude that Gregg was twice convicted and sentenced in the same trial of the same offense …

The court remands the case to the trial court, where the prosecution may elect which conviction it prefers for sentencing; the other will be vacated.

The other criminal-law decision also tangentially involves the involuntary-manslaughter statute. In Bryant v. Commonwealth, the court addresses whether the prosecution must prove intent in a charge of unlawfully discharging a firearm within an occupied dwelling.

Justice Russell’s factual recitation is heartbreaking. Bryant became despondent after her mother died suddenly; it didn’t help that she also lost her job around the same time she lost her mother. She decided to end her life, and drove from her Maryland home to Harrisonburg with a gun, resolving to die by her own hand after seeing the mountains one last time.

Maryland law-enforcement authorities learned of the situation and managed to track her through her cell phone to a motel in Rockingham County. They contacted the Rockingham Sheriff, who sent deputies to the motel to try to prevent a needless death.

The deputies learned Bryant’s room number and went there to try to speak with her. They knocked on the door and called the room phone, but got no answer until Bryant, hearing activity outside “called out that they should not come in, that she had a gun and if they came in she would shoot herself. Her voice sounded ‘angry’ and ‘upset.’”

One of the deputies started conversing with Bryant, hoping to calm her. She replied that she was despondent and wanted the deputies to shoot her. Instead, the conversation continued and Bryant became calmer; the deputies may have begun to suspect that they were getting through to her.

The sharp report of a gunshot that followed must have demoralized them. After a moment, a deputy called out, “Are you okay?” Bryant’s voice replied that she was. The deputy persuaded her to put the gun on the bed, and then walk over to the window where they could see that she was unarmed. When she did so, they entered the room and found a bullet hole in the carpet. Bryant was essentially unharmed. The deputies transported her, not to jail, but to a hospital.

The local prosecutor sought and obtained an indictment for unlawful shooting in an occupied dwelling. Bryant’s defense was that she had decided not to harm herself, and the gun discharged accidentally when she tried to put it down. At trial, Bryant offered a jury instruction that required the prosecution to prove that she intended to discharge the weapon; that accidental discharge was not criminal. The trial court refused that instruction.

A jury considered the case based on a model jury instruction that contained no intent requirement. After deliberating, it returned a verdict of guilty, but tellingly imposed a fine of zero dollars, with no incarceration.

The Court of Appeals affirmed the conviction, and today the Supreme Court does the same. The justices find that nothing in the statute requires any specific intent. It provides two different punishments; one for malicious acts (that’s a Class 4 felony) and the other for unlawful acts (Class 6). Conviction for an unlawful act requires proof of mere criminal negligence; not the intent to fire a weapon. The justices therefore affirm the conviction, ruling that the trial court correctly refused Bryant’s proposed instruction.

In reading this opinion, I found myself feeling profound sympathy for Bryant, and relief for her in that she didn’t carry out her intentions. I sincerely admired and respected the deputies who put themselves in harm’s way to try to help another human being. I acknowledge that the justices made the right call on the law here, declining to read into the statute a requirement that the General Assembly didn’t place there.

But I was flatly astonished at the Rockingham Commonwealth’s Attorney for seeking an indictment here. This was a case that cried out for the exercise of prosecutorial discretion; there was no good reason to prosecute a despondent person who overcame a dreadful resolution to end her life, and harmed no one in the process. I don’t know the prosecutor’s situation, and indeed I don’t even know his or her name. Perhaps that person was facing reelection and wanted to establish a tough-on-crime reputation to impress the voters.

This was the wrong case in which to do it. And the jury saw that, too: instead of nullifying the statute with an acquittal, they imposed no consequences upon a technically guilty defendant. (I am aware that Bryant now has the civil disabilities of a convicted felon, but the jury had no control over that.) This woman needed to receive health care; not to feel the weight of the criminal-justice system. The jury knew what was right better than the politician did here.

Contracts

The last opinion of the day is a highly complex real-property contract case, RECP IV WG Land Investors LLC v. Capital One Bank. It involves a dispute over density rights under the Fairfax County Comprehensive Plan. As you can imagine, when land becomes as valuable as it is in Fairfax, density is a valuable commodity.

RECP IV and Capital One are successor entities to those who contracted for the sale of 29 acres in an office park in Tysons Corner. The contract allocated a certain number of units called FAR (the formal name is floor area ratio) to the buyer, Capital One’s predecessor. The parties also set out their respective rights in the event the county allowed greater density n the future: Capital One would get the first 200,000 square feet, and the parties would divide anything over that.

Then the county did a remarkable thing, in conjunction with the opening of new Metro stations in Tysons: It lifted the cap on FAR for all properties within 1,600 feet of the stations. That radius included both Capital One’s property and that retained by RECP IV and its affiliates.

Capital One speedily took advantage of the new rule, applying for and receiving approval for another 3.8 million square feet of FAR. (The building is Capital One’s headquarters.) At that point RECP IV sued, seeking declaratory relief, an injunction, and damages.

I’m going to cut to the chase here, since the facts are much more complex than the skeletal outline I’ve given you, and the rulings depend heavily on those facts. I’ll mention instead the eventual ruling and a couple of key points of wider application:

• The trial court ruled in favor of Capital One, finding that it was impossible to allocate excess FARs on a formula, because the numerator of the division is now infinity.
• The Supreme Court affirms unanimously, largely on the same ground. The court holds that this is not a case for declaratory relief, since any claims that RECP IV owned had matured by the time it filed suit. It agrees that the county’s action in granting unlimited density to all affected properties renders performance of the future allocation impossible. (In essence: Both parties now have unlimited rights! What’s not to celebrate?)
• Finally, the court affirms an award of $1.9 million in attorney’s fees, since Capital One prevailed on all three counts of the complaint, and now wins again on appeal. That ruling, in turn, will likely trigger an eventual fight over appellate attorney’s fees.

ANALYSIS OF MARCH 29, 2018 SUPREME COURT OPINION

(Posted March 29, 2018) Today is one of the high holy days on the Emmert calendar. This afternoon and evening, all across America, we’ll hear one of the two sweetest two-word phrases in all of sports: “Play ball!” (The other is “Game Seven.”)

In case anyone has forgotten, the reigning National League champions play their home games in a place called Chavez Ravine. Here’s hoping that we’ll see late-October baseball there again this year.

Let’s dive into today’s sole opinion from the justices, VEPCO v. SCC. It explores the interplay between two fairly obscure subsections in a statute governing electricity purchases. In the end, this opinion is about a familiar subject: how to interpret a statute.

About ten years ago, the General Assembly passed the Virginia Electric Utility Regulation Act. The act included provisions for the purchase of electricity from companies other than the 800-pound energy gorilla in Virginia, VEPCO. As you can imagine, it is very, very expensive to start a power company, so we have something just short of a monopolistic framework within VEPCO’s service area. Unlike lemonade stands, there are very few companies that possess the wherewithal to jump into this market. But it’s not zero.

Two parallel provisions of the act, both in Code §56-577, are at the heart of this appeal. Subsection A(3) allows large customers – those who use five megawatts a year – to buy from competing electricity providers instead of from VEPCO. There’s a key limitation: if you move over to that competitor and decide that you’re unhappy, you have to give five years’ notice before switching back. This was likely designed to prevent bargain shopping on an annual basis, something that can play havoc with VEPCO’s planning.

The second subsection, A(5), allows anyone – not just the huge customers – to buy electricity from competing companies that generate all of their power from renewable sources. This is an unambiguous effort to stimulate growth in renewable energy. There is no five-year-notice provision when you want to switch back to VEPCO after test-driving one of these companies.

This appeal is about the intersection of these two subsections: What happens when a mega-consumer wants to buy from a green-energy company? Does that switch trigger the five-years-notice requirement, or not?

The litigation started with a declaratory-judgment petition, filed in the SCC by a green-energy company, Direct Energy Services. It sought a declaration that Direct Energy could sell electricity to customers of any size without the notification problem. VEPCO responded that the mega-customer provision was narrower, so it controlled over the broader conflicting language of subsection A(5). An advocacy group named Appalachian Voices chimed in on the side of Direct Energy.

The SCC considered the parties’ arguments over the meaning of the statute and sided with Direct Energy. It ruled that the two subsections don’t conflict at all; they deal with different circumstances. And since subsection A(3) says that it’s “subject to” A(5), that means that the latter provision controls where the two intersect.

VEPCO appealed, and as with all SCC appeals, it didn’t have to make a pit stop at writ panels; all SCC appeals are of-right. Today the justices unanimously affirm, basically on the reasoning of the SCC. The Supreme Court agrees that the language of the statute isn’t ambiguous and the two subsections don’t conflict with each other. I don’t have any figures on how many green-energy providers are selling how much juice to how many customers in Virginia, or how much this will affect VEPCO’s bottom line; but this is clearly a win for those who seek greater competition in this field.

ANALYSIS OF MARCH 22, 2018 SUPREME COURT OPINIONS

(Posted March 22, 2018) On a day when the calendar cruelly mocks us by insisting that it’s spring, while temperatures here in Tidewater hover 12 degrees below normal, the Supreme Court helps warm us up with three new opinions.

Products liability

The justices hand down the latest in a growing string of products-liability victories for manufacturers in Evans v. NACCO Materials Handling Group, Inc. This is an appeal in a wrongful-death action; the victim was crushed to death by a lift truck at a paper plant in Lynchburg. His personal rep sued on three theories: negligence, breach of implied warranty, and failure to warn.

The claimed defect in the product was a parking brake on the truck; the brake didn’t hold the parked truck on a 12-degree incline, causing it to slide backward. The estate’s expert opined that because it was operator-adjustable by hand, instead of being adjustable only by mechanics using tools, it was unreasonably dangerous. A jury agreed, returning a verdict on the negligence claim only and fixing damages at $4.2 million.

The manufacturer moved the trial court to set aside the verdict, a move with a low probability of success. But it paid off here: The court ruled that the decedent was contributorily negligent as a matter of law, so it entered judgment for the manufacturer. The personal rep got a writ, and the justices also granted the manufacturer’s assignments of cross-error.

Today the justices affirm the judgment, but for a different reason. Instead of tackling the thorny issue of contrib as a matter of law – something that’s usually in the jury’s domain – the Supreme Court rules that the plaintiff failed to prove that the product was defective.

There are a few key aspects to this analysis, but the ones you probably need to know are these:

The court rules that “a design is not objectively unreasonable unless the plaintiff can show that an alternative design is safer overall than the design used by the manufacturer.”

Second, it’s not enough for a plaintiff to show that another design would have been safer in preventing injuries of the particular kind sustained by the victim. The proposed alternative design has to make the product safer overall. Justice McCullough, who writes today’s unanimous opinion, gives the example of air bags. Since air-bag deployments can injure babies and children, it would be safer for them to design cars without air bags. But that would generate a greater safety risk to a far larger number of adults who would be protected by the bags.

Third, and of particular significance to lawyers drafting pleadings in this field, the court completes its embrace of Kentucky products-liability law – a process that began with Dorman v. State Industries in 2016, advanced significantly last year in Holiday Motor v. Walters, and now emerges into the open today. This circumstance deserves an explanation.

In 1991, the Fourth Circuit decided a products case, Alevromagiros v. Hechinger Co., that purported to apply Virginia law, but actually cited a Kentucky-law decision (Sexton v. Bell Helmets, Inc.). While federal courts understandably cited Alevromagiros as defining Virginia law, the Supreme Court of Virginia never acknowledged the decision, perhaps because its use of consumer expectations to define a product’s acceptance in the marketplace didn’t fit within Virginia products jurisprudence.

Then in Dorman, the SCV for the first time held that evidence of the number of units sold is admissible to show acceptance of a product in the marketplace. Dorman still didn’t cite either of the federal decisions, but it gave the justices a stepping stone to do so in the next major products case, Holiday Motor. There, the court briefly cited Alevromagiros in a footnote, the first time it had even tentatively embraced Kentucky products law, explaining that reasonable consumer expectations are a factor in defective-product analysis.

Today’s opinion in Evans throws off any shyness on the subject: The court openly cites with approval Sexton, Alevromagiros, and several other federal decisions for the premise that reasonable consumer expectations can help define whether a product is unreasonably dangerous. Kentucky law has arrived.

This is a major victory for manufacturers, for the simple reason that a large number of product sales will always cut in favor of the defense in products litigation. My own view is that this is a highly imperfect lens to decide such an issue – for example, would Ford be able to assert that its Pinto was presumably safe because 3 million customers bought one? But from now forward, manufacturers will be able to cite those sales figures as a form of passive evidence to show that a product is safe, or at least not unreasonably dangerous.

There’s one other aspect of this decision that merits mention here. I noted above that the personal rep pleaded three theories of recovery. The jury based its ruling on negligence and rejected the implied-warranty claim. That leaves the failure-to-warn claims. Today’s opinion notes that that’s a separate issue from design defect. But for whatever reason, the parties submitted a jury-verdict form that listed only the negligence and warranty claims. This effectively shut off the failure-to-warn claim. Justice McCullough explains, “On these instructions, the jury’s defense verdict on breach of implied warranty, of necessity, was a defense verdict on the failure to warn.”

Actual innocence

Because of my travel schedule today, I only have time here to mention the outcome of an actual-innocence petition in In re Brown. The court dismisses the petition for two reasons. First, the petitioner relied on biological evidence that had been tested by a private laboratory. The court rules today that the actual-innocence statute only allows it to consider testing that has been certified by the Division of Forensic Science. Second, even with the evidence considered, the court finds that the petitioner has failed to show that a reasonable jury would not have convicted him, given the other evidence in the case. Justice Kelsey’s opinion for a unanimous court concludes with a quote from a recent SCOTUS opinion: “DNA testing alone does not always resolve a case. Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent.”

Taxation

Finally, the court issues a revised opinion in Kohl’s v. Dept. of Taxation, a decision first handed down on August 31. There, by a 4-3 vote, the court held that a company was subject to payment of taxes on royalties paid to a foreign (Illinois) subsidiary. The taxpayer petitioned for rehearing, noting that the majority based its decision in part on agency interpretations, and a statute forbids that consideration.

At least one justice from the August majority voted to grant rehearing, but today, the court again rules 4-3 against the taxpayer.

ANALYSIS OF MARCH 1, 2018 SUPREME COURT OPINIONS

(Posted March 1, 2018) The justices continue to clear off their desks today, handing down five published opinions and two unpublished orders.

Criminal law

Virginia’s statutes have long prohibited the public display of a noose with the intent to intimidate. Today’s ruling in Turner v. Commonwealth explores what a “public place” is in the context of that statute.

Turner knew not to put up his noose, complete with a mannequin of a black hanging victim, on public land. He decided that he could lawfully exercise this particular free-speech right by hanging the noose on his own property, just a few paces away from a public road, in plain sight for anyone passing by.

A trial judge, conducting a bench trial, viewed the phrase “public place” more expansively than Turner did, and convicted him. The Court of Appeals agreed and affirmed. Today the justices make it unanimous, affirming the conviction without a dissenting vote.

In his briefs, Turner continually referred to the requirement that the display be on “public property,” and he insisted that his land was private. But as Justice McClanahan’s opinion for the court points out, the statute doesn’t say “public property.” In another context – a prosecution for disorderly conduct – the court interpreted the phrase “public place” to include things that are done on private property but that are so close to a highway that they’re in a public place.

That’s enough to justify the conviction, but Justice McClanahan goes on to mention a separate and particularly important factor: the purpose of the statute. That purpose is to deter people from making threats that will intimidate others and place them in fear for their safety. Viewed in that light, this interpretation of the phrase makes perfect sense; Turner’s racially diverse neighbors will feel just as threatened by a noose and “victim” hanging just off the road as they would if the display were on public property.

In 2013, the General Assembly amended the actual-innocence statute relating to DNA evidence. Previously, a petitioner had to show that with newly acquired biological evidence, no rational finder of fact could have found proof of guilt beyond a reasonable doubt. The amendment changed the word could to would. Today’s opinion in In re Watford gives the justices the first opportunity to explore the effect of the amendment.

Watford was convicted on a plea of guilty to a charge of rape in 1977. The 12-year-old victim saw a doctor who filled out a report listing three names of possible perpetrators: “Skip, Anthony, Vale Waffer.” The Watford family includes three brothers named Anthony, Evelio, and Roy; the last of these is our petitioner, and his nickname was Skip.

Watford, who was 18 at the time of the assault, pleaded guilty on advice of his grandfather and received an extraordinarily lenient sentence: ten years in prison with all of that suspended.

Nearly 40 years later, the Department of Forensic Science was able to conduct DNA testing on the evidence in the case. That testing indicated that none of the biological evidence gathered at the scene and from the victim matched Watford. Based on this finding, he petitioned the Supreme Court for a writ of actual innocence to clear his name.

The justices found the record sketchy, so as provided by statute, they commissioned the local circuit court to conduct an evidentiary hearing on the case and report its findings back to Richmond. At that hearing, the victim, now over the age of 50, stated that she had not seen Watford at the scene, though she had seen one of his brothers. Today’s opinion adds,

When she was asked if she had named Watford as one of her attackers, she responded “I can’t remember I did.” When the circuit court pressed her on the matter, she stated, “I don’t remember, no. I don’t remember naming him.” She then stated that she remembered naming Evelio. Additionally, when asked if she knew Watford’s nickname at the time of the offense, she said she did not.

The circuit court also heard testimony from two other witnesses, one of whom lived next door to the scene of the attack. They both testified that they never saw Watford at the scene.

The Supreme Court considers all of this under the newer and more lenient standard of the revised statute, and concludes that on this record, no correctly instructed jury would have found guilt. The fact of the guilty plea is usually sufficient to establish guilt, and Justice Powell, in her opinion for the court, acknowledges as much. But a guilty plea doesn’t foreclose an actual-innocence petition under the statute, so the court evaluates all of the evidence and finds that it falls short of what’s needed to convict. Thus, 40 years after the guilty plea, the Supreme Court vacates Watford’s conviction.

For our final venture into criminal-law matters, consider the fate of those unfortunates who are remembered in history for their worst moment. For all his military brilliance, ranking him among the handful of greatest military geniuses in history, and despite winning scores of major battles, Napoleon Bonaparte is best-known today mostly for his defeat at Waterloo. For a more recent and more mundane example, recall how Steve Bartman – a nice guy – became Satan incarnate to Cubs fans merely for trying to catch a foul ball at a baseball game. (All was forgiven when the Northsiders won the Series 13 years later. They even gave Bartman a ring.)

The General Assembly has recognized that sometimes a person just needs a second chance. That gave rise to the expungement statute, allowing an arrestee to have his or her arrest record wiped away in certain circumstances. Our heroine in A.R.A. v. Commonwealth had too much to drink one night a few years ago; she ingested enough to necessitate a visit from the gendarmes. She didn’t like that, and struggled with the investigating officer. At one point, she grabbed that officer in a region that we don’t customarily mention in detail here at VANA.

A.R.A. was charged with two misdemeanors and one felony – assault and battery of a law-enforcement officer. By the time the case matured, she was apparently contrite enough that the local prosecutor agreed to let the misdemeanors go and drop the felony down to disorderly conduct. I presume that the officer consented to this reduction; in my experience, a prosecutor won’t do this over the objection of a cop who’s the victims of a crime.

The judge agreed to the charge, accepted her plea, and imposed a negotiated disposition of a fine and a suspended jail sentence. By all accounts, A.R.A. turned her life around; she finished college with a 3.8 average and got a good job.

But still, the arrest record troubled her. She had pondered going to law school, but feared that the arrest would work against her in the application process. She also decided not to seek a few positions that involved working with children, since she figured that the arrest would scotch that plan immediately. In order to free her from the lingering effects of her worst moment, she petitioned the local circuit court to expunge her arrest record.

The trial judge had no trouble with the misdemeanor arrests; those were gone with the stroke of a pen. But he refused to erase the felony arrest, ruling that “the continued existence and possible dissemination of information relating to the arrest of Petitioner on this charge does not cause and may not cause circumstances which constitute a manifest injustice to the Petitioner.” This tracks the language of the statute; the court simply found that the petitioner hadn’t made out a case of manifest injustice.

On appeal, a divided Supreme Court reverses. Justice McCullough, joined by four justices, finds that this is a proper case for an expungement petition, because the felony was “otherwise dismissed.” It may have been a different situation had the prosecution ended with a Speedy Trial Act violation; but here, the prosecution simply declined to prosecute her for the felony. That means she occupies “the status of innocent.”

This last part plays a big role in the court’s analysis of the merits of the case. The primary issue here is whether the trial court can look at the circumstances that got the petitioner arrested in the first place, presumably to see how egregious her conduct was. The trial judge had leaned heavily on those circumstances in denying the petition, but today’s majority rules that a court may not do so. A petition like this is “forward-looking,” in that by statute a judge has to consider not the offense but the likely effect of the arrest record on the petitioner.

That statute is phrased very favorably for the petitioner:

If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge. Otherwise, it shall deny the petition.

Note that it says that if the arrest record “causes or may cause” a manifest injustice. That causes us to exit the realm of certainty and enter the realm of possibility. The majority today decides that A.R.A. had made out a plausible claim that she may be harmed by the record, so that means that the trial court “shall enter an order requiring the expungement.”

This is almost good enough for the chief justice. He files a short opinion concurring in the judgment, though he would permit trial courts to look backward in addition to forward. In his view, even that backward look compels the conclusion that the petitioner is entitled to relief.

It is not, however, good enough for Justice Kelsey, who dissents along with Justice Goodwyn. The dissent finds it entirely appropriate for a trial court to look backward, and in this context, that set of circumstances could lead a judge to exercise the discretion not to grant the petition. Abuse of discretion is supposed to be a lenient standard of appellate review, and the dissent thinks that this judge wasn’t obviously wrong to say no.

Elected officials

In 2015, the Clerk of the Montgomery County Circuit Court stood for reelection. She won despite the fact that roughly half of her staff didn’t support her campaign. (Speaking as a political outsider, I’ll add that that fact probably should have been a big red flag for the voters; but they reelected her anyway.) When the Clerk fired everyone who had not supported her, fifty citizens of the county prepared and circulated a petition to remove her for neglect of, misuse of, or incompetence in the performance of her duties. This is the backdrop of Commonwealth v. Williams.

Removal procedures are tough; you have to gather signatures from voters representing 10% of the number of votes cast in the previous election. In the case of this election, that meant over 1,800 signatures. But the citizens spearheading the effort persevered, and they amassed more than the required number. That automatically triggered a show-cause order directed to the Clerk.

In response, the Clerk moved to quash the rule, claiming that the 1,800 endorsers of the petition hadn’t signed under oath. The Commonwealth’s Attorney, who by statute handled the proceedings after the show-cause order issues, answered that only the organizers needed to sign under oath, and all 50 of them had done so.

There are two statutes primarily in play here. Here’s the first one, setting forth the number of signatures required:

The petition must be signed by a number of registered voters who reside within the jurisdiction of the officer equal to ten percent of the total number of votes cast at the last election for the office that the officer holds.

The next statute contains the oath requirement:

A petition for the removal of an officer shall state with reasonable accuracy and detail the grounds or reasons for removal and shall be signed by the person or persons making it under penalties of perjury. . . .

The italics in both passages are inserted in today’s majority opinion. So, who has to sign under oath? Justice Goodwyn, writing for four other justices, believes that all 1,800 signatories must do so. That makes the petition ineffective to trigger a valid show-cause order, so the Supreme Court affirms the trial court’s order quashing the show-cause.

Justice McCullough dissents, and Justice Powell joins him. As befits a former appellate lawyer, his prose sparkles. Here’s his opening salvo:

Virginia has long been blessed with many talented and conscientious officials who ably labor for the public good. Human fallenness being what it is, however, accountability mechanisms are necessary to protect Virginians in the rare instances when their public officials go astray. Because I disagree with the majority’s interpretation of the applicable statutes, and because I fear that the majority’s interpretation will have baleful consequences on the accountability of our public officials, I respectfully dissent.

Who said appellate opinions have to be dry?

Justice McCullough notes that in 1989, the Attorney General had issued an opinion that went the other way, expressing the view that only the organizers – the people who craft the petition – have to sign under oath. That opinion stood the test of time for almost 30 years, but today the majority simply disagrees with it, holding that the language of the two statutes is clear.

My sentiment here lies with the dissent. I agree that asking 1,800 citizens to sign a petition under penalty of perjury is a very different matter than asking them to sign without that threat. And while the prosecution of several organizers for filing materially false statements in a petition is understandable, can you picture the prosecution of 1,800 people for the sin of having agreed that their elected official needs to go? I cannot envision that that’s what the legislature had in mind.

It is, of course, foreseeable that the 2019 General Assembly will see a bill to address and reverse this decision, specifying that only the organizers of a petition drive have to sign under oath. Otherwise, as a practical matter the Supreme Court has made it all but impossible for a citizen petition drive to succeed. (In fairness, today’s majority will insist that the legislature did it that way, intentionally or not.)

GDC appeals

When I picked up The Robert and Bertha Robinson Family, LLC v. Allen, I figured that the dominant issue was sanctions, and I intended to caption this section accordingly. The amount in controversy bears this out; the two appellate issues are a $2,600 landlord-tenant judgment and a $10,000 sanction award. But after reading it, I believe that the primary legacy of this opinion will be the resolution of a procedural issue that has perplexed bench and bar for some time.

Landlord sued tenants in general district court for unpaid rent and for damage to the leased property. Tenants counterclaimed, seeking a return of their security deposit. After a trial, a GDC judge ruled against both parties on their claims, awarding nothing to anybody.

The landlord decided to appeal to circuit court. The tenants didn’t appeal the denial of their counterclaim. But in the circuit, court, the tenants started acting as though they were still pressing the counterclaim. The landlord decided to be proactive, moving to dismiss the counterclaim, since the tenants hadn’t appealed. The tenants responded that the GDC had decided the whole case, and landlord’s notice of appeal was sufficient to bring the whole case up, including the counterclaim.

Before the court could adjudicate this motion, the landlord – a family-held LLC – decided to pull the plug on its appeal, moving to withdraw it under Code §16.1-106.1(A). The manager and his wife decided that, in light of some health problems, life was too short to keep fighting the tenants.

But the tenants weren’t through fighting. They filed a motion for sanctions. The circuit court granted the motion to withdraw, but “summarily awarded the tenants $2,600 on their counterclaim without hearing evidence on the matter.” The trial judge also awarded the tenants $10K in sanctions.

I will confess that when I read this procedural history, my reaction was, “Oh, no, you didn’t!” Judgment on a counterclaim with no evidence? Sanctioning a party merely for having appealed from GDC?

As it turns out, I am not alone; today the Supreme Court unanimously reverses both awards and enters final judgment. The sanction award falls easily; the trial judge based his ruling on the erroneous premise that an appealing party must have all of his trial evidence in hand before filing the appeal. That’s nonsense, of course; for one easy example, parties marshal evidence during the discovery process all the time. There is no requirement in the law that a party has to be ready to call her first witness when she notes an appeal from GDC to circuit.

The second issue implicates the very pregnant question whether an appealing party brings the entire case up to circuit with him when he appeals. Citing a “leading scholar of Virginia procedural law, Judge J. R. Zepkin,” the court today notes that this issue has never been firmly decided by the appellate court, so it undertakes to provide that guidance. (I agree that the issue needed appellate attention. I also agree that Judge Zepkin is about as expert as they come on Virginia procedure.)

Justice Kelsey authors today’s unanimous opinion for the court, and since this question implicates the meaning of the right of appeal, we’re in for the treat of a trip through legal history. He begins with an all-too-brief citation to one of my favorite recent law-review articles, which discusses the ancient origins of appeals. (A disgruntled litigant in ancient Egypt could appeal to an oracle in a temple, though that appeal usually turned on which side provided the better bribe to the priests. If you still weren’t happy, you could appeal on to pharaoh, but that could have unintended consequences.) He then explains the difference between a true appeal and a writ of error.

Candidly, none of this is essential to the resolution of today’s case, but for history nerds like me, it’s fun reading. I’ll let you read the slip opinion yourself to get the full reasoning, but today, for the first time, we have the definitive answer: If you want your dismissed counterclaim heard on appeal to circuit court, you have to file your own notice of appeal. You cannot rely on your adversary to bring the whole case up, and if you don’t appeal, the adverse judgment on your claim will trigger claim preclusion under Rule 1:6.

Because the counterclaim wasn’t properly before the circuit court, the justices reverse that judgment.

ANALYSIS OF FEBRUARY 22, 2018 SUPREME COURT OPINIONS

(Posted February 22, 2018) For the first time in 2018, the Supreme Court of Virginia hands down published opinions this morning. We get seven rulings, including three in the field of medical malpractice.

Before we move to the analysis, I’ll mention that this is an important week at Ninth and Franklin, as two justices celebrate birthdays this week; one today and one tomorrow. To protect their privacy, I’ll let you figure out which ones they are. Today’s celebrant shares a birthday with a highly esteemed member of the medical profession, and also with this guy. I offer happy birthday wishes to both justices, as well as to the Doctor.

Medical malpractice

The court considers the sufficiency of causation evidence in Dixon v. Sublett, involving complications from a laparoscopic hysterectomy. For those not of a medical bent, a laparoscopy involves a small incision into the torso, with tiny surgical instruments inserted through that opening. It’s comparable to arthroscopic knee surgery, if you’re familiar with that. It’s much less invasive than general surgery, in which a surgeon opens up the torso to perform the operation.

The day after undergoing the procedure, the patient experienced symptoms including significant pain and shortness of breath. When those symptoms remained on the second morning after surgery, the doctor ordered a CT scan; a subsequent surgery revealed and repaired a small perforation in the patient’s bowel.

The patient sued and called a medical expert to testify about the standard of care. He opined that the defendant doctor breached that standard by not examining the bowel carefully enough before ending the surgery, and by not calling in a general surgeon immediately. When the patient tried to have the same expert testify about what a general surgeon would do, the doctor objected that the patient hadn’t designated an opinion like that. The court sustained that objection.

The patient didn’t offer any other evidence on causation. The doctor moved to strike, but the judge let the case go to the jury. The patient got a verdict for $652,000. The doctor appealed and got a writ.

The Supreme Court reverses today and enters final judgment for the doctor. The justices note that there was no evidence in the record to show what a general surgeon would have done, or that the outcome would have been different if the defendant had called one in to operate immediately. That means that the trial court should have granted the motion to strike.

An expert is also at the heart of Holt v. Chalmeta, which involves a claim of neonatal malpractice in a Fauquier County hospital. The baby was born with a condition called nasal stenosis, which obstructed breathing through the nose.

When nurses saw a breathing problem a few minutes after birth, they summoned the eon-call pediatrician. That doctor tried to insert a catheter into the baby’s nostrils to permit airflow, but wasn’t able to do so; she ordered placement of something called an oxyhood, which surrounds the baby with moist oxygen to assist breathing. Seven hours after birth, the doctor decided to transfer the baby to the pediatric ICU at the University of Virginia, about 65 miles away. She did manage to insert the catheter, but by the time the baby reached U.Va., she had sustained brain damage due to an oxygen deficit.

The baby’s mother sued and offered a single expert witness to establish both breach of the standard of care and causation. The expert was a neonatologist, a pediatrician with special training in caring for babies. At trial, the defendant doctor objected that the expert didn’t have an active clinical practice in the field and didn’t have the required knowledge to qualify as an expert in the defendant’s field.

The trial court agreed and excluded the doctor, triggering summary judgment for the defense. The Supreme Court disagrees today, reversing and sending the case back for trial. The justices find that the expert was licensed in Virginia and in practice here in the field of pediatrics. She was thus entitled to the statutory presumption that she knew the standard of care. The court finds today that the defense didn’t rebut that presumption.

The Supreme Court notes that here, “the relevant medical procedures concern assessment of the severity of a newborn infant’s respiratory distress resulting from nasal stenosis and responding appropriately.” The expert’s practice included that kind of assessment, so she should have been allowed to testify.

I’ll add a word about the standard of review. The analysis section of the opinion begins with the recognition that normally the Supreme Court reviews the exclusion of evidence for abuse of discretion. That normal situation is subject to an important exception, applicable here:

However, in an action alleging medical malpractice, we will overturn a trial court’s exclusion of a proffered expert opinion “when it appears clearly that the witness was qualified.”

Since the justices find this expert to have been qualified, the case returns to Warrenton for a new trial.

Name-change petitions

When an ordinary Tom, Dick, or Harry wants to change his name to something more charismatic – say, Steven – the law makes it relatively easy. “[U]nless the evidence shows that the change of name is sought for a fraudulent purpose or would otherwise infringe upon the rights of others,” a court is required to grant the request.

Not so with inmates, probationers, and similar persons. For those folks, a court must find that “the change of name (i) would not frustrate a legitimate law-enforcement purpose, (ii) is not sought for a fraudulent purpose, and (iii) would not otherwise infringe upon the rights of others.” Assuming the applicant meets those requirements, the court has the discretion but not the duty to grant the petition.

That difference makes all the difference in Jordan v. Commonwealth. Jordan received a lengthy prison sentence for very serious crimes including aggravated malicious wounding and first-degree murder. His petition states that he found Islam while in prison, and he desired to change his name to reflect that conversion. The trial court found that the petition wasn’t for a fraudulent purpose, but it denied the petition anyway because of the severity of the crimes. The court’s discussion concluded, “A function of his punishment is that he bear the convictions in the name they were ordered by the court, and that his victims and society have that assurance.”

That ends up being good enough for the justices. Citing the trial court’s “broad discretion to grant or deny the petition,” the Supreme Court unanimously rules that the trial court “could conclude that a person who would commit crimes of that gravity and brutality must retain his given name, for the peace of mind of the victims and the victims’ families and to avoid any possible future confusion about his identity.” Jordan will be at least eligible to return to society when he reaches the age of 65, and society deserves to know who he is.

Jordan had stipulated that a denial of his name change wouldn’t hinder his exercise of his new religion. Today’s opinion doesn’t say that the result here would be different if he did make such a claim. Reading between the lines here, I sense that the court may have been relieved that it didn’t have to resolve an issue like that.

Administrative law

The Supreme Court takes up an employee grievance in Osburn v. Dep’t of ABC. Osburn was an ABC special agent who went with a colleague to inspect the premises of a restaurant that had applied for a retain alcohol license.

When they arrived, Osburn and his colleague split up; the colleague interviewed the applicant, while Osburn went back to the kitchen to see if it was fully stocked – a legitimate licensing requirement. But after checking the kitchen, he decided to keep snooping around:

After inspecting the kitchen, Osburn walked through an open door into a business office in the back of the Bistro. Once inside, Osburn searched the office. He opened desk drawers and a filing cabinet, and photographed various documents uncovered in the process. One of those documents indicated that [another person] was the owner of the Bistro. Osburn did not ask for permission to enter the office, and he did not encounter anyone while conducting his search.

ABC denied the application, perhaps because of what Osburn had found. (It’s grounds for refusal to make a false statement on an application, including falsely identifying the true applicant.) The applicant howled in protest, claiming that Osburn had violated her Fourth Amendment rights. Osburn felt that he had done nothing wrong, since a statute [scroll down to paragraph F] provides that ABC agents shall be allowed free access to various places within the Commonwealth.

ABC conducted an internal investigation and figured out what had happened. It fired Osburn for acting contrary to ABC policy. Osburn appealed through a grievance process but never found succor. Even the Court of Appeals ruled against him, holding that the free-access statute requires applicants to grant the access, but doesn’t allow the agent to seize it without notice.

The justices today affirm on a different ground. They conclude that the free-access statute applies only to licensee and doesn’t apply to applicants who don’t already have a license. Here, judge for yourself:

[ABC] and its special agents shall be allowed free access during reasonable hours to every place in the Commonwealth and to the premises of both (i) every wine shipper licensee and beer shipper licensee and (ii) every delivery permittee wherever located where alcoholic beverages are manufactured, bottled, stored, offered for sale or sold, for the purpose of examining and inspecting such place and all records, invoices and accounts therein.

Sure enough, only licensees and permittees are required to give free access to agents. Since Osburn had essentially blown off the applicant’s Fourth Amendment rights, the folks at ABC acted within their legitimate discretion in firing him.

Finality

Appellate lawyers will want to read Kellogg v. Green very carefully. The primary issue is whether res judicata bars a collection action where the trial court has already decided the merits of that claim in a show-cause proceeding. (If this sounds hauntingly familiar to you, you’re recalling Lee v. Spoden, 290 Va. 235 (2015), which resolved a similar issue.)

Kellogg and Green are former spouses; a circuit court unhitched them in a divorce proceeding after 16 years of bliss. The final decree incorporated by reference a prenuptial agreement from 1998 and an amendment to that agreement, signed in 2004. Those terms required the now ex-husband to pay the now ex-wife $5,000 for each year of their marriage. The math comes up to just shy of $83K.

The wife later filed a motion to amend the divorce decree to correct a typographical error; the amendment agreement was actually signed in 2003, not 2004. She included a petition for a rule to show cause, claiming that the husband hadn’t paid what he owed.

The circuit court considered the matter and entered an order correcting the typo. It provided, in language that’s familiar in these contexts, “this cause shall remain on the docket of [the circuit court] for the purposes of enforcing the terms of the Agreements.” Two weeks later, it entered a second order that, in the language of today’s SCV opinion, “memorialized the granting of the motion to amend the Final Decree and denied and dismissed the Show Cause Petition.” The court found that while the husband owed the money, it hadn’t specified the date when that money was due, so the husband wasn’t in contempt.

The wife figured she had another approach: She sued her ex for breach of contract. That looks plausible when you consider that the divorce decree stated that the agreements were enforceable “either under contract law or through the contempt powers” of the circuit court.

But the husband knew about Lee v. Spoden and filed a plea of res judicata. The circumstances of the two cases seemed indistinguishable to the trial judge, who dismissed the contract action. The wife argued in vain that the earlier proceedings weren’t final yet, because the court had retained the case on the docket to enforce the agreements.

Today, the Supreme Court reverses, agreeing that the previous ruling in the contempt proceeding wasn’t final. Since only final orders can serve as the basis for a plea of res judicata, the justices find that the trial court erroneously dismissed the contract claim. Today’s opinion remands the case to the circuit court for evaluation of that claim.

I will confess to being surprised at this ruling, for two reasons. First, the previous matter sure looks final to me, under the test for finality that the court quotes in this opinion:

A decree is final only when it disposes of the whole subject, gives all the relief that is contemplated and leaves nothing to be done by the court in the cause except its ministerial execution.

This quote is from a 1960 case, and the court has reaffirmed the holding often. In 2011, for example, it held the same thing, ending the passage with, “leaves nothing to be done in the cause save to superintend ministerially the execution of the order.”

Let’s go back to the language of the correction order in the divorce action: “this cause shall remain on the docket of [the circuit court] for the purposes of enforcing the terms of the Agreements.” I cannot explain to you why this language is not fully equal to “to superintend ministerially the execution of the order.” The subsequent order reaffirming the correction and dismissing the show-cause wasn’t filed in an independent action. It was entered within 21 days, so it was timely; but it didn’t create an open-ended, non-final order.

The second thing that troubles me is that this opinion seems to conflict with previous SCV caselaw on retention of jurisdiction. At pages 5-6, the slip opinion recites accurately the law on this point: a trial court can postpone finality by expressly retaining jurisdiction over a case.

But this judge didn’t do that: the order merely says that the case “shall remain on the docket.” That is the exact phrase that the court found wanting in City of Suffolk v. Lummis Gin, 278 Va. 270, 277 (2009). There, a judge used this very phrase, and the Supreme Court ruled that that wasn’t good enough; the trial court lost jurisdiction 21 days later because the order hadn’t retained jurisdiction.

There may be a factor elsewhere in the caselaw, or a circumstance in the record but not in this opinion, that justifies this ruling. If not, the Supreme Court has just embarked on a sea change in finality jurisprudence. In good conscience, I cannot recommend that future litigants try to establish continuing trial-court jurisdiction by using the phrase “remain on the docket” without adding “retain jurisdiction.” But today’s opinion, blessing that very approach, means there may be daylight out there for litigants who don’t follow my advice.

Res judicata and estoppel

We get a very helpful explanation of the boundaries between claim preclusion and issue preclusion, plus a discussion of judicial estoppel, in D’Ambrosio v. Wolf. This is litigation between a brother and his two sisters over Mom’s estate.

Mom had a stroke in 2012. The next year, she signed a durable power of attorney in favor of her son, whom we’ll call Brother. Early in 2014, she executed a will that divided her estate between Brother and the Sisters. Litigation ensued between the siblings, despite the fact that Mom still drew breath.

In the action, both sides sought relief against the other, claiming that this document was valid or that one wasn’t. The litigation ultimately ended in a consent order that appointed a neutral guardian/conservator and dismissed Brother’s claims.

The next year Mom died, and the Sisters got the 2014 will admitted to probate. Brother sued, claiming that Sisters had exerted undue influence on Mom to procure this will, and asserting that Mom lacked testamentary capacity. The Sisters filed a plea in bar, asserting claim preclusion, issue preclusion, and judicial estoppel. The trial court agreed with Sisters on all three rounds, and dismissed the suit. Brother, undeterred, got a writ.

Writing for a unanimous court – indeed, all seven of today’s opinions are 7-0 rulings – Justice Mims crafts a reversal opinion that you’ll probably agree is a very useful primer on the difference between claim preclusion and issue preclusion, plus a helpful explanation of one aspect of judicial estoppel.

Claim preclusion is now governed in Virginia by Rule 1:6. If you can raise a given claim in an action, but choose not to do so, you’re generally barred from asserting that claim in subsequent litigation. This prevents the practice of “claim-splitting,” whereby a plaintiff can subject a defendant to the annoyance of multiple lawsuits. The Sisters had asserted that Brother’s suit raised claims that could have been brought during the first suit – specifically, he could have sued earlier to impeach the will due to his power of attorney.

That doesn’t work, because a will “speaks” at death. No heir has a right to claim anything while the testator is still alive, because the testator can always change her mind and make a new will. Even so, the Sisters argue that Brother could have filed a declaratory-judgment action, since those don’t have to await the accrual of a claim. Unfortunately for the Sisters, prior caselaw bars this approach. Because Brother couldn’t have sought to impeach the will while Mom was alive, he cannot be barred by claim preclusion.

Justice Mims takes up issue preclusion next, and quickly explains one key difference between the two matters. Issue preclusion only applies to issues that have actually been litigated in the first suit. In other words, Rule 1:6 doesn’t govern here to bar issues that might have been included in the previous suit. Since the question of Mom’s capacity at the time she signed the will wasn’t actually decided in the first suit, that doesn’t help Sisters, and the trial court erroneously based its judgment on that doctrine.

Finally, the court takes up judicial estoppel. In the first action, Brother had asserted that Mom had capacity in 2013 when she gave him power of attorney, and again three months after the date of the will. They claimed that he could not, in the second suit, claim that she was incapacitated in between those dates.

Ah, but he can; the only date that matters for determining testamentary capacity is the date of execution. Earlier and later dates are irrelevant. The trial court thus erred in dismissing the suit on this ground. Justice Mims goes on to note that the judge in the first suit didn’t rely on Brother’s assertion about capacity in deciding the case. That’s a separate reason why judicial estoppel doesn’t bar Brother’s claim.

The court remands the case for further proceedings on Brother’s suit to impeach the will. As I’ve noted here, this is a highly instructive explanation of these concepts, and lawyers litigating cases even far removed from the probate arena should read it carefully.

Evidence

There’s one more med-mal decision today: Martin v. Lahti implicates evidentiary issues and a familiar procedural problem on appeal.

A patient came to a hospital’s emergency room in Danville and was diagnosed with acute pancreatitis. Tests showed that the problem originated in her gallbladder. Her doctor recommended removing it. He met with the patient for over half an hour to discuss the situation. No one else was present.

This case, too, involves a laparoscopy and a claim that the surgeon “nicked a bowel during surgery.” A week after the surgery, the patient died. Her daughter qualified as personal rep and sued, claiming a lack of informed consent. The lawsuit asserted that the doctor had failed to inform the patient about available nonsurgical treatment, and that if he had done so, the patient would have chosen not to undergo surgery.

You’ll immediately appreciate the tremendous evidentiary disadvantage that the personal rep faces: How do you prove that someone else would have chosen Course B over Course A, particularly when the patient is now dead? The personal rep chose to do so with circumstantial evidence: her own testimony and that of her aunt.

At a hearing, the daughter told the trial court that she and her mother discussed medical matters in detail on this and other occasions. The mother had a stated resistance to surgery. The daughter was unable to testify as to what the doctor actually told the patient during that half-hour-plus, but asked the court to infer that the doctor left nonsurgical options out because the mother hadn’t mentioned them to her daughter. She concluded, based on her familiarity with her mother and other similar factors, that if the doctor had told her mother about nonsurgical treatments, the mother would have chosen that course instead of surgery.

The trial court didn’t buy this, and neither do the justices. The Supreme Court acknowledges that lay witnesses can offer opinions, but those are generally restricted to matters within the witness’s own perception. Here the daughter was simply speculating about what her mother would have done, and no witness can do that.

In a footnote, Justice McCullough observes that there is a split of authority over an issue that isn’t directly implicated in this appeal: whether proving causation in an informed-consent case requires a subjective or objective approach. The subjective approach is where a patient testifies, “I would never have consented if I had only known …” The objective approach turns instead to “what a prudent person in the patient’s position would have decided if suitably informed …” This issue remains unaddressed in Virginia jurisprudence for now.

There’s one more issue, but here, some sloppy drafting by an appellate lawyer dooms the appellant. The patient’s sister offered testimony that the patient had stated after the surgery, “I thought this would be an easy operation.” The personal rep contended that this helped to prove that the doctor had misled the patient.

While I find myself a bit skeptical of this contention, the issue dies without a resolution on the merits. The trial court originally ruled in a letter opinion that this statement was inadmissible hearsay and was speculative. After the evidentiary hearing I described above, the court ruled that the statement was irrelevant to the triable issue.

In the Supreme Court, the personal rep assigned error to the trial court’s ruling based on hearsay and speculation. The assignment said nothing about relevance, the ultimate basis for the court’s exclusion of the evidence. Because you must assign error to what the court actually did, the Supreme Court finds this assignment to be waived.

JUSTICES QUICKLY REVERSE BOND ORDER

(Posted February 14, 2018) In early August, Fauquier County law enforcement officers arrested a man on suspicion of the first-degree murder of one of his supervisors at work. The case wended its way through the legal system, and the circuit court eventually set a trial date for March 2018.

The defendant was in custody from his arrest until January 3, on which date a judge granted a motion for him to be admitted to pretrial bail. A horrified prosecutor, concerned that a murderer was on the loose, quickly appealed the bond ruling to the Court of Appeals. On January 25, that court affirmed the ruling, no doubt because of the abuse-of-discretion standard of review.

The prosecution pressed on, filing a petition for appeal in the Supreme Court on February 1. Someone at the court must have sensed the urgency of the situation, because the defendant filed a brief in opposition four days later instead of meeting the usual 21-day deadline. I infer that the court directed the early filing.

One week later, on February 12, the justices handed down a rare GVR order, in Commonwealth v. Duse: The court grants the petition for appeal, vacates the bond order, and remands the case for next month’s trial. This is, of course, greased lightning when compared with a normal appeal; but review of bond rulings, no matter which side is the appellant, is by no means normal.

We don’t know which justice wrote the court’s per curiam order. It notes that with first-degree murder charges, the Code creates a rebuttable presumption that “no condition or set of conditions will reasonably assure Duse’s appearance or the safety of the public.” The defendant undertook to rebut that presumption, and in the trial judge’s eye, he did that.

But the court said and did some things on the record that led the justices to reverse and direct that the defendant be held in custody pending trial. The prosecution identified four ways in which it contended that the judge erred, and the justices go along with all four. First, and probably simplest, the trial court noted that the defendant, not having been convicted of anything, was entitled to a presumption of innocence. That’s true during the trial; but not at a bail hearing; indeed, the statutes create the opposite presumption with a first-degree murder charge.

Second, the Supreme Court finds that the trial judge improperly balanced the severity of the charges against the absence of a specific, current threat to the public. “The court inexplicably stated that Duse had no history of violence, ignoring that he currently was under indictment for the execution-style murder of his work supervisor.” The court notes that evidence of current specific threats isn’t part of the statute’s calculus.

Third, the Supreme Court holds that the trial court improperly speculated that the defendant wasn’t a flight risk because of his age, calling that ruling “a clear error in judgment. Given his age [76], his apparent ownership of a home in the Philippines, and the specter of a murder conviction, Duse has every incentive, along with the means, to flee prosecution.”

Finally, the Supreme Court chides the trial court for “wholly discounting and according no weight to Duse’s well-documented prior history of mental health disorders.” In all, the justices have no difficulty in sending the defendant back to jail to await trial.

I’ll add a couple of quick observations about the order here. First, this is the second time in the past three months that the Supreme Court has handed down a merits ruling on a Monday, instead of holding the decision for release on the normal Thursday opinion day. The previous one was another out-of-the-ordinary case, JIRC v. Pomrenke, decided in late November. In theory, the court could have done that simply for emphasis, since a Monday ruling stands out from the ordinary. But I doubt that; in both instances, I believe it’s more likely that the court simply thought that it was important to get the ruling out immediately.

Second, the Supreme Court’s new decision-notification system didn’t seem to notice this one. I subscribe to the service (naturally), but there was no ping on Monday for a new published order. I did get an e-mail on Tuesday for an update to the Appeals Granted listing, but that turned out to be a false alarm; the court didn’t announce any new writs last week.

Now, having launched and relaunched a website of my own, I will not criticize the court’s IT folks as they iron out the wrinkles. I have felt their pain.

SOME THOUGHTS ON THE CLOSE OF AN APPELLATE YEAR

(Posted December 29, 2017) While we still might get some ninth-inning rulings today from the Fourth Circuit, for the most part the appellate year has drawn to a close. Here are a few notes on things that occur to me as I look into the rear-view mirror.

Business indicators

For those of us who make our livings in the Supreme Court of Virginia, it’s important to keep an eye on statistics that show how busy things are at Ninth and Franklin. I won’t have a full 2017 statistical report for two or three months, but I can see a few things just by looking at the court’s website.

For example, by my count the justices handed down 111 merits decisions this year, including 79 published opinions and orders and 32 unpubs. For comparison, in 2016 there were 125. That’s a decline of about 11%.

The ink isn’t quite dry on the number of incoming cases, but my best guess is that new filings will be down by almost 100 from last year’s figure of 1,827. The appellate business is not proving to be a growth industry.

The fate of the criminal appeal

A long time ago, in a galaxy far, far away, I took a bar-exam review course in which the criminal-law segment was taught by an enormously popular U.Va. law professor named Charlie Whitebread. Near the end of that segment, he gave us advice on what to do if, despite our best efforts and analysis, we just weren’t sure what the correct answer was. In that event, he advised, “Remember: This is Virginia. [Here he slowed down his delivery when pronouncing the name of the state, so it came out as four distinct syllables.] The defendant is guilty.”

Against that backdrop, we have this year’s criminal-law appellate jurisprudence. In published decisions, the Supreme Court ruled in favor of the defendant twice and in favor of the Commonwealth 16 times. The prosecution fared slightly worse in unpublished orders, winning seven appeals and losing five. Overall, then, the defendant won 23% of the time and the prosecution won 77%.

You may be interested in a comparison of those figures with the appellants’ success rate in the Court of Appeals, where all criminal appeals except those involving death sentences must first stop. At this point, I’ve only looked at the CAV’s published decisions, not the much larger body of unpubs. But among published opinions in 2017, the CAV ruled in favor of the prosecution 36 times and for the defendant 10 times, giving the prosecution a nearly identical success rate of 78%.

Keep in mind that this count, in addition to being only for published decisions, involves only appeals where the CAV has granted a writ. The overwhelming majority of criminal appeals die a quick death at the petition stage, so the prosecution’s real success rate is likely far over 90%. (The same dynamic is true in the Supreme Court, where all criminal appeals other than death-sentence reviews go through the petition stage.)

Was there an “opinion of the year”?

In 2016, this answer was easy: The 800-pound gorilla that year was clearly Howell v. McAuliffe, a politically charged mandamus petition where the principal combatants were the Speaker of the House and the Governor. It also involved what appeared to me to be a decision made well in advance; for reasons I outlined in my essay last year, I’m convinced that the justices considered the case, debated it, voted, and wrote their opinions long before the oral argument date.

This year … not so much. We had significant rulings, of course, but nothing of the magnitude of Howell. That being said, here are a few notable rulings in my view:

Mayr v. Osborn (Feb. 2) and Allison v. Brown (Jul. 27) convince me that in Virginia, the tort of “medical battery” (this is my shorthand for it) as a parallel claim to medical malpractice is either dead or in hospice. In the past, many patients had claimed battery instead of filing a med-mal suit because the cost of hiring a medical expert made the med-mal route uneconomical.

Jones v. Commonwealth (Feb. 2) is the latest salvo in the ongoing battle between the state and federal courts over life-without-parole sentences for juveniles. I don’t think that war is over yet; I believe that SCOTUS will eventually decide whether the inclusion of a geriatric-release program like Virginia’s means that no inmate is actually serving life without the possibility of parole.

The Funny Guy v. Lecego (Feb. 16) is just scary. Where a plaintiff settles pending litigation by accepting a promise (such as a note) from the defendant to pay something in the future, and the defendant doesn’t pay, the plaintiff now has to sue on the note AND on the original cause of action. If there’s something wrong with the note, and the plaintiff didn’t plead and prove his original claim as well, that becomes res judicata against him.

Hilton v. Commonwealth (Apr. 13) and yesterday’s Pijor v. Commonwealth are this year’s entries in the stupid-criminal sweepstakes.

Daily Press v. OES (Jun. 29) is the latest in a growing string of losses for open-government advocates. The justices ruled that a FOIA request sent to the Executive Secretary of the Supreme Court, seeking aggregated records of trial-court litigation, was misdirected. The requester must instead file a gazillion individual FOIA requests to local clerks for nonaggregated data.

JIRC v. Bumgardner (Jul. 20) and JIRC v. Pomrenke (Nov. 27) gave us the rarity of two judicial-discipline decisions in one calendar year.

City of Danville v. Garrett (Aug. 31) is the third appeal I’ve seen in the past two years in which the Supreme Court decided an appeal over which it demonstrably did not have jurisdiction. The court reversed all three.

Old Dominion Committee v. SCC (Sep. 14) is actually a fair nominee for the opinion of the year. Here, the justices rejected an argument that a widely publicized deal between the legislature and two electric utilities violated separation-of-powers principles.

Levick v. McDougall (Nov. 2) analyzes a contorted fact pattern in which a happy couple got married – or did they? – even though they forgot to get a license. The back-and-forth between the majority and dissenting opinions made for fascinating reading.

Two last thoughts about may and shall

Yesterday we explored the Sexually Violent Predator Act decision in Rickman v. Commonwealth. I’ve pondered that and have a couple of additional thoughts.

The court’s focus was upon the difference between a mandatory and a directory use of the word shall in statutes. As yesterday’s essay points out, the boundary is whether the statute specifies the consequence of a failure to do what one “shall.” If the consequence appears in the statute, then it’s mandatory; if not, then it’s directory and the courts fashion an appropriate remedy.

In that context, let’s look at Rule 5:5(a), dealing with filing deadlines in the Supreme Court. That rule states that the deadlines for filing certain appellate documents, such as a notice of appeal, are mandatory. Those rules wouldn’t qualify as mandatory requirements in their own right, since none of them specify the consequence of missing the deadline. (Rule 5:9 comes closest, stating that “No appeal shall be allowed” unless you file the notice within 30 days.) The effect of Rule 5:5 is, by clear implication, to fix dismissal as the penalty for missing the deadline. And indeed, that’s the way the justices have always treated those rules; they sometimes say that the appellate court doesn’t have jurisdiction if you miss one.

If you want an example from the rules of a clearly mandatory requirement, check Rule 5:17(c), which specifies what a petition for appeal “must contain.” One of those requirements is a section entitled, “Assignments of Error.” That section goes on to state that “If the petition for appeal does not contain assignments of error, the petition shall be dismissed.” That’s what we call an unambiguous consequence.

The other thought was actually suggested by The Boss, when I told her about Rickman: “Gee, how about the Ten Commandments? Are they directory, too?” Not bad, Boss; you’re thinking like a lawyer. Sure enough, with the possible exception of the Third Commandment, there are no consequences specified there, either. Happily, this is not a matter that will occupy the justices’ minds anytime soon.

Thou shalt enjoy a happy, healthy, and prosperous 2018, my dear readers.

ANALYSIS OF DECEMBER 28, 2017 SUPREME COURT OPINIONS

(Posted December 28, 2017) The Supreme Court of Virginia closes the books on 2017 by issuing four published opinions and one published order today.

Criminal law

We’ll start with an appeal that isn’t technically criminal: Shin v. Commonwealth is an appeal of an unreasonable refusal conviction. When Shin was stopped on suspicion of DUI, an officer asked him for a blood or breath sample. He refused, so the officer read him the implied-consent statute. No change. Charged with DUI-2nd and refusal, Shin was convicted in GDC and appealed to circuit.

In the circuit court, Shin did a surprising thing: He demanded a jury. Long ago, I prosecuted DUI cases, and in my experience, defense lawyers religiously avoided juries, fearing lengthy jail sentences that a judge wouldn’t suspend.

Surprise! The jury shook him loose on the DUI charge, but the judge convicted him of refusal. (The parties stipulated that Shin’s defense to the refusal charge presented no factual issues; only legal questions.) That sidelined Shin for a year – no driving. He decided to appeal, and the justices took the case.

Today, the court affirms, turning aside three legal challenges. The court finds that on this record, the Commonwealth didn’t impose an unconstitutional condition on the exercise of a privilege. This is, as far as I can see, the first SCV opinion to apply Birchfield v. North Dakota, last year’s SCOTUS decision requiring a warrant for a blood test (though not for a breath test). Shin focused on the wording of the Rule 5:11(e) written statement, which recites that the officer “demanded a blood and breath test.”

But the record also shows that the officer read Shin the implied-consent declaration, which says that a driver will submit to a breath test, and only to a blood test if no breath test is available. Given the ruling in Birchfield, that demand for a breath test doesn’t offend the constitution.

The court next rejects the contention that the implied-consent statute is void for vagueness. While Shin raises a facial challenge to the statute, the justices first determine that he has to clear the as-applied hurdle, or he doesn’t have standing to make the facial challenge. Shin’s only reason for refusing the breath test was because “he did not believe he was intoxicated” at the time. That’s no excuse; the SCV has previously swatted aside a driver’s subjective belief as a reason for refusing. The whole point of the test is to remove any doubt.

Finally, the justices reject Shin’s claim that the statute violates Virginia’s constitutional ban on self-incrimination. Shin argued that Virginia’s protection is broader than its federal counterpart in the fifth Amendment; but prior caselaw from SCOTUS renders that a dead end.

Next we’ll take up Pijor v. Commonwealth, which raises an intriguing legal issue. After a defendant has been acquitted of a crime, can he then be charged with lying in order to secure the acquittal?

Pijor was originally charged with stealing his ex-girlfriend’s dog, Ben. At trial, he insisted that he hadn’t taken the dog. But his lawyer asked the proverbial one question too many: “Have you seen the dog since September the 6th?” Pijor answered in the negative. The jury acquitted him.

But Pijor appears to be one of those people who just can’t let go. Five days after the acquittal, a guy looking very much like Pijor, walking a dog looking very much like Ben, walked by the ex’s house. The dog carried a Frisbee. Three weeks later, the same thing happened again. A bit later that day, the Frisbee struck the ex’s front door.

One week later, the ex and her then-current beau encountered the man and the dog, and confronted them. The ex called Ben’s name, and he appeared to recognize her. The man ran away, evidently dragging the dog with him. Several weeks later, a detective tracked Pijor down and arrested him. I’m happy to add that today’s opinion contains the welcome phrase that the arrest took place “with Ben in his car.”

Pijor responded to the ensuing perjury indictment by claiming that the Commonwealth could not now prosecute him because a jury had acquitted him of an essential element of the perjury charge. The judge didn’t bite on this approach, and neither did the Court of Appeals. Today the Supreme Court makes it unanimous.

Collateral estoppel in this context only applies when the jury necessarily resolved a particular factual issue in the defendant’s favor. But the larceny-trial jury returned a general verdict of acquittal. And in truth, Pijor wasn’t indicted for seeing the dog after the date of Ben’s disappearance; he was indicted for stealing Ben.

Thus the defense lawyer’s one-question-too-many tactic backfires. We don’t know whether Pijor was originally tried for grand or petty larceny; that depends on whether Ben’s value exceeded $200. But perjury is undoubtedly a felony. (Update 5:00 p.m.: A pal has pointed me to a statute that makes it a felony to steal a dog, regardless of the dog’s value. So while Pijor might have pleaded down to a misdemeanor, the original charge likely would have been a felony.)

Torts

You’ll find a wealth of goodies in Emerald Point, LLC v. Hawkins, involving claims of carbon monoxide poisoning brought by four tenants against their landlord. The tenants claimed that the furnace in their apartment unit was defective, causing the poisoning. After a trial, three of the tenants received awards of $200,000 each, while the fourth, more severely injured, got $3.5 million. The landlord got a writ, and today the justices reverse and remand the case for a new trial. In doing so, the Supreme Court makes these discrete rulings:

The trial court abused its discretion in allowing a plaintiff’s expert to stray from his designated opinions on two occasions. The witness was a doctor who testified about the tenants’ injuries, but added projections based on recent medical literature.

For this ruling, the justices draw on the John Crane v. Jones decision of several years ago. One notable difference is that the trial court in John Crane had rejected the undisclosed evidence, and the Supreme Court had found that to be within the judge’s discretion. Here, the trial court admitted the evidence, and the Supreme Court took the noticeably different step of finding that that decision was an abuse of discretion.

The effect of this ruling is a reversal for a retrial on all issues. But the justices go ahead and rule on other assignments, to resolve disputes that may arise again in that retrial.

The Supreme Court reverses a spoliation instruction that permitted, but did not require, the jury to draw an adverse inference from the landlord’s decision to discard the furnace a year after the injuries. The trial judge had found no sinister intent by the landlord – indeed, no suit was pending when the landlord threw the unit away. The question is whether a litigant has to show intentional loss or destruction of evidence, designed to hinder one’s adversary, in order to permit that instruction.

Here, the justices turn to federal law, specifically the standard for spoliation relief in Fed.R.Civ.P. 37(e)(2)(B). In a matter of first impression, the Supreme Court today adopts the reasoning of the commentary to that rule, and holds that in order to justify a spoliation instruction, “the evidence must support a finding of intentional loss or destruction of evidence in order to prevent its use in litigation.”

The court next agrees with the landlord that the trial court erroneously permitted collateral-issue evidence on liability, in the form of a City inspector who testified about the installation of a replacement furnace. The inspector had stated that the installation was improper because there was no work permit in place. (The City of Virginia Beach later issued the permit.) Because this didn’t relate to either causation of the tenants’ injuries or the amount of their damages, it bore no relation to the triable issues.

The tenants earn a victory in the next appellate issue. The justices defer to the trial court’s discretion in permitting a joint trial involving all four tenants. The landlord had argued that the fourth tenant’s severe injuries had unfairly tainted the trial, coloring the evidence in favor of the other three tenants.

There’s a caveat here, in the form of a footnote:

No issue has been raised in this action about the propriety of four personal injury plaintiffs joining as co-plaintiffs in a single lawsuit (as opposed to bringing four separate actions subject to consolidation in the discretion of the trial court). We therefore view the issue as to whether severance was required for three of the four claims that had otherwise been properly consolidated for hearing in a single action.

Accordingly, this is not carte blanche for a multi-plaintiff filing, since no one raised a fuss about the four suing together.

Finally, the justices reverse one other ruling below. The three less-injured tenants had each sued for $100,000 in compensatory damages and $350,000 in punitives. At the close of all the evidence, the trial court struck the punitive claims. The three tenants thereupon moved to increase their compensatory ad damnum to $450,000 each, and the trial court permitted that.

It is, in fact, permissible for a court to allow an amendment like this mid-trial; but not, the court rules today, after all the evidence is in. An amendment like this changes the playing field for the defendant, and he’s normally allowed a continuance to deal with it. That might allow him to generate some different evidence.

The justices accordingly reverse this ruling. But there’s an asterisk (at least a metaphorical one) appended to it. Because a reversal and remand means the parties start trial proceedings anew, the tenants are allowed to move now to amend their ad damnum upward, and presumably that motion would be granted. In the same vein, I foresee that they may amend the expert witness’s disclosure to facilitate the admission of the evidence described in the first issue above.

That means that on retrial, the tenants wouldn’t have the spoliation instruction and wouldn’t be allowed to call the City inspector, but otherwise they might get much of the same evidence in.

There’s a published order today, in Ahmed v. Commonwealth, a personal-injury claim filed by an inmate in a state prison. The inmate promptly followed internal grievance procedures, and upon exhausting those, filed a notice of claim within 12 months thereafter. He then filed suit, but the trial court sustained a plea of the statute of limitations. The Commonwealth convinced the judge that the special statute for these claims requires that the notice of claim be filed “within one year after such cause of action had accrued.”

The math works in the Commonwealth’s favor; the injury occurred on September 10, 2013, and he submitted the notice on September 22, 2014 – one year and 12 days later. Unfortunately, the Code works differently from the math. By statute, “an inmate must first exhaust administrative remedies” before filing suit, and the statute tolls the limitations period while the grievance process is underway. The justices accordingly send this case back to the trial court for further proceedings.

In addition to these published decisions, the justices also hand down an unpublished order in a medical-malpractice appeal, Chapple-Brooks v. Nguyen. The Supreme Court affirms a judgment for the defendant doctor. In doing so, it approves of the use of this model jury instruction, to which the patient had objected: “The fact that a doctor’s efforts on behalf of his patient were unsuccessful does not, by itself, establish negligence.” The justices reject the contentions that it constituted commentary on the evidence and that it was cumulative of other instructions. The court declines to consider the patient’s argument that the instruction incorrectly and incompletely states the law, because she had made no such objection at trial.

Sexually violent predators

Stop. Whoa. Do not skip forward to the next section simply because you don’t handle SVP litigation, because the opinion in Rickman v. Commonwealth contains a very interesting and important explanation of a vexing aspect of statutory interpretation. Besides, there is no next section; this is the last set of the day. You may as well stick around and learn.

Nonlawyers occasionally give us a hard time when they encounter judicial holdings to the effect, “in this situation, the use of shall actually means may …” Laymen understand readily the difference between a requirement and permission, and they find it odd that our decisions sometimes bend the meaning of ordinary words. This opinion will help you to understand the reason behind what looks like linguistic legerdemain.

The Commonwealth filed a civil-commitment petition against Rickman on August 28, 2015, shortly before he was due to be released after serving a lengthy prison term for sexually violent crimes. By statute, the circuit court was required to schedule – it plainly says “shall schedule” – a hearing on the petition within 90 days, or by November 26. Rickman’s lawyer and the assistant AG exchanged some e-mails to try to get a convenient date for everyone, including the Commonwealth’s expert. They eventually settled on January 8, 2016, 43 days after the end of the 90-day period.

In the e-mails, Rickman’s lawyer reserved the right to object to a hearing after the statutory period lapsed. She followed through on that, filing a motion to dismiss in early December. The court first granted the motion, but reconsidered and reinstated the case, ruling that the lawyer had effectively waived the argument by not raising the argument before the 90th day. The court then conducted the SVP hearing as scheduled and ordered the civil commitment.

In the Supreme Court, the case lands in the capable hands of Justice Kelsey, who begins his analysis with a section entitled, “The Mandatory-Directory Distinction.” With a mandatory requirement, shall really does mean shall; while in directory statutes, it gives the trial court discretion.

The basis of the distinction is whether the statute prescribes a remedy for violation of the requirement. For one easy example of a mandatory requirement, the Speedy Trial Act requires trial within a certain amount of time, and it states what happens if the time expires without a trial (or an agreed continuance or waiver by the defendant): The defendant is “forever discharged from prosecution for such offense.”

In contrast, directory statutes require a certain action, but don’t specify what must happen if someone blows it. In those instances, “where the consequences of not obeying [the requirement] in every particular are not prescribed, the courts must judicially determine them.”  You may be surprised to learn that under Virginia law, the use of shall “is generally construed as directory rather than mandatory.”

The result of this analysis is that the trial judge had the ability to fashion an appropriate remedy for not convening the hearing within 90 days. Rickman’s appeal presented only one surviving assignment of error: He asserted there that the only permissible remedy was dismissal of the SVP petition. To be sure, the trial court could have imposed that sanction, but its refusal to do so was not legal error. That means that the Supreme Court affirms, and Rickman’s civil commitment stands.

ANALYSIS OF DECEMBER 14, 2017 SUPREME COURT OPINIONS

(Posted December 14, 2017) The Supreme Court hands down four published opinions this morning, all in appeals argued in the November session.

Executions

The issue in Shifflett v. Latitude Properties, Inc. is whether a judgment creditor can seize his debtor’s income-tax refund to satisfy the judgment, where the debtor hasn’t filed a tax return yet.

The creditor here served writs of fieri facias on the debtor with a return date of January 6, 2016. The fifa sought the debtor’s 2015 state and federal tax refunds. The debtor replied that the refunds were, at that point, merely inchoate, since neither return had been filed. The trial court ruled in favor of the creditor.

The justices today reverse. The creditor based much of its argument on bankruptcy law, since the SCV has never decided this issue in the context of Virginia law. But Justice Powell, the author of today’s unanimous opinion, points out that bankruptcy law defines property of the estate expansively, while Virginia law defines property subject to levy narrowly. In this context, that means that while a debtor’s right to his refund is fixed for bankruptcy purposes on December 31 of the tax year, Virginia execution law still regards that refund as inchoate until the debtor files a tax return claiming it. And since Virginia law doesn’t permit execution on inchoate claims, there was nothing subject to the lien of the fifa.

Probate

There are a few narrowly defined ways under Virginia law to make, or to modify, a will. The justices take up a purported change to a formal will in Irving v. Divito.

I’ll warn you that when you start to read the opinion in this case, you may get a mistaken impression as to the issue. On page 1, Justice Mims tells us that the testator has made two inconsistent representations about whether a juvenile is or is not his natural son. One of those came in a property-settlement agreement during divorce proceedings; there, he stated that the child was not his.

But in his will, he listed the child as “My child born before the date of my Will.” That led me to expect a debate over whether a PSA is a document of equal dignity as a will.

Wrong, Steve; this appeal is about a handwritten codicil. The testator’s brother found a storage-unit key in the testator’s hotel room. In that unit, the brother found a briefcase containing the original will. The storage unit also contained a binder with various estate-planning documents. And here we have our legal controversy. On one of the dividers in that binder, the testator had written this:

11/17/03

I wish to remove Patrick named as my son entirely from this will – no benefits.

DS

There’s no question that the original will was valid; the only issue in this appeal is whether the handwritten note was a valid codicil. A trial court decided that it was not. The justices agree today, affirming in large part because in contrast to his other probate documents, where he signed his full name, the testator here used only his initials. That fact indicated to the trial court that the testator had not manifestly intended those initials to constitute a signature to authenticate the writing, which is one of the requirements for a valid probate document.

The court finds other support for this conclusion. The testator had instructed his brother that a local law firm had his will, but mentioned nothing about the handwritten notes. Justice Mims also turns to rules of grammar to buttress this conclusion, noting that the handwritten note says only that the testator “wish[ed] to remove Patrick” as his heir; not that he was actually doing so. Another document in the binder instructed the testator to consult an attorney if he wanted to make any changes to his will.

All of this falls short of the clear-and-convincing evidence necessary to establish that the testator intended these notes as a codicil.

Contract/fraud claims

The justices again explore the boundary between claims sounding in fraud and those arising in contract. The appeal is MCR Federal, LLC v. JB&A, Inc.

Both of the named companies operated in the (broadly defined) defense industry. JB&A undertook to market itself to potential buyers. MCR sent the seller a letter of intent, which the seller accepted. That letter called for the parties to negotiate the specific terms of a contract for the buyer to acquire the seller. It also prohibited the seller from marketing itself to other potential buyers while the parties were thus engaged in this process.

The parties signed a formal contract on May 5, 2011, calling for a closing date of May 31. The terms included a $42 million cash payment and (as is now fairly common in corporate acquisitions) the potential for nearly $20 million in additional payments if the acquired business met certain earnings thresholds. The buyer also warranted that there were no adverse suits, investigations, or government actions against it. The agreement finally required the buyer to reaffirm those warranties at closing, in something commonly called a “bringdown certificate.”

The warranties were accurate on May 5, but the trial court found that by the 31st, they were no longer accurate. In the intervening weeks, the buyer was bidding on an unrelated government contract with the Air Force. The Air Force inadvertently sent to the buyer details of a competitor’s bid for the same contract, and several persons within the company saw it. That eventually led the USAF to launch an investigation, and eventually to suspend the buyer – three months after the May 31 closing date – from bidding for two periods of time totaling about a month.

The newly acquired business failed to meet the earnings thresholds, so the buyer didn’t pay any part of the $20 million. The seller sued, claiming that the “clean” bringdown certificate produced at closing was both fraud and a breach of contract. After a lengthy bench trial, the circuit court entered judgment, based on both the fraud claim and the contract claim, for the seller. The court awarded $12 million plus interest, and about $2 million in attorney’s fees.

Today the justices focus primarily on the fraud claim, which was the basis of the fee award. The court finds that the seller’s claim based on the bringdown certificate sounded in contract, not in tort. The buyer had no duty outside of the May 5 contract to furnish that certificate, which after all was a reaffirmation of warranties. Since there was no proper tort claim, the justices reverse the fee award.

This ruling illustrates the SCV’s longstanding refusal to tolerate the mixing of tort and contract claims. It has repeatedly held that lawyers too often want to “turn every breach of contract into a tort,” presumably because of the ability to obtain greater damage awards, including in some cases punitive damages. (There was no punitive award here.) This part of today’s opinion focuses on the source-of-duty rule, which holds that if the only basis for a duty is a contract, then you can’t sue in tort.

The buyer wins this battle, but loses the war. The justices go on to affirm the large award of damages, finding that the trial court had a satisfactory evidentiary basis to fix damages based on the buyer’s internal valuation of the “asset” it had acquired in the purchase.

Given the unique nature of the damages evidence in this case, I suspect that this ruling will be cited more for the financially smaller ruling on the source of duty instead of the larger breach-of-contract award.

Criminal law

The Supreme Court looks into the effect of a defective search warrant today in Commonwealth v. Campbell.

You never know what’s goin’ on in the woods. In August 2014, Amherst Sheriff’s deputies got word of an impending “meth cook,” a process for the manufacture of methamphetamine, at property belonging to Campbell. The word came from a paid informant, who told the deputies that he was present and that Campbell and two associates were going to start the process shortly.

An investigator sent some law-enforcement officials to the scene to monitor it discreetly while he went to get a search warrant from a magistrate. The magistrate was satisfied with the investigator’s description, and he issued the warrant. As required by statute, the magistrate faxed a copy of the warrant, as part of a four-page package, to the local clerk of court. But as often happens in facsimile transmissions, one of the pages didn’t go through. It was a fairly important page, too: the warrant itself, describing “the basis for probable cause” and outlining the reason why the officer felt the information was credible.

Meanwhile, back at the meth lab, officers continued to observe activities that matched well the steps in meth manufacture. The informant, having excused himself from the scene, called the investigator and asked urgently, “Where y’all at? They’re starting to make this thing, man.” The investigator arrived and executed the warrant, finding plenty of inculpatory evidence; at this point, Campbell acquired the right to remain silent.

But his lawyer noted the incomplete package in the clerk’s office. That lawyer moved to suppress, citing that same statute, which also governs defective warrants. It requires that the warrant be filed within seven days, but it allows a grace period of up to 30 days. Failing that, evidence seized is inadmissible.

The trial court denied the motion, finding that even if the warrant were invalid, the search was justified based on exigent circumstances. (Among other exigencies, the manufacture of meth can produce toxic gases and even explosions.) The court convicted Campbell and gave him plenty of free room and board.

But the Court of Appeals thought otherwise. A panel of that court unanimously found that the language of the warrant statute is mandatory, and “rendered the fruits of the search categorically inadmissible as a matter of state law.” The Commonwealth sought and obtained a writ from the justices.

Today the Supreme Court unanimously reverses and reinstates the conviction. The court assumes without deciding that the warrant was defective, but notes that the statute deals only with the treatment of search warrants. It doesn’t address warrantless searches. And analyzing these circumstances, the justices agree with the trial court that exigent circumstances fully justified this search, regardless of a warrant.

Justice McCullough writes today’s opinion. He notes that there was undoubtedly probable cause and that there was a serious risk of disposal of evidence or flight by the participants. He also observes that the officers faced a situation that was imminently risky to the participants. In this regard, he offers a nice turn of phrase in a footnote, dispensing with a defense objection:

We reject Campbell’s argument that those present had assumed the risk of death or serious injury, and that this assumption of the risk defeats exigent circumstances. The exigency arising from the need to protect human life extends to the guilty as well as the innocent.

I’ll mention one other point here: This is the fifth time in 2017 that the Supreme Court has reinstated a criminal conviction after a prior reversal in the Court of Appeals. I don’t have statistics on prior years, but that figure seems to me high enough to be noteworthy.

But let’s not stop there; in addition to today’s four published opinions, the justices decide two appeals by unpublished order. These, too, are from the November session.

The first, Collins v. Commonwealth, involves convictions of grand larceny and statutory burglary arising out of a break-in of a Portsmouth home. The thief took several items, including three flat-screen televisions. Those three items were discarded on the ground next to a street adjacent to the victim’s home. Investigators dusted the items and got two hits on Collins’s fingerprints – ne from his left index finger and one from his left middle finger.

A circuit court used those prints to convict Collins of the break-in, but the Supreme Court today reverses. Fingerprint evidence alone is seldom enough to establish guilt; it generally requires some corroboration, and it must negate every reasonable hypothesis of innocence. Here, because there was no corresponding thumb print on the opposite side of the television, the evidence couldn’t exclude the possibility that Collins had merely bent down to touch TV units that some other thief had taken and discarded (presumably because of their bulk). The Supreme Court accordingly reverses and dismisses the indictments.

Another criminal appellant has similar, though more limited, success today: In Cilwa v. Commonwealth, the Court of Appeals dismissed an appeal as moot shortly before oral argument. The appellant had been ordered to serve 90 days in jail on a probation violation, and when the CAV learned that she had served that term and had been released, it found it unnecessary to determine the legality of her incarceration. (Note that the rule is different with an initial conviction. You always have an interest in clearing your name of being convicted of a crime.)

After the CAV’s decision, SCOTUS decided Nelson v. Colorado in April 2017. Nelson held that states cannot keep money paid by criminal defendants for things like fines and costs if the conviction is later invalidated. Since Cilwa had paid almost $850, she has a right to that money back if her appeal is successful. The justices accordingly remand the case to the CAV for a decision on the merits of the appeal.

One interesting side note: Nelson was a 6-1 decision (not counting Justice Alito’s separate concurrence). Justice Thomas alone believed that even if a conviction is reversed, a state has the right to keep any money the defendant paid before getting his conviction vacated – even if he’s fully exonerated: “Colorado is therefore not required to provide any process at all for the return of that money.” You read that correctly.

ANALYSIS OF DECEMBER 7, 2017 SCV DECISIONS

(Posted December 7, 2017) The Supreme Court hands down two published decisions today – one opinion and one order. Both of these decisions come in cases argued in the September session.

Pleading

The Supreme Court fills in a noticeable gap in pleadings jurisprudence in Eilber v. Floor Care Specialists, Inc. Eilber filed a Chapter 13 bankruptcy petition and received confirmation of a 36-month payment plan. During that three-year period, he was fired from his job and sued a subcontractor for defamation, asserting that two of the subcontractor’s employees had made statements that damaged him in his profession, thus constituting defamation per se.

The defendants filed some fairly vanilla demurrers, which the court denied. They then moved for summary judgment “on the ground that Eilber lacked standing to prosecute his defamation action because he failed to disclose the claim to the bankruptcy court.” Eilber duly responded, and in a reply brief, the defendants asserted for the first time that judicial estoppel barred the claim.

The trial court took this bait, dismissing the case on the judicial-estoppel argument. Eilber appealed, asserting that the defendants hadn’t pleaded judicial estoppel, so it was inappropriate as the basis for a dismissal.

The Supreme Court today notes that in general, a defendant must plead an affirmative defense, or it may be held waived. There are some specific exceptions to that, but prior caselaw from the SCV has never addressed whether judicial estoppel is one of those exceptions or not.

The court resolves this issue today by joining five federal circuits that have held that a defendant need not plead judicial estoppel in order to prevail in that basis. A court may even raise the issue sua sponte. The reason is that the doctrine of judicial estoppel is designed to protect the integrity of the judicial process and to guard it from improper use.” After all, a litigant who asserts one thing in a given court and the opposite fact in another court is likely gaming the system.

Eilber’s failure to disclose the defamation claim during the pendency of his bankruptcy case is tantamount to a statement that he had no such claim. On that basis, the justices unanimously affirm the dismissal.

The surface-level lesson of this case from a plaintiff’s perspective is that you have to ask your incoming client if he or she has a pending bankruptcy claim, and you have to disclose any tort claim to the trustee, even one that arises after the filing date. The lesson to litigants more broadly is that judicial estoppel is a card that can be held in reserve and played at a strategically advantageous time for the defense.

Trusts and estates

There’s a fairly simple resolution to Kim v. Kim, involving a revocable trust, a pour-over will, and a claim of undue influence. It also shows you that lawyers who do favors – even innocent ones – for family members eventually end up getting punished.

There are actually three Kims in this story. Kim #1 is the settlor of the trust and the testator of the will. Kim #2 is his brother, a licensed attorney. Kim #3 is the testator’s wife.

The testator saw that the end was near; he was undergoing treatment for end-stage lymphoma at Johns Hopkins Hospital. He called his brother to his side and asked him to draw up the will and trust. The brother did so, naming himself as executor in the will and as successor trustee in the trust. Even the medical heroes at Hopkins could not postpone the inevitable; eight days after executing the documents, the testator passed away.

His widow speedily qualified as personal representative and sued her brother-in-law, claiming undue influence. She asserted that suspicious circumstances existed, in that her late husband was enfeebled when he signed; was entirely dependent on others; and relied on his brother, who stood in a fiduciary relationship with the testator. These circumstances have in the past given rise to a presumption of undue influence. (I hardly need point out that the terms of the trust were noticeably less beneficial for the widow than intestate succession would have proved to be.)

The brother who prepared the documents had a ready reply: Even assuming all that to be true, he hadn’t named himself as a beneficiary, and he stood to gain nothing from his late brother’s will except the normal fees that any other fiduciary would charge for estate administration. Indeed, the trust stated that the brother could not distribute any of the proceeds of the estate to himself. The trial court agreed with the brother and granted judgment in his favor.

On appeal, the justices consider and reject the widow’s claim that the brother stood to benefit from the will and trust: “Neither [the brother’s] entitlement to compensation as executor and trustee, nor his power as trustee to choose beneficiaries of certain Trust property make him a beneficiary of the Will or Trust.” Since the brother wasn’t a beneficiary, directly or indirectly, he can’t be held to have unduly influenced the testator to benefit himself. The court thus affirms the judgment.

ANALYSIS OF NOVEMBER 30, 2017 SUPREME COURT OPINION

(Posted November 30, 2017) The Supreme Court today decides an appeal involving a breach-of-contract claim in the third-party-beneficiary context. The case is Rastek Constr. & Devel. Corp. v. General Land Commercial RE Co., from Chesterfield County.

In 2010, Rastek contracted to sell a commercial tract to an entity known as G & G Harley Club. The sale price was $3 million; closing was set for October 1 of that year. But the sale didn’t close as scheduled. The parties revised their agreement to allow for closing in March 2011, but that didn’t happen, either; nor did the parties close by either of two subsequent dates. Eventually, a bank foreclosed on the property and resold it to the Harley Club, which presumably got the land for less than the original contract price.

In this way, the bank got paid; the club got its land; the seller got rid of the property at a challenging time for the real-estate market; everybody got what they wanted, with one exception. The original contract contained a provision obligating the seller to pay a real-estate broker a commission once the sale closed. The obligation was expressed as a condition precedent: “if and only if closing occurs.”

Well, no closing occurred, so you might figure that the broker is out of luck. But it would not be dissuaded so easily: the broker sued the seller anyway, claiming that the seller had improperly prevented the closing by not coming up with funds sufficient to clear liens against the property (including the bank’s mortgage). The trial court rejected a demurrer and eventually granted judgment to the broker for the amount of the commission.

The seller appealed, and today the Supreme Court reverses and enters final judgment. The trial court had based its ruling on something called the prevention doctrine. That principle states that if a deal falls through and you caused it to do so, then you can’t rely on the failure to close as a defense to liability.

Justice Kelsey writes for a unanimous court. He notes that the prevention doctrine requires affirmative conduct, not merely passive inability to comply with contract terms. Specifically in this context, it requires proof of “a purposeful act or omission that wrongfully prevented the if-and-only-if condition of closing from being satisfied.” (Internal quotation marks omitted) Not having enough money on hand on the scheduled closing date doesn’t meet that standard, so the seller is entitled to judgment. The court also points to another unfulfilled condition precedent to closing: a final certificate of occupancy from the County. The County had issued only a temporary CO.

I’ll mention a couple of other issues that stood out to me. The first is the court’s discussion of the third-party-beneficiary doctrine. In most real-estate deals, real-estate agents and brokerages sign the contract, so they have a direct claim. That didn’t happen here, so the brokerage has only a derivative claim. The broker had sued the buyer, too; but that claim died because of the statute of frauds, which bars real-estate commission claims based on oral contracts.

There’s one last point that illustrates a principle that’s familiar to appellate lawyers. The justices today rule that the trial court should have sustained the seller’s demurrer; the court holds that the complaint fails to state a claim, since there was no duty as a matter of law.

That being said, there’s one seeming omission here that might give the occasional practitioner pause. Here’s the text of footnote 4: “While the trial court’s order alludes to a November 20, 2015 demurrer hearing, no transcript of that hearing appears in the record.”

My readers have heard me preach often about the need to have a court reporter take down everything in a trial-court proceeding, except perhaps your lunch order. This decision points out one exception to that general advice. Because a demurrer raises issues of law, it isn’t essential to have a transcript of proceedings when you’re appealing a ruling like this. A demurrer can only be sustained based on grounds asserted therein, so the question in the Supreme Court is identical to the one in the trial court: Does this complaint state a claim? I still believe that the best practice is to include a demurrer-hearing transcript, but in appeals like this one, you won’t be out of options if you don’t have one.

ANALYSIS OF NOVEMBER 27, 2017 SUPREME COURT OPINION

(Posted November 27, 2017) We get a very rare Monday opinion release in a very rare case area for the Supreme Court of Virginia.

Judicial discipline

I have never interviewed any of the justices about this, but I’m confident that judicial-discipline proceedings are among the most troubling matters they see on their docket. The court today decides JIRC v. Pomrenke, argued just 25 days ago.

The Judicial Inquiry and Review Commission charged a JDR judge with misconduct in connection with a federal prosecution of the judge’s wife. The feds had indicted the wife for corruption in her role as an officer of the Bristol Virginia Utilities Authority.

Shortly after the indictment, the judge sent a short handwritten note to his wife’s boss:

Hi Don,

I just wanted to sincerely thank you for your kindness and understanding support for Stacey during these horrible times. By now I am sure you would agree she is absolutely honest, truthful, ethical, and innocent! It is horrible what our government is doing to her. She will be proven innocent. Thank you for believing in her.

Kurt Pomrenke

The judge explained that the criminal defense was draining the family’s finances, and he wanted to thank the boss for allowing the wife to keep working and earning money during the prosecution. He inserted one of his judicial business cards in the envelope.

The boss, a licensed attorney, read the note and blanched. He took it to the federal prosecutor, and the wife was eventually charged with contempt of court. The boss, you see, was a possible witness in the upcoming criminal trial. (In fairness to the judge, he sent the note 2 ½ months before the feds filed a witness list in the case. He contended that he hadn’t known at the time that the boss would be a witness.)

Three days before the trial, the judge compounded his problems by leaving a voice message for a person he knew would be testifying (I infer she would testify on behalf of the wife, though I’m not sure), a “close personal friend” of the judge. This voice message suggests ways in which the witness could shade her testimony by inserting laudatory statements about the wife, even where the question wouldn’t call for any such statements.

As it turns out, the boss didn’t testify, and the federal court convicted the wife. But no matter; JIRC instituted these charges anyway, citing Canons 1 (integrity and independence of the judiciary), 2A (public confidence in the judiciary), and 2B (lending prestige of judicial office for private benefit) of the Canons of Judicial Conduct. After a hearing, the Commission unanimously found the charges to be well-founded.

It’s here that we’ll take a minor detour to mention a couple of procedural aspects of these rare proceedings. The Commission’s finding is the functional equivalent of an indictment: It’s an accusation, not a conviction. The trial court in JIRC proceedings is the Supreme Court of Virginia. That makes this what court insiders call an “OJ proceeding,” invoking the Supreme Court’s original jurisdiction. This was not an appeal at all, and it didn’t require a writ.

In the Supreme Court, the judge commendably agreed that his actions were wrong; he apologized to the justices, as he had done in the hearing before the Commission. That means that the finding of misconduct will stick, and the only issue is what to do about it. By law, there are only two options for the Supreme Court: censure of the judge, or removal from office.

The judge had produced character witnesses and plenty of supporting letters from local attorneys during the Commission hearing. In the end, those letters are unavailing. Citing the effect of the judge’s actions on the judiciary – not on the pending criminal trial, which is almost a secondary factor in the ultimate disposition – the justices take the extremely rare step of ordering the judge’s removal from office. The Supreme Court finds that what the judge did “strikes at the heart of the judicial system” and impairs the functioning of that system – all 400 judges’ worth. Although the federal prosecution obviously took a terrible toll on the judge’s family, “such considerations cannot outweigh the extraordinary harm that will be done if he remains on the bench.”

My sense as I read the factual recitation is that the initial note to the boss may have been a somewhat close call for the court, especially if the judge really didn’t know that the boss would be a potential witness. That being said, today’s opinion adopts several facts from JIRC’s brief that establish that he should have known. The voice mail is another matter entirely; there is no question that this was an attempt to tamper with a witness. And no judge can do that and expect to keep his robe.

The chief justice writes the opinion today for a unanimous court. While the assignment of opinion writing is at least initially random, I would be very much surprised if that happened here. There is an air of professional disappointment and even betrayal about this opinion, and I believe the chief justice was unwilling to impose its authorship upon any other member of the court.

May it be a good, long time before we ever see another of these cases.

ANALYSIS OF NOVEMBER 22, 2017 SUPREME COURT OPINIONS

(Posted November 22, 2017) Wait! Hold it! I know you’re eager to leave the office early so you can head over the river and through the woods to grandmother’s house. But we’ve got opinions! The Supreme Court decides three appeals by published opinion today – they weren’t about to hold them for release tomorrow, as you can imagine – and you can use this information. After all, if one of your cousins starts to talk politics at the dinner table tomorrow, you can change the subject with, “Never mind that; did you see that land-preservation-tax-credit opinion from the Supreme Court yesterday?”

I’m trying to be helpful.

Prisoner litigation

When an inmate wants to file a lawsuit, he can do so without paying the required filing fee or service costs if he shows that he “has had no deposits in his inmate trust account for the preceding six months.” The justices explore this provision today in Grethen v. Robinson.

Grethen is enjoying a period of free room and board with the compliments of the Director of Corrections. The Supreme Court describes him today as “a prolific litigator.” He sought to file a mandamus petition challenging the prison’s restriction of his access to computers, legal-research materials, and photocopying. He filed an affidavit saying that he had no available funds.

But “no available funds” isn’t the same thing as “no deposits … for the preceding six months.” His account records showed deposits of $25 for one three-month period and $183 for the preceding year. Based on that, a circuit-court judge refused to allow him to proceed in forma pauperis. Grethen appealed, and the justices agreed to take a look.

This morning, a divided court reverses. Justice McCullough writes for the majority, noting that each inmate has several trust accounts for different purposes – court obligations, loans, and others – with the residue held in a “spend” account, available for any purpose the inmate chooses. When the inmate incurs costs, such as a $5 fee for a doctor’s visit, the facility either deducts that amount from his trust funds or “lends” him the money and then debits it immediately. These loans/debits are the basis of the roughly $200 in deposits shown on the records.

The Supreme Court today holds that while the prison may call those loans “deposits,” that doesn’t match the commonly accepted definition of what a deposit is. No real money ever changed hands, so there’s no way that Grethen could use the money to pay the filing fee. The majority thus remands the case for adjudication of the mandamus petition.

Justice McClanahan (joined by Justice Powell) has other ideas. No real money? Tell that to the taxpayers whose cash funded Grethen’s lifestyle (modest as it may be). The dissent maintains that no matter the source, someone deposited money into Grethen’s account, so he doesn’t qualify for automatic IFP status. In that instance, the trial court has the discretion to allow it or not.

It’s impossible to read today’s decisions without that frequent-flyer status in the back of your mind. Justice McClanahan quotes the majority’s own phrase – “a prolific litigator” – and implies that the trial court should, in this context, be allowed to consider that in deciding whether Grethen deserves to file yet another free lawsuit.

Taxation

We’ll turn now to your dinner-conversation topic for tomorrow. In Woolford v. Department of Taxation, the justices evaluate a claim for a $5 million tax credit for donation of a conservation easement.

Woolford is the trustee of a family trust that owns a large agricultural tract in King William County. The family wanted to donate a conservation easement over part of the farm to preserve it from development for a sand-and-gravel mining operation. They secured a report from a licensed appraiser, indicating that the land was worth about $13 million as it stood – with development potential intact – but would be worth only $1 million without those development rights.

The trust conveyed a deed of gift to a public conservation agency and then claimed a 40% tax credit for the value thus conveyed. That’s how we get to our $5 million playing field in this appeal.

The Department of Taxation initially accepted the credit application, but later rescinded that ruling, contending that the appraiser didn’t meet statutory requirements. The Department reduced the credit to zero, prompting a trip to court. The circuit court agreed with the Department, since the appraiser – who otherwise appeared well-qualified in his field – had not received educational training in the appraisal of sand/gravel mining operations.

The Supreme Court unanimously reverses today. The court explores the credentialing requirements in state and federal statutes and concludes that the trial court’s analysis of an educational requirement was too strict. To be sure, the court also rejects the trust’s argument for a liberal interpretation of qualifications; but it eventually rules that the appraiser’s credentials in related fields, and his previous experience in four other mining appraisals, were enough to qualify him here. The court remands so the trial court can evaluate the case on the merits.

A two-paragraph coda to today’s opinion lists some of the issues that the trial court will have to resolve. There are some sticky ones in there. For example, there was no active sand/gravel mine on the property, and the trust would have to obtain an expanded special use permit to start one. That leaves a question whether the mining operation really affects the value of the property. (In this sense, this analysis differs from other valuation-testimony rules, since the statute requires that the donation be “consistent with existing zoning requirements.” In other valuation contexts, such as eminent domain, an appraiser can consider uses that are reasonably probable in the near future, and are not limited to the current zoning.)

The court has two parting shots. The first is to implicitly chide the Department for taking an extreme position: In the absence of a qualified appraiser, the correct amount of tax credit is zero. The justices plainly are skeptical of this, and the opinion concludes with a gentle rejoinder to the Department to play a little more fairly with the trust.

Finally, there’s a hand grenade for the appellate bar. In a footnote – where, as I’ve often preached, the goblins usually hang out – the court expressly overrules a previous preservation requirement. That counts as big news here at VANA, so we’ll explore it.

In the trial court, the Department made several other arguments that the trial court decided not to address. Those arguments would have provided an alternate route to the conclusion that the circuit court reached – the one that got reversed this morning – so the judge felt no need to decide them. On appeal, the Department didn’t assign cross-error to that refusal to rule.

In the past, that decision has had fatal consequences. Most memorably, in VMRC v. Clark in 2011, the justices had a nasty surprise for a party to an admin-law appeal. Clark had appealed to the Court of Appeals the dismissal of his claim on standing grounds. In the trial court, Clark had argued against the dismissal and had also asked for leave to amend – leave that the trial court had rejected. The CAV took the easy route, reversing on the standing issue and deciding that the amendment issue was unnecessary in light of its holding.

VMRC appealed and got the standing ruling “re-reversed” by the Supreme Court. When Clark asked the justices to allow an amendment as an alternative, they refused to consider that, because Clark hadn’t assigned error to the CAV’s “economy.”

I felt at the time that that decision was both harsh and mistaken. Today the ruling goes away:

We have previously held that an appellee must assign cross-error to a lower tribunal’s failure to rule on alternative grounds to preserve the issue for appellate review. [Citations to Horner v. Dep’t of Mental Health and VMRC v. Clark] Those holdings are incompatible with our current approach, which requires an assignment of cross-error (or a cross-appeal) “only when an appellee seeks to modify or otherwise change a favorable judgment ‘with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.’” Our holdings in Horner and Clark on the requirement of assigning cross-error in a failure to rule situation are hereby expressly overruled.

(Internal citations omitted) I emphatically applaud the justices for this decision, though the news will be cold comfort to Clark.

Insurance

You know that hot feeling you get in the pit of your stomach when you sense that something really bad is about to happen? I got that sensation before I finished reading the first paragraph of Appalachian Regional Healthcare v. Comm’r of Insurance. That’s because I ran across the phrase, “Reciprocal of America.” And every lawyer knows that invoking that phrase is bound to end in tears.

Appalachian is part of a group of hospitals in, of all places, Kentucky that formed two self-insured trusts to cover employee-liability claims (for example, Workers’ Comp) and professional/general liability claims (for example, medical malpractice), respectively. As an aside, the second one was named Kentucky Hospital Association Trust, generating the unfortunate acronym KHAT. Given that khat is a controlled substance, that’s akin to a hospital association with the acronym OPIUM. But I digress.

The two trusts merged into Reciprocal in 1997. As part of the merger agreement, Reciprocal agreed to indemnify the hospitals for any liabilities formerly insured by the trusts. It also promised to cover their reasonable costs and fees incurred in defending claims against the hospitals – basically, the kind of coverage you’d expect.

As you’ll recall, Reciprocal suffered a grisly death by receivership almost 15 years ago. The Commissioner of Insurance, appointed as Special Receiver, filed suit in the SCC seeking approval to continue paying employees’ claims from what assets were left. The Hospitals later joined in that request for relief, and also filed a suit of their own in Kentucky to achieve a parallel purpose. Those efforts were successful; the Virginia litigation and the Kentucky lawsuit both ended in victories for the hospitals.

The hospitals then sought payment of their legal fees, roughly $440,000, for the two actions under the indemnification provision. The SCC refused, and the hospitals exercised that rare right in the Virginia appellate universe: an appeal of right to the Supreme Court.

Today a unanimous court affirms. While the path may seem complex, even tortuous, for someone who doesn’t practice in this field, the ultimate ruling is simple and, in my mind, unassailable. The indemnity agreement assured payment of fees and costs incurred in defending against damage claims. But the hospitals weren’t defending anything; they were plaintiffs, seeking affirmative relief.

The hospitals argued that this was just a matter of semantics, and they were just seeking an advance adjudication of their potential future liability problems. But the justices stop the interpretive process at Step 1: The plain meaning of defend doesn’t extend to the affirmative assertion of claims. And when the meaning of language is plain, courts don’t engage in construction or even interpretation; they just apply the plain language and say, “Next case, please.” The hospitals thus have to pay their own lawyers, without any help from Reciprocal dollars.

ANALYSIS OF NOVEMBER 16, 2017 SUPREME COURT OPINION

(Posted November 16, 2017) It has happened again. This makes – what, 37 years in a row? – that I’ve been dissed by the folks at People Magazine, who inexplicably have chosen somebody named Blake Shelton over me for this year’s award.

Perhaps I should have called for a more expansive letter-writing campaign in support of my candidacy. Maybe next year; for now, let’s explore today’s Supreme Court opinion. At a minimum, I know I can do THAT better than Mr. Shelton can.

Criminal law

The principal issue in Cole v. Commonwealth is a fairly simple one: May jail employees conduct a nonconsensual body-cavity search of arrestees upon their arrival in jail? Cole was arrested in Alexandria on an outstanding warrant – today’s opinion doesn’t say what the warrant was for – and the arresting police officer found an open container of alcohol and a small amount of marijuana during an inventory search of his car.

The Alexandria jail has a policy of requiring strip searches of pretrial detainees who are charged with drug offenses, no matter how minor. During their search of Cole, a deputy noticed a white baggie hanging out of a body part that we prefer not to discuss openly here at VANA. That baggie turned out to contain cocaine.

Cole moved to suppress the evidence, and the trial court granted the motion, finding that the standard for strip searches of pretrial detainees is different from that for persons who have been convicted. The Commonwealth took an interlocutory appeal to the CAV, and succeeded in getting that order reversed. The case went back for a bench trial, and there, Cole renewed the motion to exclude the evidence. The court refused, based on the CAV ruling, and convicted Cole.

Cole appealed the conviction and again asked the CAV to review the suppression issue. The appellate court held that it couldn’t touch this issue, which had become the law of the case after the interlocutory appeal, and refused the petition for appeal.

The justices granted a writ, and today’s decision is a partial reversal and partial affirmance. But don’t be fooled by that; there’s one clear winner today, and that’s the Commonwealth.

The reversal is on a matter of appellate practice: The justices find that the CAV erroneously regarded the suppression issue as unreviewable on a merits review. That’s because a statute specifically says that an appellant can ask the appellate court to reconsider a ruling like this one on post-conviction review.

But that’s the extent of Cole’s victories today. The justices go on to evaluate the merits of the suppression ruling, and they find the CAV’s original decision to have been correct. Based on SCOTUS caselaw, courts afford great deference to the decisions of corrections officers on how to maintain security. Because of the possibility of spreading contraband or weapons to the jail population, the court finds that there’s a valid reason for this policy. In order to prevail, an appellant has to adduce “substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations.” Cole hadn’t come close to meeting that tough test, so the Supreme Court affirms the conviction.

ANALYSIS OF NOVEMBER 9, 2017 SUPREME COURT OPINION

(Posted November 9, 2017) This morning, the Supreme Court of Virginia hands down one opinion, Chilton-Belloni v. Angle. It’s a land-use appeal, but the primary issue is the application of res judicata. It contains a ruling that may come as a surprise to you.

Chilton-Belloni owns a home in Staunton; today’s opinion describes it as a historic home on a now-busy street. In 2006, she and her husband wanted to build a wall to provide them with a measure of privacy and soundproofing. A City inspector visited, reviewed the scene and the plans, and told them, “You’re good to go.”

The landowners started construction. The next year, when they were almost done, the Zoning Administrator came by and told them to stop; the inspector the previous year had been mistaken. Since the wall violated Staunton’s ordinances, he presumably instructed them to take it down.

For those of you who don’t handle land-use law – and I presume that that’s a healthy majority of you – your first inclination is to raise an objection of fundamental unfairness. The City told the owners they were okay to build, and they acted in reliance on that information. Here in the hallowed halls of the law, we’d call that estoppel: The City cannot change its position after the owners show detrimental reliance.

Except the City can, in fact, change its position. There’s a long line of authority holding that the doctrines of estoppel and waiver don’t apply to governments when they act in their governmental capacity. Stated another way, a government official can’t bind the government by his words or deeds. If it were otherwise, each government employee would be able to overturn the law in specific instances. Only the legislative body can establish the law.

You’re still skeptical of me, even though I’m a former local-government attorney? Okay; go check Segaloff v. City of Newport News, 209 Va. 259 (1968), where Mr. Segaloff did exactly what the landowners did here – relied on an official’s mistaken interpretation of a land-use ordinance and started construction – and lost. I will confess that while reading this opinion, I wondered how the landowner would address the hammer that is Segaloff.

The answer is in the procedural posture of this case. Back in 2007, the owners asked the BZA for a variance. In those dark days, Cochran v. Fairfax BZA, 267 Va. 756 (2004) was the law of the land, and it portended bad outcomes for those seeking variances. Under the applicable statute back then, an applicant had to establish “clearly demonstrable hardship approaching confiscation” just to get a variance. That’s enormously difficult.

The BZA evidently felt the landowners’ pain; essentially snubbing Cochran and the statute, it granted the variance early in 2008. The win was short-lived; the circuit court overturned the variance in June 2009.

You’d figure that would be the end of it, but for whatever reason, nobody did anything after the final judgment. The owners didn’t take the wall down and the City didn’t try to make them. The City’s forbearance may have been affected by a statutory change in the 2009, effectively overturning the harsh Cochran doctrine by removing the “approaching confiscation” language.

Two years later, the City finally took action: It brought criminal charges – criminal charges! – against the owners for failing to remove the wall. The trial court ruled that the prosecution was time-barred. (Misdemeanors have a one-year statute of limitations in Virginia.)

Just when it’s looking like the owners are going to keep their wall, somebody – perhaps a careless motorist – went and damaged it. Ms. Chilton-Belloni, recently widowed, then received what you might consider a nastygram from the new Zoning Administrator, warning her that if she tried to fix the wall, that “will be considered another violation.”

The owner asked the Administrator for another variance, citing the intervening change in the statute. “No dice,” came the response; the Administrator noted that the issue had been fully litigated in a final court judgment. The owner then appealed that decision to the BZA, asking that body to give her the relief that the Administrator had withheld.

In response, according to the pleadings, the Administrator did something surprising: She refused to convene the BZA. Instead, she sued the owner for an injunction to remove the wall. The owner sought a stay of that action to allow the BZA to decide her variance request. The circuit court refused the stay and granted the injunction, simultaneously denying the owner’s separate petition for a writ of mandamus. The court found that the variance issue was res judicata after the earlier litigation, and “engaged in its own determination that a violation occurred.”

I’ll interject a side note here. That surprising refusal to convene the BZA doesn’t play a part in the Supreme Court’s eventual reasoning; as a result of the way in which the justices decide the case, that issue sort of fades into the woodwork. But it’s possible, just possible, that it may have subtly colored the way in which the court looked at the merits of the issues. Assuming it happened – and today’s opinion reports it only as an allegation by the owner; not an established fact – it looks as though the Administrator is trying to cut off available legal relief, in the form of a board hearing. That approach is similar to efforts by a trial judge to prevent appellate review of one of her rulings. The justices don’t like it when judges do that, and if the Administrator did as the owner asserted, the Supreme Court probably wouldn’t look kindly on that, either.

Senior Justice Millette writes today’s opinion for a unanimous court. He begins the analysis by noting that the owner’s separate appeal of the mandamus denial was effectively waived, but agrees with the owner that all of the issues in that appeal are contained in the injunction suit.

On the merits of that appeal, the court sides with the owner, ruling that the trial court erroneously applied res judicata to bar a second look at the variance issue. The justices find that the June 2009 decision was based only on the BZA’s authority to issue a variance, not on the merits of that request. The court thus holds that those merits were not “actually litigated and resolved” in that suit, so that judgment didn’t bar this request.

Justice Millette goes on to address whether one other decision might be res judicata: the BZA’s original adjudication. The question whether administrative (non-judicial) decisions can become res judicata is often a close call. After all, if there’s no judge involved, deciding whether something has been “adjudicated” isn’t always obvious.

But here, the justices have an uncomfortable surprise for this Administrator and her colleagues across the state. Today’s opinion quotes with approval this passage from a Rhode Island decision:

[A] strict rule of res adjudicata in zoning matters could have unfortunate consequences such as denying a landowner once refused relief the right to a reconsideration of an application based upon intervening circumstances resulting in a deprivation of all beneficial use of his property. Such an undesirable result could have serious constitutional implications and would do violence to the expressed legislative will authorizing zoning boards to vary the terms of zoning ordinances in hardship cases.

In a separate passage, Justice Millette outlines the new contours of res judicata in the context of Virginia land-use law:

Use of a property should not be forever governed and restricted by the date at which an owner first seeks permission to alter the property. It should be allowed to evolve along with the zoning standards of the locality. There are ample reasons to permit property owners and zoning appeals boards to revisit a zoning question when the relevant ordinances or statutes have changed, and utterly unjust to bar a landowner from potential benefits to his or her property merely because he or she, or a previous owner, had engaged in a prior appeal of the matter under different law.

I bet you didn’t see that coming. At least as of today, the Supreme Court has softened the bar of res judicata in the land-use context.

ANALYSIS OF NOVEMBER 2, 2017 SUPREME COURT OPINIONS

(Posted November 2, 2017)

(Sigh)

Alas, the wrong team won the World Series last evening. My beloved Dodgers needed to win eleven games in the postseason, and they went 10-5, falling one victory short in a scintillating Series. So be it; this was a wonderfully successful season.

The justices sensed that I need something to distract me, so they’ve given us two published opinions this morning. Let’s take a look.

Probate

Lawyers handling probate matters are accustomed to running their reports by a commissioner of accounts, a delegee of the circuit courts. In Gray v. Binder, we see what happens when a litigant chooses to go straight to the commissioner, bypassing that pesky court.

Gray is the step-grandson of a decedent who made a will half a century ago. The will made specific bequests, including one to Gray’s mother, expressing a “desire that she use it for the education of” Gray.

The grandfather must have made it to a ripe old age, because he outlived everyone mentioned in the will except Gray. A lawyer qualified as personal representative, and due to Gray’s assertion of an interest in the half-million-dollar estate, the attorney wrote to a local commissioner, asking for aid and direction. The commissioner agreed to help.

Commissioners probably do this all the time, but they generally do so after an order of reference from a court. This time, the attorney, in his capacity as personal rep, filed his petition directly with the commissioner. The commissioner heard evidence and issued a ruling against Gray and in favor of some of the decedents’ cousins. The circuit court confirmed the report and entered judgment accordingly. Gray appealed, but the justices refused it in 2015.

Wait; what? You’re probably asking why we have a published opinion if the Supreme Court refused to grant a writ. The reason is that the probate process wasn’t over:

On May 4, 2016, the Commissioner filed a routine debts and demands report with the circuit court, authorizing the Administrator to “distribute the remainder of the estate to the beneficiaries after the final payments of any administrative expenses and debts known to the fiduciary.”

Gray saw an opportunity here: He filed exceptions to the new report, and when the trial court ruled against him, he appealed that judgment. In his appeal, he asserted that the commissioner didn’t have subject matter jurisdiction over the initial proceeding. And since the circuit court’s jurisdiction was derivative of the commissioner’s, that meant the entire previous proceeding was a nullity. That looked intriguing enough to a writ panel that the court agreed to hear the appeal.

Today, in an opinion by the chief justice, the court first dispenses with the cousins’ contention that Gray’s objection came to late, since he never raised it in the earlier proceeding or appeal. That gets nowhere; an objection to subject-matter jurisdiction can come at any time, since SMJ isn’t subject to waiver.

That proves to be the extent of Gray’s victory today; on the substance of the case, the court rules that it can’t review an objection to the commissioner’s subject-matter jurisdiction. That’s because, under the Constitution and Code of Virginia, the Supreme Court has the power to review circuit courts; not commissioners. The opinion notes simply that the circuit court certainly had subject-matter jurisdiction over an aid-and-direction petition, and that’s all the appellate court can touch. The court accordingly affirms.

Justice McCullough files a short and interesting concurring opinion. He notes that there may well be a thorny legal issue over whether a commissioner can hear matters without an order of reference. But the procedural posture of this case bars review of that question, so it’ll have to wait for another appeal on another day.

Domestic relations

Anybody who knows anything about weddings knows that the celebrants have to have a marriage license. That little detail seems to have slipped the minds of the happy couple in Levick v. MacDougall. They fell in love, picked a date, recruited a rabbi, and showed up for the ceremony without ever thinking to get that slip of paper.

No problem, the rabbi assured them. Just go get one, send it to me, and when I receive it I’ll sign the marriage certificate. That worked for the couple, and on December 21, 2002, they exchanged vows. Two weeks later, they went to the courthouse and got the license, which is officially known as a marriage register. At that point, according to today’s opinion, the ostensible husband told his ostensible wife “that he would mail the marriage register out right away to the rabbi, and she agreed and kissed him goodbye.” He dutifully put the register in the mail.

The rabbi was traveling, so he didn’t receive the document until January 21, a full month after the ceremony. He signed it that day – stating that the marriage had taken place January 21 instead of back in December – and regarded that the parties were married.

The parties thought so too, including several years later when the bloom and the rose had long since parted company. As the marriage deteriorated, the parties signed a marital agreement by which the ostensible husband, Mr. Levick, would pay his ostensible wife, Ms. MacDougall, $150,000 annually in spousal support and would agree to generous equitable distribution for her benefit, all in the event of divorce.

That proved to be prescient; the parties did indeed file for divorce. During the pendency of those proceedings, Mr. Levick filed a pleading asserting that the marriage was void ab initio because of the difference in the dates on the register. This, as you will readily understand, makes a great deal of difference to the parties: If there was no marriage, then there’s no basis for the marital agreement, and the ostensible husband will save himself a lot of coin.

The circuit court ruled in favor of Mr. Levick, ruling that he wasn’t a husband at all. The Court of Appeals sort-of affirmed, holding that the marriage was voidable, not void. It still ruled in favor of Mr. Levick.

Today, a sharply divided Supreme Court reverses and remands. The majority finds that while this arrangement may be novel, it isn’t absolutely forbidden by our marriage statutes, and in that context, Virginia’s strong presumption in favor of marriages compels the conclusion that the parties were an actual husband and an actual wife; nothing putative about it.

I am not accustomed to giving orders. I’m outranked at home, where The Boss can outvote me, 1-1. Here at my office, when my legal assistant tells me I have to do something, I do it; I know what’s good for me. But I beg your leave, my dear readers, to issue an order to you, here and now: If you have even the slightest intellectual curiosity about the law – and I presume that you do, or else you wouldn’t have this site bookmarked – you MUST, thou SHALT, read this slip opinion, including the dissent. Justice Kelsey writes for the majority and Justice Powell pens the dissent. Both are fascinating pieces of reading, with each side firing legal volleys in what brought to mind for me an 18th Century naval battle between frigates. Each side has several convincing points to make. I won’t prejudice you; go click on the link above, read it, and see where your sentiments lie. I thoroughly enjoyed the experience, and so, I confidently predict, will you.

ANALYSIS OF OCTOBER 26, 2017 SUPREME COURT OPINIONS

(Posted October 26, 2017) Today is opinion day, but I’m on the road for a speaking engagement and won’t be able to post detailed analysis of the two opinions we received this morning from the Supreme Court of Virginia. I’ll post essays on them tomorrow. For now, here are the rulings:

Kalergis v. Commissioner of Highways is an eminent-domain appeal involving a seldom-used procedure after a condemnation: A mandatory buyback when the condemnor decides not to build after all. This opinion explores what happens when the value of the land changes over several intervening years.

La Bella Dona Skin Care v. Belle Femme Enterprises occurs at the intersection — or not — of fraudulent conveyance law and common-law conspiracy. The case also evaluates successor-entity liability.

*   *   *

Virginia’s eminent-domain statutes permit VDOT to acquire in advance a parcel of land when it contemplates a future road project. Once it acquires the property, it has 20 years to begin the work. If not, the original landowner has the right to reacquire the property for “the original purchase price, without interest.”

Since land generally appreciates in value, this can be a sweet deal for the landowner (or his or her heirs). True, he loses the right to use the property in the interim, absent some sort of possession agreement. But there are no real-estate taxes for the whole period, after which he gets to buy land at a fraction of its current value. How can you go wrong?

In Kalergis, we find out how it can go wrong. The gross parcel was 55 acres; VDOT bought roughly half of that in February 1994 for $1.1 million. Its appraisal valued the land at about $286,000 and the rest for improvements. Because VDOT had no use for the improvements, the landowner offered to buy them. VDOT agreed to let him take away what he could for $30,000. The parties shook on the deal.

The landowner removed several items from the property, but decided not to try to move the buildings. They were eventually demolished.

Let’s fast-forward to 2014. The landowner, well aware of the right of reacquisition, pounced shortly after the 20-year anniversary, demanding to reacquire the now-vacant land for $286K. VDOT wrote back, saying that under its view of the statute, the “original purchase price” was $1.1 million. Alternatively, it offered to accept the current appraised value of the property, $780,000.

The landowner went to court, seeking the benefit of what he perceived to be his statutory bargain. The trial court ruled in favor of VDOT. On appeal, the Supreme Court agrees, viewing the plain meaning of the statute. The landowner was asking the court to interpret “the original purchase price” as meaning “the appraisal value.” But that’s not what the statute says, and when the General Assembly wants to refer to an appraisal, it’s perfectly capable of doing that.

The landowner presumably can now buy the land back for $780K. Careful readers know not to weep for him, since he still winds up with a net gain of around $300K – leaving aside the time value of money, of course.

ANALYSIS OF OCTOBER 19, 2017 SUPREME COURT OPINION

(Posted October 19, 2017) The Supreme Court of Virginia hands down a single published opinion today, in an appeal involving a DUI-3rd conviction. Before I jump into the analysis, I’ll pause to mention that today is one of the signal anniversaries in our nation’s history. On this date in 1781, Colonial forces under George Washington accepted the surrender of the British army at Yorktown. Most people don’t know this, but the war continued to rage on for another year-plus before the Treaty of Paris ended the conflict in 1783. A great many soldiers on both sides perished after Yorktown.

Even so, most Americans perceive the Yorktown surrender as the climactic event of the war. It took on added significance for me when I discovered that at least one of my ancestors was present at the surrender: Jasper Cather, an immigrant from Ulster, served in the Virginia militia. He was my great-great-great-great-great-grandfather, and is my common ancestor with the author Willa Cather. October 19, 1781 must have been one of the greatest days of Jasper’s life.

Criminal law

The Court of Appeals of Virginia doesn’t overturn many criminal convictions, but last year it gave one appellant at least partial succor. We learn today in Commonwealth v. Leonard that that relief is short-lived.

Leonard had what we would agree was a bad stretch several years ago. He pleaded guilty to DUI charges here in Virginia Beach in 2010 and 2012. Just two weeks after the second incident, and before the second conviction, he drove drunk yet again; fortunately, the only victim was a mailbox. Police caught him in less than an hour.

At trial in circuit court on a DUI-3rd charge, the prosecutor handed up certified copies of the two previous convictions, both of which were based on guilty pleas. Leonard objected to the use of the 2010 conviction, claiming that at most he could be convicted of DUI-2nd. Here’s why:

When his second DUI charge – remember, that’s the one before this one – came for trial in GDC, Leonard succeeded in convincing the judge that his first guilty plea was invalid because he hadn’t been advised of his constitutional rights. That judge convicted him of a second DUI-1st offense. That conviction was later confirmed on appeal to circuit court. Leonard claimed that the invalidity of the first conviction was judicially established, so the prosecution was collaterally estopped from using it in this third case.

The learned trial judge wouldn’t bite for that, convicting Leonard of DUI-3rd while stating on the record that Leonard was “not credible at all.” (This is what we in the legal profession call “a bad sign.”) But Leonard had better luck in the CAV, obtaining a unanimous panel ruling that remanded the case for resentencing for DUI-2nd.

Since Leonard succeeded in the Court of Appeals, that gave the Commonwealth the right to appeal on to the Supreme Court. Today the justices unanimously reinstate the DUI-3rd conviction and sentence. Justice McClanahan’s opinion notes that, in criminal cases, collateral estoppel applies to findings of fact, not law. And the resolution of constitutional questions is a matter of law.

There’s more, and the hair-splitting involved will be scary even to appellate practitioners. The justices find that Leonard’s trial-court objection bars consideration of what he tries to argue on appeal. Behold:

Leonard did not argue in the trial court that the 2010 DUI conviction order was inadmissible because he was not advised of his rights prior to entering his guilty plea in the 2010 proceeding. Instead, he argued that the 2010 DUI conviction order was inadmissible in this case because it was ruled inadmissible in the 2012 proceeding.

That, in my view, is a very fine distinction. Even so, I agree that the Supreme Court got this decision right. Issues of law had better not be subject to collateral estoppel, or else individuals will have their own private set of laws, applying only to them.

There’s one interesting argument that remains on the table and will have to be adjudicated another day. The Commonwealth argued that the 2012 decision by the GDC judge, holding that the 2010 conviction couldn’t be used for recidivist purposes, was wiped out when Leonard appealed his second DUI conviction on to circuit court and got a trial de novo. The justices find it unnecessary to reach this argument, given today’s ruling.

I’ll add one last observation. This case took a long time to get to final decision in the Supreme Court. Here’s the remarkable timeline:

March 26, 2012 – Date of offense and arrest

June 4, 2012 – Grand jury indicts Leonard

April 22, 2013 – Bench trial (there had been four previous continuances)

October 22, 2013 – Sentencing (this is final judgment in a criminal case)

March 20, 2015 – CAV receives notice of appeal (Really? A year and a half?)

June 24, 2015 – CAV receives the record from the trial court (ditto)

September 29, 2015 – Writ granted by a single CAV judge

April 26, 2016 – CAV’s published opinion

May 24, 2016 – CAV denies en banc review

June 21, 2016 – Commonwealth notes an appeal

October 26, 2016 – SCV grants Commonwealth a writ

April 18, 2017 – SCV oral argument

October 19, 2017 – SCV opinion

The only explanation I can conceive for the 17-month delay between sentencing and notice of appeal is that there may have been an order allowing a delayed appeal. It has also, my careful readers will have noticed, been six months since the justices heard oral argument here.

*   *   *

But let’s not stop there. In addition to the one published opinion, the justices decide three appeals by unpublished orders. Let’s take a quick peek at those, at least to see what the rulings are.

In Hunter v. Thomas, the justices reverse a defense verdict in a personal-injury case and remand it for retrial. The assignments of error included the intriguing question whether a trial court can instruct a jury on simple negligence where the complaint alleges only gross negligence. The court leaves this issue, too, for another day, ruling instead that under the peculiar circumstances of this case (and they really are peculiar; trust me), the trial court should have granted the plaintiff’s motion (made during the trial) for leave to amend her pleading to include a simple-negligence claim.

I’ll add a note of warning here: Don’t assume that this means that any party automatically has a right to amend during trial. This ruling turns on a concession by the defense lawyer that led the justices to conclude that he wouldn’t have been prejudiced by the amendment. This is still a matter of the trial judge’s discretion. The noteworthy feature of this ruling is that the court today rules that the right to liberal amendments in Rule 1:8 constrains that discretion in this case.

Atkins v. A. H. Electric Contractors, Inc. stems from a mechanic’s-lien suit by a contractor who claimed that a homeowner hadn’t paid for repairs. It eventually morphed into a suit by the contractor to enforce a settlement agreement. The justices reverse a trial court’s decision to order the parties to renegotiate a settlement agreement. The original agreement had called for a third party to appraise needed repairs, but that third party declined to cooperate.

The justices rule today that the trial court erroneously ordered specific performance of a contract that still had an unfulfilled condition precedent; that claim is dismissed with prejudice. Today’s ruling also reinstates the homeowner’s counterclaim for trial. This case, too, also features an interesting but unadjudicated appellate issue: The homeowner asserted that the contractor didn’t have a license at the time it performed work, and claimed that that fact barred the suit. The justices consign this issue to the trial court for adjudication in trying the counterclaim.

One final point: The contractor didn’t file an appellate brief, so it wasn’t allowed to argue on appeal. That had to enhance the homeowner’s chances just a tad.

Finally, the justices reverse a criminal judgment and send the case back for resentencing based on impermissible contact with a juror, in Opaletta v. Commonwealth. The appellant raised two issues, one of which dies a familiar death: His lawyer waited too late to move for a mistrial due to the mistaken inclusion of a withdrawn charge in the jury instructions. When the mistake was discovered and the court admonished the jury to ignore it, the lawyer told the judge, “I’ll reserve my motion.” The jury then retired to resume deliberations, at which point the lawyer made the motion. That’s too late; once the jury-room door closes, objections like this are waived.

The defendant has better luck with his second assignment, involving a private conversation between the foreperson and the bailiff. This came to light only after the court had dismissed the jury. When the issue arose, the bailiff blurted out a description of the conversation, at which point the judge peremptorily announced, “I’m not granting a mistrial.”

Well, now. The defense lawyer never got around to moving for a mistrial, but the justices rule that this issue was preserved for review anyway. That’s because, under specific statutory language, the contemporaneous-objection rule can’t bite you if you have “no opportunity to object.” Since the jury was already gone, there was no way to timely correct what happened, and the judge’s announcement convinces the justices that he knew perfectly well what the motion would be.

The Supreme Court notes that in evaluating this issue, the Court of Appeals concluded that this second issue was harmless error, but the CAV used the wrong standard in doing so. This issue is of constitutional significance, since it impairs the Sixth Amendment right to counsel; that kind of mistake is presumptively prejudicial. The court thus remands the case for a new trial, limited to sentencing.

ANALYSIS OF OCTOBER 12, 2017 SUPREME COURT OPINIONS

(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?