[Posted July 29, 2011] The Supreme Court issues an unpublished order today in a case it had previously decided by published opinion. But the major news out of The Holy City today is that we finally – finally! – have a full complement of Supreme Court justices. The legislature has today elected Judges Elizabeth McClanahan and Cleo Powell, both of the Court of Appeals, to fill the vacancies created by the retirement of Justice Koontz and the passing of Justice Hassell. The elections are effective on Monday, August 1; the timing is such that the new justices maybe able to participate fully in the September argument docket.

The General Assembly also filled the two new vacancies on the CAV, elevating Glen Huff, a private practitioner down here in Virginia Beach, and Steve McCullough of the Attorney General’s Office to seats on the intermediate appellate court. I congratulate all four of these jurists and wish them success on their new benches.

In the meantime, the rest of the Supreme Court hands down Nunnenkamp v. Copenhaver, which had been decided in the March session. In March, the court reversed a judgment for the defendant, but it granted rehearing, and today it affirms.

The case is about rescission of a deed of gift, alleging undue influence. Originally, the issue as framed in the assignments of error was whether the statute of limitations should be two years (actions for fraud) or five (written contracts). The problem is that rescission is an equitable remedy, not a legal one. The proper time-based bar for equitable claims is laches, not the statute of limitations.

When you were in law school, you probably learned that equity (which “follows the law”) generally applies the same time frame as the statute’s provision in legal actions. But the analysis isn’t quite the same; laches requires delay plus prejudice, while the statute merely requires delay (the statutes essentially creates a conclusive presumption of prejudice after a specified period of delay).

What might have been an interesting discussion of whether there was prejudice in this case, turns into an abortive win for the appellee, because of an appellate pleading miscue. The appellant had argued for the application of a different legal period, but the proper analysis called for equitable principles. Since the appellant didn’t assign error to the court’s failure to apply laches, the Supreme Court reverses its previous ruling and affirms the judgment.

This is the second recent case in which an appellant’s choice of words in crafting assignments proved to be case-dispositive; the first is CNH America v. Smith, decided last fall, in which the appellant won the battle but not the war because it didn’t assign the right error. If you need another lesson about the care needed in this section of your petition for appeal, here’s Exhibit B.