[Posted February 12, 2016] Remember that dizzying announcement I posted back in September, about the end of opinion days as we knew them? Well, you can forget it, at least for this month; today the justices go back to an old-fashioned mass release on a Friday. The court announces nine published opinions and five unpublished orders this morning.

It isn’t hard to guess why; the responsibility lies with the legislature, where warring factions are still unable to agree upon who’ll get the court’s seventh seat on a permanent basis. That means that Justice Roush’s interim appointment expires after today. It looks to me as though the court has accordingly cleared out all of its pending cases, so there won’t be a dispute as to her ability to participate, vote, and write opinions.

In case you’re wondering, the answer is that I don’t know if the court will go back to the Thursday rolling releases for future opinions. My best guess is that it will, and this will be a one-time aberration based on the exigency created by the petulance across Ninth Street.

Habeas corpus

This circumstance happens with some regularity: a criminal defendant pleads guilty on advice of counsel, and is convicted accordingly, sometimes of a lesser charge. The defendant later thinks better of his decision and files a habeas corpus claim, asserting that his lawyer advised him poorly. The issue in Smith v. Brown is whether, in evaluating such a habeas petition, a trial judge has to convene a hearing.

The immediate answer is that sometimes, the court doesn’t need a hearing. In those instances where the existing record suffices to enable the court to decide the merits, there’s no need to bring the petitioner over from prison. But what if he asserts grounds that are outside the court’s existing record?

Smith pleaded guilty to felony murder and drug distribution after a plea agreement. His lawyer had advised him orally, and later wrote a letter to summarize the advice and urge Smith to take a proposed plea deal. The letter stated that Smith was charged under Code §18.2-32 and noted that the plea agreement would allow him to be convicted of the lesser offense of manslaughter.

Importantly, the letter went over “the legal theories of concert of action, aiding and abetting and being an accessory before the fact.” But it said nothing of the elements of felony murder. In addition, the lawyer got the statute wrong; Smith was in fact charged under a different felony-murder statute (§18.2-33).

Smith’s habeas petition claimed that if he had known the res gestae elements of the crime he was charged with, he wouldn’t have pleaded guilty. The trial court dismissed his petition without a hearing, but today a unanimous Supreme Court reverses and sends the case back for evidence.

The key “outside the record” evidence here is likely to be a statement from the defense lawyer about what information Smith received by way of advice. If the advice was pretty much coextensive with the contents of the letter, then Smith would have a point, at least factually, and there’s no way for the trial court to know that without taking evidence.

Now, this victory may well turn out to be temporary. The last section of the opinion sets out the habeas court’s process and notes the formidable burden that Smith will have to shoulder in order to get relief.

Perhaps the highest-profile case released today is Blount v. Clarke, which has been a cause célèbre here in Tidewater for many years. The case implicates several basic premises of our lives: the weed of crime bears bitter fruit; be very careful when you take certain risks; be extra careful what you ask for; and be extra-extra careful when you choose your words.

In 2006, a 15-year-old named Travion Blount made a big mistake. He agreed with two pals (both of whom were over 18) to go to a house party and rob the people there. The trio didn’t get away with it; they were caught and prosecuted. Blount faced 51 felonies – no, I didn’t mistype the numeral 15; he had fifty-one charges. His co-defendants pleaded out, getting 10 and 13 years to serve. Blount, failing to appraise his risk wisely, elected to go to trial.

That was his second mistake. He was convicted on 49 counts and walked out of the sentencing hearing with a whopping six life terms plus 118 years to serve. Direct appeals got him nowhere.

Two years after his convictions, SCOTUS handed down Graham v. Florida, barring sentences of life without parole for juveniles who commit non-homicide offenses. Blount took that as an opportunity for habeas relief; he filed a petition but was stymied by the SCV’s insistence (expressed in Angel v. Commonwealth in 2011) that Virginia’s geriatric-release statute means that he didn’t have a life-without-parole sentence.

Well, if state court won’t work, you can always try the feds. Blount filed a §2254 habeas petition in US District Court. There, the Commonwealth moved to dismiss, arguing the same reasoning that had won the day in state court (based on Angel).

I need to shift cases for a moment here, and address yet another habeas petition in the US District Court here in Norfolk: LeBlanc v. Mathena. In a ruling that I think I can safely describe as sensational, the same district judge granted the petitioner’s habeas petition on identical grounds. (If I recall the language correctly, she wrote that reasonable jurists could not disagree that the SCV’s unanimous Angel opinion was dead wrong.)

While his federal case matured, Blount filed a request with the Governor’s office for a conditional pardon. He pointed to the wide disparity between his extraordinary sentence and the sentences imposed upon his adult colleagues. He asked for something on the order of 10-20 years.

Perhaps this was a way of hedging his bet, in case the federal case didn’t produce the kind of victory he was hoping for. But in asking for a conditional pardon, Blount inadvertently opened the door to a kind of relief that probably caused him to shudder. He wasn’t careful what he asked for.

The Governor issued an executive order. It recites Blount’s youth, the disparity in sentences, and “his complete criminal history and conduct while incarcerated,” and concludes, “I Robert F. McDonnell, do hereby immediately grant Travion Blount, a COMMUTATION OF SENTENCE, reducing his term of incarceration for a total of forty (40) years for his offenses. Pardon Granted: January 10, 2014.”

Forty years?! That’s not much better than the age-60 requirement for geriatric release! This wasn’t what Blount had asked for, by a long shot.

It gets worse: by eliminating the life sentences, the Governor may have mooted Blount’s federal habeas case – the one that seemed to be going quite well. He had to find a way out from this gift.

Blount analyzed Virginia’s constitutional framework for commutations and pardons, and saw a ray of hope. The Governor has the power to either commute sentences or pardon offenders. But by its terms, the Constitution of Virginia only allows the Governor to commute capital sentences. He can’t commute a sentence of anything less than death.

That means that this was, in fact, a conditional pardon – just what Blount had asked for. And Virginia law holds that where a Governor offers a conditional pardon, the inmate has the right to accept the conditions or refuse the pardon. Blount sought to refuse the pardon, so he could have his multiple life terms back.

If this sounds slightly backwards to you, I understand. It isn’t often you find an inmate who craves a whopping sentence instead of a lesser term of years. But Blount’s Graham claim depended on those life sentences; he needed them back.

The Commonwealth and the defense thus presented the district judge with the question of what, exactly, the Governor’s executive order amounted to. A pardon is one thing – traditionally, the elimination of the finding of guilt. A commutation is, in contrast, the substitution of one type of punishment (such as a prison term) for a different type (for example, a death penalty).

Since that question turns on state law, the judge agreed to ask the Supreme Court of Virginia – the same justices she had just publicly bench-slapped – to give her its view on the question. The SCV justices graciously agreed to decide the matter.

As is always the case with certified questions, the referring court phrases its legal questions, but the Supreme Court has the right to rephrase them as may be necessary to facilitate an answer. Today, a majority of the court (Justice Powell writes for the chief justice and Justices Goodwyn and Mims) begins by doing that.

There are two such edits, but the second one is the major news item: the district court had asked if the Governor’s executive order was “a conditional pardon or a commutation?” The majority rephrases that by deleting the word conditional.

Why would they do that? I’ll spoil the surprise – hey, this essay is long enough already – by telling you that the court rules that it was neither a conditional pardon nor a commutation, but was instead a partial pardon. Citing some very dusty Virginia caselaw, the court notes that a pardon “may be full or partial, absolute or conditional.”

The reasoning is simple: it isn’t a commutation because Blount hadn’t been sentenced to death. It wasn’t a conditional pardon because the Governor didn’t attach any conditions to it. But Virginia law, going back to the Nineteenth Century, allows governors to grant partial pardons, too – pardons that reduce the severity of a sentence without affecting the kind of sentence. And reading the document for what it says instead of how it’s titled tells the majority that this is what the Governor did.

Of course, he didn’t use exact language when he did so. In fact, in the same document, he calls his act a commutation and a pardon. That’s the last of our life lessons; if the order had stated that it was a partial pardon, we wouldn’t have needed this detour from Granby Street in Norfolk to Ninth Street in Richmond.

Since only conditional pardons require the inmate’s consent, the majority finds that the Governor effectively reduced Blount’s sentence – against his will, it seems – from multiple life terms down to 40 years.

I told you that the majority could command only four signatures, so that means we have a dissent. Justice Kelsey writes it, which means we’re in for a meticulous argument, accompanied by a history lesson.

He begins with no less a figure than John Marshall, who opined in an 1833 case that a pardon requires the consent of the inmate. That holding endured until Oliver Wendell Holmes swatted it aside nearly a century later.

Here in Virginia, the Attorney General opined in 1916 that a reduction of sentence from 90 days to 30 days is “in the nature of a commutation,” and if the inmate accepts it, it becomes a conditional pardon.

So you see, the Governor isn’t the only one using these terms too loosely. In that Nineteenth Century case, the current justices’ judicial ancestors faced the problem of what to do with a gubernatorial commutation of a non-capital sentence. That early court dodged a delicate question – whether the Governor was “ignorant of his constitutional functions, or that it was his purpose to transcend them” – by holding that a commutation that the inmate accepts “practically becomes the same thing as a conditional pardon.”

That’s nice, but it’s a perfectly open secret that Governors for generations have “commuted” non-capital sentences to shorter terms – Justice Kelsey refers to an exhibit showing over 1,600 such commutations – and no explosions have ensued. Upon reflection, that’s probably because no one was ever in Blount’s position; most other prisoners were happy to get a reduction in sentence. Only an inmate who wants to use a long sentence as leverage would fuss over whether the Governor who just shortened his sentence had the power to do so.

Justice Kelsey notes one other irony – there are many – in this case: The Commonwealth actually argued in favor of the position that the Governor has the power of commutation in non-capital cases, consistent with those 1,600 previous commutations. The majority rejects this approach, but gives the Commonwealth a victory anyway by “inventing” the concept of the partial pardon. The dissent believes that the court should enforce the Nineteenth Century decision and hold that the Governor’s action was a conditional pardon, and Blount has a right to reject it.

So, where does this leave the case? This opinion is a report to the federal court on what Virginia law is. Remember, on issues of Virginia law, the SCV is the court of last resort, so I think the district judge is bound by this ruling. (I haven’t researched this point, but that makes the most sense to me.) In that event, Blount’s federal habeas case is now moot, since only the prospect of a life sentence without parole can trigger the protection of the Graham doctrine. As of now, Blount is serving 40 years for his initial mistake.

Tort claims against the Commonwealth

Anyone who has ever fought a governmental-immunity battle against Aunt Virginia knows that the Commonwealth’s immunity is fierce. And the Attorney General defends that immunity vigorously. In Phelan v. Commonwealth, we get a new interpretation of one of the required elements for making out a claim under the State Tort Claims Act.

Phelan is an inmate in a state correctional center. She sustained a slip-and-fall injury and gave a timely notice to the AG, describing the injury and identifying the persons she regarded as responsible. She later filed suit against those two individuals and the Commonwealth.

During the course of the litigation, Phelan had to admit that her suit against the individuals was untimely, so she agreed to dismiss them. The Commonwealth pressed a different plea in bar, asserting that the notice of claim didn’t meet statutory requirements: it didn’t identify the agency that was claimed to be liable for the injury.

Now, everybody and his brother who reads the notice will conclude that the state agency is the Department of Corrections; she was held as an inmate, and the two named persons were DoC employees (one of them was an assistant warden). Even so, the Commonwealth insisted that in drafting such notices, you have to expressly name the state agency; you can’t rely upon even the most obvious inferences.

The trial court agreed with the Commonwealth, and today, so do the justices. By the language of the statute, a notice must “include … the agency or agencies alleged to be liable.” You have to comply strictly with the Tort Claims Act in order to claim its protection, and Phelan’s notice didn’t quite do that.

Easy lesson: If you file a VTCA notice, include the name of the agency, even if you think it’s perfectly obvious in context. Context won’t get it done.


Did you know that the assignment of opinions to a particular justice is by random draw? It’s true; the justices meet between sessions for something called “docket draw,” and they literally pick a number out of a hat – reportedly, it’s former Clerk David Beach’s hat – to see who’s assigned to write each majority opinion. There’s a description of that process in my handy-dandy copy of Tom Morris’s book on the history of the court, at page 72. That paragraph concludes with this passage:

Occasionally the justices do exchange responsibility for the writing of an opinion: for example, in cases where a justice is in the minority on a case that he has drawn, or for some reason is overburdened at the time. The subject matter of the case is almost never the basis for an exchange.

That statement is probably about as true today as it was when Prof. Morris wrote it in 1974. But I would be willing to wager the princely sum of three dollars and eighty-five cents, American money, that Chief Justice Don Lemons asked to swap for Environment Specialist, Inc. v. Wells Fargo Bank NW.

This is a case about the difference between ethics and professionalism. If you’re not sure there’s a difference, the chief justice can tell you all about it (and so can I, because I heartily agree with him on this point). In this case a lawyer got sanctioned by a trial judge for a lack of professionalism, even though there was nothing unethical about what he did.

The underlying suit is almost an afterthought – a mechanic’s lien suit over $24,000. Environment Specialist is an HVAC company that sued the owners of some property to collect what was due to it. As required by law, it also named Wells Fargo, which had a credit-line deed of trust on the property.

The plaintiff served Wells Fargo through the Secretary of the Commonwealth. As often happens with such service on large entities, the process reached a lawyer for the bank on the 21st day. That lawyer picked up the phone and called the plaintiff’s lawyer to ask for an extension of time to file the answer.

The plaintiff’s lawyer called his client, who apparently said, “Hell, no.” He called his new adversary and reported to her the bad news. She accordingly filed a motion for leave to file a late answer and noticed it for a hearing. The motion requested an award of fees and costs, but didn’t say on what basis fees could be awarded.

At that hearing, the judge granted the requested extension of time. He also ordered the plaintiff’s lawyer to reimburse Wells Fargo’s lawyer $1,200 for “fees and costs, payable within 30 days, to compensate her for having to go to court to get the extension. The lawyer paid the award under protest, and appealed.

In preparation for the appeal, the plaintiff’s lawyer prepared a written statement under Rule 5:11(e), since there hadn’t been a court reporter at the hearing. Wells Fargo’s lawyer objected to it, but for some reason, they never resolved it through the court; accordingly, there was no transcript and no written statement to support the appeal.

It didn’t matter. I’ve listened to the audio of this oral argument, and it was one of the most lopsided exchanges I can recall. The justices seemed willing to overlook the absence of a detailed record – and indeed they don’t fuss over it in today’s opinion – as they pepper Wells Fargo’s lawyer over what the plaintiff’s lawyer did wrong. Sure, it would have been the professional thing to do to agree to a short extension; but the client had given express directions not to agree. As the chief justice noted in the audio, disobeying a directive like that could get the lawyer a Bar complaint or a malpractice suit.

The court’s key ruling is that “[t]here is nothing in Code § 8.01-271.1 that gives a trial court authority to impose sanctions on an attorney for failing to voluntarily agree to an extension of a deadline for an opposing party.” The sanctions award is therefore reversed, and Wells Fargo is directed to reimburse the lawyer.

The opinion could have ended there; but this case wound up in the chambers of one of the most zealous advocates of professionalism of whom I’m aware, and the chief justice is not about to truncate this discussion. He adds several pages that explain the contours of professional behavior; he lists several organizations that dedicate themselves to promoting it; he notes that Virginia lawyers are particularly keen to practice in a civil, courteous way. Nowadays, new lawyers take an oath that includes a promise to demean themselves professionally and courteously.

But neither the Rules of Court nor the Rules of Professional Conduct can enforce professionalism, as contrasted with mere ethics. (Ethics is the minimum level of conduct that’s sufficient to keep the State Bar from yanking your license. Professionalism is a far higher aspiration.) Professionalism is “enforced” by the members of the bar (not the Bar) in their dealings with each other. We “enforce” it with shame and disdain for unprofessional conduct, and are quick to grant favors and other small courtesies to those who treat us well.

Now, then: the odds that the chief justice just happened to draw the right number for this case are easy: 6 to 1 against. Who wants to take me up on that $3.85?

Criminal law

Absolutely nothing goes right for the appellant in Herrington v. Commonwealth, an appeal of a drug charge involving intent to distribute. After being arrested, he went to a preliminary hearing, where the nice judge gave him a gift: He certified the possession charge, but found no probable cause for the intent-to-distribute component. That might have knocked some significant time off the potential sentence.

But a funny thing happened at the grand jury. That body went ahead and indicted him for the original charge, notwithstanding the judge’s ruling. If you don’t handle much in the way of criminal prosecutions, that might surprise you. After all, isn’t the judge’s ruling in effect an acquittal?

No, it isn’t. Jeopardy doesn’t attach anywhere in a preliminary hearing, since you cannot be convicted in that hearing. That means the prosecutor can ignore what happened at the prelim and seek an indictment on any charge he wants.

Herrington was tried and convicted, and raised several other issues on appeal, in addition to a failed motion to quash the indictment. The justices shoot each one down:

  • He loses his speedy-trial claim because the court finds that the time to prosecute him began to run on the date of the indictment, not on the date of the preliminary hearing six weeks earlier.
  • He loses his argument that the trial court denied him the right to represent himself, because actually, the court didn’t do that. On his scheduled trial date, his appointed lawyer had to back out. He asked to go ahead with the trial, representing himself, but the judge wanted to be sure the waiver of counsel was knowing and intelligent. He continued the case, appointed a new lawyer, and invited Herrington to consult with the lawyer before making a final decision on self-representation. On the new trial date, Herrington expressed his agreement to have the lawyer try the case.
  • He loses his challenge to a motion by the prosecution to continue the case for two weeks, to permit an FBI analyst to complete his work. The reason offered for the continuance was less than stellar, but the justices conclude that he suffered no prejudice, so the reason doesn’t really affect the result.

When Justice Kelsey sat down to write the court’s opinion in Vasquez v. Commonwealth, I imagine it was a painful process for him. It was excruciating for me to read his description of the crimes committed by Vasquez and his co-defendant (and co-appellant), named Valentin. Both were 16 years old when they broke into a college coed’s apartment and inflicted a couple of hours’ worth of unspeakable horror on her, repeatedly raping and sodomizing her, threatening her with a knife, and stealing her property – which is the least of their offenses.

The two assailants were caught shortly after they left the apartment, and displayed virtually no remorse; one mused openly that they perhaps should have gone ahead and killed their victim.

Tried as adults in circuit court, both defendants were convicted by a judge of thirty counts in all. The court eventually sentenced Vasquez to 283 years, with 150 suspended; Valentin got 148 years, with 80 suspended. You can do the math; unless they get relief from an appellate court, these guys will be leaving prison feet-first.

The Court of Appeals declined to intervene, but the Supreme Court decided to take a look at two issues. One issue was the sufficiency of the evidence to prove that the men entered the apartment while possessing a knife (as contrasted with the innocence hypothesis that they found the knife after they broke in). In my view, the court’s affirmance of that conviction is entirely predictable and correct. The real issue in this appeal is a constitutional one: Do a series of discrete sentences for specific terms of years amount to a life term, when added together they exceed the natural life span of the defendant?

That matters, because neither defendant received a life sentence for any of the 30 convictions. As stated above in the discussion of Blount v. Commonwealth, you can’t just come out and sentence a juvenile (at the time of the offense) to life without any hope of parole. The question here is whether Graham v. Florida applies only when there’s an express sentence of life imprisonment, or does it also apply where the sentence is effectively life?

This issue was left unaddressed in Graham, though Justice Alito’s dissent states (without being contradicted in the SCOTUS majority) that the decision did not extend to sentences for specific terms of years. Two federal circuit courts have ruled that the doctrine only applies to a true life sentence; one has come to the opposite conclusion, and has applied Graham to a “de facto life sentence.”

Five members of the Supreme Court today agree that neither Vasquez nor Valentin received a life sentence, so neither is covered by the sentencing prohibition in Graham. They decline the defendants’ invitation to extend the Graham holding to this for-years situation.

Two justices concur in the affirmance, but would take a different route to the destination. Justice Mims writes for Justice Goodwyn, and they agree that “the sentences are wholly appropriate for crimes as wantonly evil as those recited in the majority opinion.” (In case it isn’t obvious, so do I.) But these two justices believe that the Graham doctrine does apply to a de facto sentence of life without parole, as you have to admit a 133-year sentence is.

In the end, the concurring justices hang their hat on a different peg:

Nonetheless, our precedent precludes reversing the Court of Appeals even after applying Graham. In Angel v. Commonwealth, 281 Va. 248, 704 S.E.2d 386 (2011), this Court held that Virginia’s geriatric release statute provides the requisite meaningful opportunity for release based on demonstrated maturity and rehabilitation that Graham requires. Vasquez and Valentin will be eligible for such release.

And that brings us back to the issue left unaddressed in Blount: Will the SCV’s holding in Angel survive looming SCOTUS decisions?

The Commonwealth appealed the grant of habeas relief in LeBlanc, the case I mentioned above in the section on Blount. That appeal is still pending; it’s been tentatively calendared for oral argument in May. It’s eminently foreseeable that that appeal, or one like it (Virginia isn’t the only state with a geriatric-release program), will make its way to Washington in the next year or two.

I know better than to make bold forecasts about future SCOTUS decisions, but I think I can see which way the tide is running. Both Graham and the recent Montgomery v. Louisiana decision – which held that Graham applies retroactively – were 6-3 rulings, with Chief Justice Roberts and the Court’s liberal bloc joining Justice Kennedy’s majority opinion. Those justices aren’t backing off, and I doubt we’ve reached the high-water mark of juveniles’ victories in their war against life imprisonment. It wouldn’t surprise me if the Robes in Washington eventually rule that geriatric release isn’t sufficient as a “possibility of parole.”

Justice Mims’s concurrence in Vasquez mentions a set of statistics that add weight to this view. He points out that very few prisoners who apply for geriatric release actually succeed – on the order of 4%. He writes that unless that figure increases soon, “it may become increasingly difficult to maintain that geriatric release provides a ‘meaningful opportunity’ for release.” Both the majority and the concurring opinions commend this issue to the General Assembly. Perhaps the justices can see the writing on a wall on First Street in Washington.

Homeowners’ associations

No, no, no; stop scrolling down to the next section. Hold it. Don’t bypass Tvardek v. Powhatan Village HOA just because your practice doesn’t include HOA law. Paired with the court’s decision in Phelan v. Commonwealth above, this case emphasizes the importance of reading carefully.

I might occasionally annoy salespeople somewhat when they give me a contract to sign, and I actually take the time to read it first. “It’s just a form,” they sometimes say, in order to hurry me up. I usually reply with a good-natured smile, “I’m a lawyer, so I always read the fine print, because sometimes, I write the fine print.”

This is a case of an association that didn’t read the fine print in a statute. Okay, so it’s in the same font and type size as the rest of the Code of Virginia; give me some literary slack here. This association decided in 2008 to amend its bylaws to prohibit the scourge of its members actually renting out their homes. I presume there was a duly noticed meeting of the members, at which a supermajority (the relevant statute requires a 2/3 vote) agreed to impose the new restriction. Following the statute, the president signed a certification that that majority had approved the measure; the association recorded the certification in the land records.

In 2013, one homeowner decided he didn’t like the restriction. He had bought his home in 2006, and here the association had taken away a property right – the right to rent out his home – without just compensation. He filed a DJ action challenging the amendment.

The HOA was only too happy to reply with a special plea of the statute of limitations. The statute that applies to these challenges requires that you file suit within one year after the amendment becomes effective. The amendment and certificate were recorded five years before the homeowner sued, so this action was hopelessly late. The trial court agreed and pulled the plug on the case.

On appeal, the homeowner had a surprising argument: the amendment never became effective in 2008, despite the recordation. He contended that the association didn’t follow the language in the statute.

Fair enough; let’s compare what the statute requires with what the association recorded. Here’s the text of the statute; I’ll highlight the most relevant part:

Agreement of the required majority of lot owners to any amendment of the declaration shall be evidenced by their execution of the amendment, or ratifications thereof, and the same shall become effective when a copy of the amendment is recorded together with a certification, signed by the principal officer of the association or by such other officer or officers as the declaration may specify, that the requisite majority of the lot owners signed the amendment or ratifications thereof.

And here’s what the association recorded:

The undersigned President of the Association does hereby certify that this Amendment has been approved by a vote of two-thirds of the Class A votes in the Association, as evidenced by the results of the meeting at which the vote was taken, such evidence on file with the Association, as required by Section 9.2 of the Declaration.

You see the difference? The statute says the voting members have to do more than just approve the change; they have to sign it. Since this is a statutory requirement, it requires strict compliance, so the homeowner is right: that recorded certificate wasn’t sufficient to make the amendment “effective.” Since the SoL begins to run from the effective date of the amendment, the suit isn’t time-barred; the justices send it back for trial.

One other quick point: Justice Kelsey writes the unanimous opinion, and here again, he goes back to the history books to set out one foundation of the decision. These HOA restrictions are restraints on a landowner’s use of his property. Virginia law, drawing on the common law of England, views such restraints with skepticism, and any imposition of such a limitation has to adhere strictly to the terms provided by the legislature.

Construction contracts

Senior Justice Russell joins six of the regular justices to decide William H. Gordon Associates v. Heritage Fellowship. That’s because the circuit judge who decided the case below was Jane Marum Roush, and it wouldn’t do for now-Justice Roush to review her own case.

This one’s complex. (In the back of my mind, I find myself thinking again, Poor Justice Goodwyn; he always draws the unsexy cases with complicated fact patterns.) I will try to simplify it while mentioning the key rulings.

Heritage is a church that decided to build a new sanctuary in Fairfax County. It hired Gordon Associates, an engineering firm, to design one aspect of the plan – an underground rain-tank system that would draw off storm water. In most instances, property owners deal with storm water by building retention ponds – they’re called Best Management Practices, or BMPs for short – but I infer that this site didn’t have enough space to do that, so they decided to put the storm water in tanks located below a parking lot.

The engineer designed a system and gave the plans to the church. The church evidently said, “Looks good to me,” and signed it. The engineer submitted it to the county. After 2 ½ years of fussing, the county said okay.

The church gave the plans to its architect and its general contractor, which began construction in late 2009. The contractor had some questions about the tank system and asked the engineer for information about it; the engineer gave some basic information but left some issues unaddressed.

You’ve probably figured out what happens next: the contractor installed the tank system per the plans, but three months later, the tank system (and the parking lot above it) collapsed. That led to a new storm-water-control design, the removal and replacement of the tank system, and attendant construction delays.

As you’d expect, pretty soon everybody started suing each other. The church didn’t pay the full fee, and even held onto a $400K retainer, so the contractor sued. The church sued back for defective work. The church third-partied the engineer for anything it might owe the contractor. The church separately sued the engineer for the tank collapse. It also sued an inspection company that had been hired to supervise the installation of the tank system.

Speaking as a lawyer, isn’t it wonderful when clients get angry with each other? Even better when there are multiple angry parties?

The circuit court conducted a bench trial and found that the cause of the tank collapse was the engineer’s work. It gave judgment to the contractor and against the church for $900K, and gave judgment to the church and against the engineer for $500K (deducting the retainer, which the church still held). In the church’s direct suit against the engineer, the court hit the engineer for $570K in interest costs, as a form of delay damages.

That result made everybody except the engineer happy; he appealed and got a writ. The jurist I lightheartedly referred to above as “Poor Justice Goodwyn” gets to sort all this out today.

The first issue is a statute-of-limitations claim. The engineer noted that the church filed suit more than five years after he submitted the plans to the owner. But the court finds that a claim like this accrues when the plans are finally approved.

Remember that 2 ½ years of futzing around with the county over the tank plans? That means that the plans weren’t finally approved until 2009, so the church’s 2013 lawsuit was well within the SoL.

The next issue is whether the contractor was responsible by contract for the problem. The court finds that the problem was, as the trial court found, the engineer’s. Among other reasons, “The contract itself forbade [contractor] from making any design changes without [engineer’s] express written consent.” The evidence showed that the contractor built the tanks just the way the engineer designed them, so there’s no shifting of blame here.

I mentioned above that the church had sued an inspector who was supposed to be looking over the contractor’s shoulder. Those parties settled before trial for $200K, which the parties allocated to attorney’s fees only. This was no doubt done in order to avoid imposing an offset to the church against whatever it could recover from the other Bad Guys. But the justices rule (quite correctly, in my view) that it’s improper to allocate the settlement like that. The inspector got a release from the church’s attorney’s-fee claim, but also from the underlying liability claim. That release had to be worth more than zero dollars. The justices remand the case for a calculation of how much of the payment should be allocated to the liability claim; that sum will be deducted from the church’s recovery against the engineer.

Finally, the engineer seeks relief from that $570K award of interest as a form of delay damages. Here, the engineer finally hits paydirt.

The church had obtained a loan to build the sanctuary. It was interest-only during the period of construction, then principal-and-interest for the next three years to the final due date. The construction delays set the sanctuary’s occupancy back by eight months; but that didn’t affect the loan-payment schedule; it went off just as planned. The justices therefore reverse this substantial award.


It’s been a long, long wait for the litigants in Wetlands America Trust v. White Cloud Nine Ventures, an appeal that was argued in the September session and took 21 weeks to decide. This is a case involving a relatively rare creature that has very little interpretive caselaw: conservation easements.

If you don’t recognize the name of the appellant, you’ll surely recognize the organization it supports: Ducks Unlimited. The trust “holds conservation easements across the country and provided fiduciary support to” DU. In 2001, it received via deed of gift a conservation easement over a 400-acre agricultural site in Loudoun County. Back then, the property was used for normal farming purposes.

The owner of the tract divided it and sold half, called the Caeli property, to White Cloud. That entity planned to plant vineyards (still agricultural in my book), plus graze cattle and grow wheat. But the buyer’s plans went somewhat beyond that:

White Cloud further planned to construct a building on the Caeli property in which Chrysalis would operate a creamery and bakery, using the milk and wheat derived from the Caeli property. The building would also be used to store barrels of aging wine made from grapes grown on both the Caeli and Chrysalis properties. In addition, the building would include a tasting room and would be open to the general public for the sampling and sale of the Chrysalis wine and the Chrysalis cheese and bakery products produced on site.

The question in the ensuing litigation was whether those activities were consistent with the limitations imposed by the easement. The trust thought they went well beyond the kind of farming activities that were supposed to be frozen in time by the easement. A trial court agreed with the buyer, White Cloud, that these structures and uses were permissible.

On appeal, the Supreme Court evaluates the trial court’s rulings and affirms. There are several component rulings that won’t come as much of a surprise, but there’s one major issue that produces a split among the justices. That issue is probably why this case was of such interest by lawyers in this field.

The fulcrum of this appeal is the question of how the language in the trust should be construed in cases of ambiguity. There are actually competing principles here. For example, there’s the rule that deeds are construed most strongly against the grantor, to convey as much as can be reasonably discerned from the language. That’s based on the premise that as the person who drafts the deed, the grantor can be as careful as he wants in describing what he’s conveying. That interpretive rule would lead a court to construe the language of the easement expansively.

In the other corner, as we saw in the Tvardek case above on homeowners’ associations, restrictions on the free use of land are disfavored in the law, so they’re construed strictly. That would cause a court to interpret the easement narrowly, allowing the landowner greater freedom to do as it wishes.

A majority of the court decides to use the strict-construction approach. Justice McClanahan writes the opinion of the court, concluding that a conservation easement is “appropriately viewed as a form of ‘restrictive covenant or negative easement’ on the land it encumbers.” Using this lens, the majority goes on to examine the proposed uses and find them all to fit comfortably within the rights retained by the landowner. The court thus affirms the judgment, so the buyer gets to build its creamery, storage building, and visitor center.

Justice Roush (joined by Senior Justice Lacy) sees the lure, but won’t bite. She notes that Virginia has not just a set of statutes that encourage conservation easements; we have a constitutional provision that expresses a strong public policy in favor of conservation. In that light, she thinks it’s wrong to use a principle of strict construction to defeat that public policy. The dissent argues that the passage of the statute had the effect of nullifying strict scrutiny in deeds conveying easements like this, so the trial court should have to reevaluate the case without tiling the interpretive playing field.