[Posted February 18, 2016] Last week, in addition to the nine published opinions we got from the Supreme Court of Virginia, the court also resolved five cases by unpublished order. Some of those caught my eye; here’s a report on three of them.


Foreign attorneys

The language is right there – right there! – in Rule 1A:4(2), relating to practice by pro hac vice counsel: “Any pleading or other paper required to be served (whether relating to discovery or otherwise) shall be invalid unless it is signed by local counsel.”

And yet lawyers continue to miss this long-standing requirement. It tripped up the appellee in Harman v. Honeywell a couple of years back, resulting in a forfeiture of the appellee’s right to oral argument. (The justices eventually reversed, 7-0.) Last week it claimed another victim, in Sequel Investors LP v. Albemarle Place EAAP, LLC.

The underlying litigation almost doesn’t matter; this is a case about trespass to realty by incursion of storm water onto the plaintiff’s land. The trial court ruled in favor of the defendant, and the plaintiffs appealed.

In the trial court, the plaintiffs had been represented by two out-of-state attorneys, assisted by a Virginia lawyer. They prepared and filed a petition for appeal, but the only signature on the petition was one of the foreign lawyers. Evidently no one noticed that problem at the petition stage, because the court granted a writ and heard oral argument on the merits on January 14.

But someone was on top of it. Four weeks before the argument date, the appellee moved to dismiss the appeal, pointing out the defective signature and citing the jurisdictional requirement of a timely and rules-compliant petition for appeal. The appellants quickly moved for leave to amend their petition, citing Rule 1:9 (“Leave to amend shall be liberally granted …”). They claimed that the omission was a clerical error.

No dice. The court agrees with the appellee and dismisses the appeal. Petitions for appeal must be filed within three months of the date of judgment, and a filing that’s invalid – that’s what the statute calls it – won’t comply. Nor can the appellant get past this hurdle by calling this an amendment (which would presumably relate back to the original petition date) because, the court finds, you can’t amend something that’s invalid: “[T]here is no valid instrument pending before the Court to which the amendment can ‘relate back.’”

This last holding is very important and deserves your full attention. The court holds that a defect in a mandatory, jurisdictional filing cannot be amended where the defect renders the original filing a nullity. This isn’t the only circumstance where that can occur, so this holding isn’t limited to pro hac vice issues.

So who’s to blame here? I’ll repeat what I’ve said in other situations where foreign attorneys made a fatal mistake based on Virginia practice: it’s the Virginia attorney. His job was to ensure compliance with Virginia practice and procedure. If you’re asked to serve as local counsel, do not assume that your only obligation is to serve as a glorified babysitter; rules compliance is your job. If you’re not confident that you can fill that role, you need to decline the engagement, no matter how easy your outside counsel promise you your task will be.



In another instance of “it’s happened again,” Simms v. Van Son generates a reversal of a trial court who granted summary judgment in a tort case, ruling that the plaintiff was contributorily negligent as a matter of law.

Simms went to the US Post Office on Main Street in Emporia, but all six of the patrons’ parking spaces were full. She parked along the curb of the parking lot – lawfully, the Supreme Court assures us – and walked toward the building. As she was doing so, Van Son backed out of his parking space and hit her.

The configuration of the building and parking lot plays a significant role in this case; so much so that I understood the facts much better after I zeroed in on the site on Google Earth. For simplicity’s sake, I’ll mention that the post office had two doors – one in front and one to the side. Simms parked her car marginally closer to the front door, but she headed for the side door instead. In doing so, she walked across the parking lot’s travel lane. She was walking away from Van Son’s car when he hit her from behind as he backed out.

The trial court ruled that Simms was negligent as a matter of law because she was walking across a “highway.” If that seems odd to you, know that the defense seized on a curious subsection in the highway-definition statute: a “place used for purposes of vehicular travel … owned, leased, or controlled by the United States government.” Technically that definition applies to this situation, and Simms didn’t contest that this was a “highway.”

Reading between the lines, I sense that the justices were just as skeptical of this novel interpretation as you probably are; but they find it unnecessary to uncork that ruling. The court reverses the summary-judgment finding and sends the case back for trial. The justices hold that the negligence of the plaintiff, if any, was a jury question. What’s more, the fact that a plaintiff is negligent doesn’t bar her from recovery; her negligence must be a proximate cause of the injury. It must actually “contribute” to the damage. And a jury gets to decide that, too.

The court distinguishes other cases in which a plaintiff was held to be contributorily negligent as a matter of law, since those all involved “plaintiffs who were struck while jaywalking between intersections on busy streets.” In contrast, walking across a parking lot, with no indication that a car is coming, isn’t enough to take the case away from the jury.


Legal malpractice

The client in Dunavant v. Bagwell waited a tad too long to sue his former lawyer for malpractice in a personal-injury suit. That PI litigation ended with a defense verdict in 2010. The client sued his lawyer in 2014, but the trial court sustained a plea in bar based on the statute of limitations. That’s because the parties never signed a retainer agreement; the whole undertaking was oral.

The lawyer acknowledged that he had a form for retainer agreements, but he didn’t use one here because he had known the client for 60 years. If there’s no written contract, then it’s a three-year statute. This is looking like an easy decision, but the client has one more high card to play.

A few years ago the court decided an engineering-malpractice claim in which there was a written agreement, but the parties never got around to signing it. The court ruled that that agreement was still binding:

An unsigned agreement all the terms of which are embodied in a writing, unconditionally assented to by both parties, is a written contract … unless the parties have made [their signatures] necessary at the time they express their assent.

This is from Gerald T. Dixon Jr. LLC v. Hassell & Folkes, PC in 2012. But the Dixon decision had two parts: it ruled that there was indeed an enforceable contract, but that that contract still wasn’t in writing for statute-of-limitations purposes. (Justice McClanahan penned a particularly intriguing dissent back then on this last point.) The justices accordingly hold here that the client had three years, not five, to file suit, so the trial court properly dismissed the action.

Use of unpubs as precedent

So what use can lawyers make of these decisions? The court doesn’t have any rules that relate to unpublished orders, and there are no statutes that govern them. (The Court of Appeals, in contrast to the SCV, is obliged by statute to explain the reasons for each of its rulings. Hence the large number of unpubs in that court, and the court’s express disavowal of their precedential value.) How do you know what you can do with them?

Here’s my sense of things. First, you would be wise not to regard these as binding precedent, especially in the Supreme Court itself. Given the Court of Appeals’ express disdain for unpubs, I’d advise against citing them as authority there, too. But you can cite them as persuasive authority in both courts.

Usually the safer route is to look to the published opinions that are cited in the unpubs, and see if you can cite those for your principle. In most instances, that should serve you just as well.

In the trial courts, it’s a different story. If you have a killer unpub that’s on all fours with your case, the temptation will be overwhelming to cite it and dare your opponent to respond. So go ahead; cite it. If the case is that good, your opponent will probably fall back on the first port he can find in a storm: “Your honor, this is just an unpublished order. It doesn’t carry any weight.”

You can then give the following ominous reply: “All I can tell you, your honor, is that this is the way the Supreme Court views this issue. The appellee in this order argued just what Mr. Jones is asking you to do, and the justices unanimously reversed him and remanded the case.” Now, some trial judges might decide to tug on Superman’s cape in this way, but most of them are going to read what the SCV has to say, and take that as at least a cautionary indication.

Besides, if the result of a reversal really would be a remand in your case, you’re in a powerful position. Trial judges hate the R-word; once they enter final judgment, they never want to see the case again.