[Posted November 2, 2009] On Friday, while I was away from the keyboard yet again, the Supreme Court handed down four orders in cases argued in June and September. A couple of them surprised me, at least a little, by being unpublished.

The court heard oral argument in June in Browning v. East, and passed the case on the September opinion day. I was expecting a published opinion this week, but the court disposed of the case by order instead.

This is a vehicular-collision appeal, but it really-most-sincerely isn’t your ordinary collision case. The driver of the only vehicle involved struck a stray cow on a dark country road one night. At trial, the defense offered a full set of contributory-negligence instructions, including the duty to keep a lookout. The defense argued that an ordinarily-attentive driver should have been able to see the cow standing in the road in plenty of time to avoid hitting it.

The jury bought that argument, and returned a defense verdict. The plaintiff then undertook the arduous chore of convincing an appellate court that contrib wasn’t a legitimate jury issue in this case. She argued that the only evidence about the collision in the record was from her – and she testified that she hadn’t seen the cow until it was 30 to 40 feet away. Given the statute that requires cars to have headlights that illuminate objects 350 feet away, and the fact that the driver had acknowledged in her deposition that she was driving 57-60 mph in a 55 zone (for shame!), the defense is feeling pretty good about its chances on appeal.

Get ready for a surprise or two. The Supreme Court reverses, finding that there really was no evidence of contributory negligence here. The driver’s statement about first seeing the cow – which was black, naturally – 30-40 feet away was unrebutted at trial. (The cow did survive the collision, but inexplicably was not called at trial to give her version of the events.) And the court notes that a table in the Code shows that stopping distances at 55 and 60 mph are 265 and 303 feet, respectively. Hence this less-than-egregious conduct really didn’t make a difference; she would have hit the cow whether she was driving 55 or 60 mph.

Accordingly, the court finds that the defendant had not proved a failure to keep a lookout, and that any speeding wasn’t the proximate cause of the collision. The court recently reaffirmed that even demonstrable negligence by the plaintiff won’t defeat a recovery unless it was a proximate cause of the injury. Moses v. SW Virginia Transit, 273 Va. 672 (2007). That means there’s no contributory negligence here, so the driver gets a new trial.

Unpublished orders really aren’t very useful as precedent (if the justices thought they were, then they’d be published). But in my experience, if you can hand a copy of such an order to your trial judge in an analogous case, you can make a forceful claim that “this is the way the Supreme Court sees this issue.” In such circumstances, most judges won’t care that the case isn’t in Virginia Reports; they’ll know that the court made this finding on these facts, and you’ll get your message across.

This decision really does answer one perplexing question about the issue of minimal speeding. Here’s the full text of the relevant statute:

§ 46.2-823. Unlawful speed forfeits right-of-way
The driver of any vehicle traveling at an unlawful speed shall forfeit any right-of-way which he might otherwise have under this article.

I have often wondered, in this 1%-contrib state we inhabit, whether an admission like this one, that the plaintiff was driving two mph over the limit, would be enough to deny her any compensation because she had “forfeited the right-of-way” by her awful (okay; the statute says unlawful; but I like my adjective better here) conduct. The answer, it seems, is no; not unless that excess speed was a proximate cause of the injury.

One final note: Justice Goodwyn dissents from this ruling, but doesn’t attach any statement of his reason why. Since the case was carried over in September, I infer that he made that request, but later decided against writing a dissenting opinion.

Real property
Lark v. Johnson contains the ominous phrase, “statement of facts in lieu of a transcript,” and thereby causes me to shudder. A written statement is sometimes necessary in emergencies (such as when the court reporter dies or his office is flooded, washing away all records of your trial), but generally it’s used when the parties decided upon the false economy of forgoing the reporter. [Serious advice to my loyal readers: Don’t be foolish! Hire the reporter! She could probably use the work, and you need to be able to sleep well at night.]

The case involves a claim by Johnson that she had a prescriptive easement over land belonging to the Larks, to allow access to Johnson’s parcel. The trial court was satisfied that Johnson had proved her right to the easement, using the same requirements to establish adverse possession of land, but the Larks (evidently acting pro se) got a writ on six assignments. Perhaps the case would have been decided differently on appeal had there been a transcript, but this ominous phrase portends the ultimate result, and the false economy I mentioned above:

On this record, it cannot be said that the trial court was plainly wrong or without evidence to hold . . .” (Emphasis supplied)

The court occasionally reverses judgments when the only representation of the proceedings below is a written statement; see McNally v. Rey, 275 Va. 475 (2008) for one example that I know readily. But appellants proceeding without a transcript are generally at a serious disadvantage, simply because it’s so easy to inadvertently leave something out of the written statement of the proceedings.

Criminal law
How rare are cases in which the appellate courts apply the ends-of-justice exception to the contemporaneous objection rule? Well, they come around more often than Halley’s Comet, but less frequently than presidential elections. In Hollie v. Commonwealth, the justices review the Court of Appeals’ refusal to apply the exception in a credit card theft conviction.

There isn’t much in the way of factual background here (as is often the case with unpublished orders), but the important stuff is procedural anyway. In this order, the court finds that the exception “is inapplicable to this case,” and then goes on to explain the kind of cases to which it does apply. When we get to a discussion at this level, you need to pay attention.

The order cites three appeals (since 1991, showing you how often this happens) in which the court has applied the exception. The circumstances of those three appeals were, in the court’s words, where “the appellant has been convicted of a ‘non-offense’,” to cases where “the Commonwealth’s evidence affirmatively shows his innocence,” and “cases in which a sentence has been imposed in excess of that allowed by law.” The court then notes that this appeal “involves none of the grave miscarriages of justice illustrated by those cases.” It’s plain-old trial error, and the appellant offered no excuse for the failure to make a timely objection, so the conviction is affirmed.

It’s tempting for lawyers to assume that the ends-of-justice exception and its cousin, the plain-error rule, are readily-available safety valves to get an otherwise-procedurally-barred appeal into the courthouse, as long as you ask nicely. No dice. While lawyers like to define plain error as “any ruling at trial that went against me,” appellate jurists are far more restrictive, and insist upon this “grave miscarriage” before they’ll can-opener a judgment that would otherwise be off-limits to review. Here’s a situation in which you get one chance to get it right, and to object on time.

Crawley v. Warden is a habeas corpus appeal. Those are technically civil cases, but I’m grouping it today in the criminal-law category. Crawley filed a habeas petition alleging the failure of the prosecution to disclose potentially-useful information in his prosecution for abduction and forcible sodomy. The complaining witness had insisted at trial that she didn’t have a boyfriend at the time of the offense. But way, way back in the transcript of a bond hearing, the prosecutor had stated on the record, “I actually spoke to the person she was dating at the time . . .”

Uh-oh. This matters, because Crawley’s defense was that this was a consensual encounter. His story was that he and the victim were having an illicit affair, and that she had therefore lied in order to prevent her primary boyfriend from learning that she was seeing a back-door man.

Of course, neither party had any corroboration of this story at the first trial, so any additional weight on either side of the credibility balance might weigh heavily in a jury’s mind. The Supreme Court accordingly reverses the trial court, which had refused to permit Crawley limited discovery on this point in the habeas case. Crawley will at least get to find out what information the prosecutor had about another boyfriend back at the time of the bond hearing. That doesn’t mean that he’s out, or that he will even get a new trial (the first one ended badly, with his receiving two consecutive 20-year sentences, with 21 years suspended). But he can now gather some ammunition with which to attack the validity of that first trial.

As all of these orders are unpublished, they won’t appear in Virginia Reports or on the court’s web site. If you want a copy of any of them, let me know, and I’ll pass it along.