[Posted November 22, 2008] The Supreme Court issued unpublished orders in two cases yesterday, both of which had been argued during the October session. In both cases, the results had promised to be of great interest, but the court decides both cases on procedural grounds without reaching what I had seen as the sexy issues.

The first case is Brown v. Brown, a partition suit in which the trial court had ordered that certain real property be sold, with the proceeds to be subsequently distributed among co-owners. One of the Browns noted an appeal as soon as that order was entered. Normally, you’d think that this appeal was premature; the Supreme Court generally only hears appeals from final orders, and the order directing the sale emphatically was not final. Remember, there still remained work to be done down in the trial court, specifically the entry of a subsequent order distributing the net proceeds.

But you can imagine the problem faced by the appellant – waiting until after the property was sold before appealing would irreversibly alienate the property, meaning that whoever purchased it would have to be made a party to this or subsequent litigation. It certainly would make sense to have appellate review of the order directing the sale, before the sale is carried out. The appellant looked closely at Code §8.01-670(A), and found something promising. That section provides that you can appeal if you’re aggrieved:

1. By any judgment in a controversy concerning:
(a) The title to or any boundaries of land,
. . . or,
2. By a final judgment in any other civil case.

The same statute separately provides that you can appeal an interlocutory ruling “Requiring money to be paid or the possession or title of property to be changed.” An order directing that land be sold seems to fit nicely within this classification.

In other words, what most people know as the finality doctrine isn’t the only way to get into the courthouse at Ninth and Franklin. (We’ll leave aside for now the certification of interlocutory issues for appeal under §8.01-670.1, which isn’t at stake in this case.) But the appellant observed that an order directing the sale of real estate emphatically concerned the “title to . . . land,” and that jurisdictional Code provision is in the disjunctive. That means that she didn’t have to wait for a final order.

I listened to the oral argument at the petition stage of this case, and immediately noticed the intriguing appellate issue here. Subsections (A)(1)(a) and (B)(2) have been there for a long time, but it would never occur to most lawyers that they can get a case before the Supreme Court that way. This case generated a significant amount of discussion at the Appellate Summit back in August, and I have been eagerly looking forward to the Supreme Court’s decision in the case. The fact that the writ was granted was at least a preliminary indication that at least one justice thought that this was a permissible way to present an appeal.

Alas; there will be no definitive pronouncement on this case. In yesterday’s order, the court notes that the buyer of the land has withdrawn his offer. At that point, according to the court’s reasoning, “the issue of the sale of the property . . . was rendered moot,” and the case no longer involved a controversy concerning the title to land, which had been the promise of subsection (A)(1)(a). The court also holds that the trial court’s order “did not confirm a sale of the property,” so it didn’t require that title to the land be changed. That ends the (B)(2) angle.

All is not lost for all you appellate-jurisdiction geeks out there; it’s still possible that the appeal could be reincarnated (well, actually, a brand-new appeal would have to be filed; but give me some poetic license here) if a new buyer appears, or if the trial court confirms such a sale. At either point, the appellant here could start again. My sense is that at that point, the Supreme Court would go ahead and review the case (assuming the appellant presents a plausible argument for reversal), confirming the availability of this type of appellate jurisdiction. The rationale for that is simple: Once title to land is actually conveyed, the process of putting Humpty Dumpty back together again will be messy and complicated. It certainly makes sense to me that the appellate review should be undertaken before the title changes hands.

Yesterday’s other order comes in the will contest case of Hatch v. Harley. The testatrix was declared by the Henrico Circuit Court in 2001 to be “incapacitated with senile dementia” and incapable of making a will. That didn’t stop her from signing one almost a year later. She died 4 ½ years after that, and the will was offered for probate in Richmond County.

Her widower filed a suit challenging the will, and the trial court found in his favor. I also got to see the oral argument in this case, this time at the merits stage three weeks ago, and it presented the intriguing question of whether the proponent of the will could offer evidence to support the testatrix’s mental capacity at the time she made the will. The trial court had entered summary judgment for the widower, based solely on the Henrico order, which had never been modified. In essence, it ruled that it was bound by the Henrico ruling, and until and unless that order was modified or vacated, no evidence of the testator’s mental capacity could change that. This seems to me to be an application of the collateral attack doctrine – if the proponent wanted to show that the testator was in fact competent at the time the will was made, he had an obligation to go back to the Henrico court to make that showing.

During oral argument, one of the justices asked the widower’s attorney whether it was possible that the testatrix could have had a “moment of lucidity” that would have made her perfectly capable of executing a valid will. It certainly is possible, I remember musing to myself at the time. In that event, shouldn’t the proponent of the will be permitted to offer competent medical testimony about her mental state on the day she signed? Going back to court in Henrico might well mean that the testatrix would miss the window of opportunity – she might have returned to senility before the court got around to ruling.

I’m not a probate lawyer, but this issue looked to me to be both thorny and interesting; I looked forward to getting the court’s ruling on the issue. But here again, the case is decided on a procedural landmine, and this time, the appellant’s attorney will have some ‘splainin’ to do to his client. The court dismisses the appeal as improvidently awarded (in effect, ruling that no writ should have been granted in the case) because of the way in which the appellant phrased the assignments or error.

The two assignments each refer to the trial court’s “judicially estopping [the beneficiaries] from denying the testamentary capacity” of the testatrix. In terms of its specificity, the recent bugaboo of appellants in the Supreme Court, this seems to be clear enough. But there is a subtle and, as it turns out, fatal error here. Judicial estoppel is invoked when a party takes one position in litigation, and then tries to assert an inconsistent factual position in other litigation. That is, you can’t sue someone and claim that the light was green, and then in another suit (or even later in the same suit) insist that it was red. If that happens, the court can rule that you’re estopped by your prior assertion.

I don’t know anything about the record from the original competency proceedings in Henrico. In all probability, the proponents of the will weren’t parties to that proceeding. If that’s the case, then the doctrine of judicial estoppel can’t apply to them; they didn’t take a factual position in the first litigation. But let’s assume for the purposes of argument that they were, indeed, the petitioners who sought a ruling of incompetence in Henrico. In that event, judicial estoppel could potentially bar them from taking this position.

The problem is that the trial court never made a ruling based on judicial estoppel. The only thing he said was that “we have a judgment of a Circuit Court in Virginia that says she is incapacitated. And until there’s some judicial determination to modify or change the order, it seems to me to be in effect.” In other words, the trial court was deferring to the Henrico ruling, affording it what would be called comity in an interstate context. That ruling wasn’t based on judicial estoppel and didn’t mention judicial estoppel. Accordingly, the appellants assigned error to a ruling that the trial court didn’t actually make. Because of that, the court rules that it is powerless to address the issues the appellants wanted to argue.

It occurs to me that this appellant may have taken to heart the Supreme Court’s early comment that “Judicial estoppel and res judicata are frequently used interchangeably and have the same significance.” Gilmer v. Brown, 186 Va. 630, 636 (1947). Indeed, if the assignment had referred to res judicata instead of judicial estoppel, then this case might well have been decided on the merits. But more recently, the court has taken pains to distinguish the two doctrines. For example:

“Essentially, judicial estoppel forbids parties from ‘assuming successive positions in the course of a suit, or series of suits, in reference to the same fact or state of facts, which are inconsistent with each other, or mutually contradictory.’ It derives from the prohibition in Scottish law against approbation and reprobation. The doctrine is often confused with the concepts of res judicata and collateral estoppel. However, the doctrine of judicial estoppel differs from both by the elements required for its invocation and its effect.”
Lofton Ridge v. Norfolk Southern, 268 Va. 377, 380-81 (2004).

So the appeal is dismissed, and the proponents don’t even get to try to show that the testatrix was sane, no matter how many psychiatrists are willing to testify as such. Sound harsh to you? Well, it probably is. But if you’ve been paying attention lately, you know that the court takes assignments of error very seriously. Experienced appellate attorneys know to take extra care when framing the issues for appeal; in the Supreme Court, those are contained in the assignments of error. If you get lazy or sloppy at this essential stage of crafting your petition for appeal, the consequences can be fatal for your client’s case.