[Posted September 22, 2008] Two recent orders from the Supreme Court, both unpublished, have me scratching my head a bit. The first is, in my view, a bit of welcome news: The court has granted rehearing in a case I wrote about in June, where the court dismissed an appeal for an insufficient assignment of error. The assignment read, “The trial court erred in granting [the appellee’s] motion for summary judgment.” (You can read my June essay here.) That assignment is indistinguishable from the one on which the court granted a writ, and reversed, in a 2006 case, and signaled a clear change in the court’s thinking about the wording of assignments.

I have now learned that, on September 19, the court granted rehearing and reinstated the case on the docket, so the case can be decided on the merits of the petition instead of on a truly hidden procedural default. I will probably never know the precise reason why the court did that, but here is my best effort at reading the tea leaves.

First and foremost, I do not believe that this represents a retreat from the new position taken by the court on assignments. That ship has sailed; appellants must craft their assignments of error with more detail than appellate practitioners have been accustomed to seeing in years past. If you ignore this advice, you face a dismissal and a possible Bar complaint.

Second, my best guess is that the court felt that this change, having been imposed with no advance notice, was simply unfair to this lawyer, who was probably facing that very Bar complaint for doing what he had reason to believe was safe. But unquestionably, the word is out now, and future appellants should not count on such a boon from the court. Heed the advice in the immediately preceding paragraph.

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The second ruling has me baffled. In Odaris v. Morton G. Thalhimer, Inc., the court issued an order on September 12 that reversed a judgment in a toxic mold case filed against the leasing agent for a landlord. The tenant had sued the named appellee, “d/b/a Insignia Thalhimer, d/b/a Riverpoint Apartments.” But it never sued the owner of the building (and hence the true landlord), Riverpoint, L.C. (According to the order, Thalhimer “has an interest” in Riverpoint, L.C., but I don’t know how big that stake is.) The use of the “d/b/a” (for “doing business as”) clearly indicates to me, at least, that a single corporate defendant is targeted by the complaint, so the real landlord is not being sued.

That matters, because Thalhimer is a disclosed agent of the landlord, and the Virginia Residential Landlord and Tenant Act provides for an award of attorney’s fees against the landlord; according to the appellate pleadings, it doesn’t permit the recovery of fees from a disclosed agent. (The court neither confirms nor rejects this contention in the order.) Against this backdrop, the following language appears in the order:

“Contending that the landlord was never properly made a party to the cases, Thalhimer asserts that no award of attorney’s fees is permissible against it under the VRLTA as a mere agent. We disagree with Thalhimer’s premise that the landlord is not a party to these cases.”

Given the way the suit was styled, that came as a surprise to me. I then read on, and got an even bigger shock. The court finds that the conduct of Thalhimer’s counsel in the case, in saying that it represented “the landlord” as a defendant, and in proffering jury instructions that addressed the liability of the landlord, were sufficient to make the landlord a party to the proceedings in the trial court. The Supreme Court also cites a colloquy below in which Thalhimer’s lawyer noted that the original pleading “has since been clarified to reflect two separate entities,” although there had been no formal order entered to separate the matter into claims against two corporate defendants.

In commenting upon this, the court calls Thalhimer’s lawyer on the carpet for essentially misleading the plaintiff and the trial court into believing that the correct defendant was actually before the court. But both the plaintiff and the trial judge must have known that no formal steps had been taken to bring in an additional party. And since a circuit court speaks only through its written orders, everyone in the room must have known that the landlord had not been made a party to this suit.

Why is this a big deal? It’s because I know of only four ways in which a person or other entity can be made a defendant in a lawsuit. By far the most common method is for the plaintiff to name a defendant in the complaint, and for that defendant to be properly served with regularly issued process. The second is where a named defendant enters an appearance in a case without being served with process. The third is where a prospective defendant files a motion to intervene in existing litigation in which the intervenor is not a party. And the fourth is by order under Code §8.01-5 or -6 (either of which presumably would be followed up with the issuance of process against the new party).

And folks, as sports writer Tony Kornheiser is fond of saying, “That’s it; that’s the list.” But now, our Supreme Court has created a fifth means of being added as a party to litigation. For lack of an established term, I’ll call it “joinder by estoppel,” where a person or entity is estopped from denying that it is a party, and is thereby brought into the litigation.

But there’s a problem even with this idea: The true landlord is held to be estopped by the actions of someone else’s lawyer. That is, the leasing agent’s lawyer is held to have made representations that misled the plaintiff (let’s leave aside for now my observation, above, that the plaintiff had to know that the landlord hadn’t been properly joined), and thereby brought a stranger into the litigation. Suppose the lawyer had led the plaintiff to believe that Exxon/Mobil, or Microsoft, or the United States, was in the case by agreement?

This ruling is, in my view, analytically indefensible. The court points to one 1997 case in which it ruled that a litigant has a duty not to mislead a plaintiff into thinking that the “true” defendant is in the litigation. But in that case, the plaintiff found out about the problem before trial, and moved the trial court (presumably under §8.01-5) to file amended pleadings naming the proper party; the trial court said no, thereby committing reversible error. In Odaris, there was, as far as I have been able to determine, no motion ever made to join the landlord, and I saw no assignment of error over the failure to add it below. This ruling simply comes out of the blue, as Odaris never asked the Supreme Court to find that the landlord really was a party to the suit.

So, will future litigants be subject to involuntary joinder by the acts of another defendant? The answer is, well, a good solid maybe. This decision was announced by unpublished order, so you won’t find it in Virginia Reports. (As usual, if any of my readers want a copy, contact me and I’ll send it along.) But a plaintiff could probably convince a trial court to rule that the square dance has grown in size, simply by handing this order to the judge in a proper case, and asking to be given another defendant without going through the rigors of securing issuance and service of process.

In sum, this is an extremely troublesome ruling, where the court has acted equitably, but decidedly not legally. No, I am not saying that what the court did was illegal; I mean that in the sense that the court has made a ruling based on what it perceives is the fair thing to do, instead of what legal requirements would strictly dictate. Perhaps this will matter only to civil procedure geeks (hey, even we procedure geeks need love, too), but in my view, this is a stunning ruling that flies in the face of the way courts are supposed to do business.