Post on 19-Aug-2018
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Supreme Court of Virginia
Review of Civil Cases
June 2013 – April 2014
Prepared by:
Staff Attorneys
Office of the Executive Secretary
Jason Hilton
Marshall-Wythe School of Law
Second Year
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ATTORNEY
Professional Responsibility…. …………………………………………………..……….……4
ATTORNEY DISCIPLINE
Interest in Real Estate…….……………………………………………………….…….……..5
CITIES, COUNTIES, AND TOWNS
Land Use………….………………………………………………………………………..….…..6
Real Property…………..………………………………………………………… … ….. .…….7
Zoning........................................................................................................ ….....................7
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CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS
Burden of Proof………………………………………………………………………….….……9
CONSTITUTIONAL LAW
Taxation…………….………………………………………………………………….….………9
CONTRACTS
Arbitration Provisions ..…………………………………………………..……………………10
Conspiracy……………….………………………… .…………………… .…………….……..10
CORPORATIONS
Charitable Immunity……………………………………… .…………….…………………....12
EMPLOYMENT LAW
Practice and Procedure...…………………………….…………………….…………………..13
FIREARM RIGHTS OF CONVICTED FELONS
Restoration of Firearm Rights…………………………………….…………………………..13
GARNISHMENT
Breach of Lease……..……………………………………….……..………….………………..14
HABEAS CORPUS
Jury Instructions…………………………………………………………………….………….14
MENTAL HEALTH LAWS
Involuntary Commitment Proceedings………………………………………………………15
PERSONAL INJURY
Statute of Limitations………………………………………………………………….……….16
PRACTICE AND PROCEDURE
Demurrer………………………………………………………………………………….……...16
Demurrer………………..………………………………………………………………………..17
Procedural Default…..……………………………………….…………………………………17
Sanctions………………………………………………………………………………………….19
Standing…………………………………………………………………………………………..20
REAL PROPERTY
Deeds………………..…………………………………………………………………………….21
Deeds……………………………………………………………………………………………...22
Easements…………………..……………………………………………………………………22
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Easements……………………………………………………………………………………..23
Express Easement.………………………….………………………………………………..24
Permanent Injuction………………………….……………………………………………...25
Real Estate Cooperative Contract Dispute…….…………………………………………26
Unsubdivided Parcels……………………………….……………………………………….27
RES JUDICATA
Final Judgment on the Merits......................................................................................28
TAXATION
Real Estate Transfer Taxes…………………………………………………………………29
TORTS
Defamation……………………………………………………………….…………………....30
Inference, Implication, or Insinuation……………………………………..……………...31
Medical Malpractice ………………………………………………………………………..32
Negligence……………...……………….…………………………………….……………….33
Remittitur of Punitive Damages……..………………………………………………….....34
Sovereign Immunity…………………………………………………………………...……..35
VIRGINIA FRAUD AGAINST TAXPAYERS ACT
Wrongful Termination.……………….………………………………………………………36
VIRGINIA FREEDOM OF INFORMATION ACT
Academic Research..………………………………………………………………………….36
VIRGINIA MARINE RESOURCES COMMISSION
Preemption …………………………………………………………………………………….37
WILLS, TRUSTS AND ESTATES
Breach of Contract to Make a Will………………………………………………………….37
Contracts………………………………………………………………………………………..38
Descent and Dirstribution of Intestate Estate……………………………………………39
WORKER’S COMPENSATION Statutory Employer……………………………………………………………………………….40
ZONING
Billboards……………………………………..…………………………………………………..41
Variances………………………………………………………………………………………….42
Variances……………………….………………………………...……………………………….42
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Attorney
Professional Responsibility
Livingston v. Virginia State Bar
286 Va. 1 (2013)
This is an appeal from a disciplinary hearing, which asks whether an
attorney violated Rules 1.1, 3.1, and 3.8(a) of the Virginia Rules of
Professional Conduct. Livingston was an Assistant Commonwealth’s
Attorney and the Charge of Misconduct arose out of his prosecution of Collins
for drug-related offenses. Collins was arrested after he purchased imitation
Oxycontin from an undercover police agent. Livingston originally obtained
two indictments against Collins, one for possession with intent to distribute a
controlled substance, and possession with intent to distribute within 1,000
feet of a public school. Collins sought dismissal of the indictments. The trial
court asked for memoranda addressing whether Collins could be guilty of
possession with the intent to distribute a controlled substance if he was
unaware that he possessed an imitation substance and whether or not the
Commonwealth had to prove Collins actually intended to distribute the
controlled substance within 1,000 feet of the school. Livingston, subsequently
sought to amend the first indictment to a charge of attempt to possess with
the intent to distribute a controlled because Collins did not actually possess
Oxycontin, but an imitation substance. This motion was denied on a finding
that it was untimely, but allowed Livingston to reindict Collins. Livingston
did choose to reindict Collins and charged that Collins “did manufacture, sell,
give, or distribute an imitation controlled substance.” Collins moved to
dismiss the third indictment and Livingston never moved to amend the
indictment to charge possession with intent to distribute leading the trial
court to dismiss the third indictment. Livingston appealed the dismissal, but
his appeal was dismissed because he failed to file a timely petition. The Bar
then issued a charge of misconduct alleging Livingston was incompetent in
his representing his client violating Rule 1.1, maintaining a frivolous
argument when he objected to the substitution of the words imitation
controlled substance for marijuana violating Rule 3.1, and he obtained an
indictment not supported by probable cause violating Rule 3.8(a). The district
committee found that Livingston had violated all three rules and imposed a
public reprimand with terms forcing Livingston to complete an additional two
hours of Continuing Legal Education on ethics.
The Supreme Court affirms the committee’s determination that
Livingston violated Rule 1.1, reverses the finding of violations of Rules 3.1
and 3.8(a), and remands in order to find an appropriate sanction for the
single violation of Rule 1.1. Rule 1.1 requires a lawyer “provide competent
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representation to a client”. The Court finds there is clear and convincing
evidence to show Livingston did not provide competent representation
because he failed to analyze the evidence and elements of the charges and he
never checked the accuracy of his third indictment, which his staff prepared.
The Court finds that there is not clear and convincing evidence that
Livingston maintained a frivolous claim because the he did not oppose the
dismissal order, but opposed the wording contained within the order.
Livingston did not want the third indictment to be dismissed for collateral
estoppel and double jeopardy, which may have happened if the order
dismissing the second indictment was allowed to keep the language
“imitation controlled substances” rather than the “marijuana”. Livingston
was further justified in this belief because the trial court supported his
position and amended the order using Livingston’s proposed language. Rule
3.8(a) holds a prosecutor may not bring an indictment against an individual,
which is not supported by probable cause. The Court accepts Livingston’s
argument that he did not violate Rule 3.8(a) because he did not have actual
knowledge that his third indictment was not supported by probable cause.
The erroneous indictments were caused by Livingston’s negligent and could
provide evidence he violated Rule 1.1, but does not constitute clear and
convincing evidence he violated Rule 3.8(a).
Attorney Discipline
Interest in Real Estate
Kuchinsky v. Virginia State Bar
___ Va. ___ (April 17, 2014)
This case involves an appeal of right from an attorney disciplinary
proceeding. The attorney was charged with violating Rule 1:8 by acquiring
an ownership interest in a client’s property that was the subject of the
representation, Rule 8.4 for knowingly violating the Rules of Professional
Conduct, and Rule 3.4 for knowingly disobeying a ruling of a tribunal by
continuing to pursue his ownership interest in the client’s property after
receiving an admonition from the Virginia State Bar.
The Virginia Supreme Court upheld the panel's finding that the
attorney violated Rules 1.8(a) and 8.4(a) of the Virginia Rules of Professional
Conduct by acquiring an interest in his client's real property through a
Special Commissioner’s deed, by asking that the Special Commissioner
record the deed, and by pursuing a partition of the client's property once the
deed had been recorded. However, the Court held that the panel erred in
finding that the attorney violated Rule 3.4(d), because the Virginia State
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Bar’s prior private admonition upon which this finding was based did not
include terms requiring that the attorney either take or refrain from taking
any action. Accordingly, he could not knowingly disobey that admonition.
Cities, Counties & Towns
Land Use
Board of Supervisors v. McQueen
287 Va. 122 (2014)
This appeal concerns a compliance letter sent from a Deputy County
Administrator (“Thompson”) stating that McQueen’s property met the
requirements of a “permitted use by-right” local ordinance, which would
allow McQueen to develop a cluster subdivision on his property, was an
affirmative governmental act. McQueen wished to develop his property into a
cluster subdivision and took steps to comply with a local ordinance that was
later repealed. After the ordinance was repealed he wished to assert a
compliance letter sent to him by Thompson was an affirmative governmental
act within the meaning of Code §15.2-2307 giving him a vested right to
develop his property as first specified by the local ordinance. McQueen is
seeking declaratory judgment that he has a vested right to develop his
property.
The Supreme Court reversed the circuit court’s decision that McQueen
had a vested right to develop his property. The sole issue on appeal was
whether or not the compliance letter satisfied the significant governmental
act for the purposes of Code §15.2-2307. The Court agrees with the County
that Board of Supervisors v. Crucible, 278 Va. 152 controls the outcome of the
case. The compliance letter does not meet one of the enumerated government
acts under Code §15.2-2307, but because this list is not exhaustive it becomes
necessary to analyze the case law to determine if the letter is enough to be
considered a significant governmental act. The Supreme Court determined
that the letter is insufficient to give McQueen a vested right because it did
not affirmatively approve of McQueen’s development nor did it make any
commitment to the project. It only informed McQueen that his proposed plan
met the general standards for a cluster subdivision under the local ordinance.
The ordinance did not compel McQueen to seek the approval of Thompson
and it did not require her to issue the compliance letter. The Court therefore
reversed the decision of the circuit court and entered final judgment for the
County.
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Real Property
PKO Ventures, LLC v. Norfolk Redevelopment & Housing Auth.
286 Va. 174 (2013)
This appeal involves a condemnation proceeding which was challenged
by the property owner (“PKO”)who asserted that the housing authority
lacked the authority to condemn a piece of unblighted property in a blighted
area. In 1998 the Norfolk Redevelopment and Housing Authority (“NRHA”)
had its Hampton Boulevard Redevelopment Project approved by the Council
of the City of Norfolk. The circuit court rejected the claims of other property
owners within the redevelopment area in 1999 and 2009. It then allowed the
condemnation where the NRHA obtained the property from PKO for
$550,000.
The Supreme Court reversed the judgment of the circuit court and
entered final judgment for PKO. The parties in the case stipulated the
property in question was not blighted, and the relevant code provision is §1-
219.1. §219 restricts the authority of the NRHA to condemn property within a
blighted area but are not actually blighted themselves. This Code section did
not become effective until July 1, 2007 and it imposed a statutory time limit
for the NRHA to acquire property after July 1, 2010. This time limit did not
apply to the filing of the condemnation proceedings, but imposed a deadline
by which the NRHA would have had to actually acquired the property. The
Supreme Court also rejected NRHA’s claim that they had a vested right in
the property based on the decision in Marriot v. Harris, 235 Va. 199. This
case held there are no vested rights in the outcome of potential litigation. The
Supreme Court then overturned the circuit court and entered final judgment
for PKO.
Zoning
Board of Supervisors v. Windmill Meadows , LLC
287 Va. 170 (2014)
This appeal concerns the interpretation of provisions of Code §15.2-
2303.1:1 concerning per-unit cash proffers in zoning proceedings. Windmill
Meadows, HHHunt Corporation, and GS Stonehouse Green Land Sub LLC
(“The developers”) are all owners of land in James City County where they
were developing residential communities. Prior to June 10, 2010 sought and
obtained rezoning of their property, and as part of the application for
rezoning they agreed to make proffers to the County, which included per-
dwelling unit cash payments at certain stages of development. In 2010, the
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General Assembly enacted Code § 15.2-2303.1:1, which restricted the time
where the County could accept the cash payments after completion of the
final inspection and prior to the issuance of the certificate of occupancy for
the subject property. This statute went into effect June 1, 2010, and on
September 3, 2010, the Attorney General issued an opinion addressing the
effect of Code §15.2-2303.1:1(A) on proffer agreements made before June 1,
2010. The Attorney General opined, “to the extent the Act does not impair the
contract or vested rights of the zoning applicant… Code §15.2-2303.1:1(A)
applies to cash payment proffers formed before June 1, 2010”, so the locality
cannot accept cash payments until after the completion of the final
inspection. Despite all parties knowing about the existence of the statute and
the Attorney General’s opinion the cash payments were made to and accepted
by the County until May 18, 2011. The County then filed a complaint
requesting the court to determine that Code §15.2-2303.1:1 applied
prospectively and did not have any retroactive effect. The developers filed an
answer asking the court to determine that the statute did apply retroactively
and cross claimed for refund of any money collected by the County and
attorney’s fees and costs. All parties filed motions for summary judgment.
The circuit court denied the County’s motion for summary judgment, and
granted the developers motion for summary judgment awarding them
attorney’s fees and costs as well.
The Supreme Court affirmed in part, reversed in part and remanded to
determine if the developers are entitled to a further award of attorney’s fees
and expenses for the appeal. The Court held that Code § 15.2-2303.1:1 does
apply retroactively to proffers made prior to June 1, 2010. The word any
within the statute is crucial because it evidences the legislatures intent to
extend the restriction to all cash proffers regardless of when they are made.
The Virginia Constitution also limits the application of § 15.2-2303.1:1 by
restricting it to cases where it will not impair a contract or vested right of the
zoning applicant. The traditional focus of restricting laws to not apply
retroactively is meant to protect private parties from the government. Code §
15.2-2303.1:1 also does not conflict with any other portions of the Code
because it only limits the time in which a locality can demand and accept
payment of cash proffers. It does not prevent a locality from taking steps to
enforce the proffer if that locality has come to be being under both the
requirements of the Code and the proffer. The final question before the Court
was whether any of the parties challenged an administrative action that was
in conflict with the Code in order to determine if an award of attorney’s fees
was appropriate. Based on the Court’s holding in Mozley v. Prestwould Board
of Directors, 264 Va. 549, there was statutory authorization for the court to
award attorney’s fees to the developers if they challenged an administrative
action in conflict with the Code. The Supreme Court went on to reject the
County’s argument that there was no administrative action because they
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were accepting voluntary payments, ruling there was no error in the ordering
of attorney’s fees to the developers. The only portion of the circuit court’s
order that was reversed was one giving Williamsburg Landing, a nursing
home that also challenged the acceptance of cash proffers, attorney’s fees
because they conceded they were not challenging an administrative action.
Civil Commitment of Sexually Violent Predators
Burden of Proof
Gibson v. Commonwealth
__ Va. __ (April 17, 2014)
This case answers the question of whether, once the fact finder has
determined that a respondent is a sexually violent predator, the burden of
proof remains with the Commonwealth to establish by clear and convincing
evidence that no suitable less restrictive alternative to involuntary secure
inpatient treatment exists, or whether the burden shifts to the respondent to
establish that he meets the statutory criteria for conditional release. The
Court clarifies that once the Commonwealth has made a prima facie case
showing that there is no suitable less restrictive alternative to involuntary
commitment, the respondent then has the burden to produce evidence to
rebut the Commonwealth's case by showing that the respondent meets the
statutory criteria for conditional release. This burden of going forward is not
the same as shifting the burden of proof to the respondent. The trial court
erred by requiring the respondent to bear the burden of proof to establish
that he satisfied the statutory criteria for conditional release.
Constitutional Law
Taxation
Elizabeth River Crossings v. Meeks
286 Va. 286 (2013)
The Virginia Department of Transportation (VDOT) contracted with
Elizabeth River Crossings (ERC) to build a third tunnel under the Elizabeth
River between Norfolk and Portsmouth. This new tunnel will help mitigate
serious traffic congestion. The total cost for completing the new tunnel was
estimated to exceed $2 billion. In order to finance the project, the contract
allowed ERC to impose tolls on both existing tunnels. These tolls would start
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in 2014 extend 58 years. Meeks and other residents filed a complaint against
ERC and VDOT alleging the tolls were a tax and that the General Assembly
of Virginia had unlawfully delegated its power to tax. They claimed ERC had
no authority to impose tolls. The trial court agreed, ruling that imposition of
toll rates was a legislative function and enjoined the collection of tolls.
The Court reversed. Tolls are not taxes, they are user fees, “…nothing
more than an authorized charge for the use of a special facility.” The tunnel
users will pay the tolls in exchange for a particularized benefit not shared by
the general public. The tolls will be collected solely to fund the new tunnel, as
well as to pay for improvements on the existing ones. This is not an
impermissible delegation of power. The General Assembly of Virginia may
delegate to state agencies, such as VDOT, the authority contract with private
companies so long as that agency has the ultimate control over the rates
charged. VDOT had authority to permit ERC to set and collect tolls.
Contracts
Arbitration Provisions
Schuiling v. Harris
286 Va. 187 (2013)
This is an interlocutory appeal concerning the validity arbitration
agreement where the specified arbitrator is no longer available. In 2007,
Harris was hired as a full-time, live-in housecleaner for Mr. Schuiling, and
the arbitration agreement was considered to be condition of her employment.
The entire scope of the agreement consisted of Harris’s agreement to submit
to binding arbitration for any dispute arising out of her employment, and
contained a severability clause. It also contained a specific provision calling
for the National Arbitration Forum (“NAF”) to exclusively administer the
arbitration. In 2011, Harris filed multiple tort claims, statutory violations,
and for breach of contract. Schuiling filed a motion to have arbitration
enforced, but was denied by the circuit court. The circuit court held that the
NAF being named the exclusive arbitrator was integral to the agreement,
and because the NAF was no longer able to serve their dedicated function,
therefore, the arbitration agreement was unenforceable.
The Supreme Court reversed and remanded finding NAF’s designation
as arbitrator was not integral to the agreement and was severable. The
crucial question for the Court’s analysis was whether the parties limited their
agreement by making it conditional upon NAF’s ability to serve as the
arbitrator. In order to answer this question the Court had to determine if
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NAF’s designation was integral to the agreement. The Court held the
language of the severability clause was such that it was designed to sever the
NAF clause if the NAF was not able to serve as the arbitrator. The entire
agreement was designed to do nothing more then require the parties to seek
binding arbitration over any disputes that rose in the scope of employment.
Finally, there was nothing in the clause, which meant to limit the authority
of the circuit court to appoint an alternate arbitrator in accordance with the
statutory preference that arbitration agreements be enforced. The Court
therefore reversed and remanded the case.
Conspiracy
Dunlap v. Cottman Transmission Systems
2014 Va. Lexis 33
Dunlap had operated two AAMCO transmission and repair facilities.
Another company that already owned a controlling interest in Cottman
Transmission Systems, a competitor of AAMCO, acquired a controlling
interest in AAMCO. Dunlap claimed the new owner sought to convert all of
Cottman’s franchises into AAMCO franchises. That decision resulted in
Dunlap’s franchises being closed. He claimed the closings were brought about
by a conspiracy between Cottman and others who stood to benefit from his
franchises’ closure. Dunlap filed suit in federal district court, where the court
dismissed the suit. On appeal to the Fourth Circuit Court of Appeals, they
certified two questions to be resolved by the Supreme Court of Virginia;
whether Dunlap could use the tort claims as the basis for a conspiracy
complaint, and what statute of limitations applies?
On the first question, the Court held tortious interference claims can
serve as the underlying basis for a conspiracy claim. The nature of tortious
interference arises from operation of law, either a statute or common-law.
The gravamen of Dunlap’s claim was that Cottman Transmission Systems
violated a common-law duty to refrain from impairing his right to have a
business. It sounds in tort, a wrongful act and not breach of contract. The
Court then ruled, on the second question, that the five-year statute of
limitations applied. The nature of the claimed damage is to property,
Dunlap’s property right to conduct a business and try to make money
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Corporations
Charitable Immunity
The Byrd Theatre Foundation v. David M. Barnett
2014 Va. Lexis 28
This appeal concerns the application of charitable immunity to an
ordinary tort case. The Byrd Theatre Foundation (“Foundation”) owns the
Byrd Theatre, a national historic landmark that houses a Wurlitzer theater
pipe organ. Barnett was a member of the Foundation’s organ restoration
subcommittee and was injured while working on the organ when a board
“gave way” causing him to fall. Following the jury trial, a jury rendered a
decision in favor of Barnett against the Foundation and the circuit court
entered judgment on the jury verdict. Prior to trial Foundation filed a plea of
charitable immunity arguing that Barnett was a beneficiary of the
Foundation at the time of his accident. Barnett is a pipe organ enthusiast
who consulted on and performed repair work for the Byrd Theatre pipe organ.
He volunteered to perform work on the organ when the subcommittee did not
have a technician under contract, but he volunteered because of his passion
to have the organ work properly. The Foundation argued that his
volunteering gave him access to pursue a long-time hobby of his. The circuit
court rejected this argument saying the Foundation’s charitable purpose and
by-laws are aimed at facilitating the charge of the performing arts by
providing a venue. Barnett was therefore not a beneficiary of the Foundation
and it denied their charitable immunity plea.
The Supreme Court affirmed the decision of the circuit court. It held
that the doctrine of charitable immunity is rooted in public policy grounds
that a charitable institutions resources are better suited to further its
purpose then to pay for tort claims. Charitable institutions are therefore
immune from negligence suits asserted by beneficiaries of the charity’s
bounty. The question is whether or not Barnett was a beneficiary of the
charity’s bounty. The Court decided that he was not a beneficiary because the
Foundations purpose was to cultivate an appreciation for the performing arts,
but this did not include providing theatre pipe organ enthusiasts the ability
to work on pipe organs. Its mission was to restore the theatre and its pipe
organ. The Foundation typically hired contractors to fulfill the work Barnett
was performing, and he only was allowed to work on the organ because there
was no contractor currently under contract with the Foundation. Even
though Barnett received personal satisfaction at volunteering his type to aid
the Foundation this was not enough to establish a “beneficial relationship”
between himself and the Foundation. Therefore, the Supreme Court affirmed
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the circuit court’s decision to deny the Foundation’s plea of charitable
immunity.
Employment Law
Practice and Procedure
New Dimensions, Inc. v. Tarquini
286 Va. 28 (2013)
This appeal determines whether a circuit court erred when it
precluded evidence related to the four defenses found in the federal Equal
Pay Act (EPA), 29 U.S.C. §206(d)(1). Tarquini brought an action against New
Dimensions alleging breach of contract, quantum meruit and a violation of
the EPA. New Dimension answered, but did not affirmatively plead any of
the defenses articulated in the Equal Pay Act. Instead, New Dimension
simply denied the allegation they had violated the EPA. Tarquini then filed a
motion in limine to prevent New Dimension from presenting any evidence in
defense to the EPA claim because of New Dimensions failure to plead any of
the affirmative defenses. The circuit court granted the motion and after trial
awarded Tarquini attorney’s fees and costs on her EPA claim.
The Court decides to reverse and remand the case. The Supreme Court
finds that the defenses within the EPA are affirmative defenses and in a
reverse-Erie analysis determines Virginia procedural law will apply in this
case. Under the Virginia procedural pleadings principles laid out in Monahan
v. Obici Med. Mgmt. Servs., 271 Va. 621, the main goal of the pleadings is to
prevent surprise and prejudice caused by unanticipated legal theories. The
defenses in the EPA are expressly listed in the statute thereby putting the
plaintiff on notice of the defense. As a result there would be no prejudice, and
New Dimension should not have been precluded from raising evidence
regarding its defense to the EPA claim.
Firearms Rights of Convicted Felons
Restoration of Firearms Rights
Commonwealth v. Leone
286 Va. 147 (2013)
Leone was convicted of a felony. Because of that conviction he suffered
certain political disabilities. The governor restored all of Leone’s civil rights
except his right to ship, transport, possess or receive firearms. Leone filed a
petition in the Circuit Court to have his rights restored. The Commonwealth
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argued that circuit court lacked venue to grant Leone’s petition because he
resided in North Carolina. The trial court granted Leone’s petition.
The Supreme Court of Virginia reversed. Leone resided in North
Carolina when he filed his petition for restoration in Virginia. The Code
requires a petitioner to file in the circuit court in the jurisdiction in which he
resides. Because Leone was not a resident of Virginia, the circuit court lacked
territorial jurisdiction to restore any of his firearms’ rights.
Garnishment
Breach of Lease
PS Business Parks, L.P. v. Deutsch & Gilden, Inc.
___ Va. ___ (April 17, 2014)
This is a garnishment case arising out of a default on a commercial
lease. The judgment creditor attempted to garnish several accounts held by
separate, but related, corporate entities. The account titled in the judgment
debtor’s corporate name was a subsidiary account, participating in a
“treasury management service” with a “zero balance account arrangement.”
Funds were held, primarily, in the master account, which was titled in the
name of a separate corporate entity, and drawn into the subsidiary account,
titled in the name of the judgment debtor, on an as-needed basis to
accomplish certain transactions on the subsidiary account.
The Supreme Court of Virginia held that the judgment creditor had no
right to possession of the funds in the master account because that account
was titled in the name of a separate corporate entity. However, the Court
held that the judgment creditor was entitled to the funds that passed through
the judgment debtor’s subsidiary account from the date the garnishment
summons was served until the return date on the garnishment summons
even though the subsidiary account maintained a zero balance pursuant to
the zero balance account arrangement.
Habeas Corpus
Jury Instructions
Dominguez v. Pruett
__ Va. __ (April 17, 2014)
The Court upheld the circuit court's denial of a petition for a writ of
habeas corpus filed by a defendant convicted of malicious wounding and
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robbery. Defendant asserted an ineffective assistance of counsel claim based
on his attorney's failure to object to a deficient jury instruction. While a
proper malicious wounding instruction would include the element of intent to
“permanently” maim, disfigure, or disable the victim, in this case the
erroneous instruction did not render the trial fundamentally unfair, and
petitioner’s claim for ineffective assistance of counsel failed to satisfy the
prejudice requirement under the governing standard. Petitioner failed to
meet his burden of proving that there is a reasonable probability that, had
the jury been properly instructed, the result of the trial would have been
different.
Mental Health Laws
Involuntary Commitment Proceedings
Paugh v. Henrico Area Mental Health
286 Va. 85 (2013)
This appeal concerns the circuit court entering an Involuntary
Commitment Order following a temporary detention order issued on March
19, 2012. Paugh had the temporary detention order placed on him after his
friend reported to police that he was suicidal and had written good-bye letters
to his daughters. She also believed Paugh was in possession of firearms.
Paugh then appealed the determination of the special justice to the circuit
court on a de novo appeal. The circuit court found that Paugh was a danger to
himself on March 19, 2012 and denied his appeal. The key question raised by
this appeal to the Supreme Court is what date a person has to meet the
requirements for involuntary commitment.
The Court reversed the circuit court finding and dismissed the
Commonwealth’s petition for involuntary commitment. The Court finds that
the plain meaning of Virginia Code §§37.2-814 through -819 is to allow the
case to be tried in the circuit court as if it had originally been brought there.
It noted that the proceeding before the circuit court is a “Petition for
Involuntary Admission for Treatment” and it is not a review of the lower
court’s decision. The General Assembly drafted this code section to provide
the circuit court the authority to order a new evaluation indicating that the
evidence should be viewed at the date of the circuit court hearing. The
Commonwealth conceded that there was insufficient evidence to commit
Paugh on the day of the circuit court hearing. The Court found the day of the
hearing to be the relevant day in the analysis, therefore, it overrules the
circuit court and dismisses the petition.
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Personal Injury
Statute of limitations
Sunday Lucas v. C.T. Woody, Jr., et al.
__ Va. __ (April 17, 2014)
In a suit for personal injuries allegedly sustained during confinement
in a city jail, the Supreme Court of Virginia is called upon to resolve whether
a personal action relating to the conditions of employment brought when the
person is not incarcerated is governed by the two year statute of limitations
of Code § 8.01-243 or by the one-year statute of limitations in Code § 8.01-
243.2. Applying the de novo standard to this purely legal question of
statutory interpretation, the Court ruled that Code § 8.01-243.2 applies to all
personal actions relating to the conditions of an individual's confinement in a
state or local correctional facility, regardless of whether the plaintiff is still
incarcerated when such action is filed. Thus, the circuit court did not err in
finding that this plaintiff’s state law claims, set forth in a complaint filed 16
months after her release from jail, were barred by that statute of limitations.
In addition, the circuit court did not abuse its discretion in refusing to grant
leave for plaintiff to file a second amended complaint, which sought to
reassert state law claims that the court had properly dismissed pursuant to
pleas in bar. The judgment of the circuit court is affirmed.
Practice and Procedure
Demurrer
Assurance Data, Inc. v. Malyevac
286 Va. 137 (2013)
This appeal concerns the circuit court sustaining a demurrer and
accepting Malyevac’s claim that a non-compete clause was unenforceable.
Malyevac and Assurance Data (“ADI”) entered into an agreement where
Malyevac would sell ADI’s computer products and services. A few months
later Malyevac resigned, and ADI subsequently filed a complaint alleging
that Malyevac was violating their agreement by selling products and services
in competition with ADI, engaging in other prohibited activities, and failing
to return confidential information. Malyevac filed a demurrer to the claim
stating that ADI had failed to state a claim because the non-competition
clause was overbroad and therefore unenforceable. The circuit court
sustained the demurrer stating the non-competition clause was invalid as a
matter of law.
17
The Supreme Court reversed and remanded the case. In a case of
determining whether or not a non-compete clause is enforceable, a court must
make the decision based on the facts presented on a case by case basis. The
employer does carry the burden of proving the non-compete clause is
reasonable to protect a legitimate business interest, but ADI should be able
to present that proof. By finding that the agreement was unenforceable as a
matter of law in sustaining the demurrer, the circuit court prevented ADI
from presenting evidence to show the agreement was reasonable under the
circumstances. The Supreme Court therefore reversed the circuit court’s
dismissal of the case with prejudice and remanded it back to the lower court.
Demurrer
Squire v. Virginia Housing Development Authority
___ Va. ___ (April 17, 2014)
In the appeal of a suit brought by a former homeowner after the
foreclosure sale of her home, the Supreme Court held that the trial court
erred in sustaining a demurrer to (i) the breach of contract claim against the
Virginia Housing Development Authority under the deed of trust and (ii)
breach of fiduciary duty claim against the trustee for their failure to hold a
face-to-face meeting prior to foreclosure. However, the Supreme Court did not
find error in the trial court sustaining demurrers against her allegation of
breach of contract under a forbearance agreement, appellant having failed to
meet conditions of that agreement. Since the appellant failed to plead
sufficient facts requiring the trial court to set aside the sale, it was not error
to sustain the demurrer to the rescission claim and to the declaratory
judgment claim that the purchaser was not a bona fide purchaser. Finally,
appellant’s failure to satisfy her legal obligations to the real party in interest
means that the trial court did not err in sustaining the demurrer to
appellant’s claim to quiet title. The judgment is affirmed in part and reversed
in part, and the case is remanded.
Procedural Default
Ferguson v. Stokes
__ Va. __ (April 17, 2014)
This adverse possession case involves a complex factual and procedural
history; however, the most significant legal aspect of the case is the way in
which it demonstrates procedural default of a substantive issue by the
appellant. The case involves an "oyster house" on a man-made island in the
18
Rappahannock River. In 1955 appellant got a permit from the Army Corps of
Engineers to build a causeway from his shoreline property out to the island.
He subsequently built this oyster house on the island and used it in his
business for many years eventually adding living quarters to the structure
and selling his shoreline property. In 1998 appellant acquired title to the
island and causeway via quitclaim deed. The Commonwealth owned the
bottomlands beneath the island and causeway. Purchasers of the property
adjacent to the island owned the land and all riparian rights appurtenant to
the shoreline. In 2006, the shoreline landowners sued appellant for
apportionment of riparian rights and damages for interfering with those
rights. The suit ended in a settlement in which appellant agreed to purchase
the shoreline property from the landowners. Appellant subsequently
defaulted on his payment for the property. The default on the terms of the
settlement resulted in a court order in 2010 holding that appellant owned no
shoreline property, had no riparian rights and that the bottomlands under
the island and the causeway were owned by the Commonwealth. On the basis
of this order, shoreline landowners sought to have appellant ejected from the
island.
Appellant filed a plea in bar of the statute of limitations and,
alternatively, argued that the ejectment action must fail because, pursuant to
Code § 28.2-1200.1(B)(2), he owned title to the bottomlands beneath the
island and the causeway. The circuit court dismissed appellant's plea in bar
on the grounds that it was waived by the mutual release in the parties
settlement agreement. The circuit court handed down three alternative
rulings for its judgment ejecting appellant, awarding his shoreline neighbor
fee simple possession of the oyster house and directing appellant to vacate
the structure.
Appellant only assigned error to two of the three alternative rulings
and thus waived consideration of the substance of the case on appeal. The
Court examined whether the unappealed ground for the trial court's decision
could singularly support the judgment. Finding that it could, without
evaluating the correctness of the trial court's decision, the most substantive
question on appeal is foreclosed from consideration.
Finally, the Court analyzed whether the oyster house is a fixture;
finding that it is, the Court upheld the decision ordering appellant to vacate
the oyster house.
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Sanctions
Shebelskie v. Brown
287 Va. 18 (2014)
This appeal concerns a circuit court sanctioning Shebelskie and Wright
under Code § 8.01-271.1. Shelbelskie and Wright represented Betty G. Brown
in a suit for the partition and sale of real property located in Richmond filed
by her husband, Larry Brown. After the litigation the circuit court confirmed
the sale and issued in order on April 26, 2011, directing Betty to close on the
sale of the property and pay all of Larry’s attorneys fees plus an additional
$12,500. Betty closed on the property of the sale in accordance with the April
order but did not submit any payment to Larry instead Wright suggested the
$12,500 be offset against the amount Larry owed Betty for the sale of the
property. Larry rejected this suggestion and two weeks later filed a motion
for a rule to show cause as to why Betty should not be held in contempt for
failing to comply with the April order. The court granted the motion and in
the Show Cause Response Brief, Wright argued that the order was not final
because it did not contain a specific amount owed or a due date. He also
argued the offer to offset was just a different form of payment and was
consistent with the April order. Shebelskie on the August 25, 2011 show
cause hearing argued that there was no final judgment because there was no
specified amount or a final payment date. As such it was an interlocutory
order and Betty could not be held in contempt. The circuit court concluded
that the reasons asserted by Wright and Shebelskie were not well grounded
in fact or law, and was not a good faith argument for the extension,
modification, or reversal of existing law and violated Code § 8.01-271.1. The
court then ordered “Defendant’s counsel” to pay Larry’s costs and attorneys
fees associated with compliance with the April order as a sanction for the
violation.
The Supreme Court reversed and dismissed the show cause rule. The
Court reviews a sanction using the abuse of discretion standard and employs
an objective standard of reasonableness when considering whether an
attorney could have formed a reasonable belief that the pleading was within
the boundaries of Code § 8.01-271.1. Shebelskie could not be sanctioned
under § 8.01-271.1 because he did not sign the Response Brief and he did
make an oral motion at the hearings. Shebelskie only presented an argument
and to find that this action violated § 8.01-271.1 would expand the word
motion beyond its normal meaning. As such the circuit court’s decision was
based on a mistake of law, and abused its discretion in sanctioning
Shebelskie. The sanction against Wright is also reversed because the circuit
court misstated Wright’s argument. The court characterized Wright’s
argument by saying that he was arguing there was no requirement to comply
20
with a court’s interlocutory or preliminary orders. Wright did not argue this
position, but instead argued that an order lacking an amount to be paid and a
date by which it must be paid could not form the basis for contempt. It is the
lack of specificity that means the order cannot be enforced using contempt.
After analyzing case law, the Court found that even if Wright was incorrect
about the ability of the court to enforce its order using contempt he was still
capable of forming a reasonable belief that this position was within the
limitations of § 8.01-271.1. The circuit court based its decision on an
irrelevant or improper factor, arrived at an erroneous legal conclusion,
therefore, the Supreme Court reversed its decision and dismissed the rule to
show cause.
Standing
Friends of the Rappahannock v. Caroline County Board of Supervisors
286 Va. 38 (2013)
This appeal is concerned with an order by the circuit court sustaining a
demurrer and dismissing a complaint challenging a Special Exemption
Permit (“the Permit”) to use land adjacent to the Rappahannock River for
sand and gravel mining. The Caroline County Board of Supervisors (“the
Board”) granted the permit with thirty-three enumerated conditions. After
the granting of the Permit, Friends of the Rappahannock (“Friends”) along
with a number of other individuals with property adjacent to the cite filed a
petition challenging the Board’s decision to grant the Permit. Friends alleged
the mining operation would “interfere with their interests in water quality
protection, preservation of the river’s scenic beauty, and public education
efforts in land use and resource advocacy”. The other individuals asserted the
mining operation would form a nuisance, interfere with the enjoyment of
their property, and that the Permit lacked sufficient requirements to ensure
the reclaimed site would not become a stagnant lake.
The Supreme Court affirmed the circuit court’s decision to sustain the
demurrer and dismiss Friends claims for lack of standing. The crucial issue
in this decision is whether the court is supposed to apply the “justiciable
interest” standard typically used in standing or an “aggrieved person”
standard that is used primarily in land use cases. The Court in Deerfield, 283
Va. 759 applied both standards to a land use case by finding that a party
lacked standing because they did not maintain a justiciable interest in the
land that could be aggrieved by the decision of the court. The Court extends
the Deerfield decision by holding that there is no difference between these
two standards for the purposes of declaratory judgment actions brought in
land use cases. After applying the test for standing, The Court affirms the
21
circuit court’s decision to dismiss for lack of standing because the
complainants did not plead any injury or potential injury that was not shared
by the general public.
Real Property
Deeds
CNX Gas Company, LLC v. Rasnake
287 Va. 163 (2014)
This appeal concerns the interpretation of the language used in a deed
of bargain and sale. On February 14, 1887 Jacob and Mary Fuller conveyed
“all the coal in, upon, or underlying” a 414-acre tract of land in Russell
County. A deed dated May 23, 1918, W.T. Fuller, the successor to Jacob and
Mary, conveyed a 75-acre portion of the 414-acre tract to Unice Nuckles. The
portion of the deed, which is at issue stated, “This sale is not meant to convey
any coal or minerals. The same being sold and deeded to other parties
heretofore.” CNX Gas Company (“CNX”) claimed the mineral rights,
excluding coal, under the 75-acre tracts as lessees under the successors to
Nuckles. Rasnake claims the same interest as successors in interest to the
Fullers. The facts were not in dispute and the trial court ruled in favor of
Rasnake basing it’s ruling on the unambiguous exception of the coal and
minerals on the property contained in the 1918 deed.
The Supreme Court reversed the circuit court and ruled the deed
conveyed the mineral estate, except for the coal that had been conveyed to
others, to Unice Nuckles. The Court initially confined its analysis to the four
corners of the document to determine if the document is ambiguous or not.
The deed was ambiguous because it is susceptible to multiple of
interpretation as evidenced by the three different interpretations given to the
deed by CNX, Rasnake, and the circuit court. Following this determination
the Court expanded its analysis outside of the four corners of the document.
The Court then applied two major principles of construction, construing the
language of the deed against the grantor, and considering the whole of the
deed and all its parts together. Based on these methods of construction the
Court found that the last two sentences modified the prior parts of the deed.
It construed the deed to mean that the only minerals previously granted to
other parties were exempted from the 1918 deed. Based on this
interpretation, the Supreme Court reversed the ruling of the trial court and
issued a final judgment giving CNX an interest in all minerals except for the
coal.
22
Deeds
Martin v. Garner
286 Va. 76 (2013)
This appeal concerns ownership of an eight-foot wide alley that
extends 90 feet south off of Prince Street. This dispute is between the same
parties as the ones found in Martin v. City of Alexandria, 286 Va. 61. Martin
is appealing the circuit court’s ruling holding the Garners as owners in fee
simple up of half of the eight-foot wide alley along the portion of the alley
abutting their property. He is also seeking declaratory judgment over
ownership of the entire alley. The circuit court held for the Garners in the
first question, and dismissed the second portion of the complaint because
there is no justiciable controversy.
The Supreme Court affirmed the circuit court. In Cogito v. Dart, 183
Va. 882, the Court established a rule holding that a conveyance of land
bounded by or along a way carries title to the center of the way unless a
contrary intent is found. The Court found no language in any of the deeds to
support Martin’s argument that he was intended to be the owner of the alley.
The portion of the deed granting a “right of way over said alley in common
with others entitled thereto” did not show an intention by the grantor to
retain ownership of the alley, but instead established an easement over the
four-foot wide section of the alley owned by the Garners. The Court also
agrees with the circuit court’s determination to dismiss the second question
raised by Martin’s appeal because there is no justiciable controversy. In his
pleadings, Martin only sought a declaration of his ownership of the entire
alley, but does not allege an specific violations of Martin’s alleged rights to
the entire alley. He only raises a general allegation that the other abutting
owners have from time to time blocked, stopped up, and/or interrupted, the
alley or disputed his rights of ownership to the alley. These general
allegations do not give rise to a specific adverse claim between him and a
party with a true interest.
Easements
Clifton v. Wilkinson
286 Va. 205 (2013)
This appeal concerns the granting of an easement by necessity to the
Wilkinsons. C.T. Wilkinson Jr. obtained an 18.35-acre tract of land in
Washington County after a partition suit. In 1961, the State instituted
condemnation proceedings and obtained a 3.83 acre strip through Mr.
23
Wilkinson’s tract of land. This divided Mr. Wilkinson’s land into a 4.88-acre
parcel with access along Route 704 and a 9.64-acre parcel (“10-acre parcel”),
which is landlocked as a result of the construction of I-81. Mr. Wilkinson was
awarded damages for both the taking and the damage to his remaining
parcels. He subsequently gained access to his 10-acre parcel by getting the
Clifton’s permission to use an unpaved lane running across their property to
access his own. This arrangement continued until 2008 when the Cliftons and
Wilkinson’s widow were unable to reach an agreement for the purchase of the
10-acre parcel. The Cliftons then terminated the permissive easement and
blocked the lane giving Mrs. Wilkinson access to the 10-acre tract. Mrs.
Wilkinson then brought suit seeking declaratory judgment saying she was
entitled to use the access lane by virtue of a prescriptive easement or, in the
alternative, an easement by necessity. She later withdrew the claim to a
prescriptive easement, but retained her claim of an easement by necessity.
The circuit court granted her claim and found an easement of necessity
existed.
The Supreme Court reversed the circuit court and entered final
judgment for the Cliftons. The Court found that no easement by necessity
was created because there was never any unity of title between the Clifton’s
property and the Wilkinson’s properties. Even if unity of title ever existed it
became irrelevant because it did not exist at the time the property became
landlocked. Easements by necessity are created when land is conveyed, and
there is an assumption that the conveyance comes with the necessary access
to make use of the property. The Wilkinson’s property was damaged by the
1961 taking, and was compensated for it, but this did not give rise to an
easement by necessity across anyone else’s property.
Easements
Old Dominion Boat Club v. Alexandria City Council
286 Va. 273 (2013)
This appeal concerns whether a city acquiring a fee simple interest in a
public way extinguishes a pre-existing easement over that way even though
there has been no implied or express dedication of the easement by its holder.
Old Dominion Boat Club was seeking to enforce its private easement over
Wales Alley after the City of Alexandria granted a special use permit to the
Union Parties allowing them to construct an outdoor dining deck over Wales
Alley. The easement arose out of a deed of partition executed in 1789
according to a plat or drawing that was made a part of the deed. In this deed
there was a specific easement laid out. There is little concerning the use of
Wales Alley from 1789 until 1935 when Old Dominion Boat Club purchased
24
its property. There is references to Wales Alley as a private alley which were
noted in documents and maps maintained by the City. Old Dominion Boat
Club did file an exception and a permanent injunction when two wooden
walls blocked Wales Alley. In 1990 the City paved Wales Alley, permitted the
building of a brick wall over a portion of Wales Alley, and erected a public
street sign designating the intersection of Wales Alley and Union Street. The
circuit court ruled that Union Parties were barred from building the docks
because they were the successors to the party that was previously enjoined
from blocking Wales Alley. The doctrine of res judicata prevented them from
constructing the party docks. The Supreme Court then reversed this ruling
and remanded the case. On remand the circuit court ruled in favor of the City
and dismissed Old Dominion Boat Club’s claim.
The Supreme Court reversed and remanded the decision of the circuit
court. The Court states that a done cannot control the terms of the gifts and
the City only gets a fee simple interest, which is subject to the pre-existing
easement. In order for the easement to be transferred to the City under the
City Charter there has to be an implied or express dedication of the easement
to the City. There would have been adverse or hostile use of the easement
before Old Dominion could have been implied to dedicate its easement to the
City. The circuit court found that neither the City nor any abutting
landowners had interfered with Old Dominion’s use of Wales Alley.
Express Easement
Beach v. Turim
2014 Va. Lexis 27
This appeal concerns the granting of an express easement to owners of
a lot in a subdivision in Alexandria. The Turims are beneficiaries of the
Turim Family Trust, which owns 616 S. Royal Street in Alexandria, Virginia.
Their property is designated as Lot 510. Barbara Beach (“Beach”) owns 614
S. Royal Street, and her property is designated as Lot 509. The deed of
subdivision creates a four-foot “private walk easement” at the rear of the Lots
1-6, and Lots 507-511. A notation on the plat showing the easement notes
that the easement is on Lots 1, 2, 3, 4, 5, 6, 507, 508, and 509 only. Beach
subsequently built a wall across one end of the easement and blocked the
Turim’s access to the private walk. Beach then poured concrete over the steps
providing usable access to the Turim’s lot. The Turims then filed a complaint
alleging a private nuisance against Beach and asked the trial court to issue
an injunction requiring Beach to remove the wall and restore the steps. The
injunction would also prevent Beach from taking any action, which interfered
25
with their easement rights. Beach filed a counterclaim against the Turims for
trespass arguing Lot 510 was not included in the notation on the plat
granting the easement so they had no right to the use of the easement. The
trial court issued an opinion letter finding Lot 510 abutted the easement,
that it was the dominant estate, and the Turims were entitled to the use of
the easement. Both parties filed cross motions for summary judgment and at
the hearing Turim’s counsel alleged the only issue before the trial court was
whether the Turims’s had an express easement over Beach’s property. The
trial court granted the Turims motion for summary judgment. After a bench
trial the court issued an injunction requiring Beach to restore the steps,
remove the wall, and take no further action to impede the Turims use of the
easement.
The Supreme Court reversed the decision of the trial court and granted
final judgment to Beach. Turim’s counsel only claimed they had an express
easement over Beach’s property, and an express easement can only be
created where there is an instrument of conveyance even if it is not a deed.
The deed in this case referenced the plat making it a part of the deed for
descriptive purposes only. The deed was also not clear as to whom the
easement was granted to and the purpose of the easement was ambiguous. In
order for the conveyance to constitute a grant the instrument of conveyance
must describe the grantees so that they are distinguished from everyone else.
There is nothing in the language of the deed, which describes Lot 510 as
having an easement over Lot 509. The trial court relied on the decisions of
Ryder v. Petrea, 243 Va. 421, and Lindsay v. James, 188 Va. 646 to make its
decision. These cases stand for the proposition that a property owner
abutting a right-of-way designated for public use has the right to use that
way for ingress and egress even if it was not properly designated. The
Supreme Court says these cases are not applicable to cases where the
question is if an express easement was created by the instrument of
conveyance. Based on these reasons the Court reversed the decision of the
trial court and entered final judgment for Beach.
Permanent Injunction
Norfolk Southern Ry. v. E.A. Breeden, Inc.
__ Va. __ (April 17, 2014)
The circuit court did not err in granting a permanent injunction to a
landowner requiring a railroad to restore a private crossing over its tracks,
pursuant to a grade crossing agreement entered in 1940 between the parties’
predecessors. In prior indemnification litigation, the circuit court had ruled
that the Crossing Agreement ran with the land such that Breedon, as
26
successor in interest to the original covenanting landowner, was entitled to
the use and benefits of the crossing and Ditton, as Breedon's lessee, had the
right and privilege of using the crossing independently for his own benefit.
Therefore, their use did not constitute a first material breach to excuse
Norfolk Southern's unilateral termination of real property interests held by
other landowners and the circuit court did not err, notwithstanding that the
"first material breach" doctrine is ill-suited to address this situation.
An injunction is the appropriate remedy for enforcement of a real
property interest because a violation is deemed irreparable; a party seeking
to enforce a real covenant is generally entitled to the equitable remedy upon
showing the validity of the covenant and its breach, without proof of injury,
harm or inadequacy of a remedy at law. A defendant may only avoid
imposition of the equitable remedy by proving that such relief would create a
hardship or injustice out of proportion to the relief sought, if performance by
the defendant would be impossible, or if enforcement of the decree would be
unusually difficult for the court. In the absence of such proof, Breedon was
entitled to an injunction requiring the replacement of the crossing and the
trial court did not abuse its discretion in ordering the requested relief. A
party has no constitutional right to trial by jury and absent a plea in equity
Norfolk Southern also had no statutory jury trial right. Although the railroad
chose not to call its witnesses at the injunction hearing and did not prevail on
arguments regarding plaintiff’s burden to prove damages on an injunction
application for violation of a real covenant, there is no evidence that its
defenses were not well-grounded or were interposed for an improper purpose,
and the circuit court did not abuse its discretion in denying the landowner’s
motion for recovery of attorney’s fees as a sanction under Code § 8.01-271.1.
The judgment of the circuit court is affirmed.
Real Estate Cooperative Contract Dispute
Robinson-Huntley v. G.W. Carver Mut. Homes Ass'n
__ Va. __ (April 17, 2014)
In an action by the owner of a unit in a cooperative housing association
seeking declaratory and injunctive relief arising from the association’s failure
to replace deteriorated pipes in her unit, the contract is ambiguous and the
court looks to parol evidence to determine the intent of the parties. In this
case, the evidence discloses compelling differences between the mutual
ownership contract at issue and an older contract signed by the plaintiff's
predecessor in interest. In addition, evidence of the practical construction of
the contract by the parties is entitled to great weight in interpreting the
27
contract. Based on this evidence, the circuit court's finding that plaintiff
failed to prove that the parties intended the association to make the repairs
she sought was not plainly wrong or without evidence to support it and it will
be affirmed. In a footnote, the Virginia Supreme Court instructed that the
rule of construction by which an ambiguous contract is construed against the
drafter is disfavored unless there is no extrinsic evidence of the parties'
intent or where the evidence is in equipoise. The Court clarified that a
decision to award attorney’s fees pursuant to Code § 55-492(A) is based on
whether the case is "appropriate," not on whether the plaintiff is "adversely
affected." Nevertheless, applying an abuse of discretion standard, the circuit
court's denial of the plaintiff's motion for attorneys' fees will not be reversed.
Unsubdivided Parcels
Nejati v. Stageberg
286 Va. 197 (2013)
This appeal concerns whether a subdivision, which was not approved
by the City under Code § 15.2-2254 and Fredericksburg City Code § 78-1304
restricts the sale of property and whether it limits the ability of a seller to
convey severalty interests. In 2005, Angstadt acquired a parcel of real estate
Fredericksburg. The tax map showed this to be only a single parcel. Angstadt
commissioned a survey, which drew boundaries between two taxable parcels
in the same place as the boundaries found within the Commissioner of
Revenue’s 1942 records. Angstadt then designated each parcel as their own
lot. The larger one being designated the Hanover property and the smaller
being designated as the Littlepage property. After constructing a two-story
apartment building on the Hanover property, Angstadt then conveyed it to
the Nejatis. The deed conveying the property both referenced and
incorporated the survey. Angstadt also agreed to build a single family home
on the Littlepage property for Stageberg, but when they applied for a zoning
variance the Zoning Administrator determined a house could not be built
because the land had not been subdivided. Stageberg then filed a quiet title
action alleging the legal effect of the deeds was to create a tenancy in
common between himself and the Nejatis for the entire property. The circuit
court held that Stageberg and Nejati were tenants in common over the entire
property because holding the two estates in severalty would effectively nullify
the subdivision requirements in §15.2-2254 and City Code §78-1304.
The Supreme Court of Virginia reversed the decision of the circuit
court and remanded in this case. In Hodges & DeJarnette v. Thorton a
tenancy in common can be created when there is an insufficient description
within the deeds so no one knows what their portion of the land is at least
28
until the land is partitioned. If the property is described so that it is possible
for a surveyor to take the deed and locate the property then it is possible for a
tenancy in severalty to have been created. Both the Nejatis and Stageberg
knew with certainty what property they had purchased. Failure to follow
Code §15.2-2254 does not prevent a conveyance of the property, but instead
imposes limitations on the use of the property. The failure to properly
subdivide the property means that Stageberg has to abide by regulation for
the development of his undeveloped lot, but does not prevent the conveyance
of land. The Supreme Court found that the property was described
sufficiently to create a tenancy in severalty, and there is no statutory
provision restricting the sale of the land, therefore they reversed and
remanded the decision of the circuit court.
Res Judicata
Final Judgments on the Merits
Raley v. Haider
286 Va. 164 (2013)
This appeal concerns a physician’s claim for compensation after two
years of work with a medical practice, the circuit court sustained a demurrer
alleging that res judicata barred the plaintiff’s entire suit. Raley was
employed by a medical practice (“MISI”) owned and operated by Haider. In
2010 Raley filed suit alleging breach of contract, breach of implied contract,
and sued MISI alleging Haider had wrongfully distributed money to himself
therefore depleting MISI’s funds. The circuit court ruled Raley could not
bring this type of suit against MISI because he was not a member of MISI.
Raley was awarded a judgment for the breach of contract and breach of
implied contract, and subsequently began a garnishment proceeding, naming
Haider. He later filed a complaint in Fairfax county circuit court asserting
Haider had ordered MISI to pay a number of different institutions (“MIPI”
and “Rise”) and himself to prevent having to pay Raley’s judgment. The
defendants filed a demurrer asserting res judicata barred all subsequent
complaints alleging Haider improperly transferred funds, which the circuit
court sustained based on the circuit court’s original dismissal of the claim
against MISI.
The Supreme Court affirmed in part, reversed in part, and remanded
the case. Raley failed to raise the argument to the circuit court that the
original court’s dismissal did not trigger res judiciata because it was decided
on standing and did not reach the merits of the case. Raley only raised this
argument on appeal and pursuant to Rule 5:25 leading the Court to not
29
consider it. With respect to the garnishment action and count one of Raley’s
consolidated complaint there was no privity between the parties and the
parties in the suit that was dismissed. In the garnishment action it is MISI
suing Haider on behalf of Raley, which is different then the original suit
meaning res judicata would not bar Raley’s complaint. This is also the reason
why Raley’s complaint against MIPI and Wise are also not barred by res
judicata. For Counts two through seven, however, res judicata would bar the
subsequent complaints because it arose out of the same conduct, transaction,
or occurrence. See Rule 1:6(a). These complaints were all directed at Haider
for the same conduct which had originally been dismissed. The Supreme
Court reversed and remanded the circuit court on the consolidate
garnishment action, and Raley’s claim against MIPI and Wise because there
was no privity between the parties. The Court did affirm the circuit court for
its dismissal of the counts brought directly against Haider as being barred by
res judicata.
Taxation
Real Estate Transfer Taxes
Small v. Federal Nat’l Mortgage Ass’n
286 Va. 119 (2013)
A circuit court clerk filed a class action suit in federal district court
seeking to collect unpaid recordation and state grantor’s taxes for deeds
recorded by Fannie Mae. The issue was whether Fannie Mae is, in effect, a
government entity and thus exempt from payment of taxes. The federal
defendants raised, among other defenses, the argument that plaintiff lacked
authority as clerk of court to bring an enforcement action under Code
Sections 58.1-800, et seq. The federal district court concluded that there was
no controlling authority on the issue, and certified the question to the Court.
Pursuant to the Constitution of Virginia and Rule 5:40, the Court
agreed to answer the certified question: “1. Under Virginia law, does a clerk
of court possess statutory standing to initiate, in his official capacity, to
enforce the real estate transfer tax on the recording instruments?” The Court
said, “No.” Virginia’s taxation statutes authorize the clerk to collect the taxes,
but there is no provision for the clerk to sue for unpaid taxes. A locality is
empowered to sue for local taxes. The Department of Taxation can sue for
state taxes. There is no such authority from the General Assembly of Virginia
for the clerk to bring an enforcement action.
30
Torts
Defamation
Cashion v. Smith
286 Va. 327 (2013)
This appeal concerns a defamation action filed by Dr. Cashion, an
anesthesiologist, against Dr. Smith, a trauma surgeon, and the medical
center who employed the trauma surgeon. Dr. Smith and Dr. Cashion were
treating a critically injured patient but after this patient passed away, Dr.
Smith made comments regarding Dr. Cashion’s performance in front of other
operating room staff. He afterwards accused Dr. Cashion of “euthanizing” his
patient. Dr. Smith and the medical center filed demurrers based on two
theories. Dr. Smith’s comments were non-actionable expressions of opinion
and rhetorical hyperbole and there was a qualified privilege that the
complaint did not have facts sufficient to overcome. The circuit court entered
an order sustaining the demurrers with regard to a portion of Dr. Smith’s
comments, but did overrule the demurrers in regard to Dr. Smith’s comments
about Dr. Cashion having euthanized the patient. Dr. Cashion then stated,
“We Ask For This”. Following a hearing the circuit court granted summary
judgment to Dr. Smith and the medical center after holding that the
statements were not expressions of opinions and rhetorical hyperbole, but a
qualified privilege applied to these statements.
The Supreme Court affirmed in part, reversed in part, and remanded
the case back to the circuit court. Dr. Cashion first asserted that the circuit
court should not have granted the demurrers because they were are
actionable statements and not non-actionable statements of opinion. Dr.
Smith argued that Dr. Cashion waived this argument for appeal when he
made the statement, “We Ask For This”. After reviewing case law, the Court
held that Dr. Cashion’s statement did not waive this issue on appeal. His
statement constituted nothing more then a request that the court
memorialize it’s ruling, and not an endorsement of the portion of the ruling
adverse to him. A party can only waive an argument on appeal by “express
written agreement”. The Court then reverses the circuit court stating that
the allegations Dr. Smith made could be proven true or false and were
therefore not statements of opinion. Dr. Cashion also challenged the circuit
court’s ruling that a qualified privilege did attach to Dr. Smith’s statements.
He argues that Dr. Smith did not make the statement in good faith, but the
Court rejects adding good faith as a factor in deciding when the qualified
privilege attaches. The question then becomes whether or not the privilege
was lost or abused and this is a question for the jury to decide.
31
Inference, Implication, or Insinuation
Webb v. Virginia-Pilot Media Companies, LLC
287 Va. 84 (2014)
This appeal concerns a defamation claim that arose by an implication
arising from a published article. Virginia-Pilot Media Companies (“The
Virginia-Pilot”) published an article about a physical altercation that took
place between Kevin Webb, Bryan Webb and another student’s father. Kevin
and Bryan Webb’s father, Phillip, was an assistant principle at Oscar Smith
High School and had coached pole vaulting at Great Bridge. Kevin and Bryan
were described as pole-vaulting stars at Great Bridge. The school system had
different outcomes in disciplining Kevin, Bryan and the other student. Kevin
was allowed to continue to attend Great Bridge and compete in track events
even after being convicted of misdemeanor offenses. The other student was
offered the opportunity to finish his last year, but decided to drop out and
obtain a General Educational Development certificate. The article did not
specifically comment on the disparity, but included a statement by the school
spokesman saying Kevin did not obtain preferential treatment because of his
dad’s position. Phillip then filed a complaint alleging libel, liber per se, and
libel per quod based on the implication made by the article that he had used
his position to obtain a favorable outcome for Kevin. The defendants filed a
demurrer alleging that the implication did not exist, which was overruled by
the circuit court. The defendants then moved to name Phillip a public official
and force him to prove malice. The court granted this motion, and after a jury
trial granted defendant’s motions to strike and dismissed the action with
prejudice.
The Supreme Court affirmed the circuit court decision in this case. The
defendants alleged in a cross assignment of error that the circuit court erred
in overruling their demurrer, and it is on this basis that the Supreme Court
affirms. Of the three traditional elements of libel, (the inducement, the
colloquium, and the innuendo) it is the innuendo, which is at issue in this
case. The question before the circuit court when ruling on the demurrer is
whether the article is reasonably capable of the defamatory meaning Phillip
attributed to it. This is a question of law, and in this case the article did not
state that Phillip used his position to influence the disciplinary process in
any way. Even if the other school administrators were favorably disposed
towards Phillip, the article did not state that Phillip took any action to secure
preferential treatment. The article even went so far as to quote the
spokesman’s denial of the implication. Because the article was not reasonably
capable of the defamatory meaning Phillip attributed to it the circuit court
erred when it overruled the defendant’s demurrer, but since this error is
supplanted by the final judgment the Supreme Court affirmed
32
Medical Malpractice
Simpson v. Roberts
287 Va. 34 (2014)
This appeal concerns whether a trial court erred in reducing a $7
million jury verdict down to meet the statutory cap under the Virginia
Medical Malpractice Act because the injured individual was a fetus at the
time of the procedure and thus did not qualify as a “natural person” under
the Act. Simpson alleged that as a result of Dr. Robert’s negligence she was
born with serious and permanent injuries from an amniocentesis he
performed while she was still in utero. Simpson argued she was making a
common law claim of medical malpractice because the Virginia Medical
Malpractice Act did not cover the claim. The Act defines a patient as a
natural person, and Simpson is arguing that she had not yet been born,
therefore, she did not qualify as a patient under the Act. Dr. Roberts argued
that once Simpson was born she became a patient and her claim would have
been covered by the Act. The trial court sustained the demurrer and allowed
Simpson to file an amended pleading where she again filed a common law
complaint of medical malpractice against Dr. Roberts. The amended
complaint went to a jury trial where the jury awarded Simpson $7 million.
Dr. Roberts then filed a motion to reduce the jury verdict to the statutory cap,
and Simpson filed an opposition to this motion and a motion asking the trial
court to reconsider its ruling on the initial demurrer for the common law
action. The trial court ruled that Simpson became a patient of Dr. Roberts
upon her birth bringing this action under the Act and reduced the award to
$1.4 million.
The Supreme Court affirmed the ruling of the trial court. The Court
stated that the Act was designed to control the costs of medical malpractice
insurance by giving healthcare providers a statutory protection from
unlimited liability. They also ruled that an individual who commits a tort
against a fetus is liable to that child if the child is born alive under what
became known as the “conditional liability rule”. The Supreme Court applied
the conditional liability rule in the case of Bulala, 239 Va. 218. In Bulala, the
Court ruled that a doctor who failed to arrive in a timely manner to monitor a
mother’s labor and missed the delivery of the child was liable to both the
mother and child. Both the mother and the child was entitled to a separate
cap under the Act because once the child was born she became a person and
therefore met the definition of patient under the Act. The Supreme Court
then ruled that this case is similar to Bulala despite Simpson attempting to
distinguish it by saying that Dr. Roberts was never intended to provide care
to Simpson once she was alive. The statutory test is “whether, if death does
not ensue, a person could subsequently have maintained a personal injury
33
action.” In the present case Simpson could maintain a personal injury action
once she was born for the negligent action, and thus her case was covered by
the Act.
Negligence
Commonwealth v. Peterson
286 Va. 349 (2013)
This appeal concerns a wrongful death suit filed against the
Commonwealth by the administrators of the estates of two victims of the
2007 Virginia Tech shootings. The cases began with the discovery of two
shooting victims at the dormitories prior to the mass shooting which took
place at Norris Hall. The police originally suspected that the shooter was the
female student’s boyfriend and notified the school of this belief. The school in
turn notified the Governor’s office and sent out an email to the students
about the shooting, but did not include information about the fatality. After
these actions the mass shooting at Norris Hall began and the students who’s
administrators filed the suit were victims in the Norris Hall shooting. The
administrators prevailed at trial obtaining a judgment for $4 million on a
theory that the Commonwealth was responsible for the actions of its
employees at the university on the day of the attack. They argued that the
university and the students had a special relationship and this relationship
led to a duty to warn them of the criminal acts of the third party. The
Commonwealth objected to a jury instruction stating that if the university’s
employees failed to warn students about the criminal conduct of a third party
when it was reasonably foreseeable that injury would have arose from that
conduct then the Commonwealth was negligent. It also stated that if the
Commonwealth’s failure to warn the students was the proximate cause of the
injury then they should find for the administrators. The Commonwealth then
moved to set aside the jury verdict because there was no special relationship
on these facts as decided in Burns v. Gagnon, 283 Va. 657 which was decided
after the trial. The court denied the motion for a new trial.
The Supreme Court reversed and entered final judgment for the
administrators. The Court decided the facts did not give rise to a duty to
warn or protect the students from the criminal acts of a third party. There is
generally no duty to warn or protect others from the criminal acts of third
parties, but there are a few exceptions to this general rule when a special
relationship exists. The Court assumes the existence of a special relationship.
Following this assumption the Court shifts its focus to determining if the
Commonwealth has a duty to warn students about the criminal acts of a
third party. There are two levels of foreseeable harm: known or reasonably
foreseeable harm and imminent probability of harm. Even applying the less
34
exacting standard of known or reasonably foreseeable harm, the duty to warn
the students still would not have arisen. At the time of the shooting the
Commonwealth only knew there had been a shooting on campus and the
shooter had not been apprehended. They had relied on the opinions of the
police that it was an isolated issue, and that the shooter had fled the area.
This lack of actual knowledge about the potential from harm meant the
University did not have a duty to warn the students about the potential for
harm from the criminal acts of third parties.
Remittitur of Punitive Damages
Coalson v. Canchola
2014 Va. Lexis 30
This appeal concerns the remittance of a jury award of punitive
damages for personal injuries sustained in a car accident. Coalson and
Stemke each were awarded compensatory and punitive damages for personal
injuries from their car accident with Canchola. The court entered a final
order on January 11, 2013 but suspended it for fourteen days to give the
parties an opportunity to file post-trial motions. Canchola then filed a post
trial motion for remittitur of the punitive damages arguing they were
excessive under Virginia law and the Due Process Clause of the Fourteenth
Amendment. Even though the trial court found Canchola’s conduct egregious
it noted a disparity between the compensatory damages awarded to Coalson
and Stemke and determined the award was arbitrarily made. It then granted
Canchola’s motion for remittitur and amended the final order, noted
Coalson’s acceptance under protest, summarized the proceedings, and denied
Coalson’s motion to reconsider.
The Supreme Court of Virginia reversed the decision of the trial court
and reinstated the jury award. The Court determined that the punitive
damages were not excessive under Virginia law even though the award had a
ratio of 1:17.86. It first declined to compare the verdicts of Coalson and
Stemke because the determination of the amount must be made on the facts
and circumstances of the present case. As such comparing the ratios of
Stemke’s and Coalson’s awards was an error. The Court also emphasized the
importance of the need for punishment in this case. Canchola’s decision to
drive while intoxicated despite being warned not to and to ask his girlfriend
to lie following the action was particularly egregious and in need of
punishment. Punitive damages are awarded to fulfill this need for
punishment, and the ratio is not unconsciously out of proportion because of
the dangerous nature of Canchola’s conduct. Canchola cannot argue inability
to pay because he never presented any evidence concerning this and as such
35
cannot argue this point on appeal. Under federal law Canchola’s egregious
conduct and continuing disrespect for the law meant he had a particular need
for punishment. Virginia also has an interest in preventing drivers from
drinking and driving to the point where there are escalating criminal
penalties for this very same conduct. Because of these reasons the Supreme
Court reversed the district courts order remitting the punitive damages and
reinstates the original jury award.
Sovereign Immunity
Robertson v. Western Virginia Water Authority
287 Va. 158 (2014)
This appeal concerns the application of the doctrine of sovereign
immunity to a municipal corporation who was operating and maintaining a
sewer line. In June 2006, a sewer line burst and caused a partial collapse of a
retaining wall on Robertson’s property. Robertson then filed a complaint for
negligent maintenance of the pipe against the owners of the pipe, Western
Virginia Water Authority. Western Virginia Water Authority moved for
summary judgment on the basis that maintaining a sewer line is a
governmental function and so the doctrine of sovereign immunity applies.
The trial court granted the motion for summary judgment after deciding that
maintaining a sewer line is a governmental public safety function so
governmental immunity applies.
The Supreme Court reversed and remanded the decision of the trial
court. Under current case law, municipal corporations exercise two types of
functions, governmental and proprietary. A governmental function is limited
to actions directly related to the health, safety, and welfare of its citizens. A
proprietary function if it involves a power or privilege performed for the
benefit of the municipality. When negligent maintenance is alleged against
the municipal corporation, the function it is performing is considered to be
proprietary. Sovereign immunity only extends protection to municipal
corporations performing governmental functions, and normal negligence
principles apply when they are performing proprietary functions. The design
of the sewer system is a governmental function, but the maintenance one is
ministerial in nature. This means that the corporation was performing a
proprietary function; therefore, the Court ruled the circuit court erred in
finding that the doctrine of sovereign immunity applies.
36
Virginia Fraud Against Taxpayers Act
Wrongful Termination
Lewis v. City of Alexandria
___ Va. ___ (April 17, 2014)
This is a case of first impression addressing the award of damages in a
wrongful termination suit under the Virginia Fraud Against Taxpayers Act
(VFTA). Lewis was terminated from his employment after making a
complaint about a supervisor approving payments of false invoices submitted
to the city. The jury found that he had been wrongfully terminated under
VFTA and awarded him back pay. VFTA provides that a wrongfully
terminated employee is entitled to reinstatement, two times the amount of
back pay, and compensation for special damages, including attorneys’ fees
and litigation costs. Lewis asked the trial court to award him reinstatement
(or front pay in lieu of reinstatement), two times back pay, attorneys’ fees and
court costs, and damages to compensate him for the loss of his expected
pension benefits because he was fired before he vested in the City’s pension
plan. The trial court awarded all except front pay in lieu of reinstatement
and pension benefits because the evidence in support of those claims was too
speculative.
The Virginia Supreme Court held that the trial court did not abuse its
discretion in denying the claims for front pay and pension benefits. The
Court found that Lewis had abandoned his claim for reinstatement. Neither
the claim for front pay nor the claim for pension benefits was specifically
authorized by VFTA. Therefore, they are properly categorized as “special
damages.” The circuit court had discretion to award these equitable remedies
and it was within the court’s discretion to conclude that the evidence in
support of these claims was too speculative.
Virginia Freedom of Information Act
Academic Research
American Tradition Inst. v. Rector and Visitors of the University of Virginia
__ Va. __ (April 17, 2014)
In this case the Court addressed the meaning of the term "proprietary"
as used in Va. Code § 2.2-3705.4(4), which addresses certain records of
educational institutions that are exempt from disclosure, and answered the
question of whether a public body may impose charges for the costs of
37
exclusion review of documents sought. Appellants argued that "information of
a proprietary nature" is limited to information that affords the governmental
body a commercial competitive advantage, i.e. records that if disclosed would
cause the institution financial harm; the Court found this construction of
"proprietary" to be too narrow and inconsistent with the legislative intent
underlying the statutory exemptions for educational institutions. On the
question of charging for exclusion review, the Court held such charges are
permissible. Relying on the plain meaning of the word "search," the Court
held: "In the context of Code § 2.2-3704(F), 'searching' includes 'inquiring or
scrutinizing' whether a disputed document can be released under federal and
state law."
Virginia Marine Resources Commission
Preemption
Virginia Marine Resources Commission v. Chincoteague Inn
___ Va. ___ (April 17, 2014)
This decision is an appeal from an en banc decision of the Court of
Appeals, which held that the Virginia Marine Resources Commission lacked
authority under Code § 28.2-1203(A) to order removal of a floating platform
that a restaurant operator had situated over state-owned subaqueous
bottomlands, securing it alongside its premises for purposes of expanded
restaurant operations, without a permit or statutory exception. Since the
platform was used for restaurant operations, the use of the platform was not
protected by the Constitution of Virginia as a right of the public inherent in
the jus publicum. In addition, although the panel opinion addressed whether
the application of Code § 28.2-1203(A) was preempted by federal law, the en
banc decision did not. Therefore, the case is remanded for resolution of all
remaining issues, including whether application of Code § 28.2-1203(A) is
preempted by federal maritime law.
Wills, Trusts and Estates
Breach of Contract to Make a Will
Dean v. Morris
___ Va. ___ (April 17, 2014)
This case involves a claim of breach of contract to make a will. The
case was brought by the decedent’s stepdaughters who claimed that, before
their mother’s death, the mother advised them not to make a claim against
38
the mother’s estate because their stepfather had promised to provide for
them in his will and that they would inherit more if they waited until after
the stepfather’s death to receive their portion of his estate. The stepfather’s
will ultimately provided only a small portion of his estate to the
stepdaughters, rather than the one-third share they had anticipated. The
trial court held that the stepdaughters had shown, by clear and convincing
evidence that the mother and stepfather had an oral agreement that the
stepdaughters would receive one third of the stepfather’s estate.
The Virginia Supreme Court reversed, holding that the evidence
established the existence of an oral agreement between the mother and
stepfather but was not sufficient to prove the terms of the agreement. No
witness had testified that the stepfather had agreed to leave one-third of his
estate to the stepdaughters and there was conflicting evidence regarding
what property the parties intended to be included in the estate to be
apportioned. Because the stepdaughters did not meet their burden of proving
the terms of the agreement by clear and convincing evidence, the Court held
there was no contract.
Contracts
Ayers v. Shaffer
286 Va. 212 (2013)
This appeal concerns the circuit court’s decision to sustain a demurrer
to a complaint alleging multiple inter vivos financial transfers reduced the
value of the decedent’s estate and were a result of undue influence. The
plaintiffs are the decedent, Elsie R. Smith’s, great-grandchildren and
beneficiaries under her will. Elsie’s sister and Toni Shaffer who was her
friend and caretaker engaged in a number of transaction transferring funds
from accounts to accounts titled jointly with them with rights of survivorship.
As a result a significant amount of the estate was no longer available to pass
through probate. The plaintiffs brought filed 11 complaints alleging that
these transfers were the result of undue influence and sought to retrieve the
funds for the estate. The Shaffers filed a demurrer, and after hearing the
circuit court sustained the demurrer because the complaint did not allege
that the Shaffers took any action under the Durable Power of Attorney to
place herself on the accounts.
The Supreme Court affirmed in part, reversed in part, and remanded
in part. The portion of the circuit court’s decision the Supreme Court affirmed
was with respect to counts 7 through 11. It was not decided on the merit, but
instead was deemed abandon because on appeal the plaintiffs did not assign
any error to these counts. In undue influence cases the burden of proof shifts
39
from the plaintiffs to the defendants when there is a weakness of mind or
suspicious circumstances are shown or when a confidential relationship is
established. In Parfitt v. Parfitt, 277 Va. 333, 341, the Court determined
where one person is an agent for another then a confidential relationship
exists. It also arises in any scenario which creates a fiduciary relationship.
The demurrer was only sustained because the circuit court did not believe
there was a confidential relationship between Elsie and the Toni. Elsie’s
sister also had a confidential relationship with Elsie because she colluded in
her care with Toni Shaffer. The existence of these confidential relationships
gives rise to the presumption of undue influence and the burden shifts to
show that the accounts were not procured as a result of the influence.
Therefore, the Supreme Court reversed the circuit court’s decision to sustain
the demurrer. It then remanded the case to the circuit court to make a
determination on whether the accounts were a result of undue influence.
Descent and Distribution of Intestate Estate
Jason H. Sheppard, Jr. v. Linda Junes, Administrator of The Estate of John
Warren Shepperd
__ Va. __ (April 17, 2014)
In ruling on a motion for aid and direction brought by the
administrator of an estate, the circuit court erred in the manner in which it
distributed the estate among the decedent’s paternal half-uncle and 14
maternal side collateral heirs. A de novo standard applied to the Virginia
Supreme Court's review of the purely legal question requiring statutory
construction. A correct application of Code § 64.2-200(A)(5) separates the
entire estate into two different portions or moieties, each equally valued at
one-half of the decedent’s estate. Code § 64.2-200 provides a sequential list of
hierarchical classes of people to whom the decedent's estate may pass, in
descending order of priority. One moiety passes to the descendant's maternal
kindred and in this case, under Code § 64.2-200(A)(5)(b) or Code § 64.2-
200(A)(5)(d), that moiety passes to decedent’s 14 second cousins. The other
moiety passes to the decedent’s paternal kindred; Code § 64.2-200(A)(5)(b)
requires that moiety to pass to the decedent's half-uncle, who is the sole
member of the applicable statutory class on that side of the family.
Code § 64.2-202(A) requires the paternal side moiety to be distributed
entirely to the decedent's half-uncle, and neither Code § 64.2-200(B) (descent
if no surviving paternal kindred or no surviving maternal kindred or neither
maternal nor paternal kindred), § 64.2-202(B) (distribution on per capita or
per stirpes basis and treatment of collaterals of the half- blood), nor § 64.2-
203(B) (person related to decedent through both paternal and maternal lines
40
of relationship) applies to affect that distribution. The half-blood rule of Code
§ 64.2-202(B), which limits the inheritance of half-bloods to one-half as much
as whole blood relatives, operates only to modify the application of § 64.2-
202(A), that is, among members within the same class. Therefore, in this
case, it does not apply because the half uncle is the only member of the class
to whom the paternal half portion of the estate passes. The 14 second cousins
who take pursuant to the decedent's maternal side moiety have no interest in
the paternal side moiety and thus do not affect the class to which the
paternal side moiety passes or the distribution of shares within that class.
The judgment of the circuit court is reversed and final judgment is entered in
favor of the paternal-side half-uncle, whose share is one-half not one-quarter
of the estate.
Workers’ Compensation
Statutory Employer
Rodriguez v. Leesburg Business Park
2014 Va. Lexis 25
This appeal concerns a wrongful death action, which was dismissed on
the basis that plaintiff’s only remedy is under the Virginia Workers’
Compensation Act (“the Act”), Code §§ 65.2-100 through -1310. Leesburg
Business Park (“LBP”) contracted with E.E. Reed Construction (“Reed”) to
construct warehouses on a parcel of land owned by LBP. Ubaldo Rodriguez
was an employee of Reed, and was fatally electrocuted when building
material being moved by another Reed employee touched an overhead
electrical power line. The Virginia Worker’s Compensation Committee
awarded benefits to Ubaldo’s statutory beneficiaries under the act. Cecilia
Rodriguez (“Rodriguez”) is the widow and administrator of Ubaldo Rodriguez.
She brought suit for negligence against LBP for failing to keeps its premises
reasonably safe for invitees such as Ubaldo. At an evidentiary hearing it was
established that LBP purchases land and develops it by contracting with
general contractors to construct warehouses on LBP’s land. Reed was solely
responsible for doing all of the construction work. Oversight was contracted
to an owner’s representative and LBP had no role in the construction of the
warehouse. The circuit court subsequently found that construction of
warehouses was a part of the trade, business, or occupation of LBP. It then
ruled Ubaldo was a statutory co-employee of LBP and that Rodriguez’s
recovery was limited to the remedies provided for in the Act. In an
unpublished order the Supreme Court of Virginia ruled that there was no
evidence that Ubaldo was a statutory co-employee of LBP, and remanded the
case. On remand LBP asserted it was Ubaldo’s statutory employer and that
Rodriguez’s suit was barred by the exclusivity provisions of Code §65.2-
41
307(A). The circuit court then concluded that LBP was the statutory
employer of Ubaldo and that the Code barred Rodriguez’s claim. It then
dismissed the complaint with prejudice.
The Supreme Court of Virginia reversed and remanded the circuit
court’s decision to dismiss the complaint with prejudice. The major issue is
whether Ubaldo was working on a project that was a part of LBP’s trade,
business, or occupation in order to determine if he was a statutory employee
of LBP. The overall test the Court applies is to determine whether “Ubaldo’s
construction work at the time of his fatal accident was part of LBP’s
business”. Applying this test to the facts the Court determined that while
construction is “indispensable” to the success of the business it, LBP failed to
meet its burden to show that construction was part of its trade, business, or
occupation. Simply contracting with Reed and providing some oversight was
not enough to establish that construction was part of LBP’s trade. This is a
test, which must be applied to the particular case and facts at hand, and
because simply overseeing construction is not sufficient the Supreme Court
reversed and remanded the decision of the circuit court.
Zoning
Billboards
Lamar Co. v. City of Richmond; Shaia v. City of Richmond
___ Va. ___ (April 17, 2014)
These consolidated proceedings appeal the circuit court denial of a
declaratory judgment action brought by landowners and a billboard
advertising company against an enforcement seeking the removal or
reduction in height of the billboard at issue in the prior case. The circuit court
held that the 15-year non-conforming use provision of Code § 15.2-2307 is
"merely enabling" legislation and would not support a declaratory judgment
action. The Court concluded that the “plain language” of the statute
demonstrated that it was not simply “enabling legislation,” but actually
restricted the power of localities. The judgment is reversed and the case is
remanded for further proceedings consistent with this opinion.
42
Variances
Lamar Co. v. City of Richmond
___ Va. ___ (April 17, 2014)
There are two legal questions at issue in this challenge to the denial of
a zoning variance by a board of zoning appeals. First, although both the
property owner and the lessee, whose billboard required the variance,
appealed the decision of the Board of Zoning Appeals to circuit court, only the
lessee pursued the appeal to the Supreme Court. The City sought dismissal of
the appeal on the grounds that a necessary party was no longer before the
Court, but the Supreme Court dismissed the motion to appeal, holding that,
while the owner is a necessary party in an appeal to the circuit court, it is not
a necessary party in an appeal from the circuit court to the Supreme Court.
The central issue in the case is the proper standard of review for the
circuit court. Rather than the "fairly debatable" standard of review applied by
the circuit court, the proper standard, set forth in Code § 15.2-2314 is
whether the decision “applied erroneous principles of law” or is “plainly
wrong.” The "fairly debatable" standard applies to legislative acts of a
governed body. The matter was remanded to the trial court for application of
the proper standard of review.
Variances
Martin v. City of Alexandria
286 Va. 61 (2013)
This appeal concerns the circuit court’s decision to uphold the decision
made by the Board of Zoning Appeals of the City of Alexandria (“BZA”)
granting a rear and side yard variance to the Garners. The Garners were
seeking the variances in order to build a single family home on their 122
Prince Street property, and Martin opposes the granting of the Garner’s
variance application. The property occupies 36 feet along Front Street, but is
only 44.33 feet deep. The Zoning Ordinance requires that the property have
two five foot side yards and a 16-foot rear yard. It is also subject to the
Historic District Ordinance, which requires a certificate of appropriateness to
be issued by the Old and Historic Alexandria District Board of Architectural
Review for the proposed construction. The Garners had previously applied for
variances in 2003 and 2005, but withdrew the applications after city staff
recommended denying the applications because it would be detrimental to
Martin’s property and a single family home could be built on the property
while adhering to the Zoning Ordinance.
43
After the Garners withdrew their 2005 application they sought a
determination by the Zoning Administrator whether they could use a portion
of the alley next to their property in calculating their east side yard. The
Zoning Administrator determined the alley could not be used in calculating
the side yard and was affirmed by the BZA. The Garners subsequently
appealed the BZA’s determination to the circuit court. Before trial, the
Garners and the City entered into a “Stay of Litigation” agreement where the
City agreed to support the Garners application for a three-foot side yard
variance regardless of the determination on the alley. In 2011 the Garners
submitted the application, at issue in this appeal, seeking a three-foot side
yard and a 13-foot rear yard variance. The Board of Architectural Review
approved of the design and issued the certificate of appropriateness. At the
BZA hearing city staff supported the granting of the variances because
allowing the construction to go forward as designed would provide greater
historical accuracy then strictly enforcing the Zoning Ordinance. Opponents
of the variances argued that city staff had previously submitted a home
design conforming to the Zoning Ordinance, and that neither this design nor
any other design which conformed to the Zoning Ordinance were submitted to
the Board of Architectural Review.
The Supreme Court of Virginia reversed the circuit court holding the
decision by the BZA was contrary to law. The Alexandria City Charter
controls appeals from the BZA and allows a circuit court to reverse or modify
a BZA decision which is arbitrary or contrary to law. The City Charter also
defines the powers of the BZA and restricts its ability to grant a variance to
situations where a party would suffer “unnecessary hardship” as a result of
strictly adhering to the Zoning Ordinance. Courts have subsequently found
the BZA must find: (1) that strict adherence would create an unnecessary
hardship; (2) the hardship is not shared generally by the other properties
within the same zone and is not created by the owner; (3) authorization of the
variance would not substantially detract from the value of surrounding
properties nor would it change the character of the zone. None of the
arguments presented by the Garners would be enough to meet the test as laid
out by the Supreme Court. Their argument that the Zoning Ordinance was
meant to only apply to old buildings is rejected because it would effectively
nullify the entire Ordinance as meaningless, and the Court found that the
shallowness of their property is not sufficient to grant a variance because it
would it would “infringe on the intended spirit and purpose” of the
Ordinance, which is prohibited by the City Charter. The Court also rejects
the Garner’s argument that their house would be undevelopable as a result of
the historical and zoning ordinances because they had never submitted a
design meeting the requirements of the Zoning Ordinance to the Board of
Architectural Review. The Court does not find any of the evidence sufficient