The Court of Appeals issued published opinions in four new appeals today and an en banc decision from a prior split-panel decision. The new appeals deal with revocation of probation, domestic relations, and adverse possession.
We will start with Jordan Darrell Morris v. Commonwealth of Virginia, the en banc, for which the panel decision was previously summarized here. The majority on the panel vacated Morris’ criminal convictions for possession and DUI-D, finding that the circuit court had improperly applied the medical-amnesty statute, Code § 18.2-251.03, which shields from arrest or prosecution those persons who seek emergency medical assistance because they are experiencing a drug overdose. Judge (now Justice) Russell dissented, finding that the majority was reading the statute too broadly.
Although Justice Russell was not part of the en banc, his view from the panel prevails today in an opinion from Judge Lorish joined by Chief Judge Decker and 11 of her fellow judges. If fact, the majority takes an even narrower view of the statute than did Justice Russell, finding that it is meant to apply only where the defendant remains at the scene of the overdoes or to any alternate location to which he is transported until law enforcement responds to the report of the overdoes. Morris was driving himself to the hospital after having an adverse (possibly psychological rather than physical) reaction to ingesting illegal drugs. Justice Russell’s original dissent focused on whether Morris was actually experiencing an overdose, but the majority says that this is beside the point as Morris never “reported” the overdose until after he was approached by law enforcement officers who were investigating his erratic driving. Thus, according to the majority determines that Morris is not entitled to protection from the statute because he didn’t report his overdose to the police as contemplated in the statute.
Judge Raphael and Ortiz, the original panel majority, dissent, as does Chaney in a separate, short opinion. Judge Callins writes a separate opinion concurring in judgment, but not supporting the majority. Rather, she simply finds that Morris’ proffer was insufficient to establish a causal nexus between his ingestion of a controlled substance and the alleged overdose. Both dissents and the concurrence take the view that the majority has taken a form over substance approach to a statute that was meant to benefit people like Morris who seek medical treatment after experience an adverse reaction to an illicit substance.
While I am in sympathy with the dissenters that perhaps the law ought to apply to Morris’ situation, I still find myself more inline with Justice Russell’s original dissent which said, in effect, what a law “ought” to do is for the General Assembly, not the courts, the decide. Thus, I find the current majority’s view to be a little too narrow (though strictly within the letter of the law). Expect an appeal to the Supreme Court (and a move to amend the law next session, especially if the balance in the General Assembly swings back to the left in the fall elections).
First up among the new cases is Calvin Wayne Thomas v. Commonwealth of Virginia, an appeal from a probation revocation in which we once again try to understand the new regime for such cases. Thomas was on probation for a sexual battery conviction. His parole officer issued a notice of violation for alcohol and marijuana abuse. This was a “first violation,” but if you have been following the cases interpreting the new law, you know that not all first violations are equal.
Now the interesting result in this case is going to seem counterintuitive – and that’s because it is. Thomas tested positive for marijuana use three times, and on the final time also for alcohol use. The conditions of his probation required him to abstain from both. Based on these two violations, the court gave Thomas 90 days of his comeback time to serve.
Now, I am going to tell you that the Court of Appeals, Chief Judge Decker joined by Judges Huff and Callins, affirm in part, reverse in part, and remand. Given that I’ve said the result is counterintuitive, try to figure out before reading on which violation – three positive tests for marijuana or one positive for alcohol – was the problematic one resulting in the partial reversal.
If you guessed the three marijuana positive screens, you are right. As the Court observes, this case comes “on the heels of a sea change in the applicable law, [and] the trial court was required to decipher a new sentencing scheme and make a ruling.” The Court recognized that the trial judge was essentially stumbling down a dark alley because no appellate decisions explaining the new law had been released at the time, yet I still feel the Court was a bit harsh in immediately following this up by saying the trial judge erred because subsequent published case law shows he misinterpreted the new law.
So, how can one violation of “don’t drink demon rum” be worse than three violations of “don’t smoke the devil’s weed”? The answer is that the latter violations are “technical,” while the former is “special.” Here’s why: normally, abstaining from alcohol is not require of a probationer unless it interferes with some other aspect of his probation, like maintaining employment. But in this case, Thomas was specifically required to abstain from any consumption of alcohol; specific, or “special” requirements are never merely technical violations. Marijuana, however, is a one of the controlled substances the use or possession of which constitutes a technical violation the first go-round, so even if listed separately as a “special” condition, the instructions to the probationer cannot override the statute. The case is remanded for the circuit court to reconsider the amount of time that Thomas should spend repenting his taste for alcohol.
Jennifer M. Payne v. David Ray Payne is one of two domestic relations cases today and is appeal from a divorce decree that assigned fault to the wife for desertion, denied her spousal support and also credited husband with contributions to a mortgage and home equity loan made after the separation. Judge Callins is joined by Judges Chaney and Raphael in affirming, leaving me to wonder at what makes this opinion worthy of publication given that under the standard of review, which is abuse of discretion as set out in the opening paragraph of the opinion, is exactly the result I would have expected.
The answer to what makes this a publication worthy case may be that the fact pattern is one that is increasingly common – a “baby boomer” couple who find that the empty nest is not comfortable because during the years of child-rearing they grew increasingly distant. The wife, particularly, had difficulty adjusting and suffered with depression. In short, this case is one in which there will be some sympathy for the wife, and perhaps the definition of desertion no longer has application in a world where we have a greater understanding of the complexity of marital relationships. However, as with the Morris case, it’s not the job of the courts to say what the law ought to be, only whether the evidence supports the trial court’s application of the law as it is.
The other domestic relations case is Melinda Mills v. Robert Alexander Mills and begins with the statement that parties “come before this Court once more to address issues related to their 2015 divorce.” The prior appeal was back in 2019 and affirmed in part and reversed in apart findings that wife had violated a property settlement agreement. As Yogi Berra says, “It’s déjà vu all over again,” at least as to the split decision by Judge Callins joined by Judges Chaney and Raphael affirming in part and reversing in part.
The PSA provided that wife was to have the use of the marital residence until the youngest child started college – interestingly, there was no alternative provision for what would happen is said child decided to pursue a career as an influencer rather than obtaining a college degree, however this is a subject for a CLE on how not to have an indefinite condition subsequent in a PSA – then would be sold and the proceeds divided. The PSA allowed the parties to modify the agreement and they purportedly did so, giving wife 100% of the equity in the marital home.
Three years later, husband moved to reopen the case and have the property sold and the proceeds divided. Wife, naturally, responded with her own request to have the property titled solely in her name. All of this came about while the prior appeal was moving through the courts and was ultimately remanded for an award of attorney’s fee to husband as the prevailing party in the prior contempt proceedings.
Out of this convoluted fact pattern, the court issued a decision upholding the modification of the PSA, thus requiring an award of attorney’s fees to her as the prevailing party on that issue, but also awarding fees to the husband from the prior contempt proceeding. The wife appealed and the husband assigned cross-error with a total of ten assignments of error. Suffice to say that this time the wife, who was mostly on the losing end in the last appeal, is mostly on the winning end this time. The error found by the Court of Appeals was that because the modification of the PSA was valid, husband was liable to wife for the cost of a special commissioner to sell the property – which occurred because wife was planning to sell the property when husband sought to enforce the original terms of the PSA. Wife doesn’t get everything she asked for, however, because the Court agreed she was not entitled to interest in the proceeds while they were held in escrow.
The last of today’s opinions, Nancy C. Veldhuis, as Trustee, etc. v. Tarek C. Abboushi and Kye S. Abboushi, involves an issue almost as fraught with emotions as the prior two domestic relations cases – neighbors disputing a property line. As is typical in such cases, one side claims property of the other by adverse possession, and the other responds with a claim for trespass. The circuit court found for the adverse possession claim and today the Court of Appeals, Judge Fulton joined by Judges Beales and Lorish, affirm.
The facts are pretty straightforward. When purchasing their residential property in 1996, the Abboushis did not obtain a survey, but asked the then owner of the adjoining property where the boundary line was. The owner identified a clearly observable line running along the edge of a driveway back to a specific tree. Thereafter the Abboushis maintained the property on their side of this line, making improvements in landscaping to provide privacy, making the apparent property line even more visible. The adjoining land owner later sought and was given permission to run an underground drainage pipe along the driveway in that he had previously indicated was part of the Abboushis’ property in 2009.
When the neighbor passed away shortly after this, his daughter, Veldhuis, inherited the property and transferred it to a living trust. The tree that had previously been identified as marking the back end of the property line died and the Abboushis removed it at their own expense after Veldhuis expressed concern that it was a hazard.
It wasn’t until 2020 that Veldhuis first asserted a claim to the property – 24 years after the Abboushis were by open and obvious acts claiming dominion. Clearly this would be an easy case for adverse possession – but Veldhuis made the novel argument that when the drainage pipe was installed to benefit her property in 2009, this ended the exclusive nature of the Abboushis claim. The circuit court found that it was unclear whether the pipe actually was on the disputed portion of the property and that, in any case, because Veldhuis’ father sought permission to place the pipe, this clear established that the placement of the pipe was not a hostile act against the Abboushis claim. Although there are four assignments of error, the Court of Appeals finds the latter fact – the permissive installation of the pipe – to be dispositive.
Updated: May 4, 2023
The plaintiff's attorney in a case in the Federal District Court of New York for the Southern District asked the Court for a three week continuance, stating as his reason that his wife had gone into premature labor and their child had been successfully delivered, but with complications. The couple had other children and the attorney needed to care for them, and for his wife once she was released from the hospital. The defense's lawyers naturally did not oppose the motion . . . no, I am joking, of course they did.
To be fair, the defendant was willing to allow the continuance, provided that plaintiff's counsel would agree to certain concession in the current litigation. But that was all they wanted. Sorry, I was joking again. They also asked for concessions in unrelated litigation with the same attorney that was in arbitration.
The judge, the VERY Honorable Paul Engelmayer, was not disposed to consider these conditions for granting the continuance. Here are two excerpts from his order:
The Court congratulates Mr. Seppinni and his family on the birth of their child and wishes Mr. Seppinni’ s wife a speedy and full recovery. The Court reminds defense counsel of the expectation of the judges in this District that counsel will comport themselves with decency. Counsel’s attempt to exploit a moment of obvious personal exigency to extract concessions from Mr. Seppinni, in other litigations no less, was unprofessional. The Court expects better.
The Court unconditionally grants Mr. Seppinni’s request for a three-week adjournment for his opposition….This order is without prejudice to Mr. Seppinni’s right, in the event of continuing medical complications, to seek a further extension of these deadlines, as Mr. Seppinni’s email to the Court suggests may become necessary.
The judge imposed no sanction on opposing counsel for their egregious behavior, and I suppose that was wise at it would give grounds for an appeal. I am sure that Judge Engelmayer will not allow this incident to prejudice his judgment in future rulings involving these parties, but I would be surprised if the defendant does find that some discretionary calls fall against them.
If this ever happens in a Virginia court (and sadly, it's not beyond reason that it could), I think the judge would respond in much the same way. I am even more certain that the judge would mark the defense counsel down as being very far from the genteel Virginia gentleman or gentlewoman that one hopes would be representative of the Virginia Bar, and therefore not to be given the benefit of the doubt the next time they request a continuance for a less compelling reason. And judges have long memories.
The Court of Appeals decided five cases in four published opinions today. We start with the related appeals of Tiziano M. Scarabelli, M.D. v. Kenneth Ellenbogen, M.D., et al. and John E. Nestler, M.D., et al. v. Tiziano Scarabelli, M.D., et al. decided in a combined opinion by Judge Ortiz joined by Judges O’Brien and Raphael. This appeal is about a topic of much interest to attorneys, Code § 8.01-271.1, the statute that makes it a sanctionable event to file a pleading that is not well-grounded in fact or warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and also is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. This statute, which used to be very short, got a massive expansion in 2020, and this opinion is apparently the first to deal with the topic in a serious manner since those changes.
The underlying cause of action stemmed from a workplace brouhaha which resulted in Scarabelli being placed on administrative leave from his position as Director of Cardio-Oncology at MCV. Believing himself the victim of false complaints, Scarabelli brought a defamation action against MCV and several of its employees. In a novel turn, MCV brought a counterclaim alleging that Scarabelli “fraudulently induced his hiring” by padding his resume and concealing the true circumstances of his departure from his last employment. The jury found in favor of MCV and the employees on the defamation claims and awarded MCV $102,500 in actual damages and $143,500 in punitives.
Two of the employees filed § 8.01-271.1 motions, both of which were denied, while Scarabelli sought to have the fraud judgment set aside. The circuit court denied all the motions.
Today, the Court of Appeals gives succor to one, but not both of the employees, and in doing so gives a master class in what constitute a colorable claim for defamation. Because the claims against one of the employees were “a valid, non-conclusory defamation claim,” they could not have been made in bad faith or an improper purpose. But the other employee’s allegedly defamatory statement was objectively true and lacked any defamatory sting, so were not well grounded in fact, and, thus, sactionable. The Court goes on to quickly dispose of Scarabelli’s cross-appeal and remand to the circuit court for an award of damages to the one employee.
As the case style implies, Eleanor A. Hunter, Individually and as a Trustee, etc. v. Charles M. Hunter, Jr. involves family members, in this case siblings, squabbling over property and money. This is an interlocutory appeal to review a ruling by the circuit court that Charles Hunter’s suit against his sister Eleanor for alleged undue influence in procuring gifts for herself from trusts established by their parents of which Eleanor was the trustee. If this fact pattern sounds familiar, it is because this is the second case involving these parties. The first time around, the case went directly to the Supreme Court (“Hunter”), which ruled in Charles favor after the circuit court dismissed his suit as being in violation of a “no contest” clause in each trust without considering the “alternative-pleading model” which allows a plaintiff to avoid dismissal for a no contest clause by, in effect, having the court determine whether the suit would violate the clause as a separate controversy not actually challenging the will or trust, thus avoiding loss of the benefit as an heir or beneficiary.
On remand, the circuit court found that the “no contest” clauses were not breached, thus ruling in favor of permitting the suit to go forward, but authorized the interlocutory appeal by Eleanor, now going to the Court of Appeals due to the realignment of appellant jurisdiction. Today, Judge Raphael, joined by Judges Humphreys and AtLee, affirm. The opinion effectively adopts the view expressed in Hunter I by the Supreme Court that a party cannot be barred from having a court determine whether a suit will strip the party of their rights to an inheritance or trust benefit by a no contest clause without first being allowed to show there is sufficient basis to allege malfeasance by an executor or trustee. The reason is obvious. If such were the case, then a no contest clause would effectively shield an executor or trustee from any court oversite based on a challenge by an heir or beneficiary. The case will now go back to the trial court for a trial on the merits.
Margaret Williams v. Pamela Legere, et al. involves a review of a challenge to the constitutionality of the initiative petition witness circulator residency requirement found in Code § 24.2-684.1(5). In case you are not familiar with this particular statute (and Lord knows I wasn’t), it prescribes the “Requirements for voter petitions to call for referendum elections.” Williams wanted to have a referendum in Williamsburg on whether the city’s appointed school board members should be directly elected. She filed her petition in a timely manner with sufficient registered voters signatures, but most of those signatures were witnessed by someone who was not a resident of Williamsburg as required by the initiative petition witness circulator residency requirement, and accordingly the petitions were registered.
Williams sought relief from the circuit court alleging that the requirement that the witnesses to the petition be from the jurisdiction in which the referendum was sought was unduly burdensome on political speech and therefore unconstitutional. The circuit court, applying rational basis, found that it was not violative of the first amendment. Today, the Court of Appeals, Judge White, joined by Judges Huff and Fulton, finds that an alleged undue burden on political speech is subject to strict scrutiny review and remands to the circuit court for consideration under the appropriate standard.
The only criminal appeal published today is Keith Elwood Hargrove v. Commonwealth of Virginia. Hargrove was tried jointly with a co-defendant on charges of first-degree murder, attempted robbery, armed burglary, discharging a firearm in an occupied building, conspiracy to commit burglary, conspiracy to commit robbery, and three counts of using a firearm in the commission of a felony. The victim was an eight-year-old boy, whose father unwisely posted on social media that he had won a lottery prize of “thousands” of dollars. Unfortunately, this attracted the notice of Hargrove and Charles Coleman, who committed a home invasion in an attempt to rob the father. Hargrove was tied to the crimes when he was arrested on an unrelated drug charge and found to be in possession of the murder weapon.
Although Hargrove challenged some evidentiary rulings and the sufficiency of the evidence, the issue that warranted publishing this case is the motion for separate trials. Hargrove alleged that statements by Coleman to third parties and admissible against him under the “statements against interest” exception to the hearsay rule tended to implicate him and, thus, violated his right to confront Coleman at trial if Coleman refused to testify. The Court of Appeals, however, found that these statement were not “testimonial” and did not trigger the right of confrontation. This decision, while in line with the Fourth Circuit (and all other circuits that have considered it), appears to be one of first impression in a Virginia state appellate court, and thus worthy of publication. Expect an appeal to the Supreme Court of Virginia, and conceivably to the US Supreme Court (though with there being no split in the circuits, it’s a doubtful case for certiorari).