Your humble correspondent took a week off from summarizing due to the press of other business and then on Sunday last to recognize the end of his 63rd journey around the sun.
Let's start with the latest appeal from the Court of Appeals to the Supreme Court. City of Emporia v. County of Greensville has been appealed. This was the lead off summary of my June 12, 2024 post. While I did not foresee the appeal to the Seven Robes, I rather think that the petition will be granted as this is just the sort of obscure statutory construction issue that seems to catch the Justices' imagination.
On August 6, 2024, the Court of Appeals released five opinions. Let's start with Karen Williams, et al. v. Rappahannock County Board of Supervisors, et al. which is all about a volunteer fire company. The Flint Hill Volunteer Fire Company was founded in 1954 to serve the town of Flint Hill and Rappahannock County. In 2018, the County sought to coordinate the operations of the Flint Hill Company with the other fire and rescue services in the County and to that end entered into an agreement with Flint Hill and other providers of first responder services. Subsequently, "Flint Hill had difficulties meeting performance goals and
certification requirements." The County Board determined that the leadership of the company was at fault and adopted a resolution to remove the current leaders and replace them.
As you can imagine, this did not sit well with the removed leadership, which brought a declaratory injunction actions against the Board. The Board filed a plea in bar asserting that the action was barred because Flint Hill was organized "pursuant to Title 27" which is all about Fire Protection and was subject to the control of the County. Flint Hill, however, was in fact organized under Title 13 as a nonstock corporation. The circuit court found that being organized as a nonstock corporation did not conflict with Flint Hill being subject to Title 27 and, thus subject to the Board. The dismissed leaders appealed.
In a scant seven pages, about half of which is footnotes, Judge Frucci, joined by Judges Malveaux and Raphael, reverse and remand. Now you would be forgiven for thinking that the reason was that having been organized under Title 13, Flint Hill was not subject to the application of Title 27. But the Court did not even reach that issue, finding a much more direct approach. Namely that Code § 27-13, the statute that allows a Board of Supervisors to appoint the leadership of a volunteer fire company does not include the power to remove the leadership. The Court concludes that the statute must be strictly construed as limiting the power of the Board to appoint leadership -- presumable when a vacancy occurs -- but not to remove the leadership.
Tori Turner, et al. v. Massie MHP, LLC takes us from putting out fires to the element most often used for that purpose -- H20. Specifically, the provision of that essential liquid by an owner of a mobile home park to the residents thereof. Code § 55.1-1243.1 provides for a cause of action against a landlord for the "willful interruption of an essential service."
It seems that Massie purchases the mobile home park in August 2022 and filed a proper application to assume the water and sewer utility obligations from the former owner, and included their correct email address but "due to confusion over the handwriting in the application, recorded Massie’s mailing address incorrectly." This resulted in the water and sewer bill not being paid for several months and eventually having the service shutoff.
Although invoices and notices were being sent to the email address as well as the incorrect mailing address and a representative of Massie communicated with an accounting clerk at the utility, it is unclear why Massie was not paying the bill because the "operations manager" did not receive the emails and was not sure that they were being read. The water was shut off around 10:00 AM on November 15, 2022, prompting Massie to pay up tout de suite. The water was restored in the early afternoon. The utility admitted that while it had advised Massie that the water could be shut off for lack of payment, it did not specifically advise Massie that it would occur on November 15.
The issue before the trial court was whether the tenants had proven a "willful interruption" of the water service. The trial was held without a jury, which meant that the trial judge was the decider of law and fact. Applying the generally accepted meaning of willfull as used in the statute, the judge concluded that the tenants had not proved that the cutting off of the water was the result of any willful act by the landlord, but merely by its negligence.
The Court of Appeals, Sr. Judge Humphrey, joined by Judges O'Biren and Ortiz, affirm. The reason is pretty clear. The circuit court correctly applied the usual meaning of willfulness in a civil context. The Court notes that in other statutes the legislature uses "willful or negligent," showing that it can distinguish between the two. Since the circuit court was the trier of fact, its determination that the tenants had not met their burden of proof was entitled to the same weight as a jury verdict.
Before moving on the the next case, a quick word about tout de suite. The phrase is obviously borrowed from French and translates literally as "all in a row," but it both languages means to do something without delay. The there are "toot sweets," for those who remember Chitty, Chitty, Bang, Bang.
When a case involves a sensitive subject and requires anonymity for a party, the Court permits the use of pseudonym. This was the case in Jane Doe v. Joseph Robert Green, Jr., a case of first impression interpreting Code § 8.01-249(6) which permits a delayed action for childhood sexual abuse. Subsection 6 establishes the accrual of an action for injuries sustained by sexual abuse of a minor to being "upon the later of the removal of the disability of infancy . . . or when the fact of the injury and its causal connection to the sexual abuse is first communicated to the person by a licensed physician, psychologist, or clinical psychologist."
When she 18, Doe had reported Green to the police, but Green was subsequently acquitted of the resulting charge. The issue here was whether Doe's cause of action accrued when she reached the age of 18 in December 2008 or when she was first diagnosed with Post-Traumatic Stress Disorder attributed to the abuse 13 years later.
One complication in determining when the cause of action accrued is that Code § 8.01-249(6) has been amended several times between the incident of the abuse and the filing of the suit. Additionally, Code § 8.01-243(D) was amended on 2011 to extend the limitations period for child sexual abuse cases from two to 20 years. The circuit court accepted Green's argument that the applicable versions of these statutes meant that the cause of action accrued on Doe's 18th birthday and the statute of limitations ran in December 2010.
The Court of Appeals, Judge Chaney, joined by Judges Callins and White, affirm. The principal basis of the decision is based upon the established rule that revisions of statutes are generally not retroactive absent clear legislative intent. At the time of the alleged abuse, the Code § 8.01-249(6) included the caveat that the date of the diagnosis, if later than the 18th birthday of the victim, was applicable "if the fact of the injury and its causal connection to the sexual abuse is not then known." Finding that this is the applicable version the statute, this means that the cause of action accrued on Doe's reaching age 18 as she clearly was aware of the abuse, even if she was not aware of a specific diagnosis of PTSD resulting from the abuse.
Doe also asserted that the 20-year limitations period in Code § 8.01-243(D) applies to her claims, but she dis not explicitly raise the argument that this code section is retroactive in any assignment of error. In the absence of adequate briefing on this issue, we do not consider it. See Rule 5A:20(e). I rather suspect, however, that the Court would have found the same rule of the presumption against retroactivity would have applied had the issue been raised as the amendment took place long after Doe's ability to file a timely suit had run.
Harvey B. Hazelwood v. Lawyer Garage, LLC, et al. is about choice of law -- and while "Lawyer Garage" would be a great name for a law firm, perhaps one specializing in "Lemon Law" claims -- the Lawyer in this case is one of the appellee's last name. Lawyer repairs and customizes cars, and Hazelwood transports cars. Lawyer hired Hazelwood to transport four of his cars to Arizona. One of these vehicles was a “Chevy Blazer chassis with a Pontiac Fiero body” which had been modified with a “350ci V8 engine mated to a 3-speed TH350 automatic transmission.” I will save you the trouble of trying to imagine what that looks like:
When Hazelwood arrived in Arizona and was unloading this beauty, the breaks failed and he was injured when he fell from the trailer as the car rolled passed. He sued Lawyer and few others involved in the transaction in Virginia, but alleged that the law of Arizona should be applied as the locus of the accident. The circuit court agreed and dismissed certain of the claims which were not cognizable under Virginia law. Hazelwood filed an interlocutory appeal.
The Court of Appeals, Judge Athey, joined by Judges Ortiz and Chaney, reverse and remand. The decision rests on the interpretation of the "lex loci delicti rule." In English, that means the "law of the place where the wrong occurred." The questions is, what was the "wrong" here? Was it the negligent act in Virginia of improperly working on the breaks and transfer box, or was it the injury of Hazelwood in Arizona as a result of the "effect" of that negligence.
The answer is that the while the actions that precipitated the tort occurred in Virginia, the tort was no "complete" until an injury resulted. And that occurred in Arizona. The Court answers this important question, but in my view not the most important one: Who wants to drive a Fiero on a Blazer chasis?
The last opinion from August 6 is Antwan Deangelo Barrow, s/k/a Antwonne D. Barrow v. Commonwealth of Virginia. Barrow was found to be in violation of his probation and was sentenced to a year and six months of his comeback time. The judge reimposed the remainder of the previously suspended sentence and imposed an additional period of probation.
This was Barrow's third violation of probation on a 2007 conviction. The violation was the result of Barrow leaving the state for work, which resulted in his failing to attend a meeting with his probation officer. The PO went to Barrow's address and was told he "was not living there." Barrow was located in Texas, where he was indeed working. Barrow would subsequently claim that he was unaware that he need permission to leave the state. The circuit court concluded that Barrow was "not suitable" for probation, but imposed only half the remaining sentence, but extended the probation on his release as indicated.
On appeal, Barrow argues that the circuit court abused its discretion in imposing the active time and also that it lacked the authority to extend his probation. The Court of Appeals, Judge Fulton, joined by Judges Lorish and White, affirms the revocation, but reverse the extended probation. The former is an easy call as there record shows that the judge gave sufficient reasons for the revocation sentence. Abuse of discretion is hard to prove when the judge explains exactly why he is exercising it.
The latter, however, is even easier, however, because there is a new sheriff . . . umm . . . law in town. Code § 19.2-303.1 was amended in 2021 and limits the time of probation to the statutory maximum period for which the defendant might originally have been sentenced to be imprisoned. In this case, that period ran before the new period of probation imposed by the court would have ended.
There are several other instructive points in the opinion on Code § 19.2-303 and Code § 19.2-303.1. First, the Court finds that a provision for imposing up to 5 years of supervised probation in the latter is a limitation on the court, not an authorization to impose additional probation. Second, the former statute permits probation to be extended when restitution remains owing, but the Court finds that the record fails to establish that Barrow still owed restitution.
This week saw just two more published opinions. Both invovles issues of contempt of court, though it may be readily apparent by the case name of the first. Rachel Virk v. Gary L. Clements, et al. involves a lawyer, Virk, who sued the Clerk of Court, Clemens, one of his deptuies, the Sheriff and a deputy sheriff for "false imprisonment, negligence per se, gross negligence, and civil conspiracy." What was the instigating cause of these claims? Well, it seems Virk was held in contempt by the circuit court and placed in custody by the deputy sheriff, the order was processed by the deputy clerk, and theie bosses let it happen!
You will be shocked to learn I am sure that the defendants' demurred to the suit, asserting that they were acting under color of law based upon their duty to obey the orders of the court. You will be even more shocked to learn that the Judge Designate who had to travel to Loudoun County to hear the case sustained those demurrers. Finally, in the most shocking turn of all, the Court of Appeals, Judge Callins, joined by Judge Beales and Friedman had the audactiy to affirm this decision. Let Claude Raines help us express our incredulity:
What is truely surprising about this opinion is that the Court went to great pains (26 pages worth) to explain just why these dedicated civil servants were not to be hauled before the courts (except, of course they were) for doing thier jobs. Perhaps I shouldn't say this is surprising as the Court does need to take seriously the protection that the law affords to public servants when they are bound by their duty to perfom an act. More to the point, the Court wanted to make clear that, while it was not ruling of the legality of the contempt order (which in fact was the subject of another appeal, and contrary to the assertion of Virk, the dismissal of the appeal did not somehow find that the trial court erred in imposing the contempt sanction), that issue was not relevant to whether the public servants were entitled to assume the judge was acting with proper authority.
You may have wondered what the action was that caused the judge to hold Virk in contempt. Well, in summary, she wouldn't take "no" for an answer. The court was taking up some pre-trial motions and ruled against her on one. Virk then tried to get the judge to explain his ruling -- but here's the thing, other than those instances where the judge is required to put his reasons for a ruling in writing (and even then, the judge doesn't have to stop the proceeding and immediately write the order), judges are not required to give a reason for their rulings.
Now, it is generally not going to be a matter of contempt to ask thje judge for an explaination of a ruling. But, once it becomes clear that the judge is ready to move on, insisting that he should do so is, well, not a particularly good idea. Some judges will be tolerant, explaining carefully that their ruling has been made and that they wish to keep the trial or hearing moving along two or three or even four times -- but its hard to know when your reach the judges limit. In this case, I think the judge made it pretty clear that he was reaching that point, but Virk was either too absorbed or too oblivious to seek the edge of the cliff.
I do recall an instance where one attorney avoid a contempt by getting right to the edge. Having been ruled against, he insisted that the judge hear his argument again. The judge listened patiently and then ruled as he had before. The attorney repeated his assertion that the judge should let him repeat the argument, "as I don't think you really understand it." The judge fixed the attorney with a stoney stare and said, "Counsel, I understand your argument perfectly, I just don't agree with it." The attorney wisely moved on.
Raymond Charles Bell v. Commonwealth of Virginia is an appeal of an finding of summary contempt under Code § 18.2-456(A)(1) and (3) for sending a letter to members of the venire panel following conviction for brandishing. The charge of contempt was then presented to a jury for sentencing, which imposed a six month penalty. We presume Bell did not send a letter to the second venire.
This case is surprising on two counts. First, the Court of Appeals, Judge Causey, joined by Chief Judge Decker and Judge O'Brien reverse the jury verdict. What's more surprising is that it did so by applying the "manifest injustice" exception to Rule 5A:18 becaus Bell did not preserve in the trial court the issues he raised in his appeal. Reversals of criminal convictions in jury trials are rare; getting passed 5A:18 is doubly rare. But when yout get the latter, it's usualy a sure sign that the former will follow.
Here's why the Court applied the ends of justice exception -- this was summary contempt, which means that the judge effectively pronounced Bell guilty upon finding his action was contempt, just as the judge did in Virk. But there is an important distrinction between this case and Virk. The letter Bell wrote (which alleged that he had not been allowed to put on evidence that would have proved his innocense) was mailed after the trial was over.
Only "direct" contempt can be dealt with summarily. To be direct, the contemptuous action must occur in the judge's presence or so very near to a judicial proceeding as to "obstruct or interrupt the administration of justice." That just did not happen here. The trial was over, everyone had gone home, and Bell wrote and mailed the letter sometime later.
So is Bell off the hook? Probably not. The Commonwealth could decide to try him for indirect contempt, and I think it is likely that it will seek to do so.
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