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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.

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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

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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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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

44

for the BZA to grant the variance, therefore they reverse the circuit court

holding the BZA’s decision was contrary to law.