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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Ok, so maybe Percy Sledge's version was better (actually, credit were credit is due, band members Calvin Lewis was the lyricist and Andrew Wright provided the music), but it's still a good intro to the first of two published opinions from the Court of Appeals of Virginia released today. City of Emporia v. County of Greensville is indeed about a coutnty suing a city.

Emporia is an independent city which is surrounded by and is also the County Seat of Greensville County. The City of Emporia is served by its own Treasurer, Commissioner of the Revenue, Sheriff and General Registrar. The courts system, Greensville County Sheriff, Commonwealth's Attorney and the Public Schools are shared with Greensville County. Check that again . . . Emporia has it's own Sheriff and also shares the Sheriff's Office with Greensville County. That's right, there are two sheriffs in town . . . umm . . . the city.

What this case is really about a bizarre distinction that existed in Virginia until 1971 with respect just how much independence a city could have. And this is going to get a little complicated, so try to hang in there.

Now you may know that at one time there were two types of cities in Virginia -- First Class and Second Class. First Class cities were wholly independent of their surrounding or adjoining counties. But Second Class cities were required to share certain constitutional officers with the surrounding county or an adjoining county, if not wholly surrounding by one county -- or in the case of Galax with both adjoining counties.

Second Class cities were also required to share a circuit court with the surrounding or an adjoining county, but sometimes were allowed their own district court. Actually, this all happened back when we had Hustings Courts, City Court's of Law and Chancery, City Sergeant's Courts, and Justice of the Peace Courts, among others, but I am trying to keep this simple. No really, I am.

Because the Commonwealth's Attorney served both city and county in the Hustings . . . umm . . . Circuit Court, residents of both voted for that office. Likewise, the County Sheriff provided security for the court that served both localities, so that office was also shared . . . except in three cases. Falls Church, which shared its court with Arlington had its own sheriff and did not vote for the Arlington sheriff, and Norton and Emporia had their own sheriffs and voted for the county sheriff (Wise County for Norton and Greensville for Emporia). Why? Well, the answer is because that was they way the City Charters were drafted by the General Assembly and everyone that had anything to do with that is dead, so try not to think about it too much.

The First Class/Second Class distinction was eliminated in the Virginia Constitution of 1971, but cities of the Second Class that were in existence at the time were allowed to continue their schizophrenic relationship with their surrounding/adjoining counties. Which brings us to Code § 15.2-3830, which provides that where a city and a county share a court, "the costs and expenses of the circuit court for the county, including jury costs, and the salaries of the judge and clerk of the circuit court and the clerk, attorney for the Commonwealth and sheriff of the county shall be borne by the city and county in the proportion that the population of each bears to the aggregate population of the city and county."

For fiscal year 2021-2022, Greensville County presented a bill of $676,924.94 to Emporia as it's share of the Sheriff's budget. In prior years, Emporia had gladly (or at least without complaint) forked over the amount requested. But in 2022, the City said "hold on . . . Code § 15.2-3830 says we have to pay the proportionate share of the Sheriff's salary. It doesn't say anything about the Sheriff's Department's budget!" And that is how the County came to sue the City.

The circuit court sided with the County. Before doing so, the City filed a motion craving oyer of some documents related to the Sheriff's budget which the circuit court denied. The City appealed the Court of Appeals, which today reverse the overall judgment, but in doing so finds that the circuit court did not err in denying the motion craving oyer. Now to be honest, I am not sure why Judge AtLee, joined by Judges Beales and Malveaux, chose to address the craving oyer issue since it is not really necessary to the decision, but if you want to know when a motion for craving oyer is appropriate, you can check out the opinion (short answer, you can only crave oyer of documents necessary to determine the merits of the case, and this case was limited to the interpretation of Code § 15.2-3830, not anything specific about the sheriff's budget).

The main issue is decided under that most vaunted of rules of statutory construction -- the plain meaning rule. The best way to read a statute is to, well, read it. If it does not admit of two interpretations, then its meaning is plain. Here, the grammar and punctuation are clear -- the costs and expenses of the court are to be shared, but only the salaries of the listed constitutional officers.

One final point that struck me when reading the statute and apparently struck the parties and the Court as well. Code § 15.2-3830 refers in close succession to the "clerk of the circuit court" and then "the clerk." But, of course, there is only one clerk of the circuit court. The parties suggested that perhaps the second "clerk" was a reference to some prior, now extinct office -- though what it might be no one seemed to know. The Court deftly avoids deciding the issue as it "does not change our analysis."

After that mindbending journey, Eric Antonio Newsome v. Commonwealth of Virginia will seem normal by comparison. Indeed, it is all too normal given the recent stories of random attacks on strangers to respond to a challenge on social media. While the incident in this case was captured on video, it seems not to have been for obtaining likes, I am not sure that makes it any better. After being identified in the video, Mr. Newsome was convicted of, disorderly conduct, assault and battery by mob and participating in a riot.

This particular riot was indeed an ugly thing as a group of 15 to 20 people surrounded a women, a stranger to them, and began insulting her appearance. Apparently not satisfied with this, when the victim attempted to push passed the group, she was physically assaulted. When her sister and brother-in-law arrived and tried the rescue her, they were attacked as well, with one of crowd hitting the brother-in-law with a bottle sufficiently hard to knock him unconscious. Yes, alcoholic beverages were involved, as you probably guessed.

Newsome appealed his convictions challenging the sufficiency of the evidence. Curiously, Newsome does not appear to have ever denied being present in the crowd --I guess that video evidence was probably tough to impeach. Rather, he argues that the evidence failed to show that he was a participant rather than a mere onlooker, or even if he participated, this really wasn't a mob assault or a riot, and more a matter of 15 to 20 people independently giving unwanted attention to the victim and her would-be rescuers. Apparently for the first time during oral argument he even suggested that the video showed him "trying to help the victim."

The Court of Appeals, Judge O'Brien joined by Judges Huff and Athey, give these arguments extremely short shrift, noting that all these arguments require the Court to review the evidence heard and seen by the jury in the light most favorable to the Commonwealth and to reject any contrary evidence proffered by the defense.

In fairness to Newsome, the evidence did show that he appeared to regret his actions, aided the victims after the mob had scattered and also cooperated with the police, but the Court notes that "these subsequent actions do not negate the evidence that he was a member of the mob when the victim was attacked."

Well, perhaps not as slow as at the Supreme Court of Virginia -- check out the latest comments on the low volume on the Ninth Street Side of the Courts' Building in Richmond from Steve Emmert's Virginia Appellate News and Analysis -- but the last three weeks have garnered just two published opinion from the 8th Street Side. Granted, there were quite a few more unpublished opinions, so perhaps we should not be too much concerned that the appellate robes are not getting enough work.

Before getting to the opinions, a quick note that Williams v. Commonwealth has been granted a rehearing en banc. This eventuality was foreseen in the summary of the case found here. A quick reminder that when an en banc rehearing is granted, the panel opinion is withdrawn -- that means you cannot cite to that opinion as precedent unless and until the full Court has its say. In some instances, though rare, the Court will adopt the view of the original opinion without comment, and then it can be cited. But if the Court issues its own opinion, even if it is in agreement with the panel decision, you must cite to the en banc.

Sarah K. Lehman, et al. v. WFV Holding, LLC, et al. is about a partition suit. Now, if you are not familiar with partition suits, these are actions to divide real property between the owners thereof. While it is theoretically possible for the Court to do this by subdividing the land and giving the parties separate ownership of the divided parcels, this is pretty rare. Why? Well, simply put, if the land could be divided into parcels acceptable to the parties, they probably would have done that on their own, because partition suits are expensive and filing deeds of subdivision are not.

More typically the Court will order the property to be sold by a commissioner. This requires quite a bit of rigamarole involving appraisals, hiring a Realtor, showing the property, etc. If no buyer can be found, the property may ultimately be sold through a "cry sale" on the Courthouse steps -- usually the least lucrative way to sell property. Then the Court has to award fees to the commissioner, the realtor, and often to the attorneys -- because if not all the owners are on board with selling the property (again, why go to court if everyone is in agreement) some may not bother to hire attorneys and its no fair for the folks who do to burden the of the legal fees while the other get a free ride.

Partitions frequently involve land that is passing upon the death of one of the owners (or of the owner who leaves the property to multiple parties), especially when the land passes without a will. That is what happened in Lehmann. The decedent, Helen Lehmann, passed away in 2012 and her brother Arthur filed an affidavit declaring that he was her sole heir. He took title to her real property in Amelia County and sold it to WFV Holdings. The only problem was that Arthur was not Helen's only heir. Rut Ro Raggy!

Eventually -- in 2020 -- the heirs and WFV, after presumably trying to resolve the issue amicably (one would hope, anyway) started filing competing partition suits. Sarah Lehmann had at some point qualified as administrator of Helen's estate, and that is how she ends up on the left side of the case today. Among the demands of the heirs was for rents and profits from WFV's ownership of the property. WFV filed successive amended complaints, but never included a request for reimbursement of any costs, including attorney fees, related to the properties.

These properties were quite valuable, eventually fetching north of $6 million. When it cam time to divvy up the proceeds, WFV suddenly remembered that it had quite a few expenses "including boundary surveys, appraisals, property taxes, property security, liability insurance, fees for an heir-locator service, and overhead time and costs an employee of WFV incurred in connection with the properties." Naturally, it wanted its former co-tenants to share in these costs. The co-tenants asserted that WFV could not receive reimbursement because it had not asked for it in its complaint.

The circuit court appears to have found otherwise. I say "appears" because it certainly awarded a big chunk of change to WFV, but in doing so it "found that [the heirs] had “concede[d] that they should contribute to [some] those costs." I suppose that one can concede to pay something while also denying that the other party is entitled to ask for it, but as the court went on to award costs that plainly had not been conceded, this seems beside the point.

The Court of Appeals, Sr. Judge Clements joined by Judges Beales and Callins, reverse the judgment. First, they agree with the heirs that WFV did not ask for reimbursement, so it can't get it. But what about their concession as to some of the costs? The Court notes that this "concession" was not a concession at all -- rather, it was an alternative argument in which the heirs has clearly stated that if the circuit court were to agree with WFV that it was not required to ask for reimbursement then only some of the expenses WFV alleged were reimbursable. In other words, the heirs' counsel recognized that the judge might not agree with his first argument and so went ahead and plead in the alternative that WFV was overreaching in its claim for expenses. Pleading in the alternative is perfectly proper and usually efficient -- though in this case it seems to have caused the trial court to make a pretty obvious error.

We're not quite done with this case however. The opinion does not reveal whether appellate counsel for WFV were also trial counsel and, thus, responsible for the failure to ask for expense reimbursement despite getting three shots at it in their complaint, amended complaint and 2nd amended complaint, but regardless of whether they were, the final footnote of the opinion suggests that WFV needs to find new counsel when next it needs legal assistance.

The footnote tells us that "WFV asserts that it 'has assigned cross-error to the circuit court’s failure to allow'" WFV to amend its complaint a 3rd time (rather late in the proceedings) to add the claim for damages. Now, I think its a fair bet that while leave to amend is to be liberally granted, the circuit court's refusal to allow this would be upheld as it is an abuse of discretion standard. However, we will never know, because WFV did not, in fact, have a properly laid out cross-error argument in its brief as required by Rule 5A:21(e). The Court is not precise as to exactly how deficient the brief was, but it must have been pretty sever as the Court quoted the Rule's admonition that the argument must be “stated in one place and not scattered through the brief.” As Velma might say, "Jenkies!"

H.C. v. Potomac Hospital Corporation of Prince William, etc. is a tort case which raised the question of when a medical professional is acting outside the scope of his employment and, thus, his employer is not vicariously liable for his tortious actions. H.C. was a patient at a medical facility operated by Potomac and Frederick Yeboah was employed their as a nurse. Yeboah had previously worked at a different hospital where he was disciplined and fired following allegations of sexual harassment. H.C. alleged that Yeboah sexually assaulted her in the hospital.

Whether Potomac knew of Yeboah's prior history is uncleare, but H.C. did not allege negligent hiring, supervision or retention, only that the hospital was vicariously liable under respondeat superior. This means that for the hospital to be liable, H.C. had to prove the Yeboah was acting with the scope of his employment when the assault occurred. At trial, the circuit court struck H.C.'s case as to the hospital. H.C. received a $500,000 verdict against Yeboah.

There is a rebuttable presumption that an employee who is going about the employer's business is within the scope of the employment. This means, in effect, that the employer must prove that an employee "on the clock" was not acting within the scope of the employment when the tort, whether intentional or negligent, occurred.

To avoid the obvious discomfort of discussing whether a sexual assault would ever fall within the scope of any employment, let's instead take a more common example -- an employee who drive a vehicle for his employer. It should be obvious that if the employee drive the vehicle in a negligent manner while doing his job the employer will be vicariously liable for the injuries caused by that negligence.

But suppose that while on the job, the employee decides to take a detour and stop by his girlfriend's house and while on the way there has an accident. Would this be sufficient to take him outside the scope of the employment? Well, the smart money says "maybe" because it might depend on whether the employer allowed these diversions or at least knew that they were commonplace. This makes it a jury question.

But suppose instead of going to visit the girlfriend, he sees her on the sidewalk as he is driving his route and she is in the company of an old flame. Driven mad by jealousy, he deliberately steers the vehicle off the road, striking them (or perhaps an innocent bystander). Would this be outside the scope of his employment? The answer is much closer the a "yes" here.

But when a court is asked to strike the evidence and take the issue away from the jury, it can't just be close to a "yes," it has to be an absolute certainty that no jury would find otherwise. In other words, the court must find that as a matter of law, no reasonable juror could hold the employer responsible for the act of the employee.

When the tort is the result of negligence, it's much harder for the employer to rebut the presumption. When the tort is intentional, its still not always easy -- for example, a store clerk might intentionally hit an annoying customer and that would likely be viewed as within the scope of the employment. But sexual assault is quite another matter. Nonetheless, the Supreme Court of Virginia has acknowledged that if the assault occurs while the employee is performing a work-related function -- for example, while “undressing” or “bathing” a resident of a nursing home, it could still fall within the scope of the employment because the assault was simultaneous with the performance of a job duty.

The Court of Appeals, Chief Judge Decker, joined by Judges O'Brien and AtLee, find that in this case the evidence showed that Yeboah was not performing a job related duty when he assaulted H.C. This is a difficult call to make and, I suspect the Court struggled with its decision. Ultimately, however, the Court concluded that there was simply no evidence that Yeboah was, even in some tiny degree, acting as a nurse when he assaulted H.C.

There were three amici briefs filed, two in support of H.C. and one in support of the hospital. With that much interest in the case, I suspect that a petition for review by the Supreme Court will be filed.

Speaking of petitions for review, Orndorff v. Commonwealth, which was affirmed by an equally divided court after the 2-1 panel decision was granted an en banc review has been appealed to the Supreme Court. I believe the Justices must take up this case, and will do so.

The Court of Appeals started the month of May off strong with six published opinions, on of which was a rehearing en banc.

The rehearing was Pamela Kay Humphries v. Robert Brian Buchanan, et al. which was originally decided by an unpublished opinion in August of 2023 with a split decision in which Judge Chaney, joined by Senior Judge Haley, declined to review the appeal for lack of a necessary transcript, while Judge Ortiz dissented, finding that one issue was a pure question of law that could be decided without a transcript. The en banc was granted limited to this issue and results in a 10-6 which reverses the judgment of the trial court, with judge Ortiz writing for the majority joined by Chief Judge Decker and Judges Beales, Huff, O’Brien, AtLee, Malveaux, Fulton, Ortiz, Raphael, and White with Judge Callins, joined by Judges Athey, Causey, Friedman, Chaney and Lorish, dissenting. The argument took place after Judge Humphrey's retirement and prior to Judge Frucci taking office, so the Court was one shy for the en banc.

The issue is whether a circuit court should consider supplemental security income (SSI) received by a dependent child as an "independent financial resource" when calculating child support. The majority concludes that SSI benefits are a dependent resource which are not to be used in the support obligation.

SSI benefits are available to individuals with disabilities who have no source of income and assets that fall below a specific threshold. If the individual has income, the payments are reduced in ratio to the income received. Humphries and Buchanan have an adult disabled child who receives SSI. The Social Security Administration treats child support payments as income of the individual, calculating the income at 2/3's of the payment for purposes.

The majority reasons that because the receipt of child support reduced the SSI payments, SSI is not independent of child support, but is in fact determined by the amount of the support payments. Thus, SSI is not independent income of the child and cannot be used to calculate the non-custodial parent's support obligation.

The dissent views SSI has plainly income of the child from a source other than a parent, and thus, in that sense, independent income for purposes of calculating child support. Although SSI is a public assistance program, the dissent notes that such benefits are excluded from child support payments when received by the parent, not the child.

This case is almost certainly going to be appealed to the Supreme Court and I would be very surprised if the Court did not grant review.

Jamie Allen Harless v. Kenneth E. Nicely, et al. involves a complaint against four employees of a school division alleging defamation. The circuit court sustained a demurrer finding that the complaint failed to state a claim for defamation per se and further finding that statements made by three of the four defendants were subject to a qualified privilege.

The incident in question that resulted in the alleged defamation was a high school football game. Harless was the coach for the visiting team. When one of his players was injured during the game, Harless was alleged to have shouted obscenities at one or more players on the opposing team. The principal of the high school where the game took place, filed a report in which she repeated the alleged statements and further stated that "Harless acted in a racist manner unfit to coach when he intentionally targeted two WBHS players because they were Black," and that they had acted "like thugs" and were "big time drug dealers." SHe alleged that Harless had made this statements intentionally to bait the player and disrupt play.

Harless further alleged that at the game students and/or parents mocked him based on allegations that he had illegally recruited players to his team. He further alleged that a school board member had posted similar allegations on a social media page, while another made the allegation to the school superintendent, who then defamed Harless in a letter to the Virginia High School League.

The Court of Appeals, Judge Beales joined by Judges O'Brien and Raphael, affirm the dismissal of the complaint on demurrer. The Court finds that three of the four defendants were clearly within a qualified privilege as their communications were related to their involvement in the extramural sports program and were directed toward assuring its integrity, were not communicated outside the privileged group, and the allegation of malice in the complaint was not support by the facts asserted.

As to the fourth defendant, the Court assumed that the allegation of actual malice was sufficient to remove the privilege. However, the circuit court had also found that the statements alleged to made by this defendant were not sufficiently specific, and not objection was made to the alternate ruling. Similarly, the appeal failed to challenge the ruling on several of the statements generally in the appeal, so any objection to those statements was waived.

I will refrain from speculating on whether a high school football coach is a public figure -- though certainly the argument could be made in many communities that they are -- and thus the New York Times v. Sullivan standard might have applied here even if qualified privilege had not. I will, however, comment on the continuing trend of the Court to apply procedural bars where the appellant does not argue against every ruling of the circuit court on every issue challenged. Attorney's drafting their briefs need to take the blinders off when they are hyper-focused on a particular issue to make sure they are not leaving themselves open to a dismissal for failure to assign error to an alternate basis for the ruling.

The term NIMBY has gain a pejorative connotation over the years, but this is undeserved in many cases. Changes in zoning can significantly impact property value and quality of life, and local governments are often more focused on economic development and the attendant increase in tax revenues than on the impact of rezoning on surrounding properties. Richard Rebh, et al. v. The County of Arlington County, Virginia involves a challenge to various amendments to the comprehensive plan for development conducted by Arlington County as part of the Amazon HQ project. The plaintiffs/appellants are residents of two condominiums adjoining rezoned property.

Rebh and the other neighbors filed a four count complaint against the County alleging that, among other errors, it had failed to provide adequate public notice of the rezoning hearing. The County demurred and the circuit court sustained that demurrer. The Court of Appeals, Judge Callins joined by Judges Causey and Athey, does something a bit unusual in that they not only reverse the dismissal of the complaint, they find that as a matter of law the record establishes that the County did fail to provide adequate notice and enter judgment for Rahb.

Normally, when the appellate court reverses a decision sustaining a demurrer, the case is remanded to the circuit court for further proceedings beginning with an answer from the defendant. In this case, however, the County craved oyer of the complete record of the process which adopted the changes, and this apparently gave the Court sufficient grounds for finding that the record established the failure of the County to abide by the notice requirements.

Specifically, the notice, while quite extensive, failed to include specific elements and descriptions of the proposed changes that directly impacted the neighboring property. while the notice need not be comprehensive, it must be sufficient to either (1) notify the public as to what specific geographic area would be affected, or (2) notify the public as to the manner in which this geographic area would be affected. Finding that the notice did neither, the Court concludes that the notice was inadequate and the subsequent adoption of the changes was void ab initio.

This may prove a hollow victory for the neighbors, as the County will likely simply provide an adequate notice and adopt the changes. Of course, it is possible that in the interim, with the down-scaling of the Amazon project, the changes may not even be needed.

The Court also decided three criminal appeal on May 7, 2023. Hunter Lee, III v. Commonwealth of Virginia arises from an Alford plea entered after the circuit court denied a motion to suppress the search of Lee's backpack. The search took place after law enforcement encountered Lee in a convenience store while responding to an anonymous phone call stating that an individual matching Lee's description was involved in a domestic altercation and was seen walking toward the convenience store. The caller was very specific and gave detailed information about the suspect including that he was armed and carrying a backpack with drug paraphernalia in it.

When asked by officers if he had been involved in a domestic incident, Lee admitted that he had. He denied being armed, volunteering that he was a convicted felon. Lee submitted to a pat-down and no weapon was found. The officers then asked to search the backpack. Lee handed it over, stating that he "had his pills" inside. Officers found plastic bags and a set of scales in one pocket of the backpack. The officers noticed that Lee also had plastic a bags protruding from his pants pocket.

Inside the backpack there were also dietary supplements and medication which Lee indicated was "for his heart." Finally, there were also five plastic bags with "a white power rocklike substance" inside a prescription bottle.

Rut Ro, indeed. Lee argued at trial that the search exceeded the scope of the permission given. The problem is that Lee did not give any limiting statement when handing over the backpack. While the officers had initially asked about weapons, after the pat-down, they then asked about any other contraband, specifically asking if there was anything that they "needed to know about." File this case under "Remind your clients to 'Just say No' whenever the police ask to conduct a search.

Michael Jason Drexel v. Commonwealth of Virginia arises from a conviction for "threatening to damage a building." This is an unusual charge in that it requires the Commonwealth to prove there was a true threat, that is that whether the defendant had an actual intent to carry through with the threat, there must also be a real potential for the threat to be carried out.

Drexel was undergoing therapy and regularly telephoned his therapist in an agitated state. During these calls he would express homicidal thoughts and threatened to "bomb city hall," referring to the City of Alexandria government building. He told the therapist that he intended to carry out this threat. The therapist was sufficiently concerned that she sought to have Drexel evaluated for an emergency mental health commitment and also contacted Alexandria police.

Police interviewed Drexel by phone. During the conversation, Drexel told the officers he would "burn down city hall," saying that he "wanted to send a message" and that "he was going to be the next Timothy McVeigh." Based on these comments, police obtained an emergency custody order. A subsequent search of Drexel's vehicle found an ice pick, pother tools and a bottle of gasoline.

Drexel was convicted of making a threat to bomb, burn, or damage a place of assembly or building in violation of Code § 18.2-83. He was convicted in a jury trial and appealed the conviction assigning six errors. Chief Judge Decker, joined by Judges O'Brien and AtLee, affirm.

While the 23 page opinion addresses the six assignments of error, the principal issue of not in the case is whether Code § 18.2-83 includes a "true threat" requirement in addition to the mens rea element. The Court concludes that it does, but further concludes that there was sufficient evidence to show that Drexel not only had the requisite mes rea to carry out the threat, but had the actual capacity to do so. Admittedly, this determination is often based on circumstantial evidence and the subjective perception of the individuals to whom the threat is communicated.

My principal concern with this case is what is not mentioned in the opinion. The opinion makes no mention of whether Drexel was evaluated for competency to stand trial or whether any mental health/diminished capacity defense was offered. Drexel was upset about his wages being garnished to pay a tax debt, and this alone does not suggest that he was irrational -- almost everyone whose wages and assets are garnished is upset by the loss of resources this entails. But the opinion certainly implies that Drexel's agitation was more than usual.

The final decision of May 7, 2023 is Brian Edward Sheets v. Commonwealth of Virginia, which requires the disclaimer that you humble correspondent was counsel on appeal to the defendant. Because at this time the appeal remains subject to potential further appellate process, I will refrain from summarizing the case or making editorial comment, but merely refer the reader to the opinion.

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