Three En Banc Decisions Before Christmas

The Court of Appeals released five published decisions today, but only two are from "new" cases. The other three are rehearings en banc, so if you are a regular reader of this space, you will likely recall the details.

Telegraph Square II, A Condominium Unit Owners v. 7205 Telegraph Square, LLC was first decided by a panel of the Court in late April of this year. When I summarized the opinion, I said that I found some aspects of the case "troubling enough to foresee a petition for rehearing en banc and/or an appeal to the Supreme Court," and as there was dissent from the original panel case, the disappointed appellant sought the former route and was granted a review by the en banc Court.

As was explained in the original summary, which you may want to read if you don't recall the case and have an interest in "corporate condos" or similar multi-ownership properties, this case is about parking spaces and how they were assgined to the various phases of the develoment of an industrial business park. The reason I am not recounting the decision by the en banc court is becuase we don't know what it was, or rather we know only that "[i]n accordance with the unpublished order of this Court entered on December 19, 2023, the stay of this Court’s April 25, 2023 mandate is lifted and the judgment of the trial court remains affirmed." This statement appears in a published order, which is necessary because the original opinion was published, so now the published record shows that the case has been affirmed, and also starts the clock running on a petition for appeal to the Supreme Court.

Why was the order affirming the case unpublished? Good question. I could speculate that perhaps there was some procedural sanfu that kept the full Court from reaching the merits, or possibly that the Court could not reach a majority decision and did not want to publish a palimpsest of pluarality opinions. I will attempt to obtain a copy of the unpublished order to resolve the mystery and will update this post if and when I have the answer.

We get an acutal opinion in Arun Rashid Turay v. Commonwealth of Virginia. I cannot refer you to a prior post becuase Turay was originally unpublished. A panel had initially affirmed Turay's convictions based on an Alford plea that was entered to challenge the constitutionality of a Terry stop of Turay and another man in aneighborhood where a home invaision robbery had occurred. We don't have that opinion, because it was withdrawn and a panel rehearing was granted. The revised opinion reversed the convictions, with Judge Chaney, joined by Judge Callins, in the majority and Senior Judge Petty dissenting. Today's en banc decision affirms the judgment and is by Judge Lorish, who is joined by Chief Judge Decker and Judges Humphreys, Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Raphael and White. Judges Chaney and Callins write separate dissents.

The facts are straight forward. Occupants of the home reported that three men had entered the home and stolen some property was allegedly taken -- though the specific property mentioned, a gun, was actually recovered from the home having been moved to another room by a resident "while waiting for officers to arrive. A "be on the lookout" was issued for "three black males, dressed in black." An officer observed Turay and the other man, only one of whom was wearing black (the opinions do not say which), about "six to ten" blocks from the home that was robbed. The two mean were detained "about one and half to two minutes" before additional law enforcement personnel arrived "with additional information learned from watching home security footage," which allowed them to identify the men as perpetrators of the crime.

The issue is, as in anyTerry stop case, whether the first officer had reasonable articulable suspicison sufficient to warrant the temporary detention. But before we get to that topic, can we pause for a moment to consider the unusual circumstances of the "gun that wasn't stolen"? This is purely speculation on my part -- but I like to think it is informed speculations -- that a home that is the object of a three man invaison robbery where there is security camera footage of sufficient quality to identify the suspects and a gun is secreted prior to the expected arrival of the po-po is not the residence of Ozzie and Harriett Nelson (for you kids under the age of, well, me, "Ozzie and Harriett" was a sitcom during the "Golden Age of Television"). However, regardless of what may or may not have been going on in that residence, the occupants were entitled to the protection of the law and law enforcement.

The majority, stating that they are "[a]pplying binding precedent here [and] mak[ing] no new law," finds that the description of the suspects and the proximinity in time and place was sufficient to give the officer a reasonable basis for the temporary stop. I agree that the majority is applying no new law, especially as it does so by deferring to the factual findings of the trial court.

But it is those findings with which Judges Chaney and Callins take issue. In Judge Chaney's view, the evidence, even viewed in the light favorable to to Commonwealth, was not correctly interpreted by the circuit court. She goes further, however, in stating that even if the evidence was as the court found, the majority "grants police license to seize a Black man at gunpoint for merely walking late at night within the wide general area of a recent crime and “matching” the race and gender of the suspects." Judge Callins writes separately and with less strident language, but agrees that a stop based primarily on the circumstance of the two men being of the same race as the suspects in the BOLO and one of them being dressed "in black" was insufficient to support even an invetigatory stop.

There is no question that Turay and the other man were "detained" as the officer confronted them with his service weapon drawn. This show of force clearly acted as a restriction of their liberty. My concern with the facts, similar to Judge Callins, is whether the temporal and physical proximity to the crime was sufficiently close to add weight to the officer's suspicions. While I am not unsympathetic to the views expressed by the dissents, I do not believe that there views will find much sympathy with the Justices of either the Supreme Court of Virginia or the US Supreme Court should Turay choose to pursue his appeal further.

The last of the three en banc decisions is Michael Brown v. Timothy L. Kirkpatrick. When I summarized that case last July, I was even more emphatic that the case was headed for an en banc review. That was hardly a difficult call to make, as this issue is a novel argument regarding "tender" of UIM coverage with a waiver of subrogation in an automobile accident case in return for the defendant's carrier agreeing to defend (thus, saving the UIM carrier the expense of providing an attorney to represent its interests). Brown's UIM carrier did just that and Brown received $50000 of a $286,000 judgment from Kirkpartrick;s liability coverage and the balance from his UIM coverage. Normally, that would result in Kirkpartick being let off the hook for the $236,000 since the UIM carrier waived subrogation, but Brown contended that his carrier's waiver of subrogation simply meant that he, Brown, could pursue Kirkpatrick for the $236,000, reasoning that Kirkpartick should not benefit from Brown's contact with his UIM carrier.

If you are good at math, you can see that Brown is trying to turn a $286,000 judgment into a $522,000 judgment. Setting aside the issue of whether the UIM carrier might somehow have a lien on any recover Brown made, which is an issue for another day, the original panel split on whether Brown was trying for a double recovery or merely assuring that Kirkpatrick not reap the benefit of a field he did not sow.

The seminal case on this issue is Llewellyn v. White, 297 Va. 588, 599 (2019), which ruled where a UIM carrier tenders payment to the insured (that is, the plaintiff) and waives subrogation, the collateral source rule applies and the tortfeasor remains liable for the full judgment. But here, the agreement was between the UIM carrier and the defendant's carrier. The majority held that made a difference and Brown could pursue Kirkpatrick for the $236,000; the dissent saw it as a distinction without a difference

Today, Judge Huff, who was the dissent in the original panel, authors the majority finding that Brown is not entitled to a double recovery. He is joined by Chief Judge Decker and Judges Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Raphael, Lorish and White. Judge Humphreys, joined by Judge Lorish (the two being original majority) and Judge Chaney, dissents. Expect a petition for appeal the the Supreme Court on this one -- and given the paucity of cases on the Court's docket, I would hope for a grant.

The first of the two "new" cases is Donald Rosson v. Erie Insurance Exchange. Rosson was a passenger in a commerical truck that was involed in an accident; Eire was the carrier on the vehcile's laibility coverage. Eire sought a declaratory judgment contending that its policy exlcude liability for injuries that were subject to Workers' Compensation coverage Rosson, who had filed an action against the owner, his employer, and the driver, a fellow employee, was a party to the declaratory judgment action, but despite being given two extensions, never responded with an answer or other defensive pleading challenging the declaratory judgment action -- nor did the employer or the driver (who were also defendants).

Eire filed a motion for default judgment. Rosson filed an objection to the motion, requesting additional time to file an answer. He also conteded that he had nonsuited his civil action, so there was no justicible controversy, which was necessary for a declaratory judgement action, so the court could not grant default judgment. The circuit court ruled that it had jurisdiction, denied the thrid extension, and granted default judgment. Rosson appealed.

The Court of Appeals affirms. Judge Athey, joined by Chief Judge Decker and Judge White, find that the circuit court correctly determined that it had jurisdiction. The Court further found that the circuit court was within its discretion to deny Rosson a thrid extension to file his answer, and since no answer was filed, the fact that Rosson had in fact nonsuited his case was not relevant to deciding that issue Eire's potential obligations under the policy.

If you find the Court's disregarding of the nonsuit as troubling, you aren't looking at the procedural posture of the case. Had Rosson responded to the declaratory judgment action with an answer, demurrer or plea in bar alleging that he had nonsuited the tort action and, thus, there was no pendy controvery, he would have been right. But he didn't do that.

Instead, he wanted a chance to respond to the suit by asking for a third extension to file his answer (or demurrer or plea in bar), but first he needed to defeat the default judgment motion. In effect he was arguing that "if I am permitted to answer, I could allege the court had lost jurisdiction, and then the suit would be dismissed without prejudice -- to either party." But the circuit court, exercising its jurisidcition based on the unrebutted allegation of the complaint, replied, "perhaps, but I am not going to allow you to answer, so I still have jurisdiction to adjudicate the controvery as alleged in the complaint."

Now, you may be wondering if Rosson should be angry with his counsel for not filing an answer (or demurrer or plea in bar) despite being given ample time to do so. Perhaps, but my guess is the reason that no answer was filed is simply because there was no reasonable answer to be filed. Eire was absolutely right that it had no duty to defend or provide indemnity for an accident caused by a fellow employee in the course of Rosson's employment. So whether by default judgment or one on the merits. Rosson was going to lose either way.

Today's final case is Anne Filosa Creekmore v. Commonwealth of Virginia, and it comes from the same panel as Rosson, but with Judge White taking the honors for the opinion. Creekmore, a licensed psychologist, began treating a juvenile patient at the age of 15. Creekmore learned that the patient had been abused by her mother since she was in elementary school. She advised the child to "defend herself" and also sought to have the parents participate in group counseling. Althought the father participated, the mother did not and both the child and the father stated that forcing the mother to attend counseling woult be "disruptive" and "potentiall dangerous."

After the child stopped going to Creekmore for counseling, an anonymous report was made to child protective services resulting in a case being opened. Creekmore later claimed that she had been the anonymoust caller.

Creekmore was charged under Code § 18.2-371 for contributing to the delinqunecy of a minor based upon her alleged failed to comply with the mandatory reporting requirement of Code § 63.2-1509. At trial, in a motion to strike the Commonwealth's evidence, Creekmore asserted that she did not make a report as required until after the child stopped coming to therapy, becuase it was only after the last session that she formed a firm belief that the child was being truthful about the abuse. She further conteded that even if she should have reported the abuse earlier, her failure to do so did not result in the abuse, which had already occurred. The circuit court overruled Creekmore's motion to strike and she was convicted.

The Court of Appeals affirms that conviction finding that Creekmore's failure to report the alleged abuse was an "omission" that cause the child to remain in an abusive and dangerous environment. Because the circuit court rejected Creekmore's self-serving claim that she did not have sufficent basis for reporting the abuse until after the child ceased coming to therapy, the facts supported the conviciton.

NIMBY does not convey Standing for Tax Assessment Challenge

The Court of Appeals had a single publihsed opinion this week after having none the week before and it's not much of an opinion as Mary Pat Martin v. Ryan S. Lafountain, Commissioner of Revenue for the City of Roanoke barely tops 5 pages. But as short as it is, it still packs a punch given that the issue is whether a citizen can seek declaratory relief against the tax assessor who, according to the citizen, is arbitrarily refusing to impose business taxes on the owner and the lessee of a neighboring property. The property in question is a residential home in the Oak Hill neighborhood of Roanoke, Virginia that is being used as a "half-way house" for recovering substance abusers.

The property is pictured below in an image from Google Street View® from July of this year and appears to be a well-maintained and relatively upscale home. According to Zillow, it has 5 bedrooms, 3 baths and an estimated market value of $526,400.

Other residents of the neighborhood banded together in 2020 to block the establishment of the half-way house through a zoning challenge, which failed. The Zoning Administrator ruled that the property was compliant with the local zoning designation as a "group home" and did not require a special use permit. Some of the residents successfully applied for lower assessments of their properties after the halfway house was allowed to continue to operate in the neighborhood.

One of those residence, Mary Pat Martin, tried a different approach. Martin filed a declaratory judgment action against the Roanoke Commissioner of Revenue asserting that the property was being operated as a business and was not being properly taxed as such. The company that operates the half-way house has a clinic elsewhere in the city and is properly licensed and taxed at that location, but according to Martin the half-way house was a separate business. Now its not to much of a stretch to say that what Martin was really angling for was a court ruling that the property was being used for a comericial, not residential, purpose, thus being able to collaterally challenge the Zoning Administrator's determination that the use was permitted as a residential group home.

The Commissioner, however, was more interested in whether a private citizen had standing to bring an action seeking declaratory and injunctive relief to compel him to levy a tax. The circuit court found that Martin did not have standing and dismissed without reaching the merits of the case. The Court of Appeals, Judge Causey joined by Judges Beals and Ortiz affirms.

Martin asserted that Roanoke City Code § 19.1-3(7) and Virginia Code § 58.1-3703(7) provided standing for her action as a taxpaying resident of the city. Ordinarly merely being a taxpayer does not convey standing to challenge a governmental act as unlawful. The principal execption to this rule is where the taxpayer challenges "the legailty of expenditures by local governments." As the Court of Appeals observes, "A decision to refrain from taxing an entity is not an expenditure."

The Court goes on to say that even if the concept of standing could be extended the the failure to assess taxes, the standing conveyed to taxpayers is not general, but limited to specific instances were the taxpayer can show a particularized harm from the practice, rather than one that is sepculative or merely nominal. Here, the Court finds that Martin merely is expressing a disagreement with a policy of an elected consitutional officer, and it is well-established that the courts will not interfere with policy decisions of the elected branches.

There are several aspects of this case that trouble me. First, the case probably should have been brought as a mandamus action, though it likely would have run up against the same objections as to standing. Second, even assuming that the half-way house is a "business," it seems to clearly be part of a business that operates with a license in the city and the revenues of which are being taxed, so I am doubtful that a finding that the home was a part of a "commerical" enterprise would impact the zoning anymore than if a landlord owned and rented several residential properties in a locality, but managed those properties from a commerical office. Finally, I am doubtful that even if the Commissioner was to determine that the home was being used for a commercial purpose that this would necessarily require the City to revisit the zoning determination. I can think of several examples where a zoning ordinance would permit a commerical use in a residential zone -- indeed, there is nothing to suggest that a "group home" permitted in the zone could not be a for-profit operation.

Catching up after the holiday

The Court of Appeals Blog is catching up after taking a few weeks off. During that time, five published opinions were released, including a sharply divided en banc today. Let's start with the en banc, as it is surely destined for a petition for appeal to the Supreme Court by the Commonwealth.

Patrick Austin Carolino v. Commonwealth of Virginia was decided by a divided panel in December of 2022, reversing a conviction for strangulation under Code § 18.2-51.6. The panel described the incident as part of a "stormy romantic relationship" and the issue on appeal was whether the circuit court erred in admitting evidence of a prior bad act involving the defendant and the victim. The majority reversed, but the Commonwealth sought and received a rehearing en banc. Today's majority opinion is authored by Judge Friedman, who also authored the panel majority, and the dissent is by Judge Fulton, the panel dissenter, so that's a pretty good indication of how this case came down. The breakdown of the Court is also interesting. Joining in the majority are Judges Huff, Malveaux, Fulton, Ortiz, Causey, Chaney, Raphael, Lorish, Callins; joining Judge Fulton are Chief Judge Decker and Judges Beales, O’Brien, AtLee, Athey, and White. That's 10-7, so a solid win for Carolino, but hardly unassailable if appealed to the Supreme Court.

The initial dispute between the majority and dissent is on procedural grounds -- whether the assignment of error was sufficient and whether the record is sufficient to allow the court to decide a "right result, wrong reason" argument put forth by the Commonwealth. On the substance of the issue, the division is more nuanced as it involves the question of whether the prior bad act evidence (which included graphic photographs) was improper collateral evidence used to impeach the credibility of the defendant. On this point, I have long been of the view that a trial court must tread very lightly when being asked to admit prior bad act evidence for "impeachment," given the propensity of a jury to be prejudiced against the defendant. Accordingly, I find the majority view persuasive -- and as is usually in such cases, I am left wondering why the Commonwealth chose to take the risk. The case without the impeachment evidence was strong, and the jury had no reason to give the defendant any credibility. I also wonder whether the majority (or at least two members) would have felt differently if the photos had not been allowed.

Tara Ann Baez v. Commonwealth of Virginia was decided on November 14. Judge Fulton, joined by Judges Huff and Athey, affirmed Baez conviction for possession of a controlled substance. Among other issues, Baez appeal the admission of body camera footage from an officer who was not present for cross-examination or to authenticate the footage. As to the confrontation issues, it is well decided that a passive recording device is not a "witness" and merely because the offer who was wearing the device does not testify, his absence is not a basis for asserting the footage was inadmissible, provided the footage can be authenticated some other way. That other way is provided by .Virginia Rule of Evidence 2:901.

In general, video recordings are admissible to 1) illustrate in court testimony, or 2) serve as a silent witness. The circuit court found that the video was admissible under both theories. Baez makes the creative argument that the court should rely on only one theory. The Court of Appeals says, "Um, no, but nice try," and also finds that the recording was admissible under both theories.

Qualik Nashawn Davis v. Commonwealth of Virginia was decided last week. Davis was a previously convicted felon who was found to be in possession of both illicit drugs and a gun.

Let me pause here to make an observation. You know how they always say, it's not the scandal, it's the cover-up. Well, a corollary to that should be, it's not the first felony, it's the next one. Most people convicted of a felony for the first time get relatively light sentences, along with a strong admonition to follow the straight an narrow. While I will not act as an apologist for the lack of proper rehabilitation services in prison and on probation, the fact is that most first-time felons wind up getting into trouble with the law again and usually that means that they are facing enhanced penalties for many of the offenses they incur.

Davis argued on appeal that he could not be convicted of both illegal concealment of a firearm and possession of a firearm that was concealed after conviction of a felony because of double jeopardy. The Court of Appeals, Chief Judge Graff joined by Judges Athey and White, points out that the relevant statute describes the two offenses in the disjunctive, and that the "concealed" language only applies to the illegal concealment of a weapon by anyone, while the latter addresses the possession of a weapon by a convicted felon. As the two offenses have different elements that must be proved, the two convictions do not violate double jeopardy.

Graydon Manor, LLC v. Board of Supervisors of Loudoun County, Virginia was also decided last week. The issue was whether a circuit court sitting in appellate jurisdiction to review a decision of a board of zoning appeals can strike the evidence and dismiss the writ proceeding. Judge Ortiz, joined by Judge Humphreys and Sr. Judge Annunziata, say, "Well of course it can." Most people who don't appreciate the distinction between and trial and a certiorari hearing are probably wondering what the difference is. Certainly; a trial and cert hearing look much the same. The difference is that a cert hearing reviews the decision of the BZA under an appellate standard, not de novo. Thus, Graydon Manor argued that the trial motion to strike the evidence should not be available.

Graydon Manor is half right. Normally trial procedures are not available in appellate proceedings. However, in a cert proceeding, the circuit court can received evidence and is required tom make credibility judgments. In such cases, a motion to strike is appropriate because the court may conclude that the evidence presented by the petitioner is insufficient to establish legal error or caprice in the decision of the BZA. While this might be viewed as "short circuiting" the process and depriving the petitioner of a reasoned ruling that can be further appealed, that was not the basis of the appeal.

Finally, we come to the last case issued today along with Carolino, and Donald Calway v. City of Chesapeake comes with a disclaimer: You humble correspondent was counsel for the appellant who gets the win . . . albeit with an asterisk. The issue before the Court was whether a notice of violation of a zoning ordinance was voidable because it did not include a notice on the effect of a failure to appeal the notice as required by Code § 15.2-2311(A). The statute requires that the notice include four things: (1) that the party has the right to appeal within 30 days; (2) that the zoning decision will be final and unappealable if no appeal is filed within 30 days; (3) the cost of filing an appeal; and (4) the location of further information about appeals.

The city's notice expressly gave 1, 3, and 4, but not 2. The City contended that the statute did not require express wording, and the Court of Appeals, Judge Ortiz joined by Judges Malveaux and Friedman, agreed. However, the Court further held that while express language is not required, the notice must nonetheless convey all four elements. The Court further rejected the City's notion that because the website to which it directed Calway for further information about the appeal did include an explanation that the failure to appeal to the BZA would render the violation not subject to challenge that this was sufficient to proivde Calway with notice. The Court reasoned that the statute required the notice to appear on the violation, not on a website to which the property owner might or might not go. Accordingly, the notice of violation was defective and the subsequent enforcement proceeding was improper and will be dismissed.

Now that seems like a pretty definitive win, so where is the asterisk? In addition to the notice of violation, Calway sought and received an opinion from the Zoning Administrator. The Court concludes that while this opinion was not a sufficient basis for proceeding with the enforcement proceeding, "the administrator’s determination that the carport violates the zoning ordinance is potentially shielded from further attack in this or any future litigation." In other words, the Court is inviting (well, perhaps not inviting, but at least suggesting) the city to begin a new round of enforcement.