Before getting to the opinions released on February 27, 2024, a brief note about Terence Jerome Richardson, s/k/a Terrence Jerome Richardson v. Commonwealth of Virginia, which is an order directing that an evidentiary hearing be conducted in the case. The order is pursuant to a decision of the Supreme Court reversing a decision of the Court of Appeals that Richardson was ineligible for a writ of actual innocence.
Samantha Maxine Stilwell v. Commonwealth of Virginia, (February 27, 2024) involves the racial-motivation enhancement for an assault and battery charge. The incident took place at a Walmart in Lynchburg were Stilwell was a customer. In the self-checkout area were two black, female employees who were monitoring the customers. Stilwell was arguing with a man who was accompanying her--the opinion does not identify him, but says Stilwell was shopping with family. Suddenly, and without provocation, Stilwell began cursing, using racial slurs and alleging that the two employees were "laughing at her." Stilwell then threw a price scanner at the employees, striking one of them. She then hurriedly left the store.
Stilwell was subsequently arrested and charged with assault and battery with a racial-motivation enhancement. She admitted throwing the price scanner at the employees and referring to them as "black B****es," but denied using a specific racial epithet. The circuit court convicted Stilwell of assault and battery with the racial-motivation enhancement.
Stilwell appealed this judgment contending that there was a reasonable hypothesis that she motivated by her perception that the employees were laughing at her because of the argument she was having. Thus, she concluded that the evidence was not sufficient to prove the racial-motivation element.
The Court of Appeals, Judge Cuasey joined by Judges Lorish and White, affirm. The circuit court expressly stated that Stilwell's claim that the women were laughing at her was a "red herring" indicating that it rejected her testimony as not worthy of belief. In any case, the Court observes that "[l]aughter is not justification for a battery. Stilwell’s subjective perception of the situation does not excuse her unprovoked derogatory remarks or aggressive behavior."
Leroy Vanmeter, Jr. v. Commonwealth of Virginia (February 27, 2024) is an appeal from a pro se suit filed by a prisoner, but it is not an appeal of the conviction. Rather, Vanmeter sought a ruling that his work as a janitor within the facility he was being held while in the custody of the Department of Corrections should be credited as "community service work" to reduce the court cost he owes from his conviction. The Court of Appeals, Judge Raphael joined by Judges Beales and O'Brien, finds that it has jurisdiction to consider the circuit court's denial of the request, but agrees with the circuit court that the express language of the relevant statute "does not permit an inmate’s work for the Virginia Department of Corrections to count as community-service work that offsets the inmate’s fine or costs."
Melissa Nanette Diaz v. Commonwealth of Virginia (February 24, 2024) is a 2-1 decision affirming Diaz's convictions for second degree-murder and concealing and defiling a dead body. The victim, Steven Wynn, was Diaz's boyfriend, and the two checking into a motel together paying in advance for a week. Over the course of the week, Diaz interacted with housecleaning staff, but would not allow them into the room and made requests for extra sheets, cleaning supplies and bleach. She also told a motel employee that she had purchased a grandfather clock that would be delivered to the hotel.
While moving the "grandfather clock" which was wrapped in a sheet from the room to Diaz's car, the "clock" bent double and emitted a foul order. The "clock," of course, was Wynn's dead body. Diaz subsequently admitted that Wynn had physically abused her and that she had killed him because "she couldn't take the beatings anymore."
Diaz did not contest the basic facts of what happened when she was tired for murder and defiling of Wynn's body. Rather, she maintained that the evidence failed to prove that she acted with the requisite malice for murder and was best guilty of manslaughter. She also maintained that there was insufficient evidence of defilement. She also objected to two evidentiary rulings of the circuit court.
The first evidentiary ruling was to allow the Commonwealth to redact comments made by Diaz during her police interview that identified Wynn as a probationer. The Court of Appeals, Judge Fulton joined by Chief Judge Decker, hold that even if the redactions was error, it was harmless error because Wynn's status as a probationer had no special relevance in as much as extensive evidence of Wynn's criminal activities was presented to the jury. The other evidentiary issue, whether the court erred in admitting phtogrpahs from social media, was affirmed based on the abuse of discretion standard and the Court's finding that the photos were "duplicate originals" for purposes of the best evidence rule.
On the sufficiency issues, the Court holds that the evidence was sufficient for a factfinder to infer Diaz's malice from the manner of the killing (Wynn was shot in the head) and her subsequent effort to conceal the crime. It is only on the sufficiency of the evidence of defilement that the third panel member, Judge Ortiz, disagrees with the majority. Unlike the majority, he would require the Commonwealth to show more than that Diaz attempted to conceal her crime by hiding the body. While the body was badly decomposed, Judge Ortiz would conclude that there was no evidence that Diaz physically abused or disfigured the corpse.
The only civil case from the February 27, 2024 published opinions is The Board of Supervisors for the County of Louisa, Virginia v. Vallerie Holdings of Virginia, LLC (February 27, 2024) and it involves the unusual circumstance of a circuit court overturning a decision of the decision of a Board of Zoning Appeals confirmed by the local government. Perhaps even more unusual is that the Court of Appeals, Judge Ortiz joined by Judge Lorish and Senior Judge Petty, affirm that decision. The locality was supported by an amicus brief on behalf of VEPCO.
The property at the heart of the case is a building on Lake Anna which serves as a venue space and marina operations building. An upper story was designed to be a residence. The building had fallen into disrepair when the prior owner ran short of funds and the current owner, Vallerie Holdings, have been restoring the property. The prior owner had removed the exterior staircase to the residence and the new owners wanted to install one in a different location and did so without a building permit, in the process encroaching on a five-foot setback. Realizing that a permit and variance were needed, the owner filed the necessary paperwork. All this happened in 2016, and over the next five years Vallerie Holdings tried repeatedly to get the variance approved.
In 2021, the BZA rejected the variance, finding that Vallerie Holdings created its own hardship by not obtaining proper advice prior to undertaking the renovations. The Board of Supervisors approved the denial of the variance.
Vallerie Holdings appealed this decision to the circuit court which "found that the BZA had not articulated the reasons for its denial of the variance. In contrast, it found VHOV’s evidence “credible and compelling.” The court concluded “by a preponderance of the evidence” that the application of the setback requirement unreasonably restricted the property because the building was set so close to the property line without access to the second story—a challenge predating VHOV’s purchase of the property. The court found that other options “were not reasonable in the terms of cost, complexity, and feasibility." The Board of Supervisors appealed to the Court of Appeals.
The Court determined that it was required to "harmonize the different presumptions of correctness afforded to a variance decision by a BZA and the factual findings of a circuit court." Usually, BZA decisions are afforded a presumption of correctness as legislative decisions, but reviews of BZA decisions involve fact-finding by the court which is likewise owed deference. The Court concludes that, contrary to the Board of Supervisor's contention the the deference owed to the BZA includes its finding of facts, only the decision of the BAZ is given deference and the circuit court can discard that decision if it finds that BZA's factual findings are at odds with the court's view. Because the court found that the facts did not support the BZA's denial of the variance, the circuit court's judgment is affirmed.
The Board of Supervisor's has applied for a rehearing and rehearing en banc. I would suspect that this case is ultimately destined for review by the Supreme Court.
It seems that it's not just in national politics that sore losers turn to the courts to seek some redress for an election loss. Amina Matheny-Willard ran against Ramin Fatehi in the Democratic primary for Commonwealth's Attorney for Norfolk in 2021. Only about 15,000 votes were cast and Matheny-Willard finished a distant third. Fatehi was unopposed in the general election.
In 2023, Matheny-Willard posted on social media that she was starting her campaign for the 2025 election and needed plaintiffs "to file a document in order to hold the
Commonwealth’s Attorney accountable." The document she filed was a complaint under Code § 48-1 seeking to empanel a special grand jury to investigate a public nuisance. She alleged that the nuisance was that Fatehi has "failed to (1) timely disclose Brady v. Maryland, 373 U.S. 83 (1963), materials to defense counsel, (2) prepare adequately for trials, (3) prosecute wrongdoers competently, and (4) keep victims and witnesses informed of proceedings pursuant to Code § 19.2-11.01." Fatehi moved to dismiss on the ground that the allegations did not constitute a public nuisance. He also sought sanctions against Matheny-Willard for filing a frivilous lawsuit. The circuit court agreed and sanctioned Matheny-Willard $500.
This, we have Michael J. Muhammad, et al. v. Ramin Fatehi (February 20, 2024), the least controversial of the opinions released by the Court of Appeals on February 20 (see posts on the other two here and here). Muhammad was one of the requisite five citizens Matheny-Willard recruited to serve as plaintiffs in the suit.
Judge Ortiz, joined by Chief Judge Decker and Judge Fulton, makes short work of Matheny-Willard's claims that she had a good faith reason for believing the public nuisance law could be applied to the alleged lax performance of a public official and further that she was being sanctioned for "political motivation." With respect to the former, Matheny-Willard seems to argue that because there was no law or case expressly refuting her assertion that "maladministration" of a public official might be considered a nuisance, the court was required to assume that she must have had a good faith belief that the law might be extended to include such circumstances.
This argument turns the requirement of a good faith belief on its head. By Matheny-Willard's logic, you could have a "good faith belief" that the dog-catcher could take "stray" children to the pound because there was no statutory or case law that said he couldn't.
As to "political montivation" being a legitimate basis for filing a frivolous lawsuit, the Court states that "[t]he court system exists to hear legitimate legal disputes, not to air political disputes and grievances. It is not acceptable for Matheny-Willard—or any other litigant—to use the judiciary to promote political agendas and file frivolous pleadings—especially in connection with criminal indictments." Hear! Hear!
If I had been keeping up with my coverage of the Court of Appeals, I might have speculated whether the split decision in Mazie Green v. Portfolio Recovery Associates, LLC (February 20, 2024) would result in a petition for rehearing en banc or an appeal to the Supreme Court. As I was not keeping up, however, we do not need to speculate, because the Court has granted the rehearing en banc already. Technically, this means I shouldn't summarize the now withdrawn panel opinion, but as it is likely the en banc will result in taking the view of either the majority or the dissent, let's dive in.
Ms. Green, who is pro se, appealed a judgment in a debt collection action. Portfolio Recovery Associates is a debt collection agency that acquires debt, mostly from credit card issuers, and then seeks to recover from the debtor. Generally, debt buyers like PRA seek to recover directly from the debtor, but failing that will file a warrant in debt in the general district court of the jurisdiction where the debtor was last know to live to obtain a judgment on the debt and then seek enforcement of the judgment. Service is almost always by posting.
A fairly significant percentage of these debt actions are not contested and the debt buyer gets a default judgment. If, however, the judgment is contested, the debt buyer may have difficulty establishing the debt depending on what documentation they received from the original creditor (or as in this case, from a third-party). They can also run afoul of the Fair Debt Collections Practices Act if, for example, the debtor previously contested the debt or cannot show that they had a good faith belief that the debt was actually owed.
PRA acquired Green's alleged debt from Synchrony Bank in 2019, but the documents submitted in the general district court to establish the chain back to the original credit card agreement involved three other credit card servicers of Green's "PayPal" credit card. All of the "bills of sale" from one bank to the next were for multiple accounts and none specifically referenced Green's account. She argued that PRA was thus unable to establish the requisite change of title to prove she owed the debt to PRA. she also contended that PRA was in violation of the FDCPA for having failed to perform due diligence to determine whether it had standing to pursue her for the debt. The general district court ruled in favor of PRA and Green appealed.
In the circuit court, PRA admitted that none of the documents it had submitted included Green's name or account number. PRA could also offer no explanation as to why in some of its documents the last four digits of the account was different from that originally alleged in the warrant in debt, though they contended that the account number had been changed at some point. The circuit court ruled for PRA on the debt, dismissing Green's FDCPA claim as well.
The Court of Appeals, Judge Causey joined by Ortiz, reverses the judgment and remands for an order finding that PRA failed to establish that it owned the debt it was trying to collect and for further proceedings on the FDCPA claim. The majority finds that PRA did not have standing to pursue the debt because its evidence supporting ownership of Green's oblication was "scanty and incomplete." The majority goes on to find that even if PRA has standing, it didn't prove ownership of the debt, thus it should not have prevailed on the claim and there is a colorable argument that it is in violation of the FDCPA.
Judge Malveaux dissents from these decisions, finding that Green improperly couched her argument in terms of standing, rather than the merits of PRA's claim. Unlike the majority, she does not consider this an "unsettled" question, because PRA's belief that it was owed the debt, even if wrong, was sufficient to grant it standing, thus she would not reach the merits of that claim or whether the dismissal of the FDCPA claim was proper.
There was an additional issue regarding whether a procedure in the general district court was proper, but all three judges agree that issue is not properly before them.
If the majority decision stands, it may create minor ripple in the debt collection business. As indicated above, most of the actions to collect these debts are uncontested in the general district court, so strict proof is never required to establish the damages. However, when a debtor does contest the claim, the majority view will make it more difficult for the debt buyer to establish their ownership of the debt -- or even the standing to bring the suit.