A Rehearing En Banc is Granted and Another Blawger Drops a Gauntlet

While you, dear reader, ponder the meaning of the second half of the headline, let me first address the Rehearing Granted today in Katie Orndoff v. Commonwealth of Virginia. This case was decided back in June and discussed in this space. The case involved a victim-witness who felt the need for some smoked courage (then still not legal) before testifying and incurred the summary contempt wrath of the judge for being intoxicated in his courtroom. The majority found that the circuit court lacked sufficient evidence to support the summary contempt finding, while the dissent felt that the witness's behavior on the stand was sufficient to prove her intoxication. Separate and apart from the legality of the contempt finding, the judge has suffered the wrath of public opinion for what was viewed as disrespectful treatment of a victim who was being made to face her accuser in a domestic battery case. The full court will now review the conviction.

Now on to today's one published decision and the aforementioned Gauntlet Dropping. The Sage of Virginia Beach, Steve Emmert has advised that he intends to invade "my" territory of the Court of Appeals Blawging (actually he informed me and another Blwager who also reports on the VCA, so perhaps I should say "my shared territory") in order to discuss Blue Pearl Veterinary Partners, LLC, et al v. Kristine Anderson. Now to be fair, Steve did offer us the first bite at the apple before he weighed in, which was quite decent of him.

More to the point, when the Court of Appeals jurisdiction was expanded, I suggest that he continue to review the civil cases while I would focus on the criminal, domestic and administrative ones. He declined, graciously, saying he would continue to confine himself to the opinions of the Supreme Court of Virginia, but I think may be having second thoughts given the paucity that court's recent output, so I cannot begrudge him the opportunity

At any rate, I recommend his Blawg, Virginia Appellate News and Analysis to you and look forward to his own take on Blue Pearl. But he did offer the challenge of first effort to me, so let's dive in, shall we?

If you have seen Miracle on 34th Street -- the original form 1947, at least -- you will recall the scene in which Mr. Gailey (the marvelous John Payne from Roanoke) recites certain facts about the post office "for the record." Well, let me recite some facts "for the record":

Pet ownership in the U.S. has jumped significantly over the past three decades. As of 2023, 66% of U.S. households (86.9 million homes) own a pet That’s up from 56% in 1988, pet ownership statistics show. From companionship to emotional support, pets are a vital part of their owners’ lives. In fact, 85% of dog owners and 76% of cat owners consider their pets to be a member of the family. Dogs are the most popular pet in the U.S. (65.1 million U.S. households own a dog), followed by cats (46.5 million households) and freshwater fish (11.1 million households).

In 2022, Americans spent $136.8 billion on their pets, up 10.68% from 2021 ($123.6 billion). Dog owners spend an average of $730 a year on their dogs. While the love of a pet is priceless, the cost of owning one is not. Veterinary care, grooming, food, treats and other outlays can add up quickly. For example, a Forbes Advisor survey of more than 5,000 U.S. dog owners found that 41% of dog owners spend between $500 and $1,999 a year on their dogs and 8% spend more than $2,000. Dog owners spend the most on veterinary care ($367 per year), food ($339 per year) and grooming ($99 per year).

Why have a recited these facts for the record? Because this case is about what a dog is worth. Ask any dog owner what their pet is worth and they will say "you cannot put a price on love." I offer this:

“The gift which I am sending you is called a dog, and is in fact the most precious and valuable possession of mankind.” — Theodorus Gaza, 15th Century Greek Humanist

But the folks at Blue Pearl can ask the court to put, or rather limit, the value of dog that was injured as a result of the negligence of one of their employees. You see, the dog had two of its legs crushed during an MRI procedure and extraordinary measures were needed and will continue to be needed to care for the animal. In suit to recover these damages, Anderson sought $6,782 for “necessary treatment and evaluations.” She also sought between $108,855 and $119,055 per year for the remainder of the dog’s life for “adequate and necessary rehabilitative care,” including electronic stimulation, shockwave therapy, ultrasound therapy, laser therapy, underwater treadmill, platelet rich plasma therapy, and stem cell therapy. Blue Pearl filed a motion in limine to exclude “any evidence or suggestion of veterinary expenses in excess of $350.00,” the amount Anderson paid for the dog.

The court acknowledged that damages for injury to personal property typically are “confined to the diminution of the value of the property” and any “reasonable and necessary expenses incurred.” Nevertheless, the court ruled that certain veterinary treatments exceeding the dog’s value could be “reasonable and necessary expenses.” The court further found that determining which expenses were in fact reasonable and necessary was a question for the fact finder. The court certified that this question was subject to an interlocutory appeal under Code § 8.01-675.5(A).

Today the Court of Appeals affirmed the judge's ruling. Judge Athey, joined by Judges Causey and Friedman, recognizes that pets, however beloved, are personal property (the readers of Dog Fancy and Cat Fancy are probably seething at this suggestion), and as such a cause of action for injury to chattels cannot include “damages for emotional distress resulting from negligently inflicted injur[ies]" (more seething from Friends of the ASPCA). This does not mean, however, that recoverable damages cannot include veterinary expenses that exceed the diminution in the dog’s fair market value, which the Court observes is an issue of first impression in Virginia.

Blue Pearl notes that “the general rule for determining . . . damages for injury to personal property is to subtract the fair market value of the property immediately after the loss from the fair market value thereof immediately before the injury, the remainder, plus necessary reasonable expenses incurred, being the damages.” (Emphasis added mine, which I will explain shortly).

The Court agrees that this is generally the measure for damages to personal property . . . but it is not the only measure. Rather, there are “sundry rules for measuring damages" which "are subordinate to the ultimate aim of making good the injury done or loss suffered and hence ‘[t]he answer rests in good sense rather than in a mechanical application of a single formula.'" When the property has no ascertainable market value or where such value is "manifestly inadequate,"' some other measure of worth must be applied. (Cheering from The American Kennel Club).

Relying on a 1904 case from Massachusetts and an even older treatise, the Court concludes that Blue Pearl's proposed limitation to diminution in market value was overly mechanistic and that the Court properly denied the motion in limine. At trial (technically, not "on remand" because this is an interlocutory appeal), Anderson will still have the burden of proving that the six-figure annual costs of care are reasonable an necessary, but she should have that chance.

Now, back to my emphasis in the paragraph above. Blue Pearl argued that damages in the case included necessary reasonable expenses incurred. Well, isn't that exactly what the trial court ruled? So, I am left to wonder what Blue Pearl was trying to accomplish by not sticking to its guns that the damages were limited to the animal's purchase price and nothing more? I am not sure that the Court shouldn't have seized on this statement as a concession and affirmed on that basis.

Two new opinions from the Court of Appeals After a Two Week Break

The Court of Appeals was silent for the last two weeks and was closed for Independence Day yesterday, the "usual" opinion day, so it was something of a surprise to see two new published opinions today. In a reversal of a criminal conviction in Renee Michelle Parady v. Commonwealth of Virginia, the Court makes a very important distinction about what will justify a warrantless search. The facts are not unusual. Parady was a passenger in a truck that was lawfully stopped because it had tags that were registered to a different vehicle, which is a suspicious circumstance.

The next suspicious circumstance was that the driver had an outstanding capias. Arrested on the capias and searched incident to that arrest, no contraband was found. But around the same time a drug-sniffer dog alerted on the passenger side of the vehicle where Parady was sitting. A third passenger was a known confidential informant and in a conversation with one of the officers she indicated that the source of the scent detected by the dog was an item secreted in a private area of Parady's clothing.

Parady denied having any contraband, but a patdown search suggested that there was some foreign object in the said personal area. The officer demanded that Parady produce the object, which turned out to be a small case containing several pills.

Now, before we get to the search and seizure issue, the Court advises us of a peculiar circumstance. The police did not formally arrest Parady at the time. Apparently the police wanted to assure themselves that the secreted pills were contraband and not, well, vitamins?

At any rate, when the pills provide to be an illegal narcotic, Parady was arrested. Here attorney filed a motion to suppress the fruits of the search as unlawful due to the lack of a warrant. The circuit court them made a curious ruling -- while finding that it was "ludicrous" for the Commonwealth to maintain that the police could not have controlled the situation while a warrant was obtained for a search, the court nonetheless found that the search was valid because the officers had "probable cause."

Those of you who remember first year criminal procedure can see where this case is going. The Court of Appeals, Judge Lorish joined by Judges Beales and Fulton, reverses, reminding everyone (but especially the trial judge, one suspects) that "probable cause" is the basis for obtaining a warrant, not for dispensing with the need for one. The Court also rejects the Commonwealth's "right result, wrong reason" arguments that the search was "incident to an arrest." Parady was detained by the search, but not placed under arrest before the search or, indeed, not for two weeks after the stop.

The other opinion today is from a civil case. In Michael Brown v. Timothy L. Kirkpatrick, involves a tender of UIM coverage from the insurer of Brown, an injured party in an automobile accident. Brown's insurer had waived its right of subrogation and tendered its UIM policy limits with the understanding that Kirkpatrick's insurer would defend the suit. The case proceeded to trial with Brown being awarded $286,000 against Kirkpatrick.

Brown receive the policy limit of $50,000 from Kirkpatrick's insurer and $286,000 from his own carrier for UIM coverage. However, Brown declined to agree to have the judgment marked as satisfied, asserting that the waiver of subrogation by his carrier should enure to Kirkpatrick's benefit. In other words, Brown contended that even if his carrier did not want to pursue Kirckpatrick to cover the $236,000 it paid under Brown's coverage, Brown was entitled to go after that money. The circuit court disagreed and Brown appealed.

The issue on appeal is whether the Collateral Source Rule of Llewellyn v. White, 297 Va. 588, 599 (2019), which held that where the UIM carrier settles with the plaintiff, the tender of policy limits does not enure to the benefit of the defendant who remains liable to the tortfeasor for any judgment, applied to cases where the UIM carrier settles with the defendant.

In a split decision, the Court of Appeals (Judge Humphreys joined by Judge Lorish) rules that UIM coverage is always collateral where subrogation is waived. Judge Huff dissents, reasoning that the waiver of subrogation in an agreement with the tortfeasor and his carrier is decidedly different from the situation in Llewellyn.

I won't say much about the merits of either position as I am certain that an en banc and/or a review by the Supreme Court will follow. I am in sympathy with Judge Huff, as it appears that Brown is getting a double recovery. When the UIM carrier settles with the plaintiff, there is a real possibility that the plaintiff won't bother to go after the tortfeasor, who may have little or no insurance and no means to pay a judgment. Moreover, such a settlement include other benefits to the carrier and the insured. Here, all the UIM carrier did, in effect, was to ask the defendant's carrier to put on a defense.

Mixed Bag from the Court of Appeals

Three new opinions were published by the Court of Appeals of Virginia this week, and its a mixed bag with one criminal appeal, one Commonwealth's appeal in a Torts Claims Act case and one plain old civil case.

Richard Alan Swezey v. Commonwealth of Virginia is about a topic that comes up frequently in criminal cases -- whether an abduction charges was supported by independent evidence of the victim being detained beyond what was necessary to accomplish other criminal acts. Swezey was convicted of statutory burglary, abduction, using a firearm in the commission of a felony, assault, and two counts of brandishing a firearm. He maintained that the victim, his estranged wife, was never detained beyond what was necessary to accomplish the assault and brandishing.

The facts reveal a situation that could have gone horrible wrong. Swezey had entered his wife's townhome (it is not clear whether this was the former marital home) while she was away. It seems undeniable that his plan was to murder her. Fortunately, the wife was not alone when she returned home, having been accompanied by a colleague who was interested in buying some furniture for the wife.

Swezey, realizing that there would be a witness to the murder, made multiple attempts to convince the colleague to leave, but she refused. Eventually he held his wife at gunpoint while threatening to kill her and, presumably the colleague, because he wasn't "going down for" the murder(s).

The colleague called 911. Swezey compelled his wife to tell the operator that she did not need help. Fortunately, the operator was savvy enough to realize that this was a coerced statement -- and in any case proper protocol requires that police be dispatched where there is an indication of potential harm. Police arrived and detained Swezey without further incident.

Swezey argued at trial that his assault and brandishing offenses were essentially ongoing throughout the encounter and, thus, the abduction was incidental to these offenses. The circuit court disagreed and the Court of Appeals, Judge Raphael, joined by Judges Fulton and Friedman agree. The opinion has a comprehensive discussion of the law, but it comes down to this -- it takes only the slightest amount of force beyond what is necessary to accomplish a felony that has a component of detaining the victim to support a charge of adduction. Here, the evidence clearly showed that Swezey took steps to assure that his wife would not be free to leave that were not necessary for the assault and brandishing.

Commonwealth of Virginia v. Hannah Fatima Muwahhid is an interlocutory appeal from a denial of a plea in bar of sovereign immunity from an action filed under the Virginia Tort Claims Act. Muwahhid was visiting her husband, a prisoner at Sussex II State Prison. After Muwahhid was suspected of attempting to bring contraband into the prison, she was first denied contact visitation and then banned from all visitation. This prohibited her from participating in certain religious practices with her husband.

On multiple times, Muwahhid was subjected to extensive searches -- including strip searches and searches of her vehicle, which maintain were not voluntary. Although a K-9 sniffer supposedly alerted on her, no contraband was ever found. During some the searches, Muwahhid was not afford privacy, with the search being conducted so that male officers could observe.

Muwahhid filed a claim against the Commonwealth alleging various violations of her civil liberties. It is not disputed that Muwahhid followed the procedures required of the Virginia Tort Claims Act. Nonetheless, the Commonwealth responded that it was immune from suit because, according to the Commonwealth, since a prison is a government facility, it is absolutely immune from tort actions for the conduct of its employees because there is no equivalent private cause of action that might be brought against a private person, which is a requirement of the VTCA. In doing so, it relied upon a circuit court opinion which held that the Virginia State Police was immune from a negligent entrustment action because there was no private equivalent cause of action for determining who could be entrusted with a police cruiser.

Let me pause her to say that I was astounded to learn that the case relied on by the Commonwealth, Shenk v. Spangler, 46 Va. Cir. 277 (1998), was not appealed. Actually, I guess I am relieved to know that it was not, because had been appealed and the appeal refused, that would have been truly astounding. Let me just register my personal opinion that Shenk would have been reversed.

Back to the case. The circuit court issued an opinion letter explaining that the Commonwealth's theory was so much mishagosh, given that it would effectively gut the VTCA. The Court of Appeals, Judge Huff joined by Judges Humphreys and Callins, agree and remand the case for a trial. This opinion needs to be bookmarked future use in VTCA cases.

Finally, we have CSE, Inc. v. Kibby Welding, LLC and Tabitha Kibby, involves a contract claim to enforce a personal guarantee. Tabatha Kibby was the 22-year-old daughter of the owner of Kibby Welding and signed a contract with CSE, Inc. as agent for her father's company. The contact had a personal guaranty clause binding the individual who signed the agreement to indemnify CES for any loss. When CSE sought to enforce the guarantee, the circuit court found consideration was lacking as to Tabitha, reasoning that because the creditor did not know the guarantor’s identity or check her creditworthiness, it did not rely on the guaranty when extending credit to the company, and enter judgment for Kibby.

The Court of Appeals, Judge Raphael joined by Judges Fulton and Freeman, reverse this decision and remand a determination of damages. The Court acknowledges that "it may seem harsh to hold Tabitha personally liable for the debts of her father’s company. She was only 22 years old when she signed the guaranty, had not graduated from college, and was unsophisticated in commercial matters," but the evidence showed that she held herself out as an agent of the company and CSE was entitled to presume that she had the authority to sign the contract. It was not required to investigate Tabitha's personal creditworthiness before assuming that she understood the consequences of signing a contract with a personal guarantee.