If this happens in a Virginia Court . . .

The plaintiff's attorney in a case in the Federal District Court of New York for the Southern District asked the Court for a three week continuance, stating as his reason that his wife had gone into premature labor and their child had been successfully delivered, but with complications. The couple had other children and the attorney needed to care for them, and for his wife once she was released from the hospital. The defense's lawyers naturally did not oppose the motion . . . no, I am joking, of course they did.

To be fair, the defendant was willing to allow the continuance, provided that plaintiff's counsel would agree to certain concession in the current litigation. But that was all they wanted. Sorry, I was joking again. They also asked for concessions in unrelated litigation with the same attorney that was in arbitration.

The judge, the VERY Honorable Paul Engelmayer, was not disposed to consider these conditions for granting the continuance. Here are two excerpts from his order:

The Court congratulates Mr. Seppinni and his family on the birth of their child and wishes Mr. Seppinni’ s wife a speedy and full recovery. The Court reminds defense counsel of the expectation of the judges in this District that counsel will comport themselves with decency. Counsel’s attempt to exploit a moment of obvious personal exigency to extract concessions from Mr. Seppinni, in other litigations no less, was unprofessional. The Court expects better.

The Court unconditionally grants Mr. Seppinni’s request for a three-week adjournment for his opposition….This order is without prejudice to Mr. Seppinni’s right, in the event of continuing medical complications, to seek a further extension of these deadlines, as Mr. Seppinni’s email to the Court suggests may become necessary.

The judge imposed no sanction on opposing counsel for their egregious behavior, and I suppose that was wise at it would give grounds for an appeal. I am sure that Judge Engelmayer will not allow this incident to prejudice his judgment in future rulings involving these parties, but I would be surprised if the defendant does find that some discretionary calls fall against them.

If this ever happens in a Virginia court (and sadly, it's not beyond reason that it could), I think the judge would respond in much the same way. I am even more certain that the judge would mark the defense counsel down as being very far from the genteel Virginia gentleman or gentlewoman that one hopes would be representative of the Virginia Bar, and therefore not to be given the benefit of the doubt the next time they request a continuance for a less compelling reason. And judges have long memories.

Court Finds §8.01-271.1 Sanctions Appropriate, Decides Three Other Appeals in Published Opinions

The Court of Appeals decided five cases in four published opinions today. We start with the related appeals of Tiziano M. Scarabelli, M.D. v. Kenneth Ellenbogen, M.D., et al. and John E. Nestler, M.D., et al. v. Tiziano Scarabelli, M.D., et al. decided in a combined opinion by Judge Ortiz joined by Judges O’Brien and Raphael. This appeal is about a topic of much interest to attorneys, Code § 8.01-271.1, the statute that makes it a sanctionable event to file a pleading that is not well-grounded in fact or warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and also is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. This statute, which used to be very short, got a massive expansion in 2020, and this opinion is apparently the first to deal with the topic in a serious manner since those changes.

The underlying cause of action stemmed from a workplace brouhaha which resulted in Scarabelli being placed on administrative leave from his position as Director of Cardio-Oncology at MCV. Believing himself the victim of false complaints, Scarabelli brought a defamation action against MCV and several of its employees. In a novel turn, MCV brought a counterclaim alleging that Scarabelli “fraudulently induced his hiring” by padding his resume and concealing the true circumstances of his departure from his last employment. The jury found in favor of MCV and the employees on the defamation claims and awarded MCV $102,500 in actual damages and $143,500 in punitives.

Two of the employees filed § 8.01-271.1 motions, both of which were denied, while Scarabelli sought to have the fraud judgment set aside. The circuit court denied all the motions.

Today, the Court of Appeals gives succor to one, but not both of the employees, and in doing so gives a master class in what constitute a colorable claim for defamation. Because the claims against one of the employees were “a valid, non-conclusory defamation claim,” they could not have been made in bad faith or an improper purpose. But the other employee’s allegedly defamatory statement was objectively true and lacked any defamatory sting, so were not well grounded in fact, and, thus, sactionable. The Court goes on to quickly dispose of Scarabelli’s cross-appeal and remand to the circuit court for an award of damages to the one employee.

As the case style implies, Eleanor A. Hunter, Individually and as a Trustee, etc. v. Charles M. Hunter, Jr. involves family members, in this case siblings, squabbling over property and money. This is an interlocutory appeal to review a ruling by the circuit court that Charles Hunter’s suit against his sister Eleanor for alleged undue influence in procuring gifts for herself from trusts established by their parents of which Eleanor was the trustee. If this fact pattern sounds familiar, it is because this is the second case involving these parties. The first time around, the case went directly to the Supreme Court (“Hunter”), which ruled in Charles favor after the circuit court dismissed his suit as being in violation of a “no contest” clause in each trust without considering the “alternative-pleading model” which allows a plaintiff to avoid dismissal for a no contest clause by, in effect, having the court determine whether the suit would violate the clause as a separate controversy not actually challenging the will or trust, thus avoiding loss of the benefit as an heir or beneficiary.

On remand, the circuit court found that the “no contest” clauses were not breached, thus ruling in favor of permitting the suit to go forward, but authorized the interlocutory appeal by Eleanor, now going to the Court of Appeals due to the realignment of appellant jurisdiction. Today, Judge Raphael, joined by Judges Humphreys and AtLee, affirm. The opinion effectively adopts the view expressed in Hunter I by the Supreme Court that a party cannot be barred from having a court determine whether a suit will strip the party of their rights to an inheritance or trust benefit by a no contest clause without first being allowed to show there is sufficient basis to allege malfeasance by an executor or trustee. The reason is obvious. If such were the case, then a no contest clause would effectively shield an executor or trustee from any court oversite based on a challenge by an heir or beneficiary. The case will now go back to the trial court for a trial on the merits.

Margaret Williams v. Pamela Legere, et al. involves a review of a challenge to the constitutionality of the initiative petition witness circulator residency requirement found in Code § 24.2-684.1(5). In case you are not familiar with this particular statute (and Lord knows I wasn’t), it prescribes the “Requirements for voter petitions to call for referendum elections.” Williams wanted to have a referendum in Williamsburg on whether the city’s appointed school board members should be directly elected. She filed her petition in a timely manner with sufficient registered voters signatures, but most of those signatures were witnessed by someone who was not a resident of Williamsburg as required by the initiative petition witness circulator residency requirement, and accordingly the petitions were registered.

Williams sought relief from the circuit court alleging that the requirement that the witnesses to the petition be from the jurisdiction in which the referendum was sought was unduly burdensome on political speech and therefore unconstitutional. The circuit court, applying rational basis, found that it was not violative of the first amendment. Today, the Court of Appeals, Judge White, joined by Judges Huff and Fulton, finds that an alleged undue burden on political speech is subject to strict scrutiny review and remands to the circuit court for consideration under the appropriate standard.

The only criminal appeal published today is Keith Elwood Hargrove v. Commonwealth of Virginia. Hargrove was tried jointly with a co-defendant on charges of first-degree murder, attempted robbery, armed burglary, discharging a firearm in an occupied building, conspiracy to commit burglary, conspiracy to commit robbery, and three counts of using a firearm in the commission of a felony. The victim was an eight-year-old boy, whose father unwisely posted on social media that he had won a lottery prize of “thousands” of dollars. Unfortunately, this attracted the notice of Hargrove and Charles Coleman, who committed a home invasion in an attempt to rob the father. Hargrove was tied to the crimes when he was arrested on an unrelated drug charge and found to be in possession of the murder weapon.

Although Hargrove challenged some evidentiary rulings and the sufficiency of the evidence, the issue that warranted publishing this case is the motion for separate trials. Hargrove alleged that statements by Coleman to third parties and admissible against him under the “statements against interest” exception to the hearsay rule tended to implicate him and, thus, violated his right to confront Coleman at trial if Coleman refused to testify. The Court of Appeals, however, found that these statement were not “testimonial” and did not trigger the right of confrontation. This decision, while in line with the Fourth Circuit (and all other circuits that have considered it), appears to be one of first impression in a Virginia state appellate court, and thus worthy of publication. Expect an appeal to the Supreme Court of Virginia, and conceivably to the US Supreme Court (though with there being no split in the circuits, it’s a doubtful case for certiorari).

Court of Appeals Decisions appealed to the Supreme Court in April

The Court of Appeals announced cases that have been appealed to the Supreme Court in the last month. The Court also issued five new published opinion, which will be summarized in a separate post.

Five of the six cases appealed were from criminal cases. Justin Andrew Harvey v. Commonwealth of Virginia was decided January 24 and summarized by your humble correspondent with the query of why it was a published opinion as it appeared to offer nothing new or novel. I suspect that the appeal is merely an exercise in the right to appeal.

Quincy Dione Baskerville v. Commonwealth of Virginia on the other hand is not unexpected as it is a Commonwealth’s appeal of a decision finding that the circuit court failed to exclude evidence seized without a search warrant, finding that there were no exigent circumstances to support the warrantless entry. I would anticipate a likely grant from the Justices.

Akeem Alee Calokoh v. Commonwealth of Virginia was decided March 10 and involves the application of Code § 19.2-271.6, the new mental health evidence statute. The Court of Appeals held that Code § 19.2-271.6 did not create an affirmative defense (akin to diminished capacity), but is merely a rule of admissibility of evidence with respect to the ability to form intent. As this is an issue of first impression, a “final word” from the Justice would be welcome.

Shaquawn Demonte Warren v. Commonwealth of Virginia was about the restoration of civil liberties of a potential member of the jury and also the defense of necessity to DUI. Interesting issues, but not likely to warrant a review from the high court.

Bradford T. Cellucci v. Commonwealth of Virginia is an appeal from an en banc decision that reversed the position of the original panel. The issue is about whether the circuit court erred in failing to consider evidence in mitigation. The en banc was 14-3, so the odds of a review by the Supreme Court seems limited.

Katherine Louise Carter, Exec. etc. v. Wake Forest University Baptist Medical Center, et al involved the application of long-arm jurisdiction in medical orts where contact with the patient is via “telemedicine.” As this is a fairly novel topic, a grant from the Supreme Court would not be unusual.