Something old . . . something new (but nothing borrowed or blue)

The Court of Appeals released two new published opinions today . . . sort of. One of those opinions was from a rehearing in Osman v. Commonwealth. I reported on the original panel opinion back in November and the then commented on the somewhat surprising grant of a rehearing by the panel. Today’s opinion reaches the same conclusion as it did last year, but with a much longer explanation of why Osman’s violent abduction of his own child was not properly prosecuted as a felony. I suspect the Commonwealth will now seek a rehearing en banc or a review by the Supreme Court of Virginia because this result does seem counterintuitive. However, the problem is not with the Court’s reasoning (Judge Huff, joined by Judges Raphael and Lorish), but with the statute that distinguishes between stranger and parental abductions. While the General Assembly may not have intended for parents to get a pass on felony charges where violence was used in physically taking the child from the other parent, this is an issue for the legislature, not the courts, to fix.

The new opinion for the day is Theodore Theologis v. Mark Weiler, and for regular readers of this space it will seem a little like déjà vu all over again as the case involves members of a home owners association. In last week’s summary of Karey Burkholder and Douglas Thompson, Jr. v. Palisades Park Owners Association, Inc., I discussed in an aside the common occurrence of disputes in these “mini-quasi-governments.” Today, we get an opinion from the same panel (Judge Athey, joined by Judges Raphael and Chaney) which split 2-1in reversing in the Palisades Park opinion, but are unanimous in affirming Theologis. The issue is whether statements made by some members of the association were defamatory against Mr. Theologis. The circuit court found that they did not have the necessary defamatory sting and sustained the defendants’ demurrer.

Theologis was the president of the association, but his service was not appreciated by some two-dozen property owners who petitioned for his removal. Four of those opposed to Theologis continuing as president sent a letter to the other property owners that listed various grievances about his performance as an officer and director. It said, for instance, that Theologis had “made repeated efforts to impose far more restrictive policies than provided for in the Covenants & By-Laws” and that he had “usurp[ed] the authority granted to the Board as a whole via the Covenant & By-Laws.” However, there were not enough votes to remove Theologis at the meeting at which the issue was taken up.

Before the next meeting, one of the letter’s signatories made a social media post which read, “Theologis is capricious in his enforcement of [HOA] policy (even as he has broken our HOA bylaws).” The post added that Theologis “should be leaving the board at that date [of the next meeting] and you should have more reasonable people on the review board.”

I will not belabor the point, but I cannot help but wonder just how thin Theologis’ skin is that he thought these mild statements were defamatory and damaged his business reputation. The Court obviously wondered that too, and affirmed the circuit court's sustaining of the demurrer.

There is one “practice point” to be gleaned from this opinion. Theologis asked the Court to remand the case to allow him to amend his pleading even if it found no error in the sustaining of the demurrer, but the Court notes that Theologis never asked for that relief in the trial court, so he can’t get it on appeal.

Judicial Arithmetic: Three Published Case From the Court of Appeals Result in Six Opinions

Your humble correspondent regrets the delay in posting summaries of the three published decisions from the Court of Appeals from Tuesday, but an intense travel and work schedule interfered with his leisure activities. When he finally got around to reading the opinions, he was surprised to see a dissent in one case, which is somewhat unusual, and a plurality opinion with a concurrence and a dissent in another – which is very unusual.

Let’s start with the unanimous opinion.

Michael A. Dobson v. Commonwealth of Virginia is an appeal from a conviction for first-degree murder and the nearly inevitable associated firearm charge – but that conviction was 25 years ago (I’ll save you doing the math and tell you that was 1998 -- which is itself a little startling to those of us who remember it like it was, well, not quite yesterday but certainly not 25 years ago). So how did it take 25 years for the appeal to be heard? No, it’s not a case of a the file having slipped between two filing cabinets. Rather, this is an appeal following a rather creative pro se motion by Mr. Dobson filed in May 2021 asserting that the circuit court could set aside or modify his sentence pursuant to Code § 19.2-295.1 as amended effective July 1, 2021. Dobson also maintained that he filed a separate motion for a sentence reduction under Code § 19.2-303.01, and while that motion does not appear in the record, the Court of Appeals graciously deigns to consider the arguments made in the trial court under his first motion to encompass this second claim – the Court is rarely (strike that) never this generous with appellants’ attorneys who fail to provide a complete record.

The circuit court agreed with the Commonwealth that Dobson’s motions were roughly 25 years less 21 days too late. That is, the court agreed that it lost jurisdiction over the case under Rule 1:1 21 days after the sentencing order was entered. Dobson took this all in good grace, first advising the court that he wished to seek reconsideration and also amend to a “Fishback claim.” However, before the court could act upon these requests, Dobson filed his notice of appeal.

Now, for those of you who are wondering just want the heck is going on here, let me explain that Dobson is quite obviously a “jailhouse lawyer.” While that term is sometimes used to describe a self-educated prisoner who becomes sufficiently skilled at drafting legal motions and arguments that he actually gets his conviction overturned or helps other prisoners to have their cases reviewed, for the most part jailhouse lawyers simply have too much time on their hands and access to a lot of bad information that gets passed around the exercise yard. As evidence that Dobson is still pursuing his legal education, even after his appeal was filed, he continued to draft motions to be heard in the circuit court and even filed a motion requesting the Court of Appeals to order that he receive mental health care. The Court noted that it lacked the authority to do the latter and the circuit court did not have jurisdiction to entertain the motions being filed therein while the appeal was pending. I believe the Wayons Brothers facetious portrayal of two such jailhouse lawyers is not too far from the mark in some instances.

https://video.wixstatic.com/video/b274a4_fad0d02f5d364d9288f03e8cfb15f2ec/480p/mp4/file.mp4

Construing Dobson’s three handwritten pages which he designated as his assignments of error, the Court “discern[s] . . . his two most significant claims: (1) he is entitled to resentencing under the 2020 amendment to Code § 19.2-295.1 on the theory that, under Fishback v. Commonwealth, 260 Va. 104 (2000), the jury should have been instructed at his trial in 1998 that Virginia had abolished parole; and (2) his sentence should be reduced, as provided in Code § 19.2-303.01, because he assisted the Commonwealth with a criminal investigation.

The Court of Appeals, Judge Raphael joined by Judges Chaney and Callins, agrees that the claim under Code § 19.2-295.1 is barred by Rule 1:1. With respect to the Code § 19.2-303.01, the Court notes that this statute actually does provide for the circuit court to have jurisdiction to modify a criminal sentence beyond the 21st day following entry of the sentencing order. However, that limited extension of the court’s jurisdiction is limited in felony cases where the defendant is transferred to the custody of the Department of Corrections to “[1] before the person is transferred to the Department, or [2] within 60 days of such transfer,” the second provision having been added in 2021. So Dobson’s Code § 19.2-303.01 was only slightly less untimely that his Code § 19.2-295.1. The Court notes, however, that even it had been timely, the statute allows the circuit court to exercise this extended jurisdiction only on the motion of the Commonwealth, not the defendant.

Given that the Court is wont to publish many opinions that have some potential merit, one wonders why Mr. Dobson was rewarded with immortality in the annals of the Va.App. reporter. I can only hazard a guess that Dobson’s arguments are the flavor of the month on the jailhouse lawyer grapevine and the Court wanted to “nip it” as Barney would say.

Karey Burkholder and Douglas Thompson, Jr. v. Palisades Park Owners Association, Inc. is all about assessments, or rather a specific use of the assessments made by Palisades Park, a community in Arlington County, against residential lots. Burkholder and Thompson are the owners of one of those lots. The assessment in question is a fee charged every own to cover the cost of the association for, get this, “inspecting each property owner’s lot to ensure that it complies with Palisades’ rules.”

Let us pause here to discuss the issue of HOA and similar associations and their regular appearance in legal proceedings. Over the course of my less than distinguished legal career I have encounter owners’ associations in both my professional and private lives. In the latter, I served for a few years as an officer on a board of directors of a neighborhood which, alas, had less than amicable relations with the neighboring association which was the dominant estate on an access road which ran through my neighborhood. In the former, I would estimate that at least once a year if not more frequently, I was required to deal with some manner of litigation involving owners against associations, associations against associations, and associations against governments. From these experiences I can say without fear of contradiction that . . . ahem . . . the tin-pot dictators of third-world countries as depicted on the silver screen have nothing on the typical HOA board president.

Of course, I am exaggerating. The vast majority of HOA board members (or their equivalent in condo associations, etc.) are hardworking, dedicated people who simply want to keep their neighborhoods looking nice, protect property values, and promote some good social will. HOAs that have these kinds of directors don’t often wind up in court, unless . . .

The “unless” is that there are many, I dare say most, HOAs residents who just don’t cotton to following the rules and paying assessments just because they own a home in a neighborhood that has declarations that require them to follow the rules and pay assessments.

So, which do we have here? The oppressive board or the recalcitrant homeowners? Well, I am going to go with the former just based on the fact that the aforementioned assessment at issue was justified so because “the inspections are needed to ensure that the members’ properties comply with Palisades’ declaration, articles of incorporation, bylaws, and architectural review board guidelines.” In other words, the association needed them money to hire a profession neighborhood inspector . . . yep, it’s an actual industry apparently. The association went so far as to obtain a legal opinion stating that it could use the assessment for this purpose.

Burkholder/Thomas disagreed, contending that the assessment provided for in the neighborhood declarations did not include using the finds of the association to higher enforcement personnel. They filed a declaratory judgment action seeking to enjoin the use of assessments to higher compliance cops. The circuit court found that the use was appropriate, striking the plaintiff’s evidence and awarding over $67,000 in attorney’s fees to the association.

On appeal, a divided panel of the Court of Appeals, reverses the judgment and remands for a determination of the fees to be awarded the homeowners. Judge Raphael, joined by Judge Chaney, holds that “Code § 55.1-1805 restricts the imposition of assessments to pay for services unrelated to the common area unless authorized by the Act or expressly allowed by the association’s declaration.” In doing so, they reject the association’s construction of the statute that would make it apply only to assessments targeted at a specific owner rather than an assessment on the ”community as a whole.”

The issue turns on whether the use of a singular noun in the statute – “an assessment . . . against a lot or a lot owner – means the assessment must apply to just one. The majority notes that there is a specific statute, Code § 1-227, which provides that “[a] word used in the singular includes the plural and a word used in the plural includes the singular” in statutes.

Noting that the statute specifically calls out inspection fees as an item that must be expressly provided for in a declaration to be lawful, and Palisades Park has no such declaration, the majority concludes that the use of assessment funds for inspections is not authorized.

Now, as has become typical in appellate decisions of late, the majority cannot resist “answering” the dissent before the dissent has even spoken. But I believe that the dissent – Judge Athey – deserves to be heard first. His contention is that the majority is construing the statute too narrowly by requiring that any specific use of a general assessment must be explicitly set forth in the declarations. Judge Athey is satisfied that Palisades Park’s declarations are sufficiently express to give the association the power to spend the general assessment for the “implementation, administration, and enforcement” of the declarations which, in his views includes hiring enforcement cops.

Now comes the twist ending . . . despite my disdain for the whole concept of hiring professional lot inspectors to make sure everyone’s petunias are color coordinated, I actually find much of what Judge Athey says to be reasonable. If associations can only spend funds on those items expressly set out in their declarations, I can foresee an unending series of lawsuits by homeowners who will object, for example, that “maintain the shared roads” does not include mowing the verges and shoulders or snow removal. The courts really don’t need the extra caseload.

Let me add one final comment. The award of $67,000+ in attorney’s fees to the association was, in my view, grossly excessive. The opinion made clear that this was not a complicated case and that the facts were not in dispute. Assuming that a rehearing en banc or writ from the Supreme Court is not forthcoming and the case goes back for an award of fees to the homeowners, I would hope that they seek a more reasonable amount.

Aundrey Hubbard v. Scott H. Jenkins; In his official capacity as Sheriff of Culpeper County, VA finds Judge Athey still contending with Judges Raphael and Chaney, except in this case Judge Athey rights the lead opinion. Wait, “lead opinion”? Not the “majority”? That’s right, we have three written opinions in this appeal. Judge Raphael concurs in the result reached by Judge Athey, but right separately to explain why he disagrees with the dissent, authored by Judge Chaney.

Since the issue is whether the circuit court erred in granting the Sherriff’s demurrer to an action against the Sheriff for damages caused by another inmate who assaulted Hubbard in the regional jail, where Culpepper County houses prisoners under a contract with the jail, and the subsequent inadequate medical treatment he received, we don’t get a lot of facts, because the allegations of the complaint must be taken as true but, as the majority points out, these allegations are sort of beside the point.

The issues are whether Hubbard was an intended third-party beneficiary under the Sheriff’s contract with the jail and, if so, whether a release given to the jail, which settled a federal suit filed by Hubbard for $340,000, was also a release of the Sheriff. These are legal questions, so while Hubbard is entitled to a favorable view of the allegations of his complaint, he gets no benefit of the doubt on his legal theories as to liability and lack of release of the Sheriff.

Judge Athey finds that the nature of the contract between the Sheriff and the jail “only incidentally” required Hubbard to receive medical treatment while housed there. The provision of treatment was not the object of the contract, so Hubbard could not be an intended third party beneficiary of the agreement. The opinion is just over 6 pages and Judge Raphael’s concurrence adds just over 6 more.

Judge Chaney adds 29 pages to explain why Hubbard is a third party beneficiary to the contract and the release was limited to the jail and its employees (an issue which neither the lead nor concurring opinion had to reach). Judge Chaney’s analysis is thorough, but her criticism of the lead and concurring opinion can be summed up in this one statement from the first page of her opinion: “The majority grounds its conclusion that Hubbard is not an intended third-party beneficiary of the Contract on the absence of an explicit ‘purpose recital’” that the Sheriff was responsible for providing medical care to those inmates of his that were housed in the regional jail. (Emphasis added.) If the emphasized word seems familiar, it’s because that was the very word that Judge Athey took issue with in his dissent to the majority opinion summarized just before this one – you know, the one authored by Judge Raphael and join by Judge Chaney.

Now, I will be the first to say that the subject matter of these two opinion is distinctly different, so it is entirely possible that the construction of a statute interpreting HOA declarations and the application of the common law doctrine of third-party beneficiaries for interpreting a contract could have different results with respect to what is “explicitly” required to be said in a declaration or a contract. Nonetheless, there does seem to be a bit of a conflict between Judge Athey’s and Judge Chaney’s views in the two case, with Judge Raphael trying to stay in an even keel.

Four Decisions From January 24, 2023

Your humble correspondent has learned a valuable lesson today. When drafting a missive for this space, do not assume that "Autosave" is on when the popup over the word "Save" says so . . . it isn't. Thus, having summarized three of the four published decisions handed down by the Court of Appeals yesterday and then needing to take a pause, the effort of the morning was gone. I shall try to recreate the undoubtedly brilliant prose that vanished in the ether.

Stephen Moncrieffe v. Adam J. Deno, d/b/a Law Office of Adam Deno will be of interest to all readers, but especially those who like a good "urination tournament" between two attorneys. Moncrieffe, an attorney, was Deno's "supervisor" though as the opinion notes it is unclear what the relationship involved (i.e. were they partner and associate in a firm, boss and underling in a legal department or government agency, etc.). Independent of this relationship, Moncrieffe engaged the services of Deno to take over a civil suit filed by Moncrieffe in which Moncrieffe was the plaintiff. Apparently, this was not the first time the two had done so, and in the previous arrangement, Deno have accepted a 7.5% contingency.

In the present case, the one-page retainer specified a 33/40 contingency. 33% to Deno if the case settled and 40% if it went to trial and Moncrieffe prevailed. Deno engaged the defendant in negotiations and reached a settlement which Montcrieffe accepted. Rather than receive the settlement payment into a trust account and then disbursing the proceeds 2/3rds to Moncrieffe and 1/3rd to his operating account, Deno gave the check to Moncrieffe (it is unclear whether it was made payable to Deno and endorsed as payable to Moncrieffe, or payable to Moncrieffe directly) and then requested his 1/3rd.

And there began the troubles that led to today's opinion. Moncrieffe refused to pay, asserting that Deno had "duped" him in to agreeing to the 33/40 retainer. Deno sued in the general district court and won. Moncrieffe appealed to the circuit court and lost. Moncrieffe appealed that decision to the Court of Appeals and today, Judge Raphael joined by Judges Chaney and Callins, affirm the award to Deno.

With respect to whether Moncrieffe was "duped," that issue is resolved by the standard of review that looks at the evidence -- which was greatly contested -- in the ligh favorable to Deno. Moncrieffe, however, argues that Deno did not earn the fee. Contingency fees must be "earned" through provision of reasonable efforts to obtain the settlement. Moncrieffe contended that Deno's efforts did not justify the 1/3rd contingency.

When determining whether a contingency fee is reasonable, the courts do not just consider the hourly rate value of the attorney's services. Rather, the courts have to consider other factors, such as the risk the attorney undertakes when agreeing to a contingency fee -- after all, the attorney may get nothing at all. Also, there is the public policy factor that contingency fees provide access to legal representation for people who cannot afford a standard fee arrangement. When reviewing these factors and the effort that Deno put into obtaining the settlement, the Court determined that the fee was reasonable.

Moncrieffe also argued that Deno was in violation of certain provisions of the Rules of Professional Conduct. The Court found that, even assuming that there were technical violations, the issue before the Court was whether the contract was enforceable, not whether it was strictly in accord with the Rules.

Regginald Moore and Valerie Moore v. Dominique Joe involves a petition of a foster family to have visitation with the foster child after custody was returned to her mother. When a parent has their custody of a child temporarily suspended, the goal is usually to return custody of the child. During the period in which the parent is receiving services to address the conditions that resulted in the state intervening, the child may be placed with a relative or, more typically, a foster family. When the parent is not able to address the conditions that rendered the child to be endangered, it is common for the foster family to adopt the child.

When a child is in foster care, the parent is generally allowed visitation and, in some cases, the foster family and the parent develop a relationship and if custody is returned to the parent, that relationship often continues with the foster family serving as a surrogate extended family. Unfortunately, in other cases, there is tension if not outright animosity between them. Whether this was the case between the Moores and Joe is not stated in the opinion, however what is clear is that the Moores wanted to continue to have contact with the child after she was returned to Joe's custody and Joe opposed their petition for visitation.

Foster parents are consider "third-parties" when seeking visitation with a former foster child. In this respect, they are treated as "strangers to the child." While that may seem harsh, keep in mind that grandparents, step-parents following a divorce, and really anyone other than the parent or guardian with legal custody is considered a "stranger."

When a third party applies to have visitation with a child, the court begins with the presumption that the parent or guardian has an absolute right to control access to the child. The petition must show by clear and convincing evidence that 1) they have a "legitimate interest" in being involved in the child's life and 2) that denial of their involvement will be actually harmful to the child. This standard is often conflated with the "best interests of the child," but this is not correct. It is possible that the best interests of the child might favor the child having contact with the third party, but if lack of that contact would not cause actual harm to the child, the third party should be denied contact.

Before reaching the issue of whether the Moores met their burden of proof, the Court first addresses an evidentiary issue. The Moores had proffered a deposition of a psychologist who had participated in the services and evaluation of Joe while the child was in foster care. The circuit court excluded this evidence, as it related to Joe's fitness as a parent, not the issue of whether the Moores should have visitation. The Court of Appeals, Judge Ortiz joined by Judges Athey and Lorish, assumed without deciding that the deposition should have been admitted, but conclude that its exclusion was harmless error because the psychologist's observations of Joe's fitness as a parent did not establish that lack of contact with the Moores would be detrimental to the child.

With respect to the merits of the Moores' petition for visitation, the Court found that they had not met their burden of proof to show that lack of visitation will cause actual harm to the child. The child had already been returned to Joe's custody and no evidence showed that lack of contact with the Moores had impacted the child in any significant way.

The Court issued two criminal case decisions, and the first involves an issue of first impression. In Daniel Rock v. Commonwealth of Virginia, the Court was required to determine whether Code § 19.2-262.01, which permits a defendant to inform a jury whether any of the offenses for which he is being tried will result in a mandatory life sentence, applied to a trial whether the jury will decide the guilt or innocence of the defendant, but the judge will impose the sentence.

It is not disputed that Rock never asked for jury sentencing. Nonetheless, he contended that the mandatory life sentence for a violation of Code §18.2-67.1(B)(2), committing an act of sodomy on a child under the age of 13 by a person over the age of 18, was relevant to the jury's consideration of his guilt and the jurors ability to hear the evidence. The Court of Appeals, Judge Huff joined by Judges Athey and White, recites in detail the history, mostly in case law, of whether a jury is entitled to know about mandatory sentences (or even the range of sentences) during the guilt determination phase of a bifurcated trial. Code § 19.2-262.01 was enacted to clarify this issue in light of the change in the law permitting a defendant to elect to have his guilt considered by a jury, but his sentence imposed by the court.

The Court holds that Code § 19.2-262.01 applies only where the jury will determine the defendant's sentence. This is so because the statute expressly says that this information can be given to a juror "to ascertain if the . . . juror can sit impartially in the sentencing phase of the case." While public policy might be better served by permitting the jury to know what sentence will be required to be imposed prior to a determination of the defendant's guilt, the statute does not reflect such a policy and the Court is not entitled to rewrite the statute. I would expect an appeal to the Supreme Court if for no other reason than this is the first case interpreting Code § 19.2-262.01.

The last opinion this week is Justin Andrew Harvey v. Commonwealth of Virginia. Was convicted of two counts each of statutory burglary, unlawful filming, and aggravated sexual battery, as well as single counts of malicious wounding and rape, in violation of Code §§ 18.2-51, -61, -67.3, -90, and -386.1. These charges arose from two separate incidents involving three different victim. The victims were attacked in their residences and were either passed out from intoxication or rendered unconscious.

There is no evidence that Harvey knew the women prior to the assaults, but targeted them based on their being victims of opportunity while observing them drinking in public. Harvey was identified as a suspect because of prior crimes of a sexual nature. A search of his cellphone resulted in the discover of videos of the assaults. Forensic DNA evidence linked Harvey to both assaults. Harvey's conviction was never really in doubt, but he put a vigorous defense and appealed raising six issues.

This is pretty clearly a "kitchen sink" appeal, and one wonders why the Court of Appeal felt the need to publish the 38-page opinion. Well, I can't answer that, because honestly there is nothing really new or novel in the case and to that end, a summary of the issues and rulings should suffice here: First, the circuit court did not err by refusing to strike Juror 19 for cause. Second, Harvey failed to preserve his challenge to the prosecutor’s rebuttal argument. Third, the court did not err by refusing to suppress evidence obtained in a search of the appellant’s phone. Fourth, it did not abuse its discretion by declining to exclude the recording of the jail call. Fifth, the court did not abuse its discretion by admitting the videos and related evidence of the appellant’s crimes against two other victims. Sixth, assuming the trial court erred by limiting the appellant’s evidence regarding DNA found on the victim’s buttocks swab and the victim’s recent consensual sexual partners, any error was harmless due to the appellant’s ability to make virtually the same argument based on the evidence that was admitted and the overwhelming evidence of his guilt in the record.