The Court of Appeals issued two published decisions today. In CB & PB Enterprises, LLC, et al v. Bryant McCants, the Court address as an issue of first impression the application of the Virginia Abandoned Vehicle Act, Code §§ 46.2-1200 to -1207, in an action for conversion of personal property. This opinion is a must read for any one who represents garages and other businesses that act as bailees of automobiles. McCants, who is apparently a private car dealer or at least buys and sells cars freequently, owned a 1970 Mustang -- the opinion does not provide any details on the model or condition, but the jury awarded $78,500, which would be a reasonable price if the vehicle was a Mustang Mach 1 with low mileage in cherry condition with a 428ci Cobra Jet Ram Air V8 engine -- as only 364 of these were produced in 1970, I some how doubt that it was a Mach 1 428 Cobra Jet Ram Air V8 (the one below is listed at $72,000 but has a few quality issues).
However, I am more than a bit curious as to the vehicle's spec and condition given the evidence, which in summary is that McCants left the vehicle with CB & PB Enterprises, a Maaco franchise, for some repair and repainting in January of 2017. McCants was not satisfied with the paint job and Maaco agreed to repaint the vehicle When it was ready, Maaco contacted McCants to come retrieve the car, but he made excuses not to do so even though he had paid the cost of the repairs and painting.
After the vehicle had been at Macco about nine months, McCants had another car dealer inspect the vehicle who recommended additional paint work. It is unclear whether Maaco agreed to perform the additional work. Maaco did not charge a storage fee for keeping the car, but wanted the car off its lot.
In October of 2017, Hanson Butler, one of the co-owners of Maaco, began the process to have the Mustang declared abandoned under the Virginia Abandoned Vehicle Act, which required the DMV to contact the owner of the vehicle. McCants denied receiving the notice, which was sent to an address in Michigan, though Maaco typically billed McCants at a Richmond address. When McCants failed to recover the vehicle, Butler, not Maaco, received a certificate of title on November 27, 2017.
There was conflicting evidence as to the subsequent sale of the vehicle to another Macco employee for either $2000 or $3000. McCants learned of this sale only in February, 2018 and afterwards filed suit against Maaco and Butler for conversion. The jury awarded $78,500 and the circuit court denied a motion not withstanding the verdict based on the defense that the vehicle was properly determined to be abandoned.
On appeal, the Court of Appeals, Judge O'Brien joined by Chief Judge Decker and Sr. Judge Haley, address the application of the Abandoned Vehicle Act as a case of first impression and answers the following questions:
Does the former owner of a vehicle declared to be abandoned have standing to seek damages from the party that acquired title under the Act?
If a vehicle is declared abandoned and the evidence shows that the bailee followed the required procedures under the Act, can a jury nonetheless find that the bailee unlawfully converted the vehicle to his own possession and use?
It should surprise no one that, as the Court reached the second question, the answer to the first is "Yes." Obviously, if the former owner of the vehicle lacked standing to challenge the loss of the title under the abandoned vehicle process, his ability to recover would be moot.
The next question is a little tricky because it was Butler who actually received the title from the DMV, not Maaco. The Court reasoned, however, that Butler fell within the Act's definition of a person in possession of the vehicle after permission for the vehicle to remain on the property had been withdrawn. Frankly, I am a little concerned with this result. While Butler was a co-owner of Maaco, Maaco was a separate legal entity and the vehicle was on that entity's property. However, the Court of Appeals construed to Act liberally to find that Butler was the individual dealing with McCants and thus was in a position to claim "possession" of the vehicle.
Another aspect of this conclusion troubles me. If McCants was the one who obtained the title, why was Maaco in the suit at all? It is clear that Butler was the one who took possession of the vehicle and converted it to his own use by filing the application with the DMV and obtaining the title. Maaco arguably failed to safeguard the property bailed to it, but it never converted the vehicle to its own use. There were other theories of recovery, but the judgment was limited to conversion, so I don't see why Maaco was a party to the appeal. Perhaps those involved in this case need to remember the admonition of Mitt Romney that "Corporations are people, too."
I can hazard a guess that Butler and his partner probably didn't "bother with a lot of paperwork" when dealing with regular customers like McCants. The level of tolerance with which they dealt with him suggests the casual nature of the operation. Additionally, when the vehicle was sold to the employee, there was little or no documentation of the sale, as evidenced by the inability to recall the actual sale price.
At any rate, the real issue was whether Bulter could benefit from the DMV's sending to notice the Michigan when he (or rather Maaco) knew that McCants lived in Richmond. Well, as it turns out, the process for having a vehicle declared abandoned does not put the onus on the party seeking title to identify the owner or his place of habitation. Rather, once the request is filed with the DMV identifying the vehicle, it is the DMV which determines who the owner is and what the status of the vehicle may be by checking various state and national databases. McCants never updated his address on the title to the Mustang, so that's on him.
McCants lost ownership rights in the vehicle when he failed to respond to the DMV notice and so there was nothing for Butler to convert. The Court reverses and enters final judgment for Maaco and Bulter.
Now, as to the jury's award of $78,500 for a vehicle that was sold for just 2 or 3 thousand. A footnote indicates that McCants argued in the appeal that the jury could have found the conversion was the result of damage to the vehicle cause by Maaco that diminished its value. There are several problems with this argument, starting with using conversion as a theory for recovering from property damage. More to the point, the Court of Appeals stated that there was no evidence of damage being sustained to the vehicle prior to McCants' loss of ownership. So, that either means that a cherry 1970 Mustang was nearly totaled at some point between November of 2017 and January of 2018 when it was sold to the employee, or the jury based its award on a highly speculative estimate of the vehicle's value. It's just not reasonable that a car sold for a few thousand dollars in 2018 had been a show worthy model a year before absent some extraordinary occurrence. Most "antique" cars are rarely worth more than salvage value unless they have been well cared for or lovingly restored.
Today's second case is Roy Quionne Artis v. Commonwealth of Virginia, which involves a conviction for possession of Marijuana under Code § 18.2-250.1. Now, if you were to look at current volume of Title 18.2, you would find no section numbered 250.1, because that law was repealed in the 2021 Special Session effective July 1, 2021. Unfortunately for Artis, he was indicted under Code § 18.2-248.1 for possessing marijuana with intent to distribute on February 25, 2020.
When the matter came to trial in November of 2021, the jury was instructed that it could find Artis guilty of simple possession as a lesser included offense and it did so. Artis does not appear to have objected to this instruction, and so I was expect the Court of Appeals to go with "it became the law of the case" or perhaps that it was barred under Rule 5A:18. But Artis's counsel was too clever to fall into either of those traps. Instead, he argued that the conviction was void ab initio because simple possession was not a lesser included offense of possession with intent at the time of the trial. Because a court cannot convict a defendant of a non-existent crime, the appeal challenged the jurisdiction of the court to do so, which can be raised for the first time on appeal.
The opinion, by Justice Callins joined by Judges Humphreys and Athey, gives a lengthy history of the common law involving the absolute repeal of criminal statutes and the application of Code § 1-239, the general savings statute, and I certainly commend this opinion to anyone needing to explain that bit of arcane legal history. But, the short version is, "Nice try, Mr. Artis, but it was a crime to possess pot when you were in possession of pot."
It's not all bad news for Mr. Artis. The Court did agree that it was improper for the Commonwealth to wait until sentencing to introduce evidence of a prior conviction in order to seek a sentencing enhancement. Proof of a prior convicting is an element of the recidivist provision of former Code § 18.2-250.1. Given that the Commonwealth was aiming for possession with intent, it probably reasoned that putting on evidence of a prior simple possession conviction applicable only if it found Artis guilty of the lesser offense would at best confuse the jury and at worse give the jury the impression that the Commonwealth didn't thing its possession with intent case was strong. By choosing not to present the evidence at trial, the Commonwealth was barred from seeking the enhancement at sentencing. The case is remanded for re-sentencing.
- John S. Koehler
- Jan 11, 2023
- 9 min read
Updated: Jan 18, 2023
After taking a break on the first week of the year, the Court of Appeals of Virginia released 4 published opinions today and also granted a rehearing en banc. As the latter was a case summarized in this space last month with the observation that one might "[e]xpect a petition for rehearing en banc," lets start with Dilliraj Bista v. Commonwealth of Virginia. As indicated in the original post, the case was notable only for an issue of first impression interpreting the 2021 amendment of Code § 19.2-268.3 which allows out-of-court statements made by an alleged victim of child abuse to be admitted under certain circumstances. The majority found that the circuit court did not err in permitting statements, including a 75-minute forensic interview with the child, to be admitted and even if it did, the error was harmless. Judge Lorish dissented and today the Court of Appeals grants a rehearing en banc.
Among the new opinions today is one that will strike terror into the heart of all litigators who take on a case after a prior attorney withdrew and then discover that former counsel failed to respond to discovery requests. Pine Hill Group, LLC v. Nass Group, LLC involves an alleged breach of a commercial lease. Nass alleged that it entered into a written two-year lease with Pine Hill that was orally renewed for another two-year term. Nass claimed that after it paid several months’ rent at the beginning of the new term, Pine Hill breached the lease by changing the locks, preventing Nass from occupying the premises, and wrongfully retaining Nass’s equipment and inventory.
Let us pause here to make a public service announcement. ADVISE YOUR CLIENTS TO NEVER RENEW ANY LEASE AND ESPECIALLY NOT A COMMERCIAL LEASE ORALLY. Thank you.
Back to the opinion. Nass served interrogatories on Pine Hill, which had filed an answer denying liability by counsel. Sixty-one days later, Pine Hill's counsel filed a motion to withdraw. The opinion does not provide the reason, but it may have something to do with the fact that the response to the interrogatories was 40-days past due. Whether this was because Pine Hill was not cooperating with counsel or counsel was dilatory or for some other reason, Nass moved to compel discover and requested that if a response was received in 10 days, a default judgment would result. The circuit court granted the motion to compel, but did not approve of the 10 day deadline sanction. It also permitted Pine Hill's counsel to withdraw.
Now Pine Hill as "pro se" to the extent that a corporation can be. Unlike a natural person, corporations have a limited ability to participate in legal proceedings through their officers and executives. However, they can definitely respond to discovery -- and no one from Pine Hill did. Nass waited 28 days before again moving for sanctions, and this time the circuit court granted the default and scheduled a hearing on damages.
About a month later, Pine Hill acquired new counsel who entered and appearance and then . . . did nothing for over two months, when a motion for reconsideration was filed in which it claimed that responses to the discovery had finally been filed "a few weeks earlier." Pine Hill also asserted that it did not know that its counsel had withdrawn until November 10, 2021, and that its representative lacked proficiency in English and was “unfamiliar with the US legal system.” To Pine Hill, the discovery failures resulted from a “genuine lack of understanding,” not bad faith. The Court denied the motion and, after the damages hearing, Pine Hill appealed.
The Court of Appeals, Judge Raphael joined by Judges Athey and Chaney, affirms the sanction of default. This should come as no surprise given that both the determination of an appropriate sanction for a discover violation and whether the grant a motion for reconsideration is abuse of discretion. Rule 4:12 provides that default is an appropriate sanction for a discovery violation, and the record shows that the circuit court did not act peremptorily, but imposed the sanction only after giving Pine Hill ample opportunity to cure the discovery violation. Pine Hill's explanation as to the reason for the failure to respond might have given some jurist pause to reflect, but the Court of Appeals will not substitute its own discretion for that of the trial judge.
Aleksey Gennadiyev Yemel'yanov v. Commonwealth of Virginia is the first of two criminal appeals from the Court today. Yemel'yanov seems to have a problem remembering not to drive after consuming alcohol. His appeal involves a felony DUI as a third conviction within five years. A quick check of the statewide case records database confirms that Yemel'yanov has had more than two prior issues with moving violations of the lubricated sort. Yemel'yanov challenged his conviction on the ground that one of predicate offenses used by the Commonwealth was not yet a final judgment because at the time of his current offense it was still on appeal and the circuit court had given him a suspense bond.
Now at first glance, one would be forgiven for thinking, "Why is the Court publishing a case that is a matter of settled law -- a conviction on appeal is a final judgment, right?" Well, yes . . . and no. It turns out that every prior case involving consideration of the use of a case pending appeal as a predicate or element of a new offense did not involve the DUI statute and were arguably distinguishable. Suffice to say that Judge Beales, joined by Judges Friedman and Callins, had little trouble deciding that any distinctions were not sufficient to render the judgment not final for purposes of enhancing the instant offense. Likewise the granting of a suspense bond pending appeal does not somehow render the judgment less than final.
Now some of you are probably wondering what was the result in Yemel'yanov's earlier appeal. If that conviction had been reversed, wouldn't that render his new conviction "unfair." Well, this is a philosophical debate for another day because Yemel'yanov withdrew the appeal right around the time the current appeal was filed. A more cynical person would assume that this was done to avoid having to answer the question, "But wasn't that conviction already affirmed?" Perhaps it's a good thing I gave up being a cynic for New Years.
The other criminal appeal has a somewhat happier result for the appellant. Emily Katherine Delaune was on probation for some drug offenses when she tested positive from drug use. That, as you can guess, was a violation of her probation. But was it a "technical violation" or "special condition." As you may know, probation reform legislation effective July 1, 2022 treats technical violations as not generally meriting imposition of an active sentence, especially on a first violation, which this was -- although she was also alleged to have failed to maintain contact with her probation officer, which interestingly enough is treated as a second technical violation even it is a first.
Now here is the interesting part -- at the revocation hearing the Commonwealth told the judge it consider the drug use to be a technical violation, meaning that it would be rolled into the failure to maintain contact resulting in a single second violation which could result in no more than a 14 day sentence. But the judge disagreed and gave Dulaune 60 days to serve on the basis that her drug use was a violation of a special condition.
The Commonwealth was not so generous on appeal, arguing that Dulaune's appeal was barred because 1) the new statute did not apply and 2) her argument on appeal was not within her assignment of error. In addition, at oral argument, the Attorney General argued that even if the Court could reach the merits of the case, the concession that the offense was technical only by the Commonwealth's Attorney was not binding on appeal.
Judge Lorish, joined by Judge Athey and Ortiz, first found that they could reach the issue regardless because, as in Heart v. Commonwealth, 75 Va. App. 453, 462 (2022), everyone in the trial court had agreed to apply the new law -- making it the law of the case. At least as to this action by the Commonwealth's Attorney, the Court would not permit the AG to reprobate what the CA had approbated.
Likewise, the Court finds that the AG cannot challenge the concession by the CA that the violation was merely technical. In effect, the Court says that unless an act by the CA in a criminal case is extra-jurisdictional, and thus can be raised for the first time on appeal, the AG stands in the shoes of the CA.
After quickly disposing of the "insufficient assignment of error" argument, the Court proceeds to examine the merits. Now, if you think that the Court is bound by the concession that the violation was technical, you haven't been paying attention. While litigants was bound by their concessions, the court's are not. Just as the circuit court here chose to ignore the Commonwealth's concession, so to could the Court of Appeals. But it didn't. Primarily because the concession was not a concession at all, but is in fact spelled out right there in the statute -- though apparently no one brought this to the circuit court's attention. The case is remanded for a new proceeding at which Dulaune can receive at most 14 days.
There is one additional point of interest found in a footnote. Less that two weeks before oral argument, the Commonwealth filed a motion alleging that Dulaune had violated her probation again and was a fugitive. The Commonwealth sought to dismiss the appeal under the fugitive from justice doctrine. The Court of Appeals declined to primarily becuase the AG spring this on the Court more than six months after the capias had been issued. I think one can say as a whole the opinion takes a very dim view of the AG's approach to this appeal. It might not quite qualify as a "bench slap," but it comes awfully close.
The final opinion today permits us to visit with some old friends. Jody Bart Randolph v. Kerry Ann Sheehy arises from a divorce action. When last we had contact with the unhappy couple, Ms. Sheehy was appealing a civil judgment against her in favor of Rene Williams, the "other woman." Sheehy had obtained photos of Williams in various compromising situations and had been found in violation of Code § 8.01-40.4 by disseminating images of Rene Williams in a manner prohibited by Code § 18.2-386.2. That case took a sharp left turn when Sheehy paid the judgment in order to clear a lis pendens lien on marital home, which she had received in the divorce. The Supreme Court remanded the case for fact finding on this payment and ultimately concluded that the appeal was moot because of it.
Today's opinion involves a far less salacious set of facts and a no more satisfactory result for Sheehy. As part of the divorce decree, Randolph was required to designate Sheehy as a 50% beneficiary of his military retirement pay. Randolph was also prohibited from taking any action to reduce the amount of Sheehy's share, including any election to receive disability pay instead of retired pay.
Anyone with even a passing familiarity with domestic relations case knows what's coming next. When Randolph retired from the United States Navy, he sought to receive tax-free disability pay as well as Combat-Related Special Compensation. These elections effectively reduced Sheehy's share of the retirement pay.
Now, you are probably thinking that the case went to court over the elections Randolph made in violation of the prohibition in the settlement agreement adopted into the decree. Well, you are half-right. Enforcement of the agreement was the issue, but credit Sheehy's attorney with being smart enough to anticipate Randolph's breach -- becauce the agreement also included an indemnification clause. Randolph was without a leg to stand on and promptly forked over over $9,000 in arrearages after the first show cause hearing.
Now you would think that would end the matter, but Sheehy wasn't done -- she asked the court for attorney's fees and wanted him to make arrangements for her to receive full share directly from Uncle Sam. Randolph argued that he was not in contempt because he had paid Sheehy the arrearage. The court disagreed and awarded over $11,000 in attorney fees and directed Randolph to determine whether he could arrange for future payments to go directly to Sheehy in the amount to which she was entitled.
At the next hearing, Randolph averred that while he could not have the government pay Sheehy directly, he had set up a direct draft to send her the arrearage each month from his account. The court was not satisfied with this arrangement and directed Randolph to revoke the Combat-Related Special Compensation at the next opportunity, which he did. The court awarded additional attorney's fees.
The appeal revolved around two issues -- could the circuit court require Randolph to revoke the Combat-Related Special Compensation and, whether it could or not, were attorney fees appropriate where Sheehy had received and would continue to receive the amount required by the decree, even if she was not receiving it as required by the decree.
The opinion goes into significant detail showing the differences in taking retirement pay, which is marital property, and Disability and Combat-Related Special Compensation, which are not. The end result, however, is that a state court does not have the jurisdiction to require a veteran to give up Disability and Combat-Related Special Compensation. Thus, while Randolph remains on the hook for the 50% cash value of his full retirement pay, he cannot be required to accept all his compensation as retirement pay. As a result, Randolph should not have been required to pay legal fees for the proceedings that improperly required him to revoke his election.
Presumably due to the long Christmas weekend, the Court of Appeals dropped one published and several published opinion today, rather than Tuesday, the regular release day. The one published opinion, Richard S. Pergolizzi, Jr., M.D. v. Ramona Bowman, is a medical malpractice case with not one, but two issues of first impression. First, can a claim that a physician proceeded without informed consent rest on that physician’s failure to inform the patient that the physician may have misdiagnosed them, rendering other alternative treatments more appropriate? Second, should a factfinder assessing whether a failure to obtain informed consent was the proximate cause of later injuries ask whether the particular patient, or a reasonable patient, would have gone forward with the procedure anyway?
The Court of Appeals, Judge Lorish joined by Judges Huff and Raphael, concludes that a negligence theory based on a physician’s failure to obtain informed consent must be constrained by the diagnosis that physician actually made. As a result, the trial court erred by
allowing Bowman to proceed on an informed consent claim based (in part) on Dr. Pergolizzi’s
failure to inform Bowman about alternative treatments that would have been appropriate had he reached a different diagnosis. The Court further holds that a factfinder determines whether the plaintiff herself—not an objective “reasonable person”—would have elected alternative treatment after receiving adequate information from the physician.
In 2017 Bowman began suffering sever pain on the left side of her head. Her primary care physician referred her for a CT scan, which revealed a subarachnoid hemorrhage. Bowman was hospitalized for three days then referred to a nuerologist who referred her to Dr. Pergolizzi.
Dr. Pergolizzi order additional tests that resulted in the discovery of a left middle cerebral artery aneurysm, which he believed was the underlying cause of the subarachnoid hemorrhage. He also recognized that the aneurysm was of an irregular shape. In consulting with Bowman, however, he did not advise her that the aneurysm was the cause of the hemorrhage nor did he express concern about its irregularity, even though these elements of the diagnosis were relevant to his recommendation that immediate surgical intervention rather than taking a wait and see monitoring approach.
Before the surgery, Bowman's symptoms worsened. A CT scan, however, showed no change in the aneurysm. During the surgery, Bowman suffered a hemorrhagic stroke, resulting in permanent impairment.
At trial, Bowman's expert testified that Dr. Pergolizzi misdiagnosed the aneurysm as the cause of the hemorrhage and, as a result of that misdiagnosis improperly recommended surgery rather than recommending monitoring. Additionally, there was evidence that Dr. Pergolizzi was negligent in the manner in which he performed the surgery. The experts testified that there were other possible causes of the hemorrhage which should have been considered and which would have contraindicated the surgery if the aneurysm was not the cause.
The jury was instructed that it could consider Dr. Pergolizzi's failure to advise Bowman that he may have misdiagnosed the cause of the hemorrhage and, thus, the need to surgically address the aneurysm, as a basis for finding lack of informed consent. The jury was also instructed that informed consent was to be judged under a subjective standard of the specific patient when determining whether a fully informed patient would have elected to proceed with the same course of treatment, not, as Dr. Pergolizzi urged, under a "resonable person" objective standard. The jury returned a verdict for Bowman, awarding her $3,000,000, which the circuit court reduced to the applicable med mal cap.
As already indicated, the Court of Appeals found error in the first of the two instructions to the jury. In doing so, the Court adopted what it said is the majority view that a physician is not required to advise a patient of the potential for misdiagnosis as part of the information imparted to obtain informed consent. Rather, the Court concludes that the misdiagnosis is a separate claim for negligence, not a contributing factor in determining informed consent. The Court further noted that the only contrary decision was subsequently legislatively overruled. Although the error was not harmless, the Court affirmatively stated that Bowman could (and undoubtedly will) raise a separate misdiagnosis claim on remand.
On the issue of the subjective v. objective standard for determining whether a patient, if properly informed of an alternative treatment, would have opted to proceed with the recommended treatment, the Court sided with Bowman, finding that "the subjective approach better fits the basic principles of Virginia tort law." Thus, on remand, this standard will again be applied to Bowman's presumed claim of misdiagnosis.
I suspect that the result on remand the jury is likely to again return a verdict for Bowman. This supposition should weight against any decision by Bowman's counsel to seek an appeal in the Supreme Court, even though the issue is plainly novel and probably would be granted a review. Whether Dr. Pergolizzi will appeal the unfavorable aspects of the decision is another matter. My guess is that his med mal carrier will seek a writ if for no other reason than to extend the proceedings (not in an improper sense of deliberate delay, although this is an added benefit of doing so), and if so, then Bowman will likely assign cross-error.