Four Appeals from the Court of Appeals

The Court of Appeals issued two opinions last week, but a day later than usual owing to the election day holiday, and issued two more today. The most noteworthy of these is Jordan Heath Joyce v. Botetourt County Department of Social Services. It is noteworthy on two grounds: First, it is a reversal of a termination of parental rights -- a rare occurrence; second, the party whose rights were improperly terminated was the child's father, which is also rare as, tragically, in most TPR cases the father is incarcerated or absent entirely and, even more rare in this case, the mother did not also appeal the termination.

The issue in Joyce, as in most such cases, is whether the Department of Social Services adhered to its statutory directive to provide appropriate services to both the parent and the child in an effort to restore custody of the child to the parent, usually referred to as a goal of "return to home." In this instance, the record shows that while there was a protective order in place with respect to Joyce and the child, DSS did provide a plan for visitation with Joyce, but that this did not occur due to Joyce's "health situation." The protective order was later lifted, after it was determined that the allegations made in obtaining it were unfounded.

Apart from finding that placement with Joyce was not a viable option, it appears that DSS did not include Joyce in any of the plan for services offered to the mother and child. DSS conceded that he had contacted them at least seven times seeking to be included in the process, but DSS did not arrange for visitation or provide any services. While the circuit court found this to be "troubling," it nonetheless found that termination of Joyce's residual parental rights was appropriate because no services could have been offered during the time that the protective order was in place.

Given that the standard for termination of parental rights is clear and convincing evidence, it should come as no surprise that the Court of Appeals, Judge Humphreys joined by Judges Huff and Atlee, reversed the judgment. First, the Court concludes that the evidence did not support the circuit court's conclusion that DSS could not provide services to Joyce while the protective order was in place. The record demonstrated that Joyce was allowed visitation even during that period and, while he had been unable to participate in visitation, nothing would have prohibited DSS from setting goals for Joyce to prepare for parenting the child. As to the sufficiency of the evidence with respect to whether adequate services were provided to Joyce, the record was abundantly clear that no services were provided even after the protective order was lifted, despite Joyce's repeated inquiries.

David Brandon Cannaday v. Commonwealth of Virginia involved a charge of possession of over 100 grams of methamphetamine. Cannday received a 40 year sentence for this crime, of which the circuit court required him to serve the mandatory minimum of 20 years. On appeal, Cannaday contends that the trial court erred in failing to apply the safety

valve provision of Code § 18.2-248(H)(5).

What, you may ask, is a "safety valve provision" in this context? A “safety valve” is an exception to mandatory minimum sentencing laws. A safety valve allows a judge to sentence a person below the mandatory minimum term if certain conditions are met. Safety valves can be broad or narrow, applying to many or few crimes (e.g., drug crimes only) or types of offenders (e.g., nonviolent offenders). They do not repeal or eliminate mandatory minimum sentences. However, safety valves save taxpayers money because they allow courts to give shorter, more appropriate prison sentences to offenders who pose less of a public safety threat. This saves our scarce taxpayer dollars and prison beds for those who are most deserving of the mandatory minimum term and present the biggest danger to society.

So, now that we have defined the term, what exactly is the particular safety valve in this instance? As relevant to this appeal the statute provides that the "mandatory minimum sentence shall not be applicable if the court finds that . . . (ii) the person did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense ." (Emphasis added.) There's a lot more to it than that, but the parties agreed that the real issue was whether Cannaday possessed a gun "in connection with" the drug offense. Cannaday admitted that he owned a gun and that it was in his constructive possession at the time he also possessed the drugs, but maintained that the it was not possessed in connection with the drug offense. He further maintained that the circuit court was required to make a specific finding that it was, whereas the court here merely stated that it found the safety valve "did not apply" without stating a specific factual finding.

This particular safety valve has not been interpreted by either appellate court, but similar statutes have been and the Court of Appeals, Judge Callins joined by Judge Chaney and Sr. Judge Petty, applies the same analysis here. First, the Court concludes that the circuit court was not required to make an express finding that Cannaday possessed the gun in connection with his possession of drugs. Rather, this was a reasonable inference from all the attendant circumstances.

Michael Charles Hogle v. Commonwealth of Virginia involves a DUI conviction and a motion to suppress the evidence. Specifically, Hogle, whose arrest was in 2019, maintained that Code § 46.2-646(E), which went in to effect in 2021, should apply retroactively to invalidate the stop of his vehicle. Subsection E eliminated the "primary offense" status for conducting a stop for an expired registration sticker that was less than 4 months overdue. The "usual rule" according the the Court of Appeals, Sr. Judge Petty, joined by Judges Fulton and Ortiz, is that "[a] tatute is retroactive only if the legislature includes an express provision or other clear language indicating that it applies retroactively." There was not such indication in the 2021 act, so the stop was valid at the time.

William Adam Boyd v. Constance Weisberg is the second "new jurisdiction" case in which a published decision has been issued -- that it, it involves a civil matter that previously would have been heard by the Supreme Court on petition, but is now an appeal of right to the court of appeals. Boyd owned and operated "To Charge Virginia," a credit card processing service, and Weisberg was a contract sales agent for the company. A dispute developed between Boyd and Weisberg, and when the latter indicated that she would bring suit to recover monies she believed were due to her, Boyd did something which on its face is very suspicious -- he formed a new out-of-state LLC and transferred all of To Charge Virginia's assets to this new entity in exchange for a payment of $10 cash in hand, effectively rendering To Charge Virginia insolvent.

Weisberg brought suit against To Charge Virginia, the new entity, Boyd and by subsequent amendment, another of his entities, VeriPay, which he formed during the pendency of the litigation and to which he transferred all the assets of the second entity. I am sensing a pattern here.

Weisberg ultimately prevailed before the jury, which awarded her $350,000 against Boyd personally for his fraudulent transfer of assets from To Charge Virginia, the amount of her ad damnum. The circuit court affirmed this verdict, and awarded Weisberg $149,041.90 in attorney's fees pursuant to Code § 55.1-403.

Although Wesiberg had also sought to "pierce the corporate veil," but dropped that effort, so the case here relies on Code § 55.1-403, the fraudulent conveyance statute. After the verdict, Boyd tried to argue that the statute did not apply to him personally because his sole role in the transfer of assets was as a corporate representative, not in his private capacity. The problem is Boyd had agreed to an instruction that permitted the jury to find him personally liable. The circuit court declined to review the instruction after the fact.

The Court of Appeals, Judge Athey joined by Judges Humphreys and Callins, agrees with the circuit court that the objection came too late. While a circuit court may review an instruction for error after the verdict is returned, it is not required to do so. In such cases, the instruction becomes the "law of the case" even if the instruction was inaccurate. This is so, even though Weisberg withdrew her attempt to pierce the corporate veil. Notably, the Court does not say that Boyd would have been correct to assert that his role as a "corporate representative" shielded him from personal liability -- in not doing so, the Court was probably thinking in terms of substantial justice having been done in this case and not wanting to provide any ammunition for a malpractice suit against Boyd's trial counsel -- which is likely coming anyway.

Boyd also contended that the fee shifting provision of Code § 55.1-403 did not apply to him because he was not personally a "participant" in the fraudulent transfers. The Court makes short shrift of this noting that Boyd unquestionably participated in the fraudulent transfers as that term is usually understood. Boyd also raised for the first time on appeal an objection to the verdict form used by the circuit court, but this issue is disposed of under Rule 5A:18.

Two Appeals from last week . . . neither one in a criminal matter

The Court of Appeals broke a long string of issuing cases only in criminal matters (assuming you count the expungement decision from mid-October as a criminal matter), and issues two opinions, one in a Worker's Comp case and (drum roll please) one in a civil cases that is not from a domestic relations case. As the Sage of Virginia Beach correctly points out, this is the first published decision from such as case since the Court of Appeals started hearing these former Supreme Court jurisdiction cases. As Steve Emmert has graciously ceded to me the summary of Court of Appeals cases that were his former bailiwick when they were heard on the opposite side of Franklin Street from the Court of Appeals, I shall begin with Dakshay Patel, et al. v. Jonathan I. Rabinowitz ex rel. Lakhani Associates, LLC, et al.

The case involves the Uniform Interstate Depositions and Discovery Act (UIDDA), Code §§ 8.01-412.8 to 8.01-412.15 and address whether an out-of-state judgment creditor may serve an out-of-state document subpoena on third parties in Virginia when the judgment creditor only suspects that those third parties might hold property or assets belonging to the judgment debtor. The answer is no. Why did I give up the prize so readily? Well, because quite frankly this a 14-page discussion of how this UIA is interpreted and applied in other states to answer this question, which is one of first impression in Virginia. It includes a history of the slow process of states adopting this particular UIA -- something fairly common to all UIAs.

Here's the short version -- the law of Virginia controls whether the subpoena is proper and under Virginia law a post-judgment creditor subpoena can only be served on a known bailee or debtor or a third-party creditor of the judgment debtor. While acknowledging that Virginia follows a minority view in such cases, the fact remains that it is Virginia's law that applies under the UIDDA and it is not for the Court to question the wisdom of the General Assembly in adopting the minority view.

I should like to tell you that Medical Management Intl. and Travelers Indemnity Company of America v. Pamela Jeffry from the Workers' Compensation Commission, and thus an "old jurisdiction" case, was more lively, but I am told that it's wrong to lie. If fact, it's sort of a "well duh" opinion. By this I mean, I really can't see how the employer and carrier brought this case with a straight face, because the issue is whether an injured worker who was rendered unable to drive is entitled to receive reimbursement for transportation costs when going to medical appointments related to her compensible injury. Now, the issue before the Commission was whether Jeffry had to give notice to her employer that she was using a "rideshare" service for this purpose (presumably to allow them to provide an alternative transportation method). The Commission found that the employer and carrier suffered no prejudice as a result of the lack of notice.

The "well, duh" part of the opinion comes from the determination of the Court of Appeals that prejudice is not the issue, it's whether the Workers' Compensation Act requires notice of the need for transportation at all. The Court quite correctly concludes that there is no such requirement. The Court notes that the Act is replete with notice requirements that limit a worker's ability to get certain benefits or to make certain claims, but there is nary a hint of such requirement when necessary transportation expenses are compensible.

I am curious as to whether the employer and carrier were actually willing to offer some form of transportation that would have been more affordable to them than the rideshare app? The opinion states that they did not offer transportation to Jeffrys, but presumably id she had been proving them notice that she need it, they would have had to make some arrangements. If so, I wonder if it would have been as convenient for Jeffry. While one might argue that convenience is not a paramount concern in such situations, I tend to think that most employers and carriers would not be able to provide transportation to medical appointments at a lower cost unless it was through a service that made multiple pick-ups and stops. More to the point, Jeffrys only used the service as a "last resort," whereas had her employer or the carrier required her to use an "authorized" service, she likely would have used it all the time.

One more opinion from October . . . and it's a victory for the defendant perhaps (well, sort of).

The last published opinion issued in October by the Court of Appeals is Osman Osman v. Commonwealth of Virginia. Osman was convicted by a jury in Fairfax County Circuit Court of four counts involving violations of a protective order, two counts of felony abduction, and one count of misdemeanor domestic assault against a family member. As you can probably guess, this case arises from a domestic situation. Osman's estranged wife obtained a protective order for her and the couple's child, identified as J.O., who was under three at the time of the offenses.

There really doesn't seem to be much dispute that Osman violated to protective order by showing up at a place where he new his wife and child would be and demanding that the wife come with him. A struggle ensued and attracted the attention of a passerby who was an off duty federal security officer. Osman pointed what appeared to be a handgun at the officer and threatened to shoot him. Osman maintained that the weapons was a "BB" gun. When another passerby told Osman that police had been summoned, he fled.

The vehicle Osman was driving, which had been stolen, was found abandoned. Evidence recovered from the vehicle included items that Osman admitted were his and included a child safety seat restraint bar with zip ties looped through it so that it could be used to secure someone by the wrists. The vehicle also contained diapers, men’s clothing, and assorted identity papers.

Osman was subsequently located in New York and extradited to Virginia. Osman made numerous motions for continuances, and as a result had not been brought to trial at the time the COVID-19 pandemic forced the closure of many courthouses and the curtailment of jury trials. he was eventually tried on July 28, 2021after the circuit court overruled Osman's statutory and constitutional speedy trial motions.

There is really nothing new in the aspects of Osman's appeal with respect to his arguments about admission of past bad acts (trial court's discretion), speedy trial (COVID and his own requests negate statutory claim, and constitutional claim lacked demonstrated prejudice), and sufficiency of the evidence. So what is the victory Osman did win? It relates to his attempted abduction of J.O. under Code § 18.2-47, which was charged as a felony. The Court of Appeals agrees with Osman that under that statute, a parent is only guilty of a misdemeanor if they attempt to abduct their own child. Nothing in the statute creates an exception for an abduction where the parent did not have custodial rights and/or was required to remain away from the child by a protective order. This will result in Osman's total sentence being reduced by between 10 years, so perhaps the victory was not that small after all, as he was sentenced to 20 years total. Cutting his sentence in half will still give his wife time to get divorced . . . and Osman, who was a legal immigrant will probably be subject to deportation upon his release, so not such a big victory either.