The Court of Appeals of Virginia released 4 published opinions this week and also announced the granting of a petition for rehearing en banc. The en banc was granted in Michael Brown v. Timothy L. Kirkpatrick, which was not unexpected. In fact, in the analysis of the 2-1 opinion posted just over a month ago, I stated confidently that the en banc or an appeal to the Supreme Court was certain. Indeed, even when the en banc opinion comes down, I suspect that it will be a split and the Supreme Court will grant review.

Moving on to the new opinions, the most consequential, at least for civil practitioners, is David Willems, et al. v. James Batcheller, et al. The case is a garden-variety dispute about a garden. Specifically, the Willems filed a complaint of trespass an nuisance wit respect to the Batchellers' bamboo plants. What makes this case consequential is that in response to the suit, the Batchellers raised, inter alia, a defense of adverse possession, claiming that a fence constructed by the previous owner of their property had enclosed some of the Willems property and had been in place for the statutorily required period, giving the Batchellers title to that land.

Now, there were many issues raised in the trial court and its split decision, requiring the Batchellers to "control" the spread of the bamboo, but also setting the new property line as the fence line, thus giving the Batchellers title to the property on their side of the fence, satisfied neither party. The Willems appealed and the Batchellers assigned cross-error.

The Court of Appeals, Judge Athey joined by Judges Beales and O'Brien, today affirm the finding that the bamboo was a nuisance and requiring the Batchellers to control its growth so as to not encroach on the Willems property. However, the Court finds that the circuit court did not have the power to declare a new property line based on the affirmative defense of adverse possession. While the defense was a proper claim to defeat the alleged trespass, it did not amount to a counter-claim seeking relief in the form of a declaration that the property was lawfully the Batchellers'. This is a very important lesson in the difference between offensive and defensive pleading. The Batchellers will no doubt be taking the offense in a new suit to have the property line established.

One final point about this case. Contrary to popular belief, bamboo is capable of growing in subtropical climates with cold winters. Bamboo is highly invasive and damaging in the United States as it is an aggressive spreader. There are two species that are especially problematic in Virginia: Phyllostachys aurea (Golden Bamboo) and Phyllostachys aureosulcata (Yellow Groove Bamboo). Once this plant is established, it is difficult to remove. Because it is an invasive species and will spread to neighboring yards, just say no to bamboo for your next landscaping project.

Eric Lisann v. Elizabeth Lisann is a domestic relations case which is primarily about when the unhappy couple separated. This date is important because it has repercussions for equitable distribution of the marital estate and spousal support among other matters. The circuit court found that the separation occurred on July 14, 2014, while Mr. Lisann said that the separate occurred four and a half years later in December 2018 when "he intended that the separation be permanent." The issue before the Court of Appeals is whether the circuit court erred in not finding that "conciliatory statements and activities" made by Ms. Lisann showed that she too did not consider the separation to have been permanent until 2018.

Before discussing the Court of Appeals' resolution of this case, let us take a moment to discuss a curious incident -- though not of a dog barking in the night. There were actually two opinion released in Lisann v. Lisann today, one published and one unpublished. These appeals both arise from the same appeal, No. 0120-22, and the same author, Judge Chaney, joined by Judges Athey and Raphael. The second opinion is unpublished and finds several errors in the judgment which require a remand. I do not recall seeing this done in any prior case and am not certain why the Court would elect to do so in this case. While the unpublished opinion is quite lengthy, given that both opinion have some duplication with respect to the recitation of the facts and proceedings, combining them into a single published opinion would not have proved a significant challenge. The most likely explanation is that the Court did not feel that the issues raised in the unpublished opinion warranted publication because they were based on well-established law. However, I can see no harm in having well-established law set out in a published opinion which the gives an up-to-date citation for those principals. It will be interesting to see if this is an aberration or the start of a trend.

Back to the issue of exactly when the Lisanns went their separate ways. The couple began maintaining separate residences in 2014, but maintain cordial, platonic relations in order to provide for the welfare of their children. The couple also celebrated their 25th Wedding Anniversary with dinner in May 2018. The wife occasionally expressed a desire to reconcile and offered to seek counseling, however counseling never occurred and the husband declined wife's offer to resume living in the same home.

The wife filed for divorce in October 2019 on the grounds of living separately and apart since 2014, while husband counterclaimed seeking an at fault divorce alleging adultery and desertion, asserting that the separation occurred in 2018. The circuit court opted for the earlier date, but did not give express reasons for this finding.

The Court of Appeals affirms, noting that the determination of the date of separation is a factual finding owed great deference. That deference required the Court to infer that the circuit court accepted wife's allegation that she intended the separation to be permanent in 2014. The Court finds that the wife's intention is sufficient to establish the date of separation even if husband's intention was different.

As to the wife's expressions of affection and a desire to reconcile, the Court found that an intent to reconcile, without more, is not sufficient to interrupt the running of the period of separation toward the statutory requirement of living separate and apart for 1 year. In doing so, the Court rejects husband's argument that the General Assembly intended for the intent to separate be either permanent or continuous. Rather, the Court finds that the issues are 1) when did the parties actually separate, that is, when did one party form the intent to separate from the other and then by some action manifest this intent, and 2) did the parties there after live separate and apart for more than 1 year without regard to whether the intent was continual throughout that period. So long as the parties did not manifest the intent to cease living separately by word or deed, it is not necessary for them to show that the intent to remain separated was constantly firm.

The Court also rejected the husband's argument that this interpretation could lead to a spouse being sandbagged by a no fault divorce claim where, for example, a husband and wife have a spat just before one of them leaves on an extended business trip that lasts a year. The Court found that such circumstances would not satisfy the requirement of the Code that the separation be evinced by other indicia of marital separation. Finally, the Court noted that requiring a continual desire to separate would interfere with efforts toward seeking reconciliation.

Tadashi D. Guest v. Commonwealth of Virginia is a short opinion with an even shorter concurrence. Judge Ortiz, joined by Sr. Judge Haley, writes the 8-page majority and Judge Chaney concurs in little more than a page. The issue is whether Guest's conviction for a violation of Code § 18.2-104 was improper because by the time he was convicted, the General Assembly had repealed that statute. Prior to July 1, 2021, the statute created a "three strikes" felony offense of petty larceny. Under the statute, a person convicted of a third or subsequent offense of petty larceny was guilty of a felony with regard to when the prior convictions had occurred or how much the property was valued at. The usual argument against such laws is that they can turn truly petty offenses into felonies, such as the kleptomaniac who only steals chewing gum and manages to keep his sticky fingered proclivity under control, but gets caught the three times he fails to do so, and is eventually declared a felon for the theft of a few dollars of worth of Fruitstripe.

When Virginia reformed its larceny statutes and raised the limit for petty larceny, it also repealed the three strikes law effective July 1, 2021. Just a few months before that date, however, Guest went to a home improvement store and helped himself to nearly a $1000 in items which he ten attempted to return. This is actually a very common scam for such retail establishments, and employees at the return desks are trained to spot the flim-flammers and it usually isn't that hard. Such was the case with Guest, who being denied the refund, left the store with the items. Apparently the employee was distrustful enough to question the request for a refund, but not enough to suspect that Guest hadn't actually bought the items to begin with.

Give Guest credit for sticking to his game. He went back to the store and tried again. This time the employee at the return desk must have been new, because Guest managed to get the refund as store credit and then bought some items with the credit. However, the police eventually caught up with Guest in early June after the store's loss prevention team presumably realized it's employees had been taken unawares twice and filed a complaint.

Guest already had a least one prior petty larceny offense, and was charged under the three-strikes law. By the time he was brought to trial, Guest entered a plea which gave the circuit court a free hand in sentencing. Guest advised the court that if sentenced to more than six months active time, he would lose veteran's benefits. The court was unmoved and sentenced Guest to 5 years, with 18 months to serve.

Now, when you enter a guilty plea, there are really only a few ways you can appeal. One is to allege that the Commonwealth reneged on the deal, but that didn't happen here. The other two ways are 1) that the conviction is void, and 2) that the judge abused his or her discretion in imposing sentence. Guest tries both.

First he contends that once the General Assembly had repealed the three strikes law, it was a "non-existent crime" and his conviction was a nullity. It is on this point that the majority and the concurrence split hairs. The majority says that a prior decision of the Court held that the repeal of Code § 18.2-104 was not retroactive, but it must still decide whether the triggering

event under Code § 1-239 is the indictment or the criminal offense. Code § 1-239 is the statute that determine whether the repeal of a criminal statute results in continued liability for the offense and whether there is any mitigation of punishment.

The distinction between the case that determined the repeal was not retroactive and this case is that in the former both the offense and the indictment occurred before July 1, 2021, where Guest was not indicted until after the repeal was effective. The majority concludes that because Guest "committed his offense 'against the former law,' when the former law was

in full force and effect," the timing of the indictment does not impact the application of the former law. Judge Chaney would have dispensed with the majority's approach and simply held that because the prosecution of Guest commenced with his arrest and preliminary hearing in June, before the repeal took effect.

The full court has no issue with the alleged abuse of discretion in the sentence. The sentence was within the lawful range and no evidence suggested that the court ignored Guest's plea for mercy . . . it simply didn't find mercy was warranted.

Jason Lamont Burford v. Commonwealth of Virginia is an appeal of a revocation of suspended sentences. Like a great many revocation cases lately, the issue turns on whether Burford committed a "technical" violation limiting the circuit court's jurisdiction to impose active time. Burford was convicted of sexual battery, assault and battery, and stalking and was required to serve 6 months of a 36 month combined sentence. Upon release, despite being told that he was required to report to a probation officer, Burford initially complied, but upon moving to a new jurisdiction to which his supervision was transferred, insisted, quite vocally, that he was on unsupervised probation.

Burford's refusal was entirely without justification as he was able to produce a document which stated that he would be placed on unsupervised probation. However, the Commonwealth argued, and the circuit court agreed, that the overwhelming weight of the evidence showed that Burford had been told multiple times that he was subject to supervision. The question then became whether Burford's violation was only "a first technical," for which not active time could be imposed, or a violation of a special condition of his suspended sentence which permitted the court to set any active sentence within the range of the suspended time. The court opted for the latter, imposed six additional months of active time.

On appeal, the Court of Appeals, Judge Athey joined by Judges Beales and O'Brien, first finds that the court did not err in concluding that Burford was adequately informed that he was subject to supervised probation. Revocation hearings are not subject to a "beyond a reasonable doubt" standard of proof, but merely a preponderance, and there was adequate evidence that Burford should have known he was required to cooperate with the probation officer.

Whether the violation was "technical" or not turns on whether the violation was for not cooperating with the probation officer, a technical violation, or not complying with the terms of the suspended sentence, a "regular" violation (for lack of a better term). While Burford's action was that he refused to cooperate with the probation officer, the actual violation was not completing therapy which was a special condition of his suspended sentence. The Court of Appeals affirms the court's exercise of its jurisdiction to impose active time.