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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

First Opinions of Spring Appropriately Includes an Issue About Mowing Your Lawn (and maybe the Government's Lawn too)

The Court of Appeals issued its first opinions of Spring over the last two weeks. The first case we summarize will possibly have you feeling a sneeze coming on as the pollen and grass mold fills the air. Several of these opinions also provide lessons in procedural default, which continues to be an issue despite countless CLEs on how to avoid it.


City of Richmond v. Property Ventures, Inc. (April 2, 2024) involves the power of a local government to seek abatement of a nuisance and charge the property owner for the cost of the abatement. In this case, the property owner failed to keep undeveloped property neatly mowed including a publicly owned right-of-way adjoining the property. When the assessments were unpaid, Richmond sought to force a judicial sale of the land.


In the circuit court, the property owner alleged that the City had no power to require it to maintain the adjoining publicly owned property and further that it had not proved that the property's condition was actually in violation of the relevant ordinance. The court agreed on both counts and dismissed the suit.


On appeal, Richmond wins a partial victory, but loses the battle nonetheless. The Court of Appeals, Judge Ortiz joined by Chief Judge Decker and Judge Fulton, agree with the city that it can require maintenance of private property under Code § 15.2-901(A)(3), but not public property adjoining it. However, the city's charter includes a specific provision that it can "compel the removal of weeds from private and public property" and this authority is supported by Code § 15.2-1115.


Now we pause here to consider a footnote in the opinion which your humble correspondent was heartened to see because, prior to looking at the footnote, he was thinking "WTF? A local government can compel a private land owner to maintain public property? Just how far does that power extend? Can the government make me mow a park that happend to adjoing my backyard?"


Well, the Court apparently had the same reaction, and in a footnote indicates that, well, not to put to fine a point on it . . . Yes. Now that probably does not still well with you, and it apparently raised some concern for the Court, which noted that the property owner here did not "raise any constitutional concerns with this broad power, and thus we do not consider the constitutional implications here." In appellate practice we call this a BIG HINT that the Court would have considered those implications had they been raised . . . and may be the next time this issue comes up, the appellant will raise them.


Getting back to the opinion now, it seems that maybe Richmond was cruising to a reversal, but wait. The circuit court also ruled that, to the extent the city could require the owner to maintain the property in a weed-free (or at least neatly trimmed if weedy) condition, the City had not proved that the owner had in fact not done so.


The city apparently got a bit clever and invited the Court of Appeals to "get into the weeds" quite literally by reviewing the evidence and finding that there were sufficient grounds to find that the property had been improperly maintained. However, the Court declines to step into the role of factfinder, and gives deference to the trial court's finding that the evidence was insufficient.


The city had one last argument that the dismissal was improper. It seems that the judicial sale was based on non-payment of taxes and other assessments, not just the nuisance abatement charges. Unfortunately, the city failed to raised this as a basis for not dismissing the case in the trial court and is barred from doing so on appeal.


Jeremie Davis v. Wal-Mart Associates, Inc., et al (April 2, 2024) is a Workers' Compensation appeal which involves two issues of causation. First, Davis asserts that the Commission erred in finding that that he did not sustain an injury by accident in that he did not prove a structural or mechanical change in his body and further that his injury was a ‘predictable consequence of his voluntary defiance’ of medical restrictions.


The first issue is one that comes up quite often when an employee has an existing condition that is not work related and experiences an episode while working. In this case, Davis had a history of back trouble and three prior surgeries. While working as a stocker at Wal-Mart, Davis "felt a sharp pain in the middle of his back." Medical examination, however, did not reveal any noticeable change in his existing condition. Subsequent medical opinion confirmed that his condition was essentially unchanged. The second issue was whether Davis was working in a contrary medical restrictions -- in fact, it appears he was not to be working at all.


Because there was no contrary expert testimony that Davis suffered a structural or mechanical change as a result of his work, the Commission found that there was no basis for making an award. Because there was no award to be made, the Commission didn't reach the issue of whether Davies was working outside of medical restrictions.


The Court of Appeals, Judge Beales joined by Judges O'Brien and Raphael, have no difficulty with the first issue -- there simply was no evidence to establish that Davis had suffered a work related injury. His back hurt because he had a bad back, not because something "snapped" while he was bending and stooping for his job.


The second issue is even less problematic, but not because the Commission didn't reach it. Rather, the problem is that Davis' assignment of error was worded as is the Commission had reached the issue and decided it against him. That's not what happened, and thus both the assignment of error and the argument are procedurally barred.


Mark Kyle Chaphe v. William Carson Skeens, et al (April 2, 2024) involves a close-relative adoption. The Skeenses as the maternal grandparents of Chaphe's three children. Their mother, the Skeenses' daughter, separately appealed the order permitting her parents to adopt the children, and that appeal was decided by a per curiam unpublished decision released with this case.


This is, as almost all such cases are, a tragic result arising from tragic circumstances. In 2015, Chaphe was driving under the influence when he caused an accident. The mother and two of the children were in the car at the time. The two children were subsequently placed by Social Services with a family friend, but were sexually abused while in that person's care.


The children were returned to the parents' custody and the third child was born in 2016. Late in 2017, Chaphe was incarcerated after failing to complete a drug court program and the mother voluntarily gave custody the oldest child to her parents. Subsequently, the other two children were left in the care of another family friend for several months and Social Services intervened again, with these children also going into the custody of the grandparents. Mother was experiencing criminal legal issue of her own during this time.


Over the next several years, the grandparents cared for the children, two of whom had special needs. Chaphe sought to obtain custody when released from jail, but failed to attend the hearing on his petition and subsequently was re-incarcerated when he again violated probation.


The grandparents petitioned for adoption, and both parents opposed. The law concerning adoption of abandoned children requires parental consent in the parent had made an effort to maintain contact with the children during the six-months prior to the petition being filed. However, the court can find that the consent is unreasonably withheld if the adoption is in the child's best interest.


Here, the Court found that the grandparents had provided a stable, appropriate home for the children, while neither parent had been able to do so and likely would not be able to do so in the foreseeable future. The grandparents agreed that even if his parental rights were terminated, Chaphe could maintain a relationship with the children. The circuit court concluded that the adoption was in the children's best interest.


The Court of Appeals, Judge O'Brien joined by Judges Beales and Raphael, affirm. Five of the assignments of error address factual findings of the circuit court and are dealt with under the standard of review deferring to the court as factfinder. The last assignment of error asserts that the statute permitting adoption of a child over the parent's objection violates due process because it fails to consider whether the parent, though having surrendered physical custody of the child was nonetheless sufficiently involved in the child's upbringing to negate the claim of abandonment. The Court concludes that the statutory factors, which take into consideration both the needs of the child and the actions of the parent, satisfy due process in this regard.


Lawrence McNally v. Virginia Department of Motor Vehicles (March 26, 2024) is a state employee grievance appeal. When a public employee is terminated from employment, they can pursue an administrative process to challenge the firing and eventually take their case into the circuit court. However, the administrative process is given deference with respect to factual findings and interpretation of the agency's employment rules. The circuit court is thus acting in a appellate jurisdiction. McNally challenged his dismissal after two incidents -- one job-related and one related to his having lied to a fire marshal about an incident involving a controlled burn on his own property.


There are a few additional facts including that McNally was hired by a supervisor with the DMV after the two had meet at a civic club and the two later became close friends. The supervisor thus knew more about McNally than he would about a typical employee, and this became a factor in whether the incidents were legitimate bases for the dismissal. Ultimately, the hearing officer concluded that notwithstanding (and perhaps despite) the personal relationship, McNally's termination was justified.


As mention, when the circuit court takes on a review of grievance case, it does so in an appellate capacity. To get around the deferential review standard, McNally couched his argument in the guise of a denial of due process. The circuit court, however, did not see it that way, and found the hearing officer's judgment was correct.


The Court of Appeals, Judge Raphael joined by Judges Beales and O'Brien, agree with the circuit court that McNally failed to show hearing officer violated constitutionally protected guarantees and that the substance of his alleged due process claims were challenges to factual, procedural, and policy elements of hearing officer’s decision. While this is a fairly straightforward result, it takes the Court 31 pages to work through the analysis . . . which is just further proof that I am justified in my loathing of administrative law.


We round out the cases in the post with the only published criminal appeal, Christopher Pompell v. Commonwealth of Virginia (March 26, 2024). Pompell involves the amendment of an indictment from a felony to a misdemeanor. Now normally a defendant would be thrilled to have a misdemeanor, rather than a felony. But in this case, Pompell wanted more (or rather less).


The original charge was felony breaking and entering with the intent to commit assault and battery, which the Commonwealth sought to reduce to unlawful entry. Pompell's attorney was quick to not that unlawful entry is not a lesser included offense of B&E and, as the amendment had been proffered more than a year from the offense date, was outside the statute of limitations for commencing a misdemeanor prosecution. The Commonwealth argued and the circuit court agreed that while not a lesser included offense, the amendment was proper because the amendment did not change the “nature and circumstances of the acts charged” in the original indictment. Pompell entered an Alford plea preserving his right to appeal this issue.


The Court of Appeals, Judge O'Brien joined by Judges Beales and Raphael, affrrm. Unlike the 31 page administrative law appeal released the same day, this lovely single-issue criminal appeals clocks in at just over 7 pages. In doing so, the Court clarifies that a prior case which involved the amendment of a felony to a lesser included misdemeanor offense held that the amendment would violate the misdemeanor statute of limitations if the original indictment had been brought after the one year statute of limitations. This decision, however, did not alter the law concerning amendments of indictments, which are permitted so long as the change does not alter the character to the offense such that the defendant would not have been given notice of the new charge from the prior allegations. Here, although unlawful entry is not a lesser offense of breaking and entering, it is of the same character in that it is an offense against habitation.




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