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

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.

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