Four Opinions to Start off 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.