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

Four published opinions from the Court of Appeals, but first a word a about an unpublished one

The Court of Appeals issued just four published opinion over the last three weeks -- as many as were released on April 2 of this year. During that same period, the Court released 47 unpublished opinions. Taken this admittedly unscientific sample, that means the Court is published only about 8% of its opinion. Your Humble Correspondent has been remiss in collecting data on the Court's opinions, and promises to do better in the future. However, this particular statistic has a personal meaning for YHC, because one of those unpublished opinions happened to be a case in which he represented the appellant and received a positive result.

The case involved a claim that a personal injury suit had been settled because the plaintiff had entered into a settlement with a secondary insurer that had tendered policy limits. As proof of the settlement, the defendant offered a document which an "illegible document." This is the document:

I think you will agree that "illegible" is a charitable description. In fairness to the defendant, a very close examination of the physical document showed gray-ish streaks that were once text. In an effort to prove the content of the document, the defendant sought to introduce a document that was "in the same format" as the illegible document. The plaintiff objected that this was improper parol evidence. The circuit court admitted the document and used it to interpret the terms of the "settlement." In doing so, the court found that despite repeated statements made to by the plaintiff's attorney that there was no intent to release the defendant and that plaintiff would not agree to the settlement if it did so, the plaintiff either agreed to the settlement or his attorney had the apparent authority to do so.

On appeal, the principal argument was that the circuit court erred in permitting parol evidence to prove the content of a document that was illegible. It is perhaps important to note that while the document was obviously a copy (indeed, it was likely a copy of a fax that had been copied and then faxed or scanned and emailed as it went from carrier to plaintiff's attorney, to the plaintiff, back to the attorney, back to the carrier, and eventually to the defendant's counsel), for the purposes of this case it was an "original" document. The objection was not that the copy was not the best evidence, but rather that its content was not provable by parol evidence. Thus, while the case might be analogized to a "lost document" case, the exhibit had not been offered to prove the content of the original but as the actual release of the claim. Whether an illegible document can be proved by parol evidence was an issue of first impression in Virginia.

The Court of Appeals, Judge O'Brien joined by Judges Fulton and Callins, held that like a lost document case, proof of an illegible writing was subject to a higher standard, with that standard being based on the value of the writing to be proved. The Court concluded that despite being an issue of first impression, the case did not warrant announcing a new standard because it found that the evidence failed to establish that the appellee (the movant for dismissal on a plea in bar) had met its burden of proof by even a preponderance, so while a future case might requiring finding that the appellee had a higher burden, it was not necessary to determine what that standard would be, thus the opinion was not worthy of publication.

On April 9, the Court of Appeals released its opinion in Doris Williams v. Carl Boggess, Esquire In this Capacity as Agent for Margarett Ward. Whenever an attorney is a party to a lawsuit, especially and appeal, members of the bar take note because these cases are often instructive on issues that can arise in the practice of law (and, hopefully how to avoid them). The attorney in this case was names as agent in a durable power of attorney for Ward. Williams, Ward's niece, filed a suit alleging that the attorney had mismanaged Ward's estate and sought an accounting. The attorney opposed the accounting on the ground that Williams lacked standing and that Ward was a very private person who did not wish others to know about her dealings.

Now I will interject here that although he practices in relatively close proximity to the Virginia Appellate Lawyer's secret lair in Roanoke, I do not know the attorney in question personally. But I do know that he is a prominent figure in his community, having served as Bedford County attorney and the County Administrator for 16 years prior to his retirement in 2018. He continues to serve the community as attorney for the Board of Zoning Appeals and serves on the board of Directors of the Lynchburg Community Foundation among other civic activities. He is an attorney in good standing with the state bar and has no disciplinary record. None of these facts, of course, excludes the possibility that he might have mismanaged Ward's estate, but when such an accusation is made, the character of the attorney against whom it is made is a factor to consider before jumping to any conclusions.

The circuit court denied Williams' petition as insufficient to state a cause for granting a petition for an accounting but allowing her to amend. While the amended petition was pending, Ward died. The opinion does not state whether Williams was a legatee, intestate heir or otherwise had some role in her Aunt's estate, whereas the attorney had qualified as administrator of the estate.

The circuit court ultimately concluded that Williams had standing to seek the accounting, but ruled that her basis for doing so amounted to a "fishing expedition" as there were not allegations beyond mere assertions of mismanagement to give rise to a need for an accounting.

On Appeal, the Court of Appeals, Judge Lorish joined by Judges Friedman and Chaney, affirm. The decision to grant or deny a request for an accounting from an agent-in-fact is committed to the sound discretion of the trial court and the Court finds no abuse of that discretion.

There are two aspects of this appeal that give me pause. First, is the assumption that Williams had standing merely because of a blood relationship. I do not question that Williams was a dutiful niece, through the opinion gives no information about the nature of her relationship with Ward, but I question whether in every case a cross-lineal relationship without more would be sufficient to provide standing to seek an accounting.

Second, it is troubling in a generic sense, rather than specifically in this case, that as the Court noted, an administrator of an estate who was also the agent-in-fact of the decedent in life, is the only party with standing to demand an accounting on behalf of the estate. Certainly, this is not an unexpected situation, but it does create the specter of a conflict of interest. A check of the VCCI database revealed that (at least as of yet) Williams has not filed an action to remove the attorney as administrator of the estate.

Cenk Sidar v. Jane Doe, the only published opinion released on April 9, is of particular interest to appellate procedure geeks such as YHC as it involves the little used Rule 1:1A, which permits an appellee to seek attorney fees and costs if the “final appellate judgment [is] favorable to [the] appellee" provided that the "prevailing appellee . . . has recovered attorney fees, costs or both in the circuit court pursuant to a contract, statute or other applicable law." This is an exception to the American Rule that the parties are responsible for their costs on appeal as well as in the trial court, and therefore is strictly construed. The request for fees must be filed within 30 days of the appellate judgment.

The original suit was filed by Doe alleging "several egregious torts" by Sidar. In the coruse of those proceedings, Sidar sought a dismissal for lack of personal jurisdiction, which the trial court found to be lacking any "legitimate basis in either fact or law." The court imposed a significant sanction under Code § 8.01-271.1 which it characterized as an award of attorney's fees. Doe then nonsuited the case.

Sidar appealed the sanction award to the Supreme Court (the case pre-dates the shift in appellate jurisdiction for civil cases), which refused the petition. When Doe tried to file her request for attorney's fees under Rule 1:1A shortly before the 30 days for doing so would run, the clerk of the trial court refused it, asserting that because the clerk had not received the order refusing the appeal from the Supreme Court, the petition was not proper. Doe subsequently filed the request after the order was received by the clerk of the trial court, which was well outside to the 30 days. Over Sidar's objection that the request was not timely, the court awarded additional fees to Doe.

The Court of Appeals, senior Judge Haley joined by Chief Judge Decker and Judge AtLee, reverse and dismiss. This case involves the distinction between a case decided on appeal by order and one decided by an opinion. In the latter case, the court's opinion is not actually the judgment of the court, which comes later in the form of a "mandate," an order enforcing the opinion. Here, because the petition was refused by an order, there was no need for a mandate.

When a case is complete in the Supreme Court or the Court of Appeals, the record is not immediately returned because there remains the possibility of a petition for rehearing or further appeal. This does not mean that the judgment of the Court is not final. Here the order disposed of the appeal and, thus, left nothing for the Court to do, making it a final order. The returning of the record was merely an administrative function of the Clerk of the Supreme Court.

The Court recognizes that the real problem here was the clerk's refusal to accept the request for fees. The clerk, or almost certainly a deputy clerk, who did that was clearly in the wrong. The job of the clerk is to accept filings, not to determine their validity or ripeness. Doe's attorney should have insisted that the clerk accept the filing, however, as it was the attorney's duty to preserve his client's right to the potential award of attorney's fees.

This is a harsh result, and I would expect Doe to seek review by the Supreme Court.

J&R Enterprises, et al. v. Ware Creek Real Estate Corp., et al. is one of two opinions released on April 23, 2024. It's also the shortest opinion of the ones discussed in this post and starts with a very exact statement of law, "An adverse witness’s testimony may not bind a calling party if it is inherently incredible." Like Sidar, the procedural history of this case involves a prior suit that was appealed to the Supreme Court back in the days when that court was the proper place to file a civil appeal. That underlying suit involved an award of contract damages which the Supreme Court reversed and, because the contact had a fee shifting clause, the case was remanded for a determination of attorney's fees.

The circuit court awarded fees against the plaintiffs, which were corporate entities with insufficient assets to pay the award. The defendants then filed the present action in an effort to pierce the corporate veils and recover the award from the principal of the corporations. The defendants, who were now the plaintiffs in the present action, called principal as their only witness and the court permitted them treat him as adverse.

The issue was whether the principal had used corporate assets for personal expenses. The plaintiffs had credit card statements for cards issued to the corporations which showed purchases that most people would consider personal expenditure -- restaurants, medical procedures, jewelry, taxes on personal and real property of the principal, etc. In his testimony, however, the principal "struggled to recall most details about the purchases, though he often maintained that they were indeed legitimate business expenses. He insisted that—although WCRE and WCBC had not earned profits since 2017 and 2018 respectively, had no other employees, nor performed work for any customers at the time—any and all expenses were business related and not personal."

The circuit court found this testimony hard to swallow, calling it inherently incredible. Nonetheless, the court found that the plaintiffs were bound by the testimony and the documentary evidence was not sufficient to rebut the claim that the expenses were not personal.

The Court of Appeals, Judge Ortiz joined by Chief Judge Decker and Judge Fulton. reverses and remands the case for a reexamination of the evidence. The Court holds that while a party who calls an adverse witness is bound by that witness' testimony, a court cannot rely on inherently incredible testimony to reach its judgment in favor of that evidence. However, because the court also should not reject testimony "globally," the court on remand will need to specify what elements of the testimony are incredible and, assuming any testimony remains to be considered, determine whether there is sufficient ground to find that the corporate veil can be pierced.

One notable point of this opinion is that when testimony is rejected as incredible, it cannot be used discredit other evidence. In effect, the rule is that such testimony is struck from the record as if it had never been received by the court. The court must base its judgment on whatever remains. This being the case, it is by no means certain that on remand the trial court will determine that the plaintiffs have met their burden, as the court already found that the documentary evidence was not sufficient.

The other case decided April 23, 2024 is Arturo Barnes v. Commonwealth of Virginia, a criminal case that involves the unusual circumstance of a jury returning verdicts that seem at odds with the evidence in that they acquitted Barnes of two serious felonies by convicted him of four lesser crimes based on the same evidence. If you familiar with the assertion on inconsistent jury verdicts being grounds for reversal, you know that the usual response from the appellate court is, "we don't piece the veil of the jury room to determine how the jury reached its verdict."

The fact is that a jury can nullify in a case where there are multiple charges arising from the same conduct. It can do so for many reasons including wanting to show mercy to the defendant, seeking a compromise to get a unanimous verdict, or, yes, sheer incompetence of not understanding the judge's instructions as to the elements of the offense or the burden of proof.

Before reaching the merits of the case, the Court of Appeals, Judge Callins joined by Judges Athey and Causey, must first explain why Barnes' first assignment of error is barred. Barnes assigned error to the "jury" reaching inconsistent verdicts. Jury's do not issue the orders in the trial courts, that's the judge's job. Thus, on appeal, where the assignment of error must be directed to an action of the court -- in this case the court's confirming of the jury's verdict -- an assignment of error alleging that the jury erred is not cognizable.

If this seems picayune, consider whether the Court would be able to consider an assignment of error in a direct appeal that alleged error by a bailiff for failing to provide copies of the jury instructions to the jury or answering a jury inquiry rather than bringing it to the judge. If the discovered during the deliberations, the defendant would need to ask the court to rule on whether this was grounds for a mistrial, rather than waiting until the appeal.

In any case, Barnes did assign error to the trial court's failure to set aside the verdict, so the merits can be reached. And then the Court naturally said that inconsistency in jury verdicts is not grounds for reversal.

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