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

Halloween in November? Court of Appeals decides Cemetery Access Case, two other appeals

Well, it's almost the end of November, but we get a spooky little opinion from the Court of Appeals today as one of three published opinions. Let's start with Wintergreen Homestead, LLC. et al. v. Bettie W. Pennington, et al. which comes from the pen (or word processor) of Judge Fulton writing for himself, Judge Ortiz and Sr. Judge Petty. Befitting the grave subject matter, Judge Fulton's well considered prose begins with this observation: "For over two centuries, members of the Harris and Coleman families were laid to rest in what became known as the Wintergreen Family Cemetery." The Appellants are the descendants of the dearly departed, while the appellees own or previously owned two small parcels that have been sold off from the larger tract across which a "traditional path" to the cemetery runs.


The issue in the circuit court was whether Code § 57-27.1, which provides for a right of access to private cemeteries applied to the "traditional path" which was established when the land was a unitary parcel, permitted the appellants to traverse the land of the appellees to reach the cemetery, which remained on the land of the appellants. The circuit court ruled that while the path was established in accord with the statute, the statute applied only to land on which the cemetery was located, not intervening property that had been conveyed away.


Now anyone familiar with easements may be wondering two things. 1) was the cemetery not accessible by some other route creating an easement of necessity, and 2) was access to the cemetery not granted in the deeds that conveyed the two parcels. The answer to the first is that since at least 2014 the family have been accessing the cemetery by an alternate path -- which raises the question of why they waited until 2017, when this declaratory judgment action was filed to seek the right to use the former route. As to the second, the answer is that no easement was reserved in the deeds, which raises the question of whether the drafter of the deeds was asleep at the wheel, as the path was apparently well worn and visible -- open and notorious in the language of easements and adverse possession.


The first question is "who knows?" The opinion provides no clue as to why the property owners began to deny access, or why the family didn't act sooner. The second is easier to guess -- at the time the parcels were conveyed, it probably never occurred to anyone that the new owners would deny access to the cemetery. If the drafter was an attorney, he or she should probably have anticipated this and included an easement, but the failure to do so is understandable.


The Court of Appeals affirms the judgment, noting that the plan language of the statute supports the view that access is required only to reach a private cemetery on the property being used to access it, not on intervening properties. Nothing in the statute suggests that a parcel severed from whole that does include some part of the cemetery is subject to the access provisions even if they would have applied prior to the severing of the parcel. In a footnote, the Court discuss similar statutory schemes where access over adjoining parcels is specifically permitted, suggesting that Virginia simply decided to favor current landowner's rights over that of the relative of the cemetery residents.


The Court decided another civil cases, George English v. Thomas William Quinn, Judge Sr. Petty joined Judges Fulton and Ortiz. This appeal is all about the tolling provisions of the Supreme Court's emergency orders related to COVID-19 and was briefed not only by the parties but by the VTLA as amici for the appellant/plaintiff and the VADA for the appellee/defendant. The underlying case was for person injury arising from a "head-on" collision in July of 2018. English filed his suit on the last day of November 2020, more than two-years beyond the statute of limitations for personal injuries, but just over 8 months after the first emergency order was entered.


The issue before the trial court was whether the tolling provisions of that order and one that followed applied only to a limitations period that ran during the period in which the order was in force, or tolled all limitations period that were then running. In other words, was English required to file his suit in a timely fashion if no tolling order was in effect on the two-year date, or was he entitled to tack on the period during with the statute of limitation had been tolled by the Supreme Court's first two COVID orders? The circuit court ruled that because the second tolling provision had expired just prior to the two-year date, English was not entitled to the benefit of the tolling provisions of either order.


Today the Court of Appeals reverses and remands the case for further proceedings on the merits. This result seems fairly to be expect if one looked to the language of the Supreme Court's first order, which plainly extended all deadlines for 21 days. There was no distinction between deadlines that would run during that 21 day period, and deadlines that were running.


The difficulty arises from the language of the Court's second order, which stated that it applied to "any applicable statute of limitations which would otherwise run during the period this order is in effect." Now that sentence seems pretty clear to favor the position of the appellee, the VADA and the circuit court.


But, there was a third order (and then a fourth, fifth, sixth . . .) entered which "clarified that it had 'broadly stated' that 'all deadlines' were tolled and extended, the Second Order 'repeated the broad tolling of deadlines,' and the Third Order had 'incorporated by reference the prior emergency orders' and 'tolled' 'all "statutes of limitations and case related deadlines"' during the period of judicial emergency." The Court of Appeals reasons that while the language of the second order, if read in isolation, certainly did seem to limit its tolling to limitations period that ran only while it was in effect, the subsequent orders interpreted it as applying to all periods of limitation.


Now, one might wonder if the second order, issued around the time that politicians were loudly, and erroneously, proclaiming that COVID had been peaked, had been drafted with the expectation that it would not be followed by a third. Indeed, if you can recall the machinations that were whirling around Richmond at the time, it was plain that the Supreme Court, the Governor, and the General Assembly were involved in a three-way game of chicken, with each stating or at least hoping that it was one of the other's responsibility to deal with the pandemic's effect on statutory deadlines (especially with respect to evictions, but also to most other legal processes). Thus, its very likely that the use of language in the second order was deliberate and the clarification of the third order resulted for the failure of the elected branches to pick up the baton.


The last case decided today by published opinion is Todd Lynn Lewis v. Commonwealth of Virginia, written by Judge Lorish joined by Judges Huff and Raphael. Its a sufficiency case, but a very specific sort of sufficiency. There is no question that Lewis possessed methamphetamine, only whether he possessed it in a sufficient quantity to trigger a mandatory minimum sentence. The problem with the evidence presented at trial was it did not specify whether the contents of several baggies was pure meth or meth cut with some other substance. The weight was enough for the sentencing enhancement if pure, but not enough if it was cut and the state lab did not perform a purity analysis. The Court of Appeals remands for re-sentencing without the enhancement.

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