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

I've been busy, and so has the Court of Appeals -- the Supreme Court not so much

I am more than a week behind in posting my summary and analysis of recent Court of Appeals' decisions, but with good reason. I have been occupied with the Fall Seminar of the Virginia Mountain/Valley Lawyers' Alliance and it's Annual Meeting in Winchester which concluded on Saturday, then I was in Richmond to argue before the Court of Appeals. Today, the Supreme Court of Virginia did release a single opinion, admirably summarize by the Sage of Virginia Beach, but not from the case that has been languishing on the docket, Vlaming v. West Point School Board, et al., now almost 11 months post-argument, or even the last remaining case from the June docket, Ken McKeithen, Successor Trustee etc. v. City of Richmond. Instead, the Justices whipsawed an opinion argued just 4 weeks ago. Having granted four more appeals from the August writ panel, there are now 16 cases in some stage of being prepared for oral argument before the full court. The October writ panel has just 36 petitions to be heard.

Ernest L. Parrish v. Quinton B. Callahan, et al., the lone published opinion from last week, is about rescission of a foreclosue sale. The opinion of the Court of Appeals, Judge Lorish joined by Chief Judge Decker and Judge O'Brien, is 15 pages long, but it can be summarized with this sentence from the opening paragraph: "We affirm the circuit court’s decision to sustain the demurrer because the statute Parrish relies on expressly precludes the type of relief he seeks (voiding the sale)."

Parrish had argued that he did not receive the notice that Code § 55.1-321 requires for a residential homeowner, or in the alternative, that the lack of adequate notice (30 days pre-sale instead of 60 days) was grounds for equitable rescission. He filed suit against the substitute trustees who conducted the foreclosure and they demurred. The circuit court sustained the demurrer and off went Mr. Parrish to the Court of Appeals.

The issue of lack of notice was really part and parcel with the adequate notice (the Court says he "repackages" the first argument as the second -- a nice turn of phrase). Parrish in fact received at least two notices, its just that both were sent less than 60 days before the proposed sale date.

The problem is not with whether the notice was in violation of the statute or otherwise inadequate, but the nature of the relief Parrish wanted -- the have the sale voided and the property returned to him. This, of course, would work a significant hardship on the purchaser, and for that very reason the General Assembly does not permit rescission as a remedy.

Commissioners of Accounts are appointed by the circuit courts to provide “general supervision of all fiduciaries admitted to qualify in the court or before the clerk of the circuit court and shall make all ex parte settlements of the fiduciaries’ accounts.” Virginia Code § 64.2-1200. You don't often see them as parties in civil cases, but this week the Court of Appeals issued a published opinion challenge a commissioner's report. In Kishna Shirese Minor, et al. v. Anne M. Heishman Commissioner of Accounts, the fiduciary was required to forfeit her bond of over a half million dollars after the Commissioner found irregularities in the administration of an estate of an incapacitated adult, Minor's grandfather.

The commissioner, responding to complaints of relatives, conducted an investigation and determined that Minor had misappropriated assets of the estate and could not adequately account for the remaining assets. The commissioner determined that the estate had been prejudiced to the tune of $574,462.27, approximately half its assets. The circuit court adopted the commissioner's findings and required Minor (or, more precisely, the bonding company) to pay up.

The Court of Appeals affirms this judgment addressing Minor's 10 (!) assignments of error in a 30 page opinion authored by Judge Fulton joined by Judges Humphreys and Malveaux. The most interesting argument in the appeal is that the commissioner could not be objective because she was acting as both an adversary and an investigator. While it may often seem to a fiduciary as if the commissioner is "the opposing team," in truth commissioners are more akin to referees, neutral arbiters of the duties of the fiduciary. So, naturally, when the commissioner throws a flag on the play, the fiduciary may find themselves arguing with the "ref," but that does not make the commissioner the opponent any more than objecting to the ruling of a court makes the court the opposition. And, just like arguing with the ref, arguing with the commissioner rarely gets you anywhere.

Jamal Kelvin Bailey v. Commonwealth of Virginia and Hugh Cameron Green v. Commonwealth of Virginia (a third appeal arising from the same incident was not designated for publication) involve the appeals from convictions for three counts of first-degree murder, three counts of abduction with the intent to extort money, three counts of child abuse or neglect, three counts of child endangerment or cruelty, one count of robbery, one count of conspiracy to commit robbery, and one count of conspiracy to commit abduction with the intent to extort money. What may not be immediately apparent in the recitation of this litany of very serious crimes is that the underlying scenario is a drug deal. The plan was for a group of men to travel from Philadelphia to Fredericksburg to rob Michael Coleman of "cash and coke." The ringleader of this conspiracy was Coleman's uncle -- nice family.

Thing did not go as planned, and at the end of the botched "drug deal" Coleman, his girlfriend and her 14 year-old son were dead and two children under the age of two were left in the home unattended amidst the carnage. Police were able to identify the perpetrators after one of their number was arrested on unrelated charges and confessed to being involved in the crimes.

Apart from challenging the sufficiency of the evidence, Bailey's appeal has just one issue of note. After his conviction, Bailey and Green sought to have the circuit court direct his attorney to release "restricted dissemination discovery materials" to him. Now why would Bailey and Green want access to these materials after his conviction? Perhaps the best answer to that question is to not that the co-defendant who "turned states'" expressed concern for the safety of his family from the depredations of Baily, Green and their associates.

The argument that the court should have permitted counsel to turn over the restricted material was based in an interesting interpretation of counsel's duty under VRPC to give a client the client's file on demand. The file, after all, belongs to the client and materials reviewed by the attorney in discovery are typically part of that file. The Court of Appeals, Judge Beales joined by Judge Causey and Sr. Judge Haley, neatly addresses this argument by noting that where a court properly orders an attorney to do some act that might otherwise be viewed as a violation of the attorney's duty to the client, the attorney is required to follow the court's order and is, therefore, by definition, not violating the Rules of Professional Conduct.

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