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

It's been a long time gone

Your humble correspondent was gratified to have more than one person comment about the dearth of posts in this space over the last seven weeks. In truth, I have more than once intended to get back into the swing of my weekly summarizing and occasional bloviating, but life kept getting in the way. Accordingly, I resolved to begin dealing with the backlog but addressing at least one opinion a day, but even at that rate it shall be April before I am caught up -- and while I have the best intention of doing more, we all are familiar with the infernal paving material that good intentions often become.


Fredericksburg Ambulatory Surgery Center, LLC v. C. Rosser Massey, III, M.D. (January 30, 2024), as you might guess from the title, is a dispute between a medical practice and a former participant therein. The issue is fairly straightforward -- Massey was withdrawing from the practice and sought redemption of his shares. The parties disputed the proper valuation of the shares, and the circuit court entertained a motion for partial summary judgment filed by Massey to adopt his valuation. The shareholder agreement required appraisal of the "whole company" while Massey maintained that the appraisal supported by the practice valued only his shares. He preferred an earlier draft appraisal that valued the practice as a whole, while the practice disputed that the "draft" constituted an appraisal. The court took no evidence other than to review the documents, then ruled that the terms of the agreement were unambiguous and the earlier draft was the only valuation that met those terms.


The Court of Appeals, Judge O'Brien joined by Judges Fulton and Callins, reverse in a short opinion the logic of which is inescapable. Summary judgment is only available where there are no material issues of fact in dispute. Unlike certain pre-trial proceedings where the court takes evidence and decides the issue on its merits, summary judgment can only be granted where the court need not make a judgment of credibility as to the facts. Here, the circuit mistook the issue as being whether the documents, which speak for themselves, were unambiguous. While it is true that no one disputed that the agreement, the appraisal and the draft appraisal were what they purported to be, the medical practice disputed whether the appraisal of shares was not also an "appraisal of the business" and also whether the "draft" was an appraisal at all. Even if the court might have been able to resolve these issues by examining the documents, summary judgment was the appropriate vehicle for doing so. The case is remanded for further proceedings.


Tina C. Rodrigue, M.D., et al. v. Loretta Butts-Franklin (January 30, 2024) again is the sort of title that suggests the nature of the case -- medical malpractice. The underlying issue, however, is one that is common to many cases -- whether the jury should be instructed on a duty to mitigate damages. Typically, there is no duty to mitigate damages proactively. In other words, the injured party is not required to seek out ways of mitigation that are not readily available to her. Although the Court, Judge Raphael joined by Chief Judge Decker and Judge Beales, affirms upon finding that the defendant failed to offer evidence of when and how the patient had an opportunity to mitigate damages and failed to do so and, thus, there was not the "more than a scintilla" of evidence to support the instruction, the opinion is more interesting for its discussion of the difference between the affirmative defense of contributory negligence and the assertion of failure to mitigate.


This discussion is interesting because it notes that the principal legal distinction is that contributory negligence must precede of be concurrent with the injury, while mitigation can occur only after there is an injury. Even more interesting is the observation that while both contrib and FtM are both referred to as "affirmative defenses," only the former must be pleaded in the answer. I would argue that because FtM can be raised within the case without have been raised in the answer, it really shouldn't be called an affirmative defense. Rather, I think it is merely a quantum that is to be considered in the assessment of damages. After all, at least under Virginia's system of fault, contributory negligence is an absolute bar to recovered, where as failure to mitigate merely bars recover to the extent that damages could have been avoid through reasonable efforts.


John B. Russell, Jr. v. Commonwealth of Virginia (January 30, 2024) is a pro se appeal. Mr. Russell was appealing his conviction by nolo contendere plea to a charge of practicing law without a license for which he received a 6 month sentence and $2,500. The conviction happened on September 24, 2021. Russell was represented by counsel, but filed his own motion to vacate the conviction and withdraw his plea sometime between September 24 and October 1. On October 1 the circuit court entered an order suspending the execution of the sentence to December 17, 2021, noting also that Russell's counsel had withdrawn from the case.


On December 17, 2021, the court entered an order continuing Russell's motion. A hearing was finally held on March 31, 2022, and on April 18, 2022 the court entered an order denying the motion and ordering Russell to report to jail on April 15. Russell then moved the court to reconsider its denial of his "stay of execution," and after a bit more wrangling the case was finalized and Russell appealed.


Those of you who know that italics should be used sparingly and only to denote words of great import has probably already cottoned onto how Judge Callins, joined by Judges O. Brien and Fulton, resolved this case in under 6 pages. The October 1, 2021 order suspending the execution of the sentence imposed by the September 24, 2021 conviction order. It did not suspend the conviction order. Because no order had been entered modifying, vacating or suspending the conviction itself, the circuit court lost jurisdiction to consider any substantive issue related to the case 21 days after the entry of the order.


Before you get on you high horse and start saying "form over substance!", let me remind you that trial courts speak only through their orders, and suspending a sentence is something quite separate and apart from suspending the order that imposed that sentence. Indeed, by statute a court has authority to suspend the execution of a sentence well after the 21 day period of Rule 1:1 -- that statute in fact requires the court to do so. Its Code § 19.2-319, which provides that once a court is advised that the defendant has "an intention to apply for a writ of error, the circuit court shall postpone the execution of such sentence for such time as it may deem proper." Since appeal notices do not have to be filed for up to 30 days, there will obviously by a 9-day period where the court lacks jurisdiction to suspend the conviction order but must suspend the execution of the sentence. There are other cases where the court can suspend execution as part of its duty to superintend its order.


So perhaps the wording of the order was a scrivener's error and the judge meant to suspend the conviction, rather than the sentence. Russell certainly didn't help that argument when he later referred to the relief he was seeking as a "stay of execution." In any case, the order says what is says, and the Court of Appeals correctly determined that jurisdiction was lacking both as to the entry of the order and the power of the appellate court to review its entry.


David W. Fauber v. Town of Cape Charles, et al. (January 30, 2024) reminds that the adage "all politics is local" is certainly true in Virginia -- and more specifically in this case, the Eastern Shore. Cape Charles is a town of just over 1000 with a town council of 6 and a separately elected mayor. Cape Charles uses a town manger form of government, but its charter provides that when that office is vacant, the powers of the manager devolve onto the mayor. During one such interregnum, the mayor fired the town's director of public works and utilities, Fauber. Fauber sued the town and mayor proposing the novel theory that the charter's provisions giving the mayor the power of the town manager violated Article VII, § 6 of the Virginia Constitution which prohibits an elected officer of a governing local body to hold any office filed by the government body. The circuit court granted summary judgment, finding that it was undisputed that the mayor had not been made the town manager, but was only exercising the authority of that office which was the governing body's power to delegate.


Given the Court's decision in Fredericksburg Ambulatory, supra, you may be surprised to learn that the Court in this case, Judge Raphael joined by Chief Judge Decker and Judge Huff, have no issue with this case being proper for summary judgment. After all, you might argue, wasn't Fauber disputing the "fact" that the mayor was action Town Manager? Well, yes, but actually no.



Two of Fauber's four assignments of error argued that there were material issues of fact in dispute, but the Court found that these issues were not ones of fact, but of law. First, whether the mayor was serving as town manager or merely exercising the authority that would normally be delegated to that office as was very clearly stated in the town charter, which is approved by the General Assembly, and as such is presumed to be constitutional. Moreover, while the mayor lacked the power to eliminate the public works office (which was done by the town council later), there was no dispute that one of the powers of the town manager was the hiring and firing of town employees.


I must say that I was honestly surprised to learn that Cape Charles has the resources to employ of town manager and a director of public works (as well as a police chief) and enough other employees that it has a human resources manager. Roanoke County, which as a population almost 100 times that of Cape Charles has a board of supervisors of just 5, and while it has many municipal employees, it has a tax base to support them. I wonder even more about Clinchport, with a population of just 64, the smallest chartered town in the Old Dominion.



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