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

Judicial Arithmetic: Three Published Case From the Court of Appeals Result in Six Opinions

Your humble correspondent regrets the delay in posting summaries of the three published decisions from the Court of Appeals from Tuesday, but an intense travel and work schedule interfered with his leisure activities. When he finally got around to reading the opinions, he was surprised to see a dissent in one case, which is somewhat unusual, and a plurality opinion with a concurrence and a dissent in another – which is very unusual.


Let’s start with the unanimous opinion.


Michael A. Dobson v. Commonwealth of Virginia is an appeal from a conviction for first-degree murder and the nearly inevitable associated firearm charge – but that conviction was 25 years ago (I’ll save you doing the math and tell you that was 1998 -- which is itself a little startling to those of us who remember it like it was, well, not quite yesterday but certainly not 25 years ago). So how did it take 25 years for the appeal to be heard? No, it’s not a case of a the file having slipped between two filing cabinets. Rather, this is an appeal following a rather creative pro se motion by Mr. Dobson filed in May 2021 asserting that the circuit court could set aside or modify his sentence pursuant to Code § 19.2-295.1 as amended effective July 1, 2021. Dobson also maintained that he filed a separate motion for a sentence reduction under Code § 19.2-303.01, and while that motion does not appear in the record, the Court of Appeals graciously deigns to consider the arguments made in the trial court under his first motion to encompass this second claim – the Court is rarely (strike that) never this generous with appellants’ attorneys who fail to provide a complete record.


The circuit court agreed with the Commonwealth that Dobson’s motions were roughly 25 years less 21 days too late. That is, the court agreed that it lost jurisdiction over the case under Rule 1:1 21 days after the sentencing order was entered. Dobson took this all in good grace, first advising the court that he wished to seek reconsideration and also amend to a “Fishback claim.” However, before the court could act upon these requests, Dobson filed his notice of appeal.



Now, for those of you who are wondering just want the heck is going on here, let me explain that Dobson is quite obviously a “jailhouse lawyer.” While that term is sometimes used to describe a self-educated prisoner who becomes sufficiently skilled at drafting legal motions and arguments that he actually gets his conviction overturned or helps other prisoners to have their cases reviewed, for the most part jailhouse lawyers simply have too much time on their hands and access to a lot of bad information that gets passed around the exercise yard. As evidence that Dobson is still pursuing his legal education, even after his appeal was filed, he continued to draft motions to be heard in the circuit court and even filed a motion requesting the Court of Appeals to order that he receive mental health care. The Court noted that it lacked the authority to do the latter and the circuit court did not have jurisdiction to entertain the motions being filed therein while the appeal was pending. I believe the Wayons Brothers facetious portrayal of two such jailhouse lawyers is not too far from the mark in some instances.



Construing Dobson’s three handwritten pages which he designated as his assignments of error, the Court “discern[s] . . . his two most significant claims: (1) he is entitled to resentencing under the 2020 amendment to Code § 19.2-295.1 on the theory that, under Fishback v. Commonwealth, 260 Va. 104 (2000), the jury should have been instructed at his trial in 1998 that Virginia had abolished parole; and (2) his sentence should be reduced, as provided in Code § 19.2-303.01, because he assisted the Commonwealth with a criminal investigation.


The Court of Appeals, Judge Raphael joined by Judges Chaney and Callins, agrees that the claim under Code § 19.2-295.1 is barred by Rule 1:1. With respect to the Code § 19.2-303.01, the Court notes that this statute actually does provide for the circuit court to have jurisdiction to modify a criminal sentence beyond the 21st day following entry of the sentencing order. However, that limited extension of the court’s jurisdiction is limited in felony cases where the defendant is transferred to the custody of the Department of Corrections to “[1] before the person is transferred to the Department, or [2] within 60 days of such transfer,” the second provision having been added in 2021. So Dobson’s Code § 19.2-303.01 was only slightly less untimely that his Code § 19.2-295.1. The Court notes, however, that even it had been timely, the statute allows the circuit court to exercise this extended jurisdiction only on the motion of the Commonwealth, not the defendant.


Given that the Court is wont to publish many opinions that have some potential merit, one wonders why Mr. Dobson was rewarded with immortality in the annals of the Va.App. reporter. I can only hazard a guess that Dobson’s arguments are the flavor of the month on the jailhouse lawyer grapevine and the Court wanted to “nip it” as Barney would say.


Karey Burkholder and Douglas Thompson, Jr. v. Palisades Park Owners Association, Inc. is all about assessments, or rather a specific use of the assessments made by Palisades Park, a community in Arlington County, against residential lots. Burkholder and Thompson are the owners of one of those lots. The assessment in question is a fee charged every own to cover the cost of the association for, get this, “inspecting each property owner’s lot to ensure that it complies with Palisades’ rules.”


Let us pause here to discuss the issue of HOA and similar associations and their regular appearance in legal proceedings. Over the course of my less than distinguished legal career I have encounter owners’ associations in both my professional and private lives. In the latter, I served for a few years as an officer on a board of directors of a neighborhood which, alas, had less than amicable relations with the neighboring association which was the dominant estate on an access road which ran through my neighborhood. In the former, I would estimate that at least once a year if not more frequently, I was required to deal with some manner of litigation involving owners against associations, associations against associations, and associations against governments. From these experiences I can say without fear of contradiction that . . . ahem . . . the tin-pot dictators of third-world countries as depicted on the silver screen have nothing on the typical HOA board president.


Of course, I am exaggerating. The vast majority of HOA board members (or their equivalent in condo associations, etc.) are hardworking, dedicated people who simply want to keep their neighborhoods looking nice, protect property values, and promote some good social will. HOAs that have these kinds of directors don’t often wind up in court, unless . . .


The “unless” is that there are many, I dare say most, HOAs residents who just don’t cotton to following the rules and paying assessments just because they own a home in a neighborhood that has declarations that require them to follow the rules and pay assessments.


So, which do we have here? The oppressive board or the recalcitrant homeowners? Well, I am going to go with the former just based on the fact that the aforementioned assessment at issue was justified so because “the inspections are needed to ensure that the members’ properties comply with Palisades’ declaration, articles of incorporation, bylaws, and architectural review board guidelines.” In other words, the association needed them money to hire a profession neighborhood inspector . . . yep, it’s an actual industry apparently. The association went so far as to obtain a legal opinion stating that it could use the assessment for this purpose.


Burkholder/Thomas disagreed, contending that the assessment provided for in the neighborhood declarations did not include using the finds of the association to higher enforcement personnel. They filed a declaratory judgment action seeking to enjoin the use of assessments to higher compliance cops. The circuit court found that the use was appropriate, striking the plaintiff’s evidence and awarding over $67,000 in attorney’s fees to the association.


On appeal, a divided panel of the Court of Appeals, reverses the judgment and remands for a determination of the fees to be awarded the homeowners. Judge Raphael, joined by Judge Chaney, holds that “Code § 55.1-1805 restricts the imposition of assessments to pay for services unrelated to the common area unless authorized by the Act or expressly allowed by the association’s declaration.” In doing so, they reject the association’s construction of the statute that would make it apply only to assessments targeted at a specific owner rather than an assessment on the ”community as a whole.”


The issue turns on whether the use of a singular noun in the statute – “an assessment . . . against a lot or a lot owner – means the assessment must apply to just one. The majority notes that there is a specific statute, Code § 1-227, which provides that “[a] word used in the singular includes the plural and a word used in the plural includes the singular” in statutes.

Noting that the statute specifically calls out inspection fees as an item that must be expressly provided for in a declaration to be lawful, and Palisades Park has no such declaration, the majority concludes that the use of assessment funds for inspections is not authorized.

Now, as has become typical in appellate decisions of late, the majority cannot resist “answering” the dissent before the dissent has even spoken. But I believe that the dissent – Judge Athey – deserves to be heard first. His contention is that the majority is construing the statute too narrowly by requiring that any specific use of a general assessment must be explicitly set forth in the declarations. Judge Athey is satisfied that Palisades Park’s declarations are sufficiently express to give the association the power to spend the general assessment for the “implementation, administration, and enforcement” of the declarations which, in his views includes hiring enforcement cops.


Now comes the twist ending . . . despite my disdain for the whole concept of hiring professional lot inspectors to make sure everyone’s petunias are color coordinated, I actually find much of what Judge Athey says to be reasonable. If associations can only spend funds on those items expressly set out in their declarations, I can foresee an unending series of lawsuits by homeowners who will object, for example, that “maintain the shared roads” does not include mowing the verges and shoulders or snow removal. The courts really don’t need the extra caseload.


Let me add one final comment. The award of $67,000+ in attorney’s fees to the association was, in my view, grossly excessive. The opinion made clear that this was not a complicated case and that the facts were not in dispute. Assuming that a rehearing en banc or writ from the Supreme Court is not forthcoming and the case goes back for an award of fees to the homeowners, I would hope that they seek a more reasonable amount.


Aundrey Hubbard v. Scott H. Jenkins; In his official capacity as Sheriff of Culpeper County, VA finds Judge Athey still contending with Judges Raphael and Chaney, except in this case Judge Athey rights the lead opinion. Wait, “lead opinion”? Not the “majority”? That’s right, we have three written opinions in this appeal. Judge Raphael concurs in the result reached by Judge Athey, but right separately to explain why he disagrees with the dissent, authored by Judge Chaney.


Since the issue is whether the circuit court erred in granting the Sherriff’s demurrer to an action against the Sheriff for damages caused by another inmate who assaulted Hubbard in the regional jail, where Culpepper County houses prisoners under a contract with the jail, and the subsequent inadequate medical treatment he received, we don’t get a lot of facts, because the allegations of the complaint must be taken as true but, as the majority points out, these allegations are sort of beside the point.


The issues are whether Hubbard was an intended third-party beneficiary under the Sheriff’s contract with the jail and, if so, whether a release given to the jail, which settled a federal suit filed by Hubbard for $340,000, was also a release of the Sheriff. These are legal questions, so while Hubbard is entitled to a favorable view of the allegations of his complaint, he gets no benefit of the doubt on his legal theories as to liability and lack of release of the Sheriff.

Judge Athey finds that the nature of the contract between the Sheriff and the jail “only incidentally” required Hubbard to receive medical treatment while housed there. The provision of treatment was not the object of the contract, so Hubbard could not be an intended third party beneficiary of the agreement. The opinion is just over 6 pages and Judge Raphael’s concurrence adds just over 6 more.


Judge Chaney adds 29 pages to explain why Hubbard is a third party beneficiary to the contract and the release was limited to the jail and its employees (an issue which neither the lead nor concurring opinion had to reach). Judge Chaney’s analysis is thorough, but her criticism of the lead and concurring opinion can be summed up in this one statement from the first page of her opinion: “The majority grounds its conclusion that Hubbard is not an intended third-party beneficiary of the Contract on the absence of an explicit ‘purpose recital’” that the Sheriff was responsible for providing medical care to those inmates of his that were housed in the regional jail. (Emphasis added.) If the emphasized word seems familiar, it’s because that was the very word that Judge Athey took issue with in his dissent to the majority opinion summarized just before this one – you know, the one authored by Judge Raphael and join by Judge Chaney.


Now, I will be the first to say that the subject matter of these two opinion is distinctly different, so it is entirely possible that the construction of a statute interpreting HOA declarations and the application of the common law doctrine of third-party beneficiaries for interpreting a contract could have different results with respect to what is “explicitly” required to be said in a declaration or a contract. Nonetheless, there does seem to be a bit of a conflict between Judge Athey’s and Judge Chaney’s views in the two case, with Judge Raphael trying to stay in an even keel.

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