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

Mixed Bag from the Court of Appeals

Three new opinions were published by the Court of Appeals of Virginia this week, and its a mixed bag with one criminal appeal, one Commonwealth's appeal in a Torts Claims Act case and one plain old civil case.

Richard Alan Swezey v. Commonwealth of Virginia is about a topic that comes up frequently in criminal cases -- whether an abduction charges was supported by independent evidence of the victim being detained beyond what was necessary to accomplish other criminal acts. Swezey was convicted of statutory burglary, abduction, using a firearm in the commission of a felony, assault, and two counts of brandishing a firearm. He maintained that the victim, his estranged wife, was never detained beyond what was necessary to accomplish the assault and brandishing.

The facts reveal a situation that could have gone horrible wrong. Swezey had entered his wife's townhome (it is not clear whether this was the former marital home) while she was away. It seems undeniable that his plan was to murder her. Fortunately, the wife was not alone when she returned home, having been accompanied by a colleague who was interested in buying some furniture for the wife.

Swezey, realizing that there would be a witness to the murder, made multiple attempts to convince the colleague to leave, but she refused. Eventually he held his wife at gunpoint while threatening to kill her and, presumably the colleague, because he wasn't "going down for" the murder(s).

The colleague called 911. Swezey compelled his wife to tell the operator that she did not need help. Fortunately, the operator was savvy enough to realize that this was a coerced statement -- and in any case proper protocol requires that police be dispatched where there is an indication of potential harm. Police arrived and detained Swezey without further incident.

Swezey argued at trial that his assault and brandishing offenses were essentially ongoing throughout the encounter and, thus, the abduction was incidental to these offenses. The circuit court disagreed and the Court of Appeals, Judge Raphael, joined by Judges Fulton and Friedman agree. The opinion has a comprehensive discussion of the law, but it comes down to this -- it takes only the slightest amount of force beyond what is necessary to accomplish a felony that has a component of detaining the victim to support a charge of adduction. Here, the evidence clearly showed that Swezey took steps to assure that his wife would not be free to leave that were not necessary for the assault and brandishing.

Commonwealth of Virginia v. Hannah Fatima Muwahhid is an interlocutory appeal from a denial of a plea in bar of sovereign immunity from an action filed under the Virginia Tort Claims Act. Muwahhid was visiting her husband, a prisoner at Sussex II State Prison. After Muwahhid was suspected of attempting to bring contraband into the prison, she was first denied contact visitation and then banned from all visitation. This prohibited her from participating in certain religious practices with her husband.

On multiple times, Muwahhid was subjected to extensive searches -- including strip searches and searches of her vehicle, which maintain were not voluntary. Although a K-9 sniffer supposedly alerted on her, no contraband was ever found. During some the searches, Muwahhid was not afford privacy, with the search being conducted so that male officers could observe.

Muwahhid filed a claim against the Commonwealth alleging various violations of her civil liberties. It is not disputed that Muwahhid followed the procedures required of the Virginia Tort Claims Act. Nonetheless, the Commonwealth responded that it was immune from suit because, according to the Commonwealth, since a prison is a government facility, it is absolutely immune from tort actions for the conduct of its employees because there is no equivalent private cause of action that might be brought against a private person, which is a requirement of the VTCA. In doing so, it relied upon a circuit court opinion which held that the Virginia State Police was immune from a negligent entrustment action because there was no private equivalent cause of action for determining who could be entrusted with a police cruiser.

Let me pause her to say that I was astounded to learn that the case relied on by the Commonwealth, Shenk v. Spangler, 46 Va. Cir. 277 (1998), was not appealed. Actually, I guess I am relieved to know that it was not, because had been appealed and the appeal refused, that would have been truly astounding. Let me just register my personal opinion that Shenk would have been reversed.

Back to the case. The circuit court issued an opinion letter explaining that the Commonwealth's theory was so much mishagosh, given that it would effectively gut the VTCA. The Court of Appeals, Judge Huff joined by Judges Humphreys and Callins, agree and remand the case for a trial. This opinion needs to be bookmarked future use in VTCA cases.

Finally, we have CSE, Inc. v. Kibby Welding, LLC and Tabitha Kibby, involves a contract claim to enforce a personal guarantee. Tabatha Kibby was the 22-year-old daughter of the owner of Kibby Welding and signed a contract with CSE, Inc. as agent for her father's company. The contact had a personal guaranty clause binding the individual who signed the agreement to indemnify CES for any loss. When CSE sought to enforce the guarantee, the circuit court found consideration was lacking as to Tabitha, reasoning that because the creditor did not know the guarantor’s identity or check her creditworthiness, it did not rely on the guaranty when extending credit to the company, and enter judgment for Kibby.

The Court of Appeals, Judge Raphael joined by Judges Fulton and Freeman, reverse this decision and remand a determination of damages. The Court acknowledges that "it may seem harsh to hold Tabitha personally liable for the debts of her father’s company. She was only 22 years old when she signed the guaranty, had not graduated from college, and was unsophisticated in commercial matters," but the evidence showed that she held herself out as an agent of the company and CSE was entitled to presume that she had the authority to sign the contract. It was not required to investigate Tabitha's personal creditworthiness before assuming that she understood the consequences of signing a contract with a personal guarantee.

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