My Arm Hurts from Self-Congratulatory Back-Patting – Rehearing en banc Granted & 3 Appeals Published

As predicted in this space a bare three weeks ago, the Court of Appeals has granted a rehearing en banc in Taylor Amil Wallace v. Commonwealth of Virginia. Honestly, I am not worthy of any self-congratulation for this one. A novel issue with a 2-1 decision overturning (in part) a criminal conviction is virtually assured an en banc grant – so I didn’t exactly need to be Nostradamus to spot Wallace as a likely candidate.

Accordingly, I will go ahead and say that the first of today’s published opinion from the Court of Appeals, which is also a 2-1, is probably not likely to get an en banc review because this time the majority upheld the conviction of William Ezell Taylor. Taylor purposefully engaged Kimani Donovan in an altercation in the food court of a shopping mall. The fight was broken up, but Taylor retrieved a firearm from his nearby backpack, returned to the mall and, presumably without any real effort, found himself again engaged in a confrontation with Donovan, who ended up dead from two gunshot wounds; Donovan’s sister was also wounded during this incident.

The jury rejected Donovan’s claim to self-defense and convicted him of “many different charges” arising from the incident including malicious shooting within an occupied building in violation of Code § 18.2-279. While Donovan raises nine – yep, you read that right, nine – assignments of error, it is the triple conviction for malicious shooting that caught the Court’s attention and leads to this opinion being published.

The reason is that apparently no one has ever before raised the issue of whether “shooting” (or more specifically, “discharging”) a firearm under this statute means doing so as one incident regardless of how often one does so, or whether each instance of a projectile leaving the muzzle of the weapon is a separate offense. While this is the novel issue of the appeal, it is not the basis for the partial dissent, as one might have thought – this is another reason why it’s unlikely to get a rehearing grant.

Let’s start with the novel issue on which Judge Chaney, the dissenter, finds no objection to the result reached by Judge Lorish, who is joined by Judge Athey in the majority opinion. The three agree that the statute must be read to be “bullet specific,” meaning each instance of pulling the trigger is a “discharge” of the weapon, even if in rapid succession. I have no problem with this, provided we are not speaking of an automatic weapon. I am not going to weed into the discussion of where one draws the lines between double-action, single-action, semi-automatic, and full-automatic are drawn, but I will say that I think “trigger pull specific,” rather than “bullet specific,” would have been a more apt turn of phrase.

The other issues that are “unanimous” in the majority are: 1) two of the shooting charges are not subsumed in the more serious homicide charge; Taylor’s argument on this point was already rejected in a 2003 case; 2) sufficiency of the evidence as to each conviction; and, 3) the imposition of the maximum for his homicide conviction.

The issue of contention for Judge Chaney is the circuit court’s rejection of Taylor’s proffered self-defense instruction, and giving the Commonwealth’s, which paralleled the model jury instruction on “self-defense with fault.” Taylor maintained that the model instruction somehow tacitly shifts the burden of proof, and that the court should have given his proffered instruction which simply required the jury to find that his claim of self-defense created reasonable doubt as to his guilt. The Commonwealth responds that the court separately instructed the jury on reasonable doubt, this cured any possible harm from the self-defense instruction “tacitly” shifting the burden of proof.

The majority finds that the instructions given (along with the instruction on the presumption of innocence) were a proper statement of the law. Judge Chaney disagrees, in part because she was of opinion that the Commonwealth improperly commented on the model jury instruction in such a way as to emphasize Taylor’s objection to its wording. The majority says, “so what? Taylor didn’t object to the closing argument,” which, to be fair, is a basis for not considering whether the argument was improper – but Judge Chaney does not see it as a basis for not considering the impact of the argument on the jury based on the instruction.

Keefe Butler v. Martha Ann Thomas Stegmaier, et al., is a will contest. Butler alleged that Stegmaier, the executor, had used undue influence to procure the decedent’s execution of the will and also have breached her fiduciary duties as executor. Butler and his sister were the step-grandchildren of the decedent; Stegmaier was the decedent’s neighbor and friend who cared for him after his wife, Butler’s grandmother, died.

Shortly after the grandmother’s death, the decedent made a will that left a chase bequest to each of the grandchildren and made them the residuary heirs of his estate. Four years later, he made a new will, reducing the cash bequest and making Stegmaier the residuary beneficiary. Several months after this, a third will, the one ultimately submitted to probate, was executed which reduced Butler’s (but not his sister’s) cash bequest.

At trial, Stegmaier presented expert testimony from a trust and estates attorney without objection. After the witness was excused and the defense had rested, Butler moved to strike the expert’s testimony. Now you are probably thinking that the circuit court looked at Butler’s attorney with a mild look of disdain and said, “too late, counsel.” That is certainly what I would have thought – in fact, did think as I was reading the opinion. So, imagine my surprise to read that the court granted the objection. I am imagining your surprise now. Well, double surprise! The circuit court rethought the matter and the following day said, “Do-Over!” and ruled that the objection was untimely.

If the Court of Appeals, Judge Athey this time writing for both Judges Lorish and Chaney, were to reverse on that issue it would be a triple surprise, but Butler gets no joy there. Likewise, his objection a being questioned about certain “live-in girlfriends” which the circuit court allowed find no sympathy from the Court. You see, there was evidence that step-grandpa was unhappy with Butler’s bon vivant lifestyle and that this was justification for the further reduction of his cash bequest in the final will, so the live of question, if prurient, was relevant. There were a few more issues, none of which gave Butler any better result that the first two. Worse for him, there was a no contest clause in the will, so now he gets nothing.

Edward Brian Evans v. Truist Bank, f/k/a Branching Banking & Trust Company, as the name implies, predates the merger of SunTrust and BB&T as Truist (a name which when I first heard it implied that my banker could not spell either “trust” or “truest,” but for some reason I still bank with them – so let that serve as a disclaimer about the very tangential bias I may have – though which way I will not divulge). Evans took out a big loan from BB&T (well, big by my standards, not Bill Gates’), which he obtained by “materially false statements concerning the condition of his finances.” This was back in 2011, and the bank did not suspect anything untoward until 2013 when Evans stopped making payments and, as it turned out, didn’t have the assets he claimed to have (or apparently much of the cash he borrowed). Shortly after the bank called in the note, Evans filed for bankruptcy.

Alas for Evans, the Bankruptcy Court takes a dim view of them that wants to bankrupt a debt they got by fibbing. The petition was denied, and Evans remained on the hook for the debt. This was in 2015.

Why the bank waited until 2019 to pursue Evans for the debt is hard to say. Perhaps they knew Evans was a bloodless turnip and not worth pursuing, or assumed there were a lot of secured creditors ahead of them. However, we can speculate what changed in 2019 – the aforesaid merger was in the works and a judgment looks better on the books that a defaulted note. Sure enough, BB&T got a confessed judgment against Evans.

Pausing here, we note a curious aspect of this case which is that BB&T got the confessed judgment in Fairfax County, but then nonsuited it and refiled in Wythe County. This is a no-no. You cannot nonsuit a confessed judgment in one jurisdiction and refile it in another; that’s just one of the arcane rules pertaining to the arcane practice of confessed judgments. Code § 8.01-380(A). Alas, Evans didn’t catch this, so the issue is waived.

What Evans did try to argue is that the action was too late. He reasoned that the statute of limitations was five years on a contract, had started running in 2013 when he defaulted, and, while tolled during the bankruptcy proceedings, the statute resumed on the dismissal of that case and ran out just before the confessed judgment was filed. The bank argued, and the circuit court agreed, that the promissory note, while a contract, was also a negotiable instrument, and under the UCC has a six-year statute of limitations. Code § 8.3A-118.

Evans’ next gambit was a bit more nuanced. “But wait,” he said, “I just remembered that I lied like a sleeping dog when I applied for the loan! I was in breach in 2011, so the statute started running then! Checkmate BB&T . . . err . . . Truist!” “Not so fast,” says BB&T . . .err . . . Truist, “You may well have been in breach then, but we were not required to sue you then. We shouldn’t be punished for our forbearance (not to mention we didn’t know you were in breach).”

The circuit court agreed with the bank and today, so does the Court of Appeals. Judge Athey, with Judges Lorish and Callins, recognize that the material misstatements of fact were indeed a violation of the contract, but merely violating a contract is not a breach. The breach actually occurs when the other party suffers some damage or injury. Now in this case, the bank was, for over two years, getting regular payments on the note. It only suffered an injury when Evans stopped paying and then failed to honor the demand for accelerated payment. In essence there were three violations by Evans, the misrepresentation, the default, and the failure to honor the acceleration clause. The first would have been grounds for calling the note, but was not an injurious breach by itself, so the statute of limitation did not begin in 2011.