One Appellant Loses by Winning and Another Wins, but Likely Will Have to Defend that Win in Richmond

We have two published opinions from the Court of Appeals today. One has the curious result of the appellant winning the battle but losing the war -- the circuit court gets reversed on its ruling that it lacked jurisdiction to hear the case, but on remand is instructed to enter a judgment on the merits against the appellant. In the second case, we have a partial dissent that is sure to result in a rehearing en banc petition and/or a petition the the Supreme Court -- either way the parties are likely headed to Richmond for Round II.

Susan Marie Focke, f/k/a Susan Marie Spearman v. Commonwealth of Virginia despite its style is not a criminal appeal. Rather it is an appeal from the dismissal of a petition by a non-resident for the restoration of her right to possess a firearm after having been convicted of a felony under Code § 18.2-308.2(C). The circuit court dismissed the appeal for lack of subject matter jurisdiction because she was an out-of-state resident and in Commonwealth v. Leone, 286 Va. 147 (2013), the Supreme Court ruled that the gun rights restoration act did not apply to out-of-state residents. However, Leone was legislatively overruled in 2015 – which apparently passed the notice of the Commonwealth and the circuit court.

So Focke gets a remand and hearing on the merits of her petition, right? Well, half-right. The case will be remanded, but not for a hearing, but only to set aside the dismissal of the petition for lack of subject matter jurisdiction and instead enter an order denying the petition on the merits because on its face the petition does not entitled Focke to the relief she sought.

How can the Court of Appeals, Judge Raphael joined by Judges Humphreys and AtLee, be so certain that Focke cannot prevail on the merits? Because Focke was not convicted of a felony in a Virginia state court. Her conviction was rendered by the United States District Court for the Eastern District of Virginia. You see, the 2015 amendment that allowed non-Virginia residents to apply for restoration of their gun rights requires them to file that application in the circuit court in which they were “last convicted of a felony.”

What Folkes wants is the right to possess a gun in her home state of North Carolina, which will grant her that right if she gets her right restored “pursuant to the law of the jurisdiction where the conviction occurred,” which she reads to mean “Virginia,” not the “Eastern District of Virginia” The Court of Appeals expressed no opinion on whether this is a correct interpretation of North Carolina law, but did note that an unpublished decision of the North Carolina Court of Appeals opined that “North Carolina state law regarding restoration of an individual’s firearm rights is inapplicable to a felon convicted in federal court.” However, even assuming that North Carolina would recognize a federal restoration of gun rights, the current federal law permitting a restoration of gun rights is moribund because, as the opinion points out, Congress has never provided the funding necessary to support the process.

Telegraph Square II, A Condominium Unit Owners v. 7205 Telegraph Square, LLC is interesting for a number of reasons, including the presence of an amicus brief from the Washington Metropolitan Chapter of the Community Associations Institute, which is the largest chapter of the CAI. The CAI is in turn the largest international trade and lobbying organization for “planned communities,” which is another way of saying they represent HOAs, COAs, and other such “private governments” for subdivisions, condo developments, etc. To some, these organizations are views as beneficial groups that protect property values and by others as tin-pot busybodies who interfere in the enjoyment of private property, or worse, who use the power of the association to their own benefit. These differing views result in litigation, like the one that gives us today’s 34 page opinion from Judge Chaney joined by Judge Athey, with a brief partial dissent from Judge Ortiz.

This case is about parking spaces, which in Fairfax County, where Telegraph Square II is located, are always at a premium. 7205 Telegraph Square, LLC owns the three commercial condominiums that are collectively Phase IV of Telegraph Square II, which is governed by the eponymous Condominium Unit Owners’ Association that also controls the common elements of the development.

The opinion does not go into the whys and wherefores of the Roman numerals, but a little browsing on the internet determined that first there was Telegraph Square I, LLC, which built the Shops at Telegraph Village, a strip mall along Telegraph Road in the Ft. Belvoir area of Fairfax County south of Alexandria. Then Telegraph Square II, LLC, came along and developed the Telegraph Square II business park with a condominium style of ownership in five phases in the area behind the shops and further along Telegraph Road. Despite the name, there is no “square” in Telegraph Square. As the photos below show it’s more of a road connecting a number of parking lots, and 4025 is at the very back of the development with little parking access.

The site plan for Telegraph Square II required there to be at least 108 reserved parking spaces, which were assigned as follows: 40 for phase I (recall that this in not the parking for the Shops at Telegraph Square but the row of parking on the unnamed road/driveway leading to 7205 Telegraph Square in the photo immediately above), 18 for phases II and III, 30 for phase IV (which was not then owned by 7205 Telegraph Square), and 20 for phase V. In 1997, however, the board of directors for Telegraph Square II decided to reassign the parking spaces based on the square footage of the units, resulting in 35 spaces being assigned to phase IV, some of which were within the area designated as phase V. The spaces were reallocated in 2015, this time requiring the units to use only the spaces that fell within the phase of the development to which they belonged. However, Telegraph Square II continued to assess all unit owners for the maintenance of the entire common area.

7205 Telegraph Square, which had acquired the three phase IV units some time between 1997 and 2015, saw its available parking go from 35 to 12, including 2 handicapped spaces. 7205 Telegraph Square was then leasing two of its units and the lease required it to assure the tenant at least 20 parking spaces. That lease was to run until 2019, but the loss of the parking spaces caused 7205 Telegraph Square and the tenant to enter into a substitute lease in 2017, despite being aware that it could no longer provide the 20 spaces, which attempted to mitigate the loss of the parking spaces by providing more “interior space for parking” (apparently inside the third unit).

I think you can see where this is going. 7205 Telegraph Square’s tenant was still not happy and eventually had to be let out of the lease because of the inability to provide the required parking spaces. What’s more, the limited parking reduced the marketability of the units which could neither be. let or sold despite a good faith effort by 7205 Telegraph Square.

7205 Telegraph Square sued Telegraph Square II and got a nice juicy judgment -- $481,434,84 for breach of contract, most of which was from the lost rental income, $324,977.60 in attorney’s fees, and a few other goodies including cancellation of over assessments and a declaratory judgment requiring Telegraph Square II to return to the 1997 allocation of parking.

Telegraph Square II appealed and assigned five errors to the circuit court’s judgment. Four of those five assignments of error, dealing with issues like whether Telegraph Square II’s monkeying with the parking allocation violated local zoning and whether the evidence of lost income was speculative, find no purchase with the panel, but Judge Ortiz dissents with respect to whether the change in the parking regime proximately caused the termination of the lease and subsequent loss of rental income. Judge Ortiz contended that when 7205 Telegraph Square renewed the lease in 2017, it was already aware that it could not provide the required 20 spaces, so the subsequent cancellation of the lease was not, in his view, directly caused by the 2015 reallocation of parking. The majority responds in a footnote the evidence showed that the lease was set to run through 2019 and that 7205 Telegraph Square’s efforts to mitigate the harm in 2017 was not an intervening cause.

While I find myself in sympathy with 7205 Telegraph Square, I can see Judge Ortiz’s point. Mainly, I am wondering why 7205 Telegraph Square didn’t immediately sue Telegraph Square II? The 2015 “reallocation” of parking spaces was nothing short of a bald-faced land grab by the board, which had just two members who, we can assume, benefited from the 2015 reassignment of spaces to Phase I. The opinion recounts that 7205 Telegraph Square sent multiple letters of complaint to the association but did not initiate legal action until long after the lease was cancelled. I find this troubling enough to foresee a petition for rehearing en banc and/or an appeal to the Supreme Court, especially with the CAI backing Telegraph Square II.