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

Slow Times at the Court of Appeals?

Well, perhaps not as slow as at the Supreme Court of Virginia -- check out the latest comments on the low volume on the Ninth Street Side of the Courts' Building in Richmond from Steve Emmert's Virginia Appellate News and Analysis -- but the last three weeks have garnered just two published opinion from the 8th Street Side. Granted, there were quite a few more unpublished opinions, so perhaps we should not be too much concerned that the appellate robes are not getting enough work.

Before getting to the opinions, a quick note that Williams v. Commonwealth has been granted a rehearing en banc. This eventuality was foreseen in the summary of the case found here. A quick reminder that when an en banc rehearing is granted, the panel opinion is withdrawn -- that means you cannot cite to that opinion as precedent unless and until the full Court has its say. In some instances, though rare, the Court will adopt the view of the original opinion without comment, and then it can be cited. But if the Court issues its own opinion, even if it is in agreement with the panel decision, you must cite to the en banc.

Sarah K. Lehman, et al. v. WFV Holding, LLC, et al. is about a partition suit. Now, if you are not familiar with partition suits, these are actions to divide real property between the owners thereof. While it is theoretically possible for the Court to do this by subdividing the land and giving the parties separate ownership of the divided parcels, this is pretty rare. Why? Well, simply put, if the land could be divided into parcels acceptable to the parties, they probably would have done that on their own, because partition suits are expensive and filing deeds of subdivision are not.

More typically the Court will order the property to be sold by a commissioner. This requires quite a bit of rigamarole involving appraisals, hiring a Realtor, showing the property, etc. If no buyer can be found, the property may ultimately be sold through a "cry sale" on the Courthouse steps -- usually the least lucrative way to sell property. Then the Court has to award fees to the commissioner, the realtor, and often to the attorneys -- because if not all the owners are on board with selling the property (again, why go to court if everyone is in agreement) some may not bother to hire attorneys and its no fair for the folks who do to burden the of the legal fees while the other get a free ride.

Partitions frequently involve land that is passing upon the death of one of the owners (or of the owner who leaves the property to multiple parties), especially when the land passes without a will. That is what happened in Lehmann. The decedent, Helen Lehmann, passed away in 2012 and her brother Arthur filed an affidavit declaring that he was her sole heir. He took title to her real property in Amelia County and sold it to WFV Holdings. The only problem was that Arthur was not Helen's only heir. Rut Ro Raggy!

Eventually -- in 2020 -- the heirs and WFV, after presumably trying to resolve the issue amicably (one would hope, anyway) started filing competing partition suits. Sarah Lehmann had at some point qualified as administrator of Helen's estate, and that is how she ends up on the left side of the case today. Among the demands of the heirs was for rents and profits from WFV's ownership of the property. WFV filed successive amended complaints, but never included a request for reimbursement of any costs, including attorney fees, related to the properties.

These properties were quite valuable, eventually fetching north of $6 million. When it cam time to divvy up the proceeds, WFV suddenly remembered that it had quite a few expenses "including boundary surveys, appraisals, property taxes, property security, liability insurance, fees for an heir-locator service, and overhead time and costs an employee of WFV incurred in connection with the properties." Naturally, it wanted its former co-tenants to share in these costs. The co-tenants asserted that WFV could not receive reimbursement because it had not asked for it in its complaint.

The circuit court appears to have found otherwise. I say "appears" because it certainly awarded a big chunk of change to WFV, but in doing so it "found that [the heirs] had “concede[d] that they should contribute to [some] those costs." I suppose that one can concede to pay something while also denying that the other party is entitled to ask for it, but as the court went on to award costs that plainly had not been conceded, this seems beside the point.

The Court of Appeals, Sr. Judge Clements joined by Judges Beales and Callins, reverse the judgment. First, they agree with the heirs that WFV did not ask for reimbursement, so it can't get it. But what about their concession as to some of the costs? The Court notes that this "concession" was not a concession at all -- rather, it was an alternative argument in which the heirs has clearly stated that if the circuit court were to agree with WFV that it was not required to ask for reimbursement then only some of the expenses WFV alleged were reimbursable. In other words, the heirs' counsel recognized that the judge might not agree with his first argument and so went ahead and plead in the alternative that WFV was overreaching in its claim for expenses. Pleading in the alternative is perfectly proper and usually efficient -- though in this case it seems to have caused the trial court to make a pretty obvious error.

We're not quite done with this case however. The opinion does not reveal whether appellate counsel for WFV were also trial counsel and, thus, responsible for the failure to ask for expense reimbursement despite getting three shots at it in their complaint, amended complaint and 2nd amended complaint, but regardless of whether they were, the final footnote of the opinion suggests that WFV needs to find new counsel when next it needs legal assistance.

The footnote tells us that "WFV asserts that it 'has assigned cross-error to the circuit court’s failure to allow'" WFV to amend its complaint a 3rd time (rather late in the proceedings) to add the claim for damages. Now, I think its a fair bet that while leave to amend is to be liberally granted, the circuit court's refusal to allow this would be upheld as it is an abuse of discretion standard. However, we will never know, because WFV did not, in fact, have a properly laid out cross-error argument in its brief as required by Rule 5A:21(e). The Court is not precise as to exactly how deficient the brief was, but it must have been pretty sever as the Court quoted the Rule's admonition that the argument must be “stated in one place and not scattered through the brief.” As Velma might say, "Jenkies!"

H.C. v. Potomac Hospital Corporation of Prince William, etc. is a tort case which raised the question of when a medical professional is acting outside the scope of his employment and, thus, his employer is not vicariously liable for his tortious actions. H.C. was a patient at a medical facility operated by Potomac and Frederick Yeboah was employed their as a nurse. Yeboah had previously worked at a different hospital where he was disciplined and fired following allegations of sexual harassment. H.C. alleged that Yeboah sexually assaulted her in the hospital.

Whether Potomac knew of Yeboah's prior history is uncleare, but H.C. did not allege negligent hiring, supervision or retention, only that the hospital was vicariously liable under respondeat superior. This means that for the hospital to be liable, H.C. had to prove the Yeboah was acting with the scope of his employment when the assault occurred. At trial, the circuit court struck H.C.'s case as to the hospital. H.C. received a $500,000 verdict against Yeboah.

There is a rebuttable presumption that an employee who is going about the employer's business is within the scope of the employment. This means, in effect, that the employer must prove that an employee "on the clock" was not acting within the scope of the employment when the tort, whether intentional or negligent, occurred.

To avoid the obvious discomfort of discussing whether a sexual assault would ever fall within the scope of any employment, let's instead take a more common example -- an employee who drive a vehicle for his employer. It should be obvious that if the employee drive the vehicle in a negligent manner while doing his job the employer will be vicariously liable for the injuries caused by that negligence.

But suppose that while on the job, the employee decides to take a detour and stop by his girlfriend's house and while on the way there has an accident. Would this be sufficient to take him outside the scope of the employment? Well, the smart money says "maybe" because it might depend on whether the employer allowed these diversions or at least knew that they were commonplace. This makes it a jury question.

But suppose instead of going to visit the girlfriend, he sees her on the sidewalk as he is driving his route and she is in the company of an old flame. Driven mad by jealousy, he deliberately steers the vehicle off the road, striking them (or perhaps an innocent bystander). Would this be outside the scope of his employment? The answer is much closer the a "yes" here.

But when a court is asked to strike the evidence and take the issue away from the jury, it can't just be close to a "yes," it has to be an absolute certainty that no jury would find otherwise. In other words, the court must find that as a matter of law, no reasonable juror could hold the employer responsible for the act of the employee.

When the tort is the result of negligence, it's much harder for the employer to rebut the presumption. When the tort is intentional, its still not always easy -- for example, a store clerk might intentionally hit an annoying customer and that would likely be viewed as within the scope of the employment. But sexual assault is quite another matter. Nonetheless, the Supreme Court of Virginia has acknowledged that if the assault occurs while the employee is performing a work-related function -- for example, while “undressing” or “bathing” a resident of a nursing home, it could still fall within the scope of the employment because the assault was simultaneous with the performance of a job duty.

The Court of Appeals, Chief Judge Decker, joined by Judges O'Brien and AtLee, find that in this case the evidence showed that Yeboah was not performing a job related duty when he assaulted H.C. This is a difficult call to make and, I suspect the Court struggled with its decision. Ultimately, however, the Court concluded that there was simply no evidence that Yeboah was, even in some tiny degree, acting as a nurse when he assaulted H.C.

There were three amici briefs filed, two in support of H.C. and one in support of the hospital. With that much interest in the case, I suspect that a petition for review by the Supreme Court will be filed.

Speaking of petitions for review, Orndorff v. Commonwealth, which was affirmed by an equally divided court after the 2-1 panel decision was granted an en banc review has been appealed to the Supreme Court. I believe the Justices must take up this case, and will do so.

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