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

The Heat is On . . . an These Opinions are Hot off the Press as are some Rule Changes from the Supreme Court

The near record heat of the last week must have lit a fire under the Judges of the Court of Appeals, as we have five new published opinion today (and two from last week that will be summarized as well). But first a public service announcement.


Last week the Supreme Court Announced a slew of changes to the Rules of Court including a significant change for those of us who practice in the appellate arena as detailed in this post by the Sage of Virginia Beach.


Melissa Trent v. Onderlaw, LLC, d/b/a The Onder Law Firm is about legal malpractice, or rather whether the suit filed by Trent stated a claim for legal malpractice, as the circuit court dismissed the suit on demurrer. The underlying suit was for medical malpractice/products liability -- Trent had knee replacement surgery which went very wrong. It went worse when she hired Onder to evaluate her claim against the replacement device manufacturer.


Legal malpractice, while arising from the negligent performance of a professional duty, actually sounds in contract. To establish that the attorney had a duty of care to the client, the client must alleged that there was a client-attorney relationship which required the attorney to perform the specific duty alleged to have been done (or failed to have been done).


The contract in this case was a retainer agreement that Onder would represent Trent “in all claims for damages arising out of the use of a [DePuy] Attune knee replacement system.” DePuy was the manufacturer of the knee replacement that Trent had received, but the model she had was a "Sigma," not an "Attune." Trent subsequently had the defective device replaced by a "Genesis II" device manufactured by a different company.


Onder was supposed to evaluate Trent's claim and advise for of its status. Although she received on email advising that the firm was accepting defective knee cases for any knee implant which required a revision surgery within 6 years of the initial replacement," she had no direct contact from the firm for 11 months. When she inquired about the status of her case, she spoke with a staff member who stated the case was "in line for review." The staff member asked Trent to confirm that she had a Genesis II device and Trent replied that her first to surgeries involved a device manufactured by DePuy.


Nineteen months later, Onder advised Trent that the Genesis II "was not a covered device," and therefore the firm was "not interested in pursuing her claim." By this time, the statute of limitations had run for filing a claim on the Sigma device. Naturally, she brought a malpractice action -- and naturally, Onder responded by demurrer that the retainer applied only to claims for an Attune device, not the Genesis II device. The circuit court agreed and sustained the demurrer.


The Court of Appeals, Judge Frucci joined by Judge Friedman and Senior Judge Humphreys, reverses and remands the case for trial. The Court concluded that the limiting language of the retainer agreement was not dispositive of Onder's duty to Trent because the client-attorney relationship creates duties independent of the parties’ retainer agreement. Specifically, Onder owed Trent duties of competence and diligence -- both of which were alleged to have been breached.


First, the allegations of the complaint show that Onder knew Trent had a Genesis II device, not an Attune device -- a competent attorney would have known instantly that the limited retainer's condition precedent to accepting the case had failed upon execution. Second, it took Onder 30 months to advise Trent it was not taking her case, which was already past the statute of limitations, and in doing so based its decision on incorrect information.


The Court was careful to note that its decision was based on the standard of review of a demurrer and that nothing has actually been proved with respect to Onder's alleged malpractice. Still, if I were advising the malpractice carrier in this case, I would be seriously looking at a settlement. As for the breaches of professional responsibility, Onder is a nationwide mass tort and PI firm and the opinion does not specify whether the attorney responsible for the case was licensed in Virginia. However, attorneys who provide legal advice to clients in Virginia can be subject to discipline by the Virginia State Bar which can effect their licensing in other states.


In Luis Rivera v. Mantech International Corporation we move from legal malpractice based on the running of a statute of limitations to the dismissal of a Whistleblower Protection Act case because of the statute of limitations. The same panel that decided Trent also decided Rivera, this time with Sr. Judge Humphrey's penning the decision and Judges Friedman and Frucci joining. Rivera worked for Mantech, which provide support services to the US Embassy in Baghdad, Iraq. Rivera report the the Office of the Inspector General that Mantech had ordered him and other employees to forge official documents, resulting in an official investigation. Rivera’s co-workers later informed him that the supervisor stated that “Rivera would the first one to be let go, if it came down to laying off ManTech employees” because of the investigation.


Sure enough, Mantech let Rivera go "effective February 7, 2022." He was notified of his termination on January 14, 2022 and his security clearance was revoked that same day, meaning that he was no longer able to perform his work duties. He was, however, paid through February 7, 2022.


Rivera filed his Whistleblower complaint, which is subject to a one year statute of limitations, on February 7, 2023. Mantech filed a plea in bar of the statute of limitations, asserting that Rivera's termination was effective January 14, 2022, when his ability to perform his duties ended. The circuit court agreed and dismissed the suit.


The Court of Appeals affirms finding that for a Whistleblower action, the claim arises with the first adverse retaliatory action taken by the employer as a result of the protected action of the employee. Here, this was the notice of termination and the cancellation of Rivera's security clearance.


This may seem a harsh result -- indeed it is harsh given that Mantech was allegedly defrauding the US government. However, the Court's reasoning is based on the language of the statute which does not require that the employee be fired for undertaking a protected action. As the Court notes, the injury that triggers the claim can be "slight" even if subsequent damage is more significant. This case is clearly an object lesson in not waiting to what you presume is the "last minute" to file suit.


Two weeks ago the Court dealt with a County and Town arguing over money. This week, its a County and State Treasury. In Frederick County, Virginia v. Virginia Department of the Treasury the issue is whether the circuit court erred in dismissing a show cause against the Treasury where the County was seeking release of unclaimed property to satisfy a tax lien.


Let's pause here to talk about unclaimed property. When a fiduciary holds property for another person, the fiduciary has a duty to advise the owner of the property (usually cash or some other financial interest, but technically it could be any property) that the fiduciary has the property and would really like to give it to the owner. This requires the fiduciary to conduct a due diligence effort to find the owner and give them the property. While this might seem an easy task, in many cases it's not. A typical case is the "laughing heir," a distant relative who is owed a share of an estate because of the law of intestate succession.


The holder must maintain the property for a minimum of five years in most cases and conduct regular due diligence to locate the owner. The intensity of that effort, however, is based on the value of the property. A holder of $1,000,000 can hire a private detective (sometimes called a "skip tracer") and pay for that service out of the property. A holder of $1,000 can probably conduct an annual search on the internet to see if the person has surfaced. When the "dormancy period" has run, the fiduciary can turn the property over to the Treasury which then holds in as unclaimed property. The database of such property is searchable, so after reading this essay, head over their and see if your name is on the list -- or the name of a judgment debtor you have claim against.


Back to the case now, which turns on whether the Treasury is subject to a show cause to answer why it has not released funds held for a judgment debtor after a proper claim. The Treasury asserted that sovereign immunity barred the County from seeking a show cause to answer why it was not releasing the funds. The County argued that Code § 58.1-3952 specifically provided that it could seek to recover a tax lien from any creditor of the taxpayer including the state, its agencies and subdivisions, and this was a waiver of sovereign immunity. The circuit court disagreed and dismissed.


The Court of Appeals, once again Sr. Judge Humphreys joined by Judges Friedman and Frucci, reverse. I think it's fairly clear why, as the Court notes that a contrary result would render the statute both internally inconsistent and incapable of operation if it provided the locality with a right to seek funds held by the Commonwealth, but also permitted the Commonwealth to ignore a legitimate claim for those funds.


What I want to know is why the Treasury didn't release the funds in the first place. The opinion does not say and I cannot imagine why. Just like a fiduciary, the Treasury is more than happy to get rid of funds that it holds as unclaimed property -- and where, as here, that money is going to pay a tax lien, you would think it would be doubly glad to do so.


William L. Respess, et al. v. VMI Alumni Association is an appeal from a mandamus action. Mandamus typically applies to seeking to require a government official to undertake some action required by law. Although VMI is a state university, the Alumni Association is not. But it is a Virginia Non-Stock Corporation, and that means that a member of the association has statutory rights to obtain information from the corporation. Respess and three other members wanted to obtain the names and addresses of the other members and included in the request the member's email addresses.


We need not speculate why Respess and the others wanted this information -- the opinion says it was “to solicit alumni participation in person at the upcoming Annual Meeting of the Members." But if you want to know a little more about Respess and his relationship with his alma mater, you can read this essay he wrote for Bacon's Rebellion about fellow VMI alum former Gov. Ralph Northam.


The problem with the request was that the specific statutory right allows only for the release of mailing address of members, so the association declined to provide the email addresses. Respess, et als. sought the writ of mandamus to compel release of the email addresses. The circuit court denied the writ and the Court of Appeals, Judge Raphael joined by Judge Fulto affirm, Judge Cause dissents.


While it certainly could be argued that email addresses are today more vital to shareholder communications than mailing addresses, that's not an issue for the courts to decide. It's a legislative prerogative to change the law -- and a 2019 amendment to the Stock Corporation Act specifically permitted the exclusion of email addresses as a privacy concern, but not adopted a subsequent recommendation to require disclosure. The majority sees this as relevant in that it does not see why a stock corporation can withhold email addresses while a nonstock corporation could not. The majority does point out that the members might have a right to inspect the records under some other theory and could obtain the email addresses that way, but their petition was limited to asserting the specific statutory right.


Judge Causey dissents. She would hold that the term "addresses" in the statute should be read expansively to include email addresses. She sees the distinction between the stock and nonstock acts to be significant in precisely the opposite way from the majority. Expect a petition for rehearing en banc and/or a petition for review to the Supreme Court in this appeal.


Layla H. by her friend Maria Hussainzadah, et al. v. Commonwealth of Virginia is an unusual case as it can be characterized as a claim to make politicians "please think of the children."




Hussainzadah brought this suit on behalf of her daughter and 12 other "Youth Plaintiff" to challenge polices of the Commonwealth related to the extraction and use of fossil fuels for energy production and the consequent impact on the environment. Hussainzadah had the backing of numerous amici: Virginia Clinicians for Climate Action, Law Professors Erwin Chemerinsky, Noah Sachs, James May, Erin Daly, Mary Christina Wood, Michael Blumm, John Dernbach, et als. and Delegate Sam Rasoul.


You can probably guess that the Commonwealth sought dismissal for lack of standing and on the grounds of sovereign immunity. You can probably guess that the circuit court agreed. And you can probably guess that the Court of Appeals, Judge Beales joined by Judge Callins and Senior Judge Clements, affirmed. You would guess right on all three counts except as to sovereign immunity.


What? How can the state be subject to suit on what the Court finds is clearly a policy issue. Well, it turns out that when pleaded as a a violation of Article I, § 11 of the Virginia Constitution, recent precedent establishes that such claims are not barred by sovereign immunity. These decision were released after the case was dismissed, so the circuit court can be excused for not anticipating the rulings in Vlaming v. West Point Sch. Bd., 302 Va. 504 (2023) and Ibanez v. Albemarle County School Board, 80 Va. App. 169 (2024). However, standing is still required, and that requires a particularized harm.


You can probably guess that a petition for review to the Supreme Court will follow, and I think that is a fair assumption.


Zachary Grady, etc. v. Joan L. Blackwell, etc. is a holdover from last week, and involves a duel between the fiancé and mother of a decedent as to which should be administrator of an estate of a young woman tragically killed in an accident. This case follow a decision of the Western District of Virginia finding that Grady lacked standing to bring a wrongful death claim on behalf of the estate. Blackwell's action in federal court remains pending, and Grady sought to oust her as administrator and assume the role.


Grady based his challenge to Blackwell's status on the ground that she had renounced her claim to administer the estate in Pennsylvania and Virginia should give "full faith and credit" to that action with respect to Blackwell's qualification as administrator in Virginia. The circuit court found that renunciation was not a decision of a sister state subject to full faith and credit.


The Court of Appeals, Judge Raphael joined by Judges Fulton and Causey, finds that the circuit court's decision can be upheld on narrower grounds because Grady's challenge to Blackwell's qualification was untimely under Code § 64.2-445. The Court thus avoids the constitutional issue. One hopes that these parties will be able to put aside their differences and seek compensation for the benefit of the decedent's two children -- Grady's children and Blackwell's grandchildren.







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