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

Three En Banc Decisions Before Christmas

The Court of Appeals released five published decisions today, but only two are from "new" cases. The other three are rehearings en banc, so if you are a regular reader of this space, you will likely recall the details.


Telegraph Square II, A Condominium Unit Owners v. 7205 Telegraph Square, LLC was first decided by a panel of the Court in late April of this year. When I summarized the opinion, I said that I found some aspects of the case "troubling enough to foresee a petition for rehearing en banc and/or an appeal to the Supreme Court," and as there was dissent from the original panel case, the disappointed appellant sought the former route and was granted a review by the en banc Court.


As was explained in the original summary, which you may want to read if you don't recall the case and have an interest in "corporate condos" or similar multi-ownership properties, this case is about parking spaces and how they were assgined to the various phases of the develoment of an industrial business park. The reason I am not recounting the decision by the en banc court is becuase we don't know what it was, or rather we know only that "[i]n accordance with the unpublished order of this Court entered on December 19, 2023, the stay of this Court’s April 25, 2023 mandate is lifted and the judgment of the trial court remains affirmed." This statement appears in a published order, which is necessary because the original opinion was published, so now the published record shows that the case has been affirmed, and also starts the clock running on a petition for appeal to the Supreme Court.


Why was the order affirming the case unpublished? Good question. I could speculate that perhaps there was some procedural sanfu that kept the full Court from reaching the merits, or possibly that the Court could not reach a majority decision and did not want to publish a palimpsest of pluarality opinions. I will attempt to obtain a copy of the unpublished order to resolve the mystery and will update this post if and when I have the answer.


We get an acutal opinion in Arun Rashid Turay v. Commonwealth of Virginia. I cannot refer you to a prior post becuase Turay was originally unpublished. A panel had initially affirmed Turay's convictions based on an Alford plea that was entered to challenge the constitutionality of a Terry stop of Turay and another man in aneighborhood where a home invaision robbery had occurred. We don't have that opinion, because it was withdrawn and a panel rehearing was granted. The revised opinion reversed the convictions, with Judge Chaney, joined by Judge Callins, in the majority and Senior Judge Petty dissenting. Today's en banc decision affirms the judgment and is by Judge Lorish, who is joined by Chief Judge Decker and Judges Humphreys, Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Raphael and White. Judges Chaney and Callins write separate dissents.


The facts are straight forward. Occupants of the home reported that three men had entered the home and stolen some property was allegedly taken -- though the specific property mentioned, a gun, was actually recovered from the home having been moved to another room by a resident "while waiting for officers to arrive. A "be on the lookout" was issued for "three black males, dressed in black." An officer observed Turay and the other man, only one of whom was wearing black (the opinions do not say which), about "six to ten" blocks from the home that was robbed. The two mean were detained "about one and half to two minutes" before additional law enforcement personnel arrived "with additional information learned from watching home security footage," which allowed them to identify the men as perpetrators of the crime.


The issue is, as in anyTerry stop case, whether the first officer had reasonable articulable suspicison sufficient to warrant the temporary detention. But before we get to that topic, can we pause for a moment to consider the unusual circumstances of the "gun that wasn't stolen"? This is purely speculation on my part -- but I like to think it is informed speculations -- that a home that is the object of a three man invaison robbery where there is security camera footage of sufficient quality to identify the suspects and a gun is secreted prior to the expected arrival of the po-po is not the residence of Ozzie and Harriett Nelson (for you kids under the age of, well, me, "Ozzie and Harriett" was a sitcom during the "Golden Age of Television"). However, regardless of what may or may not have been going on in that residence, the occupants were entitled to the protection of the law and law enforcement.


The majority, stating that they are "[a]pplying binding precedent here [and] mak[ing] no new law," finds that the description of the suspects and the proximinity in time and place was sufficient to give the officer a reasonable basis for the temporary stop. I agree that the majority is applying no new law, especially as it does so by deferring to the factual findings of the trial court.


But it is those findings with which Judges Chaney and Callins take issue. In Judge Chaney's view, the evidence, even viewed in the light favorable to to Commonwealth, was not correctly interpreted by the circuit court. She goes further, however, in stating that even if the evidence was as the court found, the majority "grants police license to seize a Black man at gunpoint for merely walking late at night within the wide general area of a recent crime and “matching” the race and gender of the suspects." Judge Callins writes separately and with less strident language, but agrees that a stop based primarily on the circumstance of the two men being of the same race as the suspects in the BOLO and one of them being dressed "in black" was insufficient to support even an invetigatory stop.


There is no question that Turay and the other man were "detained" as the officer confronted them with his service weapon drawn. This show of force clearly acted as a restriction of their liberty. My concern with the facts, similar to Judge Callins, is whether the temporal and physical proximity to the crime was sufficiently close to add weight to the officer's suspicions. While I am not unsympathetic to the views expressed by the dissents, I do not believe that there views will find much sympathy with the Justices of either the Supreme Court of Virginia or the US Supreme Court should Turay choose to pursue his appeal further.


The last of the three en banc decisions is Michael Brown v. Timothy L. Kirkpatrick. When I summarized that case last July, I was even more emphatic that the case was headed for an en banc review. That was hardly a difficult call to make, as this issue is a novel argument regarding "tender" of UIM coverage with a waiver of subrogation in an automobile accident case in return for the defendant's carrier agreeing to defend (thus, saving the UIM carrier the expense of providing an attorney to represent its interests). Brown's UIM carrier did just that and Brown received $50000 of a $286,000 judgment from Kirkpartrick;s liability coverage and the balance from his UIM coverage. Normally, that would result in Kirkpartick being let off the hook for the $236,000 since the UIM carrier waived subrogation, but Brown contended that his carrier's waiver of subrogation simply meant that he, Brown, could pursue Kirkpatrick for the $236,000, reasoning that Kirkpartick should not benefit from Brown's contact with his UIM carrier.


If you are good at math, you can see that Brown is trying to turn a $286,000 judgment into a $522,000 judgment. Setting aside the issue of whether the UIM carrier might somehow have a lien on any recover Brown made, which is an issue for another day, the original panel split on whether Brown was trying for a double recovery or merely assuring that Kirkpatrick not reap the benefit of a field he did not sow.


The seminal case on this issue is Llewellyn v. White, 297 Va. 588, 599 (2019), which ruled where a UIM carrier tenders payment to the insured (that is, the plaintiff) and waives subrogation, the collateral source rule applies and the tortfeasor remains liable for the full judgment. But here, the agreement was between the UIM carrier and the defendant's carrier. The majority held that made a difference and Brown could pursue Kirkpatrick for the $236,000; the dissent saw it as a distinction without a difference


Today, Judge Huff, who was the dissent in the original panel, authors the majority finding that Brown is not entitled to a double recovery. He is joined by Chief Judge Decker and Judges Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Raphael, Lorish and White. Judge Humphreys, joined by Judge Lorish (the two being original majority) and Judge Chaney, dissents. Expect a petition for appeal the the Supreme Court on this one -- and given the paucity of cases on the Court's docket, I would hope for a grant.


The first of the two "new" cases is Donald Rosson v. Erie Insurance Exchange. Rosson was a passenger in a commerical truck that was involed in an accident; Eire was the carrier on the vehcile's laibility coverage. Eire sought a declaratory judgment contending that its policy exlcude liability for injuries that were subject to Workers' Compensation coverage Rosson, who had filed an action against the owner, his employer, and the driver, a fellow employee, was a party to the declaratory judgment action, but despite being given two extensions, never responded with an answer or other defensive pleading challenging the declaratory judgment action -- nor did the employer or the driver (who were also defendants).


Eire filed a motion for default judgment. Rosson filed an objection to the motion, requesting additional time to file an answer. He also conteded that he had nonsuited his civil action, so there was no justicible controversy, which was necessary for a declaratory judgement action, so the court could not grant default judgment. The circuit court ruled that it had jurisdiction, denied the thrid extension, and granted default judgment. Rosson appealed.


The Court of Appeals affirms. Judge Athey, joined by Chief Judge Decker and Judge White, find that the circuit court correctly determined that it had jurisdiction. The Court further found that the circuit court was within its discretion to deny Rosson a thrid extension to file his answer, and since no answer was filed, the fact that Rosson had in fact nonsuited his case was not relevant to deciding that issue Eire's potential obligations under the policy.


If you find the Court's disregarding of the nonsuit as troubling, you aren't looking at the procedural posture of the case. Had Rosson responded to the declaratory judgment action with an answer, demurrer or plea in bar alleging that he had nonsuited the tort action and, thus, there was no pendy controvery, he would have been right. But he didn't do that.


Instead, he wanted a chance to respond to the suit by asking for a third extension to file his answer (or demurrer or plea in bar), but first he needed to defeat the default judgment motion. In effect he was arguing that "if I am permitted to answer, I could allege the court had lost jurisdiction, and then the suit would be dismissed without prejudice -- to either party." But the circuit court, exercising its jurisidcition based on the unrebutted allegation of the complaint, replied, "perhaps, but I am not going to allow you to answer, so I still have jurisdiction to adjudicate the controvery as alleged in the complaint."


Now, you may be wondering if Rosson should be angry with his counsel for not filing an answer (or demurrer or plea in bar) despite being given ample time to do so. Perhaps, but my guess is the reason that no answer was filed is simply because there was no reasonable answer to be filed. Eire was absolutely right that it had no duty to defend or provide indemnity for an accident caused by a fellow employee in the course of Rosson's employment. So whether by default judgment or one on the merits. Rosson was going to lose either way.


Today's final case is Anne Filosa Creekmore v. Commonwealth of Virginia, and it comes from the same panel as Rosson, but with Judge White taking the honors for the opinion. Creekmore, a licensed psychologist, began treating a juvenile patient at the age of 15. Creekmore learned that the patient had been abused by her mother since she was in elementary school. She advised the child to "defend herself" and also sought to have the parents participate in group counseling. Althought the father participated, the mother did not and both the child and the father stated that forcing the mother to attend counseling woult be "disruptive" and "potentiall dangerous."


After the child stopped going to Creekmore for counseling, an anonymous report was made to child protective services resulting in a case being opened. Creekmore later claimed that she had been the anonymoust caller.


Creekmore was charged under Code § 18.2-371 for contributing to the delinqunecy of a minor based upon her alleged failed to comply with the mandatory reporting requirement of Code § 63.2-1509. At trial, in a motion to strike the Commonwealth's evidence, Creekmore asserted that she did not make a report as required until after the child stopped coming to therapy, becuase it was only after the last session that she formed a firm belief that the child was being truthful about the abuse. She further conteded that even if she should have reported the abuse earlier, her failure to do so did not result in the abuse, which had already occurred. The circuit court overruled Creekmore's motion to strike and she was convicted.


The Court of Appeals affirms that conviction finding that Creekmore's failure to report the alleged abuse was an "omission" that cause the child to remain in an abusive and dangerous environment. Because the circuit court rejected Creekmore's self-serving claim that she did not have sufficent basis for reporting the abuse until after the child ceased coming to therapy, the facts supported the conviciton.


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