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

Two presents and one lump of coal in two published opinions from the Court of Appeals

Santa made an early delivery to two sets of appellate litigants today, with two reversals and one affirmance. Wait, what? Two opinions but three results? Has Santa forgotten how to count? No, Santa has his math right, because one opinion involved cross appeals.

Let's start with the mixed bag result in Mintbrook Developers, LLC., v. Groundscapes, LLC and Forest Gold, LLC and its cross-appeal. The issue in the trial court was which of the two developers were responsible for the cost of certain improvements to Route 28 in Fauquier County as part of proffers to the Department of Transportation. The circuit court found that it was Mintbrook's responsibility, but refused to award attorney's fees to Forest Gold and its principals, the Lims (Groundscapes, which performed the work, did not appear in the appeal). Mintbrook gets the lump of coal, as the Court of Appeals, Judge Raphael joined by Judges Athey and Chaney, agree that it has to pay for the improvements, while Forest Gold gets the Christmas wish of attorney's fees.

Before delving into the specifics of the law, we pause to make a plea to the appellate courts of Virginia to join the 21st century and start providing graphics with their opinions, especially those involving land issue. In the past, adding graphics, whether they be photographs, plats, or reproductions of documents, was a tedious process that required the court to attach originals to the opinion and the printer to produce plates of the images to include in the typeset volumes. Today, however, and for quite some while now, word processing software makes the inclusion of such demonstrative exhibits relatively easy. The insertion of a plat or map showing the subject properties, which almost certainly was part of the record, would have been far more useful than the description provided in the first paragraphs of the Court's opinion. Since your humble correspondent considers himself to be a thoroughly modern man, let me save you the trouble of trying to envision the property at issue by providing an annotated map:

Forest Gold owns the property along Catlett Road (Route 28) and Mintbrook owns the property on the opposite side of Grace Road. While the map showed that Lafayette Ave now connects Graces and Route 28, it did not do so in 2014, when Forrest Gold sought a rezoning of the property. Making would benefit both parcels and Mintbrook "proposed that, if the Lims dedicated the road parcel, Mintbrook would extend Lafayette Avenue to Route 28." Unfortunately, the parties didn't specify what exactly was to be done. Forest Gold contracted Groundscapes to perform the work for just north of $400,000, but when it came time to pay, Mintbrook objected, stating the the work exceeded the scope of agreement, leading to the three-way suit by Groundscapes against Forest Gold with a third-party complaint against Mintbrook.

Now you already know that Mintbrook wound up on losing end of the suit as to liability under the development agreement. But what about the attorneys' fees? Well, there was an indemnification clause in the agreement, the circuit court ruled that Forest had not plead the application of the clause in its third-party complaint to include attorneys' fees for enforcing the agreement. Acknowledging that it was a "technicality," the court denied the request for attorneys fees.

The Court of Appeals first addressed the issue of whether Mintbrook was liable for the cost of the road improvements under the development agreement. Unsurprisingly, the Court finds that Mintbrook very clearly undertook to pay for the improvements. Like the circuit court, the Court of Appeals found the agreement to be unambiguous and declined to look at a prior draft of the agreement which Mintbrook maintained would show that the parties had a more limited understanding of the scope of the work. This pretty straightforward contact interpretation law -- the final agreement is what controls.

Before moving on the the attorneys' fees issue, let us pause to give kudos to Judge Raphael, for his use of the word "romanette" to correctly describe the the use of a minuscule Roman numeral to show a sectional division of a contract or statute. Apropos of the above discussion of the advancement from typesetting to word process, "romanette" is a typesetters term which was adopted into the law of drafting contracts and statutes. Because the use of word by the Court often results in its adoption by advocates, I suspect that we shall see more briefs directing the Court's attention to a particular "romanette" of the contract or statute at issue.

The Court of Appeals finds that the circuit court's "technicality" was a bit too technical. While it is true that Forest Gold did not site the specific clause of the agreement that provided for attorneys' fees for the prevailing party in a dispute, the agreement was made part of the record and the third-party complaint stated, “Mintbrook’s contract with the Lims expressly provides that it will hold them harmless and indemnify them from claims such as the one now being asserted by Groundscapes.” While acknowledging that it was a "close question," the Court notes that there were three possibilities for the claim for attorneys' fess when viewed in isolation: a boilerplate claim, a claim based on indemnification, or a claim based on common law relating to the availability of attorneys' fees in third-party actions.

So what took this case from the realm of a "close question" to one in which the circuit court erred? It was the "commendable candor" of Mintbrook's counsel, who at oral argument stated "hat he knew that Forest Gold and the Lims “were seeking attorney’s fees because . . . in the motion craving oyer the contract was produced and the contract is the basis for attorney’s fees . . . . I was aware of that from the beginning.” This was apparently also stated, if perhaps more obliquely, in Mintbrook's opening brief, so counsel's candor was likely the result of having anticipated the the question and recognizing that his ethos with Court would be damaged by attempting to back peddle. The case is remanded to the circuit court for a determination of the attorneys' fees award.

The other party to be on the Court's Nice List today is the appellant in Jill Ruderman v. Kathy Pritchard. The reversal is remarkable when you learn that it comes from a jury verdict confirmed by the trial court, "the most favorable position known to law" as the appellate courts frequently remind us. The result in Ruderman's favor is even more remarkable when you learn that her counsel waived oral argument, submitting on brief.

Now waiving oral argument is either a sign of extreme confidence in your written argument or a belief that the argument is so weak that presenting oral argument would be a pointless endeavor and merely damage your ethos with the Court. The latter applies typically to criminal case where appointed counsel cannot credibly file an Anders brief because the appeal is not wholly frivolous but where the law regarding the issue(s) to be raised is so heavily against reversal that oral argument would be decidedly uncomfortable for all involved -- "Yes, your honor, I would agree that the jury probably did credit the testimony of the Commonwealth's witnesses and the videotape showing my client entering the bank with a shotgun, but was that really enough to convict him of attempt robbery . . . he never actually demanded any money." "Yes, counsel, but that was because as he shouted 'Nobody move! This is a stick up!' he slipped and hit his head on the tellers' counter knocking himself unconscious."

So what exactly was this issue that Ruderman's counsel felt did not require his attendance before a panel consisting of Chief Judge Decker, who writes today's opinion, and Judges AtLee and Malveaux? Cats. Specifically Cornish Rex cats. And as I am advocating the use of demonstrative exhibits, here is a typical member of the breed

Pritchard breeds Cornish Rexes and Ruderman provided veterinarian services to the kitties. A "dispute arose between them over several of the cats and their offspring," and Prtichard filed a warrant in detinue in the general district court for return of 11 cats or their monetary value. The court found for Pritchard and ordered the return of some of the cats and payment for the others in the amount of $24,100.

As I am want to do, I shall pause here for two purposes. First, if you are not familiar with a detinue action, this is a claim that someone has property that rightfully belongs to you and you a) want it back, or b) want its monetary value. Technically, you don't have to accept the cash, but if you plead it and the court awards it, you can't complain. Second purpose: The opinion does not specify how many cats were returned, thus we cannot determine the "price per cat" that the $24,100 represents -- but it is obviously more than $2190 purr . . . sorry, per . . . cat, given that there were 11 in all and $24,100/11 is $2,190. I am not going to debate the merits of having a pedigreed Cornish Rex or any other specific breed of companion animal, but I will observe that is what you want is a companion animal, your local shelter can provide you with one for far less that $2,190.

Now, the case takes an interesting turn because Pritchard appealed the decision to the circuit court. Pritchard, you will recall if you look above the digression of the previous paragraph won in the district court. Even more interesting is that Pritchard sought to amend her complaint to add additional kittens, littered while the appeal was pending, and to add claims for breach of contract, conversion, declaratory judgment, and permanent injunctive relief. The addition of the litters of new kittens (the entire group of felines being a clowder, a glaring, or, my personal favorite, a pounce of cats -- pride applies to wildcats, not domesticated), naturally increased the compensatory damages to which Pritchard added punitive damages and a claim for attorneys' fees.

Ruderman objected to the amendment, asserting that it exceed the amount that would have been available under the warrant in detinue, which is limited to $25,000 in the general district court. The circuit court overruled the objection, permitted the amendment, and the case proceed to a trial before a jury. The jury awarded Pritchard possession of all the cats and damages of $9,134.67.

Ruderman appealed the circuit court's permitting the amended pleading and the increase of the damages. Now some of you may be aware that the jurisdictional limit of the general district court is not controlling in an appeal to the circuit where a party seeks to amend the ad damnum under Code § 16.1-114.1. However, the Court points out that the statute's provisions concerning an increase in the ad damnum applies to appeal brought by a defendant. As noted above, it was Ruderman, the plaintiff, who appeal. Those in the know recognize this as the Afify rule, named after the Supreme Court of Virginia decision that held the limit on increasing damage claims on removal to the circuit court by a defendant -- the removal statute was subsequently ameded to allow increases in damages on removal by the defendant. The Court of Appeals today holds that the reasoning in Afify applied to appeals by a plaintiff.

Now there is an interesting bit of dictum in the opinion, which notes that under a different statutory provision an ad damnum can be increased above the amount in controversy jurisdiction of the general district court if additional damages accrue while the case is pending in the district court. However, Pritchard did not make her amendment in the district court -- indeed she alleged that the additional kittens were littered while the appeal to the circuit court was pending -- so that provision does not aid her.

Now comes the interesting part of the appeal. "What?" I hear you say, "We're only now getting to the interesting part of the appeal?" Well, let's say an equally interesting part of the appeal. The jury's award of the return of the property is in accord with the relief available under detinue -- and the value of the property returned is irrelevant to the jurisdiction issue because in detinue you can demand the return of the property without setting a dollar value on it. In theory, the district court could entertain a detinue action for the return of a mint condition 1966 Corvette (typical price $110,000 and up) if the party was unwilling to accept cash value or to accept no more than $25,000.

The jury's cash award was likewise below the $25,000 jurisdictional limit, so why is there a problem? The problem is in that word "jurisdictional." Because the appeal was limited to the jurisdictional limit for the monetary damages, when the circuit court permitted the amendment to include damages about that amount, the circuit court deprived itself of jurisdiction over the appeal. Once the court lost subject matter jurisdiction everything that happened was void (not merely voidable), so the jury's verdict, which would have been proper on the appeal of the district court judgment without the amendment was a nullity. The case is remanded for a new trial on the appeal as it was brought without the amended complaint. Pritchard can presumably file a separate complaint for additional litters (and any liters of the liters) and have the matters consolidated for trial . . . which in hindsight would have been the proper way to have proceeded.

Happy Holidays to All the Virginia Appellate Attorney's Court of Appeals Blawg

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