Virginia Supreme Court Opinions






The Virginia Supreme Court recently issued two opinions of particular note.

In Harman v. Honeywell International, Inc., the Court resolved several different evidentiary issues as well as the language of the jury instruction on proximate cause as part of its reversal of a jury verdict in favor of the defendant in a case involving wrongful death from an airplane crash. First, the Court ruled that an accident report produced by the manufacturer of the airplane involved in a crash that prompted the suit was hearsay and thus inadmissible, rejecting arguments that it was a “learned treatise” entitled to an exception. Second, the Court weighed the opinion of two lay witnesses under Rule 2:701, and ruled that a lay opinion that someone acted in poor judgment was inadmissible, as lay witness testimony cannot be directed at a person’s “culpability or blameworthiness.” Third, the Court ruled that it was inappropriate for defense counsel to point out in closing argument that there were no prior incidents similar to the crash in question, when such evidence had been expressly excluded by the trial court prior to trial. Finally, the Court upheld a jury instruction on proximate cause where the trial court had stricken two sentences that were not part of the Model Instruction. A link to the unanimous opinion authored by Justice Mims is here.

In another wrongful death suit, this time involving a man who was killed when his car was hit by a train, the Court overturned a jury verdict in favor of the decedent on the basis that he was contributorily negligent as a matter of law. The five-Justice majority opinion, authored by Chief Justice Kinser, heavily relied on Wright v. Norfolk & W. Ry. Co., 245 Va. 160 (1993), which involved facts “strikingly similar” to those in this one, in overturning the jury’s verdict. Justice Powell, joined by Justice Mims, dissented, arguing that the issue of whether there was contributory negligence was solely a question for the jury, and that Wright did not apply here because the decedent’s ability to see the oncoming train was impeded as a result of lumber piled up around the track, as opposed to in Wright where the driver’s own actions impeded his view. A link to the opinion in RGR, LLC v. Settle is here.



On April 17, 2014, the Virginia Supreme Court issued a number of new decisions.

The case of Squire v. VHDA stands as another reminder that filing suit after your house has already been foreclosed on is, for all practical purposes, too late. In this case, a lender foreclosed on a residence despite having not fulfilled all the prerequisites set forth in the deed of trust, including arranging a face-to-face interview with the homeowner. Only after the home was sold to an investor for about half the assessed value did the homeowner finally file suit, seeking, among other things, rescission of the foreclosure sale. The trial court dismissed her suit for failure to state any viable claims. A narrow majority of the justices, in an opinion by Justice Powell, rule that the homeowner did state claims for breach of contract and breach of fiduciary duty for the failure to conduct the face-to-face interview prior to foreclosure, but upheld the remaining dismissals, including of the rescission claim. So the foreclosure sale stands. Chief Justice Kinser, joined by Justices Lemons and McClanahan, would have affirmed the trial court’s rulings in full. A link to the opinion is here.

A member of a cooperative argued that the cooperative had to pay for plumbing problems affecting her unit under a provision that required the cooperative to “provide and pay for property including the Member’s dwelling, except that the Member shall make minor interior repairs and provide all interior and decorating.” While on its face this language appeared promising to the member’s argument, the Court held in Robinson-Huntley v. George Washington Carver Mutual Homes Association, Inc., in a unanimous opinion by Justice Mims, that the cooperative had no such obligation because the cooperative’s contract with the member’s predecessor had different language; specifically, that the cooperative “shall . . . provide and pay for all necessary current repairs, maintenance, and replacements of Project property . . .” The removal of that language from the successor’s contract evidenced an intent to exclude it by the cooperative, and thus the member’s argument loses. The Court also clarified that claim for attorneys’ fees under Va. Code sec. 55-492(A) of the Coop Act is awarded based on appropriateness, not whether a claimant was “adversely affected.” A link to the opinion is here.

In Ferguson v. Stokes, the Court yet again reminded litigants that choosing what to appeal is as important as your argument for why you should win. In this case, a landowner sought to eject her neighbor’s oyster house from her riparian zone. The neighbor argued that he could not be ejected under Va. Code sec. 28.2-1200.1(B)(2), which granted him ownership over the land in question. The trial court stated three (3) distinct reasons why the neighbor’s reliance on the Code section must fail, and the neighbor appealed—but he only challenged two (2) of the trial court’s stated bases. Finding that the third, unchallenged basis was sufficient in itself to defeat the neighbor’s argument, the Court, in another unanimous opinion by Justice Mims, affirmed the trial court’s ruling. Justice McClanahan filed a concurrence on more narrow grounds. A link to the opinion is here.


On February 27, 2014, the Virginia Supreme Court issued opinions of utmost importance to appellate practitioners, addressing when Virginia Code sec. 8.01-384(A) allows a litigant who was precluded by the trial court from asserting a contemporaneous objection to a ruling to raise that issue on appeal.

In Commonwealth v. Amos, the appellant was imprisoned for contempt after the trial judge found that she had lied under oath. At that time, the appellant had no counsel, she was just a witness, and she did not raise an objection when the trial court sent her to jail, although she did file a motion to vacate that ruling 17 days later. The Court ruled, 6-1, that in those circumstances the appellant had no meaningful opportunity to contemporaneously objection to the trial court’s contempt ruling, and thus she could appeal the issue. A link to the opinion is here

In Maxwell v. Commonwealth, after a jury returned a guilty verdict against Maxwell, the trial judge informed counsel that the jury had submitted questions during deliberations, and had answered those questions without the involvement of counsel. Maxwell’s counsel moved to set aside the verdict based on that ex parte communication, which is expressly prohibited under Va. Code sec. 19.2-263.1. The Court of Appeals previously held that Maxwell could not appeal the issue because he had not made a contemporaneous objection. The Supreme Court reversed, 6-1, holding that since Maxwell’s counsel was prevented from objecting through no fault of his own, he was permitted to appeal the issue under 8.01-384(A). However, in Rowe v. Commonwealth, decided in the same opinion, the facts compelled a different result. There, the prosecutor made an impermissible statement during closing argument about the defendant’s failure to proffer evidence. Before defense counsel began making a closing argument, he told the trial court of his intention to make a motion about the prosecutor’s statement. The judge told defense counsel, “We’ll deal with it when the jury goes out to retire.” Defense counsel accepted that request. Under those circumstances, the Court ruled, 5-2, that defense counsel had waived the objection and could not appeal it under 8.01-384(A). Those consolidated opinions are here.

In an opinion that is required reading for commercial litigators, the Court answered two questions certified from the U.S. Court of Appeals for the Fourth Circuit: First, may a plaintiff use tortious interference with contract or business expectancy as the predicate unlawful act for a claim under Virginia’s business conspiracy statute, Va. Code sec. 18.2-499 and 500; and second, do those tortious interference claims have a two- or five-year statute of limitations? In Dunlap v. Cottman Transmission Systems, LLC, the unanimous Court answered in the affirmative as to the first question, as those claims are based on common law duties that arise outside of contracts, and held that a five-year statute of limitations applied to the tortious interference claims since those claims have to do with injury to property rights. A link to the opinion is here.

In Beach v. Turim, neighbors engaged in litigation over whether a plat showing a four foot “private walk easement” did, in fact, create an express easement. The Court held that since the plat did not indicate to whom the easement was granted, or for what purpose, so that it could be determined which estate was dominant and which was servient, the plat itself was insufficient to create an express easement. A link to the unanimous opinion is here.




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