The Supreme Court recently dropped an unpublished order that we should pay attention to. Real estate gurus, remember Horn v. Webb? These folks are back at it three years after the last decision (we are calling this one “Horn II” but feel free to send me a more clever title). This time, the Supremes decided what to do with one party’s allegation that the Circuit Court didn’t correctly execute the Court’s directive on remand.

Key takeaways:

• We love rules on appeal. Ever heard of “the mandate rule”? Now’s your chance. Per the SCV, “[t]he mandate rule requires a trial court to comply with the rulings of an appellate court on remand.” Horn II, p. 6.
• Assignments of error require significant thought and consideration. Virginia’s appellate courts are very particular about these. Here, in Horn I, the Horns did not properly assign error to the injunctive relief they did not receive. This affected what they could do in Horn II.
• Have a case on remand? Pay careful attention to the language of the appellate court’s decision (and the law-of-the-case doctrine)… and read this case. You’ll need it.

The Background

The facts are unique and the procedural history is complicated. Just know this is a case about neighbors who dislike each other and waterfront property access rights. After extensive litigation, the SCV originally reversed the trial court. The SCV concluded in Horn I that the Horns were entitled to a prescriptive easement to dock a boat in a lot and “to maintain electrical wiring and outlet to charge the boat.” 

Later, on remand, the parties could not agree on the language of the final order (to the surprise of absolutely no one). The Horns then advised the trial court that the other side had destroyed and removed the electrical apparatus powering the wiring to the boat dock. The Webbs had an explanation, but the Circuit Court expressed confusion over what actions it could take on remand. In the end, the Circuit Court decided that, if it had discretion to order an injunction, it would decline to do so. The Horns then turned back to the appellate courts for guidance.

But what about the electrical outlet?

What did the SCV do? It upheld the Circuit Court’s decision. The injunctive relief sought was not a “natural consequence” of the initial reversal in Horn I. So “nothing in Horn I” required a mandatory injunction, a prohibitory injunction, a declaration, or other relief on remand. The SCV also didn’t order the Circuit Court to conduct additional proceedings, which it sometimes does. Still, this does NOT mean that dominant estate owners should do nothing if it seems someone was attempting to circumvent a court order. It is still logical to seek an injunction. The SCV simply said the opinion in Horn I didn’t require it so the Circuit Court was not required to grant one here.

And because we can never have enough case law in Virginia on jurisdiction (or can we?), the SCV did not decide whether the mandate rule creates jurisdictional limits on remand, so much as the rule “cabins a trial court’s discretion.” Perhaps an appeal for a later day?

But don’t feel too sorry for the Horns. They will return to dock their boat near their spiteful neighbors another day.

P.S. Might the SCV consider publishing this? Inquiring minds want to know.