Recent Opinions to Watch
We are officially in fall and our favorite appellate courts have been busy.
What follows are a few of the noteworthy opinions issued over the last month, but there are far too many to list them all. In the olden days (i.e. before appeal of right), we wouldn’t have more than a handful of published opinions per week from the Court of Appeals, but that is no longer the case. As a result, I’m picking a select few to highlight.
Supreme Court of Virginia:
No published opinions issued.
Unpublished Orders, though?
Taron Jarrell Thomas v. Commonwealth: Here, the Court of Appeals incorrectly calculated the due date for a notice of appeal in a criminal case where the circuit court stayed its final judgment order (cue: panic). The law here is not new but it is a worthwhile reminder to double-check your calendaring system . . . and perhaps it makes us all feel a little bit better that even the Court of Appeals finds calculating these dates confusing!
Medeiros v. Va. Dep’t of Wildlife Res.: The Supreme Court of Virginia affirmed that a written statement of facts pursuant to Va. Sup. Ct. R. 5A:8 or a transcript of a demurrer hearing was necessary to decide the issue on appeal. Note: there is a published CAV opinion Humphries v. Buchanan, 80 Va. App. 774, 780 n. 3 (2024) (en banc) that holds that if an assignment of error presents pure legal questions, no transcript or statement is necessary. Now, you might be asking, “isn’t that generally the case for demurrer hearings, i.e. that the sufficiency of the pleading is purely a legal question?”
So what is a lawyer to do? Include a transcript or statement of facts. Don’t bet on an appellate court agreeing that you raised a pure question of law. If you couldn’t get a court reporter for a valid reason, a statement of facts can save you (although is never recommended as a first line of defense).
Court of Appeals:
There are too many published CAV opinions to list these days, but a few are especially worth noting:
Jolley v. Ellis: Judge Lorish wrote a lengthy published opinion explaining how and why the doctrine of sovereign immunity did not bar the Plaintiff’s claims against a city garbage truck driver and the City of Chesapeake. Personal injury lawyers and government lawyers will find this worth reading!
Harris v. Washington & Lee University: Employment lawyers will want to take a closer look at this case, which involves a Virginia whistleblower and wrongful termination lawsuit. The CAV addresses the plaintiff’s “joint employer” claim and the borrowed employer doctrine. In it, the CAV also admitted that the SCV has not specifically stated what the proper standard of review is on a motion to strike a jury demand. This lack of clarity from the SCV may be helpful to future petitioners before that Court …
Tuscarora Marketplace v. First National Bank: This decision is lengthy and will interest legal historians and real estate practitioners. Judge Athey analyzed restrictive covenants in Virginia, the common law, and the modern “touch and concern” rule. Look for this to be appealed to the Supreme Court, as the opinion itself states that “we face a precedential void” regarding this legal doctrine’s framework and that “it is up to the Supreme Court to resolve this ‘unspeakable quagmire.’”
Yellow Mountain Village Mobil Home Park Ass. V. Yellow Mountain MHP, LLC: The Court of Appeals analyzed what constitutes a one-year lease within the meaning of the Manufactured Home Lot Rental Act (“MHLRA”) and what is “fixed” rent. I believe reasonable minds could differ on whether the Court’s holding is correct, so will also look to see whether this decision is appealed.
Cisneros v. Commonwealth: The Court of Appeals again takes up the issue of revocation proceedings and the procedural nightmare that is the distinction between voidable and void ab initio orders in that context. The Supreme Court didn’t ultimately provide resolution in Hannah v. Commonwealth, 303 Va. 106 (2024), so look to this issue to continue to come up unless and until it does. Here, the Court of Appeals determines that the order in question was not void ab initio.
Elwood Thomas v. Commonwealth: Any en banc decision is worth paying attention to, and this one is no different. Here, the issue was whether a Defendant’s Miranda waiver was voluntary where the Defendant had an intellectual disability and the defendant’s probation officer told him that the Detectives “need[ed] to talk” to him and to “go ahead and chat with them today. Okay?” The Court sitting en banc affirmed the conviction (reversing the panel) and found the defendant’s waiver valid (but note the dissent!).
Avonlea v. Karl Moritz, Dir. of Planning:This case is a good reminder to double-check the underlying authority for the government to do something (if for no other reason than that you have a response ready at oral argument if you are asked about this on appeal!).
Questions? Give me a call.
