The Supreme Court of Virginia handed down a new opinion today, Albritton v. Commonwealth, that’s notable for two reasons. First, it has a good discussion of bad-brief waiver. Second, it hints that the Supreme Court would not look favorably upon the use of affidavits at summary judgment.

For our purposes, the background facts aren’t that important. Albritton sued the Commonwealth under the Virginia Tort Claims Act, claiming that he was injured while falling down a negligently maintained flight of stairs during his stay at Sussex II State Prison. The Commonwealth  moved for summary judgment, insisting that the there was no genuine dispute of material fact about primary or contributory negligence. The trial court agreed. Albritton appealed, arguing that each issue presented dispute fact questions.

Writing for a unanimous Court, Justice Kelsey agreed. His treatment of the contrib issue, in particular, is interesting. Albritton’s assignment of error said that the trial court “erred and abused its discretion in [g]ranting the defendant Commonwealth’s Motion for Summary Judgment for [c]ontributory negligence based solely on the inadmissible [h]earsay [e]vidence submitted by the defense.” Yet his opening brief did not identify any specific hearsay statements that were inadmissible. Instead, he argued that the trial court erred by crediting two points in the Commonwealth’s affidavit that he disputed in his own affidavit.

So the question presented was whether Albritton’s had limited his appeal to an error arising out of the trial court’s consideration of inadmissible hearsay evidence. The Court noted that the answer would clearly be yes if the assignment said that summary judgment was erroneous because the court relied on inadmissible hearsay. “If a brief assigned error on this ground and then said not a word about hearsay, we would consider the issued waived–not as an insufficient assignment of error under Rule 5:17(c)(1)(iii) but as an inadequately developed argument supporting an assignment of error (colloquially called a bad-brief waiver) in violation of Rule 5:17(d).”

But Albritton’s assignment challenged the grant of summary judgment based solely upon inadmissible hearsay evidence. Citing Garner’s Modern American Usage, the Court pointed out that the phrase “based on” has several uses: It may carry a verbal force when “base” is used as a transitive verb, or it may carry an adjectival force (in a passive sense) when “based” is used as an adjective–but it should never be used as an adverb or preposition. “When improperly used as an adverbial phrase, ‘based on’ might function the same as ‘because of.'” Instead of adopting that uncharitable reading, the Court gave Albritton the benefit of the doubt–it assumed that he meant to use the phrase properly,. Thus, it held that he had not waived his argument about contributory negligence.

Careful readers will have noticed something about that discussion of summary judgment: It was talking about affidavits! In a footnote, the Court acknowledged that it while it had never directly addressed the issue, the “prevailing wisdom” is that affidavits are not admissible in support of motions for summary judgment. In support, it cited Sinclair & Middleditch and Bryson on Civil Procedure. The Court observed that it did not have to resolve the issue because the Virginia Prisoner Litigation Reform Act allows affidavits to support or oppose motions for summary judgment in pro se prison cases.

That said, the Court probably would not have dropped this footnote if it thought that supporting summary-judgment motions with affidavits was a good idea.