The Supreme Court of Virginia’s argument schedule for next week is up. Here are a few of the cases that caught our eye and why:

  • NC Financial Solutions of Utah, LLC v. Commonwealth: A consumer-finance case raising Federal Arbitration Act and Virginia Consumer Protection Act issues. Strong judge (Judge Ortiz from Fairfax) and a chance that SG Toby Heytens argues on behalf of Virginia.
  • Barbour v. Carilion Medical Center: Judging from the assignments of error, it looks like the trial judge ruled as a matter of law that the plaintiff was contributorily negligent in  a medical malpractice case? I need to get the briefs.
  • Bryant-Shannon v. Hampton Roads Community Action Program, Inc.: In a defamation case, the appellant challenges rulings that some statements were not defamatory while others were absolutely privileged.
  • White v. Llewellyn: What does a plaintiff need to prove in a fraudulent-conveyance case once she has established a badge of fraud? Plus a chance that former SG Duncan Getchell argues for White.
  • St. John, Trustee v. Elsea: Looks like we may get some much-needed guidance on the availability of attorney’s fees under Prospect Development Co. v. Bershader.
  • Bolton v. McKinney: Explores the availability of attorney’s fees as direct or consequential damages in a case for breach of a settlement agreement.

After revisiting the Tail End, I realized that there’s only one way to keep me honest about how I’m spending my limited reading time: transparency. So I’m going to start keeping a public list of what I’m reading. As an added benefit, every time I stumble across something good I can let you all know.

With that background, here’s last month’s list: Continue Reading What I’m Reading

SCOVA recently granted an appeal in Norton v. Board of Supervisors of Fairfax County, Record No. 201028. Here are the assignments of error:

1. The trial court erred in dismissing Count VIII of the Second Amended Complaint because the Airbnb Hosts produced probative evidence that the Board’s adoption of the STL Zoning Ordinance was unreasonable, arbitrary and capricious where the Board failed to give reasonable consideration for the existing use of property as required by Virginia Code § 15.2-2284 and where the Board offered no evidence (and there was no evidence) of reasonableness to make the issue fairly debatable.

2. The trial court erred in dismissing Counts IV and V of the Second Amended Complaint because the Board’s STL Zoning Ordinance is unconstitutionally vague and violates the Airbnb Hosts’ procedural and substantive due process rights under the Due Process Clause of the United States Constitution, as incorporated by the Fourteenth Amendment, by allowing short-term residential occupancy as a by-right use without a permit but also characterizing short-term residential occupancy as an accessory use subject to mandatory permitting requirements.

3. The trial court erred in dismissing Count III of the Second Amended Complaint because the Board’s adoption of the Transient Occupancy Tax Amendment violates Dillon’s Rule because Virginia Code § 58.1-3819 does not authorize the Board to tax the short-term residential occupancy of a dwelling.

Why is this interesting? Three reasons (none of which have anything to do with Airbnb). Continue Reading Appeals Granted: Norton v. Board of Supervisors of Fairfax County

I always hate it at CLEs when people say things like, “There’s no good writing. Only good editing.” Sure, a first draft is just that, and that you can’t compare your first cut at a brief with another writer’s finished product. 10-4. But how are you supposed to get from that first draft to the finished product? Like, mechanically, what are you supposed to do? In GTD parlance, what is the next physical, visible action?

For years, I didn’t know. So I would just print out my brief and read it, and edit, over and over again. How would I know that I was done? Either I would run out of time, or I would get to the point that I was reversing changes from an earlier iteration.

This was a deeply stupid approach. And it took forever.

I’ve gotten a little better at this over the years. Here’s how: Continue Reading I Am a Lousy Editor and So Can You!

Brother Emmert has an essay with some updated appellate statistics. I’ll let him do the talking:

Thus far in 2020, The Robes have given us 41 published opinions and seven published orders. We’ve also seen 25 unpublished orders – rulings that adjudicate the appeal but don’t appear in Virginia Reports and don’t carry precedential weight. That means there are 73 total dispositions on the merits so far.

Let’s take a look backward to see how this pace compares with historical figures. Ten years ago, in 2010, there were 117 opinions and 59 orders, for a total of 176. Another ten years back and it’s 159 opinions and 84 orders, so we’re up to 243 merits rulings.

I won’t keep boring you with numerals; I’ll get to the bottom line. I have statistics on the court going back to 1965, and what we’re seeing in the past few years are historically low numbers of merits rulings. The court set a new low record, going back as far as I know, in 2018 with just 116 such rulings. That dropped to 112 last year. This year, unless something extremely dramatic happens, we won’t hit triple digits.

The final point I’ll mention here is that these 2020 stats don’t reflect pandemic decreases. As I noted in a recent post, all of the appeals that the court has ruled on this year reflect final lower-court decisions that came down before March 2020. That means that next year, with the possibility of a sharp drop in new filings due to the pandemic’s effect on circuit courts, this year’s unfortunate record won’t survive twelve months before the 2021 total undercuts it.

Plenty of other good stuff on Steve’s website too, as usual.

Just before Thanksgiving, the Supreme Court of Virginia issued a new opinion dealing with the voluntary-payment doctrine, Sheehy v. Williams. It’s worth reading for two reasons. First, the voluntary-payment doctrine trips up litigants and ends appeals. Second, Sheehy is just a well-researched and cleanly written opinion. Continue Reading New SCOVA Case on the Voluntary-Payment Doctrine

I don’t usually get surprised at legal-writing CLEs. But I got surprised this morning.

For context, I was lucky enough to moderate a panel  at the VADA’s annual meeting this morning. Justice McCullough, Judge Carson, and Erin Ashwell sat on the panel, which addressed practical legal-writing tips. If you know these folks, then you know that they have varied and fascinating life experiences. We ignored them. Instead of talking about, say, growing up in Marseille (Justice McCullough) or spending summers in the Catskills as a California kid (Judge Carson) or writing novels (Erin), we focused on my idiosyncratic tics and obsessions. You’re welcome, VADA!

Continue Reading Legal Writing: Be Brief or Be Thorough?

Juli Porto has an article in this morning’s VTLAppeal, Is There a New Sheriff in Town Named “A.H. Tingler”?, analyzing SCOVA’s subtle importation of Twiqbal through A.H. v. Church of God in Christ, Inc. and Tingler v. Graystone Homes, Inc. Thoughtful and recommended. Among other things, Juli notes that the Court cited Twiqbal in A.H., then cited A.H. in Tingler as if it had always been Virginia law. She points out:

Continue Reading A New Sheriff in Town?