Friday, February 27, 2009

Another Bill Eskridge case

Today the Virginia Supreme Court decided in Johnston Memorial Hospital v. Bazemore that the plaintiff in a lawsuit that is a legal nullity (because the plaintiff had not qualified as personal representative to file a wrongful death case) cannot take a nonsuit.

One would imagine that a lawsuit that is a legal nullity cannot be res judicata on the merits, but I suppose they wanted the nonsuit to toll the statute of limitations.

Well done, Rip Sullivan

In Remora Investments, LLC v. Orr, the Virginia Supreme Court in an opinion by Justice Lemons affirmed the decision by the Fairfax Circuit Court that one member of a limited liability company lacks standing to sue another member or manager of the LLC for breach of fiduciary duty, but instead the duty is owed to the LLC itself.

I think that Rip Sullivan was on the winning side here, and I was rooting for him (as of now, until I'm on the other side of this issue).

Well done, more or less

In Seguin v. Northrop Grumman, the Virginia Supreme Court in an opinion by Justice Koontz held that an order compelling arbitration is not appealable, notwithstanding loose talk in a prior opinion in the case of Amchem Products v. Asbestos Cases Plaintiffs, 264 Va. 89, 563 S.E.2d 739 (2002).

I made this argument in opposition to a petition before the Virginia Supreme Court, but the Court simply denied the petition in my case, finding no error in the ruling on arbitrability. So, I know that the Virginia arbitration act is a uniform act, and there are dozens of cases interpreting its provisions in other states, and yet in Seguin the Virginia Supreme Court chose to ignore this aspect, because ... that's the way they roll. There will never be a dispute over the Virginia Supreme Court citing foreign law, because they won't do it - they don't like to cite any non-Virginia law, even when it would make life better for Virginia lawyers, as when uniform acts are applied uniformly.

In Virginia, as in Arizona, "[t]he right to appeal is not absolute but exists only by statute." Southern California Edison Co. v. Peabody Western Coal Co., 194 Ariz. 47, 52, 977 P.2d 769, 774 (1999). Arizona’s Uniform Arbitration Act “expressly permits appeal from an order denying arbitration but is silent as to an order compelling arbitration.” Id. (citing A.R.S. § 12-2101.01). From the limited list of appealable orders, "our legislature has made its intent clear that most interlocutory orders, including those compelling arbitration, are not appealable." Id. The Court concluded that "even in an independent proceeding in which the question of arbitrability has been raised, an order compelling arbitration will always adjudicate 'fewer than all of the claims.'" Id. This rule is "good policy in an arbitration case" because it would "support the purposes of that procedure - prompt, efficient, and inexpensive dispute resolution," avoiding "a multitude of appeals . . . when arbitration might determine all issues to the parties' satisfaction." Id. at 52-53, 977 P.2d at 774-75.

Like the Arizona court, a court in Kansas cited the prefatory comment to the Uniform Arbitration Act, which says: "The section on Appeals is intended to remove doubts as to what orders are appealable and to limit appeals prior to judgment to those instances where the element of finality is present." National Educ. Association-Topeka v. Unified School Dist. No. 501, 260 Kan. 838, 841, 925 P.2d 835, 837-38 (1996) (quoting Unif. Arbitration Act, 7 U.L.A. 2 (1985)). See Southern California Edison, 194 Ariz. at 52, 977 P.2d at 774 ("our legislature has made its intent clear that most interlocutory orders, including those compelling arbitration, are not appealable. This, too, was the intent of the UAA drafters.") (citing the same Prefatory Note.) In the Kansas case, the Court went further, adding:

The chairman of the committee that drafted the uniform act explained the rationale for making certain orders, but not others, appealable: "Appeals likewise are commonly neglected in arbitration statutes. Under the new act, the appealable orders are specifically designated and are confined to those final in nature, such as orders denying motions to compel arbitration or granting motions to stay arbitration. Orders directing, or refusing to stay, arbitration are not appealable but the point at issue can be raised on appeal from an order confirming the award should one be rendered. Appeals are permitted also from the judgment or decree rendered on an award." Pirsig, The New Uniform Arbitration Act, 11 Bus. Law, April 1956, at 44, 51. (Emphasis added.)

National Educ. Association-Topeka, 260 Kan. at 841-842, 925 P.2d at 38 (citation omitted).

You'd think that Virginia Supreme Court would embrace the idea that the outcome in this case is justified in part by the purpose, structure, and drafting history of the Uniform Arbitration Act, or any uniform act.

Thursday, February 26, 2009

Tennessee Supreme Court in Virginia

Today's TBAtoday says:

"Next Thursday, March 5, the Tennessee Supreme Court will hold a public meeting in Bristol on legal needs and access to justice issues in east and northeast Tennessee. The meeting will be moderated by Supreme Court Justice Gary Wade and feature a panel with state Representative Jon Lundberg, 2nd Judicial District Chancellor E.G. Moody, Sullivan County Circuit Court Clerk Tommy Kerns, private attorneys and representatives from Legal Aid of East Tennessee and the Oak Ridge office of the Legal Aid Society. The meeting begins at 3 p.m. at the Bristol Public Library, 701 Goode Street, Bristol, Va. 24201."

Tuesday, February 24, 2009

Funniest thing I heard said about me in 2009

Someone told me at the VBA meeting in Williamsburg that someone else had said this: "Steve Minor . . . is an acquired taste."

Monday, February 23, 2009

On the USDA broadband grant program

Southwest Virginia through LENOWISCO and other entities has been a prime beneficiary of the grant program mostly bashed in this Washington Post article, which does cite the example of Tannersville, Virginia, here in the Ninth District. The Tannersville grant was written by my sister, who also wrote the grant for Rose Hill, where she lives and works.

Speaking of Joan, here is where she uploaded a video to her blog, which she made with the Christmas present she got from her brother.

On court-packing, stacking, etc.

The Post has this on too-smart law professors thinking up ways to get the Supreme Court to do what they want.

People who are aggrieved by the Supreme Court always think of ways to change it, not because they are high-minded but because they want to get different outcomes. And, everyone knows this, and so the proposals go nowhere - now as when Jefferson was president and Marshall the Chief Justice.