You can't lie by claiming to be honest

In Trustees of Hackberry Baptist Church v. Womack, Judge Kiser of the W.D. Va. held that a defendant's claim of "honesty and fair dealing" was not a representation of fact on which a claim of actual or constructive fraud could be based.

What happens if the clerk refuses to certify the record on appeal

In Ford v. Com., the Court of Appeals in an unpublished opinion by Senior Judge Clements, joined by Judges Frank and Beales, addressed the appellant's appellate issues arising out of the Circuit Court clerk's refusal to certify the record. The clerk sent the record to the Court of Appeals but with a disclaimer that she did not know whether the documents that she sent were accurate and complete. The appellant claimed that because the clerk could not certify the record, he was denied due process, and therefore the case should be retried or dismissed. The Court rejected the appellant's claims, because he made no attempt in the trial court or the court of appeals to have the problems with the record corrected, noting that the Circuit Court had jurisdiction to fix problems with the record up until the time when the appeal was docketed in the Court of Appeals. The Court also noted somewhat ominously in a footnote that "any future failure to certify the record on the basis that the clerk did not maintain the record could result in contempt proceedings against the clerk," citing Va. Code 17.1-242 as amended in 2014 and a Virginia Supreme Court case from 1780, Com. v. Beckley.

A decision on class certification in the CNX and EQT royalty cases

The long-running litigation in the W.D. Va. over coalbed methane royalties has been on hold since the oral argument in May before the Fourth Circuit on the appeal of Judge Jones's orders certifying the cases into five class actions. Yesterday in EQT v. Adair, the Fourth Circuit, in an opinion by Judge Diaz, joined by Judges Wilkinson and Keenan, reversed the District Court's rulings, indicating that additional matters need to be addressed before the requirements for class certification can be met.

With respect to the classes where the issue was the ownership of the coalbed methane, the appeals court held that the District Court did not address in sufficient detail the difficulties of figuring out who are the members of the class, when "numerous heirship, intestacy, and title defect issues plague many of the potential class members’claims to the gas estate." I can see how this is a problem, having wrestled with essentially this very task in miniature for a couple of years. The heirs are spread out, their wills were not always written with these royalties in mind, many of them died intestate, some of them are under-aged, some of them are incommunicado, every family has its own story. On the other hand, the gas companies are regularly gathering information about who owns what - they usually know what they are missing.

More interestingly, the appeals court ruled that the District Court has to rule in advance of class certification on the big legal issue in the case, which is whether the Virginia Supreme Court's decision in the Harrison-Wyatt case resolves the ownership of coalbed methane in all cases or even many cases where there is a split mineral estate. This is good news or bad news for the members of the class - if the District Court rules that there is a single answer for all the non-coal owners, then all that is left is proving who they are. If the Court rules that there is not a single answer, then there will be no class action and the non-coal owners are left to try to litigate or deal with the coal owners over the meaning of their respective deeds, which has resulted in some easy money for the coal owners in some cases. In other cases, the coal owners have not claimed to own the coalbed methane. The opinion seems to suggest that a single answer is unlikely, unless the classes are somewhat redefined and narrowed. The panel suggested that "Harrison-Wyatt may provide a common answer to the ownership question for a class of gas estate owners whose severance deeds convey coal and only coal" and that "the plaintiffs may be able to identify a finite number of variations in deed language, such that the ownership question is answerable on a subclass basis." The District Court did not attempt to figure out how many deeds are like other deeds. Similarly, the appeals court suggested that there needed to be more detailed analysis of the language pertaining to royalties in the different leases, in the classes involving leased interests, such that for example the commonality requirement would be satisfied for landowners who all signed the same standard form of lease from CNX.

Finally, the appeals court concluded that the District Court has erred in certifying a class on the issue of the underpayment of royalties, without getting farther into the merits of what if anything the gas companies were doing that affected the payment of royalties. The District Court needed to focus more on whether common practices in calculating royalties were the cause of invalid payments, and not merely the nature and existence of common practices.

Finally, the appeals court required the District Court to look harder at the question of whether class treatment in federal court in the best way to proceed, while acknowledging that "collective action may offer the only realistic opportunity to recover" for the many individuals with small claims that would not support collection efforts outside of a group, because of legal fees.

The opinion concludes: "We recognize that there are numerous CBM owners in Virginia  who haven’t received a penny of CBM royalties and others who may have gotten less than their due.  We are not unsympathetic to their plight. But sympathy alone cannot justify certification under Rule
23. We therefore vacate the district court’s grant of the plaintiffs’ motions for class certification, and remand the case for further proceedings consistent with this opinion."

The next Chief Justice

I read this morning that Justice Lemons has been elected to succeed Chief Justice Kinser as the next Chief Justice of the Virginia Supreme Court. He would be the first former member of the Virginia Court of Appeals to serve as the Chief Justice - and possibly the first former judge of the Circuit Court for the City of Richmond to serve as the Chief Justice (he would know). I have heard him speak many times, including mostly recently at a seminar in Charlottesville this summer, and he is a very articulate spokesman for the Rule of Law and the legal system in Virginia.

On the late Judge Turk

I enjoyed my dealings with Judge Turk of the W.D. Va., including a couple of jury trials and a bunch of hearings, and seeing him at the courthouse many times and a few times at the judicial conference.

Years ago I represented an older woman in a case before Judge Turk. She was a super lady, somehow referred to me by the NAACP. The lawyer on the other side was from D.C. The security officer asked if I wanted the hearing in the courtroom. I tried not to laugh and said no, so we all went back into the library, gathered around a single table - my client, her daughter, son-in-law, and grandchild, the judge, and opposing counsel. Baby Girl his little dog was there. It was more like a prayer meeting than a summary judgment hearing, with a few amens from the congregation. The judge talked to everybody - including the little girl - about everything, then declared the case needed to be settled and got the magistrate judge on the phone and set the date for a settlement conference on the spot, and told the D.C. lawyer to offer something. The D.C. lawyer was a bit non-plussed. The gist was that Judge Turk thought we had no case but wanted us not to go away empty-handed - even if all we got was some kind words from him.

Roy Wolfe, the former magistrate, told me that there were no rules in the Western District other than Judge Turk's hearsay rule, which was "I'll let it in for what it's worth." A few years later, at the first trial I had before Judge Turk, I impeached the plaintiff's expert pretty well I thought, to the point I asked Judge Turk to rule that his opinions were not even admissible. The judge said no, he would let it in for what it's worth, with an inflection that suggested it was worth nothing. It was all I could do not to laugh.

Judge Turk loved juries. He figured that they would get it right, and if they didn't he could fix it. Judge Williams used to tell the story that Judge Turk was the only judge in America to ever try an ERISA case to the jury. At the memorial service for Judge Williams, I told the story of the juror who called me after a trial, which scared me to death. When we went in for post-trial motions, the first thing the judge said was "fellas, it's good to see ya, now tell me, what have you heard about what the jury was thinking when they decided this case?" Again I tried not to laugh.

One of the security guys in Abingdon told me a story once about the case where Judge Turk did not shake the criminal defendant's hand. The defendant was in court for violating his house arrest. The judge was unconvinced by his excuses. He was a restaurant owner. One of his character witnesses testified how his goal in life was to own a restaurant, and how much the defendant had helped him toward that goal. "Stick around," Judge Turk said. "There's going to be a restaurant up for sale here in just a few minutes." I don't know if that story is true but if not it ought to be.

On the upcoming retirement of Chief Justice Kinser

I have been around Chief Justice Cynthia Kinser from time to time the whole time I have been a lawyer. Kurt Pomrenke, now a judge himself, used to tell a story about going to argue against her in the Fourth Circuit and she had her children with her, and all the judges were smiling at the children, and he felt like he was going up against motherhood and apple pie. When she became the Magistrate Judge, I remember her saying that she wasn't able to greet the lawyers with stories like Judge Williams did, because she didn't know that many stories, but in time she came to know a few. The funniest story I ever heard her tell of her days on the Virginia Supreme Court was the one where the hapless lawyer kept calling her "Justice Lacy," until Chief Justice Carrico had enough and explained that the woman on the bench was instead Justice Kinser, whereupon the lawyer said, "oh! you've changed your hair." When she first got on the Court, I rooted for her to do well and later I was pleased that she had done well, a gracious person but also a strong voice for common sense and the rule of law.

Virginia CLE in Bristol

The big boss of Virginia CLE, Ray White, is bringing the trial practice seminar from his years of teaching for NITA to Bristol on July 24 at the Holiday Inn at Exit 7. Check it out here.

Come see us at the Sweet 300

I had a call last week from a lady who agreed to send me a document if I told her the address, and she wrote down exactly what I said. The envelope reads: "110 Piedmont Avenue, Sweet 300." Life is good upstairs in the Sweet 300.

On the news that Judge Wilson will soon retire

The Roanoke Times reports here that Judge Samuel G. Wilson of the W.D. Va. will be retiring August 1, 2014. I have written here not too long ago about trying one last case before him in Big Stone Gap. Before that trial, I saw him at the Judicial Conference in 2011 and told him I was getting married and taking on a bunch of girls. "It's a good thing you ran into me," he said, and proceeded to give me his advice on dealing with teenage daughters. When I saw him again in 2013 I told him his advice had been timely and accurate. He laughed. I remembered him talking about a daughter in 1995, when we were waiting for a jury and telling stories to kill time during a trial in Big Stone Gap, when John Brownlee was one of his law clerks - and now I could relate, completely. Good luck, and thanks.

How to make Yelp come across

In Yelp, Inc., v. Hadeed Carpet Cleaning, the Court of Appeals in an opinion by Judge Petty, joined by Judge Frank with Senior Judge Haley dissenting in part, upheld a civil contempt finding against online review site Yelp for failure to disclosure identifying information of some reviewers. The opinion is pretty free-ranging, with a lengthy Shakespeare quote, lots of legislative history, discussion of case law from other states - completely at odds with the Virginia Supreme Court style from before 2000 that I described in the prior post. In the dissent, Judge Haley gets to the nub of what strikes me as the peculiarity of the case - the failure to state a cause of action. You can't sue a bunch of John Does for falsely claiming to be customers posting negative reviews and then go looking for evidence, the John Does if anyone of them were actual named persons would have had the case dismissed before the subpoena was enforced. Even so, this opinion is chock full of information about how to proceed to get information of this kind.

Blackstone and you

I read with interest Judge Kelsey's article in the current VBA Journal about the current relevance of the common law of England, in which he addresses and contradicts various criticisms of the application of the English common law as precedent in Virginia, and cites a list of recent cases in which the common law was prominent in the bases for decision.

The list of recent cases included Wyatt v. McDermott and Jenkins v. Mehra, among others. I recall reading these when they came out and thinking how strange that they turned to such a significant degree on the common law when they seemed to be in areas of the law where the legislature has acted in considerable detail. In Wyatt, the Supreme Court concluded that there was a common law writ for interference with the relationship between parent and child, or close enough, while recognizing that there are many differences in the law as it is today. To me, the many differences swallow up the similarities, and the incorporation of medieval concepts of the status of children is and was unwarranted, and the dissenters seemed to have the better view. In Jenkins, the Court found that the legislature had not spoken clearly enough to overrule the common law on a point of appellate procedure, of all things. The Constitution of Virginia gives the legislature the exclusive power to define appellate jurisdiction, there is no appellate jurisdiction except by way of legislative enactment, and so it seems a rare thing that the legislature is limited by the common law.

In Jenkins and in Wyatt, the Court referenced opinions from other states in explaining the common law rule. For a long time, I thought the Virginia Supreme Court was particular hostile to authority from other states, or even more so from the federal courts. I often suspected that part of the reason for this was the view that there is a fish in the sea for every taste, when searching through case law - there are conflicting precedents within and among the several states. The federal courts often get it wrong in guessing what is the law of Virginia, much less what the Virginia Supreme Court will think was the law of England in 1607. Certain justices I can picture in my mind's eyes seemed to relish the idea that only way to get a case right was to look to the opinions of the Virginia Supreme Court.

At least, with the internet, it is surely easier now than it was in 1800 to research the common law. You can read Blackstone's Commentaries on your mobile device for free. There might even be an app for that.

For those who find these topics interesting, there is a session titled "Democracy of the Dead: The Relevance of Legal History in Modern Litigation” on the agenda for the winter meeting of The Virginia Bar Association in Williamsburg later this month.