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.
Friday, February 27, 2009
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).
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.
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."
"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.
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.
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.
Thursday, February 19, 2009
Two new judges for the 29th
Daniel Gilbert reports here that Mike Bush and Richard Patterson will get district judgeships in the Russell, Buchanan, Tazewell, Dickinson district.
I never heard of Richard Patterson but that's ok, he probably never heard of me.
The Gilbert article includes some additional gratuitous John Farmer bashing from Senator Puckett, which seems lame.
I never heard of Richard Patterson but that's ok, he probably never heard of me.
The Gilbert article includes some additional gratuitous John Farmer bashing from Senator Puckett, which seems lame.
Tuesday, February 10, 2009
On being the swami
Saturday, January 31, 2009
From NYT to cvilleweekly
This post laments the subpoena served on my good friend Waldo Jaquith by my good friend James Creekmore in connection with some case, and here is the Motion to Quash filed by Waldo himself, and here an outline by Conrad Shumadine from Norfolk says this on the state of the law of a reporter's privilege in Virginia:
"Courts have adopted a three-part test to determine when the qualified privilege attaches. The test balances (1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information. Clemente v. Clemente, 56 Va. Cir. 530 (Arlington 2001); Philip Morris Co. v. American Broadcasting Co., 36 Va. Cir. 1, 18 (Richmond 1994); Hatfill v. New York Times Co., 459 F. Supp. 2d 462, 466-67 (E.D. Va. 2006); Hatfill v. New York Times Co., No. CIV.A. 1:04CV807 CMHL, 2006 WL 4500031, at **3-4 (E.D. Va. Nov. 3, 2006)."
"Courts have adopted a three-part test to determine when the qualified privilege attaches. The test balances (1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information. Clemente v. Clemente, 56 Va. Cir. 530 (Arlington 2001); Philip Morris Co. v. American Broadcasting Co., 36 Va. Cir. 1, 18 (Richmond 1994); Hatfill v. New York Times Co., 459 F. Supp. 2d 462, 466-67 (E.D. Va. 2006); Hatfill v. New York Times Co., No. CIV.A. 1:04CV807 CMHL, 2006 WL 4500031, at **3-4 (E.D. Va. Nov. 3, 2006)."
On bowling
I think the last time Heath Miller's team played Larry Fitzgerald's team in a "bowl," Heath had a touchdown and his team won while Larry was shut down, and Judge Chad Dotson, Roy Jessee, Mitch Mobley, Will Kimbler, and I were there, for the 2003 Continental Tire Bowl between U.Va. and Pitt.
Sunday, January 25, 2009
On the weekend
This weekend in Williamsburg had plenty of highs and lows, the lows relating mainly to the fact that my term on the board of governors of The Virginia Bar Association is ended and I am now official a has-been.
The most powerful part of the weekend by far was the presentation on understanding veterans, with the images and personal accounts from the people who have been over there, and those who have treated the ones who have been over there.
Also, the real estate litigation lecture by some guy from Newport News was fascinating - that outline will get saved to the archives and e-mailed to everyone in the firm (wait, can I do that?) - it was one of those presentations that was so full of useful information that it kind of wore me out.
And, there was the roast of Mike Pace on Saturday night, but they say what happens at Providence Hall, stays at Providence Hall.
The most powerful part of the weekend by far was the presentation on understanding veterans, with the images and personal accounts from the people who have been over there, and those who have treated the ones who have been over there.
Also, the real estate litigation lecture by some guy from Newport News was fascinating - that outline will get saved to the archives and e-mailed to everyone in the firm (wait, can I do that?) - it was one of those presentations that was so full of useful information that it kind of wore me out.
And, there was the roast of Mike Pace on Saturday night, but they say what happens at Providence Hall, stays at Providence Hall.
Friday, January 23, 2009
Our Fair City listed in the World's Top Seven
This article lists Bristol, with this entry -
"Bristol, Virginia, USA. As a first time honoree, Bristol made an impact after taking on incumbent telcos in court and the state legislature to win the right to deploy a fiber network called OptiNet. Conceived as a backbone serving government and schools, OptiNet has grown into a fiber-to-the-premises network for business and residents in Bristol and four neighboring counties. It has also attracted more than $50 million in private investment, including the region's first technology employers, and improved rural education and healthcare by connecting local providers to leading institutions."
"Bristol, Virginia, USA. As a first time honoree, Bristol made an impact after taking on incumbent telcos in court and the state legislature to win the right to deploy a fiber network called OptiNet. Conceived as a backbone serving government and schools, OptiNet has grown into a fiber-to-the-premises network for business and residents in Bristol and four neighboring counties. It has also attracted more than $50 million in private investment, including the region's first technology employers, and improved rural education and healthcare by connecting local providers to leading institutions."
Judge Wilkinson asks President Obama to go easy on the Fourth Circuit
I read this commentary by Judge Wilkinson, which may be the least comprehensible thing I ever read that he wrote. Who can tell me what he is saying?
Wednesday, January 21, 2009
For qualified immunity fans
Today, the Supreme Court zigged in another direction on an issue where it has both zigged and zagged, and that is the order of answering the two questions that make up the question of qualified immunity. One question is, does the plaintiff have a claim under the Constitution? The other question is, did the defendant violate the clearly-established constitutional rights of the plaintiff, of which a reasonable government official in his or her position should have known?
If the courts have to answer the merits question first, then a bunch of advisory opinions about constitutional issues get generated. If the courts can answer the "clearly-established" question first, then the law never gets any clearer, and more defendants win.
The conclusion in Pearson v. Callahan is that the courts can go whichever way works best.
You can click here to see some of what I have written in the past on qualified immunity - one of my favorite topics, and the subject of an article I wrote for the VADA some years ago.
If the courts have to answer the merits question first, then a bunch of advisory opinions about constitutional issues get generated. If the courts can answer the "clearly-established" question first, then the law never gets any clearer, and more defendants win.
The conclusion in Pearson v. Callahan is that the courts can go whichever way works best.
You can click here to see some of what I have written in the past on qualified immunity - one of my favorite topics, and the subject of an article I wrote for the VADA some years ago.
Tuesday, January 20, 2009
Monday, January 19, 2009
Well done, guys
Lucas Hobbs and Jim Elliott from our firm were counsel for the successful appellant in the case of Virginia Highlands Airport Authority v. Singleton Auto Parts, where Justice Millette described the issue as this:
"We are presented with the novel issue whether the easement constitutes a taking of airspace requiring compensation when the property was already subject to preexisting restrictions on development imposed by the ordinance."
"We are presented with the novel issue whether the easement constitutes a taking of airspace requiring compensation when the property was already subject to preexisting restrictions on development imposed by the ordinance."
Wednesday, January 14, 2009
Civil litigation in federal court increased in 2008
Worth reading
From December, the Lynchburg paper reports on the retirement of Circuit Court Judge Samuel Johnston.
In Buckingham County, someone has sued the Hook for defamation.
In Tazewell County, Judge Vanover upheld the immunity of the County and the School Board in a case over the death of a student.
The long-running Fairfax County case over Episcopal church property is described again here.
The Norfolk paper investigates here why it is that Amazon.com does not collect Virginia sales tax.
In Buckingham County, someone has sued the Hook for defamation.
In Tazewell County, Judge Vanover upheld the immunity of the County and the School Board in a case over the death of a student.
The long-running Fairfax County case over Episcopal church property is described again here.
The Norfolk paper investigates here why it is that Amazon.com does not collect Virginia sales tax.
On Fourth Circuit vacancies
Jonathan Adler says here the Democrats should do like was done with Judge Gregory and renominate and confirm Peter Keisler to the D.C. Circuit, citing this article by Quin Hillyer, which is also cited in this post on the Committee for Justice Blog.
Here the NRO editors suggest the same idea as to any of Bush nominees to the Fourth Circuit, including Judge Robert Conrad, Rod Rosenstein, Steve Matthews, and Judge Glen Conrad of the W.D. Va.
Somewhat more traditionally, posts here and here speculate on North Carolina Democrats who might be appointed to the long-vacant N.C. seats on the Fourth Circuit.
Here the NRO editors suggest the same idea as to any of Bush nominees to the Fourth Circuit, including Judge Robert Conrad, Rod Rosenstein, Steve Matthews, and Judge Glen Conrad of the W.D. Va.
Somewhat more traditionally, posts here and here speculate on North Carolina Democrats who might be appointed to the long-vacant N.C. seats on the Fourth Circuit.
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