DeNovo: A Virginia Appellate Law Blog

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The Fourth Circuit is notoriously stingy when it comes to granting oral argument. Last year (admittedly an odd year), CA4 terminated 696 private civil cases. It terminated 86 of them, or 12%, after oral argument. It reversed in 36 of them, or just over 5%. Steve Klepper has a nice essay from 2014 about all of this over at the Maryland Appellate Blog. He argues that given modern Fourth-Circuit practice, the statement concerning oral argument under Local Rule 34(a) is the most important part of a brief. Steve urges appellants and appellees alike to include a robust statement about the need for oral argument, drawing on the criteria for publishing opinions under Local Rule 36(a):

Opinions delivered by the Court will be published only if the opinion satisfies one or more of the standards for publication:
i. It establishes, alters, modifies, clarifies, or explains a rule of law within this Circuit; or
ii. It involves a legal issue of continuing public interest; or
iii. It criticizes existing law; or
iv. It contains a historical review of a legal rule that is not duplicative; or
v. It resolves a conflict between panels of this Court, or creates a conflict with a decision in another circuit.

This is great advice! I’ve cribbed it before. But why are we going back to the well now?

Last week, the Supreme Court of Virginia answered one of the great open questions in Virginia tort law when it clarified the availability of attorney’s fees under Prospect Development Co. v. Bershader, 258 Va. 75, 92 (1999).

A little background: Virginia follows the American Rule, which provides that without a statute or contract to the contrary, the prevailing party generally cannot recover attorney’s fees from the losing party. Historically, Virginia has recognized some exceptions, like false-imprisonment cases or situations “where a breach of contract has forced the plaintiff to maintain or defend a suit with a third person.” In 1999, the Supreme Court of Virginia added to this list with Bershader, holding that “in a fraud suit, a chancellor, in the exercise of his discretion, may award attorney’s fees to a defrauded party. When deciding whether to award attorney’s fees, the chancellor must consider the circumstances surrounding the fraudulent acts and the nature of the relief granted to the defrauded party.” Bershader‘s facts were pretty bad, as the chancellor found that the defendants had “engaged in callous, deliberate, deceitful acts that the chancellor described as a pattern of misconduct” that misled the plaintiffs and others. The chancellor felt that if he did not award attorney’s fees, the plaintiffs would have won a hollow victory.

That’s all fine as far as it goes, but it left open at least two questions: (1) Are attorney’s fees available only in equity, and (2) are they available only when the defendant has engaged in egregious misconduct?

As I’m working my way through my Good Will Hunting library-card master’s program,* I had the chance to revisit Crito. This is a great dialogue! It’s only about 15 pages long. Socrates is in prison awaiting execution. His friend Crito shows up and tries to talk him into escaping into exile. Socrates is having none of it.

And the leads to this amazing exchange:

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:

SCOVA recently granted an appeal in Norton v. Board of Supervisors of Fairfax CountyRecord 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).

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: