Winning Your Appeal After Losing It: Petitions for Rehearing · 2012-03-25 · Appellate Section Lunch Winning Your Appeal After Losing It: Petitions for Rehearing Roger T. Creager,

                    Appellate Section Lunch

Winning Your Appeal After Losing It: Petitions for Rehearing

Roger T. Creager, The Creager Law Firm, PLLC, Richmond, Moderator The Hon. Walter S. Felton, Court of Appeals of Virginia, Williamsburg L. Steve Emmert, Sykes, Bourdon, Ahern & Levy, PC, Virginia Beach

Cory Richard Ford, Barbara S. Williams, PC, Leesburg Jeffrey M. Summers, The Law Office of Jeffrey M. Summers, PLLC,

Richmond

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Appellate Practice Section Luncheon VTLA Convention--The Greenbrier

Friday, March 30, 2012 at 12:30 to 1:30 pm

“Winning Your Appeal After Losing It – Petitions for Rehearing”

[And Some Pointers on Winning the First Time]

Moderator: Roger T. Creager, Chair, VTLA Appellate Section

The Creager Law Firm, PLLC, Richmond Panelists: The Honorable Walter S. Felton, Jr., Chief Judge of the Virginia

Court of Appeals Cory R. Ford, Barbara S. Williams, PC, Leesburg L. Steven Emmert, Sykes, Bourdon, Ahern & Levy, PC,

Virginia Beach Jeffrey M. Summers, The Law Office of Jeffrey M. Summers,

PLLC, Richmond

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Petitions for Rehearing

1. Petition for Rehearing After Refusal of Petition for Appeal.

Supreme Court-- Rule 5:20. Petition for Rehearing After Refusal of Petition for Appeal or Disposition of an Original Jurisdiction Petition.1

(a) Petition for Appeal. When a petition for appeal is either refused or dismissed, the clerk of this Court shall mail a copy of the order denying the appeal to counsel for the appellant and counsel for the appellee. Counsel for the appellant may, within 14 days after the date of this order, file in the office of the clerk of this Court a petition for rehearing. Oral argument on the petition for rehearing will not be allowed. No responsive brief shall be filed unless requested by this Court. The clerk of this Court shall notify counsel for the appellant and counsel for the appellee of the action taken by this Court on the petition for rehearing.

(b) Original Jurisdiction Petition. When a petition filed pursuant to this

Court’s original jurisdiction (habeas corpus, mandamus, prohibition, or actual innocence) is decided, the clerk of this Court shall mail a copy of the order to counsel for the petitioner and counsel for the respondent. Counsel for either party may, within 30 days after the date of this order, file in the office of the clerk of this Court a petition for rehearing. Oral argument on the petition for rehearing will not be allowed. No responsive brief shall be filed unless requested by this Court. The clerk of this Court shall notify counsel for the petitioner and counsel for the respondent of the action taken by this Court on the petition for rehearing.

(c) When Electronic Filing is Required. Except for petitions for rehearing

filed by pro se prisoners or with leave of this Court, a petition for rehearing shall be filed as an Adobe Acrobat Portable Document Format (PDF) document attached to an e-mail in compliance with Rule 5:20A. Petitions filed by pro se prisoners or with leave of this Court shall be filed in compliance with this Rule.

(d) Length and Number of Copies. The petition for rehearing shall not exceed

the longer of 15 pages or 2,625 words in length. The petition shall state that a copy has been mailed or delivered to counsel for the appellee. Ten copies shall be filed.

(e) Attorney’s Fees. Upon denial of a petition for appeal and any petition for

rehearing, any appellee who has received attorney’s fees and costs in the circuit court may make application in the circuit court for additional fees and costs incurred on appeal pursuant to Rule 1:1A.

Last amended by Order dated March 1, 2011; effective May 2, 2011.

1 All Rule provisions are taken from the Rules of Supreme Court of Virginia, as published on the Court’s website as of March 9, 2012. All emphasis shown in the Rule provisions is added.

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Supreme Court – Rule 5:20A. Denial of Appeal; Petition for Rehearing.

(a) Except for petitions for rehearing filed by pro se prisoners, or with leave of this Court, the petition shall be filed as an Adobe Acrobat Portable Document Format (PDF) document attached to an e-mail addressed to [email protected] and will be timely filed if received by the clerk's office on or before 11:59 p.m. on the date due.

(b) The petition must be formatted to print on a page 8 1/2 x 11 inches, must

be in 14-point font or larger, must be double-spaced, must comply with Rule 5:6, and must not exceed the longer of 10 pages or a word count of 1,750 words. The petition must include a certificate of service to counsel for the appellee and the certificate shall specify the manner of service and the date of service. The petition must also include a certificate of compliance with the word count limit. The petition will be considered filed on the date and time that it is received by [email protected]. If the petition does not meet the requirements of this rule as to format, the clerk shall so notify counsel and provide a specific amount of time for a corrected copy of the petition to be filed. A person who files a document electronically shall have the same responsibility as a person filing a document in paper form for ensuring that the document is properly filed, complete, and readable. However, if technical problems at the Supreme Court result in a failure to timely receive the electronically filed petition for rehearing, counsel shall provide to the clerk of this Court on the next business day all documentation which exists demonstrating the attempt to file the petition by e-mail, any delivery failure notice received in response to the attempt, and a copy of the petition for rehearing.

(c) The e-mail message to which the petition is attached shall recite in the

subject line the style of the case and the Supreme Court record number. The e-mail message shall contain a paragraph stating that a petition for rehearing is being filed, the style of the case, the Supreme Court record number, the name and Virginia State Bar number of counsel filing the petition, as well as the law firm name, mailing address, telephone number, facsimile number (if any), and e-mail address (if any) of counsel. The message shall also state whether a copy of the petition has been served by e-mail or another means on opposing counsel and the date of such service. If opposing counsel has an e-mail address, that address shall also be included. Upon receipt of the petition for rehearing in the e-mail box of the clerk's office, an acknowledgment will automatically be forwarded to counsel seeking the rehearing.

(d) The clerk of this Court shall notify counsel for both parties of the action taken

by this Court on the petition for rehearing via e-mail, if e-mail addresses for both counsel have been provided, or via U.S. Mail to any counsel or party who has not provided an email address. Last amended by Order dated March 1, 2011; effective May 2, 2011.

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Court of Appeals-- Rule 5A:15. Denial of Petition for Appeal; Petition for Rehearing.

(a) Denial by a Single Judge. When a petition for appeal is denied by a Judge of this Court pursuant to Code § 17.1-407(C), the clerk of this Court shall send a copy of the order denying the petition to counsel for the appellant and counsel for the appellee. Pro se prisoners and those with leave of this Court to proceed under this Rule may demand consideration of the petition by three-judge panel pursuant to Code § 17.1-407(D). The demand shall be filed in writing. Four copies must be filed with the clerk of this Court within fourteen days after the date of the order by which the petition was denied. The demand, which shall include a statement identifying how the one-judge order is in error, shall not exceed 350 words. Oral argument shall not be permitted on consideration of a petition by a three-judge panel unless oral argument was requested in the petition for appeal pursuant to Rule 5A:12(c). A petitioner who has previously requested oral argument may waive oral argument by so stating in the demand for review. All petitioners other than pro se prisoners and those with leave of this Court to proceed under this Rule must follow the provisions of Rule 5A:15A(a) when filing a demand for three-judge review pursuant to Code § 17.1-407(D).

(b) Denial by a Three-Judge Panel. When a petition for appeal is denied by a three judge panel, the clerk of this Court shall send a copy of the order or memorandum opinion denying the appeal to counsel for the appellant and counsel for the appellee. Pro se prisoners and those with leave of this Court to proceed under this Rule may, within 14 days after the date of this notice, file a petition for rehearing in writing in the office of the clerk of this Court unless the denial was by a three-Judge panel after its consideration of a petition denied by a Judge of this Court pursuant to Code § 17.1-407. The petition for rehearing shall not exceed 5,300 words in length. The petition shall state that a copy has been mailed or delivered to counsel for the appellee. Four copies shall be filed. Oral argument on the petition for rehearing will not be allowed. The petition for rehearing shall be referred to the panel of this Court that considered the petition for appeal. No responsive brief shall be filed unless requested by this Court. The clerk of this Court shall notify counsel for the appellant and counsel for the appellee of the action taken by this Court on the petition for rehearing. All petitioners other than pro se prisoners and those with leave of this Court to proceed under this Rule must follow the provisions of Rule 5A:15A(b) when filing a petition for a rehearing of an order of a three-judge panel denying a petition for appeal. Promulgated by Order dated Friday, April 30, 2010; effective July 1, 2010.

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Court of Appeals-- Rule 5A:15A. Denial of Petition for Appeal; Petition for Rehearing Filed by Electronic Means.

(a) Proceedings After Denial of Petition by Single Judge. (1) When a petition for appeal is denied by a Judge of this Court pursuant to Code

§ 17.1-407(C), the clerk of this Court shall send a copy of the order denying the petition to counsel for the appellant and counsel for the appellee. The appellant may demand consideration of the petition by three-judge panel pursuant to Code § 17.1-407(D). Demands for three-judge review filed by pro se prisoners or by those with leave of this Court to proceed under Rule 5A:15(a) shall be filed in accordance with the provisions of Rule 5A:15(a).

(2) Except for demands for three-judge review filed by pro se prisoners or by those with leave of this Court to proceed under Rule 5A:15(a), the demand shall be filed as a single Adobe Acrobat Portable Document Format (PDF) document attached to an e-mail addressed to [email protected] and will be timely filed if received by the clerk's office at or before 11:59 p.m. on the fourteenth day after the date of the order by which the petition was denied.

(3) The demand, which shall include a statement identifying how the one-judge order is in error, must be formatted to print on a page 8 1/2 x 11 inches, must be in 12-point font or larger, must be double-spaced, and must not exceed 350 words. The demand must include a certificate of service to opposing counsel and the certificate shall specify the manner of service and the date of service. If opposing counsel has an e-mail address, service on opposing counsel shall be by electronic means and such address shall be included in the certificate of service. The demand must also include a certificate of compliance with the word count limit. The demand will be considered filed on the date and time that it is received by [email protected]. If the demand does not meet the requirements of this rule as to format, the clerk of this Court shall so notify counsel and provide a specific amount of time for a corrected copy of the demand to be filed. A person who files a document electronically shall have the same responsibility as a person filing a document in paper form for ensuring that the document is properly filed, complete, and readable. However, if technical problems at the Court of Appeals result in a failure to timely receive the electronically filed demand for three-judge review, counsel shall provide to the clerk of this Court on the next business day all documentation which exists demonstrating the attempt to file the demand by e-mail, any delivery failure notice received in response to the attempt, and a copy of the demand for three-judge review.

(4) The e-mail message to which the demand is attached shall recite in the subject line the style of the case and the Court of Appeals record number. The body of the email message shall contain a paragraph stating that a demand for three-judge review is being filed, the style of the case, the Court of Appeals record number, the name and Virginia State Bar number of counsel filing the demand, as well as the law firm name, mailing address, telephone number, facsimile number (if any), and e-mail address (if any) of counsel filing the demand. The message shall also state whether a copy of the demand has been served by e-mail or another means on opposing counsel and the date

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of such service. If the demand has been served on opposing counsel by e-mail, the e-mail address for opposing counsel shall also be included. Upon receipt of the demand for three-judge review in the e-mail box of the clerk's office, an acknowledgment will be forwarded by e-mail to counsel seeking the rehearing.

(5) Oral argument shall not be permitted on consideration of a petition by a three- judge panel unless oral argument was requested in the petition for appeal pursuant to Rule 5A:12(c). An appellant who has previously requested oral argument may waive oral argument by so stating in the demand for review.

(b) Proceedings After Denial of Petition by Three-Judge Panel. (1) When a petition for appeal is denied by a three-judge panel, the clerk of this

Court shall send a copy of the order or memorandum opinion denying the appeal to counsel for the appellant and counsel for the appellee. Counsel for the appellant may file a petition for rehearing in the office of the clerk of this Court unless the denial was by a three-judge panel after its consideration of a petition denied by a Judge of this Court pursuant to Code § 17.1-407. Petitions for rehearing filed by pro se prisoners or by those with leave of court to proceed under Rule 5A:15(b) shall be in accordance with the provisions of Rule 5A:15(b).

(2) Except for petitions for rehearing filed by pro se prisoners or by those with leave of this Court to proceed under Rule 5A:15(b), the petition shall be filed as a single PDF document attached to an email addressed to [email protected] and will be timely filed if received by the clerk's office at or before 11:59 p.m. on the fourteenth day after the date of the order by which the petition was denied.

(3) The petition must be formatted to print on a page 8 1/2 x 11 inches, must be in 12-point font or larger, must be double-spaced, and must not exceed 5,300 words. The petition must include a certificate of service to opposing counsel and the certificate shall specify the manner of service and the date of service. If opposing counsel has an e-mail address, service on opposing counsel shall be by electronic means and such address shall be included in the certificate of service. The petition must also include a certificate of compliance with the word count limit. Petitions filed by e-mail will be considered filed on the date and time that it is received by [email protected]. If the petition does not meet the requirements of this rule as to format, the clerk of this Court shall so notify counsel and provide a specific amount of time for a corrected copy of the petition to be filed. A person who files a document electronically shall have the same responsibility as a person filing a document in paper form for ensuring that the document is properly filed, complete, and readable. However, if technical problems at the Court of Appeals result in a failure to timely receive the electronically filed petition for rehearing, counsel shall provide to the clerk of this Court on the next business day all documentation which exists demonstrating the attempt to file the petition by e-mail, any delivery failure notice received in response to the attempt, and a copy of the petition for rehearing. (4) The e-mail message to which the petition is attached shall recite in the subject line the style of the case and the Court of Appeals record number. The body of the email message shall contain a paragraph stating that a petition for rehearing is being filed, the style of the case, the Court of Appeals record number, the name and Virginia State Bar number of counsel filing the petition, as well as the law firm name, mailing

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address, telephone number, facsimile number (if any), and e-mail address (if any) of counsel filing the petition. The message shall also state whether a copy of the petition has been served by e-mail or another means on opposing counsel and the date of such service. If the petition has been served on opposing counsel by e-mail, the e-mail address for opposing counsel shall also be included. Upon receipt of the petition for rehearing in the e-mail box of the clerk's office, an acknowledgment will be forwarded by e-mail to counsel seeking the rehearing.

(5) Oral argument on the petition for rehearing will not be allowed. The petition for rehearing shall be referred to the panel of this Court that considered the petition for appeal. No responsive brief shall be filed unless requested by this Court. The clerk of this Court shall notify counsel for the appellant and counsel for the appellee of the action taken by the Court of Appeals on the petition for rehearing via e-mail, if e-mail addresses for both counsel have been provided, or via U.S. Mail to any counsel or party who has not provided an e-mail address.

Promulgated by Order dated Friday, April 30, 2010; effective July 1, 2010.

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2. Petition for Rehearing After Decision on Full Appeal.

Supreme Court -- Rule 5:37. Petition for Rehearing After Consideration by the Full Court.

(a) Scope. This Rule does not apply to the refusal or dismissal of a petition for appeal, or the refusal or dismissal of an original jurisdiction petition. See Rules 5:20 and 5:20A.

(b) Notice of Intent. A party intending to apply for a rehearing shall file

written notice with the clerk of this Court within 10 days after the date of the order or opinion of this Court deciding the case. If such notice is given, the clerk of this Court shall withhold certification of the mandate until time for filing the petition for rehearing has expired and, if the petition is filed, until it is disposed of.

(c) Requirements for Pro Se Prisoners or By Leave of Court. Unless the rehearing

is abandoned, 20 copies of a petition for rehearing not to exceed the longer of 10 pages or 1,750 words in length shall be thereafter filed in the office of the clerk of this Court and 3 copies delivered or mailed to opposing counsel within 30 days after the date of the order of this Court deciding the case.

(d) Requirements for All Others. (1) Except for petitions filed by pro se prisoners,

or with leave of this Court, the petition for rehearing shall be filed as an Adobe Acrobat Portable Document Format (PDF) document attached to an e-mail addressed to [email protected] and will be timely filed if received by the clerk’s office on or before 11:59 p.m. within 30 days after the date of the order or opinion of this Court deciding the case. The petition must be formatted to print on a page 8 1/2 x 11 inches, must be in 14-point font or larger, must be double-spaced, and must not exceed the longer of 10 pages or 1,750 words. The petition must include a certificate of service to opposing counsel and the certificate shall specify the manner of service and the date of service. The petition must also include a certificate of compliance with the word count limit. The petition will be considered filed on the date and time that it is received by [email protected]. If the petition does not meet the requirements of this rule as to format, the clerk shall so notify counsel and provide a specific amount of time for a corrected copy of the petition to be filed. A person who files a document electronically shall have the same responsibility as a person filing a document in paper form for ensuring that the document is properly filed, complete, and readable. However, if technical problems at this Court result in a failure to timely receive the electronically filed petition for rehearing, counsel shall provide to the clerk of this Court on the next business day all documentation which exists demonstrating the attempt to email the petition, any delivery failure notice received in response to the attempt, and a copy of the petition for rehearing. (2) The e-mail message to which the petition is attached shall recite in the subject line the style of the case and the Supreme Court record number. The e-mail message shall contain a paragraph stating that a petition for rehearing is being filed, the style of the case, the

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Supreme Court record number, the name and Virginia State Bar number of counsel filing the petition, as well as the law firm name, mailing address, telephone number, facsimile number (if any), and e-mail address (if any) of counsel. The message shall also state whether a copy of the petition has been served by e-mail or another means on opposing counsel and the date of such service. If the petition has been served on opposing counsel by e-mail, the e-mail address for opposing counsel shall also be included. Upon receipt of the petition for rehearing in the email box of the clerk’s office, an acknowledgment will automatically be sent to counsel seeking the rehearing.

(e) Grounds for Granting. No petition for rehearing shall be granted unless

one of the Justices who decided the case adversely to the applicant determines that there is good cause for such rehearing. The proceedings upon such rehearing shall be in accordance with Code § 8.01-675.2. [See text below]. No oral argument will be permitted on applications for rehearing.

(f) When a Rehearing is Granted. When a rehearing is granted, the case will be

placed on the privileged docket for oral argument. The petitioner may not file any brief in addition to the petition for rehearing. The respondent may file electronically, in compliance with paragraph (d) of this Rule, a brief in reply that shall not exceed the longer of 15 pages in length or 2,625 words within 21 days after the date of the order granting the rehearing. The respondent will be heard orally whether or not respondent files a brief in reply. The case will be called at the next session of the Court after the expiration of the 21 days unless counsel agree that it be called at a session of the Court commencing at an earlier time and the Court permits the case to be called at an earlier time. Last amended by Order dated March 1, 2011; effective May 2, 2011. Virginia Code Section § 8.01-675.2. Rehearing. The Supreme Court, on the petition of a party, shall rehear and review any case decided by such court if one of the justices who decides the case adversely to the petitioner certifies that in his opinion there is good cause for such rehearing. However, a notice of a petition for rehearing shall be filed as provided by the Rules of Court and the petition for rehearing shall be filed within thirty days after the entry of the judgment with the clerk, who shall note the date of such filing on the order book. The judgment resulting from any such rehearing shall be entered forthwith by the clerk who shall transmit a certified copy thereof to the clerk of the court below, to be entered by him as provided by § 8.01-685.

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Court of Appeals-- Rule 5A:33. Rehearing - On Motion of a Party After Final Disposition of a Case.

(a) Requirements for Pro Se Prisoners and By Leave of Court. Pro se prisoners and those with leave of Court to proceed under this paragraph of the Rule desiring a rehearing of a decision or order of the Court of Appeals finally disposing of a case shall within 14 days following such decision or order, file seven copies of a petition for rehearing with the clerk of the Court of Appeals. The petition for rehearing shall not exceed 5,300 words in length. All petitioners other than pro se prisoners and those with leave of Court to proceed under this paragraph of the Rule must follow the provisions of paragraph (b) of this Rule when filing a petition for rehearing.

(b) Requirements for All Others. Any party, other than pro se prisoners or those with leave of Court to proceed under paragraph (a) of this Rule, desiring a rehearing of a decision or order of the Court of Appeals finally disposing of a case shall, within 14 days following such decision, file a petition for rehearing with the clerk of the Court of Appeals.

(1) The petition shall be filed as a single Adobe Acrobat Portable Document Format (PDF) document attached to an e-mail addressed to [email protected] and will be timely filed if received by the clerk's office at or before 11:59 p.m. on the fourteenth day after the date of the decision or order sought to be reheard. (2) The petition must be formatted to print on a page 8 1/2 x 11 inches, must be in 12-point font or larger, must be double-spaced, and must not exceed 5,300 words. The petition must include a certificate of service to opposing counsel and the certificate shall specify the manner of service and the date of service. If opposing counsel has an e-mail address, service on opposing counsel shall be by electronic means and such address shall be included in the certificate of service. The petition must also include a certificate of compliance with the word count limit. The petition will be considered filed on the date and time that it is received by [email protected]. If the petition does not meet the requirements of this rule as to format, the clerk of the Court of Appeals shall so notify counsel and provide a specific amount of time for a corrected copy of the petition to be filed. A person who files a document electronically shall have the same responsibility as a person filing a document in paper form for ensuring that the document is properly filed, complete, and readable. However, if technical problems at the Court of Appeals result in a failure to timely receive the electronically filed petition for rehearing, counsel shall provide to the clerk of this Court on the next business day all documentation which exists demonstrating the attempt to file e-mail the petition by e-mail, any delivery failure notice received in response to the attempt, and a copy of the petition for rehearing.

(3) The e-mail message to which the petition is attached shall recite in the subject line the style of the case and the Court of Appeals record number. The body of the email message shall contain a paragraph stating that a petition for rehearing is being filed, the style of the case, the Court of Appeals record number, the name and Virginia State Bar number of counsel filing the petition, as well as the law firm name, mailing

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address, telephone number, facsimile number (if any), and e-mail address (if any) of counsel filing the petition. The message shall also state whether a copy of the petition has been served by e-mail or another means on opposing counsel and the date of such service. If the petition has been served on opposing counsel by e-mail, the e-mail address for opposing counsel shall also be included. Upon receipt of the petition for rehearing in the e-mail box of the clerk's office, an acknowledgment will be forwarded by e-mail to counsel filing the petition for rehearing.

(c) Response. No response to a petition for rehearing will be received unless

requested by the Court of Appeals. (d) No Oral Argument. No oral argument on the petition will be permitted. (e) Grounds. No petition for rehearing will be granted unless one of the Judges

who decided the case adversely to the petitioner determines that there is good cause for such rehearing. The clerk of the Court of Appeals shall notify counsel for the appellant and counsel for the appellee of the action taken by the Court of Appeals on the petition for rehearing via e-mail, if e-mail addresses for both counsel have been provided, or via U.S. Mail to any counsel or party who has not provided an e-mail address.

Promulgated by Order dated Friday, April 30, 2010; effective July 1, 2010. Court of Appeals-- Rule 5A:34. Rehearing En Banc After Final Disposition of a Case.

(a) Who May File. Any party wishing to raise any issue decided by a panel of this Court must file a petition for rehearing en banc pursuant to this Rule.

(b) Requirements for Pro Se Prisoners and By Leave of Court. A pro se prisoner or a party who has leave of Court to proceed under this paragraph of the Rule aggrieved by a decision of a panel of this Court may file a petition for rehearing en banc within 14 days after the date of the order sought to be reheard. Twelve copies of any such petition shall be filed with the clerk of the Court of Appeals. The petition for rehearing en banc shall not exceed 5,300 words in length. All petitioners other than pro se prisoners and those with leave of this Court to proceed under this paragraph of the Rule must follow the provisions of paragraph (c) of this Rule when filing a petition for rehearing en banc.

(c) Requirements for All Others. (1) Except for petitions for rehearing en banc filed by pro se prisoners or by those

with leave of Court to proceed under paragraph (b) of this Rule, the petition shall be filed as a single Adobe Acrobat Portable Document Format (PDF) document attached to an e-mail addressed to [email protected] and will be timely filed if received

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by the clerk's office at or before 11:59 p.m. on the fourteenth day after the date of the decision or order sought to be reheard.

(2) The petition must be formatted to print on a page 8 1/2 x 12 inches, must be in 12-point font or larger, must be double-spaced, and must not exceed 5,300 words. The petition must include a certificate of service to opposing counsel and the certificate shall specify the manner of service and the date of service. If opposing counsel has an e-mail address, service on opposing counsel shall be by electronic means and such address shall be included in the certificate of service. The petition must also include a certificate of compliance with the word count limit. The petition will be considered filed on the date and time that it is received by [email protected]. If the petition does not meet the requirements of this rule as to format, the clerk of the Court of Appeals shall so notify counsel and provide a specific amount of time for a corrected copy of the petition to be filed. A person who files a document electronically shall have the same responsibility as a person filing a document in paper form for ensuring that the document is properly filed, complete, and readable. However, if technical problems at the Court of Appeals result in a failure to timely receive the electronically filed petition for rehearing, counsel shall provide to the clerk of this Court on the next business day all documentation which exists demonstrating the attempt to file the petition by e-mail, any delivery failure notice received in response to the attempt, and a copy of the petition for rehearing.

(3) The e-mail message to which the petition is attached shall recite in the subject line the style of the case and the Court of Appeals record number. The body of the email message shall contain a paragraph stating that a petition for rehearing en banc is being filed, the style of the case, the Court of Appeals record number, the name and Virginia State Bar number of counsel filing the petition, as well as the law firm name, mailing address, telephone number, facsimile number (if any), and e-mail address (if any) of counsel filing the petition. The message shall also state whether a copy of the petition has been served by e-mail or another means on opposing counsel and the date of such service. If the petition has been served on opposing counsel by e-mail, the e-mail address for opposing counsel shall also be included. Upon receipt of the petition for rehearing in the e-mail box of the clerk's office, an acknowledgment will be forwarded by e-mail to counsel filing the petition.

(d) Proceedings After Petition for Rehearing. No answer to a petition for a

rehearing en banc will be received unless requested by the Court of Appeals. A rehearing en banc on motion of the Court of Appeals shall be ordered no later than 20 days after the date of rendition of the order to be reheard. The clerk of the Court of Appeals shall promptly notify counsel for both parties of the action taken by this Court on the petition for rehearing en banc via e-mail, if e-mail addresses for both counsel have been provided, or via U.S. Mail to any counsel or party who has not provided an e-mail address.

Last amended by Order dated March 1, 2011; effective May 2, 2011.

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Court of Appeals— Rule 5A:35. Procedure for Rehearing.

(a) Rehearing by a Panel. When rehearing by a panel is granted on petition of a party, the clerk of the Court of Appeals shall notify all counsel promptly. No brief in addition to the petition may be filed by petitioner. Respondent may file in the office of the clerk seven copies of an answering brief, which shall not exceed 5,300 words in length, within 21 days following the date of the order of this Court granting a rehearing. Three copies of the respondent’s answering brief shall be mailed or delivered to opposing counsel on or before the date the answering brief is filed. Respondent may be heard orally whether or not an answering brief is filed. The case will be placed on the docket for oral argument. When practicable, such a rehearing will be heard by the same panel that rendered the final decision in the case.

(b) Rehearing En Banc. When all or part of a petition for rehearing en banc is

granted, the clerk of this Court shall notify all counsel promptly. The mandate entered is stayed as to all issues decided by the panel pending the decision of the Court en banc. The appeal is reinstated on the docket of the Court for oral argument only as to issues granted. Briefing and oral argument shall proceed in the same order as before the three judge panel. The Court of Appeals may require any party to whom rehearing en banc has been granted to file 20 copies of an appendix, prepared in conformity with the provisions of Rule 5A:25, with the clerk of the Court within such time as the Court of Appeals shall specify.

(1) Issues Considered Upon Rehearing En Banc. Only issues raised in the petition for rehearing en banc and granted for rehearing or included in the grant by the Court on its own motion are available for briefing, argument, and review by the en banc Court. The Court may grant a petition in whole or in part. Any issue decided by a panel of this Court not subject to a petition for rehearing en banc remains undisturbed by an en banc decision.

(2) Appellant's Opening Brief Upon Rehearing En Banc. The party who was the appellant before the panel of this Court shall file in the office of the clerk 20 copies of a brief, which shall not exceed 12,300 words in length. Such brief shall be filed within 21 days following the date of the order of this Court granting rehearing en banc, and shall be accompanied by a certificate that three copies were mailed or delivered to opposing counsel on or before the date of filing. The brief shall bear a white cover.

(3) Appellee's Answering Brief Upon Rehearing En Banc. The party who was the appellee before the panel of this Court may file in the office of the clerk 20 copies of an answering brief not to exceed 12,300 words in length, within 14 days after the opening brief has been filed. Three copies of appellee’s answering brief shall be mailed or delivered to opposing counsel on or before the date the answering brief is filed. The brief shall bear a blue cover. Appellee may be heard orally whether or not the answering brief is filed. (4) Appellant’s Reply Brief Upon Rehearing En Banc. The party who was the appellant before the panel may file in the office of the clerk a reply brief, not to exceed 3,500 words, within 14 days after the answering brief has been filed. Twenty copies of

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the reply brief shall be filed. Three copies of such brief shall be mailed or delivered to opposing counsel on or before the date the answering brief is filed. The brief shall bear a green cover. Last amended by Order dated March 1, 2011; effective May 2, 2011.Last amended by Order dated March 1, 2011; effective May 2, 2011.

3. Time deadlines for filing are mandatory.

Supreme Court-- Rule 5:5. Filing Deadlines; Post Trial Proceedings Below; Timely Filing by Mail; Inmate Filing; Extension of Time.

(a) Filing Deadlines. The times prescribed for filing the notice of appeal (Rules 5:9(a), 5:14(a) and 5:21(c)), a petition for appeal (Rules 5:17(a) and 5:21(g)), a petition for review pursuant to Code § 8.01-626 (Rule 5:17A) and a petition for rehearing (Rules 5:20 and 5:37), are mandatory. A single extension not to exceed thirty days may be granted if at least two Justices of the Supreme Court of Virginia concur in a finding that an extension for papers to be filed is warranted by a showing of good cause sufficient to excuse the delay. . . . .

Court of Appeals-- Rule 5A:3. Filing Deadlines; Post Trial Proceedings Below; Timely Filing by Mail; Inmate Filing; Extension of Time.

(a) Filing Deadlines and Extensions. The times prescribed for filing the notice of appeal (Rules 5A:6 and 5A:11), a petition for appeal (Rule 5A:12), and a petition for rehearing (Rule 5A:33) and a request for rehearing en banc (Rule 5A:34) are mandatory. Except for the petition for appeal which is addressed in Rule 5A:12(a) and Code § 17.1-408, a single extension not to exceed thirty days may be granted if at least three judges of the Court of Appeals concur in a finding that an extension for papers to be filed is warranted upon a showing of good cause sufficient to excuse the delay. The time period for filing the notice of appeal is not extended by the filing of a motion for a new trial, a petition for rehearing, or a like pleading unless the final judgment is modified, vacated, or suspended by the trial court pursuant to Rule 1:1, in which case the time for filing shall be computed from the date of the final judgment entered following such modification, vacation, or suspension.

15

4. The Vote of Only One Justice Is Needed to Obtain a Rehearing of the Denial of a Petition for Appeal to the Virginia Supreme Court.

On a Petition for Rehearing of the Denial of a Petition for Appeal, any Justice who was

on the original writ panel or any other active Justice can grant the Petition for Appeal. You will have your Petition for Rehearing reviewed by four or five Justices who were not on the writ panel (and thus did not join in the previous denial of the Petition. On a Petition for Rehearing of the Denial of a Petition for Appeal, you can usually expect a ruling roughly a week or so after the end of the next session of the Court after the Petition for Rehearing is filed, although more time may pass in some cases before you get a decision.

5. The Vote of Only One Majority Justice Is Needed to Obtain a

Rehearing of a Decision on Full Appeal by the Virginia Supreme Court.

On a Petition for Rehearing of a decision on full appeal, you need to get at least one

Justice who was in the majority to grant the Petition for Rehearing. 6. Petitions for Rehearing Are Sometimes Successful.

a. See, for example, the successful Petition for Rehearing filed by Barbara S. Williams and Cory R. Ford (of Barbara S. Williams, P.C.), in the Supreme Court of Virginia on March 18, 2011, in Rodriguez v. Leesburg Business Park, LLC, Record Number 102127, a copy of which is attached as Exhibit A.

b. The Petition for Appeal had previously been denied by a writ

panel but after the Petition for Rehearing was filed a writ of appeal was granted. On January 6, 2012, the Virginia Supreme Court reversed the trial court’s decision and remanded the case for further proceedings. See Exhibit B attached.

c. A Petition for Rehearing recently filed by Paul P. Terpak, L.

Steven Emmert, and Jeffrey M. Summers, is attached as Exhibit C.

7. Hon. Chief Judge Walter S. Felton, Jr., and Panelists Cory R. Ford, L.

Steven Emmert, and Jeffrey M. Summers (who have recently had Petitions for Rehearing granted) will share their insights and comments on Petitions for Rehearing.

1 

IN THE SUPREME COURT OF VIRGINA

Record No. 102127

CECELIA RODRIGUEZ, Adminstrator of the Estate of UBALDO RODRIGUEZ,

Appellant,

v.

LEESBURG BUSINESS PARK, LLC and

NORTHERN VIRGINIA ELECTRIC COOPERATIVE, Appellees.

PETITION FOR REHEARING

The Appellant, Cecilia Rodriguez, respectfully requests

this Court reconsider its ruling of March 4, 2011 and grant

the Petition for Appeal in this case. Cecilia Rodriguez is the

widow of Ubaldo Rodriguez (the “Decedent”), who was

electrocuted on his first day of work as a laborer on a

construction jobsite. He died of his injuries several weeks

later in a rehabilitation facility, leaving his wife and 3 minor

children as dependents. The trial court’s ruling bars the

statutory beneficiaries of any tort relief against the owner of

2 

the premises where the Decedent was electrocuted. The

sole basis for the trial court’s decision was its conclusion that

Rodriguez, a laborer, was a “co-employee” (App. Rec. p.

430) of the entity that owned the property, Leesburg

Business Park, LLC (“LBP”).

LBP is a commercial real estate developer that profits

through the sale or lease of commercial properties. Never at

any time did LBP perform any construction work. The

developer had no construction equipment or expertise in

building; rather, it hired E.E. Reed to construct warehouses

on its property. Rodriguez, a laborer and employee of E.E.

Reed, could not be a fellow servant of LBP.

The trial court never addressed the issue that was

argued, which was whether or not LBP was Rodriguez’s

statutory employer and thus immune from a wrongful death

suit due to the workers’ compensation bar. Based upon the

plain language of Virginia Code 65.2-800, it is impossible as

a matter of law for LBP to be Rodriguez’s “statutory co-

employee” or fellow servant, or vice versa.

3 

This Court owes no deference to the trial court’s legal

conclusion that the Decedent and LBP are “statutory co-

employees.” See Plunkett v. Plunkett, 271 Va. 162, 167,

624 S.E.2d 39, 41 (2006). When a trial court reaches a

conclusion based upon an incomplete or incorrect

understanding of the relevant legal test, this Court will even

scrutinize the trial court’s findings of fact. See Poulston v.

Rock, 251 Va. 254, 259, 469 S.E.2d 479, 482 (1996).

I. The trial court misconstrued the Workers’ Compensation Act as a matter of law: the proper legal question in this case is whether or not LBP was a statutory employer of the Decedent, not the statutory co-employee.

LBP, an entity with no construction expertise which

owned the subject premises, and the Decedent, a

construction laborer, were on different work levels. The

owner of the property and the Decedent were not co-

workers; they shared no common employer; they did not

work on the same jobsite. The two cannot be “statutory co-

employees”, more descriptively described by this Court as

4 

“fellow servants.” 1 This is not a case of disputed facts. The

trial court misconstrued the Workers’ Compensation Act as a

matter of law, and that error is clear on the face of the trial

court’s ruling by use of the legal term of art “co-employee.”2

The trial court found that LBP was immune from suit.

Under Va. Code 65.2-800, there are only three possible

categories of persons that are immune from tort liability:

“…A person other than an employer or statutory employer, or a person employed by either, whose acts result in such injury or death shall be deemed an "other party" within the meaning of § 65.2-309” (emphasis added).

                                                            1 See, e.g., Feitig v. Chalkey, 185 Va. 96, 100, 38 S.E.2d 73, 74 (1946) “[w]hether or not the injured employee may also maintain an action against his co-employee or fellow servant depends upon the construction of sections 11 and 12 of the act.” (emphasis added).

2 A “statutory co-employee” is a “fellow servant,” i.e., a co-worker for purposes of the Act’s provisions. A “statutory employee” is the employee, for purposes of the Act, of the “statutory employer.” Statutory co-employee and statutory employee are not synonymous.

5 

Thus, the only possibilities are “employer or statutory

employer, or a person employed by either, whose act

results in such injury or death.”

A “person employed by either” is a statutory co-

employee. Of the three possibilities, the trial court

erroneously ruled that LBP, the owner, was the fellow

servant of a construction laborer, despite the fact that LBP is

employed by no one—LBP has neither a common law nor

statutory employer under the facts of this case and thus

cannot be “employed by either.” Given that LBP admitted

that E.E. Reed was the Decedent’s common law employer

(Tr. p. 37), the only remaining potential holding the trial

court could possibly make, using the correct analysis, was

whether or not LBP was the statutory employer of the

Decedent.

The determination of the identity of the statutory

employer, or statutory co-employee, is one of statutory

construction. Statutory construction is a question of law

6 

that this Court reviews de novo. Lynchburg Div. of So. Serv.

v. Cook, 276 Va. 465, 480, 666 S.E.2d 361, 368 (2008).

II. Statutory co-employee and statutory employee status are distinct legal concepts under the Workers’ Compensation Act.

Virginia Code § 65.2-302 defines “statutory employer.”

It does not reference a “statutory co-employee.” An owner

who undertakes work that is part of his trade, business, or

occupation is the statutory employer and is liable for

(workers) compensation benefits, but immune to suit. See

Sykes v. Stone, 186 Va. 116, 121-122, 41 S.E.2d 469, 471-

72 (1947). Likewise, if that owner undertakes work that is

not part of his trade, business, or occupation, and thus

contracts the work out, then the statute states that the

contractor is the injured person’s statutory employer and the

owner is not immune. Id.

In sharp contrast is the legal issue of statutory co-

employee or “fellow servant” status. In Feitig, this Court

had to determine for the first time since the Act was

7 

amended whether the plaintiff could sue his common law co-

employee or fellow servant.3

  The Court formulated the “stranger to the work test” to

determine whether the defendant was a co-employee of the

plaintiff. The test is whether or not the defendant and was

conducting the business of the statutory employer at the

time of the injury. If so, then that defendant was not a

stranger to the work being done, and was a “statutory co-

employee” or fellow servant of the plaintiff. Such statutory

co-employees were not amenable to suit—even though that

defendant was neither a common law nor statutory

employer of the plaintiff.4 If the defendant was not

conducting the statutory employer’s business, he was not a

fellow servant of the plaintiff and could be sued.

III. LBP is not a statutory co-employee of the Decedent, nor is LBP the statutory employer.

                                                            3 See footnote 1.

4 See Nolde Brothers v. Chalkey, 184 Va. 553, 569, 35 S.E.2d 827, 834 (1945) (companion case to Feitig, and contains the underlying facts and holding of Feitig). 

8 

The issue in Feitig is not the issue in this case. This is

a case where an electrocuted construction laborer is suing

the premises owner, not another co-worker or another

subcontractor. This Court has held repeatedly that a

premises owner may be sued by an injured worker. The

legal analysis involved has always been whether or not the

premises owner was the plaintiff’s statutory employer, using

the “normal work” test. See, e.g., Johnson v. Jefferson Nat’l

Bank, 244 Va. 482, 422 S.E.2d 778 (1992), Shell Oil Co. v.

Leftwich, 212 Va. 715, 187 S.E.2d 162 (1972), Bassett

Furniture Indus., Inc. v. McReynolds, 216 Va. 897, 224

S.E.2d 323 (1976), Cinnamon v. Int’l Bus. Mach., Corp., 238

Va. 471, 475, 384 S.E.2d 618, 619 (1989).

Whether or not LBP was Rodriguez’s statutory employer

is the proper analysis, utilizing the Shell Oil “normal work”

test. The trial court erred as a matter of law by holding that

LBP was the Decedent’s “statutory co-employee” because

the only legal conclusion possible under the Act was whether

9 

or not LBP was the Decedent’s statutory employer. Under

the proper analysis, the “normal work” test, LBP is likewise

not the Decedent’s statutory employer and is not immune to

suit.

IV. Conclusion

In the present case, LBP simply cannot be the statutory

“co-employee” of Rodriguez. LBP has been sued for

premises liability. LBP, as premises owner, contracted with

E.E. Reed, the construction company, in order for E.E. Reed

to construct warehouses. E.E. Reed hired the Decedent, a

construction laborer. It would be nonsensical to say that

under the three categories found in § 65.2-800, LBP is a

“person employed by either” (the employer or statutory

employer). LBP was employed by no one.

The trial court used the incorrect legal analysis when it

found that Rodriguez and LBP were statutory “co-

employees.” When a trial court uses an incorrect analysis,

the finding is erroneous as matter of law and is not entitled

to any deference. The Appellant, Cecilia Rodriguez, by

10 

counsel, pursuant to Rules 5:20 and 5:20A, respectfully

requests that the Court grant this petition for rehearing and

her appeal.

CECILIA RODRIGUEZ

Administrator of the Estate of UBALDO RODRIGUEZ, deceased, APPELLANT

By Counsel

____________/s/___________________ Barbara S. Williams (VSB No.: 28279) Cory R. Ford, Esq. (VSB # 68153) BARBARA S. WILLIAMS, P.C. 101 Loudoun Street, S.W. Leesburg, Virginia 20175 (703) 777-6535 Fax: (703) 777-6963 Counsel for Plaintiff Andrew K. Thomas, Esq. (VSB #34826) DULANEY, LAUER & THOMAS, L.L.P. 98 Alexandria Pike, Suite 11 Warrenton, Virginia 20186 (540) 349-2631 telephone Fax: (540) 349-2640 Co-Counsel for Plaintiff

CERTIFICATE OF SERVICE COUNSEL FOR APPELLANT: Barbara S. Williams (VSB No.: 28279) Cory R. Ford, Esq. (VSB No.: 68153) BARBARA S. WILLIAMS, P.C. 101 Loudoun Street, S.W. Leesburg, Virginia 20175 (703) 777-6535 Fax: (703) 777-6963 Email: [email protected] [email protected] Counsel for Appellant Cecilia Rodriguez, Administrator of the Estate of UBALDO RODRIGUEZ Andrew K. Thomas, Esq. (VSB No.: 34826) DULANEY, LAUER & THOMAS, L.L.P. 98 Alexandria Pike, Suite 11 Warrenton, Virginia 20186 (540) 349-2631 telephone (540) 349-2640 facsimile Email: [email protected] Co-Counsel for Appellant Cecilia Rodriguez, Administrator of the Estate of UBALDO RODRIGUEZ

I HEREBY CERTIFY that on this 18th day of March, 2011, true and accurate copies of the foregoing Petition for Rehearing were forwarded to below named counsel by the means designated below: ( ) Electronic delivery (email) COUNSEL FOR APPELLEE: Robert G. Harrington, Esq. (VSB No.: 34825) Robert Harrington & Associates 7401 Beaufont Springs Drive, Suite 401

Richmond, Virginia 23225 Phone: (804) 422-6167 Facsimile: (804) 272-9442 Email: [email protected] Counsel for Defendant Leesburg Business Park, LLC COUNSEL FOR DEFENDANT NORTHERN VIRGINIA ELECTRIC COOPERATIVE: William N. Watkins, Esq. (VSB No.: 22391) Sands Anderson Marks & Miller 801 East Main Street, Suite 1800 Post Office Box 1998 Richmond, Virginia 23218-1998 Phone: (804) 783-7261 Facsimile: (804) 783-7291 Email: [email protected] Counsel for Defendant Northern Virginia Electric Cooperative _______/s/_________________ Cory R. Ford, Esq.

VIRGINIA:

k Ike J~ -(ffoano/r~ heldat' Ike J~-(ffoan!?lJ~ in Ike

-(ff~o/~on Friday tk 6th dayO/ January, 2012.

Cecilia Rodriguez, Administrator of the Estate of Ubaldo Rodriguez, Appellant,

against Record No. 102127 Circuit Court No. CL52497 00

Leesburg Business Park, LLC, et al., Appellees.

Upon an appeal from a judgment rendered by the Circuit Court of Loudoun County.

Upon consideration the record, bri s, and argument of

counsel, the Court is of opinion t there is error the

judgment rendered by the Circuit Court of Loudoun County on August

10, 2010.

Appellant, Cecilia Rodriguez, as the rsonal representative

of the estate of her deceased husband, Ubaldo Rodriguez (Ubaldo),

filed this wrongful dea action against appellee, Leesburg

Business Park, LLC (LBP), and Northern Virg ia Electric

Cooperative (which took no part in this appeal). In her amended

complaint, appellant alleged LBP caused Ubaldo's death by

negligent failing to keep its premises safe. In this appeal, we

review appellant's challenge to the circuit court's judgment

granting LBP's plea in bar based on the exclus y provisions of

the Virg ia Workers' Compensation Act ( Act), Code § 65.2-307.

It is undisputed that Ubaldo was working as a laborer for E.E.

Reed Construction LP (E.E. Reed) when he sustained work related

injuries leading to his death; and that, as a result, Ubaldo's

benef aries received bene s from E.E. Reed pursuant to the Act.

It is also undisputed that Ubaldo's accident occurred at a

commercial work site owned by LBP; that LBP, a commercial real

estate developer, was effecting the construction of two warehouse

buildings on the site for purposes of sale or lease; that E.E. Reed

was the general contractor hired by LBP to construct the warehouse

buildings; and that LBP had no employees.

In LBP's answer to appellant's amended complaint, LBP asse

the worker's compensation bar as an affirmative de se, stating:

"This action is barred by [w]orker's [c]ompensation law and,

therefore, the [appellant] is barred from bringing this action as

the decedent [Ubaldo] was an employee of EE Reed and deemed to be a

statutory employee of [LBP] and was limited to the sole remedy of

[w]orkers' [c]ompensation benefits." Along with its answer, LBP

fil a plea in bar in whi it also sought dismissal of the

amended complaint based on t workers' compensation bar. LBP then

filed a brief support of its plea and appellant filed a brief in

opposition.

In its brief, LBP argued that E.E. Reed, in constructi the

warehouses LBP, was performing "work wh was a part of

2

[LPB's] trade, business or occupation" as provided in Code § 65.2­

302 (A) . Thus, LBP asserted, Ubaldo was "a statutory employee of

LBP" under the terms of this statute, thus barring appellant's

wrongful death action against LBP. Accordingly, LBP likewise

asserted in its brief that was, in turn, "a statutory employer

of [Ubaldo]." Elsewhere in its brief, however, LBP contended that

Ubaldo was "a statutory co-employee of LBP."

Following an dent ry hearing on LBP's plea in bar, the

circuit court judge issued a letter opinion in which he concluded,

"I find that [Ubaldo] was a statutory co-employee of LBP, and,

therefore, [appellant's] recovery is limited to [w]orkers'

[c]ompensation bene s only." By order dat August 10, 2010,

which incorpora the court's letter opinion, the court granted

LPB's ea in bar and entered judgment in LPB's favor.

Upon our review of record, we find no facts to support the

ci t court's conclusion that Ubaldo and LBP were statutory co­

employees. Under Virginia workers' compensation law, the term

"statutory co-employees" is synonymous with the term "statutory

Code § 65.2-302(A) provides as follows: A. When any person (referred to in this section as

"owner") undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (referred to in this section as "subcontractor") for the execution or performance by or under such subcontractor of whole or any part of the work undertaken by such owner, the owner 11 be liable to pay to any worker employed in the work any compensation under s title ch he would have been liable to pay if worker had been immediately employed by him.

3

fellow servants," Anderson v. Thori on Const. Co., 201 Va. 266,

272, 110 S.E.2d 396, 400 (1959); see , 185 Va. 96,

100, 38 S.E. 2d 73, 74 (1946). But those terms are not synonymous

with the term "statutory employee" as contempl r Code

§ 65.2 302(A) the context of the relationsh n an alleged

statutory employee and statutory employer.

y, the judgment of the circuit court is reversed and

this case is for further proceedings consistent with this

order. 2

This 0 r shall be certified to the said rcu court.

JUSTICE POWELL, th whom JUSTICE McCLANAHAN joins, ssenting.

though agree with the majority that the circuit court

erred in ing Ubaldo was a statutory co-employee of LBP, I

must respectfully dissent with the majority's ision to reverse

and remand is case. I would affirm the circuit court's judgment

that recovery s case is limited to wor rs' ion

benefits use LBP is statutory employer of Ubaldo. s, I

would hold court's conclusion was the ri result

albeit for the wrong reason.

This Court s recognized that H[w]hen the trial court has

reached the correct result for the wrong reason, but the

supports the reason, we will assign the correct reasonI

2 We thus do not the issue of whether LBP was statutory empl of Ubaldo, or, in turn, whether Ubaldo was the statutory empl LBP.

4

affirm t result. '" Pe v. Commonwealth 280 Va. 572, 580, 701

S.E.2d 431, 436 (2010) (quoting Mitchem v. Counts 259 Va. 179,

191, 523 S.E.2d 246, 253 (2000)). When applying the result

for t wrong reason doctrine, this Court does not require that the

appel make the r argument be the trial court. Id.

Rather, "[c]onsideration of the facts the record and whether

additional factual presentation is necessary to reso the newly­

advanc reason is proper focus of applicat of the

doctr " Id. Thus, "[t]he record supports an alternative ground

when reflects that all evidence necessary to that ground was

be the circuit court." Banks v. Commonwealth, 280 Va. 612, 617

701 S.E.2d 437, 440 (2010).

In the present case, no additional factual presentation lS

necessary to determine whether LBP is the statutory employer of

IJbaldo. Indeed, the question of whether LBP was the statutory

employer of IJbaldo was specifically a by both s in the

t al court. 3

§ 65.2-302 cifies that an owner becomes a "statutory

emplo r" when it " rtakes to per or execute any work which

is rt of [its] t , business or occupation and contracts with

any r person . for the execution or performance by or

such [person] of the whole or any rt of the work undertaken by

such owner." As § 65.2-302 "contemplates that an owner may

pe rm or execute work that is of his trade, business, or

1 LBP argued that it was both statutory employer and statutory co-employee of IJbaldo. Appellant's argument was limited only to the issue of whether LBP was IJbaldo's statutory employer.

5

occupation through contractors and subcontractors,

no workers the only determination which

needs to be made in case at bar is whether LBP, as an owner,

engaged a contractor to rform any work which is part of LBPs

trade, business or occ ion. 4 Smith v. Horn, 232 Va. 302, 305,

351 S.E.2d 14, 16 (1986) (emphasis d); see also Pifer v.

Krauss Constr. Co. of Va. 262 Va. 2 , 546 S.E.2d 717 (2001)

(finding that the tr , business or occupation of a condominium

development company w h no employees included t installation of

gas lines); Evans v. Hook, 239 Va. 127, 387 S.E.2d 777 (1990)

(finding that the t , business or occupation of a land

devel venture wi no employees included t construction

a brick wall on the rty) .

As the majority notes, there is no dispute that LBP contract

with E.E. Reed to build the warehouses or that Uba was an

2 llant and amicus s on whether the circuit court applied the proper test for determining whether LBP is the statutory employer of Ubaldo. However, as this Court has

I such tests are only gui s, "sometimes useful but not , in appl ng the literal language of the statutes to

--~"------

the facts in a particular case." Cinnamon v. IBM ., 238 Va. 471, 478, 384 S.E.2d 618, 621 (1989) (emphasis ). I further note that the normal work test this Court in Shell Oil Co. v. Leftwich, 212 Va. 715, 722, 187 S.E.2d 162, (1972), which examines the activities of the owner's employees to determine his t ,business or occupation, is particularly inapplicable to cases such as this where the owner has no emplo es. See Callahan v. Un States, 364 U.S. 587, 596 (1961) ("[A]ny guide to statutory construction. . only serves as an aid for reso an amb ; it is not to be used to beget one.").

6

emplo e of E.E. Reed. Further, the circuit court made the

ific factual find that ~the construct of the warehouses

was a part of the t ,business or occupation of LBP.~ Thus, I

would d that, under Code § 65.2-302, LBP was the statutory

yer of Ubaldo. Accordingly, it is my opinion that circuit

court was correct, a it for the wrong reason, in cone ing that

recovery in this case is limited to workers' compensation benefits

only.

A Copy,

Teste:

Clerk

7

THE LEX GROUP 1108 East Main Street Suite 1400 Richmond, VA 23219 (804) 644-4419 (800) 856-4419 Fax: (804) 644-3660 www.thelexgroup.com

In The

Supreme Court of Virginia

______________________

RECORD NO. 101897 ______________________

FR PIKE 7 LIMITED PARTNERSHIP,

Petitioner – Appellant,

v.

COMMONWEALTH TRANSPORTATION COMMISSIONER OF VIRGINIA,

Respondent – Appellee.

_________________________

PETITION FOR REHEARING _________________________

Paul B. Terpak (VSB No. 20209) L. Steven Emmert (VSB No. 22334) Jeffrey M. Summers (VSB No. 45905) Laurie L. Proctor (VSB No. 75320) SYKES, BOURDON, THE LAW OFFICE OF BLANKINGSHIP & KEITH, P.C. AHERN & LEVY, P.C. JEFFREY M. SUMMERS, PLLC 4020 University Drive, Suite 300 281 Independence Boulevard 6802 Paragon Place, Suite 410 Fairfax, Virginia 22030 Pembroke One, 5th Floor Richmond, Virginia 23230 (703) 691-1235 (Telephone) Virginia Beach, Virginia 23462 (804) 441-6264 (Telephone) (703) 691-3913 (Facsimile) (757) 499-8971 (Telephone) (866) 936-6906 (Facsimile) [email protected] (757) 456-5445 (Facsimile) [email protected] [email protected] [email protected] Counsel for Petitioner – Appellant Counsel for Petitioner – Appellant Counsel for Petitioner – Appellant

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................... ii PETITION FOR REHEARING................................................. 1

I. The tension between a landowner’s right of

access and the police power requires a reasonableness standard ..................................... 2

II. The Trial Court erroneously barred the

landowner from damages caused by the project...... 5

CERTIFICATE OF COMPLIANCE............................................ 8 CERTIFICATE OF FILING AND SERVICE ................................ 8

ii

TABLE OF AUTHORITIES

Page(s)

CASES

City of Richmond v. Kingsland Land Corp., 157 Va. 619 (1932).................................................... 3 Commonwealth Transp. Comm’r v. Glass, 270 Va. 130 (2005).................................................... 4 Commonwealth Transp. Comm’r v. Miners Exchange Bank, 33 Va. Cir. 261 (Wise County Cir. Ct. 1994)................... 4 Long v. Shirley, 177 Va. 401 (1941).................................................... 6 State Highway and Transp. Comm’r v. Dennison, 231 Va. 239 (1986).................................................... 3 State Highway Comm’r v. Easley, 215 Va. 197 (1974).............................................2, 3, 4 State Highway Comm’r v. Howard, 213 Va. 731 (1973).................................................... 2 State Highway Comm’r v. Linsly, 223 Va. 437 (1982).................................................... 3 STATUTES

Va. Code § 25.1-230 ......................................................... 5

Va. Code § 33.1-130 ......................................................... 5

OTHER AUTHORITY

4A Nichols on Eminent Domain, § 14A.01[6][a] .................4, 5

PETITION FOR REHEARING

This is a condemnation case involving reduction in access

to a large shopping center in the Tysons Corner area. The Trial

Court ruled prior to trial that no evidence of damages could be

presented even though access was reduced by as much as 47%

because “a landowner’s access to the road is by definition

reasonable unless the landowner’s direct access is eliminated.”

(May 28, 2010 Letter Opinion; italics in original.) The question

here is whether all cases are black and white, or if gray areas

exist—and whether reasonableness of access is a proper issue

for the jury to decide if access is reduced but not totally

eliminated.

The Trial Court ruling is being cited as precedent by VDOT

statewide. If left to stand, the Trial Court ruling would bar all

evidence of damages in a condemnation if a 100 acre farm with

ten potential home sites was left with direct access suitable for

only one home; or all evidence of damages if a shopping center

with 100 stores was left with direct access suitable for one 7-

Eleven. This is not the law in other states which clearly allows

2

evidence of damages if access is reduced, but not eliminated,

and should not become the law in Virginia. Whether a

landowner is left with reasonable access after a condemnation

is a proper question for the jury.

I. The tension between a landowner’s right of access and the police power requires a reasonableness standard. There is no doubt that the government has great authority

to regulate the highways under the police power, but even the

police power does not permit the government to interfere with

a landowner’s right of reasonable access without compensation.

When considering this issue, this Court has chosen to draw

some bright lines, but never the line created by the Trial Court

that any direct access is always reasonable access.

This Court has ruled that some types of changes in access

are not compensable in a condemnation, such as the closing of

a median break, State Highway Comm’r v. Howard, 213 Va.

731, 732 (1973), or the construction of curbs and entrances.

State Highway Comm’r v. Easley, 215 Va. 197, 203 (1974).

3

This Court has ruled that some types of changes in access are

compensable, such as the replacement of direct access to a

road with indirect access, State Highway Comm’r v. Linsly, 223

Va. 437 (1982), or the change in the grade of a road, City of

Richmond v. Kingsland Land Corp., 157 Va. 619 (1932).

Previously in State Highway and Transportation Commissioner

v. Dennison, 231 Va. 239 (1986), this Court seemed to provide

for a gray area—and allowed the jury to decide if damages

should be awarded if the landowners did not have “reasonable

access to the property after the construction of this project.”

Id. at 246. The Trial Court’s ruling takes this decision away

from the jury.

The Trial Court misconstrues this Court’s ruling in Easley,

that “an abutting landowner’s right of access to a public road is

subordinate to the police power reasonably to control the public

streets . . .”, 215 Va. at 203, and leaves out the key language

of this Court: “[t]here was no evidence that the openings in

the curbing would not provide the Easleys with reasonable

4

access to Route 58.” 215 Va. at 204. (emphasis added)

Therefore, even when considering the proper exercise of the

police power to control roads, this Court previously recognized

a landowner’s continued right to reasonable access. The Trial

Court has eliminated that right.

At least one Virginia Circuit Court has issued an opinion

that disagrees with the Trial Court stating that this Court has

“created an exception . . . and applied the reasonableness

standard . . . where there was a reduction or limitation but not

a complete extinguishment or termination of direct access.”

Commonwealth Transp. Comm’r v. Miners Exchange Bank, 33

Va. Cir. 261, 262 (Wise County Cir. Ct. 1994).

Nichols on Eminent Domain, recently recognized by this

Court in Commonwealth Transportation Commissioner v. Glass,

270 Va. 130, 149 (2005) as the leading treatise, states it this

way:

Generally, the “right of reasonable access” has been recognized throughout the United States as a property right that cannot be taken, or materially interfered with, without just compensation.

5

In instances where an abutting land owner is totally deprived of his or her access to an existing road, courts have generally found a compensable taking. It has been held, however, that the “right of access” is not an unlimited right to access at any and all points in the boundary between an abutter’s land and the highway. Rather, it is a right to a reasonably convenient and suitable means of access.

Thus, in those situations where regulations or

restrictions have been imposed on abutting owners that restrict some but not all of the owners’ access, the question becomes whether there remains a reasonably convenient and suitable alternative means of access in light of all of the existing facts and circumstances.

4A Nichols on Eminent Domain, § 14A.01[6][a]. Virginia should

not stand alone and deny compensation for loss of reasonable

access. Petitioner respectfully requests this Court to grant this

appeal.

II. The Trial Court erroneously barred the landowner from damages caused by the project.

Code of Virginia § 33.1-130, which applies to VDOT

condemnations such as this one provides that damages and

enhancement caused by the “construction and improvement”

must be considered. Code of Virginia § 25.1-230, which is the

general Eminent Domain statute provides that only damages

6

and enhancement from “the taking” must be considered. The

Trial Court erroneously construed these two statutes to have

identical meanings and effectively overturned this Court’s 70

year old precedent in Long v. Shirley, 177 Va. 401 (1941). In

Long, this Court ruled that in VDOT condemnations, it is the

entire project, “the new situation created by construction of the

highway,” id. at 415, that must be considered when evaluating

damages and enhancement. The impact of the Trial Court’s

erroneous interpretation of this long standing rule parallels its

erroneous analysis of loss of reasonable access due solely to

the strip taken from the landowner, rather than the loss of

access due to the overall project.

Petitioner respectfully requests that this Court also grant

the appeal on Petitioner’s second assignment of error.

7

FR PIKE 7 LIMITED PARTNERSHIP By: _______________________ Counsel

Paul B. Terpak, Esquire (VSB# 20209) Laurie L. Proctor, Esquire (VSB# 75320) Blankingship & Keith, P.C. 4020 University Drive, Suite 300 Fairfax, Virginia 22030 Tel: (703) 691-1235 Fax: (703) 691-3913 Email: [email protected] Email: [email protected] L. Steven Emmert, Esquire (VSB# 22334) Sykes, Bourdon, Ahern & Levy, P.C. 281 Independence Boulevard Pembroke One, 5th Floor, Virginia Beach, Virginia 23462 Tel: (757) 499-8971 Fax: (757) 456-5445 Email: [email protected] Jeffrey M. Summers, Esquire (VSB# 45905) The Law Office of Jeffrey M. Summers, PLLC 6802 Paragon Place, Suite 410 Richmond, Virginia 23230-1655 Tel: (804) 441-6264 Fax: (866) 936-6906 Email: [email protected]

8

CERTIFICATE OF COMPLIANCE

I hereby certify that I have complied with Rule 5:20A of

the Supreme Court of Virginia. This Petition for Rehearing

consists of 1,159 words.

__________________________ Paul B. Terpak

CERTIFICATE OF FILING AND SERVICE

I hereby certify that, pursuant to Rule 5:20A, on this 25th

day of January, 2011, this Petition for Rehearing was filed

electronically with the Clerk of the Supreme Court of Virginia,

[email protected]. A true copy of the same was sent, via

e-mail, to Jeffrey A. Huber, Esquire, and Scott D. Helsel, Esquire,

Walton & Adams, PC, 1925 Isaac Newton Square, Suite 250,

Reston, Virginia 20190, Tel: (703) 790-8000, Fax: (703) 790-

8016, [email protected], [email protected];

Christopher D. Eib, Esquire, and Jo Anne P. Maxwell, Esquire,

Office of the Attorney General, 900 East Main Street, Richmond,

Virginia 23219, Tel: (804) 786-0086, Fax: (804) 786-1726,

[email protected], [email protected].

__________________________ Paul B. Terpak