In the spring of 2014 I tried a case to a jury in one of the circuit courts in the Richmond, VA metropolitan area. I represented a truck driver and his corporate entity in a lawsuit that had been filed against him by a young man who was operating a motor scooter. The accident occurred on a 4 lane highway divided by double yellow lines. The plaintiff was driving his scooter in the right lane headed westbound and had passed over a rise that blocked the ability of  following traffic to see smaller vehicles unless you were directly behind them.
My client was deadheading (empty trailer) and headed home for the evening. He was driving his tractor-trailer at 55 mph. As he came over the rise, he saw the scooter in front of him and realized immediately that he was going a lot faster than the scooter was traveling. He looked in his left rearview mirror and began braking at the same time. He could see a set of headlights coming up on his left side, but couldn’t tell if they were beyond the rear of his trailer or how close the vehicle was to his trailer, so he couldn’t switch lanes and be assured that he wouldn’t hit that vehicle. He continued to brake and worked to maintain control of his vehicle in order to keep it from jack-knifing, while also edging to the left as much as possible in order to hopefully miss hitting the scooter. He was unable to stop before colliding with the rear of the scooter although he stopped within 4-5 feet after the impact. The scooter continued forward another 10-15 feet and the plaintiff was thrown off onto the highway. The point of impact on the front of the tractor was identified by a dent that was approximately 18 inches to 2 feet from the right side of the front bumper.
Plaintiff suffered a concussion, injuries to his back, knees, shoulder and neck. He was treated by multiple doctors, including an orthopedic surgeon, his primary care physician, and a pain management physician. He claimed permanent injuries and an inability to work as an auto mechanic any longer.
At trial, we based our liability defense on the plaintiff’s contributory negligence. We also argued that the client was free from negligence in causing the accident. Virginia has a statute that provides that “any person operating a…motorized …scooter, or moped on a roadway at less than the normal speed of traffic…shall ride as close as safely practicable to the right curb or edge of the roadway,….” Virginia Code §46.2-905. The argument that we spent the most time on in closing arguments was that the plaintiff was contributorily negligent because he was not riding his scooter as close as “safely practicable” to the right edge of the roadway. The evidence conclusively showed that the scooter was being operated well into the right hand lane since the collision left a dent that was 18 inches to 2 feet from the right edge of the front bumper and he had obviously violated the statute and was guilty of contributory negligence and negligence per se. The jury agreed with me and returned a defense verdict after about an hour of deliberation.
The good guys won, justice prevailed and we should all be drinking a beer right about now. Not so fast. The plaintiff filed a Petition for Appeal to Virginia’s Supreme Court after his motion for a new trial was denied by the trial court. Appeals to Virginia’s Supreme Court are not a matter of right for civil cases. You have to Petition the Court and argue to a panel of Justices why your case is worthy of their full consideration.
During the process of briefing his Petition for Appeal, plaintiff’s counsel was reviewing the record of the trial court in preparation for having the record forwarded to the Virginia Supreme Court. It was during this review that he “found” that one of the exhibits, which rightfully consisted of a redacted version of a counseling record, was stapled to the unredacted version of the document. That unredacted version contained references to the plaintiff’s drug use. We had agreed with opposing counsel that the drug use was inadmissible and that was why the document was redacted. Plaintiff’s counsel immediately fastened upon the idea that the jury was allowed to see this inadmissible information and had somehow been tainted by learning that the plaintiff used illicit drugs. He filed a motion to stay his Petition for Appeal with the Virginia Supreme Court and simultaneously filed a Petition for Relief From Judgment Pursuant to Virginia Code §§ 8.01-428 and 8.01-677 seeking collateral relief from the trial court’s earlier judgement, which was presumably final.
The Virginia Supreme Court denied his motion to stay and ultimately went on to deny his Petition for Appeal.
Virginia Code §8.01-428 is generally utilized as a device that allows defendants against whom default judgments have been entered to attack those judgments under the right circumstances. It provides as follows:
§ 8.01-428. Setting aside default judgments; clerical mistakes; independent actions to relieve party from judgment or proceedings; grounds and time limitations.
(A) Default judgments and decrees pro confesso; summary procedure. Upon motion of the plaintiff or judgment debtor and after reasonable notice to the opposite party, his attorney of record or other agent, the court may set aside a judgment by default or a decree pro confesso upon the following grounds: (i) fraud on the court, (ii) a void judgment, (iii) on proof of an accord and satisfaction, or (iv) on proof that the defendant was, at the time of service of process or entry of judgment, a servicemember as defined in 50 U.S.C. § 3911. Such motion on the ground of fraud on the court shall be made within two years from the date of the judgment or decree.
(B) Clerical mistakes. Clerical mistakes in all judgments or other parts of the record and errors therein arising from oversight or from an inadvertent omission may be corrected by the court at any time on its own initiative or upon the motion of any party and after such notice, as the court may order. During the pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending such mistakes may be corrected with leave of the appellate court.
(C) Failure to notify party or counsel of final order. If counsel, or a party not represented by counsel, who is not in default in a circuit court is not notified by any means of the entry of a final order and the circuit court is satisfied that such lack of notice (i) did not result from a failure to exercise due diligence on the part of that party and (ii) denied that party an opportunity to pursue post-trial relief in the circuit court or to file an appeal therefrom, the circuit court may, within 60 days of the entry of such order, modify, vacate, or suspend the order or grant the party leave to appeal. Where the circuit court grants the party leave to appeal, the computation of time for noting and perfecting an appeal shall run from the entry of such order, and such order shall have no other effect.
(D) Other judgments or proceedings. This section does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or proceeding, or to grant relief to a defendant not served with process as provided in § 8.01-322, or to set aside a judgment or decree for fraud upon the court.
(E) Nothing in this section shall constitute grounds to set aside an otherwise valid default judgment against a defendant who was not, at the time of service of process or entry of judgment, a servicemember as defined in 50 U.S.C. § 3911.
The plaintiff argued that subsections B and D were applicable to this instance. He posited that the judge’s law clerk must have mistakenly stapled the two documents together, which was in his estimation a “clerical mistake.” He fastened on the idea that subsection D allowed him to file this “independent action” in order to relieve him from the judgment previously entered by the trial court.
Virginia Code §8.01-677 provides “For any clerical error or error in fact for which a judgment may be reversed or corrected on writ of error coram vobis, the same may be reversed or corrected on motion, after reasonable notice, by the court.”  Once again, the plaintiff argued that the trial court had the power to “correct” this “clerical error” due to the fact that judgment never should have been entered because of the mistaken provision of the inadmissible document to the jury.
Recently, the parties presented evidence during a bench trial on the issues raised by these statutes. The plaintiff’s goal was to have the judgment from the prior trial set aside and to be granted a new trial. This was in spite of the fact that his appeal to the Commonwealth’s highest court had been denied. Thankfully, the plaintiff was unable to prove the elements necessary to support a cause of action under §8.01-677. The test for the use of §8.01 that must be met in order for it to be applicable requires that the alleged error be (1)”an error of fact not apparent on the record, (2) not attributable to the applicant’s negligence, and (3) which if known by the court would have prevented rendition of the judgment.” Commonwealth v Morris, 705 S.E. 2d 503 (VA 2011).
After the presentation of evidence by the parties, the court found that the plaintiff had failed to prove 2 out of the 3 elements necessary to support a cause of action under §8.01-677, with the only notable element proved being that it wasn’t attributable to the negligence of either the plaintiff or his counsel. The court also found that §8.01-428 (B) and (D) were not applicable to our case as it was intended to deal with matters involving default judgments.
Looking back, it was difficult to figure out what I could have done differently to avoid having to basically try this case twice, however, I would suggest that if you find yourself in a similar situation that you pay attention to a couple of details. First of all, if the trial judge doesn’t offer counsel the opportunity to examine the exhibits prior to closing argument, you should ask to see them. Look through them and then give opposing counsel the opportunity to do the same. At the end of the trial in 2014, I didn’t review the exhibits, as I was using Trial Director at the time and had all of the exhibits scanned into the trial presentation program. I didn’t think I needed to look at them, but if I had looked at them and the redacted document was stapled to the unredacted document, I would have caught it then before it was ever sent to the jury and avoided having to deal with the independent action to set the judgment aside. Secondly, I would have met with opposing counsel when he went to review the record in the trial court when he was getting it ready for his appeal. In Virginia, it is the responsibility of the appellant to make sure that the record is “perfected” for appeal. If you are the prevailing party, you typically don’t think that it is your burden to make sure that the record is straight, however, you have a vested interest in making sure that everything is done properly and that the parties are on the same page when it comes to the contents of the record.