July 2016 Fourth Example Ten-point Answers to Virginia Essay Questions


      Blake is the owner of Spartan Metal Buildings, Inc., ("SMB"), a metal fabricator located in an industrial park in Salem, Virginia. Periodically, SMB needs to clear its storage yard of accumulated scrap metal.

      One day at lunch with his friend Drew, who had just been laid off from his job, Blake was complaining about having to do the cleanup. Drew said he needed the work and asked Blake if he could help with the cleanup, take away the scrap metal on his flatbed truck, and, by way of compensation, sell the scrap metal and keep the proceeds. Blake agreed, and they met later that afternoon in the SMB yard.

      For two hours, Blake directed his employees and Drew as they moved all of the scrap metal into a large pile. Blake operated a crane to load some of the larger pieces on the back of Drew's flatbed truck. While moving one of the larger pieces, Drew tried to guide it onto the truck. At that time, the crane was dangerously close to a power line which crossed the yard. The metal piece Drew was guiding onto the truck came into contact with the power line and Drew was severely burned. Drew survived the incident but amassed over $400,000 in medical expenses to be treated for his injuries. He filed a claim with SMB's insurance carrier for workers' compensation benefits, but the claim was denied.

      Drew filed a Complaint in the Circuit Court for the City of Salem alleging negligence against Blake and SMB ("Defendants") for personal injuries that he sustained. The Defendants answered with a general denial. When Blake was deposed in the discovery process, he testified: (1) that he was aware of the low height of the electrical line across the yard; (2) he should have warned Drew to stay clear from the crane and the scrap metal being moved; and (3) he was distracted just prior to the incident when his cell phone vibrated in his rear pocket, and he was reaching to check it when the incident occurred.

      Drew filed a Motion for Summary Judgment asserting that Blake and SMB (under a theory of respondeat superior) were negligent as a matter of law based upon Blake's own party admissions made in his deposition. The Defendants opposed the Motion for Summary Judgment arguing that (1) Drew, as a plaintiff, is not entitled to move for summary judgment, and (2) in the alternative, summary judgment cannot be granted because the motion relies upon Blake's deposition testimony. The Circuit Court for the City of Salem agreed with both of the Defendants' arguments and denied the Motion for Summary Judgment.

      A month before trial, the Defendants filed a Plea in Bar alleging that the Circuit Court had no subject matter jurisdiction over Drew's claim because at the time of the accident Drew was a "statutory employee" of SMB whose exclusive remedy for his injuries was under the Virginia Workers' Compensation Act. Drew filed a Response in Opposition to the Plea in Bar asserting only that the Defendants waived any objection to jurisdiction because they had not raised this defense in their Answer to the Complaint.

      By Final Order dated May 22, 2016, the Circuit Court granted the Defendants' Plea in Bar, holding that Drew was a statutory employee of Blake and SMB and that subject matter jurisdiction could not be waived by the Defendants.

      On June 15, 2016, Drew filed a Notice of Appeal with the Clerk of the Circuit Court. He believes, but is uncertain, that he has an appeal to the Supreme Court of Virginia as a matter of right. He intends to base his appeal on the following assignments of error:

  1. That the trial court erred in denying his Motion for Summary Judgment on the grounds that it did.
  2. That the Defendants' "exclusive remedy" jurisdictional objection was waived because it was not raised as a defense in their Answer to the Complaint.
  3. The Defendants should have been estopped from asserting the jurisdictional objection because SMB's insurance carrier denied his claim for workers' compensation benefits.
  (a) Did Drew timely file his Notice of Appeal? Explain fully.
  (b) Does Drew have an appeal to the Supreme Court of Virginia as a matter of right? Explain fully.
  (c) If his case properly comes before the Supreme Court of Virginia, what disposition will the Court make on each of the enumerated assignments of error? Explain fully.



      Drew did timely file his Notice of Appeal. A party seeking an appeal from a judgment in Circuit Court must file a notice of appeal in the Circuit Court in which a final order or judgment has been entered, within 30 days after the judgment or order has been entered. Here, The final order in the case was entered on May 22, 2016, and Drew filed his Notice of Appeal in the Circuit Court on June 15, 2016. Because this was within 30 days of the final order, Drew's Notice of Appeal was timely field.


      Drew does not have an appeal as a matter of right to the Supreme Court of Virginia. The Supreme COurt of Virginia has discretionary review over all appeals, and will grant review only where there is a significant question of Virginia constitutional law, or the case has substantial precedential value. One exception to this rule is that all criminal cases in which the death penalty has been imposed are automatically appealed to the Supreme Court of Virginia. Because Drew's case is not a death penalty case, he does not have an appeal as of right to the Supreme Court of Virgina


      The Supreme Court would find that the trial court properly denied Dreew's Motion for Summary Judgment, but only for the reason that he used only deposition testimony to support his motion. In Virginia, Summary Judgment is avaiable for either the plaintiff or defendant when there is no dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Additionally, in Virginia, a party may not use deposition testimony as a basis for the facts included in a motion for summary judgment unless all parties agree to allow such an inclusion. Here, The court erred in denying Drew's motion for summary judgment solely because he was a plaintiff. Drew would be entitled to summary judgment if he showed that there was no dispute of material fact, and that on those facts, all of the elements of his negligence claim were established. Therfore, it was error to deny the Motion fo rSummary Judgment just because Drew is a plaintiff. However, the court properly denied the motion on the second grounds. Drew's motion relied on deposition testimony to establish the factual basis for the motion. There is no evidence that Drew consulted with the defendants on using deposition testimony in his Motion for Summary Judgment. Without an agreement by the parties, teh motion was properly denied for relying on deposition testimony.

      It was also not error for the trial court to find that the defendant's jurisdictional objection was not waived. In Virginia, a party may object to subject matter jurisdiction on a claim at any time, even for the first time upon appeal, and the court may raise the issue sua sponte. An objection to subject matter jurisdiction is not waivable. Here, it is immaterial that the defendant's did not raise their jursidictional argument in the answer. The objection to the claim was based on subject matter jurisdiction and was therefore never waiveable.

      The Supreme Court would also find that the defendants are not estopped from arguing that the court lacked suject matter jursidiction because their insurance carrier denied the worker's comepnsation claim. In order to raise an argument on appeal, generally the party asserting the error must object to the error on the record at the time the error was made in the trial court. Failure to raise such an objection constitutes a waiver of the argument that the trial court erred on that matter on appeal. In this case, Drew objected to the defendat's jursidcitional argument at trial. However, Drew only argued that the jurisdictional argument was waived, and not that the defendant's should be estopped from raising the argument becasue of the denial of the defendant's insurance claim. By failing to raise this argument at trial, Drew did not preserve it for appeal, and Drew may not raise the argument for the first time in the Supreme Court.


      A) Notice of Appeal

      Drew timely filed his notice of appeal. A party must file a notice of appeal with the clerk of the circuit court within 30 days of the final judgment of a suit. Here, the final order came down on May 22, and Drew filed on June 15, within the 30 day requirement.

      B) Appeal as a Matter of Right

      Drew does not have an appeal as a matter of right to the Supreme Court of Virginia. Only a narrow selection of cases are appealable as a matter of right to the Supreme Court of Virginia. While Drew was correct to appeal the case to the Supreme Court of Virginia, he must petition with the court for review; it is not an appeal as a matter of right.

      C) Holdings on Appeal

      1. Denial of Drew's Motion for Summary Judgment

      Drew is not barred from filing a motion for summary judgment merely because he is a plaintiff, but the circuit court did not err in deciding Drew's Motion for Summary Judgment because the motion relied on Blake's deposition testimony. In Virginia, deposition testimony may only be used in motions for summary judgment when both of the parties have agreed to it. Here, Blake and SMB did not agree to using the deposition testimony in the motion for summary judgment. Therefore, Drew could not rely on it in his motion.

      A motion for summary judgment will be granted for the movant when there is no dispute of material fact. The success of Drew's motion depended on the deposition testimony, becuase without it, there is a dispute over the material facts of the case. Further, as plaintiff, Drew had to show that there is no dispute as to material facts on all the elements of his claim. Here, because he cannot use the deposition testimony and the defendants denied the claims Drew alleged in his complaint, there is still a dispute as to matrial facts of his claim and the circuit court was correct in denying the motion.

      2. Jurisdictional Objection Waived

      The Defendant's did not waive their juridictional objection by not including the defense in their Answer to the Complaint because a party may raise a subject-matter jurisdiction issue at anytime. Therefore, the Defendants were allowed to assert that Drew was a statutory employee and therefore barred from recovering under a negligence theory despite the fact that they did not include the defense in their answer.

      3. Defendants should have been estopped

      The defendants should not have been estopped from asserting the jurisdictional objection simply because he was denied workers' compensation benefits. In Virginia, one is estopped from asserting an issue if there is a final judgment on the merits, the issue is the same as the issue in the previous action, the issue to be estopped was fully litigated in the previous action, the issue was material to the previous action, and there is mutuality of the parties.

      Here, the issue is not the same, and there is no mutuality of the parties. Further, the facts indicate that Drew filed a claim, but there is no indication that the issue of whether he was a statutory employee was litigated at all. Even if the claim was denied because the insurance carrier determined that he was not a statutory employee, there is no indication that the issue was litigated in court. Further, there isn't mutuality of the parties because the insurance carrier was not proxy of the defendants'.

      The fact that the insurer denied his workers compensation claim does not give Drew the right to sue SMB and Blake under a theory of negligence. The court could independently decide whether he was a statutory employee of SMB and therefore whether he could only being a claim under the Virginia Workers' Compensation Act. Finally, Drew did not raise this issue at the circuit court, even though he could have in his response.