Paugh v. Henrico Area Mental Health ( 2013 )

PRESENT: All the Justices
MICHAEL PAUGH
OPINION BY
v. Record No. 121562 JUSTICE CLEO E. POWELL
June 6, 2013
HENRICO AREA MENTAL HEALTH
AND DEVELOPMENTAL SERVICES
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James S. Yoffy, Judge
In this appeal, Michael Paugh argues that the circuit
court erred in using the date that the special justice entered
the order committing him as the date upon which to evaluate the
evidence on his appeal to the circuit court. He further
contends that the circuit court erred in admitting the
preadmission screening report into evidence in its entirety.
Finally, Paugh asserts that the evidence was insufficient to
involuntarily commit him on the day of his circuit court
hearing. 1 We hold that Code § 37.2-821 requires that the
circuit court determine whether an individual meets the
requirements for involuntary commitment on the date of the
circuit court hearing. Because we so hold, we do not reach the
issue of whether Code § 37.2-816 permits the admission of the
entirety of the preadmission screening report into evidence.
1
Rule 5:17(c)(1)(iii) provides that “[a]n assignment of
error that does not address the findings or rulings in the
trial court . . . is not sufficient.” Because the trial court
did not hold that Paugh met the conditions for involuntary
commitment on the date of the circuit court hearing, Paugh’s
third assignment of error is insufficient and we decline to
1
I. FACTS AND PROCEEDINGS
On March 19, 2012, a Henrico County Magistrate issued a
temporary detention order for Michael Paugh. The following
day, a special justice involuntarily committed Paugh pursuant
to Code § 37.2-817. Paugh appealed.
In a hearing in circuit court on May 18, 2012, the
Commonwealth offered Paugh’s preadmission screening report for
admission into evidence. That report contained information,
relayed by Henrico Police, from Loretta Ewing, Paugh’s friend,
about why she contacted the police. Ewing believed that Paugh
was suicidal because of his contentious divorce, financial
problems, and substance abuse history. She informed police
that he had written “good-bye” letters to his daughters that he
read to her, one of which the police located. Ewing also told
the police that she believed that Paugh possessed guns. Paugh
objected to the narrative statement in the preadmission
screening report being admitted in its entirety because Ewing’s
narrative statement was not a fact as contemplated by Code §
37.2-816. The Commonwealth argued that the statements were
adoptive admissions by Paugh or business records. The circuit
court held that the report was admissible in its entirety.
Paugh also argued that the issue before the circuit court
was a de novo determination of whether he was committable on
address it.
2
the day of the hearing, not a review of whether he met the
conditions for involuntary commitment on the date of his
admission. The court ruled that “common sense” required that
it conduct a de novo appeal of whether Paugh should have been
admitted on March 19, 2012, not on the day of the hearing.
As to the merits of the petition for involuntary
commitment, the Commonwealth argued that Paugh had been
properly admitted on March 19, 2012, but informed the court
that because Paugh had been released Paugh no longer met the
criteria for involuntary commitment and the Commonwealth would
not seek further hospitalization or treatment. After reviewing
the evidence and hearing argument, the circuit court determined
that there was clear and convincing evidence that Paugh was a
danger to himself on March 19, 2012 and, therefore, the
Involuntary Commitment Order was valid. The court then denied
Paugh’s appeal.
II. ANALYSIS
This appeal presents an issue of first impression for this
Court: in a de novo appeal of a general district court or
special justice’s determination that a person meets the
requirements for involuntary commitment, is the circuit court
to evaluate the evidence as of (i) the date of admission, (ii)
the date of the lower court’s hearing, or (iii) the date of the
3
circuit court hearing of the de novo appeal? 2
We review a circuit court’s interpretation of statutes de
novo. Jones v. Williams, 280 Va. 635, 638, 701 S.E.2d 405, 406
(2010). This Court has
repeatedly . . . stated the principles of
statutory construction that apply when a
statute . . . is clear and unambiguous. In
such circumstances, a court may look only
to the words of the statute to determine
its meaning. The intention of the
legislature must be determined from those
words, unless a literal construction would
result in a manifest absurdity. Thus, when
the legislature has used words of a clear
and definite meaning, the courts cannot
place on them a construction that amounts
to holding that the legislature did not
intend what it actually has expressed.
Hubbard v. Henrico Ltd. P’ship, 255 Va. 335, 339, 497 S.E.2d
335, 337 (1998)(citations omitted).
Code § 37.2-821(B) provides that an appeal
shall be heard de novo in accordance with
the provisions set forth in §§ 37.2-802,
37.2-804, 37.2-804.1, 37.2-804.2, and 37.2-
805, and (i) § 37.2-806 or (ii) §§ 37.2-814
through 37.2-819, except that the court in
its discretion may rely upon the evaluation
2
The Commonwealth argues that this issue is moot because
Paugh has been released from commitment. Paugh, however, is
subject to collateral consequences in this case because the
trial court’s ruling allowed the initial commitment order from
the special justice to remain intact. This Court has
previously held that a case is not moot where collateral
consequences remain. E.C. v. Va. Dep’t of Juvenile Justice, 283
Va. 522, 530-36, 722 S.E.2d 827, 831-34 (2012); see also
Tazewell Cnty. Sch. Bd. v. Brown, 267 Va. 150, 158, 591 S.E.2d
671, 674 (2004) (holding that the collateral consequences of a
civil judgment prevented it from being moot).
4
report in the commitment hearing from which
the appeal is taken instead of requiring a
new evaluation pursuant to § 37.2-815. Any
order of the circuit court shall not extend
the period of involuntary admission or
mandatory outpatient treatment set forth in
the order appealed from.
Specifically, Code § 37.2-821(B) indicates that “[a]n order
continuing the involuntary admission shall be entered only if
the criteria in [Code] § 37.2-817 are met at the time the
appeal is heard.” (Emphasis added.)
Code § 37.2-821(B) provides a de novo trial in the circuit
court. See also Code § 16.1-113.
The purpose of this two-tier trial system
is to allow a party aggrieved by a final
judgment of the general district court to
have the case tried again by the circuit
court as if the case originally had been
instituted there. Such an appeal is in
effect a statutory grant of a new trial, in
which the perfected appeal annuls the
judgment of the district court as
completely as if there had been no previous
trial. If the judgment of the general
district court is reversed, the circuit
court is required to enter an order or
judgment “as ought to have been made or
given by the judge of the court from which
the appeal was taken.” Code § 16.1-113.
Ragan v. Woodcroft Village Apts., 255 Va. 322, 327, 497 S.E.2d
740, 742 (1998)(citations omitted). 3
3
Although Code § 37.2-821(A) provides that a petition for
appeal does not automatically suspend an order of the judge or
special justices, this does not affect the fact that a de novo
trial is in effect a statutory grant of a new trial.
5
The Code provides that the de novo trial allows the case
to be tried in the circuit court as if the case originally had
been instituted there. This means that the proceeding before
the circuit court is a “Petition for Involuntary Admission for
Treatment,” not a review of the lower court’s decision. Thus,
the plain meaning of the language used by the General Assembly
in the statute clearly indicates that the circuit court is to
evaluate whether the individual meets the requirements for
involuntary commitment as of the day of the circuit court’s
hearing and not on any other day.
This interpretation finds support in the fact that the
circuit court is to follow the procedure set forth in Code
§§ 37.2-814 through -819, the same procedure that the general
district court followed. Specifically, the following
provisions govern the proceeding in the circuit court:
After observing the person and
considering (i) the recommendations of any
treating or examining physician or
psychologist licensed in Virginia, if
available, (ii) any past actions of the
person, (iii) any past mental health
treatment of the person, (iv) any
examiner's certification, (v) any health
records available, (vi) the preadmission
screening report, and (vii) any other
relevant evidence that may have been
admitted, including whether the person
recently has been found unrestorably
incompetent to stand trial after a hearing
held pursuant to subsection E of § 19.2-
169.1, if the judge or special justice
finds by clear and convincing evidence that
6
(a) the person has a mental illness and
there is a substantial likelihood that, as
a result of mental illness, the person
will, in the near future, (1) cause serious
physical harm to himself or others as
evidenced by recent behavior causing,
attempting, or threatening harm and other
relevant information, if any, or (2) suffer
serious harm due to his lack of capacity to
protect himself from harm or to provide for
his basic human needs, and (b) all
available less restrictive treatment
alternatives to involuntary inpatient
treatment, pursuant to subsection D, that
would offer an opportunity for the
improvement of the person's condition have
been investigated and determined to be
inappropriate, the judge or special justice
shall by written order and specific
findings so certify and order that the
person be admitted involuntarily to a
facility for a period of treatment not to
exceed 30 days from the date of the court
order.
Code § 37.2-817(C).
Moreover, the General Assembly drafted the Code to allow
the circuit court, in its discretion, to order a new evaluation
rather than rely upon the one previously conducted. See Code
§§ 37.2-815, -821(B). Clearly, this indicates that the
evidence should be viewed as of the date of the circuit court
hearing and not frozen in time as of the general district court
hearing.
Because the General Assembly clearly intended that the
circuit court examine the evidence as of the date the
individual appears in the circuit court, the circuit court
7
erred in evaluating the evidence as of the day that Paugh was
admitted. Here, the Commonwealth conceded and the court agreed
that the evidence was insufficient to commit Paugh as of the
day of the circuit court hearing. Thus, the circuit court
should have dismissed the Commonwealth’s petition for
involuntary commitment.
III. CONCLUSION
For the foregoing reasons, we hold that the day that the
de novo hearing is conducted is the proper date on which to
consider whether the individual should be committed. The
circuit court used the incorrect date in this case. Because
the Commonwealth conceded and the court agreed that the
evidence was insufficient to commit Paugh as of the date of the
circuit court hearing, we reverse the circuit court’s judgment
and dismiss the Commonwealth’s petition for involuntary
commitment.
Reversed and dismissed.
JUSTICE MIMS, concurring.
The collateral consequences for which Paugh seeks redress
are real, and potentially of constitutional magnitude.
Consequently, the majority is correct that this case is not
moot. However, a review of the overall statutory scheme of
Chapter 8 of Title 37.2 reveals that the path to address such
collateral consequences is not found within Code § 37.2-821 or
8
the remainder of Article 5. Rather, it is found within Article
8, which is captioned “Testing Legality of Detention,” and for
purposes of this case, particularly in Code § 37.2-846(A).
Nevertheless, because the Commonwealth failed to object or
assign cross-error to the circuit court’s use of Code § 37.2-
821 rather than Code § 37.2-846(A), the incorrect application
of Code § 37.2-821 is now the law of the case. Trustees of
Asbury United Methodist Church v. Taylor & Parrish, Inc., 249
Va. 144, 154, 452 S.E.2d 847, 852 (1995) (where a party “did
not object or assign error to [the circuit court’s] ruling, it
. . . become[s] the law of the case”). Therefore, I
reluctantly must concur in the result.
When considering the plain meaning of a statutory
provision to determine the legislature’s intent in adopting it,
we may consider as a whole the entire legislative enactment
from which it was codified. Eberhardt v. Fairfax County Emps.
Ret. Sys. Bd. of Trs., 283 Va. 190, 194-95, 721 S.E.2d 524, 526
(2012). The current incarnations of both Code §§ 37.2-821 and
37.2-846 trace their origins to a single legislative enactment
recommended by the Virginia Code Commission. 2005 Acts ch.
716; see also House Doc. No. 31, Virginia Code Commission,
Report on the Revision of Title 37.1 of the Code of Virginia
(2005). In particular, Chapter 8 was deliberately constructed
to organize disparate provisions of former Title 37.1 into a
9
“streamlined” and “comprehensible” structure when that former
title was revised and recodified as Title 37.2. Id. at 5.
Article 5 of Chapter 8 is captioned “Involuntary
Admissions.” A review of the article in its entirety reveals
that the expedited circuit court review mandated by Code §
37.2-821 is intended for those instances when the person
remains involuntarily committed or, if no longer committed,
remains subject to an unexpired commitment order. There can be
no other reason why the General Assembly would require such
cases to be filed within 10 days of the initial commitment and
to have the highest priority on the circuit court’s docket as
expressly directed by the statute:
Any person involuntarily admitted to an
inpatient facility or ordered to mandatory
outpatient treatment pursuant to §§ 37.2-
814 through 37.2-819 . . . shall have the
right to appeal the order to the circuit
court . . . . An appeal shall be filed
within 10 days from the date of the order
and shall be given priority over all other
pending matters before the court and heard
as soon as possible, notwithstanding §
19.2-241 regarding the time within which
the court shall set criminal cases for
trial. . . .
Code § 37.2-821(A). 1
Following this line of reasoning, the majority correctly
1
The filing period was reduced to 10 days from 30 days in
2010. 2010 Acts chs. 544 & 591. However, review was given
docket priority in the original version of the statute, 2005
Acts ch. 716, as it had been in its predecessor, former Code §
10
holds that the circuit court “is to evaluate whether the
individual meets the requirements for involuntary commitment as
of the day of the circuit court’s hearing and not on any other
day.” The circuit court’s sole task when Code § 37.2-821 is
viewed within the framework of Article 5 is to determine,
immediately and without delay, whether the continued and
prospective commitment is lawful.
In this case, the circuit court did not hold the Code §
37.2-821 de novo hearing for more than eight weeks, rather than
giving it “priority over all other pending matters” as required
by the statute. Code § 37.2-821(A). This was error. As a
consequence of the resulting delay, Paugh was not subject to
continuing or prospective commitment by the time this matter
actually was heard. The civil commitment order already had
expired by its own terms.
Nonetheless, Paugh faced significant continuing collateral
consequences based upon the civil commitment order. Presuming
that the General Assembly was aware of such potential
consequences, would it have given appellants a mere 10 days to
raise them by way of circuit court appeal? Or required the
circuit court to expedite its consideration of them? 2
37.1-67.6. House Doc. No. 31 at 180.
2
The particular collateral consequence aggrieving Paugh is
the effect of a commitment order on his ability to possess
firearms. See Code § 18.2-308.1:3(A) (prohibiting possession
11
Due process requires that there be an avenue for
constitutionally cognizable collateral consequences to be
addressed. Zinermon v. Burch, 494 U.S. 113, 125-26 (1990)
(failure to provide a remedy for an erroneous deprivation of a
constitutionally protected interest is an unconstitutional
denial of procedural due process). However, the proper avenue
to address such claims is not found within Code § 37.2-821;
rather, it is found within Code § 37.2-846(A):
§ 37.2-846. Procedure when person not
confined in facility or other institution
A. In all cases, other than those provided
for in § 37.2-845, the person may file his
petition [to test the legality of his
detention] in the circuit court of the
county or the city in which he resides or
in which he was found to have a mental
illness or in which an order was entered
authorizing his continued involuntary
inpatient treatment, pursuant to Article 5
(§ 37.2-814 et seq.) of Chapter 8 of this
title.
It is apparent that this is a separate and distinct appeal from
the expedited de novo appeal procedure set forth in Code §
37.2-821. Were this not so, Code § 37.2-846(A) would be
of firearm by “any person . . . involuntarily admitted to a
facility or ordered to mandatory outpatient treatment as the
result of a commitment hearing pursuant to Article 5 (§ 37.2-
814 et seq.) of Chapter 8 of Title 37.2”). Though the General
Assembly shows great respect for the constitutional right to
keep and bear arms, it is difficult to imagine that this
respect would cause it to mandate that a circuit court hearing
relating to that right must take precedence even over the
speedy trial statute for incarcerated criminal defendants.
12
superfluous. See Commonwealth v. Squire, 278 Va. 746, 752, 685
S.E.2d 631, 634 (2009) (“We do not consider actions of the
General Assembly to be superfluous; instead, we seek to provide
meaning to all the words of a statute.”); Yamaha Motor Corp. v.
Quillian, 264 Va. 656, 667, 571 S.E.2d 122, 127-28 (2002)
(rejecting an asserted interpretation that would render the
provisions of a part of a statute superfluous).
Accordingly, because the only issues remaining at the time
of the circuit court hearing were the collateral consequences
of the initial commitment order, Code § 37.2-821 was no longer
applicable and Code § 37.2-846(A) provided the proper means for
Paugh to challenge his initial commitment. That being so, the
proper inquiry in the circuit court and in this Court would
have been whether Paugh’s commitment was according to law on
the day when the order was entered rather than on the day of
the hearing as contemplated by Code § 37.2-821. Regrettably,
this Court’s hands are tied, as there was no objection or
assignment of cross-error to the circuit court’s improper use
of Code § 37.2-821. To the extent this predicament resulted
from the statutory scheme’s failure to anticipate that a Code §
37.2-821 hearing could occur long after a commitment had ended
and the concomitant commitment order had expired, the General
Assembly may wish to consider clarifying the interrelationship
between Code §§ 37.2-821 and 37.2-846(A).
13
JUSTICE McCLANAHAN, concurring in part and dissenting in part.
I agree that the circuit court erred in its construction
and application of Code § 37.2-821, but I disagree with the
majority's alternative construction and application of the
statute. Also, I disagree with Justice Mims' application of
the law of the case doctrine, which results in his concurrence.
In my opinion, the circuit court reached the right result in
ordering dismissal of Paugh's appeal, but for the wrong reason.
Thus, contrary to the majority and concurring opinions, I would
affirm the judgment of the circuit court. 1
1. Code § 37.2-821 Appeal and Paugh's Requested Relief
As a threshold matter, I agree with both the majority and
concurring opinions that the relevant inquiry in a Code § 37.2-
821 appeal ("821 appeal") is limited to whether an individual
meets the criteria in Code § 37.2-817 for continued involuntary
commitment "at the time the appeal is heard." Code § 37.2-
821(B). Thus, for example, the issue in an 821 appeal may be
whether at the time of the hearing before the circuit court
there is "a substantial likelihood" in the near future that the
individual will "cause serious physical harm to himself or
1
I concur with the majority, however, in holding that we
need not address the admissibility of the preadmission
screening report under Code § 37.2-816 in light of our
respective views as to the proper disposition of this case
under Code § 37.2-821.
14
others," Code § 37.2-817(C) – but not whether that was the case
at the time of the initial hearing before the general district
court judge or special justice. 2 The majority and Justice Mims
reach this conclusion through divergent statutory analyses.
I believe that, in this regard, Justice Mims is correct in
his determination that a proper construction of the statute can
only be reached by considering Chapter 8, Article 8 of Title
37.2, Code §§ 37.2-844 through -847, and in particular Code §
37.2-846 (entitled "Procedure when person not confined in
facility or other institution") for purposes of this case. 3 I
also agree with Justice Mims that Paugh erroneously filed the
instant action as an 821 appeal rather than utilizing the post-
2
Significantly, because of this distinction, an 821 appeal
is unique in that, unlike a typical appeal, the circuit court
conducts a de novo trial upon a different inquiry than the one
conducted by the lower tribunal from which the appeal derives.
Each tribunal is required to evaluate the subject individual's
mental condition as of the time of the respective proceeding;
and, accordingly, the circuit court may in its discretion
require a new mental evaluation report for the hearing in the
821 appeal. Code § 37.2-821(B). Those separate inquiries may,
of course, render different psychological assessments (arising,
for example, from the individual's intervening receipt of
appropriate treatment), and necessarily require different
conclusions as to the need for involuntary commitment.
3
While we are unanimous in the conclusion that the circuit
court erred in its construction of Code § 37.2-821, I concur
with the circuit court's assessment that "there's nothing plain
about this statute," requiring the application of principles of
statutory construction to determine its meaning. See
Appalachian Power Co. v. State Corp. Comm'n, 284 Va. 695, 706,
733 S.E.2d 250, 256 (2012); Brown v. Lukhard, 229 Va. 316, 321,
330 S.E.2d 84, 87 (1985).
15
release procedure available under Code § 37.2-846(A) for
challenging his commitment. 4 Moreover, in his appeal, Paugh
erroneously requested that the circuit court dismiss the
Commonwealth's underlying petition for his involuntary
commitment. The majority does not address this procedural
error, however, in light of its construction of Code § 37.2-
821.
2. Dismissal of Commonwealth's Petition
My principal disagreement with the majority goes to its
disposition of the Commonwealth's petition for Paugh's
involuntary commitment. Because Paugh did not meet the
criteria for continued involuntary commitment at the time of
the hearing in his 821 appeal, the majority concludes that the
circuit court erred in refusing to dismiss the Commonwealth's
petition. The majority thus reverses the trial court's
judgment and dismisses the petition.
I find no language in Code § 37.2-821 requiring such a
result. Rather, the statute sets forth the procedure for an
expedited appeal to the circuit court for the limited purpose
of allowing an individual to obtain his release if the evidence
shows that he does not meet the criteria for continued
involuntary commitment "at the time the appeal is heard." Code
4
Paugh concedes on brief that he was, in fact, released
16
§ 37.2-821(B). Such a showing does not mean, however, that the
initial commitment order was unlawful. See supra note 2. Code
§ 37.2-821 neither requires nor authorizes the circuit court to
adjudicate the validity of the individual's initial commitment.
Nevertheless, under the majority's construction and application
of the statute, every time an individual prevails in an 821
appeal, the underlying petition for involuntary commitment,
along with the involuntary commitment order, will be rendered
void as a matter of law, with no opportunity available to the
Commonwealth to defend the validity of the initial commitment.
An additional consequence of the majority's construction
and application of Code § 37.2-821 is that every individual who
is committed under an involuntary commitment order, and thereby
prohibited from purchasing, possessing or transporting a
firearm pursuant to Code § 18.2-308.1:3(A), will have this
restriction negated by a successful 821 appeal. Indeed,
avoidance of this prohibition is apparently Paugh's paramount
objective in pursuing the instant action.
When a statute is susceptible to more than one
construction, "courts will give that construction to it which
will be the more reasonable." Martz v. County of Rockingham,
111 Va. 445, 450, 69 S.E. 321, 322 (1910); see Ambrogi v.
Koontz, 224 Va. 381, 389, 297 S.E.2d 660, 664 (1982) (explaining
the day before he filed his 821 appeal.
17
that "a statute should, if possible, be given a reasonable
construction which will effect rather than defeat a legislative
purpose"). Further, "we presume that the General Assembly does
not intend the application of a statute to lead to irrational
consequences." Virginia Electric & Power Co. v. Citizens for
Safe Power, 222 Va. 866, 869, 284 S.E.2d 613, 615 (1981)
(citing F.B.C. Stores, Inc. v. Duncan, 214 Va. 246, 249-50, 198
S.E.2d 595, 598 (1973)).
I do not believe the majority's construction and
application of Code § 37.2-821 is what the General Assembly
intended, particularly when this statute is read in conjunction
with Code §§ 37.2-844 through -847 setting forth other
procedures under Chapter 8 of Title 37.2 for challenging the
legality of one's involuntary commitment. See Lucy v. County
of Albemarle, 258 Va. 118, 129, 516 S.E.2d 480, 485 (1999)
(statutes which are "'parts of the same general plan are . . .
ordinarily considered as in pari materia'" (quoting Prillaman
v. Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7 (1957))).
A more reasonable construction and application of this
statutory scheme is that a successful 821 appeal terminates the
effectiveness of the petition for involuntary commitment and
accompanying commitment order, but does not result in its
outright dismissal. Code § 37.2-846 would then provide the
procedural avenue for challenging the validity of the
18
underlying petition and commitment order.
3. Circuit Court's Dismissal of Paugh's Appeal
The circuit court ruled that the issue to be decided in
this case was whether the special justice's order of
involuntary commitment was lawful. While that was error, the
circuit court, having made that ruling, heard evidence
regarding Paugh's mental condition as of the time of his
involuntary commitment and found that he had been lawfully
committed. The circuit court therefore dismissed Paugh's
appeal. Had the circuit court correctly construed and applied
Code § 37.2-821, it would have still been required to dismiss
this action. While the undisputed facts are that Paugh did not
meet the criteria for involuntary commitment as of the time the
circuit court heard his case, Paugh had already been released
when he filed this action. Therefore, the action was moot.
See E.C. v. Va. Dep't of Juvenile Justice, 283 Va. 522, 530,
722 S.E.2d 827, 831 (2012); Franklin v. Peers, 95 Va. 602, 603,
29 S.E. 321, 321 (1898).
I would thus hold that the circuit court reached the right
result in dismissing Paugh's appeal, but for the wrong reason.
See Deerfield v. City of Hampton, 283 Va. 759, 767, 724 S.E.2d
724, 728 (2012) (affirming the trial court's judgment
dismissing a declaratory judgment action by applying the right
result for the wrong reason doctrine). Accordingly, I would
19
affirm the judgment of the circuit court. 5
5
I do not believe this result would be in conflict with
the law of the case doctrine because, in my opinion, that
doctrine has no application to this Court's decision on the
issues presented in this appeal. The issues of (i) how Code §
37.2-821 should be construed, and (ii) how the statute should
be applied to the undisputed facts in this case, are squarely
before this Court for our review upon Paugh's assignments of
error. See Ilg v. United Parcel Service, Inc., 284 Va. 294,
301, 726 S.E.2d 21, 25 (2012) (holding that the law of the case
doctrine was inapplicable to issues there on appeal); cf. Lane
v. Starke, 279 Va. 686, 689 n.3, 692 S.E.2d 217, 218 n.3 (2010)
(explaining that the subject ruling of the trial court that was
not appealed became the law of the case). Thus, I see no
reason why this Court's resolution of these issues is
constrained in the absence of a cross-assignment of error by
the Commonwealth.
20