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Important Opinions 2008

JANUARY * FEBRUARY * MARCH * APRIL * MAY * JUNE * JULY * AUGUST * SEPTEMBER * OCTOBER * NOVEMBER * DECEMBER

JANUARY

Attorneys

Discovery Sanctions – Real Estate Contract

In this litigation in which plaintiff buyers allege that defendants, the seller of an Arlington home and her broker/husband, knew that a rear addition to the home was constructed without permits or zoning variances and had caused structural damage to the home, the circuit court sanctions plaintiffs for their failure to respond to discovery requests seeking the basis for their claim.

Skibinski v. Lunger (Arlington County Cir. Ct.) (VLW 008-8-005) (7 pp.)

Attorneys

UPL – Child Support Petition – Agency Staff Signatures

A federal judge in Harrisonburg has dismissed a lawsuit challenging the authority of non-lawyer staff members of the Division of Child Support Enforcement to sign motions to hold in contempt parents who are delinquent in their support obligations.

Briggman v. Commonwealth of Va., DSS, DCSE (USDC-WD) (VLW 008-3-003) (23 pp.)

Civil Procedure

Filing Date – Amended Complaint – Leave To Amend

In this automobile accident wrongful death suit that plaintiff wished to amend to name as defendants individual employees of the Virginia Department of Transportation, the trial court did not err in holding that an amended complaint is not deemed filed, and is thus without legal efficacy, until a trial court grants leave to amend.

Ahari, Adm’r v. Morrison (Va.S.Ct.) (VLW 008-6-004) (8 pp.)

Civil Rights

Excessive Force – Police Assault – Norfolk Nightclub

In this suit by a woman who alleges two police officers used excessive force when they verbally and physically assaulted her outside a Norfolk nightclub, slamming her against a vehicle and the pavement, choking her and tearing her blouse to expose her breasts, the plaintiff may not sue the defendant police captain and police chief who did not participate in or authorize the alleged misconduct and therefore are immune from suit.

Pigott v. Ostulano (Norfolk Cir.Ct.) (VLW 008-8-003) (5 pp.)

Contract

Public Procurement Act – Pre- & Post-Judgment Interest

In this continued litigation over a public contract for the construction of a waste water treatment facility, the Supreme Court articulates rules for distinguishing and awarding pre-judgment and post-judgment interest and, among other holdings, reverses a circuit court’s award of $1,162,805 in post-judgment interest on a compensatory damage award.

Upper Occoquan Sewage Authority v. Blake Construction Co./Poole & Kent, a Joint Venture (Va.S.Ct.) (VLW 008-6-001) (9 pp.)

Corporate

Stock Gift – Terminated Corporation

In this contest between siblings over ownership of 100 shares of stock of their deceased father’s demolition business, the son to whom the father purported to transfer the shares prior to his entry into a nursing home has proven a gift, and the transfer of stock was effective even though the corporation had been terminated by the State Corporation Commission for failure to maintain a registered agent and office.

Square Deal Demolition Inc. v. Doxie (Norfolk Cir.Ct.) (VLW 008-8-006) (10 pp.)

Corporate

Joint Venture- LLC – Operating Agreement – Arbitration Clause

Although the parties, two LLCs who formed a third LLC for the purpose of dealing in multi-family properties for investors seeking tax advantages for like-kind exchanges of qualifying properties, agreed to an arbitration clause in their operating agreement for the third LLC, that third LLC was not a party to the operating agreement and one party cannot compel arbitration of a derivative claim on behalf of the third entity.

Mission Residential LLC v. Triple Net Properties LLC (Va.S.Ct.) (VLW 008-6-015) (6 pp.)

Corporate

Non-Stock Corporation – Property Owners’ Association

A Greene County property owners’ association organized as a non-stock Virginia corporation does not qualify as an association under the Property Owners’ Association Act because the filing of the association’s articles and bylaws did not constitute a declaration imposing on the association operational or maintenance responsibilities for the common areas or roads of the development.

Dogwood Valley Citizens Ass’n Inc. v. Shifflett (Va.S.Ct.) (VLW 008-6-009) (9 pp.)

Criminal

Sentencing – Above-Guidelines Sentence – Notice

A 480-month sentence for a church van driver convicted of receiving child pornography is vacated because the district court did not provide sufficient notice that it was considering a sentence above the range prescribed by federal sentencing guidelines.

U.S. v. Fancher (USCA) (VLW 008-2-006) (13 pp.)

Criminal

Suppression – Search – Request for Counsel

Police apparently didn’t know get it when a burglary suspect responded to a request to search his car with, “Nah, I want a lawyer, you know what I’m saying?” and defendant’s statements should have been suppressed.

Ferguson v. Commonweath (Va.Ct.App.) (VLW 007-7-451) (21 pp.)

Domestic Relations

False Affidavits – Prompt Dismissal

A Salem Circuit Court dismisses a custody petition with false affidavits that do not disclose pending divorce and custody proceedings in Wisconsin.

VanGulik v. VanGulik (Salem Cir.Ct.) (VLW 007-8-276) (3 pp.)

Employment

ERISA – Disability Benefits – Standard Of Review

In reviewing a company’s termination of long-term disability benefits for a woman who suffered from severe rheumatoid arthritis and then was in a car accident, although the district court said it applied an abuse of discretion standard, in practical effect it reviewed the termination de novo, and the 4th Circuit reverses the decision for the employee and remands with directions to grant judgment to the company.

Evans v. Eaton Corp. Long Term Disability Plan (USCA) (VLW 008-2-003) (15 pp.)

Intellectual Property

Copyright Infringement – UCITA – Driver Education Materials – Online Course

The developers of curriculum materials and an online course for driver’s education for use by student drivers in Virginia cannot sue defendant Costech Technologies Inc., the vendor hired to integrate the content into an internet-based system, for violation of warranties under the Virginia Uniform Computer Information Transactions Act because statements Costech allegedly made guaranteeing that the online system would be “user-friendly” were mere puffery.

Wigand v. Costech Technologies Inc. (USDC-ED) (VLW 008-3-013)(26 pp.)

Intellectual Property

Foreign Company – Deposition

In “a first for any federal court,” the 4th Circuit says the Alexandria federal district court should have ordered a foreign company to find someone for a Rule 30(b)(6) deposition, even though the foreign company had no U.S. presence prior to filing a trademark application.

Rosenruist-Gestao v. Virgin Enterprises (USCA) (VLW 007-2-181) (36 pp.)

Medical Malpractice

Medical Expert Qualification – Neurologist v. Orthopedist – Spinal Surgery

A neurologist who had no active practice or hospital privileges since 1997 is not qualified to testify on the standard of care on intraoperative care during spinal surgery by an orthopedic surgeon, but he is qualified to testify on the standard of care for post-operative care and detection of neurological injury and on proximate causation; he may be qualified to testify as to proximate causation on the issue of intraoperative care.

Lloyd v. Kime (Va.S.Ct.) (VLW 008-6-008) (18 pp.)

Negligence

Workers’ Comp Bar – Employee Assault

A workplace assault – a male emergency services technician’s “playful” use of electric defibrillator paddles to shock a female coworker as they returned to work from lunch, fatally injuring her – did not arise “in the course of” their mutual employment and the victim’s estate can sue the assailant in tort.

Hilton, Adm’r v. Martin (Va.S.Ct.) (VLW 008-6-003) (7 pp.)

Negligence

Auto Accident – Respondeat Superior – Real Estate Agent

A realty company cannot be liable for injuries plaintiffs allegedly suffered from an accident involving the motorcycle on which plaintiffs were riding and a vehicle driven by defendant Long and Foster real estate agent because the agent was an independent contractor.

Hesse v. Ebbets (USDC-ED) (VLW 008-3-008) (21 pp.)

Negligence

Accident Reconstruction Testimony – Trucking Industry Expert

In this personal injury case, the circuit court denies in part defendant’s motion in limine to exclude expert testimony, and holds that plaintiff’s “trucking industry” expert may testify about physical properties of a tractor-trailer and industry standards for drivers, but not the cause of the accident, and plaintiff’s vocational expert may testify about future loss of earning capacity.

Zoll v. Werner Enterprises Inc. (Norfolk Cir.Ct.) (VLW 008-8-001) (5 pp.)

Real Estate

Foreclosure Sale – Accounting – ‘Balance Due’

In this case arising from a foreclosure sale by substitute trustees of property encumbered by a deed of trust, a commissioner of accounts may not require the trustee to characterize the apparent amount remaining due after application of the credit from the foreclosure sale as a “balance due” or a deficiency in an accounting of the sale, in which the lender was the successful bidder and the trustee received no sale proceeds.

In the Matter of the Foreclosure of Deed of Trust (Tazewell County Cir.Ct.) (VLW 008-8-007) (2 pp.)

Tort

Defamation – Public Official – Actual Malice Standard

A defamation plaintiff who was employed by the U.S. Navy as “Director of Contracting for the Southeast RMC,” a civilian position, when he allegedly was the subject of a letter to his superiors complaining that he may have violated certain ethical standards, is a “public official” who must show actual malice under New York Times v. Sullivan.

Carroll v. Jones (Portsmouth Cir.Ct.) (VLW 008-8-008) (7 pp.)

Search & Seizure

Anonymous Tip – Insufficient Corroboration

Evidence should have been suppressed in this case because an anonymous 911 caller’s tip that she had observed a driver participating in a transaction involving a sandwich bag and a gun was not sufficiently corroborated, and the police stop of the vehicle violated defendant’s Fourth Amendment rights.

U.S. v. Reaves (USCA) (VLW 008-2-002) (7 pp.)

Tort

Emotional Distress – Dental Assistant Harassment – Tortious Interference

A plaintiff dental assistant has not stated a claim for intentional infliction of emotional distress by defendant dentist with allegations that the dentist subjected her to a “severe and pervasive atmosphere of vile and outrageous verbal statements and physical acts,” including using abusive language toward her and fondling a patient in her presence; however, her allegations that defendant threatened and pressured her to quit her job state a claim for tortuous interference with contract.

Wilson v. Modjadidi (Norfolk Cir.Ct.) (VLW 008-8-002) (4 pp.)

FEBRUARY

Bankruptcy

Student Loan Discharge – Undue Hardship – Good Faith Effort

A bankruptcy court erred in discharging a couple’s student loans because they did not demonstrate a good-faith effort to repay their loans, as evidenced, for example, by husband’s decision to leave one job when the employer told him it would no longer pay overtime pay but only straight salary, for extra time worked, and debtors’ monthly expenses included internet, satellite tv, cell phones and YMCA membership.

Educational Credit Mgmt. Corp. v. Mosko (USCA) (VLW 008-2-028) (10 pp.)

Civil Rights

Municipal – County Zoning Ordinance – Methadone Clinic – ADA

A Baltimore County zoning ordinance violated the Americans with Disabilities Act by making it illegal to operate a methadone treatment clinic in a particular locale, but the district court’s injunction against the county prohibiting disability discrimination and enforcement of the ordinance is vacated, and the case remanded for further consideration of the basis for injunctive relief in light of appellate review.

A Helping Hand LLC v. Baltimore County, Md. (USCA) (VLW 008-2-026) (26 pp.)

Civil Rights

Autistic Student – IDEA – Private School Costs

The 4th Circuit vacates a Richmond federal district judge’s order requiring Hanover County School Board to pay the costs of private school placement for an autistic student, plus attorney’s fees and costs exceeding $180,000; the district court failed to give the required deference to the state hearing officer’s decision that the school board’s individualized education plan for the student was adequate, and we remand with instructions to reconsider the appropriateness of the IEP.

J.P., a minor v. County School Board of Hanover County, Va. (USCA) (VLW 008-2-030) (14 pp.)

Contract

Licensing Agreement – Injunction

In this litigation over a licensing agreement between Gameday Properties LLC and Sports Group Ltd, over competing publications, the circuit court grants partial temporary injunctive relief as to a specific noncompete provision in the licensing agreement, but denies the remainder of the request for temporary injunctive relief.

TCC Sports LLC v. Sports Group Ltd. (Loudoun County Cir.Ct.) (VLW 008-8-015) (3 pp.)

Criminal

Prior Drug Convictions – Life Sentence

A defendant convicted of conspiracy to distribute crack cocaine will not be sentenced to life in prison under 21 U.S.C. § 841(b)(1)(A) because, of the prior convictions cited by the government to support a life sentence, a Virginia cocaine conviction and a federal cocaine base conviction arose out of the same criminal episode, and defendant’s Virginia imitation controlled substance conviction is not a felony drug offense, so that defendant has only one prior felony drug offense within the meaning of § 841(b)(1)(A).

U.S. v. Gardner (USDC-WD) (VLW 008-3-059) (15 pp.)

Criminal

Expungement Petition – Stalking Charge – Protective Order

A circuit court orders expungement of a 1999 stalking charge under Va. Code § 18.2-60.3 that was nolle prossed, but the court does not have authority to expunge a protective order entered earlier that year.

Petition for Expungement (Newport News Cir.Ct.) (VLW 008-8-009) (4 pp.)

Criminal

Appeals – Magistrate Suppression Order

Where a magistrate judge dismissed a marijuana charge against defendant after granting his motion to suppress, and the government appealed the suppression order but not the decision to dismiss the charge, the district court has no jurisdiction to review the suppression order and the government’s appeal is dismissed.

U.S. v. Lee (USDC-ED) (VLW 008-3-043) (7 pp.)

Criminal

Sentence Reduction – Crack Guidelines – Retroactivity

An Abingdon federal judge holds that a defendant convicted of conspiring to distribute crack cocaine is not eligible for a sentence reduction before the effective date of retroactive application of the federal Sentencing Commission’s reduced guidelines for crack cocaine; but the judge serves notice he is ready to reduce defendant’s 30-month sentence to 20 months, effective March 3 when the reduced guidelines take effect.

U.S. v. Ayala (USDC-WD) (VLW 008-3-056) (4 pp.)

Domestic Relations

Marital Home – Attorney’s Lien

A trial court sustains wife’s demurrer to an attorney’s lien filed by husband’s lawyer on the marital home, which was transferred to wife pursuant to the parties’ divorce settlement.

A Attorney LLC v. Olson (Prince William Cir.Ct.) (VLW 008-8-031) (4 pp.)

Domestic Relations

Child Support Reduction – Voluntary Underemployment

A father did not “voluntarily” leave his job as corporate counsel when he left after he was switched to regulatory/lobbying work, where he had no experience; nor did he voluntarily leave another corporate counsel position after his attempt to work two days a week in Richmond where his children lived, and three days a week in Baltimore proved unsuccessful; the Court of Appeals remands for the divorce court to consider father’s current income, not his income at the time of the 2001 divorce decree.

Broadhead v. Broadhead (Va.Ct.App.) (VLW 008-7-038) (12 pp.)

Domestic Relations

Spousal Support – Imputed Income

A $14,000 monthly spousal support award is reversed because a panel majority of the Court of Appeals says the trial judge applied the wrong standard on imputing income to wife, but a dissenting judge says the husband’s responsibilities to his wife of 17 years, who had not worked for 15 years by mutual agreement, “remain for a reasonable length of time.”

McKee v. McKee (Va.Ct.App.) (VLW 008-7-043(UP)) (22 pp.)

Employment

Doctor Noncompete – Arbitration – Res Judicata

A neurological clinic and a doctor it formerly employed may not pursue a second arbitration of issues related to the doctor’s noncompete, because of the res judicata effect of an earlier arbitration between the same parties involving the same termination of employment and contracts at issue in the second arbitration.

Winchester Neurological Consultants Inc. v. Landrio (Winchester Cir.Ct.) (VLW 008-8-033) (10 pp.)

Employment

ERISA – Long-Term Disability – Substance Abuse

A nurse-anesthetist who had twice relapsed and begun again to use Fentanyl, to which he had been addicted, cannot collect long-term disability benefits on the claim that the risk of relapse into addiction is a disability under an ERISA-governed plan.

Stanford v. Continental Casualty Co. (USCA) (VLW 008-2-009) (17 pp.)

Employment Discrimination

Title VII – Religion – Reasonable Accommodation

Defendant Firestone reasonably accommodated an employee of its tire cord testing laboratory who, through layoffs and restructuring under a collective bargaining agreement, was moved to a lab technician job and exhausted his leave possibilities under a union contract for taking time off on Saturdays, his regular Sabbath, and other religious holidays.

EEOC v. Firestone Fibers & Textiles Co. (USCA) (VLW 008-2-025) (19 pp.)

Employment Discrimination

Disability – Deafness – ADA – Punitive Damages

FedEx violated the Americans with Disabilities Act when it failed, over a three-year period, to offer reasonable accommodations to a deaf man employed as a package handler, in the form of an American Sign Language interpreter at or notes from, periodic employee meetings and safety training sessions; the 4th Circuit affirms the jury awards to plaintiff of $8,000 in compensatory and $100,000 in punitive damages.

EEOC v Federal Express Corp. (USCA) (VLW 008-2-011) (26 pp.)

Employment Discrimination

Disability – Parkinson’s Disease

A manufacturing company violated the Americans with Disabilities Act when it terminated a shipping supervisor who suffered from Parkinson’s disease.

Wilson v. Phoenix Specialty Mfg. Co. (USCA) (VLW 008-2-010) (25 pp.)

Insurance

Excess Coverage – School Board Policy – Student Sexual Abuse

A school board that settled for over $1 million a lawsuit filed by a high school student who had been sexually abused by a teacher, has “coincidental” excess coverage through appellee carrier Horace Mann Insurance Company’s policy issued to the school principal, not through appellant General Star Insurance, as the district court ruled on summary judgment; the district court decision is reversed and the case remanded for entry of judgment in favor of General Star.

Horace Mann Ins. Co. v. General Star Nat’l Ins. Co. (USCA) (VLW 008-2-008) (28 pp.)

Intellectual Property

Patent Infringement – ‘Exceptional Case’ – Attorney’s Fee Award

In this patent infringement litigation involving a system for monitoring the power quality and energy consumption for branch circuits, the district court grants plaintiff’s motion to designate this an “exceptional case,” warranting an award of attorney’s fees under 35 U.S.C. § 285.

Thomas & Betts Power Solutions LLC v. Power Distribution Inc. (USDC-ED) (VLW 008-3-062) (8 pp.)

Municipal

FOIA – Landowner Request – Costs

In this de novo appeal of a general district court decision in this FOIA case, in which a landowner with a pending land-use application seeks public records that include e-mails to members of the board of supervisors, the request for disclosure may apply to public records in both public and private data bases that relate to the “transaction of public business,” but the circuit court finds the landowner cannot be charged over $400 for a search by hand of hard-copy of pertinent records.

Burton v. Mann (Loudoun County Cir.Ct.) (VLW 008-8-013) (9 pp.)

MARCH

Civil Procedure

Jurisdiction – N.J. Law – Comity

In an Arlington lobbying firm’s lawsuit against Atlantic City and its mayor to collect fees under a contract to provide lobbying services, the circuit court rejects defendant’s motion to dismiss based on principles of comity because the defendant is a foreign municipality.

Alcade & Fay Ltd. v. City of Atlantic City, N.J. (Arlington County Cir.Ct.) (VLW 008-8-097) (4 pp.)

Civil Procedure

Discovery – Attorney-Client Privilege – Work-Product Doctrine

In a former CFO’s defamation and contract action against the senior-living facility that fired him, neither the defendant employer’s attorney-client privilege nor the work product doctrine will allow employer to deny discovery of documents plaintiff received or reviewed, authored or reasonably had access to as CFO during his tenure.

Rush v. Sunrise Senior Living Inc. (Fairfax Cir.Ct.) (VLW 008-8-084) (8 pp.)

Civil Procedure

Jurisdictional Amount – Removal Notice – Sua Sponte Remand

Not so fast, the 4th Circuit says; in this products liability suit alleging defects in an RV, a district court erred when it decided sua sponte that a defendant’s bare-bones notice of removal failed to establish the jurisdictional amount of $75,000-plus, and even if the plaintiff had challenged removal on that basis, the defendant’s assertions were good enough to establish the jurisdictional amount under federal notice-pleading requirements.

Ellenburg v. Spartan Motors Chassis Inc. (USCA) (VLW 008-2-044) (12 pp.)

Civil Procedure

Default Judgment – Service Of Process – Related Litigation

Although plaintiff telephone company attempted substituted service on defendant software company in this contract dispute in Richmond Circuit Court, the parties had an ongoing related lawsuit in Fairfax Circuit Court, in which that court held the software company was entitled to over $1 million in damages, and the default judgment order against the software company entered by the Richmond Circuit Court will be vacated.

Cavalier Telephone LLC v. Step 9 Software Corp. (Richmond Cir.Ct.) (VLW 008-8-027) (5 pp.)

Civil Rights

Gun Seizure – Property Return – Mass Murder Threat

Police did not violate plaintiff’s Fourth Amendment rights when they promptly made a warrantless seizure of his extensive cache of firearms, ammunition, firearms accessories and survivalist literature from plaintiff’s garden apartment after handcuffing him upon a hotline operator’s report to police, minutes earlier, that showed a man on the edge, armed, suicidal and inclined to kill his co-workers on the way out. However, whether defendant City of Gaithersburg is entitled to retain the seized items and not return them to plaintiff, a registered firearms collector, involves questions of state law not considered by the 4th Circuit.

Mora v. City of Gaithersburg (USCA) (VLW 007-2-038) (20 pp.)

Consumer Protection

Motor Vehicle Warranty Act – Attorney’s Fees

Although a lawyer could not produce a written fee agreement with the client he represented in a suit under the Motor Vehicle Warranty Enforcement Act, the lawyer nevertheless is entitled to $300 per hour pursuant to such an agreement, for a fee of $19,575 on a recovery of $25,369.l7 paid by defendant in the case.

Roatenberry v. Ford Motor Co. (Roanoke City Cir.Ct.) (VLW 008-8-032) (4 pp.)

Contract

Noncompete – Martial Arts Studio – Penalty Provision

A contract clause that required two defendants, who opened a Chesapeake martial arts school and promoted it with classes and advertising featuring a plaintiff who had a similar school in Virginia Beach, to pay plaintiff $15,000 if they opened a similar school without allowing plaintiff to participate, is enforceable under Virginia law, a Virginia Beach Circuit Court holds.

Miran v. Merullo (Va. Beach Cir.Ct.) (VLW 008-8-082) (6 pp.)

Corporate

Shareholder Derivative Suit – Restated Earnings – Del. Law

Under the controlling Delaware law, a shareholder can’t bring a derivative suit based on a corporate audit committee’s alleged lack of good faith in investigating the company’s need to restate earnings to the SEC, despite the SEC’s formal investigation.

Westerman v. Alfred (Fairfax Cir.Ct.) (VLW 008-8-076) (21 pp.)

Criminal

Continuance – Newly Retained Counsel

A trial court did not err in denying defendant’s motion for a sixth continuance on the morning of his scheduled trial on a gun charge, in order to allow defendant’s newly retained counsel time to review a transcript of the suppression hearing; but a dissenting judge says the panel majority failed to distinguish a similar 2006 case that reversed for denial of a continuance.

Johnson v. Commonwealth (VLW 008-7-109) (16 pp.)

Domestic Relations

Child Custody – JDR Appeal – De Novo Trial

A trial judge erred in telling a mother appealing a JDR custody decision that if she had no new evidence to present, as indicated by his reading of the JDR trial transcript, he would leave custody with the father and in addition, impose a large attorney’s fee award against the mother.

Alexander v. Flowers (Va.Ct.App.) (VLW 008-7-135) (10 pp.)

Domestic Relations

Adultery – Husband Partial Dress

A retired husband gets no spousal support as wife proved adultery with evidence from a private investigator who saw husband coming and going from his girlfriend’s home, including an appearance by husband in his underwear.

Toth v. Toth (Fairfax Cir.Ct.) (VLW 008-8-071) (8 pp.)

Domestic Relations

Spousal Support – Lump-Sum Award

A 68-year-old retired husband, granted a no-fault divorce against his 57-year-old wife, whom he met in an Internet dating service and who was born in the Philippines and lived most of her life in Germany, must pay wife lump-sum spousal support of $30,000 and $6,000 in attorney’s fees at the conclusion of their three-year marriage.

Harkness v. Harkness (Salem Cir.Ct.) (VLW 008-8-096) (3 pp.)

Domestic Relations

PSA – Life Insurance Policies – Show Cause

A husband is not in contempt of a PSA that required him to keep up “existing” life insurance policies for wife’s benefits, where he lost his employee life insurance policy when he lost his job through no misconduct.

Kammerdeiner v. Kammerdeiner (Fairfax Cir.Ct.) (VLW 008-8-078) (3 pp.)

Domestic Relations

Property Transfer – Attorney Lien

An attorney cannot perfect a lien he placed on property transferred to the spouse of his client during a divorce, a circuit judge rules.

A Attorney LLC v. Olson (Prince William County Cir.Ct.) (VLW 008-8-086) (12 pp.)

Employment

Noncompete – Doctor’s Contract – Stark Law

Although a noncompete was reasonable in prohibiting a doctor’s general surgery practice for two years in Frederick County or the City of Winchester, the noncompete provision violates the federal Stark Law because the surgeon, a provider under federal Medicare and Medicaid programs, also received payments under a hospital physician recruitment agreement.

General Surgery Specialists PLC v. Bowers (Winchester Cir.Ct.) (VLW 008-8-034) (10 pp.)

Employment Discrimination

Sexual Harassment – Pattern & Practice Claim

In this case in which several former and current female employees of defendant medical supply company have detailed the numerous sexual comments, questions and “opportunistic groping” by the male company owner and sales manager, the EEOC can pursue its claim against the company for “pattern and practice” sexual harassment.

EEOC v. Burlington Medical Supplies Inc. (USDC-ED) (VLW 008-3-074) (34 pp.)

Insurance

Auto Accident – Company Truck – Drunken Driver – Implied Permission

A plumbing company employee who was in an auto accident while intoxicated and using a company truck to drive guests from a cook-out at the employee’s home, was a permissive user of the company truck and has liability coverage under the company’s insurance policy.

Erie Ins. Co. v. Willard (Fauquier County Cir.Ct.) (VLW 008-8-081) (5 pp.)

Municipal

Constitutional – Inverse Condemnation – Neighborhood Flooding

A Newport News Circuit Court erred in holding that plaintiff property owners could not state a claim for inverse condemnation based on the repeated flooding of three Newport News subdivisions allegedly because of the city’s failure to use a pipe large enough to adequately drain the watershed during normal and ordinary conditions.

Kitchen v. City of Newport News (Va.S.Ct.) (VLW 008-6-025) (24 pp.)

Negligence

Park Ranger – Gate Closure – Sovereign Immunity

A county has sovereign immunity from plaintiff’s lawsuit alleging a park ranger was negligent in performance of his official duties when he failed to secure the park’s front gate so that it would not swing into the path of vehicles entering or exiting the park, but plaintiff has leave to amend a claim against the park ranger.

Altizer v. County of Tazewell, Va. (Tazewell County Cir.Ct.) (VLW 008-8-040) (3 pp.)

Negligence

Wrongful Death – Survivorship – Election Of Remedies

In this suit against defendant hospital arising from a woman’s death, the circuit court rejects defendant’s efforts through requests for admission to force plaintiffs, prior to presenting evidence to a jury, to elect between pursuing a survivorship action or a wrongful death action.

Brothers v. Rockingham Memorial Hosp. (Rockingham County Cir.Ct.) (VLW 008-8-085) (5 pp.)

Property

Declaration Of Independence – Quiet Title Action

A Virginia man who bought a broadside of the Declaration of Independence for $475,000 withstands a challenge from the State of Maine, who claims the broadside, discovered in 1995 in the attic of a former town clerk’s daughter, is a public record that belongs to Maine; the Fairfax Circuit Court declares the State of Maine has failed to prove it is entitled to the broadside, and enters judgment for the buyer.

Adams v. State of Maine (Fairfax Cir.Ct.) (VLW 008-8-039) (15 pp.)

Social Security

De Novo Review – General Objection

No shortcuts for you, a Charlottesville federal judge tells a social security claimant who restyled “almost verbatim” the argument from her summary judgment brief as objections to the magistrate judge’s report and recommendation; because claimant made only a “general objection” to the R&R, she does not get de novo review and loses her claim for SSI benefits.

Veney v. Astrue (USDC-WD) (VLW 008-3-071) (7 pp.)

Tort

Emotional Distress – PTSD – OR Posting

Although a plaintiff under treatment for PTSD suffered emotional distress when he was exposed to blood and body fluids during a posting to a hospital operating room, he has no emotional distress claim based on hospital personnel’s alleged delay in transferring him.

Howard v. Williams (Fairfax Cir.Ct.) (VLW 008-8-067) (5 pp.)

Workers’ Comp

Fall From Ladder – Gutter Cleaning

A claimant who remembered nothing about his fall from a ladder while cleaning gutters at homes in a subdivision is entitled to benefits for his work-related injuries; we agree with the commission that the facts in this case justify inferring that the claimant was in a dangerous position, doing work that caused him to be more likely to fall, and lost his balance and fell.

Turf Care Inc. v. Henson (Va.Ct.App.) (VLW 008-7-102) (16 pp)

Zoning

Conforming Use – Stop Work Order

Although a 1928 home in Falls Church became a pre-existing nonconforming use under the city’s zoning ordinance and the board of zoning appeals in 2004 approved a variance to allow the homeowners to add a second story and addition to the existing structure, the homeowner did not have the right to essentially demolish the existing structure to accomplish the renovation, and the circuit court did not err in upholding the zoning administrator’s stop work order.

Goyonaga v. Board of Zoning Appeals for the City of Falls Church (Va.S.Ct.) (VLW 008-6-026) (20 pp.)

Zoning

Historic District – Height Limit – Church Construction

A Norfolk Circuit judge grants a preliminary injunction to prohibit an Episcopal church from proceeding with construction of a building that exceeds the standard 35-foot height allowed in this historic district, based on the city’s grant of a “certificate of appropriateness.”

Owens v. City Council of the City of Norfolk (Norfolk Cir.Ct.) (VLW 008-8-079) (17 pp.)

APRIL

Administrative

Assisted Living Home – License Application – Appeal – Nonsuit

A license applicant who appealed denial of a license to operate an assisted living facility by defendant Social Services Department, and who filed suit against DSS and then nonsuited that action, cannot refile suit because the tolling provision of Va. Code § 8.01-229(E)(3) does not apply to this administrative proceeding under the Virginia Administrative Process Act, and the license applicant is time-barred from instituting this action.

Joy House Senior Homes LC v. Jones, Comm’r of VDSS (Fairfax Cir.Ct.) (VLW 008-8-106) (8 pp.)

Attorneys

Sanctions – Bankruptcy Filing – Eve Of Trial

A trial court erred in imposing sanctions on an attorney whose corporate client filed a bankruptcy petition on the eve of a trial to defend a contract action on an agreement to remove lead-based paint from plaintiffs’ home; the defense lawyer’s act of filing a witness and exhibit list was required by the court’s own pretrial order, and did not violate Va. Code § 8.01-271.1.

McNally v. Rey (Va.S.Ct.) (VLW 008-6-047) (9 pp.)

Civil Procedure

Appeals – Rule 5A:20

In these two consolidated criminal appeals, the Supreme Court holds that the Court of Appeals has been too stringent in its application of Rule 5A:20(e) to dismiss a petition for appeal or a portion of a petition, for failure to include elements such as the “principles of law, the argument and the authorities related to each question presented” as required under the rule.

Jay v. Commonwealth (Va.S.Ct.) (VLW 008-6-040) (28 pp.)

Civil Rights

Teacher Suspension – Emotional Distress – Mental Health Evaluation

A kindergarten teacher who was suspended from her duties pending a psychiatric evaluation has failed to state claims for violation of her constitutional rights or intentional infliction of emotional distress.

Earley v. Marion (USDC-WD) (VLW 008-3-095) (18 pp.)

Civil Rights

First Amendment – ABC Regs – Alcohol Ads – College Newspapers

Virginia regulations that restrict alcohol ads in college newspapers may be well intentioned but they violate the First Amendment, a Richmond federal magistrate judge says.

Educ’l Media Co. at Va. Tech Inc. and The Cavalier Daily Inc. v. Swecker (USDC-ED) (VLW 008-3-112) (36 pp.)

Contract

Mechanic’s Lien – ‘Lot’ – Apportionment

It’s a tough call, says a Warren County Circuit judge, as he enforces a mechanic’s lien that should have included “parcels” as well as “lots,” but reduces the amount.

DLB Inc. v. United Golf Inc. (Warren County Cir.Ct.) (VLW 008-8-098) (2 pp.)

Contract

Employment – Arbitration – Signatures

Although the company that hired plaintiff as a vice president only signed the last page attached to plaintiff’s employment agreement, an “Option Grant Notice,” and did not sign the intended signature page, which plaintiff signed, the parties’ conduct indicated both sides intended to be bound by the agreement, including its arbitration clause, and the circuit court confirms the arbitration award in favor of the company.

Hassett v. WaveCrest Laboratories LLC (Fairfax Cir.Ct.) (VLW 008-8-109) (9 pp.)

Criminal

Threatening – Defendant’s Repeat Appearances

A defendant who was unknown to a woman but who was observed several times in the street in front of her home, pacing, hiding and rapidly departing when police were called, and who appeared on her front porch one night, peered into her home, and uttered “weird, strange stuff” when she confronted him, and whose picture she purportedly identified in an Internet sex offender registry, cannot be convicted of misdemeanor threatening under Va. Code § 18.2-60.

Commonwealth v. Mercurio (Loudoun County Cir.Ct.) (VLW 008-8-117) (6 pp.)

Domestic Relations

Bankruptcy Discharge – Attorney’s Fees

A husband’s debt of attorney’s fees to wife in her proceeding charging violations of a court visitation order cannot be discharged in husband’s bankruptcy, because the fee award to wife is “in the nature of child support.”

Marvin v. Marvin (Va.Ct.App.) (VLW 008-7-186) (8 pp.)

Domestic Relations

Husband’s Mortgage Payments – Wife’s Cohabitation

A wife tried to insulate husband’s ongoing mortgage payments from a possible bankruptcy by calling them “in the nature of support” in the parties’ PSA, but husband still could terminate the mortgage payments when wife admitted to cohabitation with another man, the Virginia Court of Appeals said in a new unpublished opinion out of Buchanan County.

Stacy v. Stacy (Va.Ct.App.) (VLW 008-7-194(UP)) (13 pp.)

Domestic Relations

Adultery – Babysitter Testimony

A Richmond Circuit judge finds husband proved wife’s adultery with evidence from private investigators and testimony of the parties’ babysitter of 20 years.

Ferramosca v. Ferramosca (Richmond Cir.Ct.) (VLW 008-8-102) (7 pp.)

Employment

University Employee – Termination – Sexual Harassment

A Virginia Tech employee who managed the university mail system should not have been fired after 29 years for one incident of alleged “sexual harassment,” in which he asked a female student, whom he did not supervise, to pose in a bathing suit or “short shorts” for a fund-raising calendar for a youth boxing club where the employee coached.

Virginia Polytechnic Institute & State Univ. v. Quesenberry (Va.Ct.App.) (VLW 008-7-172) (11 pp.)

Immigration

Speedy Trial Act – Alien Administrative Detention

In calculating time under the Speedy Trial Act, a period of detention for an El Salvadoran national by the U.S. Immigration and Customs Enforcement, on administrative charges pending the alien’s removal, was not detention “in connection with” his arrest for unlawful reentry under 8 U.S.C. §§ 1326(a) and (b)(2), and his indictment did not violate the Speedy Trial Act.

U.S. v. Rodriguez-Amaya (USCA) (VLW 008-2-059) (8 pp.)

Negligence

Fireman’s Rule – Police Pursuit

A police officer who was injured during a high-speed chase when he encountered a John Doe on the wrong side of the road is not barred by the “Fireman’s Rule” from suing John Doe.

Gobble v. Montalvo and Doe (22nd Judicial Cir.) (VLW 008-8-099) (3 pp.)

Partnerships

Derivative Action – Standing – Adverse Interest

In a dispute among siblings in a family limited partnership with varying partnership interests in a Springfield Toyota dealership, the brother who managed the dealership and alleged tortious actions by another brother, does not have standing to file a derivative suit against the partnership, because of the plaintiff brother’s economic interests as both landlord and lessee of the partnership created a direct economic conflict.

Jennings v. Kay Jennings Family LP (Va.S.Ct.) (VLW 008-6-046) (16 pp.)

Search & Seizure

Traffic Stop – Passenger Pat-Down

Although a police officer several months ago conducted a controlled cocaine purchase from a house visited by defendant, a passenger in a car stopped for a traffic violation in the same “high crime” area late at night, the officer had authority to ask the passenger to exit the vehicle, but he did not have a generalized right to do a pat-down, absent reasonable suspicion to suspect criminal activity.

McCain v. Commonwealth (Va.S.Ct.)V(LW 008-6-043) (17 pp.)

Wills & Trusts

Elective Share – Separate Property

Although wife’s estate argues that husband and wife maintained separate property throughout their marriage so that each might leave that separate property to their respective children from former marriages, husband and wife did not have a premarital or marital agreement that precluded the surviving husband from electing a marital share of wife’s estate.

Higham v. Williams (Fairfax Cir.Ct.) (VLW 008-8-108) (30 pp.)

Workers’ Comp

Coal Mine Accident – PTSD

A denial of workers’ comp is upheld for a mine foreman who arrived on the scene after a coworker’s fatal mine accident, then claimed PTSD; the IME doctor said claimant was a “malingerer.”

Curry v. Consol Energy Inc. (Va.Ct.App.) (VLW 008-7-140(UP)) (6 pp.)

MAY

Administrative

Pier Reconstruction – Post-Construction Permit

A Norfolk Circuit Court had no authority to order dismantling of an upper-deck bar on a Norfolk fishing pier restaurant, the Court of Appeals holds; the appellate court OK’d an after-the-fact pier permit issued by the Virginia Marine Resources Commission to a bar owner who rebuilt after Hurricane Isabel in 2003, in a case reported last March in the VLW Blog.

Boone v. Harrison (Va.Ct.App.) (VLW 008-7-237) (13 pp.)

Bankruptcy

Dischargeability Of Debt – Fiduciary ‘Defalcation’ – Equipment Dealer – Ch. 7

Debtor, a president of an equipment dealership, cannot discharge an unsecured judgment of $124,000 arising from his personal guarantee of the dealership’s debt to Kubota Tractor company, because this debt arose from debtor’s “defalcation,” or nonfraudulent default, while acting in a fiduciary capacity, the 4th Circuit holds; the lower court decision allowing the discharge is reversed.

In re Strack (USCA) (VLW 008-2-075) (12 pp.)

Civil Procedure

E-Mail Production – AOL Subpoena – Privacy Act

A U.S. District Court in Alexandria quashes a subpoena duces tecum issued by State Farm to AOL to obtain six weeks’ worth of e-mail from an AOL account belonging to insurance adjusters who reported alleged fraud with respect to State Farm’s treatment of a couple’s Hurricane Katrina damage claim.

In re Subpoena Duces Tecum to AOL LLC (USDC-ED) (VLW 008-3-178) (18 pp.)

Civil Rights

Free Speech – Landfill Settlement – Standing

A woman whose husband died in an explosion at a landfill near Ivy, Va., does not have standing to sue the landfill operators for violation of her First Amendment rights on a claim that the landfill operators’ third-party settlement agreements imposing gag orders on the third parties deprived her and her husband of the right to receive information about the landfill; the 4th Circuit holds the wife does not have standing to bring this suit, in her own right or as her husband’s personal representative.

Stephens v. County of Albemarle, Va. (USCA) (VLW 008-2-084) (13 pp.)

Consumer Protection

Fair Credit Reporting Act – Limitations – Multiple Reports

A woman who learned in 2003 that she was a victim of identity theft by someone who opened a Lane Bryant credit card account in her name, and who reported the fraudulent act to defendant bank and credit reporting agencies multiple times beginning in 2003, can sue the bank for failure to take remedial action under the Fair Credit Reporting Act within two years of filing her complaint, a U.S. District Court in Richmond holds; the Richmond federal court joins the majority of courts that have considered this statute of limitations issue, and holds the FCRA imposes a burden on banks to respond appropriately to each and every consumer dispute.

Broccuto v. Experian Information Solutions Inc. (USDC-ED) (VLW 008-3-177) (11 pp.)

Criminal

Murder – Firearm Use – Inconsistent Verdicts

A man charged with first-degree murder and use of a firearm in the commission of murder, in the fatal shooting of his wife after a Fourth of July party, can be convicted of using a firearm “while committing or attempting to commit murder,” even though he was not convicted of murder but of voluntary manslaughter, the Court of Appeals holds.

Ludwig v. Commonwealth (Va.Ct.App.) (VLW 008-7-222) (13 pp.)

Criminal

Sixth Amendment – Lawyer Conversation – Immigration Fraud

Although a lawyer and his law firm already were indicted on charges of immigration fraud, recorded conversations with the lawyer initiated by two government witnesses after the indictment did not violate the lawyer’s Sixth Amendment right to counsel, the 4th Circuit says, because the conversations related to additional charges of witness tampering.

U.S. v. Mir (USCA) (VLW 008-2-080) (12 pp.)

Criminal

Copyright Infringement – Bootleg DVDs – Retail Value

A defendant who sold 100 bootleg DVDs to an undercover agent for $500, then sold the agent 200 more DVDs for $1,000, can be convicted of a felony for selling DVDS with a “retail value” over $2,500, says the 4th Circuit in this case of first impression.

U.S. v. Armstead (USCA) (VLW 008-2-079) (10 pp.)

Criminal

Fraud – ERISA Pension Plan

Unpaid employer ERISA pension plan contributions are “assets” of the plan under federal law and the terms of a company plan, the 4th U.S. Circuit Court of Appeals holds, clearing the way to uphold fraud convictions under 18 U.S.C. § 664 against two executives of a Galax wood products business who stole from the company’s ERISA-covered pension plan.

U.S. v. Jackson (USCA) (VLW 008-2-076) (26 pp.)

Criminal

Guilty Plea – Rule 11 Colloquy – Magistrate Authority

A drug defendant suffering “ buyer’s remorse” can’t overturn his guilty plea with a theory that the magistrate judge can conduct a Rule 11 colloquy, but only a district court can accept a guilty plea; the 4th U.S. Circuit Court of Appeals rejects defendant’s claim that he is entitled to a “dry run” or “dress rehearsal” before a magistrate judge.

U.S. v. Benton (USCA) (VLW 008-2-071) (17 pp.)

Criminal

Cell Phone – Cocaine Buy – Personal Use

Although buying cocaine on the street for personal use may only be a misdemeanor, defendant’s use of a cell phone to arrange the buy brought the transaction under 21 U.S.C. § 843(b), which covers use of a “communication facility” to commit felonies such as drug distribution; in upholding defendant’s conviction, the 4th Circuit takes the government’s side on an issue that has split federal appellate courts.

U.S. v. Abuelhawa (USCA) (VLW 008-2-070) (13 pp.)

Criminal

Mail & Wire Fraud – eBay Coin Auction – Sentencing

Just because a Norfolk federal judge complained about having to bump up an eBay seller’s fraud sentence from 12 to 36 months on remand from the 4th Circuit, doesn’t mean the 4th Circuit will make the judge resentence to the guideline minimum of 41 months.

U.S. v. Curry (USCA) (VLW 008-2-072) (10 pp.)

Domestic Relations

Spousal Support – Interior Design Business – PSA – Scrivener’s Error

A wife is entitled to $10,000 in monthly spousal support at the end of the parties’ 26-year marriage, based on her evidence as to her monthly expenses and husband’s stipulation that he could support her in the lifestyle she enjoyed during the marriage, but the parties’ correspondence does not support husband’s contention that the property settlement agreement was supposed to say husband would keep “their” interest in the family interior design business, instead of “his” interest, and the trial court did not err in denying husband’s motion to correct an alleged scrivener’s error in the parties’ PSA, the Court of Appeals holds.

Chasen v. Chasen (Va.Ct.App.) (VLW 008-7-234(UP)) (8 pp.)

Domestic Relations

Attorney Fees –Appeals – O’Loughlin

Although Virginia divorce jurisprudence gives the Court of Appeals discretion to award attorney’s fees in an appeal, to be determined in the trial court on remand, O’Loughlin v. O’Loughlin says nothing about a trial court’s ability to enforce these parties’ contract for payment of all litigation fees and costs, and an Orange County Circuit Court judge awards a total of $40,000 in fees to wife — $25,000 for trial fees and $15,000 for appellate fees.

Gladstone v. Concannon (Orange County Cir.Ct.) (VLW 008-8-133) (7 pp.)

Employment

Contract – Noncompete – IT Consultant

A U.S. District Court in Alexandria dismisses an information technology company’s lawsuit against a former consultant, who left plaintiff IT company and worked as a contractor for The Peace Corps, allegedly providing comparable IT services and systems maintenance, and who allegedly urged former coworkers to leave plaintiff’s company; however, the court denies the IT company’s claim for statutory conspiracy under Virginia law.

Nortec Communications Inc. v. Lee-Llacer (USDC-ED) (VLW 008-3-168) (17 pp.)

Employment Discrimination

Sexual Harassment – Assault – Remittitur

An African-American female bookkeeper who won her suit alleging sexual assault and battery in the workplace by her white male supervisor can keep her damage awards – $40,000 compensatory and $150,000 punitive – as the U.S. District Court in Alexandria denies the defendant employer’s request for remittitur.

Hughston v. New Home Media and Philip Jacoby (USDC-ED) (VLW 008-3-171) (24 pp.)

Environmental

Effluent Discharge – Chincoteague Channel – Remand

A motel owner who wants a permit to use subaqueous bottomlands (beyond the mean low-tide water line) to discharge treated effluent into Chincoteague Channel has his case remanded from the Accomack County Circuit Court to the Virginia Marine Resources Commission for fact finding on the difference in impact for effluent discharge at the mean low water line, where it would happen anyway, as opposed to 750 feet out in the Channel.

Birchwood Motel Inc. v. Va. Marine Resources Comm’n (Accomack County Cir.Ct.) (VLW 008-8-113) (18 pp.)

Immigration

Asylum – Untimely Petition – Ineffective Assistance Of Counsel

A citizen of Cameroon who seeks asylum out of a fear of political persecution gets no relief from the 4th Circuit for his lawyer’s failure to check his mail after a move and timely file a petition for review; the 4th Circuit declines to follow its sister circuits and holds, in a case of first impression, that an alien has no Fifth Amendment right to effective assistance of retained counsel in a removal proceeding.

Afwanwi v. Mukasey (USCA) (VLW 008-2-090) (16 pp.)

Municipal

Delinquent Tax Collection – Negligence – Immunity

A city treasurer has qualified immunity from a suit alleging negligence in the collection of delinquent real estate taxes, a Norfolk Circuit Court rules.

Stone v. Moss (Norfolk Cir.Ct.) (VLW 008-8-123) (3 pp.)

Search & Seizure

Consensual Encounter – Reasonable Suspicion – ‘High-Crime’ Area

A detailed examination of a detective’s encounter with a defendant in a high-crime neighborhood known for drugs and guns, showing the detective’s increasing suspicions about what defendant had in his pocket, provided reasonable suspicion for the detective to seize defendant and the district court did not err in denying defendant’s motion to suppress the drugs found in his pocket, the 4th Circuit holds.

U.S. v. Black (USCA) (VLW 008-2-088) (17 pp.)

Tort

Business Tort – Va. Computer Crimes Act – Trade Secrets

An entrepreneur who started several corporations to market optical imaging technology used in making tamper-proof ID cards, including a company later operated by his son-in-law, loses on summary judgment his suit claiming the son-in-law violated the Virginia Computer Crimes Act and the Virginia Uniform Trade Secrets Act in the operation of his business.

Othentec Ltd. v. Phelan (USCA) (VLW 008-2-086) (12 pp.)

Traffic Offenses

Appeals – DUI – Refusal

A driver’s refusal to blow into a machine, standing alone, won’t give probable cause to arrest, but a deputy can consider the refusal along with the smell of alcohol, defendant’s red and glassy eyes and his refusal to perform field sobriety tests, and the Court of Appeals upholds the driver’s DUI arrest and ultimate conviction for refusal.

Jones v. Commonwealth (Va.Ct.App.) (VLW 008-7-210) (10 pp.)

JUNE

Administrative

Dentist Discipline – Poor Recordkeeping

The en banc Court of Appeals upholds administrative sanctions of a reprimand and monetary penalty for a dentist who in multiple cases failed to keep adequate patient records showing diagnosis and treatment of patients.

John Doe, D.D.S v. Virginia Board of Dentistry (VLW 008-7-280) (13 pp.)

Civil Procedure

Personal Jurisdiction – Va. Long-Arm Statute

Although plaintiffs suing on two promissory notes have incorporated into their pleadings defendant LLC’s operating agreement showing an individual maker of the note had authority to bind the LLC, the maker did not sign as agent or managing member of the LLC, and a Fairfax Circuit Court judges finds that the Virginia court does not have personal jurisdiction over defendant LLC.

Bell v. Renaissance at Chartwell LLC (Fairfax Cir.Ct.) (VLW 008-8-125) (4 pp.)

Civil Rights

First Amendment – ‘Government Speech’ – Public School System

A South Carolina public school system that used its own communication system, including its Web site and e-mail distribution lists, to promote opposition to proposed tax credits for private and home schooling that the school system argued would undermine public education, was engaging in “governmental speech” and did not violate the First Amendment when it denied a proponent of the tax credit access to its “informational distribution system,” the 4th Circuit holds.

Page v. Lexington County School District One (USCA) (VLW 008-2-107) (19 pp.)

Contract

Concrete Mix – Bridge Foundation – Liability Limit

Although defendant concrete company did not deliver concrete of the strength specified in a contract for construction of a bridge at MeadWestvaco, the parties’ contract expressly limited the company’s liability, the language limiting liability was not unconscionable and these facts, combined with the parties’ course of dealings since 1997, are effective to limit liability to the cost of replacement concrete; the Alleghany County Circuit Court awards plaintiff judgment of $1,402.80.

Hammond-Mitchell Inc. v. Construction Materials Co. (Alleghany County Cir.Ct.) (VLW 008-8-144) (8 pp.)

Contract

Road Construction – Written Notice Of Claim – Waiver

A contract provision between VDOT and a contractor hired to work on the Route 58 Clarksville Bypass in Mecklenburg County, stating that written notice of “an existing or impending claim for damages” could change VDOT’s plans, does not mean that written notice is an absolute prerequisite for later filing suit, a Norfolk Circuit Court holds.

AMEC Civil LLC v. Commonwealth of Va. (Norfolk Cir.Ct.) (VLW 008-8-142) (14 pp.)

Contract

Contractor License – Remodeling Project – Plea In Bar

A Class B contractor is barred from suing homeowners for an extra $62,355 he says is owed for requested alterations in a remodeling project, because the original contract for $128,600 exceeded the monetary limits for Class B contractors under Va. Code § 54.1-1115, a Fairfax Circuit judge says in a case of first impression.

Daniel Jones Remodeling LLC v. Chiu (Fairfax Cir.Ct.) (VLW 008-8-126) (4 pp.)

Corporate

Closely Held Company – Va. Securities Act

A health club member who bought the club, a closely held corporation, based on financial information provided by the bookkeeper wife of one of the club owners can sue the sellers under the Virginia Securities Act for the alleged false information provided in the sellers’ financial report, the Virginia Supreme Court says in a case of first impression.

Andrews v. Browne (Va.S.Ct.) (VLW 008-6-062) (18 pp.)

Criminal

Habeas Corpus – Jurisdiction – Temporary Custody

The 4th Circuit says a drug defendant should not have been released from prison because the Maryland federal court that granted his habeas petition did not have jurisdiction over the defendant, who was serving his sentence in Kentucky and only came to Maryland to testify on a motion.

U.S. v. Poole (USCA) (VLW 008-2-106) (19 pp.)

Criminal

Terrorist Sympathizer Prosecution – False Statement

Although defendant, part of a network of people investigated for connections to radical Islam and violent jihad, was acquitted of certain offenses related to attendance at a jihadist training camp, the 4th Circuit says the government was not collaterally estopped from prosecuting defendant for making false statements for lying about attendance at the jihadist camp.

U.S. v. Benkahla (USCA) (VLW 008-2-108) (18 pp.)

Criminal

Sexual Solicitation Minor – ‘Communications System’ – First Amendment

The Virginia Court of Appeals upholds a Virginia statute that prohibits using a “communications system” to solicit a minor, or person believed to be a minor, for sex, against a challenge that the statute, Va. Code § 18.2-374.3(B), violates First Amendment free speech rights.

Podracky v. Commonwealth (Va.Ct.App.) (VLW 008-7-269) (12 pp.)

Criminal

‘Burglarious Tool’ – Empty Purse

Although a woman admitted she emptied her large purse in order to conceal in it shoplifted store merchandise, the purse nevertheless was not a “burglarious tool” and her conviction under Va. Code § 18.2-94 is reversed by the Court of Appeals.

Edwards v. Commonwealth (Va.Ct.App.) (VLW 008-7-248) (10 pp.)

Domestic Relations

PSA – No-Appeal Clause

Although wife won reformation of the parties’ property settlement agreement to require husband to pay for her health insurance, the Virginia Court of Appeals, in a case of first impression, upholds the “no appeal” provision in the PSA so that wife may not appeal the trial court’s refusal to award her damages and attorney’s fees.

Burke v. Burke (Va.Ct.App.) (VLW 008-7-287) (10 pp.)

Domestic Relations

Visitation – Lesbian Couple Split

A woman who helped rear her lesbian companion’s biological daughter is not entitled to visitation with the child after the couple separated on a theory that she is a “de facto” or “psychological parent.”

Stadter v. Siperko (Va.Ct.App.) (VLW 008-7-256) (14 pp.)

Domestic Relations

Vermont Civil Union – Dissolution

A Roanoke County Circuit Court recognizes that the “civil union” entered into by two women in the State of Vermont is void in Virginia, and the court cannot otherwise order any relief to a complainant who filed a petition asking the court “to dissolve or annul” the relationship so that her former partner “may not attempt to avail herself of any rights which may have been conferred upon her by the union.”

Austin v. Austin (Roanoke County Cir.Ct.) (VLW 008-8-139) (14 pp.)

Domestic Relations

Adoption – Withheld Consent – Child’s Best Interests

A biological mom’s great aunt and uncle can adopt her 7-year-old son after she withheld consent contrary to the child’s best interests; the Court of Appeals says the Portsmouth Circuit judge did not have to find that continuing the parent-child relationship would be “detrimental” to the child.

Gooch v. Harris (Va.Ct.App.) (VLW 008-7-267) (5 pp.)

Domestic Relations

Spousal Support – Interior Design Business – PSA – Scrivener’s Error

A wife is entitled to $10,000 in monthly spousal support at the end of the parties’ 26-year marriage, but the parties’ correspondence does not support husband’s contention that the property settlement agreement was supposed to say husband would keep “their” interest in the family interior design business, instead of “his” interest, and the trial court did not err in denying husband’s motion to correct an alleged scrivener’s error in the parties’ PSA, the Court of Appeals holds.

Chasen v. Chasen (Va.Ct.App.).(VLW 008-7-234(UP)),(8 pp.)

Domestic Relations

Adultery – Credibility – Lawyer/Witness Testimony

Although a lawyer/witness testified as an attorney and “an officer of this court,” there is no authority that requires the testimony of an attorney to be evaluated in this light, especially when the subject of the testimony is the personal involvement of the attorney in the private business of two citizens whose dispute is being resolved by the court, a Madison County Circuit judge holds.

Davis v. Davis (Madison County Cir.Ct. ) (VLW 008-8-134) (11 pp.)

Employment

ERISA – § 401(k) Plans – ‘Market Timing’ Funds

Employees who cashed out their fully-vested § 401(k) retirement plans can sue plan fiduciaries under ERISA for investing in mutual funds that engage in the abusive activity of “market timing”; the 4th Circuit says the cashed-out employees still are “participants” in the defined contribution plans under ERISA, and a district court erred in dismissing their class-action suits.

Wangberger v. Janus Capital Group (USCA) (VLW 008-2-105) (21 pp.)

Employment

ERISA – Disability Claim – De Novo Standard

A Wendy’s manager gets another chance to win long-term disability benefits because the district court erred in applying an abuse-of-discretion standard instead of the more claimant-friendly de novo review standard, the 4th Circuit holds.

Woods v. Prudential Ins. Co. of America (USCA) (VLW 008-2-101) (6 pp.)

Employment

Contract – ADR Clause – At-Will Employee

A fired Sprint Nextel employee can sue for breach of an employment contract and for emotional distress, based on allegations that “defendants engaged in a scheme orchestrated to accuse the Plaintiff of harboring and disseminating pornography” on a work computer.

Harrington v. Sprint Nextel Corp. (USDC-ED) (VLW 008-3-198) (20 pp.)

Employment Discrimination

Age – Exhaustion Of Remedies – Federal Employee

Although the 4th Circuit has not explicitly ruled that a plaintiff alleging age discrimination under the Age Discrimination in Employment Act has to exhaust administrative remedies before suing in federal court, this Richmond U.S. District Court dismisses a former federal employee’s suit for failure to exhaust, as she admits she filed her formal EEO complaint one day after the 15-day limitations period for filing had expired.

Nesbit-Harris v. Jackson, Sec’y of HUD (USDC-ED) (VLW 008-3-223) (9 pp.)

Immigration

Removal – Motion To Stay – Standard Of Review

A native of Ethiopia who filed a petition for review of an order of removal from the U.S., then a motion to stay the order pending resolution of the petition for review, has the motion to stay denied by the 4th Circuit under the “clear and convincing” standard of review under 8 U.S.C. § 1252(f)(2).

Teshome-Gebreegziabher v. Mukasey (USCA) (VLW 008-2-104) (9 pp.)

Insurance

Premium Payment – Crop Insurance

Where plaintiffs dispute their obligation to pay a premium for crop insurance for certain crops on their Texas farm, their dispute with defendant insurance company is covered by the arbitration provision in the crop insurance policy, which requires the parties to first arbitrate “any factual determination” in dispute between the parties, and the Madison County Circuit court dismisses the case without prejudice, to allow the arbitration.

Putz v. Armtech Insurance Servs. (Madison County Cir.Ct.) (VLW 008-8-135) (3 pp.)

Municipal

First Amendment – Public Meeting – Topic Choice

The 4th Circuit upholds a Virginia county’s policy prohibiting “personal attacks” at planning commission meetings, but says the commission did not violate a speaker’s First Amendment rights by removing him from a public meeting after he refused to address the only topic for which the public hearing had been opened, and behaved in a hostile and disruptive manner.

Steinburg v. Chesterfield County Planning Comm’n (USCA) (VLW 008-2-094) (22 pp.)

Negligence

Ad Damnum Amendment – Denial – Abuse Of Discretion

A circuit court abused its discretion in denying a longshoreman’s motion to amend his ad damnum for $74,000 to ask for more money for his injuries, as the defendant ship owner did not lose his right to remove the suit to federal court because of plaintiff’s actions, but because he waited too long to file his notice of removal, the Virginia Supreme Court holds.

Whitaker v. Heinrich Schepers Gmbh & Co. KG (Va.S.Ct.) (VLW 008-6-066) (8 pp.)

Negligence

Auto Accident – Police Officer – Sovereign Immunity

Plaintiffs are not entitled to a jury for determination of a police officer’s plea of sovereign immunity, and the Prince George Circuit Court finds that a reasonable fact finder could only conclude that the officer exceeded his authority when he violated speed limits in a non-emergency situation; the court denies the officer’s plea of sovereign immunity.

Lake v. Mitchell (Prince George County Cir.Ct.) (VLW 008-8-137) (13 pp.)

Real Estate

Partition – Buy-Out Showing

In a creditor’s suit to collect an $86,400 judgment debt from defendant John W. Gray, who owns a $310,000 townhouse in Portsmouth together with his mother and his wife, the Portsmouth Circuit Court denies the defendant co-owners’ motion to strike the creditor’s complaint for partition pursuant to Va. Code § 8.01-81 on defendants’ theory that the creditor first must show whether a co-owner is willing to buy out the others in order to avoid a court-ordered sale.

Canellis v. Gray (Portsmouth Cir.Ct.) (VLW 008-8-140) (14 pp.)

Search & Seizure

Trash Can Search – Good Faith Exception

A search warrant affidavit supported a search even though the affidavit described a single trash can numbered “601” in a Richmond alley, when there were several such trash cans, and mail found in a trash bag was addressed someone other than the “Melvin” identified by an informant.

U.S. v. Gary (USCA) (VLW 008-2-103) (9 pp.)

Wills & Trusts

Intestate Succession – Paternity Proof

Two children born out of wedlock to a man who died without a will own a share of his real estate and their suit for partition is not barred because they didn’t comply with Va. Code § 64.1-5.1(4) to prove paternity, the Virginia Supreme Court holds..

Jenkins v. Johnson (VLW 008-6-065) (8 pp.)

Zoning

Subdivision Plat – ‘Reserved Area’ – Declaration Of Covenant

The buyer of a 106-acre parcel in Orange County is not bound by a purported reservation of “REMAINING LAND” covering the parcel on a subdivision plat because the developer did not file a declaration of covenant to reserve the land, and the Virginia Supreme Court says the circuit court erred in prohibiting the buyer from building a residence with garage and shed.

Lovelace v. Orange County Board of Zoning Appeals (Va.S.Ct.) (VLW 008-6-075) (8 pp.)

JULY

Attorneys

Legal Malpractice – Limitations – Oral Contract

Was it an ironic twist of fate or just a lucky break when a lawyer who allegedly missed the six-month deadline to refile after a nonsuit was saved because the client missed the statute on his legal malpractice suit against the lawyer?

Laios v. Wasylik (USDC-ED) (VLW 008-3-255) (13 pp.)

Civil Procedure

Jurisdiction – Burford Abstention

The 4th Circuit upholds a North Carolina federal district judge’s abstention in this lawsuit filed by a car dealer who claimed he spent more than $2 million to develop a site for a new auto park before the town rezoned the property, and whose lawsuit is “in a gray area on the edges of the vested rights doctrine under North Carolina law.”

MLC Automotive LLC v. Town of Southern Pines (USCA) (VLW 008-2-117) (20 pp.)

Consumer Protection

Arbitration – Credit Increase Limit – Request Denial

Under an arbitration agreement in plaintiff’s credit application, the Richmond U.S. District Court gets to decide the validity and enforcement of any waiver of the applicant’s right to bring a class action, but the court upholds the waiver, and plaintiff is left to arbitrate her individual claim that defendant bank violated the Equal Credit Opportunity Act by refusing to increase her credit limit without providing any explanation.

Freeman v. Capital One Bank (USDC-ED)(VLW 008-3-247) (6 pp.)

Consumer Protection

Jurisdiction – Va. Long-Arm Statute

A Richmond U.S. District Court has jurisdiction over defendant law firms that allegedly offered fraudulent debt reduction services in this suit filed by Capital One Bank, based on the firms’ correspondence sent into Virginia.

Capital One Bank (USA) N.A. v. Hess Kennedy Chartered LLC (USDC-ED) (VLW 008-3-246) (11 pp.)

Contract

Government Contract – UCITA – Pay-If-Paid Clause

A government subcontractor cannot collect for software it marketed to the National Security Agency and tried to get the agency to buy through defendant prime contractor, under either the controlling “pay if paid” language of the subcontract, or under the Uniform Computer Information Transaction Act, Va. Code § 59.1-501.3, an Alexandria U.S. District Court holds.

Pilar Services Inc. v. NCI Information Systems Inc. (USDC-ED) (VLW 008-3-272) (14 pp.)

Contract

Noncompete – Nonsolicitation

A Chesterfield Circuit Court rejects plaintiff New Age Digital’s attempt to enforce a noncompete that prohibits any company director from “any type of competitive activity” anywhere within the commonwealth for one year after termination; the court likewise strikes a nonsolicitation clause that prohibits any director, for two years after departure, from soliciting any New Age employees for employment by the director or any competitive entity, or soliciting any entity for whom New Age proposed services for three years prior to the director’s departure.

Knowles v. New Age Digital Inc. (Chesterfield Cir.Ct.) (VLW 008-8-148) (7 pp.)

Creditor’s Rights

Foreclosure Sale – Newspaper Ad Notice – Va. Law

A Charlottesville federal district judge upholds the foreclosure sale of a woman’s Nelson County property even though she claims the newspaper notice of the sale in the Nelson County Times for the sale was deficient under Va. Code § 55-59.3 because the notice did not carry the street address of her son’s double-wide trailer in addition to another described street address.

Wood v. MorEquity Inc. (USDC-WD) (VLW 008-3-254) (11 pp.)

Criminal

Cocaine Possession – Prosecution Threat – Defendant’s Sister

A police threat to prosecute defendant’s sister for possession of the cocaine found in the green SUV in which police found drugs unless defendant confessed, did not amount to a coercion of his statement that would require suppression, the Court of Appeals holds.

Hill v. Commonwealth (Va.Ct.App.) (VLW 008-7-322) (9 pp.)

Criminal

Habeas Corpus – Ineffective Assistance – Mental Illness Investigation

A split 4th Circuit panel says a North Carolina lawyer who was defending a dentist for the capital murder of his estranged wife – after the lawyer was shot by his own wife in a domestic dispute – should have investigated the dentist’s mental impairment for the sentencing phase of the trial, and grants a writ of habeas corpus to require resentencing.

Gray v. Branker (USCA) (VLW 008-2-113) (53 pp.)

Criminal

Robbery – Purse-Snatching

A defendant who was a passenger in a car and grabbed a woman’s purse in a restaurant parking lot, dragging the woman about 30 feet until the purse slipped off the woman’s arm, used force to effect the taking and her robbery conviction is affirmed by the Court of Appeals.

Mills v. Commonwealth (Va.Ct.App.) (VLW 008-7-300) (5 pp)

Criminal

Sentencing – Bank Robbery – Firearm Use

In sentencing a defendant apprehended and convicted in 2007 for a bank robbery committed in 1989, a federal district judge in Abingdon applies the federal sentencing guidelines in effect in 1989 for a four-level enhancement finds defendant “otherwise used” the gun by cocking it and pointing it at bank tellers as he ordered them to give him money.

U.S. v. Webb (USDC-WD) (VLW 008-3-250) (8 pp.)

Intellectual Property

Consumer Web Site – Auto Dealer Feedback – Immunity

A car dealership cannot sue a consumer Web site on which shoppers posted negative experiences for defamation and tortious interference with business expectancy; an Alexandria U.S. District Court says defendant Consumeraffairs.com Inc. has immunity from suit under the Communications Decency Act because the statements at issue came from a “separate information content provider” and defendant was merely an interactive computer service.

Nemet Chevrolet Ltd. v. Consumeraffairs.com Inc. (USDC-ED) (VLW 008-3-274) (25 pp.)

Products Liability

Medical Device – Preemption – Manufacturer Rep Presence

A woman’s products liability warranty and design claims against the manufacturer of a NovaSure device used during endometrial surgery are preempted under the 1976 Medical Device Amendments, but she may amend her complaint to state a negligence claim against the manufacturer based on allegations that the manufacturer’s rep was in the OR and negligently directed the surgeon in use of the device, a federal district judge in Danville holds.

Adkins v. Cytyc Corp. (USDC-WD) (VLW 008-3-244) (6 pp.)

Search & Seizure

Traffic Stop – Drug Dog Threat

Police did not violate a driver’s Fourth Amendment rights when an officer stopped her pickup truck for an inoperative brake light, and after recalling that he had seen the driver the week before at a house searched for narcotics, and after she declined to consent to a search, asked “Do I have to get a drug dog” before getting her consent to a search after the drug dog alerted multiple times to the presence of drugs in the vehicle; the Court of Appeals affirms defendant’s conviction for possession of the cocaine found on her person.

Ellis v. Commonwealth (Va.Ct.App.) (VLW 008-7-301) (6 pp.)

Tort

Defamation – Law School Letters – Nevada Divorce Case

Letters written by Nevada divorce lawyers to the Washington & Lee Law School accusing a W&L law student whose wife they represented of “kidnapping, passport fraud, felony non-support of children and violation of RICO” were defamatory per se, but a jury will have to decide whether the divorce lawyers lost their “public record” privilege by substantially departing from a Nevada judge’s account of the case, a Lynchburg federal district judge says.

Vaile v. Willick (USDC-WD) (VLW 008-3-271) (15 pp.)

Traffic Offenses

DUI – Army Base – Va. Advisory Guidelines

The 4th Circuit upholds a 27-month sentence for a driver convicted of driving under the influence of alcohol, third offense, after an arrest on the Fort Monroe Army Post, despite defendant’s claim that his sentence was unreasonable because the district court refused to consider Virginia’s advisory sentencing guidelines, which called for a seven-10 month sentence.

U.S. v. Finley (USCA) (VLW 008-2-115) (14 pp.)

AUGUST

Criminal

Civil Forfeiture – Firearms – ‘Innocent Owner’

Although claimant’s father died before he was charged or convicted as a felon in possession of weapons, a WWII firearms collection, claimant nevertheless has failed to establish entitlement to the firearms collection as an “innocent owner,” and an Alexandria U.S. District Court upholds the civil forfeiture of the firearms for violation of 18 U.S.C. § 922(g).

U.S. v. Japanese Rifle, Serial No. 1270821 (USDC-ED) (VLW 008-3-311) (17 pp.)

Insurance

Fire Loss – Business Interruption – Statutory Appraisal – Arbitration

When an insulation plant squared off against its insurance carrier on a claim for business interruption loss after a fire, each side’s complaints about the other’s “disinterested” loss appraiser under Va. Code § 38.2-2105 cancelled each other out, and an Alexandria U.S. District Court denies cross-motions to disqualify both independent experts.

Tiger Fibers LLC v. Aspen Specialty Ins. Co. (USDC-ED) (VLW 008-3-316) (11 pp.)

Contract

Government Contract – Subcontractor Claim – Arbitration

In a case of first impression under Virginia law, a Fairfax Circuit Court grants the motion of defendant non-signatories to a government subcontract to compel arbitration of the 17-count law suit filed by plaintiff subcontractor who alleges it did not receive pass-through payments it was entitled to under the subcontract.

Decisive Analytics Corp. v. Chikar (Fairfax Cir.Ct.) (VLW 008-8-174) (14 pp.)

Employment

ERISA – Long-Term Disability – Conflict Of Interest

Citing a new ERISA case from the U.S. Supreme Court, a Big Stone Gap U.S. District Court reverses a carrier’s denial of long-term disability benefits to a 55-year-old coal miner who suffered from knee and shoulder impairments and depression from chronic pain syndrome.

Winebarger v. Liberty Life Assurance Co. (USDC-WD) (VLW 008-3-318) ( 18 pp.)

Employment Discrimination

Age – Stray Comments

A Charlottesville U.S. District Court says a 55-year-old engineer and corporate officer, who was replaced by a 45-year-old vice president of operations and who claims he was fired because of age discrimination, has failed to state a claim under the Age Discrimination in Employment Act with his general allegations about the company’s emphases on “new talent,” forward- and future-thinking employees, and the need for the engineer to consider replacement planning for his department employees, including himself.

Inman v. Klockner Pentaplast of America Inc. (USDC-WD) (VLW 008-3-290) (28 pp.)

Criminal

Sentencing Guidelines – Crack Cocaine Reduction

A defendant who received a 16-percent reduction in his original 2005 sentence for distributing crack cocaine is entitled to a 16-percent reduction when the Alexandria U.S. District Court resentences him in 2008 under the revised sentencing guidelines for crack cocaine.

Walker v. U.S. (USDC-ED) (VLW 008-3-293) (4 pp.)

Employment

Insurance Regional Manager – Nonsolicitation – Proprietary Information

A Roanoke U.S. District Court says an insurance company can pursue both contract and tort claims against its former regional manager, who allegedly violated noncompete and nonsolicitation agreements when he went to work for a competitor while still employed by plaintiff and began recruiting plaintiff’s employees and soliciting its policyholders.

Combined Insurance Co. of America v. Wiest (USDC-WD) (VLW 008-3-310) (22 pp.)

Contract

Government Contract – Subcontractor Claim – Arbitration

In a case of first impression under Virginia law, a Fairfax Circuit Court grants the motion of defendant non-signatories to a government subcontract to compel arbitration of the 17-count law suit filed by plaintiff subcontractor who alleges it did not receive pass-through payments it was entitled to under the subcontract.

Decisive Analytics Corp. v. Chikar (Fairfax Cir.Ct.) (VLW 008-8-174) (14 pp.)

Criminal

Second-Degree Murder – Infant Death – Mother’s Arrest – Brady Violation

A Fairfax Circuit Court holds that under Brady v. Maryland, 373 U.S. 83 (1963), the commonwealth should have disclosed to defendant being tried for the murder of a 22-month-old boy, the circumstances of the arrest of the boy’s mother, the only other adult present on the scene at the time the child was injured, and defendant is entitled to a new trial.

Commonwealth v. Ahmad (Fairfax Cir.Ct.) (VLW 008-8-155) (6 pp.)

Domestic Relations

Equitable Distribution – Military Wife – Negative Non-Monetary Contribution

A military wife whose conduct “interfered with her husband’s career and delayed his advancement to command” made a “negative non-monetary contribution” to the parties’ marriage, a Fairfax Circuit Court says, but given the parties’ conflicting claims of adultery and each side’s request for an equal split, the court divides the property and makes no monetary award.

Moton v. Moton (Fairfax Cir.Ct.) (VLW 008-8-170) (5 pp.)

Domestic Relations

Spousal Support – Imputed Income – Mortgage Payments

The en banc Court of Appeals affirms a divorce court’s refusal to impute income to a wife who had not worked as a respiratory therapist for 15 years, but dissenting judges say the trial court’s remarks meant the ophthalmologist’s wife never had to go back to work

McKee v. McKee (Va.Ct.App.) (VLW 008-7-362) (17 pp.)

Search & Seizure

Consensual Encounter – Calling Drug Dog

Police who initially saw defendant urinating near a car during the early morning hours at a known drug-dealing location in Virginia Beach violated defendant’s Fourth Amendment rights when, without a reasonable articulable suspicion, an officer told defendant he had called a drug dog to “run your car,” and the Court of Appeals reverses defendant’s marijuana conviction.

Middlebrooks v. Commonwealth (Va.Ct.App.) (VLW 008-7-361) (10 pp.)

Creditor’s Rights

Auto Installment Loan – Limitations – Divisible Contract

A creditor on defendant’s car loan cannot sue for payments the buyer failed to make on her installment loan more than four years before the creditor filed suit, as a Fairfax Circuit Court holds that the creditor’s suit for additional payments is time-barred under the UCC, Va. Code § 8.2-725.

Credit Acceptance Corp. v. Coates (Fairfax Cir.Ct.) (VLW 008-8-166) (6 pp.)

Real Estate

Contract – Fraud – Water Damage Concealment

Home buyers who allege defendant sellers actively concealed water damage to the property also can sue defendant real estate agent; a Fairfax Circuit Court says the claims that the real estate agent fraudulently misrepresented communications in which the sellers denied water damage are not time-barred because buyers only discovered the agent’s alleged deception during discovery in the case against the sellers.

Rosenburgs v. Ohlsons (Fairfax Cir.Ct.) (VLW 008-8-162) (4 pp.)

Employment

Contract – Noncompete – Government Contractor

A Fairfax Circuit Court says a government contractor’s noncompetition and nonsolicitation clauses are unenforceable against a former employer because they do not specify what kind of “outside business activity” is considered competitive or what is considered a “predominantly similar” business.

ManTech International Corp. v. Analex Corp. (Fairfax Cir.Ct.) (VLW 008-8-167) (4 pp.)

Civil Procedure

GDC Dismissal – ‘Without Prejudice’ – No Final Order

A general district court’s dismissal without prejudice of a plaintiff’s auto accident p.i. case was not a final, appealable order under Va. Code § 16.1-106 and a Fairfax Circuit Court strikes plaintiff’s notice of appeal.

Poullath v. Rzasa (Fairfax Cir.Ct.) (VLW 008-8-173) (7 pp.)

Products Liability

Medical Device – Preemption – Manufacturer Rep Presence

A woman’s products liability warranty and design claims against the manufacturer of a NovaSure device used during endometrial surgery are preempted under the 1976 Medical Device Amendments, but she may amend her complaint to state a negligence claim against the manufacturer based on allegations that the manufacturer’s rep was in the OR and negligently directed the surgeon in use of the device, a Danville U.S. District Court holds.

Adkins v. Cytyc Corp. (USDC-WD) (VLW 008-3-244) (6 pp.)

Contract

Mailing List – Confidentiality – Limitations – Good Faith Covenant

A mortgage lender who suspected a former vice president of breaching a confidentiality clause by setting up a competing company to use the same mailing list customer criteria developed by plaintiff lender, can sue for breach of a covenant of good faith based on a “continuous breach” theory for ongoing mailings.

Corinthian Mortgage Corp. v. Choicepoint Precision Marketing LLC (USDC-ED) (VLW 008-3-268) (15 pp.)

Intellectual Property

Patent Application – Rules Waiver – Lost Package

A patent applicant loses its challenge to the USPTO’s denial of plaintiff’s petitions to be spared the effect of a delay in filing its patent application attributable to an “extraordinary situation”; although the Alexandria U.S. District Court agrees the PTO should have recognized an “extraordinary situation” arose when the courier for the law firm filing the application fell asleep on the BART train, lost the package with the application, and suffered a panic attack that prevented him from recovering the package until the next day, the court reluctantly concludes the PTO does not have the authority to change the date of application.

Howard Florey Institute v. Dudas (USDC-ED) (VLW 008-3-267) (21 pp.)

Insurance

Bad Faith Claim – Trucker Negligence – Settlement Offer

A Danville U.S. District Court says insurance defense lawyers might have been negligent in offering only $100,000 to settle an auto accident case in which they saw a 45-percent chance of a verdict of $1M to $1.5M and the defendant trucker had only $1M in coverage, but the defense lawyers investigated the case and kept the bankrupt trucker informed, and he has no bad faith claim against the carrier.

Goldstein, Trustee v. National Casualty Co. (USDC-WD) (VLW 008-3-282) (10 pp.)

Municipal

State Building Code – County Third-Party Inspectors – Certification

A county board of supervisors can require that third-party building inspectors be qualified engineers or architects, and the Court of Appeals reverses a contrary circuit court decision because that court erred in deferring to the State Building Code Technical Review Board’s unreasonable interpretation of USBC § 109.3.

Board of Supervisors of Culpeper County, Va. v. State Building Code Technical Review Board (Va.Ct.App.) (VLW 008-7-352) (7 pp.)

Traffic Offenses

Driving After HO Order – Home Monitoring – Sheriff Authority

A defendant sentenced to one year incarceration for driving as an habitual offender cannot overturn his mandatory minimum sentence by arguing the trial court prohibited the sheriff from using home electronic monitoring for defendant; the Court of Appeals says the sentencing order merely refused to “authorize” the sheriff to consider the alternative sentence, which defendant in fact never requested.

Pilson v. Commonwealth (Va.Ct.App.) (VLW 008-7-348) (4 pp.)

Employment Discrimination

Title VII – Hostile Environment – Retaliation

A female truck driver who earlier sued defendant employer for sexual harassment and discrimination in violation of Title VII cannot construct another Title VII suit for retaliation based on her “litany of minor work place slights,” says a magistrate judge in the Harrisonburg U.S. District Court.

Monk v. Stuart M. Perry Inc. (USDC-WD) (VLW 008-3-275) (17 pp.)

SEPTEMBER

Bankruptcy

Student Loan Debt – ‘Undue Hardship’

Although debtor is in her late 60s with some health problems, she can’t discharge her $161,000 in student loans as an “undue hardship.”

In re Spence (USCA) (VLW 008-2-141) (11 pp.)

Bankruptcy

Jurisdiction – Debtor’s Settlement – Fraud Claims

A Norfolk U.S. Bankruptcy Court has no subject matter jurisdiction to consider a bank’s state law fraud and civil conspiracy claims against debtor, a defunct sports merchandise marketer, and its principals.

In re Baseline Sports Inc. (USBC-ED) (VLW 008-4-021) (41 pp.)

Civil Rights

Excessive Force – Domestic Violence Call – Bathroom Entry

A man who refused to come out of his bathroom when police responded to a domestic violence call from the man’s wife cannot sue Henrico County police for excessive force for entering the bathroom, a Richmond U.S. District Court says; however, plaintiff has stated a claim for his alleged illegal restraint based on police removing the man and taking him to a local hospital after he complained of chest pain.

Trull v. Smolka (USDC-ED) (VLW 008-3-411) (19 pp.)

Civil Rights

Online Land Records – Privacy Right – SSNs

A Richmond U.S. District Court holds that Va. Code § 59.1-443.2 is unconstitutional and cannot be applied to the Web site of a privacy-rights advocate who has used her Web site to post SSNs of legislators and clerks of court.

Ostergren v. McDonnell (USDC-ED) (VLW 008-3-323) (33 pp.)

Civil Rights

Weapon Seizure – Privacy Rights – SSN

A Norfolk U.S. District Court dismisses a civil rights claim filed by a man who protested his seizure at the Norfolk Harborfest 2007 for carrying a holstered handgun in violation of a local Norfolk ordinance, but the court denies the city’s motion to dismiss the man’s § 1983 claim for violation of his rights under the Federal Privacy Act, for allegedly being forced to twice provide his Social Security number to Norfolk police officers.

Szymecki v. City of Norfolk (USDC-ED) (VLW 008-3-337) (17 pp.)

Constitutional

First Amendment – Anti-Spam Statute

Virginia’s “anti-spam” law, Va. Code § 18.2-152.3:1, is unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails including those containing political, religious or other speech protected by the First Amendment, the Virginia Supreme Court says on rehearing.

Jaynes v. Commonwealth (Va.S.Ct.) (VLW 008-6-095) (28 pp.)

Contract

Parking Lot Design – Economic Loss Rule

A parking lot designer cannot use the “economic loss rule” to persuade a Fairfax Circuit Court to dismiss plaintiff recycling business’s suit alleging breach of contract/professional negligence.

Central Park Drive LLC v. Rinker Design Assocs. (Fairfax Cir. Ct.) (VLW 008-8-181) (3 pp.)

Contract

UCC – Statute Of Frauds – Flooring Installation

A flooring company, Michael’s Carpet World, did not have an enforceable oral contract with defendant Delta Star for installation of flooring in its CEO’s office, and the Virginia Supreme Court reverses the judgment for Michael’s and enters final judgment for Delta Star, based on its UCC statute of frauds defense.

Delta Star Inc. V. Michael’s Carpet World (Va.S.Ct.) (VLW 008-6-089) (11 pp.)

Corporate

‘Person’ – Hospital Authority – Guaranty Association

A hospital authority that had its workers’ compensation coverage through the Virginia Guaranty Association after its comp carrier, Reciprocal of America, became insolvent, is a “person” subject to suit for reimbursement by the Association, a Chesapeake Circuit Court holds.

Va. Property & Cas. Ins. Guaranty Ass’n v. Chesapeake Hospital Authority (Chesapeake Cir.Ct.) (VLW 008-8-188) (3 pp.)

Criminal

Sexually Violent Predator – Civil Commitment

In this proceeding to have a convicted rapist civilly committed as a Sexually Violent Predator under Va. Code §§ 37.2-900, a Greensville County Circuit Court denies respondent’s motions in limine to prohibit the commonwealth from referencing any results of tests administered to respondent, evidence of a 1990 rape charge or any other conviction not of a sexual nature.

Commonwealth v. Squire (Greensville County Cir.Ct.) (VLW 008-8-190) (7 pp.)

Criminal

Bifurcated Trial – Prior Larcenies – Recidivist Statute

In defendant’s prosecution for concealment as a third or subsequent offense, a Fairfax Circuit Court denies defendant’s motion to bifurcate the guilt phase of the trial under Va. Code 18.2-103 and 18.2-104, in order to preclude introduction of evidence of his prior larceny convictions until the jury has determined his guilt for the concealment offense.

Commonwealth v. Dickens (Fairfax Cir.Ct.) (VLW 008-8-196) (8 pp.)

Criminal

Detainers – IAD – ‘Anti-Shuttling’ Provision

An Abingdon U.S. District Court accepts a magistrate judge’s recommendation to dismiss a federal drug charge against a defendant because his transfer between state and federal court violated the “anti-shuttling” provision of the Interstate Agreement on Detainers, but the dismissal is without prejudice to reprosecution by the government.

U.S. v. Jones (USDC-WD) (VLW 008-3-338) (14 pp.)

Criminal

Murder – Grand Larceny – ‘Other Crimes’ Evidence

At defendant’s trial for murder and grand larceny of a commercial dump truck, a Chesapeake Circuit Court says the prosecution can introduce evidence that defendant previously was convicted six times of grand larceny of tractor-trailers, as well as a pending North Carolina charge involving stealing and burning several tractor-trailers.

Commonwealth v. McMillian (Chesapeake Cir.Ct.) (VLW 008-8-189) (4 pp.)

Criminal

Felon In Possession – Necessity Defense

Although defendant said his nephew threatened to return to defendant’s property with a gun after the two had argued, defendant did not retreat or call the police, but instead retrieved several firearms of his own, and defendant’s claim of “necessity” does not persuade the Court of Appeals to overturn his conviction for illegal weapons possession.

Waller v. Commonwealth (Va.Ct.App.) (VLW 008-7-401) (10 pp.)

Domestic Relations

Spousal Support – JDR Consent Order

A wife who agreed to a consent order to resolve her spousal support petition in JDR court cannot request a different sum for spousal support when husband files a complaint for divorce in the circuit court, a Salem Circuit Court says.

Paul v. Paul (Salem Cir.Ct.) (VLW 008-8-205) (3 pp.)

Domestic Relations

Spousal Support – Imputed Income

A Fairfax Circuit Court decides to impute income at the level of husband’s recent job paying $140,000 annually that he left voluntarily, when the parties divorced after 30 years of marriage and husband remarried and stayed in Albania; husband must continue to pay wife $2,000 in monthly spousal support.

Simonich v. Simonich (Fairfax Cir.Ct.) (VLW 008-8-201) (6 pp.)

Domestic Relations

Marriage Affirmance

A Fairfax Circuit Court denies a “Petition to Affirm a Marriage” filed by a couple that underwent an Islamic marriage ceremony performed by a religious authority, but who had no civil marriage license.

In re Kulmiye (Fairfax Cir.Ct.) (VLW 008-8-194) (5 pp.)

Domestic Relations

Equitable Distribution – Tax Payment Credits

A divorce court did not err during equitable distribution in awarding wife half the fair market rental value of the marital home or finding the receivables from two loans to be marital assets, but the court did err in awarding wife credit for tax payments she made with marital funds, and the Court of Appeals reverses the monetary award and remands for reconsideration.

McIlwain v. McIlwain (Va.Ct.App.) (VLW 008-7-410) (17 pp.)

Domestic Relations

Spousal Support – Imputed Income

Although husband, who deserted the parties’ 22-year marriage, presented evidence wife could earn as much as $13,000 per year, the divorce court did not err in declining to impute income to wife, who suffered from a congenital heart condition, had only a high-school education and had not worked outside the home during the parties’ marriage.

Brandau v. Brandau (Va.Ct.App.) (VLW 008-7-411) (10 pp.)

Employment

Noncompete – Employment Recruiter – Functional Limitation

A skilled-trade broker in the Hampton Roads area cannot enforce its noncompete against a former manager, because the two-year agreement “is unlimited in both its geographic and functional scope,” a Chesapeake Circuit Court says.

Tradestaff & Co. v. Nogiec (Chesapeake Cir.Ct.) (VLW 008-8-192) (7 pp.)

Employment

Contract – Noncompete – Kentucky Law

In a government contractor’s suit alleging defendant former employees violated a noncompete by going to work for a competing producer of secure IDs, a Norfolk U.S. District Court says applying Kentucky law to the one-year, nationwide noncompete provision does not violate Virginia public policy.

Senture LLC v. Dietrich (USDC-ED) (VLW 008-3-329) (9 pp.)

Employment Discrimination

Race – Equitable Tolling

A black female manager who kept checking back with the EEOC has a filing deadline “equitably tolled,” but her employer still wins summary judgment.

Jones v. Virginia Dep’t of Social Servs. (USDC-ED) (VLW 008-3-406) (20 pp.)

Medical Malpractice

Discovery – Non-English Speaking Patients – Hospital Protocols

A woman who sued defendant hospital and other healthcare providers alleging negligence in discharging her from the hospital, allegedly allowing her to partially deliver her stillborn child 45 minutes later at her home, where an EMT discovered the woman, is not entitled to discovery of hospital policies, procedures and protocols for dealing with non-English speaking patients; but a Fairfax Circuit Court says the plaintiff may discover information in a defendant nurse’s personnel file related to what courses she attended.

Mejia-Arevalo v. Inova Health Care Services (Fairfax Cir.Ct.) (VLW 008-8-199) (7 pp.)

Municipal

Zoning – BZA Authority – Dillon’s Rule

The Supreme Court of Virginia upholds the Fairfax Circuit Court’s decision that the county’s board of zoning appeals does not have the authority to institute litigation on its own behalf against the county board of supervisors, to challenge the supervisors’ decision to stop paying for private legal counsel to represent the BZA in matters other than alleged violations of the Virginia Freedom of Information Act or suits against individual BZA members in their official capacities.

BZA of Fairfax County v. Board of Supervisors of Fairfax County (Va.S.Ct.) (VLW 008-6-094) (6 pp.)

Negligence

Wrongful Death Settlement – Court Approval – Confidential Terms

A court order approving a petition under Va. Code § 8.01-55 of a wrongful death settlement should be unsealed for disclosure of the monetary amount of the settlement, which the parties seek to keep a secret; the Virginia Supreme Court upholds a circuit court order requiring disclosure.

Perreault, Am’x v. The Free Lance-Star (Va.S.Ct.) (VLW 008-6-085) (23 pp.)

Negligence

FELA – Podiatrist Expert Testimony

A railroad employee who sues for injuries he has suffered from walking “on large ballast and debris” scattered throughout rail yards, cannot use podiatrists to testify as to causation, a Roanoke City Circuit Court says in a case of first impression.

Hollingsworth v. Norfolk Southern Ry. Co. (Roanoke City Cir.Ct.) (VLW 008-8-207) (6 pp.)

Negligence

Premises Liability – Third-Party Assault – Social Guest

A tenant’s guest who was attacked by a trespasser to the apartment complex can sue the complex owners and managers, who allegedly had claimed enhanced security at the complex, for negligence and as a third-party beneficiary of the contract between the tenant and the landlord, a Loudoun County Circuit Court rules.

Shehan v. Rush (Loudoun County Cir.Ct.) (VLW 008-8-183) (7 pp.)

Real Estate

Closing – Sale Proceeds – Fiduciary Duty

A Richmond U.S. District Court dismisses a seller’s fraud cross-claim against defendants and their title company, but says the seller can proceed with a claim for breach of fiduciary duty.

NGM Insurance Co. v. Secured Title & Abstract Inc. (USDC-ED) (VLW 008-3-409) (7 pp.)

Search & Seizure

Residential Visit – K-9 Officer – ‘Drug House’ Tip

An officer who responded with a K-9 drug dog to a Newport News home said to be a “known drug house” did not conduct an illegal search when the dog made a “positive alert” at the home’s front door, and the alert and the “numerous empty corner bags” commonly used to package illegal drugs in the front yard supported issuance of a search warrant, a Newport News Circuit Court holds.

Commonwealth v. Taliaferro (Newport News Cir.Ct.) (VLW 008-8-204) (6 pp.)

Search & Seizure

Probation Revocation – Bad Faith

In this appeal involving an officer’s discovery of a probationer’s cocaine possession when the officer entered a boarding house in pursuit of another man, the Court of Appeals erred in holding that the exclusionary rule never applies to evidence submitted in probation revocation proceedings, regardless of the searching officer’s conduct of bad faith, and the Supreme Court reverses the decision upholding the revocation and remands for reconsideration.

Logan v. Commonwealth (Va.S.Ct.) (VLW 008-6-080) (5 pp.)

Search & Seizure

Blanket Suppression Order – Healthcare Fraud Suspect – Tax Evasion

On interlocutory appeal, the 4th Circuit vacates a district court’s blanket suppression order of financial documents seized by federal agents from the home medical office of a doctor suspected of healthcare fraud but prosecuted for tax evasion; the district court abused its discretion and made errors of law in its blanket suppression of the seized evidence.

U.S. v. Srivastava (USCA) (VLW 008-2-140) (29 pp.)

Search & Seizure

Consensual Encounter – Man In Parked Car – Drugs In Bag

Police had reasonable articulable suspicion to seize defendant and order him out of his car after he three times failed to comply with a police request not to reach down to the floorboard of his car, parked in a motel parking lot where police recently made other drug busts, and the drugs found in a black bag defendant pulled up from the car floorboard need not be suppressed, the Court of Appeals holds.

Jones v. Commonwealth (Va.Ct.App.) (VLW 008-7-394) (18 pp.)

Tort

Business Tort – Legal Malpractice – Conflict Of Interest

A Roanoke U.S. District Court dismisses an oil company’s $25 million legal malpractice and tortious interference suit against the West Virginia law firm that represented the oil company in an effort to buy oil and gas wells in Kentucky, and two of whose partners formed “Elk River Energy LLC” to bid on the same wells; the oil company’s theory of causation fails, because a third party simply outbid plaintiff oil company.

Hinkle Oil & Gas Inc. v. Bowles Rice McDavid Graff & Love LLP (USDC-WD) (008-3-401) (14 pp.)

Tort

Constructive Fraud – Emotional Distress – Supermarket Suppliers

A Richmond grocer‘s $16 million jury verdict against the country’s third-largest grocery supplier for constructive fraud and emotional distress is reversed by the Supreme Court of Virginia.

SuperValu Inc. v. Johnson (Va.S.Ct.) (VLW 008-6-083) (27 pp.)

Tort

Defamation – Political Campaign Literature

In this defamation action by a candidate for the Virginia Senate in 2003 against his opponent, the incumbent, based on statements in campaign literature, a Richmond Circuit Court sustains the demurrer to the claims of failure to pay debt and bribery, but overrules the demurrer on the claims related to bankruptcy and taking money from children.

Borgenicht v. Norment (Richmond Cir.Ct.) (VLW 008-8-182) (5 pp.)

Tort

FTCA – Prison Inmate – Multiple Attacks

A federal inmate who alleges he informed prison authorities that he had been attacked and was vulnerable to repeat attack by gang members has his claim under the Federal Tort Claims Act dismissed by a Roanoke U.S. District Court.

Brown v. U.S. (USDC-WD) (VLW 008-3-289) (7 pp.)

OCTOBER

Civil Procedure

Discovery – Attorney-Client Privilege

In this suit by a nonprofit corporation claiming “identity theft” by its former executive director, an Alexandria U.S. District Court says defendants can’t use the attorney-client privilege to withhold documents plaintiff wants.

Flexible Benefits Council v. Feldman (USDC-ED) (VLW 008-3-442) (15 pp.)

Civil Procedure

Settlement Conference – Authorized Representative – Sanctions

A Roanoke U.S. District Court declines to sanction ALPS for failing to have an authorized representative appear in person at a settlement conference ordered by the magistrate judge, where the court had granted summary judgment days earlier to the defendant law firm and the “parties remained light years apart in settlement.”

Hinkle Oil & Gas Inc. v. Bowles Rice McDavid Graff & Love LLP (USDC-WD) (VLW 008-3-473) (6 pp.)

Civil Procedure

Jurisdiction – Personal Appearance – Subpoena Request

A defendant corporation that filed a subpoena duces tecum in circuit court has made a “general appearance” and cannot later contest the court’s jurisdiction, a Roanoke County Circuit Court holds.

Marsinko v. Burwell, et al. (Roanoke County Cir.Ct.) (VLW 008-8-216) (4 pp.)

Civil Procedure

Discovery – Sanctions – Attorney’s Fees

Defendants who have acted in bad faith in failing to provide discovery of financial documents in plaintiff’s efforts to enforce a Florida judgment face sanctions that include over $11,000 in attorney’s fees, a Norfolk U.S. District Court says.

Wu v. Tseng (USDC-ED) (VLW 008-3-418) (17 pp.)

Civil Procedure

Discovery – Credit Counseling Agency – Tax Returns

A credit card company that is suing a consumer credit counseling agency and law firms for tortious interference for allegedly advising clients not to pay their credit card accounts, is entitled to production of certain tax documents, correspondence, advertisements and documents related to regulatory action, in a ruling by a magistrate judge of the Richmond U.S. District Court.

Capital One Bank (USA) N.A. v. Hess Kennedy Chartered LLC (USDC-ED) (VLW 008-3-448) (8 pp.)

Criminal

Robbery – Identification – Police Custody

Although a showup to identify robbery suspects was “impermissibly suggestive,” a Roanoke City Circuit Court will allow the robbery victims’ identification of the suspects.

Commonwealth v. Thompson (Roanoke City Cir.Ct.) (VLW 008-8-213) (5 pp.)

Criminal

Superseding Indictment – Drug Charge – Quantity

A defendant indicted in 1999 for possession of “more than five grams of cocaine base,” who went missing until 2008, loses his motion to dismiss a superseding indictment that charged him with possession of “50 grams or more” of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), which the Danville U.S. District Court says relates back to the 1999 indictment.

U.S. v. Brown (USDC-WD) (VLW 008-3-440) (9 pp.)

Consumer Protection

Auto Purchase – Contract Rescission

A Dodge Durango buyer who agreed to return to the dealership to retrieve the title to the vehicle once his check cleared, but who neglected to do so and whose vehicle was impounded after his temporary registration and tags expired, cannot now rescind the sale under Va. Code § 46.2-1542(B).

Rolander v. Luxury Auto Sales of Dumfries (Prince William Cir.Ct.) (VLW 008-8-215) (5 pp.)

Employment

ERISA – LTD Benefits – Airline Pilot – Diabetes

An airline pilot who lost his FAA license after he became an insulin-dependent diabetic wins s long-term disability benefits and attorney’s fees from a Charlottesville U.S. District Court.

McIntyre v. Aetna Life Insurance Co. (USDC-WD) (VLW 008-3-451) (20 pp.)

Employment Discrimination

Equal Pay Act – FLSA Protection – Internal Complaint

A woman who sues for disparate pay in violation of the Equal Pay Act cannot state a claim under the anti-retaliation provision of the FLSA, based on her internal complaints about the pay disparity, a Norfolk U.S. District Court holds.

Bell-Holcombe v. Ki LLC (USDC-ED) (VLW 008-3-472) (12 pp.)

Employment Discrimination

Title VII – Exhaustion – Employer Name

A Richmond U.S. District Court grants partial summary judgment in this sexual harassment suit, but sanctions defense counsel attorney’s fees and costs for an earlier failure to respond to plaintiff’s state-law claims.

Roberts v. The Shaw Group Inc. (USDC-ED) (VLW 008-3-441) (8 pp.)

Employment Discrimination

Discovery – Stricken Defense – Disability

An employer defending a suit alleging wrongful termination and disability discrimination has its defense of discharge for financial reasons struck for violation of discovery rules, a magistrate judge in the Roanoke U.S. District Court holds.

Spicer v. Universal Forest Products (USDC-WD) (VLW 008-3-430) (17 pp.)

Employment Discrimination

Disability – ADA – Nurse’s Allergy

A nurse who alleges she asked defendant state hospital to change its detergent after she suffered a severe respiratory allergic reaction to a chemical in the hospital’s detergent, has stated a claim under the Americans with Disabilities Act, a magistrate judge in the Richmond U.S. District Court holds.

Bridges v. Reinhard (USDC-ED) (VLW 008-3-425) (8 pp.)

Medical Malpractice

EMTALA – Triage – Diabetic Condition

An emergency-room patient who alleges he received no care after a triage nurse prioritized him as “non-urgent” and failed to include his history of diabetes or diabetic ketoacidosis condition, has stated a claim for violation of the Emergency Medical Treatment and Active Labor Act, a Danville U.S. District Court says.

Scruggs v. Danville Regional Medical Center of Va. LLC (USDC-WD) (VLW 008-3-433) (8 pp.)

Negligence

Auto Accident – Remittitur – Counseling

A woman who was released from the emergency room after an auto accident, and who sought counseling for nightmares 18 months later, but continued working, has her jury verdict of $350,000 reduced to $50,000 by a Montgomery County Circuit Court.

Knight v. Biancur (Montgomery County Cir.Ct.) (VLW 008-8-220) (3 pp.)

Negligence

Premises Liability – Wholesale Club – Shooting

A woman can sue the Wholesale Club where she worked – but not the store manager – for the store’s failure to adequately warn or provide security from her husband who shot her on store property, a Norfolk Circuit Court holds.

Phillips v. BJ’s Wholesale Club Inc. (Norfolk Cir.Ct.) (VLW 008-8-212) (5 pp.)

Negligence

Settlement – Accord & Satisfaction

A p.i. defendant who sent a check for 10 percent of what a carrier wanted, addressed “To Whom It May Concern,” lacked good faith and a Newport News Circuit Court rejects defendant’s defense of accord and satisfaction.

Hooten, by GEICO, Subrogee v. Reed (Newport News Cir.Ct.) (VLW 008-8-217) (2 pp.)

Real Estate

Contract Rescission – Condo Purchase – Interstate Land Disclosure

Eight buyers into a Falls Church condo development who saw the condos they wanted to buy in 2005 lose 20 percent of their value in a market flooded with condos cannot get out of their purchase agreements, an Alexandria U.S. District Court says.

Bartley v. Merrifield Town Center LP (USDC-ED) (VLW 008-3-434) (19 pp.)

Search & Seizure

Traffic Stop – Window Tint – Passenger Search

A Newport News U.S. District Court denies defendant’s motion to suppress two plastic bags containing cocaine and marijuana discovered on his person when police stopped the vehicle in which defendant was a passenger and had the occupants exit when they smelled marijuana; the alleged failure by police to attach the affidavit to the warrant served on defendant is not fatal to the search.

U.S. v. McMillan (USDC-ED) (VLW 008-3-416) (9 pp.)

Search & Seizure

Parked Car – ‘Community Caretaker’ Doctrine

Even if an officer “seized” defendant by tapping on the window of his parked car at 4:30 a.m., there was no basis to suspect criminal activity or a need for police assistance, and a Roanoke County Circuit Court suppresses methamphetamine found with the driver.

Commonwealth v. Peterson (Roanoke County Cir.Ct.) (VLW 008-8-208) (4 pp.)

Wills & Trusts

Real Estate – ‘Sold’ – Closing After Death

A parcel is not “sold” under the terms of a woman’s will where she entered into a contract to sell the parcel seven months before she died, but the sale did not close until after her death, a Norfolk Circuit Court holds.

In re: The Will of Lois V. Huffman (Norfolk Cir.Ct.) (VLW 008-8-221) (3 pp.)

NOVEMBER

Administrative

‘Related Person’ – Coal Act – Arbitrary & Capricious Standard

An Abingdon U.S. District Court reverses a decision that an LLC is a “related person” under the Coal Act and says the company no longer has to cover a group of coal retirees.

Nicewonder Group LLC v. Astrue (USDC-WD) (VLW 008-3-481) (11 pp.)

Administrative

Standing – Virginia Water Protection Permit

The Virginia Court of Appeals finds that the Chesapeake Bay Foundation has standing to challenge the extension of the Virginia Water Protection Permit for the proposed reservoir on the Mattaponi River in King William County.

Chesapeake Bay Foundation Inc. v. Commonwealth (Va.Ct.App.)(VLW 008-7-469)(24 pp)

Attorneys

Legal Malpractice – Insurer Claims

Liability and excess carriers who covered an $8.3M verdict against the Wintergreen resort have no claim for legal malpractice under Virginia law, a Richmond Circuit Court says.

Wintergreen Partners v. Bowman and Brooke et al. (Richmond Cir.Ct.) (VLW 008-8-228) (3 pp.)

Civil Procedure

Collateral Estoppel – Injured Passengers – Contribution Claim

Where a jury found both Driver D and Driver C jointly and severally liable to an injured passenger from Driver C’s car, and Driver C later settled a separate suit filed by an injured passenger from Driver D’s car, Driver C is not collaterally estopped from seeking contribution from Driver D, an Arlington Circuit Court holds.

Blufer v. Caliman v. Deeds (Arlington County Cir.Ct.) (VLW 008-8-227) (3 pp.)

Civil Procedure

Real Party In Interest – Auto Accident – Plaintiff’s Funding

In plaintiff’s p.i. action against a driver’s employer, a Norfolk U.S. District Court denies the employer’s motion to join as the real party in interest American Legal Funding LLC, which has helped fund plaintiff’s lawsuit under a consensual equity lien and security agreement.

Payne v. Wyeth Pharmaceuticals Inc. (USDC-ED) (VLW 008-3-518) (5 pp.)

Criminal

Bank Fraud – Embezzlement – Drug Dealers

A husband and wife employed by the same company, who embezzled company funds to support their drug habit and to deal drugs on the job, cannot be convicted of bank fraud because the government failed to prove that an insured bank was a victim of defendants’ fraudulent scheme, an Abingdon U.S. District Court holds.

U.S. v. Cocilova (USDC-WD) (VLW 008-3-496) (18 pp.)

Criminal

Leaving Accident Scene – Victim’s Injury

Where a woman got out of her car and walked back to ask defendant if he was OK after he rear-ended her car with his pickup truck, and her vehicle suffered only $400 in damages, there was insufficient evidence that defendant was aware of any personal injury to the woman, and his conviction of felony leaving the scene of an accident with personal injury is reversed by the Court of Appeals.

Brannon v. Commonwealth (Va.Ct.App.) (VLW 008-7-468) (7 pp.)

Criminal

Rape – Flight – Jury Instruction

A reversal in a rape case gives the Supreme Court of Virginia a chance to highlight a defect in the Model Jury Instruction on flight.

Turman v. Commonwealth (Va.S.Ct.) (VLW 008-6-116) (14 pp.)

Criminal

Supervised Release Revocation – Mootness

The 4th Circuit dismisses as moot this appeal by a defendant challenging the revocation of his supervised release, where defendant already has served the 14-month sentence imposed for violation of the conditions of his supervised release.

U.S. v. Hardy (USCA) (VLW 008-2-146) (8 pp.)

Domestic Relations

Custody – ‘Fugitive’ Father

By wrongfully taking his child to Spain, a “fugitive” father has forfeited his right to appeal court orders to return the child to his mother, the Supreme Court of Virginia holds in a first-impression case.

Sasson v. Shenhar (Va.S.Ct.) (VLW 008-6-100) (25 pp)

Domestic Relations

Equitable Distribution – Valuation – Dental Practice

A wife who helped husband build his dental practice into a clinic with revenues of over $5 million and valued at $1.7 million, but who also engaged in unethical business practices that led to fines and disciplinary actions against husband, gets a marital award of $850,000 from a Rappahannock County Circuit Court.

Rekow v. Rekow (Rappahannock County Cir.Ct.) (VLW 008-8-225) (11 pp.)

Domestic Relations

Show Cause Petition – Real Estate Sale

A Fauquier County Circuit will hold a show cause on husband’s petition alleging wife has sold real estate to a third party in violation of the final divorce decree, and the court also has referred this matter on to the commonwealth’s attorney.

Cavanna v. Cavanna (Fauquier County Cir.Ct.) (VLW 008-8-226) (2 pp.)

Domestic Relations

Spousal Support – Husband’s Retirement – Wife’s Disability

Although husband recently retired from his position as a physician earning $91,000 annually, he makes more money now and a Roanoke County Circuit Court says he must continue paying wife $554 in monthly spousal support.

Makoui v. Makoui (Roanoke County Cir.Ct.) (VLW 008-8-237) (4 pp.)

Employment

Noncompete – Trade Secrets – IT Company

A noncompete that covers “a 100-square mile radius” and would prevent a defense contractor’s former employee from reporting a terrorist threat to the Department of Homeland Security or greeting a former colleague in a grocery store, will not be enforced by a Fairfax Circuit Court.

Strategic Enterprise Solutions Inc. v. Ikuma (Fairfax Cir.Ct.) (VLW 008-8-233) (7 pp.)

Employment Discrimination

Title VII – Air Traffic Controller – Hostile Environment

A female air traffic controller gets another shot at proving her “hostile environment” case because an Alexandria U.S. District Court erred in refusing to consider affidavits from coworkers about conduct plaintiff did not personally witness.

Ziskie v. Mineta (USCA) (VLW 008-2-149) (16 pp.)

False Claims Act

‘Buy America’ Subsidy – False Certification

A former employee of North American Bus Industries who alleges the company defrauded the U.S. by underpaying duties on bus frames imported from Hungary and by falsely certifying that buses it manufactured using those frames were eligible for federal “Buy America” subsidies, has failed to state a claim under the False Claims Act, and the 4th Circuit upholds the lower court’s dismissal of the employee’s qui tam action.

U.S. ex rel. Thornton G. Sanders v. North American Bus Industries Inc. (USCA) (VLW 008-2-145) (21 pp.)

Intellectual Property

Criminal Copyright Infringement – Restitution

In the government’s successful criminal copyright prosecution of defendant as a “high-level member of an Internet piracy organization known as ‘Elite Torrents,’” a Big Stone Gap U.S. District Court finds the government has failed to prove the amount of actual loss sustained by the victims, and therefore is unable to require defendant to pay restitution.

U.S. v. Dove (USDC-WD) (VLW 008-3-505) (17 pp.)

Municipal

Insurance – Bus Transport – Special Needs Student – Immunity

A special needs student’s injuries from his wheelchair rolling off the curb did not occur in the “use” of the school bus, and a Brunswick County Circuit Court says the school board has immunity from the student’s p.i. suit, and the boy has no UM coverage under mom’s policy.

Griffin v. Brunswick County Public School Board (Brunswick County Cir.Ct.) (VLW 008-8-236) (10 pp.)

Search & Seizure

Anonymous Tip – Investigative Stop – DUI Arrest

Although police could corroborate some elements of an anonymous tip – the driver’s shirt, the color and make of his car, a partial license plate number and his direction of travel – the tip did not predict specific criminal activity and the Supreme Court of Virginia reverses the DUI conviction.

Appeals.

Harris v. Commonwealth (Va.S.Ct.) (VLW 008-6-104) (22 pp.)

Tort

Defamation – Blog Postings

A developer’s defamation suit against a defendant who posted comments critical of the developer to a Web site called “thinkchristiansburg.com” is dismissed by a Montgomery County Circuit Court.

Woody v. Carter (Montgomery County Cir.Ct.) (VLW 008-8-224) (3 pp.)

DECEMBER

Attorneys

Legal Malpractice – Divorce – Expert Opinion

A Fairfax Circuit Court refuses to dismiss an unhappy husband’s legal malpractice suit against his divorce lawyer because plaintiff husband does not have an expert witness.

Jacokes v. Cottrell (Fairfax Cir.Ct.) (VLW 008-8-241) (4 pp.)

Civil Procedure

Res Judicata – Claim-Splitting – Sanctions

A real estate financing company that lost a 2006 suit with a former business associate has its later suit against the associate dismissed as barred by res judicata, and the Fairfax Circuit Court adds insult to injury by sanctioning the lawyer hired to bring the second suit for $25,626 under Va. Code § 8.01-271.1.

Gray Diversified Asset Mgmt. Inc. v. Canellis (Fairfax Cir.Ct.) (VLW 008-8-242) (5 pp.)

Civil Procedure

P.I. Suit – Police Report – SDT

In this wrongful death action by the family of decedent passenger, the Fairfax Circuit Court quashes a subpoena duces tecum in which the parents sought the criminal investigation file supporting the decision not to prosecute any of the civil defendants.

Singh v. Agbemble (Fairfax Cir.Ct.) (VLW 008-8-250) (4 pp.)

Civil Procedure

Foreign Judgment – Service Of Process – Fla. Law

Although the Florida address for decedent’s son was listed as the address for decedent as registered agent of “McAuliffe Properties Inc.,” service on the son was no good under Florida law and the Fairfax Circuit Court sets aside a 1999 Florida default judgment docketed against decedent in Virginia in 2007.

Gosp v. McAuliffe (Fairfax Cir.Ct.) (VLW 008-8-252) (4 pp.)

Civil Rights

Bank Employee – Lie Detector Test – EPPA

The 4th Circuit applies the Price Waterhouse “mixed motive” standard to a bank employee’s claim that the bank violated his statutory rights by firing him after he failed police-administered lie detector tests about his role in a robbery attempt; but the employee can try his claim that the bank “used” or “referred to” the polygraph results in violation of the Employee Polygraph Protection Act.

Worden v. SunTrust Banks Inc. (USCA) (VLW 008-2-152) (21 pp.)

Creditor’s Rights

Hospital Bill – Limitations – Open Account

A hospital-drafted contract that provided a woman’s bill for medical services was “payable in full” in 90 days following discharge was not an “open account,” and the hospital’s suit on the debt is barred under the five-year statute of limitations, a Roanoke City Circuit Court says.

Carilion Medical Center v. Ady (Roanoke City Cir.Ct.) (VLW 008-8-253) (3 pp.)

Creditor’s Rights

Escrow Account – Waterfront Project – Bank ‘Customer’

Saying disappointed investors’ suit, if successful, would make a “shambles” of the banking industry, a Roanoke U.S. District Court dismisses the non-customer investors’ claim that the bank agreed to act as an escrow agent just because it knew the investment funds were to be escrowed for a waterfront development.

Scott v. Branch Banking & Trust Co. (USDC-WD) (VLW 008-3-544) (18 pp.)

Criminal

Speedy Trial Act – Bank Fraud – Dismissal With Prejudice

Although a Roanoke U.S. District Court thinks the bank fraud and conspiracy charges against defendant are serious, the 229-day violation of the Speedy Trial Act, 18 U.S.C. § 3162, is a significant delay that has prejudiced defendant, and the charges are dismissed with prejudice.

U.S. v. Yalartai (USDC-WD) (VLW 008-3-424) (7 pp.)

Domestic Relations

Retroactive Child Support – Capital Gains

A Fairfax Circuit Court discounts father’s claim that he did not understand that capital gains would be used in child support calculation and the court orders a retroactive recalculation of child support.

Hicks v. Hicks (Fairfax Cir.Ct.) (VLW 008-8-247) (9 pp.)

Domestic Relations

Equitable Distribution – Classification – Dual-Formula Division

A lawyer wife had greater earnings during the parties’ marriage but husband owned a house in town prior to the marriage and used an inheritance to help pay for acquisition and improvements to riverfront property the couple purchased, and the Court of Appeals affirms a property split that applied the Brandenburg formula to the city home and the Keeling approach to the riverfront parcel to give wife 60 percent of the real estate.

Rinaldi v. Rinaldi (Va.Ct.App.) (VLW 008-7-528) (16 pp.)

Domestic Relations

Mortgage Payments – PSA – Cohabitation

The en banc Court of Appeals says a husband must continue to pay wife’s mortgage under their PSA even though she was cohabiting under Va. Code § 20-109(A).

Stacy v. Stacy (Va.Ct.App.) (VLW 008-7-510) (10 pp.)

Employment

Contract – Restrictive Covenant – Duty Of Loyalty

An employee who renegotiated his employment to at-will status with plaintiff employer who said the employee was violating restrictive covenants, and who did not sign an agreement with new restrictive covenants, cannot be sued for breach of contract but can be sued by employer for breach of the duty of loyalty, a Norfolk Circuit Court says.

Workflow Solutions v. Lewis (Norfolk Cir.Ct.) (VLW 008-8-261) (7 pp.)

Employment

ERISA – Attorney’s Fees – Exhaustion

A plaintiff who won his ERISA case cannot bill for time spent exhausting administrative remedies, but the Charlottesville U.S. District Court refuses to categorically condemn “block billing” or “lumping of time entries.”

McIntyre v. Aetna Life Ins. Co. (USDC-WD) (VLW 008-3-520) (7 pp.)

Environmental

State Agency – Sovereign Immunity

The 4th Circuit says a wildlife group can sue to stop construction of a bridge between two South Carolina hamlets, a project some critics call another “bridge to nowhere.”

S.C. Wildlife Federation v. Limehouse (USCA) (VLW 008-2-159) (14 pp.)

Insurance

Life Insurance – Policy Lapse Notice – Pleading Bad Faith

An executor pleading bad faith states a claim with “bad faith” asserted in her contract claim and a request for attorney’s fees; a Newport News U.S. District Court says she can try her claim for inadequate lapse notice under Va. Code § 38.2-232, but the bad faith claims goes out on summary judgment.

Russell v. Nationwide Ins. Co. (USDC-ED) (VLW 008-3-537) (25 pp.)

Medical Malpractice

Expert Witnesses – Limit

In this failure-to-diagnose Lyme disease case in which plaintiff has hired three experts and defendant has eight, including five experts on the standard of care, a Norfolk Circuit Court says defendants can call a total of five experts.

Smith v. Dixit (Norfolk Cir.Ct.) (VLW 008-8-251) (3 pp.)

Negligence

P.I. Suit – Lawyer Lien – Notice

A Norfolk Circuit Court lets “The Hammer” amend his pleadings to assert that he gave written notice of his claim of statutory lien on a p.i. settlement.

Stanley v. GEICO (Norfolk Cir.Ct.) (VLW 008-8-239) (2 pp.)

Negligence

Workers’ Comp Bar – Eye Injury – Treatment Delay

A 19-year-old laborer who lost sight in his eye after the laborer’s supervisor and his uncle both refused his requests for medical treatment after an injury at work, cannot sue the employer for negligence for failure to provide him with medical treatment, a Prince William County Circuit Court holds.

Ayers v. White (Prince Wm. County Cir.Ct.) (VLW 008-8-259) (7 pp.)

Products Liability

Post-Sale Duty To Warn – Pain Pump

An Abingdon U.S. District Court says the Virginia high court would recognize a post-sale duty to warn, in a case alleging injury from use of defendant manufacturer’s “pain pump” for delivery of pain medicine following surgery.

Rash v. Stryker Corp. (USDC-WD) (VLW 008-3-555) (10 pp.)

Real Estate

Contract – Deposit With Auctioneer

A real estate buyer proved fraud by showing defendant auctioneer put the buyer’s deposits in a trust account and promptly wrote checks covering his own expenses for much of those funds; a Norfolk Circuit Court awards the buyer $10,000 in nominal damages, $3,500 in punitive damages and $12, 962 in attorney’s fees and costs.

Doddy v. Zedd Auctioneers Ltd. (Norfolk Cir.Ct.) (VLW 008-8-240)( 3 pp.)

Tort

Defamation – Bar Complaint

A divorce lawyer’s defamation case can proceed against a client’s father-in-law who allegedly cited “the Duke case” and threatened the lawyer with a bar complaint unless the lawyer’s and husband’s “actions” toward wife and granddaughter “progress[ed] in the right direction,” a Chesapeake Circuit Court says.

Donner v. Rubin (Chesapeake Cir.Ct.) (VLW 008-8-258) (9 pp.)

Tort

Fiduciary Breach – Tobacco Farmer Father – Elder Abuse

Defendant daughter and her husband committed fraud and breach of fiduciary duty against her father, an illiterate and hearing-impaired 84-year-old tobacco farmer who amassed assets exceeding $1 million, by isolating him from his other three children, selling off his farm and siphoning off his money, and a Pittsylvania County Circuit Court says the father is entitled to $1.14 million from defendants.

Doss v. Doss (Pittsylvania County Cir.Ct.) (VLW 008-8-262) (10 pp.)

Wills & Trusts

Decedent’s Business – Widow/Administrator’s Operation – Adult Children

A Fairfax Circuit Court says a businessman’s widow who ran the family gutter business into the gutter gets 100 percent of the stock in the now-worthless business and has to restore nearly $50,000 to the estate, in a dispute with decedent’s four grown children.

In re Estate of William H. Spears Sr. (Fairfax Cir.Ct.) (VLW 008-8-249) (20 pp.)

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