Domestic Relations – Equitable Distribution – 401(k) Share – Wife’s Request 
By Deborah Elkins
Published: July 28, 2008
A divorce court erred in awarding wife 65 percent of the present value of husband’s 401(k) account, when wife only asked for 50 percent, and the Court of Appeals reverses the equitable distribution award and remands the case.
It is axiomatic that a court may generally not award more relief than a party expressly requests. In [...]
Criminal – Attack On Security Guard – ‘Concert Of Action’
By Deborah Elkins
Published: July 28, 2008
Although defendant contends he had a change of heart and waited in the bushes while his codefendant attacked a security guard in order to take his gun, and was shot in the arm, the Court of Appeals says there was sufficient evidence that defendant engaged in a “concert of action” with his codefendant to convict [...]
Criminal – Confession – Defendant’s Question – Reinitiation
By Deborah Elkins
Published: July 28, 2008
A defendant being questioned first about conspiracy to commit robbery, and then about a felony murder, who first said he did not want to talk “right now,” but then asked, “Can we just talk later?” reinitiated conversation with the police, and the trial court did not have to suppress defendant’s statements that flowed from the [...]
Criminal – Photo Lineup – Robbery Victim IDs
By Deborah Elkins
Published: July 28, 2008
The Court of Appeals affirms defendant’s convictions for several robberies that occurred over a two-day period in Alexandria based on identifications of defendant by robbery victims who viewed a booking photo of defendant in a photo lineup.
Defendant contends showing the photos simultaneously to the victims was unduly suggestive and the trial court erred in refusing [...]
Criminal – Request For Counsel – Continued Questioning
By Deborah Elkins
Published: July 28, 2008
A defendant who came to the police station for questioning about a B&E in Pittsylvania County clearly invoked his right to counsel when he told the investigator, “I want a lawyer, you know what I’m saying?” and “my moma said that if I get in any more trouble, I need a lawyer,” and defendant’s burglary [...]
Domestic Relations – Custody Order – Basis For Decision
By Deborah Elkins
Published: July 28, 2008
The Court of Appeals reverses a decision awarding primary physical custody of the parties’ young son to mother, as it agrees that the trial court did not adequately communicate the basis for its custody award as required by Va. Code § 20-124.3.
At the conclusion of the trial, the trial court stated orally that it found [...]
Products Liability – Medical Device – Preemption – Manufacturer Rep Presence
By Deborah Elkins
Published: July 28, 2008
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 [...]
Tort – Defamation – Law School Letters – Nevada Divorce Case
By Deborah Elkins
Published: July 28, 2008
Letters written by Nevada divorce lawyers to 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 [...]
Employment Discrimination – Exhaustion – Failure To Promote – Sexual Harassment
By Deborah Elkins
Published: July 28, 2008
A former female employee of the Department of Defense has her complaint alleging sexual harassment and failure to promote in violation of Title VII dismissed by a Richmond U.S. District Court.
The court finds plaintiff has failed to show that her administrative complaint was timely filed, that she fails to state a cognizable claim under Title [...]
Intellectual Property – Lanham Act – Mattress Labels – ‘Royal Heritage’ Product Line
By Deborah Elkins
Published: July 28, 2008
A Richmond U.S. District Court holds that plaintiff Power Marketing Direct Inc., which distributes mattresses to independent, licensed dealers, can sue defendant manufacturer under the Lanham Act, 15 U.S.C. § 1125(a), and on a Virginia claim of unfair competition, for continuing to use plaintiff’s distinctive “Royal Heritage” labels on mattresses distributed to dealers not licensed [...]
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