Virginia Lawyers Weekly

Jury trials are down, law firm hiring has slowed. Maybe even pro se plaintiffs will begin to back off.

Still, people are finding there are times when they have to “tell it to the judge.” And it may be a story the judge hasn’t heard before. A case of “first impression” considers a previously undecided issue of law, a case that’s not quite like any other case that has come before the court.

In state and federal courts across the commonwealth, in matters mundane and momentous, novel issues arise on a regular basis. In case you missed any of these newsworthy cases, VLW’s annual wrap-up features this reprise.

BUSINESS

• Club buyer has securities fraud claim
A health club member who bought the club, a closely held corporation, based on financial information provided by a club owner’s wife who kept the company books, could sue the sellers under the Virginia Securities Act for the alleged false information provided in the sellers’ financial report, the Virginia Supreme Court said in this case of first impression involving “stock” under the Act. Andrews v. Browne. VLW 008-6-062.

• Contractor’s excess claim barred
A Class B contractor was barred from suing homeowners for an extra $62,355 he said he was owed for requested alterations in a remodeling project, a Fairfax Circuit Court held, because the contract for $128,600 exceeded the monetary limits for Class B contractors under Va. Code § 54.1-1115. Daniel Jones Remodeling LLC v. Chiu. VLW 008-8-126.

• Non-signatory compels arbitration
In a case of first impression under Virginia law, a Fairfax Circuit Court granted the motion of defendant non-signatories to a government subcontract to compel arbitration of the 17-count lawsuit filed by plaintiff subcontractor who alleged it did not receive pass-through payments it was entitled to under the subcontract. Decisive Analytics Corp. v. Chikar. VLW 008-8-174.

• Car surrender not enough
In a case of first impression in the 4th Circuit, a creditor won its appeal of confirmation of a debtor’s Chapter 13 plan that allowed the debtor to surrender the car she bought within 910 days of her bankruptcy filing in full satisfaction of her debt. The 4th Circuit joined the 7th, 8th and 10th Circuits to hold that the “hanging paragraph” of the 2005 Bankruptcy Amendments did not eliminate a “910 creditor’s” recourse to state law to collect the debt left when the car is sold for less than the debtor owed. Tidewater Finance Co. v. Kenney. VLW 008-2-109.

• Corporate merger
Whether a corporate merger plan could contradict Va. Code § 13.1-897 or supplement the corporate statute’s list of what occurs during a corporate merger was an apparent matter of first impression for a Norfolk U.S. District Court. In a Virginia Beach hospital’s suit for reimbursement for its settlement of a slip-and-fall case, from the company that supplied an allegedly negligent nurse, the court said the plaintiff hospital’s right to enforce an indemnification provision transferred to the hospital upon merger under a pre-2007 version of §13.1-897. Sentara Hospitals v. Maxim Healthcare Servs. Inc. VLW 007-3-346.

PERSONAL INJURY

• GDC dismissal order not appealable
A general district court’s dismissal without prejudice of a plaintiff’s auto accident personal injury case was not a final, appealable order under Va. Code § 16.1-106, and a Fairfax Circuit Court struck plaintiff’s notice of appeal. Poullath v. Rzasa. VLW 008-8-173.

• Podiatrist expert rejected
A railroad employee who sued for injuries he suffered from walking on ballast and debris scattered through out rail yards could not use podiatrists to testify as to causation, a Roanoke City Circuit Court said in a case of first impression. Hollingsworth v. Norfolk Southern Ry. Co. VLW 008-8-207.

EMPLOYMENT

• College harassment policy
A university mail-system manager should not have been fired after he asked a female student, whom he did not supervise, to pose in a bathing suit or short-shorts for a fundraising calendar for a youth boxing program the manager coached. Although the university’s own statement of its sexual harassment policy might require less evidence than a Title VII sexual harassment claim, the Virginia Court of Appeals said a hearing officer’s decision regarding the employee’s violation of the university policy was contradictory to the law. The Supreme Court of Virginia has agreed to hear an appeal. Va. Tech v. Quesenberry. VLW 008-7-172.

DOMESTIC RELATIONS

• Fugitive doctrine applied to dad
In a case of first impression, the Supreme Court of Virginia upheld application of the fugitive disentitlement doctrine to say that a father who removed his son to Spain could not appeal a custody decision in the Fairfax Circuit Court. Sasson v. Shenhar. VLW 008-6-100

• Divorce fee lien
A lawyer cannot perfect a lien he placed on property transferred to the spouse of his client during a divorce, in a case in which the Prince William Circuit Court described the lien issue during arguments as a matter of first impression. A 2001 change to Va. Code § 54.1-3932(A) gave divorce lawyers a lien. The judge ultimately decided the case on other grounds, holding that the lien was not properly perfected in time. A Attorney LLC v. Olson. VLW 008-8-031.

• PSA’s ‘No Appeal’ clause upheld
Although a 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, upheld the “no appeal” provision in the PSA so that the wife could not appeal the trial court’s refusal to award her damages and attorney’s fees. Burke v. Burke. VLW 008-7-287.

CRIMINAL

• No ineffective assistance claim for alien
A citizen of Cameroon who sought asylum out of fear of political prosecution gets no relief from the 4th U.S. Circuit Court of Appeals for his lawyer’s failure to check his mail after a move and timely file a petition for review. The 4th Circuit does not follow its sister circuits, and held instead, on this question of first impression, that an alien has no Fifth Amendment right to effective assistance of counsel in a removal proceeding. Afwanwi v. Mukasey. VLW 008-2-090.

• Violent crime enhancement for alien
The 4th Circuit disagreed with sister circuits and held that a nonconsensual sexual offense not based on force still is a prior “crime of violence” under federal sentencing guidelines that applied to enhance a defendant’s sentence for illegal reentry and fraudulent use of a green card. U.S. v. Chacon. VLW 008-2-122.

• Weekend use of ‘dwelling’A house that was slept in one weekend a month was a “dwelling house” under Virginia’s statute that prohibits breaking and entering, the Virginia Court of Appeals said on a criminal issue of first impression under Va. Code § 18.2-89. Keeping the home ready for immediate occupancy and staying there one weekend per month brought the defendant under the statute’s terms. Giles v. Commonwealth. VLW 008-7-158.

• Bootleg DVDs value set
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, the 4th U.S. Circuit Court of Appeals said in this case of first impression on valuing the bootleg property. U.S. v. Armstead. VLW 008-2-079.

• No counsel for presentence interview
In a case of first impression, a Fairfax Circuit Court held that a defendant in a capital case does not have a Sixth Amendment right to counsel at the presentence interview conducted by a probation officer, and the defendant’s motion to have counsel present during the interview is denied. Commonwealth v. Prieto. VLW 008-8-129.

• Preliminary hearing standard for SVP
Dissenters from a Virginia Supreme Court decision said the majority did not acknowledge it was deciding an issue of first impression when it concluded that a probable cause hearing under the Sexually Violent Predators Act should follow the standards applicable to probable cause determinations in criminal proceedings, including an evaluation of witness credibility. Commonwealth v. Jackson. VLW 008-6-059.

ADMINISTRATIVE

• Protected newspaper ads
Virginia ABC regulations that restricted alcohol advertising in college newspapers were declared unconstitutional by a Richmond U.S. District Court in a first-impression case in the courts of the 4th Circuit. The regs are facially unconstitutional because they violate the First Amendment, a magistrate judge said. Educ’l Media Co. at Va. Tech Inc & The Cavalier Daily Inc. v. Swecker. VLW 008-3-112.

Close this Window Bookmark and Share This Page

Save to Browser Favorites / Bookmarks

Print RSS Feed Ask backflip blinklist BlogBookmark Bloglines BlogMarks Blogsvine BuddyMarks BUMPzee! CiteULike co.mments

Connotea del.icio.us Digg diigo DotNetKicks DropJack dzone Facebook Fark Faves Feed Me Links Friendsite folkd.com

Furl Google Hugg Jeqq Kaboodle kirtsy linkaGoGo linkedin LinksMarker Ma.gnolia Mister Wong Mixx MySpace

MyWeb Netvouz Newsvine oneview OnlyWire PlugIM Propeller Reddit Rojo Segnalo Shoutwire Simpy Slashdot

Sphere Sphinn Spurl Squidoo StumbleUpon Technorati ThisNext Twitter Webride Windows Live Yahoo!

Email This to a Friend

Copy HTML: 

 If you like this then please subscribe to the RSS Feed.

More »