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Important Opinions 2009

The “Important Opinions” that appear each week on the front page of Virginia Lawyers Weekly are those chosen by our editors as the most likely to impact law practice or a given subject area of law. Below is a listing, arranged alphabetically by subject area, of the most Important Opinions of 2009. Subject areas are listed alphabetically within each month. Named subscribers are entitled to a free full-text PDF copy of any opinion listed here. Just click on the link at the end of the entry. If you do not currently subscribe and would like access to these PDFs and the other great benefits of a subscription, please visit our subscription page.

ATTORNEYS * BANKRUPTCY * BANKS & BANKING * CIVIL PROCEDURE * CIVIL RIGHTS * COMMERCIAL * CONSTITUTIONAL * CONSUMER PROTECTION * CONTRACT * CREDITOR’S RIGHTS * CRIMINAL * DOMESTIC RELATIONS * EMPLOYMENT * EMPLOYMENT DISCRIMINATION * IMMIGRATION * INSURANCE * INTELLECTUAL PROPERTY * MEDICAL MALPRACTICE * MUNICIPAL * NEGLIGENCE * PRODUCTS LIABILITY * REAL ESTATE * SEARCH & SEIZURE * SECURITIES * TORT * TRAFFIC OFFENSES * UNEMPLOYMENT COMP * WILLS & TRUSTS * WORKERS’ COMP * ZONING

ATTORNEYS

Legal Malpractice – Trust Revocability – Advice To Client

In this decision from Fairfax Circuit Court, a claim of lawyer malpractice is dismissed as to a client’s intent to make a trust revocable or irrevocable, based on collateral estoppel, but the client may pursue a claim of negligence in advising on the tax consequences of the trust.
Durosko v. Lawrence (Fairfax Cir.Ct.) (VLW 009-8-003) (3 pp.)

Rule 11 Sanctions – Oral Statement

The 4th Circuit reverses sanctions a federal district court ordered sua sponte against a government attorney, because the “isolated, inadvertent error” in a government agency’s identification of a Federal Register publication date did not warrant sanctions, nor did her oral statement at a hearing about the administrative comment period.
In re Margaret M. Bees (USCA) (VLW 009-2-074) (9 pp.)

Malpractice Policy – Rescission – Application Statements

A lawyer who did not know his new partner currently was embezzling from his clients when their new firm applied for a malpractice policy, loses his own coverage when the carrier rescinds the policy for material misrepresentations, a Richmond U.S. District Court holds.
Minnesota Lawyers Mutual Ins. Co. v. Hancock (USDC-ED) (VLW 009-3-134) (15 pp.)

Legal Malpractice – P.I. Appeal

A Richmond Circuit Court dismisses a legal malpractice action against defendant law firm hired to handle an appeal of an $8.3 million p.i. award against Wintergreen ski resort because Wintergreen has not demonstrated that, but for dismissal of the appeal for failure to file a transcript, it would have won a reversal of the judgment against it.
Wintergreen Partners Inc. v. Bowman & Brooke LLP, McGuireWoods LLP (Richmond Cir.Ct.) (VLW 009-8-044) (3 pp.)

Legal Malpractice – License Negotiation

Although a broadcasting company suing a law firm that negotiated the company’s government contract has three expert witnesses, none of those witnesses can testify that lawyer negligence in this complex transactional work caused the company’s business losses, and the Alexandria U.S. District Court grants summary judgment to defendant law firm in this legal malpractice action.
Star Broadcasting Inc. v. Reed Smith LLP (USDC-ED) (VLW 009-3-120) (23 pp.)

Pauper Status – Patent Examiner

A former patent examiner who claimed pauper status to avoid legal filing fees has her discrimination complaint dismissed under 28 U.S.C. § 1915 by an Alexandria U.S. District Court, in light of her income, savings and three homes.
Berry v. Locke (VLW 009-3-321) (18 pp.)

Immigration Malpractice Case Needs Expert

A Venezuelan who claims his lawyer was negligent in not moving to reopen immigration proceedings, resulting in the client’s detention by immigration authorities, needs expert testimony on causation, an Alexandria U.S. District Court says.
Baserva v. Remes (USDC-ED) (VLW 009-3-279) (6 pp.)

Malpractice Claim Needs Expert

A lawyer wins summary judgment on a former client’s legal malpractice claim alleging the lawyer was negligent in defending the client on sexual misconduct charges he faced as a U.S. Marine, as plaintiff has not produced expert testimony on the standard of care for retained counsel in a military court martial.
Umphreyville v. Gittins (VLW 009-3-545) (21 pp.)

Corporate Client Gets Extra Time

Even though a corporate client has not paid a lawyer’s fees, a Richmond U.S. District Court says the lawyer can’t withdraw from the case because a corporation may only appear by counsel in federal court, and the lawyer already has made appearances for the corporate defendant by filing motions for an extension of time and an answer.
Reynolds v. Reliable Transmissions Inc. (VLW 009-3-533) (3 pp.)

Lawyer’s Fees for Erroneous Removal

Removal to federal court is popular in the rocket docket of the Eastern District, and now the 4th Circuit, the first appellate court to decide this hotly contested issue, says the party, not the lawyer, has to pay when removal is improper.
In re: Crescent City Estates (VLW 009-2-183) (14 pp.)

Lawyer Pays By the Paragraph for Faulty Pleading

In a painful, paragraph-by-paragraph parsing of plaintiff hotelier’s filings in a franchise fraud case, a Norfolk U.S. District Court hits the hotelier’s lawyer with Rule 11 sanctions of $750 per paragraph – or $15,000 – for “misleading and baseless” factual allegations.
Lake Wright Hospitality LLC v. Holiday Hospitality Franchising Inc. (VLW 009-3-481) (78 pp.)

Attorney’s Fees – No Recovery for ‘Expedited’ Transcripts

Calling expedited transcript deposition fees a “luxury,” an Alexandria U.S. District Court excludes the fees, as well as expenses for condensed transcripts and disks, from an award of costs to a successful copyright plaintiff.
Quantum Systems Integrators Inc. v. Sprint Nextel Corp. (VLW 009-3-571) (19 pp.)

BANKRUPTCY

Employees Can Claim Unpaid Leave

In the Circuit City bankruptcy case, 27 former employees who claim payment for unused paid time off upon termination of employment are entitled to a priority claim, says a Richmond U.S. Bankruptcy Court.
In re Circuit City Stores Inc. (VLW 009-4-006) (7 pp.)

‘Principal Residence’ – Mobile Home – Loan Modification

Chapter 13 debtors can modify their debt on their mobile home, because it is not covered by the Bankruptcy Code’s anti-modification clause, and the 4th Circuit reverses a bankruptcy court’s contrary holding.
Ennis v. Green Tree Servicing LLC (USCA) (VLW 009-2-043) (6 pp.)

BANKS & BANKING

Customer Collects on Old CDs

A bank customer who discovered in his home safe three bank CDs purchased in 1995, can collect $420,200 on the CDs, a Richmond U.S. District Court says.
Dashtara v. Wachovia Bank N.A. (VLW 009-3-474) (18 pp.)

CIVIL PROCEDURE

Discovery – Therapist Privilege – Former Spouse’s Debt

In a woman’s suit alleging violation of the Fair Debt Collection Practices Act by a creditor’s claim that she must pay her ex-husband’s debt, a Richmond U.S. District Court denies the creditor access to records of a psychologist who provided marriage counseling to the woman and her ex-husband.
Cappetta v. GC Services LP (USDC-ED) (VLW 009-3-124) (18 pp.)

Nonsuit – Jury Costs

A trial court erred in imposing on a plaintiff who nonsuited a personal injury suit the costs of impaneling a jury, the Virginia Supreme Court holds.
Martin v. Duncan (Va.S.Ct.) (VLW 009-6-017) (5 pp.)

Personal Jurisdiction – Telephone & E-Mail Contacts

Four phone calls and 24 e-mails do not give an Alexandria U.S. District Court personal jurisdiction over defendants, an Indian corporation and a Colorado corporation, in this suit by a Virginia corporation alleging the two defendants conspired to breach a non-disclosure agreement by hiring away one of the Virginia corporation’s employees in India.
Consulting Engineers Corp. v. Geometric Ltd. (USCA) (VLW 009-2-063) (14 pp.)

Nonsuit – Wrongful Death Suit – Unqualified Administrator

A circuit court erred in granting a nonsuit in this wrongful death action because the plaintiff who claimed to be administratrix of decedent’s estate filed the action prior to qualifying as administratrix, and the action is a nullity; the Supreme Court reverses the trial court order, denies defendants’ motions to abate and dismisses the action with prejudice.
Johnston Memorial Hospital v. Bazemore, Adm’x (Va.S.Ct.) (VLW 009-6-027) (10 pp.)

Attorney’s Fees – Waiver Of Service – Pro Se Attorney

A lawyer acting pro se to sue 16 different defendants involved in the sale of his home cannot collect attorney’s fees under Fed. R. Civ. P. 4, but he can recover costs, from 10 defendants who refused to waive service of summons, an Alexandria U.S. District Court says in an apparent case of first impression.
Rossmann v. Lazarus (USDC-ED) (VLW 009-3-130) (8 pp.)

Negligent Hiring Case Remanded

A family’s negligence suit against a satellite dish company whose installer, a registered sex offender, molested their child while on a service call, is remanded to state court by a Richmond U.S. District Court.
Infant Doe v. Dish Network Service LLC (USDC-ED) (VLW 009-3-210) (13 pp.)

Fee Failure Dooms Filing

A Virginia lawyer who waited for his full $25,000 retainer before filing pleadings for Arizona defendants in a trust case, but who filed the answer, grounds of defense, counterclaim and a third-party claim together with an insufficient filing fee for the third-party claim, missed the filing deadline under Rule 3:19(a) and a Loudoun County Circuit Court refuses to set aside the default judgment against the Arizona defendants.
Wyczalkowski, Trustee v. Carter (VLW 009-8-107) (9 pp.)

‘Hot Tub’ Wrongful Death Amendment Allowed

A Fairfax Circuit Court follows a Winchester court’s analysis of the “relation back” test, and says an estate is not barred from amending its suit alleging negligence in the death of plaintiff’s underage daughter who drowned in a hot tub after consuming alcohol and illicit substances.
Clark, Adm’r v. Britt (Fairfax Cir.Ct.) (VLW 009-8-103) (10 pp.)

Discovery – Expert Witness Designation – Sanctions

A Loudoun County Circuit Court denies sanctions for defendant’s motion to strike plaintiff’s expert witness designation without first complying with Rule 4:15’s requirements to confer and certify, but the court will sanction defendant with $420 in attorney’s fees and costs for trying to apply an evidentiary rule for trial to discovery when there is no authority to do so.
Hutchison v. Cornerstone Builders (Loudoun County Cir.Ct.) (VLW 009-8-063) (3 pp.)

P.I. Suit for $74,900 Goes Back to State Court

A Richmond U.S. District Court remands to Virginia state court this negligence action against defendant Wal-Mart Stores East because the possibility that plaintiff could amend his suit seeking $74,900 in damages, including $63,964.92 in medical expenses, is not enough to allow removal.
Gross v. Wal-Mart Stores East LP (VLW 009-3-300) (3 pp.)

No Jurisdiction From Phone, E-Mail Contacts

Telephone talks and e-mails between a Virginia tech holdings company and Massachusetts defendants about forming a new joint venture did not give a Chesterfield County Circuit Court personal jurisdiction over defendants.
PCR Tech Holdings LC v. Bell Ventures LLC (Chesterfield County Cir.Ct.) (VLW 009-8-128) (5 pp.)

Plaintiff Gets Late Appeal Bond

A plaintiff who won a GDC judgment can collect from the $2,500 appeal bond posted by defendant but released to plaintiff because the Greensville County Circuit Court had no jurisdiction after the appeal bond was late.
Powell v. Rawlings (VLW 009-8-127) (2 pp.)

Documents Denied Under Work-Product Doctrine

A Loudoun County Circuit Court applies the “case by case” test for attorney work-product and denies discovery to two plaintiffs who lost golf-club privileges and are suing a resort management company after an alleged assault by resort guests.
Cranley v. The Benchmark Management Co. (VLW 009-8-121) (4 pp.)

Non-Party Witness Identity Disclosure

A would-be whistleblower in a securities fraud case loses his challenge to a district court order requiring disclosure of the nonparty witness’s identity to a law firm representing defendant corporation, in this new 4th Circuit opinion.
Lefkoe v. Jos. A. Bank Clothiers Inc. (VLW 009-2-149) (17 pp.)

E-Seller’s Testimony Barred as Sanction

An Alexandria U.S. District Court sanctions an e-seller of vintage baseball cards for discovery abuse, and grants summary judgment to the disappointed buyer on his consumer protection and fraud claims.
Montanile v. Botticelli (VLW 009-3-425) (33 pp.)

No Jurisdiction from Psychic’s Website

A Virginia psychiatrist who alleges she received telephone counseling for 12 years from defendant psychic, who allegedly committed fraud by reporting her to police and the Virginia Board of Medicine for substance abuse cannot sue the psychic in Virginia, says an Alexandria U.S. District Court.
Rosario v. Wands (VLW 009-3-539) (11 pp.)

Test for ‘Vexatious’ Pro Se Suit

A Norfolk Circuit judge outlines his “indicia of vexatiousness” for knowing when to boot a frequent-filer plaintiff who has submitted a pro se “blunderbuss” pleading naming a host of defendants and legal claims.
In re: Michael A. Scott (Norfolk Cir.Ct.) (VLW 009-8-197) (5 pp.)

No Jurisdiction Over Out-of-State Partner

Following a 9th Circuit case, an Abingdon U.S. District Court says a contractor can’t sue a Texas partnership with a 99.9-percent stake in a limited partnership, but can only sue the LP for its allegedly lousy grout used to install new jail floors in Southwest Virginia jails.
RCI Contractors & Eng’s Inc. v. Joe Rainero Tile Co. (VLW 009-3-587) (7 pp.)

No Damages Under Service Member Act

A military service member who alleges his vehicle was wrongfully towed from his apartment complex in Newport News and sold to a third party cannot sue for monetary damages under the Service Members Civil Relief Act, says a Newport News U.S. District Court.
Gordon v. Pete’s Auto Service of Denbigh Inc. (VLW 009-3-618) (8 pp.)

‘Absolute Bar’ to Removal Tested

On an issue unresolved by the 4th Circuit, a Roanoke U.S. District Court says the one-year time limit for removal to federal court does not apply to cases that are initially removable when filed, and the court certifies an interlocutory appeal on this point.
King v. Flinn & Dreffein Eng’g Co. (VLW 009-3-628) (9 pp.)

Petition for Legal Notices Dismissed

Newspapers that meet the requirements of Va. Code § 8.01-324(A) may be used for legal notices and publications; no court ruling is necessary, says a Norfolk Circuit Court as it dismisses Dow Jones’ petition for lack of subject matter jurisdiction.
In re: Dow Jones & Company (VLW 009-8-230) (7 pp.)

News Story Not ‘Notice’

A medical provider’s risk manager reading a newspaper account of a lawsuit against jail officials, two years after a prisoner’s death, is not “notice” that will allow amendment of the wrongful death action to name the medical provider; a Norfolk U.S. District Court says “no case in this circuit has held that such flimsy ‘notice’ works,” and the motion to amend is denied.
Everett v. Cherry (VLW 009-3-629) (7 pp.)

Personal Rep Must File for Wrongful Death

It’s insult added to injury, when a widow’s legal malpractice suit for an alleged blown filing deadline on a wrongful death suit is dismissed because of misjoinder in the malpractice complaint, in this case from Norfolk Circuit Court.
Stark v. Nachman (VLW 009-8-234) (3 pp.)

CIVIL RIGHTS

ADA – Reasonable Accommodation – Hostage-Taker’s Mental Illness

The 4th Circuit says Danville police met any duty of “reasonable accommodation” they owed under to a mentally ill man who had taken a woman hostage in his apartment, even though the man died in a violent confrontation with police.
Waller, Adm’r v. City of Danville, Va. (USCA) (VLW 009-2-039) (12 pp.)

Child Abuse Report – Immunity – Va. Law

A negligent hiring claim against a counseling center is dismissed because the Virginia Supreme Court has yet to recognize a claim where there are no physical injuries, the 4th Circuit says.
Wolf v. Fauquier County Board of Supervisors (USCA) (VLW 009-2-031) (20 pp.)

Hospital Staff Privileges – Sexual Abuse Allegation

A hospital that suspended a general surgeon based on allegations that he had sexually abused his adopted daughter has immunity for its “professional review action” under the federal Health Care Quality Improvement Act, the 4th Circuit says.
Moore v. Williamsburg Regional Hospital (USCA) (VLW 009-2-056) (24 pp.)

Drug Court Treatment Claim Advances

A community services board and drug court program directors must defend against claims that the required Alcoholics Anonymous treatment model violates a defendant’s religious freedom, an Alexandria U.S. District Court says.
Thorne v. Hale (USDC-ED) (VLW 009-3-177) (41 pp.)

Qualified Immunity in Missing Teen Case

An officer who made a night-time entry into a darkened house, trailed by a man looking for his stepdaughter, has immunity from a damage suit filed by the startled homeowners, the 4th Circuit says in an analysis that distinguishes between the “community caretaker” doctrine and the “exigent circumstances” exception.
Hunsberger v. Wood (VLW 009-2-119) (17 pp.)

Disabled Student’s Fee Award Upheld

Because a school board’s settlement offer to an autistic student’s parents explicitly referred to a confidential mediation, in violation of the IDEA, the 4th Circuit says the district court properly refused to consider the offer as evidence and properly granted attorney’s fees to the parents.
J.D. v. Kanawha County Bd. of Educ. (VLW 009-2-126) (11 pp.)

IDEA Fee Award After Rule 68 Offer

The size of the attorney’s $307,150 fee award in this disabled-student case is attributable, in significant part, to the school board’s conduct in violating the IDEA and then engaging in an aggressive defense, says a Richmond U.S. District Court.
JP v. County School Board of Hanover County, Va. (VLW 009-3-434) (60 pp.)

Qualified Immunity for Dog-Catcher

Retired Supreme Court Justice Sandra Day O’Connor decides “a case about a wolf named Dutchess,” and upholds qualified immunity for an animal control officer who removed the wolf from its owners’ residence, in a new 4th Circuit decision.
Walker v. Prince George’s County (VLW 009-2-138) (9 pp.)

Inmate Can Sue for Close Haircut

A maximum-security inmate can pursue a claim that shaving his head violated his religious beliefs, as the 4th Circuit vacates summary judgment for defendant prison officials who relied on an affidavit from another lawsuit.
Smith v. Ozmint (VLW 009-2-140) (15 pp.)

DNA Request Not Based on Race

In a case involving Charlottesville police efforts to catch a serial rapist, the 4th Circuit affirms dismissal of a young black male’s claim that police unfairly targeted blacks with requests for DNA samples.
Monroe v. City of Charlottesville, Va. (VLW 009-2-154) (17 pp.)

Backup Officers Have Immunity

Three backup officers have immunity from plaintiff’s civil rights suits; a Newport News U.S. District Court says it is not clearly established that secondary officers who come on the scene as backup for a lead officer have to make their own independent assessment of probable cause.
Ware v. James City County, Va. (VLW 009-3-525) (42 pp.)

2008 Tolling Provision Saves Claim

A Portsmouth man who alleges violation of his civil rights by defendant police officers who illegally searched his residence after being told not to by a police sergeant, gets the benefit of Va. Code § 8.01-229(K), which tolled the time limit during plaintiff’s state and federal criminal prosecutions, says a Norfolk U.S. District Court.
Pinder v. Knorowski (VLW 009-3-553) (20 pp.)

Autism School Has Defamation Claim

A school for autistic students can sue a former student’s parents for defamation for their statements about the school to other parents, says a magistrate judge for the Charlottesville U.S. District Court.
Smith v. The James C. Hormel School of the VIA (VLW 009-3-670) (65 pp.)

COMMERCIAL

No Lawyer Fees Under Franchise Act

A Springfield GM dealership dodged a bullet when GM decided not to let a competitor into the Springfield dealer’s turf, but GM doesn’t owe attorney’s fees under the Dealer Franchise Act because GM dropped the planned move before a decision on violation of the Act, in this new Fairfax Circuit Court case.
Mike Pallone Chevrolet LLC v. General Motors Corp. (VLW 009-8-123) (5 pp.)

VP Letter Lets Fraud Suit Advance

An investment fund that bought a government-backed loan used for a beach restaurant can sue the bank that sold it the loan for fraud, based on allegations that the bank knew the borrower had failed to repay a prior loan, made late payments and was subject to garnishment of 35 percent of its gross receipts; the bank VP’s ‘attestation’ letter implied the bank had enough information to know the restaurant was in trouble, says an Alexandria U.S. District Court.
Solomon Hess LLC v. Beach First Nat’l Bank (VLW 009-3-384) (21 pp.)

CONSTITUTIONAL

State Funds OK for Railroad’s Intermodal Facility

A Richmond Circuit Court rejects a constitutional challenge to state funding for a Norfolk Southern Corp. intermodal rail facility in Montgomery County, ruling that the state constitution does not bar public support of the private project under legislation aimed at reducing truck traffic on state highways.
Montgomery County, Va. v. The Virginia Department of Rail & Public Transportation (VLW 009-8-236) (6 pp.)

CONSUMER PROTECTION

Towing & Storage Covered by VCPA

A Honda owner can sue defendant body shop under the Virginia Consumer Protection Act for selling her 2007 Honda to cover towing and storage fees after the shop towed the car at the request of the Norfolk Police Department after an auto accident; the Norfolk Circuit Court says plaintiff has alleged a transaction for personal, family or household use under the VCPA.
Daughtry v. Gray’s Body Shop Inc. (VLW 009-8-246) (5 pp.)

Lemon Law – Attorney’s Fees

A Norfolk Circuit Court had to tell a jury it could not award more than the unhappy Kia Sedona buyers asked for, and the buyers won $33,380 in damages, plus $23,850 in attorney’s fees and $3,530 for an expert witness on the attorney’s fee claim.
Nedelka v. KIA (Norfolk Cir.Ct.) (VLW 009-8-033) (8 pp.)

TILA – Equitable Mortgage

Homeowners’ sale of their Norfolk home to an investor, who allowed them to stay in the property with monthly payments and gave them an option to buy the home back within 13 months, did not create an “equitable mortgage” that required the lenders to comply with TILA or the Virginia Mortgage Lender & Broker Act, the 4th Circuit says.
Johnson v. Washington (USCA) (VLW 009-2-045) (12 pp.)

No Rescission for TILA ‘Hypertechnical’ Violation

It’s an open question in the 4th Circuit whether a TILA violation lets a borrower rescind a mortgage loan even after a refi, but a Richmond U.S. District Court says a borrower can’t test that theory because the lack of damages and the alleged TILA violation – the lender sending one copy, not two, of the rescission notice – do not give the borrower a rescission “windfall.”
Byron v. EMC Mortgage Corp. (VLW 009-3-458) (10 pp.)

No Disclosure Violates FDCPA

Two callers who did not identify themselves as debt collectors, but referred to a possible lawsuit, or an effect on debtor’s federal income tax liability, violated disclosure requirements of the Fair Debt Collection Practices Act, and a magistrate judge for the Roanoke U.S. District Court recommends summary judgment for plaintiff debtor.
Sears v. Federal Credit Corp. (VLW 009-3-470) (9 pp.)

Collection Calls Prompt Claims

A woman who paid a $10,000 debt on her estranged husband’s credit card, based on alleged misrepresentations by a debt collector that it had her signed card application and social security number, can sue under the Fair Credit Reporting Act and the FDCPA.
Cappetta v. GC Services LP (VLW 009-3-516) (21 pp.)

Fraud Case Stays in Federal Court
A couple’s fraud suit over misrepresentation of luxury amenities available from the Ritz-Carlton Hotel to lot buyers must try their suit in federal court, because the Alexandria U.S. District Court says, in a case of first impression, that a forum selection clause that specifies venue in “Loudoun County” can mean the federal court.
Nahigian v. Juno-Loudoun LLC (VLW 009-3-541) (14 pp.)

CONTRACT

Construction – Arbitration – Nonsignatory

Homeowners who signed a contract with a now-defunct corporation must arbitrate their claims against the defendant husband-and-wife owners of the corporation, even though defendant owners did not sign the contract, a Fairfax Circuit Court says in a case of apparent first impression.
Comer v. Goudie (Fairfax Cir.Ct.) (VLW 009-8-007) (3 pp.)

Accounting Firm Purchase – Due Diligence

Defendant buyers of an accounting business, sued on their $145,000 promissory note, lose on summary judgment their counterclaim alleging fraud based on claims that plaintiff sellers failed to make disclosures and impeded buyers’ efforts to perform due diligence on the firm prior to completing the asset purchase agreement, in this case from the Norfolk U.S. District Court.
White v. Nicholas Potocska PC (USDC-ED) (VLW 008-3-552) (58 pp.)

Mechanic’s Lien – Preparation Costs

A Hanover County Circuit Court invalidates a mechanic’s lien filed by a contractor that incurred costs in anticipation of construction of a steel building, but did not provide labor or materials actually employed in construction of the building, which was built by a different contractor.
Dallan Construction Co. v. Super Structures General Contractors Inc. (Hanover County Cir.Ct.) (VLW 009-8-026) (3 pp.)

Parol Evidence – Corporation Liability

A Roanoke County Circuit Court will hear parol evidence to decide whether a contract bound a couple and its insurance agency to pay a promissory note to another couple and their business.
Lemon v. Hufford (Roanoke County Cir.Ct.) (VLW 009-8-036) (3 pp.)

Arbitration – Waiver After Litigation

The 4th Circuit says a defendant modular home contractor waived its right to compel arbitration of a buyer’s warranty claims because the contractor waited until the eve of trial, after two years of pretrial motions and a jury verdict against it in another case, but on the same warranty and in the same court, to assert the arbitration clause.
Forrester v. Penn Lyon Homes Inc. (USCA) (VLW 009-2-024) (7 pp.)

Arbitration Clause – Purchase Order

A Big Stone Gap U.S. District Court says a coal buyer and sellers must arbitrate a dispute under a 2008 purchase order’s arbitration clause, even though plaintiff sellers said there was no contract under the 2008 purchase order because of the failure of two conditions precedent.
A&G Coal Corp. v. Integrity Coal Sales Inc. (USDC-WD) (VLW 009-3-142) (17 pp.)

Space Tourist – Contract – Conversion

A Japanese businessman who paid at least $19 million to defendant Space Adventures Inc., to arrange his passage on a Russian space flight to the International Space Station, but who allegedly was bumped from any flight, can sue the Virginia-based space tourism company for breach of contract, conversion and violations of the Virginia Consumer Protection Act.
Enomoto v. Space Adventures Ltd. (USDC-ED) (VLW 009-3-139) (34 pp.)

Accord & Satisfaction – Residential Plumbing

A homeowner’s check for partial payment of a plumber’s bill was an accord and satisfaction, even though the plumbing company crossed out the homeowner’s “Paid in Full” notation and added “No” and the balance due prior to depositing the check; the Virginia Supreme Court adopts the majority view that the UCC does not change the common law, which does not allow acceptance with alteration of an instrument tendered in good faith as a full payment of the disputed debt.
Helton v. Phillip A. Glick Plumbing Inc. (Va.S.Ct.) (VLW 009-6-021) (8 pp.)

Limitations – Web Site Development – E-Mail Exchange

Although plaintiffs and the Web site developer they hired exchanged e-mails about the progress of the project and payment schedule, this correspondence did not extend the time for accrual of plaintiffs’ contract action, and the Charlottesville Circuit Court holds that plaintiff’s suit is time-barred because it was not filed within three years from a June 27, 2001 invoice payment plaintiffs made.
Goodenough v. Province (Charlottesville Cir.Ct.) (VLW 009-8-084) (5 pp.)

Permit Delay Not Contract Breach

A home builder under contract with a developer to purchase lots in multiple subdivisions after the developer did site work, but who got cold feet after a market downturn, cannot assert the developer’s delay in getting certain wetlands and storm water permits as a material breach of the parties’ contracts, and a Henrico County Circuit Court awards the developer $1.4 million in damages.
Farmville Investment Group LLC v. Prospect Homes of Richmond Inc. (VLW 009-8-112) (7 pp.)

Forum-Selection Clause Did Not Kick In

The forum-selection clause on a contract for dental-office improvements did not kick in because the defendant dentists already had paid off the fixed-price contract, and a Newport News U.S. District Court dismisses the case for improper venue.
Hall & Wilson Construction Inc. v. Sockwell (VLW 009-3-266) (20 pp.)

Bid Needed More ‘DBE’ Time

A Norfolk Circuit Court says a contractor cannot force reconsideration of its bid for grading and utility work on a light rail project in Norfolk, as the bid carried only a 1.82 percent “Disadvantaged Business Enterprise” participation, instead of the 24 percent called for in the bid invitation.
Suburban Grading & Utilities Inc. v. Transportation Dist. Comm’n (VLW 009-8-116) (8 pp.)

Fallout from Failed Business Venture

In the courtroom fallout over a tech-business buy-in, an Alexandria U.S. District Court upholds damages of $325,000 and 40 percent of the stock in a government contractor to a computer engineering company that provided money and management help, and the court sets aside a $47,000 counterclaim award based on a claimed loss of a contract when tech company employees left after plaintiff stopped their health care coverage.
Jayanthinathan v. Pesiri & All-Technologies Inc. (VLW 009-3-319) (10 pp.)

Employee Fired For Computer Violation

An employer wins summary judgment against an employee who was fired for violating company policy by downloading confidential information into a laptop that was stolen from a vehicle in a hotel parking lot, a Harrisonburg U.S. District Court rules.
Wallinger v. BB&T Ins. Servs. Inc. (VLW 009-3-340) (6 pp.)

Rep Can Sue for Commission

A sales rep for a government tech supplier can sue for her alleged 19-percent commission on million-dollar contracts for sales of Blackberrys and computer monitors, even though she did not attach contract documents to her complaint; an Alexandria U.S. District Court says the complaint passes Rule 8 and Twombly tests.
Dodge v. CDW Government Inc. (VLW 009-3-322) (8 pp.)

No Setoff for Non-Miller Act Claims

Miller Act sureties cannot use Miller-Act subcontract provisions to set off a general contractor’s claims against a sub arising out of a non-federal project, an Alexandria U.S. District Court says in a case of first impression.
U.S., for the use & benefit of Acoustical Concepts Inc. v. Travelers Cas. & Surety Co. of America (VLW 009-3-413) (14 pp.)

Patient Not Bound by ‘Responsible Party’ Signature

Although a patient’s daughter signed a rehab center contract as a “responsible party” for her incapacitated mother, the daughter had no authority to consent to binding arbitration and a Fairfax Circuit Court denies a motion to compel arbitration.
Chung v. Medical Facilities of America Inc. (VLW 009-8-174) (5 pp.)

Two-Year Litigation Prep Waives Arbitration

A contractor that spent two-plus years prepping for a courtroom fight over a nursing home project has waived its right to seek arbitration of its dispute with a sub, and the Hopewell Circuit Court denies the contractor’s motion to compel arbitration.
Shoosmith Bros. Inc. v. Hopewell Nursing Home LLC (VLW 009-8-162) (5 pp.)

Appraiser’s Due Diligence Questioned

A lender whose borrower flushed its $2.4 million debt in bankruptcy court can sue an appraiser for alleged breach of its contract to inspect the borrower’s assets as part of the lender’s due diligence, but a Roanoke City Circuit Court says the lender has not stated fraud claims against additional defendants, including the borrower’s officers and directors.
Vogen Funding LP v. Wener (VLW 009-8-161) (6 pp.)

No Punitive Damages for Homeowner

A homeowner cannot collect punitive damages from a contractor who allegedly lied about repairs to a new home’s foundation wall; the Supreme Court of Virginia reverses the punitive damage award because the alleged fraud was not an independent tort.
Dunn Construction Co. v. Cloney (VLW 009-6-081) (13 pp.)

Va. Court Can Affirm NY Arbitration Award

A terminated employee who sought over $15,000 in severance pay under his employment contract can ask the Norfolk Circuit Court to confirm an arbitration award in his dispute with employer, even though employer contends a Virginia court cannot confirm the award since the arbitration occurred in New York.
Sohn v. Wasabi Systems Inc. (VLW 009-8-229) (5 pp.)

‘Mutuality Of Remedy’ Won’t Knock Out Specific Performance Request

Where a home buyer seeks rescission and cancellation of a contract to build a new home, and defendant contractor has counterclaimed for specific performance, a Loudoun County Circuit Court denies the buyer’s motion for partial summary judgment, without prejudice to raise the issue of want of mutuality of remedy at trial.
Sayres v. The Wheatland Group LLC (VLW 009-8-225) (5 pp.)

Lien Enforced, Though Not in Land Records

In this complaint seeking to enforce a mechanic’s lien, a Norfolk Circuit Court denies summary judgment to defendant owner even though the mechanic’s lien at issue was not filed in the circuit court land records, but served directly on defendant.
Meeks Disposal Corp. v. Circle South LLC (VLW 009-8-224) (4 pp.)

E-Mail Resets Statute on Contract Claim

A man who loaned an old friend $100,000 in 1999 wins judgment on the note, because the parties’ e-mail exchanges, including the old friend’s 2008 promise to “get a firm repayment plan in place,” reset the statute of limitations under Va. Code § 8.01-229, says an Alexandria U.S. District Court.
Ferguson v. Ingoldsby (VLW 009-3-598) (12 pp.)

More Shipments Means No ‘Anticipatory Breach’

Applying a 2009 contract case from Virginia’s high court, an Alexandria U.S. District Court says defendant supplier of videoconferencing equipment did not commit an anticipatory breach of the parties’ sales agreement because plaintiff kept shipping equipment in response to defendant’s purchase orders.
Tandberg Inc. v. Advanced Media Design Inc. (VLW 009-3-600) (8 pp.)

CREDITOR’S RIGHTS

Garnishment Summons – Default Judgment

A corporation that responded to the underlying action on a debt with a request to dismiss the suit, signed by the company’s CEO, a lawyer, did not file a proper response under Virginia Supreme Court Rules and an Henrico County Circuit Court refuses to set aside the default judgment and to quash a garnishment summons.
Modular Wood Systems Inc. v. World Trade Group LLP (Henrico Cir.Ct.) (VLW 009-8-040) (5 pp.)

Default Judgment – Future Attorney’s Fees

A creditor who won a default judgment on a promissory note is not entitled to future attorney’s fees, and the Alexandria U.S. District Court overrules the creditor’s objection to the magistrate judge’s report and recommendation.
Akula v. Airbee Wireless Inc. (USDC-ED) (VLW 009-3-050) (7 pp.)

Property Manager as ‘Debt Collector’?

Although defendant is a “property management company,” not a lawyer or a collections agent, a Richmond U.S. District Court says plaintiff debtor may assert a Fair Debt Collection Practices Act claim against the company.
Hill v. Select Group Inc. (VLW 009-3-407) (8 pp.)

Confessed Judgment Needs Correct Language

A Fairfax Circuit Court sets aside a confessed judgment against a contractor because the required language of Virginia’s confessed judgment statute appears in the original credit agreement but not in subsequent documents.
Superior Paving Corp. v. Bud & The Boyz Construction (VLW 009-8-244) (3 pp.)

CRIMINAL

‘Sexually Dangerous’ Person – Civil Commitment – Commerce Clause

In this case of first impression in the federal Courts of Appeals, the 4th Circuit says Congress exceeded its authority in enacting 18 U.S.C. § 4248 to allow the federal government to place “sexually dangerous” persons in indefinite civil commitment.
U.S. v. Comstock (USCA) (VLW 008-2-014) (19 pp.)

Sentence Reduction – Cocaine Amendment – Plea Bargain

The 4th Circuit splits from other federal circuits and says two cocaine defendants who plea-bargained for 168-month sentences in 1998 are eligible for sentence reduction after the retroactive amendment to the federal sentencing guidelines for crack cocaine offenses.
U.S. v. Dews (USCA) (VLW 009-2-001) (36 pp.)

Venue – Identity Theft – Reprogrammed Credit Card

In a case of first impression, the Virginia Court of Appeals says identity theft under Va. Code § 18.2-186.3(A) is a continuing offense, and venue was proper in Arlington for this defendant’s illegal spending spree spread over three jurisdictions.
Gheorghiu v. Commonwealth (Va.Ct.App.) (VLW 009-7-013) (22 pp.)

‘Burglarious Tool’ – Empty Purse

Although a woman admitted she emptied her large purse in order to stuff it with shoplifted merchandise, the purse nevertheless was not a “burglarious tool” and her conviction under Va. Code § 18.2-94 is reversed by the en banc Court of Appeals.
Edwards v. Commonwealth (Va.Ct.App.) (VLW 009-7-070) (20 pp.)

Batson Challenge – Family & Drugs

The Court of Appeals reverses a cocaine conviction because the prosecutor did not explain strikes of African-American jurors, but not Caucasian jurors, whose family members had faced drug charges.
Hopkins v. Commonwealth (Va.Ct.App.) (VLW 009-7-069) (6 pp.)

Sentencing Guidelines – Ex Post Facto Violation

Sentencing a defendant convicted of a May 16, 2006 firearms offense under the 2008 federal sentencing guidelines would violate the Ex Post Facto Clause, a Richmond U.S. District Court says, and defendant will be sentenced under the 2005 guidelines.
U.S. v. Lewis (USDC-ED) (VLW 009-3-161) (9 pp.)

Alibi Instructions – Drug Deal – Jury Instruction

After surveying its prior decisions on alibi, the Supreme Court of Virginia adopts a new rule to promote uniformity, and says trial courts should grant an alibi instruction when there is evidence that the accused was elsewhere than at the scene of the crime at the exact time or for the entire period during which it was or could have been committed; applying this rule, the court reverses a defendant’s conviction for cocaine distribution because the trial court refused to grant an instruction despite defendant’s proffer of witnesses who would testify that defendant was at work at a construction site at the time an informant said he sold her cocaine.
Cooper v. Commonwealth (Va.S.Ct.) (VLW 009-6-031) (13 pp.)

Transactional Immunity – Voluntary Testimony

A defendant who was arrested with his passenger for having between 15 and 16 pounds of marijuana in his car, and who agreed to plead guilty to possession with intent to distribute and to testify at his passenger’s preliminary hearing and trial in exchange for the commonwealth dropping the transportation charge against defendant, cannot claim transactional immunity under Va. Code § 18.2-262 because that statutory grant of immunity is limited to compelled testimony, the Supreme Court holds.
Murphy v. Commonwealth (Va.S.Ct.) (VLW 009-6-033) (10 pp.)

Death Penalty – Carjacking – Juror Misconduct

Although a jury foreperson had improper contact with news media outlets during the penalty phase of defendant’s capital murder trial, the 4th Circuit upholds defendant’s conviction and death sentence on direct appeal.
U.S. v. Basham (USCA) (VLW 009-2-069) (57 pp.)

Statutory Burglary – ‘Dwelling House’ – Renovation Project

A house being renovated by the contractor/owner was not a “dwelling house” under Va. Code § 18.2-91, and the Court of Appeals reverses defendant’s conviction of statutory burglary.
Johns v. Commonwealth (Va.Ct.App.) (VLW 009-7-164) (7 pp.)

Sixth Amendment – Defendant’s Presence – Closed-Circuit Testimony

An accused sex offender gets a new trial because neither defendant nor his attorney was present for a hearing that determined the minor victim could testify via closed-circuit video, a Page County Circuit judge holds.
Commonwealth v. Hensh (Page County Cir.Ct.) (VLW 009-8-056) (3 pp.)

Attorney Disqualification – Conflict – Officer’s False Report

A Norfolk Circuit Court refuses to disqualify a lawyer from representing a police officer charged with falsely claiming a suspect threw drugs to the ground, even though the lawyer represented the drug suspect in 2001-2002 on charges that included assault on an officer.
Commonwealth v. Dudley (Norfolk Cir.Ct.) (VLW 009-8-055) (3 pp.)

Video Not Covered Under ‘Best Evidence Rule’

The “best evidence” rule only applies to writings, and the Court of Appeals says a store employee could testify about watching defendant on a surveillance video as he stole frozen crab legs.
Brown v. Commonwealth (VLW 009-7-212) (12 pp.)

Defendant Must Register as ‘Sex Offender’

A Hanover Circuit Court says a defendant’s nine separate and simultaneous convictions for unlawful videotaping in violation of Va. Code § 18.2-386.1 qualify him for the Sex Offender Registry, in this first-impression case.
Commonwealth v. Schneider (VLW 009-8-115) (3 pp.)

Sentence Vacated for Illegal Phone Tapes

The government cannot use illegal recordings of defendant’s phone conversations, made by his girlfriend, to sentence him for violation of his supervised release; the 4th Circuit rejects the 6th Circuit’s “clean hands” approach.
U.S. v. Crabtree (VLW 009-2-097) (11 pp.)

Prosecutors Faulted on Discovery

The 4th Circuit says it “hardly approves” of how the prosecution handled discovery, but its failure to share a binder listing controlled drug buys at a Luray motel did not prejudice defendant.
U.S. v. Jeffers (VLW 009-2-110) (23 pp.)

‘Reasonableness’ Presumption Applies On Appeal

A federal agent did not violate the “best evidence” rule by relying on documents to testify about a gun’s manufacture, but the 4th Circuit vacates a top-of-the-guidelines sentence because the district court presumed a within-guidelines sentence was “reasonable.”
U.S. v. Smith (VLW 009-2-099) (7 pp.)

Sentence Vacated for Illegal Phone Tapes

The government cannot use illegal recordings of defendant’s phone conversations, made by his girlfriend, to sentence him for violation of his supervised release; the 4th Circuit rejects the 6th Circuit’s “clean hands” approach.
U.S. v. Crabtree (VLW 009-2-097) (11 pp.)

Bedroom Computer Had Multiple Users

Although witnesses testified they had used the desktop computer in defendant’s bedroom , a Big Stone Gap U.S. District Court says night-time use of an account linked to defendant supported his conviction of possession of child pornography he said depicted “virtual” children
U.S. v. Doyle (VLW 009-3-312)1(7 pp.)

Home Sentence Service Case Dismissed

Updating a case VLW reported in May, a woman who was sent back to prison by Pittsylvania County after she got the Martinsville sheriff to let her serve home incarceration has her appeal dismissed as moot by the Court of Appeals.
Brumfield v. Commonwealth (VLW 009-7-283(UP)) (5 pp.)

‘Justification’ Defense Wins Reversal

After “repeatedly tipping its hat” to the justification defense, the 4th Circuit clarifies that the defense is available and reverses a defendant’s firearm conviction because his description of a violent encounter with his partner and retention of the unloaded gun supports a justification jury instruction.
U.S. v. Ricks (VLW 009-2-131) (11 pp.)

Photo Lineup Was ‘Unduly Suggestive’

Although a Fairfax Circuit Court notes that the apparent 20-year age difference between a photo of defendant and photos of five other African-American males is both “startling and obvious,” the court must hear additional evidence prior to suppressing a sexual battery victim’s photo ID of defendant.
Commonwealth v. Williams (VLW 009-8-145) (11 pp.)

No Habeas for Defense Lawyer’s Double Duty

A death-row defendant did not show prejudice from his trial lawyer’s concurrent representation of the sheriff in an EEOC matter, and the 4th Circuit denies habeas relief, holding on an issue of first impression that a state post-conviction court’s alternative merits ruling gets AEDPA deference from a federal habeas court.
Stephens v. Branker (VLW 009-2-120) (26 pp.)

Lawyer Convicted for Home Office Deduction

A Danville U.S. District Court denies post-trial motions filed by a lawyer convicted of tax evasion involving a home office deduction for his family mansion, Stoneleigh, where he also had an office for his law firm.
U.S. v. Witasick (VLW 009-3-463) 26 pp.)

No Break for Rape Defendant From ‘Alford’ Plea

A defendant’s Alford plea to his stepdaughter’s rape does not let him avoid a probation violation when he refuses to comply with a therapeutic requirement that he admit his guilt, the Court of Appeals says; but a dissent says the majority “eviscerates” the Alford plea.
Carroll v. Commonwealth (VLW 009-7-372) (30 pp.)

‘John Wayne’ Replica Gun Is ‘Firearm’

A man who used a Franklin Mint “John Wayne Replica” handgun to demand Oxycontin from a pharmacist can be convicted of use of a firearm in the commission of a robbery, the Court of Appeals says.
Startin v. Commonwealth (VLW 009-7-375) (17 pp.)

‘Intent’ Shown in Paint-Return Scheme

A defendant is guilty of grand larceny for a scheme to put gallon cans of paint in a shopping cart and proceed to a home-improvement store’s return desk to seek a refund, the Court of Appeals says.
Carter v. Commonwealth (VLW 009-7-370) (12 pp.)

‘Concerned’ Employee Not Intimidated

A store employee who had “some concern” when he saw a robber’s gun was not necessarily intimidated, and another employee who helped set up the feigned robbery cannot be convicted of the crime, in a Virginia Supreme Court decision with a sharp dissent by two justices.
Commonwealth v. Anderson (VLW 009-6-080) (21 pp.)

No Credit for State Time

A federal inmate gets no credit against his federal drug and firearm sentences for his time in state custody for murder and malicious wounding, as each court specifically directed that his sentences run consecutively, a Roanoke U.S. District Court says in this new published opinion.
Heath v. O’Brien (VLW 009-3-478) (7 pp.)

Conditions Vacated for Threats Against FBI

The 4th Circuit vacates a sentencing court’s “special conditions” of supervised release that required defendant to receive psychiatric treatment, stay away from pornography and submit to invasive sex offender tests.
U.S. v. Armel (VLW 009-2-161) (8 pp.)

Below-Guidelines Sentence for ‘Isolated’ Defendant

Although federal sentencing guidelines call for 41 to 51 months in prison, a defendant who is “psychologically and socially isolated” gets 18 months in prison and 10 years’ supervision from a Big Stone Gap U.S. District Court.
U.S. v. McCracken (VLW 009-3-595) (9 pp.)

Rapist With Personality Disorder Not SVP

The Supreme Court of Virginia says a man who has committed no sexual offenses since his 1994 rape conviction is not a “sexually violent predator,” despite reports from the commonwealth’s experts that he has a personality disorder and is likely to reoffend
Commonwealth v. Squire (VLW 009-6-106) (9 pp.)

No ‘Inherent Authority’ for Deferral

Read our lips, the Court of Appeals says: A trial court does not have inherent authority to dismiss criminal charges – except on legal or factual grounds – when dismissal is not authorized by statute.
Hernandez v. Commonwealth (VLW 009-7-473) (12 pp.)

Trading Tip Teachers Verdict Set Aside

After a two-year FBI investigation that generated up to six million documents, two promotional speakers who marketed “fraudulent” “Teach Me To Trade” stock market courses go free when an Alexandria U.S. District Court throws out guilty verdicts on both conspiracy and substantive wire fraud charges.
U.S. v. Woolf (VLW 009-3-583) (51 pp.)

Plain Error from Prosecutor’s Plea Breach

The 4th Circuit reverses as plain error a drug defendant’s sentence because the government breached a plea agreement by arguing defendant was “critical” and “important,” when it had promised to recommend a two-level “minor participant” reduction.
U.S. v. Dawson (VLW 009-2-176) (13 pp.)

DOMESTIC RELATIONS

Adultery – ‘Negative Nonmonetary Factor’

A husband’s adultery had a negative nonmonetary impact on a couple’s marriage where wife refused to use the couple’s million-dollar Corolla beach house after discovering it was the site of husband’s many liaisons, and a Loudoun County Circuit Court grants wife a divorce on grounds of husband’s adultery and gives husband the beach house and its million-dollar mortgage.
Johnson v. Johnson (Loudoun County Cir.Ct.) (VLW 009-8-015) (10 pp.)

Spousal Support – Rent

A husband must pay wife her share of rent on the marital home and $20,500 in attorney’s fees, but wife’s monthly support payments of $4,600 will be halved in seven years, absent a material change in circumstances, a Rappahannock County Circuit Court says.
Penza v. Penza (Rappahannock County Cir.Ct.) (VLW 009-8-022) (6 pp.)

Amendment To Answer – Equitable Distribution

A Chesterfield County Circuit Court abused its discretion when it refused to allow wife to amend her initial pro se answer to seek equitable distribution, and the Court of Appeals reverses and remands.
Costanzo v. Costanzo (Va.Ct.App.) (VLW 009-7-046(UP)) (5 pp.)

Spousal Support – Parties’ Agreement – Attorney’s Fees

A wife loses on summary judgment her request for more spousal support than she gets in the parties’ post-nup agreement, and a Roanoke County Circuit orders wife to pay $1,000 attorney’s fees to husband.
Klos v. Klos (Roanoke County Cir.Ct.) (VLW 009-8-037) (3 pp.)

Equitable Distribution – Marital Debt – ‘Trust Fund Tax’

Where husband had his own paint contracting business and wife worked as a paralegal, the “trust fund tax” debt that arose when husband failed to pay the payroll taxes for his business is presumptively marital debt, but the trial court also should consider who benefited from the original debt, not from the failure to pay that debt; the Court of Appeals reverses the equitable distribution that allocated the payroll debt to both parties.
Gilliam v. McGrady (Va.Ct.App.) (VLW 009-7-091) (11 pp.)

Equitable Distribution – Pension – Life Insurance

The Court of Appeals upholds a divorce court’s award of a portion of husband’s profit-sharing plan and pension plans to wife, to implement the parties’ PSA after husband decided to retire before the parties could agree on language for QDROs, but reverses the order that husband provide life insurance to wife.
Lewis v. Lewis (Va.Ct.App.) (VLW 009-7-111) (15 pp.)

Discovery Sanctions – Wife’s Bankruptcy

Although wife’s bankruptcy effectively invalidated a Fauquier County Circuit Court’s imposition of discovery sanctions to keep out wife’s evidence, husband’s stipulation that wife will receive a minimum ED award of $690,939, to cover what she owes unsecured creditors, allows the court to enforce the discovery sanctions.
Spreadbury v. Spreadbury (Fauquier County Cir.Ct.) (VLW 009-8-057) (8 pp.)

Joint Tenants – Unmarried Couple – Partition

In dividing the home where this unmarried couple lived as joint tenants, a Fauquier County Circuit Court cannot consider “equitable distribution” factors, but considers each party’s contributions in allocating sale proceeds from the property.
Clem v. Reynolds (Fauquier County Cir.Ct.) (VLW 009-8-059) (4 pp.)

Spousal Support – Change In Circumstance

The Court of Appeals says a divorce court erred in ruling that a consent decree incorporating an agreement between wife and husband qualified as a “stipulation or contract” under Va. Code § 20-109(C), and husband’s spousal support obligation remained modifiable for a change in circumstance.
Brown v. Brown (Va.Ct.App.) (VLW 009-7-157) (7 pp.)

Daughters Can’t Fly Solo

Where the parties daughters, ages 13 and 10, get migraine headaches and the younger one has juvenile epilepsy, a Loudoun County Circuit Court says father must pay for the mother or another adult to accompany the children on airline flights from Rochester, New York to Northern Virginia for weekend visitation.
Purpura-McCafferty v. McCafferty (VLW 009-8-106) (6 pp.)

Parents Clash Over Shots for Child

Dad says mom is “manipulating” the court with her anti-vaccine stance, but a Fairfax Circuit Court says mom has a bona fide religious objection, and gives mom sole authority for medical decisions.
Grzyb v. Grzyb (VLW 009-8-131) (11 pp.)

Wife’s ED Award Reversed
A wife can keep $65,000 for husband’s drinking, adultery and verbal abuse, but the Court of Appeals reversed awards to wife of $75,000 for a capital loss credit, $15,786 for half of a bank account, $50,000 for “dissipation of assets,” and an order that husband carry four life insurance policies.
Attiliis v. Attiliis (VLW 009-7-247(UP)) (14 pp.)

Mom’s In-State Move OK

A mother can keep primary physical custody when she moves 100 miles away to Bluefield with her new husband, with plans to assume the family funeral home business; a Roanoke County Circuit Court says this is not a “relocation custody” case but if it were, the result would be the same.
Seamans v. McClure (VLW 009-8-119) (4 pp.)

Travel Expenses, But Not Condo

A father gets a break on child support for visitation travel expenses from New York to Virginia, but a Fairfax Circuit Court refuses to order a deviation for the cost of the condo the dad purchased.
Powers v. Powers (Fairfax Cir.Ct.) (VLW 009-8-099) (4 pp.)

Furloughed Mental Patient Not ‘Competent’

A schizoaffective psychotic husband on weekend furlough from a psychiatric ward was not competent to sign a marital property agreement that gave him all marital debt and wife all marital assets, the Virginia Court of Appeals says.
Bailey v. Bailey (VLW 009-7-232) (8 pp.)

Support Ends, Despite PSA

Although wife says she and her boyfriend do not share their finances and have separate bedrooms, she pays him rent and they share their lives and a Fairfax Circuit Court says husband can terminate his monthly spousal support payments in this first-impression case construing the parties’ PSA, which does not mention cohabitation.
Waugh v. Waugh (VLW 009-8-141) (10 pp.)

No Attorney’s Lien on Wife’s Property

Although husband’s divorce lawyer filed a notice of attorney’s lien on jointly held marital real estate prior to entry of the final divorce decree, the lien could not attach before the property was conveyed to wife’s sole ownership, and a Fairfax Circuit Court sustains wife’s demurrer to the lawyer’s suit to enforce the lien.
Borden v. Wilson (VLW 009-8-139) (6 pp.)

Occupant Husband Pays Costs

Although husband and wife became tenants in common when they divorced, carrying charges on their property are not evenly split, but should be paid by husband who changed the locks and became the sole occupier of the property, says a Fairfax Circuit Court.
Shalom v. Clark (VLW 009-8-176) (3 pp.)

Husband Challenges Pension Split
A Fairfax Circuit Court looks to unpublished Court of Appeals cases to hold that wife can keep her distribution from husband’s retirement account, even though husband claims the disbursement effects a 61/39 split in favor of wife, rather than the 50/50 split ordained by the final divorce decree.
Cragg v. Cragg (VLW 009-8-146) (4 pp.)

Support Ends, Despite PSA

Although wife says she and her boyfriend do not share their finances and have separate bedrooms, she pays him rent and they share their lives and a Fairfax Circuit Court says husband can terminate his monthly spousal support payments in this first-impression case construing the parties’ PSA, which does not mention cohabitation.
Waugh v. Waugh (VLW 009-8-141) (10 pp.)

No Reduced Support for Real Estate Downturn

Although husband’s real estate investment income had dropped, wife had been diagnosed with cancer and her real estate career had stalled, and the Court of Appeals upholds a refusal to reduce husband’s $6,000 monthly spousal support payment.
Lane v. Lane (VLW 009-7-388(UP)) (5 pp.)

Wife Can Show Pre-Nup Was ‘Unconscionable’

A wife wins reversal in the Court of Appeals and can challenge a premarital agreement she signed in 1997, with no legal advice, after her multi-millionaire husband told her he was “poor.”
Chaplain v. Chaplain (VLW 009-7-376) (13 pp.)

Evidence for Pendente Lite Support

A Loudoun Circuit Court judge reminds lawyers not to mount a full-scale support case at a pendente lite support hearing, and says he will impute income to wife but award her $2,500 per month, plus $4,000 in attorney’s fees.
Dunn v. Dunn (VLW 009-8-187) (5 pp.)

Wife’s Support Increased After Husband’s Income Jumps by 70 Percent

A mere increase in husband’s income does not justify increasing wife’s spousal support beyond the standard of living during the marriage, but circumstances that include husband’s 70 percent increase income and wife’s continued inability to work due to her fibromyalgia and chronic fatigue syndrome justify an increase from $2,500 to $3,250 per month, a Loudoun County Circuit Court says.
Ramberg v. Ramberg (VLW 009-8-222) (12 pp)

Wife Must Sign Form

Divorce lawyers have to redo their depositions, after a Roanoke County Court tells a defendant wife that she is not properly before the court even though the wife’s lawyer executed an “Acceptance of Service of Process and Waiver of Future Service of Process” in the case.
Baldwin v. Baldwin (VLW 009-8-216) (3 pp.)

Couple Left Upside Down on Mortgage

A couple who enjoyed a “very comfortable lifestyle” during their eight-year marriage, with a joint income of $150,000 to $205,000 for the last three years of the marriage, but whose home has lost value and who each has incurred substantial debt, will receive no equitable distribution, as a Loudoun County Circuit Court says it will leave the parties where it finds them after granting a divorce based on a one-year separation.
Reidy v. Reidy (VLW 009-8-218) (14 pp.)

School Lunch Traffic Picks Up During Custody Contests?

A mother challenges a trial judge’s comment that parents “start visiting more” during school lunch times “when there’s litigation going on,” but the Court of Appeals says “one isolated comment” does not make the mom’s case and upholds custody for the dad.
Mercurio v. Mercurio (VLW 009-7-456) (11 pp.)

Court Nixes Mom’s Move

A mom’s proposed move to Massachusetts for graduate school would not independently benefit the four children, and the Court of Appeals upholds a divorce court’s denial of her request.
Krusell v. Al-Rayes (VLW 009-7-459) (8 pp.)

Wife Can Sue for E-Mail Access

Two lawyers who are no longer in love and dissolving their marriage and their Florida-based lobbying business are in Alexandria U.S. District Court for wife’s suit against the husband for alleged unauthorized access to her business e-mail account; the Alexandria court rejects husband’s claim that Florida law authorized him, as a manager of the couple’s LLC, to access the account.
Global Policy Partners LLC v. Yessin (VLW 009-3-643) (16 pp.)

‘Yard Sale’ Stuff, Truck to Haul it Away

A PSA that gave wife a 1999 pickup truck and her “yard sale” personal property, and left her free of a $100,000 mortgage on the $300,000 marital home, was unconscionable, the Court of Appeals says.
Sims v. Sims (VLW 009-7-523) (12 pp.)

Wrong Standard Used to Classify Property

The Navy Seal husband bought a Rhode Island home with no money down and made five mortgage payments before the parties married and made payments from marital funds, but the divorce court applied the wrong standard in classifying the home as marital property, the Court of Appeals says.
Duva v. Duva (VLW 009-7-512) (16 pp.)

Doc’s Reduced Hours Means Reduced Support

A 62-year-old physician who wants to reduce his work hours because he is being treated for hypertension and osteoarthritis in his hands and feet has his monthly spousal support payment reduced from $2,900 to $2,000 per month, by a Norfolk Circuit Court.
Kaufman v. Kaufman (VLW 009-8-257) (4 pp.)

Multi-Millionaire Wife Wants $30K Life Insurance Share

A Fairfax Circuit Court denies wife a share of two life insurance policies worth about $30,000, purchased by husband in the early ‘70s, but the physician husband and lawyer-nurse wife, who ended their 26-year marriage debt-free and dividing $10 million in their property settlement agreement, each get a 13-year reservation of rights to spousal support.
Corey v. DiMattina (VLW 009-8-252) (11 pp.)

EMPLOYMENT

Polygraph Test – Termination – Arbitration

An employee who alleges he was fired one day after employer required him to take a polygraph test that purportedly showed “deception” has stated a claim under the Employee Polygraph Protection Act, 29 U.S.C. § 201, a Richmond U.S. District Court holds.
Harmon v. CB. Squared Services Inc. (USDC-ED) (VLW 009-3-075) (7 pp.)

ERISA – Workers’ Comp Offset – Plan Language

An ERISA plan allowed a plan beneficiary’s workers’ comp benefits to be offset against his plan disability payments, even though the workers’ comp benefits were for an illness unrelated to the claimant’s disability, the 4th Circuit says.
Carden v. Aetna Life Ins. Co. (USCA) (VLW 009-2-055) (12 pp.)

FMLA – Russian Adoption

The 4th Circuit upholds a Family Leave Act award to a pharmaceutical salesman who was fired in retaliation for taking FMLA leave to adopt a Russian child.
Dotson v. Pfizer Inc. (USCA) (VLW 009-2-048) (27 pp.)

Noncompetes – Proprietary Information – Accounting Software

In this dispute between Deltek Inc. and three former employees who allegedly formed a competing company, Iuovo, an Alexandria U.S. District Court issues a preliminary injunction to stop defendants from using Deltek’s trademarked name in its Web site promotions, but denies preliminary relief on Deltek’s claims that defendants have disclosed confidential proprietary information or violated their noncompete agreements.
Deltek Inc. v. Iuvo Systems Inc. (USDC-ED) (VLW 009-3-226) (26 pp.)

Employee E-Mail Not a ‘Threat’

A museum finance director wins reinstatement and attorney’s fees after he was fired for sending an e-mail to museum management and trustees complaining that “Desperate times call for desperate measures”; a Richmond Circuit Court upholds the win for the grievant employee.
Commonwealth ex parte Science Museum of Virginia v. Mahone (Richmond Cir.Ct.) (VLW 009-8-109) (9 pp.)

No TRO on Nonsolicitation Pact

A broker who jumped ship defeated his former employer’s effort to keep him from contacting clients who might want to switch their accounts, in this decision from the U.S. District Court in Norfolk.
BAI Services Inc. v. Byrd (VLW 009-3-379) (20 pp.)

Defamation Claim Advances

Even though a former bank employee does not have a copy of a supervisor’s alleged e-mail telling coworkers the employee had been terminated for abandoning her position, the employee can try her defamation claim supported by a former coworker’s testimony about seeing and discussing the e-mail with coworkers, a Richmond U.S. District Court says.
Wynn v. Wachovia Bank N.A. (VLW 009-3-395) (18 pp.)

Crushing Hand Injury Not ‘Loss of Hand’

Although plaintiff’s treating physician indicated that the severe crushing and mangling injury to plaintiff’s hands amounted to severance of both hands, a Roanoke U.S. District Court upholds denial of ERISA disability benefits under the plan definition of “loss of hand” as “a complete and permanent severance of at least four fingers from the hand.”
King v. Mutual of Omaha Ins. Co. (VLW 009-3-479) (9 pp.)

No TRO on Stock Analyst Noncompete

No TRO for an investment bank to stop a former food-industry stock analyst from working for a competitor because plaintiff bank has not shown that any investor clients have been wooed away, says an Alexandria U.S. District Court.
FBR Capital Markets & Co. v. Short (VLW 009-3-554) (11 pp.)

Fencing Academy Sues on Noncompete

A fencing instructor who allegedly solicited private clients and conspired with a competitor faces contract and business tort claims from his former employer in this new Fairfax case.
Virginia Academy of Fencing Inc. v. Sintchinov (VLW 009-8-202) (5 pp.)

Social Services Director Not Policy Post

Political party should not come into play when hiring a county social services director, the 4th Circuit says, but Buchanan County officials have qualified immunity from this disappointed job-seeker’s lawsuit.
Fields v. Prater (VLW 009-2-100) (17 pp.)

No Worker Penalty for ‘Creative Compensation’ Settlement

An injured union member whose attorney resolved her workers’ comp claim with a “creative compensation” settlement that allowed a pay-out over time, need not repay the union pension fund and the fund cannot change her work credits, a Norfolk U.S. District Court says.
Board of Trustees for the Hampton Roads Shipping Ass’n – ILA v. Mathis (VLW 009-3-625) (50 pp.)

EMPLOYMENT DISCRIMINATION

Equal Pay Act – Resort Manager Retirement

A Harrisonburg U.S. District Court accepts a female former ski resort manager’s Equal Pay Act comparison of her pay to the aggregate pay of her three male successors when her general manager job was divided up at her retirement, but the court still grants summary judgment to defendant Massanutten Resort, because the reorganization meant the jobs were no longer substantially equal.
Emswiler v. Great Eastern Resort Corp. (USDC-WD) (VLW 009-3-158) (28 pp.)

Age – OWBPA – Standing

Older workers who did not sign allegedly illegal releases when terminated have no standing to sue their employer under the Older Workers Benefit Protection Act on a complaint that older workers were systematically fired while younger workers were retained, a Richmond U.S. District Court holds.
Meritt v. Wellpoint Inc. (USDC-ED) (VLW 009-3-048) (16 pp.)

Trading As ‘Young People’s Game’

A securities firm wins summary judgment in this age-discrimination suit by a 51-year-old salesman, who cited a supervisor’s alleged comment about trading being “a young people’s game,” and that plaintiff was “too old to want to be a trader,” in this decision from Richmond U.S. District Court.
Martin v. Scott & Stringfellow Inc. (VLW 009-3-343) (39 pp.)

Sharing Confidential Doc Not ‘Protected Activity’

Sharing an employer’s confidential report with a lawyer hired to pursue a race discrimination claim is not “protected activity” against which an employer cannot retaliate, says a Norfolk U.S. District Court in this suit by a former vice president for a debt collection company.
Johnson v. Portfolio Recovery Associates LLC (VLW 009-3-360) (43 pp.)

Plaintiffs’ Lawyer Can Talk to Coworkers

In this sexual harassment case against a plant supervisor for United Salt Corp., a magistrate judge for the Abingdon U.S. District Court says plaintiffs’ lawyer can have ex parte contact with plaintiffs’ coworkers, whose statements could not be used to impute liability to the employer.
Smith v. United Salt Corp. (VLW 009-3-513) (20 pp.)

‘Too Many Females’ Keeps Case Alive

A female former jail employee can pursue her Title VII discharge claim because a supervisor allegedly said there were too many females and he was going to “weed them out,” and an Abingdon U.S. District Court magistrate recommends denying summary judgment to employer.
Sizemore v. Southwest Va. Regional Jail Authority (VLW 009-3-559) (27 pp.)

Former Exec Wins Bowman Case

A female former executive wins a $1.5 million default judgment, including punitive damages, on her claims for breach of contract and wrongful constructive discharge contract under Bowman, in this case from Alexandria federal district court.
Wynne v. Birach (VLW 009-3-603) (11 pp.)

Pregnancy Claim Goes Forward

A woman due to give birth several months after her hire as a case manager, who says she was fired after the agency learned of her pregnancy, can try her discrimination case in Richmond U.S. District Court.
Austin v. Rappahannock Areas ASAP (VLW 009-3-606) (7 pp.)

IMMIGRATION

Naturalization Application – Agency Denial

A Norfolk U.S. District Court overturns an agency denial of a Pakistani citizen’s application for naturalization; the applicant’s deferred disposition on an old alien smuggling charge did not show he lacked “good moral character.”
Iqbal v. Bryson (USDC-ED) (VLW 009-3-074) (11 pp.)

INSURANCE

Title Insurance – CRESPA – Private Remedy

A settlement company that allegedly breached its contract to serve as plaintiff’s agent for procurement of title insurance cannot be liable under CRESPA for alleged breaches of the Issuing Agency Contract under a settlement agent bond furnished by the settlement company, as CRESPA does not provide a private cause of action, a Fairfax Circuit Court says, following a 2007 Frederick County Circuit Court decision.
Chicago Title Ins. Co. v. Main Street Title & Escrow LLC (Fairfax Cir.Ct.) (VLW 009-8-023) (3 pp.)

Business Auto Policy – Owner’s Family Coverage

A business auto policy for a roofing company is not ambiguous and there is no UM/UIM coverage for the fatal motorcycle accident of the business owner’s daughter; on an issue of apparent first impression, a Prince William County Circuit Court says the inclusion of the “family member” in a UM/UIM mandatory endorsement does not render a commercial vehicle policy ambiguous.
Elkins v. Erie Insurance Exchange (Prince William County Cir.Ct.) (VLW 009-8-011) (5 pp.)

Liability – ‘Resident Relative’ – Notice

A young man killed in an auto accident who was staying temporarily with his parents until he could move into a friend’s house was not a “resident relative” and does not have coverage under his parents’ insurance policy, a Chesterfield Circuit Court rules.
Farmers Insurance Exchange v. Saunders (Chesterfield Cir.Ct.) (VLW 008-8-265) (2 pp.)

Crime Insurance – Application Statement – Rescission

An insurance carrier can rescind its crime policy issued to plaintiff, a homeowners’ association management company, because the firm’s founder falsely, and knowingly, answered an application question to state that bank accounts were reconciled by someone not authorized to deposit or withdraw from them, and an Alexandria U.S. District Court says the policy does not cover the alleged $2 million embezzlement of funds by the founder’s son.
Koger Mgmt. Group Inc. v. Continental Cas. Co. (USDC-ED) (VLW 009-3-140) (16 pp.)

Fire Loss – Business Interruption – Statutory Appraisal

When an insulation plant sues its insurance carrier on a claim for business interruption loss after a fire at the Lawrenceville, Va. plant, an Alexandria U.S. District Court holds, in a case of first impression, that plaintiff, as a commercial lessee, has an insurable interest in its rented building on which it has a purchase option.
Tiger Fibers LLC v. Aspen Specialty Ins. Co. (USDC-ED) (VLW 009-3-057) (42 pp.)

Coverage Keyed To ‘Retaining Wall’

A dirt-bolstered concrete retaining wall that holds water to irrigate a golf course may have been a “dam” with no insurance coverage, or a covered “retaining wall,” and a Richmond U.S. District Court denies a carrier summary judgment on the golf course’s claim for damage from Tropical Storm Ernesto.
Piankatank River Golf Club Inc v. Selective Insurance Co. (USDC-ED) (VLW 009-3-233) (21 pp.)

Auto Liability – Permissive User – Implied Consent

A painting contractor’s employee who was allowed to take a company van home, but not told he would be fired if he drove it for personal use without permission, had implied consent to drive the van and the employer’s carrier must insure the employee in the lawsuit arising from an accident involving the employee’s drunken driving of the van and the death of two van passengers.
Selective Ins. Co. of America v. Salinas (VLW 009-8-143) (11 pp.)

No Coverage for Diesel Discharge under ‘Tank Policy’

A radio station can’t extend its “Tank Safe Policy” coverage by claiming an above-ground day tank is an “appurtenance” with the same coverage as the 2000-gallon underground tank identified in the policy, in this case from a Danville U.S. District Court.
Piedmont Broadcasting Corp. v. Ace American Ins. Co. (VLW 009-3-319) (17 pp.)

No Duty to Defend Permissive Driver

Drawing on a 2009 Virginia Supreme Court case, a Virginia Beach Circuit Court says in an auto accident case that a vehicle owner’s carrier has no duty to defend a permissive user of the vehicle – the owner’s son – on negligence claims when the insured father failed to name the user/son as an eligible driver on the insurance application.
Integon Indemnity Ins. Co. v. Quillen (VLW 009-8-220) (10 pp.)

Rental Car Company Seeks Indemnity

A driver who rejected a rental car company’s supplemental coverage, and who hit a parked car, can look to his own liability policy to reimburse the self-insured car rental company for its payment to the third party; a Fairfax Circuit Court says that self-insurance is not the functional equivalent of insurance in this case.
Farmers Insurance Exchange v. Enterprise Leasing Co. (VLW 009-8-217) (11 pp.)

Owner Had No Duty to ‘Maintain’ Sprinkler

Predicting what a Virginia state court would do, an Alexandria U.S. District Court says an owner that leased its warehouse to a coffee company has coverage for fire loss, because it did not violate a duty to “maintain” a sprinkler system that had a closed supply valve.
Breton LLC v. Graphic Arts Mutual Ins. Co. (VLW 009-3-608) (23 pp.)

Homeowners Can Use ‘Appraisal’ Process

Plaintiff homeowners say it will cost $439,000 to repair covered electrical wiring damage from a power surge in their home, but their homeowners’ carrier says they can do the repairs for $60,000; construing the phrase “amount of loss” as a matter of first impression, a Fairfax Circuit Court says the carrier must participate in an appraisal process under the policy.
Coates v. Erie Insurance Exchange (VLW 009-8-251) (5 pp.)

No Consent for Employee’s Girlfriend to Drive

It may have been OK for a college admissions officer to use his rented car on the weekend before a recruiting trip to New Jersey, but it definitely was not OK for his underage, unlicensed girlfriend to drive the car to North Carolina, and the university’s insurance carrier does not have to cover an accident that happened in Virginia.
Discovery Property & Casualty Ins. Co. v. University of Vermont (VLW 009-3-661) (14 pp.)

INTELLECTUAL PROPERTY

Counterfeit Labels – Computer Program

In a case of apparent first impression for an Alexandria U.S. District Court, the court holds that a computer program seller who admitted he printed his own computer program labels that appeared to be genuine Microsoft labels, “knowingly” violated 18 U.S.C. § 2318, which prohibits trafficking in counterfeit computer program labels.
Microsoft Corp. v. Pronet Cyber Technologies Inc. (USDC-ED) (VLW 009-3-032) (17 pp.)

Student Papers – Plagiarism Web Site

A Web site “Turnitin,” used by schools as a plagiarism check, is “fair use” of students’ work, but the 4th Circuit says the district court must reconsider whether the NoVa student who sued for copyright infringement violated state and federal computer abuse laws.
A.V., a minor v. iParadigms LLC (USCA) (VLW 009-2-078) (26 pp.)

Computer Password Not ‘Trade Secret’

StateScape, a website that sells access to its searchable, proprietary database of local, state and federal bills and regulations, cannot sue defendants – including a former client-turned-competitor, a second former client, and a former marketing director hired by the competitor – for misappropriation of a trade secret for use of an allegedly purloined password; but StateScape may sue for copyright violation and breach of contract, an Alexandria U.S. District Court says.
State Analysis Inc. v. American Financial Services Assoc. (USDC-ED) (VLW 009-3-189) (27 pp.)

MEDICAL MALPRACTICE

Wrongful Death – Survival Action – Hospital Infection

The estate of a man who was admitted to the hospital with a broken hip but who died after acquiring an infection in the hospital is not required to elect between alternative claims for wrongful death under Va. Code Sec. 8.01-50 and a survival action for personal injury under Code Sec. 8.01-25, which the administrators allege arose from the same acts of medical negligence, the Virginia Supreme Court says in upholding a $325,000 jury award on the survival claim.
Centra Health Inc. v. Mullins, Adm’r (Va.S.Ct.) (VLW 009-6-016) (35 pp.)

Expert Witness – Standard Of Care – Emergency Room Care

In this med-mal suit alleging defendant physician negligently failed to admit decedent infant to the hospital when he presented signs of respiratory distress and/or pertussis, the trial court abused its discretion by holding that a pediatric-infectious disease physician who saw patients in an “urgent care” clinic was not qualified to testify as an expert on the standard of care for emergency room practice.
Jackson, Adm’x v. Qureshi (Va.S.Ct.) (VLW 009-6-007) (16 pp.)

ER Physician – Heart Attack Diagnosis – SDT

A plaintiff who is suing defendant ER physician on a complaint that she was not examined for cardiac pathology at a hospital emergency room and was discharged with acute chronic low back pain, only to return to the ER later that day to be diagnosed as having suffered a massive heart attack, can subpoena from the hospital, which is not a party to the suit, documents relating to use of cardiac enzymes and management of patients presenting with chest and/or back pain, a Martinsville Circuit Court holds.

Gravely v. Perren (Martinsville Cir.Ct.) (VLW 009-8-034) (4 pp.)

Expert Witness Certification – Discovery

A med-mal defendant may not discover the identity of the expert who certified plaintiff’s case under Va. Code § 8.01-20.1, even though that expert also will testify at trial as a designated expert.
Grimaldi v. Burgess (Fairfax Cir.Ct.) (VLW 009-8-065) (6 pp.)

Plaintiff Says LPN Was ‘Negligent Per Se’

A plaintiff who alleges injury from an injection of phenegran by a licensed practical nurse must amend in order to assert negligence per se against the pediatric group, to state that a statute was enacted for public safety and he is in the protected class, a Roanoke City Circuit Court says.
Gilbertson v. Purdham (Roanoke City Cir.Ct.) (VLW 009-8-113) (6 pp.)

MUNICIPAL

No Payment on Old Letter Of Credit

A county loses its suit for collection on a letter of credit issued by defendant bank in 1990 to cover site work that developers never completed, as it is unreasonable for the county to issue its demand 17 years after the initial default by the developers, a Fairfax Circuit Court says.
Board of Supervisors of Fairfax County, Va. v. Burke & Herbert Bank & Trust Co. (Fairfax Cir.Ct.) (VLW 009-8-096) (4 pp.)

NEGLIGENCE

Auto Accident – Discovery – Witness Statements

In this wrongful death suit by the estate of a passenger whose vehicle was rear-ended by defendant paving company’s dump truck, a Suffolk Circuit Court says plaintiff can have statements made by witnesses and defendants to insurance investigators after the accident.
Burr v. R.C. Paving (Suffolk Cir.Ct.) (VLW 008-8-266) (3 pp.)

Auto Accident – Jury Instruction – ‘Unavoidable Accident’

A trial court did not err in refusing to instruct a jury on “unavoidable accident” in this auto accident case in which defendant estate argued that decedent driver had suffered “an acute intracranial event” prior to losing control of his car and crossing the center line in his van; the Virginia Supreme Court joins the clear trend in the states favoring exclusion altogether of any jury instruction on “unavoidable accident.”
Hancock-Underwood, Adm’r v. Knight (Va.S.Ct.) (VLW 009-6-009) (15 pp.)

P.I. Settlement – Lawyer Fraud

Although a lawyer defrauded his p.i. client by absconding with a settlement payment, a Fairfax Circuit Court says the lawyer had apparent authority to settle the case and the client cannot set aside the settlement.
Johnson v. Lovos (Fairfax Cir.Ct.) (VLW 009-8-018) (5 pp.)

Auto Accident – Collateral Source Rule

A defendant employer in this auto-accident case can exclude medical bills of an injured plaintiff who won a bankruptcy discharge of those bills, even to prove pain and suffering, a Norfolk U.S. District Court holds; in a case of first impression, a magistrate judge refuses to apply Virginia’s collateral source rule to debts discharged in bankruptcy.
Payne v. Wyeth Pharmaceuticals Inc. (USDC-ED) (VLW 009-3-001) (17 pp.)

P.I. Claim – Valuation – Bankruptcy – Judicial Estoppel

A plaintiff suing a pharmaceutical company for injuries from an auto accident with a company employee is judicially estopped from suing for $25 million in damages by the fact that he valued his p.i. claim at $1 million when he filed his Chapter 7 bankruptcy schedules, a Norfolk U.S. District Court holds.
Payne v. Wyeth Pharmaceuticals Inc. (USDC-ED) (VLW 008-3-002) (6 pp.)

Sovereign Immunity – Agent Of Commonwealth – Medicaid Patient Transport

A Medicaid patient who used defendant LogistiCare Solutions LLC for transport for dialysis treatment cannot sue defendant for the alleged negligence of an employee who improperly loaded the patient into a van, causing injury from a leg wound, because LogistiCare has sovereign immunity from the negligence claim, a Fairfax Circuit Court says.
Andrews v. LogistiCare Solutions LLC (Fairfax Cir.Ct.) (VLW 009-8-006) (7 pp.)

Fall From Roof – OSHA Standard

A plaintiff suing for damages from a fall off the roof of a barn he was hired to paint cannot use expert testimony from an OSHA safety instructor to establish a “community standard of care” applicable to defendant, a Patrick County Circuit Court rules.
Beamer v. Thompson (Patrick County Cir.Ct.) (VLW 009-8-029) (4 pp.)

Auto Accident – BAC – Toxicology Report

A Chesterfield County Circuit Court allows an opinion from plaintiff’s expert toxicologist and denies defendant’s motion to dismiss plaintiff’s punitive damages claim.
Dimmick v. Pike (Chesterfield County Cir.Ct.) (VLW 009-8-024) (2 pp.)

DUI Violations – Punitive Damages – Chiropractic Treatment

A Rockingham County Circuit Court upholds a damage award of $80,000 compensatory and $200,000 punitive damages for a teenage girl who incurred $765 in medical expenses and anticipates an additional $10,000 in chiropractic treatment for aggravation of her scoliosis.
Showker v. Kratzer (Rockingham County Cir.Ct.) (VLW 009-8-039) (7 pp.)

Airport Wheelchair Request – Air Carriers Access Act

A woman who bought an airline ticket for her mother with some assurance of wheelchair assistance at the airport, can sue the airline for negligence for her mother’s injuries from a fall at the Richmond airport when she was “abandoned” without a wheelchair, but she has no private right of action against the airline under the Air Carriers Access Act, a Richmond U.S. District Court says.
Jackson v. United Airlines Inc. (USDC-ED) (VLW 009-3-225) (28 pp.)

Premises Liability – Vacant Building – Maintenance Code

The owner of a vacant building who allegedly violated an ordinance requiring it to secure its building may be liable to the owner of an adjacent property that suffered damages when third-party trespassers set a fire in the vacant building that spread to plaintiff’s building; a Richmond Circuit Court overrules a demurrer filed by the owner of the vacant building.
Fireman’s Insurance Co. v. Bayou Properties LLC (Richmond Cir.Ct.) (VLW 009-8-089) (4 pp.)

‘Hired Gun’ Testimony Excluded

A doctor who got a referral from and was paid by a p.i. plaintiff’s lawyer cannot testify without a Rule 26 expert report, and the Norfolk U.S. District Court also applies Daubert to exclude causation and prognosis testimony by an orthopedic surgeon.
Perkins v. U.S. (VLW 009-3-347) (16 pp.)

No Nonsuit Protection After Damage Change

A p.i. plaintiff who nonsuited her action seeking $325,000 in damages, then refiled the same complaint, with a $500,000 ad damnum, did not “recommence” the same suit, and a Loudoun County Circuit Court dismisses her suit as time-barred.
Spear v. Metropolitan Washington Airports Authority (VLW 009-8-164) (4 pp.)

Emotional Distress Claim Advances

An administrator who alleges mistreatment of his brother following surgery, resulting in his brother’s death from a combination of sedatives, rough handling and intubation notwithstanding a ‘DNR’ order, can sue defendant hospital personnel for intentional infliction of emotional distress, a Richmond U.S. District Court says.
Sanford, Adm’r v. Commonwealth (VLW 009-3-427) (11 pp.)

Employer Liability for Motel-Room Damage?

A Danville U.S. District Court says a jury must decide if a restaurant has respondeat superior liability under Virginia law for damage to a motel allegedly caused by a trash-can fire in a manager-trainee’s room.
Rivert Group LLC v. Chelda Inc. (VLW 009-3-534) (12 pp.)

No Expert Opinion on ‘Somatoform’ Disorder

In a Wal-Mart customer’s suit alleging injury from a commercial car lift descending on her foot, a Richmond U.S. District Court says defense medical experts’ opinions on whether plaintiff has a somatoform disorder would be an improper comment on plaintiff’s veracity.
Kidd v. Wal-Mart Stores Inc. (VLW 009-3-612) (6 pp.)

PRODUCTS LIABILITY

Apartment Sprinkler Heads – Statute Of Repose

In a case of apparent first impression, a Prince William Circuit Court says that apartment complex sprinkler heads are “ordinary building materials” under Virginia’s statute of repose, and a lawsuit after an apartment fire is barred.
Royal Indemnity Co. v. SimplexGrinnell LP (Prince William County Cir.Ct.) (VLW 009-8-038) (8 pp.)

Ladder Expert Flunks ‘Daubert’ Test

A civil engineer/engineering professor falls short of the Daubert standard in his tests on the “Little Giant” ladder, and an Alexandria U.S. District Court excludes plaintiff’s expert evidence and grants summary judgment to the manufacturer.
Holmes v. Wing Enterprises Inc. (VLW 009-3-352) (17 pp)

REAL ESTATE

Foreclosure – Power Of Attorney

Although wife claims that prior to their divorce, she revoked the power of attorney given to her husband, who used the power of attorney to take out two loans from defendant bank secured by wife’s real estate, under Va. Code § 11-9.2(b) wife cannot halt the bank’s foreclosure on her real estate, a Roanoke U.S. District Court holds.
Taneeb v. Branch Banking & Trust Co. (USDC-WD) (VLW 009-3-008) (7 pp.)

Contract – Fraud – Warranty Of Title

A defendant in this suit by plaintiff Bear Ridge Developers alleging it was deprived of 875 square feet of its commercial condominium due to improper placement of a wall between two condo units, may sue the third-party defendant bank for breach of a warranty of title in a sales agreement, a Fairfax Circuit Court says.
Bear Ridge Developers LLC v. Cooper (Fairfax Cir.Ct.) (VLW 009-8-005) (7 pp.)

Ejectment – ‘Side-Switching’ Rule

The Supreme Court holds that in this dispute over a parcel of land in Alleghany County, the trial court did not err in submitting the issue of ownership of the disputed property to the jury, did not err in allowing certain testimony by a surveyor, or in disqualifying appellant’s expert based on the expert disqualification doctrine adopted in Turner v. Thiel.
Kitt v. Crosby (Va.S.Ct.) (VLW 009-6-026) (16 pp.)

Claim Against Surety Survives CRESPA

A title insurance company that had to pay a claim to a refi-lender who lost money after an agent of the title insurer diverted loan payoff funds and the property went through foreclosure, can sue its surety for breach of contract, an Alexandria U.S. District Court says.
First American Title Ins. Co. v. Western Surety Co. (VLW 009-3-310) (7 pp.)

Condo Parking Spaces Conveyed

A Fairfax Circuit Court grants a condo buyer’s motion to quiet title to two parking spaces conveyed pursuant to the parties’ 2008 purchase agreement, in this case of first impression in Virginia, and denies defendant condo owners’ motion for sanctions.
Shehadeh v. Fountain at McLean Condo. Unit Owners Ass’n (VLW 009-8-140) (7 pp.)

Table Applied to Cap Lawyer Fees

In awarding fees in a commercial lease case, an Alexandria U.S. District Court applies a fee table from a 2008 4th Circuit case and caps an associate’s fees at $200, not $265, per hour, and awards a total of $31,058 in fees.
Capital Hospice v. Global One Lending LLC (VLW 009-3-390) (9 pp.)

Broker Loses Commission on Lease

A real estate agency that “ceased its attempts” to lease an office building was not a “procuring cause” for the lease that finally happened, and an Alexandria U.S. District Court denies the agency’s claim for commissions, based on breach of contract, procuring cause and quantum meruit.
Grubb & Ellis Co. v. Potomac Medical Building LLC (VLW 009-3-484) (38 pp.)

No Wine Retail Sales Under Covenant

Homeowners who operate a small winery in a subdivision cannot conduct retail wine sales under the subdivision’s restrictive covenants, says a Fauquier County Circuit Court.
Bellevue Landowners’ Council Inc. v. Marterella (VLW 009-8-207) (7 pp.)

Eminent Domain Includes Property Not ‘Blighted’

A Roanoke City Circuit Court overrules B&B Holdings’ objection to a taking of its property under the Roanoke Redevelopment & Housing Authority’s power of eminent domain for Carilion Health System’s proposed biomedical operation, despite the fact that B&B’s own property is not blighted.
City of Roanoke Redevelopment & Housing Authority v. B&B Holdings LLC (Roanoke City Cir.Ct.) (VLW 009-8-231) (9 pp.)

Quantum Meruit Claim for Rent

A Norfolk Circuit judge says the city states claims for implied contract and quantum meruit against the occupant of an arcade, whose owner assigned its rent payments to the city, on allegations that the occupant discussed paying rent, continued to occupy the premises and made an unspecified number of rent payments to the city.
City of Norfolk v. Muladhara LLC (VLW 009-8-215) (6 pp.)

Debtor Owes Dues on Foreclosed Home

A Fairfax homeowners’ association wins its suit for dues on defendant’s former home, accrued after he petitioned for chapter 7 bankruptcy relief but before the home was sold by foreclosure at public auction, during which time he owned the home but neither rented it out nor lived in it.
Brambleton Cmty. Ass’n v. Than (VLW 009-8-247) (5 pp.)

‘Reasonable Use’ for Easement Could Cover Dock

Although defendant property owners may have an easement to dig a canal, current environmental regulations would not allow a canal, but a Fairfax Circuit Court says the rule of “use for all reasonable purposes” of the right-of-way would allow construction of a dock to provide the owners with access to water.
Wessynton Homes Ass’n Inc. v. Burke (VLW 009-8-245) (7 pp.)

Home Buyers Sue for Partial Disclosure of Radon Results

Home buyers can sue their real estate agent, who had a dual agency representing both buyers and seller, for allegedly disclosing radon testing results only for the first level of the home, and not the high levels for the basement; a Roanoke City Circuit Court says the buyers’ claim for fraudulent inducement allows them to ask for punitive damages.
Nathan v. Long & Foster Real Estate Inc. (VLW 009-8-237) (7 pp.)

SEARCH & SEIZURE

Drug Dog Alert – Probable Cause – Standards

In a case of first impression, the Supreme Court of Virginia says a trial court did not err in admitting evidence of a drug dog’s alert as establishing probable cause based on evidence of the dog’s training and experience, even though the police department did not conduct “back checks” to quantify the dog’s number of correct alerts in the field.
Jones v. Commonwealth (Va.S.Ct.) (VLW 009-6-011) (17 pp.)

Auto Search – Shopping Center – High-Crime Area

Police did not have reasonable suspicion to think that defendant and a companion could be preparing to rob a gas station at a shopping center where police had increased their presence due to recent robberies and break-ins, and their stop of defendant’s vehicle violated his Fourth Amendment rights, the Supreme Court says, reversing defendant’s conviction for possession of marijuana with intent to distribute.
Rudolph v. Commonwealth (Va.S.Ct.) (VLW 009-6-039) (18 pp.)

Tossed Keys Not ‘Consent’

A defendant who told an officer he could search the car trunk, then tossed his car keys to the officer and left the door open as he exited the vehicle, did not consent to search of the car interior, the 4th Circuit says, reversing a weapons conviction.
U.S. v. Neely (USCA) (VLW 009-2-084) (10 pp.)

‘Casual’ License Inquiry Questioned

A police officer who observed defendant buckle his seat belt after seeing the officer, which the officer said drivers typically did not bother to do after spotting an officer, and who pulled into a convenience store lot after defendant, and asked, as defendant walked away from his car, if defendant had a driver’s license, did not have a reasonable suspicion to detain defendant, and a Roanoke City Circuit Court suppresses evidence that defendant was driving despite being an habitual offender.
Commonwealth v. Fuller (Roanoke City Cir.Ct.) (VLW 009-8-092) (4 pp.)

Vague Affidavit Cannot Support Warrant

An affidavit saying a woman had seen her boyfriend “with other stolen property” lacked detail about when and what, and a Norfolk Circuit Court suppresses the evidence seized from defendant’s home.
Commonwealth v. Fuller (VLW 009-8-130) (7 pp.)

Car Search in Impound Lot Upheld

Nice try, but no cigar, said an Alexandria U.S. District Court to a defendant who argued that Arizona v. Gant’s reasoning applied to undermine application of the automobile exception to a search that yielded a gun.
U.S. v. Arriaza (VLW 009-3-387) (16 pp.)

Vague Affidavit Cannot Support Warrant

An affidavit saying a woman had seen her boyfriend “with other stolen property” lacked detail about when and what, and a Norfolk Circuit Court suppresses the evidence seized from defendant’s home.
Commonwealth v. Fuller (VLW 009-8-130) (7 pp.)

Stop OK for No Turn Signal

After a look at unpublished 4th Circuit cases, a Norfolk U.S. District Court upholds a traffic stop for failure to use a turn signal – a possible violation of Virginia state law.
U.S. v. Brown (VLW 009-3-566) (6 pp.)

Isn’t it Ironic?

It’s not exactly a free ride when you’ve already paid, but the 4th Circuit says it’s “ironic” that a defendant shot during a home invasion is arrested for having a gun, while his attackers escape; the panel reverses an order suppressing the gun.
U.S. v. Coleman (VLW 009-2-180) (10 pp.)

SECURITIES

Liability For E-Mail Stock Tip

An investment newsletter publisher must disgorge profits from an e-mail stock tip “Blast” that misrepresented that the stock tip came from an industry insider; the 4th Circuit rejects the First Amendment claim advanced by amici powerhouse publishers.
U.S. SEC v. Pirate Investor LLC (VLW 009-2-155) (38 pp.)

TORT

Defamation – Job Evaluation – Fact/Opinion

An executive can try her claim that her employer defamed her in statements in a job evaluation that her role in a contract loss “created significant gaps … in her business unit financial performance,” and that her team was “significantly off plan on all other financial targets,” and the Supreme Court of Virginia reverses summary judgment for the employer.
Hyland v. Raytheon Technical Services Inc. (Va.S.Ct.) (VLW 009-6-014) (13 pp.)

Tortious Interference – Intent – Consultant – Insurance Claim

A law firm that allegedly, during its representation of an insurance carrier, disclosed information to a party to a contract with the insurance claimant, that purportedly caused the party to break that contract which eliminated the insurance claim, cannot be liable for tortious interference with contract to a third party that had a separate contract with the insurance claimant, the Supreme Court of Virginia holds; the high court reverses the trial court order overruling the law firm’s demurrer and enters final judgment for the firm.
DurretteBradshaw PC v. M.C. Consulting LC (Va.S.Ct.) (VLW 009-6-003) (10 pp.)

Defamation – Sewer Line Protest

An advocate for a sewer line district in Chesterfield County cannot sue other county residents for defamation for their statements in letters objecting to the proposal that plaintiff advocate was employed by “developers,” sought to “ram an unwanted and unneeded sewer line down our throats,” plaintiff did not “give a rat’s tail about any of us,” and the plan “reeks of extortion,” and a Chesterfield County Circuit Court dismisses plaintiff’s suit.
Habeck v. Cosby (Chesterfield County Cir.Ct.) (VLW 009-8-020) (6 pp.)

Privacy Invasion – SCA Damages

A woman whose boss accessed her personal e-mail account must show actual damages to collect statutory damages under a federal privacy statute, but not to collect punitive damages or attorney’s fees, the 4th Circuit says.
Van Alstyne v. Electronic Scriptorium Ltd. (USCA) (VLW 009-2-061) (18 pp.)

Government Contract – Language Services

An Alexandria U.S. District Court says plaintiff company that worked with defendant company to locate and process persons with foreign-language skills for the federal government, can sue the defendant for breach of contract, quantum meruit, tortious interference with business expectancy, violation of Virginia’s trade secrets statute, defamation and violations of state and federal computer crimes statutes.
Ford v. Torres (USDC-ED) (VLW 009-3-138) (29 pp.)

Defamation – P.I. Appeal – Appeal Filing

A Richmond Circuit Court dismisses a defamation case, filed by a lawyer who tried a personal injury suit for defendant Wintergreen Resort, against two lawyers who handled the appeal, which was dismissed by the Supreme Court of Virginia for failure to timely file a transcript.
Spencer v. Getchell (Richmond Cir.Ct.) (VLW 009-8-043) (5 pp.)

Defamation – Public Official – Navy PR Officer

A Norfolk Circuit Court holds that plaintiff, a Navy lieutenant commander and public affairs officer for an aircraft carrier, is a “public official” who must show actual malice to sue The Virginian-Pilot for defamation based on an editorial that cited plaintiff’s anti-Semitic views and activities.
Sharpe v. Landmark Communications Inc. (Norfolk Cir.Ct.) (VLW 009-8-082) (18 pp.)

Charitable Immunity – Disabled Adult Daycare – Broken Leg

A Prince William County Circuit Court says a non-stock corporation organized to provide care for mentally retarded and disabled persons has charitable immunity from a negligence action filed by a 25-year old mentally retarded client with cerebral palsy, who suffered a broken femur while in the care of defendant’s staff.
Jimemez v. Didlake Inc. (Prince William County Cir.Ct.) (VLW 009-8-083) (5 pp.)

No Defamation for ‘Self-Publication’

Virginia has not recognized “self-publication,” and a Richmond U.S. District Court says a former bank employee cannot sue the bank for saying she had “abandoned her job” and taken unauthorized paid time off.
Wynn v. Wachovia Bank N.A. (USDC – ED) (VLW 009-3-255) (9 pp.)

Government Not Liable for Stability Test

The government’s certification of a double-pontoon vessel to carry 25 persons does not mean Federal Tort Claims Act liability for passenger deaths after the vessel capsized, as the government’s “stability proof tests” come under the discretionary function exception federal tort liability.
Indemnity Insurance Co. of North America v. U.S. (VLW 009-2-115) (11 pp.)

Telecom Company Can Sue for Business Conspiracy

A contract’s limitation-of-liability clause will not protect a Virginia telecom company from a New Jersey company’s business conspiracy suit, as a Roanoke U.S. District Court predicts how the Supreme Court of Virginia would handle the clause.
All Business Solutions Inc. v. NationsLine Inc. (VLW 009-3-370) (16 pp.)

Government Contractors Wage David-Goliath Battle

A small government contractor that derailed a $165 million computer contract with its “size protest” against a competitor’s bid can respond to the competitor’s trade secret suit and alleged action to “crucify” and “punish” the small contractor with counterclaims for business conspiracy; an Alexandria U.S. District Court says the bid-protest context does not preclude state-law tort claims.
GTSI Corp. v. Wildflower Int’l Inc. (VLW 009-3-405) (24 pp.)

Manager Has Defamation Claim

A national accounts manager for an online credit screener of car-buyer leads can’t sue his former employer for defamation for an alleged command to “blame it on Craig” when dealers complained about bad leads, but he can claim defamation for additional alleged statements blaming him and criticizing his job performance, a Richmond Circuit Court says.
Smith v. Interactive Financial Marketing Group LLC (VLW 009-8-167) (13 pp.)

Defamation Damage Award Reduced

A lawyer maligned by a writer can collect compensatory and punitive damages for per se defamation, but a Richmond U.S. District Court reduces the award against the pro se defendant from $236,000 to $53,000.
Cretella v. Kuzminski (009-3-432) (56 pp.)

No Defamation Claim Against ‘Moose’

A former lodge administrator cannot sue lodge officials for defamation based on statements in letters, e-mail, and at board and staff meetings about the administrator’s dismissal after an audit report indicated $122,017 in missing funds; the Hanover Circuit Court says the administrator has not overcome defendants’ qualified privilege.
Koegler v. Green (VLW 009-8-184) (7 pp.)

No Tortious Interference Claim for IT Contractor

An Alexandria U.S. District Court says a government IT contractor cannot sue a competitor for tortious interference, because the purchase orders in the case were at-will and carried no non-solicitation clause.
Skillstorm Inc. v. Electronic Data Systems LLC (VLW 009-3-560) (22 pp.)

Arbitration Not Compelled Under Contract

A Chesapeake nursing home cannot compel arbitration of a comatose patient’s claim that she was sexually molested by a staff member, a Norfolk Circuit judge says.
Gibson v. Medical Facilities of America Inc. (VLW 009-8-228) (12 pp.)

Civil ‘Aiding & Abetting’ Claim Allowed

A plaintiff who was shot in the eye with a BB gun can sue the alleged shooter’s companions for civil aiding and abetting and conspiracy, based on allegations that the companions, the owner and the driver of the vehicle in which the shooter was riding, encouraged and incited the shooter through words and gestures, says a Lancaster County Circuit Court.
Selph v. Elbourn (VLW 009-8-240) (4 pp.)

TRAFFIC OFFENSES

Implied Consent Statute – Voluntary Test

A defendant who appeared intoxicated at a single-vehicle accident on a private road, who volunteered to take a breathalyzer test, loses his appeal arguing that the certificate of analysis was inadmissible under Va. Code § 18.2-268.2(A).
Roseborough v. Commonwealth (Va.Ct.App.) (VLW 009-7-079) (25 pp.)

DUI Third Offense – Prior Conviction – Unsigned Order

At defendant’s trial for driving under the influence, third offense, the trial court could not prove a prior offense with a purported order from a general district court that was never endorsed by a judge, and the Supreme Court reverses judgment upholding defendant’s conviction and remands for trial on the lesser-included misdemeanor charge.
Mwangi v. Commonwealth (Va.S.Ct.) (VLW 009-6-025) (4 pp.)

DUI – Witness Subpoena – Nolle Prosequi

A Charlottesville Circuit Court denies a prosecutor’s request for reconsideration of its denial of a continuance in this DUI prosecution because the commonwealth inadvertently failed to subpoena the arresting officer to appear at the suppression hearing, but the court grants a motion to nolle prosequi the case.
Commonwealth v. Romberger (Charlottesville Cir.Ct.) (VLW 009-8-085) (2 pp.)

DUI – Unconsciousness Defense

A defendant’s convictions of DWI and maiming are affirmed by the Virginia Supreme Court; despite evidence suggesting the defendant was “sleepwalking” when he caused the accident, the trial court never made a factual finding of sleepwalking.
Riley v. Commonwealth (Va.S.Ct.) (VLW 009-6-041) (27 pp.)

No Restitution For Juvenile Driver

A juvenile convicted of improper driving cannot be ordered to pay restitution to cover the medical expenses of his seriously injured passenger, a Brunswick County Circuit Court holds.
Commonwealth v. Warwick (VLW 009-8-118) (3 pp.)

No New Trial on Uncharged Offense

A defendant charged in GDC with improper lane change, but convicted of a different offense without issuance of a new warrant, has the circuit court charges for the convicted offense, failure to give full time and attention to operation of his vehicle, dismissed by the Fairfax Circuit Court.
Commonwealth v. Dipietro (Fairfax Cir.Ct.) (VLW 009-8-101) (6 pp.)

No Restitution For Juvenile Driver

A juvenile convicted of improper driving cannot be ordered to pay restitution to cover the medical expenses of his seriously injured passenger, a Brunswick County Circuit Court holds.
Commonwealth v. Warwick (VLW 009-8-118) (3 pp.)

Bifurcated Trial ‘Notice’ DNA in Traffic Court

Virginia’s bifurcated trial statute did not require prosecutors to provide advance notice of intent to use a DUI defendant’s DMV record at sentencing; the Court of Appeals says a traffic statute controls instead.
Ngomondjami v. Commonwealth (VLW 009-7-275) (10 pp.)

Improper Driving Not Included

Improper driving is not a lesser-included offense of reckless driving by speed, the Court of Appeals says in upholding a traffic conviction.
Chibikom v. Commonwealth (VLW 009-7-327) (5 pp.)

‘Chemical Contaminants’ Claim Nixed in DUI

A DUI defendant cannot blame her .27 BAC on chemical contaminants from her spackling, painting and using paint remover, or to deployment of her airbag, and the Court of Appeals affirms her conviction.
Newman v. Commonwealth (VLW 009-7-339(UP)) (13 pp.)

UNEMPLOYMENT COMP

Loyalty – Vendor Price List

A former receptionist for a marble company wins unemployment comp, even though employers claims he fired her for disloyalty after she sent competitors a price list from a vendor employer did not use, in this case from Prince George Circuit Court.
Brockwell v. Bowman (Prince George Cir.Ct.) (VLW 009-8-086) (4 pp.)

WILLS & TRUSTS

Marital Home Mortgage – Joint Tenancy – Second Wife

In a case of apparent first impression, a Fairfax Circuit Court holds an estate is not liable for a debt underlying a deed of trust entered into solely by decedent and secured by real property decedent and his surviving second wife held as tenants in the entirety with right of survivorship.
Estate of Cornelius A. Dolby (Fairfax Cir.Ct.) (VLW 009-8-002) (6 pp.)

Heirs – Adopted Child – Choice Of Law

A decedent’s biological daughter, adopted in Pennsylvania at age two by her stepfather, can inherit from decedent, who died intestate, a share of his personal property and of real property he owned in Virginia at the time of his death, a Prince William Circuit Court says.
In re Estate of Dennis Freeland Edwards (Prince William Cir.Ct.) (VLW 009-8-016) (7 pp.)

Power Of Attorney – Real Estate Conveyance – Fiduciary Duty

A Fauquier County Circuit Court refuses to enforce a woman’s conveyance of property into a trust under a durable power of attorney granted by the woman’s husband, as no specific language in the DPOA authorized wife to set up an estate plan for husband containing a trust benefiting wife.
Mountjoy v. Smith (Fauquier County Cir.Ct.) (VLW 009-8-058) (4 pp.)

Trustee Gets Proceeds for Condemned Property

Under a trust instrument that only allowed sale of trust real estate if condemned, a Newport News Circuit Court says the trustee may received the $1.65M condemnation sale proceeds once she has complied with trust reporting requirements.
Forbes, Trustee v. Riverside Healthcare Ass’n Inc. (VLW 009-8-186) (4 pp.)

Suit Says Too Much Bank Stock in Trust Fund

A trust remainderman can sue Wachovia Bank for breach of fiduciary duty for allegedly leaving a large portion of the trust assets in the bank’s stock and for making improper distributions, a Richmond U.S. District Court says.
W.A.K. II, a Minor v. Wachovia Bank N.A. (VLW 009-3-597) (11 pp.)

WORKER’S COMP

Claim Settlement – Lawyer Fraud

A workers’ comp claimant whose lawyer absconded with her $32,000 settlement proceeds is not barred by laches from obtaining payment from the carrier, a deputy commissioner says.
Howard v. American Service Contractors (Workers’ Comp. Comm’n) (VLW 009-10-01) (6 pp.)

‘Sham Green-Card’ Widow Wins Comp Claim

Although employer says the deceased employee and his wife were in an illegal “sham green-card marriage,” the Court of Appeals disagrees that the marriage was “against public policy” and affirms the award of benefits.
Marblex Design Int’l Inc. v. Stevens (VLW 009-7-277) (9 pp.)

Late Job Search Not Good Enough

A firefighter/EMT captain who waited 10 months before looking for work, and then took a part-time job at much lower pay has his workers’ comp award reversed by the Virginia Court of Appeals.
County of James City Fire Dep’t v. Smith (VLW 009-7-332) (8 pp.)

No Comp for ‘Horseplay’

A restaurant employee who dislocated his shoulder and needed surgery when he threw up his arm to block ice being thrown by idle coworkers cannot collect workers’ comp because his injury did not arise out of his employment, the Court of Appeals says.
Simms v. Ruby Tuesdays Inc. (VLW 009-7-316) (8 pp.)

Volunteer Weed Puller Can Sue for Injury

A volunteer who was injured during the Norfolk Botanical Garden’s “Pull & Plant Day” can sue the Garden for negligence; her suit is not barred by charitable immunity or the workers’ comp bar, says a Norfolk Circuit Court.
Harris v. Norfolk Botanical Garden Society (VLW 009-8-196) (10 pp.)

Death Claim for No-Dependent Decedent

Because an employee killed in an auto accident had no dependents, the workers’ comp bar does not apply and his estate can sue the employer for negligent hiring of a coworker-driver, a Fairfax Circuit Court says in this case of first impression.
Skopic v. Tate (VLW 009-8-253) (10 pp.)

ZONING

Airport Safety Zone – Avigation Easement

In a case of first impression, the Supreme Court of Virginia holds that an avigation easement on property already subject to preexisting restrictions on development imposed by an airport safety overlay zone in a local zoning ordinance, constitutes a taking only to the extent that it created a right in the Virginia Highlands Airport Authority to remove certain grandfathered obstructions situated on the property of an auto parts business that penetrated the existing approach for incoming and outgoing aircraft; the high court reverses the trial court’s judgment entering the jury verdict and remands for a new trial on damages resulting from the limited taking.
Virginia Highlands Airport Authority v. Singleton Auto Parts Inc. (Va.S.Ct.) (VLW 009-6-012) (17 pp.)

Special Use Permit – Acceptance Of Proffers – Zoning Ordinance Amendment

The Supreme Court says a developer who wanted to build an expected Wal-Mart store in Blacksburg will have to seek a special use permit, despite his argument that his rights to construct a large retail building became vested when he made proffers to obtain rezoning approval, and that a later change in the town’s subdivision ordinance to require a special use permit for such a large store violated those vested rights.
Hale v. Board of Zoning Appeals for the Town of Blacksburg (Va.S.Ct.) (VLW 009-6-028) (43 pp.)

No ‘Vested Rights’ Under Zoning Letter

A private security training firm cannot expand its training “school” on a $2.25 million parcel because a “zoning classification letter” did not give the firm “vested rights,” the Supreme Court of Virginia says in a case closely watched by local government lawyers.
Board of Supervisors of Stafford County v. Crucible Inc. (VLW 009-6-071) (12 pp.)

See the list of Important Opinions from 2008

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