Prenuptial Bars ED Award & Expense Repayment

No Restitution Payment with Tax Refund

By Deborah Elkins
Published: May 14, 2013
Tags: 4th U.S. Circuit Court of Appeals, Criminal, Judge William B. Traxler Jr.

A district court abused its discretion in adding as a special condition to defendant’s sentencing order an obligation to turn over any tax refund as part of her restitution for illegal receipt of social security payments, and the 4th Circuit vacates the order setting the special condition. In the Victim and Witness Protection Act of [...]

Lien-Stripping Approved in Chapter 20 Cases

By Deborah Elkins
Published: May 14, 2013
Tags: 4th U.S. Circuit Court of Appeals, Bankruptcy, Judge Albert Diaz

In a “Chapter 20” bankruptcy case – a Chapter 13 bankruptcy filed within four years of a Chapter 7 discharge – there is no per se rule barring lien-stripping, and the 4th Circuit affirms an order stripping off liens secured by collateral with no value to support them in this suit involving debtors’ residences. The [...]

Court Sets Test for Prior ‘Written Demand’

By Deborah Elkins
Published: May 14, 2013
Tags: Corporate, Judge John R. Doyle III, Norfolk Circuit Court, Virginia Circuit Courts

Looking to case law on a similar corporate statute in North Carolina, a Norfolk Circuit Court sets a multi-part test for a minority shareholder’s “written demands” to a corporation required before filing a derivative action, and finds plaintiff met the test for all his claims except his claim that defendants usurped corporate opportunities by developing [...]

No Collateral Estoppel on Firearm Charge

By Deborah Elkins
Published: May 10, 2013
Tags: Criminal, Judge Charles E. Poston, Norfolk Circuit Court, Virginia Circuit Courts

In defendant’s prosecution on firearm possession charges, the Norfolk Circuit Court denies defendant’s motions to estop the commonwealth from subsequent prosecution or from introducing evidence previously adjudicated during the trial in which defendant was acquitted of murder and use of a firearm charges arising from the same incident. On Oct. 26, 2012, a jury acquitted [...]

Plaintiff May Amend for ‘Gross Negligence’

By Deborah Elkins
Published: May 10, 2013
Tags: Judge Junius P. Fulton III, Negligence, Norfolk Circuit Court, Virginia Circuit Courts

In litigation arising from an officer’s automobile collision with another vehicle, the Norfolk Circuit Court will allow plaintiff to amend the complaint to allege gross negligence. Gross negligence means something more than lack of ordinary care. The court defines gross negligence as a degree of negligence which shows an utter disregard of prudence amounting to [...]

No Drywall Damages for Mortgage Payments

By Deborah Elkins
Published: May 10, 2013
Tags: Judge Mary Jane Hall, Norfolk Circuit Court, Real Estate, Virginia Circuit Courts

A Norfolk Circuit Court grants defendants’ motion in limine to exclude evidence of mortgage payments on homes that were unlivable as a result of the presence of Chinese drywall, as mortgage payments are not a proper measure of loss of use damages. Defendant claims this element of damages was not disclosed in discovery responses provide [...]

Missed Diagnosis Claim Not ‘Gross Negligence’

By Deborah Elkins
Published: May 10, 2013
Tags: Judge Mary Jane Hall, Medical Malpractice, Norfolk Circuit Court, Virginia Circuit Courts

A Norfolk Circuit Court sustains a demurrer to a gross negligence claim filed by the estate of a woman who allegedly died as a result of the defendant resident physician’s failure to diagnose the woman’s ectopic pregnancy; the Norfolk Circuit Court sustains defendant physician’s demurrer to the gross negligence claim, but overrules the special plea [...]

Sidewalk Fall Compensable

By Deborah Elkins
Published: May 9, 2013
Tags: Judge Randolph A. Beales, Virginia Court of Appeals, Workers' Comp

The Court of Appeals affirms the commission decision holding compensable employee’s fall on an icy sidewalk outside the main entrance to her employer’s building: the commission correctly applied the extended premises doctrine. Nurse worked for employer over 15 years. One day in January, she fell on ice on a sidewalk outside the entrance to her [...]

Mom’s Reheard Custody Appeal Fails

By Deborah Elkins
Published: May 9, 2013
Tags: Domestic Relations, Per Curiam Opinion, Virginia Court of Appeals

In a prior decision (Anderson v. Anderson VLW 013-7-075(UP)), the Court of Appeals found mother’s arguments procedurally defaulted and summarily affirmed the trial court awarding custody of minor child to father after he moved to another county; on rehearing, the Court of Appeals summarily affirms again – mother’s due process rights were not violated; she [...]