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 by practice area, of the most Important Opinions of 2013, January to June. 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 click here.
No FOIA Docs for Contractor Being Sued
Documents provided to the federal government by a military housing contractor to obtain approval to terminate the contractor’s partnership with another company and sue it for alleged fraud are not discoverable by the defendant company through a FOIA request, and the 4th Circuit says the government may withhold the confidential documents.
American Mgmt. Services LLC v. Dep’t of the Army (VLW 013-2-006) (18 pp.)
Lawyer Was ‘Incompetent,’ Not ‘Frivolous’
An assistant prosecutor was incompetent, in violation of Rule 1.1, in charging a defendant with illegal possession of a pain-killer drug even though defendant had purchased only fake medication in a police sting; but the Supreme Court of Virginia says the prosecutor did not violate Rule 3.1 regarding assertion of frivolous claims or Rule 3.8(a), which addresses additional responsibilities of a prosecutor.
Livingston v. Virginia State Bar (VLW 013-6-051) (20 pp.)
Lien-Stripping Approved in Chapter 20 Cases
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 over debtors’ homes.
Branigan v. TD Bank NA (VLW 013-2-097) (20 pp.)
No Proofs of Claim for HOA Members
In this bankruptcy proceeding by debtor homeowners’ association, the bankruptcy court erred in allowing proofs of claim filed by HOA members who say they suffered damages when they reasonably relied on false representations about allocation of parking spaces to townhomes without garages; the Alexandria U.S. District Court reverses judgment for the appellee-creditors, who failed to prove their claims of constructive fraud.
Batt v. Manchester Oaks Homeowners Ass’n Inc. (VLW 013-3-148) (10 pp.)
Purchase Loan Was Nondischargeable
A Lynchburg U.S. District Court reverses a bankruptcy court’s denial of a creditor’s motion to have a debt declared nondischargeable; the bankruptcy court erred in its factual findings, and the district court concludes the creditor has proven fraudulent misrepresentations that render the debt nondischargeable.
Johnson v. Dowling (VLW 013-3-123) (13 pp.)
Venue Transfer in Richmond P.l. Case
In this auto-accident personal injury suit, although defendant lawyer serving as administrator of a deceased driver’s estate has an office in the city of Richmond, venue is not proper in Richmond, and the Richmond Circuit Court orders the suit to be transferred either to Powhatan County, where the accident occurred, or to Chesterfield County, where the lawyer qualified as administrator of the estate.
Jones v. Stokes (VLW 013-8-030) (3 pp.)
Driver, Passenger P.I. Suits Severed
In this p.i. case, a Richmond Circuit Court severs plaintiff mother’s case from plaintiff son’s case, as mother has an extensive medical history that may distract from passenger son’s case.
Smith v. Wright (VLW 013-8-040) (2 pp.)
No Sanctions Against Corporate Debtor
A Danville U.S. District Court Magistrate Judge denies plaintiff’s motion for sanctions against defendant for its responses to plaintiff’s debtor’s interrogatories proffered in an attempt to collect a judgment; plaintiff has not complied with Virginia procedure for execution of a judgment and the court declines to impose sanctions against defendant’s corporate officers, its counsel, or its bookkeeper, who answered all deposition questions except those defense counsel instructed her not to answer.
Virginia Brands LLC v. Kingston Tobacco Co. (VLW 013-3-155) (15 pp.)
Company May Claw Back Emails in Patent Case
In this discovery dispute in patent litigation involving software used to facilitate distance learning, a Norfolk U.S. District Court Magistrate Judge says plaintiff company did not waive attorney-client privilege when it shared certain email communications with a former board member who was the “functional equivalent” of a current board member, and plaintiff may claw back those email communications.
Digital Vending Services Int’l Inc. v. The University of Phoenix (VLW 013-3-184) (18 pp.)
Default Set Aside After Carrier’s Delayed Response
In plaintiff’s suit alleging injuries from defendant’s tractor-trailer crashing into her from behind as she veered into a median to avoid roadway debris, a Harrisonburg U.S. District Court will set aside default entered against defendant box company, who was unaware of foot-dragging by its own insurance carrier.
Parks v. Discount Box and Pallet Inc. (VLW 013-3-124) (16 pp.)
Extra Time for Service After Removal
A Roanoke U.S. District Court quashes service of process in this slip-and-fall case, but says plaintiff may amend her complaint to correct defendant’s name, and she has additional time to serve her complaint because defendant removed the case from state to federal court.
Dietz v. McAdams-Norman Property II LLC (VLW 013-3-032) (11 pp.)
ESI Discovery Response Not ‘Readily Usable’
A defendant who produced ESI – mostly emails – without providing an index or ordering the documents as responsive to specific requests for production, is ordered to pay reasonable costs up to $8,463 for plaintiff to use its own software to convert the documents into a format it can use, in this decision by the Lynchburg U.S. District Court Magistrate Judge.
Hanwha Azdel Inc. v. C&D Zodiac Inc. (VLW 012-3-648) (5 pp.)
Work Product Privilege Protects Draft Docs
In ePlus’ suit against Lawson Software Inc. alleging their illegal sale of certain product configurations within the U.S., the Richmond U.S. District Court grants in part ePlus’ motion to compel production of documents, including holding, on a matter of first impression, that certain draft documents, although prepared for public consumption, nonetheless are protected by the work product doctrine, presuming they are claimed as such and are in fact prepared in anticipation of litigation.
ePlus Inc. v. Lawson Software Inc. (VLW 012-3-623) (21 pp.)
‘Profitability’ Defense Experts Excluded
An expert on a t-shirt company’s profits cannot just “parrot his client’s findings or calculations” and then pass that data off as his own expert opinion, and a Charlottesville U.S. District Court excludes his expert opinion.
Capital Concepts Inc. v. The Mountain Corp. (VLW 013-3-152) (21 pp.)
Plaintiff Can’t Compel Unredacted Document
A company being sued for federal trade dress infringement and unfair competition under the Lanham Act did not forfeit its attorney-client protection for a “strategic memorandum” that was not drafted by a lawyer, was shared on a “need to know” basis and was mistakenly disclosed to plaintiff, and the Roanoke U.S. District Court Magistrate Judge will not order defendant to produce an unredacted version of the document to plaintiff.
McAirlaids Inc. v. Kimberly-Clark Corp. (VLW 013-3-268) (12 pp.)
Security Guard Negligence Claim Remanded
A Kroger customer who alleges she was injured when a security guard tried to apprehend a suspected shoplifter who shoved plaintiff into a metal sign may have a claim against the security guard, and because the security guard and plaintiff are both Virginia residents, the Richmond U.S. District Court has no diversity jurisdiction in the matter and remands the case back to Virginia state court.
Pate v. Kroger LP I (VLW 013-3-270) (3 pp.)
Winning Party’s ESI Cost Recovery Limited
In a wine wholesaler’s unfair practices lawsuit against Gallo Winery, the 4th Circuit clarifies which ESI expenses are taxable under the federal taxation-of-costs statute, and upholds a district court decision refusing to award costs for a broad array of ESI-related costs and awarding the winning winery only $218.59 for TIFF and PDF production of documents, of the $111,047.75 in ESI costs claimed by Gallo.
The Country Vintner of North Carolina LLC v. E.&J. Gallo Winery Inc. (VLW 013-2-087) (24 pp.)
No Qualified Immunity for Repeated Taser Use
A police officer who repeatedly used a taser on a man after he stopped resisting arrest does not have qualified immunity in this civil rights suit filed by the estate of the man, who died after the incident; the 4th Circuit upholds qualified immunity for two officers who entered the Baltimore County home, but reverses the district court’s decision finding the third officer had qualified immunity.
Meyers v. Baltimore County, Md. (VLW 013-2-026) (19 pp.)
No Aid for Private-School Student with ADHD
Although a student with ADHD qualifies for help under § 504 of the Rehabilitation Act of 1973, the Baltimore city school system does not have to extend that assistance to the student because he is enrolled in a private school, not a public school; the 4th Circuit affirms judgment for the school system.
D.L. v. Baltimore City Board of School Comm’rs (VLW 013-2-012) (13 pp.)
Homeowner’s ‘Screwed’ Sign Struck
A resident of Cary, N.C., loses his constitutional challenge to a local sign ordinance, cited by the town to demand removal of a sign painted on the resident’s house saying “Screwed by the Town of Cary”; the 4th Circuit reverses the district court and says the Cary sign ordinance is content neutral and passes constitutional scrutiny.
Brown v. Town of Cary (VLW 013-2-016) (21 pp.)
Loan Servicer Contacts Violated FDCPA
A loan servicing company that continued to contact a borrower seeking payment of a loan and refused to contact her lawyer, although she had settled her case, violated the Fair Debt Collection Practices Act and the Charlottesville U.S. District Court grants summary judgment to the borrower and will hear evidence on her damages.
Yarney v. Ocwen Loan Servicing LLC (VLW 013-3-125) (17 pp.)
Plaintiff’s ‘Willful’ FCRA Charge Survives
Defendant credit reporting agency cannot escape liability for a “willful” violation of the Fair Credit Reporting Act for its failure to identify one of three sources of information for its erroneous reporting of a debt that affected plaintiff’s government security clearance; the Richmond U.S. District Court denies defendant’s motion for partial summary judgment.
Dreher v. Experian Information Solutions Inc. (VLW 013-3-271) (15 pp.)
Lack of Job Offer Not FCRA Violation
A defendant government contractor for the Defense Intelligence Agency wins summary judgment in this suit filed by an applicant for a job as a DIA linguist who alleges the contractor violated the Fair Credit Reporting Act when it did not hire him after he failed to provide a letter indicating his mortgage account was in good standing after a reported delinquency.
Javid v. SOS Int’l Inc. (VLW 013-3-274) (12 pp.)
Former Tech CEO Keeps $5.3M Award
The Supreme Court of Virginia upholds a $5.3 million jury award to the former CEO of a technology firm on his claims for breach of contract and unjust enrichment after he was moved aside when a major shareholder sought greater control of the board of directors; the trial court did not err in admitting expert testimony on plaintiff’s damages or in allowing post-verdict amendment of the CEO’s claim for $2.1 million in attorney’s fees.
Online Resources Corp. v. Lawlor (VLW 013-6-006) (38 pp.)
Marketing Firm Not FINRA ‘Customer’
A company that valued and marketed certain bond funds purchased by plaintiff investors through a brokerage firm is not subject to FINRA arbitration proceedings, the 4th Circuit says, because the investors were not “customers” of the marketing company under the controlling FINRA rule; the district court order enjoining arbitration is affirmed.
Morgan Keegan & Co. v. Silverman (VLW 013-2-030) (11 pp.)
Economic Loss Rule No Bar to Fraud Claim
In this dispute over defendants’ follow-through on multi-million dollar contracts to buy plaintiff’s coal, a Roanoke U.S. District Court says plaintiff’s claim for fraudulent inducement is not barred by the economic loss rule, and plaintiff may sue both defendant company and its owner.
Southern Coal Sales Corp. v. Xcoal Energy & Resources (VLW 013-3-042) (13 pp.)
Email Arbitration Clause Enforceable Against Consumer
A Verizon customer who is suing over a $135 early-termination fee for his cancellation of his Internet service is subject to an arbitration clause embedded in an email, as the initial contract expressly stated that continued use of the service constituted consent to contract modifications; the Alexandria U.S. District Court also says Verizon’s Rule 68 offer of judgment does not moot plaintiff’s request for class certification to pursue a claim under the Virginia Consumer Protection Act.
Klein v. Verizon Communications Inc. (VLW 013-3-059) (23 pp.)
Carrier Wins Fees for Email Spoliation
In this multi-million dollar contract case over insurance coverage for mortgage loan losses, a Richmond U.S. District Court awarding attorney’s fees as a sanction for spoliation of evidence says out-of-town lawyers will not get an hourly fee higher than that claimed by Richmond-based lawyers working on the matter, the claimed hours will be reduced by 20 percent because of block billing and defective time-keeping and there was no need to bring in a team of consultants from Chicago to produce graphics to show in the Richmond courtroom; the judge turns down the petition for $3,848,879 in attorney’s fees and asks defendant to submit an amended fee petition.
SunTrust Mortgage Inc. v. AIG United Guaranty Corp. (VLW 013-3-114) (39 pp.)
Banking Practices ‘Bad Faith’ Claim Survives
Plaintiff company, who is suing defendant bank for refusing to honor a Debt Settlement Agreement settling $9 million in debts for $3 million, may sue for breach of the implied duty of good faith and fair dealing by acting in bad faith and against usual and prudent business and banking practices in determining that plaintiff’s financial statement contained a misrepresentation or omission which omitted a tenancy-by-the-entirety property; the Norfolk U.S. District denies the bank’s motion to dismiss.
Stoney Glen LLC v. Southern Bank & Trust Co. (VLW 013-3-223) (13 pp.)
Malpractice Suit Against Bankruptcy Lawyer Dismissed
A former client’s legal malpractice action against his bankruptcy lawyer is time-barred because the alleged act – persuading the client to sell his home to the lawyer, who later sold it at a profit – occurred after termination of the representation on July 7, 2005, and the Fauquier County Circuit Court dismisses the suit.
Bailey v. Donovan (VLW 013-8-056) (3 pp.)
Suit Over Telephone Number Advances
A federal court says Virginia law is unclear and federal courts are split on whether an individual or entity may own a specific telephone number and the court refuses to dismiss a car dealer’s suit.
Southeastern Wholesale Corp. v. Cox Communications Hampton Roads LLC (VLW 013-3-251) (21 pp.)
Remittitur Ordered for FCA Damages
A Charlottesville U.S. District Court says a post-doctoral fellow at U.Va.’s Department of Psychiatry & Neurobehavioral Sciences who sued under the False Claims Act and won a jury award of $159,915 in lost wages and $500,000 in compensatory damages, must accept a remittitur of the damage award to $100,000, or agree to a new trial.
Huang v. The Rector & Visitors of the University of Virginia (VLW 013-3-111) (25 pp.)
Investors Not ‘Customers’ for FINRA Arbitration
Investors who purchased allegedly fraudulent securities directly from a business on the recommendation of a lawyer who was working with a broker for a financial services company were not “customers” of the company entitled to FINRA arbitration; the 4th Circuit says that to compel arbitration in this case, in which the investors did not buy from the financial services company, would expand the scope of the arbitration agreement beyond what the text permits and the parties intended.
Raymond James Financial Services Inc. v. Cary (VLW 013-2-050) (12 pp.)
Court Sets Test for Prior ‘Written Demand’
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 a tapas restaurant in Portsmouth.
Williams v. Stevens (VLW 013-8-052) (8 pp.)
Expungement OK for Marijuana Charge Amended to ‘Reckless’
A woman may petition for expungement of a marijuana possession charge because that charge was “otherwise dismissed” under Va. Code § 19.2-392.2(A)(2) when the commonwealth amended the charge to reckless driving, and the Supreme Court of Virginia reverses and remands for an order of expungement under Code § 19.2-392.2(F).
Dressner v. Commonwealth (VLW 013-6-008) (14 pp.)
No Mandamus for Deferred Sentence
A chief deputy commonwealth’s attorney had standing to petition for mandamus to require a general district court judge to sentence a defendant who pleaded guilty to DUI within 21 days after its order, but the circuit court did not err in denying mandamus, the Virginia Supreme Court says.
Hon. Thomas J. Kelley Jr. v. Stamos (VLW 013-6-010) (25 pp.)
ID Testimony Was Plain Error, But Conviction Upheld
Although it was plain error for the trial court to allow the prosecutor’s suggestive line of questioning by asking a bank teller to identify similarities between the defendant and the person who robbed the bank 17 months earlier, the 4th Circuit affirms defendant’s bank robbery conviction because there was sufficient independent evidence to support his conviction.
U.S. v. Greene (VLW 013-2-003) (25 pp.)
Later Bad Act Comes In at Sentencing
At defendant’s sentencing on cocaine possession and driving after being declared a habitual offender, the court did not err in considering evidence of defendant’s participation in a cocaine sale three months after his guilty plea and prior to sentencing; the Court of Appeals says an officer’s testimony, including evidence from an informant, was sufficiently reliable under the applicable due process standard.
Blunt v. Commonwealth (VLW 013-7-118) (12 pp.)
‘Automobile’ Exception, Not Gant, Covers Search
A defendant convicted of drug and firearms offenses based on evidence discovered during a traffic stop is not entitled to post-conviction relief on his claim that his lawyer was constitutionally ineffective in failing to challenge the constitutionality of the search of the passenger compartment; the 4th Circuit says defendant does not have a claim based on Arizona v. Gant.
U.S. v. Baker (VLW 013-2-124) (19 pp.)
No Reversal from Judge’s Comments
A trial judge committed plain error with his “ill-advised” remarks to the jury about defendant’s criminal history after the jury delivered a verdict but before jurors had been polled, but defendant’s gun and drug convictions are affirmed based on overwhelming evidence; the 4th Circuit also joins its sister circuits in holding that a defendant who fails to move for a “speedy indictment” dismissal prior to trial waives that right.
U.S. v. Cherry (VLW 013-2-125) (19 pp.)
Lawyer Pleads Fifth, Motion in Limine Denied
In this prosecution of a former notary public and court reporter for his alleged role in recording false statements to assist a lawyer under investigation for drug distribution, the Abingdon U.S. District Court denies defendant court reporter’s motion in limine asking the court to find a way for defendant to introduce an alleged exculpatory statement by the lawyer, who says he will invoke his Fifth Amendment right and refuse to testify at defendant’s trial.
U.S. v. Benko (VLW 013-3-284) (22 pp.)
Signing Admissible on Sex Crimes
Defendant is not entitled to reversal of his bench trial convictions for sex crimes by attacking the competency of his nine-year-old deaf-mute victim, the Court of Appeals says; the trial court took care to establish victim’s competency and the record evidence supports his convictions; no adverse inference is due when defendant’s objection caused exclusion of the certificate of DNA analysis.
Bynum v. Commonwealth (VLW 013-7-162(UP)) (14 pp.)
Forced Peremptory Strikes Were Error
The Court of Appeals reverses and remands defendant’s jury trial conviction for sexual battery: trial court erred in denying defense requests to strike two teachers for cause, requiring use of peremptory strikes; both women expressed concerns but the trial court cut off questioning that might have eliminated doubt as to their impartiality.
Webber v. Commonwealth (VLW 013-7-161(UP)) (10 pp.)
Amendment Allowed for Timely Appeals Petition
The en banc Court of Appeals says a petitioner may amend his timely filed petition for appeal to state an assignment of error that complies with court rules, and the appellate court grants his petition; however, the court upholds his conviction on two counts of attempted capital murder of a law enforcement officer, based on evidence that defendant threatened to kill to investigators, had his hand near his knife and appeared to be “going for it.”
Whitt v. Commonwealth (VLW 013-7-087) (26 pp.)
No Sentence Change After DOC Transfer Error
Even though the trial court said defendant would have been entitled to some relief on his pending post-trial motion for a sentence modification, defendant’s mistaken transfer from the local jail to the Department of Corrections meant the trial court no longer had authority to modify the sentence; the Court of Appeals affirms denial of defendant’s post-trial motion.
Stokes v. Commonwealth (VLW 013-7-009) (13 pp.)
More Testing Needed for ‘Competency’ Decision
Because the clinical psychologist who initially found defendant competent to stand trial stated that his opinion might change if defendant had an appropriate neurological examination, including an EEG and CAT scan and/or MRI, a Hanover Circuit Court orders the additional testing for defendant, under the authority of Ake v. Oklahoma and Virginia law.
Commonwealth v. Mallory (VLW 013-8-005) (6 pp.)
Stalker Convicted of Computer Harassment
A defendant who repeatedly stalked and threatened a young woman for years, starting when she was 17 years old, has his conviction for computer harassment in violation of Va. Code § 18.2-152.7:1 affirmed by the Court of Appeals, along with revocation of his suspended sentence on a prior stalking conviction.
Moter v. Commonwealth (VLW 013-7-049) (10 pp.)
Liar Accusation Not Reversible Error
Although a prosecutor should not have told the jury defendant lied under oath, and the trial court failed to give a “character” jury instruction, the 4th Circuit upholds defendant’s conviction on tax fraud charges.
U.S. v. Woods (VLW 013-2-059) (20 pp.)
Other Bank Robberies’ Evidence Comes In
Although a demand for additional money, the use of threatening language and poor grammar in a demand note would seem to be common in bank robberies, the punctuation and spelling errors common to the three demand notes support allowing the prosecution to put on evidence of defendant’s convictions for bank robberies in Henrico and Richmond during his trial for bank robbery in Hanover Circuit Court.
Commonwealth v. Bagby (VLW 013-8-019) (10 pp.)
One Witness OK for Exhibit Jointly Produced
On rehearing en banc, the Court of Appeals affirms a defendant’s conviction of felony shoplifting based on the trial court’s admission of a list of items stolen from a Family Dollar Store, prepared by a cashier with the store manager’s help, on the testimony of the manager alone.
Robertson v. Commonwealth (VLW 013-7-077) (12 pp.)
New Trial Ordered in Carjacking Case
In a carjacking prosecution that turned on identification of defendant as the dreadlocked offender who stole the victim’s car, the government’s error in misrepresenting the date on a photo of a different suspect without dreadlocks, who was seen driving the vehicle three days after the carjacking, means defendant is entitled to a new trial based on the new evidence; the 4th Circuit says the district court erred in rejecting defendant’s newly-discovered-evidence argument.
U.S. v. Moore (VLW 013-2-045) (16 pp.)
No Money Laundering Convictions Under ‘Merger Problem’
In this fraud case involving a scheme to sell life settlement investments, which resulted in nearly $100 million in losses for investors, the 4th Circuit interprets “proceeds” of the scheme as “net profits” and overturns defendant’s money laundering convictions; the court affirms defendant’s remaining fraud convictions, but vacates defendant’s sentence and remands for resentencing.
U.S. v. Abdulwahab (VLW 013-2-088) (24 pp.)
No Conditional Release for Drug Defendant
Although a 19-year-old defendant charged with dealing “spice” had a clean criminal record, the Newport News U.S. District Court denies release on conditions, as it considers him a flight risk and a danger to the community, based on his mother and sisters living in Egypt, large sums of cash found in his home and car and evidence that he knows how harmful the drug is but continued to distribute it.
U.S. v. Soliman (VLW 013-3-204) (6 pp.)
Defendant Expected Three to Five, Got 19 Years
A defendant’s claim that his lawyer told him he would get three to five years for pleading guilty to robbery, but who was sentenced to 19 years, was corroborated by his brother, mother, another defendant who overheard defendant’s bullpen conversation with his lawyer on the day defendant pled and a recorded phone conversation with his lawyer, but defendant has not shown that he has a reasonable defense to the robbery charge, and the Norfolk Circuit Court denies his motion to withdraw his guilty plea.
Commonwealth v. White (VLW 013-8-065) (7 pp.)
Custody Change Back to Mom in Virginia
Although the court has great respect for the opinion of the guardian ad litem, who recommends that two boys, ages seven and five, remain in the custody of the father who moved them to Pennsylvania, the Roanoke County Circuit Court orders physical custody returned to the mother in Roanoke, as the court finds the father did not act in the children’s best interests in moving them to Pennsylvania, failing to comply with a court order requiring individual counseling for the children and quitting his job and misrepresenting the reasons for doing so.
Heffron v. Heffron (VLW 013-8-017) (14 pp.)
Husband’s Property Is Separate, Despite Pledge
In this divorce case, the use of husband’s separate property to secure loans used for marital purposes and repaid by marital funds does not transmute the pledged property into marital property, and the Court of Appeals reverses the trial court’s equitable distribution award based on this erroneous ruling.
Layman v. Layman (VLW 013-7-167) ( 7 pp.)
Stepchild’s Treatment an ED Consideration
Although husband provided minimal support to his stepdaughter who was age seven when the parties married, the trial court did not err in considering husband’s poor treatment of his stepdaughter as a negative non-monetary contribution and using that as one factor in deciding to award wife 55 percent of the marital estate, according to the Court of Appeals.
Crater v. Crater (VLW 013-7-173(UP)) (12 pp.)
Custodial Mom Could Take Child to U.S.
A mother with full custody under a Swiss order was not liable for wrongful removal under the Hague Convention for taking the child to the U.S. to visit family and seek medical treatment.
White v. White (VLW 013-2-105) (13 pp.)
Sketch Decree Inconsistent with Post-Nup
A Roanoke County Circuit Court declines to enter a proposed divorce decree that is inconsistent with the parties’ post-nuptial agreement, with regard to child support; the proposed decree says the parties understand that support of the infant child is a right of the child and not of the parties and either party file petition for child support for the benefit of the child.
Whittaker v. Whittaker (VLW 013-8-016) (3 pp.)
Husband May Use Marital Funds Post-Separation
A husband who drew on marital funds instead of his post-separation salary for post-separation expenses need not reimburse the marital estate, the Court of Appeals holds, as his expenses were proper and did not constitute waste; he will pay $10,000 in monthly spousal support for four years, instead of $30,000 per month indefinitely, as wife requested.
Wright v. Wright (VLW 013-7-048) (31 pp.)
‘Donor’ Father May Assert Parental Rights
A man who fathered a child with his girlfriend through in vitro fertilization can assert his parental rights, despite a Virginia statute that declares that a sperm “donor” can only be recognized as the father of a child born through assisted conception if the father is married to the mother; the Virginia Supreme Court says the assisted conception statute must be read with another statute that sanctions establishing parentage through alternative means.
L.F., a Minor v. Breit (VLW 013-6-001) (27 pp.)
Doctor’s Agreement Not Unconscionable
The Court of Appeals reverses the circuit court’s refusal to enforce a separation agreement requiring physician to pay monthly spousal support wife of 65 percent of his income or at least $10,000; as a matter of law, the agreement is not unconscionable nor do the surrounding circumstances show undue influence.
Guirguis v. Salib (VLW 013-7-010(UP)) (16 pp.)
No Reduction in Husband’s Equity Payment
A Hanover Circuit Court may not modify a couple’s final divorce decree from 2008 in order to reduce the $40,000 sum for husband’s share of the equity upon sale of the home, which has declined in value since the date of the decree; the result may be harsh for the plaintiff, but the parties’ divorce decree is final under Rule 1:1.
Millner v. Millner (VLW 013-8-006) (9 pp.)
Complaint Stricken After Husband’s Appearance
Although wife tried to use a 2012 statute allowing divorce by deposition or affidavit in certain circumstances, husband, who was living in Saudi Arabia when served, entered a special appearance and moved to dismiss on the ground of bigamy, and the Court of Appeals affirms the trial court order striking wife’s divorce case.
Cruz v. Cruz (VLW 013-7-126) (6 pp.)
Wife’s Summary Contempt Conviction Reversed
A trial court erred in holding wife in summary contempt for her “vindictive” testimony describing her husband’s threats against her during a custody exchange, as the court’s finding that wife was untruthful depended on husband’s sound recording of the exchange and testimony from an observer arranged by husband; the en banc Court of Appeals further holds that a person held in summary contempt should be allowed to object immediately before or after the contempt finding.
Amos v. Commonwealth (VLW 013-7-103) (20 pp.)
No Maintenance Means Permissive ‘Waste’
A wife who made no repairs to a home the parties owned and which she has lived in during their 17-year separation is assessed $26,000 devaluation as permissive waste by a Roanoke County Circuit Court.
Bell v. Bell (VLW 013-8-010) (7 pp.)
Husband Takes Home Debt & Comp Settlement
A Richmond Circuit Court says wife has now shown that husband’s post-separation workers’ comp settlement marital property, but wife won’t share debt on the underwater home.
Massicot v. Massicot (VLW 013-8-031) (3 pp.)
Driver Fired for False Records, Not FMLA Leave
Because defendant FedEx had evidence that plaintiff had falsified delivery records to gain time, it could terminate her employment as a delivery driver even though she claims she was terminated in violation of the Family & Medical Leave Act when she was not returned to her prior employment after a knee injury; the 4th Circuit says plaintiff has not shown the false records issue was a pretext for her discipline.
Laing v. Federal Express Corp. (VLW 013-2-007) (19 pp.)
City Worker Can Grieve Discipline, But Not Discharge
Although a former employee of a victim/witness program may grieve her discipline for violating office policy on rental car use, she may not grieve her dismissal, says a Norfolk Circuit Court.
Zarrelli v. City of Norfolk and Hon. Gregory D. Underwood (VLW 013-8-023) (7 pp.)
ERISA Benefits Cover Overdose ‘Accident’
A Richmond U.S. District Court says an ERISA plan administrator abused its discretion in denying accidental death benefits to the widower of a woman who died while under the care of her treating physician, as the plan administrator’s analysis of the claim does not employ a reasonable definition of the term “accident.”
Bryner v. E.I. DuPont deNemours & Co. (VLW 012-3-645) (17 pp.)
Ex-Employee Faces Business Tort Claims
In this litigation arising from a group of employees leaving plaintiff Alliance Technology Group LLC to join a competitor, Achieve 1 LLC, a Richmond U.S. District Court says Alliance has stated claims against one former employee for breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, misappropriation of trade secrets and tortious interference with contract expectancy and prospective business relationship; however, the court dismisses the claims for conversion, tortious interference with employment contract, common law and statutory business conspiracy and fraud.
Alliance Technology Group LLC v. Achieve 1 LLC (VLW 013-3-010) (22 pp.)
Employee Has Respondeat Superior Claim
A woman who was hired at age 18 to manage two Wireless Unlimited stores in Vienna, and who alleges the store owner’s 35-year-old friend, who was allowed to act as a store manager, openly threatened her with sexual assault, cursed at her, called her names and sexually assaulted her after taking her home from a late-night mandatory employee meeting and dinner, has stated claims for respondeat superior liability, sexual assault and battery, negligence or gross negligence for failure to warn, negligent retention, defamation and defamation per se and intentional infliction of emotional distress, says a Fairfax Circuit Court.
Magallon v. Wireless Unlimited Inc. (VLW 013-8-002) (12 pp.)
Ex-Husband Can’t Keep ERISA Benefits
A man who waived his benefits under his ex-wife’s ERISA retirement and insurance plans in a divorce settlement cannot rely on the preemption doctrine for protection from a state court action by the ex-wife’s parents to enforce the divorce decree in which husband waived his rights; the 4th Circuit says ERISA does not preempt post-distribution suits against ERISA beneficiaries.
Andochick v. Byrd (VLW 013-2-051) (9 pp.)
Retiree Wins ‘Retroactive’ Pension Benefits
A retired AT&T employee wins her ERISA suit for recoupment of $121,563.90 in pension benefits due to an eight-year delay in receipt of her full pension benefits; the 4th Circuit says the district court properly considered limited evidence outside the administrative record but known to AT&T when it determined the employee’s eligibility for benefits, and correctly determined that AT&T breached its statutory and fiduciary duties to the employee.
Helton v. AT&T Inc. (VLW 013-2-052) (27 pp.)
No Job Analysis Is ERISA ‘Abuse of Discretion’
A 319-page administrative record that makes no mention of an ERISA claimant’s “actual duties” as a “documentation assistant” means defendant Anthem Life Insurance abused its discretion in denying plaintiff’s ERISA claim for long-term disability and the Roanoke U.S. District Court grants partial summary judgment to plaintiff and remands for a “deliberate and principled analysis” of claimant’s ability to do her job.
Wyant v. Anthem Life Ins. Co. (VLW 013-3-286) (5 pp.)
Employer’s Mistake Breached ERISA Duty
Although an employee who worked less than 30 hours per week was not eligible for life insurance as an employee benefit, the employer breached its ERISA fiduciary duty when it enrolled the employee and deducted premiums from his paycheck for the life insurance, and the employee’s widow wins summary judgment on her ERISA claim filed after the carrier denied benefits upon the employee’s death.
Lewis v. Kratos Defense & Security Solutions Inc. (VLW 013-3-293) (21 pp.)
Unpled Equal Pay Act Defenses Not Waived
An employer did not waive its affirmative defenses to a federal Equal Pay Act claim by not pleading them in its answer denying violation of the EPA, and the Supreme Court of Virginia reverses a trial court’s award of damages, attorney’s fees and costs on plaintiff’s EPA claim.
New Dimensions Inc. v. Tarquini (VLW 013-6-044) (12 pp.)
Bank Employee’s Age-Bias Claim Advances
A bank branch manager fired at age 68 has shown a genuine dispute over whether her age was the “but for” cause of her termination, and the Roanoke U.S. District Court denies the bank’s motion for summary judgment.
Linkous v. Stellarone Bank (VLW 013-3-277) (11 pp.)
‘European’ is Protected National Origin, But Suit Fails
An Alexandria U.S. District Court says “European” is a protected “national origin” classification under Title VII, but still grants summary judgment to a Northern Virginia community college sued by a former adjunct economics professor who was denied permanent appointment.
McNaught v. Virginia Community College System (VLW 013-3-130) (51 pp.)
Employer Says Male Had Better Interview
VDOT’s “meager” and subjective explanation that a male had a better interview than did the female engineer who lost out on a promotion does not defeat her pretext claim, the Abingdon U.S. District Court says.
Hill v. Commonwealth of Va., VDOT (VLW 013-3-041) (10 pp.)
Fired for False Records, Retaliation Claim Fails
A woman terminated for falsifying time records cannot win her Title VII case alleging she was fired in retaliation for complaining about not being allowed to wear ripped jeans, although men could wear ripped jeans; the 4th Circuit also says her supervisor’s thank-you hug for Christmas cookies she gave him was not assault and battery.
Balas v. Huntington Ingalls Industries Inc. (VLW 013-2-057) (17 pp.)
No Pregnancy Discrimination in UPS Driver Policy
Although plaintiff UPS driver alleges the company was liable for pregnancy discrimination because it accommodated some disabled employees but not similarly situated pregnant workers, the 4th Circuit upholds summary judgment for UPS, based on its pregnancy-neutral policy.
Young v. United Parcel Service Inc. (VLW 013-2-008) (24 pp.)
Undischarged Debtor Can Pursue Race Bias Claim
Although plaintiff delayed disclosing to a bankruptcy judge that he had filed an EEOC charge against his employer, the Richmond U.S. District Court refuses to dismiss plaintiff’s Title VII suit on employer’s arguments that only the bankruptcy trustee has standing to pursue the race bias claim, and plaintiff is judicially estopped from pursuing his suit.
Royal v. R&L Carriers Shared Services LLC (VLW 013-3-207) (12 pp.)
EPA Can’t Regulate Stormwater Load
The Clean Water Act does not authorize the EPA to regulate the level of a pollutant in Accotink Creek, a 25-mile long tributary of the Potomac River in Fairfax County, by establishing a total maximum daily load (TMDL) for the flow of nonpollutant stormwater into the creek, and the Alexandria U.S. District Court grants the Virginia Department of Transportation’s motion for judgment on the pleadings.
Va. Dep’t of Transportation v. U.S. Environmental Protection Agency (VLW 013-3-017) (9 pp.)
Defendant Must Share Statement to Carrier
A Virginia Beach Circuit Court says defendant must produce a next-day recorded statement to her carrier, but does not rule on a request for defendant’s surveillance video.
Clemens v. Pleasants (VLW 013-8-026) (5 pp.)
Attorney’s Fees Awarded for Citizenship Denial
A Jordanian native who was denied citizenship because of alleged ties to the Muslim Brotherhood wins $47,577 in attorney’s fees and costs, as the government’s position was not “substantially justified”; an Alexandria U.S. District Court says the applicant’s membership in the Muslim American Society and attendance at a few lectures in Jordan sponsored by the Muslim Brotherhood did not support the government’s view that the applicant was lying about his contacts.
Abusamhadaneh v. Taylor (VLW 013-3-025) (107 pp.)
Carrier Must Defend Suit Against Sub
A CGL carrier has a duty to defend a subcontractor in a suit alleging the sub provided a defective product that caused physical damage to other property, that the plaintiff contractor had to repair, as this is a sufficient allegation to support the possibility of an “occurrence” under the relevant CGL policies, says an Abingdon U.S. District Court.
Nautilus Ins. Co. v. Strongwell Corp. (VLW 013-3-283) (21 pp.)
No CGL Coverage for Sub’s Poor Work
Homeowners alleging a subcontractor’s defective workmanship caused damage to otherwise nondefective structures do not have coverage for an “occurrence” under a commercial general liability policy, and a Chesterfield Circuit Court grants summary judgment to defendant insurance carrier on the breach of express warranty claim.
Erie Insurance Exchange v. Salvi (VLW 013-8-008) (6 pp.)
No Coverage after Delayed Claim Notice
A realty company that managed Virginia Beach vacation rentals lost its coverage under CGL and umbrella insurance policies because the company – mistakenly believing these policies would not apply – waited nearly three years to notify the carrier of an accident in which a child fell from a bunk bed in a rental property, the Norfolk U.S. District Court holds; the realty company only notified the carrier when the family filed a $10 million lawsuit alleging traumatic brain injury.
Nationwide Mutual Ins. Co. v. Sandrbridge Properties Inc. d/b/a Siebert Realty (VLW 013-3-027) (7 pp.)
No UM/UIM ‘Stacking’ for Policy Omission
Although an auto liability policy failed to specify any specific amount of uninsured/underinsured motorist coverage provided, that omission did not mean the policy terms prohibiting “stacking,” or combining coverage for multiple insured vehicles, were ambiguous under Virginia law and would allow stacking, and the 4th Circuit affirms the district court’s denial of additional coverage to appellant.
Dooley v. Hartford Accident & Indemnity Co. (VLW 013-2-101) ( 11 pp.)
Failure-to-Insure Claim Assignment is Valid
Plaintiff Cincinnati Insurance Company, as assignee of a claim against defendant insurance broker and his agency, may sue those defendants for failure to place property insurance on a property that was damaged by fire after the prior insurance had lapsed; the Richmond U.S. District Court says the assignment is valid.
The Cincinnati Insurance Co. v. Ruch (VLW 013-3-250) (20 pp.)
Policy Exclusion Bars ‘BUI’ Coverage
An insurance company need not cover defendant yacht owner for damages after his boat collided with an anchored sailboat off the coast of Middlesex County and the owner was convicted of boating “under the influence.”
The Standard Fire Ins. Co. v. Armstrong (VLW 013-3-236) (7 pp.)
No Defamation Defense Under Renter’s Policy
Although a parent defending a defamation suit says her only intention in accusing an aide at the Maryland School for the Deaf of sexually abusing her son was to protect the child, the accusation nevertheless was an intentional act, and not an “occurrence” under her renter’s insurance policy that would trigger Allstate’s duty to defend; applying California law to the coverage issue, the 4th Circuit upholds judgment for Allstate.
Francis v. Allstate Insurance Co. (VLW 013-2-049) (18 pp.)
Plywood Flying from Pickup Truck is ‘Auto Accident’
A Roanoke City Circuit Court says employees were “using” a pickup truck when they loaded a piece of plywood into the truck bed, and auto liability policies will cover a pedestrian’s injuries from the airborne plywood.
Nationwide Mut. Ins. Co. v. Gearhart (VLW 013-8-022) (29 pp.)
NLRB’s Notice-Posting Rule Invalidated
The National Labor Relations Act did not have authority to promulgate a rule requiring employers to post a notice of employee rights under the National Labor Relations Act, and the 4th Circuit upholds summary judgment for the U.S. Chamber of Commerce and other business groups that challenged the rule.
Chamber of Commerce of the U.S. v. NLRB (VLW 013-2-127) (35 pp.)
Voluntary Dismissal Allowed, With Condition
A plaintiff may voluntarily dismiss his suit alleging negligent removal of his gall bladder by laparoscopic surgery, on the condition that he only refile any suit arising from this same set of operative facts in a Virginia state court; however, the Abingdon U.S. District Court denies defendant physician’s motion for attorney’s fees and costs.
Glass v. Baquero (VLW 013-3-202) (6 pp.)
Plaintiff May Add ‘Informed Consent’ Claim
A Roanoke City Circuit Court says a plaintiff who alleges defendant was negligent in performing vascular surgery on her right thigh five years earlier may amend her complaint to allege defendant failed to obtain informed consent, as that claim relates back to the filing date of the original complaint; however, plaintiff’s punitive damages and fraud claims do not relate back and the court grants defendant’s motion to strike and special plea.
Lewis v. Davidson (VLW 013-8-027) (13 pp.)
Birth Injury Recovery May Exceed Cap
A med-mal carrier is required to defend an action filed by parents who alleged defendant physician represented that he participated in Virginia’s Birth Injury Fund, but failed to pay into the Fund, which is not available to cover neurological injuries suffered by their child at birth; the Supreme Court of Virginia affirms declaratory judgment for the doctor’s practice group.
The Doctors Company v. Women’s Healthcare Associates Inc. (VLW 013-6-036) (19 pp.)
Board May Sue School Bond Advisor
A county board of supervisors may sue a private financial advisor hired by the board for breach of fiduciary duty; the Supreme Court of Virginia says the board effectively waived its common law legislative immunity from civil liability, and reverses the circuit court judgment sustaining the demurrer filed by the financial advisor.
Board of Supervisors of Fluvanna County (VLW 013-6-031) (22 pp.)
Employee Has Claim for Sexual Assault by Coworker
A woman who alleges she was sexually assaulted in the company parking lot by a coworker who had not been identified as a registered sex offender by an employer background check may sue defendant employer, staffing agency and security company for assault and battery, negligent hiring and negligent retention, as these claims are not barred by the Virginia workers’ comp bar; but the Roanoke U.S. District Court says the comp bar does apply to plaintiff’s claims alleging a dangerous work environment from dim lighting and a lack of security on the night of the assault.
Hartman v. Retailers & Manufacturers Distribution Marking Service Inc. (VLW 013-3-112) (16 pp.)
‘Black Ice’ Slip & Fall Goes to Jury
A Food Lion customer who slipped on black ice near the store entrance after a store manager allegedly had observed icy spots in the parking lot several hours earlier may take her slip-and-fall case to the jury, as a Roanoke U.S. District Court says the store and its snow-removal contractor have failed to show an open and obvious hazard or plaintiff’s contributory negligence.
Hall v. DLC Management Corp. and Food Lion LLC (013-3-201) (17 pp.)
No Instruction for ‘Substantial Contributing Factor’
The Supreme Court of Virginia reverses a $282,685 jury award to the estate of a state trooper who died of mesothelioma after exposure to asbestos while observing vehicle brake inspections as a state trooper and previously, through employment as a shipyard pipefitter; Virginia law does not allow for a jury instruction on “substantial contributing factor” in multiple-causation cases, and the case is reversed and remanded.
Ford Motor Co. v. Boomer, Adm’r (VLW 013-6-007) (27 pp.)
$6.2M Wrongful Death Award Reinstated
The Supreme Court of Virginia reinstates the full jury verdict of $6,227,000 in a wrongful death case filed by a man whose wife died in a car accident when a concrete truck turned over on their car; the trial court erred in reducing plaintiff husband’s award because the court found it was disproportionate to the jury award to the decedent’s parents.
Allied Concrete Co. v. Lester (VLW 013-6-002) (29 pp.)
Claim Form Admissible at FELA Trial
In a railroad worker’s suit under the Federal Employers Liability Act, a Richmond Circuit Court denies plaintiff’s motion in limine to prevent defendant railroad from introduction into evidence statements made by plaintiff’s treating physician in a “Supplemental Disability Claim Form.”
Mauney v. CSX Transportation Inc. (VLW 012-8-206) (5 pp.)
Expert’s Use of Inadmissible Evidence Limited
In this products liability suit against Ford Motor Company filed by a family whose daughter died of severe burns from a key-off fire in the family’s Ford Windstar van, the Supreme Court of Virginia says on rehearing that the trial court did not err in excluding evidence of seven other Ford Windstar fires and in ruling that plaintiff’s expert witnesses could not rely on the excluded evidence because it did not meet the “substantial similiarity” test.
Funkhouser, Adm’r v. Ford Motor Co. (VLW 013-6-004) (32 pp.)
Soldier Wins Lease Termination Case
An airman had the right to terminate a residential real estate lease if he was transferred by the U.S. Air Force more than 35 miles from the rental property, and an Alexandria U.S. District Court grants summary judgment for the return of his security deposit, in this suit filed on the airman’s behalf under the Servicemembers Civil Rights Act.
U.S. v. Williams (VLW 013-3-095) (12 pp.)
No Duty of Impartiality for Trustee
Plaintiffs who lost their homes to foreclosure have not stated claims for a trustee’s breach of an alleged duty of impartiality, but the Richmond U.S. District Court Magistrate Judge will allow plaintiffs to amend their claims for breach of fiduciary duty and violation of RICO laws.
Goodrow v. Friedman & MacFayden PA (VLW 013-3-012) (26 pp.)
Lender Gets Constructive Trust on Wife’s Interest
Although a lender that refinanced a mortgage on property owned by husband and wife as tenants by entirety neglected to get wife’s signature on the refinance loan, the Hanover County Circuit Court imposes a constructive trust on wife’s interest in the property, now that her husband has died and the property is subject to foreclosure; but wife will not be personally liable for any deficiency payment to lender.
Citimortgage Inc. v. Hayes (VLW 013-8-021) (5 pp.)
Developer Wins Limited Declaratory Relief
In this dispute over a developer’s alternative plans to provide water and sewer service to a proposed development after the localities changed plans to share that responsibility, a Loudoun County Circuit Court orders limited declaratory relief and holds that a determination of rights regarding whether the tract may be developed with an Alternative Onsite System pursuant to Va. Code §§ 15.2-2157 and 32.1-172 in satisfaction of the proffer is proper in this case; however, requests that require the court to hypothesize theoretical land development plans are too speculative to warrant relief.
Brookfield Autumn Hill LLC v. County of Loudoun (VLW 013-8-020) (5 pp.)
Misstated Arrearage States Claim for Breach
A plaintiff who lost her home to foreclosure states a claim for breach of the note and deed of trust based on her allegation that defendant’s pre-acceleration notice misstated her arrearage, preventing her from bringing her mortgage loan current and avoiding foreclosure; but the Roanoke U.S. District Court dismisses plaintiff’s remaining claims.
Vazzana v. CitiMortgage Inc. (VLW 013-3-280) (11 pp.)
Punitives Claim Survives for Tree-Cutting
A property owner who disputed the width of defendant natural gas company’s easement and refused to allow cutting of trees on the property to widen the easement may sue the company for trespass for coming onto the property and performing the work over their objections, and the Richmond U.S. District Court denies defendant’s motion to dismiss the owner’s claim for punitive damages.
Adamson v. Columbia Gas Transmission LLC (VLW 013-3-262) (8 pp.)
Law Firm Fee Payment Upheld
A law firm gets to keep $130,000 in attorney’s fees after a sale of real estate as part of a disputed estate case; the Supreme Court of Virginia says the circuit court had jurisdiction to distribute the fee as part of the sale proceeds in the settlement of the related equity actions involving trust and estate administration.
Henderson v. Ayres & Hartnett PC (VLW 013-6-037) (12 pp.)
Broker Seeks Commission on Shopping Center Sale
In plaintiff broker’s suit for a commission on the sale of Winchester Station shopping center, defendant had a buyer’s brokerage agreement of no definite duration and a confidentiality agreement for one year, prior to the property being listed, and the Fairfax Circuit Court denies summary judgment to defendant buyer because there are disputed facts concerning the terms of the parties’ agreement and whether plaintiff was the procuring cause of the sale.
The Turrisi Companies LLC v. Cole Holdings Corp. (VLW 013-8-048) (8 pp.)
SEARCH & SEIZURE
Stop of Trespass Suspect Was Legal
A police officer was justified in stopping defendant as he walked away from a convenience store parking lot, based on the store owner’s written request for enforcement of trespass laws in this high-crime area and defendant quickly walking away when the officer spoke, and the 4th Circuit upholds the stop and defendant’s conviction as a felon in possession of a firearm and ammunition.
U.S. v. Bumpers (VLW 013-2-013) (27 pp.)
Suppression Order Reversed in Meth-Lab Case
A deputy who accompanied a social worker to a home to investigate the possible presence of children in a methamphetamine-manufacturing site had probable cause and exigent circumstances to enter the home, after observing items used to manufacture the drug in a burn pile outside the home and hearing movement inside when the deputy knocked at the door, before the occupants opened the door.
Commonwealth v. Turner (VLW 013-7-149(UP)) (8 pp.)
‘Warning’ Stop OK for Texting Driver
A police officer could stop defendant and warn him against texting while driving, even if the officer could only issue a citation for the conduct as a secondary offense; it was reasonable to stop defendant for swerving into the officer’s lane of travel, and the Richmond U.S. District Court accepts the magistrate judge’s recommendation and denies defendant’s motion to suppress marijuana and alcohol evidence.
U.S. v. Wingle (VLW 013-3-138) (7 pp.)
Detention Illegal for Gas-Station Group
Even assuming the initial encounter between a group of uniformed police officers and a group of five men congregated at a gas station was consensual, the officers’ increasing show of authority, immediate seizure of one man’s gun and frisk of the men in the group and seizure of defendant’s ID, quickly changed the encounter to an investigatory detention, and the 4th Circuit says a gun found on defendant should have been suppressed.
U.S. v. Black (VLW 013-2-038) (16 pp.)
Three-Hour Detention Was Unlawful Custody
Police violated defendant’s Fourth Amendment rights by holding him for three hours while they obtained a warrant to search the premises after observing a suspected drug transaction at the convenience store where defendant worked and lived; the 4th Circuit vacates defendant’s firearms convictions as the two later Miranda warnings did not remove the illegal taint attached to a statement defendant made while in police custody.
U.S. v. Watson (VLW 013-2-001) (38 pp.)
No Privacy Interest for Vehicle Claimant
A defendant who showed up to claim a Ford Explorer discovered to be carrying $3 million worth of cocaine in its gas tank, did not show any indicia of ownership or other possessory or privacy interest in the vehicle, and the 4th Circuit upholds denial of defendant’s motion to suppress and his drug conviction on a conditional guilty plea.
U.S. v. Castellanos (VLW 013-2-114) (41 pp.)
Vehicle Swerve Supported Stop for Texting
Texting while driving is a secondary offense, but an officer could stop defendant for “inattentive driving” after defendant swerved toward the officer’s car in the adjacent lane, says the Richmond U.S. District Court.
U.S. v. Wingle (VLW 013-3-031) (13 pp.)
Dog Trainer Defamation Win Set Aside
A dog trainer must retry his defamation case because he failed to produce training videos that supported accusations of his harsh and abusive treatment of dogs.
Ebersole v. Kline-Perry (VLW 013-3-258) (16 pp.)
Nonsuited Defamation Claim Timely Refiled
A plaintiff who refiled a separate defamation action after nonsuit of the first defamation action, which was filed by a group of plaintiffs and suffered from the defect of misjoinder, has the benefit of tolling under Va. Code § 8.02-229 and her refiled action is timely, says a Richmond Circuit Court.
Bonner v. Creative Hairdressers Inc. (VLW 012-8-204) (3 pp.)
Driver’s License Revoked for Federal DUI
A Fairfax Circuit Court says the federal DUI statute to which defendant pled guilty substantially parallels Virginia’s DUI statute, Va. Code § 18.2-266, and the court rejects the driver’s petition asserting it was error for Virginia to revoke his Virginia driver’s license for the federal conviction.
Robertshaw v. Commonwealth (VLW 013-8-060) (9 pp.)
Stop OK for Driving on Highway Fog Lines
The Virginia Code backs a Fort Lee police officer’s view that a driver violates Virginia’s “single lane of travel” statute if he drives on, but not over, a highway boundary line, and a Richmond U.S. District Magistrate Judge denies defendant’s motion to suppress in this DUI prosecution.
U.S. v. Williams (VLW 013-3-265) (16 pp.)
Driver May Challenge Revocation for NJ Conviction
A Richmond Circuit Court grants DMV’s motion to identify an unnamed petitioner who seeks an order to rescind or to modify DMV’s order of revocation of driving privileges dated Feb. 23, 2012, which the court has reviewed pursuant to Va. Code § 46.2-410.1.
Doe v. Commonwealth of Va., Comm’r of the Dep’t of Motor Vehicles (VLW 012-8-201) (10 pp.)
Preliminary Breath Test Inadmissible, Not Harmless
At defendant’s trial for reckless driving, the trial court erred in admitting testimony of the preliminary breath test with a BAC of 0.04 when no evidence was presented concerning whether such a result signified that the driver was intoxicated and driving recklessly, and the Court of Appeals reverses defendant’s conviction.
Burnside v. Commonwealth (013-7-146(UP)) (12 pp.)
Provider Surcharge for Comp Patients Not Paid
Testimony by the chief financial officer of an orthopedic practice that it charges 40 percent more for workers’ comp patients, to cover overhead for extra time and administrative costs, does not prove the provider’s case that its fees are reasonable under Va. Code § 65.2-605, and the Court of Appeals upholds denial of the provider’s claim for an additional $8,966.56 for treating claimant’s shoulder.
Fredericksburg Orthopaedic Associates v. Fredericksburg Machine & Steel LLC (VLW 013-7-142) (9 pp.)
Employer Has ‘Bona Fide’ Safety-Rule Defense
The Court of Appeals says a commercial laundry attendant with a prior back injury is barred from workers’ comp benefits for a later back injury because of his misconduct in failing to wear the back brace, despite the attendant’s claim that the employer did not enforce its back brace safety rule.
Mouhssine v. Crystal City Laundry (VLW 013-7-143) (16 pp.)