Important Opinions of 2011
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 2011. 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 click here.
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Child Neglect Finding Set Aside
A Norfolk Circuit Court sets aside an agency finding of “Physical Neglect – Abandonment” against a mother who did not pick up her son after he was arrested for shoplifting, because the Virginia Department of Social Services failed to provide an oral and written explanation of the family assessment procedure, and this procedural error was not harmless.
Fentress v. Va. Dep’t of Social Servs. (VLW 011-8-139)(8 pp.)
Lawyer Gets Public Admonition for Misrepresentations
A New York lawyer with 33 years’ experience and an “AV rating,” who acted as court-appointed counsel in successfully appealing his client’s sentence for wire fraud and identity theft, has received a public admonition from the 4th Circuit for multiple misrepresentations in his representation of his client on appeal, including an assertion that the trial judge suppressed a letter from an informant.
In the Matter of Thomas F. Liotti, Esq. (VLW 011-2-176) (21 pp.)
Lawyer Can’t Sue VSB Over Blog
A lawyer advised by the Virginia State Bar to include a disclaimer on his firm-website blog that discusses results in specific cases cannot sue the Virginia State Bar or bar officials on a 42 U.S.C. § 1983 claim that requiring a disclaimer infringes on his First Amendment rights; a Richmond U.S. District Court says defendants are immune from suit and the Younger doctrine counsels abstention.
Hunter v. Virginia State Bar (VLW 011-3-265)(10 pp.)
No Legal Malpractice Claim for Securities Law Advice
Although plaintiff investment businesses allege defendants’ faulty advice on securities law has exposed them to state and federal investigations and possible disgorgement of capital, a Richmond Circuit Court says plaintiffs have not stated a claim for legal malpractice because they have not alleged lost profits.
AIC Inc. v. Troutman Sanders LLP (VLW 011-8-105) (3 pp.)
Retainer Limits Defeat Malpractice Claim
The Richmond U.S. District Court grants summary judgment in favor of defendant D.C. attorney and law firm because their retainer agreement with client limited the scope of the representation to exclude the matters that are the basis of client’s malpractice claim.
Toure v. Ubom (VLW 011-3-161) (11 pp.)
Malpractice Claim Waiver No Cure for Conflict
A salon that depended on advice of counsel to apply for trademark protection for WINK Threading Studio, to promote a hair removal technique, but who fired its first lawyer after the PTO said plaintiff WINK salon already had registered the WINK name, cannot share the two lawyers it hired to defend plaintiff’s trademark infringement suit with the lawyer the Studio fired; a Norfolk U.S. District Court grants a motion to disqualify the two lawyers who represented both defendant studio and the studio’s former attorney.
Wink Inc. d/b/a Wink Salon v. Wink Threading Studio Inc. (VLW 011-3-417) (15 pp.)
Bank Not Subject to Corporate Income Tax
A Norfolk Circuit Court says that because AMG National Trust Bank is subject to the Virginia Bank Franchise Tax Act, Va. Code § 58.1-1200, it is not liable for corporate income tax, and the Virginia Department of Taxation is ordered to refund corporate income tax collected from AMG and prohibited from assessing such tax in the future against AMG.
AMG Nat’l Trust Bank v. Virginia Dep’t of Taxation (VLW 011-8-138) (6 pp.)
Investigation Fees Support Computer Fraud Claim
Animators at Law, a litigation support company, can stay in Alexandria U.S. District Court with its claim under the Computer Fraud and Abuse Act against a rival company, Capitol Legal Solutions, and two former Animators employees who allegedly took Animators’ confidential and proprietary information about Animators’ services, project and clients, when they went to work for CLS; the district judge denies partial summary judgment to defendant on its claim that Animators failed to meet the requisite jurisdictional “loss” amount of at least $5,000.
Animators at Law Inc. v. Capital Legal Solutions LLC (VLW 011-3-269)(15 pp.)
Marital Privilege Holds After ‘Inadvertent Disclosure’
A client’s documents inadvertently disclosed to opposing counsel are protected; the marital privilege means husband’s presence when she talked with her lawyer did not destroy attorney-client confidentiality, says a Charlottesville Circuit Court.
Brownfield v. Hodous (VLW 011-8-022) (8 pp.)
Sanctions Against Non-Party Citizens Set Aside
The Supreme Court of Virginia reverses monetary sanctions imposed against 40 Gloucester citizens who submitted petitions to the circuit court seeking removal of four members of the local board of supervisors; a special prosecutor was appointed to handle the case, and the petitioners were not parties to the action who were subject to sanctions under Va. Code § 8.01-271.1.
Johnson v. Woodard (VLW 011-6-033) (14 pp.)
Plaintiff Challenges Flood Insurance Payout
A pro se suit alleging defendant insurance company failed to fully pay plaintiff’s claim for flood insurance prompts a Newport News U.S. District Court to take a first-impression look at federal preemption of coverage issues under the National Flood Insurance Program, and the magistrate judge says plaintiff’s only surviving claim for breach of contract belongs in federal court.
Davis v. Nationwide Mut. Fire Ins. Co. (VLW 011-3-258) (30 pp.)
Sanctions Denied for Destroyed Email
In DuPont’s lawsuit against a Korean competitor who hired a former DuPont employee and allegedly used DuPont’s confidential information and trade secrets to improve the competitor’s process for producing aramid fiber, a Richmond U.S. District Court denies the competitor’s motion for sanctions for DuPont’s alleged spoliation of evidence by deletion of email accounts and documents from four former Dupont employees who helped collect competitive intelligence.
E.I. DuPont DeNemours & Co. v. Kolon Industries Inc. (VLW 011-3-254) (47 pp.)
Privilege Protects Company Emails
A Richmond U.S. District Court reviews company emails for in-house counsel’s discussion of legal versus business issues, and says some are protected by attorney-client privilege, some are not.
Scott & Stringfellow LLC v. AIG Commercial Equipment Finance Inc. (VLW 011-3-287)(10 pp.)
Court Vacates Lawyers’ Pro Hac Vice Revocation
The 4th Circuit vacates a South Carolina trial judge’s order revoking temporary admission to practice for three Miami lawyers who asked the judge to recuse himself from hearing a suit involving supplemental cancer insurance policies.
Belue v. Leventhal (VLW 011-2-097) (23 pp.)
New Order Can’t Correct ‘Accidental’ Language
A homeowners association suing a noncompliant owner can’t get a second default judgment with an injunction, after the first order included, “by accident,” language stating the owner was in compliance; a Fairfax Circuit Court says the earlier order was final and under Rule 1:1’s 21-day rule, it can’t enter another default.
Reston Home Owners Ass’n v. Ramirez (VLW 011-8-028) (4 pp.)
Email Doesn’t Satisfy ‘Meet & Confer’ Rule
A lawyer’s email directing opposing counsel to “read the rule,” when asked about an alleged Rule 26 discovery violation, was “unprofessional and unwarranted” and did not meet the requirement that counsel “meet and confer” prior to taking a dispute before the judge, said an Alexandria U.S. District Court.
Sydnor v. Fairfax County, Va. (VLW 011-3-159) (9 pp.)
Diversity Depends on Company’s ‘Nerve Center’
In a West Virginia coal sales company’s contract action against steel companies Severstal Wheeling and Mountain State, the 4th Circuit reverses the district court’s dismissal of the case for lack of subject matter jurisdiction; the district court erred in holding that Severstal Wheeling had its principal place of business in Wheeling, W.Va., instead of Dearborn, Mich., its “nerve center.”
Central W.Va. Energy Co. v. Mountain State Carbon LLC (VLW 011-2-074) (12 pp.)
ERISA Plan’s Forum Selection Clause Enforceable
A Big Stone Gap U.S. District Court enforces a forum selection clause in an employer’s benefit plan to transfer a plaintiff’s ERISA claim for disability benefits to a federal court in Iowa; in this first-impression case, the court says ERISA venue provisions do not trump the plan’s forum selection clause.
Smith v. Aegon USA LLC (VLW 011-3-114) (6 pp.)
Default Set Aside After ‘Confusion’ with Corporate Counsel
A company vp who mistakenly presumed outside counsel would defend an overtime-pay claim, based on the vp’s questions about the Fair Labor Standards Act and the nature of a delivery driver’s overtime-pay claim, was able to set aside a default judgment in Richmond U.S. District Court.
Mayberry v. Cedarfield Corp. (VLW 011-3-136) (6 pp.)
Venue Transfer from ‘Rocket Docket’ for Patent Case
Although plaintiff, a company that owns and manages a patent portfolio, adamantly denies it was forum-shopping for the rocket docket when it formed its company in Alexandria five months before filing its patent infringement suit against Facebook, LinkedIn, Photobucket and YouTube, an Alexandria U.S. District Court transfers venue to the Northern District of California.
Pragmatus AV LLC v. Facebook Inc. (VLW 011-3-081) (11 pp.)
Lacoste Can Subpoena Costco in ‘John Doe’ Suit
In this first-impression case, an Arlington Circuit Court says it has jurisdiction over a “John Doe” defendant in this suit filed by Lacoste for breach of contract and trademark infringement based on sale of its branded merchandise in club stores such as Costco, and the court grants Lacoste’s motion to compel discovery, with a protective order for Costco.
Lacoste Alligator S.A. v. John Doe (VLW 011-8-032) (4 pp.)
Written Statement ‘Inadequate’ After 7-Day Trial, Judge Says
A Virginia Beach Circuit Court rejects a written statement of facts proffered by plaintiffs as inadequate to cover a seven-day trial that included testimony of several expert witnesses, all of which was recorded by a court reporter.
Riggins v. Andrews (VLW 011-8-011) (3 pp.)
Sailor Can Sue Under Servicemembers Relief Act
A U.S. Navy sailor can sue under the Servicemembers Civil Relief to recover damages from the towing company that allegedly towed and sold his SUV while he was deployed; the 4th Circuit says an amendment to the Act applies retroactively.
Gordon v. Pete’s Auto Service of Denbigh Inc. (VLW 011-2-034) (11 pp.)
Frozen Human Embryos Have No ‘Standing’
Plaintiffs – frozen human embryos and their adoptive parents – do not have standing to challenge an Executive Order and federal research guidelines that relaxed restraints on the use of human embryonic stem cells from existing stem cell lines; the 4th Circuit affirms a district court’s dismissal of this suit that is “essentially a policy dispute over the administration’s approach to stem cell research.”
Doe v. Obama (VLW 011-2-013) (12 pp.)
Roofing Fumes Cases Can Be Consolidated
A Norfolk Circuit Court consolidated for a liability trial suits filed by six CBN employees who allege harm from chemicals used by a roofing company, but plaintiffs’ claims for damages must be tried separately.
Bond v. Baker Roofing Co. (VLW 010-8-244) (15 pp.)
No Personal Jurisdiction Over Ohio Machine Shop
A man who was injured when his forklift tipped over because defendant, an Ohio machine shop, allegedly mislabeled a 4,144-pound box as 2,800 pounds, cannot sue the company in Norfolk Circuit Court under the long-arm statute.
Frizzell v. Danieli Corp. (VLW 010-8-243) (11 pp.)
Plaintiff Gets Docs Under Crime/Fraud Exception
In this suit under the False Claims Act, an Alexandria U.S. District Court magistrate judge says there is a prima facie case that defendant Oracle misrepresented certain pricing practices during contract negotiations with the government, and offered commercial customers discounts it did not offer to the government, and then engaged a law firm to help further its scheme, so that the crime/fraud exception to the attorney-client privilege will apply to some of defendants’ communications with counsel.
U.S. ex rel. Paul Frascella v. Oracle Corp. (VLW 011-3-225)(4 pp.)
Post-Removal Party Realignment Keeps Case in Federal Court
In this declaratory judgment action filed against a CGL carrier that refused to defend a pool company in a $10 million wrongful death suit filed by the parents of a child who drowned, an Alexandria U.S. District Court will allow realignment of the parties and removal to federal court.
Lott v. Scottsdale Ins. Co. (VLW 011-3-268) (6 pp.)
One Voluntary Dismissal Not ‘Judge Shopping’
Although plaintiff, a former police officer for the Town of Vienna, voluntarily dismissed her Title VII hostile work environment suit against defendant town, one voluntary dismissal does not amount to improper “judge shopping,” and the Alexandria U.S. District Court denies the town’s motion to transfer the suit on that basis.
Fried v. Town of Vienna (VLW 011-3-605) (4 pp.)
Agency Must Produce Records on Medicare Fraud Claim
In this lawsuit by three former therapists at Marion Youth Center who allege violations of the federal False Claims Act and the Virginia Fraud Against Taxpayers Act, the Abingdon U.S. District Court refuses to excuse the commonwealth from production of electronically stored information due to undue burden or costs caused by its own negligent actions in maintenance of the information after it knew there would be litigation.
U.S. v. Universal Health Services Inc. (VLW 011-3-446)(12 pp.)
No FMLA Leave for Gambling Jaunt
A Verizon employee who was granted intermittent leave under the Family & Medical Leave Act for his depression, migraines and suicidal ideation, cannot sue Verizon for violation of the FMLA for terminating him after verifying that he spent several days of his intermittent leave gambling at an Atlantic City casino, after he had called in sick; the Richmond U.S. District Court Magistrate Judge grants summary judgment for Verizon.
Campbell v. Verizon Va. Inc. (VLW 011-3-522) (23 pp.)
Volltary Dismissal to Defeat Diversity
In this local license tax collection case removed to the Abingdon U.S. District Court by defendant taxpayer on the basis of diversity citizenship, the court denies plaintiff county’s motion to voluntarily dismiss the case in order to refile in state court with additional nondiverse defendants, an action that would prejudice defendant.
Buchanan County v. Equitable Production Co. (VLW 011-3-305) (6 pp.)
Bank Details, Corporate Representative Compelled
The Richmond U.S. Magistrate Judge compels discovery by corporate parties in international unfair trade practice litigation: Defendants must provide bank account and wire transfer details and plaintiffs must provide a representative prepared to address travel expense and technical testing issues central to plaintiff’s claims.
NewMarket Corp. v. Innospec Inc. (VLW 011-3-174) (13 pp.)
No Discovery of Driver’s Statements to Carrier
A defendant driver in this auto-accident case does not have to give plaintiff statements defendant made to her liability insurance carrier that prompted the carrier to open an investigation file; a Salem Circuit Court says the documents requested were work product prepared in anticipation of litigation and were non-discoverable.
Witt v. Shum (VLW 011-8-149) (4 pp.)
Non-Party Lawyer Can’t Seek Sanctions
A Virginia lawyer who is not a party to a contract case cannot move for Rule 11 sanctions based on allegations that defendant company made misrepresentations in its court filings that it had contacted the lawyer, who failed to follow through on an agreement to represent the company; a Norfolk U.S. District Court says the lawyer does not have standing to seek Rule 11 sanctions.
Pinpoint IT Services LLC v. Atlas IT Export Corp. (VLW 011-3-438) (9 pp.)
Experts’ Travel Time Can Be Reimbursed
A Norfolk U.S. District Court devises a test for reimbursing travel time for expert witnesses traveling to depositions for this condemnation case, and orders plaintiffs to reimburse travel expenses at 50 percent of the hourly rate the experts charge for depositions.
U.S. v. 1.604 Acres of Land (VLW 011-3-400) (6 pp.)
Worker-Safety Research Center Must Provide Docs
A maker of safety syringes designed to eliminate contaminated needlestick injuries, who is suing a competitor for patent infringement, false advertising and antitrust violations, wins its motion to compel a U.Va. worker safety research center to comply with a subpoena duces tecum to provide documents related to product-specific injury rates, the center’s data collection practices and any influence defendant competitor may have had on such practices; a Charlottesville U.S. District Court will not reconsider its earlier decision granting the motion to compel.
Retractable Technologies Inc. v. Int’l Healthcare Worker Safety Center (VLW 011-3-461) (8 pp.)
No Jurisdiction for Website Defamation Claim
A Canadian businessman who does business in Loudoun County cannot sue a New Jersey resident who allegedly defamed him on her website, hosted by servers in Texas; the Alexandria U.S. District Court is not persuaded that the website was targeted at Virginia, as there is no evidence defendant intended to target Virginia or a Virginia audience.
Knight v. Grayson and John Doe #1 (VLW 011-3-421) (10 pp.)
Spoliation Instruction OK’d for Slip & Fall
Although defendant supermarket employee said a store surveillance video did not show an 85-year-old woman’s fall in the store, he is the only person who saw the video before it was destroyed, and a Norfolk U.S. District Court says plaintiff is entitled to a jury instruction allowing the jury to assume the video would have been unfavorable to defendant store.
Aaron v. Kroger LPI (VLW 011-3-544) (3 pp.)
Public Adjuster Docs Protected as Work Product
In this litigation over insurance coverage for a shopping center fire, documents prepared by a public adjuster hired by the shopping center to assist in pursuing claims against defendant National Surety are protected by the attorney work product privilege, says a magistrate judge for the Alexandria U.S. District Court.
Yorktowne Shopping Center LLC v. National Surety Corp. (VLW 011-3-306) (4 pp.)
No Sanction on Claim of Altered Draft Order
A Richmond Circuit Court denies a med-mal plaintiff’s motion to sanction defense counsel on the ground that an order submitted to counsel for endorsement was altered from that which he previously submitted.
Wilson, Adm’r v. Bon Secours- Richmond Health System and Foxx (VLW 011-8-104) (2 pp.)
Partial Waiver of Privilege in Trade Secret Dispute
In a discovery dispute in DuPont’s suit alleging defendant Kolon Industries stole its secret processes and technologies for manufacturing Kevlar, the Richmond U.S. District Court says issuance of a press release by plaintiff DuPont was a partial waiver of privilege.
E.I. DuPont de Nemours v. Kolon Industries Inc. (VLW 010-3-399) (20 pp.)
No Spoliation Inference From Missing Videotapes
In this lawsuit filed by three former therapists at Marion Youth Center who allege race and gender discrimination and violations of the federal False Claims Act by submission of false claims to the Virginia Medicaid Program, the Abingdon U.S. District Court magistrate judge refuses to allow an “adverse spoliation inference” against defendants for their failure to produce videotapes of serious incidents, physical restraints and altercations.
U.S. v. Universal Health Services Inc. (VLW 011-3-347) (9 pp.)
‘Profane, Disrespectful’ Challenge to Arrest Not Obstruction
In this suit arising from the arrest of a mother, father and their two sons after police pulled one son over in the family driveway for a traffic violation, the Abingdon U.S. District Court says plaintiff mother may proceed with her suit under 42 U.S.C. § 1983 alleging she was wrongfully arrested and prosecuted by defendant local law enforcement officers.
Jackson v. Brickey (VLW 011-3-285) (15 pp.)
No Claim for School Mold Exposure
A grade-school student who allegedly suffered ongoing illness from mold at his school cannot sue the school board or the school system’s assistant for facilities and maintenance and its executive director of faculties for constitutional violations under 42 U.S.C. § 1983, says a Norfolk U.S. District Court.
J.S., an Infant v. Thorsen (VLW 011-3-116) (48 pp.)
No FOIA Claim for School Board Emails
A school board did not violate the Virginia Freedom of Information Act by conducting a meeting through email exchanges during the days leading up to the board’s decision to vote to close an elementary school; although the Fairfax Circuit Court finds the board did violate VFOIA by failing to timely produce documents, the violation was de minimis and petitioner is not entitled to attorney’s fees.
Hill v. Fairfax County School Board (VLW 011-8-158) (9 pp.)
High School Student Disciplined for MySpace Page
A high school could suspend a student for five days for using a MySpace page to target another student with ugly accusations about herpes, on the ground that the out-of-school speech caused an in-school disruption; the 4th Circuit upholds a district court decision that the discipline did not violate the student’s First Amendment free speech rights.
Kowalski v. Berkeley County Schools (VLW 011-2-131) (20 pp.)
No Immunity for Grabbing Glock, Not Taser
A deputy who mistook his pistol for a Taser can be sued for shooting an unarmed, fleeing suspect; on rehearing, the en banc 4th Circuit says a jury could find that the deputy’s mistake was “objectively unreasonable” because he should have realized he had grabbed a .40 caliber Glock handgun and there was no threat from the man he was chasing for failure to pay child support.
Henry v. Purnell (VLW 011-2-126) (56 pp.)
Detainee Has Due Process Claim Against Court Clerk
A woman who alleges she was unlawfully imprisoned for 87 days in late 2009 after a decision was made not to prosecute her for threatening to burn her mother’s house cannot sue her former public defender, but a Newport News U.S. District Court says she may sue the clerk of court and a deputy clerk for a due process violation under 42 U.S.C. § 1983 and for negligence and punitive damages.
Harbeck v. Smith (VLW 011-3-596) (58 pp.)
Court OKs Pepper Spray of Passenger
A police officer’s use of pepper spray to subdue a young woman who said she would not appear in court on a traffic summons and who swung at the officers during their encounter in a convenience store parking lot, was objectively reasonable, and a Richmond U.S. District Court grants summary judgment to the officer on plaintiff’s excessive force claim.
Williams v. Brumbaugh (VLW 011-3-319)(10 pp.)
Excessive Force Claim for Tight Handcuffs
A 67-year-old woman who was handcuffed and arrested during a domestic dispute after her cat knocked over her husband’s mixed drink can sue a Newport News police officer under 42 U.S.C. § 1983 for alleged excessive force based on keeping her in tight handcuffs in a holding cell despite her complaints about the pain; but the Newport News U.S. District Court dismisses plaintiff’s complaints against the city and its police chief.
Hales v. City of Newport News (VLW 011-3-559) (39 pp.)
Virginia Has No Standing to Challenge PPACA
The Commonwealth of Virginia does not have standing to challenge the “individual mandate” to maintain health insurance, a provision of the federal Patient Protection and Affordable Care Act, and a Virginia statute that purports to limit enforcement of the federal statute does not confer standing; the 4th Circuit vacates the district court decision that found standing and struck the individual mandate as unconstitutional.
Commonwealth v. Sebelius (VLW 011-2-148) (33 pp.)
No Jurisdiction to Hear PPACA Case
The 4th Circuit has no jurisdiction to hear Liberty University’s constitutional challenge to the “individual mandate” of the Patient Protection and Affordable Care Act, as the federal Anti-Injunction Act strips the federal court of jurisdiction; the 4th Circuit vacates the district court decision upholding the individual mandate and remands the case for dismissal.
Liberty University Inc. v. Geithner (VLW 011-2-147) (140 pp.)
County’s Ordinance Means Cartoon Sign is ‘Dog-Gone’
A doggie daycare provider loses her challenge to a zoning ordinance after the county objected to her mural showing frolicking cartoon dogs.
Wag More Dogs LLC v. Artman (VLW 011-3-097) (33 pp.)
No ‘Jane Doe’ Petition for Registered Sex Offender
A Richmond U.S. District Court dismisses a woman’s suit challenging Virginia’s statutory scheme in which registered sex offenders use their real names when they petition a state court for permission to go on school or daycare property.
Doe v. Va. Dep’t of State Police (VLW 011-3-350) (21 pp.)
Post-Dated Disclosure Form States TILA Claim
Even if post-dating rescission-right disclosure forms is “prevalent in the industry,” it’s confusing to the average borrower, says a Harrisonburg U.S. District Court, and it gives the borrower a chance to rescind a mortgage loan by refusing to dismiss the borrower’s Truth in Lending Act claim.
Conrad v. Farmers and Merchants Bank (VLW 011-3-073) (8 pp.)
No Strict Liability for Third-Party Telemarketing Calls
The Virginia Telephone Privacy Protection Act does not impose strict liability on defendant Dish Network LLC, and even if it were to be found responsible for telemarketing calls to plaintiff, who is on the National Do Not Call Registry, an Alexandria U.S. District Court says defendant has an affirmative defense under the statute.
Zhu v. Dish Network LLC (VLW 011-3-223) (8 pp.)
Claims Against Credit Reporting Agency Advance
A plaintiff can try his claim that defendant Experian has violated the Fair Credit Reporting Act by failing to reinvestigate plaintiff’s assertion that the agency is reporting on his account a debt he does not owe by contacting the lender that is reporting the debt; an Alexandria U.S. District Court denies summary judgment to Experian on plaintiff’s FCRA claims and his emotional distress claim.
Burke v. Experian Information Solutions Inc. (VLW 011-3-153) (15 pp.)
Law Firm Faces FDCPA Suit Over Dunning Letter
A Richmond U.S. District Court refuses to dismiss a putative class action suit against a law firm whose dunning letter allegedly violated the Fair Debt Collection Practices Act because it failed to notify debtor she needed to dispute the debt in writing.
Bicking v. Law Offices of Rubenstein and Cogan (VLW 011-3-251) (9 pp.)
Dunning Letter Without Tax Advice Not FDCPA Violation
A debt collector’s dunning letter trumpeting “tax season savings” and offering a discount for a pay-off did not violate the Fair Debt Collection Practices Act because it failed to discuss tax consequences of accepting a discount on the debt, and the Alexandria U.S. District Court dismisses debtor’s suit under the FDCPA.
Landes v. Cavalry Portfolio Services LLC (VLW 011-3-175) (13 pp.)
Court Certifies Class in Fair Credit Suit
A Richmond U.S. District Court certifies a class in a suit alleging defendant Equifax violated the Fair Credit Reporting Act by failing to update consumers’ credit reports, including plaintiff’s own report that failed to record that an uncontested judgment against plaintiff had been set aside and dismissed.
Soutter v. Equifax Information Services LLC (VLW 011-3-173) (41 pp.)
No TILA Rescission for Wife Who Did Not Sign Note
A wife who did not sign the note when her husband used the family home as collateral for a loan is not an obligor with rights under the Truth in Lending Act and a Norfolk U.S. District Court dismisses her suit for rescission under the TILA.
Falkiner v. OneWest Bank FSB (VLW 011-3-230)( 9 pp.)
Collections Lawyer Liable for Attorney’s Fees
Having found defendant lawyer in fact authorized counsel to settle this suit alleging violations of the Fair Debt Collection Practices Act and the Virginia Consumer Protection Act, a Richmond U.S. District Court accepts a magistrate judge’s recommendation and orders defendant lawyer to pay plaintiffs $27,296.58 in attorney’s fees and costs.
Bralley v. Carey (VLW 011-3-534) (9 pp.)
Fair Debt Claims Against Law Firm Advance
A Richmond U.S. District Court refuses to dismiss a homeowner’s suit alleging defendant law firm, appointed as a substitute trustee to foreclose on plaintiff’s home, violated the Fair Debt Collection Practices Act by communicating with him when he had a lawyer, misrepresenting that Fannie Mae and another entity were “affiliates” and conducting an unauthorized foreclosure sale.
Goodrow v. Friedman & MacFadyen PA (VLW 011-3-293) (13 pp.)
Lawyer’s Loan Was ‘Personal’ Debt
A district court erred in granting summary judgment to a lender on a borrower’s suit for violation of the Fair Debt Collection Practices Act, on the ground that a debt was commercial, not personal; the 4th Circuit vacates the summary judgment order and the court’s award of over $22,000 under the FDCPA against an attorney who was acting pro se.
Smith v. EVB (VLW 011-2-127(UP)) (9 pp.)
Engineering Firm Collects Fees for Site Plan
An engineering firm that did not have correct information and failed to site defendant’s Louisa County tire recycling plant in the service area for Dominion Virginia Power, can collect $18,160 in attorney’s fees after its successful mechanic’s lien action to collect unpaid contract fees; although the firm is eligible for attorney’s fees on its successful defense of a contract counterclaim, the Fairfax Circuit Court awards the firm only $1 in fees.
Dewberry & Davis Inc. v. C3NS Inc. (VLW 011-8-118)(7 pp.)
Lawyer Can’t Sue for Fee on Contract with PC
A lawyer’s suit to collect a fee from a former client is dismissed by a Norfolk Circuit Court because the lawyer has no standing to sue in his individual name on a contract between the client and the lawyer’s professional corporation.
Weisberg v. Babakaeva (VLW 011-8-114) (3 pp.)
Sharing Law Firm Document Waives Privilege
In this suit under the False Claims Act against Oracle Corporation, an Alexandria U.S. District Court magistrate judge grants a motion to compel production of documents withheld by a law firm as protected work product, finding that protection has been waived when defendants used the law firm’s report to try and convince the government not to prosecute defendants.
U.S. ex rel. Paul Frascella v. Oracle Corp. (VLW 011-3-423) (5 pp.)
IT Contractor Wins Non-Compete Damages from Sub
A government IT contractor who hired defendant subcontractor to provide SAP/ERP consulting services wins $172,395.95 from the sub, who violated a non-compete that prevented him from working for either of two companies for 12 months after he left, in this Fairfax Circuit Court case.
Preferred Systems Solutions Inc. v. GP Consulting LLC (VLW 011-8-159) (8 pp.)
Stock Transfer Untimely Under Contract
A stock purchase agreement that called for a transfer of shares “upon closing” meant the shares should be delivered at closing or as soon as practical thereafter, and defendant’s transfer of the shares nearly one and one-half years later was untimely, says a Charlottesville U.S. District Court.
Belmont Partners LLC v. China YiBai United Guarantee Int’l Holding Inc. (VLW 011-3-023) (5 pp.)
Court Looks at Test for Expedited Discovery
A software developer for airborne military operations that is suing its former vice president for business development for allegedly forming a competing company in violation of his contract and Virginia’s trade secrets statute, is not entitled to expedited discovery; a Newport News U.S. District Court magistrate judge sticks to the Blackwelder test to evaluate the request for expedited discovery, despite the 4th Circuit’s stricter standard for injunctive relief.
ForceX Inc. v. Technology Fusion LLC (VLW 011-3-352) (13 pp.)
Government Contractor Wins Costs
A government contractor can collect costs including videography and private process server fees, from its former sales manager who sued for retaliation and defamation by the contractor after the sales manager claimed the contractor fraudulently bid on a contract to supply assault rifles with ambidextrous selector levers when the ambi-levers were only delivered after bids closed; the Alexandria U.S. District Court awards defendant contractor $23,890 of its request for $67,918 in costs.
Mann v. Heckler & Koch Defense Inc. (VLW 011-3-221) (22 pp.)
Employer Can Sue on Settlement-Agreement Noncompete
A noncompete covenant in a company’s settlement of a claim that its former marketing manager took company funds – a type of noncompete not previously reviewed in Virginia – gets more latitude than a noncompete between an employer and current employee, and a Charlottesville U.S. District Court says plaintiff company can sue its former manager for conversion and breach of the noncompete for forming a competing alter-ego business with his granddad six days after the manager signed the noncompete.
McClain & Co. v. Carucci (VLW 011-3-244) (16 pp.)
FCA Relator Can’t Enforce ‘Settlement,’ But Wins on Fees
A former employee of a government IT contractor loses his appeal claiming the district court should have enforced his $9 million settlement of his False Claims Act suit against the contractor and committed error during trial of the case that ended in the contractor’s favor, but the 4th Circuit reverses the district court order that the employee pay the contractor’s $500,000 attorney’s fees.
U.S. ex rel. Thomas M. Ubl v. IIF Data Solutions (VLW 011-2-078) (24 pp.)
Condo Association Wins Punitives Against Management
Although a condo owners association’s contract with a management company referenced association bylaws, the association did not have to comply with a bylaw to require a vote of unit owners to terminate the contract, but could terminate with written notice for cause; the Supreme Court of Virginia affirms a jury award of $70,667 in damages on the association’s contract claim for mismanagement of its payroll and taxes, as well as summary judgment, and a jury award of $91,125 compensatory damages and $275,000 punitive damages, on the association’s conversion claim against the management company.
Condominium Servs. Inc. v. First Owners’ Ass’n of Forty Six Hundred Condominium Inc. (VLW 011-6-056) (27 pp.)
Stock Buyer’s ‘Due Diligence’ Supports Fraud Claim
An Alexandria U.S. District Court says plaintiffs who contracted to sell over 1 million shares of stock in Mediatech, a Virginia-based biotech company, but who later blamed misrepresentations by defendant buyer for their agreement to a sale price of $4 per share instead of the “actual value” of $10 per share, can sue for rescission of the agreement based on defendant’s alleged misrepresentations about the company’s EBITDA, its credit status and a lender’s intent to foreclose.
Elliott v. Great Point Partners LLC (VLW 011-3-028) (23 pp.)
‘Writing’ Not Waived for Change Orders
Although an employee of defendant contractor allegedly told plaintiff subcontractor “not to worry” about an increase in flowable fill on the project, defendant did not waive the contract requirement for written change orders, and a Richmond U.S. District Court grants summary judgment for defendant contractor on plaintiff sub’s contract and quantum meruit claims arising out of the provision of excess flowable fill, extra off-duty police officers for traffic control and specialty signage, but denies summary judgment on the sub’s claims arising out of payment of lost parking meter revenues.
Carolina Conduit Systems Inc. v. MasTec N.A. Inc. (VLW 011-3-615) (13 pp.)
Scientist Has Defamation & Contract Claims
In this dispute between Shire LLC, a drug company, against a scientist who formerly worked for another company acquired by Shire, and who left to form his own biopharmaceutical company, KemPharm, the Roanoke U.S. District Court refuses to dismiss the scientist’s counterclaims for defamation and breach of a nondisparagement agreement, based on remarks by a Shire officer at an industry conference in Massachusetts that Shire owned intellectual property associated with KemPharm.
Shire LLC v. Mickle (VLW 011-3-146) (10 pp.)
Part Performance No Bar to Repudiation Defense
An executive who asked for a raise in pay to $1 million and said if he didn’t get it, he would act as a consultant while he looked for another job, loses his contract suit for severance pay; the Supreme Court of Virginia affirms the jury verdict for the employer, saying that even though the executive may have continued to perform some duties under the contract, the employer could rely on a defense of repudiation.
Bennett v. Sage Payment Solutions Inc. (VLW 011-6-090) (16 pp.)
Sales Manager Forfeits Bonus with Unreported DUI
A Lynchburg U.S. District Court says a home grocery delivery service did not breach its contract with a sales manager when it refused to pay a $104,817 bonus in 2007, after the sales manager’s arrest for DUI and suspension of his driver’s license.
Cauvel v. Schwan’s Home Service Inc. (VLW 011-3-101) (16 pp.)
Warranty Statements Not Expressions of Opinion
The manufacturer of a galvanized steel roof cannot avoid a homeowners’ suit on an alleged warranty for “complete repair or replacement” by claiming the warrant statements were expressions of opinion, an Alexandria U.S. District Court says.
Gottlieb v. Ryerson Inc. (VLW 011-3-011) (7 pp.)
No FCA Claim for Complaints on Contractor’s Bid
An employee unhappy with the way a government contractor bid on a contract to supply weapons to a Secret Service counterassault team cannot sue under the False Claims Act if there is no fraud, even if the bid violated federal regs, the 4th Circuit says.
Mann v. Heckler & Koch Defense Inc. (VLW 010-2-190) (20 pp.)
Marketing Agreement as ‘Personal Services’ Contract
A franchise consulting company wins a contract case against Freshii, a Canadian franchisor of “healthy fast-food” restaurants, involving their exclusive marketing and sales agreement, in this case from Alexandria U.S. District Court.
Fransmart LLC v. Freshii Development LLC (VLW 011-3-120) (30 pp.)
Billing Rates May Need Update
In awarding fees on a motion to compel in a franchise termination case, an Alexandria U.S. District Court says law firm billing rates probably have changed since the 2008 economic downturn, and the magistrate judge needs to take another look.
United Marketing Solutions Inc. v. Fowler (VLW 011-3-129) (11 pp.)
With Issue Pending, Noncompete Survives Demurrer
A Loudoun County Circuit Court overrules defendant’s demurrer and says a construction company may sue its former employee for allegedly breaching a noncompete agreement by soliciting business from a client and trying to hire a former coworker within 12 months of leaving employment with the construction company; defendant’s demurrer is overruled, in light of existing case law and the fact that two noncompete cases presently are pending before the Supreme Court of Virginia.
Mileston Construction Servs. Inc. v. Lynch (VLW 011-8-175) (3 pp.)
Builder Did Work Without Change Orders
A Salem Circuit Court says a contractor who did not require written change orders as he built a $1.3 million home for defendant owners cannot now rely on explicit contract language that required written change orders to get payment for an additional $605,694 worth of work, including a retaining wall, turret windows, an outdoor entertainment area with pool and custom kitchen carpentry.
Crawford Construction & General Contractors Inc. v. Kemp (VLW 011-8-166) (6 pp.)
Builder’s Ban from Jobsite Was Material Breach
A homeowner was the first to breach a contract for construction of an addition and renovations to his Norfolk home when he emailed the contractor ordering him to cease work and stay away unless the contractor had written permission from the owner to come on the jobsite; the Norfolk Circuit Court says the owner can’t belatedly blame the contractor for “unworkmanlike” construction because the work passed city inspections and the owner did not learn of complaints about the quality of work until he hired a second contractor to finish the project.
Builders By Design LLC v. Wilson (VLW 011-8-211) (8 pp.)
Supplier Can Sue to Enforce Lien
In a supplier’s suit to enforce a mechanic’s lien against homeowners, an agreement between the supplier and the homeowners’ builder does not let the homeowners off the hook, says a Loudoun County Circuit Court.
TWP Enterprises Inc. v. Dressel (VLW 011-8-019) (4 pp.)
Court Upholds Award on Restrictive Covenant
In this suit involving a therapy contractor’s claims that nine defendant facilities terminated their contracts and then hired 57 of the contractor’s former employees in violation of a restrictive covenant, a Lynchburg U.S. District Court affirms an arbitrator’s award that held defendant health care company jointly and severally liable for a damage award for the breach.
ProTherapy Associates LLC v. AFS of Bastian Inc. (VLW 011-3-447) (4 pp.)
Pre-Incorporation Signing OK for Disclosure Packet
Although a homeowners’ association was not incorporated when debtors signed documents acknowledging receipt of the disclosure packet required under the Virginia Property Owners Association Act, the 20-month delay in incorporation did not allow debtors to cancel their agreement to buy a subdivision lot for $450,000, and a Richmond U.S. District Court upholds the bankruptcy court’s decision for the developer.
Hubbard v. Stony Point Land Inc. (VLW 011-3-468) (9 pp.)
Court Pierces Veil on Sub’s Contract Claim
A subcontractor on a boiler project at the University of Richmond can pierce the corporate veil of its own subcontractor and win judgment against the sub-subcontractor ‘s sole shareholder of its defunct corporation, as the shareholder failed to observe corporate formalities; but the Henrico Circuit Court denies reverse corporate veil piercing against another corporation formed by the wife of the sole shareholder.
ACE Electric Co. v. Advance Technologies Inc. (VLW 011-8-115) (7 pp.)
No ‘Deepening Insolvency’ Claim for Law Firm
Holding that neither Virginia nor Delaware would recognize a claim for “deepening insolvency,” an Alexandria U.S. District Court dismisses a Swedish law firm’s claim for breach of fiduciary duty against a defendant who allegedly failed to pay legal fees for services provided to the company, but lets another claim for fees go forward.
Anderson Gustafsson Advokatbyra KB v. eSCRUB Systems Inc. (VLW 011-3-109) (8 pp.)
Confessed Judgment Set Aside
A Fairfax Circuit Court sets aside a confessed judgment against business-loan guarantors, because no affidavit was filed simultaneously with the confession of judgment, as required by the guaranties.
Boothe v. First Virginia Community Bank (VLW 011-2-081) (7 pp.)
Garnishment of Pa. Doc’s Wages Quashed
A Danville U.S. District Court grants debtor doctor’s motion to quash a garnishment summons to pay creditor Virginia hospital a Pennsylvania resident doctor’s wages paid by an Ohio company; debtor’s wages are not located in Virginia and a garnishment summons issued by this court is ineffective to garnish them.
Memorial Hospital of Martinsville v. D’Oro (VLW 011-3-398) (10 pp.)
Court Awards ‘Reasonable’ Fee, Not Contract Fee
An inventory financing company that provides floor plan financing for used car dealers, and that won summary judgment against the guarantors of promissory notes for several Northern Virginia dealers, is not entitled to an attorney’s fee award of $473,422 under the promissory notes, but only is awarded a “reasonable” fee of $213,761, says an Alexandria U.S. District Court.
Automotive Finance Corp. v. EEE Auto Sales Inc. (VLW 011-3-444) (21 pp.)
Court Upholds Ecstasy Conviction for ‘Enforcer’
The en banc Court of Appeals affirms a conviction for an alleged “enforcer” who stood away from a car as others approached and got into the car with a suitcase, after getting off a midnight bus from New York City; but a detective said an enforcer usually is “a large guy who’s armed,” and the dissent says there was no evidence the guy was physically big or armed with anything other than a pen knife in his belt buckle
Merritt v. Commonwealth (VLW 011-7-024) (21 pp.)
Defendant Objected to Drug Stipulation, Gets New Trial
A defendant wouldn’t sign a stipulation on drug testing and heroin quantity, but his defense lawyer did, and the 4th Circuit calls a violation of the defendant’s Sixth Amendment confrontation right and orders a new trial.
U.S. v. Williams (VLW 011-2-015) (34 pp.)
Texting Driver Can Be Convicted of DUI, Manslaughter
A trial court did not have to dismiss an indictment for vehicular aggravated involuntary manslaughter after defendant’s DUI conviction, as a double jeopardy violation, and it affirms defendant’s manslaughter conviction for driving while text-messaging and driving over his cousin, who was lying in an unlit road after drinking at a party.
Davis v. Commonwealth (VLW 011-7-008) (19 pp.)
E-Harassment Convictions Upheld, Court Orders Resentencing
A woman who electronically harassed her former supervisor at a real estate firm after they ended their two-year affair and she moved from Northern Virginia to Chattanooga, is convicted of electronic communications offenses for making harassing phone calls to the supervisor and his wife and business associates, and threatening to send copies of damaging emails, but the 4th Circuit says two felony convictions should have been misdemeanors, and orders resentencing.
U.S. v. Cioni (VLW 011-2-082) (19 pp.)
Hearsay Admission at Revocation Hearing Was Error
At a robbery defendant’s probation revocation hearing, the trial court violated defendant’s due process right to confront the witnesses against him when it admitted a detective’s hearsay testimony concerning two other offenses, one of which never resulted in charges against the defendant and one where the charges were dropped; the Court of Appeals says that in non-trial proceedings involving an accused’s liberty interest, a balancing approach to admission of hearsay is the preferred test.
Henderson v. Commonwealth (VLW 011-7-210) (48 pp.)
No Reversal After Jury Poll Shows One Juror Still ‘Iffy’
Although one juror said, when the court polled the jury at defendant’s request, that she was “still kind of iffy” as to defendant’s guilt on drug and firearms charges, the trial court did not commit reversible error in continuing to poll the jury and sending the jury back for further deliberations; the 4th Circuit joins the majority of circuits to have considered this issue and holds that, in conducting a jury poll at a defendant’s request, reversible error occurs not when the judge merely continues the jury poll, but when the judge coerced the jurors into a premature verdict.
U.S. v. Penniegraft (VLW 011-2-105) (21 pp.)
Prosecutor Said Juror Strikes Were Not Race-Neutral
Defendant is not entitled to reversal of his jury trial convictions for first degree murder and use of a firearm; the Court of Appeals says the trial court did not clearly err in finding that defense counsel’s peremptory strikes of two African-American veniremembers for alleged inattentiveness were not race-neutral under Batson.
Osorio v. Commonwealth (VLW 011-7-192)(UP)(4 pp.)
‘Threat’ Conviction Upheld for MySpace Posts
A defendant’s MySpace profile posts of his rap song lyrics that made references to his child’s mother during their custody battle and talked repeatedly about murdering the mother by slitting her throat supported defendant’s conviction for communicating a written threat in violation of Va. Code § 18.2-60(A)(1), the Court of Appeals says.
Holcomb v. Commonwealth (VLW 011-7-195) (10 pp.)
Implied Consent Extends to Machine-Required Retest
Defendant is not entitled to reversal of his bench trial conviction for violating Virginia’s implied consent statute Va. Code § 18.2-268.3, the Court of Appeals said; under our deferential standard of view, the record supports the trial court finding that defendant intentionally and unreasonably refused to provide a valid breath sample after the machine indicated a retest was required.
Chisman v. Commonwealth (VLW 011-7-193)(UP)(5 pp.)
Sentencing Court Erred on ‘Safety Valve’
A Newport News U.S. District Court says it committed clear error at an earlier sentencing, and a drug defendant who otherwise qualified for the “safety valve” provision of 18 U.S.C. § 3553(f), need not be sentenced to a mandatory minimum sentence just because his guideline range exceeded the mandatory minimum.
U.S. v. Brown (VLW 011-3-107) (22 pp.)
No Right to Confront Witnesses at Sentencing
A defendant convicted of mail fraud for his scheme of selling electronics over the Internet, who pocketed the money without shipping the products, is not entitled to resentencing because the district court used hearsay to conclude defendant had harmed more than 10 people and caused just under $200,000 in damages; the 4th Circuit joins its sister circuits to hold that the Confrontation Clause does not apply at sentencing proceedings.
U.S. v. Powell (VLW 011-2-096) (13 pp.)
No Padilla Relief on 10-Year Old Guilty Plea
A woman who pleaded guilty to immigration fraud 10 years earlier is not entitled to a writ of coram nobis on her claim that counsel failed to advise her prior to her plea hearing about possible deportation; an Alexandria U.S. District Court says Padilla is not retroactive on collateral review.
Mendoza v. U.S. (VLW 011-3-169) (13 pp.)
No ‘One Free Lawyer’ Rule
The 4th Circuit takes issue with a district judge telling defendant one lawyer was his “free limit,” but says denial of defendant’s motion for new counsel did not render his guilty plea invalid.
U.S. v. Smith (VLW 011-2-098) (33 pp.)
Accountant’s Tax Fraud Convictions Upheld
At an accountant’s trial for preparing false tax returns, any error by the district court in referring to guilty pleas entered by two taxpayers for whom the accountant prepared the fraudulent returns was harmless, and the 4th Circuit affirms the accountant’s convictions on four counts of tax fraud.
U.S. v. Poole (VLW 011-2-095) (16 pp.)
Doubting Juror Should Have Been Struck
Although the trial court tried to rehabilitate a potential juror who expressed a “preconceived notion” that “if you go to court ….you’re pretty much guilty,” the juror was not properly rehabilitated and should have been struck; the Court of Appeals reverses defendant’s convictions of aggravated malicious wounding and child neglect.
Scott v. Commonwealth (VLW 011-7-163) (8 pp.)
Single Drug Involvement Supports Conspiracy Conviction
Three out of 36 defendants who stood trial on drug conspiracy charges cannot overturn their convictions with an argument that the government had to present proof of each defendant’s connection to the three drugs distributed by the conspiracy – cocaine, OxyContin and Lortab – for the conspiracy conviction to stand; but the Abingdon U.S. District Court grants judgment of acquittal to one defendant, who bought pain pills for personal use and was not part of the conspiracy.
U.S. v. Trenton (VLW 011-3-213) (27 pp.)
Defendant’s BAC Certificate Waived Objection
At defendant’s trial for aggravated involuntary manslaughter after a fatal auto accident, defendant’s introduction of a certificate of analysis showing his blood alcohol content at .14 percent acted to waive his objection to admission of the prosecution’s certificate showing a .16 percent BAC, and the Court of Appeals affirms defendant’s conviction.
Isaac v. Commonwealth (VLW 011-7-166) (9 pp.)
Failure to Suppress Confession Was Ineffective Assistance
The 4th Circuit upholds a writ of habeas corpus for Derek Tice, one of the “Norfolk Four” convicted of the rape and murder of Michelle Bosko, and says the Supreme Court of Virginia misapplied the Strickland standard for ineffective assistance of counsel, in considering the failure of Tice’s trial lawyers to suppress his confession.
Tice v. Johnson (VLW 011-2-081) (47 pp.)
‘Actual Buyer’ Question OK on ATF Form
A Roanoke U.S. District Court will not dismiss an indictment charging defendant with making a false and fictitious written statement to a firearms dealer, for allegedly representing he was the “actual buyer,” when he was purchasing the firearm for another; the court rejects defendant’s claim that the “actual buyer” question on the federal form is not statutorily required, but is a substantive requirement added by the Bureau of Alcohol, Tobacco, Firearms and Explosives.
U.S. v. Abramski (VLW 011-3-214) (7 pp.)
Court Looks at National v. Local Gang Membership
In a first-impression case, the Court of Appeals says a local “36th Street Bang Squad’s” association with the national Bloods street gang did not make the local group a “criminal street gang,” and the court reverses a defendant’s conviction for a gang-related crime under Va. Code § 18.2-46.2.
Taybron v. Commonwealth (VLW 011-7-009) (16 pp.)
Beachcomber’s Conviction of ‘Unauthorized Removal’ Reversed
A Norfolk U.S. District Court reverses a criminal conviction for “unauthorized removal” of personal property, for a woman who cut a length of rope from a beached fishing vessel at Chincoteague National Wildlife Refuge, and took a life preserver from the boat, the Freda Marie, that was floating nearby.
Tait v. U.S. (VLW 011-3-037) (31 pp.)
Unpaid Bodyguards with Guns Are ‘Employed’
Defendant members of the Pagans Motorcycle Club who carried guns to protect their national vice president, a convicted felon, were in possession and “employed for” a convicted felon, even without tangible compensation, and the 4th Circuit says the district court erred in dismissing weapons charges under 18 U.S.C. § 922(h) on the ground that there had to be some form of payment to prove the offense.
U.S. v. Weaver (VLW 011-2-158) (9 pp.)
Officer Assault Yields ‘Career Offender’ Sentence
A defendant’s prior Virginia conviction for assault and battery on a police officer was a “crime of violence” that supports a sentencing enhancement for “career offender” status under federal sentencing guidelines, and the Big Stone Gap U.S. District Court overrules defendant’s objection to the enhancement of his sentence on drug and firearm convictions.
U.S. v. Doss (VLW 011-3-598) (7 pp.)
No Appeal Advice Was ‘Ineffective Assistance’
A Harrisonburg U.S. District Court Magistrate Judge recommends granting defendant’s 28 U.S.C. § 2255 motion for post-conviction relief and vacatur of his sentence, to allow him to seek direct review of his conviction for drug conspiracy; defense counsel’s advice and discussions with defendant and his mother did not constitute a minimally adequate consultation sufficient to inform defendant of the advantages and disadvantages of an appeal, and defense counsel also failed to make a timely determination of whether defendant wanted to appeal.
U.S. v. Kelsey (VLW 011-3-569) (9 pp.)
LEO-Based Ineffective Assistance Claims Fail
A man who pleaded guilty to drug conspiracy loses his post-conviction motion alleging ineffective assistance of counsel, including claims his lawyer violated Virginia State Bar ethics opinions by charging an advanced fixed fee and counseling him on a plea agreement waiver.
U.S. v. Stevens (VLW 011-3-562) (25 pp.)
No Felony Without ‘Serious’ Mental Injury
Although a 17-year-old girl who was forcibly molested by the two defendants was understandably “agitated” and “upset,” even two years later when she testified at their trial, the commonwealth failed to establish the girl suffered a particularly “grave” mental injury, and the Court of Appeals reverses the two defendants’ convictions for the felony of aggravated sexual battery and remands for entry of convictions on misdemeanor sexual battery.
Gonzin v. Commonwealth (VLW 011-7-322) (11 pp.)
‘Crime Fraud’ Applies, Psychiatrist Must Provide Records
The federal common law should recognize a crime-fraud exception to the psychotherapist-patient privilege, says an Abingdon U.S. District Court magistrate judge, and she orders a D.C. psychiatrist to produce patient records subpoenaed during a grand jury investigation of prescription of Schedule II controlled substances.
In re: Sealed Grand Jury Subpoenas (VLW 011-3-564) (13 pp.)
Girlfriend Beating Is ‘Malicious’ Bodily Injury
The Court of Appeals upholds defendant’s conviction for maliciously causing bodily injury by beating his girlfriend, leaving her with chronic pain; defendant can be convicted under the “malicious wounding” statute, Va. Code § 18.2-51, even though an injury did not involve shooting, cutting, stabbing or otherwise breaking the skin by external violence.
English v. Commonwealth (VLW 011-7-296) (7 pp.)
Lawyer’s Sentence as ‘Organizer’ Upheld
A lawyer who doctored documents and acted as the “closer” for a scheme to solicit investors in partnerships to buy, hold and then donate, cemetery lots, can have his tax fraud sentence enhanced for being a “leader or organizer” and willfully obstructing justice, says the 4th Circuit.
U.S. v. Thorson (VLW 011-2-023) (39 pp.)
‘Mid-Level’ Drug Dealer’s Sentence Reversed
A mid-level drug dealer who did not supervise others should not have received a three-level enhancement for a “leadership” role under USSG § 3B1.1(b); the enhancement constitutes plain error and the 4th Circuit vacates defendant’s 365-month sentence and remands for resentencing.
U.S. v. Slade (VLW 011-2-024) (11 pp.)
Gun Statute May Violate Second Amendment
The 4th Circuit vacates a gun conviction for a man with a prior conviction for misdemeanor domestic violence and sends the case back to the district court to consider whether 18 U.S.C. § 922(g)(9) abridges the man’s Second Amendment rights under D.C. v. Heller.
U.S. v. Chester (VLW 010-2-189) (35 pp.)
Daycare Van Driver Showed ‘Reckless Indifference’
A daycare van driver displayed an “inexcusable pattern of recklessness” when he strapped a 13-month-old baby into the van and left him unattended on a hot July day while the driver went home, turned off his cell phone, and slept; the Court of Appeals affirms the driver’s convictions for involuntary manslaughter and felony child neglect and the revocation of a deferred disposition on cocaine charges.
Whitfield v. Commonwealth (VLW 011-7-002) (9 pp.)
Jurors Can Be Struck for Translation Hesitation
Spanish-speaking jurors who express doubt about abiding strictly by translations provided by official court translator during this drug conspiracy trial can be struck for cause, the 4th Circuit says; striking three jurors did not violate defendant’s Sixth Amendment rights, and defendant’s convictions for conspiracy to import and distribute cocaine and heroin are affirmed.
U.S. v. Cabrera-Beltran (VLW 011-2-166) (21 pp.)
No Vacatur After Voluntary Guilty Plea
A trial court had no authority to vacate defendant’s guilty finding based on his plea and suspend imposition of sentence pursuant to Va. Code § 19.2-303 with an implied final disposition that would avoid a conviction, and the Court of Appeals affirms the trial court decision rejecting a deferred disposition for defendant.
Epps v. Commonwealth (VLW 011-7-346) (12 pp.)
Sentence Enhancement for Obstruction Needs Findings
In order to enhance a defendant’s sentence for obstruction of justice based on perjury, the 4th Circuit says the sentencing court must make findings to clearly establish a defendant gave false testimony on a material matter with willful intent to deceive, and because the court here failed to make the necessary findings, defendant’s enhanced sentence is reversed.
U.S. v. Perez (VLW 011-2-162) (9 pp.)
Conviction Reversed for ‘Fatal Variance’
A defendant who was indicted for failing to register or reregister as a sex offender, but who was convicted on a theory that he provided false information about his residence address in his reregistration forms, wins reversal by the Court of Appeals of his conviction under Va. Code § 18.2-472.1 for a fatal variance between the indictment and the proof at trial.
Purvy v. Commonwealth (VLW 011-7-390) (11 pp.)
Prosecutor Discretion Limited on Sentence Reduction
In order to qualify for a one-level sentence reduction for acceptance of responsibility, a defendant need only timely notify prosecutors of an intention to enter a guilty plea; departing from a standard adopted by other circuits, the 4th Circuit says a district court erred in denying the sentence reduction when the government made no motion because the defendant refused to sign a plea agreement waiving appeal and post-conviction review.
U.S. v. Divens (VLW 011-2-118) (13 pp.)
Harassing E-Mails Were ‘Obscene’
E-mails a man sent to his estranged wife and her family and friends with graphic accusations about wife’s sexual misconduct may not have been “pornographic,” but they were “obscene” and, on rehearing en banc in this first-impression case, the Court of Appeals upholds the man’s conviction of harassment by computer.
Barson v. Commonwealth (VLW 011-7-223) (14 pp.)
Pick-up Site is Venue for Computer Solicitation Charge
Although the 55-year-old defendant was in Henrico County when he used a computer to solicit a 13-year-old girl being portrayed by an undercover officer in Louisa County, venue was proper in Louisa County, where defendant drove to meet the girl; in this first-impression case, the Court of Appeals upholds defendant’s conviction on five counts of computer solicitation of a minor in violation of Va. Code § 18.2-374.3.
Spiker v. Commonwealth (VLW 011-7-224) (8 pp.)
No ‘Inherent Authority’ to Acquit After Guilt Finding
After finding a defendant guilty at a bench trial of grand larceny from a Sears store, a trial court did not have “inherent authority” to defer charges and ultimately find the defendant guilty of a misdemeanor; the Court of Appeals agrees with the trial court that it had no authority to acquit defendant of grand larceny after finding her guilty.
Taylor v. Commonwealth (VLW 011-7-215) (13 pp.)
Counsel Request for ‘Some’ Questions Unclear
A defendant who wants to pick and choose certain questions to answer with a lawyer present must make it clear to a reasonable officer which questions he’ll answer and which he’ll defer; here, a drug suspect did not clearly invoke his right to counsel and the Court of Appeals upholds admission of defendant’s statement that the cocaine was his, not his girlfriend’s.
Burrell v. Commonwealth (VLW 011-7-216) (13 pp.)
Guilty Plea No Good After Telephone Translation
A Harrisonburg U.S. District Court says a defendant who does not speak or understand English and who pleaded guilty to four felony drug and firearms counts without understanding the charges against him, with the use of a telephone interpreter, is entitled to withdraw his guilty plea.
U.S. v. Tonco-Ramirez (VLW 011-3-486) (16 pp.)
Appeal of JDR Show Cause Order Dismissed
A Roanoke City Circuit Court dismisses an appeal from a juvenile and domestic relations court order finding defendant “not guilty” on a Show Cause Summons (Criminal), as the appeal is barred by the double jeopardy provisions of the Fifth Amendment of the U.S. Constitution and Article I, Section 8 of the Virginia Constitution.
Commonwealth v. Shook (VLW 011-8-112) (11 pp.)
Habeas Writ Granted on Strickland Claim
A Fairfax Circuit Court grants a writ of habeas corpus on petitioner’s Strickland claim based on his assertion that he would not have pleaded guilty to misdemeanor drug possession had his lawyer not advised him the conviction would not affect his legal immigration status; even before Padilla, a Virginia lawyer who affirmatively undertook to advise a criminal defendant of the immigration consequences of a guilty plea to a drug charge had an obligation to provide correct information.
Ibrahim v. Sup’t of the Rappahannock Regional Jail (VLW 011-8-125) (8 pp.)
Tailgating Traffic Stop Was All About Drugs
The 4th Circuit upholds suppression of 34,091 Oxycodone pills found in defendant’s rental car because the trooper who stopped defendant’s car on I-95 for tailgating violated defendant’s Fourth Amendment rights when the trooper spent the next 15 minutes asking defendant about drugs, and defendant involuntarily consented to a vehicle search.
U.S. v. Digiovanni (VLW 011-2-128) (25 pp.)
En Banc Court Vacates Enhanced Sentence
The en banc 4th Circuit vacates a North Carolina defendant’s federal drug trafficking sentence that was enhanced because of a prior state conviction for marijuana possession, in light of a new U.S. Supreme Court decision that casts doubt on treating minor state crimes as serious felonies.
U.S. v. Simmons (VLW 011-2-141) (37 pp.)
Forensic Evidence Not Enough to ID Robber
The government’s circumstantial evidence linking defendant to a Subway restaurant robbery through cell phone calls and DNA on a Yankees cap is not sufficient to identify him as a perpetrator, as store employees’ only descriptions of the two robbers were that they were African-American and wore masks and bulky coats; the 4th Circuit affirms the district court decision that overturned defendant’s armed robbery conviction.
U.S. v. Bonner (VLW 011-2-135) (10 pp.)
No Sentence Reduction on Crack Plea Agreement
A defendant whose Rule 11 plea agreement said his sentence for a crack cocaine offense would be between 180 and 240 months, cannot have his sentence reduced from 210 months to 180 months under the 2007 retroactive crack cocaine amendments; the 4th Circuit reverses the district court because defendant’s sentence was not “based on” a sentencing range that later was lowered, but rather was based on his Rule 11 plea agreement.
U.S. v. Brown (VLW 011-2-137) (6 pp.)
PD at Prelim Can Testify Against Defendant at Trial
A public defender who represented defendant at his preliminary hearing could testify at defendant’s trial for aggravated malicious wounding about a prosecution witness’s earlier testimony, after the trial court ruled the witness was “unavailable because of his present lack of memory” about the shooting; the Court of Appeals affirms defendant’s conviction, despite defendant’s claim that his former lawyer still had a duty to him.
Turner v. Commonwealth (VLW 011-7-248)(24 pp.)
Gun Ban for Domestic Violence Upheld
The 4th Circuit upholds the federal statute making gun possession by a person convicted of misdemeanor domestic violence against defendant’s as-applied constitutional challenge; social science reports about recidivism among persons arrested for domestic violence and the frequency of gun violence support the federal gun statute under intermediate scrutiny review, the 4th Circuit says.
U.S. v. Staten (VLW 011-2-182) (22 pp.)
Full Court Grants Actual Innocence Writ
Following the Supreme Court of Virginia’s September 2009 writ of innocence exonerating defendant of one rape, a majority of the en banc Court of Appeals issues a writ of actual innocence vacating defendant’s convictions for abduction and rape in two other cases; the Attorney General and local prosecutors support the petitions.
Haynesworth v. Commonwealth (VLW 011-7-379) (27 pp.)
New Trial for S.C. Death-Row Defendant
A mentally retarded African-American handyman who was 23 years old when he was accused of the 1982 murder of a 75-year-old wealthy white woman for whom he did odd jobs is entitled to a new trial, as his trial lawyers’ “blind acceptance of the State’s forensic evidence” demonstrated constitutionally ineffective assistance of counsel, says the 4th Circuit in a 2-1 split.
Elmore v. Ozmint (VLW 011-2-170) (194 pp.)
Family Dog is Asset for Equitable Distribution
The Court of Appeals affirms a trial court decision awarding wife possession of the family dog and husband the sum of $750 to acquire a similar dog.
Whitmore v. Whitmore (VLW 011-7-068UP)) (8 pp.)
No Personal Jurisdiction from Wife’s Virginia Visits
A wife who remained with the couple’s two daughters in Belgium when husband’s job took him to Virginia, but who continued to bring the daughters to Virginia to visit husband, cannot be sued for divorce in Virginia; the Court of Appeals upholds the trial court decision that it could not exercise personal jurisdiction over wife, even though she was served with divorce papers when she returned to Virginia to pick up the children.
Harrison v. Harrison (011-7-125) (14 pp.)
No Imputed Income for Stay-Home Mom
Although wife has an MBA and worked as a financial analyst for large corporations, she has been out of the job market for 10 years, caring for the couple’s four children, and a Fairfax Circuit Court refuses to impute income to her, but will award her 12 years of spousal support payments of $3,000 per month after terminating the parties’ 13-year marriage.
Johnson v. Johnson (VLW 011-8-037) (16 pp.)
Mom Not Subject to ‘Fugitive Disentitlement’ Doctrine
A mother’s move with the parties’ daughter to Austria, in violation of a Michigan divorce decree, does not allow the Court of Appeals to apply the “fugitive disentitlement” doctrine to dismiss mother’s appeal.
Morrison v. Morrison (VLW 011-7-041) (14 pp.)
Husband Voluntarily Underemployed, Has Imputed Income
A husband who wanted a greater support reduction loses his appeal; the Court of Appeals says he did not make full and clear disclosure of his earning capacity and he is voluntarily unemployed, as he applied for only four jobs in the seven months following his divorce.
Assari v. Assari (VLW 011-7-050(UP)) (6 pp.)
Couple Couldn’t Reopen Divorce Case
The appellate court remanded this divorce case in 2008 solely for a recalculation of child support, and a Roanoke City Circuit Court says the parties were not entitled to reopen the whole divorce case.
West v. West (VLW 010-8-219) (5 pp.)
No Support Reduction After Husband’s Retirement
A husband who still had roughly $3.5 million in assets after he retired from his oral surgery practice can still afford to pay his wife $2,100 in monthly spousal support, and the Court of Appeals upholds denial of husband’s motion to reduce his support obligation.
Driscoll v. Hunter (VLW 011-7-320) (12 pp.)
Dad, Not Maternal Grandparents, Gets Custody
Although a biological father suffers from mild mental retardation and is unemployed, he has maintained contact with the child, whose mother died in 2010, and a Richmond Circuit Court awards physical and joint custody to the father over the objection of the child’s maternal grandparents; the GAL recommended custody to the maternal grandparents, but the court cannot find the child would suffer actual harm from placement with the father.
In re: M.A.B. (VLW 011-8-189) (5 pp.)
Prenup Stock Disclosure Was ‘Fair and Reasonable’
Although the physician husband testified in 2009 that stock he owned when the parties entered into a 1993 premarital agreement was worth $250,000 to $300,000 at the time of the agreement, not $68,000 as identified in the agreement, the Court of Appeals rejects the college instructor wife’s claim that husband did not make a “fair and reasonable disclosure of assets” under Va. Code § 20-151.
Makoui v. Makoui (VLW 011-7-363(UP)) (12 pp.)
Local ‘Formula’ Support Award Reversed
A divorce court erred in using locally adopted pendente lite spousal support guidelines to establish a permanent support award for wife, instead of applying the factors in Va. Code § 20-107.1, and the Court of Appeals reverses the spousal support award and remands for proper application of the statute; also, the court transcript satisfies the statutory requirement to provide written findings.
Coleman v. Coleman (VLW 011-7-361(UP)) (6 pp.)
Prenup Enforceable Against Foreign-Born Wife
Although wife claimed her English was not very good, she was a college graduate with business experience in her native Morocco, and the Court of Appeals upholds enforcement of a premarital agreement.
Chaplain v. Chaplain (VLW 011-7-021(UP)) (12 pp.)
Mom Gets Custody, Despite GAL
Although a guardian ad litem recommended the father have primary physical custody of the parties’ four children, the Court of Appeals upholds the trial court’s decision to put the children with the mother.
McCoy v. Pascarella (VLW 011-7-019(UP)) (4 pp.)
Engagement Ring is Wife’s Separate Property
A husband who allegedly sold his wife’s engagement and wedding rings to pay attorney’s fees did not “dissipate” marital assets, but the wife gets a chance to prove the value of her engagement ring, which the Norfolk Circuit Court says is her separate property.
Chavez v. Chavez (VLW 011-8-202) (3 pp.)
Support Reduction for Consultant Husband
A husband who has depleted his assets to maintain himself and his family after his newspaper design consulting business came to a virtual standstill can reduce his support obligations beyond the amounts ordered by the JDR court, which ordered the $2,400 monthly spousal support reduced to $850 and the $1,000 monthly child support reduced to $850; the Norfolk Circuit Court orders husband to pay monthly $100 in spousal support and $300 in child support.
Jacobson v. Waltz (VLW 011-8-204) (7 pp.)
Vesting Date Not Dispositive for Wife’s Stock
In reviewing classification of various stock options and awards for an equitable distribution, the lower court gave undue weight to the vesting dates, which fell after the date of separation, in deciding the awards were wife’s separate property, and the Supreme Court of Virginia reverses and remands with directions for further remand to the trial court.
Schuman v. Schuman (VLW 011-6-130) (7 pp.)
No Child Support Enforcement After 20 Years
A father ordered in 1966 to pay support for his three children is not liable for support due between 1967 and 1982, as the 20-year statute of limitations on enforcing judgments in Va. Code § 8.01-251 bars the attempt by the Division of Child Support Enforcement to collect the $73,619 arrearage, the Supreme Court of Virginia holds.
Adcock v. Commonwealth of Va., DSS, DCSE (VLW 011-6-126) (10 pp.)
Husband’s Family Farm is ‘Marital’
When husband and wife sold their home and purchased the 19-acre family farm in Nelson County from a trust set up by husband’s parents to hold the farm as property for their four sons, the farm became marital property and the Court of Appeals upholds classification of the farm as marital property.
Stevens v. Stevens (VLW 011-7-393)(8 pp.)
Letter Opinion Insufficient on Spousal Support
The Court of Appeals remands a trial court order awarding permanent spousal support to wife for failure to provide sufficient written findings and conclusions as required by Va. Code § 20-107.1(F); merely reciting statutory factors and stating the parties were married 22 years and enjoyed a “high middle class” standard of living are not sufficient.
Pilati v. Pilati (VLW 011-7-380) (7 pp.)
Long Distance Romance Not Cohabitation
The Court of Appeals affirms in part and reverses in part a trial court decision refusing to terminate spousal support and modifying child support without considering child support paid in arrears; husband’s evidence does not prove cohabitation under the parties’ agreement but the trial court erred in refusing to consider husband’s spousal support paid totaling $80,000 in modifying child support.
Cranwell v. Cranwell (VLW 011-7-383) (11 pp.)
Move Outside State May Benefit Child
The Court of Appeals reverses and remands a trial court order awarding custody of a minor child to father; the trial court applied the wrong standard and failed to consider benefits to the son of mother’s move to another state.
Garner v. Ruckman (VLW 011-7-371(UP)) (10 pp.)
QDRO Supersedes Divorce Decree
Although the parties’ 2005 final divorce decree stated wife would receive 50 percent of husband’s county pension as equitable distribution, their 2008 Qualified Domestic Relations Order, entered by consent, stated wife was entitled to 50 percent of the “marital share of the retirement benefits,” and the Fairfax Circuit Court refuses to find husband in contempt for payment to wife of the smaller share of his pension under the 2008 QDRO.
Kennedy v. Kennedy (VLW 011-8-215) (5 pp.)
PSA Release Does Not Bar Sale of Marital Home
A Fairfax Circuit Court denies a plea in bar filed by a wife who continued to live in the marital home after the parties’ divorce and who is trying to halt sale of the marital home on a petition filed by husband; a release in the parties’ settlement agreement does not bar the sale.
Chanfreau v. Sanchez (VLW 011-8-123) (4 pp.)
Wife Wants Annulment, Husband Gets Divorce
An American citizen wife who met her Indian national husband through the Internet and married him in Henrico and then again five months later in an “elaborate religious wedding” in India is not entitled to an annulment on the ground that the marriage was not consummated; a Henrico Circuit Court says failure to consummate the marriage by sexual intercourse, by itself, is not grounds for annulment.
Chhibber v. Nangia (VLW 011-8-147) (2 pp.)
Wife Owes Support for Seven Children
A couple who, for religious reasons, home-schooled their seven children and depended solely on husband’s income as an engineer, are ordered by the Salem Circuit Court to divide the marital share of the home, which husband still occupies with the children, to give wife $93,197 for 69 percent of the marital share after husband refinances the mortgage debt to remove wife from the obligation; wife, who only has imputed income at minimum wage, is ordered to pay $142 monthly child support plus 14 percent of the children’s reasonable, non-insured medical costs.
Carter v. Carter (VLW 011-8-210) (13 pp.)
Five-Year Harassment Pattern Is ‘Continuing Violation’
A female employee on a Wakefield hog breeding farm can sue for sexual harassment by male coworkers with allegations of unwanted touching, disparaging remarks and an incident involving a male coworker looking into the women’s shower room through peepholes that had been drilled; the Norfolk U.S. District Court says plaintiff’s timely “anchor” events will allow her to bring in allegations of harassment outside the time frame around her EEOC charge.
Edwards v. Murphy-Brown LLC (VLW 011-3-039) (57 pp.)
No Sanctions in Overtime Pay Case
Although an employer won summary judgment in plaintiffs’ overtime-pay suit, plaintiff employees’ suit was not “frivolous” under Rule 11; the Norfolk U.S. District Court says the line is not clear between non-seamen and “seamen” who are exempt from federal overtime pay provisions.
McMahan v. Adept Process Services Inc. (VLW 011-3-653) (16 pp.)
Pest Control’s Noncompete Struck
A divided Supreme Court of Virginia strikes a pest control company’s noncompete that said for two years, a former employee could not engage “directly or indirectly” in “any manner whatsoever” in conducting broadly identified activities of a pest control business; the high court says it has “incrementally clarified” the law since it upheld the same noncompete for the same company over 20 years ago.
Home Paramount Pest Control Cos. Inc. v. Shaffer (VLW 011-6-121) (13 pp.)
ERISA Insurance Benefits Denied, But Premiums Refunded
A bank employee who paid for life insurance for her daughter through her employee benefit plan, but who was denied insurance benefits when her 25-year-old daughter died, is not entitled to the insurance proceeds as “equitable relief” for the insurance carrier’s breach of fiduciary duty after the daughter was no longer eligible for the insurance; the 4th Circuit says plaintiff only gets a refund of the premiums she paid.
McCravy v. Metropolitan Life Ins. Co. (VLW 011-2-098) (14 pp.)
Lawyer Fee Reasonable in FLSA Case
The Richmond U.S. District Court approves lodestar attorney’s fees of $3,545 plus $405 costs for prosecuting an action for unpaid overtime and damages in which employee recovered $9,321; employee’s 40 percent contingency fee agreement with her attorney, expert’s affidavit and recent award in a recent award in a similar case all support the reasonableness of her request.
Callis v. Shelette’s Home for Adults Inc. (VLW 011-3-580) (6 pp.)
Non-Solicitation Clause Struck as ‘Overbroad’
An auto-detailing business cannot recover from its former employer who made plans to start a competing business while still employed by plaintiff; a Chesapeake Circuit Court says plaintiff’s non-solicitation clause is facially overbroad because it would prevent defendant from offering his services as a “concert promoter, fishing guide, sous chef or plumber,” and plaintiff has failed to prove any damages.
Integrity Auto Specialists Inc. v. Meyer (VLW 011-8-129) (10 pp.)
Deputy Discharge States Bowman Claim
Deputy sheriffs who say they were fired after they reported a sheriff’s violation of a penal statute for his off-the-books employment of his daughter can state a Bowman wrongful discharge claim based on their statutory duty under Va. Code § 19.2-201 to report such conduct.
Carter v. Hunt (VLW 011-8-165) (3 pp.)
Widow, Not Ex-Wife, Gets Life Insurance
In this contest over life insurance proceeds paid under an employee benefit plan, a Richmond U.S. District Court says the insurance company properly paid the proceeds to decedent employee’s surviving widow and his two children, pursuant to his final designation of beneficiaries, rather than to his ex-wife; decedent’s property settlement agreement with his ex-wife was not a QDRO that required distribution of the proceeds to her.
Metropolitan Life Ins. Co. v. Leich-Brannan (VLW 011-3-440)(17 pp.)
Court Has Jurisdiction Under ‘Conspiracy Theory’
In a Virginia drug sales representative’s suit alleging defamation, conspiracy and breach of contract by supervisors at defendant pharmaceutical company, a Fairfax Circuit Court can exercise personal jurisdiction over the company’s regional sales manager in Pennsylvania under the Virginia long-arm statute, and jurisdiction over an HR manager and a training manager in Illinois, under a conspiracy theory of jurisdiction.
Nathan v. Takeda Pharmaceuticals America Inc. (VLW 011-8-156) (20 pp.)
ECF Amended Complaint Was Timely
A female employee on a Wakefield hog breeding farm who is suing for sexual harassment by male coworkers has timely filed her amended claim even though the file stamp date differs from the date of entry into the court’s Electronic Case Filing system; the Norfolk U.S. District Court applies the court’s ECF Manual to calculate how much time plaintiff had, and says she made it.
Edwards v. Murphy-Brown LLC (VLW 011-3-388)(18 pp.)
City Employee Can Try Sexual Harassment Suit
A woman whose boss, head of a Baltimore aging agency, “forcibly kissed her, fondled her leg, propositioned her, asked sexually explicit questions, described sexual activities he wished to perform and then, after she spurned the advances and filed a harassment complaint, fired her,” stated claims for hostile environment, quid pro quo harassment and retaliation, and the 4th Circuit vacates summary judgment for the employer and remands the harassment suit.
Okoli v. City of Baltimore (VLW 011-2-136) (29 pp.)
No ADA Claim for Dyslexia ‘Perception’
A Danville U.S. District Court says a plaintiff who worked in a county communications center and alleged she was harassed and prevented from training as a dispatcher after she announced that she suffered from dyslexia loses her suit under the Americans with Disabilities Act.
Shively v. Henry County, Va. (VLW 011-3-485)(15 pp.)
No Age Claim on Failure to Promote
A school teacher who alleges she was not promoted to assistant principal because of age discrimination has her claims under the Age Discrimination in Employment Act and the Virginia Human Rights Act dismissed by the Norfolk U.S. District Court.
Cross v. Suffolk City School Board (VLW 011-3-391) (23 pp.)
County Employee Can Try FMLA Claims
A former deputy treasurer for Arlington County may try her FMLA interference and retaliations claims again the county treasurer in his individual capacity for terminating her upon her to return to work after cancer surgery, but the treasurer has immunity from suit in his official capacity, says an Alexandria U.S. District Court.
Weth v. O’Leary (VLW 011-3-383) (31 pp.)
Little Person Can Sue Employer for Emotional Distress
A company whose telemarketing supervisor repeatedly commented on a new hire’s dwarfism, telling her other employees were “frightened of and made ill by little people,” and plaintiff’s appearance would have a “dire effect” on other employees, before terminating her after a few days, can be sued by the plaintiff for intentional infliction of emotional distress, says a Norfolk U.S. District Court.
Pennell v. Vacation Reservation Center LLC (VLW 011-3-256) (13 pp.)
Retaliation Trial for Employer Who Shared EEOC Charge
A Richmond U.S. District Court says a boatyard owner is not entitled to summary judgment in an African-American boat painter’s claim that defendant owner violated Title VII when he fired plaintiff without explanation, then retaliated after plaintiff filed an EEOC charge by warning other area boatyard owners about the EEOC charge, allegedly causing plaintiff to be fired by another boatyard and not to be hired elsewhere.
Coles v. Deltaville Boatyard LLC (VLW 011-3-255) (14 pp.)
Firefighter Sexual Harassment Suit Survives
Although a male lieutenant’s alleged harassment of a female firefighter recruit involved three in-person meetings and six telephone conversations, spread over a six-year period, the defendant was a superior officer who told plaintiff he “knew things about her” and an Alexandria U.S. District Court denies defendant summary judgment in this sexual harassment suit because defendant has not shown that no reasonable juror could find that the lieutenant’s conduct crossed the line into harassment.
Bland v. Fairfax County, Va. (VLW 011-3-253) (61 pp.)
Sleep Apnea Condition Supports Disability Claim
A Roanoke U.S. District Court refuses to dismiss an IT specialist’s claim that his former employer Radford University violated the Rehabilitation Act of 1973 when it rejected his proposal for accommodation of his medical condition of sleep insomnia and sleep apnea and instead discharged him, allegedly for sleeping on the job.
Leschinskey v. Rectors & Visitors of Radford University (VLW 011-3-599) (6 pp.)
Retaliation Damages for Sharing EEOC Charge
A boatyard owner retaliated against an African-American boat painter when he shared with other area boatyard owners the boat painter’s EEOC charge, filed after the painter’s termination; the Richmond U.S. District Court Magistrate Judge who tried the case awards the painter $1,000 compensatory damages for emotional distress, and $1,000 in punitive damages.
Coles v. Deltaville Boatyard LLC (VLW 011-3-572) (21 pp.)
Public Policy Claim for Sexual Harassment Advances
A Newport New U.S. District Court says there is no legal support for an employer’s assertion that a female plaintiff’s consensual sexual relationship with another employee at the car dealership negated the theory that the attentions of the dealership’s general manager were unwelcome, and the court denies the employer’s motion for summary judgment in plaintiff’s Title VII hostile environment suit.
Mercado v. Lynnhaven Lincoln-Mercury Inc. (VLW 011-3-607) (25 pp.)
Arbitration Agreement Does Not Violate OWBPA
Dillard’s department store can enforce an arbitration agreement against four employees alleging age discrimination; a Richmond U.S. District Court says the pre-dispute arbitration agreement does not violate the Older Workers’ Protection Act.
Bennett v. Dillard’s Inc. (VLW 011-3-128) (10 pp.)
Court Says ‘No’ to ESI Costs
An employer who won a race discrimination case cannot collect private process server fees or costs for processing, storage and production of electronically stored information, said a Richmond U.S. District Court.
Francisco v. Verizon (VLW 011-3-118) (16 pp.)
Hostile Environment Claim Goes Back for Trial
The 4th Circuit vacates summary judgment for defendant Freightliner in this Title VII hostile environment suit filed by a female tractor-trailer truck assembler who complained to management about incidents such as: a tampon tied to a truck key ring, numerous calendars and toolbox picture of scantily clad women, a nude female screensaver popping up on a computer she used, and a comment about taping her pant legs tight so men couldn’t see up them; the panel vacates summary judgment on the hostile environment claim, but affirms judgment for the employer in other respects.
Hoyle v. Freightliner LLC (VLW 011-2-069) (25 pp.)
‘Sweetheart Deal’ Severance Pay Suit Dismissed
A county HR director terminated in a budget-based reorganization loses her suit alleging her severance package was less generous than the “sweetheart deals” offered male employees; a Richmond U.S. District Court says plaintiff had no contract right to a severance package, and she has not shown the necessary “adverse action.”
Gerner v. County of Chesterfield, Va. (VLW 011-3-105) (8 pp.)
Training Video Evidence Supports Hostile Environment Claim
In a female firefighter’s sexual harassment lawsuit, an Alexandria U.S. District Court refuses to strike her allegations that the hostile environment led her to suffer a permanent lung injury from inhalations during filming of a training video on flammable liquids, for which she receives workers’ comp benefits.
Bailey v. Fairfax County Virginia (VLW 011-3-015) (11 pp.)
Police Academy Sexual Harassment Claim Survives
The 4th Circuit reverses summary judgment for the city on an African-American female police recruit’s sexual harassment claim, but affirms summary judgment on her claim alleging race discrimination.
Mosby-Grant v. Hagerstown (VLW 010-2-186) (21 pp.)
Bus Driver with Positive Drug Test Charges Age Bias
A 73-year-old bus driver says he was terminated because of age discrimination, but the employer said he was fired after he tested positive for marijuana; a Richmond U.S. District Court dismisses the driver’s hybrid LMRA claim with prejudice for untimely service, but dismisses the ADEA claim without prejudice.
McCollum v. Genco Infrastructure Solutions (VLW 010-3-643) (10 pp.)
No Medical Opinion from Discharge Doc
A plaintiff injured in an auto accident may introduce her military discharge papers for lost wages and to show the reason for her discharge, but she may not use the documents to introduce an opinion that she was discharged for medical reasons related to the auto accident, says a Norfolk Circuit Court.
Washington v. Clark (VLW 011-8-205) (7 pp.)
Parents’ Petition Denied for ‘Alien Smuggling’
A Guatemalan mother and father who entered the U.S. illegally engaged in “alien smuggling” when they followed a pattern of sending each of their four children several thousand dollars at a hotel in Mexico, for the children’s subsequent illegal arrival in the U.S.; the 4th Circuit upholds the Board of Immigration Appeals’ conclusion that the parents lacked the “good moral character” necessary for cancellation of removal.
Ramos v. Holder (VLW 011-2-160) (11 pp.)
No CERCLA Coverage Under ‘Standard’ CGL Policy
A business notified by the EPA that its property was part of a Superfund cleanup site has no coverage for these costs as “property damage” under its “standard” CGL policy, says the 4th Circuit.
Industrial Enterprises Inc. v. Penn America Ins. Co. (VLW 011-2-056) (20 pp.)
No Coverage for Water Damage from Clogged Drain
In light of plaintiff homeowners’ stipulation that surface water gathered in a well with a clogged drain but could not enter the drain and instead flowed into the homeowners’ basement, a Fairfax Circuit Court says damage to the home is not covered by the Water Damage Endorsement of plaintiffs’ homeowners policy, which does not cover the loss because the water did not enter the drain.
Dent v. Allstate Indemnity Co. (VLW 011-8-087) (7 pp.)
Auto Liability Policy Voided for Arrest Record
An auto liability policy is void because the applicant, a sole proprietor who applied as “Kitchens Unlimited LLC,” had a criminal record but denied he had ever been arrested; the Henrico Circuit Court grants judgment to plaintiff insurance carrier in this dec action filed by the applicant and the severely injured plaintiff with whom he collided.
Erie Ins. Exchange v. Outlaw (VLW 011-8-194) (4 pp.)
Carrier Must Defend Under ‘Garage Operations’ Clause
Although the driver of a car owned by Cowles Nissan was intoxicated when he struck and killed a pedestrian, an Alexandria U.S. District Court predicts the Virginia Supreme Court would interpret an insurance policy’s “garage operations provision” to require the insurance carrier on the owner’s commercial garage policy to defend the state court wrongful death action.
Sentry Select Ins. Co. v. Acuna (VLW 011-3-656) (13 pp.)
Carrier Cancellation Out, Fees Ordered
A Norfolk Circuit Court says a carrier did not strictly comply with statutes governing policy canceling, and a trucking company has coverage and collects attorney’s fees under a new Virginia Supreme Court case.
Performance Grading & Hauling Inc. v. Progressive Classic Ins. Co. (VLW 011-8-023) (9 pp.)
Husband Gets Wife’s Life Insurance, Despite PSA
Although a husband signed a separation agreement waiving any claim to benefits from wife, husband – and not wife’s mother or the estate – can keep life insurance proceeds from the wife’s ERISA-approved plan because she did not change the beneficiary designation before she died, says the 4th Circuit.
Boyd v. Metropolitan Life Ins. Co. (VLW 011-2-066) (13 pp.)
No CGL Coverage for Voluntary Payments
Although this case may stand for the proposition that “no good deed goes unpunished,” a Norfolk U.S. District Court says a general contractor’s voluntary payments to homeowners through its program to remediate the effects of Chinese drywall used in their homes, were not payments the contractor was “legally obligated to pay as damages” and the contractor has no insurance coverage under the multiple commercial general liability policies at issue.
Builders Mut. Ins. Co. v. Dragas Management Corp. (VLW 011-3-322) (26 pp.)
Self-Insured Car Rental Company Gets Coverage from Renter
A self-insured rental car company can be indemnified by its renter for damages the company paid to a third party due to the renter’s negligence in an auto accident, and the renter’s auto liability carrier must reimburse the rental car company, the Supreme Court of Virginia says.
Farmers Ins. Exchange v. Enterprise Leasing Co. (VLW 011-6-055) (14 pp.)
No Company UIM Coverage for Company Owners
Owners of a tour bus company, who were injured in an accident with a drunken driver as they left a tour bus in a rental car after the death of a family member, are not entitled to $5 million in UIM coverage under the company’s auto liability policy, but they can collect UIM from their personal auto liability carrier and from the rental car company, says a Harrisonburg U.S. District Court.
Schrock v. Lancer Ins. Co. (VLW 011-3-149) (11 pp.)
Employer Rejected Higher UM/UIM Limits
A truck driver whose truck went off the road, through a fence and into an unoccupied dormitory at James Madison University, loses his suit seeking $1M in UM/UIM coverage from his employer’s liability carrier; although defendant carrier’s application form “garbles” an explanation of Virginia’s financial responsibility limits, the employer clearly rejected its $1M liability limits as its UM/UIM limits and instead selected Virginia’s minimum limits, says a Roanoke U.S. District Court.
Melton v. Discover Property & Cas. Ins. Co. (VLW 011-3-087) (12 pp.)
Settlement Offer & Opinion Letter Protected
In plaintiffs’ suit against an insurance company that denied coverage for two antique automobiles, a Harrisonburg U.S. District Court denies plaintiffs’ motion to compel production of a settlement offer and the appraisal underlying that offer, which are protected attorney work product, and holds that defendant did not impliedly waive attorney-client privilege that covered its lawyer’s opinion letter.
Botkin v. Donegal Mut. Ins. Co. (VLW 011-3-341)(16 pp.)
No UIM Coverage for Wife Under Business Policy
A woman injured in an automobile accident who collected $300,000 of a $738,000 judgment from the other driver could not collect the balance in UM/UIM coverage from a commercial insurance policy issued to her husband’s Richmond restaurant because she is not a “family member” of the named insured, which is the restaurant; a Richmond U.S. District Court magistrate judge follows the reasoning of a Virginia circuit court decision that the Virginia Supreme Court refused to hear.
Grossberg v. The Travelers Indemnity Co. (VLW 011-3-627) (13 pp.)
No ‘Stacking’ for UM/UIM Coverage
A woman who was injured in an auto accident and sought to stack UM/UIM coverage under her own GEICO policy and her husband’s Allstate policy, has not shown ambiguous policy language that would allow for stacking under Virginia Supreme Court precedent, and the Norfolk Circuit Court denies her motion for summary judgment and grants summary judgment to the carriers.
Wilkins v. Allstate Ins. Co. (Hall) No. (VLW 011-8-142)(7 pp.)
Insured Covered for Lost Business Income
In this litigation over insurance coverage for a shopping center fire, an Alexandria U.S. District Court says defendant National Surety Company owes plaintiff shopping center $623,616 for breach of contract for additional coverage of lost business income, based on all the steps Yorktowne took to get its former tenant to resume operations at the shopping center.
Yorktowne Shopping Center v. National Surety Corp. (011-3-591) (14 pp.)
Home Built Too Late for Flood Coverage
A Poquoson homeowner does not have coverage for certain flood damage to his elevated home near Roberts Creek, within a FEMA-designated Special Flood Hazard Area, because public records submitted by defendant insurance carrier establish that plaintiff’s home was built after May 16, 1977, the date the initial Flood Insurance Rate Map took effect; the Newport News U.S. District Court grants judgment for the insurance carrier on all plaintiff’s claims except his claims for damages related to replacement of a vapor barrier and repair of foundation wall vents.
Davis v. Nationwide Mutual Fire Ins. Co. (VLW 011-3-502) (40 pp.)
Pollution Exclusion Bars Coverage for Drywall Claim
A builder that repaired damage from Chinese drywall installed by a subcontractor can’t collect a $4.9 million judgment from the sub’s CGL and umbrella insurance policies; a Norfolk U.S. District Court says the policies’ “pollution exclusion” is not ambiguous and bars coverage for damage from the drywall’s reduced sulfur gases, a pollutant that dispersed into the atmosphere.
Dragas Mgmt. Corp. v. Hanover Ins. Co. (VLW 011-3-454) (29 pp.)
Patent Claims Dismissed Under ‘Twiqbal’
A Norfolk U.S. District Court applies Twombly and Iqbal to dismiss a suit that alleges in conclusory terms that defendants infringed plaintiff’s patent for methods of conducting electronic discovery.
Adiscov LLC v. Autonomy Corp. PLC (VLW 011-3-069) (13 pp.)
No Copyright Violation for Georgian Home Design
A custom home designer/building in the Williamsburg area loses this suit alleging copyright infringement by defendant builders; the Newport News U.S. District Court says the 18 designs pictured
in plaintiff builder’s promotional brochure,”Places to Call Home,” encompass most designs used in the Williamsburg area, and it is difficult to conceive that similar houses could be built anywhere within this area without being questioned after viewing a copy of the brochure.
Charles W. Ross Builder Inc. v. Olsen Fine Home Building LLC (VLW 011-3-531) (30 pp.)
Company Wins ACPA Damages, Lawyer Sanctions
The owner of a website that started with city information about Newport News, but then began adding women’s fashions and put a seven-figure price tag on its domain name sought by a women’s clothing company, must pay the clothing company $80,000 in statutory damages under the Anticybersquatting Consumer Protection Act; the 4th Circuit also hits the owner’s lawyers with a $10,000 sanction for delayed and “vexatious” recusal and counterclaim motions.
Newport News Holdings Corp. v. Virtual City Vision Inc. (VLW 011-2-076) (30 pp.)
Store Manager Was Exempt Executive for FLSA
Although a manager of a discount store performed the full range of tasks necessary for the successful operation of the store, from sweeping floors to stocking inventory and working the cash register, she nevertheless was an “exempt executive” under the FLSA, as she was the highest level employee at the store and her income depended on the success of her managerial performance and the profits of the store, says the 4th Circuit.
In re: Family Dollar FLSA Litigation (VLW 011-2-058) (20 pp.)
Lawyer Gets Retainer Amount in Overtime Pay Case
A lawyer’s retainer agreement calling for payment of 40 percent of “any recovery” gives the lawyer 40 percent of the Rule 68 $10,000 judgment, not 40 percent of the overtime pay gained by his client; the Richmond U.S. District Court orders employer to pay $4,000 in attorney’s fees.
Walker v. Dovetails Inc. (VLW 011-3-113) (10 pp.)
No Contract Work States FLSA Retaliation Claim
An Alexandria U.S. District Court says a technician who installed and serviced audiovisual systems for defendant, first as an employee and then as an independent contractor under a subcontract, has stated a claim for retaliation in violation of the Fair Labor Standards Act with allegations that he was “blacklisted” after he provided an affidavit in another employee’s overtime pay suit.
Boscarello v. Audio Video Systems Inc. (VLW 011-3-229)(12 pp.)
School Golf Coach ‘Volunteer’ Under FLSA
A safety specialist for the Fairfax County school system, who also served as a high-school varsity golf coach, was properly deemed a “volunteer” under the Fair Labor Standards Act, and the 4th Circuit upholds dismissal of the coach’s suit for overtime pay.
Purdham v. Fairfax County School Board (VLW 011-2-062) (22 pp.)
Plant Supervisor’s Defamation Suit Preempted
A Roanoke U.S. District Court refuses to remand to state court this defamation suit filed by a supervisor at the Yokohama Tire plant in Salem who says a plant worker defamed him during a union grievance procedure by alleging the supervisor made “derogatory and discriminatory statements of a sexual nature” to the worker about another employee, and “made sexual overtures toward him.”
Martin v. Watkins v. Yokohama Tire Corp. (VLW 011-3-019) (9 pp.)
Restaurant Lease Guarantor Hangs on to His Win
A landlord can’t overturn a jury verdict for a guarantor of a restaurant lease with a claim of “jury nullification”; a Fairfax Circuit Court says the guarantor’s testimony that he received a verbal assurance that his guaranty was released when the restaurant changed hands in 2004 supported the view that the claimed damages were not reasonably foreseeable.
Reese Merrifalls LLC v. Park’s Restaurant Enterprises Inc. (VLW 011-8-033) (5 pp.)
Brain-Scan Suit Timely Under ‘Continuing Treatment’ Rule
The Supreme Court of Virginia applies the “continuing treatment” rule and says a woman who had seven brain scans performed and interpreted by defendant radiology practice group from 2002 through 2005 for pain and numbness in the right side of her face can sue the group in 2007 for medical malpractice; the Supreme Court of Virginia reverses dismissal of the suit as time-barred.
Chalifoux v. Radiology Associates of Richmond Inc. (VLW 011-6-062) (20 pp.)
Court Finds Fault with Expert Report
A plaintiff administrator who alleges decedent died of blood loss and anoxic encephalopathy as a result of a dialysis nurse’s negligence cannot persuade the Richmond U.S. District Court to change its decision that her one-page expert designation did not meet her obligations under Rule 26.
Campbell v. U.S. (VLW 011-3-210) (7 pp.)
Court Sets Aside $3.5M Med-Mal Award
A Portsmouth Circuit Court sets aside a $3.5 million med-mal award because the verdict form showed the jury did not find the doctor liable, but found the doctor’s practice group liable, and there was no evidence that the practice group was independently liable for alleged failure to communicate a diagnosis of pneumonia to decedent.
Westermann, Adm’x v. Bermisa (VLW 011-8-072) (5 pp.)
Doctor Deposition Should Not Have Been Halted
A Richmond Circuit Court says defendant doctor should not have terminated a deposition because he objected to a med-mal plaintiff’s questions about information contained in a medical periodical related to the subject surgical procedure, but the court will hold off deciding on sanctions for either side until the end of the proceedings.
Wilson, Adm’r v. Bon Secours-Richmond Health System and Foxx (VLW 011-8-108)(4 pp.)
Immunity for Fellow, Not for Nurse
Medical interns and residents do not automatically have sovereign immunity from med-mal claims, but in this suit alleging a pediatric cardiology patient died from improper medication, a board-certified pediatrician, who took the infant’s medical history and who was six weeks into his three-year fellowship in pediatric cardiology at UVa, has sovereign immunity; however, the Charlottesville Circuit Court says a defendant pediatric nurse, who was providing care, does not have sovereign immunity.
Roush v. West (VLW 011-8-184) (10 pp.)
Nursing Home Administrator Immune, Nurses Not
Applying the test for sovereign immunity to defendants in a suit alleging injury at a nursing home operated by the Richmond Hospital Authority, a Richmond Circuit Court says the administrator has immunity from suit, but defendant nurses do not.
Warden v. Turner (VLW 011-8-191) (4 pp.)
Out-of-State Lawyer Loses Experts, Case Dismissed
In a medical malpractice case, the trial court did not abuse its discretion in excluding plaintiff’s expert designations as untimely and invalid without signature of local counsel, and in granting summary judgment for defendant after excluding plaintiff’s expert testimony on the standard of care, the Supreme Court of Virginia holds.
Landrum v. Chippenham & Johnston-Willis Hospitals Inc. (VLW 011-6-129) (16 pp.)
Risk Manager Notes Protected by Privilege
In this lawsuit against an anesthesiology group, a nonparty hospital risk manager who responded to contact from a lawyer engaged four days after a death, and who contacted outside counsel, investigated the incident and collected information to share with outside counsel, acted in anticipation of litigation, and a Fairfax Circuit Court says the risk manager’s notes are protected by the work product and attorney-client privilege and not discoverable by plaintiff.
Planicka v. American Anesthesiology (VLW 011-8-212) (5 pp.)
OB-GYN Expert Works Against Va. Nurse
Although an OB-GYN did not have an active practice in nursing, he performed postpartum monitoring of high-risk patients with preeclampsia and could testify as an expert in a med-mal suit alleging a nurse’s failure to monitor plaintiff led to her stroke and permanent brain damage, and the 4th Circuit upholds the $900,000 judgment for plaintiff.
Creekmore v. Maryview Hospital (VLW 011-2-184) (12 pp.)
Branch Loan Office May Get Lower BPOL Tax
In a case involving an auto-financing company’s local branch in Chesterfield County, the Virginia Supreme Court says the county erred in including in the taxable measure for an assessment of BPOL taxes gross receipts attributable to services performed outside the county, instead of only those attributable to the exercise of the licensed privilege at a definite place of business in the county; the case is reversed and remanded to allow the company to pursue its claim for a refund of 93 percent of the $1.5 million in BPOL taxes paid from 2001 through 2004.
Ford Motor Credit Co v. Chesterfield County Cir.Ct. (VLW 011-6-032) (38 pp.)
County Administrator Liable for Defamation
A county administrator who reported to the board of supervisors on a former parks director’s alleged “suppression” of information must pay the parks director $50,000 compensatory and $100,000 punitive damages for defamation, says the Supreme Court of Virginia.
Isle of Wight County v. Nogiec (VLW 011-6-003) (21 pp.)
Court Rules on ‘Transaction of Public Business’
In resolving petitioners’ request under the Virginia Freedom of Information Act to a former member of the Saltville Town Council for communications, including email communications, with a town employee between certain dates, the Smyth County Circuit Court considers what constitutes “transaction of public business” under the Act and says petitioner is entitled to information concerning public business, with personal information redacted.
Town of Saltville v. Surber (VLW 011-8-169) (8 pp.)
No Suit Against Mall Security Company for Abduction
A Fairfax Circuit Court says a private security contractor for a mall parking deck cannot be sued for negligence based on allegations that security personnel did not respond to surveillance video images that showed the men who abducted a woman from the parking deck “brandishing” a replica handgun in the garage prior to the abduction.
Bosworth v. Vornado Realty LP (VLW 010-8-231) (10 pp.)
Negligence Claims Dismissed After Water Park Ride Assault
A Norfolk U.S. District Court accepts a magistrate judge’s report and dismisses negligence claims by three female plaintiffs who allege they were sexually assaulted by a Busch Entertainment employee while the employee was operating the Malibu Pipeline ride at Water Country USA.
Elrod v. Busch Entertainment Corp. (VLW 011-3-046) (20 pp.)
Store Wins Summary Judgment in Slip & Fall
A customer cannot survive summary judgment with a late proffer of a purported conversation among store employees about the wet spot on the floor where he slipped, in this case from Richmond U.S. District Court.
Lee v. Wal-Mart Stores Inc. (VLW 011-3-121) (12 pp.)
Jury Award Under Special Damages Upheld
Although the jury award of $1,000 was for a sum less than the $1,172 price of plaintiff’s emergency room visit and follow-up appointment with a primary care physician after an auto accident, a Charlottesville Circuit Court declines to set aside the verdict as inadequate as a matter of law.
Anglin v. McCann (VLW 011-8-066) (4 pp.)
Company’s Drug Screen Contractor Faces Claim
An employee of a car dealership who alleges he was fired after a random drug screen showed cocaine states a negligence claim against the company that collected the urine specimens for allegedly failing to follow the testing protocol, but he can’t sue the third-party administrator of the car dealership’s drug screening program or the lab that tested the specimens.
Blakeman v. Emergency USA (VLW 011-8-178) (13 pp.)
Man Stabbed by Cook Can Sue Sushi Restaurant
A restaurant patron stabbed by a cook who was standing at the bar drinking while on duty can sue the restaurant for assault and battery, negligence in failing to protect an invitee, emotional distress and punitive damages, but not for negligent hiring and retention, says a Charlottesville Circuit Court.
Beach v. McKenney (VLW 011-8-067) (8 pp.)
Wrongful Death Verdict Is ‘Excessive’
In this wrongful death case, a Charlottesville Circuit Court finds plaintiff Isaiah Lester’s jury award of $6,227,000 as the beneficiary of his wife’s estate grossly disproportionate to the injuries actually suffered, and the court will remit $4,127,000, leaving him with an award of $2,100,000 adjusted for interest.
Lester, Adm’r v. Allied Concrete Co. (VLW 011-8-164)(32 pp.)
Background Screener Faces Negligence Claim
In this first-impression case, a Fairfax Circuit Court says the estate of a young woman murdered in her Falls Church apartment by the apartment’s leasing agent may amend her complaint to state a negligence claim against the company that allegedly performed the background check on the leasing agent and missed his criminal background including a prior abduction of a girlfriend.
Orange v. Berkshire Property Advisors LLC (VLW 011-8-177)( 8 pp.)
Supermarket Carpet Trip & Fall Advances
A Norfolk U.S. District Court denies summary judgment to defendant supermarket on plaintiff shopper’s claim for injuries alleging defendant Kroger store negligently failed to secure a carpet at the store entrance, allowing the carpet to “cock up, wrinkle, fold, bunch up or otherwise accumulate” and creating a “hazardous condition.”
Anderson v. Kroger LP I (VLW 011-3-611) (7 pp.)
Home for Disabled Has Charitable Immunity
The Virginia Home in Richmond, a private, state-licensed home for disabled indigents, has charitable immunity from a negligence claim filed by a resident who suffers from cerebral palsy and suffered third-degree burns to her leg in a fire in her room at the home, says a Richmond Circuit Court.
Rogers v. The Virginia Home (VLW 011-8-197) (13 pp.)
Customer Can Sue for Negligent Supervision
A Lowe’s customer who alleges she suffered a brain injury when a Lowe’s employee climbed a ladder to retrieve an item and dropped a box on plaintiff customer can sue Lowe’s for negligent training and negligent supervision of its employee, as the Norfolk Circuit Court distinguishes this case from the Virginia Supreme Court decision in C&P Tel. Co. v. Dowdy.
Hernandez v. Lowe’s Home Centers (VLW 011-8-200) (6 pp.)
Hotel Employees Must Answer ‘Safety’ Questions
In a lawsuit against a long-term care facility that allegedly lost track of a resident who fell down a flight of stairs during a “field trip” to the Homestead Hotel and died 10 days later, a Staunton Circuit Court says two hotel employee must respond to plaintiff’s questions relating to safety policies and procedures at the Homestead.
Stone v. Clifton Forge Health Care LLC (VLW 011-8-220) (3 pp.)
Homeowners Have Tort Claims for Pesticide Use
Homeowners who allege a pest control company and its unlicensed technician caused them personal injury and economic harm by applying a pesticide not meant for residential use, can sue for negligence and negligence per se, but not for willful and wanton conduct, the Supreme Court says.
Kaltman v. All American Pest Control Inc. (VLW 011-6-037) (23 pp.)
Store Shelf, Ladder Were ‘Open & Obvious’
A retail store wins summary judgment in a customer’s suit for brain injuries she allegedly suffered when she walked through a narrow corridor and her forehead suddenly struck the corner of a metal shelf, because she was focusing on a ladder in the aisle; an Alexandria U.S. District Court says both the ladder and the shelf were open and obvious conditions.
Zankow v. Sears Holding Corp. (VLW 011-3-074) (8 pp.)
No Injury Claim for Broken Hammock
A defendant who rented out her mountain cabin to a New Jersey couple celebrating their wedding anniversary wins summary judgment in the husband’s suit alleging injuries from a hammock at the cabin that broke when he sat on it; the Lynchburg U.S. District Court says plaintiff has not shown the cabin owner had actual or constructive notice of a problem with the hammock.
Jarmak v. Ramos (VLW 011-3-378)(13 pp.)
Court Dismisses Slip & Fall Based on Coupon Claim
A drugstore cashier’s alleged admission that she had not finished cleaning an aisle of the store earlier that day does not support plaintiff’s claim that the store had notice of an unsafe condition that led to her slipping on a coupon pad, and the Richmond U.S. District Court magistrate judge grants summary judgment to the drugstore.
Villines v. Walgreen Co. (VLW 011-3-252) (13 pp.)
Bus Rider Can Sue School Board, Not Board Employees
A Roanoke U.S. District Court says a man suing for injuries he received as a teenager when he exited a school bus and was struck by a driver who failed to heed the bus driver’s signals to stop, can sue the school board but not the bus driver and the three school board employees, who all have immunity.
Roach v. Botetourt County School Board (VLW 011-3-018) (12 pp. )
City Had Duty to Warn of Dam Danger
In this suit by the parents of a 16-year-old boy who drowned in the Maury River below a low-head dam in a city-owned riverside park, the Supreme Court of Virginia reverses the trial court decision that the city of Lexington did not have a duty to warn its invitees of the dangers posed by the dam and striking the parents’ claim for gross negligence, but the high court upholds the judgment striking a claim for willful and wanton negligence.
Volpe v. City of Lexington (VLW 011-6-059) (15 pp.)
No ‘Reckless’ Pleading for ‘Ordinary’ Accidents
A Fairfax Circuit Court dismisses claims in two unrelated automobile accident personal injury suits that allege “recklessness” without the necessary foundation.
Sheymov v. Thomasson (VLW 011-8-071) (10 pp.)
Court Lets Segway Suit Roll On
A woman who alleges injury while using a Segway Personal Transport provided by defendant tour company may pursue her products liability claim against the tour company and the defendant manufacturer, but the Richmond Circuit Court dismisses her additional warranty, fraud and punitive damage claims.
Pritchett v. Segway of Richmond (VLW 011-8-085) (2 pp.)
Experts Can Show Infant Earning Capacity
In a products liability suit against a child-safety seat manufacturer, a vocational rehabilitation expert and an economist can use academic and medical reports and family history to testify as to the individualized earning capacity of a five-year-old girl who occupied the safety seat and who suffered brain injury in an auto accident.
Musick v. Dorel Juvenile Group Inc. (VLW 011-3-570) (8 pp.)
No Spoliation Dismissal for Destroyed Van
In this product liability suit alleging a defective car seat manufactured by defendant gave rise to a five-year-old child’s brain injury from an auto accident, the Abingdon U.S. District Court denies the manufacturer’s request to dismiss the suit due to spoliation of evidence because the vehicle in which the child was a passenger was allowed to be destroyed.
Musick v. Dorel Juvenile Group Inc. (VLW 011-3-597) (7 pp.)
Car-Seat Discovery Sanction Upheld
An Abingdon U.S. District Court upholds the magistrate judge’s discovery sanction that precludes defendant car-seat manufacturer from offering evidence as to why it chose not to add foam to the head-area side wings of the child car seat that is the alleged defective product in this personal injury case.
Musick v. Dorel Juvenile Group Inc. (VLW 011-3-602) (3 pp.)
Landlord Collects on Quantum Meruit Claim
A shopping mall landlord wins $23,285.91 on a quantum meruit claim against a sub shop; a Fairfax Circuit Court says the quantum meruit claim is not barred by the existence of a lease, because the lease term regarding water service is unenforceable between the landlord and the sub shop as occupant.
Franconia Two LP v. Omniguru Systems Inc. (VLW 011-8-030) (7 pp.)
Slander of Title Claim Barred After Two Years
In this first-impression case, a Fairfax Circuit Court applies a two-year statute of limitations to a claim for slander of title and dismisses as time-barred a woman’s claim against Wells Fargo based on her husband’s alleged forgery of her signature on deeds of trust when he refinanced their home prior to his death.
Koz v. Wells Fargo Home Mtge. (VLW 011-8-179) (6 pp.)
Nail Salon Lease is ‘Unconscionable’
A landlord on a commercial lease for a nail salon cannot enforce a guaranty signed by the lessee’s wife because the guaranty is unconscionable and unenforceable; a Fairfax Circuit Court says the guaranty effectively converts wife from a guarantor to a gratuitous surety with primary liability and little chance to defend against plaintiff realty company’s claims.
Columbia Realty Venture LLC v. Dang (VLW 011-8-176)(7 pp.)
Contractor Faces Punitive Damages Claim
Citing a 2011 Virginia Supreme Court case on punitive damages, a Chesapeake Circuit Court says property owners have alleged a claim for punitive damages against a construction company that acted with “willful and wanton disregard” when it built a berm that encroached on plaintiffs’ land, after plaintiffs had agreed only to construction of a drainage swale.
Sawyer v. C.L. Pincus Jr. & Co., African Awareness Campaign Headquarters of Deliverance Tabernacle Church (VLW 011-8-167)(5 pp.)
HOA Wins Damages on Owner Violations
Although the Loudoun County Circuit Court finds a homeowner, in building her home, committed multiple violations of the plan approved by the Architectural Review Board, the court will assess damages in favor of plaintiff homeowners’ association on the basis of “one overriding violation,” the failure to comply with the ARB-approved application
Lee’s Crossing Homeowners’ Ass’n v. Zinone (VLW 011-8-181) (16 pp.)
Condo Association Can’t Assess ‘Paperwork’ Fines
A condominium association for a low-income public housing complex does not have authority under its Master Deed, its Bylaws or under Va. Code § 55-79.80:2 to assess more than $20,000 in fines against a plaintiff tenant for failing to properly submit certain paperwork and purported rules violations, says a Fairfax Circuit Court.
Fairfax County Redevelopment & Housing Auth. v. Shadowood Condominium Ass’n (VLW 011-2-117) (6 pp.)
Tenants Sue Landlord for Bedbug Infestation
Although a new Virginia Supreme Court pest-control case does not support a negligence claim against a landlord filed by tenants who say their apartment is infested with bedbugs, a Fairfax Circuit Court says the tenants have stated claims for fraud in the inducement, breach of contract and violation of the Virginia Consumer Protection Act.
Park v. Gates Hudson & Assoc. Inc. (VLW 011-8-122) (9 pp.)
Inverse Condemnation from Bridge Project
A Wythe County Circuit Court says a VDOT construction project to expand an I-77 bridge damaged petitioners’ farm property because it affected their access easement and directed water onto their property, creating erosion ditches, and the owners are entitled to a condemnation award.
Jennings v. Commonwealth Transportation Comm’r (VLW 011-8-141)(7 pp.)
Foreclosure Fraud Claim Survives
A couple who allege they attempted to borrow against a retirement account in order to catch up on their mortgage payments, but who came home one day to find a handwritten note on their front door saying the home had been sold at foreclosure, can bring a fraud claim against an employee of the law firm who acted on behalf of defendants, says a Richmond U.S. District Court.
Washington v. CitiMortgage Inc. (VLW 011-3-274) (25 pp.)
Court Construes Contract’s Financing Clause
In this first-impression case, a Salem Circuit Court says inserting the handwritten phrase “subject to approval of financing” into a real estate contract’s clause on the closing date makes the purchase contingent on the buyer’s ability to obtain financing.
Mildenhall LLC v. Higginbotham (VLW 011-8-151) (3 pp.)
Owners Can Seek Attorney’s Fees Against HOA
Owners may pursue a declaratory judgment action against their homeowners’ association for allegedly exceeding the legal debt cap, mismanaging capital reserves and arbitrarily denying the owners’ request to build a roof and deck, and the Fairfax Circuit Court says the owners may seek attorney’s fees if they are prevailing parties.
Farran v. Olde Belhaven Towne Owners’ Ass’n (VLW 011-8-162)(10 pp.)
Owners May Sue for Storm Drainage Damage
Although plaintiff landowners did not appeal the county’s denial of their claim for damages to their property allegedly arising from the county’s failure to maintain a storm drainage system, the statutes governing their initial claim are not their exclusive remedy, and the Fairfax Circuit Court says the owners may still pursue their claim for inverse condemnation.
Hartwell v. County of Fairfax (VLW 011-8-152)(12 pp.)
History of Condo Flooding is ‘Adverse Fact’
Buyers of a Charlottesville townhouse can sue the part-owner/real estate agent for failure to disclosure adverse material facts, based on allegations the agent knew of and failed to disclose a history of flooding at the residence; even though the flooding allegedly was caused by a clogged drain on adjacent property, the flooding still was a condition of the subject property, says a Charlottesville Circuit Court on this first-impression question.
Walton v. Aguilar (VLW 011-8-012) (5 pp.)
Discovery Abuse Earns Default Sanction in Mortgage Fraud Case
A Charlottesville U.S. District Court awards sanctions under Fed. R. Civ. P. 37 and enters a default judgment against defendant mortgage company on plaintiff homeowners’ claim that defendant fraudulently misrepresented that plaintiff’s refinance of their home mortgage would not carry Lender Paid Mortgage Insurance, and defendant’s inclusion of LPMI meant plaintiffs could not get another mortgage loan at a more favorable rate.
Scott v. GMAC Mortgage LLC (VLW 011-3-212) (19 pp.)
Quiet Title Claim Challenges Foreclosure
Plaintiffs who lost their home through foreclosure cannot sue for negligence, as any alleged fiduciary duty arose from their contract, but they have stated a quiet title claim with their allegations that the foreclosure was invalid because defendants were not beneficiaries of their debt and had no authority to foreclose on the deed of trust, a Fairfax Circuit Court says.
Salazar v. US Bank NA (VLW 011-8-029) (8 pp.)
Police Computer Alert Is ‘Reasonable Suspicion’ for Frisk
In a split decision, the Supreme Court of Virginia says police could pat down a passenger in a vehicle stopped for a broken rear brake light after the computer in the police patrol car alerted on a name search that the passenger was “probably armed and a narcotics seller/user”; the dissent says no other U.S. court has allowed a frisk based on criminal record.
Commonwealth v. Smith (VLW 011-6-058) (30 pp.)
GPS Tracking Device Substitute for Surveillance
A Franklin County Circuit Court denies a defendant’s motion to suppress any evidence obtained against him after a GPS device was attached to his vehicle when it was parked at night on a public street in the city of Bedford, as the device was attached to the outside of the car, there was no evidence the vehicle was tracked on any private property and the officers have maintained surveillance of the vehicle and collected the same evidence obtained by use of the GPS.
Commonwealth v. Hill (VLW 011-8-113) (3 pp.)
Closing Argument Did Not Preserve Sufficiency Claim
In defendant’s appeal of his conviction for possession of cocaine found in his pocket when police arrested him for public intoxication, the Court of Appeals cannot consider defendant’s challenge to the sufficiency of the evidence because his only effort to preserve this issue was his lawyer’s one-sentence closing argument that his client testified under oath that the cocaine was not his.
Dickerson v. Commonwealth (VLW 011-7-205) (9 pp.)
‘Consent’ Invalid After Police Accusation
A Martinsville Circuit Court suppresses drug evidence found in the car of a woman whose husband, a former police informant, alerted police who stopped the car; in view of the police accusation that the woman was transporting illegal drugs in her vehicle, no reasonable person in the woman’s position would have felt free to withhold consent.
Commonwealth v. Johnston (VLW 011-8-054) (5 pp.)
Officer Had Reason to Stop Oversize Load
A police officer certified to inspect commercial tractor-trailer loads, who observed on the highway a tractor-trailer with a load that extended over the sides of the truck and had unsecured rebar on top, had a reasonable suspicion to stop the truck, and the Court of Appeals affirms the finding that defendant truck driver violated vehicle width and load-securing requirements.
Morris v. City of Virginia Beach (VLW 011-7-135) (9 pp.)
4th Circuit Decries Government ‘Spin’ for Search
An officer who emerged from a restaurant lunch with his wife, and saw defendant, whom he had arrested in the past for a revoked license, “going haywire” with his arms, did not have a reasonable suspicion to make an investigative stop of the defendant, and the 4th Circuit reverses defendant’s drug conviction, based on a conditional guilty plea.
U.S. v. Foster (VLW 011-2-060) (10 pp.)
Passenger Seizure Upheld After Assault On Officer
A passenger who was ordered out of a car after a valid traffic stop could not suppress the revolver seized from his pants pocket after he assaulted a deputy, and the 4th Circuit upholds the passenger’s firearm conviction and the district court’s sentencing enhancements.
U.S. v. Hampton (VLW 010-2-187) (17 pp.)
Crack Sentencing Statute Not Retroactive
Drug evidence found in a suitcase belonging to defendant, an unregistered motel guest, need not be suppressed, the 4th Circuit says, even if searching the suitcase went beyond a “protective sweep”; and the 4th Circuit joins its sister circuits and holds that the Fair Sentencing Act of 2010 does not apply retroactively to allow defendant to be resentenced on a crack cocaine offense.
U.S. v. Bullard (VLW 011-2-093) (19 pp.)
Sex Offender’s GPS Claim Rejected
On rehearing en banc, the Court of Appeals says police officers could offer eyewitness testimony about defendant’s attack on a woman, despite defendant’s claim that their testimony was the “fruit of the poisonous tree” after police, without a warrant, attached a GPS device to the work van used by defendant, who was a registered sex offender.
Foltz v. Commonwealth (VLW 011-7-126) (29 pp.)
Court Stresses Standard for Passenger Search
Although a radio call alerted an officer to a passenger’s “priors” for armed robbery, that “caution” and the passenger’s lie about his driver’s license did not provide a reasonable suspicion the passenger was armed and dangerous and allow a pat down, a 4th Circuit panel majority holds; saying it has made the same point in three recent cases, the appellate court vacates defendant’s crack cocaine conviction.
U.S. v. Powell (VLW 011-2-168) (19 pp.)
Illegal Entry May Have Tainted Consent
Police who did not expect to find defendant at his girlfriend’s home entered the home illegally, but they had the girlfriend’s valid consent to search the home; however, the 4th Circuit remands the case to the district court to decide whether the taint from the initial illegal entry was dissipated by the girlfriend’s consent.
U.S. v. Hill (VLW 011-2-143) (30 pp.)
No Pat-Down of ‘Nervous’ Man After ‘Shots Fired’ Tip
Police officers responding to an anonymous tip about “shots fired” in a high-crime neighborhood, who saw four young men several blocks from the reported gunfire, did not have reasonable, particularized suspicion to conduct a pat-down of one of the young men who appeared nervous and refused consent to search; the 4th Circuit reverses defendant’s conviction on marijuana and firearm charges.
U.S. v. Massenburg (VLW 011-2-139) (27 pp.)
Invalid Consent to Search After Traffic Stop
A police officer on a traffic stop who followed up his “have a good night” dismissal of the driver with a request to search the driver’s vehicle, and who directed a passenger to sit on the curb during the search while one of the two armed officers stood between the vehicle and the passenger, did not obtain valid consent to search the passenger and the Fairfax Circuit Court suppresses the cocaine found on the passenger.
Commonwealth v. Aguado (VLW 011-8-157) (4 pp.)
Green-Card Check OK During Traffic Stop
A police officer who questioned a pickup passenger’s alien legal residence card during a routine traffic stop did not violate the passenger’s Fourth Amendment rights when he extended the stop to call the local customs office to check the validity of the passenger’s identification; the 4th Circuit affirms defendant passenger’s conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326.
U.S. v. Guijon-Ortiz (VLW 011-2-167) (23 pp.)
Reconsideration for Claimant’s Mental Retardation
A Big Stone Gap U.S. District Court Magistrate Judge recommends denial of summary judgment to claimant and the SSA on claimant’s application for disability insurance benefits, and recommends the commissioner’s denial of DIB be vacated and the case remanded for further consideration as substantial evidence does not support the finding that claimant is not disabled due to mental retardation.
Gibson v. Astrue (Sargent) (VLW 011-3-634) (17 pp.)
Tax Refund Claim Showed ‘Real Chutzpah’
Saying it takes “real chutzpah” for appellant corporation to claim a refund on taxes it did not overpay, the 4th Circuit rejects the corporation’s appeal and says that in this case, the IRS can recalculate tax liability for a year beyond the statute of limitations.
R.H. Donnelly Corp. v. U.S. (VLW 011-2-067) (13 pp.)
Man Accused of Child Abduction Has Defamation Claim
A contractor who was arrested for attempted abduction of a 10-year-old boy who asked for a ride home and got into the contractor’s truck, after a neighbor intervened, told the boy to get out and accused the contractor of trying to abduct the boy, can sue defendant police officer for defamation, but not for malicious prosecution and false imprisonment, the Virginia Supreme Court says.
Lewis v. Kei (VLW 011-6-070) (15 pp.)
Law Firm’s Loss of Client Not Tortious Interference
A law firm that represented a housing authority for 30 years, but lost that client after the chairman of the county board of supervisors “verbally clashed” with a partner and allegedly acted with “malice” to destroy the attorney-client relationship, cannot sue the chairman for tortious interference with a contract, the Supreme Court of Virginia says.
Dunn, McCormach & MacPherson v. Connolly (VLW 011-6-053) (9 pp.)
Malicious Prosecution Jury Award Set Aside
A Richmond Circuit Court sets aside a $250,000 jury award for plaintiff in her suit against defendant Chesterfield County police officer on a claim of malicious prosecution; applying a 2011 Virginia Supreme Court case, the court says defendant officer investigated a stolen-check offense in his jurisdiction and faxed the report identifying plaintiff as “Lead/Offender” to Richmond police who arrested plaintiff, and defendant took no active, voluntary steps to have plaintiff arrested.
Jones v. Edwards (VLW 011-8-109) (9 pp.)
Charitable Immunity for Church Youth Group Beach Trip
Although the state park public beach visited by a church youth group may not have had a spiritual mission, the youth group had such a mission, and a Pittsylvania County Circuit Court says defendant church and its leaders have charitable immunity from a suit for injuries filed by the estate of a youth who was a member of the church group.
Henley, Adm’r v. Woodford (VLW 011-8-010) (3 pp.)
Claim for Accounting ‘Negligence’ Dismissed
Plaintiff trusts who are suing defendant CPA for $25 million for allegedly providing “negligent tax advice, preparation of tax returns and relating accounting services” over a 12-year period are claiming accounting malpractice, and a Martinsville Circuit Court says accounting malpractice, like legal malpractice, is a contract claim, not a tort claim.
SolAVerde LLC v. Town of Front Royal (VLW 011-8-110)(4 pp.)
Licensee’s Development Costs Do Not Prove Damages
A defendant company that licensed technical data and prototypes from plaintiff company in order to develop a grenade launcher has to return prototype launchers and parts to plaintiff under their agreement, but the Alexandria U.S. District Court says the fact that the defendant company spent $1 million in an effort to develop the grenade launcher does not set a measure of damages for the plaintiff company’s breach of contract claim; the court rejects the jury’s $968,000 damage award for plaintiff and enters judgment for defendant.
Trident Enterprises Ltd. v. Airtronic USA Inc. (VLW 011-3-309) (13 pp.)
Firing At-Will Doc Not ‘Tortious Interference’
The Supreme Court of Virginia sets aside a $900,000 judgment for an emergency-room doctor who said hospital officials pressured her practice group to fire her because she supported ER nurses who had work-related complaints about the hospital.
Lewis-Gale Medical Center LLC v. Alldredge (VLW 011-6-083) (18 pp.)
No Conspiracy Claim for Property Damage
A Roanoke County Circuit Court says a plaintiff can’t sue for civil conspiracy for damage to her non-business personal interest in real property, which is not covered under Virginia law.
Bane v. Bane (VLW 011-8-021) (2 pp.)
No Defamation for ‘Misconduct’ Firing
A nurse supervisor terminated from her position supervising a telephone call-in line for health plan subscribers loses her suit alleging she was defamed when her employer stated in her employment records that she had been terminated for misconduct with regard to her representations about being cursed by an employee she supervised.
Shaheen v. Wellpoint Cos. (VLW 011-3-613) (12 pp.)
No ‘Self-Publication’ Defamation in Virginia
A group of assistant managers at Panera Bread Company who claim they were misclassified under the Fair Labor Standards Act have their overtime pay claim dismissed under the first-to-file rule in favor of a similar action in Florida federal court, and the Alexandria U.S. District Court also dismisses this named plaintiff’s defamation action based on his manager’s discussion of the reasons for plaintiff’s termination.
Ortiz v. Panera Bread Co. (VLW 011-3-439) (18 pp.)
No Defamation Claim for Photo Publication
A Roanoke judge sitting in Russell County Circuit Court says a former clerk of that court cannot sue a newspaper for defamation for including in a story about her son, a lawyer who was disciplined by the Virginia State Bar, a family photograph that included the clerk, which she said implied that she had been involved in improper conduct.
Compton v. Foster (VLW 011-8-020) (2 pp.)
No Miranda Warnings Before Field Sobriety Tests
An officer did not have to give Miranda warnings to defendant driver before advising about the physical components of the field sobriety tests and asking the driver if he had any physical problems that would affect the tests; the Court of Appeals says this conversation did not involve testimonial communication, and defendant’s physical performance of the tests was not protected by the Fifth Amendment.
Gibson v. Commonwealth (VLW 011-7-102) (9 pp.)
BAC Certificate Comes In, Despite Arrest Delay Claim
A defendant who alleges he was not arrested within three hours of driving under the influence because the officer did not perform “any physical act” of arrest, loses his challenge to admission of the certificate of analysis under Virginia’s implied consent law; the Court of Appeals affirms defendant’s conviction for DUI, second offense within five years.
Young v. Commonwealth (VLW 011-7-077) (17 pp.)
Key Position Means Driver Was ‘Operating’ Vehicle
The Supreme Court of Virginia affirms the DUI conviction of a man who was hunched over the wheel of a vehicle, with the ignition key in the “on or accessory position,” but a dissenting justice says the majority has convicted a defendant who was under the influence, but “merely listening to the vehicle’s radio.”
Nelson v. Commonwealth (VLW 011-6-021) (13 pp.)
No Va. Calibration Test on Federal Parkway
An Alexandria U.S. District Court affirms defendant’s conviction for speeding on the George Washington Memorial Parkway, despite defendant’s claim the magistrate judge improperly admitted readings of a Lisar laser device without proving recent calibration; because Virginia’s guidelines for calibrating speed-detection devices are administrative, the National Park Service was not required to adopt the measures through 36 C.F.R. § 4.2.
U.S. v. Wudu (VLW 011-3-550) (6 pp.)
Store-Bought Tag Prompts Pickup Stop
A defendant who was driving a pickup truck at 10:00 p.m. on a February night, with three people in the cab and a store-bought farm use tag, gave a state trooper reasonable suspicion to stop the truck to determine if in fact it was being used as a farm vehicle, and the Court of Appeals upholds the driver’s convictions on a conditional guilty plea for driving while intoxicated and operating an unregistered, uninspected and uninsured vehicle.
Shifflett v. Commonwealth (VLW 011-7-307) (7 pp.)
Fitness Club Employee Fired for No ‘Fight Night’
A Fairfax Circuit Court says an employee terminated from his employment at a fitness club is barred by misconduct from collecting unemployment compensation through the Virginia Employment Commission, as he was terminated for his failure to plan and promote a “fight night” charity event at the club.
Novotny v. VEC (VLW 011-8-213) (4 pp.)
Welfare Fraud Conviction is Workplace ‘Misconduct’
Although a Wal-Mart merchandising supervisor had never been disciplined on the job and self-reported her guilty plea to felony charges of welfare fraud, her criminal conduct outside work constituted workplace misconduct that bars her from receiving unemployment compensation, the Court of Appeals says.
Francis v. Va. Employment Comm’n (VLW 011-7-366) (7 pp.)
No Will Transfer of LLC Interest
Membership in a Virginia limited liability corporation may not be transferred by will, the Supreme Court of Virginia holds, and the daughter of a two-member LLC inherited only her father’s financial interest in the company to share in profits and losses, and not the right to remove its managing member and successor managing member.
Ott v. Monroe (VLW 011-6-127) (10 pp.)
Woman Can Sue for Sister’s Funeral Costs
Although the Norfolk Circuit Court earlier dismissed plaintiff’s claim against her brother-in-law for performance of her deceased sister’s promise that plaintiff would receive $60,000 from her sister’s pension proceeds, plaintiff is not barred from pursuing a claim against her brother-in-law for payment of her sister’s $10,210 funeral expenses, under the common law doctrine of necessaries.
Shepard v. Moore (VLW 011-8-199) (6 pp.)
Court Orders Constructive Trust for Stepsons
In two adult sons’ suit against their stepmother as third-party beneficiaries of their parents’ post-nuptial agreement, a Roanoke County Circuit Court says the sons are entitled to only 50 percent of their father’s life insurance proceeds, and the court imposes a constructive trust on $63,424 as the sons’ share of their father’s estate.
Geertgens v. Geertgens (VLW 011-8-068) (7 pp.)
TBI Comp Continues After Car-Crash Settlement
The Court of Appeals rejects an employer argument that after claimant’s settlement of a third-party p.i. claim, the commission can find a forfeiture of benefits on a piecemeal “body part by body part” basis.
United Airlines Inc. v. Hayes (VLW 011-7-164) (19 pp.)
Employee’s Spider Bite Not Compensable
The Court of Appeals affirms the denial of benefits to an employee bitten by a spider because the record failed to show that his work environment created a peculiar condition increasing his risk of exposure.
Wilson v. Ace Hardware Corp. (VLW 011-7-170(UP)) (5 pp.)
Employer’s Choice of Weight-Loss Program Not ‘Imposition’
Although a treating physician for a claimant who gained over 70 pounds after her work-related back injury recommended a residential weight loss program, employer countered with an offer to pay for claimant’s participation in a local Weight Watchers program, and the Court of Appeals says the commission erred in applying the doctrine of imposition to modify the parties’ agreement and extend the expiration date for payment of claimant’s medical benefits.
Hampton Inn v. King (VLW 011-7-173) (13 pp.)
Statute of Limitations Tolled for Successive Comp Awards
A Ford Motor Company production employee who had a series of workers’ comp awards for a work-related injury is not barred from filing a charge-in-condition application; the Supreme Court of Virginia says the provision in Va. Code § 65.2-708(C) tolling the statute of limitations in Code § 65.2-708(A) runs anew under each successive award of comp for a compensable injury.
Ford Motor Co. v. Gordon (VLW 011-6-064) (12 pp.)
Cell Phone Cause Employee Injury
A majority of the Court of Appeals affirms the commissions award of medical benefits to a nurse injured in a car accident after she was distracted by the illumination of a personal cell phone she dedicated to receiving calls from her employer while on call on weekends.
Wythe County Community Hospital v. Turpin (VLW011-7-298) (7 pp.)
No Comp Lien on Med-Mal Award
An employee who collected workers’ comp for a broken leg, and then won a $988,500 jury award for his treating physician’s medical malpractice leading to lung damage from a pulmonary embolism, does not have to pay the employer $22,945.77 on its workers’ comp lien filed in the med-mal suit, says a Roanoke City Circuit Court.
Thompson v. Alhadeff (VLW 011-8-192) (6 pp.)
Wrong Test Used for Employee Count
The Court of Appeals reverses a workers’ compensation award to a claimant hired to work on a window-replacement project at an apartment building because the contractor who hired claimant did not have at least three persons “regularly in service.”
Ragland v. Muguruza (VLW 011-7-392) (8 pp.)
No Spa Pool on Doc’s Prescription
A school board need not pay for the “spa pool” for an employee with back pain from a shoulder injury; although claimant had a doctor’s prescription, he did not show that a six-person home spa pool was medically necessary, and the Court of Appeals reverses the commission decision ordering payment by employer.
Portsmouth (City of) School Board v. Harris (VLW 011-7-242) (9 pp.)
Lot-Width Waivers Violate Dillon’s Rule
A plaintiff wins her challenge to the county’s grant of a special exception under Fairfax Zoning Ordinance § 9-610 for waiver of minimum lot width requirement to another owner’s property, as the Fairfax Circuit Court holds the county violated Dillon’s Rule by granting lot width waivers without meeting the requirements for granting a variance.
Blakeley v. Board of Supervisors of Fairfax County, Va. (VLW 011-8-095) (6 pp.)
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