Publisher's Notebook

My tax professor at Washington & Lee, the late great Tim Philipps, had a saying for that moment when you think you have found a loophole in the federal tax code: If it sounds too good to be true, it probably is.

Earlier this month, in the debate over the “Castle Doctrine,” a delegate told a story from the floor of the House of Delegates.

The Castle Doctrine holds that a man’s home is his castle. Several measures before the General Assembly this session would give a homeowner immunity from prosecution or from civil liability if he harms someone trying to break in to his home. There are some different nuances to the bills, but that’s the nut of it.

Del. Anne Crockett-Stark, R-Wytheville, took the floor Feb. 9 to speak in favor of one of these measures.

“We need this bill,” she said, and Crockett-Stark proceeded to relate a story of an 82-year-old constituent from one of her counties in Southwest Virginia.

One night, about 2 a.m., the elderly woman heard the sound of glass breaking. She grabbed her pistol – the woman is a sharp-shooter, Crockett-Stark said, to chuckles in the crowd.

The woman caught the intruder as he was entering a window. She put the pistol to his chin, and asked him, “Do you want to eat breakfast with the devil?”

As the man ran off, she fired a shot in the air to scare him.

Here’s the “sad part,” according to the delegate. “He took her to court for shooting at him and he won!”

Her Republican colleagues applauded with delight and gave her a partial standing O. The castle doctrine measures passed the House overwhelmingly and are now with the Senate.

Back to the lady packing heat. I ran across women like her when I practiced law in Southwest Virginia. If we’re in a street fight, I want feisty ol’ gals like her on my side.

But we watch for stories like that at this newspaper. If an intruder brought a lawsuit and actually prevailed, it likely would be page-one stuff.

Lawyers would take great interest in such a case. What were the exact facts? What was the theory the winning lawyer used? What defenses? Did the lady’s homeowner’s insurance kick in?

We wanted to know more about this case. My colleague Peter Vieth and I started making phone calls across the delegate’s district, which includes all or part of three counties — Wythe, Carroll and Smyth. About 15 calls later: No one had ever heard such a tale.

We talked to the circuit clerks of all three counties. Nope. Hayden Horney, the Wythe County clerk, asked, “When did this happen?” He said he’d been in his position 27 years and had never heard of it. A bailiff in Wythe had been on the job since the late 1960s and could not recall such a case.

Jack Harris, executive director of the Virginia Trial Lawyers Association, posted a query on the VTLA listserv, trolling for information; several hundred plaintiff’s lawyers are members. Nothing.

Vieth finally got a sort-of response from Del. Crockett-Stark’s office. Her legislative aide, John Matthews, said the delegate does not know specifics. Matthews added, “She does not have any information to share with us. She was told the story by the lady, who has cancer.

“That’s all there is,” Matthews said.

So we can’t say this story isn’t true or there isn’t a pistol-packing senior citizen out in Southwest Virginia. We can say we tried to get independent confirmation of this tale and further information and we could not do so. As any good lawyer will tell you, it’s hard to prove a negative.

Let me simply send out this call: If anyone knows anything more about this lawsuit by the intruder, please let us know.

We’re not the only ones interested. One of the clerks asked that I call back if I got additional details. “I’d like to know about that one,” the clerk said. “That’s a good story.”

Here’s one for the civil procedure junkies.

A veterinary supplies company says that a vet named Rasnic owes it $74,139.24 and wants to sue to collect. Can the company, Merial Ltd., sue in federal court?

It’s a contract action and there’s no federal statute involved, so the plaintiff has to rely on diversity of citizenship under 28 U.S.C. § 1332(a) to get into federal court. Company is based in Georgia, defendant is from Scott County. Check. The magic number for diversity jurisdiction, any one-L will tell you, is $75,000. So Merial is about 800 bucks short.

Wait, Merial also wants interest of about 15 grand and $2,500 in attorney’s fees, based on language in its invoices. However, the federal rule says $75K, “exclusive of interest and costs.” Rasnic asked that the claim be dismissed.

Merial still can go forward in federal court, according to U.S. Magistrate Judge Pamela Meade Sargent in Merial Ltd. v. Rasnic. The judge provides a handy primer on what to argue when you’re oh-so-close to that 75K figure. Tuck a copy of this one in your federal procedure file.

The judge noted there were a number of exceptions to the interest-doesn’t-count rule, although they didn’t apply here. And some states may allow interest as “incidental damages,” although Virginia doesn’t.

Merial argued the interest and attorney’s fees were part of the parties’ agreement, citing language in its invoices. The wording on the front of the invoices, copies attached to the pleadings, says the merchandise sold was subject to the terms and conditions printed on the back of the invoice. The words on the back allowed for 12 percent annual interest and reasonable attorney’s fees if the balance wasn’t paid, according to the complaint.

But the judge noted, “Merial has not provided copies of the back of these invoices.” So close, then again, so far away.

Actually, not a problem. Sargent applied the “legal certainty test” to Merial’s claim, which saved the day. That test provides that the defendant must show “to a legal certainty” that the plaintiff can’t meet the jurisdictional amount, a pretty tough task.

The judge wrote that the fact that Merial says the invoices have the interest and fees language on the back makes it easy to get over that bump, at least for the purpose of this motion. Rasnic’s claim that he didn’t agree to those terms can wait till later.

Sixteen pages later, Merial and its lawyer can relax, knowing they don’t have to start over in state court. Memo to counsel: Next time, copy both sides of the invoice.

If you and your law firm ever have had to deal with a “difficult” employee, here’s one for you.

A medical clinic in Salem hired a guy named Jones to serve primarily as their receptionist. As in the guy who answered the phones. Who greeted patients. Who was their “Director of First Impressions.”

That didn’t work out so well, according to Jones v. VEC (VLW 010-8-151):

* Mr. Jones was discourteous to patients and gave them wrong information.

* He didn’t get along with his boss or the rest of the staff too well, either. He was insubordinate, ignored directions and failed to communicate with his supervisors.

* At least three patients took their business elsewhere because of him.

His supervisor counseled him. Repeatedly. You know where this is headed. They fired him.

He did what a lot of fired employees do: He filed for unemployment compensation. And he got it. Presumably there was some kind of informal hearing, probably over the phone, but the guy was awarded benefits.

Ex-employees who seek unemployment comp generally will get it, unless they were discharged for “misconduct related to the work.” The Supreme Court has set a pretty high bar to snuff out benefits: The behavior, according to a 1978 case, must be a deliberate violation of a company rule, or acts which are “of such a nature and so recurrent as to manifest a willful disregard” of the employer’s interests and the duties owed by the employee.

The leaders at the clinic probably looked at the piece of paper awarding benefits, then they looked at their presumably thick personnel file on Jones. The boss probably remembered all the conversations and the degree of aggravation. Then they probably thought about the three patients he ran off, the ones that they knew about. It’s doubtful they thought, “Heavens. This isn’t right. That man manifested such a willful disregard for our interests!” No, their thoughts were probably more vernacular, something along the lines of “WTF?”

So the clinic said, in so many words, “Take this claim and shove it.” They appealed to the full employment commission. And they won.

But Mr. Jones took the litigation one step further, appealing to circuit court. His argument, according to Judge Robert P. Doherty: I didn’t mean to do it.

Doherty noted that Jones admitted that a number of incidents cited by the clinic took place. And Jones acknowledged that his boss talked with him. He did not challenge the fact that three patients were lost.

But apparently appearing pro se, he argued that his acts were “accidental mistakes” and that he was not being “deliberate or willful.” Put another way, he was arguing, that’s just the way I am.

Doherty didn’t buy it. The circuit court acts as an appellate court when hearing an unemployment comp case, he noted. The judge said that he therefore was bound to give great deference to any factual findings of the commission.

Jones claimed the commission wrongly gave more weight to the clinic employees’ testimony. But Doherty said the burden of proving that was high. Jones would have to show that no reasonable person would have reached the same conclusion as the commission.

So go back to the person who originally awarded unemployment to Mr. Jones. How reasonable was that?

In a story last year, I flagged the Carroll County Courthouse as one of the “Legal Destinations” you might visit if you wanted to combine legal history with some R&R.

In 1912, the courthouse was the site in the courtroom shoot-out that left the presiding judge, the commonwealth’s attorney and the sheriff dead, among others.

The locals think there’s money in history and they’ll second the motion that you should come visit their courthouse. In fact, according to the Galax Gazette, a Hillsville writer has penned a play based on the events of March 14, 1912.

Money raised from the production would fund scholarships for area students and help with the maintenance of the historic home of industrialist George L. Carter in Hillsville.

The Carroll County people are dreaming big. They plan to charge rates comparable to the Barter Theater over in Abingdon. If they host two performances a day from Thursdays to Sundays for the 18 months leading up to the 100th anniversary of the shoot-out, and if 50 people attend each show, they’ll make more than a million dollars.

Carroll County is southwest of Roanoke, along the North Carolina border. Get your GPS ready and make your plans.

Back when I was in law practice, I handled some bankruptcy work, wasn’t always easy down in Southwest Virginia if you represented creditors.

The federal bankruptcy judge in the area was Judge H. Clyde Pearson, who was known for being a debtors’ judge. Debtors’ lawyers actually would use him as a threat in negotiations: “Well, we can always take this before Judge Pearson and see what he thinks.”

I doubt I would have looked at it this way at the time, but now, years later, I’d say Judge Pearson was just expressing hope. His willingness to look out for someone down his luck and to give a little more time for making payments was a vote in the possible.

Clyde Pearson died last Friday at the age of 85.

The Roanoke Times has an obituary, which notes, “He never forgot his roots and the people of Southwest Virginia were always close to his heart.” I’d say that was right.