Court Orders Constructive Trust for Stepsons

Guarantor Owes Rent but not Remodeling Costs

By Deborah Elkins
Published: September 6, 2011
Tags: Judge Robert P. Doherty Jr., Real Estate, Salem Circuit Court, Virginia Circuit Courts

A guarantor on a restaurant’s lease is liable only for the value of two years’ rent, not for remodeling costs, late payments or advertising for a new tenant, because the lease’s ambiguity in the term “rent” is construed against the landlord, says the Salem Circuit Court. The guaranty contract contains the statement that “Guarantor’s guaranteed [...]

No Indemnity for ‘Inherently Dangerous’ Road Project

By Deborah Elkins
Published: August 29, 2011
Tags: Judge Robert P. Doherty Jr., Negligence, Roanoke County Circuit Court, Virginia Circuit Courts

A Roanoke County Circuit Court says a landowner who hired an independent contractor to dig a hole in one lane of a four-lane highway (with the required permit) for installation of a new water line, is not liable for contribution and indemnity to third-party plaintiff drivers who were highly intoxicated and whose separate cars struck [...]

No Discovery of Driver’s Statements to Carrier

By Deborah Elkins
Published: August 23, 2011
Tags: Civil Procedure, Judge Robert P. Doherty Jr., Salem Circuit Court, Virginia Circuit Courts

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. Plaintiff claims the documents were prepared [...]

Court Construes Contract’s Financing Clause

By Deborah Elkins
Published: August 19, 2011
Tags: Judge Robert P. Doherty Jr., Real Estate, Salem Circuit Court, Virginia Circuit Courts

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. There are no reported cases in Virginia using the phrase “subject to approval of financing.” A [...]

Student Loan is Marital Debt, But Husband Pays

By Deborah Elkins
Published: July 19, 2011
Tags: Domestic Relations, Judge Robert P. Doherty Jr., Salem Circuit Court, Virginia Circuit Courts

Whether the Salem Circuit Court applies the 2011 statute governing apportionment of marital debt or prior case law, the result is the same: a husband’s student loan for his engineering degree is marital debt, but he must pay the entire $50,289.73 owed on the loan. Husband argues that although his student loan debt is solely [...]

Student loan debt marital, but husband pays

By Deborah Elkins
Published: July 14, 2011
Tags: Domestic Relations, Judge Robert P. Doherty Jr., Salem Circuit Court

A divorce court said a husband’s student loan used to finance his engineering degree was “marital debt,” but only the husband had to pay the entire $50,289 balance of the loan. Application of the 2011 marital debt amendments to Virginia’s equitable distribution statute, Virginia Code § 20-107.3(A), did not change the judge’s analysis of who [...]

Promise to Forbear Not Fraud

By Deborah Elkins
Published: July 6, 2011
Tags: Creditor's Rights, Judge Robert P. Doherty Jr., Salem Circuit Court, Virginia Circuit Courts

A Salem Circuit Court sustains a creditor’s demurrer to a borrower’s counterclaim alleging the creditor committed fraud when it foreclosed on the borrower’s property after its agent allegedly assured defendants they would work with them and allow late note payments and not foreclose. This court does not normally use the word “apparently” when reciting facts. [...]

Challenge to Will Relates Back to Earlier Complaint

By Deborah Elkins
Published: June 21, 2011
Tags: Judge Robert P. Doherty Jr., Roanoke County Circuit Court, Virginia Circuit Courts, Wills & Trusts

Plaintiffs may amend their complaint filed June 26, 2009, alleging defendant executrix/beneficiary exercised undue influence over a testatrix in the execution of her will, to also allege failure to comply with Va. Code § 64.1-49’s requirements for execution of a will and additional claims, which the Roanoke County Circuit Court says related back to the [...]

Court Considers Transcript, Suppresses Confession

By Deborah Elkins
Published: May 3, 2011
Tags: Criminal, Judge Robert P. Doherty Jr., Roanoke County Circuit Court, Virginia Circuit Courts

The commonwealth has not presented affirmative evidence that defendant understood her Miranda rights and a Roanoke County Circuit Court grants her motion to suppress her confession in this case of forgery and uttering. Upon receiving her Miranda warning, the officer asked defendant if she understood her rights, but she did not reply orally. The excerpt [...]