Important Opinions 2010



$36 Million Fee Awarded in Accounting Fraud Case
An Alexandria U.S. District Court awards NoVa lawyers almost $40 million in attorney’s fees and costs in a class action accounting fraud case that resulted in “massive losses” to individual and institutional investors.
In re: The Mills Corp. Securities Litigation (VLW 010-3-004) (38 pp.)

Civil Procedure
Lawyer Gets Jury for Claim Against Carrier
A Richmond U.S. District Court says a lawyer who wants a malpractice defense gets a jury trial on his contract counterclaim against his carrier, before trial of the parties’ dec actions.
Minnesota Lawyers Mutual Ins. Co. v. Batzli (VLW 010-3-002) (4 pp.)

Civil Procedure
The ‘End Game Is the Same’
Applying Virginia law, a Richmond U.S. District Court says a contract action refiled after nonsuit of a petition for an insurance “umpire” proceeding seeks a different remedy, it’s still the “same action” and is not time-barred.
Vaughn v. First Liberty Ins. Corp. (VLW 009-3-620) (22 pp.)

Civil Procedure
Party Can’t Vouch for Decedent’s Promise
It’s like a classic tale from your T&E class: Uncle dies and the aunt’s will fails to make good on their promise to leave the farm to their nephew-caretaker; the Supreme Court of Virginia applies the Deadman’s Statute and says with only circumstantial, not independent, corroboration of the kitchen-table promise, the estate goes to a children’s home.
Virginia Home for Boys & Girls v. Phillips (VLW 010-6-015) (10 pp.)

What Waiver Means in Appeals
Distinguishing two closely related concepts of waiver, the high court for the first time expressly approves the lower appellate court’s application of its waiver rule as not subject to Va. Code § 8.01-384(A); the Supreme Court of Virginia affirms the appellate panel’s application of Rule 5A:18 to refuse review of a defendant’s appellate claim that there was insufficient evidence to convict him of abduction with intent to defile;
Murillo-Rodriguez v. Commonwealth (VLW 010-6-008) (31 pp.)

Bogus Church Conspiracy Conviction Vacated
A Roanoke U.S. District Court sets aside a jury verdict finding defendant guilty of conspiracy for his role in a former corporate president’s alleged scheme to conceal income and assets through a bogus church.
U.S. v. Jenkins (VLW 010-3-014) (11 pp.)

‘That’s Not a Knife’
The Court of Appeals says that unlike Crocodile Dundee, it has to look to the law, not appearances, to decide whether the blade defendant says is a clam shucker is a “knife” under Virginia law; the panel reverses the clam shucker’s conviction under Va. Code § 18.2-308(A).
Green v. Commonwealth (VLW 009-7-553(UP))(7 pp.)

911 Tape is Testimonial
Although a 911 tape with an observer’s account of persons stealing property from a stockyard was properly admitted over defendant’s hearsay objection, admission of the tape violated defendant’s Sixth Amendment right to confrontation, and the Court of Appeals reverses defendant’s conviction.
Wilder v. Commonwealth (VLW 010-7-020) (16 pp.)

Exclusionary Rule DNA at Probation Revocation
Reaffirming its holding in iiiAnderson v. Commonwealth,iii 251 Va. 437 (1996), the Supreme Court of Virginia holds that the exclusionary rule is not applicable in probation revocation proceedings absent a showing of good faith on the part of the police; in this case, a police officer’s mistaken belief that a rooming house was not open to the public did not require suppressing evidence that defendant, who was on probation, handed crack cocaine to another man while standing on the second-floor landing of the rooming house.
Logan v. Commonwealth (VLW 010-6-004) (9 pp.)

Inmate Self-Defense Only In Face of Death or Serious Harm
Physical contact is a “fact of everyday prison life,” the 4th Circuit says in this first-impression case, and allowing an inmate to fight back in fear of “excessive force” would mean lawsuits “every time they perceive a pat-down as too rough or a grip on their arm as too tight.”
U.S. v. Gore (VLW 010-2-014) (11 pp.)

Curfew Rejected for Gun Probationer
A 60-year-old child molester, on probation for a firearm offense, can be restricted from possession of pornography, alcohol abuse and associating with children, but he can’t be subjected to a 7 p.m. to 7 a.m. curfew and prevented from iiialliii use of the Internet, says a Big Stone Gap U.S. District Court.
U.S. v. Neeley (VLW 010-3-017) (11 pp.)

Domestic Relations
Bonus Not Included in ‘Income’
Although husband got a $36,538 bonus in 2008, without a track record on the bonuses and with no word of a 2009 bonus as of the November hearing, a Loudoun County Circuit Court says it will not add a bonus to husband’s income; should husband receive a bonus for 2009, wife can move for modification.
Schmidt v. Bjerke (VLW 010-8-012) (7 pp.)

Domestic Relations
Wife Cannot Veto Daycare Provider
Husband allegedly choosing his girlfriend’s daughter as an after-school daycare provider, and then switching to a friend of the daughter, is not a basis for mom to complain about the provider, says a Loudoun County Circuit Court; there is no evidence any daycare provider hired by husband is harming the children, and the court says continued joint legal custody does not necessarily give mom veto power over daycare providers.
Kirkendale v. Kirkendale (VLW 010-8-013) (19 pp.)

Domestic Relations
Health Care Premiums Stop, Contempt Hearing Starts
A husband can’t call wife’s health insurance “spousal support” and stop paying when she remarries, and the Court of Appeals upholds a civil contempt order against the husband.
McCoy v. McCoy (VLW 010-7-001) (7 pp.)

SOX Claimant Stays in Court
In this first-impression case, a would-be whistleblower gets a de novo proceeding of his Sarbanes-Oxley case in federal district court, as the 4th Circuit reverses the district court’s dismissal of the suit in favor of an administrative forum.
Stone v. Instrumentation Laboratory Co. (VLW 010-2-002) (20 pp.)

No Duty to Defend IP Claims
A carrier’s “Web Xtend Liability” policy covers advertising, but does not extend to an IP complaint alleging a manufacturer’s sale of no-bark dog collars infringed on a competitor’s trademarked collars, a Richmond U.S. District Court says.
Premier Pet Products LLC v. Travelers Prop. Cas. Co. (VLW 010-3-019) (20 pp.)

Intellectual Property
No Damaging E-Mail on Damages
In the baby formula litigation between PBM and Mead Johnson, a Richmond U.S. District Court formalizes its earlier decision to exclude an e-mail from a PBM executive saying a multi-million damage award in the case would help the sender “get thru my senior years in a little more style,” but denies motions to exclude testimony from a range of experts.
PBM Products LLC v. Mead Johnson Nutrition Co. (VLW 010-3-026,) (24 pp.)

Search & Seizure
No Shortcut for Affidavit Hearing
The Supreme Court of Virginia says a trial court erred when it went straight to a “Franks” hearing for a challenge to the factual basis of a search warrant affidavit, without requiring a preliminary showing of false statements from defendant; but the high court upholds the warrant
Barnes v. Commonwealth (VLW 010-6-009) (24 pp.)

Search & Seizure
No ‘Buzz Phrase’ for Inventory Search
Following other appellate courts, the 4th Circuit says a police department’s inventory search policy does not have to use the buzz words “closed containers” to authorize search of an impounded vehicle, and the policy’s call for a “complete inventory” allowed search of a backpack, clothing and shopping bags and a suitcase.
U.S. v. Matthews (VLW 010-2-001) (13 pp.)

Federal Instruction Followed Virginia Defamation Law
“Like it or not,” a Richmond U.S. District Court tells a defamation plaintiff, a jury instruction that required her to carry the burden of proving defamation from the bank’s statement that it terminated her for “job abandonment” was correct, and she does not get a new trial.
Wynn v. Wachovia Bank Nat’l Assoc. (VLW 010-3-007) (5 pp.)


Civil Procedure
4th Circuit Jettisons ‘McKinney’ Rule on Removal
Removal from state to federal court is always a hot issue in Virginia, as defendants look for short-cuts to summary judgment; in a new case, the 4th Circuit repudiates the “McKinney” rule in favor of the “last-served” rule, which gives each defendant, after service, 30 days to file a notice of removal under 28 U.S.C. 1446(b).
Barbour v. Int’l Union, UAW (VLW 010-2-041) (47 pp.)

Consumer Protection
Revenge of the BofA Customers
Although Bank of America is offering almost $10 million to settle this class action suit alleging the bank’s delayed disclosure of its use of credit scores for real estate loan applicants violated the Fair Credit Reporting Act, a magistrate judge denies preliminary approval of a consent order that gives the private plaintiffs injunctive relief and their attorneys up to $2.35 million in attorney’s fees.
Domonoske v. Bank of America N.A. (VLW 010-3-045) (45 pp.)

Nursing Home Can’t Compel Arbitration
A Chesapeake nursing home cannot compel arbitration of a comatose patient’s claim that she was sexually molested by a staff member, as a Norfolk Circuit judge reconsiders, but sticks by his denial of the nursing home’s motion to compel arbitration in this suit seeking $28 million in damages.
Gibson v. Medical Facilities of America Inc. (VLW 010-8-024) (18 pp.)

Repair Not ‘Improvement’ for Statute of Repose
A repair project to replace soffit on building terraces was not an “improvement” under Virginia’s statute of repose, and a Fairfax Circuit Court in this first-impression case says the defendant contractor is not protected under Va. Code § 8.01-250.
Travelers Indemnity Co. v. Simpson Unlimited Inc. (VLW 010-8-025) (5 pp.)

Probation Favored Rich Tax Evader, 4CA says
The 4th Circuit vacates a sentence of probation – with international travel privileges – for a jet-setting tax evader who made no restitution until just before sentencing, as the district court focused unduly on defendant’s earning capacity and ignored policy favoring incarceration for tax evasion.
U.S. v. Engle (VLW 010-2-016) (17 pp.)

A Horse Named Dip
A woman who did not seek emergency vet treatment for a downed 20-year-old rescue mare is convicted of animal cruelty, but a dissent in the Court of Appeals says emergency vet care is required only if it could have made a difference.
Sullivan v. Commonwealth (VLW 010-7-024) (13 pp.)

4CA Sorts Out Sentencing Review
In an important post-Booker sentencing decision, the 4th Circuit rounds up cases from Virginia and South Carolina on preserving claims: You don’t need to make a specific objection after the judge rules, but you do have to hit the § 3553 factors in your argument to the sentencing judge.
U.S. v. Lynn (VLW 010-2-033) (23 pp.)

Probation For Child Porn Vacated
A district court did not adequately explain why it gave probation to a child pornography defendant, instead of the low-end guidelines sentence agreed to by the government and defendant, and the 4th Circuit vacates.
U.S. v. Morace (VLW 010-2-046) (18 pp.)

Resentencing for Drug Defendant
The 4th Circuit orders resentencing because a comment by the court suggested the judge viewed the lower end of sentencing guidelines as presumptively correct in a case involving crack cocaine and marijuana.
U.S. v. Herder (VLW-010-2-045) (23 pp.)

Domestic Relations
Wife Needs Recovery Time from ‘Elective’ Surgery
A husband’s complaint that wife should be working full-time after her “elective” bilateral mastectomy is rebuffed by a Fairfax Circuit judge who says wife’s surgery was “‘elective’ only in the sense that she ‘elected’ to stay alive,” and husband must pay $3,000 in monthly support.
Kelley v. Kelley (VLW 010-8-019) ( 5 pp.)

Domestic Relations
No Reduced Support for Lawyer’s Job Change
An IP lawyer who wanted lower spousal support payments after he hung out his own shingle could have stayed at his old firm for less pay, and the Court of Appeals says the lawyer must keep paying $2,200 per month.
Amberly v. Amberly (VLW 010-7-036(UP)) (5 pp.)

Employment Discrimination
Summary Judgment for School System Denied
A 20-year veteran of defendant school system who alleges her demotion from a supervisory position to a job working with anti-social and violent students cost her over $100,000 in wages and benefits can pursue her Title VII retaliation claim, says a Roanoke U.S. District Court.
Session v. Anderson (VLW 010-3-072) (9 pp.)

Employment Discrimination
Condo Lawyer Not Liable
A lawyer for a condo association wins summary judgment in this 42 U.S.C. § 1981 action by an African-American building manager who was terminated because of his criminal record, in this case from Alexandria federal court.
Ford v. Zalco Realty Inc. (VLW 010-3-048) (13 pp.)

Policy Coverage – Fire – Carpenter’s Van – ‘Use’
A carpenter was “using” his box van when it was parked near the home where he was doing trim work, and a Newport News U.S. District Court says he has coverage under his business auto policy for damage to the home from a fire that started in the van.
State Farm Mut. Auto. Ins. Co. v. Robins (VLW 010-3-046) (19 pp.)

Pre-Notice Mediation Forfeits CGL Coverage
A Richmond U.S. District Court grants says a CGL carrier has no duty to defend a developer in a suit alleging a development damaged a neighbor’s property; the carrier was prejudiced by the developer’s participation in negotiations and mediation prior to notice to the carrier.
Nationwide Mut. Ins. Co. v. Boyd Corp. (VLW 010-3-037) (17 pp.)

The Free Dinner Will Have to Do
A rocking chair may have gotten out of line at a Cracker Barrel restaurant, but a Lynchburg U.S. District Court says a man cannot sue the restaurant for negligence after he fell and broke his hip when he caught the cuff of his dress pants on a chair near the checkerboard table.
Parker v. CBOCS East Inc. (VLW 010-3-035) (10 pp.)

Virginia Court Can’t Dissolve Foreign LP
In this first-impression case, a Norfolk Circuit Court says it has no jurisdiction to dissolve a Georgia limited partnership, even though none of the LP’s assets – a $20 million brokerage account – or its family-feud partners have any connection to Georgia and defendants waited until the eve of trial to seek dismissal.
Valone v. Valone (VLW 010-8-026) (10 pp.)

Products Liability
Chinese Drywall Plaintiffs Must Produce Contracts
A Norfolk Circuit Court grants defendants’ motion craving oyer and says homeowners with breach of contract and warranty claims against 65 builder-developers for defective Chinese drywall must produce contract documents.
In re: Chinese Drywall Cases (VLW 010-8-039) (5 pp.)

Real Estate
Homeowner Has Claim for ‘Face Time’ with Lender
A Richmond U.S. District Court says a homeowner fighting foreclosure can pursue her claim that she was entitled to a face-to-face meeting before the lender scheduled a foreclosure sale, even though defendant lender claims branch offices in proximity to the homeowner were loan originating offices, not loan servicing offices.
Kersey v. PHH Mortgage Corp. (VLW 010-3-036) (29 pp.)

Search & Seizure
Digital Files Like Paper Document Files
Saying a digital search of defendant’s home computer is no different than going through a filing cabinet full of papers, the 4th Circuit OKs charging a defendant with possession of child porn, in “plain view” when they searched for evidence of the Virginia crime of “computer harassment.”
U.S. v. Williams (VLW 010-2-022) (22 pp.)

Traffic Offenses
Defendant Offered to Take Breath Test
The en banc Court of Appeals splits 6-5 to uphold a defendant’s DUI conviction because he volunteered to take a breath test before he was informed of the implied consent statute.
Roseborough v. Commonwealth (VLW 010-7-055) (36 pp.)


Disqualified Lawyers Not ‘Vexatious’
A Richmond U.S. District Court denies a fee award against lawyers who used poor judgment in representing multiple defendants in a case involving the death of a mentally disabled surgical patient at MCV Hospital.
Sanford v. Commonwealth (VLW 010-3-096) (27 pp.)

Lawyers Collect Fees for Settled Case
A law firm that defended a client in a construction dispute, winning summary judgment against the plaintiff and then settling the client’s counterclaim on essentially the same terms suggested by the law firm several months earlier, wins its suit for the balance of its legal fees owed by the client, in this suit from Henrico County Circuit Court.
Christian & Barton LLP v. Allens Steel Products Inc. (VLW 010-8-059) (3 pp.)

Civil Procedure
Nonsuit Tolling Provision Saves Informed-Consent Claim
A med-mal plaintiff can include in her re-filed suit, her time-barred claims of failure to perform an alternative procedure and lack of informed consent, as the new claims arise out of the same transaction or occurrence and are saved by the six-month tolling provision, says an Alexandria U.S. District Court.
Dunston v. Huang (VLW 010-3-116) (12 pp.)

Airport Can’t Ban Newspaper Racks
A public airport’s total ban on newspaper racks inside its terminals violates the First Amendment, and the 4th Circuit upholds summary judgment for plaintiff newspaper publishers.
The News & Observer Pub. Co. v. Raleigh-Durham Airport Authority (VLW 010-2-072) (35 pp.)

Consumer Protection
Case Shows ‘Deep Division’ on TILA
An Alexandria U.S. District Court dismisses a borrower’s TILA suit seeking rescission for technical violations in the rescission-notice form and payment schedule.
Larrabee v. Bank of America N.A. (VLW 010-3-077) (14 pp.)

Sub Loses in ‘Pay When Paid’ Case
Citing a recent Norfolk Circuit Court case, the 4th Circuit says a concrete subcontractor on the Granby Tower project was not entitled to payment until the owner paid the general contractor.
Universal Concrete Products v. Turner Construction (VLW 010-2-050) (9 pp.)

Default Termination Was OK
A surety wins summary judgment in a subcontractor’s suit for nearly a half-million more dollars for its work on a National Guard training facility, in this case from Alexandria U.S. District Court.
U.S. for Aarow Equipment & Services v. Travelers Cas. & Surety Co. (VLW 010-3-122) (16 pp.)

Arbitration for Fund Manager’s Claim
A Fairfax Circuit Court stays a private equity fund manager’s breach of contract suit on compensation issues pending arbitration, despite the fund manager’s claim that two operating agreements – without arbitration provisions — superseded his original employment letter agreement.
Domolky v. GKM Newport Generation Capital Services LLC (VLW 010-8-056) (8 pp.)

Securities Dealers’ Arbitration Award Struck
In a “rare” move, the 4th Circuit has upheld vacatur of an arbitration award of compensatory damages to three Richmond-area Raymond James financial advisors who alleged wrongful termination by the financial services firm.
Raymond James Financial Servs. v. Bishop (VLW 010-2-053) (22 pp.)

Passenger Check OK, 4CA Says
A drug-sniffing officer did not violate defendant’s Fourth Amendment rights when, after smelling and possibly observing marijuana when he stopped a Mercury sedan with multiple windshield cracks, the officer asked defendant passenger to step out of the car; the 4th Circuit upholds defendant’s crack cocaine conviction.
U.S. v. Rooks (VLW 010-2-058) (15 pp.)

Informant Tip Not Particularized
Police showed that a confidential informant was reliable but his tip on type of car, race & gender of occupants and time to show up for a suspected drug deal was not enough and the drugs should have been suppressed.
Byrd v. Commonwealth (VLW 010-7-084) (26 pp.)

Post-Booker ‘State of Flux’
A sentencing judge’s comments about the “character and conduct” of a drug defendant were not enough to explain its sentence, and a 4th Circuit panel splits over what, during this post-Booker “state of flux,” a judge has to say to justify a sentence.
U.S. v. Thompson (VLW 010-2-054) (9 pp.)

Drug Court Defendant Has ‘Liberty’ Interest
In a first-impression case, the Supreme Court of Virginia says a defendant terminated from the drug court program cannot be sentenced to incarceration under his plea agreement because he was not present at the hearing.
Harris v. Commonwealth (VLW 010-6-023) (8 pp.)

Jail Trip Not ‘Voluntary’
A defendant may not have “voluntarily” gone to jail, but he had plenty of time to take the cocaine baggie out of his buttocks before he was booked, and he “voluntarily” brought the cocaine into jail in violation of Va. Code § 53.1-203(5), the Court of Appeals says.
Herron v. Commonwealth (VLW 010-7-061) (12 pp.)

Expert Offers ‘Fact’ Testimony
Although a trial judge could have done a better job of drawing a line between a detective’s fact testimony and expert opinion in this drug distribution case, there was no plain error and the 4th Circuit upholds defendant’s drug distribution conviction.
U.S. v. Baptiste (VLW 010-2-061) (22 pp.)

Drug ‘Enforcer’ Conviction Reversed
A Court of Appeals panel splits over whether prosecutors proved that a man standing outside a car was the “muscle” for a group with 998 ecstasy tablets to distribute, and his conviction is reversed.
Merritt v. Commonwealth (VLW 010-7-082) (19 pp.)

Domestic Relations
Debtor Husband Shares in Marital Home
Although a bankrupt husband sold his tenant-in-common interest in the marital home to wife, he still gets a share of the equity in the home, says a Norfolk Circuit Court.
Peck v. Brenner (VLW 010-8-064) (5 pp.)

Domestic Relations
Early Retiree Can’t Terminate Support
Although husband reduced his income by 55 percent when he retired from the railroad at age 60, he still was able to purchase a house, car and furniture after his retirement and he can afford to continue the spousal support his wife needs, the Court of Appeals says.
Johnson v. Johnson (VLW 010-7-110(UP)) (5 pp.)

Domestic Relations
‘Detriment to Child’ Finding is Necessary
The Court of Appeals says a trial court is constitutionally required to consider whether a child’s continued relationship with a biological parent is detrimental to the child, and, because the trial court here failed to make that finding prior to allowing adoption over the objection of a nonconsenting parent, its application of Va. Code §§ 63.2-1203 and -1205 violated the mother’s 14th Amendment right to due process.
Todd v. Copeland (VLW 010-7-083) (21 pp.)

Punitives Ordered for Former Employee
A former employee, shareholder and corporate officer for a car dealership violated a noncompete by forming a competing business while still employed by the dealership, and he must pay damages – including punitives – for his breach of fiduciary duty and for conversion, a Fairfax Circuit Court says.
Redden v. Liptau (VLW 010-8-050) (15 pp.)

Farmer No Fan of Sports Field
A stormwater retention basin installed during enlargement of a high school sports complex allegedly led to discharge of pollutants onto a woman’s 16-acre farm in King William County, but she can’t sue the school board under the Clean Water Act, a Richmond U.S. District Court says.
Waltman v. King William County School Board (VLW 010-3-121) (10 pp.)

Lawyers’ Expert Opinions Excluded
A Richmond U.S. District Court excludes expert opinions from two well-known Virginia divorce lawyers in a carrier’s dec action to deny malpractice coverage to a lawyer sued by a divorce client.
Minnesota Lawyers Mutual Ins. Co. v. Batzli (VLW 010-3-078) (7 pp.)

No Inverse Condemnation From Flooding
In a case of first impression, a Fairfax Circuit Court says a one-time incident of flooding does not support a cause of action for inverse condemnation against VDOT and Fairfax County.
Livingston v. County of Fairfax (VLW 010-8-051) (10 pp.)

Does Maritime Claim Compete With Comp Claim?
A Norfolk U.S. District Court denies summary judgment to a subcontractor on a carrier repair project, who was sued by another sub’s employee for an on-the-job injury; the court approves an interlocutory appeal, saying the operation of workers’ comp law on plaintiff’s federal maritime claim should be considered by the 4th Circuit sooner, rather than later.
Moore v. Capitol Finishes Inc. (VLW 010-3-125) (27 pp.)

Search & Seizure
Like Mother, Like Daughter
An alleged mother-daughter oxycodone distribution team cannot suppress evidence seized from the daughter’s home or from the mom’s person when she was frisked, in this case from Big Stone Gap U.S. District Court.
U.S. v. Bell (VLW 010-3-111) (13 pp.)


Choice of Law at Issue
An admiralty case washes ashore in Goochland County, and the circuit court sustains a demurrer to plaintiff’s claim on a theory of piercing the corporate veil, overrules defendant’s special plea of the Jones Act, and says it would have to hold a separate hearing to determine whether to apply the law of Grenada, where the alleged incident occurred.
Netherland v. Staples (VLW 010-8-066) (4 pp.)

Attorneys’ Fees
Appellate Court Applies ‘Prevailing Party’ Standard
A waterman wins attorney’s fees in his challenge to crab dredging regulations even though his appeal is moot because of the agency’s own rule change; a Court of Appeals panel majority looks to federal cases to correct the trial court’s denial of attorney’s fees.
Hollowell v. Va. Marine Resources Comm’n (VLW 010-7-142) (24 pp.)

Attorney’s Fees
ALJ Should Find ‘Prevailing Rate’
An ALJ may not have liked the Altman Weil survey as a basis for awarding attorney’s fees in a black lung case, but the lawyer could have used past fees or affidavits from other lawyers in comparable administrative matters, and the 4th Circuit vacates and remands the fee award.
Westmoreland Coal Co. v. Cox (VLW 010-2-086) (25 pp.)

Consumer Protection
Court Rejects Settlement of ‘Slow Notice’ Suit against Bank
Bank of America says it just wants to buy peace from future Fair Credit lawsuits filed by consumer advocates, but a Harrisonburg U.S. District Court says a nearly $10M proposed settlement is “fundamentally flawed” because it purports to declare rights of non-class members.
Domonoske v. Bank of America NA (VLW 010-3-200) (8 pp.)

Consumer Protection
Phone Calls to Debtor Not ‘Harassment’
A collection agency’s alleged 15 to 17 phone calls to a woman with a Capital One credit card, with calls twice in a single day and twice within a few hours, did not constitute a pattern of harassment, an Alexandria U.S. District Court says.
Katz v. Capital One (VLW 010-3-128) (11 pp.)

Consumer Protection
Lawyer Can Investigate Odometer Claim
A Norfolk U.S. District Court denies a protective order to prevent a plaintiff’s lawyer from contacting a car dealer’s other customers who bought ‘demonstrator’ vehicles from the dealer.
Macrae v. Greenbrier Pontiac Oldsmobile-GMC Trucks Kia Inc. (VLW 010-3-178) (12 pp.)

Contractor Wins on Premium Refund Claim
A construction company wins its fraudulent inducement and false advertising claims against a company it says misrepresented its policy for allowing premium refunds on a surety bond plaintiff company needed to secure a contract to construct a Texas border fence, in this Alexandria federal case.
Persaud Companies Inc. v. The IBCS Group Inc. (VLW 010-3-181) (26 pp.)

Creditor’s Rights
Furnishings Not ‘Connected’ To Hotel
Furnishings for a bankrupt hotel are not “improvements” that can be claimed under a mechanic’s lien, and a Harrisonburg U.S. District Court reverses a bankruptcy court order allowing the claim in a supplier’s mechanic’s lien.
Summit Community Bank v. Blue Ridge Shadows Hotel (VLW 010-3-165) (5 pp.)

Creditor’s Rights
Debtor Has Claim Against ‘Nonsubordination’ Policy
A couple who wanted to refinance their primary mortgage can sue their home equity-line lender under the Bank Holding Company Act for its alleged blanket policy of refusing to subordinate its loan to a new loan from another lender; an Alexandria U.S. District Court says whether this is an “unusual banking practice” is an open question in the 4th Circuit.
McCune v. National City Bank (VLW 010-3-148) (14 pp.)

Sentence Vacated for Faulty Appeal ‘Consult’
A drug defendant’s sentence is vacated by an Abingdon U.S. District Court because the defendant’s trial counsel didn’t discuss the pros and cons of a straight-up plea or an appeal of a sentence enhancement, but only predicted an appeal would fail.
U.S. v. Iberson (VLW 010-3-206) (18 pp.)

Multiple ATM Attempts Are Single Larceny
A defendant who, over a 24-second period, made four different attempts to withdraw money from an ATM on a forged check, was guilty of only a single count of larceny by false pretenses, and the Court of Appeals reverses his conviction on three counts.
Akpan v. Commonwealth (010-7-078(UP)) (4 pp.)

Gun Not ‘On or About His Person’
Although defendant admitted he owned the gun found in a locked glove box, that he bought it in North Carolina and that he would “take” the gun charge, his conviction under Va. Code § 18.2-308.4(B) is reversed because the weapon was not “on or about his person” at the time he possessed drugs; the Court of Appeals reverses his conviction and remands for trial on the lesser-included offense in Code § 18.2-308.4(A).
Hunter v. Commonwealth (VLW 010-7-118) (14 pp.)

Addicted Dentist Gets Probation & Community Service
Although federal sentencing guidelines call for 18 to 24 months in prison for a 58-year-old opiate-addicted dentist who pleaded guilty to unlawful distribution of Zydone, but an Abingdon U.S. District Court sentences him to three years’ probation, a $10,000 fine and restitution for the drugs he illegally prescribed and 400 hours of community service.
U.S. v. Francisco (VLW 010-3-188) (7 pp.)

Juror Strike of ‘Teachers’ Not Strike of ‘Women’
A money laundering defendant lost his Batson challenge to peremptory strikes that excused from the jury several women because they were teachers; the 4th Circuit rejects the defendant’s logic that, since most teachers in the U.S. are women, this proffered reason was merely pretext for gender discrimination.
U.S. v. Green (VLW 010-2-085) (35 pp.)

Domestic Relations
No Presumption for Marital Debt
Virginia’s equitable distribution statute does not create a presumption that debt incurred by an individual during a marriage is marital debt, the Supreme Court of Virginia holds in reversing the trial court and the Virginia Court of Appeals.
Gilliam v. McGrady (VLW 010-6-052) (9 pp.)

Domestic Relations
Retired Husband Gets Limited Support
Although husband claimed he had retired at age 55 and he requested $6,000 in monthly spousal support, the trial court did not err in awarding husband monthly spousal support of $2,000 for 20 months, the Court of Appeals says.
Leake v. Taylor (VLW 010–7-120(UP)) (28 pp.)

Terminated Prof Denied Injunction
A college professor whose contract was not renewed, but who nevertheless was pursuing tenure, cannot get a preliminary injunction, says a Big Stone Gap U.S. District.
Holbrook v. The University of Virginia (VLW 010-3-173) (8 pp.)

Employment Discrimination
Store Has Potential Supervisor Liability
Looking to Title VII cases, the 4th Circuit says a retail store manager was a female assistant manager’s supervisor, not her coworker; the appellate court reverses summary judgment for employer on the woman’s sexual harassment claim based on a South Carolina human rights statute.
Whitten v. Fred’s Inc. (VLW 010-2-082) (30 pp.)

Employment Discrimination
Truck Driver Can Try Claim
Saying a jury could find that gender discrimination “was afoot,” the 4th Circuit reverses summary judgment for a trucking company sued under Title VII by a female truck driver who claims discrimination because the company required a physical ability test before she returned to work after on-the-job foot injuries, and fired her when she failed the PAT.
Merritt v. Old Dominion Freight (VLW 010-2-088) (24 pp.)

Deposition Supports Duty to Defend
An insurer that wrote an umbrella policy has a duty to defend its insured in a tort action for assault and battery because the facts developed in depositions could fit within a policy exception allowing coverage for intentional injury caused by an insured “trying to protect person or property,” the Supreme Court of Virginia holds.
Copp v. Nationwide Mutual Insurance Co. (VLW 010-6-041) (13 pp.)

Town Can’t Condemn Train Depot
A train depot building, privately owned by a farm but situated on real property owned by a railroad company, is personal property that the farm may move, and a Wythe County Circuit Court sustains the depot owner’s demurrer to the town’s petition to condemn the property for preservation and restoration of the depot.
Town of Rural Retreat v. Huckleberry Farms LLC (VLW 010-8-074) (4 pp.)

Search & Seizure
Wallet Seizure Does Not Scuttle Car Search
An officer’s illegal seizure of defendant’s wallet during a post-traffic stop pat-down did not illegally extend the duration of the stop, the Supreme Court of Virginia says, as police were trying to determine defendant’s identity.
Jones v. Commonwealth (VLW 010-6-058) (12 pp.)

‘Insulting Words’ Claim Does Not Require ‘Confrontation’
A former employee suspected of posting managers’ salaries and social security numbers during a labor strike can sue her employer under Virginia’s “insulting words” statute on an allegation that she was falsely accused of criminal conduct, says an Abingdon U.S. District Court.
Trail v. General Dynamics Armament & Technical Products Inc. (VLW 010-3-140) (11 pp.)


Attorney’s Fees
Court Approves Fee Lower than Laffey Matrix Rate
In this overtime-pay case, an Alexandria U.S. District Court approves attorney’s fees up to $290 per hour, a rate that’s actually lower than the Laffey Matrix rate specified in the client’s contract.
Hanzlik v. Birach (VLW 010-3-228) (12 pp.)

Upside-Down Debtor Can Avoid Lien
A debtor who was upside-down on her mortgage and didn’t take a homestead exemption in her real estate nevertheless can avoid a judicial lien in favor of claimant credit union; a Harrisonburg U.S. District Court reverses the bankruptcy court in this case of first impression.
Botkin v. DuPont Community Credit Union (VLW 010-3-262) (7 pp.)

Civil Procedure
Hospital Can Withdraw Rule 68 Offer
An Abingdon U.S. District Court says defendant hospital may revoke its Rule 68 offer of judgment of $150,000 after it learned plaintiff patient, contrary to his discovery responses, had been receiving narcotic pain medication from multiple doctors.
Hawkins v. Johnston Memorial Hospital Inc. (VLW 010-3-238) (7 pp.)

Civil Procedure
Foreign Corporation Deposition Order Vacated
In a trade secret and conspiracy case, an Alexandria U.S. District Court says a foreign corporation’s agents may not need to come to Virginia for depositions, and it’s “merely incidental” that service of process will be easier in Virginia than in Dubai.
In re: Outside Wall Tire Litigation (VLW 010-3-239) (15 pp.)

Consumer Protection
Court Buys TILA Claim
A homeowner facing foreclosure has alleged a TILA violation arising from the “clear contradiction” between a cancellation notice statement that she can get her money back, and a fee disclosure statement that her application fee is nonrefundable, but the Richmond U.S. District Court dismisses two other “hypertechnical” TILA claims.
Larrabee v. Bank of America N.A. (VLW 010-3-270) (17 pp.)

Consumer Protection
Bailment Gone Bad in Car Repair
A plaintiff wins summary judgment against Reliable Transmissions, on her claim that Reliable promised to repair her 1999 Olds Delta 88’s transmission for $750, but then Reliable towed the car to the shop, broke it down and falsified a credit application in plaintiff’s name.
Reynolds v. Reliable Transmissions Inc. (VLW 010-3-170) (15 pp.)

Arbitration Ordered for Patient Fall Claim
In a first-impression case involving a retirement home arbitration clause, a Richmond U.S. District Court compels arbitration even though the clause specifies arbitration by the AAA, which says it will only handle post-dispute arbitration cases involving individual patients.
Fellerman v. American Retirement Corp. (VLW 010-3-234) (14 pp.)

Forum Selection in Payment Bond v. Subcontract
Where payment bonds on an airport project do not reference the forum selection clause of the subcontract, but contain a broader forum selection clause than the subcontract, an Alexandria U.S. District Court says the surety must face suit in the forum named in the bond, in this case of first impression.
Attard Industries Inc. v. U.S. Fire Ins. Co. (VLW 010-3-268) (6 pp.)

No Waiver of Mediation Right
A Norfolk U.S. District Court is sympathetic to a tattoo art company’s claim that it has been “strung along” by defendant licensee, but the court says defendants did not intentionally waive mediation, and the court must dismiss plaintiff’s license and copyright complaint because the tattoo company didn’t try mediation first.
Tattoo Art Inc. v. TAT Int’l LLC (VLW 010-3-255) (22 pp.)

Schoolkids Can Keep Machetes in Cars
A machete with a 17-inch curved, metal blade qualifies as a “knife” under Va. Code § 18.2-308.1(B)(vi), but it was found inside defendant’s car, and the Court of Appeals reverses defendant’s conviction for possession of a machete on school grounds.
McNamara v. Commonwealth (VLW 010-7-194) (5 pp.)

Query About Lawyer Not Request for Counsel
A defendant’s query whether he could “have my lawyer present – for now?” was not an unequivocal request for counsel, and the Court of Appeals reverses the trial court’s suppression order.
Commonwealth v. Epps (VLW 010-7-136(UP)), (7 pp.)

Regardless of Standard of Proof, Record Stands
Although the standard of proof is a little murky, a man’s trouble finding work after an arrest for attempted malicious wounding of an officer is not a “manifest injustice” that requires expungement of his arrest record, a Fairfax Circuit Court says.
Gomez v. Commonwealth (VLW 010-8-090) (4 pp.)

No Gun After Misdemeanor Domestic Violence Conviction
A Richmond U.S. District Court says a statute that prohibits weapon possession by a man convicted of misdemeanor domestic violence is not an unconstitutional infringement on his Second Amendment rights, although an unpublished appellate opinion lends some support to the man’s hard-line iiiHelleriii position.
U.S. v. Walker (VLW 010-3-217) (13 pp.)

Domestic Relations
Braces Recommended, but not ‘Necessary’
Although an orthodontist recommended treatment of both children, a trial judge decided treatment was “necessary” only for the 15-year-old, and not for the 12-year-old; the Court of Appeals, with a dissent, affirms the order requiring father to help pay for only one child’s treatment.
Barrett v. Kantz (VLW 010-7-145(UP)) (7 pp.)

Domestic Relations
Non-Parent Custody Award Remanded
A dad who kept up weekend and weekday visits and had a “good relationship” with his son did not voluntarily relinquish his parental rights, and the Court of Appeals remands an award of custody to a non-parent.
Barbour v. Graves (VLW 010-7-193(UP)) (8 pp.)

Domestic Relations
Premarital Agreement ‘Til Death Do Us Part’
A couple had a premarital agreement but they intended that it cover real estate in Virginia and Florida only in case of death, not divorce, and the Court of Appeals reverses an equitable distribution of the real estate.
Schuman v. Schuman (VLW 010-7-144(UP)) (31 pp.)

Job Applicant Not Covered by FLSA
A job applicant can’t sue under the FLSA’s anti-retaliation clause on a claim that a government contractor withdrew a job offer after learning she had filed an overtime-pay claim against the last contractor who employed her, in this Alexandria U.S. District Court case.
Dellinger v. Science Applications Int’l Corp. (VLW 010-3-172) (14 pp.)

CEO’s ‘Bonus’ Checks Not Proven
An association CEO says her “bonus” checks were authorized, but an Alexandria U.S. District Court says it’s not clear and the board president’s comment that the CEO was terminated for improperly diverting funds was privileged; the court grants summary judgment to employer in the CEO’s wrongful termination and defamation suit.
Greene v. National Head Start Ass’n Inc. (VLW 010-3-245) (22 pp.)

Medical Malpractice
‘Voluntary’ Answer Forfeits Expert Certification
A med-mal defendant who voluntarily files an answer prior to service of process forfeits the right to demand an expert witness certification from plaintiff under Va. Code § 8.01-20.1, says a Fairfax Circuit Court.
Lents v. Vetter (VLW 010-8-089) (5 pp.)

Medical Malpractice
No Immunity for NICU Nurses
Intensive-care nurses for a premature infant do not have immunity from a claim for improper placement of a catheter central line, even though a neonatology fellow who approved the placement may be immune, says a Charlottesville Circuit Court.
Gaines v. Health Services Foundation (VLW 010-8-084) (7 pp.)

City & Officer Have Immunity
A police officer used discretion when he sped to a 911 call about a man high on crack and armed with a knife; the officer and the City of Roanoke are immune but stay in this auto-accident suit so plaintiff can pursue UM coverage, says a Roanoke City Circuit Court.
Johnson v. Puckett (VLW 010-8-081) (4 pp.)

Iqbal Applies in Tractor-Trailer Case
An Abingdon U.S. District Court says Iqbal applies to state-law claims in federal complaints, and dismisses claims for reckless acts, negligent hiring and supervision and punitive damages, in this wrongful death action filed by administrators for a father and son killed when their car was struck was struck by a tractor-trailer as the car sat on the I-81 shoulder.
Stanley, Adm’r v. Star Transport Inc. (VLW 010-3-267) (4 pp.)

Real Estate
Lease Guaranty from ‘Junior’ Is Void
A lessor did not check out defendant broadcast company’s FCC filings or its website to confirm whether the company founder’s son, “Junior,” could sign for “Senior’s” company to guarantee a lease for Junior’s own start-up, and an Alexandria U.S. District Court says Junior’s guaranty is void; Senior was “crusty and cantankerous,” but more credible than Junior, the court says.
TYC Development Co. LLC v. Birach Broadcasting Corp. (VLW 010-3-230) (19 pp.)

Traffic Offenses
Manslaughter Conviction Upheld for Drunken Hummer Driver
The Court of Appeals affirms an aggravated involuntary manslaughter conviction of a woman who was falling-down drunk and who drove her Hummer H3 directly into a paving crew, fatally injuring a man pinned against a backhoe blade.
Nininger v. Commonwealth (VLW 010-7-171(UP)) (11 pp.)

Wills & Trusts
Widow Loses Challenge to ‘Will from Hell’
A widow’s two lawsuits challenging what she called the “will from hell” triggered the will’s no-contest provision, and a Fairfax Circuit Court says her stepsons have to give her only $100 under the will.
In the Matter of the Estate of Dorsey W. Rohrbaugh (VLW 010-8-088) (12 pp.)


Civil Procedure
Preliminary Injunction Denied.
Citing the Real Truth About Obama, a Charlottesville U.S. District Court denies a preliminary injunction in a patent infringement case involving surgical instruments.
MicroAire Surgical Instruments LLC v. Arthrex Inc. (VLW 010-3-300) (55 pp.)

Civil Procedure
Corporate Counsel Can ‘Claw Back’ Document
A drug company that produced “millions” of document in this complex patent case can “claw back” four pages of a document created by its in-house IP counsel; letting the document slip by did not waive the attorney-client privilege, an Abingdon U.S. District Court says.
King Pharmaceuticals Inc. v. Purdue Pharma LP (VLW 010-3-287) (6 pp.)

Civil Procedure
Prempro Products Liability Suit Progresses
A breast cancer survivor’s fraud and products liability suit against the manufacturer of Prempro can go forward, says an Alexandria U.S. District Court; the Virginia statute of limitations is tolled because the plaintiff was a putative member of an earlier federal class action.
Torkie-Tork v. Wyeth (VLW 010-3-317) (13 pp.)

Civil Procedure
Personal Jurisdiction is ‘Claim Specific’
When two companies clash over selling bomb-detection devices to Middle Eastern hotels, the plaintiff Virginia company can sue defendant Singapore company for breach of a contract partially executed in Virginia, but its tortious interference claim is dismissed because it was based on IP trash talk in Singapore; in this first-impression case, an Alexandria U.S. District Court says jurisdiction is claim-specific.
Gatekeeper Inc. v. Stratech Systems Ltd (VLW 010-3-308) (9 pp.)

Court Takes Another Look at Fallout from 2008 Jay Case
In a nuanced treatment of “flavors” of jurisdiction by a Court of Appeals panel, the majority says a defendant who failed to file a transcript waived his claim and his conviction is affirmed; but a dissenting judge says not filing the transcript requires dismissal of the appeal, not affirmance of the conviction.
Smith v. Commonwealth (VLW 010-7-229) (30 pp.)

No Gun Conviction After ‘Domestic Violence Misdemeanor’
The 4th Circuit reverses a weapons conviction because the government did not prove defendant’s prior Virginia conviction for assault and battery on a family or household member was a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g).
U.S. v. White (VLW 010-2-106) (21 pp.)

Domestic Relations
Debtor Dad is Virginia ‘Resident,’ Faces Jail Term
A dad who had a long-term consulting contract in Virginia but said his residence was in New York, where he and Wife No. 4 were divorcing, “resided” in Virginia for venue under 18 U.S.C § 228, and the 4th Circuit upholds a two-year jail term for his failure to pay over $200,000 in back support.
U.S. v. Novak (VLW 010-2-115) (13 pp.)

Domestic Relations
Wife’s Damage & Attorney’s Fee Awards Reversed
A wife’s failure to consummate a 1031 like-kind exchange cannot be blamed on husband’s demand for a partial escrow of the proceeds from sale of their real estate, and the Court of Appeals reverses damage and attorney’s fee awards for wife.
Cook v. Cross (VLW 010-7-221(UP)) (8 pp.)

Employment Discrimination
Doctor Can Try Her ‘Hostile Environment’ Case
The 4th Circuit says a “shock jock” owner of a medical clinic must face trial on a female physician’s claim that she endured a hostile environment from the employer’s “series of graphic remarks of a highly personal nature.”
EEOC v. Fairbrooks Medical Clinic P.A. (VLW 010-2-120) (18 pp.)

Employment Discrimination
Suit Charges No Response to Harassment Claims
A Charlottesville U.S. District Court refuses to dismiss a Title VII sexual harassment complaint filed by three female bank employees who allege bank supervisors failed to respond to their complaints about a female branch manager who repeatedly made comments of a sexual nature, asked for hugs and kisses and physically assaulted one plaintiff.
Colie v. Carter Bank & Trust Inc. (VLW 010-3-280) (16 pp.)

Son Not in Dad’s ‘Household’
Like a rolling stone, Aaron Argenbright gathered no auto liability coverage, due to the “nomadic and transitory nature of his living arrangements” with friends, girlfriends and parents; a Harrisonburg U.S. District Court says he has no UIM coverage as a “resident” of his dad’s household.
The Automobile Ins. Co. of Hartford v. Argenbright (VLW 010-3-322) (8 pp.)

Court Rejects Bid for ‘More Favorable Playing Field’
In a contest among carriers over CGL coverage for the 1,200 asbestos lawsuits Alfa Laval faces, the company’s “strategic inclusion” of contract and declaratory relief claims does not get a Richmond U.S. District Court to hear the case; the court stays the action pending resolution of a New York case.
Alfa Laval Inc. v. Travelers Cas. & Surety Co. (VLW 010-3-295) (10 pp.)

Medical Malpractice
Prof Can Testify in Paralysis Case
Even though a Wisconsin anesthesiology professor has not performed the precise epidural steroid injection at issue here, he can testify on informed consent and use of injections to treat pain from shingles, an Alexandria U.S. District Court says.
Dunston v. Huang (VLW 010-3-276) (17 pp.)

‘Open & Obvious’
A bright-orange concrete wheel block in a Hardee’s parking lot was an “open and obvious” hazard and a Charlottesville U.S. District Court grants summary judgment to Hardee’s and dismisses a woman’s personal injury suit.
Kitts v. Boddie-Noell Enterprises Inc. (VLW 010-3-288) (8 pp.)

Case Stays in Federal Court, Despite Consent to Remand
A trip & fall plaintiff can amend his complaint to reduce his ad damnum from $3 million to $74,500, but a Norfolk U.S. District Court says the case will not be remanded to state court, even though the parties have filed a consent order to remand.
Hatcher v. Lowe’s Home Centers Inc. (VLW 010-3-321) (9 pp.)

Search & Seizure
ISP Not a Government Agent
An Internet Service Provider that reports seeing illegal content in a subscriber’s files, under a federal statute that mandates reporting to the National Center for Missing & Exploited Children, is not a government agent and defendant cannot suppress the illegal content, the 4th Circuit says.
U.S. v. Richardson (VLW 010-2-113) (22 pp.)

Wills & Trusts
Estate, Not Widow, Owes Money
A widow who held property T by E with a right of survivorship does not have to pay a note on the property executed by husband alone; the Supreme Court of Virginia says the trial court erred in holding the widow, not the husband’s estate, liable on the mortgage debt.
Dolby v. Dolby (VLW 010-6-065) (7 pp.)

Wills & Trusts
‘I Want the Money Now’ Not Good Enough
One of two charitable beneficiaries of a multi-million dollar unitrust would rather have its money today than wait, but the Virginia Supreme Court says adoption of the Uniform Trust Code in 2005 does not allow division of this testamentary charitable remainder unitrust when the other beneficiary objects.
Ladysmith Rescue Squad Inc. v. Newlin, Executor (VLW 010-6-072) (12 pp.)


Environmental Group Seeks Standing
An environmental group challenging the Virginia State Water Control Board’s issuance of permit need not show that at least one of its members participated in the public comment process in order to qualify for representational standing, and the Court of Appeals reverses the contrary circuit court decision.
Chesapeake Bay Foundation Inc. v. Commonwealth of Va., ex rel. SWCB (VLW 010-7-267) (9 pp.)

Civil Procedure
‘Lesser Limitation’ Period Rejected
A Charlottesville Circuit Court rejects a three-month “lesser limitations” period on a Virginia Consumer Protection Act challenge to a liquidated damages clause, and instead applies the VCPA’s two-year limit.
Kearney v. Robinson Land Trust (VLW 010-8-113) (9 pp)

No Arbitration After Default Judgment
A flooring company that allowed default judgment and did not respond to customers’ fraud suit seeking a refund for new flooring that allegedly buckled when dogs urinated on it, has waived its right to invoke the contract’s arbitration clause, a Fairfax Circuit Court says.
Carrico v. Empire Today LLC (VLW 010-8-117) (5 pp.)

E-Mail Partially Knocks Out Arbitration Clause
E-mail correspondence between defendant skilled nursing facilities and a staffing company knocked out arbitration of their non-solicitation dispute, but they still must arbitrate their payment dispute, says a Lynchburg U.S. District Court.
Protherapy Associates LLC v. AFS of Bastian Inc. (VLW 010-3-357) (5 pp.)

Subcontractor Employee Convicted for Timesheets
A Northrup Grumman employee who falsified timesheets submitted through a government contractor is guilty of making false statements to the government, the 4th Circuit says.
U.S. v. Jackson (VLW 010-2-125) (11 pp.)

Instruction Was ‘Impermissible Comment on Evidence’
Lifting a jury instruction from language in another case can be a risky business, the Court of Appeals says in this case reversing a conviction for construction fraud.
Keefer v. Commonwealth (VLW 010-7-260) (5 pp.)

New Trial After No Informer Instruction
“If there was ever a time to ask to have the jury instructed that paid informants raise special issues about credibility, this was the case,” the 4th Circuit says in this first-impression case, as it vacates a cocaine conviction.
U.S. v. Luck (VLW 010-2-131) (15 pp.)

Domestic Relations
Gifts to Wife, Gifts to Couple
Although wife’s father provided $1.8 million to a couple, including support for husband’s kids from a prior marriage, husband still collects 40 percent of the marital estate, as the father-in-law made some gifts to the couple.
Cummings v. Cummings (VLW 010-8-125) (4 pp.)

Domestic Relations
No Increase for Wife’s Share of Pension
A Loudoun County Circuit Court interprets a 1988 PSA to give wife only a share of husband’s earned county retirement benefits in effect then, and not an additional share of his future benefits that accrued through VRS.
Roth v. Roth (VLW 010-8-110) (6 pp.)

Domestic Relations
Widow Claims Life Insurance Payout to Ex-Wife
Although ex-wife is the named beneficiary for husband’s federal employee life insurance proceeds, husband’s widow can use a Virginia statute to ask for a constructive trust on the $125,000 policy paid out to the ex-wife, a Fairfax Circuit Court says in this first-impression case.
Hillman v. Maretta (VLW 010-8-120) (12 pp.)

Domestic Relations
No Party Signature, No PSA Enforcement
In this case of first impression, a Hanover Circuit Court denies enforcement of a “term sheet” signed by the parties’ lawyers, but not the parties, after negotiations on ED and spousal support.
Jordan v. Jordan (VLW 010-8-123) (3 pp.)

Employment Discrimination
Employer Not Biased Against Non-Hispanics
New management’s decision to hire Hispanic housekeepers for seven of eight jobs at a Best Western hotel did not violate Title VII, an Alexandria U.S. District Court says as it dismisses the EEOC’s complaint.
EEOC v. Mount Vernon Holdings LLC (VLW 010-3-378) (22 pp.)

Employment Discrimination
School Wanted ‘21st Century Communication Skills’
A Richmond U.S. District Court dismisses an age discrimination suit against a county school superintendent filed after the school board allegedly replaced a 60-year-old female public-information director with her 37-year-old male assistant because the superintendent wanted someone with “21st Century communications skills.”
Marlow v. Chesterfield County School Board (VLW 010-3-363) (11 pp.)

RICO Claim Against Yoga Center Advances
An Alexandria U.S. District Court refuses to dismiss RICO, fraud and emotional distress claims against Dahn Yoga & Healing Family Center filed by a man who says his $23,772 for spiritual healing programs was spent on the “lavish lifestyle of its leaders.”
Myers v. Lee (VLW 010-3-368) (19 pp.)

No RICO Claim Against Disloyal Exec
A company has not stated a RICO claim against its former business development manager who allegedly formed his own company while working for plaintiff and double-billed plaintiff and his own company for work for clients 14 times over a 12-month period, an Alexandria U.S. District Court rules.
Whitney, Bradley & Brown Inc. v. Kammermann (VLW 010-3-360) (17 pp.)

Wills & Trusts
Trustee Fee Approved
Although a trustee didn’t file tax forms or provide regular accountings and he made one imprudent investment, he has managed the trust in good faith, increased its value and paid beneficiaries over $120,000, and a Norfolk Circuit Court says the trustee is entitled to reasonable compensation.
Smack v. Smack (VLW 010-8-130) (7 pp.)


Court Has Jurisdiction Over Land-Based Injury Suit
A contractor who alleges injuries from the explosion of a ship’s propane tank as he refilled it on land for a commercial fishing operation can pursue his claim in Richmond U.S. District Court, as the court can exercise admiralty jurisdiction.
Oliver v. Omega Protein Inc. (VLW 010-3-370) (14 pp.)

Civil Procedure
Counterclaim Allowed Despite Delay
In this lawsuit arising from the collision of two tractor-trailers, a Richmond U.S. District Court allows defendant’s counterclaim despite “extensive and unexplained delay.”
Atlantic Bulk Carrier Corp. v. Milan Express Co. (VLW 010-3-385) (11 pp.)

Civil Procedure
E-Mail Not Protected by ‘Common Interest’ Rule
In this litigation involving trade secret and conspiracy allegations, an Alexandria U.S. District Court says the “common interest” rule does not protect an e-mail exchange that was not a communication to or from an attorney, and the communication about the litigation is admissible.
In re: OutsideWall Tire Litigation (VLW 010-3-359) (5 pp.)

Civil Procedure
Products Suit Goes Back to State Court
In a Yaz birth-control suit with products and med-mal claims, a Richmond U.S. District Court says the manufacturer’s notice of removal was defective because the defendant doctor did not consent, and the case is remanded to state court.
Cooke-Bates v. Bayer Corp. (VLW 010-3-403) (5 pp.)

Civil Procedure
Plaintiff’s Settlements Stay Confidential
An identity theft victim need not disclose to defendant credit company her settlement agreements with three credit reporting agencies and a separate debt collection agency, on related claims under the FDCPA and the FCRA, an Alexandria U.S. District Court says.
Pennington v. Midland Credit Mgmt. Inc. (VLW 010-3-428) (3 pp.)

Civil Procedure
Default Should Have Been Set Aside
A corporation’s registered agent failed to forward suit papers, and the 4th Circuit says a district court abused its discretion when it refused to vacate entry of default against the corporation, sued by a private school for roof damage allegedly caused by the company’s fire-retardant materials.
Colleton Preparatory Academy Inc. v. Hoover Universal Inc. (VLW 010-2-151) (14 pp.)

Consumer Protection
No FDCPA Claim Against Trustees
A couple in default on their mortgage cannot sue defendant trustees for violation of the Fair Debt Collection Practices Act, as plaintiffs have not alleged defendant is a debt collector under the Act, an Alexandria U.S. District Court says.
Blagogee v. Equity Trustees LLC (VLW 010-3-393) (19 pp.)

No ‘False Claims’ Suit Against Parent Company
Medicaid billing fraud allegations by former therapists at a juvenile residential treatment center support the government’s False Claims Act suit against the center, but not against its parent corporation.
U.S. v. Universal Health Services Inc. (VLW 010-3-409) (14 pp.)

Restrictive Covenant in Sales Contract Unenforceable
Applying a 1905 Virginia case, an Alexandria U.S. District Court refuses to enforce a restrictive covenant that prohibited a service station owner from selling certain non-BP branded products or offering certain automotive services.
BP Products N.A. Inc. v. Stanley (VLW 010-3-373) (15 pp.)

‘Penalties Resolution’ May Be Ultra Vires
Homeowners may sue their property owners’ association, a Virginia non-stock corporation, on a claim that the board’s adoption of fines to enforce use restrictions was an ultra vires act under Va. Code § 55-513(B) and association Declaration, a Fairfax Circuit Court says.
Farran v. Olde Belhaven Towne Ass’n (VLW 010-8-154) (8 pp.)

Prosecution Certificate Passes ‘Daubert’ Test
A Fairfax Circuit Court refuses to exclude a certificate of analysis as based on scientifically unreliable evidence: a chemical analysis performed on the suspected controlled substance, cathinone.
Commonwealth v. Isse (VLW 010-8-152) (6 pp.)

‘Generic’ Burglary Nets Enhanced Sentence
Quoting Longfellow on the “village smithy,” a Big Stone Gap U.S. District Court says burglary of a blacksmith “shop” counts toward “armed career criminal” status, but burglary of a “restaurant” and a “corner market” do not.
U.S. v. Foster (VLW 010-3-434) (10 pp.)

Domestic Relations
Court Divides Commingled Accounts
For a couple who worked long hours to build up their carpet-cleaning business and commingled their business and personal accounts, a Salem Circuit Court divides the marital property, with an extra monetary award to wife for husband’s use of marital assets to buy his separate floor-refurbishing business.
Reynolds v. Reynolds (VLW 010-8-132) (7 pp.)

Domestic Relations
Guardian Shows Intent for Divorce
The Court of Appeals upholds a divorce for a 93-year-old incapacitated husband from his 88-year-old wife, on evidence that husband formed an intent to live separate and apart in 2006.
Andrews v. Creacey (VLW 010-7-294) (24 pp.)

Employment Discrimination
NoVa Realty Office Not Covered as ‘Alaska Native’ Company
A Title VII exemption that allows Alaskan companies a hiring preference for Native Alaskans does not protect a realty office that has an indirect subsidiary relationship with a Native Corporation, an Alexandria U.S. District Court says in this first-impression suit filed by an African-American male.
Fox v. Portico Realty Services Office (VLW 010-3-413) (17 pp.)

Employment Discrimination
‘Twiqbal’ Covers Affirmative Defenses
A woman who alleges gender discrimination in her discharge from her job as a milker at defendant dairy succeeds in striking affirmative defenses pleaded by employer that do not meet the pleading standard under Twombly and Iqbal.
Palmer v. Oakland Farms Inc. (VLW 010-3-397) (12 pp.)

‘Pollution Exclusion’ No Protection for Carrier
A Lynchburg U.S. District Court says an insurance company cannot invoke a “Total Pollution Exclusion” to avoid defending a developer who allegedly allowed water, sediment and debris to damage a lake near a residential development.
Builders Mutual Ins. Co. v. Half Court Press LLC (VLW 010-3-410) (11 pp.)

Policy’s ‘Anti-Stacking’ Language Sticks
Under the Virginia Supreme Court’s 2009 interpretation of Virginia law on “stacking,” an insured is entitled to only $500,000 in UIM coverage from his two auto liability policies, not the $1.75 million he requests, says an Alexandria U.S. District Court.
Lloyd v. Travelers Property Cas. Ins. Co. (VLW 010-3-382) (15 pp.)

‘Manager’ Seeks Overtime Pay
One of the 17 employees suing Dollar General Store in Virginia’s Western District federal courts gets to try her claim for overtime pay in Abingdon U.S. District Court.
Hale v. Dolgencorp Inc. (VLW 010-3-331) (17 pp.)

Distracting Display No Excuse for Fall
K Mart wins this premises liability suit filed in Charlottesville U.S. District Court by the estate of a shopper who alleged injuries from tripping over a flat box while shopping for a sofa.
Cameron v. K Mart Corp. (VLW 010-3-408) (7 pp.)

Search & Seizure
Windshield Tint Case Prompts Search Law Survey
Surveying recent case law on auto searches, the Virginia Court of Appeals upholds suppression of a firearm found in a locked glove compartment, searched by police after they determined defendant’s windshield tint was too dark and he was out of car with an officer.
Commonwealth v. Johnson (VLW 010-7-290(UP)) (12 pp.)

Search & Seizure
Trip & Fall Leads to Gun Charge
A defendant who failed to keep his footing as he fled from a pat-down cannot conceal the gun that slipped from his waistband; the gun in his Fruit-of-the-Looms was not the fruit of an illegal search.
Fitchett v. Commonwealth (VLW 010-7-320) (7 pp.)

Search & Seizure
Anonymous Tip Plus Man on the Run
An anonymous tip about a drug sale inside defendant’s apartment didn’t give police probable cause, but put the tip together with the way a man inside bolted for the back with something “white” in his hand, and police were entitled to enter, the Court of Appeals says.
Smith v. Commonwealth (VLW 010-7-295) (12 pp.)

Fence Can Stay, Stream Must Go
A landowner who moved a fence and relocated a stream before he got a boundary survey can leave the fence, but he must move the stream and pay damages, says a Shenandoah County Circuit Court.
Ricketts v. Boyd (VLW 010-8-149) (6 pp.)

Court Applies ‘Law Enforcement Proviso’
A private security guard who had a workplace altercation with a Pentagon police officer cannot sue under the FTCA; in a first-impression case for this Circuit, an Alexandria U.S. District Court grants summary judgment to the U.S.
Ignacio v. U.S. (VLW 010-3-421) (6 pp.)

Wills & Trusts
Bank Collects Attorney’s Fees from Trust
A bank can collect $825,233 in attorney’s fees and costs from a trust after it proved a waiver of the “prudent investor rule,” in this case from Richmond U.S. District Court.
WAK II, a minor v. Wachovia Bank (VLW 010-3-414) (15 pp.)


‘Commencement’ Of Proceeding Controls
An English trustee seeking the Hampton, Va., real estate interest of a citizen of the UK who was adjudged bankrupt in England cannot get the Newport News U.S. District Court to “avoid” a transfer of the Hampton property because the transfer occurred prior to commencement of the Chapter 15 bankruptcy case.
O’Sullivan v. Loy (VLW 010-3-456) (28 pp.)

Civil Procedure
Virginia ‘Stacking’ Law at Issue
A Charlottesville U.S. District Court has diversity jurisdiction over this dec action by an insured to establish UM/UIM policy limits; the citizenship of the alleged tortfeasor does not count, as he does not have a real and substantial interest in the outcome of the case.
Trigo v. Travelers Commercial Ins. Co. (VLW 010-3-469) (19 pp.)

Civil Procedure
Foreclosure Reg Claim Stays in State Court
A Richmond U.S. District Court remands to state court a homeowner’s claim that defendant violated a federal regulation when it failed to have a face-to-face meeting with him before initiating foreclosure.
Lee v. Citimortgage Inc. (VLW 010-3-476) (12 pp.)

Civil Procedure
Counterclaim Allowed Despite Delay
In this lawsuit arising from the collision of two tractor-trailers, a Richmond U.S. District Court allows defendant’s counterclaim despite “extensive and unexplained delay.”
Atlantic Bulk Carrier Corp. v. Milan Express Co. (VLW 010-3-385) (11 pp.)

Civil Procedure
Personal Jurisdiction Over Corporate Agent
A Fairfax Circuit Court says it has personal jurisdiction over New Jersey defendants whether an LLC’s principal was acting in his “corporate or personal role,” and the court declines to set aside the default judgment against defendants.
Direct Connect, UDCC Division v. Medra Systems LLC (VLW 010-8-161) (10 pp.)

Consumer Protection
FCRA Preempts Libel Claim Remedy
In this first-impression case, a Fairfax Circuit Court says the Fair Credit Reporting Act preempts injunctive relief requested by plaintiff under his common law libel action for a credit reporting agency’s alleged retention of false information about plaintiff, and injunctive relief is dismissed.
Stockton v. .TransUnion LLC (VLW 010-8-159) (7 pp.)

Condo Buyers Can Sue Over Floors
Condo buyers can sue for damages on a claim that their hardwood flooring was not “substantially equivalent” to what the contract offered; the Supreme Court of Virginia says the buyers’ fraud in the inducement and consumer protection claims are not barred by the economic loss rule.
Abi-Najm v. Concord Condominium LLC (VLW 010-6-090) (17 pp.)

Jurisdictional Exception Applies in ‘Wild Animal Parts’ Case
Virginia had jurisdiction under the “immediate result doctrine” to prosecute a former taxidermist for sale of deer head mounts cobbled together from Styrofoam molds, deer pelts and antlers, stored in Pennsylvania and offered on eBay.
Goble v. Commonwealth (VLW 010-7-356) (22 pp.)

‘Character’ Evidence Kept Out
Although a defendant lined up five witnesses, including a law enforcement officer and his former probation officer, to say he was a “good guy,” the Court of Appeals upholds exclusion of his “character” evidence and affirms his convictions for uttering a forged writing and obtaining money by false pretenses.
Argenbright v. Commonwealth (VLW 010-7-350) (11 pp.)

Fees Awarded in ERISA Case
An Alexandria U.S. District Court applies Grissom, not the Laffey Matrix, to award the winning lawyer in this ERISA case $380 per hour, not the $400-420 he sought; the lawyer also wins sanctions, but can’t win costs for a private process server.
Porter v. Elk Remodeling Inc. (VLW 010-3-468) (21 pp.)

Fraud Investigator Can Sue Under Bowman
A Warren County Circuit Court says a fraud investigator for a local services department can sue her employer for wrongful discharge under iiiBowman,iii based on allegations that her employer prevented her investigation of fraud cases and her cooperation with the prosecutor, and that her grand jury appearance contributed to her termination.
McCloskey v. Warren County Dep’t of Social Servs. (VLW 010-8-164) (4 pp.)

‘Anti-Stacking’ Clause Not Ambiguous
An auto liability policy on plaintiff’s four vehicles, with a UIM endorsement that limits UIM coverage to bodily injury limits regardless of “insureds, claims made or vehicles or premiums shown in the Declarations,” with $500,000 limits for “each person” listed on the declarations page, is not ambiguous and a Chesterfield Circuit Court says plaintiff may not stack the policies for $2 million in UIM coverage.
Davis v. Nationwide Mut. Ins. Co. (VLW 010-8-168) (4 pp.)

Negligent Hiring Claim Dismissed
In a wrongful death suit arising from a tractor-trailer collision with a van, an Abingdon U.S. District Court says allegations that the long-haul driver had been fired earlier for a safety violation and a suspended driver’s license and speeding conviction do not support a claim for negligent hiring.
Stanley, Adm’r v. Star Transport Inc. (VLW 010-3-448) (5 pp.)

Real Estate
Plaintiff Can Sue After Refinancing Mortgage
A woman who alleges “predatory lending practices” during her refi can sue under the Virginia Mortgage Lender & Broker Act and for breach of contract and misrepresentations that allegedly violated the Virginia Consumer Protection Act, but a Charlottesville U.S. District Court dismisses her claim under the Virginia Home Solicitation Sales Act.
Yarney v. Wells Fargo Bank N.A. (VLW 010-3-481) (11 pp.)

Real Estate
Fraud Claim Not Preempted by Homeowners Act
Borrowers who allege a lender misrepresented whether there was mortgage insurance with their refi loan and that the presence of such insurance kept them from qualifying for a federal refi program that would have lowered their monthly payments by $361, can sue for actual fraud and violation of the Homeowners Protection Act, says a Charlottesville U.S. District Court.
Scott v. GMAC Mortgage LLC (VLW 010-3-440) (14 pp.)

Unemployment Comp
Rude Receptionist Gets No Unemployment
A medical receptionist whose insubordination and discourtesy caused at least three patients of the medical practice to take their business elsewhere is not entitled to unemployment compensation because he was discharged due to misconduct, in this Roanoke County Circuit Court case.
Jones v. VEC and Primary Care Associates PC (VLW 010-8-151) (2 pp.)

Developer Had No Claim After Proffer Amendment
A county board of supervisors did not violate the county code’s conditional zoning provision when it failed to hold a new public hearing on a rezoning application after it amended the proffer, with the agreement of the property owner, to limit sale of diesel fuel at the proposed service station.
Arogas Inc. v. Frederick County BZA (VLW 010-6-089) (13 pp.)


Civil Rights
Drooling, Drugs, Slurred Speech Prompt Officer’s Actions
An Abingdon U.S. District Court says a deputy has qualified immunity from an arrestee’s 42 U.S.C. § 1983 suit alleging excessive force when the deputy handcuffed plaintiff and used pepper spray, after observing plaintiff’s slurred speech, drooling and heard him admit to having taken two Oxycontin, and saw him attempting to put his key in his vehicle’s ignition.
Vandyke v. Hall (VLW 010-3-539) (14 pp.)

Consumer Protection
Bad Credit Report from Free Software Trial
A Richmond U.S. District Court says a former finance manager at a car dealer can sue under the Fair Credit Reporting Act for bad credit reports he allegedly received for not paying for “Bill Collector” software he says he returned within a 30-day free trial period.
Hintz v. Experian Information Solutions Inc. & Marauder Corp. (VLW 010-3-540) (13 pp.)

Construction Fraud Covers Cash for Materials
A contractor says he only received cash for supplies for home improvements, but the Court of Appeals upholds his construction fraud conviction because he got the money after he promised to do the improvements.
Testerman v. Commonwealth (VLW 010-7-375) (7 pp.)

Long-Term Disability Claim Remanded
ERISA cases are complex and district courts can augment records when necessary, says an Abingdon U.S. District Court, as it orders remand of a 56-year-old hospital administrator’s claim for long-term disability benefits.
Hill v. Hartford Life & Accident Ins. Co. (VLW 010-3-538) (12 pp.)

No Long-Term Disability for Chronic Fatigue Syndrome
Although an employer’s disability plan administrator may have had an “aggressive claims denial practice,” its liberal appeals process in this case mitigates the importance of that history, and a Charlottesville U.S District Court upholds denial of long-term disability benefits to an epidemiologist who failed to demonstrate that her chronic fatigue syndrome rendered her incapable of full-time employment.
Van Valen v. Employee Welfare Benefits Committee (VLW 010-3-523) (12 pp.)

Employment Discrimination
Three-Time Insult Not ‘Hostile Environment’
There’s no bright-line rule on how many times a supervisor can use a racial slur to an employee without creating a Title VII hostile work environment, says a Danville U.S. District Court, but a foreman’s use of a racist epithet three times is not “objectively abusive.”
Hampton v. J.W. Squire Co. (VLW 001-3-516) (9 pp.)

Carrier’s Letter Did Not Waive Arbitration
An insurance carrier lawyer’s letter to an insured manufacturer’s lawyer saying the manufacturer could “serve the Complaint and litigation can commence” was not a waiver of the carrier’s right to compel arbitration of coverage for 1,000-plus p.i. claims involving the manufacturer’s colon-cleansing product, says a Lynchburg U.S. District Court.
C.B. Fleet Co. v. Aspen Insurance UK Ltd. (VLW 010-3-542) (24 pp.)

Court Disallows Costs in P.I. Case
A winning p.i. plaintiff cannot recover costs for third-party review of medical records, preparation of trial exhibits, an expert witness’s travel fees and the expense of a private process server, says a Harrisonburg U.S. District Court.
Mayse v. Mathyas (VLW 010-3-522) (9 pp.)

Products Liability
Breast Cancer Patient Goes to Trial Against Drug Maker
A woman who alleges the hormone therapy drug Prempro caused her breast cancer can try her claims for negligent design defect and fraudulent concealment in the Prempro label, says an Alexandria U.S. District Court.
Torkie-Tork v. Wyeth (VLW 010-3-520) (20 pp.)

Real Estate
Foreclosure Case Remanded to State Court
A Charlottesville U.S. District Court remands to state court a Nelson County homeowner’s complaint that defendant started foreclosure without the face-to-face meeting required by federal regs.
Mathews v. PHH Corp. (VLW 010-3-512) (13 pp.)

Real Estate
Home Sale Proceeds Go to ‘Survivorship’ Interest
Where an unmarried couple bought a foreclosure home as joint tenants with right of survivorship, but they later sold the home to their tenant and continued to divide the monthly payments after they split up, the man is entitled to the entire sale proceeds after the woman’s death, a Norfolk Circuit Court says.
Davenport v. Spruill (VLW 010-8-186) (5 pp.)

Search & Seizure
Cyclist’s Pat-Down Illegal
An officer who says he always pats down a pedestrian or bike rider did not have a particular suspicion to pat-down this bike rider, and the Court of Appeals reverses the bike rider’s cocaine conviction on a conditional guilty plea.
Baker v. Commonwealth (VLW 010-7-388) (12 pp.)


‘Malpractice’ Claim is Contract Claim
Although a plaintiff’s original complaint alleged “Malpractice” against a lawyer, the complaint necessarily referred to a breach of contract action, and a Fairfax Circuit Court rejects defendant lawyer’s claim that plaintiff changed her cause of action.
Kim v. Garver (VLW 010-8-200) (6 pp.)

Civil Procedure
Judge Rejects Agreement Mediated by Magistrate
In this multi-million dollar dispute over a stock purchase agreement and noncompete with defendant’s sale of his company, an Alexandria U.S. District Court says it can’t enforce the “Term Sheet” that came out of the parties’ lengthy mediation with the magistrate judge, because the seller didn’t like new terms the buyer added to the draft written agreement.
Intersections Inc. v. Loomis (VLW 010-3-582) (11 pp.)

Civil Procedure
No Personal Jurisdiction in Defamation Case
A Norfolk U.S. District Court dismisses a California resident as a defendant in this defamation suit; plaintiff security contractor has not shown an allegedly defamatory e-mail that went through Pentagon contacts was directed at Virginia contacts or damaged the contractor in Virginia.
Galustian v. Peter (VLW 010-3-599) (26 pp.)

Civil Procedure
Injunction Value Counts for Amount in Controversy
A district court did not account for the value of an injunction in addition to the claimed monetary damages, and the 4th Circuit reverses dismissal of a franchise tax service’s breach-of-contract suit against a former franchisee for failure to meet the $75,000 amount in controversy.
JTH Tax Inc. d/b/a Liberty Tax Service v. Frashier (VLW 010-2-169) (7 pp.)

Civil Procedure
Spoliation Prompts Limits on Evidence
In an investor’s suit alleging the manager of a wood products business ran a kickback scheme, an Abingdon U.S. District Court finds defendants altered electronic accounting data they were ordered to produce and says defendants cannot offer certain evidence in their defense.
VFI Associates LLC v. Lobo Machinery Corp. (VLW 010-3-608) (4 pp.)

Civil Procedure
Defendant Shows ‘Excusable Neglect’
Although plaintiff hand-delivered to the defense law firm’s office his response to defendant’s motion to dismiss, the certificate of service and CM/ECF date of service stated the response was filed three days later, and a Richmond U.S District Court says defendant has demonstrated excusable neglect for filing its reply to plaintiff’s response three days late.
Smith v. EVB and Archie Berkeley Jr. (VLW 010-3-343) (13 pp.)

Civil Procedure
Case Transferred Under First-Filed Rule
A Richmond U.S. District Court applies the “first-filed” rule to transfer this patent infringement case to a New York federal court.
The Fox Group Inc. v. Cree Inc. (VLW 010-3-551) (12 pp.)

Civil Rights
Court Sympathetic to ‘State-Created Danger’ Theory
An Alexandria U.S. District Court is “deeply unsatisfied” at dismissing a civil rights suit filed by a man who alleges his plea for help at a local police station was rebuffed, while surveillance cameras captured an assailant shooting the man five times.
Gerdak v. Doe (VLW 010-3-528) (12 pp.)

Civil Rights
Drooling, Drugs, Slurred Speech Prompt Officer’s Actions
An Abingdon U.S. District Court says a deputy has qualified immunity from an arrestee’s 42 U.S.C. § 1983 suit alleging excessive force when the deputy handcuffed plaintiff and used pepper spray, after observing plaintiff’s slurred speech, drooling and heard him admit to having taken two Oxycontin, and saw him attempting to put his key in his vehicle’s ignition.
Vandyke v. Hall (VLW 010-3-539) (14 pp.)

Settlement Agreement Enforced
A Richmond U.S. District Court enforces a settlement between plaintiffs and defendant law firm for violations of the Fair Debt Collection Practices Act even without a formal written contract.
Bralley v. Carey (VLW 010-3-601) (6 pp.)

Kitchen Table Chat Not ‘Custodial’
Although 10 to 15 agents, some armed, showed up at defendant’s home to roust him from bed and question the pajama-clad defendant about Internet chats with underage females, the 4th Circuit says defendant was not in “custody.”
U.S. v. Hargrove (VLW 010-2-175) (25 pp.)

Conviction for False Statement Stands
The en banc Court of Appeals affirms defendant’s conviction for a false statement on an AFT firearm purchase form, although defendant says he did not know what an “indictment” was or that he had been indicted.
Smith v. Commonwealth (VLW 010-7-440) (9 pp.)

Drug Conviction Reversed for Brady Error
The Supreme Court of Virginia says a drug defendant gets a new trial because a prosecutor did not disclose information from another jurisdiction that indicated the confidential informant used in multiple cases had lied about drug buys.
Bly v. Commonwealth (VLW 010-6-118) (11 pp)

Criminal – Bedroom Belonged to Defendant, Cooler Didn’t
In a 4-3 split, the Supreme Court of Virginia reverses a cocaine conviction because the commonwealth did not prove that the “very portable” cooler with the cocaine found in the defendant’s bedroom belonged to the defendant.
Cordon v. Commonwealth (VLW 010-6-123) (17 pp.)

Criminal – Corporate Guilty Plea Stands
A Harrisonburg U.S. District Court rejects a corporate defendant’s challenge to its guilty plea to a money laundering conspiracy, which defendant says was not knowing and voluntary because of pressure the government placed on the company president.
U.S. v. Rocky Mountain Corp. (VLW 010-3-549) (20 pp.)

Criminal – Contact From Car Counts for Conviction
A defendant who engaged in sexual touching with a female undercover officer while in his car, after discussing a price for a sexual act, can be convicted of use of a vehicle to promote prostitution, the Court of Appeals holds.
Bakran v. Commonwealth (VLW 010-7-396) (7 pp.)

Employment Discrimination
Retaliation Claim Relates Back
A woman who alleges similar acts of retaliation, including assignment of her work to co-workers and denial of a pay increase, both before and after she notified employer that she had filed an EEOC charge alleging age and race discrimination, may pursue both counts of her claim, says an Alexandria U.S. District Court.
Harman v. Unisys Corp. (VLW 010-3-544) (18 pp.)

Search & Seizure
ATF Agent Visited With Real Estate Agent
An ATF agent who pretended to be a home buyer to get a look inside defendant’s house did not violate defendant’s Fourth Amendment rights and the Virginia Court of Appeals upholds defendant’s firearms conviction.
Redmond v. Commonwealth (VLW 010-7-431) (10 pp.)

Search & Seizure
‘Pretext’ Search OK
Although police may have wanted to stop defendant’s vehicle for crossing a double-yellow line in order to check for drugs, the objective facts authorized the stop, and the Court of Appeals affirms defendant’s drug conviction.
Thomas v. Commonwealth (VLW 010-7-432) (9 pp.)

Search & Seizure
Court Rejects ‘Good Faith’ Exception, Suppresses Evidence
A Roanoke City Circuit Court grants a motion to suppress, as the detective’s affidavit in support of the search warrant was arguably a “bare-bones” affidavit, that leaned heavily on the presence of baggies with cut-off corners found in defendant’s trash can the previous day.
Commonwealth v. Tucker (VLW 010-8-208) (20 pp.)

Search & Seizure
Wandering Child Was ‘Exigent Circumstance’
The 4th Circuit says an officer who entered a home to look for the caretaker of a four-year-old child who was wandering along a busy street did not violate the Fourth Amendment, and her dad can’t suppress the handgun found under his mattress during a protective sweep.
U.S. v. Taylor (VLW 010-2-167) (14 pp)


Civil Procedure
4CA Adopts Forum Selection Rule
A forum selection clause choosing “the courts of the State of Virginia” means Virginia state courts, not federal courts in Virginia, and the 4th Circuit follows its sister circuits and upholds remand of this contract dispute to a Virginia state trial court.
FindWhere Holdings Inc. v. Systems Env. Optimization LLC (VLW 010-2-177) (7 pp.)

Consumer Protection
TILA Rescission Notice Claim Dismissed
A notice of right to rescind sent to a woman who refinanced her home satisfied the Truth in Lending Act with its statement that a $299 application fee would become non-refundable if she did not consummate the loan, and a Richmond U.S. District Court grants summary judgment to the lender.
Larrabee v. Bank of America N.A. (VLW 010-3-629) (10 pp.)

Sub’s Claim Comes Too Late
A sub says its work on a sidewalk started the clock on its Miller Act claim under a performance bond, but the general contractor’s letter requested warranty work on the sidewalk at Quantico, and an Alexandria U.S. District Court says the sub’s claim is time-barred.
U.S. f/u/b/o Allsite Contracting LLC v. Hartford Fire Ins. Co. (VLW 010-3-637) (10 pp.)

Starting the Clock for Prejudgment Interest
A surety has to pay a sub $1.8 million on a payment bond, but the Alexandria U.S. District Court says prejudgment interest starts from the date the sub made its first demand for payment under the surety bond.
Attard Industries Inc. v. U.S. Fire Ins. Co. (VLW 010-3-591) (12 pp.)

No Illegal Burden-Shifting in Drug Statute
A man who was found with three prescription Oxycodone pills loses his constitutional challenge claiming the burden to prove he didn’t have a valid prescription was illegally shifted to him, and the Court of Appeals upholds his controlled drug conviction.
Williams v. Commonwealth (VLW 010-7-460) (11 pp.)

Groundskeeper With No CDL Loses Job
A city groundskeeper who lost his job can’t get back pay or alternative placement from a grievance panel, but the panel could award a modified remedy, says a Norfolk Circuit Court.
Brito v. City of Norfolk (VLW 010-8-221) (5 pp.)

Employment Discrimination
‘Cat’s Paw’ Theory Fails in Title VII Suit
An Iraqi maintenance technician at a condo complex loses his Title VII national-origin suit; an Alexandria U.S. District Court says plaintiff’s “cat’s paw” theory of liability fails because he has no evidence the condo board rubber-stamped a lower-level employee’s alleged discriminatory intent.
Zanganah v. The Council of Co-Owners of Fountains Condominium Inc. (VLW 010-3-648) (23 pp.)

Carrier Can’t Cancel Policy After Man’s Death
A man’s children collect $500,000 in life insurance proceeds because a term policy had no cancellation clause; an Alexandria U.S. District Court says the carrier’s “acceptance” of the man’s telephoned “offer” to cancel the policy, one day after he died, came too late.
Yosco v. Aviva Life & Annuity Co. (VLW 010-3-631) (8 pp.)

No Pollution Exclusion for ‘Vapors’ Claim
A CGL carrier has a duty to defend a roofing contractor in a lawsuit filed by a medical assistant at Sentara Hospital, who alleges injuries from harmful vapors from the contractor’s work on the hospital roof; a Norfolk U.S. District Court says an exception to the “pollution exclusion” applies.
Pennsylvania Nat’l Mut. Cas. Ins. Co. v. Block Roofing Corp. (VLW 010-3-653) (16 pp.)

Contingency Fee Recommended in Overtime-Pay Case
Although the lodestar is $7,061 for an attorney fee award in this overtime-pay case, that’s nearly double the 40-percent contingency fee to which plaintiff’s lawyer agreed, and a Richmond U.S. District Court magistrate judge recommends awarding the $4,000 fee agreed to by plaintiff.
Walker v. Dovetails Inc., d/b/a Capitol Granite and Marble (VLW 010-3-638) (13 pp.)

Real Estate
Property Owners Win Damages for Pond Pollution
Property owners who allege damage from a school board’s construction of a “storm water retention basin” that allowed polluted storm water to be discharged onto plaintiffs’ property and into their pond, are entitled to damages for the “taking” of their property and an injunction, says a Norfolk Circuit Court.
Waltman v. King William County School Board (VLW 010-8-216) (5 pp.)

Search & Seizure
Detention After Warning Ticket OK
A trooper’s detention of a driver and use of a drug dog after issuing a warning about his window tint did not violate the Fourth Amendment, and a 4th Circuit panel, with one dissent, upholds defendant’s conviction.
U.S. v. Mason (VLW 010-2-182) (29 pp.)

Truck Driver Has Defamation Claim Against Employer
A Richmond U.S. District Court refuses to dismiss a defamation claim filed by a former driver for defendant armored truck company, who says another company driver reportedly told an employee at one of the company’s ATM stops that people at the company said plaintiff “stole a bunch of money.”
Suarez v. Loomis Armored US LLC (VLW 010-3-642) (7 pp.)

Traffic Offenses
DUI-Driver Was on ‘Highway’
Based on an aerial photograph and detailed description of the public parking lot with through access, a Loudoun County Circuit Court says the area where defendant was operating his motor vehicle was a “highway” under Virginia law, and defendant can be convicted of DUI.
County of Loudoun v. Plowman (VLW 010-8-217) (4 pp.)

Important Opinions of 2009

Important Opinions of 2008

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