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Important Opinions January – December 2018

Virginia Lawyers Weekly//December 26, 2018

Important Opinions January – December 2018

Virginia Lawyers Weekly//December 26, 2018

impops18_mainThe “Important Opinions” that appear each week on the front page of Virginia Lawyers Weekly are those chosen by our editors as the most likely to impact law practice or a given subject area of law. Below is a listing, arranged by practice area, of the most Important Opinions of 2018, January to June.



Va. Beach student merits private placement, fees

Virginia Beach city schools failed to provide appropriate education to a special-needs child for multiple years. Accordingly, her family was entitled to reimbursement for private placement, as well as attorney fees.

M.N. v. Sch. Bd. of the City of Va. Beach, EDVA (Morgan), Feb. 5, 2018. VLW No. 018-3-032.


ABC Board improperly granted winery a permit

The Alcoholic Beverage Control Board exceeded its authority by not deferring to the zoning board and granting a farm winery license to a property that lacked sufficient acreage for agricultural use.

Virginia Alcoholic Beverage Control Authority v. Board of Supervisors of Fairfax County., Nov. 6, 2018. CAV (O’Brien) from Fairfax Cir.Ct. (Carroll). VLW No. 018-7-287.


VABC statute doesn’t authorize applicant searches

The Department of Alcoholic Beverage Control was justified in terminating an agent’s employment after he searched the business office of a license applicant without her consent or a warrant. The applicant did not consent to the warrantless search of the business office simply by scheduling the site visit.

Osburn v. Va. Dep’t of Alcoholic Beverage Control, SCV (Lemons), Feb. 22, 2018. VLW No. 018-6-008.


Accreditor’s own interest didn’t bias decision

An accreditation agency’s decision to withdraw the plaintiff’s accreditation as a cosmetology school was not unduly tainted by the fact that one of the agency’s commissioners was an executive and part-owner of a similar, nearby institution in a nearby city. This case was a close call.

Wards Corner Beauty Acad. v. Nat’l Accrediting Comm’n of Career Arts & Scis., EDVA (Davis), Feb. 12, 2018. VLW No. 018-3-050.


Replacement workers’ comp panel member was proper

Under Code § 65.2-705(D), if a claim review panel member is absent, a deputy commissioner may be appointed as a replacement. The replacement member need not have the same experience, as either an employee or employer representative, as the absent member. Therefore, the composition of the review panel in this case was proper.

Dollar Tree Stores Inc. v. Tefft, CAV (Malveaux), June 5, 2018. VLW No. 018-7-139.


In altercation with student, teacher’s conduct was defensive

A special education teacher who ended up in a brief physical altercation with a chronically disrespectful student was acting only in her own defense. Her conduct did not threaten injury so as to support a finding of child abuse or neglect.

Va. Dep’t of Soc. Servs. v. Betts, CAV (Alston), June 12, 2018. VLW No. 018-7-150.


Attempt to remove manager of corporate entity fails

The court rejected a challenge to an arbitration panel’s ruling that found in favor of defendants, removed the plaintiff from the company and held her liable for attorney’s fees.

Meuse v. Henry, Oct. 4, 2018. SCV (Lemons) from Alexan¬dria Cir. Ct. (Dawkins). VLW No. 018-6- 068.


Attorney sanctioned for failing to investigate experts

A plaintiff’s attorney who named three doctors as experts in a personal injury case without speaking with them and knowing they would not appear at trial is liable for a portion of defense counsel fees.

Fathi v. Nasir, Nov. 7, 2018. Fairfax Cir. Ct. (Azcarate). VLW No. 018-8-097.


Plaintiff gets fees at local rates in discovery dispute

In awarding plaintiff reasonable fees in a discovery dispute, the court will use Abingdon rates, there was no showing that counsel from Washington, DC, were required to litigate the claims.

Latson v. Clarke, Nov. 6, 2018. WDVA (Jones). VLW 018-3-478.


Only two meetings with lawyer not ineffectiveness

Where an inmate claimed ineffective counsel because his lawyer met with him only twice, the court rejects the habeas writ.

Paduano v. Clarke, Nov. 2, 2018. WDVA (Urbanski). VLW 018-3-470.


Untainted funds can be used to pay attorney’s fees

A defendant facing multiple suits in¬volving money laundering may tap “untainted” funds to pay his legal fees.

United States v. Price, Oct. 11, 2018. WDVA (Jones). VLW 018-3-447.


Attorney’s fee recommendation included numerous venues

A law firm’s claim that a magistrate judge used only Southwest Virginia lawyer rates in his recommendation is unfounded, as the report clearly indicates the judge included central Virginia cities as well.

Zen42, LLC v. Washington and Lee Univ., Sept. 26, 2018. WDVA (Moon). VLW No. 018-3-413.


Lawyer can’t take a fee from money under dispute

Lawyers must refrain from paying themselves from trust account funds when there is a good faith dispute about someone else’s interest in the money.

Roberts v. Virginia State Bar, Sept. 6, 2018. SCV (Kelsey), from Virginia State Bar Disciplinary Board. VLW No. 018-6-065.




Wire-fraud torts pre-empted by UCC

When a wire transfer goes awry due to fraudulent misdirection of proceeds into an unintended account, a bank’s liability for depositing the wired funds is generally governed by Article 4A of the Uniform Commercial Code, although the bank’s representations to the defrauded party may create a cause of action for negligence.

AG4 Holding LLC v. Regency Title & Escrow Servs., Fairfax Cir. Ct. (Bernhard), Jan. 24, 2018. VLW 018-8-004.




Company, attorneys sanctioned for bankruptcy scam

Local “partners” of a national law firm – which the U.S. Trustee characterizes as money-hungry “bankruptcy boiler room” operators who cross legal and ethical lines – bear responsibility for their actions that perpetuated the firm’s bankruptcy scam involving out-of-state vehicle impoundment. Their practicing privileges were suspended, and they were each sanctioned $5,000.

In re Williams, WDVA Bkr. (Black), Feb. 12, 2018. VLW No. 018-4-001.


Lien-stripping doesn’t require proof of claim

For purposes of 11 U.S.C. § 1322, any junior lienholder of a valueless lien is the holder of an unsecured claim, which may be stripped without a proof of claim being filed.

Burkhart v. Grigsby, 4th Cir. (Diaz), Mar. 29, 2018. VLW No. 018-2-066.


Local bankruptcy court rule held invalid

The Eastern District of Virginia’s Local Bankruptcy Rule 3070-1(C), which allows for dismissal without a hearing upon the debtor’s non-payment, conflicts with the requirements of 11 U.S.C. § 1307.

No v. Gorman, 4th Cir. (Duncan), May 24, 2018. VLW No. 018-2-101.



Civil Practice

Sanctions awarded for noncompliance

Attorneys representing a liquidating trust were subject to sanctions for not complying with a mediation order to submit a settlement memorandum. However, the court struck half the plaintiffs’ attorney time billed for the compliance hearing, reduced travel time by half, and struck paralegal hours spent on secretarial tasks. Block-billed entries were reduced by 10 percent. The sanctions award totaled $14,350.

In re Mediation in Health Diagnostic Lab. Inc., EDVA (Novak), Jan. 23, 2018. VLW No. 018-3-012.


Motion to strike after answer was too late

Where a construction company suing a power facility for breach of contract filed a motion to strike the facility’s demand for a jury trial after it had filed its answer, the motion was untimely.

Fluor Enterprises Inc. v. Mitsubishi Hitachi Power Systems Americas Inc., Oct. 12, 2018. EDVA (Lauck).VLW 018-3-453.


Failure to appear results in dismissal

Where a plaintiff knew about a scheduled settlement conference and failed to note a conflict, then chose not to use electronic communication devices, the case was dismissed with prejudice.

Levi v. Twentieth Century Fox Film Corp., Nov. 8, 2018. EDVA (Young). VLW 018-3-484.


Insurer can stay in federal court

An insurance company that showed that its defense costs, combined with its indemnity obligation, likely exceeded the $75K jurisdictional minimum won on a motion to remand.

Los Amigos Five Inc. v. Canopius US Ins. Inc. Oct. 29, 2018. EDVA (Lauck). VLW 018-3-461.


Voluntary payment defeats fee challenge

A borrower could not recover attorney fees she considered unreasonable, since she paid them voluntarily in anticipation of her impending sale of the property securing the note. If she believed the time constraint forced her to pay, she should have sought a decision from the court via a calendar control motion.

Boyer v. Cambra, Fairfax Cir. Ct. (Ortiz), Mar. 15, 2018. VLW No. 018-8-025.


Attorneys sanctioned for bad-faith litigation

Based on frivolous claims and lack of candor with the court, a charitable bond organization and its individual attorneys will be responsible for a Virginia sheriff’s legal fees in defending those claims. The four attorneys named on the plaintiffs’ filings must pay 25 percent of the defendants’ fees, for a total of $12,034.

NEXUS Servs. Inc. v. Moran, WDVA (Dillon), Mar. 23, 2018. VLW No. 018-3-102.


FLSA plaintiffs win nearly $700,000 in fees, costs

After having settled for $285,000 on the merits of the plaintiffs’ wage claims, the defendant will also be liable for about 80 percent of their requested attorneys’ fees. The court noted that the plaintiffs’ fees were high but reasonable because the defendant fought every issue “to its last breath.”

McNeil v. Faneuil Inc., EDVA (Morgan), Mar. 21, 2018. VLW No. 018-3-092.


Motion fees awarded, mostly at associate rate

The plaintiff was entitled to attorneys’ fees after prevailing on a motion to compel. Because the issues involved were not complex, 13 of the 16 hours spent drafting and arguing was primarily awarded at a reasonable associate rate of $350 per hour.The total fee award was $6,050.

PRA Fin. Servs. LLC v. Autotrakk LLC, EDVA (Miller), Mar. 26, 2018. VLW No. 018-3-105.


Amended anti-SLAPP fee provision not retroactive

A Yelp reviewer who successfully defended against defamation claims couldn’t claim attorneys’ fees under Code § 8.01-223.2 because 2017 amendments weren’t retroactive. The revised statutecreates a substantive right of recovery in a defamation case that didn’t exist prior to the revision, but does not speak to retroactivity.

However, the defendant can recover fees solely associated with the contract claims ($9,941) and those reflecting a mixture of contract and defamation claims ($19,303). The court awards 100 percent of Jones’s contract-only fees and 50 percent of his contract/defamation mixed fees.

Will Nesbitt Realty LLC v. Jones, Fairfax Cir. (Bellows), Apr. 30, 2018. VLW No. 018-8-039


County liable for almost $1M after FMLA violation

In addition to the judgment of approximately $750,000 entered against a municipality for failing to reinstate an employee after FMLA leave, the county will also be liable for over $200,000 in pre-judgment interest and attorneys’ fees and costs.

Perry v. Isle of Wight County, EDVA (Jackson), Apr. 26, 2018. VLW No. 018-3-164.


Despite damning email, no spoliation sanctions

Although the defendant recovered an email advising the plaintiff to destroy relevant evidence, it was not apparent that the plaintiff followed that advice, and the defendant was able to recover most or all electronically-stored information at issue.

Steves & Son Inc. v. JELD-WEN, EDVA (Payne), May 1, 2018. VLW No. 018-3-173.


VDOC sanctioned for unprepared deponents

In a case brought by an autistic man for alleged mistreatment in prison, the Virginia Department of Corrections acted in bad faith by failing to adequately prepare organizational witnesses under Federal Rule of Civil Procedure 30(b)(6). It did not produce prepared witnesses who could answer questions that clearly fell within the narrow topics on which the witnesses were designated to testify. Organizational witnesses must undertake some investigation to obtain information reasonably available to the organization. Here, the witnesses did nothing more than meet briefly with counsel.

Latson v. Clarke, WDVA (Jones), May 14, 2018. VLW No. 018-3-197.


Oral ‘settlement’ no basis to refuse discovery

A settlement agreement will not be enforced when it was procured by the defendant’s “debt negotiator,” who negotiated not with plaintiff’s counsel but the plaintiff itself. Because the case is not settled, the defendant must produce responsive documents in compliance with the court’s most recent discovery order.

Innotec LLC v. Visiontech Sales Inc., WDVA (Conrad), May 18, 2018. VLW No. 018-3-207.


Preponderance standard governs Lanham Act fees

As in the Patent Act, a party prevailing on a Lanham Act claim need only prove an “exceptional” case meriting a fee award by a preponderance of the evidence. And no showing of bad faith is required. The district court erred in applying a higher standard to deny fees.

Verisign Inc. v. LLC, 4th Cir. (Floyd), May 29, 2018. VLW No. 018-2-103.


Fees awarded in Va. Beach neighborhood suit

Waterfront property owners who brought a groundless lawsuit against their neighbor are liable for his attorneys’ fees, in the amount of $5,490. They vexatiously claimed he was working as a state agent to create a special tax district affecting their property.

Schwab v. Hansen, EDVA (Doumar), May 25, 2018. VLW No. 018-3-214.


$150,000 sanction on counsel, firms upheld

Attorneys’ “egregious” conduct was designed to, and did, mislead both trial and appellate courts. They challenged a loan agreement’s authenticity for two years before revealing that they possessed an identical copy, obtained from their client – before filing the complaint. Their firms ratified their conduct and were thus jointly liable, though an associate’s liability was capped at $100,000 for his lesser role.

Six v. Generations Fed. Credit Union, 4th Cir. (Duncan), May 31, 2018. VLW No. 018-2-107.



Civil Procedure

Embassy service is a non-starter under FSIA

Service on the Sudanese embassy was ineffective under the Foreign Sovereign Immunity Act. Accordingly, judgments against the Republic of Sudan pursuant to such ineffective service were vacated. The judgments were for claims related to servicemembers killed aboard the U.S.S. Cole when it was bombed by al Qaeda in 2000.

Kumar v. Republic of Sudan, 4th Cir. (Agee), Jan. 19, 2018. VLW No. 018-2-011.


No CAFA removal for ‘additional counter-defendants’

Even under the permissive standards of the Class Action Fairness Act, when an original defendant makes counterclaims naming additional parties as counter-defendants, those additional parties are not entitled to remove the claims against them to federal court.

Jackson v. Home Depot USA Inc., 4th Cir. (Duncan), Jan. 22, 2018. VLW 018-2-012.


Judgment granted as sanction for discovery misconduct

Plaintiff was granted judgment on liability on a number of consumer claims as a sanction for defendant auto dealer’s misconduct during discovery, and he is entitled to more than $164,000 in damages.

Fasusi v. Washington Motorcars, Inc., Oct. 9, 2018. EDVA (Brinkema). VLW 018-3-439.


Lack of expert testimony dooms malpractice claim against ex-attorney

Where a plaintiff in a legal malpractice case failed to designate experts to testify on the standard of care, dismissal of the claim was appropriate.

Sere v. Trapeni, Oct. 5, 2018. SCV from Fairfax Cir. Ct. VLW No. 018-6-072.


Defendant gets do-over on removal notice

A defendant seeking federal jurisdic¬tion in a negligence case may file an amended removal notice to correct tech¬nical errors.

Hall v. The Coca-Cola Co., Oct. 11, 2018. EDVA (Davis). VLW 018-3-449.


Pro se litigant must pay county’s legal fees

After a “string of frivolous lawsuits” against Loudoun County departments, a litigant must pay its attorney’s fees, and continued filings in the Supreme Court are limited.

Madison v. Bd. of Sup’rs of Loudoun Cty., Aug. 29, 2018. SCV (per curiam order). VLW No. 018-6- 063.


Judgment final as to co-defendant who didn’t appeal

One of two defendants appealing a judgment could not add the other defendant to the appeal. Because she did not note her own appeal, the decision against her was final.

Beatty v. Smith, Aug. 22, 2018. Norfolk Cir. (Martin). VLW No. 018-8-076.


Case’s new judge erred in granting reconsideration

After one judge made a highly fact-dependent ruling and then retired, the re-assignment judge exceeded the bounds of FRCP 54 in re-analyzing the facts on reconsideration.

U.S. Tobacco Coop. Inc. v. Big S. Whole¬sale of Va. LLC, Aug. 3, 2018. 4th Cir. (Traxler), from EDNC (Boyle). VLW No. 018-2-165.


Appearing post-judgment didn’t waive jurisdiction challenge

Never properly served in a suit for unpaid rent, a lease guarantor didn’t waive personal jurisdiction by participating in post-judgment debtor interrogatory proceedings.

McCulley v. Brooks & Co. Gen. Contractors Inc., July 19,2018. SCV (Kelsey), from Richmond City Cir. Ct. (Marchant). VLW No. 018-6-049.


No personal jurisdiction over Cal. Porsche dealer

A Virginia buyer could not bring suit in the Commonwealth against a Los Angeles-based Porsche franchise because, although the transaction was within the scope of Virginia’s long-arm statute, the dealer did not purposefully avail itself of the privilege of conducting business in Virginia.

Reed v. Beverly Hills Porsche, WDVA (Moon), Feb. 8, 2018. VLW No. 018-3-045.


Oyer for corporate documents denied

A defendant may not crave oyer for documents other than deeds or letters of probate and administration, outside the narrow exceptions of (1) agreement of the parties, or (2) supplements to documents related to deeds or probate that are already attached to a complaint.

Antigone v. Taustin, Fairfax Cir. Ct. (Oblon), Mar. 2, 2018. VLW 018-8-022.


GDC limit no bar to high ad damnum

A personal-injury plaintiff could claim $200,000 ad damnum, even though the circuit court was exercising only its appellate jurisdiction. The court acknowledged contrary precedent from the Supreme Court of Virginia, but sought to avoid retrial in the event of high-court reversal.

McCoy v. Gray, Norfolk Cir. Ct. (Martin), Mar. 2, 2018. VLW No. 018-8-021.


Appellate claims can’t ‘piggy-back’ on others’ notice

When the plaintiff was the only party to notice an appeal, the circuit court (on appeal from GDC), lacked jurisdiction to also consider the defendant’s counterclaim, let alone award damages.

The Robert & Bertha Robinson Family LLC v. Allen, SCV (Kelsey), Mar. 1, 2018. VLW No. 018-6-014.


Complaint amended with party’s real name didn’t relate back

Filed days before the end of the limitations period and never served, the initial complaint didn’t put the defendant on notice of the suit. The defendant’s use of an alias did not extend the filing period.

Sparks v. Lucas, Fairfax Cir. Ct. (Bellows), Mar. 23, 2018. VLW No. 018-8-027.


Student denied leave to proceed as ‘John Doe’

Asserting due-process claims after his school disciplined him for cheating, the plaintiff couldn’t file under a pseudonym. His potential embarrassment did not outweigh the court’s presumption of openness.

Doe v. Va. Polytechnic Inst. & State Univ., WDVA (Ballou), Apr. 2, 2018. VLW No. 018-3-130.


Continuing objection too general to preserve error

After unsuccessfully requesting a foreseeability instruction to the jury, the plaintiff – attempting to avoid numerous objections during the defense’s closing argument – obtained permission to enter a continuing objection. However, the plaintiff failed to object with sufficient specificity as to any particular defense statement challenged on appeal. Accordingly, the instruction was not reviewable.

Williams v. Swenson, SCV (per curiam) (unpublished), Apr. 5, 2018. VLW No. 018-6-027, 5 pp.


Rule 9 particularity applies to fraud-based defenses

An employer’s collective-bargaining impasse rights did not override its ERISA obligations to employees hired post-impasse. The employer also raised affirmative defenses grounded in fraud, but these were not pleaded with sufficient particularity under the heightened standard.

Bakery & Confectionary Union & Ind. Int’l Pension Fund v. Just Born II Inc., 4th Cir. (Agee), Apr. 26, 2018. VLW No. 018-2-081.


Full defendant name may relate back to ‘Kathy’

An amended complaint can relate back to the filing date of a name fragment if the plaintiff knew the defendant’s identity but not her name at the time of the initial pleading, and if all the statutory requirements of Code § 8.01-6 are met.

Frazier v. Red Robin Int’l Inc., Fairfax Cir. Ct. (Oblon), June 1, 2018. VLW No. 018-8-049.)



Civil Rights

No immunity for sexual-assault accuser

In a defamation suit, the defendant had initiated proceedings against the plaintiff at their university for sexual assault. At the motion-to-dismiss stage, she was not entitled to immunity from suit for her statements about the plaintiff during the university’s proceedings, although the issue could be revisited at a later stage.

Doe v. Roe, EDVA (Ellis), Jan. 31, 2018. VLW No. 018-3-027.


Strip-search of visitor to prison was reasonable

Where prison officials had a tip that a prisoner was smuggling contraband into the prison and a visitor’s gestures and mannerisms were nervous, a strip-search of the visitor was reasonable.

Calloway v. Brown, Sept. 10, 2018. WDVA (Dillon). VLW No. 18-3-374.


Obscene gesture at officer no grounds for stop

A plaintiff can proceed to trial on his claim under 42 U.S.C. § 1983 that a sher¬iff’s deputy initiated a traffic stop without probable cause. The deputy’s explanation that the plaintiff made a concerning ges¬ture was not constitutionally sufficient.

Clark v. Coleman, Aug. 14, 2018. WDVA (Kiser). VLW No. 018-3-339.


School board could be liable for janitor’s abuse

A jury should decide whether Russell County Public Schools is responsible for sustained abuse of its students, perpetrated by an elementary-school custodian. However, two former principles who supervised the custodian during the period of abuse were entitled to qualified immunity.

Doe v. Russell Cty. Sch. Bd., Case No. 1:16cv45, Feb. 13, 2018; WDVA at Abingdon (Jones). VLW No. 018-3-052


Prior indecent exposure not per se threat to safety

An apartment management company could not categorically deny tenancy to an applicant with a prior conviction for indecent exposure. The incident stemmed from a period where he was not on medication for a mental-health condition, but there was no evidence that those circumstances persisted.

Simmons v. T.M. Assocs. Mgm’t Inc., WDVA (Moon), Feb. 14, 2018. VLW No. 018-3-053.


Appellate fee-shifting reversed in gerrymander case

Following a 2012 challenge to Virginia’s district lines, members of Virginia’s U.S. Congressional delegation who intervened and drove extensive appellate litigation in the case were not liable for any of the prevailing plaintiffs’ $1.35 million in attorneys’ fees. Appellate fees also were not shifted to the Commonwealth, which had chosen not to join in appealing the adverse rulings.

Brat v. Personhuballah, 4th Cir. (Niemeyer), Feb. 26, 2018. VLW No. 018-2-038.


Racial stats needed more specificity, expert analysis

Plaintiffs who sued a police officer for discriminatory traffic stops could not prove their selective-enforcement claim with statistics that failed to establish true comparator groups. The proffered statistical evidence also did not incorporate interracial base rates for committing the offenses at issue.

Hubbard v. Holmes, WDVA (Moon), Apr. 20, 2018. VLW No. 018-3-154.


Disability, equal protection claims against VBBE dismissed

A law student who was denied testing accommodations by the Virginia Board of Bar Examiners should have sought state-court review  to challenge the determination. The Board was also immune from the student’s disability claims, and his allegations were insufficient to state a Fourteenth Amendment claim.

Oliver v. Va. Bd. of Bar Examiners, EDVA (Hudson), Apr. 26, 2018. VLW No. 018-3-166.


Title IX prohibits transgender discrimination

Gavin Grimm, who attended a Virginia public high school and was prohibited from using the boys’ bathroom because he was identified as female at birth, sufficiently alleged discrimination claims against the school under both Title IX and the Equal Protection Clause.

Grimm v. Gloucester Cnty. Sch. Bd., EDVA (Allen), May 22, 2018. VLW No. 018-3-210.


No error in rejected district ‘compactness’ analysis

The circuit court did not err in finding Virginia’s General Assembly districts to be constitutionally valid. The plaintiffs alleged that they were drawn in violation of Virginia’s constitutional compactness requirement, but the parties’ expert testimony demonstrated that reasonable minds could disagree as to whether the districts are sufficiently compact.

Vesilind v. Va. St. Bd. of Elections, SCV (Goodwyn), May 31, 2018. VLW No. 018-6-040.


State house districts must be redrawn

Racial considerations predominated over traditional districting factors in the construction of 11 Virginia House of Delegates districts, first drawn in 2011 and subject to sustained challenge in the years since. The use of race, including the application of a black-voter threshold, was not narrowly tailored to achieve the interest of complying with the Voting Rights Act. Thus, the current district lines are unconstitutional and must be redrawn by October 30, 2018. (Appeal noticed.)

Bethune-Hill v. Va. St. Bd. of Elections, EDVA (panel), June 26, 2018. VLW No. 018-3-262.




‘Hate group’ designation not commercial speech

A philanthropy guide’s publication of the Southern Poverty Law Center’s “hate group” designation for Plaintiff Liberty Counsel is not grounds for liability under the Lanham Act.

Liberty Counsel Inc. v. GuideStar USA Inc., EDVA (Jackson), Jan. 23, 2018. VLW No. 018-3-018.




Robber’s show-up identification was proper

A “show-up” identification did not violate a robbery suspect’s rights under the circumstances. Police presented him separately to the victims, did not encourage them to make a positive identification, and did not inform them that their stolen items were found on the suspect’s person.

Scott v. Commonwealth, CAV (Humphreys), Jan. 30, 2018. VLW 018-7-022.


Computer use satisfies interstate commerce nexus

Convictions arising from child pornography files were affirmed. The government didn’t prove the files were shared interstate, but did prove they were received on a computer that had been moved between states (and between countries). Congress has the authority to criminalize the intrastate receipt of child pornography based on the movement of a computer in interstate commerce.

United States v. Miltier, 4th Cir. (Floyd), Feb. 7, 2018. VLW 018-2-021.


‘Habitual drunkard’ interdiction laws upheld

Virginia’s civil interdiction process, which can impose criminal penalties for consumption or purchase of alcohol, was held not to violate the Eighth Amendment.

Manning v. Caldwell, Aug. 9, 2018. 4th Cir. (Wilkinson), from WDVA (Conrad). VLW No. 018- 2-174.


Fairfax’s red-light cameras survive constitutional challenges

A vehicle owner served with notice of a no-stop right-turn violation, captured by red-light cameras, couldn’t show violations of her due-process or equal-protection rights.

City of Fairfax v. Cooper, July 10, 2018. Fairfax Cir. Ct. (Bellows), VLW No. 018-8-066.


Fired county employee’s First Amendment claim is triable

Bedford County’s former Director of Tourism can try his claim that he was fired in retaliation for supporting censure of county supervisors who voted to raise taxes.

Craig v. Bedford County, June 26, 2018, WDVA (Moon). VLW No. 018-3-267.


Second trial wasn’t double jeopardy, didn’t preclude issues

A defendant who agrees to have the charges against him considered in separate trials cannot later argue that the second trial offends the Fifth Amendment.

Currier v. Virginia, June 22, 2018. U.S.S.Ct. (Gorsuch), from SCV (per curiam). VLW No. 018-1-002.


Expression not chilled by school’s initial inquiry

A university did not restrict or chill stu¬dents’ speech by seeking their response to complaints that they had harassed oth¬ers. The students, who’d sought and ob¬tained university approval for a campus “Free Speech Event,” met with an official to discuss allegations of sexism and rac¬ism at the event. After the meeting, the University concluded no further action was warranted.

Abbott v. Pastides, Aug. 16, 2018. 4th Cir. (Harris), from DSC (Seymour). VLW No. 018-2-175.


Federal hate-crime law unconstitutional as applied

An Amazon warehouse employee beat up a coworker due to his sexual orientation, but the act didn’t substantially affect interstate commerce.

United States v. Hill, Aug. 15, 2018. EDVA (Gib¬ney). VLW No. 018-3-041.


Miranda warning written in Spanish was effective

A Spanish-speaking defendant knowingly and voluntarily waived his Miranda rights after he reviewed and read back the warning in Spanish and confirmed he understood.

Tirado v. Commonwealth, Aug. 9, 2018. SCV (Goodwyn), from CAV. VLW No. 018-6-059.


Solitary confinement was cruel and unusual

Virginia’s Department of Corrections was enjoined from reverting back to solitary-confinement conditions for death-row inmates. Such conditions violate the Eighth Amendment. As courts and corrections officers across the country have begun to recognize, the years-long isolation that the pre-2015 conditions of confinement forced on the plaintiffs created a significant risk of substantial psychological and emotional harm. And the Defendants’ policies demonstrate their full awareness of this harm.

Porter v. Clarke, EDVA (Brinkema). VLW No. 018-3-059.


Agency head has qualified, not absolute, immunity

The former head of the Virginia Department of Behavioral Health, sued in her personal capacity for failure to manage patient intake at state mental health hospitals, was entitled to qualified immunity because prisons are not per se unable to safely care for mentally ill inmates.

Adams v. Ferguson, 4th Cir. (Motz), Mar. 6, 2018. VLW No. 018-2-043.


Continuing ‘indifference’ extends limitations period

When inmates sue under 42 U.S.C. § 1983 for prison officials’ disregard of a serious and ongoing medical need, the statute of limitations does not begin to run until the date, if any, on which adequate treatment is provided. Here, certain named defendants responded to the plaintiff’s first suicide attempt in prison, an event that plainly put officials on notice that he required attention for ongoing serious mental health conditions that posed a substantial risk to him.

DePaola v. Clarke, 4th Cir. (Keenan), Mar. 9, 2018. VLW No. 018-2-046.


Police threats implied custody, triggered Miranda

A drug-trafficking defendant’s conversation with police officers was custodial when police repeatedly implied that they would arrest him that day if he didn’t become an informant; they specifically implied that an arrest would cause him to lose his job. Because these threats constituted a custodial interrogation without Miranda warnings, none of the defendant’s statements could be used against him.

United States v. Blakey, EDVA (Payne), Mar. 14, 2018. VLW No. 018-3-078.


Challenge to Republican member sanctions dismissed

Members of the Republican Party of Virginia who asserted that the Party violated their constitutional rights by restricting their right to vote in party nomination proceedings did not state any viable federal claim. Thus, the court lacked subject-matter jurisdiction.

Marts v. Republican Party of Va. Inc., WDVA (Dillon), Mar. 31, 2018. VLW No. 018-3-125.


State law targeting drug prices struck down

By effectively controlling drug prices charged in other states, Maryland’s new law targeting pharmaceutical price-gouging violates the dormant Commerce Clause. A state law may not have the practical effect of establishing a pricing scale for use in other states, and it is invalid if it directly controls commerce occurring wholly outside the state’s boundaries.

Unlike a Virginia law upheld in Star Sci. Inc. v. Beales, 278 F.3d 339 (4th Cir. 2002), the Maryland statute’s plain language allows the state to enforce the Act against parties to a transaction that did not result in a single pill being shipped to Maryland.

Ass’n for Accessible Medicines v. Frosh, 4th Cir. (Thacker), Apr. 13, 2018. VLW No. 018-2-073.



Consumer Protection

Law firm’s time-barred debt action is triable

A law firm that sued to collect a debt owed to its client could be found liable for a violation of the Fair Debt Collection Practices Act because the action was time-barred. The law firm’s assertion of the FDCPA’s bona fide error defense presented genuine issues of fact for jury determination.

Masters v. Harrison & Johnston PLC, WDVA (Urbanski), Feb. 20, 2018. VLW No. 018-3-057.


Dish Network’s credit inquiry could be FCRA violation

A shopper who contacted Dish merely to compare TV packages did not give the company a “permissible purpose” to seek his credit history.

Miller v. Dish Network LLC, Aug. 1, 2018. EDVA (Payne). VLW No. 018-3-318.


Wrong burial plot purchase caused by mistake, not fraud

Interment rights are subject to Virginia’s Consumer Protection Act, but evidence didn’t show that a cemetery misrepresented the location of burial plots it sold.

Childers v. Woodlawn Funeral & Cre¬matory, July 31, 2018. Norfolk Cir. Ct. (Lannetti). VLW No. 018-8-070.


Law firm did not violate Fair Debt Act

Where a law firm took no steps to advance litigation during debt verification, it did not violate the Fair Debt Collection Practices Act.

Post v. Hodges Law Office PLLC, Nov. 9, 2018. EDVA (Gibney). VLW 018-3-486.


Management company for HOA not a ‘debt collector’

While a management company mailed delinquency notices for a homeowners’ association, its debt-collection activity was incidental to its obligations, and is thus exempted as a debt collector under the Fair Debt Collection Practices Act.

Yergovich v. Small Community Spe¬cialists LLC, Sept. 11, 2018. EDVA (Ellis). VLW 018-3-383.


Free-offer fax was unsolicited ad under TCPA

The district court lacked jurisdiction to consider the validity of a Federal Communications Commission rule regarding unsolicited faxes. Thus, it erred in concluding that the rule applied only to faxes with a facially commercial aim.

Carlton & Harris Chiropractic Inc. v. PDR Network LLC, 4th Cir. (Diaz), Feb. 23, 2018. VLW No. 018-2-036.


Federal contractor was immune from TCPA claim

A U.S. Department of Health & Human Services contractor that used an auto-dialer to send pre-recorded messages about the availability of health insurance enjoyed derivative sovereign immunity for what may have otherwise been a TCPA violation.

Cunningham v. Gen. Dynamics Info. Tech. Inc., 4th Cir. (Floyd), Apr. 24, 2018. VLW No. 018-2-079.




Jury waiver enforceable even if contract isn’t

A jury waiver was enforceable even in an agreement alleged to be fraudulently induced because the challenging party did not allege that the waiver provision itself was procured by fraud.

A similar question of whether a claim of fraud in the inducement of the entire contract also invalidated its arbitration clause arose in Prima Paint Corp. v. Flood & Conklin Mf’g Co., 388 U.S. 395 (1967). As in that case, the defendants’ claim of fraud in the inducement does not specifically implicate the clause under consideration here. Thus, the waiver is separable from the contract in which it is embedded.

HZ Retail LLC v. Mohammed, Fairfax Cir. Ct. (White), Jan. 31, 2018. VLW No. 018-8-010.


Jury must decide if conduct waived non-waiver clause

In a pipeline-construction contract dispute, a jury could find that a party waived its promptness and non-waiver rights by accepting late performance.

Precision Pipeline LLC v. Dominion Transmission Inc., Aug. 7, 2018. EDVA (Gibney). VLW No. 018-3-330.
Satisfaction of loan doesn’t end lawsuit

Although the defendants paid the amount required under a contract, the payment did not moot a lawsuit because defendants’ conduct exposed plaintiff to damages.

Beatley v. Ayers, Nov. 16, 2018. EDVA (Gibney).VLW 018-3-504.


Acceptance of settlement offer created binding contract

A defendant is obligated to pay a settlement because a question raised by plaintiffs after they accepted the defendant’s offer was not a new term.

Meyer v. Wells, Oct. 11, 2018. Roanoke Cir. Ct. (Dorsey). VLW No. 018-8-092.


Company can seek to enforce noncompete agreement

A training company showed it was likely to prevail on its claim that a former employee, who went to work for one of its clients, breached a restrictive covenant, and is entitled to injunctive relief.

Techint Solutions Group LLC v. Sas¬nett, Sept. 27, 2018. WDVA (Dillon). VLW No. 018-3-421.


Broker’s bid for fee fails

Because the sale of real property took place after the listing period and the contract was materially different from the first agreement, a broker did not get a fee.

J&R Enterprises v. Ware Creek Real Estate Corp., Oct. 4, 2018. SCV from New Kent Cir. Ct. VLW No. 018-6-071.


Fee-shifting clause in contract was struck

A school’s enrollment contract requiring parents to pay the school’s fees and costs in any litigation, regardless of which side prevails, is unenforceable.

McIntosh vs. Flint Hill School, Sept. 17, 2018. Fairfax Cir. (Bernhard). VLW No. 018- 8-083.


Church merger raised issues of contract, not religion

Resolution of a merger dispute between two churches centered on their agreement, not ecclesiastical questions, so courts had jurisdiction to decide the case.

Pure Presbyterian Church of Wa. v. The Grace of God Presbyterian Church, Aug. 16, 2018. SCV (McCullough), from Fairfax (Gardiner). VLW No. 018-6-061.


Pay dispute properly dismissed for not mediating

A contract employee who never requested mediation of his pay claim failed to satisfy a condition precedent for bringing suit. Dismissal with prejudice was appropriate.

Primov v. Serco Inc., Aug. 23, 2018. SCV (Goodwyn), from Fairfax Cir. Ct. (White). VLW No. 018-6-062.


Court could hear U.S. contractor suit against Korea

In a contract with the Republic of Korea, the use of “shall” in the forum selection clause (naming Korean courts) does not render it mandatory. “Shall,” in context, may permit jurisdiction in one court but not prohibit jurisdiction in another. Korea also waived immunity by participating in litigation for over a year without giving any indication that it asserted sovereign immunity. Finally, enforcement of the agreement here would subvert the foreign-military-sales structure and congressional directives as to all such transactions.

BAE Sys. Tech. Solution & Servs. v. Republic of Korea, 4th Cir. (Motz), Mar. 6, 2018. VLW No. 018-2-042.


Ambiguous terms required extrinsic evidence analysis

A media company had the right to terminate its distribution agreement when the distributor sent Discovery Channel programming over the “open internet.” Extrinsic evidence weighed strongly against the distributor’s contention that the contract allowed this distribution method.

Sky Angel U.S. LLC v. Discovery Commc’ns LLC, 4th Cir. (Diaz), Mar. 15, 2018. VLW No. 018-2-055.


UIM policy didn’t apply to rental truck incident

After an underinsured motorist caused death and injury to two of the insured’s contractors, limitations in the UIM policy’s declarations page were dispositive in determining whether the contractors’ vehicle was covered.

The generic UIM endorsement was solely the creation of the Virginia State Corporation Commission, which requires the endorsement for every motor vehicle policy issued in Virginia. It would be illogical to penalize an insurance company for using a form it is required to use by law, especially when the highest court of the state has directly held that an insurance company may limit the vehicles that are subject to UIM coverage under the required endorsement.

Levine v. Emp’rs Ins. Co. of Wausau, 4th Cir. (Agee), Apr. 12, 2018. VLW No. 018-2-071.


15-year lease without seal was unenforceable

A long-term commercial lease with neither a common-law seal nor statutory seal substitutes was effectively month-to-month after a five-year term. The trial court erred in focusing on “substance not form” to enforce the 15-year term stated in the lease.

The Game Place LLC v. Fredericksburg 35 LLC, SCV (Kelsey), May 10, 2018. VLW No. 018-6-035.


Lack of signature didn’t shorten limitations period

The material terms of the parties’ contract for services were committed to writing in daily sales tickets and an invoice for hours of work performed. Absent additional conditions agreed upon by the parties, these terms constitute a written contract even if no signature is evident. Thus, the limitations period for enforcement is five years, not three years.

M&C Hauling & Constr. Inc. v. Wilbur Hale, Fairfax Cir. Ct. (White), June 28, 2018. VLW No. 018-8-059.





Company could be liable for employee fraud

Although the plaintiffs did not state a securities claim against any individual corporate officers, false statements by a company’s lower-level employees could be attributed to the company itself if employees made those statements with the intent to provide false information to investors.

The complaint specifically alleges that lower-level employees acted with the requisite fraudulent intent when they furnished false information on contract cost overruns and profit rates to corporate officers for inclusion in SEC filings and other public reports. These facts warrant a strong inference of scienter with respect to the lower-level employees.

Knurr v. Orbital ATK Inc., EDVA (Ellis), Mar. 2, 2018. VLW No. 018-3-064.


LLCs liable for owner’s debts

Because Delaware law likely would allow creditors to reach limited liability companies’ assets under the theory of reverse veil-piercing, a debtor’s companies – which owned and managed his personal assets and in which he was the sole owner – could be held jointly liable for a judgment entered against him.

Sky Cable LLC v. DIRECTV Inc., 4th Cir. (Keenan), Mar. 28, 2018. VLW No. 018-2-062.


Officers personally liable for $1.2M in business loans

Notwithstanding his claims that bank representatives misled him, the president of a Richmond-based energy company signed loan agreements and guarantees that clearly stated his personal liability for his company’s obligations.

PNC Bank N.A. v. Dominion Energy Mgm’t Inc., EDVA (Novak), Apr. 12, 2018. VLW No. 018-3-143.





Despite conviction vacatur, civil commitment stands

Under the Adam Walsh Child Protection & Safety Act, the appellant’s civil commitment – which was based on his confinement for a prior offense – was not voided by vacatur of his sentence for that prior offense.

United States v. Welsh, 4th Cir. (Diaz), Jan. 12, 2018. VLW 018-2-005.


Failure to produce documents leads to mistrial

The government disclosed that it failed to produce up to 32,000 documents, but the court declared a mistrial instead of dismissing the indictment, finding the failure inadvertent.

United States v. Wilson, Nov. 14, 2018. EDVA (O’Grady). VLW 018-3-511.


Challenge to admission of Facebook posts waived

Although the trial court may have erred in admitting the defendant’s Facebook posts during the sentencing phase of his murder trial, the defendant’s failure to present the precise arguments to the court foreclosed his ability to raise the issue on appeal.

McInnis v. Commonwealth, Dec. 4, 2018. CAV (Petty) from Virginia Beach Cir. Ct. (Shockley). VLW No. 018-7-312.


Racial comments don’t overcome no-impeachment rule for jurors

An African-American defen¬dant who was convicted of drug and firearm charges may not interview the convicting jurors for signs of racial animus, de¬spite a juror’s statement that his peer expressed racial prejudice during deliberations.

United States v. Birchette, Nov. 7, 2018. 4th Cir. (Wilkin¬son), from EDVA (Allen). VLW No. 018-2-203.


Problems with proof, intent sink conviction

Where the commonwealth failed to prove the date of a video of the defendant at an ABC store and failed to prove that he had the intent to steal, the conviction is reversed.

Wright v. Commonwealth, Oct. 30, 2018. CAV (Beales) from Franklin Cir. Ct. (Perdue). VLW No. 018-7-279.


Insurance payout supported restitution order

Although the judge entered a general finding that the defendant stole jewelry and silver, the payout by the insurance company was sufficient to support a $58,000 restitution award.

Lewis v. Commonwealth, Oct. 16, 2018. CAV (Russell) from Richmond Cir. Ct. (Jenkins). VLW No. 018-7-256.


Lawyer disqualified for potential conflict

In a tax fraud case, the court granted a motion to disqualify where a lawyer represented a government witness in an unrelated investigation.

United States v. Delaven, Nov. 13, 2018. EDVA (Jackson). VLW 018-3-487.


Guilty plea stands, despite claim about medication

Although a defendant claimed he took medications that caused him confusion
the day of his guilty plea, he cannot withdraw his plea for failure to show any overdose.

Commonwealth v. Foster, Nov. 16, 2018. Norfolk Cir. Ct. (Lannetti). VLW No. 018-8-100.


Jury verdict against home invader affirmed

A circuit judge correctly denied the effort of defendant, who was involved in a violent home invasion of the managing partner of his wife’s former firm, to argue he was suffering from “a medication induced delirium.”

Schmuhl v. Commonwealth,Sept. 11, 2018. CAV (Beales), from Fairfax Cir. Ct. (Bellows). VLW No. 018-7-229.


Defendants can plead guilty to crimes they didn’t commit

Even if he factually did not commit a charged offense, a criminal defendant may plead guilty to avoid potential conviction of a more serious crime or imposition of a worse sentence. Courts.

Commonwealth v. Ayala, July 20, 2018. Fairfax Cir.Ct. (Oblon). VLW No. 018-8-068.


Victim statement admitted to show link between offenses

A sentencing court properly considered the victim’s testimony about the defendant’s prior offenses, showing the escalation of his death threats against her and her family.

Baldwin v. Commonwealth, July 17, 2018. CAV (Petty), from Fairfax Cir. Ct. (Bellows). VLW No. 018-7-181.


DWI doesn’t require starting car engine

A defendant who sat in the driver’s seat of her vehicle and rotated the key in the ignition to roll up the windows was “operating” the vehicle while intoxicated.

Commonwealth v. Reid, July 17, 2018. Norfolk Cir. Ct. (Lannetti).VLW No. 018-8-069.


Ex parte hearing granted, but before different judge

An indigent defendant face life sentences for rape and related offenses can argue ex parte why he requires expert assistance, but not to the presiding judge.

Commonwealth v. Stockton, June 28, 2018, Roanoke City Cir. Ct. (Carson). VLW No. 018-8-056.


Firing shots inside occupied vehicle backs conviction

Although defendant argued that since he was inside the car when he shot its occupant, he could not be guilty of firing shots “at” an occupied vehicle, this contention was contrary to the straightforward meaning of the word “at” and his conviction was affirmed.

Jones v. Commonwealth, Dec. 6, 2018. SCV (McCullough) from CAV. VLW No. 018-6-086.


Inconsistent verdict in murder trial upheld

Although a jury acquitted the defendant of murder, it could convict him of using a firearm in the commission of a murder where the evidence supported that charge.

Bolar v. Commonwealth, Nov. 27, 2018. CAV (Decker)from Alex. Cir. Ct. (Kemler). VLW No. 018-7-307.


No bail for murder defendant

The circuit court abused its discretion by applying the doctrine of presumed innocence to a pre-trial hearing. By virtue of being indicted for first-degree murder, the defendant is presumed to be an unreasonable danger to himself or the public, and a flight risk.

The circuit court also abused its discretion by speculating that Duse was “unlikely” to abscond because of his age. Given his apparent ownership of a home in the Philippines and the specter of a murder conviction, the defendant has every incentive, along with the means, to flee prosecution.

The circuit court’s order granting pre-trial bail is vacated.

Commonwealth v. Duse, SCV (per curiam), Feb. 12, 2018. VLW No. 018-6-003.


Breath test ‘unavailable’ en route to hospital

Use of a blood test to determine the defendant’s blood alcohol content without a warrant was justified under Virginia’s implied-consent law, under circumstances where administering the breath test would have delayed the defendant’s medical care.

Aloudah v. Commonwealth, CAV (Huff), Feb. 13, 2018. VLW No. 018-7-028.


Murder conviction upheld despite jury issues

Although the defendant sought to have his murder conviction set aside based on problems with the jury, the circuit court’s resolution of those issues was proper.

During the second day of jury deliberations, a juror told the bailiff “through tears” that “she’s being bullied.” After the jury returned its verdict, the trial court polled the jury, instructing each juror to answer “yes” or “no” to the verdict that had just been read. Every juror responded “yes.” Based on the circuit court’s response to the issue, the defendant has not demonstrated a probability of prejudice necessitating a mistrial.

Bethea v. Commonwealth, CAV (Decker), Feb. 20, 2018. VLW No. 018-7-034.


Constructive amendment requires acquittal

Following his trial and conviction by jury, a deportee was acquitted for forcibly resisting Immigration & Customs Enforcement officers after the government offered evidence of forcible resistance only to Customs & Border Patrol officers.

It does not matter that the government could have charged the defendant with a violation under 18 U.S.C. § 111(a) by alleging generally in the indictment that he resisted federal officers. The indictment specified that he was being charged with resistance against ICE officers, so the defendant was never indicted for his resistance against CBP officers. Yet the jury found him not guilty of forcibly resisting ICE officers, but guilty of forcibly resisting CBP officers.

Therefore, his Fifth Amendment right to be convicted only of offenses submitted to a grand jury was violated.

United States v. Ameyapoh, EDVA (Ellis), Feb. 14, 2018. VLW No. 018-3-054.


Felony-arrest records to be expunged

A recent college graduate sought to expunge records related to her 2014 arrest. After drinking to excess, she was charged with assault and battery of a law-enforcement officer. By relying primarily on the facts underlying the arrest and not additional statutory considerations, the circuit court abused its discretion in denying expungement.

A.R.A. v. Commonwealth, SCV (McCullough), Mar. 1, 2018. VLW No. 018-6-011.


1978 conviction vacated for actual innocence

This case presents the court’s first opportunity to address the effect of 2013 changes to Virginia’s actual-innocence statutes.

By changing “could” to “would,” the General Assembly fundamentally changed the nature of the court’s inquiry in actual-innocence cases, shifting the focus from the jury’s raw ability to convict to its volition to convict. Thus, the court is required to look beyond whether the evidence is sufficient to sustain the conviction and must now also examine the likelihood of a reasonable juror finding the petitioner guilty beyond a reasonable doubt, once all of the evidence has been fairly considered.

Consistent with this standard, the petitioner’s evidence establishes such a high probability of acquittal that the court is reasonably certain that no rational person would have found him guilty.

In re Watford, SCV (Powell), Mar. 1, 2018. VLW No. 018-6-015.


Front-yard noose display was in a ‘public place’

A black mannequin hanging from a noose in the defendant’s front yard was in a “public place” because it was clearly visible from a public road.

Turner v. Commonwealth, SCV (McClanahan), Mar. 1, 2018. VLW No. 018-6-013.


Houses were seizable assets, traceable to crimes

In a prosecution for mail and wire fraud, money-laundering conspiracy, and identity theft, the government properly seized the defendant’s two homes, having probable cause to believe those assets will ultimately be proved at trial to be forfeitable as tainted by the underlying crimes.

United States v. Miller, EDVA (Ellis), Mar. 8, 2018. VLW No. 018-3-070.


 ‘Hobson’s choice’ didn’t violate speedy-trial right

Despite numerous “egregious” discovery failures by the Commonwealth resulting in the defendant having to choose between a speedy trial and the evidence to which he was entitled, the trial court committed no error in finding that the Commonwealth didn’t act in bad faith and continuing the trial to a date past the speedy-trial deadline.

Young v. Commonwealth, CAV (Alston), Mar. 20, 2018. VLW No. 018-7-068.


Jury should have been asked about jail-attire bias

A defendant who, at the request of the Commonwealth, appeared for his trial in jail attire and shackles should have been permitted to ask the jury during voir dire if his attire biased them. Not allowing the question was reversible error.

Munford v. Commonwealth, CAV (Petty) (unpublished), Mar. 27, 2018. VLW No. 018-7-073.


Conviction upheld for leaving kindergartener home alone

A doctor’s conviction for felony child neglect was affirmed based on findings that he left his five-year-old child home alone, knowing that the child had a history of unruly behavior and wandering off when not properly supervised.

Gibbs v. Commonwealth, CAV (Beales) (unpublished), Apr. 3, 2018. VLW No. 018-7-082.


New test established to invoke sentencing relief

An appellant seeking habeas relief under 28 U.S.C. § 2255 satisfied the requirements of the law’s savings clause because a retroactive change in 4th Circuit law – occurring after the time for direct appeal and the filing of his first § 2255 motion – rendered his applicable mandatory minimum unduly increased, resulting in a fundamental defect in his sentence.

United States v. Wheeler, 4th Cir. (Thacker), Mar. 28, 2018. VLW No. 018-2-064.


Evidence proved possession of ‘orphan’ computer files

The Commonwealth’s evidence was sufficient to prove that the defendant “possessed” files containing images of child pornography, even if the images were “orphan” remnants of deletion from the computer’s file directory.

Christy v. Commonwealth, CAV (Malveaux) (unpublished), Apr. 10, 2018. VLW No. 018-7-089.


No vacatur, despite joint motion and faulty warrant

A circuit court did not err in denying a joint motion to vacate a defendant’s conviction. The Commonwealth had sought several vacaturs after discovering that a Richmond detective misrepresented facts in support of the search warrants he sought.

Although the parties agreed that the affidavits in support of the search warrants contained fraudulent information, the trial court declined to find that the affidavit in the defendant’s case was actually false. This finding was neither plainly wrong nor without evidence to support it.

Terry v. Commonwealth, SCV (per curiam) (unpublished), Apr. 5, 2018. VLW No. 018-6-026.


Accident no defense to firearm discharge offense

A woman who accidentally fired into her first-floor hotel room was culpable under Virginia’s unlawful discharge statute. Law enforcement had just persuaded her not to commit suicide, but her gun went off as she was putting it down.

Bryant v. Commonwealth, SCV (Russell), Apr. 5, 2018. VLW No. 018-6-022.


With pedophilia diagnosis rejected, commitment ends

The district court did not err in finding that a developmentally disabled individual, civilly committed as a sexually violent predator, no longer met the criteria for continued commitment and must be released.

In this case, the district court was presented with two plausible theories of the case, both of which were supported by facially credible expert evidence. Its findings are a permissible and reasonable interpretation of the evidence.

United States v. Wooden, 4th Cir. (Traxler), Apr. 10, 2018. VLW No. 018-2-068.


Emotional manipulation forfeited right to confrontation

By repeatedly violating a no-contact order to guilt his partner into refusing to testify against him, a domestic-abuse defendant forfeited his Sixth Amendment right to exclude her testimonial hearsay statements to law enforcement.

Cody v. Commonwealth, CAV (Humphreys), Apr. 17, 2018. VLW No. 018-7-090.


Habeas petitioner shows ineffective assistance, goes free

A defendant convicted of second-degree murder, malicious wounding, and two counts of using a firearm in the commission of a felony showed that his trial counsel never conveyed a favorable plea deal that had been offered by the Commonwealth, despite swearing under oath that he had done so.

Belmar v. Clarke, EDVA (Payne), Mar. 30, 2018. VLW No. 018-3-121.


Trial court adequately investigated juror contact

Although security footage showed a juror talking with a member of the public who was later seen hugging the mother of the murder victim in the juror’s case, the trial court didn’t err in accepting the juror’s statement that they didn’t discuss the case.

Rankin v. Commonwealth, CAV (Decker), Apr. 24, 2018. VLW No. 018-7-103.


Nolle prosequi extinguishes GDC jurisdiction

A general district court’s grant of nolle prosequi was a final order that immediately divested it of jurisdiction. Thus, its subsequent actions of prompting the prosecutor to reconsider nolle prosequi, and then reversing its prior grant, were an abuse of discretion.

Commonwealth v. Darab, Fairfax Cir. Ct. (Bernhard), May 2, 2018. VLW No. 018-8-042.


Restitution improper for losses outside conviction

The circuit court erred in ordering a defendant to pay the total value of the victim’s stolen items, which were reported as a handgun, a flat-screen TV, two watches, and an Xbox system. The television was the only item found in the defendant’s possession, and he pleaded guilty to receiving stolen goods. One of the elements of that offense is that goods or other things were previously stolen by some other person.

Ellis v. Commonwealth, CAV (Petty) (unpublished), May 8, 2018. VLW No. 018-7-119.


DUI exposed children to ‘probable’ risk of injury

A mother’s conviction for felony child neglect was supported by evidence that she was driving with a blood alcohol concentration that was triple the legal limit, with her children in the car.

Camp v. Commonwealth, CAV (Russell), May 8, 2018. VLW No. 018-7-120.


‘Reasonable reliance’ defense applied to court order

A jury should have been allowed to consider whether it was reasonable for the defendant, charged with possessing a firearm while subject to a protective order, to believe that a juvenile and domestic relations court had dissolved the order.

Davis v. Commonwealth, CAV (O’Brien), May 15, 2018. VLW No. 018-7-126.


Commutation mooted challenge to initial sentence

A defendant initially sentenced to six life terms for non-homicide offenses received a partial pardon  from Virginia’s then-governor. The pardon mooted the defendant’s constitutional challenge to his initial sentence, and the district court erred in ruling on it.

Blount v. Clarke, 4th Cir. (Niemeyer), May 15, 2018. VLW No. 018-2-096.


Conviction affirmed for murder of state trooper

The trial court did not err in partially denying the defendant’s request for grand jury information, declining to change the trial venue despite widespread publicity of the crime, conducting six days of voir dire, or accepting the jury’s rejection of the defendant’s insanity defense.

Brown v. Commonwealth, CAV (Huff), May 22, 2018. VLW No. 018-7-131.


Real perpetrator’s confession supports actual innocence

The court granted two petitions for writs of actual innocence, based on another person’s confession to both robberies for which the petitioner was convicted.

There was no evidence suggesting that the confession was coerced or pressured by another individual or law enforcement or otherwise unreliable in any way, making it more likely to be “true.” The confessor also provided details about the robberies that indicated he was the true perpetrator.

Bush v. Commonwealth, CAV (per curiam), May 22, 2018. VLW No. 018-7-130.


Venue for ‘false report’ trial is county where harm occurred

A defendant on trial for falsely reporting sexual abuse to law enforcement could be tried either in the jurisdiction she was in when she made the report, if known, or in the jurisdiction to which she made the report and caused expenditure of scarce law enforcement resources.

McGuire v. Commonwealth, CAV (Chafin), May 22, 2018. VLW No. 018-7-132.


Child porn prosecution too reliant on propensity

The government relied almost entirely on propensity evidence to support charges of receipt and distribution of child pornography, without reasonably connecting such evidence to actual photos and videos found on the defendant’s computer. A judgment of acquittal, or alternatively a new trial, was merited.

United States v. Dillingham, EDVA (Trenga), May 29, 2018. VLW No. 018-3-217.


No need to prove knowledge of each drug in mixture

To obtain two possession convictions, the Commonwealth didn’t need to prove that the defendant knowingly and intentionally possessed two different controlled substances (heroin and fentanyl) when both substances were contained within a single capsule that appeared visually uniform.

Howard v. Commonwealth, CAV (Beales) (unpublished), June 5, 2018. VLW No. 018-7-146.


Second trial didn’t violate Double Jeopardy

A Virginia defendant who agrees to have the charges against him considered in two trials cannot later argue successfully that the second trial violates the Fifth Amendment. Moreover, the defendant’s acquittal at the first trial does not have preclusive effect as to facts to be proved at the second trial.

Currier v. Virginia, SCOTUS (Gorsuch), June 22, 2018. VLW No. 018-1-002.


Failure to raise merger issue was ineffective assistance

It was unreasonable for the defendant’s prior appellate counsel not to argue that his money laundering convictions were invalid because of a “merger” issue in the government’s charges. Thus, the district court should not have denied the defendant’s habeas claim based on ineffective assistance of counsel.

United States v. Allmendinger, 4th Cir. (Motz), June 26, 2018. VLW No. 018-2-137.


Special counsel authorized to prosecute Manafort

As set forth in Robert S. Mueller’s Appointment Order from the U.S. Attorney General and in a subsequent memorandum from Acting Attorney General Rod Rosenstein, Mueller’s jurisdiction encompasses prosecution of Donald Trump’s former campaign manager for bank fraud and tax charges that involve connections with pro-Russian actors.

United States v. Manafort, EDVA (Ellis), June 26, 2018. VLW No. 018-3-261.


Ex parte hearing granted, but before different judge

An indigent defendant facing two life sentences for rape and related offenses can argue ex parte why he requires expert assistance to present his defense, in order not to reveal his theory of the case to the prosecution. But he must make his case to a circuit judge other than the one presiding over the case, as is permitted for defendants facing capital punishment.

Commonwealth v. Stockton, Roanoke City Cir. Ct. (Carson), June 28, 2018. VLW No. 018-8-056.




Domestic Relations

Next-door neighbors not cohabiting

An ex-husband’s spousal-support obligations were not extinguished by his former wife’s long-term relationship with a man who moved in next door to her but maintained his own residence.

Gobble v. Gobble, Salem Cir. Ct. (Dorsey), Jan. 23, 2018. VLW 018-8-006.


D.C. hotel stay didn’t constitute marriage

A couple who got a license to marry in Virginia but held their ceremony in Washington, D.C. was not legally mar¬ried, despite living together as husband and wife for nine years. Their one-night hotel stay in D.C. after the ceremony and reception didn’t create a D.C. com¬mon-law marriage.

Porter v. Porter, Aug. 14, 2018. CAV (Annunziata), from Fairfax Cir. (Bellows). VLW No. 018-7-208.


After couple reconciled, arrearage for support erased

A husband facing a possible overdue support obligation of up to $190,000 was off the hook; his longterm reconciliation with his wife invalidated her claim for the support arrearage.

Fernandez v. Fernandez, July 1, 2018. Fairfax Cir. Ct. (Bernhard). VLW No. 018-8-061.


Ex-lawyer liable for wife’s attorney’s fees

An attorney who was disbarred for a pattern of frivolous litigation in a custody dispute against his ex-wife is liable for her attorney’s fees.

Barrett v. Minor, Oct. 23, 2018. CAV (Huff) from Bristol Cir.Ct. (Alexander). VLW No. 018-7-267.


Closing costs from house sale not defined as joint debt

Where the parties’ agreements did not designate how closing costs from the sale of marital assets should be treated, the court did not err in allocating closing costs.

Ayers v. Ayers, Oct. 2, 2018. CAV (Atlee), from Fairfax Cir. Ct. (Shannon). VLW No. 018-7-241.


Termination of rights affirmed after lack of challenge

A woman who failed to challenge all the bases for the termination of her parental rights loses on her appeal; the non-challenged points give a reason for affirming the result.

Green v. Halifax Cty. Dep’t of Social Serv., Sept. 18, 2018. CAV (per curiam), from Halifax Cir. Ct. (White).. VLW No. 018-7-230, 6 pp.


Escalator clause in support agreement can back deviation

An escalator clause in a couple’s sup¬port agreement and Social Security money received by the children could be considered as factors to deviate from presumptive support amounts.

Byrne v. Shay, Sept. 6, 2018. Fairfax Cir. (Bernhard). VLW No. 018-8-081.


Baby’s bathtub death supports lost parental rights years later

Involuntary manslaughter supported terminating a father’s rights to five children. The crime related to a sixth child who’d died when her dad’s attention was elsewhere.

King v. King George Dep’t of Soc. Servs., Aug. 21, 2018. CAV (Petty), from King George Cir. Ct. (Hewitt). VLW No. 018-7-216.


Assisted-conception law unconstitutional

Virginia’s assisted-conception statute, which creates a presumption that a gestational mother’s husband is the father of the conceived child, is unconstitutional as written because it provides parental rights to husbands but not wives, the court held.

Appel v. Celia, Fairfax Cir. Ct. (Shannon), Feb. 8, 2018. VLW 018-8-011.


No ‘parent’ status without marriage or adoption

A woman who raised a child with her partner in their shared home for seven years could not be considered the child’s legal parent because she never married her partner, who was the child’s biological mother.

Hawkins v. Grese, CAV (Humphreys), Feb. 13, 2018. VLW No. 018-7-032.


School payments were waste of marital assets

An equitable distribution calculation offset the husband’s share by the amount he independently spent on college tuition for the divorcing couple’s adult son. The husband was unable to overcome the marital presumption attaching to the source account.

Hvozdovic v. McGuire, CAV (Russell) (unpublished), Feb. 27, 2018. VLW No. 018-7-044


Bifurcated divorce decree was final

The court of appeals could review a divorce decree that the circuit court had bifurcated from ongoing litigation of spousal support, equitable distribution, and attorneys’ fees, due to the 90-year-old husband’s failing health.

Friedman v. Smith, CAV (Humphreys), Mar. 20, 2018. VLW No. 018-7-059.


Father must return child to Canada

A mother successfully petitioned for the return of her eight-year-old son. The parents had joint custody in Canada, but the child’s father unilaterally brought him to Roanoke to protect him from the effects of his mother’s extreme drug abuse.

The longstanding involvement of the Canadian court system and child services agencies in the lives of this family merits return of the child to their jurisdiction and care. Equally important is the fact that the father slipped the child across the border in the dead of night, a matter of hours before the Canadian court was to revisit custody issues.

However, where, as here, there is a finding of grave risk, courts may impose a set of enforceable conditions on return, known as undertakings. This case is ripe for such mitigating instructions.

Wertz v. Wertz, WDVA (Urbanski), Mar. 30, 2018. VLW No. 018-3-124.


Father wrongly excluded from adoption proceedings

Denying an incarcerated father’s request for transportation to his child’s adoption hearing, without offering him an alternative means to participate, was an abuse of the trial court’s discretion.

Alvis v. Thornton, CAV (Chafin) (unpublished), Apr. 10, 2018. VLW No. 018-7-087.


Termination of mom’s rights reversed

Evidence didn’t support the circuit court’s ruling that a mother failed to remedy past conditions of child abuse. The record also didn’t support affirmance on the alternate ground of inadequate parenting skills.

Sternberg v. Spotsylvania Cnty. Dep’t of Soc. Servs., CAV (Russell) (unpublished), May 8, 2018. VLW No. 018-7-121.


Pro athlete’s line-of-duty benefits were like pension

For equitable distribution purposes, a retired professional athlete’s line-of-duty disability benefits were correctly evaluated similar to pension benefits under Code § 20-107.3(G), rather than personal injury compensation under subsection (H).

Henderson v. Henderson, CAV (Decker) (unpublished), May 15, 2018. VLW No. 018-7-128.


Spousal support for adulterous spouse upheld

In light of both parties’ respective contributions to the breakdown of their marriage and the wife’s substantially lower economic prospects, an award of spousal support to her was warranted despite her adultery.

Patillo v. Patillo, CAV (AtLee), May 29, 2018. VLW No. 018-7-136.


Implied agreement replaced family support obligations

Despite a support order entered in 2004, a husband didn’t owe arrearages dating back to his last payment in 2006. He’d stopped paying when the couple reconciled, resumed living together as husband and wife, and had two more children. In the meantime, they forgot about the 2004 order. The husband’s support of his family during this time as the sole breadwinner wiped out any arrearages allegedly due based on the old support order.

Fernandez v. Fernandez, Fairfax Cir. Ct. (Bernhard), July 1, 2018. VLW No. 018-8-061.


State House districts’ racial thresholds not narrowly tailored

The House of Delegates redistricting in 2011 used a minority population threshold that was not narrowly tailored to comply with Voting Rights Act requirements.

Bethune-Hill v. Va. St. Bd. of Elections, June 26, 2018. EDVA (panel). VLW No. 018-3-262.





Despite salary schedule, jury could find unequal pay

An employer did not prove its affirmative defenses to pay-discrimination claims so convincingly that a juror would be compelled to accept them. It had the burden to show that its use of a salary schedule was in fact neutral in application. Similarly, while considerations of qualifications, certifications, and employment history could explain the wage disparity, at the summary judgment stage the employer had the burden to demonstrate that such factors did in fact explain the disparity.

The claimants’ prior experience creates an issue of fact for the jury to decide whether the employer in fact objectively weighed the comparators’ qualifications as being more significant than the claimants’ qualifications.

US EEOC v. Md. Ins. Admin., 4th Cir. (Keenan), Jan. 5, 2018. VLW No. 018-2-003.


Small hourly per diem not compensation

A Department of Labor investigator was correct to determine that hourly “per diem” payments were not compensation that could be deducted from back pay owed by the defendant.

The $3 per hour payments were a reasonable approximation of meal and other travel expenses incurred by employees while working at distant job sites, and the defendant is not entitled to a credit for them.

Acosta v. Mountain Masonry Inc., Case No. 1:16cv42, Jan. 2, 2018; WDVA at Abingdon (Jones). VLW 018-3-001.


Lodging-as-wages issue remanded for fact-finding

Where a live-in innkeeper’s employment terms were subject to an agreement, her FLSA claims required thorough fact-finding by the trial court to determine whether the agreement terms were reasonable.

On remand, the district court should consider all pertinent facts such as how many hours the plaintiff presumptively worked each day, including an examination of whether she was “engaged to wait” versus “waiting to be engaged” during the check-in hours specified in the contract. It should also address whether the agreement provides an unreasonably short amount of time to perform the assigned tasks.

Balbed v. Eden Park Guest House LLC, 4th Cir. (Motz), Jan. 25, 2018. VLW 018-2-015.


Occasional calls to employee not FMLA interference

A sensible construction of actionable interference plainly does not include situations where an employee on leave was contacted by her employer or a co-employee for some purpose other than to do work.

Here, most of the calls to the plaintiff either requested basic client information or updated her on occurrences at work. None of her coworkers or supervisors told her that she needed to work while she was on FMLA leave, or even that she needed to respond to emails or calls she received. To the extent that the plaintiff chose to respond to calls or emails, those voluntary actions do not amount to actionable interference by her employer.

Antekeier v. Lab. Corp. of Am., EDVA (Ellis), Feb. 8, 2018. VLW No. 018-3-043.


Jury may consider hostile-work-environment claim

An African-American employee, fired based on her employer’s reasonable belief that she had mishandled company funds, can proceed to trial on her claim of hostile work environment based on both race and sex, despite evidence that she failed to disclose a prior misdemeanor on her professional license application.

Jordan v. Stonemor Partners LP, WDVA (Moon), Feb. 27, 2018. VLW No. 018-3-060.


Contract’s USERRA waiver could be invalid

A veteran waived his right to bring Uniformed Services Employment & Re-employment Rights Act claims against his employer by signing a general release in a severance agreement. However, dismissal would require further inquiry as to how the consideration for this release compared to benefits he would have received absent alleged discrimination.

Tolle v. Pocketsonics Inc., WDVA (Conrad), Mar. 5, 2018. VLW No. 018-3-077.


ADEA claim fails after ‘sham affidavit’ ruling

Defendants were entitled to summary judgment after the court struck the plaintiff’s post-deposition declaration. The court found “egregious” inconsistencies between the declaration and prior deposition testimony.

Moore v. Mt. States Health Alliance, WDVA (Jones), Mar. 12, 2018. VLW No. 018-3-071.


Disabled vet’s disparate-treatment claim is triable

A veteran who later went to work for the U.S. Department of Veterans Affairs, but whose employment was later terminated, presented genuine issues of material fact as to whether she was an individual with a disability and whether the agency’s proffered explanation for firing her was a pretext for disability discrimination.

Patton v. Shulkin, WDVA (Dillon), Mar. 14, 2018. VLW No. 018-3-079.


Willful FLSA violations merit liquidated damages, fees

An employer who admitted awareness of federal requirements but failed to keep time records was liable to its employees for unpaid overtime and unpaid lunch breaks going back three years, plus liquidated damages and attorney fees.

The plaintiffs, respectively, are entitled to $11,939.60 and $35,025.34 in back wages. Pursuant to the Fair Labor Standards Act’s fee-shifting provision, plaintiffs’ counsel spent 93 total hours working on this case, at a rate of $425 per hour, amounting to $39,525 in fees, with an additional $1,573.50 in costs. These amounts are reasonable.

Riggle v. The Revolution Darts & Billiards-Centreville LLC, EDVA (Hilton), Mar. 30, 2018. VLW No. 018-3-120.


All claims fail in sex-abuse fallout litigation

After reports of sexual misconduct appeared in national media, a private school sued its former executive director for allegedly sharing sensitive documents with a newspaper. She counterclaimed based on the circumstances of her resignation. No reasonable jury could find for either party.

Daniel Morgan Grad. Sch. of Nat’l Sec. v. Millis, EDVA (Hilton), Apr. 23, 2018. VLW No. 018-3-155.


Non-compete enforceable, despite blue-pencil terms

A legal services company was entitled to a preliminary injunction against its former chief customer officer, who resigned and began soliciting the company’s clients. The non-solicit and non-compete clauses in his employee agreement were reasonable and enforceable, notwithstanding separable blue-pencil clauses.

Update Inc. v. Samilow, EDVA (Ellis), May 17, 2018. VLW No. 018-3-204.


Fired officers’ due process claims can proceed

Under clearly established law, publication of public safety officers’ allegedly defamatory termination letters to the media before holding a name-clearing hearing supported the officers’ claims of due process violations. The officers had been fired for participating in a “disrespectful” group text discovered by city officials.

Cannon v. Village of Bald Head Island, N.C., 4th Cir. (Wynn), May 30, 2018. VLW No. 018-2-104.


Alleged diversity-based staffing states Title VII claim

A white high school principal can proceed with discrimination claims against the school board, which allegedly demoted her after the superintendent implied that school staff should “look like” the student body.

Weinerth v. Talley, EDVA (Urbanski), June 6, 2018. VLW No. 018-3-233.


Prior retirement foreclosed line-of-duty benefits

A retired firefighter diagnosed with throat cancer – an occupational disease – was not a “disabled person” prevented from the further performance of his duties and, thus, was not entitled to continuing health insurance coverage.

Jones v. Commonwealth, SCV (Goodwyn), June 7, 2018. VLW No. 018-6-044.


Fired county employee’s First Amendment claim is triable

A county’s former Director of Tourism raised genuine issues of material fact as to whether he was fired in retaliation for past political activity. At a Bedford County Republican Party meeting, he had voted to censure three members of the County Board of Supervisors for voting to raise real estate taxes. A County Administrator sympathetic to those Supervisors was sworn in and allegedly told others he was going to terminate the plaintiff as soon as he figured out how to do so.

Craig v. Bedford County, WDVA (Moon), June 26, 2018. VLW No. 018-3-267.


UVA pay discrimination case can go to trial

Genuine fact disputes remained as to whether a former high-level administrative employee at the university was subject to pay discrimination on the basis of her sex. Although she ended her tenure with a salary significantly higher than a male comparator, that male colleague had received a significantly greater starting salary when they were hired at similar times. A jury could find the disparity was not justified by differences in duties or qualifications.

Ackerson v. Rector & Visitors of the Univ. of Va., WDVA (Moon), Jun 27, 2018. VLW No. 018-3-268.


Spouse-plaintiffs proceed to consolidated discrimination trial

After a volatile relationship with the company CEO, a former executive and her husband can try claims for negligent retention, emotional distress and Title VII violations.

Fiorito v. Metro. Aviation, Aug. 3, 2018. EDVA (Ellis). VLW No. 018-3-325.


U.Va. pay discrimination case can go to trial

A reasonable jury could find that a former administrator was unjustifiably paid a substantially lower starting salary than a male comparator with very similar duties.

Ackerson v. Rector and Visitors of the Univ. of Va., June 27, 2018. WDVA (Moon). VLW No. 018-3-268.


Sex, not orientation, was basis of Title VII claim

A workplace discrimination lawsuit made by an openly gay female former deputy chief of the Bedford Police can go forward; the claim was based on her sex, making her a member of a protected class.

Spencer v. Town of Bedford, Nov. 2, 2018. WDVA (Moon). VLW 018-3-473.


Employer can invoke arbitration clause

Where a delay in filing motions did not prejudice the plaintiff, an employer did not waive its right to compel arbitration in a discrimination suit.

Smiley v. Forcepoint Federal LLC, Nov. 5, 2018. EDVA (Gibney). VLW 018-3-475.


ADA applies to person not actually disabled

In the absence of guidance from the 4th U.S. Circuit Court of Appeals on the issue, a person who is not actually disabled may maintain certain claims under the Americans with Disabilities Act.

Hurd v. Cardinal Logistics Mgt. Corp., Sept. 25, 2018. WDVA (Dillon). VLW No. 18-3-411.


Same-sex horseplay backs hostile environment claim 

Even though a plaintiff male em¬ployee admitted his male work¬place tormenter was not homo-sexual, the co-worker’s alleged persistent, sexually charged ha¬rassment was enough to let a Title VII hostile work environment claim go to trial, a federal judge has ruled.

Funk v. BWX Techs. Inc., Aug. 22, 2018. WDVA (Moon). VLW No. 018-3-348.


Unauthorized use of personnel files not ‘protected’

The unauthorized inspection and copying of personnel files by a sheriff’s office employee in support of her discrimination claim was in violation of a valid, generally applicable state law prohibiting such conduct and did not constitute “protected activity” sufficient to support a retaliation suit.

Netter v. Barnes, 4th Cir. (Motz), from MDNC (Eagles). VLW No. 018-2-205.


4th Circuit revives city employee’s Title VII retaliation claim

A supervisor who continually monitored restroom use and applied new start-time and dress-code rules to the worker altered her terms and conditions of employment.

Strothers v. City of Laurel, Md., July 6, 2018. 4th Cir. (Gregory), from DMD (Grimm), VLW No. 018-2-141.





Song lyric as Facebook status was party admission

In a firearms-possession case, the defendant’s Facebook post adopted the admission: “It’s Always Tucked, Kuz I’ll B Damn If My Life Get Took!!” The phrase closely mirrored a song lyric, but contained no attribution and was probative of the conduct charged.

United States v. Recio, 4th Cir. (Motz), Mar. 7, 2018. VLW No. 018-2-045.


Privilege doesn’t attach to valuation documents

Financial documents submitted to a valuation company and later sought by subpoena were not privileged under either attorney-client privilege or the work-product doctrine.

Williams v. Big Pictures Loans LLC, EDVA (Payne), Mar. 16, 2018. VLW No. 018-3-085.


Sexual-assault victim-advocate privilege recognized

A plaintiff suing her university for its response to her alleged sexual assault did not have to disclose communications between herself and her victim advocate under a privilege widely recognized in other jurisdictions.

Doe v. Old Dominion Univ., EDVA (Morgan), Jan. 31, 2018. VLW No. 018-3-110.


Misappropriation damages present jury issues

A company seeking damages for misappropriation of trade secrets will be able to offer, through its expert, alternative methods among which the jury can choose to calculate an award.

Steves & Sons Inc. v. JELD-WEN Inc., EDVA (Payne), May 10, 2018. VLW No. 018-3-190.


Statistical significance analysis must be reliable

Expert opinions on statistical significance (p-values) must be relevant, reliable, and not likely to confuse jurors. Here, after plaintiffs’ expert opinions were excluded, their non-expert evidence was not sufficient to survive summary judgment, and the district court appropriately granted it against all plaintiffs in the multidistrict litigation.

In re: Lipitor Marketing, Sales Practices & Prod. Liab. (No II) Litig. MDL 2502, 4th Cir. (Diaz), June 12, 2018. VLW No. 018-2-119.


Court won’t seal trial records containing proprietary info

In a negligent-manufacturing case, the defendant company waived the confidentiality of its business information presented at trial. First Amendment principles and the company’s failure to follow Local Rule 5(C) also weighed against sealing the records.

Benedict v. Hankook Tire Co. Ltd., EDVA (Payne), June 15, 2018. VLW No. 018-3-250.


Records from national pawn shop database admissible

At a trial for stolen jewelry, printouts from a third-party online resellers’ database were admissible under the business-records exception to the hearsay rule.

Melick v. Commonwealth, July 31, 2018. CAV (Russell), from Hampton Cir. Ct. (Taylor). VLW No. 018-7-196.


Training, experience qualified nurse as expert

Although a nurse lacked certification to be a Sexual Assault Nurse Examiner, her experience and training qualified her to be an expert in a rape prosecution.

Wakeman v. Commonwealth, Nov. 27, 2018. CAV (Russell) from Shenandoah Cir. Ct. (Hupp). VLW No. 018-7-309.


Defendant led plaintiff to believe no expert needed

While an expert should have been required to admit cer¬tain physical therapy records, the defendant’s response to requests for admission rea¬sonably led plaintiff to believe no expert was required.

Kelly v. Laderer, Sept. 24, 2018. Norfolk Cir. (Martin). VLW No. 018-8-086.


Plaintiff’s “unclean hands” irrelevant to antitrust relief

A court excluded evidence that the plaintiff misappropriated the defendant’s trade-secrets from its consideration of equitable remedies in antitrust.

Steves & Sons Inc. v. Jeld-Wen Inc., Case No. 3:16cv545, Aug. 30, 2018. EDVA at Richmond (Payne). VLW No. 018-3-363, 32 pp.




Federal Jurisdiction

Abu Ghraib abuse suit proceeds against contractor

Nearly 10 years after the action was first initiated, plaintiffs asserting claims under the Alien Tort Statute can proceed to discovery against a contractor whose employees allegedly abused and tortured them at Abu Ghraib prison in Iraq during U.S. military operations in that country. The Plaintiffs have also established that they suffered cruel, inhuman or degrading treatment and war crimes. Their allegations state a claim under the Alien Tort Statute, and the political-question doctrine is inapplicable.

Al Shimari v. CACI Premier Tech. Inc., EDVA (Brinkema), Feb. 21, 2018. VLW No. 018-3-058.


Plaintiffs’ ‘deafening silence’ dooms diversity cure

The plaintiffs’ decade-old judgment of over $1 million, which they sought to enforce, was vacated for lack of subject-matter jurisdiction. The court declined to drop dispensable parties that destroyed jurisdiction, noting that the plaintiffs apparently ignored jurisdictional problems when they filed the original action.

Hawkins v. Borsy, EDVA (Brinkema), Feb. 8, 2018. VLW No. 018-3-044.


Students show injury from SC school-disturbance law

Students’ fear of future arrest for violating vague school-conduct statutes was sufficiently well-founded to constitute an injury-in-fact and support their standing to challenge the laws’ constitutionality.

Kenny v. Wilson, 4th Cir. (Diaz), Mar. 15, 2018. VLW No. 018-2-056.


Party thwarting jurisdiction not ‘fraudulently joined’

Because the plaintiff stated a claim against the only defendant to share her citizenship – the substitute trustee that executed foreclosure on her home – the court lacked diversity jurisdiction. Thus, remand to state court was required.

The sole question is whether any factual or legal possibility exists whereby diversity jurisdiction would be improper. Based on Squire v. Va. Housing Dev. Auth., 287 Va. 507 (2014), it is possible that Virginia law supports a claim for fiduciary breach in these circumstances.

Gibbs v. Fed. Nat’l Mortgage Ass’n, EDVA (Hudson), Apr. 4, 2018. VLW No. 018-3-133.


Cities lack standing to compel background-check info

In a suit targeting U.S. military agencies’ failure to report information that should have prevented the Sutherland Springs shooter from obtaining his weapon, the cities of New York, Philadelphia, and San Francisco failed to allege a concrete injury or discrete agency action to support the court’s jurisdiction.

City of New York v. U.S. Dep’t of Defense, EDVA (Hilton), Apr. 24, 2018. VLW No. 018-3-156.


No combatant immunity for Taliban defendant

A Taliban fighter’s conviction for conspiring and attempting to destroy a U.S. helicopter in 2009 was subject to the rules of non-international conflict under the Third Geneva Convention, and accordingly U.S. courts could adjudicate and review it.

United States v. Hamidullin, 4th Cir. (Floyd), Apr. 18, 2018. VLW No. 018-2-075.


PETA can challenge ‘employee access’ law

Animal rights groups sufficiently alleged an injury-in-fact to support their standing to challenge a North Carolina statute, recently enacted to allow employers to hold employees civilly liable for damage caused by “unauthorized access” to nonpublic areas. The groups claim the legislation targeted their undercover investigations to expose animal cruelty, in violation of the groups’ First Amendment rights.

People for the Ethical Treatment of Animals Inc. v. Stein, 4th Cir. (per curiam) (unpublished), June 5, 2018. VLW No. 018-2-112.


Data breach victims have standing for contract claims

After credit cards were fraudulently opened in their names, a class of optometrists alleged an injury-in-fact traceable to their professional examination board. They claimed the board breached its duty to protect their personal identifying information.

Hutton v. Nat’l Bd. of Examiners in Optometry Inc., 4th Cir. (King), June 12, 2018. VLW No. 018-2-120.


Vets’ tort claims against contractor not justiciable

Waste and water management systems in Iraq and Afghanistan were operationally controlled by the military, not its contractor. Thus, mass tort claims for harms suffered by servicemembers due to the contractors’ alleged environmental mismanagement were barred by the political-question doctrine.

In re KBR Inc. Burn Pit Litig., 4th Cir. (Floyd), June 20, 2018. VLW No. 018-2-132.




First Amendment

Abortion disclaimer ordinance violates speech rights

The district court was correct to strike down a Baltimore ordinance requiring pregnancy centers that do not offer or refer for abortions to disclose that fact via waiting-room signage.

The city’s only support for its contention that women might be misled is a reported increase in phone calls to the Center’s hotline from “abortion-minded callers.” While its stated goals are legitimate, the city could pursue them through less restrictive means.

Greater Baltimore Ctr. for Pregnancy Concerns Inc. v. Mayor & City Council of Baltimore, 4th Cir. (Wilklinson), Jan. 5, 2018. VLW No. 018-2-002.


High defamation standard applies to school employee

A school board’s Director of Budget & Finance had substantial responsibility, as the top financial overseer of a school system with a nearly $60 million budget. Thus, she was a “public official” who had to show actual malice to prove that a TV news station defamed her. She failed to do so.

Horne v. WTVR LLC, 4th Cir. (Floyd), June 18, 2018. VLW No. 018-2-129.


Virginia FOIA does not apply to judiciary

Long distance phone records sought from the judiciary are not public records, as the Virginia Freedom of Information Act does not apply to the judiciary, including its executive secretary.

Virginia Information TechnologiesAgency v. Turner, Oct. 15, 2018. Richmond Cir. Ct. (Alexander). VLW No. 018-8-093.


Litigant not entitled to unredacted legal invoices from city

While a doctor involved in litigation with the City of Virginia Beach was not entitled to entries in the city’s legal invoices that would reveal confidential information, litigation strategy, work product or legal advice, the court found the city withheld some documents that did not fall under the Virginia Freedom of Information Act exception and remanded for further review.

Bergano v. City of Virginia Beach, Dec. 6, 2018. SCV (McCullough) from Virginia Beach Cir. Ct. (Padrick). VLW No. 018-6-088.


Incumbent Protection Act struck down

The burden that Virginia’s Incumbent Protection Act imposes on political parties’ associational rights is facially unconstitutional. Because party-based methods are limited to members and primaries are open to the voting public, an incumbent’s selection of a primary pursuant to the Act forces the committee to associate with those who do not share their beliefs. The Act also interferes with parties’ internal governance.

Fitzgerald v. Alcorn, WDVA (Urbanski), Jan. 19, 2018. VLW 018-3-010.


Strike-through ballot counted for Yancey

After certification of the results for election of the delegate for District 94, Petitioner Shelly A. Simonds petitioned for a recount. The circuit court evaluated a ballot initially classified as an “overvote” and reclassified it as a vote in favor of Respondent David E. Yancey.

Simonds v. Yancey, Newport News Cir. Ct. (panel), Jan. 3, 2018. VLW No. 018-8-008.


Signatures for officials’ removal must be subject to perjury

The statutory process for removing elected office-holders requires signatures under penalty of perjury from registered voters numbering at least 10 percent of the number voting in the previous election.

Commonwealth v. Williams, SCV (Goodwyn), Mar. 1, 2018. VLW No. 018-6-012.





Removal order unfair without notice of voluntary option

Because the underlying removal order was entered without advising the defendant of his possible eligibility for voluntary removal, a defendant’s indictment for illegal re-entry was dismissed.

The immigration judge asked the defendant if he had sufficient funds to leave the country voluntarily but didn’t otherwise address voluntary departure, failing to explain that the defendant might qualify for relief — namely, voluntary departure. Not understanding that he had anything to appeal, he didn’t have the opportunity to seek judicial or administrative review.

United States v. Itehua, EDVA (Gibney), Mar. 26, 2018. VLW No. 018-3-106.


Board didn’t explain change in deportation standard

A Board of Immigration Appeals decision effectively adopting a new standard for “crimes involving moral turpitude” could not rely on that new standard without offering good reasons for the change and addressing its retroactive effect.

Jimenez-Cedillo v. Sessions, 4th Cir. (Harris), Mar. 20, 2018. VLW No. 018-2-058.


Exclusionary rule applies only after egregious conduct

In civil deportation proceedings, the exclusionary rule’s predicate of “egregious” – not merely unreasonable – Fourth Amendment violations by federal officers also applies to conduct by state and local officers.

Sanchez v. Sessions, 4th Cir. (Motz), Mar. 27, 2018. VLW No. 018-2-061.


Va.’s obstruction offense not a crime of moral turpitude

The Board of Immigration Appeals erred in concluding that Virginia’s obstruction-of-justice offense qualified as a “crime involving moral turpitude” that heightened the burden on an immigrant petitioner challenging his removal.

Ramirez v. Sessions, 4th Cir. (Gregory), Apr. 17, 2018. VLW No. 018-2-074.


Court costs not a ‘penalty’ that supports removal

An immigrant was not rendered ineligible for cancellation of removal based solely on $100 in court costs, which he paid after pleading guilty to a misdemeanor. Such costs are not discretionary and sometimes are imposed by the court clerk without any involvement by a judge, and they are not punitive in nature.

Gonzales v. Sessions, 4th Cir. (Wynn), June 27, 2018. VLW No. 018-2-138.




Intellectual Property

Nonprofit’s unattributed photos were fair use

Defendant Media Research Center Inc., a religious news service, did not infringe on Plaintiff Larry Philpot’s copyright by obtaining his photos from Wikimedia and using them without attribution on the Center’s own website.

Philpot v. Media Research Ctr. Inc., EDVA (Ellis), Jan. 8, 2018. VLW No. 018-3-006.


Negligence can’t sustain contributory infringement

Although an ISP’s “13-strike policy” did not qualify for safe harbor in a music copyright infringement suit, a new trial was required due to a jury instruction that erroneously suggested contributory liability could be based only on a “should have known” standard.

BMG Rights Mgm’t LLC v. Cox Commc’ns Inc., 4th Cir. (Motz), Feb. 1, 2018. VLW No. 018-2-019.


Targeted-ad methods too abstract for patents

Three patents for “high-tech snooping” processes used for online marketing were not enforceable. The internet context didn’t establish sufficient inventiveness over conventional, abstract concepts.

Bridge & Post Inc. v. Verizon Commc’ns Inc., EDVA (Gibney), Mar. 15, 2018. VLW No. 018-3-082.


No trademark in anti-cybersquatting case

A foreign company could not establish common-law trademark rights in the United States for the domain “” because no American citizens used the company’s service. Hosting Google AdSense on the company’s Ukrainian site also didn’t put its mark in U.S. commerce. LLC v., EDVA (Ellis) June 8, 2018. VLW No. 018-3-237.


Defendant’s counsel must return hard drives

Two hard drives given to counsel by defendant must be returned to plaintiff because they are within the scope of a preliminary injunction order in the trade secret litigation.

Advanced Systems Technology and Management Inc. v. Guan, Nov. 19, 2018. EDVA (O’Grady). VLW 018-3-507.


Fees denied in “garden variety” trademark case

A company that prevailed on a Lanham Act claim over use of a common phrase, “We Buy Homes,” is not entitled to attorney’s fees because the case was not rare, extraordinary or unique.

Express Homebuyers USA LLC v. WBH Marketing Inc., Oct. 25, 2018. EDVA (Ellis). VLW 018-3-460.

Medical Malpractice

Fetal death claim not limited to mother

Six years after the General Assembly created a cause of action for the wrongful death of a fetus, a Virginia circuit judge has ruled that the mother is not the only family member that can claim damages under the law

Healey v. Perfectly Female Women’s Health Care P.C., July 12, 2018. Fairfax Cir. Ct. (Oblon).VLW No. 018-8-067.


Parents’ claim for damages to child in utero dismissed

Parents’ claims for medical expenses incurred on behalf of a child injured in utero were barred, where no claims were brought in the child’s name.

Brown v. Tashman, Nov. 9, 2018. Fairfax Cir. Ct. (Oblon). VLW No. 018-8-096.


Legal malpractice claim revived

A patent lawyer’s legal malprac¬tice claim against his bankruptcy lawyer was revived by the Supreme Court of Virginia, offer¬ing some hope of recovery for the patent lawyer after a long series of setbacks, in and out of court.

Labgold v. Regenhardt, Oct. 18, 2018. SCV from Alex. Cir. Ct. VLW No. 018-6-077.


Beach house owner not liable for injury to renter

Where a couple that owns a beach house did not intend to maintain control of the property during the rental period, the duty of care they owed to a renter is the commensurate with that of a landlord to a tenant.

Haynes-Garrett v. Dunn, Oct. 4, 2018. SCV (McClanahan) from Va. Beach Cir. Ct. (Shockley). VLW No. 018-6-069.


Condo suit need not make all owners parties

A condominium owner suing her condo association for damage to her unit allegedly
caused by common elements need not join all other owners as necessary parties.

Rinker v. Oakton Condominium Unit Owners Ass’n, Sept.. 20, 2018. Fairfax Cir. (Oblon). VLW No. 018-8-084.


Expert necessary to support legal malpractice claim

To prove her former attorneys caused her injury claim to become time-barred, a plaintiff was required to designate an expert for trial.

Sere v. Trapeni, July 26, 2018. SCV (per curiam), from Fairfax Cir. Ct. VLW No. 018-6-056.


Suit allowed for unauthorized disclosure of records

Where a woman had discovered her confidential medical information had been disclosed by two healthcare workers, she can sue their employer, a medical clinic.

Parker v. Carilion Clinic, Nov. 1, 2018. SCV (Kelsey) from Roanoke Cir. Ct. (Clemens). VLW No. 018-6-082.




Personal Injury

Wrongly imprisoned man has no legal remedy

Sovereign immunity barred the claims of a man who served over two years in prison for a crime he alleges he did not commit. Local governments have no control over the work performance of commonwealth’s attorneys. They bring to bear the weight of the Commonwealth, not the county where they operate.

Weiner v. Albemarle County, Va., WDVA (Moon), Jan. 24, 2018. VLW 018-3-017.


Product redesign proposals must be safer overall

Although the estate of a plant worker crushed by a lift truck offered a truck redesign that could have prevented that particular worker’s death, there was no evidence that the redesign would lead to fewer total deaths. Thus, the jury’s verdict finding negligent design remains set aside.

Evans v. NACCO Materials Handling Grp. Inc., SCV (McCullough), Mar. 22, 2018. VLW No. 018-6-018.


Fire & rescue contractor immune from ambulance-crash claims

In a negligence action following the plaintiff’s highway collision with an ambulance, the volunteer driver’s company was an instrumentality of the state and, thus, exempt from liability arising from its contract with Frederick County.

Davis v. Bryson, WDVA (Urbanski), Apr. 25, 2018. VLW No. 018-3-163.


Prosecutor immune for Freddie Gray actions

Baltimore State’s Attorney Marilyn Mosby is absolutely immune from suit for her statements and prosecution of police officers involved with citizen Freddie Gray on the day he sustained fatal injuries in a police van, and the officers’ claims arising from those actions are thus barred.

Nero v. Mosby, Case No. 17-1166, May 7, 2018. 4th Cir. (Gregory), from DMD at Baltimore (Garbis). Karl Aram Pothier for Appellant; Andrew James Toland III and Brandy Ann Peeples for Appellees. VLW No. 018-2-088


Cabela’s customer stated claims against off-duty officers

A shopper who was handcuffed and tased by Cabela’s security guards can proceed with claims including wrongful imprisonment, assault and battery, and defamation. He may also be entitled to punitive damages.

Blevins v. Cabela’s Wholesale Inc., WDVA (Jones), May 11, 2018. VLW No. 018-3-194.


Products Liability

$37.8 million tire blow-out verdict mostly upheld

An award of nearly $38 million to a man severely injured when his truck’s tire blew out was, for the most part, supported by the evidence and not excessive.

Benedict v. Hankook Tire Co. Ltd., Jul 9, 2018. EDVA (Payne). VLW No. 018-3-275.

Public Records

License-plate database may violate Data Act

Pictures and associated data stored in a police department’s automatic license plate reader database are “personal information” under the Data Act, but further fact-finding is required to determine whether the record-keeping process allows a license plate number to be linked to the vehicle’s owner.

Neal v. Fairfax Cnty. Police Dep’t, SCV (Powell), Apr. 26, 2018. VLW No. 018-6-032.




Real Property

Eminent domain possession requires proper valuation

Mountain Valley Pipeline had the right to condemn affected easements, but could not possess them before determining fair value.

On the one hand, the court must consider the potential harms to MVP of a delay that would result in the pipeline not being built. Balanced against that, the court must consider the harms to the very few landowners who identified any harm. The balance of these equities favors the Pipeline.

However, the court lacks sufficiently certain value estimates on which to base its security decision for just compensation. The Pipeline’s expert’s estimates do not allow the court to set a bond.

Mountain Valley Pipeline LLC v. Easements to construct, operate, and maintain a natural gas pipeline over tracts of land in Giles County, Craig County, Montgomery County, Roanoke County, Franklin County, and Pittsylvania County, Virginia, WDVA (Dillon), Jan. 31, 2018. VLW No. 018-3-024.


‘Infinity’ value made formula unenforceable

A property sales agreement, which set forth a mathematical formula for apportioning increases to local development-density rights between the property owners, was rendered impossible to calculate when the county removed the density limit entirely.

RECP IV WG Land Investors LLC v. Capital One Bank NA, SCV (McClanahan), Apr. 5, 2018. VLW No. 018-6-024.


City couldn’t effect sale before liens ascertained

In a judicial proceeding to sell tax-delinquent realty, the commissioner of accounts cannot enter a decree of confirmation of sale until the value of liens against the property being sold is determined.

City of Fairfax v. Wards Inc., Fairfax Cir. Ct. (Bernhard), Apr. 12, 2018. VLW No. 018-8-031.


Tree-sitters in contempt, ordered to come down

Coles, Red, and Minor Terry were held in contempt of court for interfering with the Mountain Valley Pipeline’s use of easements of which it had been granted immediate possession. Red and Minor were given approximately one day to come down from their tree stands before fines and possible physical removal would be authorized.

Mountain Valley Pipeline v. Easements, WDVA (Dillon), May 4, 2018. VLW No. 018-3-180.


Country club wins second municipal tax challenge

For tax purposes, the City of Fairfax must assess Army Navy Country Club’s land as residential property and omit “improvements” (e.g. clubhouse, pool, tennis courts) that would be demolished in the event of residential development.

Army Navy Country Club v. City of Fairfax, Va., Fairfax Cir. Ct. (Ortiz), June 5, 2018. VLW No. 018-8-051.




Search & Seizure

‘Dark web’ search warrant issued in good faith

A warrant executed in good faith, even if unconstitutional, did not render resulting evidence of child-pornography crimes inadmissible.

In light of rapidly developing technology, the FBI’s consultation with government attorneys does not indicate a guilty conscience. Rather, it is precisely what “good faith” expects of law enforcement.

United States v. McLamb, 4th Cir. (Thacker), Jan. 25, 2018. VLW 018-2-016.


Handcuffing student was excessive force

A school safety officer used excessive force in handcuffing an elementary student who posed no objective threat. But the officer was still entitled to qualified immunity for the constitutional violation. Without more, it would not necessarily have been clear to a reasonable officer that this action would give rise to a Fourth Amendment violation. But this holding is now clearly established for any future qualified-immunity cases involving similar circumstances.

E.W. v. Dolgos, 4th Cir. (Gregory), Feb. 12, 2018. VLW No. 018-2-023.


Officer lacked reasonable suspicion of drug crime

An officer lacked reasonable suspicion to prolong an early-morning traffic stop, despite the apparent nervousness of the driver and passenger, the driver’s claim that he’d just purchased the vehicle despite being unemployed, and evidence of a long-distance trip inconsistent with the driver’s account of where he’d been that night.

United States v. Bowman, 4th Cir. (Traxler), Mar. 1, 2018. VLW No. 018-2-041.


Residential trash supported home search

Items recovered from a trash can associated with the defendant’s home — including plastic bags containing cocaine residue and Google directions listing his home as the starting address — sufficiently supported probable cause for a warrant to search his residence.

United States v. Morton, EDVA (Payne), Feb. 2, 2018. VWL No. 018-3-030.


Search of ‘sexting’ suspect unreasonable

Even acting pursuant to a warrant, a police detective was not entitled to qualified immunity for compelling a teenager to perform a sexual act. Because there was no justification for the alleged search to photograph the teen’s erect penis or the order for him to masturbate in the presence of others, well-established Fourth Amendment limitations on sexually invasive searches adequately would have placed any reasonable officer on notice that such police action was unlawful.

Sims v. Labowitz, 4th Cir. (Keenan), Mar. 14, 2018. VLW No. 018-2-053.


Warrant for iPhone search had to relate to charges

A defendant charged with drug distribution crimes was not entitled to impose search parameters on the government’s search for content on his iPhone beyond the requirement that the search must relate to his specific criminal violations.

United States v. Brewer, WDVA (Urbanski), Mar. 21, 2018. VLW No. 018-3-094.


Firearm discovered in Terry stop suppressed

Police responding to gunfire in a Richmond neighborhood unreasonably detained a group of men walking away from where they heard shots. As a result, a firearm discovered after police detained the defendant was suppressed.

Despite officers’ legitimate concern for their safety, the exigencies in this situation cannot undermine the 4th Circuit’s clear holding that the U.S. Constitution requires a particularized and objective basis for suspecting the particular person stopped of criminal activity.

United States v. Curry, EDVA (Lauck), Mar. 19, 2018. VLW No. 018-3-090.


Failure to follow police commands justified seizure

Despite officers shouting at the defendant to put his hands up, he wasn’t seized for Fourth Amendment purposes until they physically removed him from his car. Because the seizure was justified by concern that the defendant was concealing a firearm, the trial court didn’t err in declining to suppress evidence found in the car.

Hill v. Commonwealth, CAV (O’Brien), Apr. 24, 2018. VLW No. 018-7-100.


Forensic search of gun smuggler’s phone reasonable

Although a forensic search of a digital phone is a “non-routine” border search that requires an individualized suspicion of illegal activity, Customs & Border Patrol agents had such reasonable suspicion when they seized a suspected weapons smuggler’s phone and extracted communications data and comprehensive GPS location tracking.

United States v. Kolsuz, 4th Cir. (Harris), May 9, 2018. VLW No. 018-2-091.


Warrantless vehicle searches limited within curtilage

The automobile exception to the Fourth Amendment does not permit a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. The scope of the automobile exception extends no further than the automobile itself.

Collins v. Virginia, SCOTUS (Sotomayor), May 29, 2018. VLW 018-1-001.


Terry stop resistance supported probable cause

The trial court erred in granting the defendant’s motion to suppress evidence. His resistance to the efforts to handcuff him provided probable cause to arrest for obstruction of justice, thereby legitimizing the search of his person and the bundle he was carrying.

Commonwealth v. Suluki, CAV (Decker) (unpublished), June 5, 2018. VLW No. 018-7-141.


New SCOTUS holding means rear driveway was within curtilage

Applying the U.S. Supreme Court’s recent decision in Collins v. Virginia, a warrantless arrest in an area of the suspect’s driveway beyond the walkway to the front door was within the home’s curtilage and, thus, improper under the Fourth Amendment.

Commonwealth v. Carroll, Fairfax Cir. Ct. (Bernhard), June 10, 2018. VLW No. 018-8-052.


Shooting suicidal man was excessive force

A police officer violated the Fourth Amendment in shooting a suicidal man who had slapped a woman during an altercation and had a knife, but who was threatening only himself at the time of the shooting. The officer was entitled to qualified immunity, but the unconstitutionality of his actions is clearly established as of the date of this opinion.

Wilson v. Prince George’s County, Md., 4th Cir. (Keenan), June 18, 2018. VLW No. 018-2-130.


Marijuana odor not supported by body cam footage

Officers’ recollection that a strong marijuana odor emanated from a vehicle wasn’t consistent with video of their search. The car doors were closed, the marijuana later discovered was raw and enclosed in a bag, and the officers never mentioned the odor before the search. Thus, they lacked probable cause to search the vehicle, and the resulting evidence must be suppressed.

Commonwealth v. Hill, Norfolk Cir. Ct. (Lannetti), June 22, 2018. VLW No. 018-8-055.


Post-stop consent to search vehicle was valid

After being released from a traffic stop with a verbal warning, a reasonable person in the defendant’s position would have felt free to leave despite continued officer questioning.

Commonwealth v. Law,Sept. 4, 2018. CAV (Huff), from Franklin Cir. Ct. (Perdue). VLW No. 018-7-226.


Vehicle search was OK

Where an officer had a valid reason for a traffic stop and did not extend it, a reasonable person would have felt free to leave. A subsequent request to search the car was a separate en¬counter.

Commonwealth v. Law, Sept. 4, 2018. CAV (Huff), from Franklin Cty. Cir. Ct. (Perdue). VLW No. 018-7-227, 9 pp.


Search OK when based on tip from reliable informant

Because a tip that the defendant possessed heroin came from an informant who never had provided inaccurate information, the officers had probable cause.

Booker v. Commonwealth, Nov. 6, 2018. CAV (Frank) from Portsmouth Cir. Ct. (Melvin). VLW No. 018-7-284.




Patent lawyer owes over $1 million in damages

A former attorney who liberally licensed a patent portfolio without the owner’s knowledge or consent is liable for fraud, conversion, breach of contract and punitives.

Fitistics LLC v. Cherdak, Aug. 23, 2018. EDVA (O’Grady). VLW No. 018-3-353.


Carriage ride not shielded from suit over accident

In a case of first impression, a horse-drawn carriage ride business does not get protection under Virginia’s Equine Activity Liability Act in a lawsuit arising from an accident caused when horses ran wild.

Paz v. Layman, June 29, 2018. Rockbridge Cir. Ct. (Filson). VLW No. 018-8-064.


Erroneous bill from hospital prompts defamation claim

A woman who received a bill from a hospital, even though she was not a patient, can sue for defamation after the hospital referred the erroneous bill to a debt collector.

Adams v. Children’s Hospital of the King’s Daughters, Sept. 21, 2018. Norfolk Cir. (Lan¬netti). VLW No. 018-8-085.


Deputy sheriff gets qualified immunity in shooting of dog

Where an Augusta County deputy sheriff shot a woman’s dog, asserting a claim of self-defense, the deputy acted reasonably and is entitled to qualified immunity.

Ray v. Roane, Sept. 20, 2018. WDVA (Dillon). VLW No. 18-3-390.





Passing on shoulder wasn’t reckless driving

Code § 46.2-856 did not apply to the defendant’s conduct of passing a traffic back-up via the road shoulder on his way to the highway exit.

Barringer v. Commonwealth, CAV (Alston), Feb. 27, 2018. VLW No. 018-7-046.




Wills & Trusts

Will’s limits on asset uses suggest life estate

Although a will passed the testator’s residual estate to his surviving spouse, its substantial limitations on uses and transfer indicated that she inherited the residual assets as a life estate, not in fee simple.

Feeney v. Feeney, Record Nos. 170031 and 170032, Apr. 12, 2018. SCV (Mims), from Loudoun Cir. Ct. (Irby). VLW No. 018-6-029


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Opinion Digests

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