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The top stories of 2022… continued!

Virginia Lawyers Weekly’s most popular stories from July-December 2022 include decisions from both the state and federal courts. Many addressed matters of great importance to the legal community and public at large. Others, while significant, were a bit more offbeat in nature.

We hope you enjoy this recap of the rest of the year’s most popular stories.

Unlicensed prosecutor

In a case that turned heads among some in the criminal defense bar, the Fairfax Circuit Court upheld felony convictions secured by an unlicensed prosecutor in “Absence of prejudice: Conviction secured by unlicensed prosecutor OK.”

In Commonwealth of Virginia v. Yovani Cardenas Flores (VLW 022-8-025) the defendant was convicted after a bench trial in January 2022. But prior to sentencing, his attorney learned that the prosecutor was administratively suspended until February 2022 for not paying bar dues.

Even though the prosecutor was reinstated, the defendant moved for a new trial, arguing that the civil nullity rule should apply. Under this rule, representative actions in court are a legal nullity unless performed by a licensed attorney.

Judge David A. Oblon acknowledged this result was “harsh,” and said its application “has not been without controversy.”

Rather than vacate the conviction, the judge looked at decisions on the extension of the civil nullity rule from New York, Minnesota and Illinois, as well as a handful of federal courts. He found all but Illinois held that dismissal wasn’t required absent a showing of prejudice.

Oblon said federal courts that considered the issue favored New York’s approach, which recognized that “no federal court ever declared a right to a licensed prosecutor under the Due Process Clause of the Fourteenth Amendment.”

Here, the defendant “failed to prove the prosecutor’s administratively unlicensed status prejudiced any of his substantive rights.”

Oblon also declined to extend the civil nullity rule to criminal cases because “the remedy for an unlicensed prosecutor should not logically exceed that of a deficient, but licensed, defense attorney.”

Finally, the judge noted Virginia’s constitution doesn’t require that elected Commonwealth’s Attorneys be admitted to the bar, and that a defendant has no constitutional right to a licensed prosecutor as he does to a licensed defense attorney.

Corrected complaint

Correcting document

A prompt correction to a signature defect on a complaint alleging Title VII violations against a plaintiff’s former employer allowed the complaint to survive a motion to dismiss for untimely filing in “Timely correction saves complaint.”

In the case, Caison v. Thermo Fisher Scientific (VLW 022-3-468), the plaintiff filed a discrimination charge with the EEOC and received a right-to-sue letter on Nov. 1, 2021. The plaintiff was terminated earlier that year and alleged Title VII violations against her former employer, including “denying her opportunities for training and terminating her because of her race.”

The action was filed in the Eastern District of Virginia on Jan. 31, 2022, but the complaint and civil cover sheet were signed by an attorney who is not a Virginia State Bar member. The court asked the plaintiffs to resubmit, and the error was corrected on Feb. 2, 2022.

The defendants moved to dismiss the claim as untimely filed, alleging the original complaint “is a legal nullity” and the corrected complaint was filed beyond the 90-day filing window.

U.S. District Judge Elizabeth K. Dillon disagreed. She ruled in favor of the plaintiff, finding the “[p]laintiff corrected the first complaint in accordance with Rule 11” and that “the complaint can be deemed timely filed as of January 31, 2022.”

The defendant’s argument that the use of the word “unsigned” in Rule 11(a) barred the corrected provision from applying was rejected by Dillon as “a distinction without a difference.”

“A paper that, due to the application of another rule, is considered invalid because of a wrong signature can be considered unsigned under Rule 11,” the judge explained.

Insulting words

Woman in emotional distress

A woman’s claims of defamation and insulting words after her ex-boyfriend sent false and defamatory emails to her government employer when their relationship soured survived dismissal in “‘Insulting words’: Woman can sue ex for defamation.”

In (Tika v. Jack, VLW 022-3-314), Selamawit Tika ended her two-month relationship with Jonathan Jack when he started harassing her via text messages after she asked him to stop talking to her kids about racial politics. Jack accused Tika of trespassing when she tried to retrieve her belongings from his house.

When Tika blocked Jack’s number, he responded with a message that read: “cease and desist – stop texting me.”

Jack then began emailing Tika’s federal government employer with accusations that she was using her government-issued cell phone to harass him.

But Jack waited until Tika was on a plane for a long-planned vacation to visit family in Ethiopia before he emailed her employer with excerpts of their intimate conversations and more accusations of harassment and trespass.

Jack said Tika’s message accusing him of generating phone numbers to avoid her blocking him was the “final straw” that convinced him to email her employer because he feared for his daughter’s safety.

Tika filed suit against Jack for several claims, including defamation and insulting words.

Judge Norman K. Moon of the Western District of Virginia rejected Jack’s argument that he believed the emails were “substantially true,” albeit with “slight inaccuracies.”

The judge concluded that “the alleged defamatory statement in context contained or implied provably false statements of fact, which added factual content to Defendant’s allegation that Plaintiff had ‘harassed’ him — taking those statements out of the realm of an unactionable opinion.”

After Jack argued that Virginia’s “insulting words” statute only applied in face-to-face confrontation, Moon pointed out that the Supreme Court of Virginia “has explicitly acknowledged written statements may be actionable as insulting words.”

Gender dysphoria

Flag with transgender rights colors

In a case of first impression, the 4th U.S. Circuit Court of Appeals ruled in August that gender dysphoria is a covered “disability” in “Gender dysphoria covered by ADA” (Williams v. Kincaid, VLW 022-2-204).

The ruling made the Fourth Circuit the first federal appellate court in the country to find the ADA covers gender dysphoria, defined in the opinion as a “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.”

The case stemmed from the treatment of a transgender woman who was incarcerated in the Fairfax County Adult Detention Center for six months. She was initially assigned to women’s housing before being reassigned to men’s housing after she explained she had not had genital surgery. A lower court previously dismissed ADA claims brought against prison officials by the plaintiff before being reversed by the Fourth Circuit.

The appellant posed two challenges to the lower court’s holding: that gender dysphoria is not a “gender identity disorder” and that, even if it were, it “results from a physical basis that places it outside the scope of the exclusion from ADA protection.”

Upon analyzing the definitions of both “gender identity disorder” and “gender dysphoria,” U.S. Circuit Judge Diana Gribbon Motz wrote that the court “could not adopt an unnecessarily restrictive reading of the ADA,” and found the act does not exclude gender dysphoria as written.

“To so hold would be for a court to take it upon itself to rewrite the statute in two impermissible ways: by penciling a new condition into the list of exclusions, and by erasing Congress’ command to construe the ADA as broadly as the text permits,” Motz wrote.

In October, a three-judge panel of the Fourth Circuit denied a request to rehear the case.

DUI emergency

Doctor reviewing scans

Malicious prosecution and false imprisonment claims survived dismissal against a Virginia state trooper who arrested a man for driving under the influence while he was suffering a seizure induced by a brain tumor in “Claims proceed after DUI arrest of man with medical emergency.”

In this case — Novak v. Stuart (VLW 022-3-363) — Christopher D. Novak alleged that he inexplicably lost control of his head and was biting his lip uncontrollably while driving on the interstate, so he pulled off the road but got stuck in the mud.

A bystander who called 911 said the situation “looked like a medical emergency.” Novak was disoriented and bloody when Virginia State Police Trooper Allen T. Stuart arrived.

After Novak performed a “stand-and-walk” sobriety test, the trooper said he failed, despite Novak being confused and shivering while wearing shorts in cold December weather.

Stuart searched Novak’s car but didn’t find drugs or alcohol. Multiple breathalyzers confirmed that Novak hadn’t been drinking, nor did he smell like alcohol or drugs, slur his words or have bloodshot eyes.

The trooper arrested Novak, but he didn’t tell the magistrate about the breathalyzer, the lack of evidence or Novak’s signs of injury and disorientation. The DUI was eventually dismissed.

Later, Novak learned he had suffered a stroke induced by a brain tumor.

Judge James P. Jones of the Western District of Virginia found the allegations plausibly stated that Stuart lacked probable cause to arrest Novak for DUI “because he lacked sufficient information connecting Novak’s conduct to the contours of that offense.”

The judge credited Novak’s allegations that the blood indicated he was injured, that the bystander reported a medical emergency, that no signs of drugs or alcohol were present, and that he regained understanding on the way to the hospital.

Further, Jones held that “Novak’s allegation that Stuart omitted facts material to the magistrate’s probable cause determination also plausibly indicates a constitutional violation.”

Calming canines

Photo courtesy of Fairfax County Department of Family Services

A unique Fairfax County Department of Family Services’ employee has some quirks.

She loves broccoli and green beans. She won’t get into a car unless she’s picked up. And she wants nothing more than cuddles and belly rubs.

Rylynn, a 3-year-old Labrador Golden Retriever mix, works with the Fairfax County Department of Family Services as a certified facility dog. As part of her role with the department, Rylynn joins children who are testifying in court in the witness box or provides support before and after testimony.

In one such case, the Fairfax County Circuit Court granted a motion to allow the assistant commonwealth’s attorney to use Rylynn at trial in Commonwealth v. Vargas, VLW 022-8-061. (See also “Calming canines: Virginia’s facility dogs aid witness testimony.”)

Rylynn is part of a growing trend within the commonwealth and nationwide with the increased use of facility dogs. Their use has continued to grow within Virginia since the passage of the first Virginia law on the use of facility dogs in 2018, which Fairfax Circuit Court Judge Robert J. Smith noted is “one of the most generous of all the facility dog statutes across the country.”

Photo courtesy of Botetourt County Deputy Commonwealth’s Attorney Gillian Deegan

In Vargas, Smith denied a procedural objection by the defendant, finding the commonwealth followed the 14-day window necessary to apply for the order to use the facility dog at trial.

Smith further wrote that the court holds the power to limit a facility dog’s presence in the courtroom, noting that many other jurisdictions limit the dog’s visibility to jurors and emphasize that the dog is a trained animal doing its job, rather than “the witness’s personal pet.”

According to the Courthouse Dogs Foundation, at least 11 facility dogs are working in Virginia today with others, including a rescue poodle named Seamus in Botetourt County, currently in training.

‘Dead Man’s Statute’

Complex arguments about the Dead Man’s Statute — a hearsay exception only recognized in Virginia — were resurrected in “‘Dead Man’s Statute’ addressed.”

Judge David A. Oblon of the Fairfax Circuit Court addressed the statute in two consolidated cases in Rosenthal/Bavely Cases and Lohman v. Reston Hospital Center, LLC, et al., (VLW 022-8-065).

In one case, the parties either sought to exclude testimony; the parties in the other matter requested clarity about interested or adverse parties and how testimony could be corroborated.

Oblon said the Dead Man’s Statute applied in cases involving a survivor and a decedent.  Because the survivor has an advantage, the statute permits hearsay statements of the decedent to be admitted, and then requires the survivor to corroborate his or her own testimony.

The judge was unconvinced by arguments seeking to limit the statute such that any hearsay statement admitted must be one the decedent would have been “capable” of offering into evidence is they were alive.

“[T]he statutory term ‘capable’ in this statute … is the physical ability of one to testify live, as opposed to one ‘incapable’ of testifying due to death or disability,” Oblon wrote. “There is nothing in the statute related to qualifications of a live and physically able declarant.”

Next, the judge said determination of who is an “‘interested party’ depends on a number of factors, including the property interests at issue and the party’s liability for debts, costs or reimbursement.

Oblon pointed out that “‘testimony is subject to the corroboration requirement if it is offered by an adverse or interested party and if it presents an essential element that, if not corroborated, would be fatal to the adverse party’s case.’”

“[A]n adverse or interested party need not corroborate all material points [and] testimony can be corroborated from the evidence and circumstances [which] must be independent of the surviving witness,” he concluded.

Social media subpoenas

Social media apps on phone

In “Subpoenas for years of social media content quashed,” the U.S. District Court for the Western District of Virginia upheld a magistrate judge’s ruling to quash an ex-Virginia Department of Transportation employee’s subpoenas of current and former VDOT employees’ information, including social media content and other evidence dating back almost a decade.

The court handed down the opinion in Philpott v. Virginia Department of Transportation (VLW 022-3-356) in August.

The plaintiff, a VDOT employee of more than 40 years, had alleged he was terminated due to his race and theorized that a group of employees “conspired to have him terminated” because they did not want to have a Black supervisor. He issued subpoenas to select current and former employees, requesting social media content dating back to 2014 that included, among other things, “photographs, videos, communications or other documents” depicting racial hate groups or the rebel flag.

The magistrate judge granted VDOT’s motion to quash, writing the plaintiff “has not established a sufficient connection” between the subpoenaed individuals and the alleged adverse employment actions “to warrant broad production of the non-parties entire social media accounts, text messages, instant messages, letters, and phone records.”

On appeal, the court agreed with the magistrate judge’s findings and did not find the ruling “clearly erroneous” or “contrary to law,” which would be required for the plaintiff’s objection to succeed. Rather, the court found that the magistrate judge’s prior analysis of the case was consistent with the court’s role in managing discovery.

The court agreed with the magistrate judge that the subpoenas would demand the production of “large swaths of irrelevant information,” including social media content dating back years before the relevant events of the lawsuit occurred. The court also rejected the contention that the subpoenas were narrowly tailored, again citing the broad nature of the content requested.

Unconscionable prenup

Separating couple

The Court of Appeals of Virginia ruled that a prenuptial agreement that a bride was forced to sign the day before the couple’s wedding was unenforceable because the groom neglected to disclose $10 million in assets in “‘Unconscionable’: Last-minute prenup unenforceable.”

In Remillard v. Remillard (VLW 022-7-372), Terri Lee Remillard relocated to Virginia from Arkansas to marry Randy Lee Remillard. Randy owned several businesses and Terri grew his rental property management company substantially.

The day before their wedding, Randy forced Terri to sign a prenuptial agreement. It said the parties kept all individually titled property regardless of when it was acquired or the time and effort invested by either party. It couldn’t be modified and each party waived all rights to the others’ assets. Asset lists were attached but left blank.

During their divorce, Terri said the agreement was unenforceable, and she testified about learning that Randy’s assets exceeded $10 million during the marriage. The court agreed with Terri.

On appeal, Judge Richard Y. Atlee Jr. wrote for the panel that there was a “gross disparity” with the agreement and that there “were ‘overreaching or oppressive influences’” in the way Randy waited until the last moment to show it to Terri.

Although Randy admitted not disclosing his assets to Terri, he argued that there was fair and reasonable disclosure because Terri “should have been able to make inferences based on her work for his property management business.”

But the panel found that Terri’s “general awareness of some of husband’s assets does not amount to ‘fair and reasonable disclosure’ … much less the ‘full and complete’ financial disclosure the Agreement sets forth.”

“The mere fact that she signed this document, despite its obvious omissions, does not amount to a waiver of the right to receive financial disclosure,” Atlee concluded.

Mutual mistake

House with for sale sign out front

In “Mutual mistake dooms real estate transaction,” Norfolk Circuit Chief Judge David W. Lannetti granted a defendant’s demurrer in a case over a real estate sales contract after finding both parties to the contract mistakenly believed the defendant seller was the only person to have title to the property the plaintiff sought to buy.

Lannetti sustained the defendant’s demurrer in Joshua Britt Homes LLC v. Sloop Jr., et al. (022-8-051).

The seller, who bought the properties along with his wife, entered a stipulation agreement that was incorporated into their divorce decree that he “would own the Properties ‘as his sole and separate property.’”

However, no deeds transferring the seller’s ex-wife’s interest in the property were ever recorded, and her interest in the property was transferred to her son following her death. The fact was not discovered until the buyer hired an outside firm to research the titles to obtain an insurance policy. The sale was unable to close because the son did not sign the conveyance documents by deadline, and the buyer filed suit.

Lannetti held that specific performance was unavailable due to the “mutual mistake of fact underlying the contracts,” as the fact that the seller did not have sole ownership was not known until after the contracts were executed.

As such, any alleged plan between the pair “with the purpose of hindering and frustrating” the buyer would be implied to occur after the contracts were executed. The mutual mistake ultimately made the contracts unenforceable, and since the prospective buyer “includes no allegations in the Complaint that it has paid any purchase money,” Lannetti found there were no damages to recover even if the contracts were enforceable.

Romantic restrictions

Couple with young child

Provisions in a property settlement agreement that regulated introduction of the parties’ romantic partners to their child were unconstitutionally vague, void as against public policy and unenforceable in “Romantic restrictions provisions void.”

The clause mandated that “the parties are to exercise ‘great care prior to introducing’ their ‘boyfriends or girlfriends with whom they may have a romantic relationship’ to their child.”

It also “prohibit[ed] the parties from having overnight guests of the opposite sex who are not ‘related’ to the parties when the child is present in their home.”

The mother was willing to void both provisions. The father, who had married the woman he lived with, was willing to eliminate the restriction on overnight guests but not the requirement regarding introducing their child to romantic partners.

But Judge David Bernhard of the Fairfax County Circuit Court noted an issue in (Powell v. Knoepfler-Powell, VLW 022-8-039).

“For the Court to incorporate in its order that the parties must take ‘great care prior to introducing’ their romantic partners to their child, the Court necessarily must be able to discern what such a command means here. It cannot,” he wrote.

“The Court must treat lightly, if at all, in imposing prior restraint on the associations and speech of a parent who has given no cause to the Court to conclude that she will act in any way harmful to the parties’ child,” the judge opined.

Bernhard found that the requirement to exercise “great care prior to introducing” romantic partners to the child “suggests there is to be an uncertain degree of selectivity with whom they may associate in the presence of their child. In the instant case, ‘great care’ to one parent may mean ‘less care’ to another.”

Unable to determine how this instruction should be interpreted, the judge concluded that it was “hopelessly vague [and] unenforceable.”

Originating site

A doctor who was physically present in North Carolina but examined a patient in Virginia through a telemedicine program had his motion to dismiss for lack of jurisdiction and for failure to state a claim rejected by a federal court in “Med mal suit vs. NC doctor survives dismissal.”

In the case, Corradi v. Kolls, et al. (VLW 022-3-388), the U.S. District Court for the Western District of Virginia was found to have personal jurisdiction because the alleged tortious actions happened in Virginia and the plaintiff sufficiently alleged a plausible medical malpractice claim.

The claim stemmed from events that occurred at a Martinsville hospital in 2019, when the plaintiff arrived exhibiting symptoms of a stroke. A Telestroke exam was ordered, which was performed by a doctor who was located at Duke University Hospital in North Carolina at the time.

Following the examination, the plaintiff suffered a stroke, which he alleged “would have been prevented by proper treatment,” leading to the suit against the doctor and his employers. The defendants subsequently filed a motion to dismiss for lack of jurisdiction and for failure to state a claim, or alternatively to transfer venue to North Carolina.

Chief U.S. District Judge Michael F. Urbanski denied the motions, finding multiple establishing links to Virginia, including that under Virginia law the “originating site” of telemedicine services is “the location where the patient is located at the time the services are provided by a health care provider through telemedicine services.”

Urbanski further ruled against transfer of venue to North Carolina, finding the defendants “have not met their burden of showing that the balance of equities or judicial economy and convenience favors transfer of this suit to the Middle District of North Carolina.”

Additional concerns about the availability of witnesses for a North Carolina trial further contributed to the decision to deny transfer of venue.