Important Opinions – A recap for January – June 2023

In this issue, Virginia Lawyers Weekly presents a compilation of the Most Important Opinions from January to June 2023. You’ll find over 100 cases highlighted.

“Important Opinions” appear both here on our website and in our print edition. These are the cases chosen by our editors as most likely to impact law practice or a given subject area of law.

Our opinion digests will resume with the July 17, 2023 issue.

-Kelly Caplan

 

ADMINISTRATIVE

Administrative –

Disability benefits

Where an ALJ improperly accorded “little weight” to the testimony of the applicant’s long-time treating psychiatrist and inappropriately afforded more weight to her non-examining physicians’ opinion than to her treating physician’s opinion his decision was reversed and the case was remanded with instructions to grant disability benefits. Shelley C. v. Commissioner of Social Security Administration, VLW 023-2-057 (48 pp.)

 

Administrative –

Discovery

In a grievance proceeding against the city of Hampton by one of its firefighters, the city is only obligated to produce those documents that it intends to use in the grievance proceedings. The firefighter was incorrectly granted mandamus relief to compel production of other documents. City of Hampton v. Williamson, VLW 023-6-017 (30 pp.)

 

Administrative –

Military COVID vaccine mandate

Where the court previously dismissed a suit brought by military chaplains complaining about the military’s COVID-19 vaccine mandate, the plaintiffs’ motion to reconsider was denied. Alvarado v. Austin, VLW 023-3-079 (10 pp.)

 

Administrative –

Permit

Where the Virginia Board of Pharmacy conditionally approved appellant’s application for a pharmaceutical processing facility permit to grow cannabis plants, and to manufacture and distribute cannabis-based products, the board correctly rescinded the conditional approval after appellant did not timely complete regulatory requirements to obtain a permit. PharmaCann Virginia v. Virginia Board of Pharmacy, VLW 023-7-127 (17pp.)

 

Administrative –

Service dog

Where the administrative law judge failed to analyze whether the applicant’s service dog was medically necessary, but the record showed the request wasn’t supported by substantial evidence, the error was harmless. Shue v. Commissioner of Social Security, VLW 023-3-293 (13 pp.)

 

Administrative –

Uniform statutory mailbox rule

In an issue of first impression, the court joined the Second and Sixth Circuits in holding that 26 U.S.C. § 7502, a uniform statutory mailbox rule for tax filings, supplanted the common-law rule. The decision deepens a split with the Eighth and Tenth Circuits, both of which say the statute merely supplemented the common-law rule. Pond v. United States, VLW 023-2-138 (21 pp.)

ARBITRATION

Arbitration –

Assent

Where an employer provided digital forensic evidence showing a woman assented to an arbitration agreement, the woman’s statement that she did “not recall” doing so was insufficient to avoid arbitration. Soucie v. Virginia Utility Protection Service Inc., VLW 023-3-208 (24 pp.)

Arbitration –

Delay

Where defendants both knew of the right to arbitrate and acted inconsistently with that right during this litigation, their motion to compel arbitration was denied. SZY Holdings LLC v. Garcia, VLW 023-3-109 (13 pp.)

ATTORNEYS

Attorneys –

Rule 1.7 (a)(2)

Where an attorney had sexual relations with a client, this conduct violated Rule 1.7(a)(2) of the Virginia Rules of Professional Conduct. Brown v. Virginia State Bar, Ex Rel, Sixth District Committee, VLW 023-6-012 (21 pp.)

BANKRUPTCY

Bankruptcy –

Attorney malpractice

Where the attorney was sued for malpractice by his former client, the district court did not err in allowing the circuit court malpractice suit to proceed. While the attorney argued that the circuit court lacked jurisdiction over the suit, the district court determined that the record did not necessarily support that argument. Conway v. Smith Development, VLW 023-2-093 (10 pp.)

 

Bankruptcy –

Discharge injunction

Where debt collectors sent debtors a payoff letter and offered a discounted payment for the judgment debt after the debtors filed for bankruptcy protection, the debt collectors violated the discharge injunction. They must pay $25,000 the debtors incurred in attorney’s fees remedying the violation. Skaggs v. Gooch, VLW 023-4-003 (15 pp.)

 

Bankruptcy —

Dissolution vote

Where partners in the now-defunct law firm LeClairRyan PLLC argued they were improperly included on the equity security holders, or ESH, list filed by the liquidating trustee, because they resigned from the firm after it voted to dissolve, but the firm’s operating agreement did not allow them to resign after the dissolution vote, the partners’ arguments were rejected. Adams v. Tavenner, VLW 023-3-004 (43 pp.)

 

Bankruptcy –

Trustee fees

Where a Chapter 7 panel trustee received a share of commissions from a realtor to whom he referred business, and that arrangement was not disclosed to the court, the trustee must disgorge his fees in this case. In re: Tigist Kebede, VLW No. 023-4-009 (9 pp.)

BUSINESS

Business –

Conversion

Where appellant, a part owner of a car repair and painting business, sold appellee’s vehicle after obtaining a declaration from the DMV that it had been abandoned, the trial court should have granted appellant’s motion for judgment notwithstanding the jury’s verdict on appellee’s conversion claim. CB & PB Enterprises, et al., v. McCants, VLW 023-7-019 (10 pp.)

CIVIL PRACTICE

Civil Practice —

Appellate review

Where a party who is appealing certain district court decisions ordered the necessary portions of the trial transcript for her appeal, she was not required to include the entire trial transcript. Snell v. Reid, VLW 023-3-027 (4 pp.)

 

Civil Practice –

Damages claim

Where, in an appeal from the general district court, plaintiff-appellant’s amended complaint sought damages beyond the district court’s $25,000 jurisdictional limit, the amended complaint was outside the circuit court’s jurisdiction. The jury’s verdict for appellant is vacated. Ruderman v. Pritchard, VLW 022-7-581 (12 pp.)

 

Civil Practice —

Defamation

Where a residential owners association president claimed other owners defamed him in a letter, the complained-of statements lack the necessary “sting” to be considered defamatory. Theologis v. Weiler, et al., VLW 023-7-078 (14 pp.)

 

Civil Practice —

Discovery violations

Where the trial court entered a default judgment and awarded compensatory and punitive damages against appellant as a sanction for not responding to discovery requests, even though the court ordered appellant to do so, there was no abuse of discretion. Pine Hill Group v. Nass Group, VLW 023-7-002 (8 pp.)

 

Civil Practice –

Expert deposition

Where a court rule requires a litigant to pay “‘a reasonable fee for time spent and expenses incurred[,]’” when deposing an opposing expert witness, this includes the expert’s “reasonable fees incurred during the deposition itself, as well as the reasonable fees incurred for travel and reasonable fees for the expert’s preparation for the deposition.” Saphilom v. USAA General Indemnity Company, VLW 023-8-002 (8 pp.)

 

Civil Practice –

Intra-tribal dispute

Where members of the Monacan Indian Tribe alleged that defendants were not entitled to certain federal funds because they were not tribal officials, the court lacked jurisdiction to resolve the dispute because it would depend upon the court interpreting and applying Monacan bylaws and laws. Brooks v. Branham, VLW 023-3-292 (22 pp.)

 

Civil Practice –

Long-arm jurisdiction

Where appellant, a Virginia resident, sought to exert long-arm personal jurisdiction over a North Carolina medical center, the trial court properly granted the center’s motion to dismiss. The medical center did not purposefully avail itself of the privilege of doing business in Virginia. Carter v. Wake Forest Univ. Baptist Medical Center, et al., VLW 023-7-098 (11 pp.)

 

Civil Practice –

Rule 5(b)(2)(C)

Where the return of mail as undeliverable establishes that notice of a judgment or order was not received, service pursuant to Rule 5(b)(2)(C) is not the functional equivalent of notice for purposes of Rule 4(a)(6). Shuler v. Orangeburg County Sheriff’s Department, VLW 023-2-168 (21 pp.)

CIVIL RIGHTS

Civil Rights –

Deliberate indifference

Where a detainee alleged facts plausibly suggesting that medical and correctional officials had knowledge of his skin cancer, but delayed treating it or setting his dermatology appointment, his deliberate indifference claim survived their motion to dismiss. Tierney v. Liu, VLW 023-3-284 (19 pp.)

 

Civil Rights –

Excessive force

Where a man suing the City of Lynchburg for excessive force alleged facts making it plausible that the city condoned a practice so persistent and widespread as to constitute a custom or usage with the force of law, his claim survived the city’s motion to dismiss. The man also plausibly alleged claims for failure to train and failure to discipline against the city. Wesley v. City of Lynchburg, VLW 023-3-267 (10 pp.)

 

Civil Rights –

Suicide

Where Spotsylvania County officers allegedly knew a woman posed a known risk of suicide but failed to check her for weapons, and the woman thereafter killed herself with a hidden gun, her estate’s claims for gross negligence and deliberate indifference may proceed. Basilica v. Harris, VLW 023-3-097 (15 pp.)

 

Civil Rights –

Wrongful death

Where a man was fatally shot by a police officer despite allegedly stating that he was not armed, was not threatening officers or others and was separated by a screen door and 50 feet of distance, and where nine use-of-force reports were previously filed against the officer during a 5½-month period, five of which involved him pointing a firearm at a subject, the claims against the officer and county survived their motions to dismiss. Smith v. Jennings, VLW 023-3-327 (23 pp.)

COMMERCIAL

Commercial –

Antitrust conspiracy

Where there were disputed facts over whether two drug companies used a settlement agreement for anticompetitive reasons, causing resulting injury, their motions for summary judgment were denied. In re: Zetia (Ezetimibe) Antitrust Litigation, VLW 023-3-060 (55 pp.)

 

Commercial –

Continuing infringement

Where a patent holder argued an infringing competitor should be permanently enjoined from selling the infringing products, its motion was denied. The patent holder was instead awarded a reasonable royalty to compensate it for the competitor’s continuing infringement and the loss of its right to exclude. Phillip Morris Products SA v. RJ Reynolds Vapor Company, VLW 023-3-182 (31 pp.)

 

Commercial –

Fair housing

Where tenants alleged their husband-and-wife landlords violated federal and Virginia law by stating a discriminatory policy or preference against renting to families with children, and the husband argued all the communications were only with the wife, his motion to dismiss was denied. The fair housing law does not allow a landlord to escape liability by delegating the duty not to discriminate. Payton v. de Velasco Guallart, VLW 023-3-068 (10 pp.)

 

Commercial –

Rule 9(b) standard

In an issue of first impression, the court joined other circuits in holding that when alleging fraud by omission or concealment, given that critical facts related to such allegations are uniquely within the defendant’s knowledge and control, plaintiffs may partly rely on information and belief without running afoul of Rule 9(b). However, they must state the factual allegations that make their belief plausible. Corder v. Antero Resources Corporation, VLW 023-2-006 (39 pp.)

CONSTITUTIONAL

Constitutional –

Admissions policy

Where a new admissions policy at Thomas Jefferson High School for Science & Technology visits no racially disparate impact on Asian American students, the district court erred when it concluded the policy violates the Fourteenth Amendment’s guarantee of equal protection. Coalition for TJ v. Fairfax County School Board, VLW 023-2-135 (75 pp.)

 

Constitutional –

Firearms purchases

Where plaintiffs challenged federal laws prohibiting them from purchasing handguns from federal firearm licensed dealers, or FFL, because they are over 18 but less than 21 years old, the laws were unconstitutional. Prohibitions on the rights of 18-to-20-year-olds to purchase handguns are not supported by our nation’s history and tradition. Fraser v. Bureau of Alcohol, Tobacco, Firearms and Explosives, VLW 023-3-254 (71 pp.)

 

Constitutional –

First Amendment

Where an organization alleged that two Virginia Tech policies violate the First Amendment rights of its students, but the organization lacked standing to challenge one policy, and failed to show the second policy violated the First Amendment, its motion for injunctive relief was denied. Speech First Inc. v. Sands, VLW 023-2-143 (71 pp.)

 

Constitutional –

First Amendment retaliation

Where a former state court magistrate judge was terminated after she made comments to a local paper about pending matter, her First Amendment retaliation claim may proceed. Fuller v. Hade, VLW 023-3-098 (24 pp.)

 

Constitutional –

First Amendment retaliation

Where a woman sued a Spotsylvania County Deputy Sheriff after learning the deputy offered to buy lunch for another officer if he cited the woman for reckless driving, but there was no error in the jury instructions or evidentiary rulings, the verdict for the deputy was affirmed. Snoeyenbos v. Curtis, VLW 023-2-053 (18 pp.)

 

Constitutional –

First Amendment retaliation

Where a university professor was disciplined after students complained about his making comments about his personal sex life and the sex lives of his students, he failed to state a claim against the university under Title IX, for procedural due process and for First Amendment retaliation. Kashdan v. George Mason University, VLW 023-2-152 (13 pp.)

CONSUMER LAW

Consumer Law –

Lemon Law

Collateral or incidental damages under Virginia’s “Lemon Law” do not include pre-litigation attorney’s fees. “Therefore, when a manufacturer provides a refund, it is not required to pay pre-litigation attorney’s fees to satisfy its obligations under the Lemon Law.” Ranger v. Hyundai Motor America, VLW 023-6-008 (6 pp.)

CONSUMER PROTECTION

Consumer Protection –

‘Debt collector’

Where a law firm drafted, processed and sent delinquent rent notices, that was “debt collection” activity that subjected it to the requirements of the Fair Debt Collection Practices Act. Lord v. Senex Law PC, VLW 023-3-283 (19 pp.)

 

Consumer Protection –

False statements

Where the purchaser of a treadmill alleged that manufacturers made false representations about the treadmills’ horsepower, her Virginia warranty and fraud claims survived their motions to dismiss. Prince v. Johnson Health Tech Trading Inc., VLW 023-3-033 (12 pp.)

 

Consumer Protection –

Lemon Law

Where the owner of a truck who is suing the manufacturer for violating Virginia’s Lemon Law and the federal Magnuson-Moss Warranty Act failed to identify his expert within the deadline set by the court, but there was sufficient time to examine the expert without disrupting the trial and the testimony was important to the case, the manufacturer’s motion to exclude was denied. Rodriguez v. Ford Motor Co., VLW 023-3-035 (7 pp.)

 

Consumer Protection —

Long-term care insurance settlement

Where three persons argued that it was unfair to send rate increase letters to class members during the same time period as settlement negotiations and preliminary approval of a putative class-action suit over long-term care policies was occurring, their objections were overruled. Haney v. Genworth Life Insurance Co., VLW 023-3-032 (40 pp.)

 

Consumer Protection –

Military Lending Act

Where a proposed class action was filed against a lender for allegedly violating the Military Lending Act, but the majority of the challenged transactions were time-barred, and the remaining challenged transactions failed to state a claim, the suit was dismissed. Wood v. Omni Financial of Nevada Inc., VLW 023-3-290 (53 pp.)

CONTRACT

Contract –

Beneficiary

Where the Culpepper County sheriff and the Piedmont Regional Jail Authority entered a contract under which PRJA would provide housing and medical care to the sheriff’s inmates, appellant inmate is not an intended third-party beneficiary of the contract. Therefore, he lacks standing to obtain a declaration that the sheriff must pay his medical expenses suffered after another inmate assaulted him. Hubbard v. Jenkins, VLW 023-7-068 (45 pp.)

 

Contract –

Consideration

Appellant can enforce the personal guaranty of appellee’s agent because there was adequate consideration for the agreement. The trial court incorrectly held that the agreement was unenforceable because appellant did not rely on the guaranty when extending credit to appellee. CSE, Inc. v. Kibby Welding, et al., VLW 023-7-221 (11 pp.)

 

Contract –

Contingent-fee agreement

Where appellant lawyer engaged appellee, a lawyer who appellant supervised at the firm where they both worked, to represent him in a civil matter, the parties’ contingent-fee agreement is enforceable. Moncrieffe v. Deno, VLW 023-7-034 (16 pp.)

 

Contract –

Duty to intervene

Where a subcontractor sued an employer after the employer refused to intervene in a dispute between the subcontractor and general contractor, the employer’s motion to dismiss was granted. PRIDE Industries v. VersAbility Resources Inc., VLW 023-3-224 (18 pp.)

 

Contract –

Exclusion

Where a title insurance policy included an exclusion which stated that the policy did not insure against any loss or damages arising out of the terms of the declaration, that clear and unambiguous exclusion applied to the lawsuit. However, the landowner could still pursue other avenues of breach that did not involve allegations of loss arising from the terms of the declaration. Landfall Trust LLC v. Fidelity National Title Insurance Company, VLW 023-3-338 (16 pp.)

 

Contract —

Expert testimony

Where one party to a government contractor dispute moved to exclude two experts proposed by the other party, its motions were denied. The experts’ testimony was admissible, not irrelevant and not inherently unreliable. Fluor Federal Solutions LLC v. BAE Systems Ordnance Systems Inc., VLW 023-3-018 (17 pp.)

 

Contract –

Foreclosed house

Where the former owner of a house that was sold at foreclosure alleged that the property had an assessed value of $482,800, but was sold for only $87,114, but the record showed there was an unpaid federal tax lien and the homeowner presented no evidence showing the sales price was inadequate, the defendants were granted summary judgment. Carner v. Clements, VLW 023-3-175 (17 pp.)

 

Contract –

Parking space dispute

Where appellant condominium association reallocated parking spaces, the trial court correctly concluded that appellant breached its contract with appellee and violated Virginia’s Condominium Act and a county zoning law. Telegraph Square II, a Condominium Unit Owners Ass’n v. 7205 Telegraph Square, VLW 023-7-149 (38 pp.)

 

Contract –

Priority

Where appellee, a surety company, issued performance and payment bonds to a construction company that later defaulted on its obligations, the surety lacks a priority interest in the company’s deposits held by appellee bank. The bank had a perfected security interest in the deposit funds, which were used to offset the company’s outstanding debt. The surety, as the company’s subrogee, cannot acquire greater rights than the company to the funds on deposit. Arch Insurance Co. v. FVCbank, VLW 022-6-061 (19 pp.)

 

Contract –

Property conveyance

Where a building owner sued its tenant for breach of contract, the owner could still pursue its claim after transferring the property to a third party. Oreze Healthcare v. Eastern Shore Community Services Board, VLW 023-6-013 (8 pp.)

 

Contract –

Shareholder distribution

Where the wife showed that she was a shareholder with her estranged husband in their podiatrist business, and that he made distributions to shareholders in September 2021 but that she failed to receive any distributions, she was entitled to 50.2% of the distributions. Mason v. Mazzei, VLW 023-3-134 (37 pp.)

 

Contract –

Statute of limitations

Where appellant defaulted on a bank loan, the circuit court applied the correct statute of limitations, correctly determined the accrual date for the bank’s claim against him and correctly determined how long the statute of limitations was tolled while appellant was in bankruptcy. Evans v. Truist Bank, VLW 023-7-120 (6 pp.)

 

Contract –

Title insurance

Where a policyholder sued its title insurer for negligently performing title searches and producing inaccurate legal descriptions of the property, the negligence claim was dismissed. The source of duty rule and/or the economic loss rule provided that the policyholder’s remedy was only in contract. Landfall Trust LLC v. Fidelity National Title Insurance Company, VLW 022-3-557 (16 pp.)

 

Contract –

Unambiguity

The circuit court correctly concluded that a road extension contract unambiguously provided that the developer of a residential neighborhood and an apartment complex for seniors was responsible for the contract costs. Mintbrook Developers v. Groundscapes, et al., VLW 022-7-582 (13 pp.)

 

Contract –

Unjust enrichment

Where the parties did not dispute that a valid contract existed between them, the plaintiff’s alternative claim for unjust enrichment was dismissed. A plaintiff may plead an unjust enrichment claim in the alternative only in the absence of an enforceable contract. Colonna’s Shipyard Inc. v. Coastal Cement Corporation, VLW 023-3-250 (13 pp.)

 

Contract –

Virginia UCC

Where a government contractor asserted a claim for breach of an express warranty; a claim for the breach of implied warranty of merchantability and a claim for breach of the implied warranty of fitness for a particular purpose against a subcontractor, but their contract was for services, the warranty claims was dismissed. The Virginia Uniform Commercial Code applies to “goods,” not services. NAC Consulting LLC v. 3Advance LLC, VLW 023-3-016 (16 pp.)

CRIMINAL

Criminal –

Circumstantial evidence

Even though a confidential informant did not testify because he died before trial, there is sufficient circumstantial evidence to uphold appellant’s conviction for distribution of a Schedule I or II controlled substance. Maust v. Commonwealth, VLW 023-7-190 (26 pp.)

 

Criminal –

Common-law abatement

Where a statute repealing Code § 18.2-250.1 (possession of marijuana) was enacted before appellant’s conviction, the common-law rule of abatement does not void his conviction. Virginia’s saving statute, Code § 1-239 controls the result in this case. The conviction is affirmed. Artis v. Commonwealth, VLW 023-7-018 (11 pp.)

 

Criminal –

Concealed weapon carry

Where appellant was convicted of carrying a concealed handgun while intoxicated, the conviction is reversed. The holstered handgun was in a zippered bag on the passenger seat of the vehicle he was driving. Morgan III v. Commonwealth, VLW 022-6-060 (8 pp.)

 

Criminal —

Drug overdose immunity

Where a statute provides immunity from arrest or prosecution to individuals who seek emergency medical assistance for a drug overdose, appellant is not entitled to the statute’s protection. He did not remain at the overdose scene as the statute requires. Morris v. Commonwealth, VLW 023-7-161 (75 pp.)

 

Criminal –

Evidence

Where appellant presented a note to a store clerk “demanding money or her life[,]”and then put her hand in her pocket, there was sufficient evidence for a jury to find that the bulge in the robber’s pocket was a gun. Commonwealth v. Barney, VLW 023-6-005 (29 pp.)

 

Criminal –

Expungement

Even though appellant’s record inaccurately reflected that he had been convicted of felony DWI, the prosecutor’s subsequent amendment of the arrest warrant to misdemeanor driving while intoxicated, second offense within 10 years, was not a dismissal of the felony charge.  Forness II v. Commonwealth, VLW 023-6-001 (17 pp.)

 

Criminal –

Expungement petition

Where the circuit court employed an incorrect standard to review and deny appellant’s expungement petition, the circuit court’s denial is reversed. The case is remanded for reconsideration under a clarified review standard. Williams v. Commonwealth, VLW 023-6-010 (15 pp.)

 

Criminal –

Jury demand statute

Where appellant’s jury sentencing demand was not filed at least 30 days before trial, the trial court correctly ruled that the demand was untimely. The relevant statute states that the demand “shall” be filed “at least 30 days prior to trial.” The trial court correctly interpreted “shall” as mandatory. Bland-Henderson v. Commonwealth, VLW 023-7-135 (17 pp.)

 

Criminal –

‘Significant and permanent’ injuries

Where appellant punched the victim several times in the mouth, knocking out one tooth and damaging five more that had to be pulled, this was a “significant, permanent injury” within the meaning of the aggravated malicious wounding statute. Alston v. Commonwealth, VLW 023-7-179 (18 pp.)

 

Criminal –

Stipulation

In an issue of first impression, the court joined other circuits that have unanimously concluded that a district court may enforce in a later trial a stipulation entered into in an earlier trial, unless the stipulation was expressly limited to the first proceeding. US v. Robertson, VLW 023-2-136 (15 pp.)

 

Criminal –

Warrantless search

Where police entered appellant’s apartment without a warrant, evidence found during the search should have been suppressed. Police lacked probable cause or exigent circumstances to enter. Appellant’s conviction for a drug offense is vacated and the case is remanded for further proceedings. Baskerville v. Commonwealth, VLW 023-7-084 (15 pp.)

DEFAMATION

Defamation –

Sanctions 

Where two defendants in this defamation case moved for post-trial sanctions against plaintiff and his counsel after a jury returned a defense verdict, the trial court erred by denying one defendant’s motion. Nestler, et al. v. Scarabelli, et al. VLW 023-7-157 (21 pp.)

DOMESTIC RELATIONS

Domestic Relations –

Child’s relocation

“When granting primary physical custody to a parent in an initial custody determination, the trial court need not separately determine whether living out-of-state is in the best interests of the child, if the prospective custodial parent already lives out of state.” Brandon III v. Coffey, VLW 023-7-168 (8 pp.)

 

Domestic Relations –

Desertion

Even though the record supports grounds for divorce based on the parties living apart for a year or more, the record also supports the trial court’s finding that wife deserted the marriage. The trial court was free to choose either ground. Payne v. Payne, VLW 023-7-165 (20 pp.)

 

Domestic Relations –

Military pension

The Court of Appeals erred when it ruled that “certain indemnification provisions in a property settlement agreement that [wife] entered into with [husband] violated federal law and, therefore, were void ab initio.” Yourko v. Yourko, VLW 023-6-007 (11 pp.)

 

Domestic Relations –

Military pension election

Where the parties agreed that appellant could not reduce appellee’s share of his military pension by electing to receive disability pay instead of retired pay, appellant’s later election to receive disability pay and Combat-Related Special Compensation, which reduced appellee’s share, cannot be undone with a Virginia Circuit Court’s order. Randolph v. Sheehy, VLW 023-7-005 (12 pp.)

 

Domestic Relations –

Premarital agreement

Where plaintiff and her now-deceased husband signed a premarital agreement in which each party disavowed any interest in the other’s assets, the agreement is enforceable despite plaintiff’s arguments that she did not voluntarily make the agreement and that it is unconscionable. Munhuu v. Joiner, VLW 023-8-014 (12 pp.)

 

EMPLOYMENT

Employment –

COVID-19 retaliation

Where a man alleging that he suffered adverse employment actions and retaliatory treatment as the result of his views and opinions regarding the safety of the COVID-19 vaccine moved to file an amended complaint, and it was not clear that the proposed amendments were clearly futile, the motion was granted. Sigoloff v. Austin, VLW 023-3-217 (4 pp.)

 

Employment –

FLSA

Where defendants sued for allegedly not paying overtime argued the plaintiffs’ Fair Labor Standards Act claims were mooted by the defendants’ tendering of the disputed funds to the Department of Labor, this argument was rejected. Waiver requires an agreement to waive rights, which must exist in addition to payment received. Hernandez v. KBR Inc., VLW 023-3-255 (22 pp.)

 

Employment –

Non-solicit dispute

Where a company sued its former employees for violating a non-solicitation promise, and sued their new company for tortious interference, the United States was permitted to intervene in the suit to invoke the “state secrets” privilege because the companies performed classified work for government agencies. Grid Networks LLC v. Quantum Leap Resources LLC, VLW 023-3-183 (9 pp.)

 

Employment –

Termination

Where two persons moved for summary judgment on their claims that they were unjustly and inappropriately terminated from their positions at a Martinsville hotel, but they relied only on unsupported, conclusory statements, their motion was denied. Lattimore v. Brahmbhatt, VLW 023-3-012 (5 pp.)

 

Employment –

Whistleblower

Where a man previously claimed his termination by a government contractor constituted discrimination and retaliation, and the contractor prevailed on those claims, res judicata barred the man’s new complaint that the same conduct was in retaliation for his alleged whistleblowing activity. Ikome v. General Dynamics Information Technology Inc., VLW 023-3-315 (16 pp.)

EMPLOYMENT DISCRIMINATION

Employment Discrimination –

Attorneys’ fees

Although the court previously held an employee’s race discrimination claim was time barred, it refused to award attorneys’ fees to the prevailing supervisor. The fact that the court rejected the man’s “continuing violation” theory wasn’t enough to show that the suit was “frivolous, unreasonable, or without foundation.” Mills v. City of Norfolk, VLW 023-3-141 (5 pp.)

 

Employment Discrimination –

Continuing violation doctrine

Where the lawsuit was filed within 90 days of the employee’s receipt of a determination of her second complaint, and that complaint alleged a hostile work environment, the continuing violation doctrine may allow her to overcome any objection as to time-barred discrete acts, so long as all acts are part of the same unlawful employment practice. Andrews v. DeJoy, VLW 023-3-275 (6 pp.)

 

Employment Discrimination –

Deposition

Where an employee asserting claims for age discrimination and retaliation failed to explore reasonable alternatives before he sought to depose the chairman of the board of directors and chairman of its Governance and Compensation Committee, the magistrate judge did not err in granting the bank’s motion for a protective order. Kendrick v. Carter Bank & Trust Inc., VLW 023-3-264 (15 pp.)

 

Employment Discrimination –

Disability bias

Where an electrician alleged that he was terminated by Fairfax County because of his refusal to comply with the county’s COVID-19 policy, his disability discrimination and retaliation claims were dismissed. It was implausible that the county regarded him as disabled simply because he was unvaccinated. Schneider v. County of Fairfax, VLW 023-3-104 (15 pp.)

 

Employment Discrimination –

FMLA leave

Where a salesperson argued he was terminated because he took leave under the Family and Medical Leave Act, or FMLA, but the record showed his employer terminated him after learning that he was permanently banned from entering Inova facilities, which he failed to disclosure after being made aware that Inova was the largest client in the region he would be servicing, and after he was told that he would be expected to visit client facilities as a part of his job duties, his employer prevailed on the FMLA claim. Traish v. ZOLL Medical Corporation, VLW 023-3-118 (13 pp.)

 

Employment Discrimination –

Race

Where a healthcare worker alleged she was paid a lower hourly rate and paid for fewer hours than a similarly situated Korean employee, she plausibly alleged a claim for race discrimination. Osman v. Youngs Healthcare Inc., VLW 023-3-064 (15 pp.)

 

Employment Discrimination –

Race

Where a former employee of the Albemarle County School Board alleged that she felt compelled to resign after experiencing repeated race-based comments that caused her mental and emotional distress, and after the school board did not intervene or act to address these comments, she plausibly alleged a claim for race discrimination. Mais v. Albemarle County School Board, VLW 023-3-070 (22 pp.)

 

Employment Discrimination –

Retaliation

Where a former Wal-Mart employee alleged she was fired in retaliation for her alleged whistleblowing activity, but she failed to provide details showing she engaged in activity protected by Title VII, her Title VII retaliation claim was dismissed. Morrison v. Wal-Mart, VLW 023-3-234 (7 pp.)

 

Employment Discrimination –

Sex discrimination

Where a woman presented no evidence that would allow a factfinder to find that sex played any role in her former employer’s decision to terminate her employment, and the alleged male comparator was not similarly situated to the woman, the trial court erred in awarding the woman compensatory and punitive damages. Balderson v. Lincare Inc., VLW 023-2-075 (21 pp.)

 

Employment Discrimination –

Title IX

Where an investigator in Liberty University’s Office of Equity & Compliance, or OEC, alleged that Liberty retaliated against her for complaining that Liberty discriminated against a male student during its Title IX investigation and for participating in an investigation about the student’s complaint, but Title VII doesn’t protect students from sex discrimination, it was unreasonable for the investigator to believe that the perceived discrimination against the student — who was not an employee — violated Title VII. Dufort v. Liberty University, VLW 023-3-010 (12 pp.)

 

Employment Discrimination –

Unvaccinated employee

Where an unvaccinated employee alleged his employer discriminated against him because he refused to comply with its COVID-19 policy, but the evidence showed the company did not regard him as disabled, there was no record of disability and he suffered no adverse employment action, his discrimination claim was dismissed. Leggo v. M.C Dean Inc., VLW 023-3-050 (15 pp.)

 

EVIDENCE

Evidence –

Errata sheet

Where a plaintiff attempted to substantively change her deposition testimony via an errata sheet, the errata sheet was stricken. The changes constituted improper substantive revisions that materially altered her testimony. Morrow v. Navy Federal Credit Union, VLW 023-3-214 (6 pp.)

 

Evidence –

Expert report

Where a life care planner selected which medications, treatments, therapies or modalities she believed an injured party would require in the future, she was rendering medical opinions without sufficient medical grounding or expert support. Her expert report was excluded as a result. Norman v. Leonard’s Express Inc., VLW 023-3-219 (14 pp.)

 

Evidence –

Video clip

Where a woman sued for injuries she suffered in a motor vehicle accident involving a tractor trailer, the defendant’s attempt to prevent the jury from seeing a 12-second-long video clip, apparently recorded from inside the truck’s cabin that shows the vehicles colliding, was denied. The evidence was relevant to the issue of resulting injuries and was not more prejudicial than probative.  Norman v. Leonard’s Express Inc., VLW 023-3-268 (20 pp.)

FAMILY LAW

Family Law –

Child custody

Where a child’s former foster parents sought to regain custody after the J&DR court placed the child with her biological mother, their petitions for custody and visitation were correctly denied because they did not prove “current actual harm” to the child. Moore, et al. v. Joe, VLW 023-7-035 (11 pp.)

 

Family Law —

Frozen embryos

Where the court previously ruled that a divorced couple’s frozen embryos could not be partitioned under the goods or chattels statute because the statute “refers only to partition of goods or chattels found on real property being partitioned,” on reconsideration, the court now rules that the statute permits the partition or, in the alternative, the sale, of ‘goods or chattels’ regardless of whether they are found on real property being partitioned.” Heidemann v. Heidemann, VLW 023-8-010 (9 pp.)

INSURANCE

Insurance –

Coverage

Where the government executed a search warrant at a law firm, that wasn’t a “claim” under the firm’s insurance policy. The warrant authorized law enforcement to carry out the search and seizure without regard to any response by the target of the warrant. Brown Goldstein Levy LLP v. Federal Insurance Company, VLW 023-2-133 (14 pp.)

 

Insurance –

Cryptocurrency theft

Where a homeowner’s policy required a “direct physical loss,” the theft of cryptocurrency was not covered. Cryptocurrency, by its nature, exists only virtually or digitally and has no physical or tangible existence. Sedaghatpour v. Lemonade Insurance Company, VLW 023-3-047 (11 pp.)

 

Insurance –

Duty to defend

Where a man alleged he was injured when he inhaled Legionella bacteria while using a hot tub and pool at a Best Western, an insurance company must defend that suit. Neither the bacteria exclusion nor the pollution exclusion applied to bar coverage. The Brethren Mutual Insurance Company v. Jai Dev Inc., VLW 023-3-057 (25 pp.)

 

Insurance –

Duty to defend

Where a restaurant was sued by a group of models who alleged the restaurant had misappropriated their images on its website and social media accounts to promote its business, the insurance carrier had no duty to defend the restaurant. The claims were either outside coverage or excluded by policy exclusions. Covington Specialty Insurance Company v. Omega Restaurant and Bar LLC, VLW 023-3-170 (25 pp.)

 

Insurance –

Long-term disability benefits

Where an insurer defending its denial of long-term disability benefits argued that courts in this circuit are required to resolve ERISA denial-of-benefits cases via summary judgment and that the district court here thus erred in dispensing with this case through a bench trial, that argument was denied. Tekmen v. Reliance Standard Life Insurance Company, VLW 022-2-266 (29 pp.)

 

Insurance –

Designated beneficiary

Where the decedent’s two children argued the non-family member their mother designated as the beneficiary of her life insurance policy had ill motives and took advantage of their mother’s mental health issues, but the children failed to support these allegations with any proof, the non-family member was entitled to the proceeds. UNUM Life Insurance Company of America v. Cooper, VLW 022-3-563 (8 pp.)

 

Insurance –

UM/UIM coverage

Where a tow truck driver was connecting a disabled RV to his wrecker at the time it was struck by another vehicle, he was “using” a vehicle within meaning of Va. Code Ann. § 38.2- 2206(B) and was accordingly entitled to uninsured/underinsured motorist coverage from the vehicle’s insurer. Moore v. Progressive Universal Insurance Company, VLW 023-3-123 (17 pp.)

 

Insurance –

Use of motor vehicle

Where a gust of wind pushed a luggage cart into appellee while he was loading luggage into his car for a trip, his injuries arose “out of the ownership, maintenance, or use of a motor vehicle,” and he was “‘in or upon, entering, or alighting from’ the vehicle when he was struck[.]” United Services Automobile Ass’n v. Estep VLW 023-7-108 (17 pp.)

 

Insurance –

Wrongful death

Where a man fatally shot a woman, and then pleaded guilty to second-degree murder, but this court would not consider his guilty plea, and it was possible a jury might conclude that he acted negligently or unintentionally, the carrier had a duty to defend him against the wrongful death suit. State Farm Fire and Casualty Company v. Shifflett, VLW 023-3-277 (14 pp.)

INTELLECTUAL PROPERTY

Intellectual Property –

Cybersquatting

Where the pleaded facts did not show that the defendant intended to profit from its alleged improper use of the plaintiff’s trademark on its website, the plaintiff’s motion for default judgment on its cybersquatting claim was denied. Getir U.S. Inc. v. Doe, Case No. 1:21-cv-1237, June 8, 2023. EDVA at Alexandria (Alston). VLW 023-3-322 (15 pp.)

 

Intellectual Property –

Misappropriation

Where one company claimed a competitor misappropriated its trade secrets, but failed to adduce evidence showing its 75 alleged trade secrets met the independent economic value requirement, the competitor prevailed on the claim. Synopsys Inc. v. Risk Based Security Inc., VLW 023-2-157 (31 pp.)

 

Intellectual Property –

Patent protection

Where an inventor argued the United States Patent and Trademark Office wrongfully denied patent protection to his nutritional formulations, but each of the claims dealt with products of nature or abstract ideas that are patent ineligible and the additional claim elements did not transform the natural products into a patent-eligible application, the USPTO was granted summary judgment. Bhagat v. The United States Patent and Trademark Office, VLW 023-3-169 (14 pp.)

 

Intellectual Property —

Trademark protection

Where the company that makes Timberland boots argued that eight specified features of one of its boots qualified for a trademark, but the evidence showed that the features were functional, the boots were ineligible for registration under the Lanham Act. TBL Licensing LLC v. Vidal, VLW 022-3-550 (25 pp.)

MEDICAL MALPRACTICE

Medical Malpractice –

Informed consent

A $3 million medical malpractice verdict (subject to the statutory cap) is reversed because the trial court allowed plaintiff-appellee to present an “impermissible informed consent theory[.]” Pergolizzi v. Bowman, VLW 022-7-582 (13 pp.)

NEGLIGENCE

Negligence –

Damages

Where a driver engaged in willful and wanton negligence when she drove between 76-81 mph on a 45mph road during a morning commute before hitting a pregnant woman’s car and injuring her minor son, the injured woman was awarded more than $266,000 to compensate her for her medical expenses, pain and suffering, emotional distress and mental anguish. Vasterling v. Dirle, VLW 023-3-288 (25 pp.)

 

Negligence –

Expert testimony

Where a man injured in a multi-vehicle automobile accident offered an expert to testify about the weather in the area on the date and at the time of the accident, but the expert relied on radar that scanned the area every 3-6 minutes, the opinion was excluded. Paul v. Western Express Inc., VLW 023-3-150 (13 pp.)

 

Negligence –

Expert testimony

Where an expert neurosurgeon did not review any of the plaintiff’s pre-accident medical records, she could not opine about the woman’s “significant prior medical history” or whether any pre-accident hypertension caused her headaches. Norman v. Leonard’s Express Inc., VLW 023-3-235 (14 pp.)

 

Negligence –

Personal injury

Where a woman alleged a case of wooden blinds fell from a shelf and struck her in the head and shoulders while she was shopping at Wal-Mart, and that the store manager herself improperly stacked and stocked the box of wooden blinds, she plausibly alleged a claim against the store manager. Edmonds v. Harris, VLW 023-3-110 (11 pp.)

 

Negligence –

Standing

Where the fiancé of a woman killed in a motor vehicle accident filed a wrongful death suit, but he had not been qualified as the personal representative of her estate in Virginia and under Virginia law, he lacked standing to pursue the wrongful death action. Grady v. Rothwell, VLW 023-3-181 (6 pp.)

PERSONAL INJURY

Personal Injury –

Prison visitor

Sovereign immunity does not bar a suit under the Virginia Tort Claims Act brought by appellee who alleges prison personnel mistreated her when she came to the prison to visit her husband. Commonwealth v. Muwahhid, VLW 023-7-220 (14 pp.)

REAL ESTATE

Real Estate –

Character of neighborhood

Where county supervisors denied appellant’s special exemption request to rent bedrooms in his house after determining the proposed use would harm the public welfare, the determination correctly included consideration of the neighborhood’s character. The Manors LLC, et al. v. Board of Supervisors of Albemarle County, VLW 023-7-092 (15 pp.)

 

Real Estate –

Estoppel by silence

Where plaintiff had a right of first refusal to buy property it had been leasing from defendant and sued after defendant contracted with a third party to sell the property, defendant’s plea in bar based on an estoppel by silence theory is overruled. Boone & Beckner Implement v. Rudder Family Properties, VLW 023-8-023 (4 pp.)

 

Real Estate —

Lot inspection fee

Where a statute provides fees and charges must be authorized expressly by statute or a condo association’s “declaration,” appellee condo association’s annual lot inspection fee is invalid because the fee is not authorized by the declaration and does not relate to common area use. Burkholder, et al. v. Palisades Park Owners Ass’n, VLW 023-7-070 (16 pp.)

Real Estate –

Prescriptive easement

Where appellants docked a boat along appellees’ retaining wall for more than 20 years, they have established a prescriptive easement to dock the boat. The circuit court erred by concluding that after a former owner sold the land, his permission to dock the boat survived the sale. Horn, et al. v. Webb, et al., VLW 023-6-004 (12 pp.)

 

Real Estate –

Rezoning 

The circuit court incorrectly ruled that appellant homeowners lacked standing to pursue claims arising from a rezoning granted by a county board of supervisors to a supermarket chain so that it could build a warehouse and distribution center near appellant’s homes. This ruling is reversed, as is a ruling that several of the claims were not ripe for resolution. Morgan, et al. v. Board of Supervisors of Hanover County et al., VLW 023-6-003 (21 pp.)

REAL PROPERTY

Real Property —

Mold

Where plaintiff claims defendant landlord did not remediate mold in her rental house from a leaky air conditioner caused health problems for her and her children, recent Virginia Supreme Court precedent requires that defendant’s demurrers to the claims are overruled. Hall v. Aacorn Properties, LLC, VLW 023-8-001 (4 pp.)

SANCTIONS

Sanctions –

Adverse inference instruction

Where a man suing for his alleged injuries in an automobile accident deleted text messages and emails on his second cell phone covering a period of two years, and discarded the phone before defendants could have their own expert conduct a deletion analysis on the phone, the jury may presume that the lost cell phone evidence was unfavorable to the man. Paul v. Western Express Inc., VLW 023-3-149 (16 pp.)

 

Sanctions –

Delayed document production

Although a party in a complex construction case made a late production of more than 79,000 documents, requiring the re-deposition of five witnesses, sanctions were denied. The party acted promptly by alerting the court and opposing counsel about the error, and discovery was completed within the discovery deadline. Fluor Federal Solutions LLC v. BAE Systems Ordnance Systems Inc., VLW 023-3-043 (6 pp.)

SECURITIES

Securities –

Shareholder dispute

Where a man sued by his estranged wife for allegedly breaching his fiduciary duties and converting property belonging to their joint business argued the wife lacked standing because she wasn’t a shareholder of the company, but it was disputed whether the wife paid for the stock, what the company’s books showed and how a jury would view the payments of dividends to the wife, judgment to the husband was denied. Mason v. Mazzei, VLW 023-3-019 (16 pp.)

TAXATION

Taxation –

Apportionment

A taxpayer may elect to use the manufacturer’s income apportionment method contained in Code § 58.1-422 for the first time in an amended tax return. The Department of Taxation and the tax commissioner erred by concluding otherwise. Dep’t of Taxation v. 1887 Holdings, Inc., VLW 023-7-168 (12 pp.)

TORT

Tort –

Assault

In an issue of first impression, the court joined the Third and Eighth Circuits in holding the Federal Tort Claims Act, or FTCA, permits people who allege they were assaulted by Transportation Security Administration screeners to sue the federal government. Osmon v. United States, VLW 023-2-108 (11 pp.)

 

Tort —

Disability discrimination

Where a deaf man alleged that hospital employees knew of a substantial likelihood that he would be unable to communicate without an appropriate auxiliary aid during his child’s birth, yet still made a conscious choice not to provide one, his disability discrimination lawsuit should not have been dismissed. Basta v. Novant Health Incorporated, VLW 022-2-272 (18 pp.)

 

Tort –

Duty of loyalty

Where employees of a government contractor who learned of a subcontract the company was attempting to win then formed their own company, submitted a bid and won the subcontract, a jury will decide if they breached their duty of loyalty to their employer. Adnet Inc. v. Soni, VLW 023-2-123 (25 pp.)

 

Tort –

Extra-organizational communications

Where a vendor argued her communications to a government employee’s supervisor were privileged as a matter of law because both parties shared an interest in discussing the employee’s conduct, that argument was rejected. Because Virginia courts have not explicitly extended application of qualified privilege to extra-organizational communications, the court declined to apply that doctrine here. Thompson v. Rockingham County, VLW 023-3-138 (50 pp.)

 

Tort —

Personal jurisdiction

Where out-of-state defendants’ only contacts with Virginia involved arranging two phone interviews with another person, requesting a business plan, calculating loan terms and offering assistance to complete a proposed real estate transaction, they were not subject to personal jurisdiction in Virginia. Waller v. Nelson, VLW 023-3-346 (20 pp.)

 

Tort –

Protective order

Where a man sued the attorney representing his ex-wife, alleging that she had him arrested and incarcerated without trial, without bail and against his will, but the record showed the man was arrested as a result of his ex-wife’s complaint, after an alleged violation of a protective order, the suit against the attorney was dismissed. Simpson v. City of Fredericksburg, VLW 023-3-111 (6 pp.)

 

Tort –

Punitive damages reduction

Where a jury found numerous defendants liable for their conduct planning and participating in the Unite the Right rally in Charlottesville, and awarded a total of $24 million in punitive damages, the punitive damages were reduced to $350,000. The statutory cap applies to the action as a whole, and not on a per-plaintiff basis. Sines v. Kessler, VLW 022-3-565 (89 pp.)

 

Tort –

Seizure of property

In an issue of first impression, the court held that where a seizure of property was effected for both the “purpose of forfeiture” and the purpose of criminal investigation, the United States is immune from a subsequent tort suit over the seizure. Myers v. v. Mayorkas, VLW 023-2-125 (15 pp.)

 

Tort –

Sexual harassment

Where five former female high-school students alleged they were sexually harassed and groomed by a school employee, and that the school board and administrators had knowledge of the conduct but failed to take adequate steps to stop it, the defendants’ motion to dismiss was denied. Doe v. Roanoke County School Board, VLW 023-3-158 (31 pp.)

 

Tort –

Title IX deliberate indifference

Where a former high-school student alleged that school administrators acted with deliberate indifference in responding to reports that she had been sexually harassed by another student, she was precluded from seeking emotional distress damages, alleged expenses for medical or psychological treatment and any loss of identifiable professional opportunities. Doe v. Fairfax County School Board, VLW 023-3-030 (13 pp.)

 

Tort –

Virginia’s anti-SLAPP statute

Where a defamation lawsuit against the director of Black Lives Matter Franklin County lacked foundation in fact or law, the director and the organization were awarded attorney’s fees and costs pursuant to Virginia’s anti-SLAPP law. Minnix v. Sinclair Television Group Inc., VLW 023-3-273 (19 pp.)

VFOIA

VFOIA –

Citizens Advisory Board

Where plaintiffs allege that five members of a county board of supervisors violated the Virginia Freedom of Information Act’s open meeting requirements when they attended a police Citizens Advisory Board meeting to discuss responses to riots in the wake of George Floyd’s killing, the gathering was a meeting within the meaning of the Virginia Freedom of Information Act. Gloss, et al. v. Wheeler, et al., VLW 023-6-015 (44 pp.)

 

VFOIA –

Electronic meeting

Where county supervisors adopted an updated zoning ordinance via an electronic meeting, Fairfax County resident taxpayers correctly argued that this violated the Virginia Freedom of Information Act. Berry, et al v. Board of Supervisors of Fairfax County, VLW 023-6-006 (29 pp.)

 

VFOIA –

School board meeting

Where a school board provided notice of an open meeting, the Virginia Freedom of Information Act required the board to allow members of the public to attend the meeting in person. Suffolk City School Board, et al. v. Wahlstrom, VLW 023-6-011 (35 pp.)

WILLS & TRUSTS

Wills & Trusts –

Missing will

A copy of the testator’s will, which disinherited her sons, was properly admitted to probate. The estate’s executor successfully rebutted the presumption that the missing original “was revoked by clear and convincing evidence.” Glynn, et al. v. Kenney, VLW 023-7-115 (8 pp.)

 

Wills & Trusts –

No contest provision

Where the decedent’s will contained a no contest provision, the circuit court correctly declined to adopt a good faith and probable cause exception to enforcing the provision. Butler v. Stegmaier, et al., VLW 023-7-122 (21 pp.)

WORKERS’ COMPENSATION

Workers’ Comp –

Good faith effort exception

Where the employer unsuccessfully attempted to hand deliver a list of physicians who could treat an injured worker, the Workers’ Compensation Appellant Commission erred by recognizing a good faith effort exception to the act’s requirement to provide a list. Jalloh v. S.W. Rodgers, et al., VLW 023-7-126 (9 pp.)