The Most Important Opinions of 2024

Virginia Lawyers Weekly presents a compilation of the “important opinions” from January through December 2024. Appearing in print and online each week, these are the decisions chosen by our editorial staff as most likely to impact the practice of law or a given subject area of law.

 

Administrative

Black lung benefits

Although an administrative law judge applied the incorrect legal standard in awarding black lung benefits based on findings of legal pneumoconiosis, the record supported the judge’s alternative finding that the man’s pneumoconiosis was caused by his employment. American Energy LLC v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, 4th U.S. Circuit Court of Appeals, VLW 024-2-182 (36 pp.)

Black lung benefits

Where a company argued an administrative law judge erred in awarding a coal miner benefits for his black lung disease, but the judge carefully considered and analyzed the relevant medical evidence and sufficiently explained his rationale, the company’s petition was denied. Consol of Kentucky Inc. v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, 4th US Circuit Court of Appeals, VLW 024-2-280 (15 pp.)

Child abuse report

Where a person accused of child abuse can gain access to the content of the report and the identity of the accuser if the report is unfounded, and the person can make a showing the complaint or report was made “in bad faith or with malicious intent,” the bad faith exception applies even where the disclosure is made to a mandatory reporter who then conveys the same to the local department. Norfolk Department of Human Services v. Goldberg, Court of Appeals of Virginia, from the Circuit Court of the City of Norfolk, VLW 024-7-261 (15 pp.)

Deliberate privilege

Where parties challenged a final rule of the United States Forest Service, and the court previously held that certain documents must be included in the administrative record because the deliberate privilege did not apply, it denied the government’s motion for reconsideration. The Clinch Coalition v. The United States Forest Service, WDVA at Charlottesville, VLW 024-3-354 (11 pp.)

Grievance procedure

Where a police officer who was terminated after he shot an alleged shoplifter challenged his termination, both the county executive and circuit court were limited to reviewing whether the grievance procedure was followed. Shifflett v. Hill, Court of Appeals of Virginia, from the Circuit Court of Fairfax County, VLW 024-7-314 (12 pp.)

Native American remains

Where a Native American tribe argued the United States government was required to disinter and repatriate remains of two boys under the Native American Graves Protection and Repatriation Act, its suit was dismissed. The statutory subsection relied upon by the tribe applies only to human remains in a holding or collection – not to all remains possessed or controlled by a federal agency. Winnebago Tribe of Nebraska v. Department of the Army, EDVA at Alexandria, VLW 024-3-442 (8 pp.)

‘Treating source’ opinions

Where the opinions of a “treating source” were consistently supported by the medically acceptable clinical and laboratory diagnostic information provided in the records, they were entitled to controlling weight by the administrative law judge. The ALJ thus erred by failing to articulate a “good reason,” supported by substantial evidence in the record, for according little weight to the physician’s opinions. Easterbrook v. Kijakazi, VLW 023-2-274 (20 pp.)

Workers’ comp benefits

When an employee fell while turning to speak with a coworker while on the premises of her employer, she was denied workers’ compensation benefits. The employee did not establish by a preponderance of the evidence that her accident was “caused by any work related risk or significant work related exertion.” O’Brien v. Northern Virginia Community College, VLW 024-7-151 (7 pp.)(unpublished opinion)

Zoning decision

Where the circuit court held that the Stafford County Board of Zoning Appeals and the Board of Supervisors of Stafford County could not file demurrers in response to an appeal to the circuit court from the denial of a zoning application, it erred. Stafford County Board of Zoning Appeals v. Grove, Court of Appeals of Virginia, from the Circuit Court of Stafford County, VLW 024-7-265 (8 pp.)

 

Antitrust

Negative tying restriction

Where a company plausibly alleged that GoDaddy.com violated Section 1 of the Sherman Antitrust Act, and that its conduct tortiously interfered with the company’s existing business contracts and future business opportunities, GoDaddy’s motion to dismiss was denied. Entri LLC v. GoDaddy.com LLC, EDVA at Alexandria, VLW 024-3-554 (19 pp.)

 

Appeals

Incomplete record

Where a defendant’s principal argument on appeal rested on a document that was not included in the record transmitted to the Court of Appeals, and the defendant’s attorney failed to have the record supplemented even after the omission was brought to his attention, it was not properly part of the record on appeal. Eckard v. Commonwealth, Supreme Court of Virginia, VLW 024-6-031 (16 pp.)

Premature appeal

Where a party filed a post-judgment motion, and then noticed an appeal while that motion remained pending, the appeal was premature and should be held in abeyance until the district court ruled on all issues raised in the pending motion. Gelin v. Baltimore County Maryland, 4th U.S. Circuit Court of Appeals, VLW 024-2-303 (12 pp.)

Rule 1:1A

Where prevailing parties argued that they were “entitled” to appellate attorney’s fees under Rule 1:1A, because they were awarded fees in the circuit court, their argument was rejected. Rule 1:1A permits, but does not mandate, a prevailing appellee’s recovery of appellate attorney fees, costs or both. Brant v. Schneider, VLW 024-7-155 (8 pp.)(unpublished opinion)

 

Arbitration

Agreement to arbitrate

Where a woman suing a manufacturer for its allegedly defective recreation vehicle alleged that she was not provided copies of a warranty containing the arbitration provision; was aware there was a warranty, but was not aware of its contents, including the arbitration provision and would not have signed the arbitration agreement if she was aware of it, a jury will decide if she agreed to the arbitration provision.  Anderson v. Ford Motor Company, VLW 024-3-112 (12 pp.)

Arbitrability issues

Where a participant in a “Candy Crush” tournament sued the developer and affiliated companies for fraud, but the game’s terms of use clearly and unmistakably delegated to the arbitrator the exclusive authority to decide certain arbitrability issues, the arbitrator will decide whether the claims are subject to arbitration. Montoya v. King.com Limited, VLW 024-3-233 (22 pp.)

Award

Where a company argued an arbitrator erred in finding for two unions on a dispute over a surcharge for unvaccinated employees, but the arbitrator acted within the scope of his authority in construing and applying the contracts, the arbitrator’s decision was affirmed. Celanese Acetate LLC v. Mid-Atlantic Regional Joint Board, Local 2024, WDVA at Roanoke, VLW 024-3-587 (9 pp.)

Class action

Where a woman filed a putative class action against Lowe’s over its allegedly deceptive practices, Lowe’s motion to compel arbitration was denied, because it unilaterally retained the ability to change the terms of its arbitration agreement without notice to the consumer. Lovinfosse v. Lowe’s Home Centers LLC, EDVA at Alexandria, VLW 024-3-404 (14 pp.)

Delay

Where the employer filed responsive pleadings and engaged in discovery before discovering an arbitration agreement signed by the employee, it did not waive its ability to compel arbitration. Bryce v. SP Plus Corporation, EDVA at Alexandria, VLW 024-3-356 (19 pp.)

Discrimination claims

Where a former employee alleged his discrimination claims against his former employer were subject to arbitration under his Employment Agreement, but nowhere in the agreement did the parties address discrimination, the motion to compel was denied. Tiedeman v. EyeOne PLC, VLW 024-3-265 (14 pp.)

Non-arbitrable claim

Where the court previously held that all claims except one were subject to arbitration, it refused to stay the non-arbitrable claim pending resolution of the arbitration. Hetrick v. IINK Corp., VLW 024-3-217 (16 pp.)

Non-signatories

Where non-signatories to an employment agreement moved to compel arbitration, but they were not intended third-party beneficiaries and the employee’s claims against them did not arise from any duties created by the employment agreement, their motion to compel arbitration was denied. Isernia v. Danville Regional Medical Center, WDVA at Danville, VLW 024-3-590 (28 pp.)

Personal injury claims

Where four fans at a football game claimed they were injured when a railing collapsed, they were bound by an arbitration clause contained in the tickets purchased by their friend. Naimoli Jr. v. Pro-Football Inc., 4th U.S. Circuit Court of Appeals, from DMD at Greenbelt, VLW 024-2-283 (18 pp.)

Sole LLC member

Where the sole member of an LLC asserted a defamation claim against another company, that claim was not subject to arbitration because the member was not a signatory to that agreement. Hetrick Companies LLC v. IINK Corp., VLW 024-3-007 (39 pp.)

 

Attorneys

Contempt

Where a judge held an attorney in contempt and directed court personnel to fine and jail her, the attorney’s false imprisonment and gross negligence claims against the court employees was dismissed. The court personnel were always acting pursuant to a lawful order. Virk v. Clemens, Court of Appeals of Virginia, from the Circuit Court of Loudoun County, VLW 024-7-264 (26 pp.)

 

Bankruptcy

Fraudulently transferred funds

Where the liquidating trustee traced almost $1.4 million transferred from the bankruptcy estate to two churches through intermediaries, judgments were entered against the churches. Allowing the trustee of a bankruptcy estate to recover proceeds of avoided and avoidable transfers from initial, immediate and mediate transferees, even where such transferees are qualified charitable or religious institutions, is not “absurd.” Arrowsmith v. Christian Life Assembly of South Carolina, South Carolina Inc., VLW 024-4-020 (42 pp.)

Nondischargeable debt

Where the debtor previously promised to pay a woman he assaulted $415,000 in installments, the outstanding amount owed, as well as the fees incurred in collecting on the settlement agreement and contesting the debtor’s bankruptcy proceedings, were non-dischargeable as debt incurred “for willful and malicious injury by the debtor to another entity or to the property of another entity.” Yagi v. Hilgartner, VLW 024-2-028 (18 pp.)

Personal property exemption

Where the debtor claimed, pursuant to Virginia Code § 34-13, the unused portion of her Virginia Code § 34-4 exemption in personal property, even though the personal property is not used as her primary residence, the Chapter 13 trustee’s objections were overruled. Virginia Code § 34-13 contains no limitation to real or personal property used as the principal residence of the householder. In re: Nicole J. Poullath, VLW No. 024-4-012 (10 pp.)

Trustee intervention

Where the trustee moved to intervene in a suit by the only creditor, alleging the debt was non-dischargeable because it was obtained by fraud or larceny, the motion to intervene was denied. The trustee failed to show an interest in the subject matter of the action within meaning of the law. Advancial Federal Credit Union v. Par Cruz, VLW 023-4-023 (14 pp.)

Virginia Consumer Protection Act

Where a woman sued her former home contractor (the debtor) for fraud and under the Virginia Consumer Protection Act, the Bankruptcy Court did not err in finding for the contractor on her claims. Defot-Sido v. Carr, EDVA at Alexandria, VLW 024-3-419 (12 pp.)

Voluntary 401k contributions

Where a dispute arose over whether the debtor could voluntarily increase his contributions to his 401k plan, the court established a rule for the public and the bar the greater of: (a) 100% of the debtor’s previous contributions or (b) the amount of an employer’s matching contributions. In re Parquet, VLW No. 024-4-005 (11 pp.)

 

Banks and Banking

HELOC loans

Where a woman alleged a bank allowed her ex-husband to take out $350,000 in loans under a home equity line of credit on her house, and then failed to respond to dispute letters in compliance with the law, she plausibly alleged claims under the Fair Credit Reporting Act. Barnes v. USAA Federal Savings Bank, VLW 024-3-289 (16 pp.)

Improper foreclosure

Where a homeowner alleged a bank failed to send her notice about an additional mortgage payment until after her house was subject to foreclosure, and that an adjacent vacant lot not encumbered by the mortgage was conveyed after the foreclosure sale, the bank’s motion to dismiss was denied. Muller v. ALG Trustee LLC, WDVA at Charlottesville, VLW 024-3-449 (24 pp.)

 

Business

Competing appraisals

Where there were two different appraisals of a surgical center’s value, the trial court erred by deciding which of them to use to determine the value of shares held by a physician who wanted to withdraw from practice and redeem his shares. Fredericksburg Ambulatory Surgery Center v. Massey III, VLW 024-7-033 (9 pp.)

 

Civil Practice

Adverse witness inference

Where the circuit court found an adverse witness’ testimony was “inherently incredible,” but nevertheless held the party that called him was bound by his testimony, it erred. When a party has called an adverse witness, their testimony is usually “‘binding’ on the calling party,” if it is “uncontradicted and is not inherently improbable.” J&R Enterprises v. Ware Creek Real Estate Corp., VLW 024-7-126 (6 pp.)

‘Ambiguous’ scheduling order

Where a scheduling order was ambiguous on when opposition briefs were due, the court accepted the allegedly late briefs. Barricks v. Wright, WDVA at Roanoke, VLW 024-3-373 (4 pp.)

Attorneys’ fees

Where plaintiff seeks attorney fees in connection with defendant’s motion to modify child support, plaintiff’s claim is denied. The parties’ marital settlement agreement does not create a contractual right to fees and plaintiff has not presented a statutory basis to award such fees. Kellog v. Kellog, VLW 024-8-002 (8 pp.)

Attorneys’ fees

Where appellants prevailed on some of their claims after a remand from the Virginia Supreme Court, the trial court incorrectly reduced their attorney fee award because it did not consider the “relative degree of success” appellants obtained. The circuit court incorrectly denied appellants’ claim for attorney fees incurred for an appeal. Sainani, et al. v. Belmont Glen Homeowners Ass’n, VLW 024-7-016 (21 pp.)

Attorneys’ fees

Where a prevailing party filed her request for attorney’s fees, incurred in responding to an unsuccessful appeal by the other party, more than 30 days from the date the Supreme Court of Virginia’s order denying the appeal, it was filed too late. Sidar v. Doe, VLW 024-7-118 (7 pp.)

Conversion verdict

Where appellant left his car with a repair shop and a part owner of the shop filed an online form to initiate the abandoned-vehicle process, eventually obtaining title in his own name, the Court of Appeals erred by reversing a jury’s conversion verdict. McCants v. CD & PB Enterprises d/b/a/ Maaco, et al., VLW 024-6-005 (14 pp.)

Deposition

Where a woman subpoenaed a special prosecutor who was appointed to investigate criminal charges against the defendants, he must appear for a deposition about topics not covered by the work-product doctrine. Hartnett v. Hardenbergh, EDVA at Richmond, VLW 024-3-310 (12 pp.)

Deposition transcript fees

Where a company sued by its former employee obtained deposition transcripts in order to review the employee’s summary judgment evidence and argument, the fees for those transcripts were recoverable via a bill of costs after the company prevailed on the claims. Morris v. Taylor Communications Secure & Customer Solutions Inc., VLW 024-3-059 (6 pp.)

Discovery stay standard

Where a party seeks to stay discovery pending resolution of potentially dispositive motions, the court should consider: (1) whether the movant suffer significant harm by the continuation of discovery and, if so, (2) is the movant likely to succeed on the merits, (3) does the balance of the hardships favor a discovery stay and (4) does any public interest support the stay. Son v. Benson, VLW 024-8-43 (8 pp.)

Employment contract

Where a six-month employment contract between appellant school board and appellee provided him with a $35,284 salary “prorated for the duration of the contract,” the trial court correctly rejected the board’s argument that the salary should be prorated on an annual basis. School Board for the City of Richmond v. Lee Jr., VLW 023-7-468 (22 pp.)

Ex parte discovery

Where an adult motion picture company sued a John Doe for copyright infringement, it was granted permission to serve a subpoena on the Doe’s internet service provider so that it could discover Doe’s identity. Strike 3 Holdings LLC v. Doe, EDVA at Alexandria, VLW 024-3-570 (4 pp.)

False Claims Act investigation

Where the federal government deposed a company’s former CEO and a current executive as part of an ongoing False Claims Act investigation, and the company then produced additional documents to the government in response civil investigative demands, the government may depose these executives a second time. United States v. Sentara Healthcare, VLW 024-3-138 (16 pp.)

Forfeiture

Where the Commonwealth moved to forfeit $35,293 seized from a business as money used in criminal activity, the circuit court improperly granted judgment to the Commonwealth. A man’s description of his ownership interest in the money and evidence of that ownership were sufficient to require a trial. McMillion v. Commonwealth, Court of Appeals of Virginia, VLW 024-7-222 (9 pp.)

Free exercise claim

Where a teacher claims he was discharged for not following, on religious grounds, a directive concerning the use of personal pronouns in reference to a transgender student, the trial court incorrectly dismissed his claims for violation of his free exercise and free speech rights, his right to due process, his rights under the Virginia Religious Freedom Restoration Act, or VRFRA, and his claim for breach of contract. Vlaming v. West Point School Board, et al., VLW 023-6-031 (143 pp.)

Injunctive relief

Where a litigant is otherwise entitled to injunctive relief, the fact that a declaratory judgment action is pending does not prevent a circuit court from awarding that relief. The statute only precludes injunctive relief when the only basis for the injunction is the mere fact that a declaratory judgment action is pending. Leggett v. The Sanctuary at False Cape Condominium Association Inc., VLW 024-6-017 (6 pp.)

Jury instruction

Where the Court of Appeals effectively ruled that the proponent of a jury instruction must argue the specific grounds and relevant facts for the instruction at the time it is proffered in order to preserve the challenge for an appeal, it erred. During the jury instruction phase of trial, counsel is not required to supply the trial court with specific facts in support of proffered instructions when the trial court is already aware of a party’s legal position and the applicable facts in evidence. Emergency Physicians of Tidewater, PLC v. Hanger, VLW 024-6-11 (12 pp.)

Legal malpractice claim

Where the parties signed a written engagement letter, which provided that appellee attorney would file a Chapter 11 bankruptcy petition for appellant and obtain confirmation of the reorganization plan, that “particular undertaking” was concluded when the matter was converted to a Chapter 7 proceeding. Smith Development, Inc. v. Conway, et al., VLW 024-7-001 (21 pp.)

Lien notice

Where Federick County sued a division of the Virginia Treasury, after the division failed to respond to a lien notice, the circuit court wrongly found the suit was barred by sovereign immunity. The General Assembly waived sovereign immunity in the relevant statute. Frederick County, Virginia v. Virginia Department of the Treasury, Court of Appeals of Virginia, VLW 024-7-187 (10 pp.)

Mitigation instruction

Where plaintiff developed a post-operative infection in her wrist, which defendants say was caused by soaking her wrist despite being told not to, the trial court correctly refused to instruct the jury on mitigation of damages. Rodrigue, M.D., et al. v. Butts-Franklin, VLW 024-7-031 (12 pp.)

Necessary party

Where a man sued his sister over rights under powers of attorney alleged executed by their mother, the mother was a necessary party to the suit. Because she could not be joined without destroying diversity jurisdiction, the suit was remanded to the circuit court. Neal v. Neal, VLW 023-3-774 (4 pp.)

Process server fees

Where a company was granted judgment on the former employee’s disability claims, and it then sought to recover fees charged by private process servers to serve subpoenas to obtain the former employee’s medical records, those fees were not recoverable. Keith v. Volvo Group North America LLC, VLW 024-3-058 (8 pp.)

Purposeful availment

Where a North Carolina-based medical provider’s relevant contacts were limited to responding to text messages, emails and telephone calls initiated while the plaintiff was in Virginia, it did not purposefully avail itself of the privilege of conducting activities in Virginia. Carter v. Wake Forest University Baptist Medical Center, VLW 024-6-20 (13 pp.)

Retaliation

Where a fact finder could find that a nurse practitioner stopped an inmate’s mental health medications after an argument between the two, the inmate’s failure to provide adequate mental health care and retaliation claims survived the nurse’s motion to dismiss. Bristol v. Anderson, VLW 024-3-139 (20 pp.)

Request for accounting

Where a woman sought an accounting from the attorney representing her aunt because she believed that he was mismanaging her affairs, the circuit court did not abuse its discretion in denying her petition.  Williams v. Boggess, VLW 024-7-112 (7 pp.)

School Anti-Racism Policy

Where parents, whose children were students in the Albemarle County school system, alleged that the county school board enacted an Anti-Racism Policy that violated their state constitutional and statutory rights, “a majority of this panel concludes that the circuit court was correct to dismiss each claim in the Complaint.” Ibanez, et al. v. Albemarle County School Board, et al., VLW 024-7-056 (100 pp.)

‘SNAP removal’

Where a Virginia-based defendant removed a case to federal court on diversity grounds, because he had not yet been “joined and served,” the court allowed the “snap removal” because the result “may seem odd, but it is not absurd.” Androus v. Androus, EDVA at Alexandria, VLW 024-3-465 (12 pp.)

Sudden emergency instruction

Where appellee rear-ended appellant’s vehicle, the jury’s verdict for appellee in this personal injury case is affirmed. The trial court properly instructed the jury on the sudden emergency doctrine. Further, the evidence supports the jury’s determination that appellee was faced with a sudden emergency. Boyette v. Sprouse, VLW 024-7-018 (12 pp.)

Victim anonymity

Where a woman sued a man for sexually assaulting her, the district court erred by ordering the woman to use her real name going forward. Doe v. Sidar, VLW 024-2-062 (17 pp.)

Virginia’s Fair Housing Law

The Viginia Real Estate Board cannot enforce the portion of Virginia’s Fair Housing Law, or VFHL, that creates a presumption of illegal preference if “words or symbols associated with a particular religion, national origin, sex, or race” are used in published materials. Plaintiff realtor used religious references in her emails and website. Enforcing the provision “amounts to an infringement of her protected activity of expression under the First Amendment[.]” Carter v. Virginia Real Estate Board, VLW 024-8-005 (13 pp.) (memorandum opinion)

Voluntary nonsuit

Even though appellant nonsuited his claim arising from a traffic accident, the court had jurisdiction to issue a default judgment in the insurer’s favor regarding a coverage question. Rosson v. Erie Ins. Exchange, VLW 023-7-476 (13 pp.)

 

Civil Rights

Death of baby

Where prison officials moved to dismiss claims brought by a former inmate who alleged her medical and physical needs were neglected in jail, resulting in the death of her baby, but the woman’s claims were timely brought and were plausible, the motion to dismiss was denied. Johnson v. Rappahannock Regional Jail Authority, EDVA at Alexandria, VLW 024-3-308 (18 pp.)

Deliberate indifference

Where the City of Richmond’s obligation to train officers on their Fourth Amendment obligations in a psychiatric ward is obvious, and the city’s alleged failure to do so amounts to deliberate indifference, the deliberate indifference claim brought by the estate of man survived the city’s motion to dismiss. Byers v. City of Richmond, EDVA at Richmond, VLW 024-3-520, (35 pp.)

Due process

Where the district court held that a former professor waited too long before asserting due process claims against James Madison University and officials, arising out of how it handled sexual harassment allegations made against her, but the suit was filed within two years from the date that the provost issued a “final,” non-appealable decision, the suit was timely. Reid v. James Madison University, VLW 024-2-020 (22 pp.)

Qualified immunity

Where the driver of a vehicle alleged a police officer made death threats after the driver questioned the reasons for a traffic stop, the officer was not entitled to qualified immunity. Nazario v. Gutierrez, VLW 024-2-143 (49 pp.)

Reasonable suspicion

Where officers investigating a nearby stabbing lacked a reasonable suspicion to detain and seize a man as he sat in a vehicle in his driveway, the district court incorrectly dismissed his civil rights claim. Milla v. Brown, 4th U.S. Circuit Court of Appeals, VLW 024-2-206 (21 pp.)

Sheriff liability

Where Spotsylvania deputies arrested a man who to provide identification upon request and charged him with obstruction of justice, they violated the man’s Fourth Amendment rights. A jury will decide if the sheriff is liable for his deputies’ violations. Stout v. Harris, VLW 024-3-153 (11 pp.)

Strip search

Where prison officials argued they were entitled to qualified immunity for claims brought by a contract jail nurse who was strip searched after she was mistaken for an inmate, but the officials’ “mistake” was not reasonable, their immunity motions were denied. Amisi v. Brooks, VLW 024-2-066 (25 pp.)

Video

In a case of first impression, the court held that a district court can consider a video submitted at the motion to dismiss stage when (1) the video is “integral” to the complaint and its authenticity is not challenged, but (2) only to the extent that the video “clearly depicts a set of facts contrary to those alleged in the complaint,” or “blatantly contradicts” the plaintiff’s allegations, rendering the plaintiff’s allegations implausible. Doriety v. Sletten, 4th U.S. Circuit Court of Appeals, VLW 024-2-215 (18 pp.)

 

Commercial

Incorrect jury instructions

Where the circuit court improperly instructed the jury, a verdict awarding over $2 million in damages for alleged misappropriation of trade secrets was vacated. Pegasystems Inc. v. Appian Corporation, Court of Appeals of Virginia, VLW 024-7-230 (61 pp.)

Property damage

Where bailment and negligence claims were filed against a company responsible for transporting property that was fatally damaged while being stored in a warehouse, but the claims were preempted by federal law, they were dismissed with prejudice. Lotte Insurance Co. Ltd. v. R.E. Smith Enterprises Inc., VLW 024-3-268 (48 pp.)

 

Constitutional

Background check requirement

Where a woman alleged a Virginia statute violated the Equal Protection and Due Process clauses by disqualifying her for a substance-abuse counselor position in a state-licensed facility because of her two-decades-old conviction for robbery, these claims survived the Commonwealth’s motion to dismiss. Brown v. Smith, VLW 024-3-301 (18 pp.)

Firearm statute

Where a man indicted for possessing a firearm as a convicted violent felon argued the Virginia statute violated the Second Amendment, his challenge was rejected. Ginevan v. Commonwealth, Court of Appeals of Virginia, from the Circuit Court of Frederick County, VLW 024-7-369 (24 pp.)

First Amendment

Where the record showed that the University of Virginia School of Medicine expelled a student because of his “confrontational, threatening, behavior,” and not because of his speech, the school prevailed on the former student’s First Amendment retaliation claim. Bhattacharya v. Murray, VLW 024-2-070 (57 pp.)

Social media blocking

Where a man sued the Lynchburg Police Department after it allegedly blocked him on Facebook and Instagram, but the police department is not an entity subject to suit under state law, and the allegations failed to establish a viable municipal-liability claim, the suit was dismissed. Santiago v. Lynchburg Police Dep’t, VLW 024-3-075 (8 pp.)

First Amendment retaliation

Where a member of the Roanoke Board of Supervisors alleged she was terminated from her position with the Roanoke County Public Schools in retaliation for her vote on the school budget, her First Amendment retaliation claim survived a motion to dismiss. Hooker v. Facciani, WDVA at Roanoke, VLW 024-3-544 (18 pp.)

 

Consumer Protection

Attorneys’ fees, costs

Where a woman sought to recover her attorneys’ fees and costs after her Virginia Motor Vehicle Warranty Enforcement Act claim was settled, her request was granted, although the claimed fees were reduced for unrelated claims and vague, unnecessary and duplicative time entries. Anderson v. Ford Motor Company, EDVA at Richmond, VLW 024-3-396 (11 pp.)

Credit reporting agency

Where a woman alleged she did not open, use or authorize an account, and a credit reporting agency conceded that it was not accurate to report her as an obliger on the account, the woman’s motion for partial summary judgment was granted. Gonzalez v. Equifax Information Services LLC, EDVA at Richmond, VLW 024-3-425 (8 pp.)

Fair Credit Reporting Act

Where a student loan servicer sued for allegedly violating the Fair Credit Reporting Act argued that it was immune from suit because it was an arm of the state, its argument was rejected. Neither Supreme Court precedent nor Fourth Circuit authority supported the servicer’s position. Pellegrino v. Equifax Information Services LLC, VLW 024-3-003 (18 pp.)

Fraud

Where homeowners alleged their general contractor falsely represented that he employed only licensed subcontractors, and they submitted affidavits stating they would not have entered into the contract if they knew this statement was false, the district court wrongly granted summary judgment to the contractor on this claim. Harrell v. DeLuca, VLW 024-2-100 (22 pp.)

Identity theft

Where a woman alleged mortgage companies ignored or timely failed to respond to multiple notifications that she was the victim of identify theft, she plausibly alleged claims under the Fair Credit Reporting Act. Muniz v. Freedom Mortgage Corporation, VLW 024-3-142 (26 pp.)

Online purchase

Where a man sued Home Depot for damages arising from his online purchase of a bathtub, but the court dismissed the federal cause of action, and the amount is controversy was less than the jurisdictional requirement for diversity jurisdiction, the suit was remanded to state court. Kruglyak v. Home Depot USA Inc., VLW 024-3-183 (22 pp.)

Overdraft fees

Where a credit union moved to dismiss a putative class action over its overdraft fee policy, but the contract was ambiguous on whether the credit union’s practice was allowed, its motion to dismiss was denied. Virginia is for Movers LLC v. Apple Federal Credit Union, VLW 024-3-146 (30 pp.)

Pre-foreclosure notices

Where a mortgage servicer argued it did not engage in collection activity, but its pre-foreclosure notices constituted collection activities, its motion to dismiss two claims under the Fair Debt Collection Practices Act was denied. Lipford v. Specialized Loan Servicing LLC, EDVA at Alexandria, VLW 024-3-408 (10 pp.)

Unvalidated debt

The trial court erred when it determined that appellant was liable for a debt because appellee debt collector lacked standing to sue. This is so because appellee “did not provide or identify any information that showed that it had any ‘substantial legal rights’ that would be affected — namely, that [appellee] owned a debt owed by [appellant].” The circuit court’s ruling for appellee is reversed. Green v. Portfolio Recovery Associates, VLW 024-7-058 (30 pp.)

Wrongfully repossessed vehicle

Where an auto dealership wrongfully repossessed a woman’s vehicle because of a dispute between the dealership owner and the woman’s then-boyfriend over drug money, the woman prevailed on her conversion and Virginia Uniform Commercial Code claims. Shelton v. Marshall, VLW 024-3-150 (23 pp.)

 

Contract

Attorneys’ fees shifting provision

Where purchases of a recreational vehicle sued the manufacturer and seller, the court will enforce a fee-shifting provision in the purchase agreement that makes plaintiffs responsible for the “reasonable attorneys’ fees and costs” if they do not prevail. Such provisions are valid and enforceable in Virginia. Orr v Keystone RV Company, EDVA at Richmond, VLW 024-3-475 (12 pp.)

Block billing

Where a defendant prevailed in a breach of contract and conspiracy suit, he was awarded over $230,000 in attorney’s fees and costs. Although the losing party claimed the fees should be reduced because of instances of block billing, the cumulative hours billed for each entry were reasonable in light of the various tasks listed therein. Colonial River Wealth Advisors LLC v. Cambridge Investment Research Inc., VLW 024-3-020 (26 pp.)

College savings account

Where the parties’ divorce settlement agreement required the father to contribute $10,000 annually into his daughter’s college savings account, but he then refused to use the funds to pay for her college expenses, he was in violation of a court order. Cohn v. Cohn, Fairfax County Circuit Court, VLW 024-8-077 (12 pp.)

Damages

Where a woman suing a roofing contractor for breach of contract introduced evidence demonstrating the difference between the value of the roof she had contracted for and the deficient one she ultimately received, as well as the costs she incurred because of the breach, she proved her damages with reasonable certainty. Hardesty Construction Inc. v. Weedon, Court of Appeals of Virginia (unpublished opinion), from the Circuit Court of Henrico County, VLW 024-7-316 (12 pp.)

Email exchanges

Where emails exchanged between the parties’ counsel did not contain all of the required material terms of a settlement, the circuit court erred in finding an enforceable settlement agreement. Chong v. Chong, Court of Appeals of Virginia (unpublished opinion), from the Circuit Court of Fairfax County, VLW 024-7-325 (15 pp.)

Forum-selection clause

Where a company alleged two former employees breached non-compete clauses when they started their own business, the new company was bound by the forum-selection clause in the former employees’ agreements. Servicios Latinos Inc. v. Gomez, EDVA at Norfolk, VLW 024-3-596 (9 pp.)

Franchise agreement

Where a former franchisee continued competing with the franchisor after her franchise agreement was terminated, the franchisor was awarded over $220,000 in damages and the franchisee was ordered to comply with the agreement. JTH Tax LLC v. Manzo, EDVA at Norfolk, VLW 024-3-660 (18 pp.)

Insurance coverage

Where the owner of a beach house alleged the defendant failed to procure sufficient insurance to cover a loss, the defendant’s motion to dismiss the breach of contract and tort claims was denied. 5006 Ocean Front Avenue LLC v. AssuredPartners of Virginia LLC, VLW 024-3-297 (9 pp.)

Landlord’s duty to mitigate

Where a tenant’s apartment was infested with fleas, it was the landlord’s duty to mitigate the problem, even though the lease purported to shift that responsibility to the tenant. Under the Virginia Residential Landlord Tenant Act, tenants are entitled to a warranty of habitability, which the parties cannot waive. Parrish v. Vance, VLW 024-7-080 (19 pp.)

Limitation of damages clause

Where a contractor moved to enforce a limitations of damages clause in a subcontract, its request was denied because the clause was null and void under Virginia Code § 1-4.1:1. BAE Systems Ordnance Systems Inc. v. Fluor Federal Solutions LLC, VLW 024-3-051 (13 pp.)

Long-term disability benefits

Where an insurance carrier wrongfully stopped paying a woman’s long-term disability benefits, she was awarded benefits from the date of termination. Wonsang v. Reliance Standard Insurance Company, VLW 024-3-223 (30 pp.)

Management agreement

Where a hotel entered into a 10-year management agreement, but terminated the agreement one year later, the hotel was sued for breach of contract. Although the hotel argued its early termination was proper, that could not be determined on a motion to dismiss. Aimbridge Hospitality LLC v. Provident Group – Radford Properties LLC, WDVA at Roanoke, VLW 024-3-367 (26 pp.)

Marital separation agreement

Where the parties agreed in a marital separation agreement that the wife “shall have 50% of” husband’s “military retirement, when a military retirement is earned by” husband, that referred to the marital share interest that already existed at the time the agreement was executed, and not to military retirement earned because of military service after the parties’ divorce. Younkle v. Schillmoeller, VLW 024-6-13 (5 pp.)

Mutual mistake

Where parties entered a real estate lease without knowledge of a government ordinance that required closure of a portion of the real property, that constituted a mutual mistake of material fact justifying rescission of the lease. Meredith Investment Partners LP v. Houssni, et al., VLW 024-8-028. (5 pp.)

Service dog

Where an organization that trains service dogs sought the return of a dog from two people who refused to return her, and it alleged that it expected the dog to produce four litters of eight puppies valued at $3,500 per puppy, or $112,000, that sufficed for diversity jurisdiction. Kindred Cain9 Connections Inc. v. Booth, WDVA at Abingdon, VLW 024-3-402 (7 pp.)

Sovereign immunity

Where a company sued the Commonwealth of Virginia for breach of contract, the circuit court erred by concluding that sovereign immunity barred all counts. Sovereign immunity has no application in actions based upon valid contracts entered into by duly authorized agents of the government. Montalla LLC v. Commonwealth of Virginia, VLW 024-6-19 (23 pp.)

Subrogation rights

Where an insurer fully paid an underinsured motorist claim and thus acquired statutory subrogation rights, those rights are exclusive to the insurer. When the insurer chose not to exercise those rights, this did not entitle appellant insured to collect an additional payment from the appellee. Brown v. Kirkpatrick, VLW 023-7-477 (29 pp.)

Termination for convenience clause

Where a party could terminate a services agreement for convenience without being obligated to continue payments, and it did so, it prevailed on the breach of contract claim. First Bank Chicago v. American Electric Power Service Corporation, VLW 024-3-269 (15 pp.)

Unjust enrichment

Where the plaintiff asserted a claim for unjust enrichment, but the purported benefits under the unjust enrichment claim were covered by the express agreement, the claim was dismissed. Serious Business PR LLC v. Ancient Drinks LLC, WDVA at Charlottesville, VLW 024-3-579 (13 pp.)

 

Corporate

Email addresses

Where four alumni of the Virginia Military Instituted sued the alumni association for refusing to provide email addresses of fellow members, but there was no statutory right to this information, the suit was dismissed. Respess v. VMI Alumni Association, Court of Appeals of Virginia, VLW 024-7-186 (29 pp.)

Standing to sue

Where defendants argued the individuals lacked standing to sue over damage to real property, because the property was purchased by a corporate entity, but the registration status of the corporate entity had expired at the time of purchase, this argument was rejected. Lee v. Evatt, Fairfax County Circuit Court, VLW 024-8-079 (12 pp.)

 

Criminal

Child victim’s statements

Although the circuit court held a 13-year-old child victim with autism spectrum disorder was not competent to testify at trial, it did not err in admitting the child’s out-of-court statements into evidence pursuant to Code § 19.2-268.3. The question of whether the child is competent to testify at trial is distinct from the question of whether the statements at issue are “inherently trustworthy.” Bista v. Commonwealth, Supreme Court of Virginia, VLW 024-6-038 (21 pp.)

DWI charges

Where the Commonwealth nolle prosequi DWI charges in the district court, it was not precluded from refiling the charges in the circuit court. A nolle prosequi is a mere “discontinuance” of the action, which, “if entered before jeopardy attached, does not act as an acquittal and does not bar further prosecution for the offense.” Perez Flores v. Commonwealth, Court of Appeals of Virginia, from the Circuit Court of the City of Alexandria, VLW 024-7-304 (9 pp.)

Expert assistance

Where appellee sought to introduce expert testimony to bolster his claim that he falsely confessed to several sex crimes due to his mental state, the Court of Appeals incorrectly reversed appellee’s convictions. The Court of Appeals erred by ruling that the trial court abused its discretion in ruling on appellant’s requests for expert assistance. Commonwealth v. Smith, VLW 024-6-007 (23 pp.)

‘Felon in possession’ statute

Where the “felon in possession” subsection distinguishes between “convictions” and juvenile “adjudications,” the mandatory minimum sentencing provisions apply only to qualifying convictions. Jennings Jr. v. Commonwealth, Court of Appeals of Virginia, from the Circuit Court of the City of Lynchburg, VLW 024-7-355 (27 pp.)

Felony uttering

Where a man was convicted of “felony uttering” when he bought beer using movie prop money, his conviction was reversed and dismissed. Joyce Jr. v. Commonwealth, Court of Appeals of Virginia, from the Circuit Court of Henry County, VLW 024-7-337 (7 pp.)

Geofence warrant

Where the government obtained information via a limited geofence warrant, the defendant’s motion to suppress was denied. He did not have a reasonable expectation of privacy in two hours’ worth of location history data he voluntarily exposed to Google. United States v. Chatrie, 4th U.S. Circuit Court of Appeals, VLW 024-2-193 (103 pp.)

Improper impeachment

Where a man challenged evidence introduced during his trial on multiple grounds, including that it was beyond the scope of direct examination and constituted propensity evidence, but he never argued the evidence was improper impeachment on a collateral matter, it was error to accept the argument. Commonwealth v. Carolino, Supreme Court of Virginia, VLW 024-6-042 (13 pp.)

Jury verdicts

Where a man was acquitted of second-degree murder and use of a firearm in the commission of a murder, but was convicted of unlawfully discharging a firearm into an occupied building and unlawful destruction of property, the verdicts were not inconsistent. Barnes v. Commonwealth, VLW 024-7-125 (13 pp.)

License plate reader

Where the collection and storage of license plate and location information by a 172-camera automatic license plate reader system used by the Norfolk Police Department constitutes a search within the meaning of the Fourth Amendment, photographs of the defendant’s vehicle were suppressed because they were obtained without a warrant. Commonwealth v. Bell, VLW 024-8-39 (5 pp.)

Photo identification

Where an attempted robbery victim identified the perpetrator from a photograph the police showed him shortly after the attempt, this single photo identification was not impermissibly suggestive. Sample Jr. v. Commonwealth, VLW 024-6-004 (16 pp.)

Probable cause

Where appellant agreed to let the police search him for weapons, this was not permission to conduct a generalized search. A search of his pockets exceeded the scope of the permission. Carter v. Commonwealth, VLW 023-7-482 (16 pp.)

Renegotiated plea agreement

Where the Commonwealth and defendant agreed to a new plea agreement after their first plea agreement was neither accepted nor rejected by the trial court, the trial court erred when it convicted the defendant under the first plea agreement. A trial court cannot enforce and ratify an agreement when there is no longer mutual assent. Thomas v. Commonwealth, VLW 024-6-21 (14 pp.)

Retroactivity

Where a man argued the General Assembly’s 2021 amendments to the probation violation re-sentencing scheme were retroactive, but no explicit or unequivocal language in the 2021 amendments states that they retroactively modify or annul provisions in prior criminal sentencing orders, this argument was rejected. Johnson-Bey v. Commonwealth, Supreme Court of Virginia, VLW 024-6-040 (9 pp.)

Unauthorized use of vehicle

Where a man took a car belonging to another man, his conviction for felony unauthorized use of another’s vehicle was affirmed. Although the vehicle’s owner had not registered it with the DMV, he still had ownership of the vehicle. King v. Commonwealth, Supreme Court of Virginia, from the Court of Appeals of Virginia, VLW 024-6-37 (11 pp.)

Warrantless private area search

Where police reached inside appellant’s underwear without a warrant to extract an object while he “resisted by clenching his posterior[,]” his motion to suppress the drugs contained in a plastic bag should have been granted because there were no exigent circumstances to justify the search. Hubbard v. Commonwealth, VLW 024-7-082 (21 pp.)

 

Damages

Jury award

Where the district court reduced a jury’s damages award by almost half because it resulted from the jury improperly mixing expert testimony, it erred. A jury may accept or reject any part of an expert’s testimony and remain within the range of credited testimony even if it does not adopt any one expert’s testimony wholesale. Mountain Valley Pipeline LLC v. 8.37 acres of land owned by Frank Terry, John Coles Terry, and Elizabeth Terry, VLW 024-2-132 (19 pp.)

Offset

Where an insurance company claimed it could offset and reduce long-term disability benefits by the amount a beneficiary was receiving from Social Security, this argument failed. The plan did not permit offsetting the man’s Social Security benefits because they resulted from his earned income, rather than his disability. Aisenberg v. Reliance Standard Life Insurance Co., VLW 024-3-276 (17 pp.)

Punitive damages

Where a jury awarded $24 million in punitive damages to eight persons who sued defendants for their role in the “Unite the Right” rally, but the district court reduced that amount to $350,000 because of Virginia’s punitive damages cap, it erred. The cap applies on a per-plaintiff basis. Sines v. Hill, 4th U.S. Circuit Court of Appeals, VLW 024-2-180 (27 pp.)

Malicious prosecution

Where a jury that awarded a woman $5 million on her malicious prosecution claim did not hear evidence regarding the termination of her employment, the verdict was vacated, and the case was remanded for a new trial on damages. Roque v. Winters, Court of Appeals of Virginia (unpublished opinion), from the Circuit Court of Loudoun County, VLW 024-7-372 (14 pp.)

 

Domestic Relations

Child custody

A child’s preference to change a custody arrangement, without more, is not a material change in circumstances that would confer jurisdiction on the court to modify the existing custody arrangement. Livingston Jr. v. Stark, VLW 023-8-093 (10 pp.)

Child support

Where the circuit court did not calculate presumptive awards under the guidelines using the parties’ actual incomes for each year or explain in writing why the presumptive awards would be inappropriate or unjust, its suppport award was vacated. Coleman v. Coleman, Court of Appeals of Virginia (unpublished opinion), from the Circuit Court of Hanover County, VLW 024-7-356 (12 pp.)

Code § 64.2-102(4)

Where Code § 64.2-102(4) requires a child born out of wedlock to timely file an affidavit “alleging … parenthood,” a woman’s declaration under oath that she is the decedent’s daughter is a sufficient allegation of parenthood. Lorenz v. Parker, Court of Appeals of Virginia, from the Circuit Court of Clarke County, VLW 024-7-331 (13 pp.)

Minor’s uncorroborated notes

Where the trial court relied on uncorroborated portions of a minor’s notes when it decided not to modify a custody arrangement, it erred. Powell v. Knoepfler-Powell, Supreme Court of Virginia, VLW 024-6-25 (15 pp.)

Pre-retirement income

Where the trial court imputed husband’s entire pre-retirement income to him on the basis that he had voluntarily retired and that “the parties had inadequate retirement savings to support their spending[,]” the court abused its discretion by denying husband’s motion to reduce or end his support obligation to wife. Baker v. Baker, VLW 024-7-084 (9 pp.)

SSI benefits

Where a disabled child receives supplemental security income, those benefits are not an “independent financial resource” that may justify a reduction in a parent’s child-support obligation. Humphries v. Buchanan, VLW 024-7-141 (36 pp.)

 

Education

Disciplinary proceeding

Where a former Virginia Tech student alleged he was denied due process during a disciplinary proceeding, but the record showed he received constitutionally sufficient notice and had a meaningful opportunity to prepare for the hearing, the university prevailed on this claim. Doe v. Virginia Polytechnic Institute and State University, WDVA at Roanoke, VLW 024-3-527 (48 pp.)

Due process rights

Where a former graduate student at Virginia Tech alleged that he was given only 24 hours’ notice of a disciplinary hearing, and that the university denied his request for a continuance, which affected his ability to prepare his defense, he plausibly alleged a due process claim against the university president and a university director. Doe v. Virginia Polytechnic Institute and State University, VLW 024-3-211 (36 pp.)

Equal protection

Where an 11-year-old transgender girl was excluded her from her middle school girls’ tennis team, the Hanover County School Board was ordered to permit her to try out for, and if selected to play on, her middle school’s girls’ tennis team. The girl was likely to succeed on her equal protection claims. Doe v. Hanover County School Board, EDVA at Richmond, VLW 024-3-429 (38 pp.)

Official capacity

Where a middle-school transgender girl who was excluded from the tennis team sued two Hanover County School Board officials in their official capacities, these claims were dismissed because they were “duplicative” of the claims against the School Board. Doe v. Hanover County School Board, EDVA at Richmond, VLW 024-3-550 (10 pp.)

Title IX investigation

Where a former George Mason law professor failed to demonstrate that he was likely to prevail on his First Amendment retaliation claim, the University is not required to stop its Title IX investigation of a complaint filed by a former student. Wright v. The Rector and Visitors of George Mason University, EDVA at Alexandria, VLW 024-3-512 (43 pp.)

 

Employment

Age discrimination

Where a former bank executive alleged that he was terminated because of his age, but the record reflected his “lack of qualifications and unsatisfactory work performance,” and that he had disclosed non-public personal information of the bank’s customers, the bank prevailed on the claims. Kendrick v. Carter Bank & Trust Inc., VLW 024-3-199 (32 pp.)

Age discrimination

Where a company terminated an older worker after she made a mistake, but did not terminate a younger worker who made the same mistake, a jury will decide if the woman’s age was the reason she was terminated. Bolender v. Bio-Medical Applications of Virginia, Inc., WDVA at Roanoke, VLW 024-3-328 (27 pp.)

Attorneys’ fees

Where plaintiffs who settled their unpaid wages claim against a steakhouse sought to recover $367,406.25 in attorneys’ fees, this amount was reduced to $294,974.61 because of block billing, clerical tasks, redundancy, time spent on voluntarily dismissed claims and overall success. Carroll v. Northampton Restaurant Inc., VLW 024-3-172 (35 pp.)

COVID-19 vaccination

Where employees failed to demonstrate that Inova’s policy required them to take a vaccine that was “developed or tested using aborted fetal cell lines,” Inova prevailed on their Title VII failure-to-accommodate religious belief claims. Ellison v. Inova Health Care Services, VLW 024-3-225 (17 pp.)

Damages expert

Where defendants sued for breaching restrictive covenants argued the company’s damages expert should not be allowed to testify at trial, but their arguments were premature, ignored the claims or went to the weight (and not admissibility) of her testimony, their motion was denied. Globus Medical Inc. v. Jamison, EDVA at Norfolk, VLW 024-3-603 (19 pp.)

Discrimination

Where a UVA professor alleged she was denied tenure for discriminatory reasons, but she failed to plead facts making her claims of intersectional, gender and race discrimination plausible, they were dismissed. Metzger v. The Rector and Visitors of the University of Virginia, WDVA at Charlottesville, VLW 024-3-546 (23 pp.)

Discrimination and retaliation

Where a woman alleged the company’s chief executive officer terminated her employment because the woman was receiving workers’ compensation benefits, a jury will decide if the company discriminated and retaliated against the woman. Boelte v. Southstone Behavioral Health, VLW 024-3-074 (18 pp.)

Discrimination and retaliation

Where a Virginia State University professor alleged that she was treated differently and paid less than her male colleagues, and that she was denied a promotion, her discrimination and retaliation claims survived the university’s motion to dismiss. Robertson v. Virginia State University, VLW 024-3-253 (46 pp.)

Discrimination and retaliation

Where a woman alleged that, after her cancer diagnosis and treatment, her employer held her back in a training program, which was viewed as a demotion, forced her repeat training she had already completed and prevented her from bidding for a new position, her discrimination and retaliation claims survived the company’s motion for judgment on the pleadings. Washington v. Dominion Energy, WDVA at Charlottesville, VLW 024-3-412 (10 pp.)

Drug test policy

Where a former employee of the Virginia Department of Corrections, or VDOC, sued over VDOC’s random drug testing policy, but he no longer worked at VDOC and evidenced no intent to return, he lacked standing to assert an as-applied challenge. And because the policy had been amended, his facial challenge also failed as a matter of law. Garrett v. Dotson, EDVA at Richmond, VLW 024-3-384 (70 pp.)

Equal Pay Act

Where a former female employee of the Loudon County Sheriff’s Office failed to plead any facts sufficient to establish it paid higher wages to male employees or how her pay was unequal, she failed to state a claim under the Equal Pay Act. Cunningham v. Loudon County Sheriff’s Office, EDVA at Alexandria, VLW 024-3-560 (5 pp.)

Exempt employee

Where an employee alleged that he was improperly classified as exempt under the Fair Labor Standards Act, but his actual job activities, education, certifications and hourly rate supported the classification, the company prevailed on this claim. Davenport v. HirePower Personnel Inc., VLW 024-3-236 (28 pp.)

Failure to accommodate

Where an employee for an agency that provides healthcare services to patients in their homes refused to perform direct patient care field visits because of the resulting stress on her knees, and refused the agency’s offer to “spread out” field visits to minimize the stress, the agency prevailed on the failure-to-accommodate claim. Tartaro-McGowan v. Inova Home Health LLC, VLW 024-2-026 (29 pp.)

Failure to accommodate religious beliefs

Where a postal employee alleged she was twice transferred to “less favorable” positions because of her religious beliefs, she stated a plausible claim for failure to accommodate her religious beliefs. Rose v. DeJoy, EDVA at Richmond, VLW 024-3-428 (10 pp.)

Failure to pay commissions

Where an employee claimed that he complained to his employer about its alleged failure to pay his commissions, that was not protected conduct under the Fair Labor Standards Act, because it was not a complaint about minimum wage or overtime compensation. Bouchard v. Summit Ridge Energy LLC, VLW 024-3-215 (7 pp.)

FAWPA

Where a university police officer claims his discharge was related to his report that vehicle dashboard cameras were malfunctioning, he has no claim under the Fraud and Abuse Whistle Blower Protection Act, or FAWPA, because the university is not an employer under FAWPA. Brian Morrison v. George Mason University, et al., VLW 024-8-011 (15 pp.)

FLSA

Where a man alleged that a staffing company capped payments at 40 hours per week regardless of the actual number of hours worked, that was sufficient to conditionally certify the class under the Fair Labor Standards Act. O’Brien v. Smoothstack Inc., VLW 024-3-188 (26 pp.)

FMLA

Where a company terminated a man’s employment because it honestly believed he was misusing leave under the Family and Medical Leave Act, it prevailed on his FMLA claims. Shipton v. Baltimore Gas & Electric Company, 4th U.S. Circuit Court of Appeals, VLW 024-2-218 (15 pp.)

Fringe pay

Where utility workers who were required by Internal Revenue Service regulations to be credited with a small but taxable fringe benefit amount each workweek representing their use of a company vehicle argued this taxable fringe pay should be counted as part of total remuneration for the purposes of calculating overtime wages, this argument was rejected. Barb v. Heath Consultants Inc., WDVA at Abingdon, VLW 024-3-338, (31 pp.)

Hostile work environment

Where a former Taco Bell employee alleged his supervisor routinely assigned menial tasks to African American employees because of their race, his hostile work environment claims survived the company’s motion to dismiss. Powell v. Charter Central LLC, WDVA at Lynchburg, VLW 024-3-368 (7 pp.)

Hostile work environment

Although a company allegedly showed racially insensitive images during an anti­discrimination training, “including a Swastika, a hooded Klan person, [] a cartoon figure of a Hispanic person in a stereotypical outfit with racist commentary beneath,” and a noose, the one-time occurrence did not constitute a hostile work environment. Arnold v. United Parcel Supply Chain Solutions Inc., EDVA at Richmond, VLW 024-3-574 (11 pp.)

Joint liability for VWPA claim

Where the court found a company liable for failing to pay wages required by the Virginia Wage Payment Act, or VWPA, but the statute does not provide for joint liability of the corporate officers of an employer, the employees failed to hold the officer jointly liable. Vara v. Skanska USA Building, Inc., EDVA at Alexandria, VLW 024-3-335 (5 pp.)

Medical documentation

Where a government agency requested medical documentation to substantiate an employee’s disability claim, that did not constitute discrimination sufficient to support a claim for disability discrimination under the Rehabilitation Act. Sharpe v. Garland, VLW 024-3-048 (15 pp.)

Overtime

Where an employee’s intra-company overtime complaints failed to provide reasonable notice of a potential Fair Labor Standards Act violation, the employer prevailed on his retaliation claim. Johnson v. Eldor Automotive Powertrain USA LLC, 4th US Circuit Court of Appeals, VLW 024-2-300 (11 pp.)

Overtime

Where a group of former Hanover County deputy sheriffs alleged they were not paid for their pre-shift, on-duty time spent in their patrol cars, their conditional certification and class action motion was granted. Hatcher v. County of Hanover, EDVA at Richmond, VLW 024-3-347 (13 pp.)

Paid time off

Where a former employee alleged her employer violated the Virginia Wage Payment Act by failing to “timely compensate” her promised paid-time off, or PTO, the court held that the statute does not apply to PTO. Lundberg v. Delta Response Team LLC, VLW 024-3-230 (23 pp.)

‘Past and future impairment to earn money’

Where the Virginia whistleblower statute allows an employee to recover “compensation for lost wages, benefits, and other remuneration,” “remuneration” does not include past and future impairment to earnings. Harris vs. International Gourmet Foods, VLW 024-8-40 (6 pp.)

Performance improvement plan

Where a former Central Intelligence Agency employee alleged he received a negative performance improvement plan rating three weeks after his supervisors learned about his protected activity, he plausibly alleged a claim for retaliation. Caleca v. Burns, EDVA at Alexandria, VLW 024-3-513 (17 pp.)

Qualified immunity

Where a human resources employee at UVA Health who worked on COVID-19 vaccination requests by employees was sued under federal and state law, he was entitled to qualified immunity on the federal claims. And the court declined to exercise jurisdiction over the state claims. Phillips v. Rector and Visitors of the University of Virginia, WDVA at Charlottesville, VLW 024-3-618 (4 pp.)

Race discrimination

Where a former employee’s amended complaint added two counts and provided additional detail to the original count, they related back to the original complaint because they arose out of the same “conduct, transaction, or occurrence” as his employment. Preston v. Virginia Community College System, WDVA at Abingdon, VLW 024-3-568 (20 pp.)

Retaliation

Where a woman alleged she was warned against reporting offensive conduct to Human Resources and that, after she complained about a lower raise to federal and state officials, she wasn’t allowed to work at home and was unfairly disciplined, a jury will decide if the company retaliated against her. Pickle v. United Salt Saltville LLC, WDVA at Abingdon, VLW 024-3-411 (17 pp.)

Sex discrimination

Where a former Prince William County employee alleged she was passed over for a promotion that was given to a man with inferior qualifications, that other females were not being selected for positions and that postings were rewritten to fit a male applicant over female applicants, she plausibly alleged a claim for sex discrimination. Purcell v. Prince William County, VLW 024-3-249 (9 pp.)

Sex discrimination

Where a female firefighter alleged an environment where women were routinely subject to sexist conduct, denied overtime shifts, denied promotions and denied access to specialized training and where Fairfax County was hostile to requests to investigate alleged incidents of sex discrimination, her discrimination and retaliation claims survived the county’s motion to dismiss. McCaffery v. Fairfax County, EDVA at Alexandria, VLW 024-3-472 (26 pp.)

Sex-based hostile work environment

Where a woman alleged her supervisor made repeated sexualized comments on at least six separate incidents over the course of two months, but her employer did not respond to the woman’s complaints, her hostile work environment claim survived the employer’s motion to dismiss. Alcazar v. Virginia Department of Corrections, EDVA at Richmond, VLW 024-3-466 (23 pp.)

Sexual orientation discrimination

Where there were disputed issues why Walmart terminated a man’s employment, his discrimination, retaliation, failure-to-accommodate, whistleblower and interference claims will be decided by a jury. Ayers v. Wal-Mart Associates Inc., WDVA at Roanoke, VLW 024-3-499 (30 pp.)

Sovereign immunity

Where a former employee of a wholly owned corporation of the Navajo Nation asserted claims under the Family and Medical Leave Act, or FMLA, the claims were foreclosed by sovereign immunity. Congress did not unequivocally abrogate tribal immunity under the FMLA. Butrick v. Dine Development Corporation, EDVA at Richmond, VLW 024-3-581 (13 pp.)

Title VII

Where former female employees of the Virginia Department of Corrections alleged that faulty body scanners could not distinguish between contraband and female contraceptive/hygiene products and that they were then subjected to highly invasive strip searches, they plausibly alleged claims for disparate treatment and disparate impact under Title VII. Patterson v. Virginia Department of Corrections, VLW 024-3-241 (38 pp.)

Trade secrets

Where a company plausibly alleged its former employee stole trade secrets and then went to work for a competitor, its motion to amend its complaint was granted. BDO USA PC v. Ankura Consulting Group LLC, EDVA at Richmond, VLW 024-3-437 (19 pp.)

Vaccine refusal

Where former employees of UVA Health alleged that they refused to be vaccinated for COVID-19 because of sincerely held religious beliefs that conflicted with UVA Health’s vaccine mandate, that UVA Health knew of these beliefs and that they were terminated for failing to comply with the mandate despite their beliefs, they plausibly stated a disparate treatment claim. Phillips v. Rector and Visitors of the University of Virginia, VLW 024-3-165 (20 pp.)

Virginia Wage Payment Act

Where two ER physicians plausibly alleged that they were not adequately compensated in violation of the Virginia Wage Payment Act, their complaint survived the staffing company’s motion to dismiss. Naidu-McCown v. Emergency Coverage Corporation, VLW 024-3-176 (15 pp.)

Virginia Wage Payment Act

Where the circuit court held that commissions are not “wages” under the Virginia Wage Payment Act, it erred. Campbell v. Groundworks Operations LLC, Court of Appeals of Virginia, from the Circuit Court of Prince William County, VLW 024-7-344 (11 pp.)

Whistleblower

Although the circuit court formerly found a former inspector at the Office of the Inspector General, or OSIG, was not terminated for her whistleblowing activities, that decision was not entitled to preclusive effect in this suit against her former supervisor because there was no privity between the parties. Moschetti v. Office of the Inspector General, VLW 024-3-046 (23 pp.)

Whistleblower

Where a company sued for retaliating against an employee moved to strike allegations that were not included in the employee’s administrative complaint, but the majority of the challenged allegations were specific examples of the general types of misconduct alleged in the agency filing, the motion to strike was largely denied. Lancaster v. Michael Stapleton Associates Ltd., VLW 024-3-258 (13 pp.)

Whistleblower

Where a man was told on Jan. 22, 2022, that he was being terminated effective Feb. 7, 2022, his Feb. 7, 2023, whistleblower claim was filed too late. The one-year statute of limitations runs from the date of the employer’s “prohibited retaliatory action,” not from the date that the employee felt the full impact of the action. Rivera v. ManTech International Corporation, Court of Appeals of Virginia, VLW 024-7-188 (7 pp.)

Whistleblower Protection Law

The definitions of “employer” and “employee” within the Virginia Whistleblower Protection Law are broad enough to encompass relationships where an employee has more than one employer. Harris v. Washington & Lee University, Court of Appeals of Virginia, from the Circuit Court of Rockbridge County, VLW 024-7-305 (25 pp.)

 

Environmental

Climate change policies

Where plaintiffs sued the Commonwealth and state officials over policies that allegedly contributed to climate change, the suit was dismissed for lack of standing. Given the global nature of the climate change issue, plaintiffs have not shown that they “personally would benefit in a tangible way from the court’s intervention.” Layla H v. Commonwealth, Court of Appeals of Virginia, VLW 024-7-185 (18 pp.)

 

Evidence

Claim file

Where a man who was allegedly injured while shopping sought production of the outside third-party administrator’s claim file, his request was granted. The claim notes were relevant to the claims, he had a substantial need for the information and he could not obtain the information elsewhere. Whitmore v. Kroger Limited Partnership I, WDVA at Lynchburg, VLW 024-3-606 (12 pp.)

Expert testimony

Where plaintiffs suing Genworth for imprudently retaining low-performing funds in its retirement plan moved to strike Genworth’s experts, their motions were denied. The experts possessed the necessary qualifications, their testimony would assist the finder of fact and attacks on their methods were issues for cross examination. Trauernicht v. Genworth Financial Inc., EDVA at Richmond, VLW 024-3-463 (27 pp.)

Subpoenas

Where a man moved to quash subpoenas issued by his ex-wife in a legal malpractice suit, his motion was denied. Even though he was affected by the subpoenas, standing to quash or modify a subpoena duces tecum is granted only to the person to whom the subpoena is directed or a party to the litigation in which the subpoena is issued. Dinarany v. Dannenbaum, Fairfax County Circuit Court, VLW 024-8-065 (7 pp.)

 

Fraud

Misrepresentations

Where the court previously held the sellers were liable for misrepresentations made during the walk-through and awarded the buyers $575,00o in compensatory damages and $150,000 in punitive damages, it generally denied the sellers’ motion for reconsideration. However, because the misrepresentations were made by the male seller, and not his wife, she was dismissed from the lawsuit and he was solely liable for the judgment. Gwin v. Beatty, Fairfax County Circuit Court, VLW 024-8-070 (24 pp.)

Misstatements

Where investors should have known in 2012 or 2013 about alleged misstatements in offering documents, but they didn’t file their fraud claims until 2019, the claims were dismissed as time-barred. Zeng v. Wang, Court of Appeals of Virginia, from the Circuit Court of Fairfax County, VLW 024-7-310 (18 pp.)

 

Freedom of Information

Attorneys’ fees

Where an attorney prevailed on his suit under the Virginia Freedom of Information Act, the circuit court erred when it held that an attorney acting pro se cannot recover attorney fees under Code § 2.2-3713(D). Town of South Hill v. Hawkins III, Court of Appeals of Virginia, from the Circuit Court of Mecklenburg County, VLW 024-7-364 (14 pp.)

Internal investigation files

Where an officer with the Chesapeake Sheriff’s Office sought internal investigation files into his conduct, but he was not a “data subject” under the Government Data Collection and Dissemination Practices Act, his request was properly denied. Keil v. O’Sullivan, Court of Appeals of Virginia, from the Circuit Court of the City of Chesapeake, VLW 024-7-266 (24 pp.)

Personal phones

Where a requester argued the entity had a duty to search the personal cell phones of its employees when responding to a request under the Virginia Freedom of Information Act, this argument was rejected. Employees were prohibited from using personal cell phones for state business, and there was no suggestion that information would be found on those phones. Transportation District Commission of Hampton Roads v. Raja, Norfolk City Circuit Court, VLW 024-8-080 (7 pp.)

‘Sample’ of documents

Where the circuit court allowed the Town of Warrenton to submit a “sample” of withheld documents to the court, and then dismissed a mandamus action seeking disclosure of all requested documents, it erred. The town could not carry its burden without explaining how it picked the sample or why the sample was representative of the entire set. Citizens for Fauquier County v. Town of Warrenton, Record No. 0414-23-4, Court of Appeals of Virginia, VLW 024-7-234 (30 pp.)

 

Habeas Corpus

Earned Sentence Credits

Where an inmate argued he was entitled to credit towards an early release as of the date of his arrest, but the statute grounds eligibility on “incarceration in any correctional facility following entry of a final order of conviction by the committing court,” his habeas corpus petition was dismissed. White v. Dotson, Supreme Court of Virginia, VLW 024-6-28 (4 pp.)

 

Insurance

Breach of notice provisions

Where a company failed to give timely notice of a potential claim to its carrier, and failed to provide notice of the resulting suit until after judgment was entered, the carrier was relieved of any duty to defend or indemnity. Great American Insurance Company v. RITcon LLC, VLW 023-3-785 (13 pp.)

Breach of policy provisions

Where a transportation company failed to provide prompt notice of an accident to its carrier, and failed to protect the vehicle from further damage, the carrier had no duty to provide coverage. Amalgamated Casualty Insurance Company v. Eley, EDVA at Newport News, VLW 024-3-314 (9 pp.)

Cancellation notice

Where a policyholder’s cancellation notice was signed on Dec. 3, 2020, but listed a cancellation date of Oct. 5, 2020, the policy was not properly cancelled. Northern Neck Insurance Company v. Virginia Farm Bureau Mutual Insurance Company, Court of Appeals of Virginia, from the Circuit Court of Albemarle County, VLW 024-7-287 (8 pp.)

COVID business losses

Where hotels argued that financial losses they suffered during the COVID-19 pandemic were covered by insurance policies, but they did not allege facts showing any tangible harm to their properties, the carriers’ demurrer was sustained. Sotherly Hotels Inc. v. Fireman’s Fund Insurance Company, Court of Appeals of Virginia (unpublished opinion), from the Circuit Court of the City of Williamsburg and County of James City, VLW 024-7-295 (22 pp.)

Disability benefits

Where a long-term disability insurer ignored substantial evidence of a man’s disability and its final decision denying the claim was not supported by substantial evidence, it was ordered to pay the man long-term disability benefits. Learn v. The Lincoln National Life Insurance Company, VLW 024-3-151 (61 pp.)

Government-ordered COVID closures

Where the district court held that several Virginia executive orders requiring full or partial closure of businesses during the COVID-19 pandemic caused “accidental direct physical loss” to the covered property, it erred. “Direct physical loss” requires “present or impending material destruction or material harm,” which the executive orders did not cause. Elegant Massage LLC v. State Farm Mutual Automobile Insurance Company, VLW 024-2-076 (35 pp.)

Life insurance proceeds

Where the decedent’s daughter and ex-husband disputed whether he had disclaimed his right to the decedent’s life insurance proceeds, but the ex-husband failed to participate in the lawsuit for several months and failed to respond to the daughter’s motion for default judgment, the disputed funds were awarded to the daughter. Pitts v. Metropolitan Life Insurance Company, EDVA at Richmond, VLW 024-3-460 (17 pp.)

Long-term benefits

Where a long-term insurer did not explain why it changed its position that an applicant was not disabled, did not follow the court’s instructions on remand and failed to explain why it didn’t consider the opinions of three treating physicians and scholarly sources, its decision denying the man’s application for long-term benefits was vacated. Aisenberg v. Reliance Standard Life Insurance Company, VLW 024-3-097 (36 pp.)

Necessary and indispensable party

Where the administrator for the decedent alleged that the owner of the vehicle that struck him was potentially liable for the fatal injuries, the vehicle owner was a necessary and indispensable party in the coverage dispute. Siefert v. The Travelers Indemnity Company of Connecticut, VLW 023-3-770 (7 pp.)

Negligence claim

Where an insurance carrier that paid out more than $558,000 for damages caused by a fire sued a fire suppression inspection company for negligence, but the negligence claim sounded only in contract and did not arise from any independent duty, it was dismissed. Continental Casualty Company v. Pye-Barker Fire & Safety LLC, VLW 024-3-190 (12 pp.)

‘Nursing care’

Where a long-term care insurer argued an assisted living facility did not satisfy the “nursing care” definition in its policy, the court rejected this argument. Thomas v. Allstate Life Insurance Company, WDVA at Harrisonburg, VLW 024-3-577 (28 pp.)

Settlements

Where a global professional firm alleged its insurers wrongfully refused to provide indemnity coverage for settlements totaling $90 million, but the insurers showed the settlements were barred by an exclusion in the policies, they were granted summary judgment. Towers Watson & Co. v. National Union Fire Insurance Company of Pittsburgh, VLW 024-3-134 (17 pp.)

 

Intellectual property

‘Fair use’

Where a news website used a photograph of Ted Nugent in an online article without proper attribution or payment to the photographer, and its use was not “fair use,” the district court incorrectly granted summary judgment to the website. Philpot v. Independent Journal Review, VLW 024-2-049 (23 pp.)

Lanham Act protection

Where the manufacturer of Timberland boots argued that certain features were protected under the Lanham Act, but the features had not acquired a distinctive meaning, the application was denied. TBL Licensing LLC v. Vidal, VLW 024-2- 108 (33 pp.)

 

Jurisdiction

Maryland attorney

Where a Maryland attorney was sued over her representation of a minor in juvenile court proceedings in Maryland, the Virginia federal district court lacked personal jurisdiction over the attorney, who did not purposely avail herself of the privilege of conducting activities in Virginia. Blair v. Appomattox County School Board, VLW 024-3-256 (10 pp.)

 

Jury and Jurors

‘Body language’

Where the commonwealth’s attorney struck a black juror because of her “body language,” and provided an explanation for his decision, the trial court’s acceptance of the prosecutor’s explanation as credible was not clearly erroneous or plainly wrong. Williams v. Commonwealth, Court of Appeals of Virginia, from the Circuit Court of Accomack County, VLW 024-7-343 (14 pp.)

Improperly seated

Where a juror in a rape trial assented to generalized questions asking if she could follow the law and jury instructions, but then provided only equivocal responses about her ability to be an impartial and fair juror as a sexual assault victim, the trial court’s refusal to strike this juror for cause was manifest error. Grimaldo v. Commonwealth, Court of Appeals of Virginia, from the Circuit Court of the City of Richmond, VLW 024-7-311 (18 pp.)

 

Landlord and Tenant

Carbon monoxide leak

Where the record supported the circuit court’s conclusion that an abandoned chimney crock posed a risk for carbon monoxide leaking into the residence, and that the landlord failed to remedy the condition within 30 days, the tenants’ prevailed on their tenant assertion claim under Code § 55.1-1244(A). Random Pinecone LLC v. Davies, Court of Appeals of Virginia (unpublished opinion) VLW 024-7-218 (14 pp.)

CARES Act

Where a landlord initiated an eviction by filing a summons for unlawful detainer 29 days after it sent a notice of failure to pay rent, the trial court erred by dismissing the eviction proceeding. Although the federal Coronavirus Aid, Relief and Economic Security, or CARES, Act, states a landlord may not require a tenant to vacate the premises until 30 days after receiving a notice to vacate, a summons does not require a tenant to leave the premises. Woodrock River Walk LLC v. Rice, Court of Appeals of Virginia, from the Circuit Court of the City of Salem, VLW 024-7-309 (9 pp.)

Duty-to-repair obligation

Where a lease required the tenant to repair the property at the conclusion of the lease, but the commercial tenant argued this obligation was extinguished because the landlord intended to demolish the building, the court held that the tenant’s obligation is not extinguished. But the proper measure of damages is the diminished value of the unrepaired property and not the cost of making the futile repairs. Oakton NLA LLC v. AT&T Services Inc., Fairfax County Circuit Court, VLW 024-8-076 (5 pp.)

Water service interruption

Where a Virginia statute imposing liability on a landlord for willful interruption of an essential service requires evidence that the act or omission that caused the interruption was intentional, and the evidence here was that the interruption of water service was the result of miscommunication or negligence, the landlord prevailed on the tenants’ claims. Turner v. Massie MHP LLC, Court of Appeals of Virginia, from the Circuit Court of Montgomery County, VLW 024-7-244 (12 pp.)

 

Medical Malpractice

‘Empty chair’ instruction

Where the decedent died from a ruptured aortic aneurysm, the trial court correctly instructed the jury on the issue of causation, and correctly refused to give appellant estate administrator’s proposed “empty chair” instruction. Burch v. Sensenig, et al., VLW 024-7-093 (10 pp.)

Expert opinion admissibility

Plaintiff’s expert meets the statutory qualifications and thus may testify on the standard of care in a case where plaintiff’s decedent suffered a “massive spiral break to her right humerus bone” while defendant doctor was performing a procedure on her shoulder. A defense expert will be excluded because his testimony would be based on “multiple layers of speculation.” Widlacki v. Kosteli, et al., VLW 024-8-021 (4 pp.)

FTCA discretionary function exception

Where the government argued that a prison doctor’s decisions whether to refer an inmate to a specialist and whether to advise him of his lab results were protected by the discretionary function exception to the Federal Tort Claims Act, or FTCA, this argument was rejected. Medical/professional discretion is not the type of discretion the statutory exception refers to. Hancock v. United States, VLW 023-3-786 (9 pp.)

 

Municipal

City garbage truck accident

Where the circuit court found that sovereign immunity shielded a garbage truck driver and City of Chesapeake from suit arising out of an automobile accident, it erred. The driver was not using judgment and discretion inherent to the task of garbage collection when he ignored a stop sign. Jolley v. Ellis, Court of Appeals of Virginia, from the Circuit Court of the City of Chesapeake, VLW 024-7-306 (12 pp.)

Equal Protection claim

Where real estate developers alleged that the Chesapeake City Council denied their rezoning application for unlawful reasons, but they failed to plead any facts showing they were treated differently than similarly situated comparators or that the denial was because of discriminatory animus, their complaint was dismissed. SAS Associates 1 LLC v. City Council of the City of Chesapeake Virginia, VLW 024-2-037 (13 pp.)

Government contractor

Where a government contractor alleged that state officials violated its Equal Protection and Due Process rights, and the district court applied the wrong standard in dismissing the individual capacity claims, the case was remanded for the district court to evaluate the individual capacity claims under the correct legal standard. Southeastern Public Safety Group Inc. v. Munn, 4th U.S. Circuit Court of Appeals, from WDNC at Charlotte, VLW 024-2-286 (10 pp.)

Highway negligence claim

Where the Commonwealth’s decision on how to maintain the section of an interstate highway where a man was injured was a legislative function, the circuit court did not err in sustaining the Commonwealth’s sovereign immunity pleas in bar. Canter v. Commonwealth, Court of Appeals of Virginia, from the Circuit Court of Smyth County, VLW 024-7-345 (11 pp.)

Inverse condemnation

Where a party who successfully litigates an inverse condemnation claim shall be awarded its fees and costs, the successful litigant here was awarded her legal fees and costs. Although the municipality argued no fees should be awarded, because the litigant had not yet paid her attorneys, her attorneys were not working for free, and she had an express obligation to pay them. Town of Iron Gate Virginia v. Simpson, Court of Appeals of Virginia, from the Circuit Court of Alleghany County, VLW 024-7-288 (18 pp.)

Sheriff’s department costs

Where the circuit court ordered the City of Emporia to pay its proportionate share of the costs and expenses of the County of Greensville sheriff’s budget for fiscal year 2021-22, it erred. The city was only responsible for those costs and expenses relating to the circuit court and the jointly used buildings, not the entire budget. City of Emporia v. County of Greensville, VLW 024-7-170 (12 pp.)

School bus accident

Where a school district was sued after a student was stuck by a vehicle after getting off a school bus, and it was not clear that the district was entitled to sovereign immunity, the circuit court erred when it granted the district’s plea in bar. Hamilton v. Jackson, Court of Appeals of Virginia (unpublished opinion), from the Circuit Court of the City of Roanoke, VLW 024-7-272 (17 pp.)

Standing

Where a historic foundation challenged a decision by the Fredericksburg Architectural Review Board approving the demolition of a historic building, the circuit court did not err in upholding the City Council’s decision that the foundation lacked standing. Historic Fredericksburg Foundation Inc. v. The City Council for the City of Fredericksburg, Court of Appeals of Virginia (unpublished opinion), from the Circuit Court of the City of Fredericksburg, VLW 024-7-367 (12 pp.)

Volunteer fire company

Where former officers and directors of a volunteer fire company alleged they were improperly removed from their positions, the circuit court erred in granting defendants’ pleas in bar. The statute did not provide the legislative body with the power to remove the directors and officers. Williams v. Rappahannock County Board of Supervisors, Court of Appeals of Virginia, from the Circuit Court of Rappahannock County, VLW 024-7-243 (7 pp.)

Workplace safety laws

Where Virginia sought to enforce its workplace safety laws against the Metropolitan Washington Airports Authority, an entity created by Virginia and the District of Columbia to manage the area’s two airports, but the Commonwealth didn’t reserve that power when it entered into the agreement that created the Authority, its workplace safety laws don’t apply to the Authority (although Virginia may enforce its laws against private employers at the airports). Metropolitan Washington Airports Authority v. Pan, 4th U.S. Circuit Court of Appeals, VLW 024-2-184 (22 pp.)

 

Negligence

Capacity to sue

Where a special conservator appointed to represent a man injured in an automobile accident did not register the Massachusetts conservatorship in Virginia before filing the amended complaint, he lacked capacity to maintain an action in Virginia as conservator. Because the foreign conservatorship has now been domesticated, he can file an amended complaint. Milne v. Move Freight Trucking LLC, VLW 024-3-015 (12 pp.)

Contributory negligence

Where a man filed suit after he allegedly fell while entering a hotel bathtub, the issue of contributory negligence was properly submitted to the jury. The man has preexisting medical issues that caused reduced sensation in his feet and a collapsed arch in his left foot, which is the foot that slipped when he entered the tub. Burgess v. SYP Hospitality LLC, Court of Appeals of Virginia (unpublished opinion), from the Circuit Court of Henrico County, VLW 024-7-298 (10 pp.)

Electrocution

Where a man alleged he was electrocuted by an elevator while shopping at a store, that was sufficient to state a claim for negligence based on the doctrine of res ipsa. Hehl v. Belk Inc., WDVA at Danville, VLW 024-3-446 (9 pp.)

Grossly negligent supervision

Where appellant sued a sheriff and a sheriff’s deputy for grossly negligent supervision while in their custody, the circuit court incorrectly granted appellees summary judgment. Howard v. Harris, et al., VLW 024-7-071 (31 pp.)

Indemnification

Where a fire safety company was sued after a fire on a cooktop range, and it then sued a company for defectively designing or manufacturing the range hood fire suppression system, the manufacturer’s motion to dismiss the indemnification claim was denied. Continental Casualty Company v. Pye-Barker Fire & Safety LLC, WDVA at Lynchburg, VLW 024-3-433 (7 pp.)

Lead-based paint dust

Where the homeowners’ expert opined that a window-restoration company’s failure to competently perform its work caused the release and dispersal of lead-based paint dust into the house, the defendants’ motion for summary judgment was denied. Menerick v. Salem Heritage LLC, WDVA at Abingdon, VLW 024-3-450, (10 pp.)

Legal malpractice

Where the circuit court held that a retainer agreement foreclosed a woman’s claims for malpractice against her former law firm, but she pleaded facts that the firm had additional information it failed to disclose to her, the suit was reinstated. Trent v. OnderLaw LLC, Court of Appeals of Virginia, VLW 024-7-189 (11 pp.)

Malfunctioning elevator

Where hotel guests who alleged they were injured when an elevator malfunctioned sued the company responsible for maintaining the elevator, but the operator owed them no duty, it was dismissed from the suit. Manning v. Drury Hotels Company LLC, VLW 024-3-240 (16 pp.)

Multicar accident

Where a man filed suit against two parties involved in a multicar accident, and one of the parties argued she was not negligent, but the complaint plausibly alleged both parties were negligent, the motion was denied. Frempong v. Thiel, EDVA at Alexandria, VLW 024-3-406 (8 pp.)

Negligent retention

Where a man injured in an auto accident asserted the driver’s employer was negligent in retaining him, because allegations of speeding on the day of the collision and other days put the company on notice of his unsafe driving behavior, but speeding was not the cause of the accident and there was no showing that the risk of future harm was so grave that discharging the employee would have been the only reasonable response, the negligent retention claim failed as a matter of law. Shifflett v. Routhier, WDVA at Harrisonburg, VLW 024-3-632 (9 pp.)

Notice

Where the owner and facilities manager at an office building where the plaintiff was injured had no prior actual or constructive knowledge of the allegedly hazardous condition, they were granted summary judgment. Whittier v. Knight Facilities Management Inc., VLW 024-3-238 (7 pp.)

Prior settlement

Where the manufacturer of allegedly defective flooring previously reached a settlement that resolved various consumer protection claims, that agreement didn’t bar this wrongful death suit. The scope of the class claims and the facts underlying the class complaints conclusively show that the settlement agreement did not settle claims premised on bodily injury or wrongful death. Kappel v. LL Flooring Inc., VLW 024-2-027 (21 pp.)

Site of injury

Where the alleged negligence occurred in Virginia, but the resulting injury happened in Arizona, Arizona law applied to the claim. When determining the place of the wrong in a tort matter, the court must consider the site of the injury as the location where the tort is completed. Hazelwood v. Lawyer Garage LLC, Court of Appeals of Virginia, from the Circuit Court of the City of Virginia Beach, VLW 024-7-246 (11 pp.)

Speeding state trooper

Where a woman sued a Virginia state trooper after she was involved in an automobile accident while the officer was driving 117 mph, the trooper’s motions to dismiss and claims of immunity were denied. Ziegler v. Dunn, VLW 024-3-103 (18 pp.)

Standard of care expert

Where the trial court struck a plaintiff’s standard of care expert in a nursing home wrongful death case, it erred. She had relevant experience, and her uncontradicted testimony demonstrated she had knowledge of the relevant standards of care for the nursing staff. Clements v. Medical Facilities of America Inc., Court of Appeals of Virginia (unpublished opinion), from the Circuit Court of Pittsylvania County, VLW 024-7-271 (35 pp.)

TASER training injury

Where a man injured while training to become a TASER instructor sued the master instructor for negligence, and there were disputed issues of material fact over whether the man assumed the risk or was contributorily negligent, the instructor’s motion for summary judgment was denied. Curran v. Axon Enterprise Inc., VLW 024-3-045 (30 pp.)

‘Wet floor’ sign

Where a man alleged that he was injured when he tripped and fell over a “wet floor” sign, but the parties disputed whether the hotel was negligent in leaving the sign in a darkened area, whether it should have known the sign was a danger and whether the man should have been aware of the sign, a jury will decide these issues. DeCandia v. Remington Lodging & Hospitality LLC, VLW 024-3-221 (11 pp.)

Wrongful death

Where a complaint failed to plead facts supporting a negligence claim arising out of a woman’s wrongful death, and the woman’s estate failed to identify additional facts that would allow a plausible claim to be pleaded, the claim was dismissed with prejudice. Hornsby v. United States of America, VLW 023-3-788 (14 pp.)

Wrongful death suit leadership

Where the decedent’s fiancé moved to oust and replace the decedent’s mother as administrator in Virginia, in order to take over the prosecution of the wrongful-death case that the mother initiated, but the fiancé waited too long to challenge the mother’s appointment, his suit was dismissed. Grady v. Blackwell, Court of Appeals of Virginia, VLW 024-7-177 (12 pp.)

 

Parent and Child

Afghan child adoption

Where the J&DR court allowed an Afghan couple to challenge an adoption of an Afghani child by a Virginia couple, it did not err. Although Code § 63.2-1216 provides a six-month period to challenge an adoption order, the statute was inapplicable to the final order because it was invalid from the outset. A.A. v. J.M., Court of Appeals of Virginia, VLW 024-7-211 (23 pp.)

Close relative adoption

Where the close relative adoption statute states that the adoption proceeding shall commence in the circuit court when the child has continuously resided with the petitioner for two or more years, it did not require “continuous physical custody” throughout the pendency of the adoption petition. As such, the circuit court erred in dismissing the grandparents’ petition because they lost custody during the pendency of the petition. Vega v. Vega, VLW 024-7-153 (7 pp.)(unpublished opinion)

Grandparents

Where grandparents alleged that county family services’ employees failed to protect their infant grandson, but they failed to identify an injury to them arising from defendants’ actions or omissions, they lacked standing. Delaney v. Virginia Department of Social Services, EDVA at Alexandria, VLW 024-3-380 (20 pp.)

Stepparent adoption

Where the mother failed to contact her child for a period of six months prior to the filing of the stepmother’s petition for adoption, and the adoption was in the child’s best interests, it was granted. Perkins v. Howington, Court of Appeals of Virginia, from the Circuit Court of Tazewell County, VLW 024-7-282 (12 pp.)

Termination of parental rights

Where there was no clear and convincing evidence that the father was an “unfit parent,” the circuit court violated his due process rights by terminating his parental rights. While the record provided a basis for placing the child in foster care, it did not have any bearing on whether father had remedied these conditions. Guevara-Martinez v. City of Alexandria Department of Community and Human Services, Court of Appeals of Virginia (unpublished opinion), from the Circuit Court of the City of Alexandria, VLW 024-7-307 (27 pp.)

 

Patent and Trademark

Administrative Procedure Act

Where the district court held that Bacardi could not challenge the renewal of a trademark registration under the Administrative Procedure Act, it erred. Nothing in the Lanham Act expressly precludes judicial review of the Patent and Trademark Office’s trademark registration renewal decisions. Bacardi & Company Limited v. United States Patent & Trademark Office, 4th U.S. Circuit Court of Appeals, VLW 024-2-157 (16 pp.)

 

Products liability

Fraud

Where the owner of a boat alleged an engine manufacturer fraudulently induced the owner into installing refurbished engines and upgraded equipment, but the owner failed to show the manufacturer’s allegedly fraudulent statements were factual, were knowing and intentionally false or were made with fraudulent intent, the manufacturer prevailed on the fraud claims. What Hurts LLC v. Volvo Penta of the Americas LLC, VLW 024-3-018 (48 pp.)

 

Real Property

Adverse possession

Where appellant claimed a portion of the subject property by adverse possession, the statute of limitations for adverse possession was not reset when appellee purchased the property. Ho v. Rahman, VLW 024-7-040 (15 pp.)

Adverse possession

Where the West Virginia Water Authority failed to show that it obtained adverse possession over a water tank, and the water tank’s annexation to a concrete pad makes it a fixture under the law, the landowner may exclude the water authority from its property and may remove the water tank from its property. Fort Lewis Mountain Company LLC v. Western Virginia Water Authority, Roanoke County Circuit Court, VLW 024-8-052 (11 pp.)

Confessed judgment

Although the holder of a confessed judgment moved to enforce a lien in 2008, the property was not sold until 2021, because the owners challenged the enforceability of the confessed judgment, filed for bankruptcy after the court ordered the property to be sold at public auction, sued the creditor in bankruptcy court and moved for reconsideration of an order entered years ago. Their challenges to the ultimate sale were also rejected. Agnew v. United Leasing Corporation, VLW 024-7-136 (19 pp.)

Easement

The trial court correctly determined that appellees established a prescriptive easement over a right of way on appellant’s land. The court also correctly ordered appellant to remove a gate across the right of way. Boxley v. Crouse, et al., VLW 023-7-483 (7 pp.)

Exclusionary rule

Where a homeowner argued that a zoning board must consider whether a zoning official complied with the Fourth Amendment when he conducted a search, it erred. In the absence of a criminal prosecution, the exclusionary rule does not apply. Board of Supervisors of Fairfax County v. Leach-Lewis, Supreme Court of Virginia, VLW 024-6-23 (10 pp.)

Partition

Where a complaint for partition did not place the opposing parties on notice that the co-tenant wanted compensation for expenses it incurred, and the co-tenant did not move for compensation within the time for responsive pleadings or any other point before the circuit court ruled on the partition, the circuit court erred in requiring the opposing parties to pay expenses incurred by their co-tenant. Lehmann v. WFV Holdings LLC, VLW 024-7-146 (14 pp.)

Restrictions

Where a subdivision’s Deed of Trust imposed broad restrictions on the manner in which most lots could be used, but exempted one lot from the general restrictions, the court rejected an attempt by other owners to impose new restrictions on the exempted lot. Westrick v. Dorcon Group LLC, VLW 024-6-22 (6 pp.)

Rezoning

Where the Brunswick County Board of Supervisors approved an upzoning of agricultural land to business use, the circuit court correctly granted the developers summary judgment against appellants’ claims that the board’s decision “was unreasonable as a matter of law.” Hartley, et al. v. Board of Supervisors of Brunswick County, VLW 024-7-048 (20 pp.)

Roadway improvements

Where the owner of the dominant estate sought to improve a road that crossed the servient estate to facilitate logging endeavors, it was allowed to do so. Barr v. Garten Development Inc., Court of Appeals of Virginia (unpublished opinion), from the Circuit Court of Alleghany County, VLW 024-7-292 (14 pp.)

Technical noncompliance

Where a man argued a quitclaim Where a man argued a quitclaim deed was invalid because it was not prepared by a lawyer, as required by Virginia Code § 17.1-223(B), but the purpose of the statute is that a recorded deed put a purchaser on notice, not whether the deed complies with technicalities, his argument was rejected. Bowman v. Samuel, VLW 024-8-41 (3 pp.)

Zoning variance

Where a board of zoning appeals, or BZA, denied appellee a variance for an existing deck and staircase that encroached on a five-foot setback for lakefront property, this unreasonably restricted appellee’s use of its property. The circuit court correctly reversed the BZA. The Board of Supervisors for the County of Louisa, Virginia v. Vallerie Holdings of Virginia, LLC, VLW 024-7-065 (19 pp.)

 

Sanctions

Attorney suspension

Where an attorney made many scurrilous statements impugning the integrity of a judge, he was suspended from the practice of law for nine months. A lawyer is not privileged to violate the Rules of Professional Conduct, even if the trial court has allegedly committed a legal error. Jenkins v. Virginia State Bar, Supreme Court of Virginia, from the Circuit Court of Rockbridge County, VLW 024-6-036 (7 pp.)

Attorneys’ fees

Where the district court concluded a woman’s Fair Housing Act claims were without foundation merely because she did not prevail at summary judgment, and awarded fees based upon that conclusion, it erred. While she may not have ultimately adduced evidence sufficient to survive summary judgment, the district court was not entitled to award attorney’s fees on that basis. Abdelhalim v. Lewis, VLW 024-2-012 (23 pp.)

Contempt

Where the trial court entered orders that permanently enjoined a couple “from making false and defamatory statements about [the plaintiff] and his business interests to third parties,” a subsequent contempt finding was vacated because the allegedly defamatory statements were protected opinions. Crumpler v. Stark, Supreme Court of Virginia, VLW 024-6-032 (8 pp.)

Law firm

Where a law firm engaged in bad faith misconduct, including repeated defiance of court orders, frivolous motions and last-minute document dumps, the trial court’s $1 million plus sanction was affirmed. Keyes Law Firm LLC v. Napoli, 4th US Circuit Court of Appeals, from DMD at Baltimore, VLW 024-2-279 (11 pp.)

‘Purportedly false references’

Where a party’s brief included multiple cases and quotations that the court could not find, and which may have been the result of “ChatGPT run amok,” its counsel must show cause why they should not be sanctioned and/or referred to their respective state bars for professional misconduct. Iovino v. Michael Stapleton Associates Ltd., WDVA at Harrisonburg, VLW 024-3-366 (16 pp.)

Receivership

Where three corporate defendants repeatedly failed to respond to post-judgment discovery regarding its financial operations, even after the appointment of a special master, they were placed in receivership under a qualified forensic accountant. RLI Insurance Company v. Nexus Services Inc., VLW 024-3-279 (16 pp.)

Subpoenas

Where a plaintiff moved to compel a non-party to respond to subpoenas, and the non-party then filed a motion for sanctions, arguing that the motion to compel was filed in an effort to circumvent a ruling on the motions to quash filed by the defendants, but the record showed the plaintiff acted in good faith, the sanctions motion was denied. Hartnett v. Hardenbergh, VLW 024-3-047 (8 pp.)

Summary contempt

Where a man’s conduct did not occur “in” or “so near” the trial court’s presence, it did not meet the statutory and constitutional requirements for summary contempt. As such, the trial court lacked authority to hold him in contempt without providing him fair notice and a hearing, including the opportunity to present a defense or explanation. Bell v. Commonwealth, Court of Appeals of Virginia, from the Circuit Court of Roanoke County, VLW 024-7-255 (11 pp.)

 

Search and Seizure

License plate reader

Where a man lacked both an objective and subjective expectation of privacy in the exterior of his vehicle, his motion to suppress evidence from a license plate reader system was denied. United States v. Martin, EDVA at Richmond, VLW 024-3-559 (49 pp.)

License plate reader

Where a defendant moved to suppress an image of his vehicle captured by an automated license plate reader, his motion was denied. The warrantless collection and storage of vehicle license plate numbers, identification characteristics and location information did not constitute an unreasonable search under the Fourth Amendment. Robinson v. Commonwealth, Circuit Court of the City of Norfolk, VLW 024-8-057 (10 pp.)

License plate reader information

Where the defendant moved to suppress information derived from the capture of his license plates by a camera system deployed by the Norfolk Police Department, his motion was denied. The photographing of his vehicle’s license plate was not a search within the meaning of the Fourth Amendment. Commonwealth v. Roberson, Circuit Court of the City of Norfolk, VLW 024-8-066 (7 pp.)

Open container test

Although the General Assembly has provided indicators that a driver has been consuming alcohol on a public highway in Virginia Code § 18.2-323.1(A), it is unnecessary to meet all three indicators to justify a vehicle search. Instead, probable cause to search a car for evidence of drinking while driving remains a totality of the circumstances analysis that may be informed by an officer’s training, experience and everyday common sense. Durham v. Commonwealth, Supreme Court of Virginia, VLW 024-6-030 (16 pp.)

Reasonable suspicion

Where an officer had reasonable suspicion that the defendant had just committed a crime, the trial court erred in finding that the stop of the man was not lawful. Commonwealth v. Jones, Court of Appeals of Virginia (unpublished opinion), VLW 024-7-220 (11 pp.)

Social media accounts

Where a man alleged the search of his social media accounts, after he criticized law enforcement, constituted First Amendment retaliation and violated the Fourth Amendment, but the searches were supported by probable cause, the suit was dismissed. Stanley v. Bocock, WDVA at Roanoke, VLW 024-3-516 (19 pp.)

Warrantless request

Where the government sent an emergency request to Facebook for the defendant’s private communications, its warrantless request was supported by exigent circumstances, including the significant increase in defendant’s posting activity; the militant, pro-jihad and pro-ISIS nature of these posts; the increased global threat of retributory attacks in the wake of the heinous mass shootings in New Zealand and defendant’s documented desire to kill Americans. United States v. Chhipa, EDVA at Alexandria, VLW 024-3-595 (20 pp.)

 

Taxation

Church-owned property

Where a church rented property to a commercial tenant, the property is not exempt from property taxes. The church-owned property was not used or occupied exclusively for religious worship. Emmanuel Worship Center, et al. v. The City of Petersburg, VLW 024-7-049 (16 pp.)

Commercial tax assessment

Where a commercial landlord challenged Fairfax County’s real estate tax assessments for three tax years, but it failed to show that the presumptively correct tax assessments were “not arrived at in accordance with generally accepted appraisal practices … and applicable Virginia law relating to valuation of property,” the County prevailed. Tysons Corner Hotel Plaza LLC v. Fairfax County, Court of Appeals of Virginia, from the Circuit Court of Fairfax County, VLW 024-7-323 (15 pp.)

Earned income

Where the Department of Taxation taxed income earned by a Virginia company from its minority interest in a foreign company, but there was no function integration, centralized management or economies of scale between the two companies, the Department overtaxed the company. Commonwealth of Virginia Department of Taxation v. FJ Management Inc., Court of Appeals of Virginia, from the Circuit Court of the City of Richmond, VLW 024-7-338 (16 pp.)

Tax liability

Where a biotech company argued that it properly used two tax credits to reduce its liability by more than a million dollars, but its position was contrary to the statutory language, the Tax Court’s decision finding for the IRS was affirmed. United Therapeutics Corporation v. Commissioner of Internal Revenue, 4th U.S. Circuit Court of Appeals, VLW 024-2-169 (19 pp.)

 

Tort

§ 1983

Where a man’s federal statutory and constitutional rights were allegedly harmed by a joint action between a police officer and private parties, the private parties could be sued under § 1983. Byers v. City of Richmond, EDVA at Richmond, VLW 024-3-457 (88 pp.)

Defamation

Where the employee of a competitor emailed a customer that the plaintiff, a provider of electronic pull tabs for the regulated charitable gaming market, was “under a very serious State Investigation in Virginia!!!!!” resulting in that customer cancelling a contract with the plaintiff, the defamation and tortious interference claims survived the employee’s motion to dismiss. Grover Gaming Inc. v. Huffman, VLW 023-3-799 (17 pp.)

Defamation

Where a former school superintendent alleged a news story falsely reported that he was “ousted,” when he was neither forced to resign nor required to sign a separation agreement, his defamation claim survived the station’s motion to dismiss. The term “ousted” when used in this context, was defamatory, was not an opinion and there were sufficient allegations of actual malice. Sroufe v. Scripps Media Inc., VLW 024-3-218 (13 pp.)

Deliberate indifference

Where a doctor knowingly or recklessly disregarded an inmate’s need for psychiatric medication and treatment, and the inmate subsequently committed suicide, the deliberate indifference and wrongful death claims survived the doctor’s motion for summary judgment. Lapp v. United States of America, VLW 023-3-777 (21 pp.)

Federal enclave doctrine

Where military servicemembers and their spouses who reside or resided at Fort Belvoir filed suit over “reprehensible housing conditions” on the base, the claims under the Virginia Consumer Protection Act and Virginia Residential Landlord and Tenant Act were barred by the federal enclave doctrine. Fischer v. Fort Belvoir Residential Communities LLC, VLW 024-3-082 (11 pp.)

Investigation

Where a former commonwealth employee sued an outside law firm that investigated her conduct, but her defamation, due process and conspiracy claims all failed as a matter of law, the suit was dismissed with prejudice. Moschetti v. Nixon Peabody LLP, VLW 024-3-293 (32 pp.)

Title IX

Where a former student at the University of Virginia alleged that the university breached its duties under Title IX to investigate her complaints of sexual abuse by a professor, most of her claims survived the university’s motion to dismiss. Doe v. The University of Virginia, VLW 024-3-198 (13 pp.)

TSA screening

Where a woman alleged a Transportation Security Administration officer intentionally conducting an invasive screening, despite the woman’s age and disability, resulting in the woman cancelling or declining many trips that require commercial air travel, her intentional infliction of emotional distress claim survived the government’s motion to dismiss. Feld v. United States of America, VLW 024-3-062 (4 pp.)

Uber passenger assault

Where a passenger alleged an Uber driver assaulted him following a dispute over payment, a reasonable jury could determine that the assault was in furtherance of Uber’s business. Based on the facts alleged in the complaint, the driver was at the address as part of his business driving for Uber and assaulted the man to coerce payment of a debt owed to Uber; therefore the vicarious liability claim survived Uber’s motion to dismiss. Fuentes v. Uber Technologies Inc., VLW 024-3-124 (10 pp.)

Vicarious liability

Where a registered nurse committed a sexual battery upon a patient, but the acts of sexual molestation did not coincide with his performance of any job-related services and resulted instead from a wholly personal motive, the hospital was not vicariously liable. H.C. v. Potomac Hospital Corporation of Prince William, VLW 024-7-151 (20 pp.)

 

Wills and Trusts

Invalid amendment

Where an amendment to a trust agreement made by the grantor’s daughter violated the terms of the trust agreement, it was invalid. Kosmann v. Brown, Court of Appeals of Virginia, VLW 024-7-223 (18 pp.)

Land ownership dispute

Where a property settlement agreement allowed the husband to live on the property until a dog died and thereafter provided how the property would be handled but did not provide what happened if the husband predeceased the dog, it did not control the outcome of a dispute that arose after the husband predeceased the dog. Putnam v. Covington, Rappahannock County Circuit Court, VLW 024-8-064 (9 pp.)

 

Workers’ Compensation

Compensable injury

Where claimant, an airline employee, slipped while on a walkway that led from an employee parking area to near the entrance of her employer’s terminal, the Virginia Workers’ Compensation Commission correctly ruled that claimant’s injuries arose in the course of her employment. This case is not governed by the going and coming rule. Rather, the extended premises doctrine applies. United Continental Holdings v. Sullivan, VLW 024-7-021 (12 pp.)

Disability claim

The Virginia Workers’ Compensation Commission incorrectly concluded that a claim for temporary total disability was untimely where the claim was filed within two years of the last date the claimant’s employer voluntarily paid full wages for light-duty work. Under the relevant statute, such payments are “‘compensation paid pursuant to an award of compensation[.]’” Walker v. Dep’t of Corrections, VLW 024-7-010 (10 pp.)

 

Zoning

Variance

Where the City of Alexandria Board of Zoning Appeals lacked authority to issue a variance to an underlying ordinance, the circuit court order overturning its decision was affirmed. Avonlea LLC v. Moritz, Court of Appeals of Virginia, from the Circuit Court of the City of Alexandria, VLW 024-7-276 (7 pp.)