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Judge David B. Carson

Jul 18, 2023

Mother awarded legal and physical custody

Where the court has determined that father’s contact with the parties’ child “is not appropriate,” mother is awarded sole legal and physical custody, and father is denied “any form of visitation[.]” Best interest “The critical question in this case, which overrides all other considerations, is the best interests of SAS. The Court stresses this point […]

Feb 16, 2023

Plaintiff not entitled to portion of termination fee

Where plaintiff claims entitlement to a portion of a $3.7 million termination fee that defendant lessor received from the lessee for the lessee’s early termination of a lease, defendant is granted summary judgment because the lease does not provide for such distribution. Overview Defendant is the successor lessor of a building. Ace American Insurance is […]

Sep 22, 2022

Attorney’s representation did not breach contract

Where plaintiff sued defendant attorney for breach of contract and malpractice allegedly arising from defendant’s representation in a drunken driving case, defendant’s demurrers to both claims are granted. Contract claim “Plaintiff first asserts a breach of contract claim alleging that Defendant breached a contract for legal services in that Plaintiff received ‘no valuable services’ from[...]

Mar 28, 2022

Plaintiff sustained broken femur in ­accident in Roanoke — $400,000 verdict

Type of action: Personal injury Injuries alleged: Broken femur Court: Roanoke City Circuit Court Case no.: CL20-2087 Tried before: Jury Name of judge or mediator: Judge David B. Carson Date resolved: 12/14/2021 Special damages: $117,693.17 Verdict or settlement: Verdict Amount: $400,000 Attorneys for plaintiff (and city): Benjamin D. Byrd and Macel H. Janoschka, ­Roanoke Description […]

Mar 14, 2022

Some claims viable in moldy house case

Where plaintiff alleges defendants concealed a mold infestation in the house plaintiff bought from them, an “as is” clause in the sales contract does not insulate defendants from a claim of actual fraud in the inducement. The complaint Plaintiff alleges that defendants covered up mold in four locations using paint, drawer lining, drywall patches and […]

Mar 14, 2022

No legal malpractice claim for oral motion

Where plaintiff pleaded guilty to DUI-maiming and later moved to withdraw his plea, defense counsel’s oral motion, which the trial court denied, is not grounds for a legal malpractice claim. Prior proceedings Plaintiff Ascue ran a red light at 65 mph, then rear-ended a car. The car then crashed into another vehicle. The car driver […]

Mar 8, 2022

SOL continued to run despite tolling provision

Where a judicial emergency order tolled the statute of limitations for a specified period, the tolling provision applies to cases in which the statute of limitations expired within the tolling period. The order tolled statutes of limitations from March 16, 2020, through July 19, 2020. Plaintiff’s personal injury claim, which has a two-year statute of […]

Oct 4, 2021

Household residency not determined by intent alone

A woman who intended to live with her grandfather was not a member of his household and therefore not eligible for uninsured motorist coverage after she was injured in a traffic accident. Subjective intent is a factor in determining whether someone is a household member but “this intent must also be coupled with objective indicia […]

Aug 3, 2020

Suit filed 39 months after talks ended was prejudicial

Where plaintiff, the labor and industry commissioner, sued United Parcel Service 39 months after the parties ended discussions on how to resolve a citation the commissioner issued after a fatal accident at a UPS facility, the delay was prejudicial and the suit will be dismissed. Overview There was a fatal accident at the UPS facility […]

Jul 20, 2020

Lawsuit came too late in job safety case

Despite courts’ typical deference to state regulators, a Roanoke circuit judge has concluded the Virginia Department of Labor and Industry waited too long to maintain an enforcement action over a workplace fatality. The judge’s opinion adds to a growing body of cases analyzing when job safety regulators have prejudiced employers with years-long delays in bringing […]

Apr 16, 2020

Nonsuit filing after dismissal hearing rejected

Where plaintiff filed a nonsuit motion after a hearing on defendant’s motion to dismiss, the nonsuit motion is denied because the case had been submitted to the court for a decision. Background Plaintiff alleged that defendant Norfolk Southern Railway caused, in whole or in part, the death of plaintiff’s decedent. Defendant filed a motion to […]

Apr 16, 2020

Biopsy slide photos not discoverable

Where defendant doctor’s counsel in this medical malpractice case directed her to photograph plaintiff’s biopsy slides, the photos are attorney work product. Plaintiff alleges that defendants misdiagnosed her with a specific cervical cancer, for which she received treatment. While deposing Dr. Sheth, one of the defendants, plaintiff learned that after she filed her suit, Sheth’s […]

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