VALW

JANUARY * FEBRUARY * MARCH  * APRIL * MAY * JUNE

JANUARY

Attorneys
Discovery Sanctions – Real Estate Contract
In this litigation in which plaintiff buyers allege that defendants, the seller of an Arlington home and her broker/husband, knew that a rear addition to the home was constructed without permits or zoning variances and had caused structural damage to the home, the circuit court sanctions plaintiffs for their failure to respond to discovery requests seeking the basis for their claim.
Skibinski v. Lunger (Arlington County Cir. Ct.) (VLW 008-8-005) (7 pp.)

Attorneys
UPL - Child Support Petition – Agency Staff Signatures
A federal judge in Harrisonburg has dismissed a lawsuit challenging the authority of non-lawyer staff members of the Division of Child Support Enforcement to sign motions to hold in contempt parents who are delinquent in their support obligations.
Briggman v. Commonwealth of Va., DSS, DCSE (USDC-WD) (VLW 008-3-003) (23 pp.)

Civil Procedure
Filing Date – Amended Complaint – Leave To Amend
In this automobile accident wrongful death suit that plaintiff wished to amend to name as defendants individual employees of the Virginia Department of Transportation, the trial court did not err in holding that an amended complaint is not deemed filed, and is thus without legal efficacy, until a trial court grants leave to amend.
Ahari, Adm’r v. Morrison (Va.S.Ct.) (VLW 008-6-004) (8 pp.)

Civil Rights
Excessive Force – Police Assault – Norfolk Nightclub
In this suit by a woman who alleges two police officers used excessive force when they verbally and physically assaulted her outside a Norfolk nightclub, slamming her against a vehicle and the pavement, choking her and tearing her blouse to expose her breasts, the plaintiff may not sue the defendant police captain and police chief who did not participate in or authorize the alleged misconduct and therefore are immune from suit.
Pigott v. Ostulano (Norfolk Cir.Ct.) (VLW 008-8-003) (5 pp.)

Contract
Public Procurement Act – Pre- & Post-Judgment Interest
In this continued litigation over a public contract for the construction of a waste water treatment facility, the Supreme Court articulates rules for distinguishing and awarding pre-judgment and post-judgment interest and, among other holdings, reverses a circuit court’s award of $1,162,805 in post-judgment interest on a compensatory damage award.
Upper Occoquan Sewage Authority v. Blake Construction Co./Poole & Kent, a Joint Venture (Va.S.Ct.) (VLW 008-6-001) (9 pp.)

Corporate
Stock Gift – Terminated Corporation
In this contest between siblings over ownership of 100 shares of stock of their deceased father’s demolition business, the son to whom the father purported to transfer the shares prior to his entry into a nursing home has proven a gift, and the transfer of stock was effective even though the corporation had been terminated by the State Corporation Commission for failure to maintain a registered agent and office.
Square Deal Demolition Inc. v. Doxie (Norfolk Cir.Ct.) (VLW 008-8-006) (10 pp.)

Corporate
Joint Venture- LLC - Operating Agreement - Arbitration Clause
Although the parties, two LLCs who formed a third LLC for the purpose of dealing in multi-family properties for investors seeking tax advantages for like-kind exchanges of qualifying properties, agreed to an arbitration clause in their operating agreement for the third LLC, that third LLC was not a party to the operating agreement and one party cannot compel arbitration of a derivative claim on behalf of the third entity.
Mission Residential LLC v. Triple Net Properties LLC (Va.S.Ct.) (VLW 008-6-015) (6 pp.)

Corporate
Non-Stock Corporation – Property Owners’ Association
A Greene County property owners’ association organized as a non-stock Virginia corporation does not qualify as an association under the Property Owners’ Association Act because the filing of the association’s articles and bylaws did not constitute a declaration imposing on the association operational or maintenance responsibilities for the common areas or roads of the development.
Dogwood Valley Citizens Ass’n Inc. v. Shifflett (Va.S.Ct.) (VLW 008-6-009) (9 pp.)

Criminal
Sentencing – Above-Guidelines Sentence – Notice
A 480-month sentence for a church van driver convicted of receiving child pornography is vacated because the district court did not provide sufficient notice that it was considering a sentence above the range prescribed by federal sentencing guidelines.
U.S. v. Fancher (USCA) (VLW 008-2-006) (13 pp.)

Criminal
Suppression - Search - Request for Counsel
Police apparently didn’t know get it when a burglary suspect responded to a request to search his car with, “Nah, I want a lawyer, you know what I’m saying?” and defendant’s statements should have been suppressed.
Ferguson v. Commonweath (Va.Ct.App.) (VLW 007-7-451) (21 pp.)

Domestic Relations
False Affidavits - Prompt Dismissal
A Salem Circuit Court dismisses a custody petition with false affidavits that do not disclose pending divorce and custody proceedings in Wisconsin.
VanGulik v. VanGulik (Salem Cir.Ct.) (VLW 007-8-276) (3 pp.)

Employment
ERISA – Disability Benefits – Standard Of Review
In reviewing a company’s termination of long-term disability benefits for a woman who suffered from severe rheumatoid arthritis and then was in a car accident, although the district court said it applied an abuse of discretion standard, in practical effect it reviewed the termination de novo, and the 4th Circuit reverses the decision for the employee and remands with directions to grant judgment to the company.
Evans v. Eaton Corp. Long Term Disability Plan (USCA) (VLW 008-2-003) (15 pp.)

Intellectual Property
Copyright Infringement – UCITA - Driver Education Materials – Online Course
The developers of curriculum materials and an online course for driver’s education for use by student drivers in Virginia cannot sue defendant Costech Technologies Inc., the vendor hired to integrate the content into an internet-based system, for violation of warranties under the Virginia Uniform Computer Information Transactions Act because statements Costech allegedly made guaranteeing that the online system would be “user-friendly” were mere puffery.
Wigand v. Costech Technologies Inc. (USDC-ED) (VLW 008-3-013)(26 pp.)

Intellectual Property
Foreign Company - Deposition
In “a first for any federal court,” the 4th Circuit says the Alexandria federal district court should have ordered a foreign company to find someone for a Rule 30(b)(6) deposition, even though the foreign company had no U.S. presence prior to filing a trademark application.
Rosenruist-Gestao v. Virgin Enterprises (USCA) (VLW 007-2-181) (36 pp.)

Medical Malpractice
Medical Expert Qualification – Neurologist v. Orthopedist - Spinal Surgery
A neurologist who had no active practice or hospital privileges since 1997 is not qualified to testify on the standard of care on intraoperative care during spinal surgery by an orthopedic surgeon, but he is qualified to testify on the standard of care for post-operative care and detection of neurological injury and on proximate causation; he may be qualified to testify as to proximate causation on the issue of intraoperative care.
Lloyd v. Kime (Va.S.Ct.) (VLW 008-6-008) (18 pp.)

Negligence
Workers’ Comp Bar - Employee Assault
A workplace assault – a male emergency services technician’s “playful” use of electric defibrillator paddles to shock a female coworker as they returned to work from lunch, fatally injuring her – did not arise “in the course of” their mutual employment and the victim’s estate can sue the assailant in tort.
Hilton, Adm’r v. Martin (Va.S.Ct.) (VLW 008-6-003) (7 pp.)

Negligence
Auto Accident – Respondeat Superior – Real Estate Agent
A realty company cannot be liable for injuries plaintiffs allegedly suffered from an accident involving the motorcycle on which plaintiffs were riding and a vehicle driven by defendant Long and Foster real estate agent because the agent was an independent contractor.
Hesse v. Ebbets (USDC-ED) (VLW 008-3-008) (21 pp.)

Negligence
Accident Reconstruction Testimony – Trucking Industry Expert
In this personal injury case, the circuit court denies in part defendant’s motion in limine to exclude expert testimony, and holds that plaintiff’s “trucking industry” expert may testify about physical properties of a tractor-trailer and industry standards for drivers, but not the cause of the accident, and plaintiff’s vocational expert may testify about future loss of earning capacity.
Zoll v. Werner Enterprises Inc. (Norfolk Cir.Ct.) (VLW 008-8-001) (5 pp.)

Real Estate
Foreclosure Sale – Accounting – ‘Balance Due’
In this case arising from a foreclosure sale by substitute trustees of property encumbered by a deed of trust, a commissioner of accounts may not require the trustee to characterize the apparent amount remaining due after application of the credit from the foreclosure sale as a “balance due” or a deficiency in an accounting of the sale, in which the lender was the successful bidder and the trustee received no sale proceeds.
In the Matter of the Foreclosure of Deed of Trust (Tazewell County Cir.Ct.) (VLW 008-8-007) (2 pp.)

Tort
Defamation – Public Official – Actual Malice Standard
A defamation plaintiff who was employed by the U.S. Navy as “Director of Contracting for the Southeast RMC,” a civilian position, when he allegedly was the subject of a letter to his superiors complaining that he may have violated certain ethical standards, is a “public official” who must show actual malice under New York Times v. Sullivan.
Carroll v. Jones (Portsmouth Cir.Ct.) (VLW 008-8-008) (7 pp.)

Search & Seizure
Anonymous Tip – Insufficient Corroboration
Evidence should have been suppressed in this case because an anonymous 911 caller’s tip that she had observed a driver participating in a transaction involving a sandwich bag and a gun was not sufficiently corroborated, and the police stop of the vehicle violated defendant’s Fourth Amendment rights.
U.S. v. Reaves (USCA) (VLW 008-2-002) (7 pp.)

Tort
Emotional Distress – Dental Assistant Harassment – Tortious Interference
A plaintiff dental assistant has not stated a claim for intentional infliction of emotional distress by defendant dentist with allegations that the dentist subjected her to a “severe and pervasive atmosphere of vile and outrageous verbal statements and physical acts,” including using abusive language toward her and fondling a patient in her presence; however, her allegations that defendant threatened and pressured her to quit her job state a claim for tortuous interference with contract.
Wilson v. Modjadidi (Norfolk Cir.Ct.) (VLW 008-8-002) (4 pp.)

FEBRUARY

Bankruptcy
Student Loan Discharge – Undue Hardship – Good Faith Effort
A bankruptcy court erred in discharging a couple’s student loans because they did not demonstrate a good-faith effort to repay their loans, as evidenced, for example, by husband’s decision to leave one job when the employer told him it would no longer pay overtime pay but only straight salary, for extra time worked, and debtors’ monthly expenses included internet, satellite tv, cell phones and YMCA membership.
Educational Credit Mgmt. Corp. v. Mosko (USCA) (VLW 008-2-028) (10 pp.)

Civil Rights
Municipal – County Zoning Ordinance – Methadone Clinic – ADA
A Baltimore County zoning ordinance violated the Americans with Disabilities Act by making it illegal to operate a methadone treatment clinic in a particular locale, but the district court’s injunction against the county prohibiting disability discrimination and enforcement of the ordinance is vacated, and the case remanded for further consideration of the basis for injunctive relief in light of appellate review.
A Helping Hand LLC v. Baltimore County, Md. (USCA) (VLW 008-2-026) (26 pp.)

Civil Rights
Autistic Student – IDEA – Private School Costs
The 4th Circuit vacates a Richmond federal district judge’s order requiring Hanover County School Board to pay the costs of private school placement for an autistic student, plus attorney’s fees and costs exceeding $180,000; the district court failed to give the required deference to the state hearing officer’s decision that the school board’s individualized education plan for the student was adequate, and we remand with instructions to reconsider the appropriateness of the IEP.
J.P., a minor v. County School Board of Hanover County, Va. (USCA) (VLW 008-2-030) (14 pp.)

Contract
Licensing Agreement – Injunction
In this litigation over a licensing agreement between Gameday Properties LLC and Sports Group Ltd, over competing publications, the circuit court grants partial temporary injunctive relief as to a specific noncompete provision in the licensing agreement, but denies the remainder of the request for temporary injunctive relief.
TCC Sports LLC v. Sports Group Ltd. (Loudoun County Cir.Ct.) (VLW 008-8-015) (3 pp.)

Criminal
Prior Drug Convictions – Life Sentence
A defendant convicted of conspiracy to distribute crack cocaine will not be sentenced to life in prison under 21 U.S.C. § 841(b)(1)(A) because, of the prior convictions cited by the government to support a life sentence, a Virginia cocaine conviction and a federal cocaine base conviction arose out of the same criminal episode, and defendant’s Virginia imitation controlled substance conviction is not a felony drug offense, so that defendant has only one prior felony drug offense within the meaning of § 841(b)(1)(A).
U.S. v. Gardner (USDC-WD) (VLW 008-3-059) (15 pp.)

Criminal
Expungement Petition – Stalking Charge – Protective Order
A circuit court orders expungement of a 1999 stalking charge under Va. Code § 18.2-60.3 that was nolle prossed, but the court does not have authority to expunge a protective order entered earlier that year.
Petition for Expungement (Newport News Cir.Ct.) (VLW 008-8-009) (4 pp.)

Criminal
Appeals – Magistrate Suppression Order
Where a magistrate judge dismissed a marijuana charge against defendant after granting his motion to suppress, and the government appealed the suppression order but not the decision to dismiss the charge, the district court has no jurisdiction to review the suppression order and the government’s appeal is dismissed.
U.S. v. Lee (USDC-ED) (VLW 008-3-043) (7 pp.)

Criminal
Sentence Reduction – Crack Guidelines – Retroactivity
An Abingdon federal judge holds that a defendant convicted of conspiring to distribute crack cocaine is not eligible for a sentence reduction before the effective date of retroactive application of the federal Sentencing Commission’s reduced guidelines for crack cocaine; but the judge serves notice he is ready to reduce defendant’s 30-month sentence to 20 months, effective March 3 when the reduced guidelines take effect.
U.S. v. Ayala (USDC-WD) (VLW 008-3-056) (4 pp.)

Domestic Relations
Marital Home – Attorney’s Lien
A trial court sustains wife’s demurrer to an attorney’s lien filed by husband’s lawyer on the marital home, which was transferred to wife pursuant to the parties’ divorce settlement.
A Attorney LLC v. Olson (Prince William Cir.Ct.) (VLW 008-8-031) (4 pp.)

Domestic Relations
Child Support Reduction – Voluntary Underemployment
A father did not “voluntarily” leave his job as corporate counsel when he left after he was switched to regulatory/lobbying work, where he had no experience; nor did he voluntarily leave another corporate counsel position after his attempt to work two days a week in Richmond where his children lived, and three days a week in Baltimore proved unsuccessful; the Court of Appeals remands for the divorce court to consider father’s current income, not his income at the time of the 2001 divorce decree.
Broadhead v. Broadhead (Va.Ct.App.) (VLW 008-7-038) (12 pp.)

Domestic Relations
Spousal Support – Imputed Income
A $14,000 monthly spousal support award is reversed because a panel majority of the Court of Appeals says the trial judge applied the wrong standard on imputing income to wife, but a dissenting judge says the husband’s responsibilities to his wife of 17 years, who had not worked for 15 years by mutual agreement, “remain for a reasonable length of time.”
McKee v. McKee (Va.Ct.App.) (VLW 008-7-043(UP)) (22 pp.)

Employment
Doctor Noncompete – Arbitration – Res Judicata
A neurological clinic and a doctor it formerly employed may not pursue a second arbitration of issues related to the doctor’s noncompete, because of the res judicata effect of an earlier arbitration between the same parties involving the same termination of employment and contracts at issue in the second arbitration.
Winchester Neurological Consultants Inc. v. Landrio (Winchester Cir.Ct.) (VLW 008-8-033) (10 pp.)

Employment
ERISA - Long-Term Disability - Substance Abuse
A nurse-anesthetist who had twice relapsed and begun again to use Fentanyl, to which he had been addicted, cannot collect long-term disability benefits on the claim that the risk of relapse into addiction is a disability under an ERISA-governed plan.
Stanford v. Continental Casualty Co. (USCA) (VLW 008-2-009) (17 pp.)

Employment Discrimination
Title VII – Religion – Reasonable Accommodation
Defendant Firestone reasonably accommodated an employee of its tire cord testing laboratory who, through layoffs and restructuring under a collective bargaining agreement, was moved to a lab technician job and exhausted his leave possibilities under a union contract for taking time off on Saturdays, his regular Sabbath, and other religious holidays.
EEOC v. Firestone Fibers & Textiles Co. (USCA) (VLW 008-2-025) (19 pp.)

Employment Discrimination
Disability - Deafness - ADA - Punitive Damages
FedEx violated the Americans with Disabilities Act when it failed, over a three-year period, to offer reasonable accommodations to a deaf man employed as a package handler, in the form of an American Sign Language interpreter at or notes from, periodic employee meetings and safety training sessions; the 4th Circuit affirms the jury awards to plaintiff of $8,000 in compensatory and $100,000 in punitive damages.
EEOC v Federal Express Corp. (USCA) (VLW 008-2-011) (26 pp.)

Employment Discrimination
Disability - Parkinson’s Disease
A manufacturing company violated the Americans with Disabilities Act when it terminated a shipping supervisor who suffered from Parkinson’s disease.
Wilson v. Phoenix Specialty Mfg. Co. (USCA) (VLW 008-2-010) (25 pp.)

Insurance
Excess Coverage – School Board Policy - Student Sexual Abuse
A school board that settled for over $1 million a lawsuit filed by a high school student who had been sexually abused by a teacher, has “coincidental” excess coverage through appellee carrier Horace Mann Insurance Company’s policy issued to the school principal, not through appellant General Star Insurance, as the district court ruled on summary judgment; the district court decision is reversed and the case remanded for entry of judgment in favor of General Star.
Horace Mann Ins. Co. v. General Star Nat’l Ins. Co. (USCA) (VLW 008-2-008) (28 pp.)

Intellectual Property
Patent Infringement – ‘Exceptional Case’ – Attorney’s Fee Award
In this patent infringement litigation involving a system for monitoring the power quality and energy consumption for branch circuits, the district court grants plaintiff’s motion to designate this an “exceptional case,” warranting an award of attorney’s fees under 35 U.S.C. § 285.
Thomas & Betts Power Solutions LLC v. Power Distribution Inc. (USDC-ED) (VLW 008-3-062) (8 pp.)

Municipal
FOIA – Landowner Request – Costs
In this de novo appeal of a general district court decision in this FOIA case, in which a landowner with a pending land-use application seeks public records that include e-mails to members of the board of supervisors, the request for disclosure may apply to public records in both public and private data bases that relate to the “transaction of public business,” but the circuit court finds the landowner cannot be charged over $400 for a search by hand of hard-copy of pertinent records.
Burton v. Mann (Loudoun County Cir.Ct.) (VLW 008-8-013) (9 pp.)

MARCH

Civil Procedure
Jurisdiction – N.J. Law – Comity
In an Arlington lobbying firm’s lawsuit against Atlantic City and its mayor to collect fees under a contract to provide lobbying services, the circuit court rejects defendant’s motion to dismiss based on principles of comity because the defendant is a foreign municipality.
Alcade & Fay Ltd. v. City of Atlantic City, N.J. (Arlington County Cir.Ct.) (VLW 008-8-097) (4 pp.)

Civil Procedure
Discovery – Attorney-Client Privilege – Work-Product Doctrine
In a former CFO’s defamation and contract action against the senior-living facility that fired him, neither the defendant employer’s attorney-client privilege nor the work product doctrine will allow employer to deny discovery of documents plaintiff received or reviewed, authored or reasonably had access to as CFO during his tenure.
Rush v. Sunrise Senior Living Inc. (Fairfax Cir.Ct.) (VLW 008-8-084) (8 pp.)

Civil Procedure
Jurisdictional Amount – Removal Notice – Sua Sponte Remand
Not so fast, the 4th Circuit says; in this products liability suit alleging defects in an RV, a district court erred when it decided sua sponte that a defendant’s bare-bones notice of removal failed to establish the jurisdictional amount of $75,000-plus, and even if the plaintiff had challenged removal on that basis, the defendant’s assertions were good enough to establish the jurisdictional amount under federal notice-pleading requirements.
Ellenburg v. Spartan Motors Chassis Inc. (USCA) (VLW 008-2-044) (12 pp.)

Civil Procedure
Default Judgment – Service Of Process – Related Litigation
Although plaintiff telephone company attempted substituted service on defendant software company in this contract dispute in Richmond Circuit Court, the parties had an ongoing related lawsuit in Fairfax Circuit Court, in which that court held the software company was entitled to over $1 million in damages, and the default judgment order against the software company entered by the Richmond Circuit Court will be vacated.
Cavalier Telephone LLC v. Step 9 Software Corp. (Richmond Cir.Ct.) (VLW 008-8-027) (5 pp.)

Civil Rights
Gun Seizure – Property Return – Mass Murder Threat
Police did not violate plaintiff’s Fourth Amendment rights when they promptly made a warrantless seizure of his extensive cache of firearms, ammunition, firearms accessories and survivalist literature from plaintiff’s garden apartment after handcuffing him upon a hotline operator’s report to police, minutes earlier, that showed a man on the edge, armed, suicidal and inclined to kill his co-workers on the way out. However, whether defendant City of Gaithersburg is entitled to retain the seized items and not return them to plaintiff, a registered firearms collector, involves questions of state law not considered by the 4th Circuit.
Mora v. City of Gaithersburg (USCA) (VLW 007-2-038) (20 pp.)

Consumer Protection
Motor Vehicle Warranty Act – Attorney’s Fees
Although a lawyer could not produce a written fee agreement with the client he represented in a suit under the Motor Vehicle Warranty Enforcement Act, the lawyer nevertheless is entitled to $300 per hour pursuant to such an agreement, for a fee of $19,575 on a recovery of $25,369.l7 paid by defendant in the case.
Roatenberry v. Ford Motor Co. (Roanoke City Cir.Ct.) (VLW 008-8-032) (4 pp.)

Contract
Noncompete – Martial Arts Studio – Penalty Provision
A contract clause that required two defendants, who opened a Chesapeake martial arts school and promoted it with classes and advertising featuring a plaintiff who had a similar school in Virginia Beach, to pay plaintiff $15,000 if they opened a similar school without allowing plaintiff to participate, is enforceable under Virginia law, a Virginia Beach Circuit Court holds.
Miran v. Merullo (Va. Beach Cir.Ct.) (VLW 008-8-082) (6 pp.)

Corporate
Shareholder Derivative Suit – Restated Earnings – Del. Law
Under the controlling Delaware law, a shareholder can’t bring a derivative suit based on a corporate audit committee’s alleged lack of good faith in investigating the company’s need to restate earnings to the SEC, despite the SEC’s formal investigation.
Westerman v. Alfred (Fairfax Cir.Ct.) (VLW 008-8-076) (21 pp.)

Criminal
Continuance - Newly Retained Counsel
A trial court did not err in denying defendant’s motion for a sixth continuance on the morning of his scheduled trial on a gun charge, in order to allow defendant’s newly retained counsel time to review a transcript of the suppression hearing; but a dissenting judge says the panel majority failed to distinguish a similar 2006 case that reversed for denial of a continuance.
Johnson v. Commonwealth (VLW 008-7-109) (16 pp.)

Domestic Relations
Child Custody – JDR Appeal – De Novo Trial
A trial judge erred in telling a mother appealing a JDR custody decision that if she had no new evidence to present, as indicated by his reading of the JDR trial transcript, he would leave custody with the father and in addition, impose a large attorney’s fee award against the mother.
Alexander v. Flowers (Va.Ct.App.) (VLW 008-7-135) (10 pp.)

Domestic Relations
Adultery – Husband Partial Dress
A retired husband gets no spousal support as wife proved adultery with evidence from a private investigator who saw husband coming and going from his girlfriend’s home, including an appearance by husband in his underwear.
Toth v. Toth (Fairfax Cir.Ct.) (VLW 008-8-071) (8 pp.)

Domestic Relations
Spousal Support – Lump-Sum Award
A 68-year-old retired husband, granted a no-fault divorce against his 57-year-old wife, whom he met in an Internet dating service and who was born in the Philippines and lived most of her life in Germany, must pay wife lump-sum spousal support of $30,000 and $6,000 in attorney’s fees at the conclusion of their three-year marriage.
Harkness v. Harkness (Salem Cir.Ct.) (VLW 008-8-096) (3 pp.)

Domestic Relations
PSA – Life Insurance Policies – Show Cause
A husband is not in contempt of a PSA that required him to keep up “existing” life insurance policies for wife’s benefits, where he lost his employee life insurance policy when he lost his job through no misconduct.
Kammerdeiner v. Kammerdeiner (Fairfax Cir.Ct.) (VLW 008-8-078) (3 pp.)

Domestic Relations
Property Transfer – Attorney Lien
An attorney cannot perfect a lien he placed on property transferred to the spouse of his client during a divorce, a circuit judge rules.
A Attorney LLC v. Olson (Prince William County Cir.Ct.) (VLW 008-8-086) (12 pp.)

Employment
Noncompete – Doctor’s Contract – Stark Law
Although a noncompete was reasonable in prohibiting a doctor’s general surgery practice for two years in Frederick County or the City of Winchester, the noncompete provision violates the federal Stark Law because the surgeon, a provider under federal Medicare and Medicaid programs, also received payments under a hospital physician recruitment agreement.
General Surgery Specialists PLC v. Bowers (Winchester Cir.Ct.) (VLW 008-8-034) (10 pp.)

Employment Discrimination
Sexual Harassment – Pattern & Practice Claim
In this case in which several former and current female employees of defendant medical supply company have detailed the numerous sexual comments, questions and “opportunistic groping” by the male company owner and sales manager, the EEOC can pursue its claim against the company for “pattern and practice” sexual harassment.
EEOC v. Burlington Medical Supplies Inc. (USDC-ED) (VLW 008-3-074) (34 pp.)

Insurance
Auto Accident – Company Truck – Drunken Driver – Implied Permission
A plumbing company employee who was in an auto accident while intoxicated and using a company truck to drive guests from a cook-out at the employee’s home, was a permissive user of the company truck and has liability coverage under the company’s insurance policy.
Erie Ins. Co. v. Willard (Fauquier County Cir.Ct.) (VLW 008-8-081) (5 pp.)

Municipal
Constitutional - Inverse Condemnation - Neighborhood Flooding
A Newport News Circuit Court erred in holding that plaintiff property owners could not state a claim for inverse condemnation based on the repeated flooding of three Newport News subdivisions allegedly because of the city’s failure to use a pipe large enough to adequately drain the watershed during normal and ordinary conditions.
Kitchen v. City of Newport News (Va.S.Ct.) (VLW 008-6-025) (24 pp.)

Negligence
Park Ranger – Gate Closure – Sovereign Immunity
A county has sovereign immunity from plaintiff’s lawsuit alleging a park ranger was negligent in performance of his official duties when he failed to secure the park’s front gate so that it would not swing into the path of vehicles entering or exiting the park, but plaintiff has leave to amend a claim against the park ranger.
Altizer v. County of Tazewell, Va. (Tazewell County Cir.Ct.) (VLW 008-8-040) (3 pp.)

Negligence
Wrongful Death – Survivorship – Election Of Remedies
In this suit against defendant hospital arising from a woman’s death, the circuit court rejects defendant’s efforts through requests for admission to force plaintiffs, prior to presenting evidence to a jury, to elect between pursuing a survivorship action or a wrongful death action.
Brothers v. Rockingham Memorial Hosp. (Rockingham County Cir.Ct.) (VLW 008-8-085) (5 pp.)

Property
Declaration Of Independence – Quiet Title Action
A Virginia man who bought a broadside of the Declaration of Independence for $475,000 withstands a challenge from the State of Maine, who claims the broadside, discovered in 1995 in the attic of a former town clerk’s daughter, is a public record that belongs to Maine; the Fairfax Circuit Court declares the State of Maine has failed to prove it is entitled to the broadside, and enters judgment for the buyer.
Adams v. State of Maine (Fairfax Cir.Ct.) (VLW 008-8-039) (15 pp.)

Social Security
De Novo Review – General Objection
No shortcuts for you, a Charlottesville federal judge tells a social security claimant who restyled “almost verbatim” the argument from her summary judgment brief as objections to the magistrate judge’s report and recommendation; because claimant made only a “general objection” to the R&R, she does not get de novo review and loses her claim for SSI benefits.
Veney v. Astrue (USDC-WD) (VLW 008-3-071) (7 pp.)

Tort
Emotional Distress – PTSD – OR Posting
Although a plaintiff under treatment for PTSD suffered emotional distress when he was exposed to blood and body fluids during a posting to a hospital operating room, he has no emotional distress claim based on hospital personnel’s alleged delay in transferring him.
Howard v. Williams (Fairfax Cir.Ct.) (VLW 008-8-067) (5 pp.)

Workers’ Comp
Fall From Ladder - Gutter Cleaning
A claimant who remembered nothing about his fall from a ladder while cleaning gutters at homes in a subdivision is entitled to benefits for his work-related injuries; we agree with the commission that the facts in this case justify inferring that the claimant was in a dangerous position, doing work that caused him to be more likely to fall, and lost his balance and fell.
Turf Care Inc. v. Henson (Va.Ct.App.) (VLW 008-7-102) (16 pp)

Zoning
Conforming Use - Stop Work Order
Although a 1928 home in Falls Church became a pre-existing nonconforming use under the city’s zoning ordinance and the board of zoning appeals in 2004 approved a variance to allow the homeowners to add a second story and addition to the existing structure, the homeowner did not have the right to essentially demolish the existing structure to accomplish the renovation, and the circuit court did not err in upholding the zoning administrator’s stop work order.
Goyonaga v. Board of Zoning Appeals for the City of Falls Church (Va.S.Ct.) (VLW 008-6-026) (20 pp.)

Zoning
Historic District – Height Limit – Church Construction
A Norfolk Circuit judge grants a preliminary injunction to prohibit an Episcopal church from proceeding with construction of a building that exceeds the standard 35-foot height allowed in this historic district, based on the city’s grant of a “certificate of appropriateness.”
Owens v. City Council of the City of Norfolk (Norfolk Cir.Ct.) (VLW 008-8-079) (17 pp.)

APRIL

Administrative
Assisted Living Home - License Application - Appeal - Nonsuit
A license applicant who appealed denial of a license to operate an assisted living facility by defendant Social Services Department, and who filed suit against DSS and then nonsuited that action, cannot refile suit because the tolling provision of Va. Code § 8.01-229(E)(3) does not apply to this administrative proceeding under the Virginia Administrative Process Act, and the license applicant is time-barred from instituting this action.
Joy House Senior Homes LC v. Jones, Comm’r of VDSS (Fairfax Cir.Ct.) (VLW 008-8-106) (8 pp.)

Attorneys
Sanctions – Bankruptcy Filing – Eve Of Trial
A trial court erred in imposing sanctions on an attorney whose corporate client filed a bankruptcy petition on the eve of a trial to defend a contract action on an agreement to remove lead-based paint from plaintiffs’ home; the defense lawyer’s act of filing a witness and exhibit list was required by the court’s own pretrial order, and did not violate Va. Code § 8.01-271.1.
McNally v. Rey (Va.S.Ct.) (VLW 008-6-047) (9 pp.)

Civil Procedure
Appeals – Rule 5A:20
In these two consolidated criminal appeals, the Supreme Court holds that the Court of Appeals has been too stringent in its application of Rule 5A:20(e) to dismiss a petition for appeal or a portion of a petition, for failure to include elements such as the “principles of law, the argument and the authorities related to each question presented” as required under the rule.
Jay v. Commonwealth (Va.S.Ct.) (VLW 008-6-040) (28 pp.)

Civil Rights
Teacher Suspension – Emotional Distress – Mental Health Evaluation
A kindergarten teacher who was suspended from her duties pending a psychiatric evaluation has failed to state claims for violation of her constitutional rights or intentional infliction of emotional distress.
Earley v. Marion (USDC-WD) (VLW 008-3-095) (18 pp.)

Civil Rights
First Amendment – ABC Regs – Alcohol Ads – College Newspapers
Virginia regulations that restrict alcohol ads in college newspapers may be well intentioned but they violate the First Amendment, a Richmond federal magistrate judge says.
Educ’l Media Co. at Va. Tech Inc. and The Cavalier Daily Inc. v. Swecker (USDC-ED) (VLW 008-3-112) (36 pp.)

Contract
Mechanic’s Lien – ‘Lot’ – Apportionment
It’s a tough call, says a Warren County Circuit judge, as he enforces a mechanic’s lien that should have included “parcels” as well as “lots,” but reduces the amount.
DLB Inc. v. United Golf Inc. (Warren County Cir.Ct.) (VLW 008-8-098) (2 pp.)

Contract
Employment - Arbitration - Signatures
Although the company that hired plaintiff as a vice president only signed the last page attached to plaintiff’s employment agreement, an “Option Grant Notice,” and did not sign the intended signature page, which plaintiff signed, the parties’ conduct indicated both sides intended to be bound by the agreement, including its arbitration clause, and the circuit court confirms the arbitration award in favor of the company.
Hassett v. WaveCrest Laboratories LLC (Fairfax Cir.Ct.) (VLW 008-8-109) (9 pp.)

Criminal
Threatening - Defendant’s Repeat Appearances
A defendant who was unknown to a woman but who was observed several times in the street in front of her home, pacing, hiding and rapidly departing when police were called, and who appeared on her front porch one night, peered into her home, and uttered “weird, strange stuff” when she confronted him, and whose picture she purportedly identified in an Internet sex offender registry, cannot be convicted of misdemeanor threatening under Va. Code § 18.2-60.
Commonwealth v. Mercurio (Loudoun County Cir.Ct.) (VLW 008-8-117) (6 pp.)

Domestic Relations
Bankruptcy Discharge – Attorney’s Fees
A husband’s debt of attorney’s fees to wife in her proceeding charging violations of a court visitation order cannot be discharged in husband’s bankruptcy, because the fee award to wife is “in the nature of child support.”
Marvin v. Marvin (Va.Ct.App.) (VLW 008-7-186) (8 pp.)

Domestic Relations
Husband’s Mortgage Payments – Wife’s Cohabitation
A wife tried to insulate husband’s ongoing mortgage payments from a possible bankruptcy by calling them “in the nature of support” in the parties’ PSA, but husband still could terminate the mortgage payments when wife admitted to cohabitation with another man, the Virginia Court of Appeals said in a new unpublished opinion out of Buchanan County.
Stacy v. Stacy (Va.Ct.App.) (VLW 008-7-194(UP)) (13 pp.)

Domestic Relations
Adultery – Babysitter Testimony
A Richmond Circuit judge finds husband proved wife’s adultery with evidence from private investigators and testimony of the parties’ babysitter of 20 years.
Ferramosca v. Ferramosca (Richmond Cir.Ct.) (VLW 008-8-102) (7 pp.)

Employment
University Employee - Termination - Sexual Harassment
A Virginia Tech employee who managed the university mail system should not have been fired after 29 years for one incident of alleged “sexual harassment,” in which he asked a female student, whom he did not supervise, to pose in a bathing suit or “short shorts” for a fund-raising calendar for a youth boxing club where the employee coached.
Virginia Polytechnic Institute & State Univ. v. Quesenberry (Va.Ct.App.) (VLW 008-7-172) (11 pp.)

Immigration
Speedy Trial Act – Alien Administrative Detention
In calculating time under the Speedy Trial Act, a period of detention for an El Salvadoran national by the U.S. Immigration and Customs Enforcement, on administrative charges pending the alien’s removal, was not detention “in connection with” his arrest for unlawful reentry under 8 U.S.C. §§ 1326(a) and (b)(2), and his indictment did not violate the Speedy Trial Act.
U.S. v. Rodriguez-Amaya (USCA) (VLW 008-2-059) (8 pp.)

Negligence
Fireman’s Rule – Police Pursuit
A police officer who was injured during a high-speed chase when he encountered a John Doe on the wrong side of the road is not barred by the “Fireman’s Rule” from suing John Doe.
Gobble v. Montalvo and Doe (22nd Judicial Cir.) (VLW 008-8-099) (3 pp.)

Partnerships
Derivative Action - Standing - Adverse Interest
In a dispute among siblings in a family limited partnership with varying partnership interests in a Springfield Toyota dealership, the brother who managed the dealership and alleged tortious actions by another brother, does not have standing to file a derivative suit against the partnership, because of the plaintiff brother’s economic interests as both landlord and lessee of the partnership created a direct economic conflict.
Jennings v. Kay Jennings Family LP (Va.S.Ct.) (VLW 008-6-046) (16 pp.)

Search & Seizure
Traffic Stop - Passenger Pat-Down
Although a police officer several months ago conducted a controlled cocaine purchase from a house visited by defendant, a passenger in a car stopped for a traffic violation in the same “high crime” area late at night, the officer had authority to ask the passenger to exit the vehicle, but he did not have a generalized right to do a pat-down, absent reasonable suspicion to suspect criminal activity.
McCain v. Commonwealth (Va.S.Ct.)V(LW 008-6-043) (17 pp.)

Wills & Trusts
Elective Share - Separate Property
Although wife’s estate argues that husband and wife maintained separate property throughout their marriage so that each might leave that separate property to their respective children from former marriages, husband and wife did not have a premarital or marital agreement that precluded the surviving husband from electing a marital share of wife’s estate.
Higham v. Williams (Fairfax Cir.Ct.) (VLW 008-8-108) (30 pp.)

Workers’ Comp
Coal Mine Accident – PTSD
A denial of workers’ comp is upheld for a mine foreman who arrived on the scene after a coworker’s fatal mine accident, then claimed PTSD; the IME doctor said claimant was a “malingerer.”
Curry v. Consol Energy Inc. (Va.Ct.App.) (VLW 008-7-140(UP)) (6 pp.)

MAY

Administrative
Pier Reconstruction – Post-Construction Permit
A Norfolk Circuit Court had no authority to order dismantling of an upper-deck bar on a Norfolk fishing pier restaurant, the Court of Appeals holds; the appellate court OK’d an after-the-fact pier permit issued by the Virginia Marine Resources Commission to a bar owner who rebuilt after Hurricane Isabel in 2003, in a case reported last March in the VLW Blog.
Boone v. Harrison (Va.Ct.App.) (VLW 008-7-237) (13 pp.)

Bankruptcy
Dischargeability Of Debt – Fiduciary ‘Defalcation’ – Equipment Dealer – Ch. 7
Debtor, a president of an equipment dealership, cannot discharge an unsecured judgment of $124,000 arising from his personal guarantee of the dealership’s debt to Kubota Tractor company, because this debt arose from debtor’s “defalcation,” or nonfraudulent default, while acting in a fiduciary capacity, the 4th Circuit holds; the lower court decision allowing the discharge is reversed.
In re Strack (USCA) (VLW 008-2-075) (12 pp.)

Civil Procedure
E-Mail Production - AOL Subpoena - Privacy Act
A U.S. District Court in Alexandria quashes a subpoena duces tecum issued by State Farm to AOL to obtain six weeks’ worth of e-mail from an AOL account belonging to insurance adjusters who reported alleged fraud with respect to State Farm’s treatment of a couple’s Hurricane Katrina damage claim.
In re Subpoena Duces Tecum to AOL LLC (USDC-ED) (VLW 008-3-178) (18 pp.)

Civil Rights
Free Speech – Landfill Settlement – Standing
A woman whose husband died in an explosion at a landfill near Ivy, Va., does not have standing to sue the landfill operators for violation of her First Amendment rights on a claim that the landfill operators’ third-party settlement agreements imposing gag orders on the third parties deprived her and her husband of the right to receive information about the landfill; the 4th Circuit holds the wife does not have standing to bring this suit, in her own right or as her husband’s personal representative.
Stephens v. County of Albemarle, Va. (USCA) (VLW 008-2-084) (13 pp.)

Consumer Protection
Fair Credit Reporting Act - Limitations - Multiple Reports
A woman who learned in 2003 that she was a victim of identity theft by someone who opened a Lane Bryant credit card account in her name, and who reported the fraudulent act to defendant bank and credit reporting agencies multiple times beginning in 2003, can sue the bank for failure to take remedial action under the Fair Credit Reporting Act within two years of filing her complaint, a U.S. District Court in Richmond holds; the Richmond federal court joins the majority of courts that have considered this statute of limitations issue, and holds the FCRA imposes a burden on banks to respond appropriately to each and every consumer dispute.
Broccuto v. Experian Information Solutions Inc. (USDC-ED) (VLW 008-3-177) (11 pp.)

Criminal
Murder – Firearm Use – Inconsistent Verdicts
A man charged with first-degree murder and use of a firearm in the commission of murder, in the fatal shooting of his wife after a Fourth of July party, can be convicted of using a firearm “while committing or attempting to commit murder,” even though he was not convicted of murder but of voluntary manslaughter, the Court of Appeals holds.
Ludwig v. Commonwealth (Va.Ct.App.) (VLW 008-7-222) (13 pp.)

Criminal
Sixth Amendment – Lawyer Conversation – Immigration Fraud
Although a lawyer and his law firm already were indicted on charges of immigration fraud, recorded conversations with the lawyer initiated by two government witnesses after the indictment did not violate the lawyer’s Sixth Amendment right to counsel, the 4th Circuit says, because the conversations related to additional charges of witness tampering.
U.S. v. Mir (USCA) (VLW 008-2-080) (12 pp.)

Criminal
Copyright Infringement – Bootleg DVDs – Retail Value
A defendant who sold 100 bootleg DVDs to an undercover agent for $500, then sold the agent 200 more DVDs for $1,000, can be convicted of a felony for selling DVDS with a “retail value” over $2,500, says the 4th Circuit in this case of first impression.
U.S. v. Armstead (USCA) (VLW 008-2-079) (10 pp.)

Criminal
Fraud – ERISA Pension Plan
Unpaid employer ERISA pension plan contributions are “assets” of the plan under federal law and the terms of a company plan, the 4th U.S. Circuit Court of Appeals holds, clearing the way to uphold fraud convictions under 18 U.S.C. § 664 against two executives of a Galax wood products business who stole from the company’s ERISA-covered pension plan.
U.S. v. Jackson (USCA) (VLW 008-2-076) (26 pp.)

Criminal
Guilty Plea – Rule 11 Colloquy – Magistrate Authority
A drug defendant suffering “ buyer’s remorse” can’t overturn his guilty plea with a theory that the magistrate judge can conduct a Rule 11 colloquy, but only a district court can accept a guilty plea; the 4th U.S. Circuit Court of Appeals rejects defendant’s claim that he is entitled to a “dry run” or “dress rehearsal” before a magistrate judge.
U.S. v. Benton (USCA) (VLW 008-2-071) (17 pp.)

Criminal
Cell Phone – Cocaine Buy – Personal Use
Although buying cocaine on the street for personal use may only be a misdemeanor, defendant’s use of a cell phone to arrange the buy brought the transaction under 21 U.S.C. § 843(b), which covers use of a “communication facility” to commit felonies such as drug distribution; in upholding defendant’s conviction, the 4th Circuit takes the government’s side on an issue that has split federal appellate courts.
U.S. v. Abuelhawa (USCA) (VLW 008-2-070) (13 pp.)

Criminal
Mail & Wire Fraud – eBay Coin Auction – Sentencing
Just because a Norfolk federal judge complained about having to bump up an eBay seller’s fraud sentence from 12 to 36 months on remand from the 4th Circuit, doesn’t mean the 4th Circuit will make the judge resentence to the guideline minimum of 41 months.
U.S. v. Curry (USCA) (VLW 008-2-072) (10 pp.)

Domestic Relations
Spousal Support – Interior Design Business – PSA – Scrivener’s Error
A wife is entitled to $10,000 in monthly spousal support at the end of the parties’ 26-year marriage, based on her evidence as to her monthly expenses and husband’s stipulation that he could support her in the lifestyle she enjoyed during the marriage, but the parties’ correspondence does not support husband’s contention that the property settlement agreement was supposed to say husband would keep “their” interest in the family interior design business, instead of “his” interest, and the trial court did not err in denying husband’s motion to correct an alleged scrivener’s error in the parties’ PSA, the Court of Appeals holds.
Chasen v. Chasen (Va.Ct.App.) (VLW 008-7-234(UP)) (8 pp.)

Domestic Relations
Attorney Fees –Appeals – O’Loughlin
Although Virginia divorce jurisprudence gives the Court of Appeals discretion to award attorney’s fees in an appeal, to be determined in the trial court on remand, O’Loughlin v. O’Loughlin says nothing about a trial court’s ability to enforce these parties’ contract for payment of all litigation fees and costs, and an Orange County Circuit Court judge awards a total of $40,000 in fees to wife — $25,000 for trial fees and $15,000 for appellate fees.
Gladstone v. Concannon (Orange County Cir.Ct.) (VLW 008-8-133) (7 pp.)

Employment
Contract - Noncompete - IT Consultant
A U.S. District Court in Alexandria dismisses an information technology company’s lawsuit against a former consultant, who left plaintiff IT company and worked as a contractor for The Peace Corps, allegedly providing comparable IT services and systems maintenance, and who allegedly urged former coworkers to leave plaintiff’s company; however, the court denies the IT company’s claim for statutory conspiracy under Virginia law.
Nortec Communications Inc. v. Lee-Llacer (USDC-ED) (VLW 008-3-168) (17 pp.)

Employment Discrimination
Sexual Harassment - Assault - Remittitur
An African-American female bookkeeper who won her suit alleging sexual assault and battery in the workplace by her white male supervisor can keep her damage awards – $40,000 compensatory and $150,000 punitive – as the U.S. District Court in Alexandria denies the defendant employer’s request for remittitur.
Hughston v. New Home Media and Philip Jacoby (USDC-ED) (VLW 008-3-171) (24 pp.)

Environmental
Effluent Discharge - Chincoteague Channel - Remand
A motel owner who wants a permit to use subaqueous bottomlands (beyond the mean low-tide water line) to discharge treated effluent into Chincoteague Channel has his case remanded from the Accomack County Circuit Court to the Virginia Marine Resources Commission for fact finding on the difference in impact for effluent discharge at the mean low water line, where it would happen anyway, as opposed to 750 feet out in the Channel.
Birchwood Motel Inc. v. Va. Marine Resources Comm’n (Accomack County Cir.Ct.) (VLW 008-8-113) (18 pp.)

Immigration
Asylum – Untimely Petition – Ineffective Assistance Of Counsel
A citizen of Cameroon who seeks asylum out of a fear of political persecution gets no relief from the 4th Circuit for his lawyer’s failure to check his mail after a move and timely file a petition for review; the 4th Circuit declines to follow its sister circuits and holds, in a case of first impression, that an alien has no Fifth Amendment right to effective assistance of retained counsel in a removal proceeding.
Afwanwi v. Mukasey (USCA) (VLW 008-2-090) (16 pp.)

Municipal
Delinquent Tax Collection – Negligence – Immunity
A city treasurer has qualified immunity from a suit alleging negligence in the collection of delinquent real estate taxes, a Norfolk Circuit Court rules.
Stone v. Moss (Norfolk Cir.Ct.) (VLW 008-8-123) (3 pp.)

Search & Seizure
Consensual Encounter – Reasonable Suspicion – ‘High-Crime’ Area
A detailed examination of a detective’s encounter with a defendant in a high-crime neighborhood known for drugs and guns, showing the detective’s increasing suspicions about what defendant had in his pocket, provided reasonable suspicion for the detective to seize defendant and the district court did not err in denying defendant’s motion to suppress the drugs found in his pocket, the 4th Circuit holds.
U.S. v. Black (USCA) (VLW 008-2-088) (17 pp.)

Tort
Business Tort – Va. Computer Crimes Act – Trade Secrets
An entrepreneur who started several corporations to market optical imaging technology used in making tamper-proof ID cards, including a company later operated by his son-in-law, loses on summary judgment his suit claiming the son-in-law violated the Virginia Computer Crimes Act and the Virginia Uniform Trade Secrets Act in the operation of his business.
Othentec Ltd. v. Phelan (USCA) (VLW 008-2-086) (12 pp.)

Traffic Offenses
Appeals - DUI - Refusal
A driver’s refusal to blow into a machine, standing alone, won’t give probable cause to arrest, but a deputy can consider the refusal along with the smell of alcohol, defendant’s red and glassy eyes and his refusal to perform field sobriety tests, and the Court of Appeals upholds the driver’s DUI arrest and ultimate conviction for refusal.
Jones v. Commonwealth (Va.Ct.App.) (VLW 008-7-210) (10 pp.)

JUNE

Administrative
Dentist Discipline – Poor Recordkeeping
The en banc Court of Appeals upholds administrative sanctions of a reprimand and monetary penalty for a dentist who in multiple cases failed to keep adequate patient records showing diagnosis and treatment of patients.
John Doe, D.D.S v. Virginia Board of Dentistry (VLW 008-7-280) (13 pp.)

Civil Procedure
Personal Jurisdiction - Va. Long-Arm Statute
Although plaintiffs suing on two promissory notes have incorporated into their pleadings defendant LLC’s operating agreement showing an individual maker of the note had authority to bind the LLC, the maker did not sign as agent or managing member of the LLC, and a Fairfax Circuit Court judges finds that the Virginia court does not have personal jurisdiction over defendant LLC.
Bell v. Renaissance at Chartwell LLC (Fairfax Cir.Ct.) (VLW 008-8-125) (4 pp.)

Civil Rights
First Amendment – ‘Government Speech’ – Public School System
A South Carolina public school system that used its own communication system, including its Web site and e-mail distribution lists, to promote opposition to proposed tax credits for private and home schooling that the school system argued would undermine public education, was engaging in “governmental speech” and did not violate the First Amendment when it denied a proponent of the tax credit access to its “informational distribution system,” the 4th Circuit holds.
Page v. Lexington County School District One (USCA) (VLW 008-2-107) (19 pp.)

Contract
Concrete Mix – Bridge Foundation – Liability Limit
Although defendant concrete company did not deliver concrete of the strength specified in a contract for construction of a bridge at MeadWestvaco, the parties’ contract expressly limited the company’s liability, the language limiting liability was not unconscionable and these facts, combined with the parties’ course of dealings since 1997, are effective to limit liability to the cost of replacement concrete; the Alleghany County Circuit Court awards plaintiff judgment of $1,402.80.
Hammond-Mitchell Inc. v. Construction Materials Co. (Alleghany County Cir.Ct.) (VLW 008-8-144) (8 pp.)

Contract
Road Construction – Written Notice Of Claim - Waiver
A contract provision between VDOT and a contractor hired to work on the Route 58 Clarksville Bypass in Mecklenburg County, stating that written notice of “an existing or impending claim for damages” could change VDOT’s plans, does not mean that written notice is an absolute prerequisite for later filing suit, a Norfolk Circuit Court holds.
AMEC Civil LLC v. Commonwealth of Va. (Norfolk Cir.Ct.) (VLW 008-8-142) (14 pp.)

Contract
Contractor License – Remodeling Project – Plea In Bar
A Class B contractor is barred from suing homeowners for an extra $62,355 he says is owed for requested alterations in a remodeling project, because the original contract for $128,600 exceeded the monetary limits for Class B contractors under Va. Code § 54.1-1115, a Fairfax Circuit judge says in a case of first impression.
Daniel Jones Remodeling LLC v. Chiu (Fairfax Cir.Ct.) (VLW 008-8-126) (4 pp.)

Corporate
Closely Held Company – Va. Securities Act
A health club member who bought the club, a closely held corporation, based on financial information provided by the bookkeeper wife of one of the club owners can sue the sellers under the Virginia Securities Act for the alleged false information provided in the sellers’ financial report, the Virginia Supreme Court says in a case of first impression.
Andrews v. Browne (Va.S.Ct.) (VLW 008-6-062) (18 pp.)

Criminal
Habeas Corpus – Jurisdiction – Temporary Custody
The 4th Circuit says a drug defendant should not have been released from prison because the Maryland federal court that granted his habeas petition did not have jurisdiction over the defendant, who was serving his sentence in Kentucky and only came to Maryland to testify on a motion.
U.S. v. Poole (USCA) (VLW 008-2-106) (19 pp.)

Criminal
Terrorist Sympathizer Prosecution – False Statement
Although defendant, part of a network of people investigated for connections to radical Islam and violent jihad, was acquitted of certain offenses related to attendance at a jihadist training camp, the 4th Circuit says the government was not collaterally estopped from prosecuting defendant for making false statements for lying about attendance at the jihadist camp.
U.S. v. Benkahla (USCA) (VLW 008-2-108) (18 pp.)

Criminal
Sexual Solicitation Minor – ‘Communications System’ – First Amendment
The Virginia Court of Appeals upholds a Virginia statute that prohibits using a “communications system” to solicit a minor, or person believed to be a minor, for sex, against a challenge that the statute, Va. Code § 18.2-374.3(B), violates First Amendment free speech rights.
Podracky v. Commonwealth (Va.Ct.App.) (VLW 008-7-269) (12 pp.)

Criminal
‘Burglarious Tool’ – Empty Purse
Although a woman admitted she emptied her large purse in order to conceal in it shoplifted store merchandise, the purse nevertheless was not a “burglarious tool” and her conviction under Va. Code § 18.2-94 is reversed by the Court of Appeals.
Edwards v. Commonwealth (Va.Ct.App.) (VLW 008-7-248) (10 pp.)

Domestic Relations
PSA - No-Appeal Clause
Although wife won reformation of the parties’ property settlement agreement to require husband to pay for her health insurance, the Virginia Court of Appeals, in a case of first impression, upholds the “no appeal” provision in the PSA so that wife may not appeal the trial court’s refusal to award her damages and attorney’s fees.
Burke v. Burke (Va.Ct.App.) (VLW 008-7-287) (10 pp.)

Domestic Relations
Visitation – Lesbian Couple Split
A woman who helped rear her lesbian companion’s biological daughter is not entitled to visitation with the child after the couple separated on a theory that she is a “de facto” or “psychological parent.”
Stadter v. Siperko (Va.Ct.App.) (VLW 008-7-256) (14 pp.)

Domestic Relations
Vermont Civil Union – Dissolution
A Roanoke County Circuit Court recognizes that the “civil union” entered into by two women in the State of Vermont is void in Virginia, and the court cannot otherwise order any relief to a complainant who filed a petition asking the court “to dissolve or annul” the relationship so that her former partner “may not attempt to avail herself of any rights which may have been conferred upon her by the union.”
Austin v. Austin (Roanoke County Cir.Ct.) (VLW 008-8-139) (14 pp.)

Domestic Relations
Adoption – Withheld Consent – Child’s Best Interests
A biological mom’s great aunt and uncle can adopt her 7-year-old son after she withheld consent contrary to the child’s best interests; the Court of Appeals says the Portsmouth Circuit judge did not have to find that continuing the parent-child relationship would be “detrimental” to the child.
Gooch v. Harris (Va.Ct.App.) (VLW 008-7-267) (5 pp.)

Domestic Relations
Spousal Support – Interior Design Business – PSA – Scrivener’s Error
A wife is entitled to $10,000 in monthly spousal support at the end of the parties’ 26-year marriage, but the parties’ correspondence does not support husband’s contention that the property settlement agreement was supposed to say husband would keep “their” interest in the family interior design business, instead of “his” interest, and the trial court did not err in denying husband’s motion to correct an alleged scrivener’s error in the parties’ PSA, the Court of Appeals holds.
Chasen v. Chasen (Va.Ct.App.).(VLW 008-7-234(UP)),(8 pp.)

Domestic Relations
Adultery - Credibility - Lawyer/Witness Testimony
Although a lawyer/witness testified as an attorney and “an officer of this court,” there is no authority that requires the testimony of an attorney to be evaluated in this light, especially when the subject of the testimony is the personal involvement of the attorney in the private business of two citizens whose dispute is being resolved by the court, a Madison County Circuit judge holds.
Davis v. Davis (Madison County Cir.Ct. ) (VLW 008-8-134) (11 pp.)

Employment
ERISA - § 401(k) Plans – ‘Market Timing’ Funds
Employees who cashed out their fully-vested § 401(k) retirement plans can sue plan fiduciaries under ERISA for investing in mutual funds that engage in the abusive activity of “market timing”; the 4th Circuit says the cashed-out employees still are “participants” in the defined contribution plans under ERISA, and a district court erred in dismissing their class-action suits.
Wangberger v. Janus Capital Group (USCA) (VLW 008-2-105) (21 pp.)

Employment
ERISA – Disability Claim – De Novo Standard
A Wendy’s manager gets another chance to win long-term disability benefits because the district court erred in applying an abuse-of-discretion standard instead of the more claimant-friendly de novo review standard, the 4th Circuit holds.
Woods v. Prudential Ins. Co. of America (USCA) (VLW 008-2-101) (6 pp.)

Employment
Contract – ADR Clause – At-Will Employee
A fired Sprint Nextel employee can sue for breach of an employment contract and for emotional distress, based on allegations that “defendants engaged in a scheme orchestrated to accuse the Plaintiff of harboring and disseminating pornography” on a work computer.
Harrington v. Sprint Nextel Corp. (USDC-ED) (VLW 008-3-198) (20 pp.)

Employment Discrimination
Age – Exhaustion Of Remedies – Federal Employee
Although the 4th Circuit has not explicitly ruled that a plaintiff alleging age discrimination under the Age Discrimination in Employment Act has to exhaust administrative remedies before suing in federal court, this Richmond U.S. District Court dismisses a former federal employee’s suit for failure to exhaust, as she admits she filed her formal EEO complaint one day after the 15-day limitations period for filing had expired.
Nesbit-Harris v. Jackson, Sec’y of HUD (USDC-ED) (VLW 008-3-223) (9 pp.)

Immigration
Removal – Motion To Stay – Standard Of Review
A native of Ethiopia who filed a petition for review of an order of removal from the U.S., then a motion to stay the order pending resolution of the petition for review, has the motion to stay denied by the 4th Circuit under the “clear and convincing” standard of review under 8 U.S.C. § 1252(f)(2).
Teshome-Gebreegziabher v. Mukasey (USCA) (VLW 008-2-104) (9 pp.)

Insurance
Premium Payment - Crop Insurance
Where plaintiffs dispute their obligation to pay a premium for crop insurance for certain crops on their Texas farm, their dispute with defendant insurance company is covered by the arbitration provision in the crop insurance policy, which requires the parties to first arbitrate “any factual determination” in dispute between the parties, and the Madison County Circuit court dismisses the case without prejudice, to allow the arbitration.
Putz v. Armtech Insurance Servs. (Madison County Cir.Ct.) (VLW 008-8-135) (3 pp.)

Municipal
First Amendment – Public Meeting – Topic Choice
The 4th Circuit upholds a Virginia county’s policy prohibiting “personal attacks” at planning commission meetings, but says the commission did not violate a speaker’s First Amendment rights by removing him from a public meeting after he refused to address the only topic for which the public hearing had been opened, and behaved in a hostile and disruptive manner.
Steinburg v. Chesterfield County Planning Comm’n (USCA) (VLW 008-2-094) (22 pp.)

Negligence
Ad Damnum Amendment – Denial – Abuse Of Discretion
A circuit court abused its discretion in denying a longshoreman’s motion to amend his ad damnum for $74,000 to ask for more money for his injuries, as the defendant ship owner did not lose his right to remove the suit to federal court because of plaintiff’s actions, but because he waited too long to file his notice of removal, the Virginia Supreme Court holds.
Whitaker v. Heinrich Schepers Gmbh & Co. KG (Va.S.Ct.) (VLW 008-6-066) (8 pp.)

Negligence
Auto Accident – Police Officer – Sovereign Immunity
Plaintiffs are not entitled to a jury for determination of a police officer’s plea of sovereign immunity, and the Prince George Circuit Court finds that a reasonable fact finder could only conclude that the officer exceeded his authority when he violated speed limits in a non-emergency situation; the court denies the officer’s plea of sovereign immunity.
Lake v. Mitchell (Prince George County Cir.Ct.) (VLW 008-8-137) (13 pp.)

Real Estate
Partition – Buy-Out Showing
In a creditor’s suit to collect an $86,400 judgment debt from defendant John W. Gray, who owns a $310,000 townhouse in Portsmouth together with his mother and his wife, the Portsmouth Circuit Court denies the defendant co-owners’ motion to strike the creditor’s complaint for partition pursuant to Va. Code § 8.01-81 on defendants’ theory that the creditor first must show whether a co-owner is willing to buy out the others in order to avoid a court-ordered sale.
Canellis v. Gray (Portsmouth Cir.Ct.) (VLW 008-8-140) (14 pp.)

Search & Seizure
Trash Can Search – Good Faith Exception
A search warrant affidavit supported a search even though the affidavit described a single trash can numbered “601” in a Richmond alley, when there were several such trash cans, and mail found in a trash bag was addressed someone other than the “Melvin” identified by an informant.
U.S. v. Gary (USCA) (VLW 008-2-103) (9 pp.)

Wills & Trusts
Intestate Succession - Paternity Proof
Two children born out of wedlock to a man who died without a will own a share of his real estate and their suit for partition is not barred because they didn’t comply with Va. Code § 64.1-5.1(4) to prove paternity, the Virginia Supreme Court holds..
Jenkins v. Johnson (VLW 008-6-065) (8 pp.)

Zoning
Subdivision Plat – ‘Reserved Area’ – Declaration Of Covenant
The buyer of a 106-acre parcel in Orange County is not bound by a purported reservation of “REMAINING LAND” covering the parcel on a subdivision plat because the developer did not file a declaration of covenant to reserve the land, and the Virginia Supreme Court says the circuit court erred in prohibiting the buyer from building a residence with garage and shed.
Lovelace v. Orange County Board of Zoning Appeals (Va.S.Ct.) (VLW 008-6-075) (8 pp.)

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