Oral Arguments of the Supreme Court of Virginia
Public domain audio of oral arguments from the Supreme Court of Virginia. Whether you're a lawyer, law student, or just an interested citizen, this podcast is a great way to learn how the Supreme Court of Virginia operates and what's expected of each side in a case. Not affiliated with the Supreme Court of VA. Created by entrepreneurs.
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2020 November Burke v. Young
12/11/2020
2020 November Burke v. Young
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case CONRAD BURKE v. STANLEY YOUNG, ET AL. (Record Number 200095) From The Circuit court of Tazewell County; R. Patterson, Judge. Counsel Conrad Burke, pro se, for appellant. Ann-Marie Catherine White (Office of the Attorney General) for appellees. Assignments of Error 1. The circuit court erred in holding that there are and were no genuine facts in dispute when there clearly is a genuine dispute of facts for a jury to decide the outcome of this matter yet this Honorable Court of Tazewell County granted the defendant summary judgment in this case which was in direct conflict with procedures and relevant law of the Virginia state judicial system. 2. The circuit court erred by not holding an evidentiary hearing to review camera footage which would have further bolstered the appellant’s claims and furthering the fact to which the evidence would show that the defendants are not and were not eligible for summary judgment due to the improperly applied restraints causing the appellant further suffering due to the fact that Burke was not able to drink water, eat or to be able to relieve himself, unassisted for a long period of time with NO breaks to do so. 3. The circuit court erred by not considering evidence and medical records to which material facts arose due to numbness in feet and hands from the improperly placed restraints and no foot coverings on a cold concrete floor for an excessive amount of time. The court also erred due to the fact that Burke was stripped naked with only his underwear in a very cold cell for an excessive amount of time. This information was put in an affidavit to the trial court which did in fact give more genuine facts in this case for a jury to decide. 6. The circuit court erred by granting summary judgment stating, “the restraints were properly applied and the situation warranted the use of force.” This information was for a jury to decide and not for the Honorable Judge to decide as per Virginia Code and relative law governing such issues. 8. The circuit court erred by making a ruling on the evidence in which was not part of his duties as this is the duty of the jury.
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2020 November Dodd v. Clarke
12/11/2020
2020 November Dodd v. Clarke
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case ROBERT JOHN DODD v. HAROLD CLARKE, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS (Record Number 200091) From Circuit Court of Chesterfield County; F.G. Rockwell, III, Judge. Counsel Johnathan P. Sheldon (Sheldon & Flood, P.L.C.) for appellant. Rosemary V. Bourne (Office of the Attorney General) for appellee. Assignment of Error The circuit court erred when it denied Dodd’s claim that his Double Jeopardy and Due Process rights under Art. I, §§ 8 & 11 of the Virginia Constitution and the Fifth and Fourteenth Amendments to the United States Constitution were violated when he was tried and convicted on indictments that were identical. The circuit court erred when it denied Dodd’s claim that trial counsel was ineffective under the Virginia Constitution and the Sixth Amendment to the United States Constitution for failing to object to the Double Jeopardy and Due Process violations.
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2020 November Goldberg v. Commonwealth
12/11/2020
2020 November Goldberg v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case AARON LOUIS GOLDBERG v. COMMONWEALTH OF VIRGINIA (Record Number 191701) From The Court of Appeals of Virginia. Counsel Roger Alan Whitus (Office of the Public Defender) for appellant. Kelsey M. Bulger (Office of the Attorney General) for appellee. Assignment of Error I. The Court of Appeals erred by finding that any error in denying appellant’s motion in limine and admitting horizontal gaze nystagmus ("HGN") evidence was harmless. II. The Court of Appeals erred by failing to rule on whether the evidence of HGN testing was scientific, supported by sufficient foundational evidence of reliability, and was unfairly prejudicial in violation of appellant’s constitutional rights and the Virginia Rules of Evidence.
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2020 November Palmyra v. Commissioner of Highways
12/07/2020
2020 November Palmyra v. Commissioner of Highways
Granted Appeal Summary Case PALMYRA ASSOCIATES, LLC, ET AL. v. COMMISSIONER OF HIGHWAYS (Record Number 191680) From The Circuit Court of Fluvanna County; R.D. Taylor, Jr., Judge. Counsel Joseph E. Blackburn (Blackburn, Conte, Schilling & Click, P.C.) for appellants. Francis A. Cherry, Jr., and F. Adam Cherry, III (Randolph, Boyd, Cherry and Vaughan) for appellee. Assignments of Error 1. The trial court erred as a matter of case law in striking David Sutton’s testimony as to his opinion of damages to the residue. 2. The trial court erred as a matter of case law in refusing to admit into evidence site plans Landowner had prepared over 10 years prior to the take showing the development potential of their property and overlays showing the impact of the imposition of the fourth leg of the roundabout on the development potential of their property. These plans are Refused Exhibits A, B & C. 3. The trial court erred in putting the parties on terms of either the court confirming the value of the take or ordering a new trial. 4. The trial court erred as a matter of case law in finding that Mr. Sutton’s testimony had anything to do with damaging the property on a “per lot” basis.
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2020 November Smith v. Bank of America
12/07/2020
2020 November Smith v. Bank of America
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case DWAYNE RAMON SMITH v. BANK OF AMERICA, N.A., ET AL. (Record Number 191559) From The Circuit Court of Chesterfield County; D. Johnson, Judge. Counsel Henry W. McLaughlin (The Law Office of Henry McLaughlin, P.C.) for appellant. Robert W. Loftin (McGuireWoods LLP) for appellee. Assignment of Error 1. The Circuit Court of Chesterfield County, Virginia (“the trial court”) erred in the trial court’s written rulings on July 3, 2019 sustaining a plea in bar by appellee Bank of America, N.A. (“Bank of America”) and a plea in bar by appellee Equity Trustees, LLC (“Equity Trustees”). This was error because, when those pleas in bar came on for an evidentiary hearing before the trial court on June 13, 2019, after counsel had presented oral argument on a motion craving oyer and demurrers, although the appellant, Dwayne Smith (“Smith”) was present to present evidence in opposition to the plea in bar, on the basis of a proposal by counsel for Bank of America, agreed to by all counsel of record, the evidentiary hearing that had been scheduled for June 13, 2019 on the pleas in bar was not held, rather the trial court stated “Then we’ll just take the plea in bar completely under advisement. I’ll take the motion to crave oyer and the demurrer, with respect to the demurrer, today, under advisement. And I will respond to you within a week on the motion to crave oyer and the two demurrers. And then we’ll set the plea and bar or not depending on how the Court rules.” This amounted to a continuance of the evidentiary hearing set for June 13, 2019 on the pleas in bar. As a result, the case was not ready for decision on the pleas in bar and Smith was deprived of his due process opportunity to present evidence in opposition to the pleas in bar when the trial court, on July 3, 2019 issued written rulings sustaining the pleas in bar.
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2020 November Johnson v. City of Suffolk
12/07/2020
2020 November Johnson v. City of Suffolk
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case C. ROBERT JOHNSON, III, ET AL. v. CITY OF SUFFOLK, ET AL. (Record Number 191563) From The Circuit Court for the City of Suffolk; L. Farmer, Judge. Counsel L. Steven Emmert (Sykes, Bourdon, Ahern & Levy, P.C.), Joseph T. Waldo and Russell G. Terman (Waldo & Lyle, P.C.) for appellants. David L. Arnold, D. Rossen S. Greene, and Matthew R. Hull (Pender & Coward, P.C.), and Christopher D. Pomeroy and Paul T. Nyffeler (AquaLaw PLC) for appellees. Assignment of Error The trial court erroneously sustained the demurrers, because the declaratory-judgment petition states a facially valid claim for inverse condemnation, and: A. The trial court erroneously based its ruling on federal caselaw interpreting the United States Constitution, because the oystermen’s claims are based on the Constitution of Virginia. B. The trial court erroneously ruled that the City and HRSD have the right to pollute the Commonwealth’s waters and that they need not pay just compensation to the oystermen. In doing so, it erroneously relied on now-obsolete caselaw and erroneously applied that caselaw. Assignments of Cross-Error (City of Suffolk) 1. The trial court erred in overruling the demurrers on the ground that an inverse condemnation case will not lie against the City because the City lacks the authority to exercise eminent domain over the oyster ground leases in this case. 2. The trial court erred in failing to consider the argument in the City’s demurrer that the Petition should have been dismissed because the Appellants failed to allege a public use and failed to allege facts sufficient to show that their property was taken or damaged for a public use. 3. The trial court erred in failing to consider the argument in the City’s demurrer that the Petition should have been dismissed because oyster ground leases do not guarantee lessees water of a certain purity or pollution level. 4. The trial court erred in failing to consider the argument raised in the City’s demurrer that the Petition should be dismissed because whatever taking or damage the Appellants did allege was due to the state’s exercise of its police power. 5. The trial court erred in failing to consider the argument raised in the City’s plea in bar that the Petition should be dismissed as time-barred because the claims are premised on conditions which have existed continuously since before the three-year statute of limitations. Assignment of Cross-Error (Hampton Roads Sanitation District) 1. The Circuit Court erred in denying in part HRSD’s demurrer by finding that HRSD has condemnation authority over Petitioners’ alleged oyster planting ground leases despite Virginia Code § 28.2-628, which removed its condemnation authority over grounds leased by the Commonwealth to third parties pursuant to Virginia Code §§ 28.2-600 et seq
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2020 November Graves v. Shoemaker
12/03/2020
2020 November Graves v. Shoemaker
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case DEBORAH C. GRAVES v. SAMANTHA SHOEMAKER (Record Number 191500) From The Circuit Court of Albemarle County; M. Hughes, Jr., Judge. Counsel Fletcher W. Harkrader (Marks & Harrison, P.C.) for appellant. John P. Cattano and Christopher L. Smith (Central Virginia Litigation, PLC) for appellee. Assignment of Error The trial court committed reversible error, improperly applied settled law as set forth in Lombard v. Rohrbaugh, 262 Va. 484 (2001), and abused its discretion in refusing to allow Plaintiff to cross-examine Defendant’s medical expert witness concerning bias or potential bias in favor of the defense based on his extensive, substantial, and ongoing financial connection to Defendant’s insurer; Plaintiff was entitled to elicit such testimony at trial concerning the expert’s substantial connection to the insurer as relevant to the expert’s bias or prejudice in this case. http://www.courts.state.va.us/courts/scv/appeals/191500.pdf
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2020 November Coleman v. Westwood Buildings
11/18/2020
2020 November Coleman v. Westwood Buildings
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case CARLA G. COLEMAN v. WESTWOOD BUILDINGS LIMITED PARTNERSHIP (Record Number 191475) From The Circuit Court of Fairfax County; D. Bernhard, Judge. Counsel Kevin E. Smith (Law Office of Kevin E. Smith) for appellant. Mathew D. Ravencraft and Louise T. Gitcheva (Rees Broome, PC) for appellee. Assignments of Error 1. The lower court erred in failing to clearly identify what transfers violated the fraudulent conveyance statute and what transfers violated the voluntary conveyance statute and awarding identical in personam judgments in the amount of $380,864.91 for each yet finding them jointly and severally liable for a total global sum of $478,220.69. 2. The lower court erred in holding Appellant liable for Appellee’s conversion claim against Mr. Grayson individually when it subsequently included it in the total global sum that could be collected. 3. The lower court erred as a matter of law in awarding attorney’s fees and sanctions in a case that is not a fraud case, where the court found there is no “pattern of misconduct” of “callous, deliberate, deceitful acts,” and where the plaintiff had not elected to proceed exclusively in equity, all in violation of this Court’s recent holding in MCR Federal, LLC v. JB&A, Inc., 294 Va. 446 (2017), as well as being contrary to the plain meaning of Va. Code § 55¬82.1, especially where a claim for such sanctions were never pled, briefed, noticed for a hearing, or timely requested. 4. The trial court erred in finding Appellant liable as a participant as a transferee in violation of the plain meaning of those terms as laid out in La Bella Dona Skin Care, Inc. v. Belle Femme Enterprises, LLC when she never personally received any of the fraudulent transfers or had signatory authority and/or ownership interest on any of the bank accounts where such transfers were deposited as well as for deposits of negotiable instruments made out to G&K, K&A, and GLC she was required to make as part of her job regarding payments received by G&K, K&A, GLC and Grayson.
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2020 November Wilburn v. Mangano
11/18/2020
2020 November Wilburn v. Mangano
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case ANN M. WILBURN, ET AL. v. ANTHONY JOHN MANGANO (Record Number 191443) From The Circuit Court of Northumberland County; R.M. McKenney, Judge. Counsel Breckenridge Ingles (Martin, Ingles & Hensley, Ltd.) for appellants. Richard H. Stuart for appellee. Assignment of Error The trial court erroneously sustained a demurrer to an action for specific performance of a land contract on the basis that there was no meeting of the minds as to price where the contract expressly stated that the purchaser would pay “the fair market value at the time of [vendor’s] death.”
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2020 November Grayson v. Westwood Buildings | Kubli v. Westwood Buildings
11/17/2020
2020 November Grayson v. Westwood Buildings | Kubli v. Westwood Buildings
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case ALAN M. GRAYSON, ET AL. v. WESTWOOD BUILDINGS LIMITED PARTNERSHIP (Record Number 191413) From The Circuit Court of Fairfax County; D. Bernhard, Judge. Counsel Bernard J. DiMuro and Michael Lieberman (DiMuro Ginsberg, PC) for appellants. Mathew D. Ravencraft and Louise T. Gitcheva (Rees Broome, PC) for appellee. Assignments of Error 1. The lower court erred as a matter of law in entering in personam judgments for “fraudulent conveyances,” “voluntary conveyances” and conversion in favor of an unsecured creditor: (a) against a senior, secured creditor with a perfected security interest who was recovering on a debt, (b) against several non-transferees who cannot be liable for conveyances they never received, and (c) against Petitioners without determining the transferors’ fraudulent intent or insolvency, all in violation of this Court’s then-recent holding in La Bella Dona Skin Care v. Belle Femme, 294 Va. 243 (2017), or otherwise contrary to the plain meaning of Va. Code §§ 55-80 & 55-81; and (d) in this context, further erred in ruling that the ‘Buy-Out Agreement’ preceding the debt lacked consideration, or that any such lack of consideration could nullify the later extension of credit or the resulting senior secured, perfected creditor status. 2. The lower court erred as a matter of law in entering a “conversion” judgment against Grayson because he was a client of a commercial transaction attorney (actually, a shareholder of that client), when that attorney simply collected on a senior, secured debt pursuant to the Uniform Commercial Code [see, e.g., Va. Code § 8.9A-205(a)] and the Executions section of Virginia Civil Remedies and Procedures (with the lower court wrongly concluding that boilerplate fieri facias language in a garnishment directed to someone else somehow compelled that attorney to refrain from such collection, and wrongly applying the tort of conversion to money to which the landlord had no exclusive and immediate right). 3. The lower court erred as a matter of law in failing to dismiss all claims against all Petitioners under res judicata, when such claims could have been brought in prior litigation regarding the same conduct, transactions and occurrences (and were actually known to the plaintiff during prior litigation), and when the prior parties were in privity to all Petitioners, in violation of this Court’s recent holding in Funny Guy, LLC v. Lecego, LLC, 293 Va. 135 (2017) and contrary to Virginia Supreme Court Rule 1:6. 4. The lower court erred as a matter of law in entering judgment against all Petitioners for fraudulent conveyances and voluntary conveyances without requiring proof by “clear, cogent and convincing evidence” from the landlord, and by shifting the burden of proof onto the defendants, in violation of this Court’s holding in Suntrust Bank v. PS Business Parks, L.P., 292 Va. 644 (2016). 5. The lower court erred as a matter of law in improperly calculating damages by: (a) awarding damages for injury that did not exist at the time of the transfers; (b) refusing to make the necessary “ratable distribution” between creditors (the landlord and Grayson/GSA); (c) refusing to honor the right under Virginia law for debtors K&A and AMG to prefer one creditor over another; (d) assessing liability for the “IDT transfers” on parties against whom the IDT transfers were not pled; and (e) awarding damages for time-barred transfers. 6. The lower court erred as a matter of law in awarding attorney’s fees and sanctions in a nonfraud case, where there is no “pattern of misconduct” of “callous, deliberate, deceitful acts,” and where the plaintiff had not elected to proceed exclusively in equity, all in violation of this Court’s recent holding in MCR Federal, LLC v. JB&A, Inc., 294 Va. 446 (2017), and contrary to the plain meaning of Va. Code § 55-82.1, especially where a claim for such sanctions was never pled, briefed, noticed for a hearing, or timely requested. 7. The lower court erred as a matter of law in awarding attorney’s fees against all of the Petitioners for all of the claims asserted, including claims that were dismissed, claims for which attorney’s fees are not recoverable, claims against defendants who were found not liable, claims brought only against some defendants and not others, damages that were denied, and one claim for which the landlord specifically refrained from requesting attorney’s fees during trial. Granted Appeal Summary Case VICTOR KUBLI, ET AL. v. WESTWOOD BUILDINGS LIMITED PARTNERSHIP (Record Number 191414) From The Circuit Court of Fairfax County; D. Bernhard, Judge. Counsel Bernard J. DiMuro and Michael Lieberman (DiMuro Ginsberg, PC) for appellants. Mathew D. Ravencraft and Louise T. Gitcheva (Rees Broome, PC) for appellee. Assignments of Error 1. The lower court erred as a matter of law in entering in personam judgments for “fraudulent conveyances,” “voluntary conveyances” and conversion in favor of an unsecured creditor: (a) against a senior, secured creditor with a perfected security interest who was recovering on a debt, (b) against several non-transferees who cannot be liable for conveyances that they never received, and (c) against Petitioners without determining the transferors’ fraudulent intent or insolvency, all in violation of this Court’s then-recent holding in La Bella Dona Skin Care v. Belle Femme, 294 Va. 243 (2017), or otherwise contrary to the plain meaning of Va. Code §§ 55-80 & 55-81; and (d) in this context, further erred in ruling that the ‘Buy-Out Agreement’ preceding the debt lacked consideration, or that any such lack of consideration could nullify the later extension of credit or the resulting senior secured, perfected creditor status. 2. [RESERVED – The second Grayson assignment of error applies only to Grayson (Record No. 191413), because that assignment refers to the conversion claim, which was pled only against Grayson. We reserve this in order to maintain the same numbering of assignments.] 3. The lower court erred as a matter of law in failing to dismiss all claims against all Petitioners under res judicata, when such claims could have been brought in prior litigation regarding the same conduct, transactions and occurrences (and were actually known to the plaintiff during prior litigation), and when the prior parties were in privity to all Petitioners, in violation of this Court’s recent holding in Funny Guy, LLC v. Lecego, LLC, 293 Va. 135 (2017) and contrary to Virginia Supreme Court Rule 1:6. 4. The lower court erred as a matter of law in entering judgment against all Petitioners for fraudulent conveyances and voluntary conveyances without requiring proof by “clear, cogent and convincing evidence” from the landlord, and by shifting the burden of proof onto the defendants, in violation of this Court’s then-recent holding in Suntrust Bank v. PS Business Parks, L.P., 292 Va. 644 (2016). 5. The lower court erred as a matter of law in improperly calculating damages by: (a) awarding damages for injury that did not exist at the time of the transfers; (b) refusing to make the necessary “ratable distribution” between creditors (the landlord and Grayson/GSA); (c) refusing to honor the right under Virginia law for debtors K&A and AMG to prefer one creditor over another; (d) assessing liability for the “IDT transfers” on parties against whom the IDT transfers were not pled; and (e) awarding damages for time-barred transfers. 6. The lower court erred as a matter of law in awarding attorney’s fees and sanctions in a nonfraud case, where there is no “pattern of misconduct” of “callous, deliberate, deceitful acts,” and where the plaintiff had not elected to proceed exclusively in equity, as this Court has required in its decisions, and contrary to the plain meaning of Va. Code § 55-82.1, especially where a claim for such sanctions was never pled, briefed, noticed for a hearing, or timely requested. 7. The lower court erred as a matter of law in awarding attorney’s fees against all of the Petitioners for all of the claims asserted, including claims that were dismissed, claims for which attorney’s fees are not recoverable, claims against defendants who were found not liable, claims brought only against some defendants and not others, damages that were denied, and one claim for which the landlord specifically refrained from requesting attorney’s fees during trial.
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2020 November Shoemaker v. Funkhouser
11/17/2020
2020 November Shoemaker v. Funkhouser
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case JESSICA SHOEMAKER, ADMINISTRATOR AND PERSONAL REPRESENTATIVE OF THE ESTATE OF GINA ANGELA SHOEMAKER v. RICHARD E. FUNKHOUSER, ET AL. (Record Number 191218) From The Circuit Court of Shenandoah County; C. Athey, Judge. Counsel Bradley G. Pollack, Esq., for appellant. Randall T. Perdue and Joseph Ross Newell, III (TimberlakeSmith) for appellees. Assignment of Error 1. The trial court erred in sustaining Funkhousers’ joint demurrer to the second amended complaint.
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2020 November Platt v. Griffith
11/17/2020
2020 November Platt v. Griffith
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case MARY CARROLL GRIFFITH PLATT, ET AL. v. MARY CATHERINE MILES GRIFFITH, ET AL. (Record Number 190817) From The Circuit Court of Henrico County; J. Marshall, Judge. Counsel Daniel A. Carrell (Carrell Blanton Ferris & Associates, PLC) and Robert Coleman Smith (Robert C. Smith, PLC) for appellants. W. Benjamin Pace and Joseph R. Pope (Williams Mullen) and Hugh T. Antrim (ThompsonMcMullan, P.C.) for appellees. Assignment of Error The circuit court erred as a matter of law by ordering that plaintiffs, qualified beneficiaries under their father’s will, lacked standing to sue other beneficiaries who had induced the testator to make inter vivos transfers to them when he lacked capacity and was subjected to undue influence.
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September 2020 SGT Kangs Group v. Board of County Supervisors
10/01/2020
September 2020 SGT Kangs Group v. Board of County Supervisors
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case SGT KANG’S GROUP, LLC v. BOARD OF COUNTY SUPERVISORS OF PRINCE WILLIAM COUNTY, VIRGINIA (Record Number 191423) From The Circuit Court of Prince William County; K. Irving, Judge. Counsel Chapman Petersen, David L. Amos (Chap Petersen & Associates, P.L.C.), Henry E. Howell, III, and Benjamin L. Perdue (The Eminent Domain Litigation Group, P.L.C.) for appellant. Michelle R. Robl, Alan F. Smith, and Nathan C. Welch (Prince William County Attorney’s Office) for appellee. Assignments of Error The Trial Court erred in holding the recordation of a certain plat operated to grant an “ingress-egress” easement to the County. The Trial Court erred in not applying the doctrine of judicial estoppel to prevent the County from asserting an inconsistent position in its Motion in Limine. The Trial Court erred in ruling that Kang was not entitled to put on “any and all evidence” of activities in the “ingress-egress” easement area.
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September 2020 Groffel v. Commonwealth
10/01/2020
September 2020 Groffel v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case HOWARD ALLEN GROFFEL v. COMMONWEALTH OF VIRGINIA (Record Number 191360) From The Court of Appeals of Virginia. Counsel Ivan D. Fehrenbach (D.R. Dansby, Ltd.) for appellee. Mark R. Herring, Virginia B. Theisen (Office of the Attorney General) for appellant. Assignment of Error The Court of Appeals erred when it failed to overturn four of Groffel’s five convictions for violating 18.2-308.1:4 for one act while subject to five protective orders. Such convictions violated Groffel’s Fifth Amendment right to avoid multiple punishments for the same offense.
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September 2020 Commonwealth v. Groffel
10/01/2020
September 2020 Commonwealth v. Groffel
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case COMMONWEALTH OF VIRGINIA v. HOWARD ALLEN GROFFEL (Record Number 191233) From The Court of Appeals of Virginia. Counsel Mark R. Herring, Virginia B. Theisen (Office of the Attorney General) for appellant. Ivan D. Fehrenbach (D.R. Dansby, Ltd.) for appellee. Assignment of Error In this case of first impression, the Court of Appeals erred in ruling that convictions for possession of a firearm by a felon and possession by a felon of ammunition incompatible with the firearms with which it was possessed violated the double jeopardy protection against multiple punishments for the same offense.
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September 2020 McClary v. Jenkins
10/01/2020
September 2020 McClary v. Jenkins
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case MICHAEL V. MCCLARY, ET AL. v. SCOTT H. JENKINS, SHERIFF, ET AL. (Record Number 191132) From The Circuit Court of Culpeper County; P. Peatross, Judge. Counsel Vishal Agraharkar, Eden B. Heilman, and Jennifer Safstrom (American Civil Liberties Union Foundation of Virginia) and Casey E. Lucier, Dale G. Mullen, Travis C. Gunn, and Ashley P. Peterson (McGuireWoods LLP) for appellants. Rosalie Fessier (Timberlake, Smith, Thomas & Moses, P.C.) and Bobbi Jo Alexis (Office of the Culpeper County Attorney) for appellee. Assignments of Error The circuit court erred as a matter of law in sustaining Sheriff Jenkins’s demurrer, denying Plaintiffs’ motion for reconsideration, and entering final judgment on Plaintiffs’ Counts I and II because neither the Constitution of Virginia nor the General Assembly has authorized Virginia sheriffs either (A) to contract with the federal government to enforce federal civil immigration law, or (B) to otherwise enforce federal civil immigration law. The circuit court erred as a matter of law in sustaining the Board of Supervisors of Culpeper County’s demurrer, denying Plaintiffs’ motion for reconsideration, and entering final judgment on Plaintiffs’ Count III because neither the Constitution of Virginia nor the General Assembly has authorized localities to appropriate funds to enforce federal civil immigration law. The circuit court erred in denying Plaintiffs’ request for leave to file an amended complaint because courts should liberally grant leave to amend and additional factual pleading would remedy any issues potentially supporting dismissal.
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September 2020 Marble Technologies v. Mallon
10/01/2020
September 2020 Marble Technologies v. Mallon
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case MARBLE TECHNOLOGIES, INC., ET AL. v. STEVEN M. MALLON, ET AL. (Record Number 191131) From The Circuit Court of the City of Hampton; M. Gaten, Judge. Counsel James J. Reid (David Kamp & Frank, L.L.C.) for appellants. Matthew D. Meadows (Jones, Blechman, Woltz & Kelly, P.C.) for appellees. Assignment of Error The lower court erred in denying the Plea in Bar of Res Judicata filed by Defendants Sebastian Plucinski and Marble Technologies, Inc. (“Defendants”) because the Plaintiffs’ claims for relief are the same claims for relief between the same parties or their privies regarding the same conduct, transaction or occurrence that had been previously adjudicated on the merits in the matter styled, Mallon et al. v. Marble Technologies, Inc., et al., Case No. CL11-1684; reversed in Marble Techs., Inc. v. Mallon, 290 Va. 27, 773 S.E.2d 155 (2015). Assignment of Cross-Error The lower court erred when it certified the Petitioners’ Interlocutory Appeal of the Court’s denial of their Plea in Bar of Res Judicata filed by Sabastian Plucinksi and Marble Technologies, Inc. because the Petitioners did not agree that an Interlocutory Appeal is in the parties’ best interest as required by Virginia Code § 8.01-670.1.
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September 2020 Fairfax County Police Department v. Neal / Neal v. Fairfax County Police Department (Argued Together)
10/01/2020
September 2020 Fairfax County Police Department v. Neal / Neal v. Fairfax County Police Department (Argued Together)
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case FAIRFAX COUNTY POLICE DEPARTMENT, ET AL. v. HARRISON NEAL (Record Number 191129) From The Circuit Court of Fairfax County; R. Smith, Judge. Counsel Elizabeth D. Teare, Karen L. Gibbons, and Kimberly P. Baucom (Fairfax County Attorney’s Office); Stuart A. Raphael, Trevor S. Cox, and Matthew R. McGuire (Hunton Andrews Kurth LLP) for appellant. Edward S. Rosenthal, Lana M. Manitta, and David C. Rohrbach (Rich Rosenthal Brincefield Manitta Dzubin & Kroeger, PLLC); Eden Heilman and Jennifer Safstrom (American Civil Liberties Union Foundation of Virginia, Inc.) for appellee. Assignments of Error The circuit court erred in concluding that the Department’s ALPR system is an “information system” under the Data Act because the ALPR system does not itself contain “the name, personal number, or other identifying particulars of a data subject.” Va. Code Ann. § 2.2-3801. The ALPR system does not become “a record-keeping process” under the Data Act simply because police officers have the ability [to] take a license plate number stored in the ALPR system and manually enter it into other databases, not maintained by the Department, to discover the identity of the vehicle owner. If the ALPR system is construed to include information that the Department could potentially access through the NCIC, VCIN, and the DMV databases, which can only be accessed with a valid criminal justice purpose, then the Court should decide anew, based on the changed factual predicate, whether the ALPR system is exempt under Code § 2.2-3802(7) notwithstanding Neal I’s contrary conclusion. The circuit court erred in ruling that the Department’s creation of an “information system” consisting of passively acquired ALPR data violates the Data Act. The circuit court erred in enjoining the Department from creating and maintaining an information system that consists of information captured by ALPR cameras. Granted Appeal Summary Case HARRISON NEAL v. FAIRFAX COUNTY POLICE DEPARTMENT, ET AL. (Record Number 191127) From The Circuit Court of Fairfax County; R. Smith, Judge. Counsel Edward S. Rosenthal, Lana M. Manitta, and David C. Rohrbach (Rich Rosenthal Brincefield Manitta Dzubin & Kroeger, PLLC); Eden Heilman and Jennifer Safstrom (American Civil Liberties Union Foundation of Virginia, Inc.) for appellant. Elizabeth D. Teare, Karen L. Gibbons, and Kimberly P. Baucom (Fairfax County Attorney’s Office) for appellee. Assignments of Error The trial court abused its discretion under Code Section 2.2-3809 in awarding less than 11% of the reasonable and necessary attorneys’ fees and costs proven by detailed billing records and affidavits. The trial court erred by excluding the affidavit of Bernard J. DiMuro, Neal’s attorneys’ fees expert. Assignment of Cross-Error The trial court’s award of attorneys’ fees and costs was error because the circuit court erred in concluding that the Department violated the Data Act, and in issuing an injunction.
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September 2020 Albritton v. Commonwealth
10/01/2020
September 2020 Albritton v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case DEVINCHE JAVON ALBRITTON v. COMMONWEALTH OF VIRGINIA (Record Number 191030) From Circuit Court of Sussex County; W. Sharrett, Judge. Counsel Devinche Javon Albritton, pro se. Stacie A. Sessoms (Office of the Attorney General) for appellee. Assignments of Error The Sussex County Circuit Court erred and abused its discretion by Granting the defendant’s Plea of Sovereign Immunity upon the defendant’s assertion that Appellant Albritton failed to exhaust his administrative remedies. The Sussex County Circuit Court erred and abused its discretion in Granting the defendant’s Motion for Summary Judgment upon its finding that the Evidence produced and Submitted by Appellant Albritton was insufficient from which a jury could find the defendant guilty of negligence. The Sussex County Circuit Court erred and abused its discretion in Granting the defendant Commonwealth’s Motion for Summary Judgment for Contributory negligence based solely upon the inadmissible Hearsay Evidence submitted by the defense.
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September 2020 Dumfries Triangle Rescue Squad v. Board of County Supervisors
10/01/2020
September 2020 Dumfries Triangle Rescue Squad v. Board of County Supervisors
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case DUMFRIES-TRIANGLE RESCUE SQUAD, INCORPORATED v. BOARD OF COUNTY SUPERVISORS OF PRINCE WILLIAM COUNTY, VIRGINIA (Record Number 191000) From Circuit Court of Prince William County; S. Smith, Judge. Counsel John H. Foote, Garth M. Wainman, and Matthew A. Westover (Walsh, Colucci, Lubeley & Walsh, P.C.) for appellant. Michelle R. Robl and Megan E. Kelly (Office of the County Attorney) for appellee. Assignments of Error Granted The trial court erred in overruling DTRS’s Demurrer, because the Board lacks the authority to dissolve the separate corporate status of DTRS. The trial court erred in granting the Board’s Motion for Summary Judgment because the Board was not entitled to judgment as a matter of law, since it lacks the authority to dissolve DTRS’s corporate status. The trial court erred in granting the Motion for Summary Judgment because its reliance on Virginia Code Ann. § 13.1-907 regarding the distribution of DTRS’s assets to the Board or to an entity engaged in activities substantially similar to DTRS was erroneous. The trial court erred in overruling DTRS’s Plea in Bar because the Board has no authority to compel DTRS to convey its property to the Board or another entity engaged in similar activities as DTRS, pursuant to Virginia Code Ann. § 13.1-907, a statute that is inapplicable in this case but that was relied on by the trial court.
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September 2020 Alexandria City Public Schools v. Handel
10/01/2020
September 2020 Alexandria City Public Schools v. Handel
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case ALEXANDRIA CITY PUBLIC SCHOOLS, ET AL. v. KERRI HANDEL (Record Number 190957) From The Court of Appeals of Virginia. Counsel Michael S. Bliley and Andrew M. Alexander (Siciliano, Ellis, Dyer & Boccarosse PLC) for appellants. M. Thomas McWeeny and Julie H. Heiden (Koonz, McKenney, Johnson, DePaolis & Lightfoot, L.L.P.) for appellee. Ralph L. Witt, Jr., Megan Kerwin Clark, and A. Jacob Perkinson (Whitt & Del Bueno, PC) for amici curiae Prince William County Public Schools, Virginia Risk Sharing Association, and Virginia Self-Insurers Association. Assignments of Error The Court of Appeals erred in finding that a claimant must only prove a structural or mechanical change to one body part in order for all injuries caused by an accident to be compensable. The Court of Appeals erred in finding that Appellee suffered an injury to her right shoulder, as opposed to mere transient pain
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September 2020 Carr v. Sahara Motors
10/01/2020
September 2020 Carr v. Sahara Motors
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case BRANDI CARR v. SAHARA MOTORS, LLC (Record Number 190938) From The Circuit Court of the City of Portsmouth; D. Sword, Judge. Counsel Lenard Myers II (Fortress Proprietas, P.C.) for appellant. No counsel of record for appellee. Assignment of Error The Circuit Court for the City of Portsmouth (“the trial court”) erred and abused its discretion when it entered its final order on April 16, 2019 dismissing with prejudice and denying Appellant’s Motion to Reconsider Dismissal, Reopen and Rehear. The trial court concluded, without considering evidence offered during the hearing, that Appellant’s non-appearance to Court on February 28, 2019 (a preliminarily, but not final trial date) was a result of “somebody not following up court dates” even though no scheduling order was entered the parties were actively holding settlement conversations and Appellant’s attorney followed the trial court Docket Clerk’s instructions which are contained on the Civil Docket Control Procedures of January 22, 2007 published on the trial court’s website, pursuant to Virginia Code § 8.01-4.
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September 2020 Sheehy v. Williams (Argued Together)
10/01/2020
September 2020 Sheehy v. Williams (Argued Together)
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case KERRY ANN SHEEHY v. RENEE WILLIAMS (Record Number 190802) From From the Circuit Court of the City of Virginia Beach; J. Lewis, Judge. Counsel Brandon H. Zeigler and Kellam T. Parks (Parks Zeigler, PLLC) for appellant. Kevin E. Martingayle (Bischoff Martingayle, P.C.) for appellee. Assignments of Error The trial court erred as a matter of law in interpreting Virginia Code § 8.01-40.4 when it awarded compensatory and punitive damages solely on proof of intentional conduct without Respondent producing any evidence of such damages. The trial court erred in finding Respondent had sufficiently proved all the elements of Va. Code §18.2-386.2, where she failed to prove the dissemination at issue was “malicious” and that it was done with the “intent to coerce, harass, or intimidate.” The trial court erred in allowing Respondent to argue contrary to the testimony of Richard Garriott, a witness Respondent sponsored, and whose testimony was uncontradicted by any other evidence. Granted Appeal Summary Case KERRY ANN SHEEHY v. RENEE WILLIAMS (Record Number 191089) From the Circuit Court of the City of Virginia Beach; J. Lewis, Judge. Counsel Brandon H. Zeigler and Kellam T. Parks (Parks Zeigler, PLLC) for appellant. Kevin E. Martingayle (Bischoff Martingayle, P.C.) for appellee. Assignment of Error The trial court erred as a matter of law in awarding Respondent attorney’s fees because there was no legal basis for the damages award, and therefore, no basis for the fees award.
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June 2020 Evans v. Commonwealth
07/07/2020
June 2020 Evans v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case RAEQUAN EVANS S/K/A RAEQUAN D. EVANS v. COMMONWEALTH OF VIRGINIA (Record Number 190846) From The Court of Appeals of Virginia. Counsel J. Barry McCracken (OFFICE OF THE PUBLIC DEFENDER) for appellant. Kristin S. Fellers (OFFICE OF THE COMMONWEALTH’S ATTORNEY) for appellee. Assignment of Error The Court of Appeals erred in affirming the trial court’s denial of the Defendant’s motion to dismiss because the prosecution of the Defendant for the possession of the firearm constituted a successive prosecution of the Defendant for the same act as that which was the subject of an earlier trial and conviction in the Norfolk General District Court for misdemeanor possession of a concealed weapon, such successive prosecution being barred by the provisions of Virginia Code § 19.2-294.
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June 2020 Hampton v. Meyer
06/30/2020
June 2020 Hampton v. Meyer
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case CALVIN HAMPTON v. NOAH J. MEYER (Record Number 191194) From The Circuit Court of the City of Richmond; B. Snukals, Judge. Counsel Juli M. Porto (Blankingship & Keith, P.C.) and Thomas M. Konvicka (The Joel Bieber Firm) for appellant. Henry S. Carter, E. Brandon Ferrell, and Kerrigan C.K. O’Malley (Carter & Shands, P.C.) for appellee. Assignment of Error The trial court erred by failing to find that the named defendant in Hampton’s initial complaint was a misnomer that tolled the statute of limitations, and by sustaining the special plea of the statute of limitations to the re-filed complaint.
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June 2020 Conway v. Commonwealth
06/30/2020
June 2020 Conway v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case MARIAH LESLIE CONWAY v. COMMONWEALTH OF VIRGINIA (Record Number 190898) From The Court of Appeals of Virginia. Counsel Michael A. Nicholas (Daniel, Medley & Kirby, P.C.) for appellant. Edward H. Palmore (Office of the Commonwealth’s Attorney) for appellee. Assignment of Error The Circuit Court of the City of Danville erred when it denied Appellant’s motion to dismiss the indictment pursuant to Virginia Code §19.2-294. The Court of Appeals erred when it affirmed the Circuit Court’s error.
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April 2020 Fernandez, etc. v. Commissioner of Highways
06/02/2020
April 2020 Fernandez, etc. v. Commissioner of Highways
This podcast is provided by Ben Glass and Steve Emmert - 05/28/2020 In a declaratory judgment action seeking an order that the Commissioner of Highways provide statutorily required relocation benefits under Code § 25.1-406 of the Virginia Relocation Assistance Act, the circuit court did not err in sustaining a defense demurrer because there is no implied private cause of action under the Act for payment of relocation expenses. In addition, the plaintiff failed to exhaust administrative remedies afforded to him under 24 VAC § 30-41-90, and had Virginia Administrative Process Act and mandamus remedies available. The judgment sustaining the demurrer in the present action is affirmed.
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April 2020 Mid-Atlantic Arena v. City of Virginia Beach
06/02/2020
April 2020 Mid-Atlantic Arena v. City of Virginia Beach
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case MID-ATLANTIC ARENA, LLC v. CITY OF VIRGINIA BEACH (Record Number 191020) From The Circuit Court of the City of Virginia Beach; H.T. Padrick, Jr., Judge. Counsel Samuel W. Meekins, Jr., Adam M. Carroll, John F. Sawyer (Wolcott Rivers Gates), Mark F. Bideau, Andrea Shwayri Ferraro (Greenburg Traurig, P.A.), and Robert F. McDonnell for appellant. Gary A. Bryant and Brett A. Spain (Willcox & Savage P.C.) for appellee. Assignments of Error 1. The trial court erred when it held the closing did not satisfy the terms of the Development Agreement and therefore the City termination was proper. a. The trial court erred when it held that the Development Agreement required at closing (i) the Loan to be “fully funded” and (ii) the AEG capital contribution to be in place because it was “too big” to be a post-closing item. b. The trial court erred when it held that a Support Agreement between third parties was a construction loan document the City had a right to review and approve and that Developer breached the Development Agreement because the Support Agreement was not provided to the City. 2. The trial court erred when it failed to find that the City’s admitted refusal to cooperate with the closing and refusal to convey the property constituted breaches and repudiations of the Development Agreement. 3. The trial court erred when it relied upon extrinsic evidence, personal experience as a practicing attorney on residential loan closings and stated sympathy to erroneously construe the unambiguous Development Agreement to support the City’s termination.
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April 2020 Vest v. Mountain Valley Pipeline
06/02/2020
April 2020 Vest v. Mountain Valley Pipeline
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case FRED W. VEST v. MOUNTAIN VALLEY PIPELINE, LLC (Record Number 191014) From The Circuit Court of Roanoke County; D. Carson, Judge. Counsel Evans G. Edwards and Thomas J. Bondurant (Gentry Locke) for appellant. Wade W. Massie and Seth M. Land (Penn, Stuart & Eskridge) for appellee. Assignments of Error 1. The trial court erred in denying Vest summary judgment on his trespass counterclaim, and instead granting summary judgment for MVP. a. The trial court erred in ruling in favor of MVP, because MVP failed to comply with either the plain meaning of the natural gas surveying statute’s notice of intent to enter provision (Va. Code § 56-49.01(C)) or the most reasonable alternative interpretation of that provision. b. The trial court erroneously adopted MVP’s interpretation of Va. Code § 56-49.01(C) and failed to give effect to the legislative intent and different language contained in that section and § 56-49.01(B). c. The trial court should have granted Vest summary judgment, because MVP failed to give proper notice to Vest under Va. Code § 56-49.01(C), and its surveyors trespassed when they entered upon his land without his permission on April 9, 2016. 2. The trial court erred in granting MVP summary judgment on Vest’s trespass counterclaim; the record contains a genuine dispute of material fact whether MVP waived any limited statutory privilege it had to survey when it agreed to reschedule surveying to later in April yet sent its surveyors onto Vest’s land anyway on April 9.
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April 2020 Braun v. QuantaDyn Corporation
06/02/2020
April 2020 Braun v. QuantaDyn Corporation
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case DAVID R. BRAUN v. QUANTADYN CORPORATION, ET AL. (Record Number 190974) From The Circuit Court of Loudoun County; D. Fleming, Judge. Counsel Alan C. Bowden (Meyer & Bowden PLLC) and Michael E. Kinney (Turner & Kinney, A Professional Corporation) for appellant. Robert A. DeRise (Arnold & Porter Kaye Scholer LLP) and William R. Fitzpatrick (Sevila, Saunders Huddleston & White) for appellees. Assignments of Error 1. The circuit court failed to rule on Petitioner’s argument, based on uncontroverted evidence, that this action commenced upon the submission of multiple signed Complaints to the Clerk’s office on August 4, 2015. 2. The circuit court erroneously construed Va. Code § 8.01-271.1 not to apply to initial pleadings and, based on that erroneous construction, concluded that Petitioner’s “only remedy was to file a properly signed complaint in a new action.” 3. The circuit court erroneously construed Va. Code § 8.01-271.1 to require leave of court to correct the omission of a signature on a pleading. 4. The circuit court erred by concluding that Petitioner failed to demonstrate that his former counsel “promptly” cured the omission of a signature after it was called to his attention, as authorized by Va. Code § 8.01-271.1. 5. The circuit court erred by concluding that there was insufficient evidence to establish when the Complaint had been signed.
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