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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February 2020 VACORP v. Young, et al
03/11/2020
February 2020 VACORP v. Young, et al
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case VACORP v. MIASIA YOUNG, ET AL. (Record Number 190356) From The Circuit Court of the City of Richmond; G. Rupe, Judge. Counsel Jim H. Guynn, Jr. (Guynn, Waddell, Carroll & Lockaby, P.C.) for appellant. David E. Durrett and Christopher P. Yakubisin (Tronfeld West & Durrett) for appellees. Assignments of Error 1. The trial court erred when it granted Young’s motion for summary judgment (and denied VACORP’s motion for summary judgment) because Virginia Code § 22.1-194 alters the applicable self-insurance limits for school boards and mandates $50,000 in UM/UIM coverage. 2. The trial court erred when it granted Young’s motion for summary judgment (and denied VACORP’s motion for summary judgment) because Virginia Code § 38.2206 prohibits UM/UIM limits from exceeding the liability limits.
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February 2020 HRIP Miller v. City of Richmond
03/11/2020
February 2020 HRIP Miller v. City of Richmond
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case HRIP MILLER & RHOADS ACQUISITION, LLC v. CITY OF RICHMOND (Record Number 190316) From The Circuit Court of the City of Richmond; C. Jenkins, Judge. Counsel Thomas M. Wolfe, William H. Shewmake, and N. Pendleton Rogers (LeClairRyan PLLC) for appellant. Richard E. Hill, Jr. (Office of the City Attorney) for appellee. Assignment of Error 2. The Trial Court Erred When It Held That HRIP Could Not Invoke The City’s Tax Amnesty Ordinance, City Code §26-29, To Avoid The Forfeiture Of Its 2017 Tax Exemption.
/episode/index/show/oralargumentsscva/id/13506893
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February 2020 Weatherholt v. Commonwealth
03/11/2020
February 2020 Weatherholt v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case JIMMY RAY WEATHERHOLT, JR. v. COMMONWEALTH OF VIRGINIA (Record Number 190206) From The Court of Appeals of Virginia. Counsel William D. Ashwell (Mark B. Williams & Associates, PLC) for appellant. Victoria Johnson and John I. Jones, IV, (Office of the Attorney General) for appellee. Assignment of Error 1. The circuit court violated Mr. Weatherholt’s Right to Counsel by having him appear without counsel during the pendency of his criminal charges and failing to advise Mr. Weatherholt as to the nature of his counsel’s failure to appear.
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February 2020 Tate v. Commonwealth
03/11/2020
February 2020 Tate v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case RICKY DEAN TATE, JR. v. COMMONWEALTH OF VIRGINIA (Record Number 190201) From The Court of Appeals of Virginia Counsel James C. Martin (Martin & Martin Law Firm) for appellant. Tyler A. Klink (Office of the Commonwealth’s Attorney) for appellee. Assignments of Error 1. The Court of Appeals erred in upholding the trial court’s ruling that the evidence was sufficient to convict Tate in the Morch/Sheets/Wilner statutory burglary and grand larceny case, where the case was based on the inherently incredible testimony of a co-defendant, Tate testified and denied guilt, and not all of the proper LLC director witnesses testified for the Commonwealth with regard to the lack of permission for Tate to enter or take the items. 2. The Court of Appeals erred in upholding the trial court’s failure to apply the single larceny doctrine in the Hrebenak case, in which the taking of a motor vehicle part or parts was the result of a single impulse with the taking of the other items, and thus the second larceny charge should have been dismissed. 3. The Court of Appeals erred in upholding the trial court’s ruling that the evidence was sufficient to convict Tate of grand larceny of tires in the Blue Moon Tattoo Parlor case.
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February 2020 Arthur v. Commonwealth
03/11/2020
February 2020 Arthur v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case FRANK ARTHUR v. COMMONWEALTH OF VIRGINIA (Record Number 190186) From The Court of Appeals of Virginia. Counsel Daniel P. Galyon (Office of the Public Defender) for appellant. Derek A. Colvin (Office of the Commonwealth’s Attorney) for appellee. Assignment of Error The Court of Appeals erred in finding the trial court did not abuse its discretion by sentencing appellant to 20 years with 11 years suspended on manufacturing methamphetamine (CR17000392-00) and 10 years all suspended on possess precursors with intent to manufacture methamphetamine (CR17000393-00) with all suspended time on all charges conditioned on 5 years of supervised probation and 5 years good behavior.
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February 2020 Green v. Diagnostic Imaging Associates, et al.
03/11/2020
February 2020 Green v. Diagnostic Imaging Associates, et al.
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case LEWIS DARNELL GREEN, PERSONAL REPRESENTATIVE/EXECUTOR OF THE ESTATE OF ONEIDA STILTNER GREEN, DECEASED v. DIAGNOSTIC IMAGING ASSOCIATES, P.C., ET AL. (Record Number 190181) From The Circuit Court of Tazewell County; R. Patterson, Judge. Counsel M. Bryan Slaughter and E. Kyle McNew (MichieHamlett PLLC) for appellant. John T. Jessee, Joseph M. Rainsbury, and Sarah C. Jessee (LeClairRyan); Frank K. Friedman, Elizabeth Guilbert Perrow, Daniel T. Sarrell, Erin B. Ashwell, and J. Walton Milam III (Woods Rogers PLC); and C.J. Steuart Thomas, III and Noelle Quam (TimberlakeSmith) for appellees. Assignments of Error 1. The circuit court erred in granting the Defendants’ Motion to Dismiss. The court granted the Motion by Letter Opinion dated September 20, 2018, which was incorporated by reference into the final order, styled “Order Granting Defendants’ Motions to Dismiss,” entered November 15, 2018. 2. The circuit court erred in finding that Plaintiff’s claim was barred by Virginia Code § 8.01-56. The court made this finding at pages 5 through 6 of the Letter Opinion dated September 20, 2018, which was incorporated by reference into the final order, styled “Order Granting Defendants’ Motions to Dismiss,” entered November 15, 2018. 3. The circuit court erred in finding that the Plaintiff’s settlement of the Kentucky case equated to an election of remedy under Virginia law. The court made this finding at page 6 of the Letter Opinion dated September 20, 2018, which was incorporated by reference into the final order, styled “Order Granting Defendants’ Motions to Dismiss,” entered November 15, 2018. 4. The circuit court erred in finding that Plaintiff’s claim was barred by judicial estoppel. The court made this finding at page 6 of the Letter Opinion dated September 20, 2018, which was incorporated by reference into the final order, styled “Order Granting Defendants’ Motions to Dismiss,” entered November 15, 2018.
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February 2020 T. Musgrove Construction v. Young, d/b/a, etc.
03/10/2020
February 2020 T. Musgrove Construction v. Young, d/b/a, etc.
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case T. MUSGROVE CONSTRUCTION COMPANY, INC. v. EARL CRAIG YOUNG, D/B/A FOX FIRE TOWING (Record Number 190180) From The Circuit Court of Franklin County; C. Perdue, Judge. Counsel William P. Wallace, Jr. and Jason R. Whiting (Johnson, Ayers & Matthews, P.L.C.) for appellant. Eric H. Ferguson (Rhodes, Ferguson & Stone, Ltd.) for appellee. Assignments of Error 1. The circuit court erred in failing to grant T. Musgrove’s motion to set aside the verdict based upon the plaintiff’s failure to prove the reasonable value of its commercial recovery, towing, and storage services, which is an element of a quantum meruit claim. 2. The circuit court erred in failing to grant T. Musgrove’s motion to strike the evidence and motion to set aside the verdict based upon the plaintiff’s failure to prove, as a matter of law, that T. Musgrove benefitted from Fox Fire’s services, which is an element of a quantum meruit claim. 3. The circuit court erred in failing to grant T. Musgrove’s motion to strike the evidence and motion to set aside the verdict regarding $46,215.00 in storage charges, based upon the plaintiff’s failure, as a matter of law, to mitigate its damages.
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February 2020 Curtis v. Highfill, et al.
03/10/2020
February 2020 Curtis v. Highfill, et al.
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case SHEA CURTIS, ADMINISTRATOR OF THE ESTATE OF MARY JO CURTIS v. CHRISTOPHER HIGHFILL, ET AL. (Record Number 190117) From The Circuit Court of Prince William County. K. Irving, Judge. Counsel Patrick A. Malone and Alfred A. Clarke (Patrick Malone & Associates, P.C.) for appellant. Michael E. Olszewski, Benjamin M. Wengerd, Rodney S. Dillman, and Julie C. Mayer (Hancock, Daniel & Johnson, P.C.) for appellees. Assignment of Error 1. The trial court erred by misinterpreting the standard for, incorrectly prejudging, and ultimately striking Ms. Curtis’ punitive damages claim, despite ample evidence in the trial record to support a finding by the jury of Dr. Highfill’s “willful and wanton” disregard for Mary Jo Curtis’ health and safety, given Dr. Highfill’s admissions that he had actual conscious awareness of the high risk of prescribing long-term Schedule II narcotics to his patient with bipolar disorder and a history of alcohol abuse, yet nonetheless wrote prescriptions on 144 separate occasions amounting to more than 7,000 opioid pills, and failed to ever examine her the last 52 times he wrote prescriptions in the 14 months before her death from an accidental overdose.
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February 2020 Akers v. Commonwealth
03/10/2020
February 2020 Akers v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case JEREMY WAYNE AKERS v. COMMONWEALTH OF VIRGINIA (Record Number 190094) From The Court of Appeals of Virginia. Counsel Darrell W. Craft (Law Offices of Darrell Craft, P.C.) for appellant. Nathaniel S. Griffith (Office of the Commonwealth Attorney) for appellee. Assignments of Error 1. The trial court abused its discretion by saying it had no jurisdiction to act under the “Motion for Modification of Sentence pursuant to § 19.2-3032 of the Code of Virginia and New Hearing” and by default, the Appellant, Mr. Akers, was sentenced to the remaining 2 years 6 months of incarceration in the Virginia Department of Corrections. 2. At oral argument and over the objection of counsel for Mr. Akers and Stokes v. Commonwealth, 61 Va. App. 388, Record No 0090-12-1, (2013), (Court of Appeals of Virginia, Chesapeake), the trial court ruled that it had no jurisdiction to act on the “Motion for Modification of Sentence pursuant to §19.2-303 of the Code of Virginia and New Hearing” since the DOC had picked up the Appellant five (5) days prior to the hearing. Mr. Akers, through counsel, believes under these facts, with a court order, the trial court had jurisdiction to act. 3. At oral argument and over the objection of the Appellant, the trial court failed to hold that Appellant's procedure due process rights that were violated with no post deprivation remedy (As raised, but not acted on in Stokes v. Commonwealth, 61 Va. App. 388, Record No 009012-1, (2013), (Court of Appeals of Virginia, Chesapeake). Counsel specifically raised the issue of due process rights being violated and by doing so, argued that there was no post deprivation remedy once Mr. Akers was picked up by the DOC or some state employee. This issue left unresolved in Stokes, and which was given to the trial court to first consider, was clearly preserved for appeal. 4. At oral argument and over the objection of the Appellant, the trial court failed to recognized jurisdiction even though the act of picking up the Appellant by the DOC or some state employee violated the Appellant's rights pursuant to the 5th Amendment of The United States Constitution, the 8th Amendment of The United States Constitution, the 14th Amendment of The United States Constitution and Article I. Bill of Rights, Section 8, Criminal Prosecutions, of the Constitution of Virginia.
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February 2020 Wakeman v. Commonwealth
03/10/2020
February 2020 Wakeman v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case PATRICK JOSEPH WAKEMAN v. COMMONWEALTH OF VIRGINIA (Record Number 181680) From The Court of Appeals of Virginia. Counsel J. Lloyd Snook, III (Snook & Haughey, P.C.) for appellant. Katherine Quinlan Adelfio (Office of the Attorney General) for appellee. Assignment of Error The Court of Appeals erred in ruling that Raymer Balciunas was properly permitted to testify as an expert sexual assault nurse examiner when she was not certified as a SANE nurse.
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February 2020 Armstrong v. Commonwealth
03/10/2020
February 2020 Armstrong v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case GEORGE RONALD ARMSTRONG v. COMMONWEALTH OF VIRGINIA (Record Number 181393) From The Circuit Court of the City of Richmond; R. Marchant, Judge. Counsel W. Geoffrey Tucker (Office of the Public Defender) for appellant. Michael N. Herring (Office of the Commonwealth’s Attorney) for appellee. Assignments of Error 1. The trial court erred in finding that Mr. Armstrong’s rights under the Eighth Amendment of the United States Constitution, and Article I, Section 9 of the Constitution of Virginia, were not violated when he was ordered interdicted under Virginia Code § 4.1-333. 2. The trial court erred in finding that the interdiction statutes were constitutional and did not violate Mr. Armstrong’s constitutional rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. 3. The trial court abused its discretion placing little weight on Dr. Doyle’s credible and unimpeached expert opinion.
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February 2020 Harold v. Devening
03/10/2020
February 2020 Harold v. Devening
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case SUSAN HAROLD v. HENRY C. DEVENING, ADMINISTRATOR OF THE ESTATE OF DONALD WAYNE AYERS (Record Number 181308) From The Circuit Court of Appomattox County; S. Nelson, Judge. Counsel Joseph A. Sanzone (Sanzone & Baker, L.L.P.) for appellant. Henry C. Devening (Henry C. Devening, P.C.) for appellee. Assignments of Error 1. The trial court erred by ruling that there was sufficient evidence to support a breach of fiduciary duty, and that the amounts which were sought to be recovered were not expended for the principal’s benefit or at his proper direction and the court further erred by ruling that the question of breach of fiduciary duty was not extinguished by transactions made by the authority of the principal, or ratified by the principal. 3. The court erred by awarding attorney’s fees under a statute that did not allow attorney's fees in those circumstances nor for fees contracted for by the Administrator and not the decedent prior to his death. Assignments of Cross-Error 1. The trial court erred in reducing the jury verdict by $63,435.51 from $327,197.34 to $263,761.83 by concluding that that [sic] the money removed from the Bank of Floyd was deposited into the Wells Fargo POD account. 2. The trial court erred in not awarding plaintiff accountant’s fees totaling $22,072.27 which were incurred as a direct result of the defendant’s failure to account for her actions as agent for the decedent.
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February 2020 Jefferson v. Commonwealth
03/09/2020
February 2020 Jefferson v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case ELELAKE JAMES JEFFERSON, JR. v. COMMONWEALTH OF VIRGINIA (Record Number 180993) From The Court of Appeals of Virginia. Counsel Caleb A. Kershner and Kyle D. Winey (Simms Showers, LLP) for appellant. Derek C. Aston (Office of the Commonwealth’s Attorney) for appellee. Assignment of Error The Court of Appeals erred when it misapplied Minor v. Commonwealth, 66 Va. App. 728, 740 (2016) to hold that the Amended Sentencing Order did not constitute the “final order” for purposes of determining the timeline of Mr. Jefferson’s appellate rights.
/episode/index/show/oralargumentsscva/id/13467551
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February 2020 Davis v. Davis
03/06/2020
February 2020 Davis v. Davis
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case BRIAN I. DAVIS v. MERYL R. DAVIS (Record Number 180040) From The Court of Appeals of Virginia. Counsel Deborah L. McIntyre-Yurkovich (McIntyre DeFede Law PLLC) for appellant. David M. Zangrilli (Odin, Feldman & Pittleman, P.C.) for appellee. Assignments of Error 1. The Court of Appeals erred in applying an improper legal standard when affirming the trial court’s decision that the Husband will be required to deplete his assets to satisfy the spousal support award. 2. The Court of Appeals erred in holding that the Husband’s depletion of assets to satisfy the spousal support award is not in the reasonable foreseeable future. 3. The Court of Appeals erred in finding that Husband had a continuing obligation to support Wife when the parties are now similarly situated. 4. The Court of Appeals erred in incorrectly balancing the Husband’s ability to pay with the Wife’s financial needs. Assignments of Cross-Error 1. The Court of Appeals erred in affirming the trial court’s granting of the Appellant’s Motion and modifying spousal support, in light of the facts that: the evidence showed that Appellant had the ability to continue to pay the previously ordered spousal support, Appellant’s financial circumstances have improved since the last support order, Appellant’s standard of living has increased since the last support order, and Appellant’s living expenses are excessive. 2. The Court of Appeals erred in affirming the trial court’s granting of the Appellant’s Motion and modifying spousal support, in light of the fact that the evidence proved that Appellee’s receipt of social security income has not reduced her need for support, and her current standard of living is lower than during the marriage.
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February 2020 Cole, et al. v. Smyth County Board of Supervisors, et al.
03/06/2020
February 2020 Cole, et al. v. Smyth County Board of Supervisors, et al.
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case BEVERLY COLE, ET AL. v. SMYTH COUNTY BOARD OF SUPERVISORS, ET AL. (171205) From The Circuit Court of Smyth County; Sage B. Johnson, Judge. Counsel Paul V. Morrison, II, Esq. for appellant. Jeffrey Lynn Campbell (Campbell Law Firm, P.C.) for appellee. Assignments of Error 1. The trial court erred when it found that the Smyth County Board of Supervisors properly entered into closed sessions to discuss dissolving the Smyth-Bland Regional Library. 2. The trial court erred when it found that the subjects discussed during closed sessions held by the Smyth County Board of Supervisors did not exceed the scope of the subjects set forth in their motions to enter into closed meetings. 3. The trial court erred by not awarding the Petitioners reasonable attorney fees and costs. Source Document:
/episode/index/show/oralargumentsscva/id/13443431
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January 2020 Tahboub, etc. v. Thiagarajah, et al
02/18/2020
January 2020 Tahboub, etc. v. Thiagarajah, et al
This podcast is provided by Ben Glass and Steve Emmert - 02/13/2020 In a medical malpractice action, the plaintiff’s evidence that the defendant doctors departed from the standard of care and caused the patient’s death was sufficient to establish a prima facie case against both defendants and to survive a motion to strike at the conclusion of plaintiff’s case-in-chief. The judgment of the circuit court resolving the case on the motion to strike is reversed, and the case is remanded for a new trial. Source Document:
/episode/index/show/oralargumentsscva/id/13199507
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January 2020 Flanders v. Commonwealth
02/18/2020
January 2020 Flanders v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - 02/13/2020 Because it is possible for a felony hit and run offense to have been committed with malice and for the resulting death to fall within the res gestae of that offense, felony hit and run may serve as a predicate offense for felony homicide. In this case, the evidence viewed in the light most favorable to the Commonwealth established that the defendant intentionally acted in a manner endangering the victim such that malice could be implied from her conduct and that his death was sufficiently related to the hit and run in time, place, and causal connection such that it was within the res gestae of the felony hit and run upon such facts. In this case, the evidence viewed in the light most favorable to the Commonwealth established that the defendant intentionally acted in a manner endangering the victim such that malice could be implied from her conduct, and that his death was sufficiently related to the hit and run in time, place, and causal connection such that it was within the res gestae of the felony hit and run. Accordingly, the judgment of the Court of Appeals upholding the conviction for felony homicide is affirmed. Source Document:
/episode/index/show/oralargumentsscva/id/13199471
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January 2020 King v. Commonwealth
02/13/2020
January 2020 King v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case TALIK R. KING, S/K/A TALIK RASHAUN KING v. COMMONWEALTH OF VIRGINIA (Record Number 190424) From The Court of Appeals of Virginia. Counsel Sante John Piracci (Lee & Piracci, PLC) for appellant. Kenneth A. Blalock (Office of the Commonwealth’s Attorney) for appellee. Assignment of Error The judge could not have found that the Commonwealth proved beyond a reasonable doubt that the Defendant knowingly or intentionally possessed a controlled substance where the only evidence linking the Defendant to the contraband was the Defendant’s recent occupancy of a vehicle and where the Commonwealth produced no evidence that the Defendant knew what marijuana smelled like. Source Document:
/episode/index/show/oralargumentsscva/id/13143782
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January 2020 Davis Construction v. FTJ, INC
02/13/2020
January 2020 Davis Construction v. FTJ, INC
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case JAMES G. DAVIS CONSTRUCTION CORPORATION v. FTJ, INC., F/K/A CIESCO, INC. (Record Number 190345) From Circuit Court of Arlington County; L. DiMatteo, Judge. Counsel Stephen M. Seeger and Alexandra E. Busch (Peckar & Abramson, PC) for appellant. R. Scott Caulkins and Greta P. Iliev (Caulkins & Bruce, PC) for appellee. Assignments of Error The trial court erred as a matter of law by ruling that there was no consideration for the JCA which governed the payment obligations and expectations of DAVIS, H&2 Drywall, and Ciesco, because the JCA gave Ciesco assurances that monies would be paid to Ciesco, and that H&2 Drywall could not abscond with monies it owed to Ciesco. The trial court erred as a matter of law by ruling that DAVIS was unjustly enriched by Ciesco’s delivery of drywall materials to H&2 Drywall because Ciesco had no reasonable expectation to be paid by DAVIS for the balance of monies owed by H&2 Drywall to Ciesco for those materials given Ciesco’s prior written acknowledgment that DAVIS would not pay for materials except to the extent it owed money to H&2 Drywall, and the trial court determined that no monies were due from DAVIS to H&2 Drywall. The trial court erred as a matter of law in determining that DAVIS was unjustly enriched by Ciesco’s delivery of drywall materials to H&2 Drywall because DAVIS paid the full amount of the Subcontract for H&2 Drywall’s completed scope of work, which included the drywall materials, in accordance with the express, written Subcontract. Source Document:
/episode/index/show/oralargumentsscva/id/13143761
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January 2020 McQuinn v. Commonwealth of Virginia
02/13/2020
January 2020 McQuinn v. Commonwealth of Virginia
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case MARCELLUS MCQUINN v. COMMONWEALTH OF VIRGINIA (Record Number 190266) From Court of Appeals of Virginia. Counsel Daniel W. Hall, esq. for appellant. Caitlin Robb Kelly (Office of the Commonwealth’s Attorney) for appellee. Assignment of Error The Court of Appeals erred by upholding the trial court, which erred by refusing to grant McQuinn’s motion to set aside the convictions for use of a firearm where McQuinn was acquitted of any predicate offense to support these convictions. The Court of Appeals erred by upholding the trial court, which erred by denying McQuinn’s motion to set aside the convictions for use of a firearm where Reed v. Commonwealth was decided in error because the authority relied upon in Reed did not address offenses which were statutorily mandated predicate offenses in the manner that violent crimes are predicate offenses under Va. Code § 18.2-53.1. B. The Court of Appeals erred by upholding the trial court, which erred by denying McQuinn’s motion to set aside the use of firearm convictions where the authority in Reed v. Commonwealth does not apply to this case because McQuinn asked the trial court to set aside the firearm convictions on legal grounds under Va. Code § 18.2-53.1, and not merely because the verdicts were inconsistent. The Court of Appeals erred by dismissing McQuinn’s third assignment of error as it pertained to a second conviction for use of a firearm, because, although the argument section for this assignment incorrectly identified the conviction as use of a firearm in a “robbery,” McQuinn’s assignment of error was adequate to confer jurisdiction over the question in the Court of Appeals, any failure to comply with the Rules was insignificant, and it was clear which firearm conviction McQuinn was complaining of. Source Document:
/episode/index/show/oralargumentsscva/id/13143716
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January 2020 Hunter v. Hunter
02/13/2020
January 2020 Hunter v. Hunter
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case CHARLES M. HUNTER, JR. v. ELEANOR A. HUNTER, IN HER CAPACITY AS TRUSTEE OF THE THIRD AMENDED AND RESTATED THERESA E. HUNTER RECOVABLE LIVING TRUST AGREEMENT, ET AL. (Record Number 190260) From The Circuit Court of the City of Williamsburg and James City County; M. McGinty, Judge. Counsel William W. Sleeth, III and Brett C. Herbert (Gordon Rees Scully Mansukhani, LLP) for appellant. Daniel R. Quarles (Otey Smith & Quarles) for appellee. Assignments of Error The Trial Court erred by misreading the Complaint and Chip’s request for relief, in that he first sought a declaratory judgment that his Complaint would not trigger the No Contest Clause. The Trial Court erred by not holding that the Complaint fell within the safe harbor set forth in Virginia Foundation of Independent Colleges v. Goodrich. The Trial Court erred by finding that Chip’s conduct fell within the scope of the No Contest Clause in the Theresa Trust. The Trial Court erred by applying the No Contest Clause in the Theresa Trust to Chip, despite Eleanor owing Chip non-waivable duties to account under Virginia common law, specifically via this Court’s holding in Fletcher v. Fletcher. The Trial Court erred by applying the No Contest Clause in the Theresa Trust to Chip, despite the various obligations under the Virginia Uniform Trust Code that the Theresa Trust did not purport to waive (or could not legally waive). The Trial Court erred by applying the No Contest Clause in the Theresa Trust to Chip, despite Virginia public policy requiring Eleanor to provide an accounting and/or information to Chip, and prohibiting the application of the No Contest Clause in this case. The Trial Court erred by not holding that Virginia law recognizes a good faith exception to in terrorem clauses in trusts, and by not holding that Chip’s conduct was protected by such good faith exception [note: request for extension of Virginia case law on this issue, from Womble v. Gunter, 198 Va. 522, 528, 95 S.E.2d 213, 218 (1956)]. Source Document:
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January 2020 Lynch v. Cabell
02/13/2020
January 2020 Lynch v. Cabell
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case LESTER B. LYNCH v. BETH CABELL, WARDEN, SUSSEX II STATE PRISON (Record Number 190048) From Circuit Court for the City of Norfolk; J. Migliozzi, Judge. Counsel Edward A. Fiorella, Jr. (Fraim and Fiorella, P.C.) for appellant. Rosemary V. Bourne (Office of the Attorney General) for appellee. Assignments of Error The trial court erred in failing to consider the Petitioner’s initial Post-Trial Brief in its ruling. The trial court erred in considering only Attorney Anderson’s hearing testimony in denying Petitioner's Writ of Habeas Corpus. The trial court erred in holding that the Petitioner did not meet his burden of proving that the Commonwealth suppressed the statements at issue. The trial court erred in interpreting Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936 (1999) to require a Petitioner for Writ of Habeas Corpus to carry the burden to prove that the evidence was suppressed. Assignment of Cross-Error While the circuit court correctly decided that Lynch failed to demonstrate that exculpatory evidence was not disclosed, the circuit court erred in finding that Lynch was prejudiced and had satisfied the third element of a Brady violation. Source Document:
/episode/index/show/oralargumentsscva/id/13143650
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January 2020 Linda Lee Alexander v. David Cobb
02/13/2020
January 2020 Linda Lee Alexander v. David Cobb
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case LINDA LEE ALEXANDER v. DAVID COBB (Record Number 181613) From The Circuit Court of Bath County; J.E. Wetsel, Jr., Judge. Counsel Robert J. Test for appellant. Melisa G. Michelsen (Litten & Sipe L.L.P.) for appellee. Assignment of Error The trial court erred in not granting the Plaintiff/Petitioner’s Motion for Declaratory Judgment, instead ruling that the real property that is the subject matter of this case, belonged to the Defendant/Respondent (a 25% interest) and to the Plaintiff/Petitioner (a 75% interest). The Plaintiff/Petitioner claims a full ownership interest in the properties. The Petitioner relies upon the ruling of the Alexandria Circuit Court, Lisa Kemler, Judge, in an order entered on October 27, 2011, as determinative of ownership of the properties and the rights of the parties. The trial court erred in not following that ruling, but instead determined that a subsequent order, issued by Judge Humes Franklin and entered on December 15, 2015, in the Bath County Circuit Court, was controlling in determining the ownership of the property. Source Document:
/episode/index/show/oralargumentsscva/id/13143623
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January 2020 Young-Allen v. Bank of America
02/13/2020
January 2020 Young-Allen v. Bank of America
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case TAMARA E. YOUNG-ALLEN v. BANK OF AMERICA, N.A., ET AL. (Record Number 181313) From The Circuit Court of the City of Alexandria; L. Kemler, Judge. Counsel Christopher E. Brown (The Brown Firm, PLLC) for appellant. James Kevin Fee and Patrick Harvey (Morgan, Lewis & Bockius LLP) for appellee. Assignment of Error The trial court erred in sustaining the demurrers of Bank of America, N.A. and Equity Trustees as to Counts I and II, holding that this is a post-sale action for rescission of the foreclosure sale, the lis pendens does not operate to preserve the rights of the parties pre-sale, and thus it requires the plaintiff plead fraud, collusion, or grossly inadequate sales price. Document:
/episode/index/show/oralargumentsscva/id/13143602
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November 2019 - Massenburg v City of Petersburg
11/30/2019
November 2019 - Massenburg v City of Petersburg
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case SAM MASSENBURG, ADMINISTRATOR OF THE ESTATE OF COREY D. MASSENBURG, DECEASED v. CITY OF PETERSBURG (Record Number 190071) From The Circuit Court of the City of Petersburg; J. Teefey, Jr., Judge. Counsel Kevin T. Hadden, Mark S. Lindensmith, and Ryan T. Walker (Marks & Harrison, P.C.) for appellant. Jeremy D. Capps, Melissa Y. York, and George A. Somerville (Harman Claytor Corrigan & Wellman) for appellee. Assignments of Error The Trial Court committed reversible error in granting the City’s Demurrer; Plaintiff’s First Amended Complaint was sufficient to withstand demurrer as to the City’s alleged negligence in carrying out its proprietary function of maintenance, repair and operation of its water system. The Trial Court committed reversible error in granting the City’s Plea in Bar based on sovereign immunity; Plaintiff was entitled to judgment on the Plea in Bar based on the City’s failure to carry its burden of proof and based on the proprietary nature of the City’s negligence; or, in the alternative, there were factual issues that should be decided by a jury, which Plaintiff specifically requested. Source Document:
/episode/index/show/oralargumentsscva/id/12230255
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November 2019 - Yoder v Commonwealth
11/30/2019
November 2019 - Yoder v Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case MICHELLE DAWN YODER v. COMMONWEALTH OF VIRGINIA (Record Number 190047) From The Court of Appeals of Virginia. Counsel Eric M. Anderson (Office of the Public Defender) for appellant. Rachel L. Yates (Office of the Attorney General) for appellee. Assignments of Error The Court of Appeals erred in affirming the conviction because the evidence was insufficient to prove notice of a continuing revocation beyond a reasonable doubt. The Court of Appeals erred in failing to rule on the applicability of the holding in Barden v. Commonwealth, 64 Va. App. 700, 771 S.E.2d 699 (2015) to the revocation (rather than suspension) of a driver’s license. Source Document:
/episode/index/show/oralargumentsscva/id/12230249
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November 2019 - Watson-Scott v Commonwealth
11/30/2019
November 2019 - Watson-Scott v Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case GEORGE T. WATSON SCOTT v. COMMONWEALTH OF VIRGINIA (Record Number 190016) From The Court of Appeals of Virginia. Counsel Catherine Lawler (Catherine Lawler Attorney at Law, PLLC) for appellant. Rachel L. Yates (Office of the Attorney General) for appellee. Assignments of Error The Court of Appeals erred in affirming the trial court’s murder conviction of appellant where the element of malice was absent because there was no person or persons against whom a malicious intent was held. The Court of Appeals erred in affirming the trial court’s murder conviction of appellant where the perpetrator did not hold a malicious intent towards the decedent and the doctrine of transferred intent was not implicated. Source Document:
/episode/index/show/oralargumentsscva/id/12230237
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November 2019 - Davison v Commonwealth
11/30/2019
November 2019 - Davison v Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case HARRY LEE DAVISON, III v. COMMONWEALTH OF VIRGINIA (Record Number 181694) From The Court of Appeals of Virginia. Counsel David B. Hargett (Hargett Law, PLC) for appellant. David M. Uberman (Office of the Attorney General) for appellee. Assignment of Error The trial court erred by combining two alternate theories into one jury instruction of either (a) force or (b) incapacity or helplessness, and the Court of Appeals erred by affirming the trial court. Source Document:
/episode/index/show/oralargumentsscva/id/12230231
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November 2019 - Taylor v Commonwealth
11/30/2019
November 2019 - Taylor v Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case JERMICA SHONDAL TAYLOR v. COMMONWEALTH OF VIRGINIA (Record Number 181684) From The Court of Appeals of Virginia. Counsel Charles E. Haden for appellant. Donald E. Jeffrey, III (Office of the Attorney General) for appellee. Assignment of Error The Court of Appeals erred in affirming the trial court’s denial of Taylor’s motion to strike the charge of attempted identity theft under Va. Code § 18.2-186.3, where the Commonwealth’s evidence was insufficient as a matter of law to prove the elements of attempted identity theft, where Jermica Taylor endorsed her own name on the back side of the check and never misrepresented her identity to the bank teller while attempting to cash the check. Source Document:
/episode/index/show/oralargumentsscva/id/12230225
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November 2019 - Flint Hill School v McIntosh
11/30/2019
November 2019 - Flint Hill School v McIntosh
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case FLINT HILL SCHOOL v. ALESSIA MCINTOSH (Record Number 181678) From The Circuit Court of Fairfax County; D. Bernhard, Judge. Counsel Timothy B. Hyland, Elizabeth A. Dwyer, Tyler Southwick (HYLAND LAW PLLC) for appellant. Harris D. Butler, III (BUTLER ROYALS, PLC), Cyrus Mehri (MEHRI & SKALET, PLLC) for appellee. Assignments of Error The trial court erred in holding that Roger McIntosh, a co-obligee under the parties’ contract, was not a necessary party to Alessia McIntosh’s declaratory judgment action against Flint Hill School. The trial court erred in holding that the filing of a declaratory judgment action “trigger[s] the applicability of a contract clause sought to be declared unlawful,” as such holding is contrary to law as set forth, inter alia, in Martin v. Garner, 286 Va. 76, 84, 745 S.E.2d 419, 423 (2013) (holding that the fact that the relevant parties “were before the court and the relevant deeds were in evidence,” is insufficient to establish a justiciable controversy between the parties.). The trial court erred in overruling Flint Hill School’s demurrer to Alessia McIntosh’s declaratory judgment claim, because the complaint did not contain an allegation that there existed an actual or justiciable controversy, nor an actual antagonistic assertion and denial of right, and because the complaint sought relief as to a hypothetical and speculative claim. The trial court erred in overruling Flint Hill School’s plea in bar to Alessia McIntosh’s declaratory judgment claim, because the uncontroverted evidence presented to the trial court established that there was no actual or justiciable controversy, nor an actual 2 antagonistic assertion and denial of right, and because Alessia McIntosh sought relief as to a hypothetical and speculative claim. The trial court erred in granting Alessia McIntosh’s motion for summary judgment, because material facts were genuinely in dispute as to whether there existed an actual or justiciable controversy, and an actual antagonistic assertion and denial of right, and because Alessia McIntosh sought relief as to a hypothetical and speculative claim. The trial court erred in granting Alessia McIntosh’s motion for summary judgment as to the unenforceability of the attorneys’ fees clause in the parties’ contract, because material facts were genuinely in dispute, and the trial court was presented with no facts, as to whether the challenged contractual clause was procedurally unconscionable. The trial court erred in granting Alessia McIntosh’s motion for summary judgment as to the unenforceability of the attorneys’ fees clause in the parties’ contract, because material facts were genuinely in dispute, and the trial court was presented with no facts, as to whether the challenged contractual clause was substantively unconscionable. The trial court erred in granting Alessia McIntosh’s motion for summary judgment as to the unenforceability of the attorneys’ fees clause in the parties’ contract, because material facts were genuinely in dispute, and the trial court was presented with no facts permitted to be considered under Rule 3:20, as to whether the challenged contractual clause significantly bars potentially meritorious resort to the courts by Alessia McIntosh. The trial court erred in granting Alessia McIntosh’s motion for summary judgment as to the unenforceability of the attorneys’ fees clause in the parties’ contract, because there is no “corollary principle discerned from the Rules of Professional Conduct not to punish the prevailing party in litigation with payment of the loser’s expenses,” as (a) no such principle exists; and (b) even if such principle existed, it does not mandate invalidation of the challenged contractual clause; and (c) material facts were genuinely in dispute, and the trial court was presented with no facts, relating to such a principle or upon which its applicability could be determined. Source Document:
/episode/index/show/oralargumentsscva/id/12230213