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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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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April 2020 Moore v. Commonwealth
06/02/2020
April 2020 Moore v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case RUBEN EDWARD MOORE v. COMMONWEALTH OF VIRGINIA (Record Number 190856) From The Court of Appeals of Virginia. Counsel Charles E. Haden for appellant. Anton Bell (Office of the Commonwealth’s Attorney) and Phillip O. Figura (Office of the Attorney General) for appellee. Assignment of Error 1. The Court of Appeals erred in affirming the trial court’s denial of Moore’s motion to strike (and motion to set aside) the murder charge, where the Commonwealth’s evidence was insufficient as a matter of law to prove murder by Moore and should not have been allowed to go to the jury, since the evidence at best created merely a suspicion of guilt and was plainly insufficient to prove that Moore had committed that offense.
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April 2020 Townes v. Virginia Board of Elections
06/02/2020
April 2020 Townes v. Virginia Board of Elections
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case HERBERT F. TOWNES, JR., ET AL. v. VIRGINIA STATE BOARD OF ELECTIONS (Record Number 190834) From The Circuit Court of the City of Hopewell; W. Tomko, Judge. Counsel W. Barry Montgomery and W. Andrew Webb (Kalbaugh Pfund & Messersmith, P.C.) for appellants. Heather Hays Lockerman (Office of the Attorney General) for appellee. Assignments of Error 1. The Circuit Court erred when it instructed the jury that the Commonwealth’s burden of proof was a showing by the preponderance of the evidence as opposed to clear and convincing evidence. 2. The Circuit Court erred in allowing the Commonwealth to expand its grounds for removal of the respondents beyond the grounds pled in its sworn Petition for Removal of Appointed Officer. 3. The Circuit Court abused its discretion and erred excluding various defense evidence including: training and education of the respondents; the 2018 Virginia Joint Legislative Audit and Review Commission report regarding the Operations and Performance of Virginia’s Department of Elections; the 2016 Report from the General Registrar/Electoral Board Working Group; and political party affiliation of witnesses.
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April 2020 Larsen v. Stack
06/02/2020
April 2020 Larsen v. Stack
This podcast is provided by Ben Glass and Steve Emmert - 05/28/2020 In ruling on a declaratory judgment case requesting construction of a decedent’s will and a determination of the extent of his widow’s interest in his house and farm, the circuit court did not err in receiving parol evidence from the attorney who drafted the will, or in ruling that the widow had a right to live in the house for so long as she is physically and mentally able to do so, rather than a life estate in the entire property. The judgment is affirmed.
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April 2020 Wooten v. Commonwealth
06/02/2020
April 2020 Wooten v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case DERRICK LYNDON WOOTEN v. COMMONWEALTH OF VIRGINIA (Record Number 190805) From The Court of Appeals of Virginia. Counsel Scott Michael Ehrenworth for appellant. Howard E. Gwynn and Melissa lotti Freudenberg (Office of the Commonwealth’s Attorney) for appellee. Assignment of Error 1. The Court of Appeals erred in affirming the trial court’s denial of Wooten’s motion to suppress where: a) Detective Nichol lacked probable cause or a reasonable articulable suspicion of criminal activity at the moment he demanded that Wooten hand over the unlabeled pill bottle and forced Wooten to get out of the car and be placed into handcuffs; b) where Wooten didn’t disavow ownership of the pill bottle until after Detective Nichol demanded the pill bottle and the illegal seizure of the pill bottle had already taken place; and c) where the pill bottle was in plain view inside the car but the incriminating character of the bottle’s contents was not immediately apparent and there was nothing about the unlabeled pill bottle that would justify Detective Nichol in concluding that a crime had been committed and that an immediate warrantless seizure and search of the pill bottle was warranted.
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April 2020 Hooked Group v. City of Chesapeake
05/06/2020
April 2020 Hooked Group v. City of Chesapeake
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case HOOKED GROUP, LLC v. CITY OF CHESAPEAKE (Record Number 190764) From The Circuit Court of the City of Chesapeake; R. Smith, Judge. Counsel L. Steven Emmert (Sykes, Bourdon, Ahern & Levy, P.C.), Joshua E. Baker and Blake A. Willis (Waldo & Lyle, P.C.) for appellant. Jacob B. Stroman, Kelly Daniels Sheeran and Ellen F. Bergren (Office of the City Attorney of the City of Chesapeake) for appellee. Assignment of Error The trial court erroneously sustained the City’s demurrer. The City took the landowner’s easement for ingress/egress by extinguishing the property’s direct access to Callison Drive. This action took a property right and damaged the remaining property without just compensation, violating Art. I, §11 of the Constitution of Virginia.
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April 2020 Wood, et al. v. Martin
05/06/2020
April 2020 Wood, et al. v. Martin
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case CHERYL H. WOOD, ET AL. v. TRACEY L. MARTIN (Record Number 190738) From The Circuit Court of Fairfax County; R. Gardiner, Judge. Counsel Yama A. Shansab (Ferguson Walton & Shansab, PLLC) for appellants. Thomas W. Repczynski and Alyssa Davies (Offit Kurman, P.C.) for appellee. Assignments of Error 1. The trial court committed substantial and reversible error by ruling that Wood’s change of beneficiary designation was “null and void” by reason of Martin’s Amended PSA and divorce decree, thus granting Martin’s declaratory judgment in contravention of Code § 38.2-3122, which bars “other legal process” from reaching the Proceeds, a protected insurance item, “in any case whatsoever.” 2. The trial court committed substantial and reversible error by ruling sua sponte, “as a matter of law,” that Code § 38.2-3122 did not apply to Martin because Martin was not a “creditor” within the meaning of Code § 6.2-500, part of Virginia’s Equal Credit Opportunity Act, so as to prevent Code § 38.2-3122 from barring Martin’s declaratory judgment. 3. The trial court committed substantial and reversible error in implicitly rewriting and expanding the terms of the Amended PSA’s exclusive remedy, which only gave Martin a contract claim against Wood’s estate for noncompliance with its insurance provisions, not a right to reach the protected insurance item, namely, the Proceeds
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April 2020 McCarthy v. Leiser, et al-
05/06/2020
April 2020 McCarthy v. Leiser, et al-
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case AUGUST MCCARTHY v. PHILLIP B. LEISER, ET AL. (Record Number 190672) From The Circuit Court of Fairfax County; D. Bernhard, Judge. Counsel August McCarthy for appellant. Phillip B. Leiser (The Leiser Law Firm) for appellees. Assignments of Error 1. The trial court erred in the 2018 Case by finding that it had jurisdiction to award sanctions in the 2016 Case against McCarthy, who was neither counsel nor a party in the 2016 Case. 2. The trial court erred in the 2018 Case by denying McCarthy’s motion to vacate the court’s orders in the 2016 Case, in which the court imposed sanctions against McCarthy, who was neither counsel nor a party in the 2016 case. 3. The trial court judge erred by failing to recuse himself, after he conducted an independent investigation into material facts of the 2016 Case; preserved the evidence he had gathered during his investigation for over a year; introduced this evidence at trial in the 2018 Case; and crossexamined McCarthy using the evidence on December 20, 2018. 4. The trial court erred by imposing sanctions in the 2016 Case more than 21 days after the court entered the final order in the 2016 Case, and without finding that the attorney who signed the pleading at issue had violated Virginia Code § 8.01-271.1.
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April 2020 Mackey v. McDannald, etc., et al-
05/06/2020
April 2020 Mackey v. McDannald, etc., et al-
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case G. NELSON MACKEY, JR. v. HARRIOTTE DODSON MCDANNALD, EXECUTRIX OF THE ESTATE OF E. GRIFFITH DODSON, JR., ET AL. (Record Number 190671) From The Circuit Court of the City of Roanoke; H. Franklin, Jr., Judge. Counsel Timothy E. Kirtner (Gilmer, Sadler, Ingram, Sutherland, & Hutton) for appellant. James J. O’Keeffe, IV (Johnson, Rosen, & O’Keeffe, LLC); Anthony M. Segura and Arthur P. Strickland (Strickland, Diviney & Segura); and Matt J. O’Herron (O’Herron Law PLLC) for appellees. Assignments of Error 1. The trial court erred in holding, pursuant to § 8.01-229(D) of the Code of Virginia, that the statute of limitations applicable to Appellees’ conversion claims was tolled by Appellant’s alleged statement to Quinn, which occurred before Appellant had committed any allegedly wrongful or tortious act and before any cause of action arose. 2. The trial court erred in finding that Appellant committed an affirmative act or misrepresentation intended to conceal the conversion claims. 3. The trial court erred in applying § 8.01-229(D) to Urso’s and McDannald’s claims based upon a statement that was not directed to them or communicated to them. 4. The trial court erred in concluding that the stock and case [sic] were not assets of the firm of Dodson, Pence, Viar, Woodrum & Mackey. 5. The trial court erred in finding for the Appellees on their conversion claims where Appellees failed to prove they had a current possessory interest in the stock and cash at the time it was allegedly converted.
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April 2020 Jones v. Phillips, et al-
05/06/2020
April 2020 Jones v. Phillips, et al-
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case ANDREA GAIL JONES v. TERRY M. PHILLIPS, ET AL. (Record Number 190643) From The Circuit Court of Powhatan County; P.W. Cella, Judge. Counsel Noah J. Nelson (The Rahman Group PLLC) for appellant. Scott D. Stovall and W. Henry M. Jones (CowanGates) for appellees. Assignments of Error 1. The trial court erred in its interpretation of Virginia Code § 55-20.2 by: designating the payment made pursuant to an insurance contract as proceeds from a “sale or disposition” despite no formal manifestation of such intent, and ignoring the permissive wording of the statute. 2. The trial court erred in failing to analyze the case through the lens of contract law, specifically: who are the parties to the insurance contract, and who owns the proceeds from a homeowner’s insurance contract?
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April 2020 Sosebee, et al. v. Franklin County School Board
05/06/2020
April 2020 Sosebee, et al. v. Franklin County School Board
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case KIRK SOSEBEE, ET AL. v. FRANKLIN COUNTY SCHOOL BOARD (Record Number 190620) From The Circuit Court of Franklin County; C. Perdue, Judge. Counsel Peter K. Kamakawiwoole, Jr. (Home School Legal Defense Association) and Melvin E. Williams (Mel Williams PLC) for appellants. Stephen M. Maddy (Maddy & Nester, PLLC) for appellee. Assignments of Error 1. The Circuit Court misconstrued clear statutory language in holding that the School Board’s local policy was consistent with Code § 22.1-254.1. Virginia law states that parents may homeschool when they submit a written notice containing certain statutorily-required information to their local public school Superintendent. The Sosebees gave their Superintendent a written notice with this information, and also included their child’s name, age, and home address. The School Board adopted a policy which amends the state’s homeschool statute to also require a birth certificate and proof of residency. The power to amend statutes is the power to make law; that power rests squarely and solely with the General Assembly, not school boards. 2. The Circuit Court misconstrued clear statutory language in holding that the School Board’s policy was permitted by Code § 22.1-78. School boards may adopt regulations consistent with state statutes for their own government, the management of official business, and the supervision of schools. Code § 22.1-78. The Board’s policy rejects notices of intent that otherwise comply with the homeschool statute, but nothing in that statute grants school boards or officials any discretion over the content of homeschool notices. 3. The Circuit Court erred in holding that the Board’s local policy was not ultra vires and that it was permissible because it furthered public policy. School boards only possess powers granted by the General Assembly expressly or by necessary implication. A policy that goes beyond those powers, or criminalizes lawful conduct, is ultra vires. The Board’s policy threatens families who submit all statutorily-required information with prosecution, unless they also submit a birth certificate and proof of residency.
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April 2020 Day, etc. v. MCC Acquisition, etc-
05/06/2020
April 2020 Day, etc. v. MCC Acquisition, etc-
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case DOROTHY P. DAY, SHAREHOLDER OF M.C. CONSTRUCTION INC., DISSOLVED, A NORTH CAROLINIA CORPORATION FORMERLY v. MCC ACQUISITION, LC, D/B/A VIRGINIA-CAROLINA PAVING CO., A VIRGINIA LIMITED CORPORATION (Record Number 190603) From The Circuit Court of the City of Richmond; T. Markow, Judge. Counsel Luis A. Abreu and Michael D. Simmons (Luis A. Abreu, PLLC) for appellant. J. Tracy Walker, IV and Robert W. Loftin (McGuireWoods LLP) for appellee. Assignments of Error 1. The trial court erred when it granted MCC's Motion for Summary Judgment to MCC when the court: a. failed to view the facts in the light most favorable to the nonmoving party, Day. b. failed to recognize that it could not grant summary judgment in favor of MCC as there were material facts in dispute as to MCC’s motion. c. failed to determine that the Agreement was ambiguous concerning the Excluded Assets term “stock record” and as MCC was the drafter, any ambiguity should have been resolved in favor of Day. 2. The trial court erred when it denied Day’s Motion for Summary Judgment when the trial court: a. held without sufficient evidence that MCC acquired equitable title to the Stock without endorsement or delivery, and when it held that M.C. Construction, Inc., only held a “chose in action” to the Stock which was subject to transfer without endorsement and delivery. b. failed to rule that the five-year statute of limitations for contracts and constructive trust claims based on a breach of contract barred any recovery to MCC.
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April 2020 Rowland, et al. v. Town Council of Warrenton, et al-
05/06/2020
April 2020 Rowland, et al. v. Town Council of Warrenton, et al-
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case KATHLYN ROWLAND, ET AL. v. TOWN COUNCIL OF WARRENTON, ET AL. (Record Number 190580) From The Circuit Court of Fauquier County; J. Parker, Judge. Counsel Bradley G. Pollack for appellants. Henry Cleaves Day (Attorney at Law), John H. Foote (Walsh, Colucci, Lubeley & Walsh, P.C.), Heather K. Bardot (Bancroft, McGavin, Horvath & Judkins, PC), and Whitson W. Robinson (Attorney at Law) for appellees. Assignments of Error 1. The Circuit Court erred by sustaining the demurrers to Count IX of the Amended Complaint and Count V of the Second Amended Complaint. a. Although Virginia Code §§ 15.2-2297 and 15.2-2298 (and Warrenton Zoning Ordinance § 11-3.9.17.2) allow for proffered conditions “in addition to” the requirements of an applicable zoning district, the Circuit Court allowed the Town Council to accept proffered conditions that modified or reduced the requirements of the applicable zoning district. b. The Circuit Court read the general definition in Virginia Code § 15.2-2201 to control the specific requirements for conditional rezoning set out in Virginia Code §§ 15.2-2297 and 15.2-2298, in violation of settled rules of statutory interpretation. 3. The Circuit Court erred in sustaining the demurrers to Counts I and II of the Amended Complaint. Warrenton Ordinance § 3-5.2.4.3.5 allows the Town Council to accept waivers and modifications to the PUD Development Standards at Warrenton Ordinance § 3-5.2.4.1 only upon recommendation by the Planning Commission. Here, the waivers and modifications at issue were also never presented to the Planning Commission, so the Planning Commission could not have made a recommendation. 4. The Circuit Court erred in sustaining the demurrers to Count VIII of the Amended Complaint. A criterion provided in Warrenton Ordinance § 3-5.2.4.3.2 requires that the Master Plan show an industrial planned unit development as an integrated, cohesive entity. The Council approved a master plan that did not show this. The Court determined that the Homeowners had not demonstrated a direct impact from this violation. The Homeowners were not required to demonstrate such impact.
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April 2020 International Paper Company v. County of Isle of Wight
05/06/2020
April 2020 International Paper Company v. County of Isle of Wight
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case INTERNATIONAL PAPER COMPANY, A NEW YORK CORPORATION v. COUNTY OF ISLE OF WIGHT (Record Number 190542) From The Circuit Court of Isle of Wight County; C. Eason, Jr., Judge. Counsel Craig D. Bell, E. Duncan Getchell, Jr., Robert W. Loftin, and Michael H. Brady (McGuireWoods LLP) for appellant. Andrew R. McRoberts, Debra L. Mallory, David C. Tait, and Sean M. Hutson (Sands Anderson, PC) for appellee. Assignments of Error 1. The trial court erred in holding that IP had not made a prima facie case on Counts I, II, or III, in striking and dismissing those Counts, and in relying upon the conclusion that “new taxes are required to be paid to governmental bodies,” and are generally “political decisions.” Isle of Wight’s imposition of a tax increase upon IP’s M&T, which was the subject of court-ordered and legally mandated refunds and was imposed after IP’s special damages had vested, with the purpose and effect of exacting precisely the refund amount in additional taxes, presented a prima facie case on each of these counts. 2. The trial court erred in holding that IP had not made a prima facie case on Counts IV or V, in striking and dismissing them, and in concluding that “there can [legally] be an ‘effective tax rate’ that is different than the imposed or statutorily established tax rate” for M&T. Isle of Wight’s adoption and application, without statutory authority, of a “credit” against direct tax liability, resulting in disparate direct tax burdens upon one class, including upon IP’s M&T, presented a prima facie case on both of these counts. 3. The trial court erred as a matter of law in determining the purposes of the Clawback Ordinance and Clawback Credit without regard to their effects on taxpayers, and in finding a shortfall in the general fund. On a motion to strike, the trial court must evaluate legislative purpose by its natural effect, decide no disputes of material fact, view the evidence, with all reasonable inferences drawn, in IP’s favor, to determine only whether a prima facie case exists. 4. The trial court erred as a matter of law in relying upon its findings of Isle of Wight’s purposes for the Clawback Ordinance and Clawback Credit to grant the motion to strike IP’s case-in-chief. Legitimate governmental purposes will not immunize legislative, administrative or executive acts from violating the Virginia Constitution or exceeding statutory power, as applied.
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April 2020 Byrne v. City of Alexandria
05/05/2020
April 2020 Byrne v. City of Alexandria
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case THOMAS BYRNE v. CITY OF ALEXANDRIA (Record Number 190449) From The Circuit Court of the City of Alexandria; L. Kemler, Judge. Counsel Warner F. Young, III (Allred, Bacon, Halfhill & Young, P.C.) for appellant. Amy Miller and Martin J. Amundson (Buchanan Ingersoll & Rooney PC) for appellee. Assignments of Error 1. The Circuit Court for the City of Alexandria wrongly granted the City of Alexandria’s Motion Craving Oyer. 2. The Circuit Court for the City of Alexandria wrongly granted the City of Alexandria’s Demurrer with Prejudice dismissing Thomas Byrne’s Petition for Appeal of the Decision of City Council to the Circuit Court.
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April 2020 Erie Insurance Exchange, etc. v. Alba, et al-
05/05/2020
April 2020 Erie Insurance Exchange, etc. v. Alba, et al-
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case ERIE INSURANCE EXCHANGE A/S/O CHIMNEY HILL CONDOMINIUM ASSOCIATION, INC. v. NAOMI ALBA, ET AL. (Record Number 190389) From The Circuit Court of the City of Virginia Beach; L.L. Lilley, Judge. Counsel Mark C. Nanavati and G. Christopher Jones, Jr. (Sinnott, Nuckols & Logan, P.C.) for appellant. Todd M. Fiorella and Katherine M. Lennon (Fraim & Fiorella, P.C.) for appellees. Assignment of Error 1. The Trial Court erred in granting Naomi Alba’s (“Alba”) motion for declaratory judgment, as Alba was a tenant who did not benefit from the subrogation waiver in the Declaration of Condominium.
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April 2020 Viers v. Baker
05/05/2020
April 2020 Viers v. Baker
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case SHIELA VIERS v. CHADWICK SETH BAKER (Record Number 190222) From The Circuit Court of Dickenson County; C. Gibb, Judge. Counsel Frank K. Friedman, Erin B. Ashwell (Woods Rogers, PLC), and Gerald Gray (Gerald Gray Law Firm) for appellant. Henry Keuling-Stout (Keuling-Stout, P.C.) for appellee. Assignments of Error 1. The Circuit Court erred as a matter of law by ruling that Plaintiff’s claim for slander is barred by a prosecutor’s absolute immunity. The Defendant made knowingly, false statements about Plaintiff at a Democratic Committee meeting and to Plaintiff’s friends, family, and to others, including that Plaintiff was fired because she tampered with Defendant’s computer. The statements were not connected to any criminal investigation or action. a. The Circuit Court erred in holding that Defendant’s statements at issue were directly related to Defendant’s trial duties; this is not a fair inference from the operable complaint, nor is it the prevailing law for determining whether a prosecutor is absolutely immune from suit. b. The Circuit Court erred in holding that the Defendant was acting as Commonwealth’s Attorney at all relevant times; the operable complaint alleged that Defendant was acting on personal motives and with malice. 2. The Circuit Court erred in holding that Plaintiff failed to state a claim for intentional infliction of emotional distress.
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April 2020 Padula-Wilson v. Landry, et al-
05/05/2020
April 2020 Padula-Wilson v. Landry, et al-
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case AMANDA C. PADULA-WILSON v. SCOTT DAVID LANDRY, ET AL. (Record Number 190107) From The Circuit Court of the City of Richmond; C. Maxfield, Judge Designate. Counsel Amanda C. Padula-Wilson appellant pro se. William L. Mitchell, II and Michelle Jessee (Eccleston and Wolf, P.C.), Thomas H. Roberts (Thomas H. Roberts & Associates, PC), Joseph M. Rainsbury and Tracy Taylor Hague (LeClairRyan, PLLC), Juliane C. Miller (Harman, Claytor, Corrigan & Wellman), Christopher Hassell, and Joel M. McCray and Angela Boice Axselle (Wimbish Gentile McCray & Roeber PLLC) for appellees. Assignments of Error 1. The Circuit Court erred when it granted all the Defendants demurrers and dismissed the tortious interference of parental rights claims and when it ruled that a) the tort does not exist under the fact pattern in this case b) there was absolute immunity for all of the Defendants because their out-of-court actions were in the course of judicial proceedings and c) a court ultimately made custody and visitation decisions even if the Defendants made the decisions over years, and so there was due process, no causal relationship, and no harm. 2. The Circuit Court erred when it granted Nelson’s demurrer and dismissed the defamation claims and when it ruled that her statements in emails were subject to privilege and immunity. 3. The Circuit Court erred when it granted Defendants demurrers and dismissed the negligent retention claim and when it ruled that physical injury was required and had not been pled.
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April 2020 RWW 34, et al. v. Hash Group
05/05/2020
April 2020 RWW 34, et al. v. Hash Group
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case RWW 34, LLC, ET AL. v. HASH GROUP, LLC (Record Number 181662) From The Circuit Court of Montgomery County; M. Long, Jr., Judge. Counsel B.K. Cruey, for appellants. Kendall O. Clay and Ashley L. Rudolph, for appellee. Assignments of Error 1. The trial court erred in granting Hash’s motion to dismiss on the grounds of res judicata. 2. The trial court erred in its ruling that Rule 1:6, Rules of the Supreme Court of Virginia preempts § 8.01-184, Code of Virginia, 1950, as amended, the Virginia declaratory judgment act. 3. The trial court erred in its ruling that the Appellants did not have access to their easement because the Town of Christiansburg would not grant an entrance permit which was contrary to the previous rulings of the court.
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February 2020 Loudoun County v. Richardson
04/06/2020
February 2020 Loudoun County v. Richardson
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case LOUDOUN COUNTY v. MICHAEL RICHARDSON (Record Number 190621) From The Court of Appeals of Virginia. Counsel Justin R. Main (Siciliano, Ellis, Dyer & Boccarosse PLC) for appellant. James E. Swiger (The Law Office of James E. Swiger, PLLC) for appellee. Assignment of Error 1. The Court of Appeals erred in affirming the Workers’ Compensation Commission’s finding that Richardson’s functional loss of use under Virginia Code § 65.2-503 should be measured by his impairment before undergoing the hip joint replacement.
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February 2020 Caldwell v. Commonwealth.
04/06/2020
February 2020 Caldwell v. Commonwealth.
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case CANDACE RENE CALDWELL v. COMMONWEALTH OF VIRGINIA (Record Number 190541) From The Court of Appeals of Virginia. Counsel Rick Boyer (Integrity Law Firm, PLLC) for appellant. Tiffany J. Bennett (Office of the Commonwealth’s Attorney) for appellee. Assignment of Error The trial court improperly convicted Caldwell of defrauding an innkeeper by obtaining food with intent not to pay therefor, in violation of Code of Virginia 18.2-188. Code of Virginia § 18.2-188 requires that a defendant have the intent to defraud when the benefit is obtained. The Court stated that even if Caldwell did not have the intent to defraud when she obtained the benefit, when she was later asked to pay and refused, she formed the intent to defraud, and convicted Caldwell. The Court did not find that Caldwell possessed the requisite intent at the time she obtained the benefit, as required by the statute. Accordingly, Caldwell’s conviction is improper and should be overturned. There was no transcript made of the trial, and no mention was made in the parties’ initial Statement of Facts in Lieu of Transcript that the objection was specifically preserved at trial. However, the Court of Appeals found that there was sufficient evidence in the record to determine that Caldwell’s objection was preserved by her counsel at trial. Caldwell argues that, given the trial court’s error of law, the ends of justice militate in favor of this Court’s granting her appeal despite the lack of a record in the initial Statement of Facts indicating that the objection was specifically preserved by her trial counsel. The Court of Appeals erred in not finding that the judge’s clearly erroneous statement of law did not constitute reversible error.
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February 2020 Stephens v. Clarke
04/06/2020
February 2020 Stephens v. Clarke
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case ANDREW C. STEPHENS v. HAROLD CLARKE, DIRECTOR (Record Number 190510) From Circuit Court for the City of Newport News; T. Fisher, Judge. Counsel Jonathan P. Sheldon (Sheldon & Flood, P.L.C.) for appellant. Lauren C. Campbell (Office of the Attorney General) for appellee. Assignments of Error 1. The circuit court erred when it found that trial counsel was not ineffective under the Virginia Constitution and the Sixth Amendment to the United States Constitution for failing to sufficiently investigate R.S.’s symptoms, consult with appropriate experts, and present the investigation, evidence, and expert opinions to the jury. a. The circuit court erred when it failed to find trial counsel ineffective for failing to present the opinion of neurosurgeon Dr. Joseph Dilustro regarding the age and onset of R.S.’s brain bleeding. b. The circuit court erred when it failed to find trial counsel ineffective for failing to present the opinion of an expert neurosurgeon regarding the age and onset of R.S.’s brain bleeding. 2. The circuit court erred when it found that trial counsel was not ineffective under the Virginia Constitution and the Sixth Amendment to the United States Constitution for failing to object to the Commonwealth’s expert testifying to the ultimate issue in this case.
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February 2020 Lambert v. Commonwealth
04/06/2020
February 2020 Lambert v. Commonwealth
This podcast is provided by Ben Glass and Steve Emmert - Granted Appeal Summary Case CLINARD GARY LAMBERT v. COMMONWEALTH OF VIRGINIA (Record Number 190439) From The Court of Appeals of Virginia Counsel Robert M. Galumbeck (Galumbeck & Kegley, Attorneys) for appellant. Rachel L. Yates (Office of the Attorney General) for appellee. Assignment of Error 1. The Court of Appeals erred in its judgment, ruling and order setting the standard of proof regarding whether a defendant “self administered” the drug which he is under the influence of, for purposes of Virginia Code sections 18.2-266 and 18.2-36.1. 2. The Court of Appeals erred in its judgment, ruling and order that the evidence presented in the trial court was sufficient to prove, beyond a reasonable doubt, that Lambert had self administered the drugs which impaired his ability to drive safely. 3. The trial court erred in its judgment, ruling and order in which it found that the Commonwealth had proved beyond a reasonable doubt that Lambert had self administered the drugs which impaired his ability to drive safely.
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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.
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