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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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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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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