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                                       Welcome to the Salem/Roanoke County Bar Association's Blog


Here you will find posts on areas of the law relevant to attorney's in the Roanoke Valley, such as news stories, notices of new opinions from Virginia's appellate courts, and important opinions from the US Supreme Court and the 4th Circuit Court of Appeals.  Suggestions for posts may be sent to srcba@srcba.org


August 22, 2017 7:55 AM


The Salem/Roanoke County Bar Association is saddened to report the passing of the Honorable John L. Apostolou, retired judge of the 23rd Judicial District of Virginia General District Court on August 21, 2017, after a long illness.
Judge Apostolou retired from the bench in 1996 after more than a decade of service to the citizens of the Roanoke Valley.  He received both his undergraduate and law degrees at the College of William and Mary.  During the 1960s he spent time as an assistant commonwealth's attorney in Roanoke and was appointed acting judge of the Juvenile Court twice during that decade.  He also was substitute General District Court judge before taking the position full time in May 1985. During his career, he earned the title of "law-and-order judge," a reference he welcomed.  Referring to defendants who appeared before him as juveniles and then adults, he once observed that "[i]f we … do nothing, we become enablers, just like their parents.  No one is behind us. We do them a disservice if we do nothing. A long sentence is not necessary, but some sentence is." 
Arrangements are being handled by Oakey's South Chapel. 


June 13, 2017 10:30 AM


The United States Supreme Court has reversed the lower federal courts which granted habeas relief to a juvenile defendant who had been sentenced to life.  In Virginia v. LeBlanc, a US district judge and the Fourth Circuit had ruled against the Commonwealth by finding that geriatric release was not a meaningful avenue for parole under Graham v. Florida, 560 U. S. 48 (2010), but today the Supreme Court rules that those decisions didn’t afford sufficient deference to the state courts’ conclusion on the constitutionality of Virginia’s sentencing scheme.  The per curiam opinion notes, however, that if the issue were to be raised in a direct appeal (and it already has), such deference would not apply.  Stay tuned!


The Supreme Court of Virginia has taken the extraordinary step of issuing a pre-filing injunction against a pro se litigant for filing repetitive and vexatious appeals.  Dora L. Adkins has filed more than two dozen appeals in recent years arising from more than 40 civil cases filed in the circuit courts of Northern Virginia jurisdictions.  The Court held that "[t]hrough her behavior over the past eight years, Adkins has unduly burdened opposing litigants and interfered with the administration of justice."  Under the injunction, Adkins will now be required to obtain permission from the Court before filing additional pro se pleadings in the Court.  While a pre-filing injunction does not bar a party from seeking to file pleadings, it creates a buffer between the vexatious litigant and other parties.


Here are the official summaries of opinions issued by the Court so far in 2017:


161013 Commonwealth v. Moseley 06/08/2017 Convictions for burglary and larceny are affirmed. In a circumstantial case, the Commonwealth must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with guilt, which requires an unbroken evidentiary chain of necessary circumstances showing that both the corpus delicti and the criminal agency of the accused have been proved to the exclusion of any other rational hypothesis and to a moral certainty. Here, the totality of the evidence was sufficient for a rational factfinder to reject the defendant's hypothesis that someone else was the criminal agent who placed stolen items in a vehicle linked to him by documentary and testimonial evidence. As the prevailing party below, the Commonwealth is entitled to the benefit of all reasonable inferences that flow from the evidence. The Court of Appeals’ conclusion that the circumstantial evidence failed to link defendant to the offenses beyond a reasonable doubt resulted from a fragmented assessment of the record, and a failure to afford proper deference to the province of the factfinder, who here could reasonably reject the defendant's theories and find that the totality of the suspicious circumstances proved beyond a reasonable doubt that defendant was the criminal agent in each of the offenses charged. The circuit court’s finding to that effect was therefore not plainly wrong or without evidence to support it. The judgment of the Court of Appeals is reversed, and final judgment reinstating the convictions is entered on this appeal.

160414 Howsare v. Commonwealth 06/01/2017 In a homicide case, the circuit court did not err in instructing the jury on the element of intent. While the intent instruction could have been amended to include reference to the defendant's "acts, conduct and statements," where other instructions fully and fairly cover the principles of law governing the case, the trial court does not err in refusing an additional instruction language on the same subject. In light of the separate instruction regarding jury consideration of the defendant's statements, the instructions, taken as a whole, stated the law clearly and covered all issues fairly raised by the evidence. The argument that the intent instruction was not a model jury instruction is without merit, since Code § 19.2-263.2 expressly provides that an instruction that accurately states the law applicable to the case shall not be withheld for that reason. The judgment of the Court of Appeals upholding the conviction is affirmed.

160619 Hackett v. Commonwealth 06/01/2017 In a criminal appeal, the Court of Appeals of Virginia did not err in affirming the defendant’s conviction and sentence, and affirming the trial court’s refusal to set aside the conviction and sentencing orders after concluding that it had lost jurisdiction to modify them pursuant to Rule 1:1. In this case, the conviction order and the sentencing order were entered in 2009 and neither was modified, vacated or suspended within 21 days after their entry. Accordingly, they became final and the trial court lost jurisdiction to modify the conviction in this case. An oral understanding of the trial court, prosecutor, and defense counsel not embodied in a plea agreement or an order suspending, modifying or vacating the conviction and sentencing orders did not afford jurisdiction to the trial court to enter the relief sought long after the orders were entered. Neither the entry of orders nunc pro tunc nor the doctrine of orders void ab initio applies here. The judgment of the Court of Appeals upholding the circuit court's disposition is affirmed.

160814 Desai v. A. R. Design Group 06/01/2017 Considering the validity of mechanic's liens on two properties, the supporting memoranda either complied with the statute outright or were in substantial compliance with the statutory requirements. A mechanic’s lien may be perfected on an equitable as well as on a legal estate, and the memoranda properly identified the current trustee with legal title and the person holding the right to sell or encumber the properties, as the “owner” of the properties. Adding the word “trustee” was not necessary, and absence of the word “trustee” would not have negatively impacted an index search in this case. Signature on the memoranda by a vice president of the company on the claimant line, crossing out the agent option, did not cause the trustee any prejudice and it was sufficient to fulfill the purposes of the statute. The lienor here was not claiming any interest, and the contents of a memorandum specified by Code § 43-5 do not include a requirement that the memorandum expressly list the time or times when the amount is or will be due and payable. The memoranda in this case were substantially compliant because they closely tracked the form required by Code § 43-5, they provided sufficient notice that the owner was claiming amounts due, and any defect would not thwart an underlying purpose of the statute, such as providing notice to third parties. Therefore, the lienor is entitled to the safe harbor provided by Code § 43-5. The judgment of the circuit court upholding the liens is affirmed.

160879 Commonwealth v. White 06/01/2017 In a prosecution for possession of heroin with the intent to distribute, the alleged error of the circuit court in failing to suppress evidence found in a motel room near the parking lot where defendant was arrested was harmless as a matter of law. The record in the case confirms beyond a reasonable doubt that a rational factfinder would have found the defendant guilty absent the claimed error, in light of the limited role that the challenged evidence played at trial, coupled with the overwhelming and unchallenged evidence of defendant's guilt. Thus, applying the standard for review of alleged constitutional errors, the claimed error of trial court was harmless as a matter of law, and the contrary holding of the Court of Appeals is reversed. The remaining portion of the Court of Appeals' decision addressing the trial court’s denial of the defense motion to suppress the evidence found in the motel room is vacated is moot. Defendant's conviction for possession of heroin with the intent to distribute, third or subsequent offense, is reinstated.

161002 Epps v. Commonwealth 06/01/2017 In a felony criminal case where the indictment was returned by a grand jury as a true bill in open court but not recorded by order until weeks after trial on the charges, and no objection was made to the indictment until after trial, the indictment was not invalid. There is no time requirement for entry of an order recording the return of an indictment in open court. The Code of Virginia evinces a clear legislative policy that the requirement of an indictment in the prosecution for a felony may be waived, and hence is not jurisdictional. Thus, failure of the record to show affirmatively that the indictment was returned into court by the grand jury is not such a defect as will render null and void the judgment of conviction based thereon. Defendant was subject to the requirement of Rule 3A:9(b)(1) and (c) to challenge the indictment at least seven days before his trial, which he concedes he did not do. Because he did not argue that there was good cause to excuse this failure as provided in Rule 3A:9(d), he waived the right to object to the indictment.

160852 Manu v. GEICO Casualty Co. 04/27/2017 The circuit court did not err in sustaining a demurrer to a claim for damages predicated on Code § 8.01-66.1, alleging that an uninsured motorist insurance carrier violated its duty of good faith by refusing to pay its policy limits prior to the insured obtaining a judgment against the uninsured tortfeasor. The condition precedent to the carrier’s obligation to pay its insured is that the insured obtain a judgment against the uninsured tortfeasor whose actions come within the purview of the policy. Code § 8.01-66.1(D) does not impose any additional conditions upon insurers, but rather provides a remedy against insurers who arbitrarily refuse to pay claims they owe under the terms of the insurance contract. The present complaint failed to state a cognizable claim, and the circuit court did not err in sustaining the insurer's demurrer.

160813 Hale v. Town of Warrenton (ORDER) 04/20/2017 In a wrongful termination action converted to an application for writ of mandamus for reappointment to a position with the defendant town, the circuit court erred in sustaining the town's demurrer. The factual allegations, viewed in the light most favorable to the plaintiff at the demurrer stage, supported the reasonable inference that the Town Manager’s actions in hiring the plaintiff as the sole building official for the town on a full-time basis — subject only to a six-month at-will, probationary period — could be construed as a permanent appointment upon the expiration of that probationary status. The circuit court thus erred in concluding that plaintiff failed to plead sufficient allegations of material facts to withstand the town’s demurrer. The judgment of the circuit court is reversed, and this case is remanded for trial.

160013 Westlake Legal Group v. Flynn 04/13/2017 In an appeal by an attorney from an award of sanctions against him arising out of his efforts to collect fees and costs from a client, the award is affirmed. The attorney had a duty under Code § 8.01-271.1 not to file any pleading, motion or other paper unless he had read it, and to the best of his knowledge, information and belief formed after reasonable inquiry it was well grounded in fact and warranted by law. He filed a suggestion in garnishment to divert the client’s wages in an effort to enforce a judgment that had been void by operation of law for more than a year, a situation a reasonable inquiry would have disclosed. His breach of that duty resulted in harm to the client consisting of attorney’s fees, costs and expenses including those incurred by reason of the attorney’s meritless appeal. The judgment of the circuit court is affirmed, and the case is remanded with direction, after due notice and hearing, to impose such additional sanctions as the court finds appropriate to recompense the client’s additional expenses, including reasonable attorney’s fees, incurred by reason of this appeal.

160269 Lambert v. Sea Oats Condo. Ass'n 04/13/2017 In a suit where a condominium unit owner prevailed on a claim against the condominium association for the full amount of the $500 sought in damages, but the circuit court only awarded her $375 in attorney's fees out of more than $9,500 sought under the provisions of Code § 55-79.53(A), the circuit court abused its discretion by failing to consider seven relevant and non-exclusive factors that should have been given significant weight, including the results obtained in the action, and the damages awarded in comparison to the damages sought. Where, as here, a statutory basis for fee recovery applies, a court may not simply conclude that many thousands of dollars in legal fees are per se unreasonable where the claim is as small as $500. A party seeking to recover fees as the prevailing party in a litigation need not prove the attorney's fees in her case in chief, and it is often appropriate to delay the issue of awarding attorney’s fees until the disposition on the merits reveals which party has actually prevailed. That is why Rule 3:25(D) allows a trial court to establish a procedure before trial for deciding attorney’s fees in cases where they may be awarded. Nor is it necessary for a party to provide advance notice of the amount of fees it will seek if successful. The party who may be entitled to an award of attorney’s fees is merely required to notify the opposing party that it will seek them if it prevails, as required by Rule 3:25(B). The judgment is affirmed in part and reversed in part, and the case is remanded.

160349 Chamberlain v. Marshall Auto & Truck Ctr. 04/13/2017 The circuit court erred in holding that a surety who was an accommodation guarantor of a promissory note was not entitled to judgment against the maker of the note under Code § 49-27 upon default by the maker and seizure of collateral by the lender. This statute makes no distinction between compensated and uncompensated sureties, and the right to reimbursement is expressly available to any person liable as a guarantor. Here, if plaintiff made any gift at all it was in his decision to act as an accommodation surety rather than a compensated surety. Neither party testified that plaintiff agreed not to seek reimbursement if the collateral was drawn down by the lender, and the record does not contain any evidence that he waived his rights under Code § 49-27. The facts here triggered a right to reimbursement under this section, with interest from the time of payment, and five percent damages on such amount, and he is entitled to judgment. The judgment is reversed and the case is remanded for determination of the amount which is due to the plaintiff under the statute.

160458 Hilton v. Commonwealth 04/13/2017 In the trial of a defendant on multiple charges, including carjacking and use of a firearm in the commission of that felony, a rational factfinder could easily have concluded on the facts that – between the time defendant took the victim's truck keys at gunpoint and the time the victim was forced back into his truck, however brief that period of time may have been – defendant intentionally and temporarily seized control of the victim’s truck through the use of a firearm and thereby depriving him of possession or control of the truck, in violation of Code § 18.2-58.1. Thus, the trial court did not err in denying defendant’s motion to strike the evidence supporting the carjacking charge and a related firearm charge because the evidence was sufficient for the jury to find him guilty of these offenses. Nor did the court abuse its discretion in refusing the defendant's proffered jury instruction on carjacking, in light of a model instruction the trial court granted, which fully and accurately covered the carjacking offense. The convictions are affirmed.

160495 Toraish v. Lee 04/13/2017 In a medical malpractice wrongful death action against an otolaryngologist, an opinion offered by defendant's expert witness, a pediatric geneticist, based on a "differential diagnosis" purporting to establish that the decedent died of a syndrome relating to genetic defects properly considered in the report by a physician who conducted an autopsy, but those conclusions did not exclude respiratory compromise as alleged by the plaintiff as a cause of death, and thus the witness’ differential diagnosis was founded upon an assumption not established in the trial, and it was an abuse of discretion to permit the geneticist's testimony. A deposition of another physician – taken after the witness formed his opinion – was also not a basis for the defense expert's proffered opinion. Thus, it was an abuse of discretion to permit this testimony. However, the defendant doctor's own testimony regarding the circumstances that impacted or would have impacted his decision to perform surgery was not expert opinion but, instead, factual testimony, and its admission was not an abuse of discretion. Accordingly, the circuit court did not abuse its discretion by admitting the defendant's own testimony. The judgment is reversed and the case is remanded for a new trial.

160606 Shepherd v. Conde 04/13/2017 In a declaratory judgment action under the Virginia Property Owners' Association Act, Code §§ 55-508 to 55-516.2, the circuit court erred in ruling that a recorded declaration for a six-lot subdivision was not enforceable under the Act, and that an unincorporated architectural control committee created by that instrument failed to qualify as a property owners' association under the Act. A declaration must expressly both impose responsibilities and authorize assessments before an entity qualifies as a property owners’ association under the Act. Here, the demarcation of a road as an easement on the plat incorporated into the declaration was sufficient to fulfill the designation requirement for a common area, and the terms of the declaration expressly impose upon the architectural control committee a duty to maintain the road and authorize it to impose assessments for the costs of such maintenance. Consequently, both the declaration and the committee fulfill the qualifications imposed by the Act. However, all references in the declaration to any entity having power or responsibility under the Act refer to the architectural control committee, not an unincorporated property owners’ association, and nothing in the declaration either imposes upon the association a duty to maintain the road or authorizes it to impose assessments for road maintenance costs. This association therefore does not qualify as a property owners’ association under the Act, and the circuit court did not err by so ruling. The judgment is affirmed in part, reversed in part, and the action is remanded.

160665 Kim v. Commonwealth 04/13/2017 In a case charging unlawful refusal to submit to a blood alcohol breath test, after the Commonwealth initially offered proof of public access to the roads of a private apartment complex where defendant's car was located, creating a presumption that this "way" was a public highway under Code § 46.2-100, the trial court failed to give proper consideration to defendant's proof regarding "No Trespassing" signs posted at every vehicular entrance to the complex, and erred in focusing on the fact that no one has ever been prosecuted for trespassing on the apartment complex roadways. A general restriction on public access is sufficient to rebut the presumption of public access, and once the area has been shown to be restricted, this includes the roads found therein. Accordingly, the defendant in this case met the burden of rebutting the presumption that the location where his car was parked is a highway pursuant to Code § 46.2-100. Thus, the implied consent statute had no applicability and he was not required to submit a breath sample. Judgment finding unreasonable refusal to submit a breath sample under Code § 18.2-268.3 is reversed, and the warrant is dismissed.

160777 Lafferty v. School Board 04/13/2017 In a declaratory judgment action against a school board involving claims by a student at a public high school, by and through his parents as next friends, alleging distress over potential repercussions from the school board’s expansion of its anti-discrimination and anti-harassment policy, the student lacks standing to seek this relief, and neither his parents, individually, nor a third resident of the county have taxpayer standing. Because the plaintiffs failed to allege an actual controversy sufficient to bring a declaratory judgment action, the trial court did not err in finding that none of the plaintiffs have standing, and they likewise may not recover the injunctive relief requested therein. The judgment of the circuit court dismissing the action is affirmed.

160805 Nationwide v. Erie Ins. Exchange 04/13/2017 In a declaratory judgment action involving five insurance policies issued to a contractor and a subcontractor whose employee was involved in a fatal accident while driving a loaned vehicle, seeking determination of priority among the policies, the defendant insurer's commercial general liability policy excludes coverage for bodily injury arising out of the use of an automobile, and the trial court erred in finding otherwise. Also, an indemnification agreement between the contractor and subcontractor does not apply; thus, the trial court erred in finding that it required all three of the defendant insurer's policies to provide coverage ahead of the plaintiff insurer’s two policies. The plaintiff insurer's automobile policy for the contractor provides primary insurance coverage for anyone permissively using a covered auto, up to its coverage limit of $1,000,000. The defendant insurer's automobile policy for the subcontractor provides coverage for use of covered but non-owned automobiles as excess over any other collectible insurance, and applies since its employee was driving a “covered auto” that the subcontractor did not own. Thus, this auto policy provides excess coverage, up to $1,000,000, after exhaustion of the plaintiff insurer's auto policy. Also, the provisions of each insurer’s “excess insurance” clause in the two umbrella policies are irreconcilable and mutually repugnant, and pro rata distribution from both policies is thus appropriate as the third coverage priority. The judgment is reversed and final judgment is entered.

160381 Moonlight Enterprises v. Mroz 03/30/2017 In a legal malpractice action, dismissal of claims against one of the defendants on statute of limitations grounds is affirmed, but dismissal of claims against the second defendant is reversed. Under the continuous-representation rule, when malpractice is claimed to have occurred during the representation of a client by an attorney with respect to a particular undertaking or transaction, the statute of limitations begins to run when the attorney’s services rendered in that connection have terminated, notwithstanding the continuation of a general attorney-client relationship, and irrespective of the attorney’s work on other undertakings or transactions for the same client. The circuit court in this case correctly found that the three-year limitation period barred malpractice claims against the first attorney because his work on the particular undertaking at issue had ceased more than three years before plaintiff filed the present malpractice action. It erred in regard to the second defendant, however, since he continued to render services with respect to the undertaking involved until four days after the date a judgment order was actually entered, and the present action was filed three years to the day after that judgment was entered. The judgment is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent with this opinion.

160277 Coutlakis v. CSX Transportation, Inc. 03/09/2017 In a wrongful death case, the decedent’s continuing negligence to the time of the death did not bar the use of the last-clear-chance defense. Where the plaintiff’s decedent has negligently placed himself in a situation of peril from which he is physically able to remove himself, but is unconscious of his peril, the defendant is liable only if he saw the plaintiff and realized, or ought to have realized, his peril in time to avert the accident by using reasonable care. Once the injured party’s contributory negligence is established, application of the doctrine turns on which party, if any, had the last clear chance to avoid the accident. Here, the amended complaint was sufficient to state facts necessary for application of the last clear chance doctrine, and the fact that the negligence of the decedent in this case continued up to the point of the accident, without more, does not bar the application of the last clear chance doctrine. The judgment below, sustaining the defendants’ demurrer, is reversed and the case is remanded.

151955 Verizon Online v. Horbal 03/02/2017 In proceedings relating to the collection of personal property tax on television set top boxes used in providing cable television service, for a three-year period, the judgment of the circuit court upholding a determination by the State Tax Commissioner that the set top boxes are not subject to local taxation is affirmed, because these items used in the cable television provider's business – while tangible in fact – are statutorily defined as intangible personal property not subject to local taxation under Code § 58.1-1101(A)(2a). That portion of the circuit court's decision finding that the cable service provider was not entitled to recover refunds of taxes for two of the years for failure timely to appeal the decision of the local commissioner of revenue is reversed because that argument was not preserved in arguments before the Tax Commissioner, and thus could not be raised in an appeal thereafter to the circuit court. The judgment is affirmed in part and reversed in part, and the matter is remanded for completion of the refunds. Combined case with Record No. 151956 


151956 Horbal v. Verizon Online 03/02/2017 In proceedings relating to the collection of personal property tax on television set top boxes used in providing cable television service, for a three-year period, the judgment of the circuit court upholding a determination by the State Tax Commissioner that the set top boxes are not subject to local taxation is affirmed, because these items used in the cable television provider's business – while tangible in fact – are statutorily defined as intangible personal property not subject to local taxation under Code § 58.1-1101(A)(2a). That portion of the circuit court's decision finding that the cable service provider was not entitled to recover refunds of taxes for two of the years for failure timely to appeal the decision of the local commissioner of revenue is reversed because that argument was not preserved in arguments before the Tax Commissioner, and thus could not be raised in an appeal thereafter to the circuit court. The judgment is affirmed in part and reversed in part, and the matter is remanded for completion of the refunds. Combined case with Record No. 151955 


160202 Boasso America v. Chesapeake 03/02/2017 To initiate a proceeding under Code § 15.2-2314 to review a board of zoning appeals decision, a petitioner must name the necessary parties in the caption of the petition or in the body of the petition, and the petitioner must serve a proper petition within the 30-day window provided by that statute. The governing body for the locality served by the BZA is a necessary party under Code § 15.2-2314, and a litigant may not amend the petition after the 30-day period to belatedly add the necessary parties identified in Code § 15.2-2314. In this case, the judgment of the circuit court, which dismissed a petition for writ of certiorari for failure to name the local governing body in the petition and denied the petitioner leave to amend after the 30-day period had expired, is affirmed.

160305 Mount Aldie v. Land Trust of Virginia 03/02/2017 In an action seeking an injunction for restoration of property to its former state, or an award of damages sufficient for that purpose, the circuit court erred in its construction of a conservation easement at issue, and in its related findings. This case presents genuine issues of disputed material facts over whether the defendant breached the provisions of the easement thus precluding an award of partial summary judgment. On the record presented, the disputes center on questions involving the condition of an identified trail area before the defendant conducted what is described as buffer work, the specific nature of the work that the defendant performed in that area, and the use that could be made of the trail after the work was completed. Only after both sides are allowed to fully and fairly present their evidence to a factfinder can those issues be resolved through the application of the plain language of the easement as here construed. The judgment of the circuit court granting partial summary judgment to the plaintiff is reversed, and this action is remanded for further proceedings consistent with this opinion.

160267 Francis v. Nat'l Accrediting Commission 02/23/2017 In a wrongful termination action, the circuit court did not err in sustaining a demurrer to an amended complaint alleging a claim under the exception to the at-will employment doctrine based on violation of public policy by the employer. In this case, the plaintiff's wrongful discharge claim was based on alleged retaliation against her for exercise of her statutory right to obtain a protective order against threats of violence by a co-worker, but she did not allege that her termination itself violated the public policy stated in the protective order statutes by somehow endangering her health and safety. Nor did she allege that the employer prevented her from exercising her rights under the protective order statutes – rather, she only alleges that she was terminated because she exercised her rights under them. No generalized cause of action for the tort of retaliatory discharge has been recognized in Virginia. There is no public policy violated by the termination of plaintiff's at-will employment and thus she has failed to state a claim under this theory. The judgment dismissing the amended complaint with prejudice is affirmed.

151779 Forest Lakes v. United Land Corp. 02/16/2017 In an action by two property owners’ associations against various owners and developers of parcels of land in a shopping center development, claiming that the center’s sediment basins discharged sediment into a creek that flowed into a lake owned by the property owners’ associations, the circuit court did not err sustaining pleas in bar of the statute of limitations brought by the shopping center parties, because the incursion of sediment had been occurring for more than five years prior to the suit being filed, injuring the plaintiffs’ property. The judgment dismissing the action on statute of limitations grounds is affirmed.

160242 The Funny Guy v. Lecego 02/16/2017 The circuit court did not err in dismissing a suit for breach of an oral contract on res judicata grounds based upon the prior dismissal of an action alleging breach of a purported agreement settling claims made under that contract for amounts due. Rule 1:6 was meant to echo and implement the joinder principles of Code §§ 8.01-272 and 8.01-281, and their companion, Rule 1:4(k). If alternative claims qualify for joinder under the “same transaction or occurrence” standard in these joinder statutes and this Rule, they likewise constitute res judicata under the same standard in Rule 1:6 unless a qualifying principle of res judicata applies. The trial court correctly applied Rule 1:6, which prohibited plaintiffs from filing two separate lawsuits when one would have been perfectly sufficient. Because plaintiffs could have joined all three of its claims in a single suit and no qualifying principle of res judicata applies, Rule 1:6 prohibited them from filing a second suit after losing its first suit on the merits. The judgment dismissing the case on res judicata grounds is affirmed.

160311 Ricketts v. Strange 02/16/2017 A plaintiff who was allegedly injured in an automobile accident but filed for bankruptcy and obtained a discharge prior to commencing suit, lacked standing to pursue the personal injury action because she failed adequately to schedule and describe the potential negligence claim in her Chapter 7 federal bankruptcy filings, as needed in order to exempt and reserve that claim from the bankruptcy proceeding. Since she lacked standing to bring this claim herself, the circuit court did not err in denying leave to amend the complaint to name the bankruptcy trustee as the plaintiff, or to substitute the trustee for the named plaintiff. The judgment of the circuit court dismissing the action with prejudice is affirmed.

151450 Oprisko v. Director 02/09/2017 In a habeas corpus petition, the circuit court did not err in denying the sole claim for relief, arguing that the doctrine of Florida v. Jardines, 569 U.S. 1 (2013), that use of a drug-sniffing dog on a homeowner’s porch is a search within the meaning of the Fourth Amendment applies retroactively. On the contrary, this decision by the Supreme Court of the United States announced a new rule of constitutional law that was not dictated by precedent – indeed the large majority of federal appellate courts and state courts of last resort had reached a contrary conclusion under prior law – and therefore the habeas court did not err in determining that the decision does not apply retroactively to convictions such as petitioner’s, which became final prior to its issuance. Since the only fact relevant to the retroactivity determination was the date on which the petitioner's conviction became final, which was in the record and uncontested, the habeas court did not abuse its discretion in determining that the pure question of law presented by this habeas claim could be resolved solely on the recorded matters and a plenary hearing was unnecessary. The judgment denying a writ of habeas corpus is affirmed.

131385 Jones v. Commonwealth 02/02/2017 In review of a motion to vacate sentence, on remand from the United States Supreme Court, the argument that this defendant's life sentence was a mandatory life sentence in violation of Miller is rejected. The holding of the prior appeal in this matter that, under Virginia law, the trial court had the ability under Code § 19.2-303 to suspend part or all of the life sentence, and thus, the sentencing scheme applicable to the present movant's conviction was not a mandatory life without the possibility of parole scheme, is reaffirmed. In Virginia, a Miller violation can be addressed on direct review or in a habeas proceeding. Because the violation, if proven, does not render the sentence void ab initio but merely voidable, it cannot be addressed by a motion to vacate filed years after the sentence became final. Having reconsidered the prior decision in light of Montgomery, its holdings are reinstated subject to the qualifications made in the present opinion, and the trial court’s denial of the motion to vacate is affirmed.

151985 Mayr v. Osborne 02/02/2017 In a case arising from surgery where the surgeon mistakenly fused the wrong level of the patient's spine, the law confined plaintiff to recovery under a negligence theory because the surgeon’s actions did not constitute a battery. The judgment of the circuit court for the plaintiff on a battery theory of liability is reversed.

151111 Lindsey v. Commonwealth 01/19/2017 (Revised 03/13/2017) The Court of Appeals did not err in concluding that a defendant’s due process rights were not violated by a jury instruction concerning willful concealment of goods or merchandise while on the premises of a store. The jury was instructed that willful concealment of goods while on the premises of a store is evidence of intent to convert and defraud, which was a proper statement of the law under Code § 18.2-103. The instructions given reinforced the Commonwealth's burden of proving each element beyond a reasonable doubt, and did not state that willful concealment alone satisfied the burden of proof as to the element of intent. The instruction used in this case merely created a permissible inference that the jury was free to reject, not a mandatory presumption and, accordingly, the trial court did not err in giving it to the jury. On the whole, the instructions given by the trial court, including the finding instruction, fully and fairly covered the inferences permitted from evidence presented of willful concealment. Accordingly, the trial court did not err in refusing to give the defendant’s proffered alternative instruction. The judgment of the Court of Appeals upholding the conviction is affirmed.


January 24, 2017 8:30 PM


The Association has been asked to make our members aware of two career opportunities.  First, the Judges of the the 23rd Circuit of Virginia are requesting applications for consideration of the appointment of substitute judges in the district courts.  Applications are due by February 17, 2017.


Also, the Social Security Administration is collecting resumes for potential openings for Attorney Advisors (the SSA equivalent of a staff attorney).  Applications and resumes must be submitted by February 2, 2017, however the positions will not be filled until the hiring freeze on federal employment is lifted.


January 23, 2017 8:50 AM


The Supreme Court of Virginia and the Court of Appeals of Virginia were closed Monday, January 9, and closed early Friday, January 20.  Therefore, any pleadings that would have been due in either court on those dates became due the next business day.  Please note that a closing does not extend any filing deadline other than on occurring on the date of the closing.


January 13, 2017 10:45 AM


The 23rd Circuit Court of Virginia has issued an advisory letter regarding venue in criminal cases where the alleged activity takes place in the Roanoke County Courthouse and Salem/Roanoke County Jail.  In brief, the letter expresses the view that venue is proper in either Roanoke County or Salem. 


January 10, 2017 2:00 PM

The Court of Appeals of Virginia released its first opinion of 2017 today.  In Coffman v. Commonwealth, the Court upheld the admission of a BAL analysis of a blood sample where the evidence showed that the smaple was taken by a registered nurse.  Although the nurses was not designated by order of a circuit court to draw blood, the Court held that Code § 18.2-268.5 properly authorizes registered nurses, by virtue of their licensure, to withdraw blood for purposes of establishing the blood alcohol content.


January 4, 2017 2:45 pm

Registration is now open for the Solo & Small-Firm Practitioner Forum in the Grand Ballroom of the Holiday Inn in Downtown Lynchburg. The program will take place on Friday, April 7, 2017. Here is the online registration link.


State police have revealed that Judge Nathan Curtis Lee, the Prince George County Circuit Court Judge who was found dead in his office on New Year's Day, committed suicide.  


January 3, 2017 10:17 AM

Upcoming State Holidays will Close Courts  January 13, Lee-Jackson Day, and January 16, MLK Day, are legal state holidays.  As a result, all state courts in the Commonwealth will be closed for a four-day weekend.  Accordingly, pursuant to Code § 1-210(B) the time for filing any pleading to be filed (or other act required to take place during the course of a judicial proceeding) will be extended to the next day that the office of the clerk of the court in which the proceeding is set is open for a full day.  Keep in mind that weather-related closing of specific courts may also impact filing deadlines.  Note, however, that some clerk's offices, including the Clerk of the Supreme Court of Virginia, do not consider a delayed opening as subject to Code § 1-210(B).


January 2, 2017 1:12 PM

Circuit Court Judge Nathan Curtis Lee, of Hopewell, was found dead in his office at the Prince George County Courthouse Sunday night, according to Prince George County Police. Foul play was not suspected in the 60-year-old judge's New Year's Day death, according to investigators.


January 1, 2017 1:38 PM

A Happy New Year to all our readers!  While the holidays meant that there as little transpiring in the local courts of the Roanoke Valley, on December 27, 2016, the Supreme Court of Virginia posted the final granted cases of 2016.  Because the orders went out before Christmas, some appellant's attorney's had a merrier holiday as a result.  On December 29, 2016, the Court also released its final opinion of the year.  In Payne v. Commonwealth, the Court delivered a belated lump of coal to Payne, affirming the refusal of the circuit court to give a proffered jury instruction on eyewitness identification. 


December 20, 2016 3:21  PM

The Supreme Court of Virginia posted eight new notices of appeals granted, including an appeal challenging the granting of an order of entry permitting Atlantic Coast Pipeline, LLC to go upon private property against the landowners' wishes pursuant to Code § 56-49.01.  The principal issue in the appeal is whether the pipeline company satisfied the requirement of the statute that notices of intent to enter must specify "the date of the intended entry."  


December 20, 2016 11:17 AM

The Court of Appeals of Virginia released two published opinions today, one of which was an omnibus opinion combining six separate appeals by two appellants.  In Rudolph v. Department of Social Services, City of Newport News, the Court considered six challenges to the jurisdiction of the circuit court to hear cases on appeal from the J&DR court. The appellants argued that the form petitions signed by nonattorney employees of DHS in the J&DR court constituted the unauthorized practice of law and deprived the courts below of active jurisdiction.   Deciding this issue of first impression, the Court concluded that the nonattorney employees were authorized by statute to sign and file petitions in the J&DR court.  In Sandridge v. Commonwealth, the other appeal decided by published opinion today, the Court upheld the imposition of minimum mandatory sentences for subsequent offense cocaine distribution charges where the evidence showed that prior to the sentencing hearing the defendant had not provided police with any useful information within the meaning of Code § 18.2-248(C)(e) that would have permitted the trial court to impose a lesser sentence. Although the defendant testified at the sentencing hearing that he had truthfully disclosed all relevant information regarding his trafficking in cocaine (which was that he had no useful information to assist the police), the Court held that "truthful compliance with subpart 'e' is more than an esoteric exercise in catharsis. Information provided by a defendant in satisfaction of this subpart (or a defendant’s confirmation that he has no such information) assists law enforcement in its ongoing efforts to combat illegal drug distribution. "  Because Sandridge had not complied with this requirement before the sentencing hearing, but only during that hearing, he was not eligible for a reduced sentence.  The Court also released nine unpublished opinions.


December 19, 2016 9:37 PM

The Supreme Court of Virginia, Court of Appeals of Virginia, and all local circuit and district courts will be closed from 12 Noon on December 22 through December 26, 2016, and also on January 2, 2017 for the Christmas and New Year's Holidays.  Accordingly, pursuant to Code § 1-210(B) the time for filing any pleading to be filed (or other act required to take place during the course of a judicial proceeding) which falls on December 22, 23, or 26, 2016 or on January 2, 2017, will be extended to the next day that the office of the clerk of the court in which the proceeding is set is open for a full day (December 27, 2016 for the Christmas Holiday and January 3, 2017 for the New Year's Holiday -- unless inclement weather causes a court to close on those days).  Be advised that the Chief Judge of a circuit may authorize additional closings.