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Happy Holidays from Westlake Legal Group! Here are a few snippets from interesting cases in 2017, courtesy of the Virginia Lawyers Weekly.

legal news

Discharge Denied for False Property Valuation

A chapter 7 debtor who had two degrees in finance and a professional career as a financial advisor should have known that his lowball valuation of a minority interest in a real estate investment company at just 4 percent of his initial capital contribution was too low to be accurate; the 4th Circuit affirms a denial of a discharge in bankruptcy under the false oath provision of 11 U.S.C. § 727(a)(4).

Robinson v. Worley (VLW 017-2-052) (17 pp.)

 

Same Transaction’ Test Saves Refiled Suit

A plaintiff who nonsuited her dental malpractice suit alleging nerve damage from a negligent root canal, but refiled her complaint with additional allegations, survives defendant’s plea in bar with the Alexandria Circuit Court’s application of the “same transaction or occurrence” test, instead of the “same evidence” test advocated by defendant.

Panth v. Ashouripour, DDS (VLW 017-8-006) (2 pp.)

 

Emails With Carrier Must Be Produced

In plaintiff’s suit alleging injuries sustained at a paper plant when a commercial rigging tool he was using to remove a steam air heater coil broke, a Norfolk U.S. District Court Magistrate Judge grants plaintiff’s motion to compel defendant United Rentals to produce emails between United Rentals and an insurance carrier sent in the ordinary course of business immediately following the accident.

Goff v. United Rentals NA (VLW 017-3-167) (6 pp.)

 

Portions of Release Admissible to Show Risk

Prior to trial of plaintiff’s suit for injuries he suffered while playing indoor Segway Polo at the Homestead hotel, the Harrisonburg U.S. District Court denies plaintiff’s motion to exclude the “Segway Personal Transporter Tours Liability Release Form” in its entirety; portions of the Release are admissible to show that plaintiff was aware of the risks of playing Segway Polo.

McConnel v. Omni Hotels Mgmt. Corp. (VLW 017-3-356) (4 pp.)

 

Nonlawyer Signatures OK’d for Agency Staff

Petitions for the emergency removal of children and for termination of parental rights signed by social workers, not lawyers, were properly filed in the juvenile and domestic relations courts, under amendments to Va. Code §§ 16.1-260(A), 54.1-3900 and Code § 63.2-332; each of the form petitions in these appeals that were signed by nonlawyer agency employees were valid pleadings that did not constitute unauthorized practice of law by those employees, the Court of Appeals holds.

Rudolph v. City of Newport News Dep’t of Human Services (VLW 016-7-310) (9 pp.)

 

Court Doubts Probable Cause for Drug Arrest

The 4th Circuit reverses summary judgment in this civil rights suit for defendant police officer who arrested plaintiff “April Smith” for selling crack cocaine, leading to her detention for 80 days before the criminal charges were dropped; even ignoring whether plaintiff’s weight, at either 160 pounds or 200 pounds, qualified as “skinny,” a criminal history, common gender and unfortunately common name is not enough to establish probable cause.

Smith v. Munday (VLW 017-2-031) (31 pp.)

 

No Free Speech Claim from Facebook Comment Removal

A prosecutor’s deletion of plaintiff’s comment on the Loudoun County Commonwealth’s Attorney’s official Facebook page, and blocking of plaintiff from leaving further comments for several months, did not violate plaintiff’s First Amendment rights, an Alexandria U.S. District Court holds; defendant also is entitled to qualified immunity and 11th Amendment immunity with respect to plaintiff’s claims for damages against defendant in his official capacity.

Davison v. Plowman (VLW 017-3-180) (32 pp.)

 

Sexting teen has suit against police

A teen charged with child pornography offenses after sexting his teenage girlfriend can sue a police detective who forced the teen to masturbate so the detective could get photos for evidence.

Sims v. Labowitz (VLW 017-2-209) (30 pp.)

 

Due Process Denied in Student Misconduct Case

A male college student wins summary judgment against James Madison University in his suit alleging he was not afforded due process in JMU’s investigation and discipline of him for sexual misconduct in allegedly forcing sex upon a female student; the Harrisonburg U.S. District Court says plaintiff was deprived of his protected property interest in continued enrollment at JMU, without adequate due process.

Doe v. Alger (VLW 017-3-026) (30 pp.)

 

 

Jacqueline A. Kramer

Attorney at Law

Westlake Legal Group
46175 Westlake Drive, #320
Potomac Falls, VA 20165
(703) 406-7616
Fax: (703) 444-9498
jkramer@westlakelegal.com

Virginia death row inmate gets hearing on witness statements

By: The Associated Press November 17, 2017

meeting-1(AP) A federal appeals court has ordered a lower court to hold a hearing on a Virginia death row inmate’s claim that prosecutors failed to turn over evidence favorable to him.

Anthony Juniper was sentenced to death for the 2004 murders of his former girlfriend, her two children and her brother in Norfolk.

The 4th U.S. Circuit Court of Appeals on Thursday sent the case back to U.S. District Court, finding that a judge was wrong to dismiss Juniper’s claim without holding a hearing.

Juniper’s lawyers allege that a witness gave an account to police that contradicted the prosecution’s timeline of the killings and failed to identify Juniper from a photo array.

A judge stayed Juniper’s execution in 2011 and allowed him to pursue appeals in federal court.

 

 

Jacqueline A. Kramer

Attorney at Law

Westlake Legal Group
46175 Westlake Drive, #320
Potomac Falls, VA 20165
(703) 406-7616
Fax: (703) 444-9498
jkramer@westlakelegal.com

Supreme Court takes a technological step forward

Supreme Court takes a technological step forward

By: The Associated Press November 10, 2017

Supreme Crt223WASHINGTON (AP) Surely but slowly, the Supreme Court is entering the 21st century. The court is making new legal filings available online starting Monday, years behind the rest of the federal court system.

Can livestreamed audio of arguments and even televised sessions be far behind? Yes, they can.

But advocates of court openness will take what they can get for now, especially because the Supreme Court will not charge for documents. The federal courts’ PACER system does charge fees.

“Though the Supreme Court has moved glacially to join the rest of the judiciary in permitting online filing, that’s better than not at all, and the institution should be commended for creating an e-filing system that, unlike PACER, will be free and easily accessible to the public,” said Gabe Roth, executive director of Fix the Court.

Over the years, the justices have at times shown a glancing familiarity with technology. Some carry computer tablets with high court briefs loaded on them. But notes between justices are routinely sent on paper, definitely not by email.

Chief Justice John Roberts himself noted a few years back that the court stuck with pneumatic tubes to transmit newly released opinions from the courtroom to reporters waiting one floor below until 1971, long after their heyday.

Roberts said that it’s appropriate for courts “to be late to the harvest of American ingenuity” because their primary role is to resolve disputes fairly.

Many Supreme Court legal briefs already are available online and for free from several sources. Scotusblog.com obtains and posts many of them, along with opinions. The Justice Department has an easily accessible archive of its extensive high court filings on its website, and the American Bar Association posts briefs in the 70 to 80 cases the court agrees to hear each term.

But the public may not know to look elsewhere. When the justices issued their highly anticipated decision upholding President Barack Obama’s health care overhaul in 2012, the court’s website was overwhelmed.

It, too, has recently been overhauled to make it friendlier to the public.

The Supreme Court updates come amid criticism of the PACER system as outmoded and unfair. “The PACER system used by the lower federal courts is hopelessly outdated and cumbersome. And, to add insult to injury, the PACER system charges people fees to access court records that should be made freely available,” said Deepak Gupta, the lead attorney in a class-action lawsuit challenging PACER fees.

The judiciary says the fees provide the only money to pay for the system.

The cost to users was just one among several reasons the court opted not to join the PACER system, court spokeswoman Kathy Arberg said.

“The court elected to design its system in-house so that it would have the capability to customize and continuously update to meet the distinctive needs of the court and counsel,” Arberg said.

Until now, lawyers have not been required to submit their filings to the court electronically. Beginning Monday, those documents should appear quickly on the court’s website. People who can’t afford to pay court costs will be allowed to file paper copies, which Supreme Court employees will scan and post online.

Not everything is changing. Lawyers still will be required to submit up to 40 paper copies of every brief, and the court’s color-coding system to distinguish types of briefs also will remain.

There’s no timetable for electronic filings to supplant paper as the official court record.

And there’s also no expectation that the justices will drop their prohibition on cameras in the courtroom anytime soon.

Justice Sonia Sotomayor, who once sounded open to cameras, recently told a New York audience that cameras might detract from the robust exchanges during arguments.

The Supreme Court also refuses to livestream audio of its arguments, even as the federal appeals court just down Capitol Hill recently has allowed live audio access to its hearings. The high court posts transcripts within hours of arguments, but doesn’t release the audio for days.

-MARK SHERMAN, Associated Press

 

Jacqueline A. Kramer

Attorney at Law

Westlake Legal Group
46175 Westlake Drive, #320
Potomac Falls, VA 20165
(703) 406-7616
Fax: (703) 444-9498
jkramer@westlakelegal.com

Court Rules Request for “Lawyer Dog” Too Ambiguous

lawyer-doggA “lawyer dog?” As in a litigious hound? An advocating Alaskan Malamute? Not quite…The Louisiana Supreme Court won’t hear an appeal from a man who claimed he told police during an interview to “just give me a lawyer dog,” with a justice saying the request was “ambiguous.”

Louisiana Supreme Court Justice Scott Crichton said he agreed with the court’s decision to deny the appeal, claiming the defendant had voluntarily agreed to be interviewed twice regarding his alleged sexual misconduct with minors. At both interviews, detectives reportedly advised the defendant of his Miranda rights, and the defendant stated he understood and waived those rights.

The defendant, however, claimed he invoked his right to counsel in a second police interview when he said, “if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.”

 

Justice Crichton  noted, however, in a concurring opinion the court has held that police are not required to stop an interview if a suspect makes a reference to an attorney that is “ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking his right to counsel.”

“In my view, the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants termination of the interview,” he said.

 

 

 

Jacqueline A. Kramer

Attorney at Law

Westlake Legal Group
46175 Westlake Drive, #320
Potomac Falls, VA 20165
(703) 406-7616
Fax: (703) 444-9498
jkramer@westlakelegal.com

Defamation and Tortious Interference Case

DefamationDefamation and Tortious Interference Case–

As reported in Virginia Lawyers Weekly, Plaintiff survived a Motion to Dismiss where plaintiff employee, a clerk placed at an Army recruiting center by the defendant subcontracting staffing agency, was terminated after a 90-day reprimand notice containing false information was sent to the agency, the plaintiff stated claims for defamation and tortious interference sufficient to withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(6). As to the defamation and defamation per se claims, defendants’ contention that plaintiff failed to specify the method of publication of the false statements fails, as sufficient facts are pled to give rise to an inference of publication.  Plaintiff also sufficiently pled malice to overcome a claim of qualified privilege.

As to the tortious interference claim, plaintiff likewise sufficiently pled that she had a valid at-will contract and that defendant staffing agency knew of the contract and maliciously interfered with that contract, resulting in damage that included the loss of her job. Motions to dismiss denied. See McCray v. Infused Solutions, LLC.

 

 

Jacqueline A. Kramer

Attorney at Law

Westlake Legal Group
46175 Westlake Drive, #320
Potomac Falls, VA 20165
(703) 406-7616
Fax: (703) 444-9498
jkramer@westlakelegal.com

Wedding in Washington, D.C., Marriage Not Valid in Virginia–

WeddingWedding in Washington, D.C., Marriage Not Valid in Virginia–A Virginia couple that exchanged their vows on the other side of the Potomac River has learned that their marriage is invalid under Virginia law.

The pair obtained a marriage license in Virginia, but  they took part in a wedding ceremony at a church in Washington, D.C. In a case of first impression, a Fairfax County judge has ruled that the marriage cannot be considered valid in the Old Dominion. The officiant, who was licensed to perform marriages in Virginia, noticed after the wedding ceremony that the marriage license was issued in Virginia, but the ceremony occurred in D.C. Rather than curing the defect by holding a second ceremony in Virginia, the officiant and the couple crossed out “D.C.” on the wedding license and wrote in Arlington. When the couple was divorcing 10 years later, the Judge ruled that there was no valid marriage and the couple’s property, including a house and pension benefits, was not subject to equitable distribution.

 

 

Jacqueline A. Kramer

Attorney at Law

Westlake Legal Group
46175 Westlake Drive, #320
Potomac Falls, VA 20165
(703) 406-7616
Fax: (703) 444-9498
jkramer@westlakelegal.com

Courts differ on Marijuana Suspension law—

LawyerMarijuanaCourts differ on Marijuana Suspension law—By Peter Vieth of Virginia Lawyers Weekly–Some lawyers are encountering clouds of confusion about whether the state’s automatic license suspension for some first-offense marijuana offenders is still in effect.

Virginia judges are said to be taking different approaches to whether the marijuana offenders must have their driver’s licenses suspended for six months in light of legislative changes that are contingent on continued federal highway funding.

State Sen. Ryan T. McDougle spoke of a “dichotomy of justice” describing the situation at an Oct. 20 meeting of the state Committee on District Courts. “I think ultimately you’re going to have people receiving different levels of justice,” McDougle said.

McDougle said Gov. Terry McAuliffe could clear up the confusion and put the new rules in operation with a one-sentence certification to satisfy terms of federal regulators. McAuliffe’s office did not respond to a request for information on the status of the legislation as of press time.
Reform approved

Responding to calls for reform of harsh license suspension rules, the General Assembly this year passed bills that would remove a six-month automatic license suspension for some defendants charged in marijuana possession cases.
Critics said Virginia’s marijuana penalties can be harsh. A first offender caught with less than a half an ounce can be convicted of a misdemeanor punishable by up to 30 days in jail, a $500 fine and a six month driver’s license suspension.

The Code allows a first offender to get a deferred disposition, where the judge takes the case under advisement for a year while the defendant completes probation and community service requirements. A deferred disposition could mean no conviction on the defendant’s record. Under the previous law, however, those defendants still had to lose their driver’s licenses for six months.
The reform bills passed this year would change that suspension penalty. Juveniles convicted of marijuana possession still lose their licenses, but, for adult defendants, judges would have discretion as to a license suspension.
Former Secretary of Public Safety Randy Rollins, who runs a non-profit that helps restore driving privileges for ex-offenders, has urged an end to mandatory suspensions that limit defendants’ ability to get or keep employment. The penalty is especially unfair when the offense has nothing to do with driving, he says.
During legislative debate, bill co-sponsor Sen. Adam Ebbin, D-Alexandria, said about 39,000 Virginians lose their licenses each year for drug offenses.

Co-sponsor Sen. Bill Stanley, R-Moneta, said that, as an attorney, he had seen young people hurt by the suspension policy. Stanley told the Capital News Service in January the legislation was designed to provide an “opportunity of a second chance for making a dumb mistake.”

At a January House subcommittee meeting, former college student Ryan Johnson described his reaction to a six-month suspension for a possession charge: “I said to myself, ‘Why is my license being suspended for something that didn’t involve a car or driving? And how am I supposed to get to school and work?’”
Johnson told delegates his license suspension was the most disruptive part of his sentencing.
Contingency questions

As passed and signed by McAuliffe, the reform legislation would have been effective July 1 as long as state regulators received written assurance from the Federal Highway Administration that Virginia would not lose federal funding as result of the changes.

Virginia requested that written assurance with a May 31 letter to the FHA. The feds responded June 26 saying no federal funding would be withheld as long as the governor provides a written certification as to Virginia’s conformity with federal law by Jan. 1 of each year.

Opinions differ as to whether that message gives the “all clear” for the reforms to take effect.
Wise County General District Judge Clarence E. Phillips said he was surprised to hear that some judges believed the contingency had been met. Another judge said some judges may believe they have a free hand as long as someone has not expressly told them otherwise.

McDougle said the confusion could be cleared up if the governor signed a new “Drug Offender’s Driver’s License Suspension Certification” as he has in years past. Attorney General Mark Herring also could end confusion by speaking out, McDougle said.

Phillips said it was up to the legislature to provide guidance.
Herring’s office did not respond to a request for comment as of press time.

Jacqueline A. Kramer
Attorney at Law
Westlake Legal Group
46175 Westlake Drive, #320
Potomac Falls, VA 20165
(703) 406-7616
Fax: (703) 444-9498
jkramer@westlakelegal.com

Rape allegation makes Muslin teen’s death a capital case

Rape allegation makes Muslin teen’s death a capital case

 

RapeAs reported by the Associated Press, the indictment issued Monday includes capital murder and rape charges and will allow prosecutors to pursue a death-penalty case against Darwin Martinez-Torres, 22, of Sterling. He is accused in the slaying of Nabra Hassanen of Reston, whose death back in June rattled northern Virginia’s Muslim community.

Prior to Monday’s indictment, much of the discussion surrounding the case revolved around whether prosecutors should bring hate-crime charges — as sought by some activists — or whether it was a case of road rage, as police have long maintained. Monday’s indictment, though, brought into focus another aspect of the case: While police had said previously they were investigating whether Hassanen had been sexually assaulted, the indictment is the first court document to spell out any kind of sex-crime charges against Martinez-Torres. Virginia law allows prosecutors to pursue a death penalty case only under certain conditions. Those include murder in the commission of a rape and murder during an abduction with intent to defile.

The seven-count indictment handed up Monday actually includes four counts of capital murder, with occasionally graphic detail on the ways in which prosecutors believe the slaying qualifies for the death penalty.

The teenager’s death continues to resonate. More than 200 supporters wearing “Justice for Nabra” T-shirts showed up at a preliminary hearing Friday for Martinez-Torres. The hearing was delayed when the girl’s parents had to be restrained from charging at Martinez-Torres. Her mother threw a shoe at him.

Police have said Hassanen was out with a group of more than a dozen friends at about 3:40 a.m. June 18. The group was walking back to their mosque, the All Dulles Area Muslim Society, after eating at a McDonald’s ahead of a daylong fast. Observant Muslims fast from sunrise to sunset during Ramadan, which this year coincided with the summer solstice. As a result, teens from the mosque sometimes went out for fast-food meals in the overnight hours between the late-night and early morning prayer services.

Police say Martinez-Torres encountered the group and got into a confrontation with some of the kids who had been in the roadway. Martinez-Torres chased after the group and caught Hassanen, at one point bludgeoning her with a baseball bat, police said.

In a search warrant affidavit, police say Martinez-Torres admitted killing Hassanen and that he led them to where he had dumped her body in a nearby pond. Some Muslim activists called for hate-crime charges. Police and prosecutors said they have seen no evidence of anti-Muslim bias that would warrant such a charge.

 

 

Jacqueline A. Kramer

Attorney at Law

Westlake Legal Group
46175 Westlake Drive, #320
Potomac Falls, VA 20165
(703) 406-7616
Fax: (703) 444-9498
jkramer@westlakelegal.com

An interesting case involving the expanding wine industry in Virginia

An interesting case involving the expanding wine industry in Virginia:

wineA circuit court decision reported in Virginia Lawyers Weekly focuses on Virginia’s expanding wine industry.  The case centers on a 495 acre area of land in Prince William County .  In 2004, the land was divided into 49 individual parcels of about 10 acres each known as the Alexander Lakes subdivision. A declaration of covenants was filed by the developer  in 2005 and the next year an amendment was filed by the developer that purported to remove the manor house and its property from the restrictive covenants in the declaration.

 

A vintner from Fauquier County, Chris Pearmund,  owns the original manor house and the land immediately surrounding the house. He claims to have already invested $3 million in the house and property in anticipation of producing wine and holding events in the 3,000 square foot ballroom he had built next to the manor house.  In order to get to the property, the public would have to travel through the residential development of Alexander Lakes.

 

Neighbors in Alexander Lakes objected to Mr. Pearmund’s plan.  They attempted to fight the opening of the winery at the state ABC agency and then in circuit court.  The neighbors claimed that when they purchased the property: they agreed to be subject to the restrictive covenants in the homeowners’ agreement, but that they were not informed that an  exemption to the restrictive covenants in the  homeowners’ agreement  was granted for Mr. Pearmund’s property; that the restrictive covenants are so strict, homeowners wouldn’t even be allowed to give piano lessons out of their homes because of the potential increased traffic; that the amendment exempting the winery was not effective because it was not filed with a certification required by the Virginia Property Owners Association Act; that the road to the winery was constructed for residential traffic, not commercial traffic; that Mr. Pearmund has already been conducting business at the property without proper approvals.

 

Mr. Pearmund denied that he has been conducting business at the property without proper approvals and that the exemption for his property from the restrictive covenants of the homeowners association agreement was valid.

 

Circuit Judge Steven S. Smith found for Mr. Pearmund.  In his decision, Judge Smith addressed an apparent conflict in Virginia case law about the requirement that an amendment have a statutory certification to be valid and found that the language of the statute which used “may” instead of “shall” meant that the legislature recognized that an alternative way authorizing an amendment could be used. The developer also filed the amendment to the homeowners association agreement within the seven year window allowed for unilateral changes by the developer to correct errors and the developer testified that it was an error and that he always intended to exempt the winery property from the restrictive covenants.

 

Laura Forte
Westlake Legal Group
46175 Westlake Drive, Suite 320
Sterling, VA 20165
(703) 406-7616
Fax: (703) 444-9498
lforte@westlakelegal.com

Digest of a federal district case in the September 28, 2017 Virginia Lawyers Weekly

Navy sealA digest of a federal district case  in  the September 28, 2017 Virginia Lawyers Weekly highlights federal and military criminal procedure and rules of evidence.  The facts that led to this interesting analysis begin with the  arrest of a Navy seal stationed in San Diego, but at a training course in Virginia. While in Virginia, Petty Officer first Class Seerden was accused of sexually assaulting a woman in a hotel on the base.  In the course of the investigation of that accusation, the Naval Criminal Investigative Service secured his phone. Based upon guidance from judge advocates at the base and in the officer’s chain of command, they concluded that Seerden’s commanding officer in San Diego was the proper person to grant authority to search the officer’s phone. During that search, child pornography was discovered.  The search was discontinued and a warrant was sought from a federal magistrate to continue the search under a warrant. Seerden’s attorneys attempted to have the evidence of child pornography tossed out on the grounds that the seizure was unconstitutional because Seerden’s commanding officer in San Diego was not the correct person to grant permission for  the initial search of the phone. The Court analyzed this issue under the military rules of evidence.  Seerden’s commanding officer in San Diego was not the correct person to grant permission for Seerden’s phone to be searched.  So, that initial search was illegal. The Court found that there is a good faith exception under military law  which allows evidence obtained as the result of an unlawful search to be used.   The second search, made under the warrant issued by the federal magistrate, but which was based upon information in an affidavit based on that first, unlawful, search was held to be a valid search under the good faith rule.  The court held that the  mistake in this case was merely  technical and did not rise to the level where exclusion of the evidence was warranted and the investigating agents relied , in good faith, upon the advice of the judge advocates.  Seerden pleaded guilty and waived his right to appeal.

 

 

 

Laura Forte
Westlake Legal Group
46175 Westlake Drive, Suite 320
Sterling, VA 20165
(703) 406-7616
Fax: (703) 444-9498
lforte@westlakelegal.com