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Westlake Legal Group > Laura Forte

An interesting case involving the expanding wine industry in Virginia

An interesting case involving the expanding wine industry in Virginia:

Westlake Legal Group wine-300x107 An interesting case involving the expanding wine industry in Virginia Virginia wine industry   A 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

Westlake Legal Group Navy-seal-300x180 Digest of a federal district case  in  the September 28, 2017 Virginia Lawyers Weekly Sexual Assault Navy Seal Criminal Sex act   A 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

Damages award punishes an online lender for violating federal bankruptcy law.

Westlake Legal Group remedy-300x225 Damages award punishes an online lender for violating federal bankruptcy law.

In a recent case in Virginia bankruptcy court, a judge imposed stiff damage awards to punish an online lender for violating federal bankruptcy law. According to Peter Vieth’s article in Virginia Lawyers Weekly,  the damages award was also creative. More and more consumers are turning to online lenders which can result in high interest rates and fees and relentless efforts to collect.  Once a consumer has filed for bankruptcy, his or her creditors are notified and creditors are then barred from further collection efforts.  This case involved the bankruptcy filings of three couples who had taken out online loans with Netcredit.  Netcredit acknowledged that it continued to contact the consumers and withdraw money from their bank accounts after receiving notice of the couples’ bankruptcy filings. Evidence showed that Netcredit used an automated system that continued to contact consumers and tell them that they were still required to make payments on their loans.  This is a violation of bankruptcy law. The judge found Netcredit’s practices “sufficiently reprehensible” to warrant punitive damages and imposed three separate awards of $100,000 in punitive damages on top of the $178,000 awarded for attorneys’ fees.  The judge’s order was creative in that he directed three quarters of the punitive damages payments be paid to two consumer advocacy groups instead of giving it to the debtor-plaintiffs.  This is apparently the first time this creative approach to issuing punitive damages has been employed in Virginia.From “’Arogant defiance’”, by Peter Vieth, “Virginia Lawyers Weekly”, September 18, 2017

 

 

 

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

Mediation in Fairfax County, VA Results in 1 Million Settlement for Plaintiff-

Westlake Legal Group Mediation-300x200 Mediation in Fairfax County, VA Results in 1 Million Settlement for Plaintiff- Personal Injury Award Personal Injury Mediation

In recent news in the area of personal injury law reported in Virginia Lawyers Weekly, a mediation in Fairfax County Circuit Court resulted in a settlement of $1 million for the plaintiff. The plaintiff in the case was a back seat passenger in a car traveling in Oakton, Virginia following a night out with friends. The car left the road and crashed into utility pole and a tree. The plaintiff suffered injuries to her back which resulted in  surgeries as well as ongoing treatments for both the injury and for pain.  The issue during mediation was whether the plaintiff had assumed the risk by getting into a car  with a driver who had been drinking and who was charged with driving under the influence following the accident.  While the defendant admitted he had consumed as many as six drinks over the course of the evening, independent witnesses testified that he appeared fine. Following mediation, the plaintiff was awarded $1 million.

 

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

Salt Lake City nurse arrested for refusing to provide blood sample…

Westlake Legal Group sd-me-nurse-arrested-salt-lake-city-20170901-300x169 Salt Lake City nurse arrested for refusing to provide blood sample...

The story making national news about a Salt Lake City nurse  who was arrested for refusing a request from police to draw and provide a blood sample from an unconscious man highlights a Supreme Court decision from 2016.In Birchfield v. North Dakota, the Supreme Court held that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving, but not warrantless blood tests. The Supreme Court found that blood tests are significantly more intrusive than breath tests as they involve piercing of the skin and extraction of a part of the body.  They also give law enforcement a sample that can be preserved and from which it might be possible to extract information beyond the blood alcohol level.  The Court also pointed out that the police are able to obtain a blood sample with a warrant or by relying on an exigent circumstance exception, if it applies.  Therefore, a motorist who is stopped for a DUI cannot be criminally charged for refusing to submit to a blood test.

 

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

Virginia Supreme Court Reversed Gun Possession Conviction

Westlake Legal Group Patrick_Henry_Building_Richmond-150x150 Virginia Supreme Court Reversed Gun Possession Conviction Virginia Supreme Court VA Supreme Court Conviction Reversal Laura Forte Conviction Reversal   A recent Virginia Supreme Court case reversed a conviction for gun possession for  the person sitting in the car nearest the glove box where the gun was found. In Carter V. Commonwealth, the Supreme Court found that the defendant’s proximity to the glove box, without any other evidence, was not enough. The Supreme Court ruled that the lower court’s inference that because someone in the car must have known about the gun,  everyone in the car  knew, was without evidentiary support.  “Gun in Glovebox Not Enough to Convict,” Deborah Elkins, “Virginia Lawyers Weekly,”  August 21, 2017.

 

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