Virginia Legal Trends and More

Tuesday, February 22, 2011

School Bus Law Is Fixed

Interesting article from VLW:

The Virginia General Assembly has agreed to fix a grammatical error in a law that makes passing a stopped school bus considered reckless driving.

Washington Post staff writer Tom Jackman reported in November that a key preposition -- the word "at" -- was eliminated from the statute when it was amended in 1970.

As a result, the statute could be read as requiring drivers to stop school buses, rather than stop for school buses. After being used for decades to charge drivers that flew past school buses, a lawyer successfully persuaded a Fairfax County judge in the fall that the double reading of the statute was confusing enough that his client should be acquitted of a reckless driving charge.

But no more. With the legislative fix, the General Assembly's intention will be clear.
It will also be more long-winded.

The old statute read: "A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children."

Under that wording, it does indeed sound as though everyone who fails to stop a school bus is guilty of reckless driving. Now, the legislature has agreed to make things perfectly clear.

Here's what drivers will now be told: "A person driving a motor vehicle shall stop, such vehicle when approaching, from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, and shall remain stopped until all the persons are clear of the highway, private road or school driveway and the bus is put in motion; any person violating the foregoing is guilty of reckless driving."

The bill now goes to the governor for his consideration. The legislature has classified the bill as emergency legislation, meaning it would go into effect immediately upon signing.

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Friday, February 18, 2011

Family Law Group’s Bills Are Advancing

Interesting article from VLW:

By Alan Cooper
Published: February 18, 2011

Three bills backed by the Virginia Family Law Coalition, including one that would overturn a Supreme Court decision from last April, are working their way through the General Assembly with little opposition.

The Supreme Court opinion, Gilliam v. McGrady (VLW 010-6-052) dealt with the allocation of debt in equitably distributing a couple’s assets and liabilities.

When the General Assembly enacted equitable distribution in 1982 as the mechanism for dividing the property of divorcing spouses, it created a presumption that property acquired during the marriage is marital – the property of both spouses.

The law provides no such presumption for marital debt, but family law practitioners and judges typically have treated debt as if there was such a presumption.

The Supreme Court ruled otherwise, however. Without a law declaring a presumption that debts incurred during the marriage are marital, “traditional rules concerning the allocation of the burden of proof apply,” Senior Justice Charles S. Russell wrote for a unanimous court.

A party seeking to prove a debt was jointly incurred has the burden of showing that the debt is martial and shifting to the other party the burden of persuading the court that the debt was separate, Russell said.

On the other hand, the party seeking to prove that a debt was incurred by the other spouse has to make a prima facie case that the debt was separate in order to shift the burden of persuading the court that it was marital.

The decision caught family law practitioners off guard, even though they acknowledged the correctness of Russell’s analysis.

They had applied the same presumption for both property and debt because it made analyzing a couple’s finances simpler.

Typically, the fight is over a relatively few items on a credit card that one party contends should be considered separate rather than marital, as opposed to the large majority of items that were for the benefit of both parties.

Creating a presumption that debts incurred during marriage are marital rather than separate frees judges from become more involved “in the minutia of who charged what on the credit card,” said Cheshire I’Anson Eveleigh, the chair of the coalition.

House Bill 1569, with Del. William H. Cleaveland, R-Roanoke, as patron attempts to do just that. It has cleared the House unanimously and the Senate Courts of Justice Committee without a dissenting vote.
Support payments.

A second bill, HB 1529, with David J. Toscano, D-Charlottesville, as patron, is designed to clarify the authority judges have in ordering pendente lite spousal support payments. Some judges have ruled that they have the authority to enter only a specific monetary award, said Lawrence D. Diehl, a coalition member from Chesterfield County.
The proposed law makes it clear that the judges can order one party to make mortgage or utility payments directly rather than requiring him or her to pay that amount in a single monthly payment and have the other party pay the bill.

The bill ran into at least a temporary glitch in the Senate Courts Committee last week when Sen. John S. Edwards, D-Roanoke asked for delay in considering it so that he could get an answer from proponents about a constituent’s objection to it.

Filing fee measure

The third bill, Senate Bill 1068 with Edwards as patron, involves an unexpected consequence of the merger of law and equity in 2006.

Under the change, what had been a “Bill of Complaint” in a divorce became a “Complaint” and the responsive pleading that had been designated a “Cross-Bill” became a “Counterclaim.”

There was no filing fee for the cross-bill before the merger, but about a third of circuit court clerk’s offices are charging a separate for a counterclaim in divorce actions, just as they have done and continue to do in other civil actions, even though it is the same type of pleading that was filed without a fee before the merger.

As passed by the Senate, SB 1068 exempted responsive pleadings in annulment, divorce and separate maintenance proceedings from an additional fee, and, in the eyes of the domestic relations bar, restored their practice to the same fee structure that existed before the merger.

The bill has been amended in the House but still provides much of what the family law bar wants. The new language prohibits court clerks from charging a separate fee for responsive pleadings formerly known as cross-bill or a cross complaint. That language cleared the House Courts of Justice Committee but still must be reviewed by the House Appropriations Committee because of what may be diminished revenue for the state.

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Thursday, February 17, 2011

Sailor Can Sue Under Servicemembers Relief Act

Interesting article by VLW:

By Deborah Elkins
Published: February 16, 2011

A U.S. Navy sailor can sue to recover damages from the towing company that allegedly towed and sold his SUV while he was deployed; the 4th Circuit says the recent amendment to the Servicemembers Civil Relief Act included an express private right of action for federal courts that applies retroactively, and the district court’s dismissal of the sailor’s suit is reversed.

The district court sua sponte determined that it lacked subject matter jurisdiction because the SCRA did not provide a cause of action for damages. It dismissed plaintiff’s suit against Pete’s Towing and dismissed a motion for stay as moot.

After plaintiff filed this appeal, Congress addressed the very issue confronted by the district court. The Veterans Benefits Act of 2010, signed into law on Oct. 13, 2010, added § 802 to the SCRA to provide that any person aggrieved by a violation of the SCRA may in a civil action obtain any appropriate equitable or declaratory relief and recover appropriate relief, including monetary damages.

Because the amended statute plainly provides the cause of action without working an impermissibly retroactive effect, we must reverse the judgment of the district court.

Before enactment of the SCRA § 802(a), the SCRA § 307(a) right of non-foreclosure was already enforceable in a Virginia conversion action. In Virginia, the tort of conversion encompasses any wrongful exercise or assumption of authority over another’s goods, depriving him of their possession; and any act of dominion wrongfully exerted over property in denial of the owner’s right, or inconsistent with it. That plaintiff has an enforceable right to prevent foreclosure of a lien on his car is not a change from prior law.

Even if the new statute does not alter the parties’ rights and duties, Pete’s Towing contends that SCRA § 802(a) would have retroactive effect if applied to this case because it would increase the defendant’s potential liability. Section 802(a)(2) does allow successful plaintiffs to recover all other appropriate relief, including monetary damages, and Pete’s Towing states this liability can encompass both compensatory and punitive damages.

This argument fails to show, however, that this liability is any departure from the status quo under Virginia conversion law. Compensatory damages are certainly available in conversion actions, as are punitive damages when the defendant’s conduct was “willful and wanton.”

Given that SCRA § 802(a) does not alter the rights, liabilities or duties of Gordon or Pete’s Towing, its effect in this case is limited to providing a federal forum. In essence, this is a jurisdictional change.

Section 802(a) simply allows service members to enforce their SCRA rights – previously enforceable in state tribunals – in federal court. Applying the express right of action under § 802(a) to this matter would pose no retroactivity problem. The presumption against retroactivity is therefore not triggered.

Reversed and remanded.

Gordon v. Pete’s Auto Service of Denbigh Inc. (Wilkinson, J.) No. 09-2393, Feb. 24, 2011; USDC at Newport News, Va. (Smith) Rebecca S. Colaw for appellant; Nathaniel S. Pollock, USDOJ, for appellee. VLW 011-2-034, 11 pp.

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Wednesday, February 16, 2011

Melendez-Diaz found not guilty

Interesting article from VLW:

The U.S. Supreme Court case of Melendez-Diaz v. Massachusetts was one of the bigger criminal cases of the previous decade in establishing that laboratory experts generally must testify in person rather than by affidavit.

But what happened to Luis Melendez-Diaz, the defendant in that case? His case was remanded, and he was tried last week in Suffolk Superior Court. A jury acquitted him.

According to The Boston Globe, Melendez-Diaz was one of three men arrested and placed in the back of a police cruiser in 2001.

Police officers noticed them fidgeting and found 19 small plastic bags of cocaine.
This time, prosecutors called a chemist to testify that the substance police found in the bags was cocaine.

The article suggests that the prosecution had difficulty in proving which of the three suspects actually possessed the cocaine. The lapse of 10 years between alleged offense and trial didn’t make the case any easier, a prosecutor noted.

Before you get too worked up about the injustice visited upon poor Luis, you should know that he is serving 10 years on another drug trafficking charge.

By Alan Cooper

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Tuesday, February 15, 2011

‘Public duty’ doctrine does not protect firefighters

Interesting article from VLW:

A Fairfax Circuit Court says the “public duty” doctrine does not extend to firefighters, to protect them from a gross negligence lawsuit filed by the sons of a woman who died in a townhouse fire.

The suit filed by the sons of Debra Chiles alleges she died after calling the fire department and reporting that she was in the third-floor bathroom of her burning townhouse.

Under the “public duty” doctrine, if an individual officer breaches a duty owed to the public, the resulting injury must also be public for the officer to be sued for the act or omission. If a private party sues a public officer for an individual injury, the suit will survive only if there is some special duty the officer owes to the individual.

It’s true that other jurisdictions have extended the public duty doctrine to cases involving firefighters, said Fairfax Circuit Judge Robert J. Smith. But Smith said there is no basis in law to extend this reasoning in Virginia, as Virginia’s high court has limited application of the public duty doctrine to cases involving a duty to protect from the criminal behavior of a third party.

Whether the doctrine should include firefighters “is a decision that should be made by the General Assembly or the Supreme Court of Virginia – not this trial court,” Smith wrote in his Dec. 29 opinion in Chiles v. Dunn.

If the doctrine applied, Smith would have found a special duty existed in this case. The complaint alleged the firefighters either reached the third-floor bathroom but could not find Chiles, or found and abandoned her.

Chiles’ body was discovered later in precisely the same place where defendants claimed to have looked, the complaint alleged.

Smith also said the plaintiffs stated claims for gross negligence. The court overruled the firefighters’ demurrers and said the case could go to the fact finder.

By Deborah Elkins

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Thursday, February 10, 2011

Bill would allow electronic way of notarizing documents

Interesting article from VLW:

By Ray Reed
Published: February 09, 2011

RICHMOND -- Legislation that would allow notaries to use an electronic means of confirming signatures on documents is making its way through the General Assembly.

Virginia could become one of the first states to authorize procedures such as real estate transactions using video and audio conference technology, coupled with electronic ID cards, for verifying a document signer’s identity.

Del. Kathy Byron, R-Campbell County and sponsor of HB2147, told a Senate committee Wednesday that the measure was sup-ported by the Virginia Bar Association, high-technology businesses and several other interest groups.

The measure’s audio and video aspects would take effect July 1, 2012 under Byron’s bill, and she said that the yearlong delay would allow businesses time to set up the technology.

Other aspects of Byron’s bill, which also would allow the use of an electronic ID card for document signers, would go into effect this year.

The National Notaries Association was the only group opposing the bill Wednesday in the Senate Courts of Justice Committee.

The Senate already passed a bill similar to Byron’s HB2147. That measure, sponsored by Sen. John Edwards, D-Roanoke, is SB827. The language of the two bills still is evolving.

Sen. Creigh Deeds, D-Bath County, opposed Byron’s bill and asked whether Virginia would, in fact, become the first state to allow electronic notaries. No one in the hearing could name another state that uses the technology.

Josh Levi, a lobbyist for the Northern Virginia Technology Council, told the panel his group supported Byron’s bill.

“The technology is out there. We have companies in Northern Virginia that can do this. We believe it will help facilitate e-commerce. It’s the future,” Levi said.

Byron said she had received e-mails from notaries who feared the measure would require them to buy expensive equipment to stay in business. That fear is unfounded, Byron said.

“Nobody is required to use it,” Byron said. “They still certainly can do their paper transactions the way they have always done,” Byron said.

In addition, she said, the electronic method allows even more security on document transactions, because the law would require that video records of the proceedings be kept on file for five years.

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Wednesday, February 09, 2011

Five-Year Harassment Is ‘Continuing Violation’

Interesting article from VLW:

By Deborah Elkins
Published: February 3, 2011

A female employee on a Wakefield hog breeding farm has stated a claim for sexual harassment by male coworkers with allegations of unwanted touching, disparaging remarks and an incident involving a male coworker looking into the women’s shower room through drilled peepholes; the Norfolk U.S. District Court says plaintiff’s timely “anchor” events will allow her to bring in allegations of harassment outside the time frame of her EEOC charge.

Defendant owns and operates a hog breeding and farrowing facility, known as Farm 8508 in Wakefield, Va. Plaintiff Bridgett Edwards began working for defendant at the Farm in April 1996. In the past, she has received good job performance evaluations, resulting in her promotion from her starting position in the farrowing department to “herds person four.”

During the 2003-2008 timeframe, plaintiff alleges her male “Hispanic co-workers” began to harass her and a co-worker, including unwanted touching and disparaging remarks. Much of this behavior was reported to defendant’s management, but management failed to take disciplinary action against the male employees. The alleged harassment reached a pinnacle in December 2007, when plaintiff and her female co-worker discovered a male employee, Salvador Hernandez, looking through a peephole drilled to view the women’s shower room. Management patched the peepholes but did not replace the door.

Plaintiff alleges management informed her it would not fire male employees because the farm would be short-handed. Plaintiff eventually reported the shower incident to police and Hernandez was arrested, fined, sentenced and terminated by defendant.

On April 12, 2010, plaintiff sued for sexual harassment and wrongful retaliation.

Defendant has moved for dismissal under Rules 12(b)(6) and 12 (b)(1).

In count I, plaintiff has alleged defendant discriminated against her based on her gender by “allowing continual sexual harassment of Plaintiff by her male co-workers thereby creating a sexually hostile work environment.”

This court concludes that in order for several events to qualify as part of the same hostile work environment, all the incidents must be so significantly related to each other as to comprise one unitary and ongoing unlawful employment practice. Plaintiff must show defendant committed an act of sexual harassment within 300 days of filing her EEOC charge. She can support her claim with other earlier incidents if she can show the timely act is part of the same hostile work environment as the earlier “untimely” acts, and is thus capable of “anchoring” them to her claim. Here, plaintiff alleges three “anchoring” acts: Miguel Navarro brought a digital camera to work and took plaintiff’s picture against her wishes; several men continued to group together and talk among themselves, gesturing and pointing toward plaintiff; and the shower peephole incident occurred.

Plaintiff also has alleged nine events that are part of the same hostile work environment as the alleged anchoring acts. To be considered part of one hostile work environment, the pre-limitations actions must be significantly related to the anchoring acts so as to comprise one unitary and ongoing unlawful employment practice. At this point, based on the following indicators, that seems more plausible than speculative.

However, plaintiff’s factual allegations fail to make out a prima facie case of retaliation against defendant. Plaintiff alleges management informed her it was going to transfer her to another farm, but she understood the same kind of harassment would occur there. Her allegations fail to show any detriment created by the transfer other than the fact that her new job assignment is possibly less appealing. She has not alleged any decrease in compensation, job title, level of responsibility, chance for promotion or any other cognizable malady.

The court denies the motion to dismiss the sexual harassment claim and grants the motion to dismiss the retaliation claim, but grants leave to amend.

Edwards v. Murphy-Brown LLC (Davis, J.) (Published) No. 2:10cv165, Jan. 4, 2011; USDC at Norfolk, Va.; Frederick H. Marsh for plaintiff; Matthew W. Smith for defendant. VLW 011-3-039, 57 pp.

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Tuesday, February 08, 2011

Request for Counsel ‘Unequivocal,’ But Still ‘Ambiguous’

Interesting article from VLW:

By Deborah Elkins
Published: February 8, 2011

On rehearing en banc, the Court of Appeals upholds a trial court’s conclusion that defendant’s statement, “That’s what I want, a lawyer,” was not a request for counsel that should have been honored by police, because the circumstances surrounding the request indicated defendant may have been asking for an attorney to represent him in court, not to represent him during custodial interrogation.

We hold defendant’s statement was ambiguous because the circumstances leading up to defendant’s statement made it unclear whether he had requested the presence of an attorney during custodial interrogation, or whether he had simply expressed his desire to have an attorney appointed to represent him at trial.

Because of this ambiguity, we conclude the police were permitted to ask defendant limited questions solely for the purpose of clarifying the statement. We hold that police did not violate defendant’s right to counsel under Miranda, and therefore affirm his conviction for robbery, conspiracy, malicious bodily injury, murder and use of a firearm.

Defendant’s statement requesting counsel was certainly unequivocal in content; however, equivocation and ambiguity are two distinct concepts that each warrant our review. Unlike equivocation, ambiguity arises from the circumstances leading up to the statement, along with the statement itself, rather than the words of the statement alone. Here, we must evaluate whether the circumstances could render a suspect’s statement ambiguous, even if the statement’s words are unequivocal.

When we evaluate the specific circumstances of this case, we conclude that the two investigators, as police officers familiar with the circumstances, could reasonably have considered defendant’s request to be ambiguous – that it was just as likely defendant was referring to his desire to have an attorney appointed to represent him before the court as it was that he was requesting an attorney to be present before further questioning.

During his first interrogation, defendant never expressed a desire to have an attorney present during the interrogation. Therefore it was reasonable for the investigators to infer that they had built a rapport with defendant and that he was willing to speak with them without an attorney present. The investigators did not instigate their second meeting with defendant; rather, defendant specifically asked to speak to one of the investigators. Defendant expressed an interest in being released so he could see his young son.

The investigator later had defendant brought over to the police station to talk with him and the other investigator. At that time, both investigators understood that defendant had been transferred for advisement and that once defendant made an appearance in court – whenever that might be – the court would appoint him an attorney.

Since defendant had not previously requested the presence of counsel, and since he had instigated the second meeting, the investigators could have reasonably wondered whether defendant wanted a lawyer present before he talked to them, or whether he wanted a lawyer to aid him with adversarial judicial proceedings. Under the facts of this case, we hold the investigators could have reasonably viewed defendant’s statement as ambiguous, and thus they were permitted to ask defendant clarifying questions when he made that objectively ambiguous statement.

Denial of motion to suppress and convictions affirmed.

Dissent

Elder, J., joined by Felton, C.J.; Frank & Alston, JJ.: I agree generally with the majority’s analysis of the applicable legal principles as far as they go, but I believe the majority overlooks some of the undisputed facts in the record and also fails to apply an important legal principle to those facts. The majority concludes the investigators “merely clarified” defendant’s ambiguous statement, which was both the legally allowable and legally prudent response to that statement. Although it may have been prudent for the detectives to continue questioning defendant if they hoped to elicit an incriminating confession from an unrepresented defendant, I would hold their doing so was not in fact legally allowable.

Defendant’s statement, “That’s what I want, a lawyer, man,” was not remotely ambiguous, either in the abstract or in the context in which it was uttered in this case. To the contrary, it constituted an unequivocal invocation of defendant’s Fifth Amendment right to have counsel present during the custodial interrogation defendant was about to undergo. The investigators were required to cease their interrogation of defendant immediately, and the confession they elicited during the uncounseled interrogation that followed violated defendant’s Fifth Amendment rights.

I respectfully dissent from the majority’s decision affirming admission of defendant’s uncounseled confession.

Stevens v. Commonwealth (Petty, J.) No. 0266-09-3, Feb. 1, 2011; Pittsylvania County Cir.Ct. (Strauss) Larry Gott for appellant; Josephine F. Whalen, AAG II, for appellee. VLW 011-7-031, 22 pp.

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Monday, February 07, 2011

Carrier’s Dec Action Stays in Virginia

Interesting article from VLW:

By Deborah Elkins
Published: February 3, 2011

A Harrisonburg U.S. District Court refuses to dismiss or transfer a CGL carrier’s suit seeking a declaration that it owed no duty to defend to a company that was an additional insured on the carrier’s suit insuring a maintenance contractor who alleges he was injured at defendant’s Winchester plant.

Plaintiff Federated Mutual Insurance Company has filed a dec action against defendant Pactiv Corporation, which has a plant in Winchester. Federated’s policyholder, William Lucas, was sole proprietor of a business that had a service agreement with Pactiv to provide maintenance services at the Winchester plant. The service contract required Lucas (doing business as Blue Ridge Mechanical) to obtain a CGL policy and an umbrella liability policy naming Pactiv as an additional insured. Federated issued these policies.

Lucas alleges that in November 2006, he was injured while working at Pactiv’s facility, when bundles of insulation fell on him. Lucas sued Pactiv. Federated seeks a declaratory judgment that it does not have a duty to defend or indemnify Pactiv in that action, which Pactiv and Lucas have now settled.

Pactiv argues that Federated preemptively filed this dec action to “hijack Pactiv’s status as the true plaintiff.” Pactiv has moved to dismiss this action, or to transfer it to the U.S. District Court for the Northern District of Illinois, where Pactiv filed its own declaratory judgment and breach of contract action against Federated shortly after Federated commenced this action.

In September 2009, Federated sent Pactiv a final letter, denying that it had any coverage obligations and stating it would not send a representative to the court-ordered mediation in the Lucas versus Pactiv action.

According to Pactiv, the balance of convenience and special circumstances – namely Federated’s alleged procedural fencing and forum shopping – both preclude application of the first-to-file rule. The court finds that Pactiv had not made a case that it would be more convenient for this dispute to be heard elsewhere, nor has it demonstrated that Federated misled Pactiv so that Federated could be the first to file. Therefore, the first-to-file rule applies and Federated’s action has priority. The court denies Pactiv’s motion to dismiss or transfer venue.

The court sees little support for Pactiv’s claim that Illinois is a more convenient or appropriate forum. Lucas contracted with Pactiv to provide services to Pactiv at its Winchester facility; Federated issued the policy to Lucas in Virginia; Lucas was injured at Pactiv’s Virginia facility; Lucas sued Pactiv in this court; because Federated issued the policies to Lucas in Virginia, Virginia law will likely govern the interpretation of those policies; and the dispute essentially involves the interpretation of the two policies, which is unlikely to require witnesses to travel from either of the parties’ corporate nerve centers.

On the other side of the convenience scale, Pactiv can point to but one fact: its principle place of business and corporate nerve center is in Illinois. But given that this dispute is chiefly a dispute concerning the interpretation of an insurance contract, that fact seems inconsequential.

Federated Mut. Ins. Co. V. Pactiv Corp. (Wilson, J.) No. 5:09cv00073, Feb. 9, 2010; USDC at Harrisonburg, Va. VLW 010-3-063, 9 pp.

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Saturday, February 05, 2011

Goochland treasurer subject of embezzlement allegation with Dubai ties

Interesting article from VLW:

By Bill McKelway
Published: February 04, 2011

Eight years ago, Goochland County's retiring treasurer begged county officials to place bulletproof glass at teller windows to ward off attacks.

Now, mounting investigations are focusing on an attack from within that involves allegations of more than $135,000 in embezzled county funds and unauthorized wire transfers to Dubai, one of the United Arab Emirates.

Under arrest is Brenda S. Grubbs, 53, who in 2004 succeeded outgoing veteran Treasurer Geraldine Parrish, the woman who had asked for the safety glass and shepherded the county's money for 16 years.

Grubbs, who lives on a rural farming property where her husband raises chickens and cattle on Whitehall Road, was released on $20,000 bond Wednesday after being placed under arrest following an interview in her office with Goochland Sheriff James L. Agnew.

A search warrant affidavit states that Grubbs acknowledged to Agnew that she had cashed as much as $135,000 in checks drawn on county funds since August. Wachovia Bank officials began looking into efforts by Grubbs to cash a $14,000 check at the Goochland Wachovia, alerting County Administrator Rebecca Dickson, who called in the sheriff Wednesday.

Grubbs drove her black pickup truck from the county office complex to the sheriff's office, where she was arrested Wednesday evening and made a video appearance before a Charlottesville magistrate, who set bail.

According to a search warrant, investigators found documents hidden in Grubbs' sock and she told Agnew that "she was wiring money to Dubai by means of Western Union." Agnew refused to elaborate.

Grubbs, whose next court appearance is scheduled for Monday, could not be reached for comment. She and her husband own a 75-year-old farmhouse on 68 acres assessed at $589,800, according to county records.

Dickson, meanwhile, said yesterday that Grubbs has surrendered all county documents and materials — keys and credit cards — to access county bank holdings and offices and has agreed not to perform any functions associated with her office. All electronic data in the office has been preserved.

"It is a very disappointing time for the county, but I believe this will enable us to improve the financial controls that we have been struggling with for some time," Dickson said in a news release.

Dickson also said the county is investigating means of removing a constitutionally elected official from office; Grubbs, who is still identified as country treasurer on a bulletin board in her office, has not formally resigned.

Dickson said various investigative agencies are being called in to review financial records, including the auditor of public accounts. The state attorney general's office authorized a Virginia State Police investigation Thursday.

In addition, county employees from other departments temporarily are assuming duties within the treasurer's office, which is remaining open for business.

Grubbs earned $72,034 annually and was among those who first called attention to poor recordkeeping and check-cashing procedures within the county's utilities department. Audits turned up more than $200,000 in idle cash.

County Administrator Gregory K. Wolfrey resigned in January 2009 after the financial problems were disclosed. The utilities director and another employee were fired.

After the audit, Dickson and staff members said they had compiled a list of more than 30 policies and procedures to put into effect.

A court order was issued Wednesday appointing Fluvanna Commonwealth's Attorney Jeffrey W. Haislip as a special prosecutor in Grubbs' case.

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Friday, February 04, 2011

With No Interest In Debt, Bank Can’t Foreclose

Interesting article from VLW:

By Deborah Elkins
Published: February 3, 2011

Although the record is clear that defendant bank cannot enforce the missing note as a negotiable instrument due to its violation of Va. Code § 8.3A-309, this does not extinguish plaintiff’s debt or prohibit foreclosure; but the Fairfax Circuit Court says plaintiff can proceed with his claim that defendant bank cannot foreclose on his home because it has no interest in his separate debt obligation.

Virginia law clearly recognizes that enforcement of a promissory note and enforcement of a security instrument are separate and distinct remedies governed by different laws.

In October 1997, plaintiff Anthony Benkahla executed a promissory note for $194,000 payable to LL Funding Corp. On the same date, plaintiff encumbered his single family home with a deed of trust securing the note. The deed of trust also names LL Funding as the beneficiary. According to plaintiff, a succession of entities has attempted to collect on the note since 1997, and all have claimed plaintiff is in default under the note, and they are entitled to payment.

In January 2010, defendant Samuel White PC contacted plaintiff claiming that defendant Deutsche Bank(DB) is the current owner and beneficiary of the note and deed of trust and that DB has appointed them trustee under the deed of trust. White also notified plaintiff he was in default and that DB would be foreclosing on the property in accordance with Va. Code § 55-59.1B. White informed plaintiff the original note evidencing indebtedness had been lost, misplaced or destroyed and is unavailable.

Plaintiff filed suit in this court seeking an injunction to stop the foreclosure and an accounting of the amount owed on the note. Plaintiff claims 1) DB cannot foreclose because they are in violation of Va. Code § 8.3A-309; 2) DB is not the beneficiary of the note or deed of trust and thus has no authority to foreclose on the property; and 3) DB’s foreclosure action is outside the five-year statute of limitations period.

On the first claim, DB concedes it is not in possession of the note. It is clearly in violation of Code § 8.3A-309. However, plaintiff wrongly concludes that because DB cannot enforce the note pursuant to Code § 8.3A-309, they are also unable to foreclose under the deed of trust.

A mortgage or deed of trust secures a debt and not the note or underlying security. No change in the form of a debt, short of repayment, will operate to discharge a security interest. A violation of Code § 8.3A.-309 does not extinguish a borrower’s debt obligation, it merely precludes the creditor from enforcing a security as a negotiable instrument under the UCC. A violation of Code § 8.3A-309, by itself, has no effect on a creditor’s foreclosure action under Virginia’s foreclosure laws. A creditor’s foreclosure on a security property is governed by Virginia’s foreclosure statutes.

Although the record is clear that DB cannot enforce the note as a negotiable instrument due to their violation of Code § 8.3A-309, this does not extinguish plaintiff’s debt or prohibit foreclosure. Plaintiff’s first argument is without merit.

Plaintiff’s second claim, however, states a claim for which the court can grant injunctive relief. A deed of trust is enforceable only by a beneficiary of the underlying debt, and no person without an interest in the debt has authority to foreclose. Allegations that DB is not the owner of the debt obligation make a valid claim that DB is not the beneficiary of plaintiff’s debt obligation and any foreclosure by DB is invalid. Such a claim, if proven true, is undoubtedly entitled to equitable relief.

DB is correct that the complaint fails to directly allege DB does not own the loan. However, the complaint repeatedly questions whether DB has a proper interest in the note that enables them to foreclose.

DB’s attempt to foreclose is not time-barred, as the proper limitations period under Code § 8.01-241(A) is 10 years.

Finally, plaintiff has alleged sufficient facts to request an accounting.

Benkahla v. Samuel I. White (Thacher, J.) No. CL 2010-4955, Jan. 18, 2011; Fairfax Cir.Ct.; Henry S. Fitzgerald for plaintiff; John S. Hubbard for defendant. VLW 011-8-004, 7 pp.

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Thursday, February 03, 2011

Beachcomber's conviction of 'unauthorized removal' reversed

Interesting article from VLW:
By Deborah Elkins
Published: February 3, 2011

A Norfolk U.S. District Court reverses a criminal conviction for “unauthorized removal” of personal property, for a woman who cut a length of rope from a beached fishing vessel at Chincoteague National Wildlife Refuge, and took a floating life preserver from the boat, the “Freda Marie.”

This appeal only focuses on one element of the offense, the status of the property in question. The magistrate judge found beyond a reasonable doubt that defendant removed private property from the Refuge, and that the rope and life preserver/ring had not been abandoned.

Defendant was convicted under 50 C.F.R. § 27.61. This court concludes the regulation only prohibits the removal of public property or private property. Consequently, in order to successfully prosecute a defendant for a violation of § 27.61, the government must prove beyond a reasonable doubt that the property in question fits into one of those categories.

Because defendant was charged with removal of private property, and because the facts of this case allowed for the reasonable possibility that the items were abandoned, the government could not merely prove, as it contends, that the property is not public, is not owned by defendant and is therefore private property by default.

Even though the government never offered evidence of the actual owner of the boat, this court finds that the boat’s sheer size and presumed value, coupled with the fact that it was named, is sufficient circumstantial evidence for a reasonable fact finder to conclude beyond a reasonable doubt that at some point in the past some unnamed individual exercised exclusive and absolute rights over the boat and its accompanying equipment.

Abandonment requires an intentional relinquishment of rights in private property with no intention to return to that property at a later time. Further, the amount of time that has passed between the relinquishment and the subsequent discovery of the property by a third party is informative, but not dispositive.

Although it is possible one might conclude by a preponderance of the evidence that the vessel was not abandoned, defendant has certainly raised sufficient arguments such that a reasonable fact finder could not reach that conclusion beyond a reasonable doubt. The trial evidence showed that the boat had been beached in the Refuge for at least several weeks. Witnesses testified that the crew was nowhere in sight of the boat, no signs or ropes were posted to stay away from the boat, and the ranger did not testify as to any information he received regarding ownership of the boat, or that they had even investigated potential ownership of the vessel. Also, the owner had approximately one month to take action to reclaim the boat, but the government presented no evidence of such action or any intent to take such action.

It is true that a “large” vessel was likely valuable and an owner would not lightly abandon such a valuable piece of property. However, that evidence cuts both ways. The government has not presented any evidence to show that any individual has displayed an intention to return to the vessel.

The court holds there was insufficient evidence that the removed items were private property at the time defendant removed such items, as required by 50 C.F.R. § 27.61. Defendant’s conviction is reversed and remanded.

Tait v. U.S. (Davis, J.) No. 2:10cr104, Jan. 11, 2011; USDC at Norfolk, Va.; Rodolfo Cejas II for appellant; Dee M. Sterling for appellee. VLW 011-3-037, 31 pp.

Please contact us if you have questions or need legal assistance.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474