Virginia Legal Trends and More: 25 cases that changed law practice in Virginia

25 Cases That Changed Law Practice in Virginia
We look back at the cases that created a buzz during our first quarter-century of publication.

By Deborah Elkins
Published: July 4, 2011

Twenty-five years, one quarter of a century, one score and five years. In other words, a heck of a long time.

That’s how long Virginia Lawyers Weekly has tracked, analyzed and summarized cases from Virginia state and federal courts.

The ways we gather and present court cases have evolved, but our mission has remained the same: to present accurate and timely accounts of current decisions, so the legal community of Virginia can stay abreast of developing case law. We read lots of opinions, so lawyers don’t have to. They can focus on their clients’ matters, confident they have a tool to help them stay up to date on the cases most important to their own work.

We cover the court decisions vital to lawyers’ practices. These are the cases that prompt a lawyer to take action: make a note to a file, revise a pleading, or call a client or colleague.

Along with our semi-annual compilation of Important Opinions during this our 25th Anniversary year, we are highlighting 25 cases (give or take a few) that have changed law practice in Virginia.

The cases we highlight in our look back may not necessarily represent the current state of the law in Virginia. Rather, they reflect the cases that generated a buzz at the time they were handed down, and in the days and months that followed.

Over the years, we’ve worked constantly to respond to reader interest, offered in calls, comments and conversations with lawyers and judges as we continue to cover the legal community in the commonwealth. Let us know if you’d like to add to, or subtract from, our list of 25 big cases.

BUSINESS LAW

Dirt law & attorney’s fees
Frank v. Tipco Homes Inc. (1990). The little case that roared. A Virginia trial court says a buyer could void a contract with a builder because the agreement did not satisfy Va. Code § 11-2.3, which required completed performance within two years. Lawyers say it’s a “startling result” and “rush” to amend their form contracts. Trial courts around the commonwealth follow Tipco before the legislature repeals the statute.

Mullins v. Richlands Nat’l Bank (1991). For lawyers who want attorney’s fees, expert testimony “ordinarily” will be required to determine a “reasonable” fee, the Supreme Court of Virginia says. Lawyers tell us it’s a “radical change” in the way they do business.

Tullidge v. Board of Supervisors of Augusta County (1990). In a fight over relocation of a county seat, the Supreme Court takes its first look at Virginia’s sanctions statute, Va. Code § 8.01-271.1, and says questions of “reasonableness” must favor the litigant. After a series of high court cases with no sanctions, some lawyers and judges complain the Virginia statute has no teeth.

CRIMINAL LAW

DNA, harmless error, showing up for court
Spencer v. Commonwealth (1989). In this prosecution of the “Southside strangler,” the Supreme Court of Virginia upholds the reliability of “so-called” DNA fingerprinting. We report it’s the first decision by any state high court reviewing the admissibility of this “revolutionary test procedure,” and that prosecutors expect to continue exercising “extreme caution” in their use of this “expensive, highly complex procedure.”

Stevenson v. City of Falls Church (1992). A drunken driver found sitting behind the wheel of his car with his keys in the ignition, but the engine turned off, was not “operating” a motor vehicle, the Virginia Supreme Court says. Traffic court lawyers are still trying different arguments to take advantage of this loophole.

Singleton v. Commonwealth (2009). In a case “closely watched” by lawyers and courts managing busy dockets, the Virginia high court vacates criminal contempt convictions for two Tidewater lawyers who got a prosecutor’s agreement to a continuance, but neglected to tell the court. Better to get a court order before a no-show, the justices say.

EMPLOYMENT LAW

Wrongful discharge, ‘actual risk’ and noncompetes
Thompson v. Kings Entertainment Co. (1987). A Richmond U.S. District Court says an employee could sue for wrongful discharge based on a standard for termination in an employee handbook. Management lawyers work hard to get the word out to employers: Check your handbook, add disclaimers and make sure your employee signs off on the terms of employment in the handbook.

Hill City Trucking Co. v. Christian (1989). The Supreme Court of Virginia zigzags seven times in a case that initially rejected a workers’ comp award to a trucker who was robbed and shot while on duty. Lawyers debate the court’s views on “actual risk” and “positional risk.” After a rehearing and do-over of the whole briefing and argument process, the high court rejects positional risk, reverses the award of benefits and dismisses the case.

Lockhart v. Comm. Educ. Systems (1994). In a 4-3 split, the Supreme Court of Virginia says at-will employees can sue for wrongful discharge in state court, based on gender or race discrimination, and state-court employment practice booms in Virginia.

Doss v. Jamco (1997). Lawyers who represented employees had fun while it lasted, but the General Assembly passed “Lockhart” amendments to the Virginia Human Rights Act, and in Doss, the Supreme Court severely curtails a Virginia common-law wrongful discharge claim for discrimination based on public policies in the VHRA. Plaintiff lawyers turn to other arguments to chip away at the public-policy exception to at-will employment.

James Ltd. v. Saks Fifth Avenue Inc. (2005). Drafting and litigating noncompete agreements continues to generate business for lawyers. In this circuit court case, a high-end retailer in Tysons Galleria wins a $1.6 million jury award on a noncompete that kept a retail competitor’s top salesman from working within one mile of the competitor for three years after he left the store.

Raytheon Technical Services Co. v. Hyland (2007) (2009). A pair of Supreme Court opinions in an executive’s defamation suit against her former employer prompts HR managers to scrutinize personnel evaluations to sort the “opinions” from the factual statements that an employer may need to prove before a jury.

FAMILY LAW

Support payments, attorney’s fees & cohabitation
Srinivasan v. Srinivasan (1990). The Virginia Court of Appeals says a spousal support award can take into account what the payee spouse should be earning, with “reasonable time” to find work. Lawyers start using vocational experts to litigate “imputed income.”

Lee v. Lee (1990). The Virginia Court of Appeals puts the fear in lawyers with its pronouncement that signing off on orders with the boilerplate “Seen and Objected To” does not cut it under the contemporaneous objection rule. In a rehearing, the appellate court gives more guidance on how to give the trial judge a fair shot at correcting an error before you take it up.

Antonelli v. Antonelli (1991). A dad whose income dropped after a voluntary job change can’t reduce his child support; the Supreme Court of Virginia says he “gambled with his children’s ability to receive his financial support, and lost.”

Wilson v. Wilson (1997). Domestic relations lawyers wanted attorney’s fees for appeals, but weren’t sure how to get them. Lawyers respond to Wilson’s practice tip – ask for fees in the opening brief and prove your fees on remand in the trial court – and tell us more fees are being awarded to discourage frivolous appeals.

Sullivan v. Jones (2004). One of the “mom’s move” cases decided by the Court of Appeals, this case upholding an out-of-state move 11 months after it happened encouraged parents to move first and ask permission later, some lawyers said.

PERSONAL INJURY

When are landlords liable?
Deem v. Charles E. Smith Mgmt. (1986) The 4th U.S. Circuit Court of Appeals says that under Virginia common law, landlords have no duty to protect a tenant from criminal acts by a third party. Plaintiff’s lawyers head to state court to challenge that view of the law and continue to test the parameters of a possible duty.

Klingbeil Mgmt. Group Co. v. Vito (1987). The Supreme Court of Virginia holds the line for landlords, saying a landlord was not liable to a tenant who was sexually assaulted and that state law preempts a local ordinance that required deadbolt locks.

Taboada v. Daly Seven Inc. (2006). After rehearing, the Virginia high court upholds a decision in favor of a Roanoke motel guest shot in the parking lot. Lawyers say the case will make it easier for a guest attacked by a third party to sue an innkeeper.

Med-mal cap tested
Boyd v. Bulala (1986) and Etheridge v. Medical Center Hospitals (1989). In Boyd, a Charlottesville federal judge strikes Virginia’s statutory cap on medical malpractice damages as a violation of the Seventh Amendment jury trial right, but the Supreme Court of Virginia upholds the cap in Etheridge, and lawyers say settlement negotiations speed up but offers are discounted.

Punitives for drunken driving
Booth v. Robertson (1988). This case may have set a high standard for a punitives claim in a p.i. case against a drunken driver – the defendant driver had a 0.22 blood alcohol content and was driving the wrong way down a ramp on a dark, rainy night after ignoring another motorist’s warning – but it encourages p.i. lawyers to go for punitives, as demonstrated by wins in local Virginia trial courts.

Accident reports & doctor “write-offs”
Overton v. Dise (1995). This trial court decision that says an auto-accident defendant has to give the plaintiff access to an insurance carrier’s claim investigation file, with defendant’s day-after statement to the claims adjuster. Over the next few years, lawyers track circuit court rulings in accident report cases all over Virginia. To help them out, VLW debuted its “Virginia Lawyers Weekly On-line” service in 1996. This service is now known as, of course, valawyersweekly.com. Our Boston-based “vice-president of technology” says “if an attorney has been waiting for a reason to join the Internet, it’s here.”

State Farm v. Bowers (1998) and Acuar v. Letourneau (2000). Lower-court contests over a plaintiff’s right to recover medical expenses that were “written off” by a healthcare provider set the stage for Bowers, the high court holding that a plaintiff couldn’t get med pay for more than the amount a doctor accepted from a health insurance plan. But in Acuar, the Supreme Court says a p.i. plaintiff could try to prove his damages by using the full amount of the doctor’s bills.

Nonsuits, UM for ‘users’ outside a vehicle, distress
Dodson v. Potomac Mack Sales (1991). This Supreme Court of Virginia case sends “shock waves” through the legal community, when the court says a plaintiff who voluntarily nonsuited a wrongful death action does not get the extra six months under the nonsuit statute to refile the case. Later that year, the General Assembly amended the controlling statutes to provide a six-month tolling provision.

Great American Ins. Co. v. Cassell (1989). A firefighter’s estate wins uninsured motorist coverage after he was killed by a hit-and-run driver while standing 25 feet away from his parked fire truck, “using” the truck. The decision prompts a series of cases that looked at variations on the “use” theme.

Russo v. White (1991). No look back at p.i. cases would be complete without a mention of this Virginia Supreme Court case that turned away a claim for emotional distress based on telephone harassment. It’s probably cited somewhere in a Virginia court at least once a week.

Alcoy v. Valley Nursing Homes Inc. (2006). Nursing-home litigation continues to be a growth industry, and the Supreme Court says a nursing-home patient’s suit alleging sexual assault is more like a premises liability claim than a med-mal action, and damages aren’t limited by the med-mal cap.