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A run on general district court

2012-01-30T15:50:00.004-05:00

A run on general district court
Change in limit didn’t prompt wave of filings, but protective order law did

By Peter Vieth
Published: January 30, 2012

Tags: Law Firm, General District Courts

General district court judges and clerks anticipated a run on their courts after the 2011 General Assembly passed several measures opening up access to their courts.

One new law, raising the jurisdictional limit to $25,000, left court personnel expecting a flurry of new filings, with personal injury attorneys taking the fast track through district court on smaller-value cases.

That hasn’t brought a wave of new litigants to general district court, but a different new law produced a surprise and an inundation of people seeking to use the court to get a protective order.

Legislation approved by the 2011 Assembly now allows courts to issue protective orders in cases of dating violence, sexual assault and stalking, even when the victim is not a member of the accused’s household. The cases involving non-household members go to general district court. Previously, most protective order cases were heard by juvenile and domestic relations courts.

“That thing opened a floodgate of litigation,” said Judge Robert A. Pustilnik of Richmond General District Court, referring to the new protective order legislation. Court officials from various localities said there was an initial rush of petitioners seeking protective orders when the new law took effect July 1.

Virginia Beach lawyer Kirk Levy said the wave of litigants seeking restraining orders were holding up hearings on the collections cases he had filed. A petition for a protective order has top priority on the court’s dockets, so other cases had to wait.

“Slowly but surely, it’s beginning to dwindle,” said Andre Henry Mayfield, general district court clerk in Virginia Beach. “People are getting settled in with it now.”

Mayfield made it clear, however, that the numbers were not dropping to pre-July levels. He said where his court might see four to five people a month applying for protective orders in years past, there are 10 to 15 petitioners a month now.

Court officials say many of the petitions for protective orders are frivolous. Some petitioners have ulterior motives, such as a landlord seeking a fast eviction, Mayfield said.

David M. Hicks, clerk of the Richmond Manchester General District Court, said he had to process a petition filed by a woman angered because a neighbor blew leaves into her yard. “People are using these protective orders in absolutely absurd ways,” Hicks said.

Both clerks say they have to prepare the paperwork for such petitions, notifying the police department and the sheriff. A deputy has to serve the paperwork on the defendant.

“There’s a lot of behind-the-scenes work before it gets to the court,” Hicks said.

Hicks said he does not question the importance of access to protective orders in proper cases. “Protective orders are very, very important if they’re used in the right way. These are not,” he said.

Pustilnik feared even more unfounded petitions if legislation passes to allow protective orders for the custody of animals. House Bill 363, sponsored by Del. Jennifer L. McClellan, D-Richmond, is before the House Courts committee.

Under the law that took effect in July, protective orders can target “acts of violence, force or threat” causing injury or “reasonable apprehension” of injury or death. While a few petitions may be testing the limits of that definition, an advocate for victims of violence says the new law is doing what was intended.

Gena Boyle, of the Virginia Sexual and Domestic Violence Action Alliance in Charlottesville, said victims who previously had to file criminal warrants and try to persuade a magistrate to issue an arrest warrant now are able to quickly seek protection from a judge.

Boyle said the revised law – crafted after two years of study – has been particularly effective in helping college students confronted with violence or stalking. “We just wanted to find a way that would cover these victims,” she said.

Boyle said no figures were available yet on the number of petitions filed and issued since July.

Pressure for change grew after the 2010 death of University of Virginia student Yeardley Love. Love’s ex-boyfriend, George Huguely, is charged with murder in the case. He reportedly admitted to police he broke down a locked door, shook Love and repeatedly struck her head against a wall.

Police allegedly have evidence of earlier incidents or threats of violence by Huguely directed at Love.

P.I. docket popular in GDCs.

Virginia’s district courts seem to have taken in stride the increase in civil cases coming from the court’s expanded jurisdiction.

“Most people thought that personal injury cases were going to go through the roof,” but that “has not been the case,” said Virginia Beach clerk Mayfield.

“It’s been wonderful,” said Suzette L. Hutchens of Richmond. “You get to court quicker” in district court, she said. Presenting medical bills with authenticating affidavits is a lot easier and cheaper than taking doctors’ depositions. “You can try these cases in an hour,” she said.

“For the average case, it just makes more sense to bring it in the general district court,” Hutchens said.
Judges also have voiced approval, said Reston lawyer Steven M. Garver, who chaired a committee that studied the proposed jurisdictional change for the Boyd-Graves Conference.

While there has been some increase in case numbers, the judges reported that attorneys seemed to know what they were doing in trying district court cases. Judges in Fairfax asked for special notice for cases expected to take two hours or more, but Garver said most run-of-the-mill p.i. cases can be tried in less than two hours.

Garver said there was talk that some insurance companies – possibly concerned about being blindsided with damages evidence – would appeal every district court judgment to circuit court. That threat has not materialized, according to Garver and other lawyers VLW contacted.

“The bottom line is most adjusters are just happy to have a decision made, and they can close the file,” Garver said.

“I haven’t heard of a rash of appeals,” said Roanoke lawyer Peter A. Katt. Katt reported he maxed out a district court claim with a recent $25,000 judgment in Botetourt County in a rear-end collision case, and the award was not appealed.

Pustilnik, the Richmond judge, said he’s setting three to five civil cases for trial every day. “Really I think it’s a boon to both the plaintiffs’ and defense bars,” Pustilnik said.

One potential obstacle for defendants – the need to post a bond in the amount of judgment for appeals to circuit court – was addressed with a provision allowing confirmation of insurance coverage to be filed in place of bond.

Judges split on whether you could amend cases filed before July 1 to increase demands into the new jurisdictional territory. “Most judges ruled you could amend,” Garver said.

Virginia Beach lawyer Kevin Duffan said he found the higher jurisdictional cap was resulting in more cases settled rather than cases tried. He pointed out the new jurisdictional limit is the same as the minimum limits of Virginia auto insurance policies.

Duffan said the change has not led to clogging of the Virginia Beach district docket. “It’s actually worked out very well,” he said.

Tim Quick, immediate past president of the Virginia Beach Bar Association, said some judges opened up a 2 p.m. docket for the extra contested cases to keep attorneys from having to wait long hours for their cases to be heard.

Quick said he hasn’t seen any problems with the extra civil cases in any of his regular venues, including Norfolk, Chesapeake, Portsmouth and Virginia Beach.

While one argument for expanding district court jurisdiction to $25,000 was the perceived need to keep up with inflation, the increase is really a fundamental change from the original civil role of district courts.

Alexandria General District Chief Judge Becky J. Moore noted the court started in 1952 with authority to hear cases up to $1,000 in value. Adjusting for the increase in the consumer price index since then, the court’s jurisdiction would be capped at only $8,488 today, she said.

Prof. Hamilton Bryson at the University of Richmond law school takes the view that the nearly threefold increase in the civil authority of district courts is really an effort to “decrease the circuit court workload by offloading the cases of small value to the district court.”

Nevertheless, the change increases access to the courts, “so it’s probably a good thing,” Bryson said.
Moore, the Fairfax chief judge, said she fears the case count will rise. “The numbers themselves may not seem significant, but these cases are quite time-consuming,” she said.

Moore said of 25 civil cases on the Fairfax district docket one day last week, four involved claims for $25,000 in damages.

Regardless of the extra caseload, Pustilnik said he welcomes the new faces of attorneys he now sees trying civil cases in his court. “It’s made our docket much, much more interesting,” he said.

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Family Law: Dad must pay half for college

2012-01-26T11:44:00.000-05:00

Dad Must Pay Half for College

By Deborah Elkins
Published: January 26, 2012

Tags: Family Law Attorney, Domestic Relations, Judge Stephen R. McCullough, Virginia Court of Appeals

In mother’s show cause proceeding, the Court of Appeals affirms a trial court order requiring father to pay one-half of his son’s college attendance under a 1996 agreement incorporated in the final divorce decree; the trial court properly excluded evidence of mother’s alleged breaches and interpreted the agreement to obligate father on college costs without being consulted.

Parents divorced in 1996. Their final divorce decree incorporated an agreement regarding their son’s education. The agreement provided for sharing expenses equally and expressly required consultation with father through grade 12. After son began college, mother petitioned for a rule to show cause, alleging father’s breach of his obligations under the divorce decree. Father responded that the agreement required consulting him before he could be liable for college costs. He also argued mother had breached the agreement. The trial court excluded father’s evidence of alleged breaches and interpreted the agreement not to require consulting father on college.

On appeal, father challenges the trial court’s exclusion of his evidence of other alleged breaches and its interpretation of the agreement. We affirm. Admissibility of evidence is a discretionary determination. The contract defense of material breach does not apply in show cause proceedings to enforce an agreement incorporated into a decree under Va. Code § 20-109.1. Opening the door to evidence of mutual allegations of noncompliance would have the effect of turning minor skirmishes into an Armageddon of recriminations. Contract principles do apply to interpretation of agreements. Ambiguity is a question of law we review de novo. The agreement here unambiguously requires father to pay one-half of college costs and does not specifically require consulting him. A paragraph included in the divorce decree by its terms is limited to the child’s minority and specifies a geographic scope inappropriate for college. The trial court correctly interpreted the agreement not to require consulting father on college. We remand for a determination of mother’s appellate attorney’s fees to which she is entitled under the express terms of the agreement.

Bousman v. Lhommedieu (McCullough) No. 0932-11-4, Jan. 24, 2012; Fairfax County Cir. Ct. (Devine) David L. Duff for appellant, Stephen G. Cochran for appellee. VLW 012-7-018 (UP), 8 pp.

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Fighting for justice on behalf of injured Virginians

2012-01-25T13:13:00.000-05:00

Fighting for justice on behalf of injured Virginians

Tag: Charlottesville Personal Injury Attorney

Yvonne Griffin was part of the Charlottesville Legal Delegation lobbying the State Capital for the Virginia Trial Lawyers Associate on Justice Day. Yvonne and her colleagues visited our local Delegates and State Senators promoting passage of bills to protect injured people's rights in the courtroom.

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Charlotteville, VA
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Fugitive spotted on reality TV show faces judge

2012-01-25T11:54:00.002-05:00

Fugitive spotted on reality show appears in court

Authorities say suspect in sex crime fled country to avoid trial 10 years ago

By Alex Bridges -- abridges@nvdaily.com
Tag: Charlottesville Attorney

View larger image
William Edgar Dick III

WINCHESTER -- A man authorities say fled the country to avoid trial on a sex crime charge pleaded guilty Tuesday for failing to appear in court 10 years ago.

William Edgar Dick II appeared in Frederick County Circuit Court with his attorney, public defender Timothy Coyne.

Dick, 30, with a last known address of Polk City, Fla., pleaded guilty to the felony charge of failing to appear in the court Jan. 9, 2002. Retired Judge Benjamin Kendrick accepted the plea.

Kendrick set Dick's charge of forcible sodomy for a jury trial April 27. The judge delayed sentencing on the failure to appear charge until the same date. Commonwealth's Attorney Glenn Williamson did not object to continuing Dick's sentencing to the April date.

Dick remains held at the Northwestern Regional Adult Detention Center.

Authorities accuse Dick of committing forcible sodomy against a male victim on June 10, 2000. A grand jury indicted Dick on the charge a year later, court records show. A judge scheduled his jury trial for Jan. 9, 2002, but Dick failed to appear. Authorities searched unsuccessfully for the defendant, who was declared a fugitive by the court.

Investigators with the Frederick County Sheriff's Office continued to look for clues into Dick's whereabouts and had hints he may have fled the country, possibly to Costa Rica.

In 2010 an investigator received a tip from a friend of the alleged victim in the sodomy case that the fugitive had appeared as a bartender in an episode of the MTV reality show, "The Hills," which the network filmed in Costa Rica. Further investigation confirmed Dick appeared in the episode under a different name, according to documents filed in U.S. District Court in Harrisonburg.

A federal judge in U.S. District Court in Harrisonburg on Oct. 25, 2010, issued a complaint and a warrant for Dick's arrest for unlawful flight to avoid prosecution.

Costa Rican authorities handed Dick over to United States custody, although extradition policies and other hurdles had delayed the process for months. Dick returned to the U.S., and ultimately Frederick County, in August.

A Frederick County Circuit Court grand jury indicted Dick on the charge of failing to appear in September.

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Bills seek notice to parents when a student is facing discipline

2012-01-24T14:40:00.002-05:00

Parental notification about student disciplinary investigations sought

By: Jim Nolan | Richmond Times Dispatch
Published: January 23, 2012

Tag: Charlottesville Attorney

Schools would be required to notify parents if their child is the subject of a disciplinary investigation, under four bills up for consideration in the state Senate and House of Delegates.

The legislation, sponsored by Northern Virginia lawmakers, was inspired, in part, by incidents in Fairfax County in the past few years in which two students took their own lives following school disciplinary proceedings.

Steven Stuban, the father of one of the students, former Woodson High School football star Nick Stuban, will be in Richmond today to support the proposed legislation.

Currently, there is no statutory requirement for parental notification, though school districts may do so at their discretion. Proposed legislation would make it a requirement.

Senate Bill 164, sponsored by Sen. J. Chapman Petersen, D-Fairfax, would require parental notification before an administrative disciplinary investigation is undertaken that could result in the student's expulsion, or the notification of law enforcement.

Sen. David W. Marsden, D-Fairfax, proposes an even broader notification parameter in Senate Bill 391, requiring that parents be notified of an administrative investigation into any potential violation of school board policy.

Del. L. Kaye Kory, D-Fairfax, is sponsoring companion legislation in the House under House Bill 656.

House Bill 1080, sponsored by Del. Timothy D. Hugo, R-Fairfax, would require parental notification before a school administrator questions a student over a serious violation of school policy — specifically if such a violation could result in a student expulsion or referral to police.

The Senate bills are scheduled to be heard in the Education and Health committee on Thursday. The House bills will be considered in the Committee on Education subcommittee that also meets Thursday.

jnolan@timesdispatch.com (804) 649-6061

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Personal Injury Attorney Yvonne Griffin Recognized as a "Distinguished Dozen"

2012-01-20T16:43:00.000-05:00

Dozen: Griffin makes helping women her law

“She’s never too busy to answer a question. I think everyone feels comfortable knocking on her door.”

By: Samantha Koon | The Daily Progress
Published: December 27, 2011

When Yvonne Griffin is not fighting for her clients in the courtroom, she is fighting to empower other women in the legal profession.

“She’s done a lot for the field of law in Virginia. She’s done a lot for women,” said Mike Griffin, Griffin’s husband of 31 years.

Yvonne Griffin was made a partner at Tucker Griffin Barnes, P.C. in 1997. Mike Griffin works as the firm’s business manager.

“She’s really been a great mentor to the women coming through the firm. She always takes the young attorneys under her wing,” he said.

Of the seven partners at Tucker Griffin Barnes, only one, founding partner Bill Tucker, is male. Tucker said this fact is due largely to Griffin’s influence.

Together, he and Griffin founded the Women’s Legal Group at their firm, which provides legal counsel “from a woman’s point of view.”

“A woman lawyer sometimes has a different perspective,” Tucker said. “We [men] don’t have feelings, but a woman does. Maybe that’s not such a bad thing in the law.”

Sometimes, Griffin noted, clients are drawn to Tucker Griffin Barnes because they are seeking a female attorney.

“When you run your own business, you are constantly looking for ways to differentiate yourself,” Griffin said. “I’ve had men who’ve hired me who have said ‘women are meaner than men,’” she added.

Griffin is known to be an “aggressive advocate” for her clients, Lynn Bradley, another partner at Tucker Griffin Barnes, said, but outside of the courtroom she said Griffin is very even-tempered and approachable.

“She’s never too busy to answer a question. I think everyone feels comfortable knocking on her door,” Bradley said. “I think she’s a really good mentor for attorneys whether they are male or female.”

Griffin is active in legal organizations that serve men and women alike. She serves on the governing board for the Virginia Trial Lawyers. In the past she has been a member of the American Bar Association, the Thomas Jefferson Inn of Courts and the Association of Trial Lawyers of America.

Though Griffin is a successful full-time lawyer, it is hard to find a more dedicated wife and mother.

Even with a lengthy list of college degrees, personal achievements and community involvement, she lists her marriage and son, Sam, 20, as her proudest accomplishments.

Perhaps that is why Griffin is such a strong advocate for other women who are juggling their professional lives with their responsibilities at home.

Together with Tucker, Griffin started the Bring Your Babies to Work program at their firm nearly two decades ago.

After one of Tucker’s paralegals became pregnant, the firm was faced with the possibility of losing a strong member of their legal team.

“We decided we would rather have her at 80 percent capacity than at zero percent capacity,” Yvonne Griffin explained, and so the firm began to allow mothers to bring their infants to work with them every day, rather than spending money on costly child care in the first weeks of life.

This allows mothers to spend more time with their children, but also brings them back into the workforce sooner after giving birth, even if they may be a bit distracted.

“It’s important for babies and mamas to bond,” Griffin said. “It’s been a good thing all the way around.”

Though Griffin did not enact this company policy single-handedly, she was instrumental in making it “more than words on a page,” Bradley said. She added that Griffin went out of her way to make women feel comfortable with the unusual policy, and encouraged them to bring their children to work.

When Bradley was an associate with Tucker Griffin Barnes she became pregnant with her daughter. The firm allowed her to work part-time — as little as two days per week — so that she could spend more time with her child.

“As a lawyer, that’s practically unheard of,” she said. As her daughter got older, Bradley added more and more time to her workload before coming back full-time after her daughter started kindergarten.

“They didn’t penalize me in any way when I came back,” she said. In fact, the firm welcomed Bradley as a partner just one year later.

Griffin said she knew she wanted to be a lawyer as early as the fifth grade, and has been practicing law since graduating from the College of William & Mary’s law school in 1988. For the past 18 years, she has served exclusively as a personal injury lawyer. Her caseload deals with car wrecks, wrongful death and medical malpractice.

“I enjoy helping people who need help,” she said. “It’s one of the paramount reasons I’m a lawyer.”

Griffin’s caring and generous spirit is evident outside of the office, as well. She is involved with the Blue Ridge Chapter of the National Multiple Sclerosis Society, where she served as vice president from 2004 to 2005 and secretary in 2006.

“Being a part of the community where you practice is also very important. I like doing things that make the community a better place,” Griffin said.

Griffin’s husband noted her involvement with efforts such as the Toy Lift and Buford Middle School’s Rule of Law Day.

In 2000, Griffin and her law partners put on the area’s Fourth of July fireworks celebration.

“There just wasn’t another organization that would or could take the necessary steps to make this important and historic event happen,” Mike Griffin said, adding that Yvonne was involved in the production of the fireworks show for several more years.

Despite all of her accomplishments, Griffin is humble and grateful to her coworkers at Tucker Griffin Barnes for their expertise and dedication to the legal field.

“I’m proud of the firm [Tucker and I] built. In 20 or 21 years, we have built a really good law firm with a good reputation,” she said. “It’s gratifying to have started something that is doing so much good for people.”

Yvonne T. Griffin
Tucker Griffin Barnes P.C.
Charlottesville, VA
434-973-7474
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Divorce - Ex-wife, not widow, gets life insurance

2012-01-19T12:45:00.001-05:00

Ex-Wife, Not Widow, Gets Life Insurance

By Deborah Elkins
Published: January 18, 2012

Tags: Divorce Attorney, Domestic Relations, Justice Cynthia D. Kinser, Supreme Court of Virginia

An employee’s ex-wife collects his life insurance benefits after his death as the named beneficiary of a Federal Employees’ Group Life Insurance policy because federal law preempts Va. Code § 20-111.1(D), which otherwise would make the ex-wife liable to her ex-husband’s widow for those benefits; the Virginia Supreme Court reverses the decision for the widow.

In December 1996, Warren Hillman named his wife Judy Maretta the beneficiary of his FEGLI policy. They divorced in 1998 and Warren married his wife Jacqueline (Hillman); they were still married when Warren died in 2008. Maretta received the $124,558 death benefits. Hillman sued Maretta, arguing that under Va. Code § 20-111.1(D), Maretta was liable to Hillman for the death benefits. The trial court ruled for Hillman.
In the event of divorce, Code § 20-111.1(A) revokes any revocable beneficiary designation contained in a then-existing written contract owned by one party that provides on the payment of any death benefit to the other party. But subsection (D) says if subsection (A) is preempted by federal law with respect to payment of a death benefit, a former spouse who, not for value, receives the death benefit is personally liable to the person who have been entitled without preemption.

In contrast, the Federal Employees’ Group Life Insurance Act, 5 U.S.C. § 8701 et seq., contains an order of precedence that directs to whom benefits under a FEGLI policy are paid. FEGLIA also contains a preemption provision. In addition to the order of precedence in 5 U.S.C. § 8705(a) and the preemption provision in 5 U.S.C. § 8709(d)(1), FEGLIA and the regulations promulgated thereunder contain provisions relevant to the specific preemption question before us.

Code § 10-111.1(D) conflicts with federal law by standing as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Therefore, we hold that Code § 20-111.1(D) is preempted by FEGLIA.

We are aware that our decision today stands in contrast to a majority of state court decisions.
Because Congress intended for FEGLI benefits to be paid and to belong to a designated beneficiary, we conclude that FEGLIA preempts Code § 20-111.1(D).

Reversed, and final judgment for Maretta.

Dissent

McClanahan, J., joined by Millette, J.: In my opinion, the high threshold for imposing preemption in the instant case has not been met. I do not believe Code § 20-111.1(D) (triggered itself upon federal preemption of subsection A of the statute) is preempted by the Federal Employees’ Group Life Insurance Act.

I agree with the majority of state courts in other jurisdictions that have addressed the issue of preemption under FEGLIA and have similarly concluded their state domestic relations laws, in creating an equitable claim for an amount equal to the FEGLI insurance proceeds that have been paid to the named beneficiary, are not preempted by FEGLIA. I would affirm the judgment of the circuit court.

Maretta v. Hillman (Kinser) No. 102042, Jan. 13, 2012; Fairfax Cir.Ct. (Devine) George O. Peterson, Tania M.L. Saylor for appellant; Daniel H. Ruttenberg for appellee. VLW 012-6-009, 32 pp.

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Personal Injury - Owner can be sued for missing steps

2012-01-18T11:47:00.002-05:00

Owner Can Be Sued For Missing Steps

By Deborah Elkins
Published: January 9, 2012

Tags: Personal Injury Attorney, Judge Everett A. Martin Jr., Norfolk Circuit Court, Premises Liability, Virginia Circuit Courts

A Norfolk Circuit Court says a prospective buyer who entered a Fannie-Mae-owned home and was seriously injured when he walked down unlit basement stairs that were missing multiple steps at the bottom, can sue Fannie Mae, but not the realty company or brokers, for common law negligence and negligence per se.

A defense of contributory negligence is rarely raised by demurrer because the complaint rarely shows it. No defendant specifically raised contributory negligence in the demurrer. FNMA raised it in its supporting memorandum, citing Baker v. Butterworth, 119 Va. 402 (1916), and Smith v. Wiley-Hall Motors Inc., 184 Va. 49 (1945).

Would the present Supreme Court rule as it did in Baker? I think not. The substantive law of contributory negligence has not changed since Baker and Smith, but the appellate reception of pretrial dismissals of negligence actions is now quite frosty. The Supreme Court has often criticized actions by circuit courts that “short-circuit” litigation. Motions to strike are disfavored in negligence actions. As tempting as it might be to find contributory negligence as a matter of law on the face of this amended complaint, if I were to do so I would probably be remiss if I did not also instruct the clerk to stamp, “REVERSE ME!” in large orange letters on the cover of the file he sends to Richmond. Thus, I believe I must consider the other arguments defendants have made.

What are the agents here alleged to have done? “On information and belief” they marketed the house as having a basement. They “or a person or persons on their behalf” took photographs of several rooms and placed a sign in the house and a lockbox behind it; they listed the property for sale and someone entered the same day; someone from JSB Realty gave plaintiff the combination to the lockbox. There is no allegation they knew of the danger; sufficient facts have not been pleaded to show they ought to have known it. There is no allegation that any agent or employee of JSB had inspected the property, or had shown it to a prospective purchaser before plaintiff entered, or was on the property when plaintiff fell. There is no allegation anyone warned JSB or the two defendant brokers of this dangerous condition. There is an allegation FNMA had an inspection made in late August 2009, but there is no claim JSB or the two brokers ever saw it or that any problem with the stairs was noted. Rule 3:18 (b) allows negligence to be pleaded “without specifying the particulars,” but there must be sufficient facts alleged to demonstrate a duty and a breach.

Plaintiff alleges a real estate agent engaged to sell property has the duties to keep the premises reasonably safe and to inspect, repair and maintain the premises. He cites no authority in support of his claim, and Turner v. Carneal, 156 Va. 889 (1931), is against him on this. I sustain the demurrer of JSB and the two brokers to the claim for common law negligence.

I overrule FNMA’s demurrer to the common law negligence claim. As the owner of the property, FNMA had a duty to use ordinary care to have the premises in a reasonably safe condition for an invitee’s visit. An invitee entering a building with an interest in purchasing it might reasonably be expected to look at the basement. A dark stairway with several missing steps is not reasonably safe.

The court also sustains the demurrers of JSB and the brokers to plaintiff’s claim for negligence per se; a real estate agent engaged to sell property does not have a legal or equitable interest in it or control it for purposes of the Virginia Maintenance Code. I overrule FNMA’s demurrer to this claim.

The court sustains FNMA’s demurrer to a claim for nuisance; to allow a nuisance claim to proceed on these facts would confuse the causes of action.

Moran v. Fed. Nat’l Mtge. Ass’n (Martin) No. CL 10-6841, Nov. 21, 2011; Norfolk Cir. Ct.; Joseph J. Perez, Alexander K. Page, Herbert V. Kelly Jr., Stephen A. Horvath, R. Craig Gallagher for the parties. VLW 011-8-222, 5 pp.

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Divorce - Courts struggle with which parent should pay for private school in divorce

2012-01-17T14:18:00.000-05:00

Courts struggle with which parent should pay for private school in divorce

By Peter Vieth
Published: January 16, 2012

Tags: Divorce Lawyer, Domestic Relations, Judge Dennis Lee Hupp, Virginia Court of Appeals News

The Virginia Court of Appeals offered guidelines 16 years ago for judges on when a spouse can be forced to pay for a child to attend private school.

But battles over tuition bills have continued in Virginia divorce courts.

When a parent questions the obligation to pay the extra money for private school, judges often have to parse vaguely worded domestic settlement agreements and probe family needs and traditions to make a ruling.

A new opinion from Warren County is the latest case to address the issue. The judge there gave a brief endorsement of public schools, a position in harmony with the standards set out by the appeals court in 1996.

In Sullivan v. Sullivan (VLW 011-8-228), Circuit Judge Dennis L. Hupp was faced with a mother who objected to sharing the cost of sending her 16-year-old daughter to Randolph Macon Academy.

The girl’s attendance at a private school was a point of conflict between the parties. Hupp was sympathetic to the mother’s plea. “The husband insisted on enrolling [the daughter] there over the wife’s objection at a time when the parties were experiencing serious financial difficulties. The public schools were apparently not considered as an option even though they serve the needs of thousands of young people quite well,” Hupp wrote.

The judge ordered only a minimal contribution by the mother to the girl’s education expenses. “A private school education was not a necessity. It was a choice the husband made for his daughter, and he must bear the cost of it for the most part,” Hupp wrote.

The Sullivan opinion is consistent with the direction of Solomond v. Ball, the seminal appeals court case from 1996. In Solomond, the Court of Appeals offered a list of factors for deciding whether a noncustodial parent should be required to contribute for a child’s private school expenses. The factors include the availability of satisfactory public schools, the child’s prior attendance at private school, the child’s special emotional or physical needs, religious training and family tradition.

The mother in Solomond sought to move the couple’s two sons from one private school to a more expensive academy. Even though the mother herself had attended the proposed new school and testified it was “the preferred institution,” the court found no need for the transfer. The Court of Appeals directed the trial court to roll back the father’s support obligation.

While many of the reported decisions involving private school tuition come from the populous areas of Eastern Virginia, one practitioner says it’s also a “big deal” in the Lynchburg area because of the popularity of a private school founded by the late Rev. Jerry Falwell.

Betsy H. Phillips of Rustburg said many parents enroll children at Lynchburg’s Liberty Christian Academy because the school promotes scholarships at Liberty University for those who achieve a certain grade level.
“It’s a gigantic deviation factor in child support,” Phillips said. “Judges are very reluctant to force a child to change school if they’re already enrolled and doing well,” she said.

Guided by the wisdom of Solomond, Virginia judges have sought to balance parental values and stability for children with financial realities faced by divorced parents. Here is a quick catalogue of how they have ruled:

Where a mother had authority under a prior order to make decisions about the children’s schooling, father did not oppose the choice of a parochial school, and father presented no evidence that the school was not in the child’s best interests, the trial court did not err in adding private tuition to the father’s child support obligation, the Court of Appeals held in 1997. Newland v. Newland, VLW 097-7-267.

Where the parties’ contract clearly required the father to pay only for a private institution deemed suitable and approved by both parents, the father could not be required to pay for his daughter’s tuition at Rice University, even though he agreed Rice was an appropriate school, the Court of Appeals said in 1997. Eissler v. Stange, VLW 097-7-160.

In another 1997 opinion, the Court of Appeals decided a father’s contention that he could no longer afford to send his children to private school, without more, failed to relieve him of his obligation to cover half of the school bills. The children had attended private schools throughout the parents’ marriage and were in the middle of the school year when the father sought a transfer to public schools. Even though the trial court had come to the same conclusion, however, the appeals court remanded the case with instructions that the trial judge provide written findings to support his order. Wheaton v. Wheaton, VLW 097-7-275.

Where the couple’s high school-age children had attended a private Christian school almost all of their academic careers, there was a demonstrated need for them to remain in that school, and where the parents had the ability to pay the bills, a circuit court judge refused to order the children removed from the school at the father’s request. The decision came in 1999 in a Caroline County case. Ratcliffe v. Ratcliffe, VLW 099-8-179.

A trial court rejected a mother’s bid for child support payments in excess of the statutory guidelines in light of the 13-year-old daughter’s enrollment in private school, finding the mother’s contributions to the marriage were an integral part of the couple’s lifestyle, which included private school for their offspring. The 2000 ruling came from Richmond Circuit Court in Hargrave v. Wienckowski, VLW 001-8-017.

Where a couple’s son was having troubles in public school that were evidently resolved with enrollment at a private military school, and the trial judge weighed the Solomond factors to decide the father should pay extra for the private education, the Court of Appeals affirmed the decision in 2001. Not only were the father’s appeal arguments procedurally barred, the record reflected no reason to invoke the good cause or ends-of-justice exceptions, the court found in Dick v. Dick, VLW 001-7-569.

The Court of Appeals made it clear in 2002 that private school tuition is not considered a child care expense under the statutory guidelines in a case where the mother unilaterally enrolled the couple’s two children in Alexandria’s Bishop Ireton High School. Before their split, the couple had not sent either of their children to a private school, and the mother enrolled the children at Bishop Ireton without the father’s consent. The court remanded the case for recalculation of the father’s support obligation in Newland v. Newland, VLW 002-7-129.

Where a settlement agreement required the father to pay if the mother chose to send their child to a private school “subject to husband’s approval of such school which approval shall not be unreasonably withheld,” a Fairfax County circuit judge held the father was on the hook for secondary school and college tuition payments. That language did not give father a “veto” power, the judge found in Rosen v. Smith, VLW 002-8-250.

Even though the daughter had attended private school from kindergarten to grade three, a Chesterfield County circuit judge refused to break from the guidelines to order the father to help pay the private tuition. The judge found no family tradition for private schools, no special needs of the child, and no lack of satisfactory public schools in the 2003 case of Woodward v. Woodward, VLW 003-8-174.

A father could not escape his tuition obligation where he signed an agreement to pay half of the “educational costs” of his minor children, where he was aware the children were in private school at the time of the divorce and afterwards and where he failed to show inability to pay. The 2003 decision in Chesterfield County Circuit Court came in Brewerton v. O’Meara, VLW 003-7-464.

The Court of Appeals affirmed an order for a father to pay private school tuition in 2004 where the parties had agreed before their split that their daughter would attend private school and where the daughter had begun class for a new school year when the father signed an agreement to cover tuition. Owata v. Owata, VLW 004-7-193.

Even though the mother contended transferring to public school would disrupt the children’s education, the Court of Appeals found no support for that claim. The wife also failed to muster evidence to show a need – educational, emotional or developmental – to continue private education. The trial court’s refusal to deviate from the support guidelines to include the cost of private school was affirmed in the 2006 case of Lesesne v. Zablocki, VLW 006-7-002.

Lack of progress at a private school was a motivating factor for a Richmond circuit judge in a 2006. Where the mother and father clashed over whether a private Richmond school or public school programs in Tennessee would be best for a struggling 10-year-old, the judge looked to both the “unremarkable” progress the boy was making in the private school and at the couple’s tight finances. The decision awarded physical custody of the boy to the father in Tennessee in Beaty v. Beaty, VLW 007-8-025.

Finances were not an issue in a 2007 Loudoun County case, but the parents disagreed on a private daycare program. The father wanted to withdraw his son from Willow Montessori School because of a dispute over summer tuition, lack of transportation, and disapproval of the current program. The judge found the son was “doing very well” at Willow and the mother’s schedule allowed her to provide transportation. The judge found a “demonstrated need” for the child to continue at Willow in Stevens v. Stevens, VLW 007-8-113.

Where a settlement agreement referenced only a Montessori school without any other agreement for private school expenses, the Court of Appeals in August affirmed a trial court’s refusal to order tuition payments for other private schools. With only a written statement of facts, and no transcript, the record was deemed insufficient to consider the mother’s claim that it was in the child’s best interest to change schools. Lewis v. Bailey, VLW 011-7-260.

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Father Must Pay Attorney’s Fee

2012-01-09T13:14:00.000-05:00

Father Must Pay Attorney’s Fee

By Deborah Elkins
Published: January 5, 2012

Tags: Domestic Relations, Family Law Attorney, Per Curiam Opinion, Virginia Court of Appeals

The Court of Appeals affirms the circuit court’s award of child custody and $20,000 in attorney’s fees to mother; father released his counsel after being warned no continuance would be granted.

Husband and wife separated in 2007, after four years of marriage and one month after the birth of their child. Father filed for divorce in 2007. After numerous motions and several hearings, a final hearing was scheduled for May 2010; this hearing had to be continued to March 2011 due to father’s noncompliance with discovery. On the rescheduled hearing date, father’s counsel moved to withdraw; father requested to discharge his counsel and asked for a 30-day continuance. Father’s request was opposed by mother and the guardian ad litem as not in the child’s best interest. The trial court warned father no continuance would be granted if he released his counsel. Father released his counsel and represented himself at the hearing. The trial court awarded mother sole custody and ordered father to pay $20,000 in attorney’s fees. Mother documented fees exceeding $32,000. Father retained counsel after the hearing who filed motion to reconsider that resulted in adjusting the amount and start date of child support and extending the payment period for mother’s attorney’s fees from 12 to 24 months.

On appeal, father argues the trial court abused its discretion in denying a continuance and awarding $20,000 attorney’s fees to mother. We find no abuse of discretion in the circumstances of this case. The trial court instructed and explained to father several times to carefully consider his request to discharge his attorney because a continuance was not in the child’s best interests. Father’s counsel moved to withdraw based on “extraordinary circumstances” making him ineffective due to father’s refusal to communicate. We will not consider father’s new arguments about unique circumstances (his upbringing, religion and employment and unpreparedness), fair trial, due process and “family integrity.” Father failed to preserve these arguments by raising them in the trial court as required Rule 5A:18. We also will not consider father’s argument about his right to cross-examine and present evidence. Father cites no authority to support his argument as required by Rule 5A:20(e) and this noncompliance is significant; it is father’s burden to show reversible error. Father shows no abuse of discretion in the award of attorney’s fees to mother. Mother documented attorney’s fees exceeding the $20,000 awarded. The trial court considered the disparity in the parties’ income, the longevity and complexity of the case and commented that the attorney’s fees may be somewhat reflective of the nature of the parties involved. We decline mother’s request for attorney’s fees on appeal.

Dajani v. Dajani (Per Curiam) No. 0905-11-2, Dec. 6, 2011; Spotsylvania Cir. Ct. (Beck) Ted Kavrukov for appellant; Kristie L. Kane for appellee; Jeannette B. Purvis, guardian ad litem. VLW 011-7-385(UP), 8 pp.

'Sperm donor' can seek parental rights

2011-12-29T11:10:00.000-05:00

‘Sperm donor’ can seek parental rights

December 28th, 2011 · No Comments · Charlottesville Attorney, Uncategorized

A mother whose child was fathered by her live-in boyfriend through assisted conception cannot prevent the father from asking a court to recognize his parental rights, the Virginia Court of Appeals ruled today in Breit v. Mason.

Under the Virginia statutory scheme that governs parentage through sperm or egg donation, a donor is not the parent of a child conceived through assisted conception unless the donor is the husband of the gestational mother. By statute, a donor has no parental rights or duties for any child conceived through assisted conception.

Shortly after the child’s birth, the mother and father signed a sworn acknowledgement of paternity naming the mother’s boyfriend as the biological and legal father of the child. One year later, the mother terminated all contact between the father and child. The father went to court.

The trial court rejected the father’s petition to determine parentage, but the Court of Appeals, in a unanimous panel opinion written by Chief Judge Walter S. Felton Jr., reversed the decision for the mother.

Felton said the panel did not read Virginia Code §§ 20-156 to -165, “which are primarily concerned with ensuring that infertile married couples will not be threatened by parentage claims from anonymous sperm and egg donors,” to mandate that a chosen, unmarried sperm donor, known by the unmarried gestational mother and intended by her to be the father, may never be legally recognized as the parent, simply because he was not married to the mother at the time the child was conceived by voluntary assisted conception.”

By Deborah Elkins

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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'Access' form for tree removal was not written contract

2011-12-28T15:33:00.000-05:00

‘Access’ form for tree removal was not written contract

2011-12-15T11:47:00.000-05:00

Husband’s Family Farm is ‘Marital’

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DUI defense: blame it on the flip-flops

2011-12-01T11:26:00.000-05:00

DUI defense: blame it on the flip-flops

November 30th, 2011 · No Comments · Court of Appeals, Tucker Griffin Barnes, DUI/TRAFFIC/CRIMINAL

Here’s a DUI defense we haven’t seen before: the Flip-Flop Defense.

A York County driver claimed that as he drove out a restaurant parking lot, he got his flip-flop wedged against the accelerator, causing his 1999 Chevy Blazer to go out of control and flip onto its roof. A modern-day multi-tasker, Kegan Bilger also was trying to put a “chew” of tobacco in his mouth when he lost control of his car.

Of course, there was also that matter of the four 22-ounce beers Bilger drank at the restaurant, with only a bowl of chowder to soak up the alcohol.

At trial, Bilger tried to keep out the certificate of blood analysis showing a 0.11 percent blood alcohol content. The trial judge said the certificate didn’t really matter, as the circumstantial evidence and Bilger’s admission to drinking the four beers made a prima facie showing that he was driving under influence.

York County Circuit Court Judge Designate Robert W. Curran convicted Bilger under Virginia Code § 18.2-266, and the Court of Appeals affirmed the conviction yesterday in an unpublished opinion.

Evidence supporting the conviction included photos of the accident scene, Bilger’s admission to drinking 88 ounces of brew and the fact that he flipped his vehicle within a six-parking space span and emerged with glass fragments in his eye, but called his insurance company first.

By Deborah Elkins

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Charlottesville, Virginia

434-973-7474

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Customer can sue for negligent supervision

2011-11-30T11:34:00.000-05:00

Customer Can Sue for Negligent Supervision

By Deborah Elkins
Published: November 8, 2011

Tags: Junius P. Fulton III, Negligence, Norfolk Circuit Court, Tucker Griffin Barnes, Virginia Circuit Courts

A Lowe’s customer who alleges she suffered a brain injury when a Lowe’s employee climbed a ladder to retrieve an item and dropped a box on plaintiff customer can sue Lowe’s for negligent training and negligent supervision of its employee, as the Norfolk Circuit Court distinguishes this case from the Virginia Supreme Court decision in C&P Tel. Co. v. Dowdy.

The Supreme Court of Virginia has addressed negligent supervision in the employment context only once, in C&P Tel. Co. v. Dowdy, 235 Va. 55 (1988). There, the court held that in Virginia, there is no duty of reasonable care imposed on an employer in the supervision of its employees under the circumstances there, in which an employee alleged stress he suffered was aggravated by negligent supervision of coworkers. Relying on Dowdy, Virginia circuit courts have consistently declined to recognize a distinct tort of negligent supervision. A number of Virginia courts have similarly declined to recognize a cause of action for negligent training.

Plaintiff argues the present case can be distinguished from Dowdy. Plaintiff also correctly notes that although the number of cases declining to find either a cause of action for negligent supervision or for negligent training is itself persuasive, those cases are not binding on this court. Plaintiff argues the court in Dowdy did not hold there is no duty to supervise an employee – it merely held no duty existed under those circumstances.

The court agrees the circumstances in Dowdy are distinguishable from those at hand. First, in Dowdy, the claim was the employer and plaintiff’s supervisors negligently supervised the plaintiff.

Dowdy did not address whether an employee can be held liable to a third party for negligent supervision of an employee. Here, the claim is that Lowe’s failed to supervise an employee engaged in dangerous activity such that it harmed a third party invitee – not the employee himself. Further, it may be argued the court in Dowdy was really declining to carve out an exception to the tactile tort rule for recovery of emotional distress. Dowdy was attempting to recover for negligent infliction of emotional distress under a theory that his employer had a duty to supervise him. There the court found the conduct was not so wrongful or egregious to allow Dowdy to recover for emotional distress resulting from a non-tactile tort where not physical contact was made by defendant. Here, Hernandez is suing over a tactile injury to her person.

This court would not be alone in permitting a case to proceed on a theory of negligent supervision.

Plaintiff argues the circumstances of this case involve an employer who directs its employees to engage in activity that foreseeably creates a danger of harm to others. Lowe’s directs its employees to climb ladders to reach heavy items on high shelves in the aisles where its customers shop. It is foreseeable that without using ordinary care and skill in directing the employee to engage in such activity, serious and foreseeable harm may befall its customers. The harm alleged to have occurred to plaintiff in this case is probably the most foreseeable harm that could have resulted – a box the employee dropped fell on plaintiff. Lowe’s can directly supervise its employees working in its retail stores. In this case, ordinary care and skill may require a duty of supervision when Lowe’s directs an employee to engage in this dangerous activity.

In conclusion, the Supreme Court of Virginia has not yet recognized a cause of action for negligent supervision or for negligent training. Nor has it completely ruled out such a cause of action under Virginia law. Although only two courts have allowed a case to proceed on such a theory, I am wary of simply following the majority of circuit courts in reliance on Dowdy’s limited ruling. The facts alleged now are quite distinguishable from those in Dowdy and plaintiff’s case may present one for the correct application of the theory of negligent supervision. With respect to negligent training, however, the court will sustain the demurrer with leave to amend.

Hernandez v. Lowe’s Home Centers (Fulton) No. CL 10-8412, Aug. 1, 2011; Norfolk Cir.Ct.; Edward E. Scher, Stephen M. Smith, Jeffrey F. Brooks, Joseph M. Moore for the parties. VLW 011-8-200, 6 pp.

County hit with $31.5M lawsuit over school bus incident

2011-11-28T10:24:00.000-05:00

$31.5 million suit filed in school bus abuse case

By: Chris Dumond
Published: November 23, 2011

Tag: Tucker Griffin Barnes

APPOMATTOX --

An Appomattox County boy and his mother filed a $31.5 million lawsuit against the county, the school board and several employees in the wake of a child abuse case.

Last week’s filing comes on the heels of a similar $20 million lawsuit filed against Bedford County Public Schools last month. Both cases involve allegations of abuse against disabled children bused out of their home districts to special-education schools in Lynchburg.

An attorney for Roxanne Haskins and her 10-year-old son filed the lawsuit on Nov. 15. It names Appomattox County, the Appomattox County School Board, Superintendent Dorinda Grasty, Transportation Supervisor Matt Lair and former bus driver Nancy Davis.

The lawsuit claims the boy had been diagnosed with attention deficit/hyperactivity disorder and was selected to attend the Rivermont School in Lynchburg beginning in March. Centra Health operates the school for children with emotional, behavioral and learning difficulties.

The suit continues to allege Haskins’ son was bullied by two older boys almost immediately and the bullying continued over weeks and months, even after Haskins notified Davis and Lair directly. Specifically, on May 5, the suit alleges the two repeatedly assaulted the boy, punching and strangling him and burning him with a cigarette lighter.

Davis, 64, was charged with felony child neglect after an Appomattox County deputy investigated the claims. The older boys, both 15 at the time, were convicted of assault and battery in juvenile and domestic relations court.

Davis was set for a jury trial Monday, which was delayed when the judge had to dismiss so many school division employees that the jury could not be seated.

Judge Marvin Dunkum, who viewed the video in a July preliminary hearing, described it as “just plain, disgusting behavior.”

The video shows Haskins’ son screaming “stop,” and “no,” while the older boys can be seen striking him and cursing him repeatedly. At one point, Davis tells the older boys to leave him alone and separates the children. Later she tells an older boy to sit with Haskins’ son and “make him quiet.”

“These little kids are going to find out they can’t play with the big boys,” she can be heard saying.

In addition to claims of negligence and infliction of emotional distress, the suit claims Grasty, Lair and the school board violated the boy’s civil rights. It claims those who supervised and employed Davis should have investigated Haskins’ complaints and ensured Davis was trained properly to safeguard the children.

The suit notes Davis should have been given an aide as supervisors were fully aware the children on the bus had a history of behavioral problems. Davis’ lawyer, Joseph Sanzone, claimed in an earlier hearing that Appomattox County is the only local division not to provide an aide.

The boy asks for an award of $5 million from the county and $6 million from each of the other defendants for a total of $29 million. Haskins asks for $500,000 from each defendant for a total of $2.5 million.

Lawyers representing the county, school board and its employees declined comment Wednesday. Haskins’ lawyer, Anthony Tacconi of Glen Allen, could not be reached for comment.

The lawsuit in Lynchburg against Bedford County Public Schools was filed last month after a bus driver and aide were captured on video striking a different disabled child on a bus in 2009. The autistic boy was being transported to another school.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Charlottesville, Virginia

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Associate Attorney Wanted

2011-11-27T16:25:00.000-05:00

Charlottesville craigslist > jobs > legal/paralegal jobs

Associate Attorney (Charlottesville)

Date: 2011-11-27, 4:14PM EST
Reply to: mgriffin@TGBlaw.com

ASSOCIATE ATTORNEY POSITION: Tucker Griffin Barnes is seeking a litigation associate to represent clients charged with criminal and traffic offenses, as well as represent clients in domestic relations and other civil litigation matters. Candidates applying for this position must be licensed in Virginia and have one to five years of litigation experience. Please email your resume and cover letter to MGriffin@TGBLaw.com (Mike Griffin, Business Manager, Tucker Griffin Barnes P.C., Charlottesville, VA.)

Location: Charlottesville
Compensation: Include compensation requirements in cover letter.
Principals only. Recruiters, please don't contact this job poster.
Please, no phone calls about this job!
Please do not contact job poster about other services, products or commercial interests.

Posting ID: 2723310840

Father can sue lab for 'wrongful birth'

2011-11-22T11:59:00.000-05:00

Father can sue lab for ‘wrongful birth’

By Paul Fletcher
Published: November 17, 2011

Tags: Tucker Griffin Barnes, Federal Courts, Judge Norman K. Moon, Medical Malpractice

The father of a girl born with a blood disorder can bring a negligence claim against the lab that told him and his wife that the child would not have the disease.

The parents both were unaffected carriers of a genetic defect; there was a one in four chance that any child of theirs would inherit both defective genes, resulting in a condition called Cooley’s anemia. People who suffer from this condition lack a blood protein that maintains iron levels in the body; they must go through frequent blood transfusions.

The wife became pregnant, and the couple underwent genetic testing. They agreed they would have an abortion if the child was affected. But the lab advised the couple that the unborn child would be an unaffected carrier.

After their daughter was born, they discovered she had Cooley’s anemia. At the age of one month, she had her first blood transfusion.

The couple sued in state court, and the defendant, LabCorp, removed the case to federal court in Charlottesville. In Khadim v. Laboratory Corporation of America (VLW 011-3-604), U.S. District Judge Norman K. Moon heard LabCorp’s arguments that the father could not bring a claim. He also considered whether LabCorp was a “health care provider” subject to the damages limits in the Virginia Medical Malpractice Act.

The Supreme Court of Virginia first recognized a negligence claim for “wrongful birth” in 1982 in Naccash v. Burger, 223 Va. 406. The claim allowed damages for emotional distress, creating an exception to the general rule that physical injury is necessary for a distress claim to succeed.

LabCorp sought dismissal of the father’s claim here, arguing among other things, that the man was not their “patient.” Moon observed that the Virginia high court did not limit Naccash to the claims of the mother, using plural terms instead, such as the “parents,” “them” and “they.”

He also looked to a 2001 Supreme Court case, Didato v. Strehler, 262 Va. 617, that had a similar factual pattern: A child was born with a blood condition comparable to that of the girl here. The couple sued, stating they would not have had a baby had they known. Responding to the defense argument that the parents were not “patients,” the high court found a cause of action separate from the doctor-patient relationship, Moon wrote.

In Khadim, Moon said, LabCorp tested genetic material from both parents, even asking for additional samples in an effort to get the most accurate result. He let the man’s claim proceed.

Moon also considered cross-motions of the parties on the issue of whether LabCorp is a “health care provider” under the Virginia Medical Malpractice Act. If so, the company would have the ability to take advantage of the act’s limits on med-mal damages.

The judge said that the act applies: The VMMA covers corporations that employ licensed health care providers and primarily render health care services. He found that definition applies. Also, LabCorp qualified for the act’s protections because it was an independent contractor working for a physician who ordered the genetic testing.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Charlottesville, Virginia

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Parkway driver wins breathalyzer challenge

2011-11-16T16:03:00.000-05:00

Parkway driver wins breathalyzer challenge

November 14th, 2011 · No Comments , Tucker Griffin Barnes, DUI/TRAFFIC/CRIMINAL

A driver who admitted drinking before watching a race at the Martinsville speedway and who blew a .12 beat a charge of DUI on the Blue Ridge Parkway because the government could not prove the accuracy of the Intox EC/IR II breathalyzer used to test him.

Traffic lawyers with questions about breathalyzer machines have seen some success in state courts in recent years, and the state legislature wrestled with proving breathalyzer reliability in the wake of Melendez-Diaz.

Lawyers looking to challenge the Intox EC/IR II, a newer model in use in state and federal courts, may want to review U.S. v. Foster, a Nov. 4 decision by Roanoke U.S. District Judge Michael F. Urbanski.

David Foster was pulled for speeding on April 3, 2011, after a park ranger’s laser gun clocked him traveling at 50 miles per hour in a 35-mile zone. Foster admitted to the ranger that he and his passenger had been “pre-gaming” before the race, but Foster said he had nothing to drink since the race started.

Foster had no trouble pulling into a parking space but his performance on field sobriety tests was a “mixed bag,” Urbanski said. It was clear he had been drinking, not clear he was impaired.

Urbanski faulted the government for not laying a proper foundation under federal evidence rules for admission of a certificate of instrument accuracy for the Intox EC/IR II breathalyzer. He rejected as insufficient a certificate of instrument accuracy signed by Melissa Kennedy, section supervisor for the Virginia Department of Forensic Science, who certified the machine’s performance as of March 10, 2011.

There was no declaration from the DFS records custodian, or another qualified person, verifying the authenticity of the certificate of accuracy, Urbanski wrote.

The trooper who performed the breathalyzer test could testify about how he administered the test, but he could not vouch for the accuracy of the machine, according to Urbanski. The certificate showing .12 grams per 210 liters of breath could come in, but questions about the accuracy of the machine on the night in question affected the weight of the evidence, the court said.

Foster admitted to drinking earlier in the day. The ranger noted Foster had watery, bloodshot eyes and an odor of alcohol, and he showed some signs of intoxication on field sobriety tests. But there was no evidence to establish how much Foster had to drink and when; his driving was not erratic. He was oriented, focused and able to follow the ranger’s instructions and able to maintain his balance on the dexterity tests.

Calling it “a close case,” Urbanski said the government did not meet its high burden of proof.

By Deborah Elkins

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

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No FMLA leave for gambling jaunt

2011-11-14T14:01:00.000-05:00

No FMLA leave for Gambling Jaunt

By Deborah Elkins
Published: November 11, 2011

Tags: Civil Procedure, Judge Dennis Dohnal, Tucker Griffin Barnes P.C.

A Verizon employee who was granted intermittent leave under the Family & Medical Leave Act for his depression, migraines and suicidal ideation, cannot sue Verizon for violation of the FMLA for terminating him after verifying that he spent several days of his intermittent leave gambling at an Atlantic City casino, after he had called in sick; the Richmond U.S. District Court Magistrate Judge grants summary judgment for Verizon.

In a preliminary matter raised by plaintiff, he has objected to use of his own deposition transcript in support of defendant’s motion for summary judgment without the court also considering his errata sheet, which was not yet due at the time or oral argument.

The questionable nature of plaintiff’s newly formulated testimony vis-à-vis an errata sheet gives the court pause. There presently exists a split of authority as to how a court should reconcile such conflicting testimony, and disagreement even persists among federal courts sitting in the court’s own state of Virginia.

One series of cases suggests the scope of changes permitted pursuant to Rule 30(e) is essentially boundless. Where such an approach is followed, the opposing party may nevertheless impeach a witness with any contradictory, unpolished statements. That is to say, the conflicting statement is not replaced, and the deponent is instead left with both the original testimony and the errata sheet. The other approach taken by some courts is to simply strike any changes attempting to alter the substance of the deponent’s testimony.

Under certain circumstances, the substantive use of an errata sheet to change the deposition answers is analogous to a “sham” declaration designed solely to defeat summary judgment, especially where such material is submitted after briefing and oral argument on the related motion. The court will take no position on the present state of disagreement among the courts on the issue because, as this court perceives it, neither approach would permit the use of a “sham” errata sheet whose sole apparent purpose is to create a genuine issue of material fact intended to preclude the granting of dispositive relief.

Here, however, it is not entirely clear in any event that plaintiff’s errata sheet contains any material evidence whatsoever. Plaintiff has simply emphasized several of his statements given during the deposition to the effect that he believes his use of FMLA leave had some causal connection to any number of other suspected reasons for his termination. Plaintiff’s stated belief that wrongdoing occurred provides no evidentiary basis to defeat summary judgment. Such an effort is apparently done to undermine plaintiff’s several prior statements by which he theorized defendant terminated his employment for non-FMLA related reasons. While the court will not strike the statements contained in the errata sheet, it also will not permit plaintiff to create a genuine issue of material fact where none previously existed.

The court finds, in essence, that neither the FMLA nor common sense can authorize an employee to, with impunity, enjoy what amounts to a vacation while telling his employer he is sick and incapacitated.

Even if plaintiff’s admitted gambling addiction were related in some way to his qualifying medical conditions, the FMLA would not shield him from personal responsibility while acting upon his addiction. Even assuming that “rest and relaxation” constitute approved FMLA leave, it is indisputable that plaintiff’s August 2009 hiatus went well beyond the scope of such an approved absence. Calling in sick to gamble was an abuse of plaintiff’s approved intermittent leave and, by extension, an abuse of the FMLA.

Summary judgment for employer.

Campbell v. Verizon Va. Inc. (Dohnal) No. 3:11cv2, Sept. 13, 2011; USDC at Richmond, Va. VLW 011-3-522, 23 pp.

Announcing Immediate Job Opening for Real Estate Paralegal

2011-11-09T12:20:00.001-05:00

Tucker Griffin Barnes Seeking Real Estate Paralegal (Lake Monticello)

Immediate opening for experienced Real Estate Paralegal at our Lake Monticello Branch office (Located across from Food Lion.) Candidate must be able to demonstrate a current, in-depth background in real estate settlements, from opening a file, working with the lender and realtors, to recording the deed. Experience with Landtech software a plus. Benefits include medical, dental, vision, disability, 401K and mileage reimbursement when recording.

Qualified candidate should email resume with cover letter and salary requirement to MGriffin@TGBlaw.com, ATTN: Mike Griffin, Business Manager, Tucker Griffin Barnes P.C., Attorneys at Law, Charlottesville, VA.

Location: Lake Monticello
Compensation: Include annual salary requirement in cover letter.
Principals only. Recruiters please don't contact this job poster.
Please, no phone calls about this job!
Please do not contact job poster about other services, products or commercial interests.

Customer Can Sue for Negligent Supervision

2011-11-09T12:04:00.000-05:00

Customer Can Sue for Negligent Supervision

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Nonpayment on Rental TV Not Fraud

2011-10-21T14:08:00.000-05:00

Nonpayment on Rental TV Not Fraud

By Deborah Elkins
Published: October 20, 2011

Tags: Criminal, Judge Walter S. Felton Jr., Virginia Court of Appeals

The Court of Appeals reverses defendant’s bench trial conviction for fraudulent conversion of a leased plasma television set and dismisses the indictment; without the written statutory notice to return under Va. Code § 18.2-118(b), the commonwealth’s evidence was insufficient to prove intent to defraud based on defendant’s failure to make the agreed monthly rental payments.

On July 16, 2009, defendant entered a 104-week lease purchase agreement for a 50-inch plasma television set with a rent-to-own firm. The agreement required an initial payment of $10, followed by weekly payments of $37.99 or, at her option, monthly payments of $123.99. The set was valued at $2,370 with total payments due of $3,951.

The agreement allowed defendant to return the set if she was unable to make the payments. Defendant’s application provided her DMV identification and contact information for her landlord, employer and six references. A manager for the rental firm approved her application the same day and another employee delivered the set the next day. After defendant failed to make further payments or return the set, the manager had difficulty contacting her and her references; a cell phone was listed for the landlord and some numbers listed were no longer in service. The manager did not send defendant a written demand to return the set under Code § 18.2-118(b). The trial court denied defendant’s motions to strike, convicted her of fraudulent conversion and sentenced her to five years with three years suspended.

Defendant’s appeal renews her challenge to the sufficiency of evidence to prove the required intent to defraud. We agree her conviction must be reversed and her indictment dismissed. We review sufficiency of evidence under a deferential standard. However, the record here is insufficient as a matter of law to prove intent to defraud beyond a reasonable doubt. Defendant was not sent the written demand to return in 10 days authorized in §18.2-118(b) for prima facie evidence of intent to defraud. The record evidence proves only that defendant breached her written lease agreement. We held in Commonwealth v. Hensley, 7 Va. App. 468 (1988), that without fraud an accused cannot be imprisoned for mere failure to pay a contract debt.

Defendant’s conviction is reversed and her indictment dismissed.

Bert v. Commonwealth (Felton), No. 1499-10-1, Oct. 18, 2011, Portsmouth Cir. Ct. (Grissom) Brenda C. Spry for appellant, John W. Blanton AAG. VLW 011-7-318 (UP), 6 pp.

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Spitwad school assault case hits the Virginia Supreme Court

2011-10-19T14:59:00.005-05:00

Spitwad school assault case hits the Virginia Supreme Court

Mark Holmberg Staff reporter

10:52 a.m. EDT, October 19, 2011

RICHMOND, VA (WTVR) - Is a pea-shooter a weapon?

Is it legal for a 14-year-old high school student who fired plastic spitballs in a hallway to be questioned by school officials and police without a parent or a lawyer present, and then charged with assault?

Is the school’s code of conduct consistent with the punishment, which included a half-year suspension?

On Tuesday, a three-judge panel at the Virginia Supreme Court in downtown Richmond heard arguments and will determine whether the entire court should decide the case.

Rita Dunaway, an attorney for the Rutherford Institute, argued that classifying the pea-shooter as a weapon was a stretch and the student shouldn’t have been accused of “violent criminal conduct” and punished under the school’s code of conduct.

The weapon: the casing from an ink pen and toy pellets made out of hollow plastic.

The crime scene: the hallways at Spotsylvania High School, early last December.

The shooter: Andrew Mikel II, an honor student and ROTC member who says he dreamed of being a Marine, like his father, his entire life. His plan to attend the Naval Academy has been jeopardised by the misdemeanor charges. Even though they were dropped after he did community service, the record remains.

He said he was bored and fired his homemade, low-velocity pea-shooter at fellow students. There were no documented injuries.

“I did something stupid,” Andrew said after court. But he doesn’t think it was a criminal act worthy of the charges and punishment. “I can’t get it through my head why they would do that.”

The Rutherford Institute, a civil and religious liberties watchdog group, has taken on zero-tolerance cases like this across the country, in which there have been extreme reactions to innocent pranks and mistakes – like bringing nail clippers to school - in the wake of Columbine and other school violence.

"It's absurd that Andrew Mikel was not only suspended for the school year but characterized as a criminal," said John W. Whitehead, president of The Rutherford Institute. "In addition to being arbitrary and capricious, the actions of school officials violate fundamental notions of fairness and established principles of due process. I hope the Virginia Supreme Court will bring justice to bear for Andrew Mikel."

Whitehead said heavy-handed zero-tolerance policies ruin children’s lives and rob them of their educations.

Andrew’s father, Andrew Mikel, said the school violated its own code of conduct by not having a parent present when the police questioned his son.

He finds it “insane” that what his son did had the same weight as bringing a shotgun to school in the county’s eyes.

“We’re criminalizing children,” Mikel said. “If the Supreme Court doesn’t stop this, they’re saying anything that can launch a projectile can be considered a weapon. Case in point, you launch a rubber band off your finger. We’re making criminals out of all these kids in school, for doing innocent pranks and other things. And yes, discipline is necessary, but not criminal punishment. You know, they take something simple, and now they’ve got four state agencies – they’ve got the Department of Justice, they’ve got the commonwealth’s attorney, they’ve got the sheriff’s department and the school board involved in someone shooting a spitwad. And they wonder why our country is broke.”

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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School bus beating lawsuit seeks $20M

2011-10-06T14:38:00.001-05:00

Suit alleges abuse of autistic child on school bus

Video Photos

Alleged assault on Bedford school bus (no audio) (Added: October 05, 2011)

Surveillance video shows the bus driver and an assistant hit and kick 11-year-old Timothy Earl Kilpatrick, a severely autistic student who is strapped to his seat. (more)

By: Bill McKelway
Published: October 06, 2011

» 20 Comments | Post a Comment

A Bedford County school bus driver and her assistant repeatedly physically abused an 11-year-old autistic student, causing him lasting emotional harm and physical injuries, a suit seeking $20 million alleges.

In graphic videos taken by a surveillance camera on a Bedford County school bus, the driver or her assistant can be seen hitting the frightened student with a fly swatter as well as kicking, choking and beating him with their hands.

The student, whose autism left him barely able to speak, was strapped with double harnesses to his seat. He appears to be crying in anguish and at times flails out with his arms and legs trying to stop his assailants or strike them back.

The video footage was secured by attorneys representing single parent Thomas E. Kilpatrick of Bedford, whose son, Timothy, was the target of the attacks. The incidents occurred in September 2009 and were eventually documented in surveillance videos confiscated by police.

Kilpatrick, though, said he had brought concerns to school officials nearly a year earlier after his son started showing signs of injuries and fears about riding the bus. Tapes of incidents during that time could not be located, according to the suit.

The father said Wednesday during a phone interview that he was unable to get school personnel to respond to concerns that his son was being harmed when he first reported in November 2008 that Timothy was coming home with bruises and scratch marks on his arms and face.

"He ran inside the house and went to his room and wouldn't show me what was wrong," his father said. "He would just stare straight ahead. There was no talking," said Kilpatrick, a construction worker who now takes his son back and forth to a regional Lynchburg school that specializes in teaching disabled children.

"This case is about the expectations that every parent should have regarding the treatment and safety of their children in our schools," said Roanoke attorney P. Brent Brown, the lawyer representing Kilpatrick and his son. "That expectation is especially critical when it comes to how disabled children are treated outside the protection and care of their parents."

Kilpatrick, 47, said he was too angered by the video to watch it in its entirety, but even the portion that he watched confirmed his worst fears.

Timothy, who is less than 6 feet tall but weighs 270 pounds, has grown in the two years since the video was recorded, when he weighed less than 200 pounds. There are few people the father trusts with his son, he said, and over the years he has learned how to calm his son's behavior by quietly talking with him.

The suit, filed in Lynchburg Circuit Court on Tuesday, represents a rare instance in which direct, visual evidence of apparently unprovoked physical harm against a student can be seen. "Getting that video evidence was significant," Brown said, noting that Lynchburg police recovered the footage during a criminal investigation of the incidents.

Brown said he obtained the footage through a Freedom of Information Act request to police.

It was not clear Wednesday whether criminal charges were brought against the school bus driver, Alice Davis Holland, and an assistant, Mary Alice Evans, neither of whom has been employed by Bedford County Public Schools since Sept. 30, 2009, according to school system spokesman Ryan Edwards. D. Patrick Lacy Jr., who represents the school system, said Wednesday that the suit has not been served and that he could not comment on its allegations.

The case also has been joined by the Virginia Office for Protection and Advocacy, an independent state agency tasked with overseeing the rights of the disabled.

The school system and its agents, the suit alleges, "denied Timothy his liberty, by restraining him and subjecting him to grossly abusive injurious supervision" and violated the Virginians with Disabilities Act.

The suit does not seek remedies for educational lapses but addresses "grievous and permanent noneducational physical and psychological injuries that will incur medical and mental-health bills in an attempt to treat his injuries."

The 43-page suit was filed in Lynchburg because the allegations deal with conduct of the school system and other people at a point when Kilpatrick was aboard the bus and within the Lynchburg city limits on his way to Laurel Regional Special Education Center in the city.

In addition to the Bedford County School Board and the two adults on the bus, the suit names as a defendant Sara Staton, the school system's director of special services.

The suit alleges that the School Board and school employees had a legal duty under the Virginians with Disabilities Act to provide Timothy "with full and equal access to and enjoyment of" benefits of the transportation system "without fearing or facing threats to his physical or psychological safety or well-being."

Administrators failed to properly train bus personnel in how to deal with Timothy's disabilities and to reasonably ensure his safety, the suit alleges.

bmckelway@timesdispatch.com (804) 649-6601

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Abuse Victim’s Blog Entry Outside Record

2011-10-03T13:07:00.002-05:00

Abuse Victim’s Blog Entry Outside Record

By Deborah Elkins
Published: September 30, 2011

Tags: Domestic Relations, Per Curiam Opinion, Virginia Court of Appeals

Stepfather is not entitled to supplement the record with evidence of his 17-year-old stepdaughter’s blog entry; the Court of Appeals affirms a founded sexual abuse disposition initiated by a local department of social services and sustained by the Commissioner of Social Services and circuit court below.

The local department of social services investigated a complaint that stepdaughter, age 17, had been abused by stepfather when she was between four and ten years old. She detailed sexual contacts and her mother described her daughter’s physical and behavioral symptoms during this time. Her therapist confirmed that stepdaughter provided a consistent account of events while in therapy. The local department found Level 1 sexual abuse, a finding upheld in informal conference and on stepfather’s appeal to the Commissioner of Social Services and circuit court.

On appeal stepfather argues the circuit should have allowed him to present evidence of stepdaughter’s blog entry and should have discounted her testimony as inherently incredible. We disagree, applying our deferential standard of review to agency determinations under the Administrative Process Act applicable under § 63.2-1526 (B). Our interpanel accord doctrine requires that we follow our decisions in School Board v. Nicely, 12 Va.

App. 1051 (1991), and J.P. v. Carter, 24 Va. App. 707 (1997), interpreting §2.2-4027 to limit judicial review to the agency record. Stepfather failed to present his due process argument to the circuit court and Rule 5A:18 bars considering it. The hearing officer properly found stepdaughter’s testimony more credible; the record provides the requisite preponderance of evidence for a finding of child abuse under DSS regulations, 22 VAC 40-705-10.

Judgment affirmed.

Spurrier v. Conyers (per curiam), No. 0772-11-1, September 27, 2011, Virginia Beach Cir. Ct. (Padrick) Brian A. Thomas

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Judge scorches mom, gives custody to dad

2011-09-23T16:02:00.000-05:00

Judge scorches mom, gives custody to dad

By Peter Vieth
Published: September 23, 2011

Tags: Arlington County Circuit Court, Domestic Relations

An Arlington circuit judge has delivered a resounding repudiation of a mother’s efforts to keep custody of her daughter by making false accusations about the father.

In a scorching opinion, Judge Benjamin N.A. Kendrick not only concluded the mother carried on an active campaign to alienate the girl from the father, he even suggested the mother used military counter-intelligence tactics such as sleep deprivation and food rewards to manipulate the preschooler.

Kendrick’s opinion awarding the father full legal and primary physical custody of the girl, now 5, includes a litany of the mother’s hardball tactics designed to drive a barrier between father and daughter.

Kendrick found the mother used false allegations of sexual abuse by the father as an excuse to justify shutting the father out of the daughter’s life.

“Mother has isolated the child from anyone the mother does not approve of, and has established an unhealthy co-dependent relationship between herself and the child,” Kendrick wrote in Canedo v. Canedo.

The custody battle played out in a military family, and the mother’s international travels did not help her cause. Kendrick found the child enjoyed “very little stability” as the mother moved her from place to place every other year. During the last two years, the mother “traveled internationally for periods of up to 4 days,” leaving the child in the care of others in Italy, Kendrick wrote.

The father is a Marine major, but expects to remain in Virginia and retire in three years.

Kendrick found the mother used tactics learned at military counter-intelligence schools “for the purpose of gaining actionable intelligence from terrorists.”

“Mother used punishment and reward tactics through sleep deprivation and food” when she took her daughter to interviews with professionals, the judge said. “These methods are not to be used to manipulate defenseless children,” Kendrick wrote. The judge concluded the girl’s disclosures about sexual abuse by the father were “unreliable.”

The mother’s case apparently was undone by her lack of credibility with the judge. “Mother has been dishonest with father, dishonest with [her daughter’s] regular caregivers, dishonest with professionals … and at length, dishonest with this Court,” Kendrick wrote.

The father’s attorney, Michael K. Murphy of Fairfax, praised Kendrick’s decisive language. It is gratifying, he said, that “some judges will take a cold, hard look at a case and will do more than deliver a shot across the bow.

“There’s no way the mother can sidestep those findings. There’s 13 pages of it,” Murphy said.

Kendrick’s conclusions are disputed by Alexandria lawyer Gwendolyn Jo M. Carlberg, who represented the mother. She said the mother had valid grounds to suspect the father of abuse. “There is no alienation,” Carlberg said. “At all times, my client acted upon the professional recommendations of the psychologist and therapist in the case.”

Carlberg agreed it’s rare for a judge to come down completely on one side of a family dispute. “It is not usually so one-sided in a domestic relations case,” she said.

“The decision basically yanks the child from the primary caregiver of the last two years,” Carlberg said. “In my opinion, the decision is plainly wrong and without evidence to support it,” she said, adding, “We intend to appeal the decision.”

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Tased, but not confused

2011-09-16T12:35:00.001-05:00

Tased, but not confused

Back in 2007, Sen. John Kerry was attending a forum at the University of Florida, when a student named Andrew Meyer started asking the former Democratic presidential candidate a number of agitated questions.

Why hadn’t President Bush been impeached, he asked. And why had he conceded to Bush? Meyer was so wound up that security officers started to escort him outside. Kerry started to answer Meyer, who demanded to hear the responses.

Meyer was wrestled to the ground, uttering these immortal words: “Don’t tase me bro!”

Millions of YouTube viewings later, this phrase became a pop cult fixture. Meyer was charged with disturbing the peace and resisting arrest; the charges later were dropped.

So whatever happened to Meyer? The Washington Post’s Lifestyle magazine asked that very question.

Answer: He’s going to be a lawyer. Meyer graduated from UF and was admitted to the Florida International University law school, where he is now a second-year student.

Give Meyer credit for being an entrepreneur: After the incident, he trademarked the phrase “Don’t Tase Me Bro” and has a website where you can buy a T-shirt for $15.

(T-shirt artwork above is from Meyer’s site, design by Phil Fung).

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Beneficiaries May Sue for Excessive Gifts

2011-09-07T10:33:00.000-05:00

Beneficiaries May Sue for Excessive Gifts

By Deborah Elkins

Published: September 7, 2011

Tags: Judge Raymond A. Jackson, U.S. District Court - Eastern District, Wills & Trusts

Beneficiaries of a family trust and will may sue decedent’s stepdaughter, their aunt and the executrix of the estate and holder of a durable power of attorney granted by decedent, for breach of contract and breach of fiduciary duty, for gifts she made to herself during decedent’s lifetime; a Norfolk U.S. District Court says plaintiff beneficiaries have standing to sue under North Carolina law.

This case involves a dispute over the management and execution of assets of the estate of Donald Clarke. On June 14, 2004, Clarke established a revocable inter vivos trust, the Donald Clarke Family Trust, and executed his will. The trust instrument identified the beneficiaries of the trust as Clarke’s deceased wife Claudine S. Camper’s daughter, Celeste Manning, and the children of Camper’s two deceased children, Jennifer C. Smith and Thomas B. Camper. The children of Mrs. Camper’s deceased children comprise the plaintiffs in this case.

The trust instrument also listed defendant Manning as trustee and directed defendant to accumulate the income and retain the principal of the trust during Clarke’s lifetime. Clarke’s will directed the residue of his estate be poured over into the Family Trust and disposed of in accordance with the provisions of the trust instrument. Under the trust instrument, upon Clarke’s death, the trustee was to distribute the remaining principal, along with any accumulated income as follows: two-thirds to defendant and one-third to plaintiffs in equal shares.

On Aug. 1, 2005, Clarke executed a durable power of attorney (DPOA) under N.C. Gen. Stat. Sec. 32A-8, listing defendant as his attorney in fact and giving her the power to act in his name, place and stead in any way in which Clarke himself could act. The DPOA granted defendant the power to make gifts of Clarke’s real or personal property or interest in such property to the living issue of Camper and their spouses, in amounts not to exceed the annual exclusion for federal gift tax purposes at the time the gifts were made. According to plaintiffs, defendant attorney in fact made gifts to herself from Clarke’s estate totaling $11,000, $297,000, $192,000, $192,000 and $208,000, from the years 2004 through 2009. Plaintiffs allege defendant, acting as attorney in fact, breached her duty to adhere to the express terms of the DPOA and plaintiffs seek for the court to order defendant to pay to the Family Trust the full value of the excess gifts, plus interest. Plaintiffs request defendant be ordered to pay the estate the value of the excess gifts, plus interest, to be distributed to the Family Trust.

Clarke died as a resident of North Carolina, and the Family Trust terminated and its assets became distributable. Plaintiffs filed suit on March 11, 2011.

Defendant argues that plaintiffs, as beneficiaries under Clarke’s will, had no legal interest in the transactions alleged to have occurred prior to his death on March 12, 2009. Defendant argues only Clarke and his personal representative may bring a cause of action to impeach personal property transfers made during Clarke’s lifetime.

Under the controlling North Carolina law, defendant’s alleged breach of the terms of the DPOA when she conveyed gifts to herself in amounts exceeding the annual exclusion for federal gift tax purposes created a cause of action for breach of contract or breach of fiduciary duty as to Clarke during his lifetime. Clarke’s legatees or distributes have standing to sue to recover personal assets of an estate when fraud, collusion or a refusal to sue on the part of the personal representative renders such action necessary for the protection of ultimate rights accruing to them under a will or the statute of distribution.

In this case, Clarke’s personal representative is also the same person who allegedly wrongfully gifted assets from the estate. In such a situation, the court finds that under the exception articulated in case law, plaintiffs, as distributees under the Family Trust and consequently under Clarke’s will, may bring a cause of action for breach of contract and fiduciary duties for acts occurring prior to Clarke’s death in place of the personal representative.

Further, defendant’s reliance on N.C. Gen. Stat. Sec. 28A-19-3(a) as the applicable statute of limitations is misplaced. That statute bars claims against a decedent’s estate, not claims to recover debt on behalf of the decedent’s estate. This case involves a claim to recover debt for the estate based upon allegations of breach of contract and fiduciary duties under the DPOA. Because the claim raised in count I is based on contract, the statute of limitations is three years.

Only claims based on the excess gifts for 2008 and 2009 were filed within the applicable statutory period. The court finds plaintiff’s claims based on excess gifts defendant allegedly received from 2004 through 2007 are time-barred.

Defendant also argues that because plaintiffs’ claims arose prior to Clarke’s death but were not timely presented to his personal representative, they are forever barred. This court finds the three-year statute of limitations in N.C. Gen. Stat. Sec. 1-52(a) applies. That period has not expired and plaintiffs are not barred from suit. They allege defendant gave herself gifts in excess of the annual exclusion amounts until March 22, 2010. Plaintiffs filed suit March 11, 2011, well before the earliest date of expiration for the statutory period. The court also declines to dismiss count II as to defendant in her individual capacity.

Camper v. Manning (Jackson) No. 2:11cv157, June 27, 2011; USDC at Norfolk, Va. VLW 011-3-349, 14 pp.

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Porn industry sues anonymous Hampton Roads users

2011-09-06T10:47:00.001-05:00

Porn industry sues anonymous Hampton Roads users

LEGAL challenge

These lawsuits are being challenged by the “John Doe” defendants and civil liberty advocates who contend the industry is bullying people.

THE SUITS

Some of the cases have been dismissed, but many have settled out of court, with the “John Does” typically paying $2,000 to $3,000 to make the suit go away and maintain their anonymity, according to an attorney close to the case. No cases have gone to trial.

By Tim McGlone
The Virginian-Pilot
© September 4, 2011

NORFOLK

More than 100 Hampton Roads residents, identified only as John Does, are being sued in federal court here, accused of illegally downloading pornography.

And one John Doe is fighting to keep his identity private.

Pornography producers and distributors have started a nationwide campaign, much like in the music industry, to stop illegal downloads of XXX movies. The industry says it is losing millions of dollars a year as titles such as "Amateur Allure - Zoe" and "Cuties 2" get passed around the Internet for free.

Lawsuits targeting at least 20,000 people across the country have been filed. The first two cases in the Norfolk federal court landed here this summer.

These lawsuits are being challenged by the "John Doe" defendants and civil liberty advocates who contend that the industry is bullying people.

They have had some successes. A federal judge in Illinois refused to grant a subpoena that would have forced Internet service providers to identify 300 John Does named in a lawsuit there. The judge called the suit "ill-fated" and "ill-considered."

And a federal judge in Alexandria earlier this year refused to allow lawyers to obtain the names and addresses of the Internet users for more than 100 downloaders of porn. The case was ultimately dismissed.

Adult pornography is one of the biggest moneymakers on the Internet. Several tech websites list annual porn revenue in the billions. Some wonder why the industry is going after illegal downloaders for a few thousand dollars each.

"We think these suits are unfair. They're cutting corners, and they're not giving people due-process rights," said Rebecca Jeschke, a spokeswoman for the Electronic Frontier Foundation, a civil liberties group that has been helping defendants in these cases.

"These suits are often filed with the assumption that they're not going to go to trial," she said. "It's about settlement."

Jeschke and others on the John Does' side blame the lawyers more than the industry for this rising tide of lawsuits.

John Steele of the Chicago law firm Steele Hansmeier is the chief lawyer filing these suits around the country.

He said he enlisted Virginia Beach attorney Timothy Anderson to file the two suits here on his behalf.

Anderson did not respond to messages seeking comment.

"We have about 95 percent of the cases," Steele said in a phone interview. "We basically saw that there was a real problem with piracy of pornography."

He said the porn industry has filed about 135 such suits against more than 20,000 people, most of whom have remained unnamed in court proceedings.

Steele said some of the cases have been dismissed but many have settled out of court, with the Does typically paying $2,000 to $3,000 to make the suit go away and maintain their anonymity. No case has gone to trial.

Steele represents an industry that is largely shadowy. Porn companies and their owners are difficult to locate.

One suit in the Norfolk U.S. District Court was filed against 30 John Does by Hard Drive Productions Inc., which lists a home office in Phoenix. Google maps show the site at that address as a small ranch house surrounded by cactuses. The owner, listed in public records as Paul Pilcher, did not respond to a phone message.

Public records say the company has one to three employees and annual revenue of more than $2 million. No website could be located (except for other companies with similar names).

Little could be found on the second company that is suing 77 area John Does. AF Holdings, the plaintiff, is a limited liability company with headquarters in the Caribbean. No U.S. office or website could be found.

One John Doe in the Hard Drive suit filed an anonymous motion to keep his name out of the record. He asserted in the motion that he probably would lose his job and be subject to "blackmail and extortion risks." A judge has not ruled on the motion yet.

The Electronic Frontier Foundation and John Doe defense lawyers have complained about the tactics used by Steele and other lawyers. Such a large dragnet is bound to scoop up innocent people. Often cited is the case of a grandmother in her 70s accused of downloading porn; the case against her was dropped.

"The error rate is considerable," said Mike Meier, a Washington, D.C.-area lawyer handling a number of these cases.

But Steele said new software, which he said he helped develop, significantly lowered the error rate.

"It's one of the things we looked at very carefully."

Meier acknowledges the country's long-standing copyright laws but said the lawyers' tactics have been too aggressive.

"In my opinion, they are bill collectors for the movie industry," he said. "They're basically extorting money.

"Do I like their methods? No, not really," he said. "But I don't know what I would do if the shoe was on the other foot."

Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com

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Child's guardian ad litem immune from suit

2011-09-01T10:57:00.000-05:00

Child’s guardian ad litem immune from suit

By Peter Vieth
Published: September 1, 2011

Tags: Domestic Relations, Federal Courts, Judge Samuel G. Wilson

It’s no surprise that lawyers appointed to represent the interests of children in hostile divorce cases can find themselves at odds with one or both parents of the child. In some cases, the parents even sue the lawyer acting as guardian ad litem.

A new decision from a Roanoke federal judge offers some reassurance that – in most such cases – the courts will protect a GAL who’s just doing the job.

U.S. District Judge Samuel G. Wilson held in Serdah v. Edwards that a guardian ad litem accused of violating a father’s constitutional rights was absolutely immune from suit in his role as GAL.

Roanoke lawyer Peter Edwards – as a GAL for a young boy – had sought a protective order against the boy’s father, fearing the father intended harm to his son as well as other family members.

The father filed a § 1983 action in federal court alleging Edwards conspired with the mother to violate the father’s rights.

Granting summary judgment for Edwards and the other defendants, Wilson found Edwards was shielded from the civil rights claims by both his independence from state government and by his role in the judicial process.

Wilson distinguished a 4th Circuit case allowing suit against a guardian of a ward who had custody of the ward and worked “in tandem” with state officials regarding the ward’s treatment.

“Edward’s role as a guardian ad litem is essentially that of an advocate,” Wilson wrote.

In the alternative, even if Edwards were deemed a state actor, he would be entitled to absolute immunity from § 1983 claims for duties performed in his role as GAL, Wilson held.

Wilson also found the father’s claim against Edwards lacked merit on factual grounds.

Roanoke lawyer Kevin Barnard, who represented Edwards, said Wilson’s decision follows the case law, but is welcome news for GALs. “It should be of comfort to guardians ad litem,” he said.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Embezzled Virginia funds funneled to Nigeria

2011-08-30T12:11:00.000-05:00

Embezzled Virginia funds funneled to Nigeria

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Brenda Grubbs, a former Goochland County treasurer, embezzled nearly $200,000 and sent the money to a shadowy figure in Nigeria. (The Goochland Gazette)

By David Sherfinski

The Washington Times

Homeowners are likely on their own to pay for damage from Tuesday’s earthquake.

A number of Louisa County residents – some whose homes suffered more than $10,000 worth of damage – learned this the hard way, The Free Lance-Star reports.

While most home and business insurance policies cover fire and water damage, coverage for earth movement damage is usually not included. Many insurance companies offer an earth-movement rider for existing insurance policies, but because earthquakes aren’t common on the East Coast, few people sign up.

Unlike homes, automobiles are usually covered for earthquake damage under the comprehensive portion of vehicle insurance.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Sheriff was victim of secretary's fraud

2011-08-24T16:48:00.000-05:00

Sheriff's ex-secretary gets jail time for overtime crime

By: Chris Dumond
Published: August 23, 2011

» 0 Comments | Post a Comment

APPOMATTOX --

Sheriff Wilson Staples hopes the jailing of his former secretary for stealing more than $9,200 from his office will be a step toward restoring public trust.

Staples spoke Tuesday from the unlikely position of the victim, in Appomattox Circuit Court. He said the theft was humiliating and that he felt personally betrayed.

“I think that in our capacity, we’re often held to a higher standard,” Staples testified. “Those wrongdoings affect not only the person, but the law enforcement department and law enforcement as a whole.”

Sandra Covington, 58, was sentenced to six months in jail.

Covington pleaded guilty in February to 10 counts each of grand larceny and money laundering. She was initially indicted on 20 counts each — one count of grand larceny and one count of money laundering for every pay period in which she was accused of billing the sheriff’s office for unapproved overtime. Her indictments cover a period of more than three of the four years she worked for Staples.

Commonwealth’s Attorney Darrel Puckett said he couldn’t indict her for anything before June 2007 because her earlier bank records couldn’t be retrieved. She was charged with laundering money through multiple bank accounts.

When pressed by Covington’s lawyer to explain why a county payroll manager caught the fraud and not the sheriff’s office, Staples explained that he trusted Covington to stamp his name on overtime approvals. She was the first to do that, he said, and will now be the last. The sheriff said he now personally reviews the payroll accounting.

Staples and Puckett contend she never worked those hours, either. No one saw her working early in the morning, Puckett said, nor did they see her staying late into the evening. She even paid herself overtime out of jail funds when she never worked in the jail-side operations, Puckett said.

Covington apologized for the embarrassment she caused herself, her family and the sheriff’s office, but denied stealing. As of Tuesday morning, she had completely reimbursed the sheriff’s office.

“I did not go through the proper procedure for time I did work,” she said.

Her lawyer, Marshall Ellett, cited cases in Richmond and Lynchburg where public employees convicted of embezzlement were not sentenced to active jail time. Three of Covington’s friends, including her employer in Farmville, testified she was trustworthy and would not get into trouble again.

Puckett recommended Covington be imprisoned for two years. He bristled at the comparison of Appomattox to other jurisdictions and the suggestion she should see no jail time. Part of the public’s lack of trust in the judicial system, he said, is that white-collar criminals too often don’t go to jail.

Judge Thomas Warren, a retired judge from Nottoway County, credited Covington for reaching the age of 58 without so much as a speeding ticket, but said it didn’t mean very much in the context of her charges. Most people who embezzle, Warren noted, gain a position of trust through their previously good reputations.

“You’ll go to your grave as a felon,” he told her.

The judge denied requests for work release and house arrest. He also denied Covington’s request not to serve her time at the Appomattox jail. Her lawyer said there was a security risk, but Warren left it up to Staples to decide whether she could be kept safely in his jail.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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VA Supreme Court to hear YMCA case of fitness clubs vs. Albemarle

2011-08-23T15:21:00.000-05:00

By Brian Wheeler

Charlottesville Tomorrow
Monday, August 22, 2011

The Virginia Supreme Court has decided to hear arguments in a lawsuit brought by a coalition of fitness clubs challenging Albemarle County’s investment in the Piedmont Family YMCA facility in McIntire Park.

While the YMCA is not party to the lawsuit, its leaders said Monday that the court case has just caused them to lose their general contractor and a very competitive bid. Groundbreaking on the almost $14 million 77,000-square-foot aquatics and fitness center had been scheduled to begin in September or October.

“Not in our wildest dreams did we think the Supreme Court would accept this case,” said Denny Blank, CEO of the Piedmont Family YMCA. “[ACAC owner] Phil Wendell told us all he wanted was his day in local court. He said he would step aside if the courts didn’t rule in his favor, but he is not happy with that and has appealed it.”

Blank says the legal fight has put the YMCA project in jeopardy.

“The contractor has said their bid price is now null and void,” Blank said. “You can’t expect a contractor to hold their bid price indefinitely and the banks are saying they will only lend the money when the lawsuits are resolved.”

The Charlottesville Area Fitness Club Owners’ Association, formed specifically for the legal fight which began in 2010, is composed of ACAC Fitness & Wellness Centers and Gold’s Gym.

The suit maintains that Albemarle and the city of Charlottesville violated the Virginia Public Procurement Act by not giving the clubs the option of bidding on the aquatic services that will be offered by the YMCA.

“The Supreme Court saw fit to hear our arguments, and they saw some merit in the arguments that we were making against the county that they did not follow the Virginia Public Procurement Act,” said Greg Wells, CEO of ACAC. “It just means they will hear the case, it doesn’t mean that it will be decided in our favor or the county’s favor.”

Total Performance Sports and Fitness was previously involved in the lawsuit. Its owner, Todd Proctor, said in an interview Monday that he withdrew from the lawsuit shortly after Charlottesville Circuit Court Judge Cheryl Higgins dismissed the case against Charlottesville in April.

The city has designated $1.25 million for construction of the pool and signed a 40-year lease with the YMCA for $1 a year for the building site. Albemarle is expected to contribute $2.03 million to the project.

Greg Kamptner, deputy attorney for Albemarle County, said he expected the case to be scheduled for oral arguments in the spring. An appeal of the case against the city of Charlottesville could still be heard separately.

“The case presents some interesting issues because they raised a Dillon Rule challenge to the board’s actions, and those cases are always interesting,” Kamptner said.

Under the Dillon Rule, local government only has the power given to it by the General Assembly. He said the case against Albemarle was narrowly focused on whether the donation could be tied to a specific use agreement.

“The fitness clubs argue that the board of supervisors didn’t have the authority to make the charitable contribution to the YMCA subject to a written agreement,” Kamptner said. “The court has seemed to have an interest in Dillon Rule cases in recent years and this case does present a unique challenge to the board’s authority.”

YMCA officials say the cost to build the fitness center will likely increase and that other non-profits funded by local government could face consequences if the fitness clubs prevail.

“It came in under $14 million, which means we could do a lot more for a lot less if we act now,” Blank said. “It may be back to $16 million or more if we come back to this a year from now.”

“It’s time for the public to get outraged that one man has set about blocking this project for personal greed,” Blank said. “We have been trying to take the high ground and not mention his name, but now it’s really hurting us badly because we have lost our contractor and we have lost this price.”

“I don’t think the comment justifies any reaction,” responded the ACAC’s Wells. “I think it’s just a very inappropriate comment for him to make.”

Wells added that his organization supports what the YMCA does and that his own children have participated in YMCA youth basketball and soccer. He said ACAC was concerned about the use of taxpayer dollars to support a project that was not open to a competitive bid.

“The crux of the whole issue is that we were unjustly and unfairly denied the opportunity to participate,” Wells said. “Other solutions may rear their head that would actually be better than the currently proposed YMCA, and you save a park.”

Blank maintains the YMCA will not negatively impact other activities in the city’s McIntire Park and that the facility’s clientele is different from the for-profit fitness clubs.

“Our customers are lower to middle class, people who cannot afford to get these services elsewhere,” Blank said. “We are not a chain like ACAC or a franchise like Gold’s Gym — we are owned and funded by the community with a volunteer board and volunteers on staff.”

Posted to: News Norfolk

The luxury liner Titanic leaves Southampton, England, on her maiden voyage April 10, 1912. The ship sank after it hit an iceberg on April 14 with the loss of more than 1,500 lives. In September 1998, the first tourists went to the floor of the North Atlantic to view the Titanic wreckage. (AP photo | National Maritime Museum)

View full-size photo | Buy Pilot photos

the case

Since 1992, RMS Titanic has argued in federal court in Norfolk for ownership of all the objects it recovered from the famous sunken cruise liner. Monday's ruling requires the company to maintain all of the pieces, and it can sell them only if the buyer obeys certain restrictions.

By Tim McGlone
The Virginian-Pilot
© August 16, 2011

NORFOLK

Essentially ending one of the area's longest-running cases, a federal judge Monday granted title to thousands of artifacts from the doomed Titanic cruise liner to the company that plucked them from the ocean floor during six expeditions.

The long-awaited decision by U.S. District Judge Rebecca Beach Smith means that RMS Titanic Inc. will own more than 3,000 Titanic artifacts but with the condition that they be maintained forever. They could be sold but only under limited conditions.

RMS Titanic Inc. has been battling in court for almost 20 years to get title to the artifacts that were lifted from the North Atlantic during company-run salvage operations. The items include china, jewelry, playing cards, musical instruments and even a large chunk of the ship's hull.

The company had sought a salvage award of $110 million, the estimated net worth of the objects. The court could have ordered the artifacts auctioned to meet that price but instead gave the company control to market them for profit.

To make money, RMS Titanic's parent company Premier Exhibitions Inc. has been holding exhibitions of the artifacts around the world. Exhibits are currently showing in Greensboro, N.C., Las Vegas, London and Brazil.

The ruling basically ends a two-decade court battle over salvage rights to the wreck site and ownership of the artifacts. In that time, the company nearly went bankrupt and has gone through two hostile takeovers.

Premier, based in Atlanta, issued a news release Monday stating that company officials were reviewing the decision and will issue a statement "as soon as possible." Company lawyer Robert McFarland of Norfolk was traveling Monday and was unavailable.

The company already holds title to another 1,800 artifacts recovered from the earliest expedition in 1987. A French court previously issued that ruling. The federal court in Norfolk later maintained oversight of the case because of its specialty in admiralty law.

The famed Titanic sank on its maiden voyage after striking an iceberg in the North Atlantic in 1912. Of the 2,228 passengers and crew, 705 were saved.

The wreck site, about 400 miles off the southern coast of Newfoundland, was discovered in 1985. In 1992, after several expeditions, RMS Titanic asked the Norfolk federal court for sole salvage rights and permanent ownership of all the objects it recovered.

The case hit several bumps along the way, including a number of appeals. The company, under previous ownership, initially wished to sell the artifacts for profit. The court refused to allow that and ordered the company to undergo a study of what it would take to permanently preserve the objects.

That led to the creation of a thick book of covenants and conditions aimed at keeping the collection intact and preserved. The company maintains a climate-controlled warehouse for artifacts that are not on display.

The court has allowed the company to sell bits of coal that were pulled from the wreck site.

The company could sell the collection, but the buyer would have to obey the restrictions already agreed to between the court and the company. Previous attempts to sell the artifacts to a museum, including The Mariners' Museum in Newport News, failed.

The company has previously said it would fund a preservation trust to provide for the maintenance and conservation of the artifacts.

The last Titanic expedition, a year ago, did not yield artifacts. The trip was scientific and designed to assess, map and film the wreck site and to determine the approximate size of the debris field. Footage of the dive showed that the ship has deteriorated greatly since it was first discovered.

Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Walmart Greeter fired over Facebook posts

2011-08-12T10:33:00.000-05:00

Karen Kiley Reporter

5:12 p.m. EDT, August 11, 2011

August 2nd, 2011 · No Comments · Court of Appeals, Domestic Relations

Come listen to the tale of Tammy Taylor and Curtis Cole. Cole married Taylor in 1995. Somewhere along the way, the romance must have faded.

In 2005, Cole went through a marriage ceremony with Donna Vincent without first divorcing Taylor. Cole claimed on his marriage license application that he had never been married.

Cole claimed it was “legally impossible” for him to be convicted of bigamy under Va. Code § 18.2-362. He reasoned that because his marriage to Vincent was void under the statute, he did not “marry another person” as prohibited by the statutory language.

Cole missed the point, according to Judge D. Arthur Kelsey’s published opinion in Cole v. Commonwealth. Tracing Virginia’s law back to the bigamy statute of King James I, Kelsey said that statute’s phrase “do at any time marry” has historically been understood to mean the a “second marriage is merely void, and yet it maketh the offender a felon.”

The fact that the later marriage was void did not preclude criminal prosecution for bigamy, Kelsey said. He also rejected Cole’s constitutional arguments, including the claim that his two-year sentence constituted cruel and unusual punishment.

By Deborah Elkins

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Manassas resident shows document issued from 'Kingdom of Heaven' as driver's license

2011-08-02T10:40:00.000-05:00

"Heavenly" driver's license leads police to bomb materials.

By Kaitlin Mayhew -- kmayhew@nvdaily.com

FRONT ROYAL -- A Manassas man was arrested in Front Royal on Sunday on two charges after showing police a driver's license issued by the "Kingdom of Heaven."

Randy R. Linamen, of 8724 Round Lane, Manassas, was stopped by Front Royal police during a DUI checkpoint on Commerce Avenue.

Linamen, who was operating a van when he was stopped, was asked for his driver's license by town police detective Jason Winner. He then produced a document titled "Drivers License" issued from the "Kingdom of Heaven."

When Winner questioned Linamen about the license, he stated that Winner was not upholding his oath and was committing treason, according to a Police Department news release.

While Winner was conversing with Linamen, another detective observed "what appeared to be two speed loaders in the center console of the van," the release states.

When Winner asked Linamen to exit his vehicle, Linamen attempted to drive away from the checkpoint, police said.

He was then physically removed from his vehicle by the officers. At that point, according to the release, a loaded Dan Wesson .357 caliber handgun was observed in the driver's door pocket of the van.

Linamen was charged with possession of a firearm after being convicted of a felony, and operating a motor vehicle after being declared a habitual offender. He was transported to the Warren County Jail, the release states.

A sweep of the vehicle produced what appeared to be three pipe bombs under the front driver seat of the van.

The vehicle was cleared and the items were deemed to be "safe and contained no explosive material," the release says.

Linamen was held without bond, and is scheduled to appear in Warren County General District Court at 10 a.m. Aug. 16.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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