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Nature of gifts at issue in couple's divorce

2012-01-12T17:56:00.000-05:00

Nature of gifts at issue in couple’s divorce

By Paul Fletcher
Published: January 5, 2012

Tags: Domestic Relations, Henrico County Circuit Court, Divorce Attorney, Judge Daniel T. Balfour

When a wife’s father said that a $15,000 payment was for “y’all,” he made a joint gift to the couple, despite his later testimony that he intended only to help his daughter.

Henrico Circuit Judge Daniel T. Balfour had to weigh a number of gifts in Polich v. Polich (VLW 011-8-232) to determine whether they were separate or joint.

The $15,000 gift was used for an improvement to the jointly owned house and garage in suburban Richmond.

The Poliches, Balfour wrote, were both in their 50s, with one remaining child at home, a senior at Mills Godwin High School. The marriage had been deteriorating for some time until they sought a divorce.

The money for the home improvement was one of a number of gifts the wife’s father made over the years to his daughter.

A car he gave her was a gift only to her. But in 1998 the dad paid a $12,500 credit card debt. The debt was incurred by both parties with different purchases and the payment benefitted both, so it was a gift to both, Balfour held.

Also, the wife said that she had thanked her father for his assistance to “us,” the judge said.

But cash gifts of $10,000, clearly made to qualify for the gift tax exemption, were separate.

Balfour parsed through these gifts and other monies received through the years (including a large inheritance the wife received upon her mother’s death) to determine the respective portions of the marital home, which he found was hybrid property due to the parties’ respective financial contributions.

Old boyfriend

Balfour said that neither of the parties was entitled to receive an award of attorney’s fees from the other.

However, he did order the wife to pay $3,000 for the attorney’s fees of a college boyfriend of the wife. The husband had subpoenaed him to appear in the case.

Balfour wrote that “immediately prior to, during and after the separation,” the wife reconnected with this man, talking and texting him for over six hours over a two-month period.

The wife testified there was no physical relationship and that she had only a close an “advisory” relationship with him, seeking advice about a divorce lawyer and other matters.

Balfour said that given the “numerous text messages and innumerable telephone conversations,” the husband “had reason to be concerned.”

It would be “incongruous” to require him to pay the man’s legal fees. Balfour said that expense she be borne by the wife.

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

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

One toke over the line

2012-01-10T14:33:00.000-05:00

One toke over the line

January 9th, 2012 · No Comments · Criminal Defense Attorney, Employment Law

A federal judge cited that ‘70s anthem last week when he decided a mine worker who hadn’t toked up since high school should get a chance to return to work.

Employer Dickenson-Russell Coal Company had a strict “zero tolerance” drug policy that called for random screening and disciplinary sanctions ranging up to termination. After the policy went into effect in 2006, three employees at the Cherokee Mine tested positive for drugs and each was terminated. The union did not arbitrate any of those terminations.

Robert Gilbert worked in the coal industry for 32 years, and his work for D-R involved electrical and mechanical repair and was “safety sensitive.”

On Sept. 23, 2010, Gilbert was playing poker with two buddies when one of them pulled out a joint.

“Although he had not smoked marijuana since high school, Gilbert ‘toked it’ twice,” Big Stone Gap U.S.

District Judge James P. Jones wrote in Dickenson-Russell Coal Co. v. Int’l Union, UMW. A footnote defined “toke,” with reference to Merriam-Webster and the song by Michael Brewer and Tom Shipley.

As luck would have it, Gilbert faced a random drug screen the next day, his fourth test that year. He tested positive and the company suspended him with intent to discharge.

When the union took the matter to arbitration, the arbitrator said Gilbert’s lengthy clean work record made him the “poster boy” for mitigating circumstances that supported a lesser penalty. The arbitrator directed that Gilbert be reinstated without his six months of back pay. The coal company refused to reinstate Gilbert and the case went to court.

Jones upheld the award for Gilbert, saying the company drug policy did not require termination as the only possible punishment and reinstatement did not violate public policy.

By Deborah Elkins

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

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

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.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

'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

Dec 16th, 2011 by Deborah Elkins

Tag: Charlottesville Attorney

A property owner who signed an “Asset and Authorization Card” to allow a contractor to remove storm-damaged trees was not bound by a written contract, the Supreme Court of Virginia says.

In a Dec. 9 unpublished order in Hall & Wilson Construction Inc. v. Bowers, No. 101566, the high court upheld a Chesterfield County Circuit Court decision that the parties had an oral contract and the statute of limitations had run on the contractor’s $74,375 claim against the owner.

Owner Charlie Bowers signed a printed form that granted Hall permission to come onto the property to remove trees damaged during a 2003 tropical storm and to secure the house. The form also stated the homeowner would be the “responsible party for payment should they receive payment direct from insurance company.”

The Supreme Court faulted the form for its failure to show an agreement to repair the house or just remove the downed trees and its failure to identify whether Hall should remove all downed trees or only those from the house. The form also didn’t state whether Hall should repair damage caused the fallen trees apart from repair to the house, or account for the amount, time and manner of payment.

By Deborah Elkins

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

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Mom can get QDRO for child support

2011-12-21T12:02:00.000-05:00

Mom can get QDRO for child support

December 20th, 2011 · No Comments · Child Support, Family Law Attorney, Domestic Relations

A mother could attach a father’s federal retirement account to collect a child support arrearage, the Virginia Court of Appeals said today.

It did not matter that the mother had waived any personal interest in the retirement account in a premarital agreement, the appellate panel said. In Nkopchieu v. Minlend, the panel reversed an Alexandria trial court decision that rejected the mother’s request for a Qualified Domestic Relations Order to pursue the $28,000 arrearage for the couple’s two children.

Citing Hoy v. Hoy,the father’s lawyer argued the mother could not “recast” her child support claim into a circumstance for entering a QDRO.

Judge Randolph A. Beales said the father had “completely ignored and frustrated the trial court’s child support orders” and had apparently left the country. The retirement account was the mother’s only means of obtaining support. The panel rejected the trial court’s ruling that Hoy prevented it from entering a QDRO to satisfy the child support arrearage.

Beales emphasized that the mother sought to vindicate the children’s right to child support, not any personal property right that might have accrued to the mother during the parties’ marriage. The mother asked for a QDRO while the divorce proceedings were active; she was not trying to reopen a case to substantively modify the terms of a divorce decree, as in Hoy.

The appellate court reversed and remanded the case for the trial court to determine whether the mother’s draft QDRO met ERISA technical requirements.

By Deborah Elkins

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

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

A charge that's not a crime

2011-12-20T11:41:00.001-05:00

A charge that’s not a crime
Drivers ticketed for ‘driving without proof of insurance’

By Peter Vieth
Published: December 19, 2011

Tags: General District Courts, Tucker Griffin Barnes, Traffic Offenses

Virginia drivers are being charged and convicted of an offense that is not a crime under state law: driving without proof of insurance.

The General Assembly has debated the issue at least three times, but in each instance, a bill to require drivers to carry an insurance card or other proof of insurance has failed. Nonetheless, in several localities, drivers have been hit with hefty fines and court costs for failing to have proof of insurance, according to court records.

A Lynchburg lawyer was steamed when he was charged for not having an insurance card when he was stopped as he drove through Sussex County over Labor Day. He could have folded like some people do when a police officer issues a citation. But he went back to Sussex in November to fight and told the judge that he has been charged with a non-existent crime. The judge has not yet ruled in the case.

Virginia law does not even require a driver to have insurance. Owners can opt to pay a $500 uninsured motor vehicle fee to the Department of Motor Vehicles. Failure either to insure your car or pay the fee is a Class 3 misdemeanor, punishable by fines of up to $500, according to Virginia Code § 46.2-707.

The statute provides the same penalty for falsely verifying insurance and related infractions, but it does not make it an offense to drive without proof of auto insurance, lawyers confirmed.

Some Virginia police officers – both state and local – are misinformed about Virginia auto insurance law.

A state police spokesperson said troopers can and do charge drivers with failure to have proof of insurance under Code § 46.2-707.

State troopers routinely ask for a driver’s license, registration and insurance card during a traffic stop or crash investigation, according to Corinne N. Geller, Virginia State Police public relations director. Based on the response from the driver when asked about insurance, she said, troopers can either charge under Code § 46.2-707 or require the driver to use a form to provide proof of insurance to the DMV within 30 days.

Court records show local police have written tickets for “no proof of insurance” in Colonial Heights and Prince William, Sussex and Dinwiddie counties. One driver was fined $100 plus $10 in court costs after being found guilty in Sussex County in May.

A Richmond prosecutor acknowledged some insured drivers in that city are charged for failure to have an insurance card. The charge is dismissed when the driver brings the proof of insurance to court, the prosecutor said in an email forwarded by Commonwealth’s Attorney Michael Herring.

The Lynchburg lawyer charged in Sussex County, M. Paul Valois, decided to fight because the stakes are high for a conviction under Code § 46.2-707. The violation is a Class 3 misdemeanor, and making any false statement a “crime of moral turpitude,” Valois said. Once that conviction is on someone’s record, it could affect future employment or military service. For those reasons, Valois said, “I’ve got to fight it.”

There’s even more at stake. Other lawyers point out that a conviction under Code § 46.2-707 brings immediate license suspension by the DMV and requires payment of the $500 and proof of financial responsibility.

Valois may have a valid defense. Attorneys who reviewed the statute agreed it does not criminalize failure to have an insurance card in your car.

“Not having proof of insurance is not an offense in Virginia. It’s just incorrect,” said G. Barton Chucker of Richmond, a traffic defense lawyer.

Chucker also serves as a substitute judge hearing traffic cases in Richmond. He said the issue comes up every time he sits on the traffic court bench. He added he has seen a handful of police officers in Richmond who try to charge motorists with failing to have proof of insurance. He said he simply tells prosecutors, “It’s not the law.”

“The offense is not driving an uninsured motor vehicle,” agreed Lynchburg Commonwealth’s Attorney Michael R. Doucette. “The offense also is not failure to have proof of insurance while operating the vehicle on the highways. Virginia allows the operation of uninsured motor vehicles on the highways,” he said.

“Rather, the offense is having an uninsured motor vehicle and not paying the uninsured motorist fee of $500 per year,” Doucette said.

Chucker, Doucette and other attorneys agree that if a driver tells an officer there is no insurance on the car and he has not paid the $500 fee, the driver has earned himself a valid ticket.

“My guess as to where the confusion arises is everyone assumes that if a person had the $500 to pay the uninsured motorist fee, he would get at least a minimal insurance policy instead. So, if a motorist tells a law enforcement officer that he has no insurance, the officer presumes that he also has not paid the uninsured motorist fee,” Doucette said.

Doucette said requiring drivers to present either proof of insurance or proof of payment of the uninsured vehicle fee would go a long way to clear up the confusion.

Richmond traffic lawyer Bob Battle said it’s possible to make a mistake and misread the statute. “My guess is it is an officer who got out his little Virginia Code summary book and looked at the title of 46.2-707 and looked at the words ‘verification of insurance’ and missed the word ‘uninsured’ before ‘vehicle,’” Battle said.
And many drivers may be making a mistake as well, just assuming that proof of insurance is required. “People don’t know they don’t have to show the insurance card,” said Fredericksburg traffic lawyer Andrew F. Flusche.

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

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Toughness doesn't always come in a pinstripe suit...

2011-12-15T11:53:00.000-05:00

Husband's family farm is 'marital'

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

Husband’s Family Farm is ‘Marital’

By Deborah Elkins
Published: December 15, 2011

Tags: Domestic Relations, Tucker Griffin Barnes, Judge Robert J. Humphreys, Virginia Court of Appeals

When husband and wife sold their home and purchased the 19-acre family farm in Nelson County from a trust set up by husband’s parents to hold the farm as property for their four sons, the farm became marital property and the Court of Appeals upholds classification of the farm as marital property.

On appeal, husband contends the farm should have been classified as part marital, part separate, since he separately “owned” a one-fourth interest in the farm with his three brothers after his parent sold it to a trust.

Under Va. Code § 20-107.3(A)(3), to the extent property is retraceable by a preponderance of the evidence and was not a gift, the retitled property shall retain its original classification. When marital property and separate property are commingled into newly acquired property resulting in the loss of identity of the contributing properties, the commingled property shall be deemed transmuted to marital property.

The question here is whether husband successfully retraced one quarter of the farm to his separate property by a preponderance of the evidence.

Husband initially approached his mother seeking to purchase the farm. She agreed and directed the trust to sell the farm. In Virginia, a trustee is required to administer a trust and invest trust assets in good faith, in accordance with its terms and purposes. A trustee, without authorization by a court, may exercise powers conferred by the terms of the trust.

In this case, the farm was initially conveyed to the trust and therefore was governed by its terms.

Specifically, the terms of the trust required that the trustee hold all real property, for the parents’ lifetime or until such other time as the parents, jointly, or the survivor of them instructs the trustee to sell or otherwise distribute the trust assets as herein provided. Thus, upon instruction from the parents to sell the farm to husband and wife, the trustee was obligated to comply.

Ultimately, the sale of the farm was executed between the parents, the brother who served as trustee and husband and wife. Thus, at a minimum, the farm became transmuted, untraced marital property following the sale. At this point the farm was no longer an asset of the trust and therefore was not subject to any of its terms. The trust provision governing distribution of the farm as a trust asset upon the parents’ death became irrelevant and husband could not receive any interest in the farm through the trust. Under the plain terms of the trust, the brothers would only receive an equal share of the remaining trust assets upon the deaths of both parents. In other words, the trust gave the brothers a vested remainder in the trust assets that would not ripen into actual title until the deaths of the parents. By removing the property from trust assets, husband and brothers no longer had a future interest in the farm, and husband and wife thereafter possessed the farm as marital property.

The evidence also does not support husband’s contention that one-fourth of the farm was given to him as a gift. The farm was paid for using the proceeds of the sale of husband and wife’s house. Though the contract price was $100,000 and the note evidencing the debt for purchase of the farm was only for $75,000, this merely suggests there was a forgiveness of $25,000 in debt.

Because the farm was sold to husband and wife jointly, and husband did not inherit or receive the property as a gift, the circuit court did not err in finding it was marital property.

Stevens v. Stevens (Humphreys) No. 0498-11-3, Dec. 13, 2011; Nelson County Cir.Ct. (Gamble) Linda S. Jones for appellant; C. Lynn Lawson for appellee. VLW 011-7-393, 8 pp.

Long distance romance not cohabitation

2011-12-13T14:19:00.000-05:00

Long Distance Romance Not Cohabitation

By Deborah Elkins
Published: December 13, 2011

Tags: Domestic Relations,Tucker Griffin Barnes, Judge William G. Petty, Virginia Court of Appeals

The Court of Appeals affirms in part and reverses in part a trial court decision refusing to terminate spousal support and modifying child support without considering child support paid in arrears; husband’s evidence does not prove cohabitation under the parties’ agreement but the trial court erred in refusing to consider husband’s spousal support paid totaling $80,000 in modifying child support.

Husband and wife have three children and divorced in 2007 by a final decree incorporating a 2006 letter agreement providing permanent monthly child support of $2,000 and spousal support of $8,000, subject to termination if wife remarried or cohabitated in a situation analogous to marriage with a person of opposite sex for a year or more. In 2009, husband moved to modify child support based on changed circumstances: his income declined from $739,554 in 2006 to $6,666 monthly in 2010. He also moved to terminate spousal support based on wife’s longstanding romantic relationship with a boyfriend who lived Los Angeles. In 2010, husband paid wife $80,000 in spousal support for 2009 arrearages.

Wife is employed as a flight attendant. She and her boyfriend sometimes visit each other but neither has a key to the other’s residence. Following a hearing, the trial court refused to terminate spousal support but modified child support without considering spousal support paid.

On appeal, husband argues sufficient evidence proves cohabitation. We disagree. Our cases interpret cohabitation to require living together in the same house continuously or with some permanency, mutually assuming marital duties and obligations. Four factors are considered: (1) common residence; (2) intimate or romantic involvement; (3) provision of financial support; and (4) duration and continuity of relationship and other indicia of permanency. Applying this framework, we cannot say the trial court erred in finding wife and her boyfriend do not cohabit in a situation analogous to marriage. They do not share the same residence or keys to each other’s separate residences; storing a few personal items does not amount to sharing a residence.

We agree with husband that the trial court erred in refusing to consider his spousal support payments of $80,000 in modifying child support. Section 20-108.2(C) expressly requires considering spousal support in gross income for determining child support, including it in the recipient spouse’s income and excluding it from the payor’s. The irregularity of the payments does not allowing excluding them but irregularity can be considered in determining whether to deviate from the statutory guideline amount. We reject wife’s argument that the trial permissibly deviated from the statutory guideline amount because the trial court failed to comply with the statutory requirement to state the amount required under the guidelines. We reverse and remand for a determination of child support complying with the statute.

Cranwell v. Cranwell (Petty) No. 2677-10-4, Dec. 6, 2011; Arlington Cir. Ct. (Brown) Robert J. Surovell for appellant; Michael A. Ward for appellee. VLW 011-7-383, 11 pp.

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

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Delayed diagnosis leads to $2.65M verdict

2011-12-08T14:42:00.000-05:00

Delayed diagnosis leads to $2.65M verdict

By Peter Vieth
Published: December 8, 2011
Tag: Tucker Griffin Barnes

A Fairfax County jury has returned a $2.65 million verdict against a radiologist whose admitted negligence led to a delay in diagnosis of breast cancer for a 54-year-old woman, even though the woman had no additional medical bills and continued to work at the time of trial.

Arlington lawyer William E. Artz, the patient’s attorney, said the size of the Nov. 11 verdict is mostly attributable to the mental anguish suffered by the woman, who now faces an increased risk of the spread of cancer and a reduced life expectancy.

The radiologist conceded she was negligent in failing to spot the cancer as alleged in the complaint, Artz said. She defended the case solely on the issue of causation, with experts who testified that a 13-month delay in diagnosis did not change the expected outcome for the patient, according to Artz.

The case centered on a screening mammogram performed on Sept. 15, 2008. The radiologist missed a left breast abnormality and failed to order follow-up imaging studies or a referral for a biopsy, which would have revealed the breast cancer in time for curative treatment, Artz said.

The patient returned to the radiologist for her annual screening mammogram 13 months later. A focal symmetry in the left breast appeared more prominent. A diagnostic mammogram and ultrasound showed two masses in the left breast. A left breast biopsy revealed Stage IIIA breast cancer.

The patient underwent neo-adjuvant chemotherapy, a left quadrantectomy with reconstruction, radiation and hormone therapy. At the time of trial, there was no evidence of metastasis.

As a result of the misread mammogram, there was a 13-month delay in the diagnosis and treatment of the patient’s breast cancer. The delay allowed the cancer to progress from a curable (Stage IIA or IIB) to an incurable (Stage IIIB or IIIC), the plaintiff alleged. Artz said the tumor grew from 2.5 cm to 8 cm during the 13 months.

The defense experts argued that the breast cancer was slow-growing with no evidence of metastasis at the time of trial. They relied in part on Adjuvant Online, a computer database used by oncologists to determine a patient’s likely 10-year prognosis with chemotherapy after initial treatment, Artz said.

According to the defense experts, the patient had a 10-year survival rate of up to 70 percent. The plaintiff’s experts contended her 10-year survival rate was only 35 percent.

Despite her cancer diagnosis, the plaintiff continued to work, so there were no past lost wages. Since the plaintiff would have required the same treatment if her cancer had been timely diagnosed, there were no past medical bills.

The verdict was based solely on mental anguish and future medical expenses, Artz said. Both the patient and her husband testified about her fears for the future. “From a jury’s perspective, I think the mental anguish component is a fairly obvious one, even without her testimony,” Artz said.

The plaintiff’s experts estimated $250,000 to $300,000 in future medical bills attributable to the delayed diagnosis. Artz said he asked the jury for $2.5 million for mental anguish.

The four-woman, three-man jury deliberated for an hour and a half before returning the verdict for $2.65 million, Artz said.

Defense lawyers Richard L. Nagle and Travis W. Markley of Fairfax contend in a post-trial motion that the verdict is excessive, according to Artz. But he disagrees. “You are taking away 25 percent of a patient’s life with this conceded negligence,” he said.

Nagle could not be reached for comment by press time.

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

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Court issues 'actual innocence' writ

2011-12-07T13:00:00.000-05:00

Court issues ‘actual innocence’ writ

December 6th, 2011 · Tucker Griffin Barnes, No Comments · Uncategorized

The en banc Virginia Court of Appeals today issued a writ of actual innocence to Thomas Haynesworth, a Richmond man who spent nearly three decades in prison for at least one rape he didn’t commit.

An appellate panel heard Haynesworth’s case in March, and the en banc court took up the matter last July.

Today the full court granted Haynesworth’s petitions under Virginia Code Sec. 19.2-327.13 and vacated Haynesworth’s convictions.

The court’s decision was not unanimous. Judge Larry G. Elder filed an 11-page dissent, joined by Judge William G. Petty. Judge Randolph A. Beales and Judge Robert J. Humphreys filed separate dissents.

By Deborah Elkins

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

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Traffic-fine fight pits state against localities

2011-12-05T13:01:00.000-05:00

Traffic-fine fight pits state against localities

By Peter Vieth
Published: November 4, 2011

Tags: General Assembly, Tucker Griffin Barnes, Traffic Offenses

Complaints about “speed traps” may prompt the Virginia General Assembly to recalibrate how the state and various localities divide the money that goes with the traffic fines.

Under longstanding practice, Virginia’s local governments have passed their own traffic laws, which frequently correspond to state traffic statutes. Local prosecutors can choose to proceed under local law, which keeps the money from fines – several million dollars a year for some localities – in local coffers.

A new state auditor’s report questions the general practice and the revenue split.

The September report from Auditor of Public Accounts Walter Kucharski has legislators scrutinizing local budgets that explicitly rely on catching speeding motorists.

“Some jurisdictions have gotten a reputation for establishing budgets based on income generated by individual police activities … that winds up paying for salaries and equipment,” said Sen. John Watkins, R-Midlothian, a member of the Senate Finance Committee.

Hopewell is one locality that has planned on drivers being in a hurry. The city council approved a plan in 2007 to hire two part-time deputies to write speeding tickets on a two-mile stretch of Interstate 295. The project, detailed in council meeting minutes, was expected to bring in $500,000 to $1 million per year. The costs of the police car and officer salaries would be paid for in the first four to six weeks of the program, a report to the city council estimated.

After hearing the state auditor’s report last month, some members of the Senate Finance Committee are considering possible curbs on how localities can use the local fines and costs, one senator said.

For many local governments, there is big money at stake. In the fiscal year ending in June 2010, the audit shows courts collected $95 million in fines and costs from enforcement of local ordinances, mostly traffic laws that parallel the state traffic code. Local governments have a free hand in how they use that money.

By contrast, money from fines and costs related to state statutes goes to the state treasury, much of it earmarked for teacher retirement and school construction.

The auditor’s report has raised concerns among local government officials that the General Assembly might have its eye on the money they get from local ordinances.

Kucharski said the practice of allowing localities to pass local versions of state laws developed over the years without any analysis of what happens to the money paid by defendants. “People in the Courts of Justice Committees are adding this language without considering the impact on the Literary Fund or the general fund,” he said.

But there may be more specific issues involved in local ordinances. Watkins, who proposed the auditor’s study, said one of his concerns is the classic “speed trap” – local traffic enforcement activities designed to fill local coffers rather than enhance traffic safety.

The state audit shows the city of Emporia and surrounding Greensville County collected more than $2.9 million in local fines and costs in fiscal 2010. Internet postings suggest many motorists consider that area, where Interstate 95 intersects with U.S. 58, to be a speed trap.

Richmond traffic lawyer Robert E. Battle said the Hopewell officers patrol a section of highway where the speed limit is 70 miles per hour. Under Virginia law, anyone clocked over 80 can be charged with the crime of reckless driving. “It’s like spearing fish in a barrel,” Battle said.

The audit shows Hopewell collected more than the anticipated $1 million in local fines and costs in fiscal 2010.

Basing traffic enforcement on revenue estimates is not good government, Watkins said. “To me that calls into question the legal reputation of the enforcement and prosecution,” he said. “That’s not what justice is all about.”

Watkins said he also is concerned about the amount of money diverted from the state’s school fund as more and more localities have enacted local ordinances to beef up their budgets.

Fines and costs for state law violations go to the state Literary Fund, which contributes to teacher retirement and school construction, whereas money from local ordinance enforcement can be used by the local government for any purpose.

Watkins said some legislators hope to change how localities are allowed to use the money from local ordinances. “I think there’s a lot of people interested at Senate Finance,” he said.

The Virginia Municipal League wasted no time defending spending practices for local ordinance revenue. VML executive director R. Michael Amyx fired off a letter to Kurcharski while the audit report was still in preparation, listing the ways localities use the money for courts and law enforcement.

Localities spend roughly half of the local revenue for education, according to Neal Menkes, VML’s director of fiscal policy. That’s far more than what the state contributes, he said.

Menkes also says there is arguably a stronger local interest in traffic violations than state interest.
“Ultimately, for all localities, any reduction of revenues from fines and fees will put more pressure on real estate and personal property tax rates,” said Roger C. Wiley, a Richmond lawyer with extensive local government experience.

Wiley also points out local governments have to pay for lawyers for indigent defendants facing jail time when local criminal ordinances are enforced, so state costs of prosecution would increase if local ordinances were eliminated.

Portsmouth Circuit Court Clerk Cynthia P. Morrison, president of the Virginia Court Clerks’ Association, fears a loss of local fine revenue. As state funding decreased in recent years, “many of us had to rely on localities to step up to the plate,” she said.

Del. Scott Surovell, D-Fairfax, who is both a state legislator and a traffic defense lawyer, said localities such as Fairfax provide significant sums for court and law enforcement operations. The county government pays for judicial clerks, staff in the commonwealth’s attorney’s office, and police resources.

“I suspect a lot of jurisdictions are putting more in than they’re taking out in fine revenue,” Surovell said.
Nevertheless, Surovell said he was troubled by the suggestion some traffic enforcement operations were created just to raise money. “I think that’s kind of abhorrent,” he said, comparing it to speed cameras that generate fines without regard to driver points.

“It’s why a lot of people don’t trust the system to be fair and honest,” he said. “The whole thing raises a lot of interesting public policy issues.”

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

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

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.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

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.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

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.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

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.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

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

By Deborah Elkins
Published: November 8, 2011

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

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.

Sleep apnea disability claim advances

2011-10-31T10:00:00.000-05:00

Sleep apnea disability claim advances

October 27th, 2011 · No Comments · Employment Law

A Roanoke federal court says an IT specialist who fell asleep on the job can sue for disability discrimination on a claim his employer did not accommodate his insomnia and sleep apnea.

U.S. District Judge Samuel G. Wilson refused to dismiss John Leschinskey’s complaint against Radford University, filed after Radford fired the 39-year-old voice engineer who had worked for the university since 2005.

Leschinskey alleged he began medical treatment for his conditions in 2008 and notified his supervisor about his health issues. During the summer of 2008, he received a written warning about falling asleep on the job, and the following summer, the university suspended Leschinskey for two days without pay for sleeping on the job, his suit alleges.

Finally, in October 2010, Leschinskey’s supervisor gave him 48 hours to demonstrate why he should not be fired. Leschinskey completed forms under the Americans with Disabilities Act and submitted a written request asking for reasonable accommodation in the form of a one-hour delay in his start time and use of a doze alert at work. A doze alert signals to the user when he starts to nod off, according to Leschinskey’s lawyer Mark Black, of Roanoke.

Leschinskey “plausibly alleged he is otherwise qualified for the job” under the applicable standard, Wilson said.

Leschinskey’s suit is filed under § 504 the Rehabilitation Act of 1973 “because of the 11th Amendment sovereign immunity problem” with a state university defendant, Black said. Discovery will get underway, now that Wilson has given the plaintiff a green light to proceed in Leschinskey v. Rectors & Visitors of Radford University.

By Deborah Elkins

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

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Woman cleared in pooper scooper trial

2011-10-26T13:21:00.000-05:00

Waste not

October 26th, 2011 · No Comments · Fairfax Circuit Court

Here’s the scoop on the poop. The dog poop case in Fairfax, that is.

In Fairfax yesterday, a woman charged with violating a county pooper-scooper ordinance was found not guilty by a jury after a day-long trial.

Why did this case take a full day of court time and require the empanelling of a jury? The woman, Kimberly Zakrzewski, missed a court date in general district court in June. The charge is a misdemeanor; she was found guilty in her absence and fined $250. She appealed to circuit court, according to the Washington Post.

At the center of the case is a dog named Baxter, a small, white Westie-bichon frise mix. Zakrzewski is a stay-at-home mom who sometimes cares for the pooch.

Zakrzewski was the target of a complaint by two neighbors, the Cornell sisters, Virginia and Christine, The Cornells and Zakrzewski have feuded for some time, the Post reported. On the witness stand, Christine Cornell accused Zakrzewksi of routinely leaving Baxter’s piles behind at their condo complex near Route 50. She said one day she followed the dog and Zakwrezski, snapping pictures.

Zakrzewski denied the allegations, saying she always carries a baggie with her to clean up Baxter’s mess.

This isn’t the first time the Cornells and Zakrzewski have squared off in court: In 2008 the sisters filed a criminal complaint charging their neighbor with reckless driving through their condo complex. A jury found Zakrzewski not guilty.

In yesterday’s proceeding, a defense picture of what the Cornells said was Baxter’s waste product prompted an exchange between Kosa So, Zakrzewski’s lawyer and Michelle Berman, Baxter’s owner.

So asked, “Is this consistent with the stool Baxter creates?”

Berman said, “I’ve never seen anything that big come out of my little dog.” Baxter weighs 19 pounds.

Berman also told presiding Judge Jane Marum Roush that she had brought a baggie with Baxter’s waste as potential evidence, but she left it in the car.

“I don’t think you would have gotten through security,” Roush deadpanned.

After a day of testimony, the end of this tale was quick: The jury was out for less than 20 minutes: Not guilty.

- Paul Fletcher

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

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Virginia Beach puts arrest warrants online

2011-10-24T12:03:00.000-05:00

Arrest warrants in Va. Beach now accessible on-line

To access the warrant search feature, go to www.vbgov.com/epro and click on “Active Warrant Search.”

By Kathy Adams
The Virginian-Pilot
© October 15, 2011

VIRGINIA BEACH

Residents can go online to find information about arrest warrants through a new Web application launched by the Police Department this week.

For several years, residents have been able to look at basic police reports online through the department's ePro system.

Starting Wednesday, the system began including information on active arrest warrants, according to a police news release.

The goal is to encourage people to report information about wanted people, such as their whereabouts, according to the release.

The city has more than 7,000 active warrants, police said.

The new application allows residents to search by a person's name, alias and warrant type, according to the release. It also includes photos when available, and a list of the city's most-wanted people.

On Friday, that list included 238 warrants for offenses ranging from robbery to arson.

To access the warrant-search feature, go to www.vbgov.com/epro and click on "Active Warrant Search."

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

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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.”

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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

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