The Supreme Court of Virginia granted 8 appeals over the past week. Highlights include:

Summaries of the appeals are below, and full information is available on the Court’s website.

The Anablogger asked me offline why I’ve started tracking this information,  which he finds a little tedious.

There are a few reasons.

First, I think that it’s neat  to see what appeals are in the pipeline and who is handling them.

Also, I’m interested in the precise wording of assignments of error, and some of the procedural issues that they implicate. Since the Court keeps the below information on its “Appeals Granted” page only until it issues a decision in the case, I thought that it might be helpful to compile it here for reference purposes. If the Court should later reject a challenge to an assignment of error as insufficient, for example, I’d like to see exactly what the appellant said.

Also, it’s my blog and I can do whatever I want. You try coming up with new content every week. It’s not easy.

With that said, here are this week’s appeals granted:

 

MILLER v. COMMONWEALTH, Record Number 092401, on appeal from the Court of Appeals

Counsel

  • Elliott B. Bender (Elliott B. Bender, PLLC) for appellant.
  • Robert H. Anderson, III (Office of the Attorney General) for appellee.

Assignments of Error

  1. The trial court erred in allowing the admission of the firearms and ballistics examination certificate and the conclusion drawn from the certificate. Although it appears that the actual certificate was never viewed by the jury, the Commonwealth was allowed to argue its conclusive effect on the case and the defendant was precluded from arguing the lack of its conclusion.
  2. The Court of Appeals properly concluded that the State forensic analyst’s laboratory firearms and ballistics report prepared for use in a criminal prosecution is testimonial evidence and thus requires a live expert to introduce the results, however, it failed to consider the proper application of this finding in context with the recent U.S. Supreme Court decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).
  3. Mr. Miller’s constitutional right to confront and cross-examine witnesses against him has been violated. Therefore, the firearms and ballistics examination certificate and any argument made by the Commonwealth should never have been admitted over defense counsel’s objections.
  4. The Court of Appeals applied the wrong legal standard in applying its harmless error argument regarding defendant’s constitutional rights as applied to the admission of the ballistics examination certificate and the effect it had on the parties to argue their prospective cases.

BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, INC.,  v. COMMONWEALTH, Record Number 101476, on appeal from the Court of Appeals

Counsel

  • Robert L. Wise and David E. Gluckman (Bowman and Brooke LLP) for appellants.
  • David E. Evans, J. Tracy Walker, IV, and Darin K. Waylett (McGuire Woods LLP), Kristy A. Niehaus Bulleit (Hunton & Williams LLP) and E. Duncan Getchell, Jr. and David C. Grandis (Office of the Attorney General) for appellees.

Assignments of Error

  1. The Court of Appeals erred in applying an “arbitrary and capricious” standard of review, instead of a de novo review, to the Board’s legal determination that it was categorically without legal jurisdiction to regulate the “hot side” of Lake Anna.
  2. The Court of Appeals erred by applying the “arbitrary and capricious” standard of review to conclude that the circuit court erred by not deferring to the Board’s reliance on an erroneous advisory opinion, a deferring EPA no-objection letter, and a “voluminous” record.
  3. The Court of Appeals erred in reversing the circuit court and upholding the Board’s categorical refusal to exercise regulatory jurisdiction over the “hot side” as a “cooling water impoundment,” when the record evidence clearly supported the circuit court’s conclusion that the “hot side” is, indeed, “waters of the United States” and properly under the Board’s regulatory jurisdiction.

HAWVERMALE v. BEST BUY COMPANY, INC., Record Number 101650, on appeal from the Circuit Court of Fairfax County

Counsel

  • Michael M. Pavlovich, Esquire, and Herman M. Braude (BRAUDE & MARGUILES, P.C.) for appellant.
  • John D. McGavin and Amy A. Lombardo (TRICHILO, BANCROFT, McGAVIN, HORVATH & JUDKINS, P.C.) for appellee.

Assignments of Error

  1. The circuit court erred in granting Best Buy Company Inc.’s (“Best Buy”) Motion in Limine to exclude the testimony of Hawvermale’s proposed human factors engineering expert, Dr. William Vigilante, Ph.D (“Dr. Vigilante”)
  2. The circuit court erred in sustaining Best Buy’s objection to, and granting Best Buy’s motion to strike, the proposed testimony of Plaintiff’s witness Dolores Hawvermale concerning the appearance of shopping carts at the Best Buy location in question on relevance grounds.

 More after the jump . . .

 

EBERHART v. FAIRFAX COUNTY EMPLOYEES’ RETIREMENT SYSTEM BOARD OF TRUSTEES, Record Number 101761, from the Circuit Court of Fairfax County

Counsel

  • Benjamin J. Trichilo and Wesley D. Allen (Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C.) for appellant.
  • David P. Bobzien, Peter D. Andreoli, Jr., and James E. Wilcox, Jr. (Office of the Fairfax County Attorney) for appellee.

Assignments of Error

  1. The trial court erred by failing to follow the plain language of Va. Code § 51.1-823 when it held that “the Retirement Board” applies only to the Police Retirement Board and does not apply to the Fairfax County Employees’ Retirement System.
  2. The trial court erred by relying upon legislative history, where the statutory language is clear; and where the legislative history shows that the legislative changes to Title 51.1 were not merely a recodification, but a revision and amendment.

SINCLAIR v. NEW CINGULAR WIRELESS PCS, LLC, Record Number 101831, from the Circuit Court of Albemarle County

Counsel

  • William D. Dolan, III, David R. Lasso, Michael W. Robinson and Mona S.K. Haar (Venable LLP) for appellant.
  • John L. Walker III, Samuel T. Towell, Valerie W. Long (Williams Mullen, PC), Larry W. Davis and Greg Kamptner (Office of the County Attorney) for appellees.

Assignments of Error

  1. Because Albemarle County Ordinance 18-4.2.5 conflicts with, and is preempted by, Code of Virginia provisions and Supreme Court case law governing exemption from zoning prohibitions by variance or modification, the circuit court erred in failing to find that ordinance void.
  2. The circuit court erred in failing to find Ordinance 18-4.2.5 void under the Dillon Rule because its mode and manner for granting exemptions from zoning restrictions is not authorized by law, ultra vires, and in violation of the Code of Virginia.

NORTHERN VIRGINIA REAL ESTATE, INC.,  v. MARTINS, Record Number 101836, from the Circuit Court of Fairfax County

Counsel

  • Kevin M. Rose and Lindsay C. Brubaker (BotkinRose PLC) for appellants.
  • Mikhael D. Charnoff (Sands Anderson, PC) for Appellees Karen Martins and McEnearney Associates, Inc., and Michael W. Tompkins (Rich Rosenthal Brincefield Manitta Dzubin & Kroeger, LLP) for Appellees Donna Gavin and David Gavin.

Assignments of Error

  1. The trial court erred in awarding sanctions under Va. Code § 8.01-271.1 against NVRE, Kivlighan, and their trial counsel and in favor of Martins, MAI, Donna Gavin, and David Gavin when the trial court lacked jurisdiction to do so because the motions for sanctions were made, heard, and decided more than 21 days after entry of a nonsuit order, and the trial court lacked authority under Rule 1:1 of the Rules of the Supreme Court of Virginia to suspend the finality of the nonsuit order.
  2. The trial court erred in imposing sanctions under Va. Code § 8.01-271.1 against NVRE, Kivlighan, and their trial counsel, jointly and severally, rather than apportioning the sanctions among them based on their respective conduct relative to each of the parties that was awarded sanctions.
  3. The trial court erred in awarding sanctions under Va. Code § 8.01-271.1 against NVRE, Kivlighan and their trial counsel and in favor of Martins, MAI, Donna Gavin, and David Gavin because it abused its discretion by making its sanction determination based on post-filing factual findings, evidentiary rulings, hindsight, and improper considerations rather than an objective view of whether NVRE, Kivlighan, and their trial counsel, after reasonable inquiry, could have formed a reasonable belief that the Complaint, Amended Complaint, Bill of Particulars, and Second Amended Complaint met the certification requirements of Va. Code § 8.01-271.1 at the time each was respectively filed.

WALPOLE v. MARTINS, Record Number 101844, from the Circuit Court of Fairfax County

Counsel

  • Sean C.E. McDonough and David D. Hudgins (Hudgins Law Firm) for appellant.
  • Mikhael D. Charnoff (Sands Anderson, PC) for Appellees Karen Martins and McEnearney Associates, Inc., and Michael W. Tompkins (Rich Rosenthal Brincefield Manitta Dubin & Kroeger, LLP) for Appellees Donna Gavin and David Gavin.

Assignments of Error

3. The trial court erred in awarding sanctions under Va. Code § 8.01-271.1 against Walpole, NVRE, and Kivlighan because it abused its discretion by making its sanction determination based on post-filing factual findings, evidentiary rulings, and other hindsight rather than an objective view of whether NVRE, Kivlighan, and Walpole, after reasonable inquiry, could have formed a reasonable belief that the Complaint, Amended Complaint, Second Amended Complaint and Bill of Particulars met the certification requirements of Va. Code § 8.01-271.1 at the time it was filed.

4. The trial court erred in determining the terms of and quantum of sanctions against Walpole, NVRE and Kivlighan because it did not properly consider the defendants’ failure to mitigate, the billing practices of defendants’ counselors, the punitive effect of the award, and ability to pay.

5. The trial court erred when it denied Walpole’s motion for entry of a suspending order without giving Walpole the opportunity to present oral argument under Va. Sup. Ct. R. 4:15(d).

6. The trial court erred in awarding sanctions under Va. Code § 8.01-271.1 against NVRE, Kivlighan and Walpole when the trial court lacked jurisdiction to do so because the motions for sanctions were made, heard, and decided more than 21 days after entry of a nonsuit order, and the trial court lacked authority under Rule 1:1 of the Rules of the Supreme Court of Virginia to suspend the finality of the nonsuit order.

[Yes, I know the formatting is jacked up on that one. The Court apparently granted assignments of error 3-6, which wreaked havoc on my automatic numbering feature.]

SLOAN v. MT. BLANCO PARK ASSOCIATION, INC., Record Number 101927, from the Circuit Court of Chesterfield County

Counsel

  • Elliot P. Park and Steven S. Biss (Park & Company, P.C.) for appellant.
  • Cheryl S. Tuck (Daniels & Morgan) for Appellee Mt. Blanco Park Association, Inc., and Christopher J. Habenicht (Hopson, Habenicht, and Cave) for Appellee Binford Sloan, III.

Assignments of Error

  1. The circuit court erred when it granted defendant’s demurrer, plea in bar and motion to dismiss, and ruled that the conditions, restrictions and reservations in the Agreement were extinguished by the subsequently recorded Deed.