The Supreme Court has granted 13 appeals since we last checked in on the justices. Some of the highlights include:

Surprisingly, only 2 of these 13 cases are criminal. Summaries after the jump.

 

WALKER v. COMMONWEALTH, Record Number 101772, from the Court of Appeals of Virginia.

Counsel

  • Sandra M. Saseen (Office of the Public Defender) for appellant.
  • Eugene Murphy (Office of the Attorney General) for appellee.

Assignments of Error

  1. The trial court committed manifest error in denying Marshall’s motion to set aside the jury’s verdict based on juror dishonesty during voir dire and bias during jury deliberations.
  2. The Virginia Court of Appeals erred in holding that the trial court’s denial of Walker’s motion to set aside the jury verdict based on juror dishonesty during voir dire and bias during jury deliberations was not manifest error.

 

BB&T INSURANCE SERVICES, INC. v. THOMAS RUTHERFOORD, INC., Record Number 101843, from the Circuit Court of the City of Richmond

Counsel

  • Lynn F. Jacob and Heath H. Galloway, (WILLIAMS MULLENS, P.C.) for appellant.
  • Todd A. Leeson, James O’Keeffe, IV, and Michael J. Finney (GENTRY LOCKE RAKES & MOORE LLP), Scott D. Stovall (COWAN & GATES, P.C.), and W. Joseph Owens, III (OWENS & OWENS, P.L.C.) for appellees.

Assignments of Error

  1. The Circuit Court erred in holding that the Complaint fails to state a cause of action for breach of fiduciary duty against Defendants William Moore (“Moore”) and Donna Perkinson (“Perkinson”) and sustaining Defendants’ demurrers as to Count I.
  2. The Circuit Court erred in refusing to apply the sale of business analysis and thereby failed to fully consider all of the factual circumstances giving rise to certain post-employment restrictive covenants contained in the written agreement by and between BB&T Insurance Services, Inc. (“BBTI” or the “Company”) and Moore (the “Agreement”) that was entered into in connection with, and as a condition precedent to, BBTI’s purchase of Moore’s insurance agency.
  3. The Circuit Court erred in holding, without considering any evidence, that certain post-employment restrictive covenants contained in section 8 of the Agreement are invalid as a matter of law and thereby sustaining Defendants’ demurrers to Count II and III of the Complaint.
  4. The Circuit Court erred in holding that the confidentiality provision contained in section 10 of the Agreement was invalid as a matter of law solely on the grounds that the restrictions contained therein were not subject to a specific duration and thereby sustaining Defendants’ demurrers to Counts II and III of the Complaint.
  5. The Circuit Court erred in holding that the inclusion of a so-called “blue pencil” provision in section 16 of the Agreement invalidated the contract in its entirety and thereby sustaining Defendants’ demurrers to Count II and III of the Complaint.
  6. The Circuit Court erred in holding as a matter of law that BBTI failed to state causes of action for tortious interference with business expectancy, common law conspiracy, statutory business conspiracy, and misappropriation of trade secrets on the grounds that the Complaint failed to allege the requisite use of improper means by, or unlawful purpose on the part of, the Defendants and thereby sustaining Defendants’ demurrers to Counts IV, V, VI and VII of the Complaint.
  7. The Circuit Court erred in holding as a matter of law that BBTI failed to allege a common law or statutory business conspiracy with requisite particularity and thereby sustaining Defendants’ demurrers to Counts V and VI of the Complaint.

 

JIMENEZ v. CITIBANK, N.A., Record Number 101956, from the Circuit Court of Fairfax County

Counsel

  • Christopher E. Brown and R. Michael Smith (Brown, Brown & Brown, P.C.) for appellant.
  • Michael R. Sklaire and Virginia E. Robinson (Greenberg Traurig, LLP) and Allison Melton and Robert R. Michael (Bierman, Geesing, Ward & Wood, LLC) for appellees.

Assignments of Error

  1. The Circuit Court erred when sustaining defendants’ demurrers to Counts I and III of plaintiff’s complaint.
  2. The Circuit Court erred when relying upon the purported allonge which was ineffective to establish authority to enforce the note and deed of trust.

 

CARROLL v. PRINCE WILLIAM HOSPITAL, Record Number 101981, from the Circuit Court of Prince William County

Counsel

  • Gary B. Mims, Holly Parkhurst Essing, and Zachary J. Desmond (Hall, Sickels, Frei & Mims, P.C.) for appellant.
  • Andrew Butz and Alan S. Block (Bonner Kiernan Trebach & Crociata, LLP) for appellee.

Assignment of Error

  1. The circuit court erred in allowing an out-of-state physician to testify that a Virginia nurse complied with the applicable nursing standard of care, contrary to the provisions of Va. Code § 8.01-581.20(A), which requires that a testifying expert knows the standard of care by which a Virginia nurse’s conduct is to be judged and that the expert has an active clinical practice in the pertinent specialty or in a related field of medicine.

Assignment of Cross-Error

  1. If the trial court erred in allowing the Hospital’s physician expert to testify under Va. Code § 8.01-581.20(A), the trial court also erred in allowing Carroll’s nursing expert to testify, because Carroll’s nursing expert lacked the required recent experience working as an intensive care nurse under Va. Code § 8.01-581.20(A).

 

CHRISTY v. MERCURY CASUALTY COMPANY, Record Number 102138, from the Circuit Court of Washington County

Counsel

  • Daniel H. Caldwell and J. Randall Perkins (McElroy, Hodges, Caldwell & Thiessen) for appellant.
  • Mark K. Cathey (Glenn Robinson & Cathey, PLC) for appellee.

Assignments of Error

1. The Circuit Court erred in granting summary judgment for the defendant and in denying the plaintiff’s Motion for Summary Judgment and the plaintiff’s Motion to Re-Consider because the defendant’s policy language, as a matter of law, provides the coverage sought by the plaintiff. The Circuit Court erred as follows:

A. The Circuit Court granted the defendant’s Motion for Summary Judgment, applying the defendant’s policy exclusion and ruling that defendant owes Mr. Christy none of its $10,000.00 medical expense coverage.

B. The Circuit Court did not grant the plaintiff’s Motion for Summary Judgment. The Circuit Court should have ruled that defendant’s policy exclusion applied only “to the extent” and in the amount that workers compensation benefits were payable.

C. The Circuit Court did not grant the plaintiff’s Motion to Re-consider. The Circuit Court should have ruled that defendant’s policy exclusion applied only “to the extent” and in the amount that workers compensation benefits were payable.

D. The Circuit Court should have ruled that Virginia Code § 38.2-2201-A.3.b does not apply to the March 24, 2006 Johnston Memorial Hospital bill, in the amount of $6,127.00 which bill was previously the subject of litigation and which was paid pursuant to settlement of that litigation.

 

COMMONWEALTH v. BELL, Record Number 102314, from the Circuit Court of the City of Waynesboro

Counsel

  • Wesley G. Russell, Jr., Pamela A. Sargent, and Jill M. Ryan (Office of the Attorney General) for appellant.
  • Dana R. Cormier (Dana R. Cormier, P.L.C.) for appellee.

Assignments of Error

  1. The trial court erred in finding Bell appropriate for conditional release, and in ordering him conditionally released, where Bell failed to satisfy all the mandatory criteria set forth in Virginia Code Section 37.2-912.
  2. The trial court erred in finding Bell appropriate for conditional release, and in ordering him conditionally released, where the trial court failed to properly consider and apply the mandatory criteria of Virginia Code Section 37.2-912.

 

KARAM v. MARTINEZ, Record Number 101628, from the Circuit Court of Arlington County

Counsel

  • William E. Artz and Andrew J. Waghorn (William E. Artz, P.C.) for appellant.
  • Stephen L. Altman and Marc A. Brown (Hamilton Altman Canale & Dillon, LLC) for appellee.

Assignment of Error

  1. Did the trial court violate this Court’s holding in Easterling v. Walton, 208 Va. 214, 156 S.E.2d 787 (1967) by giving Instruction S, a “bad result” instruction, in a medical malpractice case involving a retained surgical sponge? Did the trial court violate this Court’s holding in Easterling by giving instruction T, which limited the jury’s consideration of the issue of negligence to the expert testimony, despite the fact that the jury was free to infer negligence, unaided by expert testimony, from the fact that Dr. Martinez left a sponge behind during surgery?

 

MARETTA v. HILLMAN, Record Number 102042, from the Circuit Court of Fairfax County

Counsel

  • George O. Peterson and Tania M. L. Saylor (Peterson Saylor, PLC) for appellant.
  • Daniel H. Ruttenberg (SmolenPlevy) for appellee.

Assignment of Error

  1. The trial court erred in determining that Jacqueline Hillman’s claim under Virginia Code § 20-111.1(D) was not preempted by federal law pursuant to the Federal Group Life Insurance Act, specifically 5 U.S.C. § 8709(d)(1), and awarding the Plaintiff summary judgment.

 

SMITH v. YOUNGBLOOD, Record Number 102062, from the Circuit Court for the City of Lynchburg

Counsel

  • Thomas L. Phillips, Jr. and Gentry R.P. Ferrell (Phillips, Morrison, Johnson & Ferrell) for appellant.
  • Sidney H. Kirstein (Attorney at Law) for appellees.

Assignment of Error

  1. The trial court erred in granting Defendants’ motion to dismiss on the ground that this action is barred based on the doctrine of res judicata.

 

BOWMAN v. CONCEPCION, Record Number 102144, from the Circuit Court of Wise County

Counsel

  • Jeffery L. Elkins and Carl E. McAfee for appellant.
  • William W. Eskridge and Joseph Hall (Penn, Stuart & Eskridge) for appellee.

Assignments of Error

  1. The trial court erred in ruling that the Order entered on February 5, 2010, extending the period of time to perfect service of process on defendant was null and void.
  2. The trial court erred in ruling that Plaintiff had not exercised due diligence in this case.

 

SILANO v. INOVA SERVICES, Record Number 102339, from the Circuit Court of Fairfax County

Counsel

  • Jeffrey J. Downey (Law Office of Jeffrey J. Downey, P.C.), Kevin Locklin (Locklin and Mordhorst, P.C.), and Jeffrey M. Summers (The Law Office of Jeffrey M. Summers, PLLC) for appellant.
  • Gary W. Brown and Brian R. Sanderson (McCandlish & Lillard, P.C.) for appellees.

Assignments of Error

  1. The trial court erroneously sustained INOVA’s Plea in Bar and Motion to Dismiss when it concluded that Silano, the attorney in fact and next friend, was the real party in interest when both the caption and the body of the complaint revealed that the attorney in fact appeared solely in a representative capacity.
  2. The trial court erred when it prevented Drakatos from amending the complaint to change the order of the parties’ names in the caption, where the real party in interest was plainly shown to be the real party in interest in the caption and clearly identified throughout the body of the complaint.

 

ST. JOE COMPANY v. NORFOLK REDEVELOPMENT AND HOUSING AUTHORITY, Record Number 102342, from the Circuit Court of the City of Norfolk

Counsel

  • Thomas B. Kelly (Bowman, Green, Hampton & Kelly, PLLC) for appellant.
  • W. Ryan Snow and Amy T. McClure (Crenshaw, Ware & Martin, P.L.C.) for appellee.

Assignments of Error

  1. The court erred in concluding that a portion of the funds held in Advantis’ master operating account remained the property of and subject to the control of NRHA and that Advantis had no right to these funds.
  2. The court erred in imposing a constructive trust when there was no evidence that St. Joe exercised control over the master operating account by fraud, abuse of confidence, or other questionable means.
  3. The court erred in finding unjust enrichment in the absence of any claim of fraud or evidence of inequity.
  4. The court erred in imposing a constructive trust or unjust enrichment claim on funds held in an account over which a secured creditor held a perfected security interest when the deposit was not alleged to be the product of mistake or fraud.

 

CUCCINELLI  v. RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA, Record Number 102359, from the Circuit Court of Albemarle County

Counsel

  • Kenneth T. Cuccinelli, Wesley G. Russell, Jr., E. Duncan Getchell, Jr., Charles E. James, Jr., and Stephen R. McCullough (Office of the Attorney General) for appellant.
  • Chuck Rosenberg, Jessica Ellsworth, N Thomas Connally, Jon M. Talotta, Stephanie J. Gold, and Catherine E. Stetson (Hogan Lovells US LLP) for appellee.

Assignment of Error

  1. The circuit court erred in setting aside the CIDs based on the ground that the Attorney General lacked a “reason to believe” that UVa. may be in possession, custody, or control of any documentary material or information relevant to a FATA investigation because it is contrary to the statute and without support in the record.
  2. The circuit court erred in setting aside the CIDs based on the ground that the Attorney General’s “reason to believe” had to be stated on the face of the CIDs because it is contrary to the statute.
  3. The circuit court erred in setting aside the CIDs based on the ground that the CIDs failed to sufficiently state the “nature of the conduct” being investigated because that is contrary to the face of the CIDs.
  4. The circuit court erred in setting aside the CIDs based on the ground that FATA does not cover requests for payments made on the Commonwealth when the Commonwealth has been a recipient of a federal grant because that is an incorrect construction of FATA and ignores that money is fungible.
  5. The circuit court erred by limiting the remaining right of inquiry based upon the errors assigned above.

Assignment of Cross-Error

  1. Whether the circuit court erred in holding the University is a “person” subject to FATA’s CID provision, where the General Assembly specifically defined the term “person” in FATA not to include Commonwealth entities.