2010 Virginia Supreme Court Decisions

Roberts v. CSX - Virginia Supreme Court - January 15, 2010

This is an FELA personal injury action.  The plaintiff prevailed in a two day jury trial, but only received a verdict of $14,000.  The plaintiff appealed.

The only issue dealt with by the Supreme Court was the voir dire.  The Court asked whether any person on the panel was a stockholder of CSX. One juror said that he was and had been for 30 years.  The Judge then asked if that would have a bearing on whether he could be fair and impartial, to which the juror answered no.  He also indicated in questioning that he never participated in shareholder meetings.  The plaintiff's lawyer asked that the juror be stricken for cause and the trial court refused.  The plaintiff's attorney later used one of his preemptive strikes to remove that juror.  After the verdict the plaintiff moved for a new trial on the grounds that the failure to strike the juror for cause was reversible error.

The Supreme Court cited numerous precedents that normally the decision to strike a juror for cause is within the sound discretion of the trial court, but noted that there is an exception for a stockholder in a corporation being sued.  More important, the Supreme Court adopted the criminal standard that the error is not cured because the plaintiff used a preemptory challenge to exclude a juror who should have been excused for cause.  A litigant is entitled to a panel free from exceptions before making his preemptory challenges.

Note that this is different from the Federal Rule in civil cases.  Since FELA is a federal statute, CSX argued that the Federal Rule applied and therefore the plaintiff was not entitled to a new trial.  The Virginia Supreme Court rejected this, noting that the choosing of jurors was a procedural matter.

Therefore, the Court reversed for a new trial.

Shapiro v. Younkin - Virginia Supreme Court - January 15, 2010

This is the appeal from a judge's dismissal of a case because the plaintiff failed to obtain the services of a court reporter.

The plaintiff filed suit in General District Court against the defendant in a case involving a landlord-tenant dispute.  The plaintiff lost and appealed.  In Virginia Beach Circuit Court, there is a local rule that requires that a court reporter be present at the trial of all civil cases.  The plaintiff, proceeding pro se (as was the defendant), did not obtain the services of a court reporter. On the day of trial, the circuit court judge, without taking any evidence, dismissed the case.  The judge also refused to certify a statement of facts that was presented to her covering the details of the case to that point.

On appeal the Virginia Supreme Court reversed.  The Court noted that there is a statute that provides, "the failure to secure the services of a reporter...shall not affect the proceedings at trial."  § 17.1-128 of the Virginia Code.  The Supreme Court also noted Rule 5:11, which authorizes the use of a statement of facts in lieu of an appeal.

However, there is a strong recommendation to use a court reporter whenever possible.

Sales v.  Kecoughtan - Virginia Supreme Court - February 25, 2010

This is a landlord-tenant case.  After renting an apartment for some time, the plaintiff noted the growth of mold and informed the landlord, who sent the representative of the management company to fix the problem.  The plaintiff alleged that the management company failed to fix the problem and negligently painted over it, and then fraudulently told him that the problem had been fixed and the apartment was safe for habitation.  Relying on these statements, the plaintiff continued to reside in the apartment and incurred a mold growth on his eye and the destruction of much of the personal property in the apartment.  The plaintiff filed suit alleging defective repair, actual fraud and constructive fraud.  After motions and argument on demurrer, the trial judge sustained the demurrers and dismissed the case.

The Virginia Supreme Court reversed.  The defendant had successfully argued to the trial court that if the original defect is still present after the repairs, then the landlord has not changed the condition by its negligence and therefore the action should be dismissed.  The argument was that the negligent repairs must change the condition for it to be actionable.  The Virginia Supreme Court disagreed, citing a case where the landlord had removed some rotten boards, but failed to remove them all in the course of repair.

On the actual and constructive fraud claims, the trial court ruled that the pleadings were sufficient to show that the landlord and the management company knew of the problem.  The defense argued that the statements that the apartment was safe for habitation was opinion only and not actionable. The Virginia Supreme Court disagreed.

Rascher v. Friend - Virginia Supreme Court - February 25, 2010

This is an automobile/bicycle accident where the trial judge struck the plaintiff's evidence on the grounds of contributory negligence as a matter of law.  The plaintiff appealed.

The plaintiff was riding his bicycle on a two lane residential road approaching an intersection.  The speed limit on the road was 25 mph and visibility was clear.  As he was about 50 feet away from the intersection, he looked to his left and saw the defendant in a minivan traveling in the opposite direction stopped in the road, but apparently getting ready to make a left turn.  The plaintiff looked at the defendant and was confident that the defendant could see him. Then he looked down at his speedometer to check his speed, which was 19 miles an hour, and when he looked up again the defendant had turned in front of him and the plaintiff struck the van.  The trial judge admitted that the defendant was negligent but, after the evidence was submitted, ruled as a matter of law that the plaintiff was guilty of contributory negligence for failing to keep a proper lookout which was a proximate cause of the accident. The trial judge granted the motion to strike.

The Virginia Supreme Court reversed, holding that both the negligence of the plaintiff and proximate cause were jury questions.  The Court lectured the trial judge on preventing these kinds of cases from going to the jury because then the Virginia Supreme Court can end the case on appeal rather than sending it back for a new trial.  The Court noted, among other things, that the plaintiff would forfeit his right of way if he were speeding and therefore had a duty to check his speed from time to time.

Hollingsworth v. Norfolk Southern - Virginia Supreme Court - February 25, 2010

The plaintiff in this case was allegedly injured while working for Norfolk Southern and brought a FELA case.  The allegation was that he had walked on large ballast stones for years as part of his job with Norfolk Southern and his feet had become injured as a result.  The plaintiff had two podiatrists who were prepared to testify that walking on the job in this manner caused the injury.  Norfolk Southern objected to their testimony and argued that only a licensed medical doctor can render an opinion as to the cause of a human physical injury.  The trial court agreed, and since the plaintiff had no other causation testimony, the trial judge struck the evidence.  The plaintiff appealed.

The Virginia Supreme Court affirmed its rule that only a licensed medical doctor may render an opinion as to the cause of a human physical injury.  The podiatrists could have testified as to the treatment but not as to the cause.  Note that there is a statutory exception for chiropractors so they can testify as to the cause of a human physical injury and that a bill to change the rule for podiatrists was pending in the General Assembly.

Antisdel v. Ashby - Virginia Supreme Court - January 15, 2010

The question here was whether the duly appointed administrator of an estate appointed solely for the purpose of bringing a wrongful death action lacked standing to assert survival claims on behalf of the estate.

The plaintiff's decedent apparently committed suicide.  The mother sought appointment as the administrator of the estate and was granted such to perform the duties of an administrator under Virginia Code § 8.01-50.  An order was entered by the clerk of the circuit court appointing her administrator solely for the purposes established under § 8.01-50.  Under this authority the administrator alleged both wrongful death and survival claims for injuries during the life of the decedent against both doctors and drug companies.  This case was nonsuited and refiled, and a second nonsuit was taken.  A third action was filed in which the administrator alleged only survival claims relating to side effects from medications that he was taking.  The defense filed pleas in bar stating that the administrator lacked authority to bring survival claims, noting that she had been appointed with only the powers granted under § 8.01-50, the wrongful death statute.  The Circuit Court agreed with the defense and dismissed the case with prejudice, refusing to amend the appointment order nunc pro tunc.

On appeal the Virginia Supreme Court affirmed the trial court.  The statute, § 64.1-75.1, authorizes the clerk to appoint an administrator to bring an action for "personal injury or wrongful death."  Normally a personal representative must file an inventory, but there is an exception for one who brings an action only under § 8.01-50, the wrongful death statue.  Thus, the court concludes that one may ask to be appointed as administrator solely for the wrongful death statute or solely for the personal injury survival action or both.  In this case, the mother requested to be appointed for the purposes of the wrongful death statute only, so she did not receive the authority to file a survival action.  The Supreme Court agreed with the trial judge that "correcting" the order nunc pro tunc was not proper. That procedure is used to correct mistakes and there was not mistake here.  The mother got exactly the authority she requested.

As an aside, the Supreme Court noted that the fact that a defense was not raised in an action which was nonsuited does not prevent that defense from being raised in a newly brought action.

Weatherbee v. Virginia State Bar - Virginia Supreme Court - February 25, 2010

This case involves suing the wrong person in a medical malpractice action.

The plaintiff was allegedly injured by the professional negligence of medical providers at Warren Memorial Hospital in Warren County, Virginia.  A surgical procedure was performed on her at the hospital.  The lead surgeon and others were properly sued.  However, a Dr. Vaughn was also sued.  Dr. Vaughn did not participate at all in the care of the patient and, at the time of the alleged incident, did not even have privileges at the hospital.  The reason for naming him is that a "Bob Vaughn" appeared in the medical records as one assisting the primary surgeon.  The hospital refused to identify this person to the plaintiff's lawyer.  A search of the Virginia Board of Medicine revealed some 15 doctors with the last name Vaughn.  Three specialized in ob-gyn, the type of surgery being performed, and two of the three were women who were practicing out of state.  The third had an office within easy traveling distance of the hospital.  The plaintiff's lawyer assumed that this must be the correct doctor and named him in the suit.

As a result, the doctor did suffer humiliation and embarrassment.  This being a small town, the suit was mentioned by the local disc jockey once an hour all day.  It was also mentioned on the local television station.  The doctor claimed that he lost patients as a result.

The plaintiff's lawyer never requested medical records from Dr. Vaughn to see if he was the right doctor nor asked if he had ever treated the plaintiff.  There were other unmentioned simple steps that the Court said the plaintiff should have taken to ensure Dr. Vaughn was the correct defendant.  Therefore, the Virginia Supreme Court affirmed the finding of a three judge court that the plaintiff's lawyer had brought a claim without a basis for doing so. The Court affirmed the public reprimand without terms.

Idoux v. Estate of Helou - Virginia Supreme Court - April 15, 2010

The plaintiff filed a warrant in debt pro se against a defendant in an automobile accident case.  Unknown to the plaintiff, the defendant died from unrelated causes before the warrant in debt was filed.  The defendant's wife qualified as administrator of the estate.  After the warrant in debt was filed but before the statute of limitations ran the trial court dismissed the case, without prejudice, because the plaintiff had filed suit against a deceased person.  This action was not appealed.

Two weeks before the statute of limitations ran the plaintiff refiled the action, this time against the "Estate of Helou."  This was served on the personal representative several weeks after the statute of limitations ran.  The estate filed a plea in bar asserting that an estate cannot be a proper party to such an action, but rather that the personal representative must be named. The estate further alleged that the statute of limitations had expired so the complaint could not be amended to change the name, so the case must be dismissed.  The trial court agreed, and the plaintiff appealed.

The Virginia Supreme Court affirmed.  A filing against an estate is a nullity: the personal representative is the proper party.  Therefore, a filing against an estate does not toll the statute.  There are exceptions, such as when the personal representative is legally unable to receive process when service is attempted, but that exception does not apply here.  The personal representative could have received process here anytime before the statute ran.  Furthermore, the statute authorizing an action when a person dies before the commencement of an action and giving an additional year after the qualification also requires that the action be brought against the personal representative.

In short you cannot bring an action against an estate which tolls the statute of limitations except in strange circumstances.  File against the personal representative.

Johnson v. Hart - Virginia Supreme Court - April 15, 2010

The plaintiff was executor of her mother's estate.  As executor she employed the defendant attorney to work for the estate.  She alleged that the defendant attorney committed acts of legal malpractice forcing her to be removed as the executor and that she suffered significant financial loss as a result.  Another person was appointed to fill her role as executor and the estate was eventually closed.  The plaintiff was the sole beneficiary of the estate at the time it was closed.  She filed suit in her own name against the defendant attorney alleging legal malpractice in the work done for the estate.  The attorney first demurrered and then filed a motion for summary judgment asserting that the plaintiff could not bring suit because the defendant attorney had a contract with the estate, not the individual, so a suit brought by the individual was not proper even though the plaintiff was the sole beneficiary of the estate.  The trial court granted the motion and the plaintiff appealed.

The Virginia Supreme Court affirmed.  Even though the plaintiff was the sole beneficiary, the attorney-client relationship was with the estate and the plaintiff could not bring suit in her own name for damage done to the estate.  The plaintiff asserted that a statute, § 8.01-13, allows the beneficial owner to bring any suit the original contracting party might have brought.  However, the Virginia Supreme court ruled that legal malpractice actions are not assignable in Virginia and therefore the plaintiff could not be assigned the right to bring suit.

In passing the Court held that "seen and consented to" when signed below an order only consents to the final result and does not consent to any rulings made in support of that order.

Kimble v. Carey - Virginia Supreme Court - April 15, 2010

This is a rescue doctrine case.  The defendant was allegedly driving while heavily intoxicated on I-64 westbound when he struck another vehicle in the rear and was trapped in his car when it caught on fire.  The plaintiff, traveling in the opposite direction, stopped her car on the other side of the highway and was crossing the dark highway when she was struck by a third person in the middle of the eastbound lanes.  For the purposes of this case, the negligence of the defendant was admitted.  The plaintiff sought to amend her complaint to allege that the defendant was guilty of willful and wanton negligence and asked for punitive damages.  The trial judge denied the motion to amend.  The trial judge also held that the plaintiff was guilty of contributory negligence which rose to the "rash and reckless" standard by attempting to cross I-64 at night at a point where it was unlit.

The Virginia Supreme Court reversed.  However, it stated that the trial judge was correct to rule that the plaintiff could not amend her pleading.  In a rescue doctrine case, once the negligence of the defendant has been admitted, the degree of negligence does not matter.  The plaintiff's negligence is not compared to the defendant's in any way.  Once it is established that the defendant was negligent, the defense must prove the plaintiff acted "rashly or recklessly" in order to defeat the case.  Whether the defendant was drunk or not is immaterial.  Here, however, reasonable jurors could disagree as to whether the plaintiff's conduct was rash or reckless in crossing an interstate highway at night.  The Court reversed and remanded for a jury trial.

City of Alexandria v. J-W Enterprises - Virginia Supreme Court - April 15, 2010

The plaintiff here is the City of Alexandria.  The City employed Carl Stowe as a police officer for many years.  At the time in question Stowe was working off-duty at IHOP.  This was not only with the consent of the City, but under regulations and requirements set by the City.  He was required to be in full uniform while on this duty.  While he was at the IHOP he was informed that several persons who had just eaten a meal were leaving without paying.  When Stowe attempted to stop them they fled .  Stowe, believing that a misdemeanor had been committed in his presence, followed them across the parking lot.  When the patrons attempted to flee in a car he stationed himself at the exit.  He felt that the patrons were attempting to run him down with the car and so he fired to stop them and killed one of the passenger patrons.  The City paid $1,100,000 to settle the patron's case and the City sought contribution from IHOP claiming that Stowe was employed by IHOP at that time and therefore IHOP was vicariously liable and should pay half the settlement.  The trial judge, in a bench trial, ruled against the City on several grounds.

The Virginia Supreme Court sustained the verdict on essentially one ground without discussing the others.  This was whether, under the facts, Stowe was solely operating as a police officer at the time of the shooting or was also acting as an employee of IHOP.  The Court affirmed the trial judge's opinion that Stowe was acting solely in his capacity as a police officer attempting to apprehend people who had committed a misdemeanor in his presence.

Hawthorne v. Vanmarter - Guthrie v. Vanmarter - Virginia Supreme Court - April 15, 2010

These are two companion cases.  The evidence showed that a police officer driving down a 25 mph road saw a car traveling in the opposite direction at a speed measured by radar at 63 miles an hour and did a quick u-turn to pursue.  As he was traveling up the road at a high rate of speed the plaintiff's vehicle came out of a side street into his path and there was a collision resulting in the death of Hawthorne and serious injuries to Guthrie, a passenger.  The police officer was in the process of turning on his lights and siren, but they were not on at the time of impact.  After a jury trial the verdict was returned for the defendant and this appeal followed.

First, the defense moved to dismiss the Hawthorne appeal because it was filed pro se by the Administrators.  The Virginia Supreme Court dismissed the Hawthorne appeal because an Administrator does not have the power to file an appeal, or even a complaint, pro se.  The granting of the companion appeal, Guthrie, does not fix the Hawthorne appeal's defect.

Second, there was a hearing on the sovereign immunity claim of the police officer.  After hearing the evidence the trial court granted the plea.  Two weeks before the hearing the defense had given the plaintiffs the names of two witnesses.  Their depositions were taken after the hearing, and they testified that they were standing on the corner for 30 minutes prior to the accident and saw no speeding car.  The plaintiffs tried to get the judge to reopen the sovereign immunity plea on the grounds of newly discovered evidence, but the judge, according to the Virginia Supreme Court, was within his discretion to refuse to do so.  The plaintiffs knew of the witnesses at least two weeks in advance and made no mention of their existence at the plea in bar hearing nor did they ask for a jury determination of the plea in bar.

Third was a venue issue.  The plaintiffs had sued in the City of Roanoke and the trial court granted a motion to move to the County of Roanoke.   The Supreme Court first noted that the time of filing, not the date of the accident, was the key date for venue purposes.  The facts were that the defendant had lived with his girlfriend in the City but had moved out shortly before suit was filed in the County.  He still got some mail in the City, visited there from time to time, stored some furniture there, still had a key to the place, and kept some personal items there.  The address on his paychecks and his voter registration remained in the City.  He also traveled into and through the City to shop, see movies and eat at restaurants.  He also traveled through the City to get to his job for the County.  Furthermore, he was taking classes at a college in the City.  The trial court held that all of this did not constitute "substantial business activity" in the City and the Virginia Supreme Court upheld the trial court's ruling.

The fourth issue was voir dire.  All the jurors indicated that they could be fair.  However, one juror had a sister who worked for the defendant's law firm, and another had contact with police officers through church which was positive and she indicated that maybe she shouldn't sit on the jury. Others indicated that it would be difficult for her render a verdict against a police officer.  The plaintiffs made a motion to strike five of the jurors for cause.  The trial judge refused and the Virginia Supreme Court upheld the trial judge's ruling under an exercise of desertion test.  Note that individual voir dire was requested and refused by the trial judge.

The fifth issue was instructions.  The jury was instructed that the driver of an emergency vehicle may exceed the speed limit provided he is not grossly negligent.  The plaintiffs objected to this because it did not state that lights and sirens needed to be on.  However, the Virginia Supreme Court held that since another instruction covered this issue, it was not misleading.  The plaintiffs also complained that an instruction referring to the plaintiff's duty to stop and yield did not refer to the forfeiture of the right of way by a speeding vehicle.  The Virginia Supreme Court noted that this was a separate legal principle that needed to be covered in another separate instruction.  Such an instruction had in fact had been offered by the plaintiffs and refused, but error was not assigned to that refusal.

The Court affirmed for the defendant.

Moseley v. Virginia State Bar - Virginia Supreme Court - June 10, 2010

The plaintiff was a former employee of the Christian Coalition of America.  She had a contract dispute with the organization and brought suit by her attorney in Circuit Court.  The defense alleged that the plaintiff was party to a contract which contained an arbitration clause, so suit could not be brought in Circuit Court.  The lawyer for the plaintiff acknowledged that there was a contract, but indicated that neither he nor his client had a copy and did not know whether such a clause existed.  At a hearing, the plaintiff testified on cross examination that she had been given a copy of the contract and had given it to her lawyer.  Upon review of it, the contract did include an arbitration clause.  The trial judge dismissed the action and sanctioned the lawyer monetarily for filing a frivolous complaint and demanding an unnecessary hearing, and also for filing some 80 pleadings and motions in this case. The sanctioned attorney wrote in an e-mail to friends that the monetary award was "an absurd decision from a wacko judge, whom I believe was bribed," and that the judge "was caught engaging in serious misconduct" that was under investigation by the JIRK Commission.  The Christian Coalition of America's attorneys sent the issue to the Virginia State Bar which ultimately submitted the issue to a three judge court.  The panel suspended the attorney's license for six months, and the decision was affirmed on appeal by the Virginia Supreme Court.  You can't criticize a judge with reckless and false language.

Evans v. Evans - Virginia Supreme Court - June 10, 2010

The plaintiff in this case is a 4 year old girl who was riding with her father in a pickup truck.  She was in a portable foam seat placed on the floorboard of the truck.  The father had a serious accident and the girl was severely injured.  Suit was filed against the father for negligence in placing his child in the floorboard of the truck.  Note that the statute requiring a child of that age to be placed in a car seat was not mentioned in the plaintiff's pleadings, as this was a suit based on common law negligence only.   On demurrer, the trial court noted that the statute requiring a car seat contained the phrase, "a violation of this section shall not constitute negligence," and the court dismissed the case.  Therefore the appeal went up on the law only.

The Virginia Supreme Court reversed and held that the statute was in derogation of the common law, that such statutes will not be construed to eliminate common law actions unless it was plain that the statute so intended, and that this statute did not clearly do so.  The prohibition only applied to violations of the statute itself and not the activity.  At trial, the statute cannot be mentioned, but the jury will have the right to judge whether this was common law negligence or not.

There was a dissent by Justice Kinser saying the legislature must have meant to eliminate the common law claim when it last amended the statute or its language was surplusage and unnecessary.

Walton v. Mid-Atlantic Spine Specialists - Virginia Supreme Court - June 10, 2010

This is an important case concerning the waiver of the attorney-client privilege by inadvertent disclosure during discovery.

The plaintiff sued Dr. Jeffrey Moore, an orthopedic, for failure to properly treat a wrist injury.  The doctor took two x-rays, a week apart.  After reviewing the second x-ray he made a note in the chart that "the alignment looks good."  Three years after a lawsuit against him was filed he reviewed the chart and wrote a letter to the medical malpractice attorney representing him.  In that letter he said that he may have been looking at the first x-ray when he thought he was looking at the second. In any case, the second x-ray did not show "good" alignment.  The doctor's file copy of that letter was kept in an unlabeled binder in the doctor's office separate from but near the medical records.  When the medical records were subpoenaed by the workers compensation carrier, Mid-Atlantic Orthopedic hired Smart Copy to copy the records and respond to the subpoena.  In doing this work, Smart Copy somehow obtained a copy of the privileged letter to the attorney and sent it along with the medical records.  Although a serious investigation was done after the fact, no one could find out how Smart Copy actually found and produced this letter.  Plaintiff's counsel obtained a copy of this privileged letter sometime later from the workers compensation file.  In answers to interrogatories, plaintiff's counsel divulged that they had a copy of this letter.  A year later the plaintiff's attorney informed the defense that they were going to use the letter at trial.  A month later, the defense moved for suppression of the letter as attorney/client privileged.  After several hearings the judge agreed with the defense and suppressed the letter.  At trial the defendant doctor testified as to his note describing the second x-ray as "good." Due to the Judge's ruling, he could not be cross examined in front of the jury about his thought that he may have looked at the wrong x-ray or misread the x-ray in writing his chart note.  The verdict was for the defense and the case was appealed.

The Virginia Supreme Court reversed.  It noted that there are two categories when privileged documents are inappropriately produced.  One is involuntary production.  This usually means theft or other nefarious activity.  There was no proof of that in this case.  The other category is inadvertent disclosure.  They laid out a five factor test for when an inadvertently released document still retains the privilege and cannot be used against the party producing the record.  The factors are:

1.      The reasonableness of the precautions taken to prevent inadvertent disclosure

2.      The time taken to rectify the error once discovered

3.      The scope of discovery (i.e. voluminous discovery will be treated differently than one or two pieces of paper)

4.      The extent of the disclosure, that is, how many different people have seen it

5.      Whether the party asserting the claim is using that claim to mislead the fact finder

Having considered all the factors the Virginia Supreme Court reversed and held that the privilege had been waived in this case and the plaintiffs should have been allowed to use the letter against the doctor.

Wintergreen Partners v. McGuire Woods, LLP - Virginia Supreme Court - September 16, 2010

This is the famous legal malpractice case against McGuire Woods for failing to timely file a transcript in the appellate court.

The plaintiff in the case below was skiing at Wintergreen on Eagles Swoop slope when she collided with a snow groomer operated by two of Wintergreen's employees and was very seriously injured.  She sued both the employees individually and Wintergreen, their employer.  The jury returned a verdict of $8,300,000 at trial, and Wintergreen sought to appeal.  Responsibility for the appeal was transferred from the trial counsel to McGuire Woods, and in the confusion, the transcript was not timely filed.  As a result, the Virginia Supreme Court dismissed the appeal and Wintergreen filed this legal malpractice action against McGuire Woods.

The Virginia Supreme Court noted that in order to win under these circumstances Wintergreen had to prove that had the transcript been properly filed and the appeal taken that the trial verdict would have been reversed as a matter of law.

Note that there were three defendants in this case, each of the two operator employees of the snow groomer and Wintergreen.  At trial, the Judge instructed the jury on general negligence principles and also on general premises liability principles.  In particular, the Judge instructed the jury that Wintergreen, as an occupant of land, had certain duties towards invitees, including the duty to have the premises in a reasonably safe condition and to warn of any unsafe conditions.  The verdict form allowed the jury to find for or against each of the three defendants individually.  The jury was instructed on respondeat superior.  These instructions and the verdict form were given without objection and therefore become the law of the case.

The jury verdict exonerated the two individuals but found against Wintergreen.  Wintergreen's appeal was based on the legal principle that the employer cannot be liable under respondeat superior unless the employees were found liable.  However, the Virginia Supreme Court found that under these instructions Wintergreen had separate duties to manage the property and to warn of dangerous conditions. Under the instructions that were given, it was possible for the jury to find Wintergreen liable without the employees being found liable.  Accordingly, the verdict would not have been reversed, and thus Wintergreen loses the legal malpractice suit.

Aguilera v. Christian - Virginia Supreme Court - September 16, 2010

The plaintiff in this case was an individual who filed a complaint against the defendant pro se.  However, the plaintiff did not personally sign the complaint, but had a friend who is an attorney (who is licensed in D.C. but not Virginia) sign it for him with his permission and at his instruction.

The defendant objected and a hearing was held on the issue of whether the signature was valid.  The trial court ruled that the statute, § 8.02-271.1, requires that a pleading be signed either by an attorney licensed in Virginia or the pro se party himself. No other signatures are valid.  The Virginia Supreme Court agreed, specifically disagreeing with the argument of plaintiff's counsel that a signature that was placed on the complaint with plaintiff's permission was valid, despite the fact that the plaintiff himself did not actually sign the pleading.

In short where the statute requires that a licensed attorney or a pro se party sign a pleading, those are the only persons authorized to do so.  The signature of any other person, even with permission and at the direction of one of those persons, is not valid.

Shipe v. Hunter- Virginia Supreme Court - September 16, 2010

This is another case on the validity of a signature on a pleading signed by one person on behalf of another.  The plaintiff here was represented by counsel and a complaint was filed on behalf of the plaintiff.  The line for signatures contained the printed name of counsel licensed in Virginia and a signature under it.  However evidence later showed that the actual handwriting of the signature was by another person authorized to sign on behalf of the Virginia lawyer.  This authorized person was a lawyer, but not licensed in Virginia. He initialed the handwritten signature and also signed his own name.  The Circuit Court held that this did not comply with the statute and dismissed the complaint as a nullity.  Note that the statute had run.

The Virginia lawyer appealed, noting that he had specifically given permission for the out-of-state lawyer to sign his name.  Citing the Restatement of Contracts, he argued that under contract law the signature was clearly valid, as the signor had been made the agent of the Virginia lawyer for that purpose.

The Virginia Supreme Court disagreed.  The Court noted that when lawyers attach their names to pleadings, they are certifying that the pleading is well grounded in fact and law.  The Court essentially requires that every pleading be signed, in handwriting (note some electronic and appeals exceptions which, in their mind, prove the rule), by a lawyer licensed to practice in Virginia.  That lawyer may not designate someone else to sign for him.

The rule is that "...a lawyer who files a pleading in a Virginia tribunal must append his personal, handwritten signature on the pleading."

Van Dam v. Gay - Virginia Supreme Court - September 16, 2010

This is a legal malpractice action that discusses when the statute of limitations begins to run.

The plaintiff was married to a man who participated in two federal retirement plans.  They were divorced in 1986 and the plaintiff hired an attorney to assist her in this process.  As part of the property settlement it was agreed that the plaintiff wife would receive survivor's benefits from the ex-husband's retirement pay.  However, when the ex-husband died in 2006, 20 years after the divorce decree and property settlement, it was discovered that the papers had not been drawn properly and the plaintiff wife in fact would receive nothing in the way of survivor's benefits.  She sued the lawyer who assisted her for legal malpractice.  The defendant lawyer pled the statute of limitations.  The Circuit Court upheld the defense and the plaintiff wife appealed.

The plaintiff wife tried to argue that she suffered no damage until her ex-husband died and therefore the right of action did not accrue until his death.  The Virginia Supreme Court noted that the statute says that the statute begins to run when the breach of contract occurs, not when the damage is discovered.  This is true even though the plaintiff was not able to quantify her damages with precision until the ex-husband died.  Basically the Court is saying that it will not adopt a discovery rule. When the property settlement agreement was entered by the court the right of action accrued and the statute began to run.  Judgment affirmed.

Jamerson v. Coleman-Adams Construction - Virginia Supreme Court - September 16, 2010

This is a statute of limitations question involving the statute of repose for building materials.

A fire station was constructed in 1997-8.  The original plans called for only a circular staircase from the upper living quarters.  A change order calling for a fire pole was requested and granted.  This pole, and the surrounding platform, was supplied by Virginia Steel.  It was installed in late 1998 during construction.

In 2006, the plaintiff, a volunteer firefighter, was standing on the platform when it collapsed, causing him to fall some 20 feet onto a concrete floor below.  He suffered serious injuries.  Suit was filed against Virginia Steel as well as the construction company, both of which filed pleas in bar asserting that the platform and pole were "ordinary building materials" and were thus subject to the five year statute of repose.

The statute of repose is a five year statute that prohibits suits against persons designing, planning, supervising construction or constructing any improvement to real property based on defects or unsafe conditions.  The statute was amended to exclude manufacturers or suppliers of "machinery or equipment," which the legislature did not define.  The Virginia Supreme Court's jurisprudence has developed such that suppliers of "ordinary building materials" fall under the statute of repose while suppliers of machinery and equipment do not.  After some discussion, the Court decided that the fire pole and platform constitute ordinary building materials and thus the statute of repose applies.  There was a concurring opinion which commented that this distinction has become too complicated to reasonably apply.

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Fax : (804) 836-1189
37.65165 -77.615287
Tel : (540) 657-9222
Fax : (540) 657-9522
38.476396 -77.421376
Tel : (804) 745-1200
Fax : (804) 745-8997
37.410489 -77.648702
Tel : (434) 295-4961
Fax : (434) 284-4299
38.087828 -78.471035
]]