Home -> Law Blog Directory -> Local Law Blogs Blogs -> Southwest Virginia Law Blog

Local Law Blogs

: Southwest Virginia Law Blog

Quotes from the latest round of Virginia Supreme Court opinions

By Steve

"There is good reason for the rule that appellate courts must defer to the factual findings of the trial judge in Fourth Amendment cases. The fact patterns in such cases arrive in infinite variety, seldom or never exactly duplicated. Moreover, they involve consideration of nuances such as tone of voice, facial expression, gestures and body language seldom discernable from a printed record. The controlling inquiry is the effect of such matters on a reasonable person in the light of all the surrounding circumstances." Russell, S.J., in Malbrough v. Com.

"[T]he law in effect when a contract is made becomes a part of the contract as though incorporated therein." Kinser, J., in Wright v. Com.

"[T]he plaintiff's allegations that she was injured after she was placed in a defective chair, if proven at trial, would be sufficient to establish a prima facie case of medical negligence against the defendant without the necessity of expert testimony." Hassell, C.J., in Coston v. Bio-Medical Applications of Virginia, Inc.

"We adhere to the view that the public policy of Virginia favors arbitration. TM Delmarva Power, L.L.C. v. NCP of Va., L.L.C., 263 Va. 116, 122-23, 557 S.E.2d 199, 202 (2002). Nevertheless, that policy does not impair the constitutional right of a party to have access to the courts, including the right to a jury trial if requested, unless that party has, by contract, voluntarily waived those rights." Russell, S.J., in Mission Residential, LLC v. Triple Net Properties, LLC.

"Failure to object to the use of the deposition is sufficient to establish acquiescence. Accordingly, based upon the record before us, the trial court did not err in using deposition evidence in the resolution of the motion in limine and subsequent motion for summary judgment." Lemons, J., in Lloyd v. Kime.

"A gift has been defined as a contract without a consideration." Russell, S.J., in Ott v. L&J Holdings.

"Because Rule 1:8 requires leave of court to amend any pleading after it is filed, we conclude that the circuit court did not err by holding that an amended complaint is not deemed filed, and is thus without legal efficacy, until a trial court grants leave to amend." Kinser, J., in Ahari v. Morrison.

"It is immaterial whether the assailant's subjective motivation is playful, amorous, vindictive, or hostile. An injury resulting from an assault arises out of the injured person's employment when it is directed at the victim as an employee. Russell, S.J., in Hilton v. Martin (reversing Judge Moore in a Russell County case).

"In summary, we have determined that: (1) the circuit court had jurisdiction to determine what interest was due to the Joint Venture under the court's June 27, 2005 judgment pursuant to UOSA's motion for satisfaction of that judgment; (2) the circuit court did not err in determining that interest was to accrue on the compensatory damages awarded in the First Trial between November 6, 2003 and June 27, 2005, but it erred in setting the rate of that interest at 9% per year, rather than the rate of 1% per month provided for in the jury's verdict; (3) the circuit court erred in determining that post-judgment interest was to accrue on the pre-judgment interest awarded in the First Trial and the Second Trial; (4) the circuit court erred in determining that UOSA made a timely allocation of the May 8, 2006 payment on the judgment debt; and, (5) the circuit court did not err in denying UOSA's motion for satisfaction of the judgment. Koontz, J., in Upper Occoquan Sewage Authority v. Blake Const. Co., Inc. (applying Leasing Service Corp. v. Justice, 243 Va. 441, 416 S.E.2d 439 (1992), one of my favorites).

"Because the term 'a person' means any individual human being, the term encompasses the entire universe of people, including the defendant. There is no authority for excluding the defendant from that universe. If the legislature had intended to exclude the defendant from the class of persons whose endangerment is prohibited by Code § 46.2-817(B), the legislature would have said so." Goodwyn, J., in Phelps v. Com.

"We reject DVCA's argument that the plain language of the definition of 'declaration' includes instruments such as articles of incorporation and bylaws if such documents are filed in the appropriate land records and create either certain assessment authority or maintenance duties for the property owners' association. Such a literal application of the phrase 'any instrument' in the definition of 'declaration' is inconsistent with the concept of 'declaration' used in other provisions of the POAA." Lacy, S.J., in Dogwood Valley Citizens Ass'n, Inc. v. Shifflett (causing me to recollect Justice Breyer's comment that "any entity" does not mean "any fish").

"While the term 'abandonment' is similarly defined for purposes of domestic relations and elective share matters, there are significant differences in the analysis of the evidence when resolving the issue in the domestic relations and elective share contexts." Lacy, S.J., in Purce v. Patterson.

"In light of the presumption established in Code § 23-7.4(B) that an out-of-state student be required to demonstrate by clear and convincing evidence that he entered the Commonwealth for a primary purpose other than an educational purpose, we hold that the circuit court was plainly wrong in finding that the decision made by GMU was arbitrary, capricious, or otherwise contrary to law." Koontz, J., in George Mason University v. Floyd (reversing Judge Ney of Fairfax County).

"While Code § 55-59.1(A) does allow a proper notice of foreclosure sale to exercise an accrued right of acceleration, Bayview failed to fulfill the contractual condition precedent that would have given it such a right." Agee, J., in Bayview Loan Servicing, LLC v. Simmons.

"In the absence of a reasonable effort to market his residual work capacity, Favinger is not entitled to temporary partial disability benefits for his alleged loss of overtime earnings." Kinser, J., in Ford Motor Co. v. Favinger.

Full post as published by Southwest Virginia Law Blog on January 13, 2008 (boomark / email).