It says here:
"A warming global ocean — influencing the winds that shear off the tops of developing storms — could mean fewer Atlantic hurricanes striking the United States according to new findings by NOAA climate scientists."
Thursday, January 24, 2008
Wednesday, January 23, 2008
Rhythm and Roots 2008 - Doc Watson and Ralph Stanley
The word is out that the 2008 Rhythm and Roots Reunion in downtown Bristol will feature both Doc Watson and Ralph Stanley.
On John Cook
It says here that John Cook of the Caskie and Frost firm in Lynchburg is up for a circuit court judgeship, and he has been rated well qualified by his local bar.
He can tell others that I am 100% for him or against him, whichever will do him the most good.
He can tell others that I am 100% for him or against him, whichever will do him the most good.
Dismissal in section 1983 case upheld on grounds of lack of state action
In German v. Fox, the Fourth Circuit in a per curiam opinion for the panel of Judges Motz and Duncan and District Judge Brinkema affirmed the dismissal of a section 1983 claim related to the plaintiff's dismissal from employment with a private, non-profit organization. Judge Conrad of the W.D. Va. had held that the plaintiff had failed to state a First Amendment claim, but the panel decided the complaint failed to plead state action.
Even though I mostly litigate these cases on the government side, this seems like an odd decision on a Rule 12(b)(6) motion, how much are you supposed to say about state action? I guess the real problem was that he pleaded too many facts, which happens sometimes - pleading unnecessary details leads to dismissal when those details show you cannot have a claim.
Even though I mostly litigate these cases on the government side, this seems like an odd decision on a Rule 12(b)(6) motion, how much are you supposed to say about state action? I guess the real problem was that he pleaded too many facts, which happens sometimes - pleading unnecessary details leads to dismissal when those details show you cannot have a claim.
I'm Spartacus! No, I'm Spartacus!
In Horace Mann Ins. Co. v. General Star Nat'l Ins. Co., the Fourth Circuit in an opinion by Judge Traxler, joined by Judges Niemeyer and District Judge Wilson of the W.D. Va., decided the competing claims of two insurers to the exalted position of the "excess" carrier, and reversed the decision of the District Court (the N.D. W.Va.), in a rare published opinion dealing with purely state law issues that includes a discussion of "the nature and operation of primary and excess liability insurance policies."
Funky place where we ate in Williamsburg
One place where we ate in Williamsburg last weekend was the Opus 9 Steakhouse - the two of us ate for $125, so it was not Shoney's. The place is in New Town.
Tuesday, January 22, 2008
What I remember seeing in Nice and Monaco
There was some effort made to influence my decision regarding the purchase of some lavender in Nice, and just outside that same market, I did see some substantial crookedness - on display alongside the main road by the beach, in broad daylight. In Monte Carlo, we saw the courthouse - with "LEX" over the front door - but no judges, and it seemed a far less impressive building than the casino.
Post No. 7,000
In the category of "Now it can be told"
The Chicago Tribune has this story of two public defenders who kept the secret of their client's murder confession, until his recent death.
Closer to home, a Virginia lawyer who represented a co-defendant in the Daryl Atkins case came forward with information that created doubt about his client's confession and led the circuit court to change Atkins' sentence to life in prison, as described here in the New York Times and here in the Washington Post. A timeline of the case is here.
Back in West Virginia, the justice who dined with Don Blankenship in the Riviera decided to recuse himself, after all, as described here in the New York Times.
The Chicago Tribune has this story of two public defenders who kept the secret of their client's murder confession, until his recent death.
Closer to home, a Virginia lawyer who represented a co-defendant in the Daryl Atkins case came forward with information that created doubt about his client's confession and led the circuit court to change Atkins' sentence to life in prison, as described here in the New York Times and here in the Washington Post. A timeline of the case is here.
Back in West Virginia, the justice who dined with Don Blankenship in the Riviera decided to recuse himself, after all, as described here in the New York Times.
Interesting stuff
The New York Times has the photos of West Virginia Supreme Court Chief Justice Maynard, hanging out with Don Blankenship in Monte Carlo, while the appeal of the $50 million verdict in favor of Harman Mining and against Blankenship's company was unresolved. (For the record, when I was in Nice and Monaco in 2007, I didn't see any judges I knew there.)
The Norfolk paper reports here that just because Judge Payne of the E.D. Va. called former Virginia lawyer Thomas E. Smolka "an embarrassment to the legal profession," that was no reason to overturn his federal convictions, according to a recent Fourth Circuit opinion.
Here is the story of the guy who after his conviction was overturned, wrote a letter telling more about his wrongdoing to the Commonwealth's attorney in Prince William County, who used it on the re-trial to get him a death sentence.
This article from Inside HigherEd says the University of North Carolina paid $385,000 to settle the sexual harassment case against their famous women's soccer coach. The settlement included a letter of apology from the coach. The Fourth Circuit's en banc opinion in the case is here.
Here's a wacky article on the City of Charlottesville's opposition to the coal power plant being built in Wise County. It says - there is no good power, we want the cold and the dark. I understood the 2007 Virginia Energy Plan to say that even with massive and expensive conservation efforts, Virginia's energy consumption will continue to increase.
The Norfolk paper reports here that just because Judge Payne of the E.D. Va. called former Virginia lawyer Thomas E. Smolka "an embarrassment to the legal profession," that was no reason to overturn his federal convictions, according to a recent Fourth Circuit opinion.
Here is the story of the guy who after his conviction was overturned, wrote a letter telling more about his wrongdoing to the Commonwealth's attorney in Prince William County, who used it on the re-trial to get him a death sentence.
This article from Inside HigherEd says the University of North Carolina paid $385,000 to settle the sexual harassment case against their famous women's soccer coach. The settlement included a letter of apology from the coach. The Fourth Circuit's en banc opinion in the case is here.
Here's a wacky article on the City of Charlottesville's opposition to the coal power plant being built in Wise County. It says - there is no good power, we want the cold and the dark. I understood the 2007 Virginia Energy Plan to say that even with massive and expensive conservation efforts, Virginia's energy consumption will continue to increase.
J&DR judges
The House of Delegates has named some juvenile and domestic relations district court judges, including:
The Honorable Florence A. Powell, of Washington, as a judge of the Twenty-eighth Judicial District for a term of six years commencing February 1, 2008.
The Honorable John M. Farmer, of Dickenson, as a judge of the Twenty-ninth Judicial District for a term of six years commencing April 1, 2008.
The Honorable Jeffrey S. Hamilton, of Scott, as a judge of the Thirtieth Judicial District for a term of six years commencing February 1, 2008.
Judge Hamilton, I suppose, fills the seat left vacant by former Judge Shull. Judge Powell was a circuit court pick, confirmed for the first time by the legislature. Judge Farmer was left out of the Senate bill.
The bills adding judgeships to the 30th Circuit and the 28th and 29th districts are continuing, although Senator Wampler on the Finance Committee voted against both, as shown here and here.
The Honorable Florence A. Powell, of Washington, as a judge of the Twenty-eighth Judicial District for a term of six years commencing February 1, 2008.
The Honorable John M. Farmer, of Dickenson, as a judge of the Twenty-ninth Judicial District for a term of six years commencing April 1, 2008.
The Honorable Jeffrey S. Hamilton, of Scott, as a judge of the Thirtieth Judicial District for a term of six years commencing February 1, 2008.
Judge Hamilton, I suppose, fills the seat left vacant by former Judge Shull. Judge Powell was a circuit court pick, confirmed for the first time by the legislature. Judge Farmer was left out of the Senate bill.
The bills adding judgeships to the 30th Circuit and the 28th and 29th districts are continuing, although Senator Wampler on the Finance Committee voted against both, as shown here and here.
Any means any
Today in Ali v. Federal Bureau of Prisons, the Supreme Court in an opinion by Justice Thomas concluded that the exclusion to the waiver of sovereign immunity in the Federal Tort Claims Act for "claims arising from the detention of property by 'any officer of customs or excise or any other law enforcement officer'" is not limited to "law enforcement officers enforcing customs or excise laws," but includes prison officials.
So, I guess our old Missouri case is still one of the few in which "any" did not really mean "any," or at least not any fish.
So, I guess our old Missouri case is still one of the few in which "any" did not really mean "any," or at least not any fish.
Monday, January 21, 2008
What Justice Koontz said at the VBA meeting
Justice Koontz talking about brief-writing said one thing the appellee should do is to organize its brief in the same way as the appellant's brief, no matter how inane, so that the brief readers can do a side-by-side analysis of the issues, one by one.
He also said think about why the Court granted the petition (which would be great if only they would tell us).
He said shorter briefs are better and acknowledged that the Court has been changing the Rules to require shorter briefs.
He said that in a case where the Court awards an appeal, before the argument, every brief gets read by every justice.
He said all else equal, footnotes are bad.
I didn't have the nerve to cross-examine him about, well, you know.
He also said think about why the Court granted the petition (which would be great if only they would tell us).
He said shorter briefs are better and acknowledged that the Court has been changing the Rules to require shorter briefs.
He said that in a case where the Court awards an appeal, before the argument, every brief gets read by every justice.
He said all else equal, footnotes are bad.
I didn't have the nerve to cross-examine him about, well, you know.
The transcript from Virginia v. Moore
Here is the transcript from the argument before the Supreme Court in the case of Virginia v. Moore, about which I had this post earlier.
The people I talked to in Williamsburg seemed to think the argument went well for the Commonwealth, but then the ones telling me this all had a rooting interest.
My old U.Va. and William & Mary contemporary who works on staff for the Court of Appeals was supposedly there, I suppose if she had been arrested for disorderly conduct I would know how her judge's position had fared before the High Court.
The people I talked to in Williamsburg seemed to think the argument went well for the Commonwealth, but then the ones telling me this all had a rooting interest.
My old U.Va. and William & Mary contemporary who works on staff for the Court of Appeals was supposedly there, I suppose if she had been arrested for disorderly conduct I would know how her judge's position had fared before the High Court.
Boucher picks Obama
As reported here in the Kingsport paper and here in the Richmond paper elsewhere, Southwest Virginia congressman Rick Boucher has endorsed Barack Obama.
In 1998, Congressman Boucher made this statement about President Bill Clinton, which says in part: "He has diminished his personal dignity and that of the office of the presidency. He has brought the presidency into disrepute and impaired the image of the president as a role model for younger Americans.... I share the public's deep disdain for the actions of the president. And I'm truly concerned that if Congress takes no action, many troubling unanswered questions will remain with regard to the example that his conduct sets."
In 1998, Congressman Boucher made this statement about President Bill Clinton, which says in part: "He has diminished his personal dignity and that of the office of the presidency. He has brought the presidency into disrepute and impaired the image of the president as a role model for younger Americans.... I share the public's deep disdain for the actions of the president. And I'm truly concerned that if Congress takes no action, many troubling unanswered questions will remain with regard to the example that his conduct sets."
Tuesday, January 15, 2008
Sunday, January 13, 2008
More on the (Floyd) Roberts nomination
On February 7, 1939, after the U.S. Senate voted to deny confirmation to Floyd Roberts of Bristol to the second seat on the U.S. District Court for the Western District of Virginia, President Roosevelt wrote this letter to Roberts, which says in part:
"My dear Judge Roberts:
I feel that in justice to you and your family I should write to you in regard to the refusal of the Senate to confirm your appointment as United States District Judge for the Western District of Virginia.
First of all, I tender you my thanks for the honorable, efficient, and in every way praiseworthy service that you have rendered to the people of the United States in general and to the people of the Western District of Virginia in particular.
Second, I wish it known that not one single person who has opposed your confirmation has lifted his voice in any shape, manner or form against your personal integrity and ability.
In order that you may know the full history of what has occurred, I take this opportunity to summarize the story.
On March 17, 1938, I received a letter from Senator Glass enclosing a clipping from a local Virginia paper. This newspaper article, quoting an editorial in another local Virginia paper, made the assumption that it would henceforth be necessary to receive the backing of Governor Price of Virginia before any Virginian could hope for a Federal appointment.
Senator Glass in his letter asked if Federal appointments, for which Senate approval was necessary, would be subjected to the effective veto of the Governor of Virginia.
To this I replied on March 18th, explaining to the Senator the difference between the appointive power, which is in the President, and the power of confirmation, which is in the Senate. I pointed out to the Senator that time-hallowed courtesy permits Senators and others to make recommendations for nomination, and, at the same time, that every President has sought information from any other source deemed advisable.
On March 19th Senator Glass wrote me again, covering his construction of Article II of the Constitution, and asking me again as to the accuracy of the newspaper statement. He winds up by saying, 'The inference is, of course, that you approve the offensive publication which was the basis of my inquiry.'
I replied to this letter from the Senator on March 21st in a personal and friendly vein. I stated that I was glad that we seemed to agree in our construction of the Constitution. I told him that I was not in the habit of confirming or denying any newspaper article or editorial. Obviously if I were to begin that sort of thing, I would have no spare time to attend to my executive duties.
I told the Senator to go ahead as before and make recommendations; that I would give such recommendations every consideration; but that I would, of course, reserve the right to get opinions from any other person I might select. I ended by asking the Senator to forget the newspaper article and wished him a good vacation and expressed the hope that he would come to see me on his return.
. . .
The Attorney General and I held several conferences with the result that we concluded that you were best fitted to fill the Judgeship.
As a result, I wrote on July 6th to both of the Virginia Senators stating that I had concluded to appoint you, that a number of gentlemen had been suggested for the place, but that I believed you to be the best fitted.
The following day, July 7th, I received a telegram from Senator Glass stating that he and his colleague would feel obliged to object to your appointment as being personally objectionable to them, and that a letter would follow. A few days later I received a letter from the Senator stating that he could not conceive any fair reason why one of his candidates had not been appointed.
It is worth noting that neither Senator on July 7th or subsequently raised any question as to your integrity or ability, and the only objection was that you were personally objectionable.
In regard to the original newspaper article suggesting that Governor Price had been given the veto over Federal appointments, this and similar stories are, of course, not worth answering or bothering about, for the very simple reason that no person—no Governor, no Senator, no member of the Administration—has at any time had, or ever will have, any right of veto over Presidential nominations. Every person with common sense knows this.
. . .
We come now to the last chapter. Your nomination was referred to the Judiciary Committee of the Senate and by the Chairman of that Committee to a Subcommittee of three. It appears from the record that both Senators from Virginia registered their objection with the Subcommittee saying, "This nomination is utterly and personally offensive to the Virginia Senators whose suggestions were invited by the Department of Justice only to be ignored." The Subcommittee reported back the nomination to the full Committee without recommendation, stating the raising of the matter of Senatorial courtesy and saying that this matter had not been a direct issue since 1913.
At a special meeting of the full Committee on the Judiciary, and before the Committee went into executive session, attention was invited to the presence of the Governor of Virginia, to the presence of two former Governors of Virginia, and to the presence of the nominee and his Counsel.
. . .
Continuing, the senior Senator from Virginia referred to other newspaper articles which spoke of "rebukes" to the Senators. It is almost needless for me to suggest that neither you nor I pay any attention to such excuses. Finally, Senator Glass stated, "As a matter of fact, the President of the United States did give to the Governor of Virginia the veto power over nominations made by the two Virginia United States Senators." I am sorry, in view of my long personal friendship for the senior Senator, that he has made any such statement, and I can only excuse it on the ground of anger or forgetfulness.
At the end of his speech Senator Glass says, "Mr. Cummings never had the slightest idea of giving consideration to the recommendations of the two Virginia Senators because the Governor of Virginia had been promised the right of veto on nominations that they made." Neither of these statements is true.
Senator Glass was followed by Senator Byrd who stated that your nomination was personally offensive to both Senators, in fact, "personally obnoxious."
At the very close of the Judiciary Committee hearing Governor Price stated, "Senator Glass has made a charge against me. He is entirely mistaken about it." The Governor further stated that he was not involved in the newspaper story.
The Committee thereupon abruptly closed the hearing and went into executive session, with the result, as you know, that your nomination was reported adversely to the Senate.
. . .
In the particular case of which you are the unfortunate and innocent victim, the Senators from Virginia have in effect said to the President—"We have nominated to you two candidates acceptable to us; you are hereby directed to nominate one of our two candidates, and if you do not we will reject the nomination of anybody else selected by you, however fit he may be."
Perhaps, my dear Judge Roberts, the rejection of your nomination will have a good effect on the citizenship and the thinking of the whole nation in that it will tend to create a greater interest in the Constitution of our country, a greater interest in its preservation in accordance with the intention of the gentlemen who wrote it.
I am sorry, indeed, that you have been the victim. Against you not one syllable has been uttered in derogation of your character, or ability in the legal profession or your record on the Bench."
"My dear Judge Roberts:
I feel that in justice to you and your family I should write to you in regard to the refusal of the Senate to confirm your appointment as United States District Judge for the Western District of Virginia.
First of all, I tender you my thanks for the honorable, efficient, and in every way praiseworthy service that you have rendered to the people of the United States in general and to the people of the Western District of Virginia in particular.
Second, I wish it known that not one single person who has opposed your confirmation has lifted his voice in any shape, manner or form against your personal integrity and ability.
In order that you may know the full history of what has occurred, I take this opportunity to summarize the story.
On March 17, 1938, I received a letter from Senator Glass enclosing a clipping from a local Virginia paper. This newspaper article, quoting an editorial in another local Virginia paper, made the assumption that it would henceforth be necessary to receive the backing of Governor Price of Virginia before any Virginian could hope for a Federal appointment.
Senator Glass in his letter asked if Federal appointments, for which Senate approval was necessary, would be subjected to the effective veto of the Governor of Virginia.
To this I replied on March 18th, explaining to the Senator the difference between the appointive power, which is in the President, and the power of confirmation, which is in the Senate. I pointed out to the Senator that time-hallowed courtesy permits Senators and others to make recommendations for nomination, and, at the same time, that every President has sought information from any other source deemed advisable.
On March 19th Senator Glass wrote me again, covering his construction of Article II of the Constitution, and asking me again as to the accuracy of the newspaper statement. He winds up by saying, 'The inference is, of course, that you approve the offensive publication which was the basis of my inquiry.'
I replied to this letter from the Senator on March 21st in a personal and friendly vein. I stated that I was glad that we seemed to agree in our construction of the Constitution. I told him that I was not in the habit of confirming or denying any newspaper article or editorial. Obviously if I were to begin that sort of thing, I would have no spare time to attend to my executive duties.
I told the Senator to go ahead as before and make recommendations; that I would give such recommendations every consideration; but that I would, of course, reserve the right to get opinions from any other person I might select. I ended by asking the Senator to forget the newspaper article and wished him a good vacation and expressed the hope that he would come to see me on his return.
. . .
The Attorney General and I held several conferences with the result that we concluded that you were best fitted to fill the Judgeship.
As a result, I wrote on July 6th to both of the Virginia Senators stating that I had concluded to appoint you, that a number of gentlemen had been suggested for the place, but that I believed you to be the best fitted.
The following day, July 7th, I received a telegram from Senator Glass stating that he and his colleague would feel obliged to object to your appointment as being personally objectionable to them, and that a letter would follow. A few days later I received a letter from the Senator stating that he could not conceive any fair reason why one of his candidates had not been appointed.
It is worth noting that neither Senator on July 7th or subsequently raised any question as to your integrity or ability, and the only objection was that you were personally objectionable.
In regard to the original newspaper article suggesting that Governor Price had been given the veto over Federal appointments, this and similar stories are, of course, not worth answering or bothering about, for the very simple reason that no person—no Governor, no Senator, no member of the Administration—has at any time had, or ever will have, any right of veto over Presidential nominations. Every person with common sense knows this.
. . .
We come now to the last chapter. Your nomination was referred to the Judiciary Committee of the Senate and by the Chairman of that Committee to a Subcommittee of three. It appears from the record that both Senators from Virginia registered their objection with the Subcommittee saying, "This nomination is utterly and personally offensive to the Virginia Senators whose suggestions were invited by the Department of Justice only to be ignored." The Subcommittee reported back the nomination to the full Committee without recommendation, stating the raising of the matter of Senatorial courtesy and saying that this matter had not been a direct issue since 1913.
At a special meeting of the full Committee on the Judiciary, and before the Committee went into executive session, attention was invited to the presence of the Governor of Virginia, to the presence of two former Governors of Virginia, and to the presence of the nominee and his Counsel.
. . .
Continuing, the senior Senator from Virginia referred to other newspaper articles which spoke of "rebukes" to the Senators. It is almost needless for me to suggest that neither you nor I pay any attention to such excuses. Finally, Senator Glass stated, "As a matter of fact, the President of the United States did give to the Governor of Virginia the veto power over nominations made by the two Virginia United States Senators." I am sorry, in view of my long personal friendship for the senior Senator, that he has made any such statement, and I can only excuse it on the ground of anger or forgetfulness.
At the end of his speech Senator Glass says, "Mr. Cummings never had the slightest idea of giving consideration to the recommendations of the two Virginia Senators because the Governor of Virginia had been promised the right of veto on nominations that they made." Neither of these statements is true.
Senator Glass was followed by Senator Byrd who stated that your nomination was personally offensive to both Senators, in fact, "personally obnoxious."
At the very close of the Judiciary Committee hearing Governor Price stated, "Senator Glass has made a charge against me. He is entirely mistaken about it." The Governor further stated that he was not involved in the newspaper story.
The Committee thereupon abruptly closed the hearing and went into executive session, with the result, as you know, that your nomination was reported adversely to the Senate.
. . .
In the particular case of which you are the unfortunate and innocent victim, the Senators from Virginia have in effect said to the President—"We have nominated to you two candidates acceptable to us; you are hereby directed to nominate one of our two candidates, and if you do not we will reject the nomination of anybody else selected by you, however fit he may be."
Perhaps, my dear Judge Roberts, the rejection of your nomination will have a good effect on the citizenship and the thinking of the whole nation in that it will tend to create a greater interest in the Constitution of our country, a greater interest in its preservation in accordance with the intention of the gentlemen who wrote it.
I am sorry, indeed, that you have been the victim. Against you not one syllable has been uttered in derogation of your character, or ability in the legal profession or your record on the Bench."
Quotes from the latest round of Virginia Supreme Court opinions
"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.
"[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.
On the intervention of the Commonwealth in the Episcopal Church property litigation
The Washington Post reports here ("State Files to Join Episcopal Case," by Michelle Boorstein, Saturday, January 12, 2008; Page B03), that Attorney General McDonnell has petitioned for leave of court to allow the Commonwealth to intervene in the much-publicized litigation pending in Fairfax County Circuit Court over the property rights of breakaway conservative congregations. The stated reason for the intervention is to defend the constitutionality of the Virginia statute at issue.
That seems like a pretty good reason. I've always wondered why the Attorney General never tried to inveigle himself in the Martin case, a couple of years ago.
The Washington Times has this story ("Church law may be with breakaways," by Julia Duin, January 12, 2008), that says in part: "Attorney General Bob McDonnell's motion to intervene is a significant setback to the Episcopal Church and the Diocese of Virginia, which have said secular courts have no place in resolving the property dispute — the largest in the church's history."
That seems like a pretty good reason. I've always wondered why the Attorney General never tried to inveigle himself in the Martin case, a couple of years ago.
The Washington Times has this story ("Church law may be with breakaways," by Julia Duin, January 12, 2008), that says in part: "Attorney General Bob McDonnell's motion to intervene is a significant setback to the Episcopal Church and the Diocese of Virginia, which have said secular courts have no place in resolving the property dispute — the largest in the church's history."
On moonshine in Southwest Virginia
Back on January 8, the Washington Post published this story by Jerry Markon on the continuation of the moonshine business in Franklin County and elsewhere.
It says in part:
"Since Prohibition, southwestern Virginia has been a hub of moonshine production, along with North Carolina and a few other Southern states. The tradition extends to the English and Scotch-Irish colonists who settled western Virginia and made grain-based whiskey and the Germans who specialized in apple brandy. When Franklin County was formed in 1786, the first county court met in a house with a tavern."
It says in part:
"Since Prohibition, southwestern Virginia has been a hub of moonshine production, along with North Carolina and a few other Southern states. The tradition extends to the English and Scotch-Irish colonists who settled western Virginia and made grain-based whiskey and the Germans who specialized in apple brandy. When Franklin County was formed in 1786, the first county court met in a house with a tavern."
On showing the Super Bowl on a really big screen at church
The Daily Progress has this story that says that fellow from the Rutherford Institute wants to take on the National Football League on the issue of displaying NFL games on big screens in churches.
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