Opinion Digests
Intellectual Property - Consumer Web Site – Auto Dealer Feedback – Immunity
By Deborah Elkins
July 24, 2008
A car dealership cannot sue a consumer Web site on which shoppers posted negative experiences for defamation and tortious interference with business expectancy; an Alexandria U.S. District Court says defendant Consumeraffairs.com Inc. has immunity from suit under the Communications Decency Act because the statements at issue came from a “separate information content provider” and defendant […]
Contract - Government Contract – UCITA – Pay-If-Paid Clause
By Deborah Elkins
July 23, 2008
A government subcontractor cannot collect for software it marketed to the National Security Agency and tried to get the agency to buy through defendant prime contractor, under either the controlling “pay if paid” language of the subcontract, or under the Uniform Computer Information Transaction Act, Va. Code § 59.1-501.3, an Alexandria U.S. District Court holds.
Pilar […]
Consumer Protection - Arbitration – Credit Increase Limit – Request Denial
By Deborah Elkins
July 22, 2008
Under an arbitration agreement in plaintiff’s credit application, the Richmond U.S. District Court gets to decide the validity and enforcement of any waiver of the applicant’s right to bring a class action, but the court upholds the waiver, and plaintiff is left to arbitrate her individual claim that defendant bank violated the Equal Credit Opportunity […]
Domestic Relations - PSA – Duress
By Deborah Elkins
July 21, 2008
Although wife had no part in drafting the property settlement agreement presented by husband, a Sussex County Circuit Court says her evidence of past treatment for depression and allegation of an unfair settlement do not indicate the agreement is void because it was signed under duress and is unconscionable.
It is unclear from the record that […]
Civil Procedure - Default Judgment – Deemed Admissions – Musical Acts
By Deborah Elkins
July 21, 2008
A woman who alleges a Michigan resident hired her to engage musical acts for the Fire Lake Festival but failed to pay her for her services, obtains a default judgment for $57,095 and the Chesapeake Circuit Court denies defendant’s motion to set aside the default judgment.
In her complaint, plaintiff alleged defendant was a major investor […]
Criminal - Firearm Charge – Prior Felony Offense
By Deborah Elkins
July 21, 2008
The Court of Appeals upholds defendant’s conviction for possession of a firearm under Va. Code § 18.2-308.2 because the evidence was sufficient to prove his status as a person found guilty of an act as a juvenile that would have been a violent felony if committed by an adult.
The prior disposition order clearly states that […]
Criminal - Appeals – Procedural Default - Proffer
By Deborah Elkins
July 21, 2008
A defendant’s conviction for cocaine distribution is affirmed by the Court of Appeals because he procedurally defaulted his claim that the trial court erred in refusing to permit him to cross-examine his codefendant about the codefendant’s discussions with his attorney.
Defendant did not proffer or avouch for the record what the codefendant would have said had […]
Criminal - Appeals – Rule 5A:18 – Confrontation Clause
By Deborah Elkins
July 21, 2008
The Court of Appeals does not consider defendant’s claim that the trial court denied his Sixth Amendment rights when it refused to allow the defense to cross-examine a night-club security guard who witnessed the events leading up to the charged assault and battery, because he failed to provide a basis for his questions other than […]
Domestic Relations - Termination Of Parental Rights – Child’s Mental Illness
By Deborah Elkins
July 21, 2008
The Court of Appeals holds that termination of a mother’s parental rights was in the best interest of her child, whose previously violent behavior had escalated to preparing to act upon suicidal ideation, after a prior suicide attempt, and mother continued to refuse services for herself and the child.
The mother, who was mildly mentally retarded […]
Criminal - Venue – Stolen Property Receipt
By Deborah Elkins
July 21, 2008
The Court of Appeals reverses a defendant’s conviction for receipt of stolen property in violation of Va. Code § 18.2-108 because the record does not show that defendant, a passenger in a stolen vehicle, exercised any measure of dominion or control over the stolen Honda or otherwise asserted a possessory interest in the car in […]
Criminal - Failure To Appear - Willfulness - Incarceration
By Deborah Elkins
July 21, 2008
Although defendant claims his failure to appear on breaking and entering charges was not willful because he was arrested when he traveled to New York without permission from his bail bondsman, the Court of Appeals upholds his conviction under Va. Code § 19.1-218(B).
We hold evidence in addition to the bare fact of defendant’s incarceration in […]
Domestic Relations - Termination Of Parental Rights - Mom’s Mental Illness
By Deborah Elkins
July 21, 2008
The Court of Appeals affirms termination of a mother’s parental rights despite her claim the Department of Social Services did not try hard enough to locate relatives to care for her child, or to assist the mother with rehabilitative social services.
The mother suffered from schizophrenia and bipolar disorder and the child was removed due to […]
Criminal - Pandering – Jury Instruction
By Deborah Elkins
July 21, 2008
A defendant is convicted of pandering for accepting money from a 16-year-old runaway girl who supported herself and defendant with her earnings from prostitution; his conviction under Va. Code § 18.2-357 is affirmed by the Court of Appeals despite his claim the trial court erred in refusing his jury instruction stating the commonwealth was required […]
Criminal - CCE – Crack Cocaine Ring – Cocaine Base
By Deborah Elkins
July 21, 2008
An amendment to defendant’s indictment charging him with operation of a continuing criminal enterprise for the distribution of cocaine base to change the quantity of drugs at issue from at least 2.5 to less than 5 kilograms, to at least 5 kilograms, did not violate defendant’s rights and his CCE conviction and life-prison sentence is […]
Criminal - Cocaine Possession – Prosecution Threat – Defendant’s Sister
By Deborah Elkins
July 21, 2008
A police threat to prosecute defendant’s sister for possession of the cocaine found in the green SUV in which police found drugs unless defendant confessed did not amount to a coercion of his statement that would require suppression, the Court of Appeals holds.
At a hearing on the motion to suppress, defendant testified that because the […]
Search & Seizure - Traffic Safety Checkpoint – Crack Pipe
By Deborah Elkins
July 21, 2008
A driver who was ordered to the side of the road after an officer observed a defective brake light at a safety checkpoint, and whose vehicle was subjected to a drug dog, loses her appeal of her conviction for cocaine possession after police discovered a crack pipe in her purse in the car, in a […]
Criminal - Right To Counsel – Rape Instruction – ‘Intimidation’
By Deborah Elkins
July 21, 2008
A rape suspect who voluntarily showed up at the police station, initialed a waiver of his Miranda rights, then said, “Right, and I’d really like to talk to a lawyer because this – oh my God, oh, my Jesus, why?” did not clearly and unambiguously invoke his Fifth Amendment right to counsel and his conviction […]
Criminal - Mistrial Motion – Murder – Polygraph Questions
By Deborah Elkins
July 21, 2008
The Court of Appeals says that at defendant’s murder trial, the trial court did not err in refusing to declare a mistrial after repeatedly sustaining defense objections to a persistent prosecutor’s attempts to suggest to the jury that federal drug agents never asked the cooperating witness to take a polygraph exam because they believed his […]
Domestic Relations - Spousal Support – Military Pension
By Deborah Elkins
July 21, 2008
A retired military man who objects to paying $500 in monthly spousal support to the wife he married in Korea, in addition to her share of his military pension, wins remand of the spousal support award by the Court of Appeals because the trial court failed to issue written findings of fact and conclusions of […]
Creditor’s Rights - Foreclosure Sale - Newspaper Ad Notice - Va. Law
By Deborah Elkins
July 21, 2008
A Charlottesville U.S. District Court upholds the foreclosure sale of a woman’s Nelson County property even though she claims the newspaper notice of the sale in the Nelson County Times for the sale was deficient under Va. Code § 55-59.3 because the notice did not carry the street address of her son’s double-wide trailer in […]
IMPORTANT OPINIONS
- Intellectual Property - Consumer Web Site – Auto Dealer Feedback – Immunity
- Contract - Government Contract – UCITA – Pay-If-Paid Clause
- Consumer Protection - Arbitration – Credit Increase Limit – Request Denial
- Domestic Relations - PSA – Duress
- Civil Procedure - Default Judgment – Deemed Admissions – Musical Acts
- Criminal - Firearm Charge – Prior Felony Offense