Docket – October 9, 2018

Court of Appeals of Virginia

Spratley v. Commonwealth (P), CAV (O’Brien) from Loudoun (Fleming).

In an issue of first impression, the court confirmed that the Commonwealth could prove felony destruction of property with evidence of the cost of replacing the property. The defendant had knocked over a grocery-store scale during an argument with a companion. After discovering that the scale couldn’t be repaired and was no longer on the market, the store bought a new scale and produced testimony that the two models were “virtually identical.”

Unlike the larceny statutes, Code § 18.2-137 specifically provides for “proof of the … fair market replacement value.” “Replacement” contemplates the cost of obtaining a substitute item to take the place of the original, destroyed item.

Conviction affirmed.

Parham v. Parham (U), CAV (Chafin) from Henrico (Yoffy).

An ex-husband was “voluntarily underemployed” after he was terminated for cause from a position in which he earned more than $340,000 per year, then took the same position with another employer for only $162,000 per year. The circuit court’s decision to impute income on the basis of voluntary underemployment was discretionary and not in error. A total monthly support amount of approximately $10,600 was affirmed.

Weathersby v. Commonwealth (U), CAV (Annunziata) from Hampton (Hutton).

Even though a police officer had a reasonable basis to frisk a man apprehended for shoplifting, he lacked probable cause to remove a glass tube from the appellant’s pocket. Testimony didn’t suggest that it was “immediately apparent” that the glass tube was a weapon or contraband. Evidence relating to the glass tube should have been suppressed.

Conviction for cocaine possession reversed.

U.S. District Court – Eastern District

United States v. Gibson, EDVA at Norfolk (Davis).

In advance of the defendant’s trial for several fraud offenses, the court declined to categorically exclude evidence that the victims were elderly and that the funds came from their retirement savings. However, the court granted the defendant’s motion to exclude evidence that the fraud exhausted the victims’ resources more generally in collateral, rather than actual, losses.

Steves & Sons v. Jeld-Wen, EDVA at Richmond (Payne).

As equitable relief, the court ordered the defendant to divest itself of an entity it had acquired as part of a Clayton Act violation. A special master will be appointed to ensure that the defendant receives a fair price and that divestiture produces a competitive entity.

U.S. District Court – Western District

Riley v. Barringer, WDVA at Abingdon (Jones).

In a company’s ERISA suit against a former employee and retirement fiduciary accused of embezzling from the plaintiff company, the court denied the plaintiffs’ motion to dismiss the employee’s counterclaim for breach of implied contract and unjust enrichment.

The employee allegedly transferred her own funds to the company at the president’s request, which was a valuable service that conferred a benefit. The company accepted the funds and didn’t repay her. In light of their employment relationship, rather than a friendly or familial relationship, and the size of the sum of money, the facts alleged are sufficient to infer that the company was on notice that she expected to be repaid.

The court dismissed several other counterclaims.

Categories: Daily Dockets

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