Docket – October 18, 2018

Supreme Court of Virginia

George Mason Univ. v. Malik (P), SCV (Kelsey) from Fairfax (Smith).

GMU’s decision to deny a student’s request for in-state tuition reclassification was not arbitrary, capricious, and contrary to law. In finding otherwise, the circuit court exceeded the scope of its review under Code § 23.1-510(C) by reweighing the evidence and substituting its judgment for GMU’s.

Ample evidence supports GMU’s conclusion that the student failed to carry her burden of proving her alleged Virginia domicile by clear and convincing evidence and reinforces the primacy of education as her reason for residing in Virginia. Although the student presented evidence of a Virginia driver’s license, part-time employment in Virginia, 2015 Virginia income taxes, a Virginia lease co-signed with her brother, participation in a Virginia business owned by her brother, and a Virginia bank account established in 2014, each of these acts could reasonably be deemed to be auxiliary to her educational goals or routinely performed by temporary residents.

Reversed and final judgment.

Ettinger v. Oyster Bay II Cmty. Property Owners’ Ass’n (P), SCV (Mims) from Accomack (Lewis).

The circuit court erred in ruling that a parcel of land extended only to the edge of a road, rather than to its center, when the deed describes the property as being bounded by that road and further includes the property’s square footage as well as a reference to the subdivision plat.

This case arose after the defendant erected a construction fence and “no trespassing” sign along the boundary road preventing access to the plaintiff’s parcel. An established rule in Virginia is that a conveyance of land bounded by or along a way carries title to the center of the way, unless a contrary intent is shown. In light of the rule’s twin goals of limiting unnecessary litigation and protecting a grantee’s right of access, the defendant’s decision to erect the fence is precisely the sort of act the rule is designed to prevent.

When a deed describes a lot by reference to a survey plat depicting a street as a boundary, the deed conveys title to the center of that street. A mere reference to the plat does not constitute evidence of contrary intent.

Reversed and final judgment.

Johnson v. Commonwealth (P), SCV (Lemons) from CAV.

Admitting hearsay evidence in a probation revocation proceeding didn’t violate the defendant’s right to confront witnesses against him under the Due Process Clause of the Fourteenth Amendment. The circuit court revoked probation based in part on his contact with underage females, violating a condition of probation, without giving the defendant an opportunity to cross-examine the girls.

Screenshots of text messages corroborated the girls’ allegation that a man interacted with them after learning they were minors and their identification of the defendant as the man who approached them. Other evidence established that the defendant and the girls lived in the same area, that the girls’ statements to a detective were consistent with statements in the text messages, and that the man who approached them shared the same age, place of employment, and physical appearance as the defendant. As a whole, this evidence establishes the reliability of the girls’ assertion that the man who approached them was the defendant.


Thomas v. Commonwealth (P), SCV (McCullough) from CAV.

The circuit court’s order sentencing the defendant to ten years, with three suspended on certain conditions, for felony child abuse and neglect was contrary to Virginia law.

Once it determined that the full seven years fixed by the jury had to be served, the court was obliged under Code § 19.2-295.2 to impose a separate additional term of up to three years of post-release supervision, under the supervision and review of the Parole Board. The court was further required, under the authority of Code § 18.2-10, to impose a linked suspended term of incarceration.

The order as written, however, did not specify that the additional time was imposed pursuant to Code §§ 18.2-10 and 19.2-295.2. Furthermore, the period of post-release supervision imposed by the trial court was not “under the supervision and review of the Virginia Parole Board.” The court impermissibly lengthened the sentence fixed by the jury from seven years to ten years, which the Code does not authorize.

Reversed and remanded.

Wright v. Woodson (U), SCV (per curiam).

The court denied a petition for habeas corpus. Although the petitioner’s trial counsel was unaware that grand larceny was not a lesser-included offense of robbery, he wanted the jury to have the option of perspective and a lighter sentence. Trial counsel’s representation was not objectively unreasonable. He was anxious that the petitioner would be convicted and exposed to the possibility of a life sentence. Conviction for grand larceny would allow the jury to impose a sentence that limited incarceration to a term of no more than 20 years and included the possibility of no incarceration at all.

Labgold v. Regenhardt (U), SCV (per curiam) from Alexandria.

The court held that a plaintiff had standing to sue his legal malpractice complaint, arising from bankruptcy representation. While the plaintiff did allege some pre-petition breaches that he lacks standing to assert, he also alleged that the defendant failed to advise him that he could and should submit a revised petition regarding transfer of his marital residence. Further, in his motion for leave to amend his complaint, the plaintiff proffered additional allegations of post-petition breaches.

Reversed and remanded.

U.S. District Court – Virginia Western

Williams v. United States, WDVA at Abingdon (Jones).

The court lacked subject-matter jurisdiction over the plaintiff’s suit against the U.S. Postal Service for an injury she sustained by slipping on an icy ramp while visiting a post office. The court expressed regret that the plaintiff won’t have judicial review of her claim, but found that the conduct she challenged falls within the discretionary-function exception to the Federal Tort Claims Act.

Motion to dismiss granted.


Categories: Daily Dockets

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