Docket – November 20, 2018

NOTE: Evening Docket is on hiatus from November 21-23. Happy Thanksgiving!

4th U.S. Circuit Court of Appeals

AirFacts Inc. v. Amezaga (P), 4th Cir. (Agee) from DMD at Greenbelt (Chasanow).

In this breach-of-contract and trade-secrets misappropriation case, the appellant company’s primary product is an auditing software that analyzes ticket fares for airlines and travel agencies to ensure tickets are sold for the appropriate price. It sued a former employee who subsequently worked for an airline.

The appellant didn’t abandon its claim related to its ex-employee’s alleged retention of documents upon his departure. Its failure to address this specific claim in its closing argument was, at best, ambiguous as to its intention to abandon the claim. The district court was wrong to hold otherwise.

However, the appellant’s work at the airline was not competing or similar to his services for the appellant under the contract, because his duties had distinct purposes and end recipients. Whereas his duties for the appellant related to ticket-price audits for the seller, his duties for the airline are directed toward passenger refunds. Thus, the district court correctly held that the employee didn’t breach his contract in this regard.

As to trade secrets, the district court erred in finding that certain company documents were not trade secrets because they were an “overview” of publicly available information. The documents contain some information not readily available to outsiders, organized carefully in a way that increased the appellant’s business efficiency; the appellant also took reasonable steps to keep the documents private. Since these documents were trade secrets, the misappropriation claim is remanded for further consideration.

Affirmed in part, vacated in part, and remanded.

Court of Appeals of Virginia

Bennett v. Commonwealth (P), CAV (Decker) from Amherst (Yeatts).

Admission of video and audio recordings reflecting a drug sale didn’t violate the defendant’s constitutional right to confront the witnesses against him. The video and photographs made from it were admitted as silent witnesses. The video does not reflect any actions that could be construed as an assertion, and accordingly it is not hearsay. An informant’s statements asking for specific drugs were offered to establish context for the defendant’s statements and actions, not for their truth. These statements also were not hearsay.

Conviction affirmed.

Nelson v. Middlesex Dep’t of Soc. Servs. (P), CAV (Russell) from Middlesex (Shaw).

The appellants are the biological grandparents of two children, siblings adopted by another couple. The circuit court did not err in denying their request to re-opening the adoption case.

In the six months following entry of an adoption order, a person with standing may challenge the order more than 21 days after its entry for any of the grounds that would permit a challenge under Rule 1:1. But after the six-month period has run, Code § 63.2-1216 prevents a person from challenging the order even if one of the exceptions to Rule 1:1 is present.

Here, both orders that are the subject of the grandparents’ appeal were entered more than 21 days before the grandparents filed their initial pleading, and they haven’t shown that any exception to Rule 1:1’s finality rule applied. Contrary to their argument, they weren’t entitled to notice of the adoption proceedings as necessary parties, and their consent wasn’t required.


Commonwealth v. Carroll (U), CAV (Malveaux) from Fairfax (Bernhard).

The trial court did not err in suppressing evidence obtained following the defendant’s warrantless arrest, following Collins v. Virginia, 138 S. Ct. 1663 (2018).

Police had probable cause to arrest the defendant for felony eluding after he led them on a high-speed chase, but they encroached his curtilage and arrested him there without a warrant. Although they had probable cause, they weren’t faced with any exigency when they encountered him.

Affirmed. Senior Judge Haley dissented.

Commonwealth v. Coleman (U), CAV (Huff) from City of Richmond (Hairston).

A fingerprint analysis was not “fruit of the poisonous tree” and shouldn’t have been suppressed.

The defendant contends that because the Commonwealth obtained his “identifying information” through an illegal seizure, a direct comparison between fingerprints on the handgun and the defendant’s fingerprints on record at the Central Criminal Records Exchange was obtained “by exploitation of that illegality.” But neither the defendant’s fingerprints nor the firearm were obtained via any illegal police action: his fingerprints were already on file, and the firearm was recovered legally.

Reversed and remanded.

Virginia Circuit Courts

Bd. of Sup’rs of Fairfax Cty. v. Bd. of Zoning Appeals of Fairfax Cty., Fairfax Cir. (Bernhard).

The Fairfax Board of Zoning Appeals may enact bylaws to govern its proceedings, as long as they don’t conflict with county ordinances or state law. Valid bylaws that govern the BZA’s substantive procedures amount to notice to the public, so they must be followed and may not be treated as merely parliamentary in nature and dispensable.

However, the BZA’s bylaw allowing for reconsideration by written request filed within seven days is invalid, because it conflicts with the county’s zoning ordinance and doesn’t comply with legal notice requirements for public hearings. And here, the BZA’s reconsideration of its original decision in this cause pursuant to a request filed after its own seven-day deadline, without implementing the formal notice of proceedings required by state law and county ordinance, was ultra vires and void ab initio.

The BZA’s original decision against the defendant landowners is reinstated, and its bylaw allowing for reconsideration of its decisions is invalid as currently constituted.

Categories: Daily Dockets

%d bloggers like this: