NEW WRITS FROM SUPREME COURT; NEW DECISIONS FROM CAV (PLUS ONE IRRESISTIBLE EXTRA)


 

The Supreme Court announced the award of appeals in seven cases recently:

Montgomery v. McDaniel – To review the dismissal of an abuse of process case on demurrer

Stamey v. Gleason – Issues relating to personal injury damages for future pain and inconvenience

Nobrega v. Commonwealth – Challenging a trial court’s denial of a request for a psychological evaluation of a complaining witness in a criminal case

Campbell v. Harmon – Involving a request for an accounting relating to the administration of a will

Eagle Harbor, LLC v. Isle of Wight County – Challenge to fees imposed by a county in a land use context

Thornton v. Glazer – Medical malpractice; informed consent for surgery

Neef v. Methvin – Alcoholism as a basis for the appointment of a conservator

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The Court of Appeals handed down two published opinions on Tuesday:

King v. King – On appeal for the second time, this case deals with the allocation of income tax refunds totaling $34,000 in a divorce situation. The appellate court affirms the trial court’s allocation of those fees in equitable distribution. Perhaps more important, it affirms the finding that neither party is entitled to an award of attorney’s fees, either for the trial court proceedings or in the appellate court, since neither party substantially prevailed. Given the cost involved in taking a case to appeal even once, it is entirely foreseeable to me that these two trips to the land of briefs, writs, and records have eaten the unhappy couple’s entire refund.

Gregory v. Commonwealth – The court affirms convictions of several crimes, including capital murder, based on the trial court’s rulings on two motions to suppress evidence. The capital murder conviction was based on the death of Virginia State Trooper Michael Blanton, who was killed while attempting to prevent Gregory from fleeing the scene of a traffic stop. The case is important for its exhaustive treatment of the propriety of the issuance of a search warrant for Blanton’s apartment, in which police found roughly $600,000 in illegal drugs.

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Frequent readers of this site know that I don’t generally report on unpublished opinions of the Court of Appeals, since those opinions have literally no precedential value, and citing them is usually a waste of paper, ink, and a good part of your page limits. But one such decision issued on Tuesday cries out for mention on this site. By way of preface, those of you who know me are aware that I am a hockey fan. One of my more enjoyable pursuits is covering the Carolina Hurricanes and the Montreal Canadiens for the web site RotoWire.com . So when a case like Norfolk Admirals v. Jones comes along, I simply cannot resist.

Jones was, in hockey parlance, a goon. He was specifically employed as a tough guy tasked with intimidating the other team’s aggressive players. On the night of March 29, 2002, Jones was sent into a late-season game by his coach, who told him to “go get” a specific player on the opposing team. Jones got him, all right; and was only too proud to skate off to the penalty box, no doubt with a five-minute fighting major. (The opinion leaves out this critical detail, but we’ll let that go for now.) Unfortunately for Jones, he also skated off with a seriously damaged shoulder that eventually ended his season and left him unable to play for many months.

At this point, he did the sensible thing: He got himself a lawyer and filed a Workers’ Comp claim against the team, alleging that he sustained an injury that arose out of and in the course of his employment. The most enlightening aspect of the legal dispute behind this appeal is the question of whether the injury arose out of intentional misconduct (Jones did, after all, start the fight). Here the full Commission made an admirable record on the question of whether fighting is an integral part of hockey, concluding that it is. It noted that this is the job for which Jones was hired, and that he was injured in doing that job at the specific direction of his employer (actually, the coach, but let’s not quibble over this). In the businesslike language of the opinion, “the fight was not a personal undertaking but instead was directed against the other player as part of claimant’s employment relationship and in furtherance of employer’s business.”

Now, how can a hockey fan disagree with that? This is a watershed ruling that conclusively resolves one of the great debates surrounding hockey, which is whether fighting has any place in the sport.  In this sense, the decision ranks up there with New York v. Kringle, as reported in “Miracle on 34th Street,” in which a judge rules from the bench that there is, indeed, a real Santa Claus.

Nevertheless, the opinion is still listed as unpublished. I ask all my fellow hockey fans to join me in petitioning the court to designate the opinion for publication, so we will have a definitive word on this pressing issue, one that can be cited with binding authority in any court in the land.