On Friday, the Fourth Circuit struck down a Virginia statute aimed at curbing the creation of new motorcycle dealer franchises in the Commonwealth. The decision in Yamaha Motor Corp. USA v. Jim’s Motorcycle, Inc . reverses a district court’s finding in favor of the statue’s constitutionality. The appellate court determined that the statute, which allowed any dealer anywhere in the Commonwealth to protest the award of a new dealership selling the same brand (here, Yamahas), would “[turn] Virginia into an island of economic protectionism.”

On Tuesday, a split panel of the Court of Appeals affirmed the use of victim impact testimony relating to a charge of which the defendant had been acquitted. In Rock v. Commonwealth, the defendant was charged with murder, conspiring to commit robbery, and several other offenses. The jury convicted him only of the conspiracy charge, apparently finding that Rock was not present when the robbery and murder had taken place. (Other participants pleaded guilty to murder charges arising out of the crimes.)


The Supreme Court announced this week the grant of writs in nine cases, covering diverse areas of Virginia law.

In the field of water rights, the court granted writs in two cases from the Court of Appeals and one from a trial court, all of which are likely to be consolidated for the purposes of appeal. The cases all involve the ongoing dispute over the plans by the City of Newport News to draw water from areas that are claimed by the Mattaponi Indian Tribe. One of the more interesting assignments of error has historical as well as legal significance: “The trial court erred when it held that the Tribe’s claims arising under the 1677 Treaty at Middle Plantation arise under Virginia, rather than federal, law.” In 1677 (the date is not a misprint), there was a Virginia, but there clearly was no United States. The court will thus be called upon to determine how an unborn nation, as contrasted with a colony, can “enter into” a treaty with a sovereign state.

The court also granted writs in two companion cases that apparently arise out of the same trial court proceeding. The assignments of error in State Farm v. Remley and Griffin v. Remley contend that a defendant in a personal injury case was misled by the plaintiff’s lawyers, as a result of which he did nothing to defend the case. That led to a default judgment, from which both the named defendant and the (presumably underinsured motorist) insurance carrier appeal. The assignments of error allege nothing less than fraud by the plaintiff’s attorney, so the cases merit attention by those who litigate tort cases.

The court agreed to hear a new case on tortious interference with contract expectancy, in Burgess & Associates v. Dyncorp, Inc. At trial, a jury had ruled in favor of the plaintiff, Burgess, but the trial judge set the verdict aside and entered judgment in favor of Dyncorp. Dyncorp, as the prevailing party below, would ordinarily be in a good position on appeal, but the posture of the case (a verdict that was set aside) actually favors Burgess. In such cases, the appellate courts view the evidence in the light most favorable to the party who got the verdict, so Dyncorp will have to persuade the Supreme Court that there was no credible evidence to support the verdict.

In Honesty v. P&H Investments, a personal injury case, the court granted a writ to review the trial court’s admission of evidence of the plaintiff’s former alcohol problem. The plaintiff/appellant argues that since the problem “had resolved prior to the accident,” it was not relevant at trial.

Two other writs were granted, in Ellis v. Simmons (a prescriptive easement case arising in Bedford County) and Zoning Adm’r v. Cox Ltd. P’ship (in which the court will decide issues relating to injunctions and Circuit Court jurisdiction).

The timing of these grants means the cases will likely be calendared for oral argument no sooner than June, and more likely in the fall, with decisions released at the ensuing session of the court.

At the sentencing phase of the trial, the court permitted family members of the murder victim to testify pursuant to the victim impact statute, Code §19.2-11.01(A)(4)(a). Rock objected, contending that he had been acquitted of murder, so the family members were not among the “victims” identified by the statute.

The Court of Appeals affirmed the trial court’s ruling on two grounds. First, it determined that, the murder acquittal notwithstanding, Rock was properly held to be responsible for the entire series of events, since he had planned the robbery. It found that the family members fit within the parameters of victims who had a statuory right to testify at trial. Second, and independently, it found that even if the witnesses were not afforded the right to testify, the trial court had the discretion to permit it anyway.

In dissent, Judge Benton argues that the statute does not include the family members within the class of “victims” who have a right to testify at sentencing. He parses the language of the statute, and finds that the murder was not the “direct result” of Rock’s planning the robbery. He also distinguishes the discretionary admission of evidence in this case from the evidence properly adduced in capital murder cases, relied upon by the majority. In those cases, a finding of future dangerousness is one prong of the analysis for imposition of the death penalty. But here, he reasons, such evidence can only serve to inflame the jurors’ passions and inspire sympathy with the victim’s family.