Nonsense and Nonsuits — The Fairfax Circuit Court Awards Costs and Fees after Plaintiff’s Second Voluntary Nonsuit

Written by Chris Bergin Edited by Brian A. Cafritz Each legal jurisdiction across the Country has its own unique set of procedural rules and potential pitfalls. In Virginia, one of our legal oddities is the “voluntary nonsuit.” As Jessica Relyea of KPM LAW’s Restaurant and Retail Litigation team has previously explained, a nonsuit is a voluntary dismissal, which allows a Plaintiff to correct a flaw in her case and refile in the future. In practice, voluntary nonsuit is a free “do-over.” In Virginia, every Plaintiff is allowed one nonsuit as a matter of right. This nonsuit may be taken any time before the case has been submitted to the jury. Va. Code Ann. § 8.01-380(B). The Plaintiff does not need the consent of the parties or the approval of the Court to take the first nonsuit. Plaintiffs routinely use nonsuits to avoid summary judgment, fix procedural or strategic errors errors, defeat the statute of limitations, or short-circuit a trial that appeared to be going poorly for the Plaintiff.  The voluntary nonsuit is one of the most potent tactical weapons available to Plaintiffs in Virginia. Nevertheless, it is not all-powerful. For example, if the Plaintiff wants to take a second nonsuit under Code §8.01-380(B), she must obtain Court approval. And, as Judge Gardiner from the Fairfax Circuit Court recently held, Code § 8.01-380(b) allows the Judge to award court costs and fees against the nonsuiting party for a second nonsuit. In the recent case of Lezlie Day v. Gregory Day, (which was decided on April 1, 2019), the plaintiff, Lezlie Day, filed an action for divorce against her husband, Gregory,...

When Indemnification Clauses in Construction Contracts Leave Parties Feeling Void

A critical step in every construction defect claim is to review the contracts between the parties involved in the construction to evaluate the indemnification rights and obligations of the parties.  Virginia Code § 11-4.1 plays an important role in that process.  This section, which renders certain indemnification provision void, states in pertinent part: “Any provision contained in any contract relating to the construction, alteration, repair or maintenance of a building, structure or appurtenance thereto, including moving, demolition and excavation connected therewith, or any provision contained in any contract relating to the construction of projects other than buildings by which the contractor performing such work purports to indemnify or hold harmless another party to the contract against liability for damage arising out of bodily injury to persons or damage to property suffered in the course of performance of the contract, caused by or resulting solely from the negligence of such other party or his agents or employees, is against public policy and is void and unenforceable.” For example, in layman’s terms, if a general contractor enters into a construction contract with a subcontractor that requires the subcontractor to indemnify the general contractor for the sole negligence of the general contractor, the entire indemnification agreement is void under the statute.  Notably, it’s the language of the indemnification provision in the contract – not the circumstances from which the claim for indemnification arose – that determines whether the indemnification provision is void under § 11-4.1.  Uniwest Construction, Inc. v. Amtech Elevator Services, 280, Va. 428, 441 (2010). While § 11-4.1 obviously pertains to “construction contracts,” questions arise in litigation over what constitutes...

Preventing Identity Theft – Passphrases vs. Passwords

Written by Bill Pfund, Esq. Nearly 60 million Americans have been affected by identity theft according to a 2018 survey by The Harris Poll. That same survey indicates nearly 15 million American consumers experienced identity theft in 2017. So, yes, the crime of identity theft is relatively common. And it’s probably safe to assume it won’t be dropping anytime soon. The reason? Data breaches. While there are many stories of identity theft in the news, what we tend to hear more about are data breaches—in which a company or other organization’s customer’s records, which may include full names, Social Security numbers, and other personal information, are accessed fraudulently. In 2017, there was a record high of 1,579 data breaches, exposing more than 178 million records. The big one—involving Equifax, one of the three major credit reporting agencies—received a lot of attention. Not only was the number of potential victims quite large at 147.9 million, the kind of information exposed was significant. It included names, Social Security numbers, birth dates, addresses and, in some instances, driver’s license numbers. What are the most common types of identity theft? According to the Federal Trade Commission, the government agency that maintains a sort of warehouse for identity theft complaints, the crime falls into six major categories: Employment- or tax-related fraud (34%) What it is: A criminal uses someone else’s Social Security number and other personal information to gain employment or to file an income tax return. Credit card fraud (33%) What it is: The thief uses someone else’s credit card or credit card number to make fraudulent purchases. Phone or utilities fraud (13%)...
Brian Cafritz Named Virginia Super Lawyer

Brian Cafritz Named Virginia Super Lawyer

Brian Cafritz has been selected to the 2019 Virginia Super Lawyers list. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Brian has received the honor every year since 2016. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit...
Jessica Relyea Named Virginia Super Lawyers Rising Star

Jessica Relyea Named Virginia Super Lawyers Rising Star

Jessica Relyea has been selected to the 2019 Virginia Rising Stars list. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit...
Danny Royce Named Virginia Super Lawyers Rising Star

Danny Royce Named Virginia Super Lawyers Rising Star

Danny Royce has been selected to the 2019 Virginia Rising Stars list. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit...