Much Ado About Nothing Much: Protestant Episcopal Church in the Diocese of Virginia v. Truro Church

Henry L. Chambers, Jr. *

Isaac A. McBeth **

Protestant Episcopal Church in the Diocese of Virginia v. Truro Church (“Truro”) involves a property dispute. The core issue is who owns or controls property held in trust for an Episcopal congregation after a majority of that congregation votes to disaffiliate from the Episcopal Church of the United States of America (“TEC”) and affiliate with a different church. Deciding a church property dispute is inherently difficult because courts are generally “not a constitutionally permissible forum” to resolve ecclesiastical issues. Indeed, the desire to avoid such issues can lead courts to decline to decide particular cases. However, faced with the property dispute, a significant procedural history, and the need to determine the application of Virginia Code section 57-9(A) to the dispute, the Supreme Court of Virginia decided this case.

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Appellate Law

L. Steven Emmert *

Several years ago, the idea of a purely appellate practitioner was almost unheard-of in Virginia, outside government circles. Appellate practice was widely regarded by the practicing bar as a necessary adjunct to trial practice, not as a viable separate field in which to earn a living. Today, the field is experiencing a modest burst of growth. Senior Justice Elizabeth B. Lacy, addressing a symposium sponsored by the Virginia State Bar‘s Appellate Practice Committee in 2009, noted “the rise of an appellate bar” in the Commonwealth and expressed the view that this was a healthy development. By one modern measure, interest in this field of law in Virginia has clearly expanded, as the number of websites devoted to appellate practice—of which there were none as recently as late 2004— continues to grow.

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Civil Practice and Procedure

John R. Walk *

Andrew P. Sherrod **

This article surveys recent significant developments in Virginia civil practice and procedure. Specifically, the article discusses opinions of the Supreme Court of Virginia from June 2009 through April 2010 addressing civil procedure; significant amendments to the Rules of the Supreme Court of Virginia made during the same period; and legislation enacted by the Virginia General Assembly during its 2010 session relating to civil practice.

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Construction Law

Christopher G. Hill *

The 2010 bill that will likely have the most impact on the construction industry is the amendment to Virginia Code section 54.1-411. The amendment to the Virginia Code removes language precluding the use of limitation of liability clauses by design professionals. In its place, the General Assembly substituted language stating that the change does not relieve individuals practicing in the covered professions from any liability arising from his or her employment with a covered entity.

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Criminal Law and Procedure

Virginia B. Theisen *

Stephen R. McCullough **

In Murillo-Rodriguez v. Commonwealth, the Supreme Court of Virginia, in a lengthy, unanimous opinion, explicitly held that a criminal defendant in a jury trial waives his motion to strike made at the conclusion of the Commonwealth’s case when he presents evidence on his own behalf. Therefore, a defendant who presents any evidence must renew his motion to strike at the conclusion of all the evidence, or present a timely motion to set aside the verdict. If he does not do so, the appellate court will not consider his challenge to the sufficiency of the evidence.

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Environmental Law

Caleb A. Jaffe *
Sean M. Carney **

This past spring marked the fortieth anniversary of Earth Day, first held on April 22, 1970. As the Washington Post reported, the milestone was “cause for celebration—and a mid-life crisis.” The reason for celebration was self-apparent: modern environmental regulation, from 1970 to today, gave us healthier air and cleaner water, and preserved cherished wild places. In addition, thanks to the “technology-forcing” design of many major environmental statutes, environmental regulation fueled greater economic prosperity by spurring industrial innovation. As the economists Michael Porter and Claas van der Linde famously articulated, “Firms can actually benefit from properly crafted environmental regulations that are more stringent (or are imposed earlier) than those faced by their competitors in other countries. By stimulating innovation, strict environmental regulations can actually enhance competitiveness.”

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Medical Malpractice Law

Sean P. Byrne *
Lauran G. Stimac **

Health care reform took center stage on a national level over the past year. Despite suggestions that medical liability reform might be incorporated into the federal legislation, in the end, it was not. Similarly, this year saw few legislative developments at the state level in medical malpractice law, as the Virginia General Assembly focused its energy primarily on the budget shortfall and other issues. There were, however, several health care legislative and case developments of note which will impact the medical liability landscape in the coming years. Board of Medicine activity and medical malpractice trial results of interest are also highlighted as we look back at the year‘s noteworthy legal developments in Virginia medical malpractice law.

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Professional Responsibility

James M. McCauley *

The growing ease of interstate and international travel, the advancements in electronic communications and the resulting globalization of economic activity have made it ever more necessary for lawyers to expand the geographic scope of their practices. Both law firms and their clients increasingly conduct business on a nationwide and even worldwide scale. As the Commission on Multijurisdictional Practice recognized in 2002, “the geographic scope of a lawyer‘s practice must be adequate to enable the lawyer to serve the legal needs of clients in a national and global economy.” Thus lawyers need to be more able than previously to practice in multiple jurisdictions. To this end, the Supreme Court of Virginia adopted new provisions to permit limited practice by foreign lawyers in the Commonwealth. These provisions included the adoption of a foreign legal consultant rule for lawyers admitted to practice in a foreign nation and a temporary practice rule for lawyers admitted in a foreign country or in a territory or state in the United States other than Virginia.

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Craig D. Bell *

The 2010 General Assembly amended Virginia Code section 58.1-301, which mandates conformity of terms to the Internal Revenue Code, to advance Virginia?s fixed date of conformity from December 31, 2008 to January 22, 2010. Virginia continues, however, to disallow the federal bonus depreciation deductions except for any bonus depreciation allowed under I.R.C. § 168(n), which is designed to benefit qualified disaster assistance property and any five-year carryback of federal net operating loss deductions. The new date of conformity enables the state to adopt most of the provisions of the American Recovery and Reinvestment Act of 2009 for taxable year 2009, including the increase in the federal earned income tax credit, the itemized deduction for sales taxes on a new car, the equalization of transit and parking benefits, and the expensing of certain depreciable business assets.

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Wills, Trusts, and Estates

J. Rodney Johnson *

In response to a multi-year project of the Virginia Bar Association‘s (“VBA’s”) Section on Wills, Trusts, and Estates, the 2009 General Assembly enacted the Virginia Uniform Power of Attorney Act (“UPOAA”) in order to significantly update and clarify existing Virginia law related to durable powers of attorney and to make the same more uniform with that found in other jurisdictions. Thereafter, the Chair of the VBA‘s Drafting Committee, Andrew H. Hook, and his associate, Lisa V. Johnson, presented a thorough overview of this legislation in this publication‘s 2009 Annual Survey of Virginia Law. As the 2009 passage of the UPOAA was made subject to a reenactment clause, this legislation was also introduced into and enacted by the 2010 Session. Although the 2010 UPOAA is largely the same as the 2009 version, it does contain some important changes. The present writer is indebted to Mr. Hook and Ms. Johnson, the authors of the 2009 article, for contributing the following text to explain these 2010 changes in the context of their original 2009 article.

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