December 13, 2011 by csealy
On December 13, 2011, via bench briefs, Attorney Andrew A. Protogyrou successfully defended a rear end collision case. At first, liability appeared to be against the Defendant; however, after interviewing witnesses and research, it was determined that weather and road conditions played a significant factor.
Protogyrou successfully filed a bench brief and argued, based on Supreme Court of Virginia principles, that his client was not negligent because he operated his vehicle within the standard of care required given the hazardous road conditions of snow and ice. Defendant testified he was driving 5 miles per hour and had his lights and windshield wipers on.
Plaintiff’s counsel argued in his brief that his client was not affected by the inclement weather conditions because the vehicle he was in did not skid. Therefore, our client was at fault.
In his reply brief, Protogyrou reiterated the objective standard used by the Court and the fact that the principal inquiry in skidding cases was the operator’s actions prior to the accident. Based on this argument, the Court found our client not negligent. Plaintiff’s medical specials totaled over $30,000.00.
All case results depend on a variety of factors unique to each case. These prior case results do not guarantee or predict a similar result in any future case.
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December 7, 2011 by csealy
Our firm was retained to defend on a civil matter in which the Plaintiff rear-ended our client. Our client retained personal injury counsel and filed a cross-claim against the Plaintiff. At trial on October 17, 2011, the Court found for the Defendant in her own personal injury case and awarded her damages. However, the judgment entered did not reflect a special finding of negligence against the other driver.
Our case ultimately went to trial on December 7, 2011. Attorneys Andrew A. Protogyrou and Stricker C. Sanford, IV submitted a brief citing the doctrine of collateral estoppel, which precludes parties to a prior action from litigating in a subsequent action on any factual issue that was actually litigated and essential to a valid, final judgment in the prior action.
As the judgment did not reflect a specific finding of negligence against the opposing party, the Court denied our Motion to Dismiss. At the conclusion of the matter, the Court reopened and reconsidered same, specifically citing a “retraxit.” A judgment in retraxit is usually based upon and follows a settlement out of court. Where the parties to an action have settled their dispute and agreed to a dismissal such dismissal is a retraxit and amounts to a decision upon the merits.
Our firm successfully argued in a supplemental brief that the Judgment entered on October 17, 2011 was “dismissed agreed,” and second, that because it was “dismissed agreed,” retraxit should apply therefore barring Plaintiff from re-litigating a case already decided on the merits, specifically, negligence. The Court agreed, dismissing plaintiff’s case in advance of a trial on the merits.
All case results depend on a variety of factors unique to each case. These prior case results do not guarantee or predict a similar result in any future case.
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November 23, 2011 by csealy
On November 2, 2011 Mr. Andrew Protogyrou defended a speeding and DUI matter in Norfolk. The Defendant had been out with her roommate and sister at a local pub. Upon leaving the pub with her roommate and heading home, she was stopped for speeding 45/30 mile per hour zone.
The officer smelled alcohol from the passenger compartment. The driver was told to exit. She performed three field sobriety tests but the officer only testified as to the results of two of these. One was the HGN test. The other was the walk and turn.
The defendant never admitted to drinking any alcohol. The defendant was placed under arrest. The BAC was .13, measured by breathalyzer. On cross examination the officer admitted:
a) The defendant did not weave/cross any lanes while driving. b) The HGN test was the weakest test to rely upon and the officer did not know the defendant’s HGN findings in advance of the stop. c) The defendant performed the walk and turn and never stepped off the imaginary line, but “missed” heal to toe. d) The officer testified the defendant performed the one legged stand. He gave the instructions to the Court but never testified to the results. e) The defendant did not testify.
Upon conclusion of evidence Mr. Protogyrou argued that the totality of circumstances did not manifest that the defendant was intoxicated while driving. The defendant’s driving was speeding but not reckless, she performed well on her field sobriety tests and the evidence was not beyond a reasonable doubt. The case was dismissed.
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by csealy
In Mid-November Andrew A. Protogyrou represented a young man charged in Norfolk on possession of cocaine, possession of cocaine with intent to distribute and obstruction of justice.
Police Vice and Narcotics were working an interdiction in a neighborhood by visual surveillance. A motor vehicle driven by defendant stopped in front of a home and an individual exited, approached and spoke to the vehicle’s passenger.
The vehicle was later stopped by Norfolk Police and the driver was removed from the car. The passenger remained in his seat. Upon arrest (defendant was pepper sprayed and cuffed) and without Miranda warnings being given, Norfolk Police interrogated the defendant on the possessory/ownership interest of the vehicle. Upon objection of Mr. Protogyrou, the statements of the defendant were suppressed.
The police conducted a search of the vehicle and found cocaine between the driver’s seat and the center console. On cross examination the police could not account for the passenger’s presence in the vehicle while the defendant was being arrested.
At the conclusion of the Commonwealth’s case, Mr. Protogyrou moved to strike their case because the passenger remained within the vehicle and there was no provable ownership interest in the vehicle. The matter was dismissed.
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November 16, 2011 by csealy
During a jury trial in a local Circuit Court, negligence was admitted and the matter was tried on damages only. Plaintiff was a young female claiming low back pain that radiated into her lower extremities. The plaintiff treated with military and civilian healthcare providers. Her medical bills, including prescriptions, totaled almost $25,000.
At trial plaintiff’s primary healthcare provider and pain management physician testified that as a result of the accident, the plaintiff sustained a low back injury and sciatica. They testified to multiple epidural injections, diagnostic testing and to a brachial plexus block as a part of her treatment and care. They further testified that her condition was chronic and permanent.
The defense presented an orthopedic surgeon who performed a “peer review” of the plaintiff’s medical records. While the defense doctor agreed that the plaintiff had no prior injuries or complaints of back pain, his opinion was that her ongoing complaints were not related to the accident.
As negligence was admitted, the sole issue for the jury was the amount to award the plaintiff. Plaintiff’s counsel argued the immediate and consistent complaint, lack of prior injury and chronic and permanent conditions. Defense counsel, A. Christopher Zaleski argued lack of pathology for the ongoing complaints and highlighted the lack of objective finding by the plaintiff’s healthcare providers. Plaintiff’s counsel asked the jury for almost $200,000. After a short deliberation, the Portsmouth jury awarded the plaintiff $30,000, without interest.
All case results depend on a variety of factors unique to each case. These prior case results do not guarantee or predict a similar result in any future case.
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October 25, 2011 by Allan
In order to comply with Virginia State Bar ethical standards, we must remind our readers that the purpose of our Blogs is to advertise legal services delivered by the Law Firm. If a reference is made to a case result, we do not mean to infer that any result would be the result of any future case handled by the Firm. Case results are fact specific. That means that the result of any future cse depends on the facts involved. You should not rely on any legal opinion asserted in these Blogs as the law in your case or let it guide your conduct. The purpose of these Blogs is for advertisement and public intererst. For proper legal advice, you should consult your personal lawyer.
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October 24, 2011 by csealy
On October 6, 2011 attorneys Andrew A. Protogyrou and Stricker C. Sanford won a wrongful death case. Protogyrou and Sanford represented the defendant, John Doe (a legal entity who stands in the place of an unidentified motorist). The plaintiff, who was acting as the administrator of a family member’s estate, sued for $1,000,000. The insurance company offered $25,000. If the plaintiff had obtained a verdict against John Doe, the insurance carrier for the deceased would have been required to pay a benefit under the uninsured motorist (UM) coverage of the deceased’s automobile insurance policy.
The plaintiff’s decedent died following a tragic automobile accident. During the accident, the decedent’s vehicle struck a wooden pallet that was lying on the interstate. The plaintiff argued at trial that the pallet must have been improperly secured to a vehicle driven by the unidentified motorist and fallen from that vehicle into the road.
Protogyrou and Sanford successfully defended the case by establishing that the plaintiff could not produce evidence sufficient to prove that the pallet had in fact come from a motor vehicle driven by John Doe or that John Doe had been negligent. Accordingly, the plaintiff’s case against John Doe could not succeed. The trial court fuled in favor of the defendant John Doe and struck the plaintiff’s case before it was submitted to the jury for deliberation. The Protogyrou and Sanford expect that the plaintiff will appeal the case to the Supreme Court of Virginia.
All case results depend on a variety of factors unique to each case. These prior case results do not guarantee or predict a similar result in any future case.
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by csealy
Our firm was retained post conviction to determine if there were any grounds for an appeal. Another firm handled the trial of the case. The evidence presented at a jury trial against our client was strong and the jury convicted him of three drug related crimes, importing marijuana into the Commonwealth of Virginia, possession of more than five pounds of marijuana, and conspiracy to distribute. In Virginia, the jury recommends a sentence and almost 100% of the time a judge sentences to the jury’s recommendation. The jury recommended a total sentence of fifteen years, five years on each conviction. However, Virginia Sentencing Guidelines called for a 3 year active time of incarceration.
In reviewing the trial transcript, Lindsey A. Flaherty of our firm discovered that the trial judge had made some comments about the “strong smell of marijuana” coming from the boxes that were not tested for marijuana residue. Further, the comment was made just after defense counsel had objected to the classification of the plant material in the boxes as being marijuana. Lastly, this comment was made within earshot of the jury.
Based on this comment, Lindsey and Andrew A. Protogyrou filed a Motion for Mistrial arguing that the trial judge’s comment amounted to testimony confirming that the plant material in the boxes was marijuana. We anticipated arguing this motion prior to the sentencing hearing. Instead of arguing the motion in open court, we asked to meet in chambers with the Court and explain our position. This was done in an effort to avoid embarrassment for the trial judge and discuss our ultimate goal – getting the lowest possible sentence for our client.
Ultimately, we withdrew our motion and the judge sentenced our client to three years, which was the minimum mandatory sentence by statute. The judge noted that they could and that the jury fined our client only $1. Therefore, the judge was comfortable in sentencing our client to the three years recommended in the guidelines.
All case results depend on a variety of factors unique to each case. These prior case results do not guarantee or predict a similar result in any future case.
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October 20, 2011 by Allan
This is one subject that deserves talking about. We all can support a law which punishes those who try to injure those who protect us from criminals. But as is often in legal matters what you see is not what you get. The Va. Code Section involved is 18.2-57. You should check it out. It covers all kind of assaults. Various catagories for various “victims” If you are a law enforcement officer an assault is a felony carrying up to 5 years in ptison with 6 months a mandatory minimum sentence. That means 6 months to serve, no probation, nor parole, you will do the time. For teachers, a misdemeanor (guess that they’re not so important or as vulnerable). It’s two days mndatory minimum. Health care providers involves misdemeanor treatment, with two days mandatory minimum.
The law enforcement provision includes corrections officers, firemen, regular or volunteer, plus rescue squad workers. Interesting but not so bad. But note this.
Our courts have interpreted assault to mean swings at police officers that miss, minor taps, and sometimes gestures no injury is required. Yes, it’s true, on October 18, 2011, the Virginia Court of Appeals affirmed a decision of the Virginia Beach Circuit Court which found a woman guilty of felony assault when she attempted to kick a police officer, but missed. You say What? I say under a very broad view of assault, you don’t need to connect. Close is good enough, like horseshoes. That means a felony conviction 6 montha to serve no matter what.
The lesson here is treat an arresting officer with kid gloves. He has the power to mess up your life for good. Remember my past blog on what is a “verity.”
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October 11, 2011 by Allan
Now here’s a subject for you. Unless you happen to be a Habitual Offender yourself, it’s hard to understand what this law is all about. The State of Virginia keeps records on driver convictions. If you get enough of qualifying convictions, the DMV will determine that you are a Habitual Offender and suspend your drivers license. They write a letter to you telling you this. Usually the convictions are for suspended permit, no permit and DUIs. The great majority of these HOs are people who are convicted of driving while their permit has been suspended. Usually, the permit is suspended for failing to pay fines and costs for other convictions. Getting technical here.
In any case, if you drive anyway and get caught it’s a misdemeanor. Usually no active jail. But getting caught a second time is really rough. It is a felony with a mandatory minimum sentence of one year. That’s right folks 85% of one year for driving when you are not supposed to. When you’re in the “Big House” and your cellmate asks you what you’re in for, you can say “driving after being declared a habitual offender – second offense”. Yeah, that will impress the guys doing hard time.
Amandatory minimum sentence means that the Judge trying your case must give you 1 year to serve whether he likes it or not. This sentence can not be suspended. No probation, just do the time. Bring lots of reading material with you. And when you get out, worse news, you are a convicted felon, no more voting, no job other than manual labor, and no firearms for you.
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