Judge Turk's Legacy Remembered By Lawyers And Judges

All of the local papers ran stories this week about Judge Turk's passing and the fond memories that lawyers and judges had of Judge Turk's unique and warm sense of justice.  Judge Turk, who was appointed by Richard Nixon, served as a federal judge in the Western District of Virginia for 41 years before passing away Sunday evening at age 91.  The News and Advance ran a story with many colorful anecdotes of Judge Turk's merciful rulings and sentencings in criminal cases. 

One of his most famous civil cases was a prison literature case in which Judge Turk struck down a policy that denied inmates access to novels "Ulysses" by James Joyce and "Lady Chatterley's Lover" by D.H. Lawrence, which had been banned because of their sexually explicit passages.  He also presided over the 1981 libel case Jerry Falwell brought against Larry Flynt of Hustler magazine. 

Before becoming a judge, Turk practiced law at the Radford firm of Dalton, Poff and Turk--a firm with three very famous names in the Western District of Virginia.  Ted Dalton, known as Mr. Republican, ran unsuccessfully for Governor of Virginia when the Byrd machine still dominated Virginia politics.  Dalton later was appointed to the federal bench.  His nephew and adopted son, John Dalton, was elected Governor of Virginia in 1977. 

Turk's other law-partner Richard Poff served in the House of Representatives for many years, was the author of the 25th Amendment to the United States Constitution, and was considered for the Supreme Court, prior to Nixon's appointment of fellow Virginian Lewis Powell.  Poff went on to serve on the Virginia Supreme Court.  The federal courthouse in Roanoke, where Judge Turk presided for so many years, was named for Poff.

This legacy continues after Judge Turk's death.  His former law clerk, Glen Conrad, was appointed to replace Judge Turk as a federal judge when he took senior status in 2003.  Judge Turk has two sons who are prominent in the legal community in Southwest Virginia: Jimmy Turk, a high-profile defense attorney in Montgomery County; and Bobby Turk, a Montgomery County Circuit Court Judge.  There are countless members of the legal community in Southwest Virginia that feel a connection to and fondness towards Judge Turk.

Current United States Attorney Timothy J. Heaphy said in a statement: "[Judge Turk's] tradition of shaking hands with defendants after their cases concluded was a perfect manifestation of his essential humanity and his ability to recognize the good in all people, regardless of circumstance."

Judge Turk Dismisses Government Contract Dispute

Judge Turk issued recently issued a ruling dismissing the sole remaining claim in a government contract dispute brought by an individual who was allegedly doing business as a subcontractor for a government contract.  Discovery, however, uncovered that the party to the contract at issue was a limited liability company under the laws of Afghanistan -- not a sole proprietorship.  Therefore, Judge Turk ruled that the breach of contract claim should have been brought on behalf of the company itself and not the individual in a d/b/a capacity. 

A parallel lawsuit brought by the company itself, however, is currently pending and presumably will be allowed to proceed.  Judge Turk declined to consolidate that action with the present action, given that the Court lacked standing.

Judge Turk had previously dismissed claims under the doctrine of quantum meruit and violation of a Federal Acquisition Regulation ("FAR") through non-payments of amounts due.  Judge Turk ruled that the quantum meruit claim was inconsistent with the alleged contract which defendants admitted existed.  Therefore, the parties liabilities should be governed by the contract and not under a theory of implied contract.  Judge Turk also held that there was no private right of action for violation of a FAR.

Summary Judgment For Assignee of Note and Guaranty

On July 26, 2013, Judge Turk entered summary judgment in the amount of $3.2 million in favor of the assignee of a note and personal guaranty.  See City National Bank v. Tress (WDVa 2013).  The defendants had agreed to guaranty the repayment of a note that secured commercial loans made to their LLC.  The LLC, however, soon stopped making payments on the note and went into receivership.  Plaintiff purchased the note and guaranty, but apparently there were problems with how the note was endorsed by the original noteholder.  Defendants, therefore, argued that the personal guaranty was not enforceable since the underlying note was arguably not enforceable by plaintiff.  The Court, however, ruled that under McDonald v. National Enterprises Inc., 547 S.E. 2d 204 (Va. 2001), the guaranty was an independent contract that could be enforced even if plaintiff would not have been able to enforce the note.  The enforceability of the guaranty depended on whether the note had been repaid.  Since the obligation on the note remained outstanding, the personal guaranty could be enforced even if plaintiff could not enforce the note itself.