Michael A. LEWIS, Jr. v. Brian A. KEI, et al.
Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE and MIMS, JJ., and RUSSELL and KOONTZ, S.JJ.
In this appeal, we consider whether the circuit court erred when it sustained a demurrer to an amended complaint alleging malicious prosecution, false imprisonment, and defamation against the law enforcement officer who obtained a warrant for the arrest of the plaintiff based upon a citizen's complaint that ultimately proved to be unfounded.
Our consideration of the issues presented is guided by the well-established principle of appellate review that “[a] demurrer tests the legal sufficiency of facts alleged in pleadings, not the strength of proof. We accept as true all facts properly pleaded in the ․ complaint and all reasonable and fair inferences that may be drawn from those facts.” Glazebrook v. Board of Supervisors of Spotsylvania County, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003). Additionally, when, as here, a circuit court sustains a demurrer to an amended complaint that does not incorporate or refer to any of the allegations that were set forth in a prior complaint, “we will consider only the allegations contained in the amended pleading to which the demurrer was sustained.” Yuzefovsky v. St. John's Wood Apartments, 261 Va. 97, 102, 540 S.E.2d 134, 136 (2001).
In an amended complaint filed September 14, 2009 in the Circuit Court of Prince George County, Michael A. Lewis, Jr., a general contractor, alleged that on August 1, 2008 he was working on a project in a residential neighborhood in Prince George County. While Lewis was sitting in the driver's seat of his parked truck talking with a customer on his cellular phone, T.H., a ten-year old child, approached Lewis and asked if Lewis could give him a ride home because he lived a good distance away and it was a hot day. Although Lewis did not know T.H., he agreed to give him a ride home. T.H. got into the cab of the truck while Lewis was still talking on his phone.
Just as T.H. got into the truck, Cedrick Williams, who did not know either Lewis or T.H., came out of his home and approached Lewis' truck. Despite not having overheard the conversation between Lewis and T.H., Williams yelled at the child to get out of the truck and told Lewis that he was calling 911. Once T.H. got out of the truck, Lewis explained the circumstances to Williams and then drove away. Thereafter, Williams called 911 and spoke with emergency dispatch personnel regarding the incident, reporting that he had witnessed an attempt by Lewis to abduct T.H.
At 11:00 p.m. on August 1, 2008, a local television station reported that the Prince George County Police Department was “on the hunt” for a suspect “who tried to kidnap a 10–year–old, had it not been for a neighbor who intervened.” Lewis alleged that the television station obtained this information from either Williams or Lieutenant Brian A. Kei of the Prince George County Police Department.
On August 7, 2008, Kei obtained an arrest warrant for Lewis on a charge of abduction of T.H. in violation of Code § 18.2–47. Despite the fact that six days had passed and Kei had T.H.'s name and address, Kei had not interviewed the child, his guardians, Lewis, or Williams. Rather, he relied solely on Williams' statement to the 911 dispatcher in obtaining the arrest warrant. Subsequently, Lewis was arrested on the warrant.
Lewis alleged that on August 8, 2008, Kei published a notice on the County's website which was titled “Arrest made in Prince George Abduction Case.” The notice identified Lewis by name, contained a photograph of Lewis, and represented that Lewis had been “arrested in connection with the abduction of a 10 year old Prince George child that occurred last Friday.” The notice remained on the website for several months after the charge against Lewis had been expunged.
Lewis was held for forty-one days in the Riverside Regional Jail. Twice, Lewis was denied bail. Eventually, Lewis' attorney met with the Assistant Commonwealth's Attorney assigned to the case and requested that she speak with T.H. regarding the incident. After the Assistant Commonwealth's Attorney spoke with T.H. and verified Lewis' version of the incident, the charges against Lewis were dismissed by nolle prosequi. Upon Lewis' petition, the Prince George Circuit Court expunged the record of the arrest on October 29, 2008.
In the amended complaint, Lewis sought damages from Williams and Kei for malicious prosecution, false imprisonment, and defamation. Kei, by counsel, filed a demurrer to the amended complaint on September 21, 2009.1 Kei's principal contention in support of his demurrer was that neither the malicious prosecution nor the false imprisonment claims could be sustained because the allegations of the amended complaint showed that Lewis' arrest was founded upon adequate probable cause. Kei contended that there was no express allegation that he had any actual malice toward Lewis in pursuing his arrest. Kei further contended that the claim for defamation could not be sustained because the statements attributed to Kei either were not verbatim quotes attributable to Kei, or if they were, they either were objectively true or statements of opinion. Kei also maintained that any statements made to the magistrate or in the course of the criminal proceedings against Lewis were subject to an absolute privilege afforded to statements made as part of a judicial proceeding. On September 23, 2009, Williams, pro se, filed a pleading adopting the argument of Kei's demurrer by reference.
Lewis contends that the circuit court erred because the amended complaint adequately stated all three causes of action. We will address the adequacy of the amended complaint's allegations to support claims for malicious prosecution, false imprisonment, and defamation against Kei in turn.
In an action for malicious prosecution, the plaintiff must prove four elements: that the prosecution was (1) malicious; (2) instituted by or with the cooperation of the defendant; (3) without probable cause; and (4) terminated in a manner not unfavorable to the plaintiff. O'Connor v. Tice, 281 Va. 1, 7, 704 S.E.2d 572, 575 (2011); Baker v. Elmendorf, 271 Va. 474, 476, 628 S.E.2d 358, 359 (2006). The second and fourth of these elements are not at issue in this appeal. Actions for malicious prosecution arising from criminal proceedings are not favored in Virginia and the requirements for maintaining such actions are more stringent that those applied to other tort cases to ensure that criminal prosecutions are brought in appropriate cases without fear of reprisal by civil actions. O'Connor, 281 Va. at 7, 704 S.E.2d at 575; Ayyildiz v. Kidd, 220 Va. 1080, 1082–83, 266 S.E.2d 108, 110–11 (1980).
In his amended complaint, Lewis asserts that Kei's arrest constitutes malicious prosecution because it was instituted without probable cause, despite the fact that a magistrate issued an arrest warrant. Lewis asserts that Kei could not have had a good faith basis to believe that Lewis was guilty of abduction because he relied solely on Williams' complaint, as relayed to Kei by the 911 dispatcher, and he did not conduct any investigation prior to seeking the warrant for Lewis' arrest. Because Kei did not make a full, accurate, and honest disclosure to the magistrate of these facts when obtaining an arrest warrant, Lewis contends that Kei acted maliciously because malice may be inferred from the lack of probable cause. Reilly v. Shepherd, 273 Va. 728, 733, 643 S.E.2d 216, 219 (2007).
The amended complaint contains the express statement that “[t]he prosecution of Lewis was malicious. It was instituted by the defendants without probable cause.” However, Lewis' assertion that Kei lacked probable cause to seek a warrant for his arrest is a legal conclusion, not a statement of fact, and “ ‘a demurrer does not admit the correctness of the pleader's conclusions of law.’ “ Dodge v. Randolph–Macon Woman's College, 276 Va. 1, 5, 661 S.E.2d 801, 803 (2008) (quoting Fox v. Custis, 236 Va. 69, 71, 372 S.E.2d 373, 374 (1988)).
We have defined probable cause as “knowledge of such a state of facts and circumstances as excite the belief in a reasonable mind, acting on such facts and circumstances, that the plaintiff is guilty of the crime of which he is suspected.” Commissary Concepts Mgmt. Corp. v. Mziguir, 267 Va. 586, 589–90, 594 S.E.2d 915, 917 (2004) (internal quotation marks omitted); see also O'Connor, 281 Va. at 9, 704 S.E.2d at 576. Whether probable cause existed is determined as of the time when the action complained of was taken. Commissary Concepts Mgmt. Corp., 267 Va. at 590, 594 S.E.2d at 917; see also O'Connor, 281 Va. at 9, 704 S.E.2d at 576.
Viewing the allegations of the amended complaint as a whole, we do not find that Lewis alleged facts sufficient to support the legal conclusion that Kei did not have probable case to seek the arrest warrant or that Kei, rather than Williams, was motivated by any personal or generalized animus toward Lewis. The amended complaint clearly states that Kei relied on the statement by Williams, who claimed to be an eyewitness to incident, when obtaining an arrest warrant for Lewis.
Police may rely on the statement of a reported eyewitness as establishing probable cause to seek an arrest. See Reilly 273 Va. at 732–34, 643 S.E.2d at 218–19 (finding that probable cause existed when the arresting officer obtained a warrant based on a positive identification of a suspect by an eyewitness); see also Brice v. Nkaru, 220 F.3d 233, 238–39 (4th Cir.2000) (citing Gramenos v. Jewel Cos., 797 F.2d 432, 434 (7th Cir.1986) ( “Police often arrest suspects on the basis of oral reports from witnesses.”)). In this case, Kei relied on the report of a 911 dispatcher who stated that Williams witnessed Lewis attempting to kidnap a ten-year old child. Kei had no reason to believe that the 911 report was false. While Kei did not perform any further investigation prior to seeking the arrest warrant from the magistrate, this fact alone does not establish that Kei acted in bad faith or with malice toward Lewis. Accordingly, we hold that the circumstances known to Kei as alleged in the amended complaint were sufficient to “excite the belief in a reasonable mind” that there was probable cause to believe that Lewis had committed the offense of abduction, and, thus, the circuit court did not err in sustaining Kei's demurrer to the claim against him for malicious prosecution.
In his complaint, Lewis states that “Kei ․ knew, or with minimal diligence, could have easily discovered that Lewis did not commit any crime on August 1, 2008.” However, this allegation is not sufficient to establish a prima facie case of false imprisonment. As we have already indicated, Kei had sufficient, if minimal, probable cause to obtain the warrant, properly issued by the magistrate, under which Lewis was arrested. Thus, we hold that Kei did not falsely imprison Lewis, and the circuit court did not err in sustaining Kei's demurrer with respect to the claim for false imprisonment.
In order to assert a claim of defamation, the plaintiff must first show that a defendant has published a false factual statement that concerns and harms the plaintiff or the plaintiff's reputation. Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 46, 670 S.E.2d 746, 750 (2009). The plaintiff also must show that the defendant knew that the statement was false, or, believing that the statement was true, lacked a reasonable basis for such belief, or acted negligently in failing to determine the facts on which the publication was based. Id. When a plaintiff asserts that the defendant acted negligently, the plaintiff must further prove that the defamatory statement made apparent a substantial danger to the plaintiff's reputation. Id.
“Expressions of opinion, however, are constitutionally protected and are not actionable as defamation.” Id. at 47, 670 S.E.2d at 750. Therefore, in evaluating a demurrer to a claim of defamation, a trial court “must determine as a matter of law whether the allegedly defamatory statements contain provably false factual statements or are merely statements of opinion.” Id. “When a statement is relative in nature and depends largely on a speaker's viewpoint, that statement is an expression of opinion. Factual statements made in support of an opinion, however, can form the basis for a defamation action.” Id. at 47, 670 S.E.2d at 751 (internal citations omitted).
“In determining whether a statement is one of fact or opinion, a court may not isolate one portion of the statement at issue from another portion of the statement. Rather, a court must consider the statement as a whole.” Id. (internal citations omitted). In other words, in considering whether a plaintiff has adequately pled a cause of action for defamation, the court must evaluate all of the statements attributed to the defendant and determine whether, taken as a whole, a jury could find that defendant knew or should have known that the factual elements of the statements were false and defamatory.
In his amended complaint, Lewis alleged that Kei made several false factual statements. Specifically, Lewis attributes to Kei the statements from the County's website that the child was “approached” by Lewis and that Lewis “ordered the victim into the van;” that a “neighbor” “foiled” Lewis' attempt to “escape with the child;” and that Lewis had been “arrested in connection with the abduction of a 10 year old Prince George child that occurred last Friday.” The amended complaint further alleges that on August 9, 2008, Kei told the Progress–Index “I think it's a good day since we got this guy in custody and hopefully everyone can rest a little bit easier.” Kei further stated, “The more the juvenile declined, the suspect [Lewis] became more angry and began yelling at the juvenile.” The amended complaint also alleges that Kei knew that the statements he made were false, that he acted recklessly in making the statements, that he lacked any good faith basis for the statements, and that Kei knew the statements made on the County website would be re-published by the news organizations.
When considered individually, many of the statements attributed to Kei cannot sustain a claim of defamation because they are objectively true when considered in the light of other allegations within the amended complaint. For example, it was objectively true, at least at the time Kei was alleged to have made the statements, that Lewis had been arrested in connection with an alleged abduction .3 However, other statements attributed to Kei, such as the assertion that Lewis “approached” T.H., are subject to being proven false, and a jury could find that Kei was negligent in making these statements based solely upon Williams' 911 report without conducting any follow-up investigation.
Likewise, we cannot say that the statements attributed to Kei by the Progress–Index are objectively true or matters purely of opinion when considered under the standard applicable to the sustaining or overruling of a demurrer to a claim for defamation. The complaint specifically alleges that Kei had no basis for asserting that Lewis was “angry” or “yelling” at T.H. Likewise, the statement “it's a good day since we got this guy in custody and hopefully everyone can rest a little bit easier,” while arguably a statement of opinion, could, in light of the other statements attributed to Kei, be considered an implicit assertion of Lewis' guilt of, or a least a propensity to commit, serious offenses against children.
In addition to proving that Kei knew or should have known that these statements concerning Lewis were false, to be defamatory they also must “concern[ ] and harm[ ] [Lewis] or [his] reputation.” Hyland, 277 Va. at 46, 670 S.E.2d at 750. The false accusation of the commission of a criminal act generally is sufficient to establish an injury to the plaintiff's reputation. See, e.g., WJLA–TV v. Levin, 264 Va. 140, 153, 564 S.E.2d 383, 390–91 (2002). Indeed, an action for defamation based upon an accusation of criminal conduct may be maintained even when the plaintiff actually has been charged with the offense, entered a plea of no contest, and is convicted and sentenced for the crime. Parson v. Carroll, 272 Va. 560, 566, 636 S.E.2d 452, 455 (2006). Whether, and if so to what extent, a false accusation has injured the plaintiff or his reputation generally is a matter for the jury. We hold that the allegations of the amended complaint adequately allege an injury to Lewis' reputation arising from Kei's statements.
Given the posture of this appeal, the issue is not whether Lewis will be able to establish to the satisfaction of a jury that these statements defamed him, but whether the circuit court should have afforded him the opportunity to do so. Because the amended complaint was adequate to state a basis upon which, if proven to the satisfaction of the jury, Lewis could assert a claim for defamation against Kei, we hold that the circuit erred in sustaining Kei's demurrer as to that claim.
For these reasons stated, we will affirm the circuit court's judgment sustaining Kei's demurrer to the malicious prosecution and false imprisonment claims. We will reverse the circuit court's judgment sustaining the demurrer to the defamation claim, and remand the case for further proceedings consistent with the views expressed in this opinion.
1. Kei also filed an answer and asserted affirmative defenses to the complaint, including a plea of sovereign immunity. Because the circuit court sustained the demurrer and dismissed the complaint as to Kei with prejudice, it did not address the issue of sovereign immunity. Accordingly, we express no opinion on that issue.
2. In his notice of appeal, Lewis stated that he was appealing “the final Order entered ․ November 20, 2009 sustaining the demurrer filed by defendant, Brian A. Kei,” and it is this aspect of the circuit court's judgment that is addressed in Lewis' first assignment of error. However, Lewis' petition for appeal included a second assignment of error addressing the circuit court's sustaining, in part, Williams' demurrer as well. During oral argument of this appeal, Lewis' counsel stated that the claim for malicious prosecution against Williams, which remained active following the November 20, 2009 hearing, had been nonsuited and a new action had been filed against Williams limited to that claim. Moreover, counsel stated that this appeal was limited to “everything as it pertains to Officer Kei.” Accordingly, we hold that Lewis has waived his appeal as to the sustaining of Williams' demurrer to the false imprisonment and defamation claims, and we need not address that issue further.
3. Lewis does not expressly assert that Kei had a duty to see that these statements were removed from the County's website after the charges against Lewis were dismissed and the record expunged. Accordingly, we will not express any opinion on that question.
OPINION BY Senior Justice LAWRENCE L. KOONTZ, JR.


Who is a “Key Employee” under the FMLA?
Limits on certain employees’ rights to restoration after taking FMLA leave.
The FMLA provides that an eligible employee is entitled to take medical leave for various reasons, such as a serious health condition, which makes an employee unable to perform the basic duties of his or her job. The FMLA guarantees certain protections to qualifying employees who take FMLA leave. Among these guarantees is the employee’s right to be restored to his or her position or a similar position with the same benefits upon his or her return to work after taking FMLA leave. However, the “key employee” provision in 29 U.S.C. § 2614(b) (http://www.law.cornell.edu/uscode/text/29/2614) provides an exception. The employer is not required to restore an eligible employee if the employee is a key employee (or “highly compensated employee”) and other certain conditions are satisfied.
As defined in 29 C.F.R. § 825.217(a), “A ‘key employee’ is a salaried FMLA-eligible employee who is among the highest paid 10 percent of all employees employed by the employer within 75 miles of the employee’s worksite.” An employer is not required to restore a “key employee” to his or her position upon returning from FMLA leave if three conditions are met: (1) the denial of restoration is “necessary to prevent substantial and grievous economic injury” to the employer’s operations, (2) the employee is notified of the employer’s intent to deny restoration upon the employer’s decision that this injury would occur, and (3) in any case where employee has taken leave, the employee decides not to return to work after receiving this notice. See Regulations.
The idea behind this exception is the recognition that some employees are central to the operation of a business. See 139 Cong. Rec. H 396, 437 (daily ed. Feb. 3, 1993). In limited circumstances, the “employee in question is crucial to the ongoing operation of the employer.” Because of the economic impact on an employer due to the required restoration of a key employee upon returning from FMLA leave, an employer should be entitled to deny these employees automatic restoration. Regulations promulgated by the Department of Labor note that an employee’s restoration “may be denied only when restoration itself – not the employee’s absence – will cause substantial and grievous economic injury.” Kephart v. Cherokee Cnty., N.C., 229 F.3d 1142 (4th Cir. 2000) (unpublished) (citing 29 C.F.R. § 825.218(a)).
Employers have a limited time frame during which they make invoke the exception and must follow specific procedures to do so. An employer must provide written notice to an employee at the time the employee provides FMLA paperwork. In the alternative, notice must be given to the employee as soon as practicable once the employer determines the employee is a “key employee.” The employer must also notify the employee that he or she qualifies as a “key employee” and inform him or her of the potential consequences of that classification. See § 825.219(a). See also Attorney Alan Sklover Article. Thereafter, the employee must be given a reasonable amount of time to return, knowing he or she may no longer have a position upon the end of his or her leave.
Key employees are not limited to CEOs or CFOs of corporations. Court’s have allowed companies to classify a variety of positions as “key employee” positions. For example, a hotel’s executive housekeeper may qualify as a key employee. Oby v. Baton Rouge Marriott, 329 F. Supp. 2d 772, 782 (M.D. La. 2004). The executive housekeeper was the third highest paid hotel employee and was relied on to keep the hotel clean and the customers happy. Id. The hotel needed an immediate replacement, it notified the executive of its intent to replace her, and if forced to reinstate her, the hotel would have suffered grievous economic harm. See id. See also Kephart v. Cherokee County, N.C., 229 F.3d 1142 (4th Cir. 2000) (county tax administrator was a “key employee” and reinstatement to his position after leave would have caused substantial and grievous economic harm to the county).
If you feel that you have been terminated under the key employee exception under the FMLA, you should contact an employment attorney to see if the law was applied correctly. Simply put, every situation must be analyzed individually.


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HAROLD A. LEVENTHAL vs. HYMAN KRINSKY & others.
to the whole of a fund derived from a sale of the mortgaged property and amounting to less than such additional sum due the payee; the guarantor was not entitled to the fund through subrogation to the payee's rights under the note because the payee had not received all that was due him thereunder.
A provision of a promissory note, requiring payment, in addition to principal and interest, of "all costs and all legal expense for the enforcement and collection hereof, such charges in no event to be less than . . . twenty per cent of the aggregate of principal and interest unpaid on this note at the time this note is placed in the hands of an attorney for collection," was valid, and covered not only costs and expense incurred by the payee arising out of an action on the note but also those arising from a proceeding for foreclosure of a mortgage securing the note, a suit brought by the payee upon a guaranty given him against loss in a transaction in which the note originated, and a suit originally brought to preserve the mortgaged property and subsequently prosecuted to determine the rights of the parties to the proceeds of a sale of that property.
BILL IN EQUITY, filed in the Superior Court on October 3, 1947.
The suit was heard by Baker, J.
J. A. Daly, for the plaintiff.
B. Goldman, for the defendant Krinsky.
per cent of the aggregate of principal and interest unpaid on this note at the time this note is placed in the hands of an attorney for collection." This note was secured by a mortgage on the trailers. Krinsky gave his personal note for $39,325 to the trust company. He indorsed the Edwards note and assigned the mortgage to the trust company as collateral security for the payment of his note. The proceeds of this note were used for the final payment on the trailers. Leventhal gave Krinsky a written guaranty against loss. A note of $3,000 of Edwards, Leventhal and Curtin, payable in six months, was given to Krinsky for the use of the money he had invested in the trailers. This $3,000 note was paid by Leventhal.
Edwards succeeded in selling only seventeen trailers, and out of the proceeds paid $7,000 on the principal of the mortgage note and certain other disbursements which were proper, fair and reasonable, and thereafter had no money in its possession that came from the trailer transaction.
Krinsky paid his note at the trust company and received his collateral consisting of the Edwards note and mortgage, and his attorney commenced proceedings to foreclose the mortgage which were later abandoned. A bill in equity was brought on February 27, 1947, by Krinsky against Leventhal on the guaranty given by Leventhal and resulted in a final decree ordering Leventhal to pay Krinsky the unpaid balance of $57,325 on the mortgage note together with interest, which Leventhal finally paid on September 23, 1948. Krinsky v. Leventhal, 323 Mass. 160.
between himself and Edwards and Curtin on one hand, and also an accounting between himself and Leventhal on the other hand and to have the indebtedness of Leventhal to him determined and established. Krinsky, Leventhal and Edwards then entered into a stipulation by which an attorney was authorized to take possession of the trailers in the possession of Edwards and to sell them, which he did, and, after deducting expenses and his own fee for services, he now holds on deposit in savings accounts $10,133.75 awaiting the determination of the rights of the parties in this fund.
The judge found that the note for $64,325 and the mortgage were made by Edwards and indorsed by Curtin as an accommodation maker and indorser, respectively, for the purpose of completing a plan whereby Krinsky and Leventhal could raise the balance of $39,325 for the purchase of the trailers; that Edwards and the administratrix of Curtin, Curtin having died, were not liable on the note or mortgage; that Krinsky does not now seek any personal recovery against Edwards or the administratrix of Curtin; and that during the hearing counsel for Edwards and the administratrix disclaimed any rights in the fund of $10,133.75. He entered a decree, assented to by counsel for Krinsky and Leventhal, dismissing the bill against Edwards and the administratrix of Curtin. Leventhal and Krinsky appealed from a final decree entitling Krinsky to $1,000 of the fund and ordering the balance to be paid to Leventhal.
attacking the validity of the note and Krinsky is estopped from claiming that Leventhal by his guaranty was liable to pay the costs and legal expense described in the note. Black River Savings Bank v. Edwards, 10 Gray 387, 397, 398. Lesberg v. Lesberg, 260 Mass. 216. Sandler v. Silk, 292 Mass. 493, 498. Mellen v. Modern Parlor Frame Corp. 321 Mass. 305, 309.
Edwards and Curtin were not parties in this prior litigation and so were not bound by the issues decided in that suit, but both Krinsky and Leventhal continued to be bound as between them by the decision in the first suit upon the two issues just mentioned. Morse v. Elms, 131 Mass. 151. Butrick, petitioner, 185 Mass. 107, 114. Forbes v. Douglass, 175 Mass. 191. Tait v. Downey, 267 Mass. 422, 429. Restatement: Judgments, Section 79, comment i.
Leventhal contends that as guarantor he is entitled to the security which Krinsky held for the payment of the mortgage note and that, as the note has been paid, he is entitled by way of subrogation to the fund which was derived from the sale of the trailers. All the principal due upon the note together with interest has been paid, by Edwards to the extent of $7,000 and by Leventhal to the extent of the balance of the principal with interest. The note calls for more than the payment of principal and interest in case the maker fails to pay at maturity and the note is put into the hands of an attorney for collection. If this provision of the note is valid, Krinsky has not received all that was due him on the note. Subrogation does not arise in favor of Leventhal until Krinsky, through whose original claim the right to subrogation stems, has been paid in full. Westinghouse Electric & Manuf. Co. v. Fidelity & Deposit Co. 251 Mass. 418, 421. Hill v. Wiley, 295 Mass. 396, 403. United States v. National Surety Co. 254 U.S. 73. Sheldon, Subrogation (2d ed.) Section 127. Restatement: Security, Section 141.
note has been recognized by the Legislature by the enactment of G. L. (Ter. Ed.) c. 107, Section 24, to the effect that the sum payable is certain although it is to be paid with costs of collection or an attorney's fee if payment is not made at maturity. Norwood Morris Plan Co. v. McCarthy, 295 Mass. 597, 603. Reasonable attorney's fees have been frequently recovered where the contract between the parties provides for their payment, as in the case of the foreclosure of mortgages or in agreements of indemnity or contracts to advance money. Montgomery Door & Sash Co. v. Atlantic Lumber Co. 206 Mass. 144. Haczela v. Krupa, 219 Mass. 261. Peterson v. Abbe, 234 Mass. 467. Hartford Accident & Indemnity Co. v. Casassa, 301 Mass. 246. New England Factors, Inc. v. Genstil, 322 Mass. 36, 43.
Morris Plan Co. v. McCarthy, 295 Mass. 597, is implicit that a stipulation in a promissory note for the payment of "a reasonable attorney's fee" is binding upon the maker of the note. In a majority of other jurisdictions, a provision fixing the attorney's fee as a certain per cent of the principal or of the principal and interest has been held to be good, at least unless it clearly appears that it is so unconscionable and oppressive as to amount to a penalty or that it is a device to circumvent the usury statutes. Nothing of that kind appears here. The entire fund which Krinsky seeks to reach amounts approximately to only sixteen per cent of the principal and interest and therefore less than the minimum rate designated in the note. We are of opinion that he is entitled to the fund and the accrued interest in accordance with the terms of the note. See the cases collected in Citizens National Bank v. Waugh, 78 Fed. (2d) 325, 331; Brannan, Negotiable Instruments Law (6th ed.) 136-142; 7 Am. Jur., Bills & Notes, Section 138; 10 C. J. S., Bills & Notes, 565, 566.
personal liability against Leventhal. The costs and expense now sought by Krinsky arose out of and were incidental to the collection of the note, for which he is entitled to be reimbursed in accordance with the terms of the note. Bangs v. Fallon, 179 Mass. 77. Haczela v. Krupa, 219 Mass. 261. John Hancock Mutual Life Ins. Co. v. Casey, 155 Fed. (2d) 229. Brenner v. Plitt, 182 Md. 348. Julian v. American National Bank, 172 Tenn. 602. Merchants & Planters Bank v. Forney, 183 Va. 83.
The final decree is reversed, and a new decree with costs is to be entered establishing the right of Krinsky in the entire fund of $10,133.75 and the accrued interest and ordering the payment of said fund and interest to him.

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In addition to compensation based on the degree of disability, Congress has also authorized additional compensation for certain disabilities. This "special monthly compensation" ("SMC") is intended to compensate claimants for service-connected conditions that involve loss of use or anatomical loss (amputation) of body parts, such as hands or feet, or loss of hearing or sight. SMC can result in significantly more monthly compensation for severely injured veterans.
While a scheduler rating depends on the severity of a condition, SMC for loss of use does not depend on the degree of loss, except that the loss of use must be permanent. The more seriously disabled veteran may be eligible for SMC payments for combinations of anatomical loss or loss of use. In addition, severely disabled veterans may be awarded further compensation for regular aid and attendance needs and for permanent housebound conditions. As SMC has many possible combinations and involves a significant amount of additional compensation, VETSFIRST recommends that severely injured veterans get help in filing their SMC claims from someone experienced in such cases.
"Special Montly Compensation (SMC) is available when, 'as the result of service-connected disability,' a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities." Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114(k)(s)). The Board's determination as to whether a veteran is entitled to SMC is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. Id. (citing Prejean v. West, 13 Vet. App. 444, 447 (2000); Turco v. Brown, 9 Vet. App. 222, 224 (1996)). Section 1114( l ) provides, in pertinent part: if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance, the monthly compensation shall be $3,075. 38 U.S.C. § 1114(l).
VA has promulgated regulations implementing section 1114 relevant to the determination of whether a veteran "is so helpless as to be in need of regular aid and attendance are contained in § 3.352(a)." 38 C.F.R. § 3.350(b)(3); see 38 C.F.R. § 3.351(c)(3) (providing that a claimant is entitled to SMC based on the need for aid and attendance by establishing "a factual need for aid and attendance under the criteria set forth in [38 C.F.R. § 3.352(a)].").
The Court has held that the order in which disabilities are service connected is not relevant to VA's determination of a claimant's eligibility for special monthly compensation under 38 U.S.C. section 1114(s). Whenever a veteran has a total disability rating, schedular or extraschedular, based on multiple disabilities and the veteran is subsequently awarded service connection for any additional disability or disabilities, VA's duty to maximize benefits requires VA to assess all of the claimant's disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to special monthly compensation under section 1114(s). If, after such an assessment, VA determines that the claimant is entitled to special monthly compensation, the effective date of the award of special monthly compensation will be the effective date assigned for the award of benefits for the final disability that forms the relevant combination of disabilities. Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010), as amended (Apr. 21, 2011).
and a need for regular aid and attendance with activities of daily living or a higher level of careall of which must be a result of the veteran's service-connected disabilities.
Ratings under SMC(S) are also available if the veteran is permanently housebound. The VA defines "permanently housebound" as being substantially (as opposed to completely) confined to a dwelling as the result of service-connected disability and it is reasonably certain that that such disability will continue throughout the veteran's lifetime. These kinds of determinations should be made by a physician, whose written opinions or reports in this respect would serve as the best evidence to submit in support of a claim for "s" SMC benefits.