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Supreme Court of Virginia Opinions and Published Orders

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240012 Johnson v. Clerk, Wise County Circuit Court (ORDER) 08/15/2024 A mandamus petition by an inmate is dismissed in part and granted in part. The writ does not lie against a circuit court clerk because petitioner’s money orders were insufficient to pay the filing fees and the clerk had no duty to file his pleading, see Code § 17.1-275(A)(13). In his second claim, petitioner alleges he mailed to the General District Court a motion for judgment seeking money damages and an affidavit in forma pauperis affirming eligibility for IFP status, attaching an inmate trust account statement for a two-month period. Under the facts and circumstances of this case, the clerk had a ministerial duty to file his pleading, without passing judgment on their validity, under Code § 16.1-86. While Code § 8.01-691 requires a prisoner seeking IFP status to provide the court with a certified copy of his inmate trust account for the preceding 12 months, it does not require submission of the account statement at the time of filing or otherwise provide that tendered action will not be filed without the trust account statement. Accordingly, the clerk had a ministerial duty to file petitioner’s motion for judgment when tendered. Petitioner shall return his motion for judgment and IFP application to the court (if they were returned to him), and a writ of mandamus is issued directing the clerk to receive and immediately file the action. The Clerk of this Court shall certify copies of this order which shall have the same force and effect as if a writ of mandamus were formally issued and served.

230333 Eckard v. Commonwealth 08/01/2024 In an appeal from the Court of Appeals’ affirmance of a conviction on 12 counts of possession of child pornography in violation of Code § 18.2-374.1:1(A)-(B), review is limited to the issue whether the circuit court erred by denying the defendant’s motion to set aside the jury verdict for alleged juror misconduct. In this case, the inadequacy of the appellate record, coupled with defendant’s unsubstantiated arguments in the trial court and on appeal, fully support the opinion of the Court of Appeals that the trial court did not abuse its discretion by denying the motion to set aside the verdict without an evidentiary hearing. Here, reasonable jurists could agree to disagree on whether the motion and exhibits warranted an evidentiary hearing — a trial court could with great care and caution exercise its sound discretion to hold (or not hold) such a hearing in this case. The judgment is affirmed.

230599 Durham v. Commonwealth 08/01/2024 In a criminal appeal raising search and seizure as well as sufficiency of the evidence issues, the searching officer had an objectively reasonable belief that defendant had been sipping alcohol from a cup in his car, coupled with the odor of alcohol and a bottle of liquor observed in a rear footwell, giving the officer probable cause to search the vehicle for further evidence of drinking while driving or even driving under the influence of alcohol. Once inside the passenger compartment, the officer could search every part of the vehicle that might conceal the objects of his search. This allowed him access to the center console, as he reasonably thought that it could contain small, single-serving bottles of alcohol that he referred to as “miniatures.” It was when the officer pushed the button unlatching the console that he encountered a revolver. Overall, these facts, when taken in the light most favorable to the Commonwealth, create a picture consonant with the requirements of probable cause and without offense to the Fourth Amendment. The Court of Appeals’ determination on the motion to suppress was correct, and its sufficiency of the evidence ruling upholding convictions for possession of a firearm by a nonviolent felon under Code § 18.2-308.2 and unlawfully carrying a concealed firearm under Code § 18.2-308 are also affirmed.

220807 Gaskins v. Clarke (ORDER) 07/25/2024 Upon consideration of a petition for a writ of habeas corpus, petitioner’s argument that Code § 53.1-187 requires his Virginia sentence be credited for time spent incarcerated in Maryland is without merit; he has not demonstrated being housed in a state or local correctional facility as defined by Code § 53.1-1 while confined there and has not established entitlement to credit toward his Virginia sentence for that confinement. The further argument that the Due Process Clause requires his Virginia sentence be credited for time he spent incarcerated in Maryland is also without merit. Although Virginia obtained primary jurisdiction over petitioner when it arrested and later convicted him on a charge in Fairfax County, it relinquished that primary jurisdiction when it released him on bail pending appeal. Maryland then obtained primary jurisdiction when it arrested petitioner on the Prince George’s charges. Only after the charges were dismissed did Maryland relinquish that authority. Consistent with these changes in authority, he has received credit for the time spent incarcerated in Maryland after charges were dismissed. Due Process does not require granting credit toward his Virginia sentence for time spent incarcerated on charges subject to Maryland authority. His argument that failure to award the sentence credit would violate the Fifth Amendment’s prohibition on double jeopardy is not properly before this Court as it was not raised in the initial petition and petitioner has not sought nor been granted leave to amend to include this claim. The petition is dismissed.

240105 White v. Dotson (ORDER) 07/18/2024 Upon consideration of a petition for a writ of habeas corpus filed February 9, 2024, a rule to show cause, respondent’s motion to dismiss, and petitioner’s reply, the Court is of the opinion that the motion should be granted and that the petition should be dismissed. Petitioner’s challenge to the failure of the Virginia Department of Corrections to use a particular arrest date as the starting point for his accrual of Earned Sentence Credit is rejected. The plain language of Code § 53.1-202.2(A) shows that petitioner’s eligibility to earn such credit under Code § 53.1-202.3(B) did not begin upon his arrest, but upon his sentencing to serve a term of incarceration for a qualifying felony and his incarceration following a final order of the committing court. He has no statutory or constitutional right to receive sentencing credit for his good behavior while incarcerated. His due process argument fails because he has not established a deprivation of a legitimate, protected interest in his life, liberty, or property, and his equal protection claim is rejected because he has not alleged facts demonstrating treatment different from others similarly situated as a result of intentional or purposeful discrimination. Accordingly, the petition is dismissed, and the rule is discharged.

230521 Page v. Portsmouth Redevelopment & Housing Authority 07/03/2024 The circuit court and the Court of Appeals of Virginia erred in concluding that the doctrine of sovereign immunity bars a claim by a property owner against the Portsmouth Redevelopment and Housing Authority (“PRHA”), on the grounds that it had negligently damaged a building that he owned when demolishing its own structure. It is here held that sovereign immunity does not shield PRHA from tort liability under the circumstances of this case. In sum, the Court of Appeals erred in applying the approbate-reprobate doctrine to limit plaintiff’s argument on appeal and in affirming the circuit court’s holding that sovereign immunity barred his negligence claim against PRHA. The judgment is reversed, and this case is remanded to the Court of Appeals with instructions to further remand the case to the circuit court for additional proceedings consistent with this opinion.

240352 School Board of Stafford County v. Sumner Falls Run, LLC (ORDER) 07/03/2024 In a suit against a county school board and the Virginia Department of Transportation, on interlocutory appeal under Code § 8.01-670.2, the judgment is reversed. The Declaratory Judgment Act itself does not expressly waive sovereign immunity and this Court has never held that it waives such immunity. Sovereign immunity can bar a declaratory action against the Commonwealth unless the General Assembly has made its intent clear that immunity is waived. The judgment below to the contrary is reversed. Sovereign immunity does not bar a declaratory action based on a self-executing provision of the Constitution of Virginia, but only if the case presents a justiciable controversy – involving specific adverse claims based on present, not future or speculative, facts ripe for judicial assessment. The Act does not give courts authority to render advisory opinions, decide moot or speculative questions. The declaratory judgment sought here does not implicate a self-executing provision of the Constitution, thus the circuit court should grant VDOT’s plea of sovereign immunity. It is not alleged here that defendants are on the cusp of damaging property under Article I, § 11, and no taking has yet occurred. Thus, the action is premature on the takings claim. Plaintiff claims that the School Board plans to take more property than necessary, but it is not clear on the record whether this aspect of the action is premature or justiciable. This case is remanded for further proceedings consistent with this order and longstanding principles of justiciability for declaratory judgment actions. Combined case with Record No. 240353

240353 Virginia Department of Transportation v. Sumner Falls Run, LLC (ORDER) 07/03/2024 In a suit against a county school board and the Virginia Department of Transportation, on interlocutory appeal under Code § 8.01-670.2, the judgment is reversed. The Declaratory Judgment Act itself does not expressly waive sovereign immunity and this Court has never held that it waives such immunity. Sovereign immunity can bar a declaratory action against the Commonwealth unless the General Assembly has made its intent clear that immunity is waived. The judgment below to the contrary is reversed. Sovereign immunity does not bar a declaratory action based on a self-executing provision of the Constitution of Virginia, but only if the case presents a justiciable controversy – involving specific adverse claims based on present, not future or speculative, facts ripe for judicial assessment. The Act does not give courts authority to render advisory opinions, decide moot or speculative questions. The declaratory judgment sought here does not implicate a self-executing provision of the Constitution, thus the circuit court should grant VDOT’s plea of sovereign immunity. It is not alleged here that defendants are on the cusp of damaging property under Article I, § 11, and no taking has yet occurred. Thus, the action is premature on the takings claim. Plaintiff claims that the School Board plans to take more property than necessary, but it is not clear on the record whether this aspect of the action is premature or justiciable. This case is remanded for further proceedings consistent with this order and longstanding principles of justiciability for declaratory judgment actions. Combined case with Record No. 240352

230410 Powell v. Knoepfler-Powell 06/27/2024 In an appeal from the decision of the Court of Appeals affirming a circuit court judgment denying a motion to modify the custody arrangement between divorced spouses, the trial court erred by relying on the uncorroborated portions of a child’s notes in determining whether it was in the child’s best interests to modify the custody arrangement. Accordingly, the portion of the Court of Appeals decision that affirmed the judgment of the trial court is reversed and this matter is remanded with instructions to remand the case to the trial court for reconsideration, in light of the present decision. Additionally, as noted in the Court of Appeals’ opinion, the trial court should also address the clerical errors in the child custody and support order regarding the ex-wife’s residential address and ex-husband’s work telephone number.

230327 Bland-Henderson v. Commonwealth 06/20/2024 In the appeal of a criminal case, the Court of Appeals did not err in applying Code § 19.2-295 by affirming the circuit court’s denial of an untimely request for jury sentencing, because the defendant had waived his right to jury sentencing by missing the statutory deadline to request it. However, there is no presumption that “shall” commands directed at private litigants are mandatory. Regarding voir dire, the Court of Appeals did not err under the provisions of Code § 19.2-262.01 in affirming the circuit court’s decision to prohibit the defendant from questioning the jury panel about the mandatory minimum sentence, because voir dire on sentencing ranges is irrelevant to a juror’s fitness to serve, when the jury will not be sentencing the defendant. The judgment is affirmed.

230491 Board of Supervisors v. Leach-Lewis 06/20/2024 In an appeal involving a county zoning ordinance provision, the judgment of the Court of Appeals of Virginia holding that a county Board of Zoning Appeals was required to consider whether search of a residence, conducted by a zoning official who was investigating a zoning violation, complied with the Fourth Amendment, is reversed. The proceeding at issue, a review of a notice of violation of a zoning ordinance, was a civil proceeding, and the BZA was not required to examine the constitutionality of the search underlying the notice of violation. It is further concluded that the residences in question were being used as an “office” as that term is defined in the zoning ordinance. Accordingly, the judgment of the Court of Appeals is reversed, and final judgment is entered on this appeal in favor of the county.

230625 Westrick v. Dorcon Group, LLC (ORDER) 06/06/2024 There is no reversible error in the judgment of the Court of Appeals, applying a narrow interpretation of the term “modify,” and concluding that a paragraph a deed of subdivision did not permit adding add new restrictions to certain lots. Restrictive covenants on land are not favored and must be strictly construed, and when the terms of a restrictive covenant are clear and unambiguous, the language used will be taken in its ordinary signification, and the plain meaning will be ascribed to it. Any ambiguity in the disputed term must be strictly construed against the appellants, in a manner that avoids the imposition of additional restrictions, and appellants cannot rely on a provision that addresses a “change” to the deed of subdivision to justify the challenged amendment. While a restrictive covenant may include a provision establishing a mechanism by which the parties, or some number of them, may modify or terminate the restriction, here the pertinent provision of the deed of subdivision did not permit the appellants to impose the new restrictions set forth in the challenged amendment, and the lot owner never agreed to the new restrictions. Under these circumstances, the challenged amendment and the new restrictions are invalid and unenforceable. The judgment of the Court of Appeals is affirmed. This order shall be published in the Virginia Reports and certified to the Court of Appeals and the Circuit Court of Loudoun County.

230403 Thomas v. Commonwealth 05/30/2024 In a criminal case begun with a charge of aggravated malicious wounding of the victim with a razor-knife, desiring to dispose of the case expeditiously as an uncontested matter due to the onset of the COVID-19 pandemic, the parties agreed to a new plea agreement in early May of 2020 after their first plea agreement, reached in January of 2020, was neither accepted nor rejected by the trial court. When the trial court became aware of the second plea agreement, which had been accepted by a judge designate, the original trial court judge demanded that the first plea agreement be enforced, despite the parties having withdrawn their assent to that agreement and the original trial court judge having neither accepted nor rejected that agreement. The trial court’s insistence upon and eventual implementation of a plea agreement that the parties had revoked was reversible error because parties are free to modify or renegotiate a plea agreement when a court has not yet accepted the agreement. Accordingly, the Court of Appeals erred in affirming the trial court. Therefore, the judgment of conviction is vacated, and the judgment of the Court of Appeals is reversed. The case is remanded to the Court of Appeals with direction to remand the case to the trial court for further proceedings consistent with this opinion, and upon remand, the parties will be returned to the status quo ante: an indictment for aggravated malicious wounding.

230260 Carter v. Wake Forest 05/09/2024 In an appeal from the decision of the Court of Appeals of Virginia that the Circuit Court for the City of Martinsville lacks personal jurisdiction over Wake Forest University Baptist Medical Center and Wake Forest University Health Sciences (collectively, “Wake Forest”), it is concluded that the defendants did not purposefully avail themselves of the privilege of conducting activities in Virginia. It is undisputed that Wake Forest’s contacts with Virginia were in response to telephonic or electronic communications initiated by plaintiff while she was in Virginia. Decedent did not rely on solicitations or advertisements by Wake Forest in deciding to seek treatment in North Carolina, and all of his appointments with the Wake Forest doctors occurred in North Carolina. In other words, plaintiff and her father were the sole link between Wake Forest and Virginia. This is an insufficient basis to establish personal jurisdiction over the non-resident defendants. A mere reaction or response to a message or telephone call, without more, is not purposeful availment. As the Supreme Court has stated, while a defendant’s contacts with the forum State may be intertwined with his transactions or interactions with the plaintiff, a defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction. Here, the communications between plaintiff and Wake Forest are more aptly characterized as isolated or attenuated and are insufficient to give rise to jurisdiction. The judgment of the Court of Appeals is affirmed.

230365 Montalla, LLC v. Commonwealth 05/09/2024 The Court of Appeals erred in concluding that the doctrine of sovereign immunity barred portions of the plaintiff’s complaint against the governmental defendants relating to construction inspection services, and that the doctrine of accord and satisfaction barred the remainder. On this appeal, no opinion is expressed upon the ultimate merits of plaintiff’s contract claims, and it is simply held that sovereign immunity does not preclude a circuit court from resolving those claims. Furthermore, in concluding that the Court of Appeals, at this stage of the proceedings, erred in finding that the settlement agreement barred portions of the complaint, no opinion is expressed as to whether accord and satisfaction might act as a bar once evidence is taken, and plaintiff is no longer entitled to the benefit of all reasonable inferences being drawn in its favor. That is a question to be answered on remand. Accordingly, the judgment of the Court of Appeals is reversed, and this matter is remanded to the Court of Appeals with direction that this case be remanded to the circuit court for further proceedings consistent with this opinion.

230511 Commonwealth v. Garrick 05/09/2024 In an appeal from convictions for possession of heroin and possession of a firearm by a violent felon, the Court of Appeals erred in concluding that the evidence was insufficient to support a finding of constructive possession of the narcotics and the weapon. The judgment of the Court of Appeals is reversed and the judgment of the trial court convicting the defendant on both charges is reinstated.

240270 Leggett v. The Sanctuary at False Cape Condo. Ass'n. (ORDER) 05/02/2024 In a dispute between condominium unit owners and their Condominium Association and Board of Directors, the circuit court abused its discretion in a March 14, 2024 order, by erroneously determining that Code § 8.01-189 precludes an award of injunctive relief in a declaratory judgment proceeding, even if the standards for injunctive relief are met. Code § 8.01-189 is explicitly limited to those suits “brought merely to obtain a declaration of rights,” and makes clear that pendency of such suits does not, without more, provide a basis for injunctive relief. Missing from Code § 8.01-189 is any language suggesting that injunctive relief to which a litigant otherwise would be entitled is precluded if that litigant also has filed a declaratory judgment action. Absent a clear manifestation by the General Assembly of an intention to abrogate the circuit court’s ability to grant an injunction, its power to do so remains intact. As a result, if a litigant is otherwise entitled to injunctive relief, the fact that a declaratory judgment action is pending does not prevent a circuit court from awarding that relief, and it was an abuse of discretion to hold otherwise. The circuit court’s order denying petitioners’ motion for an injunction is reversed, and this matter is remanded to the circuit court to consider the merits of petitioners’ request for an injunction. This order shall be published in the Virginia Reports and certified to the Circuit Court of Virginia Beach.

230316 Hannah v. Commonwealth 04/18/2024 Considering the defendant’s appeal from a circuit court judgment reimposing the suspended portions of his sentences on one felony conviction and one misdemeanor conviction, in which he challenged the circuit court’s jurisdiction to the hold a probation revocation hearing and the sufficiency of the Commonwealth’s evidence regarding his violation of a condition of probation prohibiting the unlawful use, possession, or distribution of controlled substances or paraphernalia, the judgment of the Court of Appeals concluding that amendments to Code § 19.2-303.1 and § 19.2-306 did not divest the circuit court of subject matter jurisdiction to hear the revocation proceeding and that his arguments were procedurally defaulted by operation of Rules 5A:18 and 5A:20 is affirmed.

230514 Vasquez v. Dotson 04/18/2024 Considering a petition for a writ of habeas corpus in which the petitioner, who pleaded guilty in 2019 to, inter alia, an amended charge of conspiracy to commit a felony, namely, first-degree murder in violation of Code § 18.2-22, asserts that he has a right under the early-release statute, Code § 53.1-202.3, to an early release from prison; the literal text of that statute, when contextually construed using neutral principles of statutory interpretation, demonstrates that it applies to his conspiracy conviction. Petitioner was never convicted of murder in violation of Code § 18.2-32, and because the General Assembly chose not to disqualify conspiracy to commit murder from the calculation of enhanced earned-sentence credits under Code § 53.1-202.3, the petitioner is entitled to these credits and thus to early release from prison. The petition is granted, and a writ of habeas corpus is awarded and issued, ordering that the petitioner be released from custody.

230379 Commonwealth v. Browne (ORDER) 04/11/2024 On an appeal from a judgment rendered by the Court of Appeals of Virginia, the Court is of the opinion that this appeal is moot. At his revocation hearing, the defendant conceded that he violated several conditions of his probation and suspended sentences. This appeal only involves a challenge to the punishment imposed as a consequence of the revocation. Since the defendant has already served the period of active incarceration imposed by the circuit court, this appeal is now moot, notwithstanding the alleged erroneous application of the pertinent provisions of Code § 19.2-306.1. His incarceration cannot be “undone” by the Court – he cannot be ordered to serve a lesser period of incarceration because he has already served the entire period of incarceration imposed by the circuit court. Furthermore, the circuit court’s application of Code § 19.2-306.1 has not caused defendant a continuing injury. The sentencing limitations set forth in Code § 19.2-306.1 only apply to first and second technical violations, and this defendant has already committed more than two technical violations. Thus, the alleged misclassification of the violations at issue in this case can no longer affect him in subsequent revocation proceedings. The defendant’s suspended sentences have been revoked based on at least two prior technical violations, thus the sentencing limitations set forth in Code § 19.2-306.1 will no longer apply to him. Therefore, this Court vacates the memorandum opinion and judgment of the Court of Appeals, reinstates the judgment of the circuit court, and dismisses this case.

230199 Emergency Physicians of Tidewater v. Hanger 04/04/2024 In a medical malpractice case in which plaintiff alleged that the healthcare defendants negligently failed to treat her low blood sodium – causing a seizure, resulting in a traumatic brain injury from a fall – the defendants did not waive their right to appeal the question that the fall could have been caused by other factors, and that the defendants should have been granted a proffered jury instruction supporting their theory of the case. The judgment of the Court of Appeal is reversed, and this matter is remanded to the Court of Appeals for entry of a mandate to the trial court consistent with the opinion herein.

230343 Commonwealth v. Holman 04/04/2024 On the Commonwealth’s appeal from a decision of the Court of Appeals of Virginia reversing a defendant’s conviction for use of a firearm in the commission of a felony, the “approbate and reprobate” doctrine bars the defendant’s attempt to challenge the sufficiency of the evidence on the charge of use of a firearm in the commission of a felony. At trial, the defendant consistently staked out the position that he was not challenging the charge of use of a firearm in the commission of a felony. Counsel stated the defendant was changing his plea to a guilty plea to the offense of unlawful wounding, and the statements of his attorney were part of a deliberate and well-crafted trial strategy designed to forestall a conviction for the charge of aggravated malicious wounding. Having approbated to the charge of use of a firearm in the commission of a felony, the defendant now seeks to reprobate by challenging the sufficiency of the evidence for that charge. The approbate and reprobate doctrine forecloses precisely this kind of conduct. Moreover, under settled law, the approbate and reprobate doctrine precludes resort to the ends of justice exception. Therefore, the judgment of the Court of Appeals is reversed, and final judgment is entered on this appeal in favor of the Commonwealth.

230248 Warren v. Commonwealth (ORDER) 03/14/2024 Upon consideration of the record, briefs, and argument of counsel, the Court is of the opinion that there is no reversible error in the judgment of the Court of Appeals, which held that the circuit court did not err in striking a prospective juror for cause per Va. Code Ann. § 8.01-338, or in excluding evidence pertaining to defendant's proposed necessity defense based on relevance and requiring a defendant to proffer evidence on each element of the necessity defense at the motion in limine. Accordingly, the Court affirms the judgment of the Court of Appeals for the reasons stated in Warren v. Commonwealth, 76 Va. App. 788 (2023).

230323 United Services Automobile Association v. Estep (ORDER) 03/14/2024 Upon consideration of the record, briefs, and argument of counsel, the Court is of the opinion that there is no reversible error in the judgment of the Court of Appeals, holding that there was a tangible nexus between an accident and the insured’s use of a vehicle as a vehicle, as loading the trunk compartment was a legitimate and expected use of it. Accordingly, the Court affirms the judgment of the Court of Appeals for the reasons stated in United Services Auto. Ass’n v. Estep, 77 Va. App. 16 (2023).

220382 Commonwealth v. Smith 02/29/2024 In an appeal from convictions for statutory rape and object sexual penetration of a child under the age of thirteen, the circuit court did not abuse its discretion in the manner in which it addressed the defendant’s multiple requests for expert assistance and, accordingly, the judgment of the Court of Appeals on those issues is reversed. The Court of Appeals’ refusal to dismiss the indictment on the basis of inadvertently recorded video conferences between defendant and his counsel is affirmed, because the record establishes that defendant suffered no prejudice. Finally, it is concluded that the defendant’s mandatory life sentence for the rape of a young child does not infringe the prohibition on cruel or unusual punishment under the Eighth Amendment. The judgment is reversed in part and affirmed in part. Final judgment is entered on this appeal.

230115 McCants v. CD & PB Enterprises, LLC 02/15/2024 In an action for conversion of a collectible automobile, the judgment of the Court of Appeals reversing a jury verdict for the owner against a vehicle repair shop, and one of its part-owners, is reversed, and the jury verdict is reinstated.

220445 Sample v. Commonwealth 02/08/2024 In an appeal from a conviction for the crime of attempted robbery, in which the defendant assigns error to the trial court’s denial of his motion to suppress an out-of-court identification and subsequent in-court identification, and to the denial of a motion to strike the evidence as insufficient, the conviction is affirmed after considering whether a single-photo showup in which the victim identified the defendant was impermissibly suggestive and, even if it were, whether it was nonetheless constitutionally reliable and thus admissible under the totality of the circumstances. It is determined that the evidence presented was sufficient to convict this defendant of attempted robbery. The judgment of the Court of Appeals, affirming the decision of the trial court, is affirmed.

230344 Fary v. Commonwealth (ORDER) 01/18/2024 Upon consideration of the record, briefs, and argument of counsel, the Court is of the opinion that there is no reversible error in the judgment below. The judgment of the Court of Appeals is affirmed for the reasons stated by the en banc majority in Fary v. Commonwealth, 77 Va. App. 331 (2023) (en banc).

211061 Vlaming v. West Point School Board 12/14/2023 In its dismissal of a discharged teacher’s complaint against a school board, a high school principal, an assistant principal, and the superintendent (collectively, the “School Board”), alleging constitutional, statutory, and breach-of-contract claims, the circuit court erred in finding that these counts failed to state legally viable causes of action. The judgment is reversed, and this case is remanded for further proceedings.

211114 Schmuhl v. Clarke 12/14/2023 In this appeal from denial of a petition for a writ of habeas corpus in which it was claimed that trial counsel were ineffective due to an alleged misunderstanding of the law regarding the admissibility of mental state evidence which resulted in petitioner’s inability to present crucial expert testimony regarding his sanity at the time that he committed his crimes, it is apparent that, taken as a whole, trial counsel’s actions in this case amounted to an unsuccessful attempt to extend the existing law to their client’s benefit. The record clearly establishes that trial counsel made a thorough investigation of the law and facts and chose a course of action that they believed had the best chance of success. This is precisely the type of representation that is expected from competent attorneys. Accordingly, it cannot be said that trial counsel’s performance was deficient. The decision of the habeas court denying the petition for such relief is affirmed.

230127 Commonwealth v. Delaune 12/14/2023 When a Commonwealth’s Attorney elects to apply a new, mitigating statute in a criminal proceeding, the Attorney General may not challenge that election on appeal by arguing that the statute at issue only applies prospectively. Thus, in this case, the Attorney General is bound by the Commonwealth’s Attorney’s agreement to proceed under Code § 19.2-306.1. On the merits, subsections (A) and (C) of the statute address the range of punishment a court may impose upon the revocation of a suspended sentence and prohibit imposition of a term of active incarceration based on a first technical violation for drug use. Here, the defendant’s violations of the terms of her probation and suspended sentence by drug use and absconding from supervision constitute technical violations under Code § 19.2-306.1(A). Therefore, the circuit court could not impose a term of active incarceration based on this violation, under Code § 19.2-306.1(C). The defendant’s absconding is automatically classified as a second technical violation under Code § 19.2-306.1(A), thus the circuit court could impose a maximum of 14 days of active incarceration based on this violation, and it erred in ordering 60 days of active incarceration in this case. The judgment of the Court of Appeals is affirmed.

230400 Verizon Virginia LLC v. SCC 11/30/2023 In an appeal by a telecommunications company from a decision by the State Corporation Commission dismissing its petition for a declaratory judgment for lack of subject matter jurisdiction, the contention that the Commission has subject matter jurisdiction over this petition pursuant to Code §§ 33.2-1815(B) and 33.2-1821 is rejected, and the judgment of the Commission is affirmed.

220596 Commonwealth v. Puckett 11/22/2023 In a case where the trial court convicted a defendant of malicious wounding and ordered him to pay restitution to the Virginia Department of Medical Assistance Services (“DMAS”) for a small portion of the victim’s medical bills that DMAS had paid on the victim’s behalf, the judgment of the Court of Appeals holding that the trial court had erred as a matter of law in doing so is reversed. Final judgment is entered on behalf of the Commonwealth on this appeal.

210389 McKeithen v. City of Richmond 10/19/2023 In an as-applied challenge to the constitutionality of the escheat provision of Code § 58.1-3967, where a city obtained a judicial sale of a parcel of property subject to a statutory lien for delinquent taxes and the sale proceeds wholly satisfied the city’s tax lien, the holding of the circuit court that the statute required it to award a portion of the surplus sale proceeds to the city rather than an unsatisfied junior lienor, while required by the text of the escheat provision, nevertheless violates Article I, Section 11 of the Constitution of Virginia concerning the taking of private property. The circuit court erred in failing to so rule, and the case is remanded for proceedings consistent with this opinion.

220536 Moison v. Commonwealth (ORDER) 10/19/2023 Considering defendant’s appeal from his convictions on multiple counts of aggravated sexual battery by a parent under Code § 18.2-67.3 and taking indecent liberties with a child under Code § 18.2-370.1, in which he argued that the circuit court erred in determining that the proffered testimony of a witness indicating that the defendant remained outside of the witness’ home with her for several hours instead of accompanying his two minor daughters inside to sleep constituted inadmissible alibi testimony not timely disclosed pursuant to Rule 3A:11(d)(2), the Court of Appeals erred in addressing the merits of defendant’s argument where the defendant’s assignment of error indicated that the proffered testimony was not evidence of an alibi because it was instead offered to impeach by contradiction the testimony of his daughters, who were the victims. However, defendant never argued at trial that the proffered testimony was offered for impeachment purposes; rather, he only argued that it was not alibi evidence. As a result, defendant’s argument was waived. That portion of the Court of Appeals’ judgment is reversed, but judgment upholding the conviction is affirmed.

220715 Commonwealth v. McBride 10/19/2023 In an appeal by the Commonwealth from a decision by the Court of Appeals of Virginia, it is held that Rule 3A:15 does not preclude the circuit court from reconsidering a motion to strike that was erroneously granted in a criminal case. While the Double Jeopardy Clause imposes some restrictions on a trial court’s authority to reconsider a motion to strike, those limitations do not apply here. Consequently, the judgment of the Court of Appeals is reversed, and final judgment is entered on this appeal in favor of the Commonwealth.

230172 Anderson v. Clarke 10/12/2023 On a petition for a writ of habeas corpus, asserting that the Virginia Department of Corrections (“VDOC”) failed to timely release the petitioner from prison because it undercalculated his earned sentence credits (“ESCs”), pursuant to amendments to Code § 53.1-202.3 adopted by the General Assembly in 2020, the judgment of the circuit court concluding that he was not entitled to immediate release is affirmed.

211071 Monroe v. Monroe 07/20/2023 In a shareholder-derivative suit by the minority shareholder of a closely held Virginia corporation against his wife, the majority shareholder, in which the trial court rejected the derivative claim and imposed sanctions for pursuing it, the plaintiff had standing to appeal the sanctions award entered against him personally as the “plaintiff” under Code § 13.1-672.5. Because the sanctions order violated Rule 1:1, the May 12, 2021 Final Order was the final order in this case, and the order granting sanctions three months later is vacated.

220665 Prease v. Clarke 07/06/2023 On a state prisoner’s petition for a writ of habeas corpus, contending that he was wrongfully denied earned sentence credits on his convictions for attempted aggravated murder that, if awarded, would result in his immediate release from incarceration, the petition is granted. By its plain language, Code § 53.1-202.3 establishes that all inmates are eligible for expanded earned sentence credits unless they were convicted of an offense that is enumerated under subsection A, and here the petitioner was convicted of attempted aggravated murder, which is not one of the enumerated offenses that is ineligible for expanded earned sentence credits under subsection A. Nor is attempted aggravated murder one of the other specifically enumerated offenses ineligible for expanded earned sentence credits under the statute. Thus, there is no basis in the governing statutes for denying the petitioner expanded earned sentence credits on his attempted aggravated murder convictions. The petition is granted, and a writ of habeas corpus is issued to the Director of the Virginia Department of Corrections ordering that this prisoner be released from custody.

220223 Tomlin v. Commonwealth 06/29/2023 The defendant left her 80-year-old mother in a squalid condition lying on the floor of her apartment for at least two days, resulting in her mother’s need for emergency medical care and hospitalization. The trial court convicted defendant of abuse or neglect of an incapacitated adult causing injury in violation of Code § 18.2-369(B). The Court of Appeals affirmed the conviction, as does this Court.

210988 City of Hampton v. Williamson 06/08/2023 In a city’s appeal from a circuit court decision to grant a petition for a writ of mandamus, requiring production of certain documents ancillary to a grievance panel hearing, having provided the grievant with its list of witnesses and a binder with the documents furnished to the grievance panel, the city has clearly met its obligation under Code §15.2-1507(A)(10)(b)(3) and, regardless of whether the city intends to use the documents in the grievance binder, as it originally suggested, or to rely solely on witness testimony, a writ of mandamus does not lie here. The circuit court’s judgment is reversed, and the petition for a writ of mandamus is dismissed.

220378 Walker v. Commonwealth 06/01/2023 In an appeal from a conviction for bank robbery and use of a firearm in commission of robbery, second or subsequent offense under the provisions of Code § 18.2-53.1, the convictions are affirmed. The argument that the Due Process Clause of the United States Constitution requires a court to pre-screen eyewitness identification testimony before the eyewitness can be permitted to make an identification of the defendant for the first time in open court is rejected. In addition, the jury was properly instructed that the defendant was subject to the second or subsequent offense provisions of Code § 18.2-53.1 for using a firearm in the commission of robbery. The convictions are affirmed.

210779 Gloss v. Wheeler 05/18/2023 In a petition for mandamus and injunctive relief brought by two residents of a county alleging a violation of the Virginia Freedom of Information Act (“VFOIA”), the circuit court erred in granting a motion to strike by the defendant Board of Supervisors (“Board”) members on the theory that the gathering at issue – a meeting of the police department’s Citizens Advisory Board – did not constitute a meeting under VFOIA. The judgment of the circuit court is reversed, and this matter is remanded for further proceedings consistent with this opinion.

220072 Oreze Healthcare v. Eastern Shore Community Svcs Board 05/04/2023 In a breach of contract claim relating to a lease of real property, the circuit court erred in holding that the plaintiff’s conveyance of the real property to a third party prohibited it from pursuing a breach of contract claim against the defendant based upon a prior lease agreement for that property between the parties. Plaintiff’s sale of the property to a third party after the lease was terminated did not transfer that claim to the third party as successor in interest simply by execution of the deed. While plaintiff could have assigned its right to the breach of contract claim to the third party, here the deed conveying the property was silent as to that claim and – absent an assignment – the deed could neither extinguish plaintiff’s right to pursue the claim nor transfer the claim to the third party. For the reasons set forth in the present opinion, the circuit court’s judgment is reversed, and the case is remanded for further proceedings.

220643 Brown v. Virginia State Bar 05/04/2023 In an appeal of right from an attorney disciplinary proceeding before a three judge panel, the circuit court’s finding that this lawyer violated Rule 1.7(a)(2) by engaging in sexual relations with his divorce client during the representation is supported by the record, and the finding that he added a fault ground for divorce against his client, as well as other findings of fact with which the lawyer takes issue, are likewise supported by the record. Additionally, the Virginia State Bar, in its assignment of cross-error, merely asked for a reversal and final judgment as to the claimed Rule 2.1 violation, with the previously issued public reprimand on another proven violation extended to encompass the Rule 2.1 violation in the event of a reversal. However, an affirmative finding of a Rule 2.1 violation would require a remand and further sanctions proceeding, which was not requested. Therefore, given that the Bar did not ask for a rules-required remand in the event of a reversal, the Court does not consider the Bar’s assignment of cross-error. As a result, the circuit court’s decision is affirmed.

220116 Suffolk City School Board v. Wahlstrom 04/27/2023 In the plaintiff’s action alleging that a city School Board and two school officials violated the Virginia Freedom of Information Act (“VFOIA”), Code § 2.2-3700 et seq., by denying her free entry to a public meeting of the Board, the trial court did not err in awarding relief to the plaintiff because the Board violated the statute, or in denying her claims against the individual defendants. The case is remanded for determination of the fees and costs she is entitled to recover since she substantially prevailed in the suit.

220034 Williams v. Commonwealth 04/20/2023 The appellant pled guilty to an amended misdemeanor charge for obstruction of justice, and later filed a petition for expungement of the original felony charge of accessory-to-murder charge, which the Commonwealth did not oppose but the circuit court denied. Where a petitioner is convicted of a lesser included offense of the original charge, the original charge does not qualify for expungement. When a charge is not a lesser included offense, inquiry turns on whether it is a completely separate and unrelated charge and the petitioner may occupy the “status of innocent.” Determining whether an amended charge is completely separate is not a mechanical application of the test under Blockburger v. United States, 284 U.S. 299 (1932). Rather, a court should (1) compare the conceptual similarities and differences between the charges and (2) examine whether they share a common nucleus of operative facts. The burden is on a petitioner to show that the original charge, later amended, qualifies as “otherwise dismissed.” Here, the circuit court did not rely on a Blockburger comparison of the elements but on Code § 19.2-231, governing amendment of a charging instrument, to determine whether the amended obstruction of justice charge was completely separate from and unrelated to the original charge. Given this opinion’s clarification of the standard that applies to review of expungement petitions when the claim is that the original charge was “otherwise dismissed,” the judgment below is reversed, and the case is remanded for new consideration of the petition.

220185 DeLuca v. Commonwealth (ORDER) 04/13/2023 The judgment of the Court of Appeals is affirmed for the reasons stated in DeLuca v. Commonwealth, 73 Va. App. 567 (2021), holding that because the testimony of his own counsel was never “prejudicial” to him, the attorney’s role as both lawyer and witness was not automatically prohibited by the lawyer-witness rule, and the attorney acted at all relevant times as the defendant’s counsel, both nominally and in fact, thus this defendant’s right to counsel was not violated. Further, because the record supports the conclusions that, despite his claims at the hearing, the defendant was not mistaken about his reporting obligation when he entered certain pleas, and that the motion to withdraw was filed in bad faith, the trial court did not err in refusing to allow him to withdraw his guilty pleas.

220058 Ranger v. Hyundai Motor America 04/06/2023 In an appeal from the circuit court’s grant of summary judgment in a case arising under Virginia’s “Lemon Law,” Code § 59.1-207.9 et seq., to satisfy the refund requirements under the statute, a manufacturer is not required to pay pre-litigation attorney’s fees. In this case, because the manufacturer’s refund satisfied the requirements of the Lemon Law, the trial court’s grant of summary judgment is affirmed.

220039 Yourko v. Yourko 03/30/2023 In an appeal from a decision in a divorce case on a husband’s motion to amend the final decree, the equitable distribution order, and a Military Pension Division Order (“MPDO”), in which a husband contended that the parties had erred in calculation of his disposable retired pay and, as a result, the MPDO required him to pay approximately 140% of his disposable retirement pay in violation of federal law, and further sought to have the indemnification provisions in the MPDO struck as void ab initio, the Court of Appeals erred in interpreting Howell v. Howell, 581 U.S. 214 (2017) to forbid courts from recognizing indemnification provisions related to military retirement pay in property settlement agreements, and further erred by overruling Owen v. Owen, 14 Va. App. 623 (1992) and its progeny. Regarding division of military retirement benefits, federal law does not prevent a husband and wife from entering into an agreement to provide a set level of payments, the amount of which is determined by considering disability benefits as well as retirement benefits. Nor does federal law bar courts from upholding such agreements or from enforcing indemnification provisions that may be included to ensure that payments are maintained as intended by the parties. The Court of Appeals’ decision is reversed, and the circuit court’s decision dismissing the husband’s motion to amend the final decree is reinstated.

211143 Berry v. Board of Supervisors 03/23/2023 In an appeal by resident taxpayers from a circuit court decision dismissing claims for declaratory and injunctive relief against a county Board of Supervisors, the County’s “Continuity Ordinance” did not authorize the Board to consider and adopt a revised zoning ordinance in an electronic meeting, and neither that Ordinance nor Code § 15.2-1413 conflicted with or superseded VFOIA’s open meeting requirements. Nor did the General Assembly, in 2020 budget enactments, supplant VFOIA’s open meeting requirements or authorize the Board to adopt the zoning modification at meetings conducted by electronic means. The circuit court erred in concluding that the Board’s adoption of the revised zoning ordinance mooted the plaintiffs’ declaratory judgment action and in dismissing the residents’ complaint as premature. Neither the statute, nor the Continuity Ordinance, nor budget enactments by the General Assembly authorized the Board to consider and adopt the zoning modification in meetings conducted by electronic communication means without a quorum of the public body or any member of the governing board physically assembled at one location. Its purported adoption was void ab initio. The judgment below is reversed, and final judgment is entered on this appeal.

211126 Commonwealth v. Barney 03/16/2023 In an appeal from a conviction where the defendant had handed a note to a store cashier demanding money or her life, the cashier took the threat seriously because she saw the defendant place her hand in a pocket and point what appeared to be a handgun at the cashier. A jury convicted the defendant of using a firearm during the commission of a robbery. The judgment of the Court of Appeals (vacating the jury verdict, holding that the jury instructions were flawed and that no rational jury could find that the defendant had a firearm in her pocket) is reversed, rejecting both grounds relied upon by the Court of Appeals. The judgment of the Court of Appeals is reversed, the conviction entered by the circuit court is reinstated, and final judgment is entered for the Commonwealth.

220230 Horn v. Webb 02/09/2023 In litigation between neighboring parties owning land near a lake, the evidence supports the circuit court’s rejection of a claimed prescriptive easement for the defendants to store small watercraft, such as canoes, on the plaintiff’s land, and an award of compensatory damages for such storage is affirmed. However, the judgment is reversed in connection with the claim of a prescriptive easement to dock a boat on the plaintiff’s property. Even if it is assumed that the original docking was permissive, the prior sale of the land vitiated the permission granted by the original owners. No evidence indicates that any of the subsequent owners granted any kind of permission to dock a boat on their land. Defendants established the existence of a prescriptive easement to dock a boat as well as to maintain the electrical wiring and outlet to charge the boat. Finally, award of punitive damages is reversed, because nothing in the record establishes malice on the part of the defendants in filing their own lawsuit to vindicate their property rights. Thus, the judgment is affirmed in part and reversed in part, and the case is remanded for entry of an order consistent with the judgment of this Court.

211021 Morgan v. Board of Supervisors 02/02/2023 In an action by several homeowners seeking declaratory and injunctive relief, claiming that the Board of Supervisors of Hanover County violated Virginia law when it approved rezoning and special-exception requests that authorized construction of a large distribution and warehousing facility nearby, the circuit court erred in finding that the homeowners’ allegations did not allege a sufficient factual basis for standing. The court also erred when it dismissed Counts VI, VII, and VIII on the alternative ground that those Counts asserted speculative claims not ripe for adjudication. No opinion is offered, however, on the merits or demerits of the various claims pleaded by the homeowners or what, if any, judicial relief should be awarded at the conclusion of this case. The appealed judgment is reversed, and the case is remanded.

211226 Colas v. Tyree 01/26/2023 In a case arising from a police detective’s shooting of the decedent, testimony about the circumstances was received from the defendant detective called an adverse witness by the plaintiffs. The detective testified that, when he fired the fatal shot, he was acting in defense of another officer, because the decedent (who was experiencing acute mental distress) had been tackled by that officer, had fallen to the ground, had picked up a knife, and was holding the knife in the air in close proximity to the other officer, who was lying on the ground next to him. The plaintiffs’ own uncontradicted evidence established that the defendant detective was justified in firing the shot. Applying the adverse party witness doctrine, the estate is bound by this uncontradicted evidence. Accordingly, the judgment awarding the plaintiffs damages on a theory of battery is reversed and final judgment is entered for the defendant detective.

210893 Forness v. Commonwealth 01/19/2023 In an appeal from denial of a petition to expunge a felony arrest record, since every driving-while-intoxicated charge implicates the same underlying offense, a violation of Code § 18.2-266, it is clear that Felony DWI and DWI Second involve the same offense but with different sentencing enhancements: the difference between the two charges is one of degree and not of kind. In the present case, amendment of the arrest warrant related only to the sentencing enhancement sought to be imposed, not the underlying offense. Given that the actual offense that petitioner was charged with remained the same, it simply cannot be said that the amendment resulted in a completely separate and unrelated charge. Accordingly, the amendment did not render the original Felony DWI charge “otherwise dismissed” for the purposes of Code § 19.2-392.2, and therefore, the circuit court properly dismissed the expungement petition.

211032 County of Isle of Wight v. International Paper Company 12/29/2022 On remand from the decision in International Paper Co. v. County of Isle of Wight, 299 Va. 150 (2020), the circuit court held that International Paper had established by a preponderance of the evidence that the County’s tax scheme violated the requirement of uniform taxation in the Constitution of Virginia, and it ordered a full refund of the taxpayer’s machinery and tools tax (“M&T tax”) for the applicable year. The County’s appeal from this decision, contending that the circuit court erred in finding its tax scheme unconstitutional, and, in the alternative, that it erred in the relief it granted, is rejected, and the circuit court’s judgment is affirmed across the board.

211033 Morgan v. Commonwealth 12/29/2022 In an appeal from a conviction for carrying a concealed weapon while intoxicated in violation of Code § 18.2-308.012, the rule of lenity applies, an ancient maxim of the law that all such statutes must be construed strictly against the state and favorably to the liberty of the citizen. By enacting this statute, the General Assembly specifically targeted persons permitted to carry concealed handguns and sought to prevent them from carrying a handgun in a public place while intoxicated, it did not envision preventing the transportation of a handgun within a bag located in a vehicle. Rather, the legislature sought something more specific, intending to deter intoxicated individuals from physically carrying a concealed handgun – whether it be in their waistband, pocket, etc. – in and out of public establishments. In this case, the defendant had a valid concealed weapons permit and provided it to the officer during the traffic stop. He did not physically carry the handgun on his person, but rather, the handgun was holstered in a small, zipped backpack on the front passenger seat of his vehicle. Under these facts, this defendant did not “carry” the handgun as contemplated by Code § 18.2-308.012, and his conviction was in error. The conviction is reversed.

211050 Arch Insurance Company v. FCVbank 12/29/2022 In a surety company’s appeal from a circuit court judgment striking its conversion and unjust enrichment claims (after disallowing a forensic accounting asset-tracing expert to testify), the governing legal principle is that when a company obtains a right through subrogation, it is placed in the position of its subrogor and can have no greater rights than those of the subrogor. Both of the surety company’s assignments of error stem from the circuit court’s underlying legal conclusion that it was incapable of demonstrating a priority right to the disputed funds as a matter of law. Because the surety company’s rights were limited to those of its subrogor, a mechanical contracting company, the judgment of the circuit court is affirmed.

211048 Hartford Underwriters Insurance Co. v. Allstate Insurance Co. 12/08/2022 The judgment of the circuit court granting a first amended complaint in interpleader with accompanying prayer for declaratory relief filed by the plaintiff insurer, and apportioning the interpleaded funds, is affirmed.

220004 GEICO Advantage Insurance Co. v. Miles 12/01/2022 In an appeal by two related insurance companies from a decision of the circuit court granting summary judgment to an insured on the issue of whether each of the two insurance policies at issue provided separate tranches of insurance for uninsured motorist (“UM”) coverage and underinsured motorist (“UIM”) coverage, the circuit court erred in its interpretation of Code § 38.2-2206 and the insurance policies. The statute and each of the applicable policies provide only a single tranche of coverage applicable to both UM and UIM claims. The judgment of the circuit court is reversed, and final judgment is entered for the insurers.

220130 Appalachian Voices v. State Corporation Commission 10/27/2022 In an appeal by a nonprofit environmental organization from an order of the State Corporation Commission (“SCC” or “the Commission”) that approved a petition by Virginia Electric and Power Company (“VEPCO”) to obtain a rate-adjustment clause pursuant to Code § 56-585.1(A)(5)(e), the Commission did not fail to apply the proper legal standard to the utility’s request to recover projected costs of purchasing allowances through the Regional Greenhouse Gas Initiative (“RGGI”), a cap-and-trade market regulating CO2 emissions by electric utilities. The judgment of the Commission is affirmed.

210787 The Daily Press v. Commonwealth 10/20/2022 In consolidated appeals challenging three rulings by the circuit court relating to a pending criminal case in which a police officer was indicted for second-degree murder of a suspect during an arrest, and other offenses, three trial court holdings are reversed — barring public access to a pretrial bail hearing, keeping certain motions and exhibits under seal, and finding that the City of Newport News lacked standing to oppose any public access to sealed documents that it had previously produced in response to a subpoena. The proceedings are remanded for further proceedings consistent with this opinion. Combined case with Record No. 210827

210827 City of Newport News v. Commonwealth 10/20/2022 In consolidated appeals challenging three rulings by the circuit court relating to a pending criminal case in which a police officer was indicted for second-degree murder of a suspect during an arrest, and other offenses, three trial court holdings are reversed — barring public access to a pretrial bail hearing, keeping certain motions and exhibits under seal, and finding that the City of Newport News lacked standing to oppose any public access to sealed documents that it had previously produced in response to a subpoena. The proceedings are remanded for further proceedings consistent with this opinion. Combined case with Record No. 210787

210848 Hawkins v. Town of South Hill 10/20/2022 In an appeal from the partial denial of a mandamus petition, turning on the scope of the Virginia Freedom of Information Act (“VFOIA”) personnel information, in which the petitioner requested documents related to employment disputes in the defendant town, as well as attorney’s fees and costs, because the circuit court applied a definition of “personnel information” different from that outlined below, the judgment is reversed and this matter is remanded for the court to review and, if necessary, redact and release the documents at issue. Since the petitioner failed to obtain a ruling from the circuit court as to who, if anyone, was the prevailing party or the issue of attorney’s fees and costs, he has waived those issues on appeal. The judgment is affirmed in part, reversed in part, and the case is remanded.

210972 Williams v. Janson 10/20/2022 In an appeal by owners of land from a circuit court order that they convey it in fee simple after an auction was held, the auction, as advertised, was an auction with reserve because the advertisement did not state that it would be an absolute auction. The owners never explicitly stated that the auction was absolute or without reserve during the pre-auction announcement; nor was any statement made that limited the ability to withdraw the property from sale, reject bids or otherwise nullify the auction. A statement that property will be sold to the high bidder is a mere declaration of intention to hold an auction at which bids will be received. Such statements are usually merely preliminary negotiation, not intended or reasonably understood to affect legal relations, and the owner’s statement was virtually identical to language included in the advertisement, which plaintiff conceded indicated that the auction was an auction with reserve. Accordingly, the circuit court erred in its determination that the auction was an absolute auction, and its judgment compelling conveyance of the property to the plaintiff is reversed. Final judgment is entered for the defendant owners.

210800 Ashland, LLC v. Virginia-American Water Co. 10/13/2022 In an action by a corporate customer of a water supply utility for an alleged breach of contract for the supply of water, the circuit court erred in concluding that Article IX, Section 4 of the Constitution of Virginia deprived the circuit court of jurisdiction to adjudicate the contract claim. The judgment of the circuit court is reversed, and the matter is remanded for further proceedings consistent with this opinion.

210934 Cornell v. Benedict 10/13/2022 In an appeal from the granting of pleas in bar by two individuals associated with a counseling and psychotherapy service – who joined its board of directors during the last months of its operation – the judgment is affirmed. The circuit court did not err in sustaining these individuals’ pleas in bar because Code § 40.1-2 adopts a narrower definition of “employer” than the federal Fair Labor Standards Act, and thus excludes individuals from implied employer liability under Code § 40.1-29(J). The judgment is affirmed.

210935 Taylor v. AIDS-Hilfe Koln e.V. 10/13/2022 The circuit court properly admitted to probate the will of a decedent who held dual citizenship in Germany and in the United States. The court also appointed an administrator for the estate and awarded the proceeds of a brokerage account to a German charity. In review of a challenge to these decisions on a number of grounds, it is concluded that the circuit court properly admitted the will to probate and appointed an administrator for the decedent’s estate. The decision of the circuit court granting relief on Counts II and III of the complaint is reversed and vacated, and final judgment is entered.

210320 AV Automotive, LLC v. Gebreyessus 09/15/2022 In an appeal by automobile dealership entities from a circuit court’s decision to impose sanctions against them under Code § 8.01-271.1, awarding all attorney’s fees claimed by a terminated salesperson, the circuit court was within its discretion to award sanctions against the appellants. However, the circuit court abused its discretion in awarding sanctions for appellants’ failure to notify one of its employees of his expert witness designation and abused its discretion in failing to segregate the sanctionable claim from the attorney’s fees requested. Accordingly, the sanctions award is reversed, and the case is remanded the circuit court for a recalculation of the attorney’s fees commensurate with this opinion.

210501 Fines v. Rappahannock Area Community Services Board 09/08/2022 Examining six attributes pertinent to a determination whether a particular entity occupies the status of a municipal corporation, the defendant board lacks two of the criteria entirely and only possesses some of the characteristics of two others. Prior case law indicates that the more statutory autonomy the entity possesses and exercises the more likely it is to be declared a municipal corporation, and here – when compared to other entities operating under more autonomous statutory authority – the defendant board looks less like a municipal corporation than an auxiliary of the establishing authorities. Here, the circuit court erred in finding that the defendant board possessed sufficient attributes of a municipal corporation. The pivotal point in this case is whether the defendant board is immune from tort liability and case law has consistently described the nature and scope of a claimed immunity as a matter of substantive state law. The circuit court erred in granting the plea in bar, as the defendant is not entitled to sovereign immunity. The judgment of the circuit court is reversed, and the case is remanded for further proceedings.

210391 Appalachian Power Co. v. State Corporation Commission 08/18/2022 In consolidated appeals by an electric power company and the Office of the Attorney General, Consumer Counsel Division, challenging various rulings made by the State Corporation Commission during its triennial review of the power company’s rates, terms, and conditions pursuant to Code § 56-585.1, the Commission erred in finding that it was not reasonable for the company to record its costs associated with early retirement of certain coal-fired power plants as asset impairments. The Commission did not err by implementing depreciation rates from a 2017 depreciation study for the years 2018 and 2019, did not err by refusing to apply Code § 56-585.1(E) retroactively, and did not err in finding that certain of the power company’s affiliate expenses to be reasonable. All remaining issues in both appeals are now moot. For the reasons discussed in the present opinion, the disposition of the Commission is reversed in part and affirmed in part, and this matter is remanded for further proceedings consistent with this opinion. Combined case with Record No. 210634

210634 Office of the Attorney General v. State Corporation Commission 08/18/2022 In consolidated appeals by an electric power company and the Office of the Attorney General, Consumer Counsel Division, challenging various rulings made by the State Corporation Commission during its triennial review of the power company’s rates, terms, and conditions pursuant to Code § 56-585.1, the Commission erred in finding that it was not reasonable for the company to record its costs associated with early retirement of certain coal-fired power plants as asset impairments. The Commission did not err by implementing depreciation rates from a 2017 depreciation study for the years 2018 and 2019, did not err by refusing to apply Code § 56-585.1(E) retroactively, and did not err in finding that certain of the power company’s affiliate expenses to be reasonable. All remaining issues in both appeals are now moot. For the reasons discussed in the present opinion, the disposition of the Commission is reversed in part and affirmed in part, and this matter is remanded for further proceedings consistent with this opinion. Combined case with Record No. 210391

210640 Ames Center, L.C. v. Soho Arlington, LLC 08/18/2022 Claiming the status of a third-party beneficiary of a long-term ground lease, a developer filed a declaratory-judgment action against the lessee of an adjoining property, seeking to resolve conflicting interpretations of a lease provision. After holding that the developer was a third-party beneficiary, the circuit court concluded that its work was done and dismissed the case as having no further justiciable controversies to resolve. The dismissal is reversed, and the case is remanded to the circuit court to resolve the remaining contest over the scope of the developer’s rights as a third-party beneficiary of the lease.

210569 Hill v. Commonwealth 08/11/2022 The circuit court’s disposition, finding a convicted defendant in violation of probation and sentencing him to serve the balance of his previously suspended sentence, is affirmed. The Court of Appeals did not err in affirming the circuit court’s 2020 revocation order. The defendant’s misconduct occurred during an expressly stated period of probation that necessarily implied a corresponding period of sentence suspension. The circuit court’s order was consistent with, not violative of, the revocation power authorized by Code § 19.2-306(A), and the judgment is affirmed.

220113 Haley v. Virginia State Bar 08/11/2022 In an appeal from a decision of the Virginia State Bar Disciplinary Board, no error is found. The Board has broad discretion when imposing sanctions, and on appeal the penalty imposed will be viewed as prima facie correct and will not be disturbed unless it is determined, upon independent review of the record, that the penalty was not justified by the evidence or was contrary to law. Here, the attorney’s 18-month suspension was an appropriate sanction. The evidence established that he engaged in a long pattern of dishonest conduct in multiple jurisdictions and had previously been disciplined for similar forms of misconduct. The Board has the authority to set the effective date of a sanction and, in determining the effective date of a sanction, its decision is subject to review for an abuse of discretion. The Board did not abuse its discretion when it refused to stay the attorney’s suspension under the circumstances of this case.

210530 Commonwealth v. Kilpatrick (ORDER) 08/04/2022 In a prosecution on multiple counts of computer solicitation of a minor in violation of Code § 18.2-374.3(C), the circuit court’s exclusion at trial of expert testimony offered to show that the defendant did not believe he was communicating with a minor, and that he lacked any motive to solicit a minor, if error, was harmless as a matter of law. In this case, the appellant has waived any argument that the claimed error in excluding the defense expert’s testimony violated his due process rights or any other constitutional principle. Thus, the decision may be upheld on the ground that any evidentiary error involved is harmless if it can be concluded that it did not influence the jury or had but slight effect. To reach this conclusion, the evidence of guilt must be so overwhelming that it renders the error insignificant by comparison such that the error could not have affected the verdict. Here, taken as a whole, the evidence of the defendant’s prurient interest in the person he was communicating with was overwhelming and, therefore, the proffered expert testimony on motive would not have influenced the jury or would have had but slight effect. Thus, any presumed error in excluding the expert testimony was harmless. The decision of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.

210568 Coxcom, LLC v. Fairfax County 07/14/2022 Because the Internet Tax Freedom Act (“ITFA”) preempts the county’s collection of Business and Professional Occupational License (“BPOL”) taxes for the sale of internet access services, the judgment of the circuit court is reversed and this action is remanded for a determination of the refund due to the taxpayer.

210509 Patterson v. City of Danville 07/07/2022 In a medical malpractice case against a physician who treated the patient in a city’s adult detention center, the circuit court did not err in concluding that the doctor was entitled to the protection of derivative sovereign immunity as an employee and agent of the governmental body, and that the allegations of gross negligence were insufficient as a matter of law. The judgment dismissing the case on sovereign immunity grounds is affirmed.

210414 City of Charlottesville v. Regulus Books, LLC 06/09/2022 In a challenge to assessment of taxes on an author of legal fiction works under a city’s business, professional and occupational license tax, the freelance writer’s business is not covered by the ordinance, and the circuit court’s judgment ordering the city to refund his tax payments because the ordinance is unduly vague is affirmed on the alternative ground that the ordinance does not apply to this author. The circuit court erred by awarding the writer recovery of costs not essential for the prosecution of the suit and that portion of the judgment is reversed; the case is remanded to the circuit court for deduction of such costs from its award.

210560 Marsh v. Roanoke City (ORDER) 06/09/2022 There is no reversible error in the judgment of the circuit court dismissing a petition for writ of certiorari challenging a board of zoning appeals decision that refused to find that operation of a “halfway house” in the petitioners’ neighborhood violated the local zoning ordinance. The petition – while making reference to “Roanoke City” and “City of Roanoke” – failed to name the Roanoke City Council as a party as required by Code § 15.2-2314. Failure to name the governing body as a necessary party within the 30-day window contemplated by the statute is a defect that, when timely raised, requires dismissal of the petition. The argument that petitioners should be permitted to amend their complaint under Code § 8.01-6 is also rejected, since “Roanoke City” is a misnomer for the City, not the Council. As the City is not the proper party to the petition, the repeated references to “Roanoke City” amount to a misjoinder, rather than a misnomer, and accordingly Code § 8.01-6 has no application in this case.

210721 Seymour v. Roanoke County Board of Supervisors 06/09/2022 In their second amended complaint, neighboring property owners challenging a locality’s decision to grant a special use permit to a wildlife rehabilitation center, which plaintiffs alleged would cause an increase in traffic on a private easement, harming them in several ways, the allegations of the second amended complaint – viewed in the light most favorable to the plaintiffs – are sufficient to establish that the appellants may have standing to challenge the special use permit at issue. The circuit court erred in sustaining demurrers and dismissing the case with prejudice for lack of standing. The judgment is reversed, and the case is remanded for further proceedings.

201523 Board of Supervisors v. Route 29, LLC 06/02/2022 In an action by the owner of rezoned property, the circuit court did not err in overruling the defendant County’s demurrer because the complaint alleged sufficient facts to state a claim that a transit proffer operated, in this instance, as an unconstitutional condition which is not enforceable. The County’s argument that voluntary conditional proffers need not bear an essential nexus, nor be roughly proportional, to the impacts of the development in question is without merit. The circuit court also did not err in denying the County’s motion to strike the evidence because evidence presented at trial was sufficient to prove that the transit proffer lacked an essential nexus and was not roughly proportional to the impacts of the rezoned property project, and, therefore, should not be enforced. The judgment of the circuit court is affirmed.

201329 Edwards v. Omni International Services, Inc. 05/26/2022 In a personal injury/premises liability action in which the plaintiff intended to name the owner of a defective dock at a lake resort as the defendant but named another corporation instead, the error was a misnomer subject to correction, but the four-part test under Code § 8.01-06 required for the revised pleading to relate back to the date of the filing of the original pleading was not met. The circuit court did not err in sustaining the resort owner’s plea in bar on statute of limitations grounds, or in dismissing the case with prejudice. Accordingly, the judgment of the circuit court is affirmed.

210538 Anders Larsen Trust v. Board of Supervisors 05/26/2022 On a petition for a writ of certiorari by owners and occupants of residential properties immediately adjacent to a proposed residential treatment center for teenage girls, challenging decisions by the County’s Zoning Administrator and the Board of Zoning Appeals that no special use permit was required for this use of the subject property, the decision of the circuit court concluding that the neighbors lacked standing is reversed. The allegations made by the neighbors are sufficient to establish that they have immediate and substantial interests and allege burdens distinct from those suffered by the general public, and thus had standing. The judgment of the circuit court is reversed, and the case is remanded for further proceedings.

201510 Chesapeake Hospital Authority v. State Health Commissioner 05/19/2022 In an appeal by a hospital authority operating a regional medical center, challenging a denial by the State Health Commissioner of an application for a Certificate of Public Need to authorize a new open-heart surgery service and additional cardiac catheterization equipment, the Commissioner made an error of law in misinterpreting the regulatory term “services” within the State Medical Facilities Plan provision at 12 VAC § 5-230-450(A)(2), and the courts below erred in applying the harmless error doctrine to an error of law in an administrative agency case under the Virginia Administrative Process Act, Code § 2.2-4000 et seq. The case is remanded for reconsideration by the Commissioner consistent with this opinion.

210260 LaRock v. City of Norfolk 05/19/2022 In deciding a former city employee’s petition for implementation of a grievance panel’s decision to reinstate her and award backpay, the circuit court erred in refusing to implement the grievance panel’s decision. The circuit court may not substitute its view of the facts for that of the panel, consider additional facts not presented to the panel, or consider the grievance de novo. In this case, the circuit court refused to enforce the panel’s decision for an improper reason, and – by applying the clean hands doctrine – it invoked equitable powers where it was not entitled to do so. Here, refusal to implement the grievance panel’s decision deprived the former employee of her statutory right to a second grievance proceeding to grieve new allegations against her. The judgment is reversed, and the case is remanded with directions that the circuit court enter an order which requires that the former employee be reinstated to her position and receive full backpay from the date of her termination in accordance with the panel's decision.

210489 In Re: Hon. Adrianne L. Bennett (ORDER) 04/21/2022 In a newspaper publisher’s petition to intervene in a closed case, treated as a motion to vacate a sealing order in which this Court exercises discretion in ruling on requests to loosen or eliminate restrictions on sealed documents, and in light of the tradition of openness for court records anchored in the First Amendment of the United States Constitution and in Article I, Section 12 of the Constitution of Virginia, there is a presumption that court records should be accessible to the public. Although certain records of the Judicial Inquiry and Review Commission are made confidential by statute, Code § 17.1 913, that statute does not apply to a mandamus proceeding filed in this Court. Here, the record warrants revisiting the order sealing the records of the mandamus proceeding and exercise of the authority to unseal this order. In addition, in the interest of openness and transparency, the remainder of the case is unsealed sua sponte, with the exception of two attachments to the petition for a writ of mandamus which remain under seal.

210382 Boyle v. Anderson 04/14/2022 In an action charging breach of fiduciary duty by a trustee, neither the Virginia Uniform Arbitration Act, Code §§ 8.01-581.01 to -.016 (“VUAA”) nor the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”) compels enforcement of an arbitration clause in the trust document, which is not a contract, and a beneficiary of a trust is not a party to an agreement to arbitrate. The circuit court’s refusal to compel arbitration, appealed as in interlocutory matter pursuant to Code § 8.01-581.016, is affirmed.

210443 Erie Insurance Exchange v. Jones 04/14/2022 In an action for declaratory relief concerning insurance coverage under a homeowner’s policy for injuries sustained by a passenger riding on the back of a small all-terrain vehicle (ATV) when she was struck by a tree branch, coverage was not available on the theory that the ATV was a “land motor vehicle” under the policy, because that provision was limited to injuries sustained on the property of the insured. The contention that the ATV was a “farm type vehicle” qualifying for coverage under the terms of this policy is rejected on this appeal. The ATV is a multi-purpose vehicle not designed and used primarily for farming. Final judgment is entered for the insurer.

210318 Wills v. Wills (ORDER) 04/07/2022 In an appeal from a final order awarding a divorce to the husband and addressing matters of equitable distribution, spousal support, child custody, and child support – in which the parties presented 18 assignments of error and cross-error, including matters relating to whether the parties' "Postnuptial Agreement," signed approximately one month after the date of the marriage, had been abrogated – there is no reversible error in the judgment of the Court of Appeals and the judgment is affirmed for the reasons stated in Wills v. Wills, 72 Va. App. 743 (2021). With regard to the second assignment of error, the trial court’s award of prejudgment interest was based on its erroneous application of Code §§ 20-60.3(14) and -78.2, and affirmance of the Court of Appeals’ decision is limited to its determination that retroactive child support is not synonymous with an “arrearage” requiring an award of prejudgment interest under Code § 20-78.2. No position is taken regarding whether prejudgment interest could be awarded as part of a retroactive child support award under Code § 8.01-382.

201007 Sidya v. World Telecom Exchange Communications 03/24/2022 In a suit by a telecommunications company charging misappropriation of protected trade secrets, tortious interference with business expectancy, and civil conspiracy, on this third appeal the defendant-appellant’s challenges to the trial court’s partial final judgment are rejected on the issues of sufficient evidence supporting the trade secrets, tortious interference, and civil conspiracy claims, compliance with prior remand instructions in determining compensatory damages, trebling damages under Code § 18.2-500(A), awarding supplemental attorney fees and interest thereon, and running the award of interest from the date of the jury verdict rather than the date judgment was entered on the verdict. The trial court erred in refusing to strike the evidence offered in support of this plaintiff’s claim for attorney fees incurred before and during trial, erred in awarding post-judgment interest on the punitive and treble damages, and its holdings on those issues are reversed. The trial court’s latest decision is be affirmed in part, reversed in part, and the case is remanded with directions to amend the partial final judgment in accordance with this opinion.

201419 Kittrell v. Fowler (ORDER) 03/24/2022 In a multi-party litigation involving claims of breach of fiduciary duty and other causes of actions regarding a widow’s successive interests and trust arrangements following her husband’s death, heard as an interlocutory appeal pursuant to Code § 8.01-670.1, assuming arguendo that a claim exists for the rescission of a 2006 transaction transferring the widow’s minority interest in an LLC , the claim belongs to the widow’s estate as it would have belonged to the widow during her lifetime. Upon her death in 2014, any viable claim relating to the sale of her interest in the LLC passed to her estate and may only be pursued by the estate’s personal representative, under governing case law and Code §§ 8.01-25, 64.2-519, and 64.2-520. Because neither of the present appellees is the personal representative of the widow’s estate, they lack standing to bring such a claim. The circuit court’s decision on this issue is reversed, the appellees’ claims regarding the 2006 transaction are dismissed, and the case is remanded for further proceedings consistent with this order.

201349 California Condominium Association v. Peterson 03/17/2022 In a condominium association’s in personam claim against the former owner of two units for unpaid special assessments, alleging breach of a provision in the condominium declaration requiring payment of all prior assessments at the time units are sold to new owners, the circuit court erred in holding that the association’s failure to introduce the declaration into evidence at an ore tenus hearing precluded it from deciding whether to grant or deny the plea in bar on this issue. The declaration, conveyance deed, and settlement statement were all made exhibits to the association’s complaint, and the former unit owner stipulated that his plea in bar assumed arguendo the factual allegations in the amended complaint. The circuit court’s holding that the declaration could not be considered is reversed and this case is remanded for further proceedings.

201515 Stahl v. Stitt 03/03/2022 In an action controlled by Uniform Commercial Code provisions regarding presentation, payment or dishonor of checks in the banking industry, as enacted in the codes of both Virginia and West Virginia, the plaintiff niece – who was a Payable on Death (POD) beneficiary of a Virginia bank account held by her aunt – did not have a vested interest in a check drawn on the aunt’s West Virginia bank when it was initially presented for payment, and she therefore could not rely on the prompt payment of the check. Consequently, she did not have standing to enforce the midnight deadline rule under the statutes, and her eventual acquisition of the Virginia account after the aunt died failed to alter the fact that she could not rely on the prompt payment of the check when it was initially presented to the West Virginia bank. Nor could she rely on prompt payment following a second presentment of the check in light of the particular circumstances of this case. Accordingly, the circuit court did not err when it granted the West Virginia bank’s motion for summary judgment, denied the plaintiff niece’s motions related to the second presentment, and dismissed her amended complaint.

201413 Farah v. Commonwealth 02/17/2022 In an appeal challenging the result of a circuit court proceeding to determine what portion of a settlement in a personal injury case is subject to the Commonwealth’s lien as a result of Medicaid program payments toward the plaintiff’s extensive medical care, it is held that Virginia’s apportionment statute does not conflict with precedent from the United States Supreme Court and, further, the factual findings of the circuit court must be sustained under the deferential standard of review. Accordingly, the judgment is affirmed.

201263 Virginia Department of Taxation v. R.J. Reynolds Tobacco 02/10/2022 In a taxpayer’s consolidated applications for correction of erroneous assessment of corporation income taxes for a period of years, the circuit court did not err in holding that the Department of Taxation’s corporation income tax assessments for the years in issue were erroneous and ordering the Department to refund to the taxpayer the amount of its overpayments on the assessments for those years. Leaf tobacco simply stored in a Virginia warehouse for a period of time was not “used” in Virginia for purposes of the income apportionment formula prescribed by the taxation statutes. The judgment of the circuit court is affirmed.

201310 Godlove v. Rothstein 02/03/2022 An appeal in an easement dispute has been rendered moot by sale of one of the properties involved, and the parties agree that the trial court’s judgment should be vacated. There is no longer any live controversy to be resolved, nor do the parties have any legal interest in the outcome of this appeal. When a prevailing party voluntarily and unilaterally moots a case, preventing an appellant from obtaining appellate review, vacatur of lower court judgments is generally appropriate and ensures that those who have been prevented from obtaining the review to which they are entitled are not treated as if there had been a review. Vacatur strips the decision below of its binding effect and clears the path for future relitigation. With this understanding, this appeal is dismissed as moot and the trial court’s judgment is vacated. Because this case is now moot, leaving no substantially prevailing party on appeal, the request to tax costs against the appellee is denied, and each party is ordered to pay his own respective, incurred costs.

210011 Cortez-Rivas v. Commonwealth 02/03/2022 In a rape case where one police officer had translated during a detective’s crime-scene interrogation of the defendant, but a different officer testified at trial – translating independently from body-camera footage of the same interview – there was no violation of the defendant’s rights under the Confrontation Clause of the United States Constitution. Assuming, without deciding, that statements translated from one language into another by a translator can constitute testimonial evidence, thus triggering the protections of the Confrontation Clause, those protections were satisfied here because the translator whose evidence was used at trial testified in person, subject to cross-examination. The judgment of the Court of Appeals of Virginia denying an appeal is affirmed.

200803 Smallwood v. Commonwealth 01/13/2022 A judgment of the Court of Appeals affirming the circuit court’s revocation of a defendant’s deferred disposition and convicting him for possession of heroin – due to his failure to pay court costs as provided in a plea agreement and deferral order – is affirmed. Statutes that permit the circuit court to impose alternatives to incarceration are highly remedial and use of these tools lies within the broad discretion of the circuit court. The plain language of Code § 18.2-251 states that, upon violation of a term or condition, the court may enter an adjudication of guilt and, in this case, it is undisputed that the payment of court costs was included as a term or condition of the deferral order. Here, the defendant’s obligation to pay court costs was an express condition of his deferred finding of guilt originated with his plea agreement. The judgment of the Court of Appeals upholding the conviction is affirmed.

201322 Emmanuel Worship Center v. City of Petersburg 01/06/2022 In a bill of review proceeding brought by owners of property arguably used for religious purposes to challenge a decree of sale for delinquency in tax payments, the circuit court erred when it dismissed the bill of review on the theory that the underlying action was an action at law. The circuit court further erred when it held that because more than three years had passed since these taxes were assessed, they were beyond review and that the property owners could not raise any defenses to the assessments. The judgment is reversed, and this matter is remanded to the circuit court for a determination whether the property in question was used for religious worship as defined in Code § 58.1-3606, and consequently whether any delinquent taxes were owed on the property.

210054 Robol v. Virginia State Bar 01/06/2022 In an appeal of right from a decision of the Virginia State Bar Disciplinary Board suspending an attorney’s his license to practice law for four years, no error is found in the Board’s decision. Upon reviewing the present case, under established legal standards, it is concluded that the Board did not err when it determined that the Virginia attorney violated Rules 3.3, 3.4, 4.1, and 8.4 of the Ohio Rules of Professional Conduct. The plain language of these Rules establishes that associate members are attorneys who remain subject to the Bar’s jurisdiction and regulation, and the Bar acted within its authority when it pursued disciplinary action against this Virginia attorney for actions committed while he was an associate member of the Bar.

210027 Commonwealth v. Richard 12/29/2021 In a case involving distribution of methamphetamine, the circuit court did not abuse its discretion in denying the defendant’s proffered jury instructions regarding a “single buyer/seller relationship” – as an exception to potential conspiracy liability – because there is not more than a scintilla of evidence to support the circuit court giving such instructions. Therefore, the Court of Appeals erred in reversing the defendant’s conviction for conspiracy. The judgment of the Court of Appeals is reversed and the defendant’s conviction for conspiracy to distribute a controlled substance is reinstated.

201145 Carter v. Commonwealth 12/22/2021 A felony conviction for assaulting a police officer is affirmed. The defendant made no verbal or non-verbal demand for the officer to leave the premises, and he was not a trespasser. The defendant resorted to violence immediately, hence her use of force against the officer to expel him was not lawful. Nor was there a Fourth Amendment violation in the officer’s completing entry into defendant’s residence to accomplish her arrest. The judgment of conviction is affirmed.

201202 Stoots v. Marion Life Saving Crew, Inc. 12/22/2021 In a wrongful death action against paramedics and a nonprofit rescue service, the circuit court did not err in concluding that the paramedics, who did not receive compensation for their services on the day in question and were not shown to have acted in bad faith, were entitled to statutory immunity under Virginia’s Good Samaritan law, Code § 8.01-225(A)(5). Since there was no verdict holding that the paramedics were not negligent, however, the immunity of the paramedics was not a sufficient basis for finding that the rescue service itself was immune from this claim. The judgment is affirmed in part, and reversed in part, and plaintiff’s claim against the rescue service is remanded for further proceedings.

201362 Garner v. Joseph 201362 12/16/2021 In a prior litigation to apportion the riparian rights of the owners of two adjacent shoreline lots, the holders of an easement created by deed in favor of a third, neighboring lot across one of the two properties were necessary parties, without whose participation judgment could not properly be entered. In the present action, the rulings of the circuit court on summary judgment and demurrer that the owners of the easement were not necessary parties in that prior case and lacked standing to challenge the judgment entered in the prior proceeding are reversed. The case is remanded for further proceedings consistent with this opinion.

201160 Ehrhardt v. SustainedMED, LLC 12/02/2021 In an action by the purchaser of corporate shares seeking indemnification and other relief from the defendant sellers of those shares, under express provisions of a stock purchase agreement, the circuit court erred in awarding an amount of recovery for attorneys’ fees and litigation costs and expenses that – when added to other relief afforded to the plaintiffs in these proceedings – exceeded an express cap on the maximum indemnification amount allowed under indemnification provisions of the agreement. The circuit court’s judgment regarding recovery of attorneys’ fees, litigation costs, and expenses awarded to the plaintiff is reversed, and final judgment is entered on this appeal awarding the plaintiff attorneys’ fees and costs in the total amount of $24,999.94, representing the maximum additional relief allowed by the parties’ agreement in light of other relief awarded to the plaintiff.

201204 Commonwealth v. Cady 10/28/2021 In prosecution for misdemeanor reckless driving in violation of Code § 46.2-852, the requisite mens rea requires a reckless disregard by the driver for the consequences of his act and an indifference to the safety of life, limb, or property of others; what distinguishes a speeding violation from misdemeanor of reckless driving, and the misdemeanor from felony of involuntary manslaughter, is the likelihood of injury to other users of the highways. Viewing the evidence in the light most favorable to the Commonwealth, the party prevailing at trial, a rational trier of fact could reasonably infer from the evidence that this accident was not the result of a mere split-second, momentary failure to keep a lookout, an act of simple negligence — but rather a lengthy, total, and complete failure to keep a lookout, satisfying the recklessness requirement to support a conviction for reckless driving. The Court of Appeals erroneously held as a matter of law that no rational jury could have found this defendant guilty of reckless driving. That judgment is reversed, and the trial court’s conviction order is reinstated.

200840 Phillips v. Rohrbaugh 10/21/2021 In a daughter’s claims for both an equitable and a statutory accounting from her brother in his former capacity as an agent managing their father’s financial affairs pursuant to a power of attorney and in his present capacity as co-executor of their father’s estate, and her claim against the other co-executor of her father’s estate, seeking an equitable accounting, the circuit court did not err in granting demurrers as to all claims and dismissing the action because, under the facts pleaded, neither theory of accounting applies to this case. The judgment is affirmed.

201245 Ayers v. Brooke Road, LLC 10/21/2021 In ruling on complaints to have several confessed judgments vacated a decade after they were entered, the circuit court erred when it sustained demurrers based on application of the provisions of Code § 8.01-433. When taken as true, the allegations of the amended complaints are sufficient to establish that the confessed judgments are void ab initio pursuant to Code § 8.01-438. Under these circumstances, the present plaintiff may challenge the validity of the confessed judgments more than 21 days after he received notice of their entry. The judgment of the circuit court is reversed, and this case is remanded for further proceedings.

201267 Givago Growth, LLC v. iTech AG, LLC 10/14/2021 In a case alleging malicious abuse of process, slander of title, tortious interference with contractual relations, and civil conspiracy, all arising out of the filing of a notice of lis pendens for property subject to a contract for sale, the circuit court erred in sustaining demurrers based on the defense of absolute privilege. The judgment is reversed, and the case is remanded further proceedings consistent with this opinion.

210168 White v. United States 10/14/2021 In response to a question of Virginia law certified from United States Court of Appeals for the Fourth Circuit, accepted pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, it is decided that — under Virginia common law — an individual can be convicted of robbery by means of threatening to accuse the victim of having committed sodomy, if the accusation of sodomy involves a crime against nature under extant criminal law. Four prior opinions recognize this English common-law doctrine, and no convincing historical arguments are found demonstrating that this view was mistaken. The certified question is answered in the affirmative.

201307 Gregory v. Northam (ORDER) 09/02/2021 There is no reversible error in the judgment of judgment of the Circuit Court concluding that the plaintiff had not articulated a legally viable cause of action in a complaint seeking declaratory and injunctive relief concerning the Governor’s order to the Department of General Services to remove the Robert E. Lee Monument in Richmond from property owned by the Commonwealth. The plaintiff did not claim an easement appurtenant, and facts in the record do not support a finding that he has any ownership interest in any land to which any benefit conveyed by certain identified deeds would be appurtenant. Thus, he has no property right related to the Lee Monument to enforce against the Commonwealth, and he failed to articulate a legally viable cause of action. It was not error to grant the defendants’ demurrer and dismiss this claim with prejudice.

210113 Taylor v. Northam 09/02/2021 In an action seeking declaratory and injunctive relief against the Governor of Virginia, the Director of the Virginia Department of General Services, and the Director of the Virginia Division of Engineering and Building, alleging that language in an 1890 deed, signed by the then Governor of Virginia, and an 1889 joint resolution of the General Assembly which requested and authorized the Governor to sign such deed, prohibit the Governor from ordering removal of a state-owned monument from state-owned property, there was sufficient evidence to support the circuit court’s ruling that certain purported restrictive covenants are unenforceable, even without considering a 2020 Budget Amendment, and the circuit court did not err in denying summary judgment to the plaintiff-appellants. There were disputed issues of fact, the resolution of which supports the circuit court’s judgment that the purported restrictive covenants are not enforceable and that the terms of the 1889 Joint Resolution are not binding on the current Governor and did not strip him of authority to order the removal of the Lee Monument from the Circle in Richmond. The judgment of the circuit court is affirmed.

200791 City of Charlottesville v. Sclafani 08/26/2021 In an appeal from a decision of the Court of Appeals affirming an award of workers’ compensation benefits, the law-of-the-case doctrine did not bar the City’s arguments, which are here considered. While the rationale of the Court of Appeals is rejected, the evidence supports the Commission’s award of benefits and the judgment of the Court of Appeals is affirmed.

191545 Lopez v. Intercept Youth Services, Inc. 08/05/2021 The circuit court granted a plea in bar and dismissed a complaint alleging that an employer operating a residential program for at-risk youth had negligently failed to protect an employee who was murdered by one of the residents. Evidence presented at a plea-in-bar hearing, describing the specific circumstances of a fatal assault, coupled with allegations in the complaint, demonstrate that the probability of assault was augmented either because of the particular character of the victim’s job or because of the special liability to assault associated with the environment in which the victim was required to work. The circuit court correctly held that the victim’s murder had arisen out of the conditions of her employment. Because the exclusivity provision of the Virginia Workers’ Compensation Act applies, the circuit court’s judgment sustaining the plea in bar and dismissing the tort action is affirmed.

200990 Barnes v. Berry (ORDER) 08/05/2021 In a case brought by the putative father of a newborn child, the circuit court erred in granting a plea in bar on the basis that he had no standing to appeal a legal decision made by the juvenile and domestic relations district court regarding the child. The plaintiff timely registered with the Virginia Birth Father Registry and is thereby entitled to notice and participation in adoption proceedings regarding the child. The judgment of the Court of Appeals is affirmed for the reasons stated in Berry v. Barnes, 72 Va. App. 281, 295 (2020).

201118 Eubank v. Thomas 08/05/2021 In an action pleading claims of malicious prosecution and abuse of process against a county administrator and two employees of the county’s planning and zoning department, the plaintiffs’ complaint is not a delayed challenge to zoning actions, thus the “thing decided” doctrine is not applicable. The circuit court erred in granting a demurrer and dismissing the malicious prosecution claim because the complaint adequately pled that claim, but its dismissal of the abuse of process claim is affirmed. The judgment is affirmed in part and reversed in part, and the case is remanded for further proceedings.

191716 Potter v. BFK, Inc. 07/22/2021 In a wrongful death action, the circuit court erred in sustaining a plea in bar of the statute of limitations filed by the manufacturer of stone processing equipment involved in the death. When all of the relevant factors are considered, it is apparent that the device at issue in this case is equipment within the meaning of Code § 8.01-250 – it is used for a specific purpose unrelated to the structural integrity of the construction of the building itself, and has several qualities characteristic of equipment: the manufacturer exerts some degree of control over its installation and maintenance, it is not required for the operation of the building, and it is neither fungible nor generic. Thus, the circuit court erred in sustaining the manufacturer’s plea in bar based on its conclusion that the device qualified as ordinary building materials. The judgment of the circuit court is reversed, and this case is remanded for further proceedings consistent with this opinion.

200703 Kinsey v. VEPCO 07/15/2021 In actions by two plaintiffs alleging injuries caused by radio frequency (“RF”) emissions from an electric utility’s “smart meter” attached to their house, the complaints do not specify any particular error in the installation, operation, or maintenance of the meters, but instead are directed at the RF emissions of the smart meters which allegedly caused their illnesses. Although a savings clause in federal law preserves state law tort claims, conflict preemption bars the plaintiffs' claims because the complaints target RF emissions, which are governed by the FCC. The plaintiffs’ attempt to recast their complaints as negligence and fraud actions flowing from the malfunction of a specific meter at their home is rejected; they did not allege that the smart meters were the instrumentality of harm in their fraud and negligence counts in their complaints, and the complaints broadly challenge the RF emissions of the meters. The judgment of the circuit court dismissing the actions is affirmed.

201108 Evans v. Evans 07/15/2021 In a divorce proceeding wherein the plaintiff wife obtained an order of publication against her husband, leading to entry of a decree of divorce that incorporated the terms of a property settlement and support agreement between the parties, the divorce court lacked personal jurisdiction over the husband when the divorce decree was entered, and thus did not have the authority to enter an in personam award of child support. In the present proceeding, the judgment of the Court of Appeals upholding a ruling of a circuit court, vacating as void ab initio that portion of the earlier divorce decree that had ordered the husband to pay child support, is affirmed.

201172 VEPCO v. SCC 07/15/2021 In an appeal by an electric utility from a declaratory judgment of the State Corporation Commission concluding that a pumped storage hydroelectric facility (or “pumped storage”) generates “renewable energy” under the former definition in Code § 56-576, and that the amended definition (now excluding pumped storage from that definition) would not apply to contracts executed before the amendment’s effective date, the Commission’s decision is affirmed.

200748 Pena Pinedo v. Commonwealth 07/08/2021 In the context of robbery, a good faith or bona fide claim of right to the property taken negates the mens rea element of the offense, but the claim-of-right defense requires a predicate showing of good faith, or a bona fide belief by the taking party that he has some legal right to the property taken. In the present case, the evidence plainly established that the stolen money was “drug money,” earned through illegal drug transactions, and the record does not contain more than a scintilla of evidence to establish that the defendant had a good faith or bona fide claim of right to the stolen money. While he may have subjectively believed that the victim and his girlfriend stole the money from defendant’s drug dealing partner, defendant was never legally entitled to possess the money at issue, which was itself a form of contraband, and he could not have possessed the money in good faith. The claim-of-right defense does not apply under these circumstances. The Court of Appeals correctly determined that an individual cannot have a good faith or bona fide claim of right regarding contraband, money earned from the sale of contraband, or other fruits of a crime. The judgment is affirmed.

200823 Dill v. Kroger Limited Partnership I 07/08/2021 In a malicious prosecution and false imprisonment case brought by a person who was mistakenly identified, charged, and prosecuted as a shoplifter, the circuit court erred in granting a joint motion to strike filed by the defendant retailer and its store manager as to the malicious prosecution claim, but it did not err in granting the motion as to the false imprisonment claim. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for further proceedings.

200336 Lucas v. Riverhill Poultry, Inc. 07/01/2021 In a wrongful death action arising from an unexplained single-vehicle accident in which both occupants perished, the circuit court did not abuse its discretion in excluding portions of the medical examiner’s autopsy report and the plaintiff’s experts’ opinions regarding the identity of the driver and the individual defendant’s alleged sleep disorder, or in refusing the plaintiff’s proffered jury instruction on falling asleep at the wheel. The judgment for the defendants entered in the circuit court is affirmed.

200799 Merid v. Commonwealth (ORDER) 07/01/2021 In an appeal from a conviction for abduction and murder in which the defendant argued that the trial court erred in refusing to suppress evidence that police discovered after entering an apartment to prevent an occupant from committing suicide – considering the record, briefs, and arguments of counsel, and for the reasons stated in the opinion of the Court of Appeals, Merid v. Commonwealth, 72 Va. App. 104, 119 (2020), which concluded that the officers’ actions were reasonable and thus did not violate the Fourth Amendment – the judgment is affirmed. The judgment of the Court of Appeals is consistent with Caniglia v. Strom, 593 U.S. ___, 141 S. Ct. 1596 (2021), decided after the Court heard oral argument in this case.

191413 Grayson v. Westwood Buildings L.P. 06/24/2021 In an action by a landlord who had secured two judgments for unpaid rent against insolvent tenants, the present suit seeks relief for alleged fraudulent and voluntary conveyances against them and seven other parties, and a claim for conversion against one defendant. In ruling on these claims, the trial court misapplied Virginia law and made factually insupportable findings. Its final judgments in favor of the landlord are vacated, and final judgments are entered in favor of the appellees on this appeal. Combined case with Record Nos. 191414 and 191475

191414 Kubli v. Westwood Buildings L.P. 06/24/2021 In an action by a landlord who had secured two judgments for unpaid rent against insolvent tenants, the present suit seeks relief for alleged fraudulent and voluntary conveyances against them and seven other parties, and a claim for conversion against one defendant. In ruling on these claims, the trial court misapplied Virginia law and made factually insupportable findings. Its final judgments in favor of the landlord are vacated, and final judgments are entered in favor of the appellees on this appeal. Combined case with Record Nos. 191413 and 191475

191475 Coleman v. Westwood Buildings Limited Partnership 06/24/2021 In an action by a landlord who had secured two judgments for unpaid rent against insolvent tenants, the present suit seeks relief for alleged fraudulent and voluntary conveyances against them and seven other parties, and a claim for conversion against one defendant. In ruling on these claims, the trial court misapplied Virginia law and made factually insupportable findings. Its final judgments in favor of the landlord are vacated, and final judgments are entered in favor of the appellees on this appeal. Combined case with Record Nos. 191413 and 191414

200356 Nicholson v. Commonwealth 06/17/2021 The Court of Appeals of Virginia erred in dismissing an appeal from a conviction for driving on a suspended license, fifth offense, on the basis that the notice of appeal was fatally defective. Here, defendant’s notice of appeal was sufficient to identify the case being appealed, listing her name, the date of the final order, the court in which the conviction originated, and the correct docket number. Although the notice of appeal incorrectly named the Commonwealth of Virginia rather than the county, that defect was not fatal and was subject to waiver. Here, the county entered a general appearance, thus waiving any defect associated with a failure to notify it. Because the Court of Appeals is the court of first review for criminal convictions, and it did not reach the merits of the claims in this case, the matter is remanded to the Court of Appeals for further proceedings consistent with this opinion.

200504 Galiotos, S. v. Galiotos, T. 06/03/2021 In appeals regarding two brothers’ prolonged disputes concerning administration of their late mother’s estate, the circuit court did not abuse its discretion in removing both brothers from their fiduciary roles, and replacing them with a disinterested third party, based on its conclusion that the brothers were, to the detriment of the estate, deadlocked regarding its administration. Nor did the circuit court abuse its discretion in denying both brothers compensation, legal fees, and costs. Nor did it err in declining to set aside a particular real estate transaction, in that it did not need to resolve that matter in order to determine whether the co-executors should be removed. Further, there was no reversible error regarding a third brother’s presence in the courtroom during the trial. The judgment is affirmed. Combined case with Record No. 200667

200667 Galiotos, T. v. Galiotos, S. 06/03/2021 In appeals regarding two brothers’ prolonged disputes concerning administration of their late mother’s estate, the circuit court did not abuse its discretion in removing both brothers from their fiduciary roles, and replacing them with a disinterested third party, based on its conclusion that the brothers were, to the detriment of the estate, deadlocked regarding its administration. Nor did the circuit court abuse its discretion in denying both brothers compensation, legal fees, and costs. Nor did it err in declining to set aside a particular real estate transaction, in that it did not need to resolve that matter in order to determine whether the co-executors should be removed. Further, there was no reversible error regarding a third brother’s presence in the courtroom during the trial. The judgment is affirmed. Combined case with Record No. 200504

200195 Historic Alexandria Foundation v. City of Alexandria (ORDER) 05/27/2021 The circuit court did not err in determining that a foundation established to advocate for the preservation of a locality’s historic buildings, districts, and neighborhoods lacked standing to pursue the claims asserted in this case – an appeal to the circuit court from approval by a City Council authorizing renovation of an historic property. Provisions of the local zoning ordinance addressing appeals to the circuit court provide that appeal from a decision of the City Council may be pursued only by an “aggrieved” petitioner and use of that term incorporated its well-established meaning. In the present case, the foundation’s petition did not meet the requirements of the two-part test articulated in governing case law: the allegations failed to establish that the foundation suffered any particularized harm that differed from that suffered by the public in general. The foundation’s interest in the preservation of historic buildings does not give it standing to challenge the City Council’s decision in this case, and the circuit court did not err when it determined that this foundation lacked standing to pursue the claims asserted in this case. Accordingly, the judgment of the circuit court is affirmed.

200222 Merck v. Vincent 05/27/2021 The Court of Appeals erred by affirming an award of permanent total disability benefits after an employee suffered an injury that was a compensable consequence of an earlier compensable injury. The compensable consequence doctrine does not allow injuries suffered in two separate accidents to be treated as if they occurred in the same accident, but allows a new injury that is causally connected to an earlier, compensable injury to be treated as if it occurred in the course of and arising out of the employee’s employment. Here, the claimant’s original injuries to his neck, left arm, and left hand did not occur in the same accident as the injury to his left knee as Code § 65.2-503(C)(1) requires. The Court of Appeals’ ruling regarding permanent total incapacity under Code § 65.2-507 is incorrect under prior case law, and discounts the intent of the General Assembly in removing language allowing permanent total disability benefits when an employee suffers two permanent injuries in separate accidents while working for the same employer; that provision is no longer the law. In addition, the Court of Appeals’ interpretation contravenes the plain language of Code § 65.2-518, which expressly provides that benefits shall in no case be greater than 500 weeks, except in cases of permanent and total incapacity, as defined in Code § 65.2-503(C). Consequently, the present claimant’s benefits cannot be extended to the remainder of his life under Code § 65.2-507. The judgment of the Commission is reversed, and the matter is remanded for further proceedings consistent with this opinion.

200695 Machen v. Williams (ORDER) 05/27/2021 In an appeal from a circuit court ruling after a jury trial in a suit to impeach a will drafted by a lawyer, making himself the primary beneficiary of the $1.3 million estate of a 93-year-old decedent, it is not necessary to determine whether one of the two plaintiff’s challenging the will lacked standing to bring these claims alleging fraud, undue influence, lack of testamentary capacity and failure to meet statutory requirements, because the other complainant seeking to impeach the will was a named beneficiary under the purported will, and she was a child of a deceased brother of the decedent and thus an heir at law under Code § 64.2-200. The circuit court’s ruling that this second complainant’s purported release of claims under the will was invalid as a mere incident of the proponent lawyer’s fraudulent scheme is now final. Thus the suit to impeach the will remains pending, unaffected by any question regarding the first complainant’s standing to sue. The final judgment entered upon the jury verdict, determining that none of the documents offered was the decedent’s last will, that the documents had been procured by undue influence and fraud, and that decedent lacked testamentary capacity, is affirmed.

200963 Bonanno v. Quinn 05/27/2021 In an adoption proceeding, the Court of Appeals correctly dismissed a grandmother’s purported appeals because she was not a party to the proceeding, and thus had no standing to invoke the jurisdiction of that court. The statement in prior case law that orders void even for lack of subject-matter jurisdiction may be challenged by all persons, anywhere, at any time, or in any manner is a rhetorical flourish that does not accurately state the law. A challenge that an order is void ab initio, even for lack of subject-matter jurisdiction, may be raised only in a valid direct or collateral proceeding where the voidness of the order is properly at issue. On this record, the Court of Appeals did not abuse its discretion in awarding appellate attorney’s fees to the petitioner. The case is remanded to the circuit court for a determination and award of appropriate appellate attorney’s fees incurred in the Court of Appeals and in the remand proceeding in the circuit court only, to the exclusion of the proceedings in this Court.

201006 Logan v. Commonwealth 05/27/2021 In a prosecution for attempting to purchase firearms while subject to a protective order, a return of service on a preliminary protective order extension was not testimonial evidence and therefore not subject to exclusion under the Confrontation Clause of the Sixth Amendment. In light of all the circumstances, viewed objectively, the primary purpose of the return of service – which includes the serving deputy’s signature and the time and date of service – was administrative, performing a record-keeping function and documenting that the ministerial duty of service of process was executed. The relevant circumstances indicate that the return of service was intended to serve a primarily administrative purpose, not to create an out-of-court substitute for trial testimony. Hence, its admission did not violate the Confrontation Clause.

201028 Norton v. Board of Supervisors of Fairfax County 05/27/2021 The circuit court did not err in dismissing challenges to certain amendments to a local zoning ordinance and imposition of a transient occupancy tax. The county board in this case correctly interpreted the original definition of “dwelling” in the applicable ordinance, and its actions in amending the ordinance were not unreasonable, arbitrary, or capricious. Thus, the board was not required to present evidence because the inherent presumption of reasonableness remained intact, and the circuit court did not err in dismissing claims challenging short-term occupancy amendments. Since the original definition did not permit by-right short-term lodging, there is no basis for the argument that the amended definition permits anything more than short-term lodging subject to permitting and other restrictions. Accordingly, the trial court did not err in dismissing the claims related to the short-term lodging amendments. While the plaintiffs’ properties are clearly distinguishable from hotels, motels, boarding houses, and travel campgrounds in many respects, those distinctions are irrelevant in determining whether Code § 58.1-3819(A) allows a locality to levy a transient occupancy tax on those properties and, accordingly, the trial court did not err in dismissing the plaintiffs’ challenge to the occupancy tax amendment. The judgment of the circuit court dismissing the plaintiffs’ claims is affirmed.

200187 Kosko v. Ramser 05/20/2021 In a case where a nonsuit order was entered as requested by the plaintiff and the defendants then asked the circuit court to award them costs under Code § 8.01-380, the court stated from the bench 20 days after the nonsuit order that it would award costs to the defendants, but – over the objection of the plaintiff – the written order awarding these costs was entered more than 21 days after entry of the nonsuit order. The circuit court was without jurisdiction under Rule 1:1 to enter the written order awarding costs, and it must be vacated.

200941 Rompalo v. Commonwealth (ORDER) 05/20/2021 In a prosecution on three counts of destroying public records in violation of Code § 18.2-107, the convictions are affirmed for the reasons stated by the Court of Appeals in Rompalo v. Commonwealth, 72 Va. App. 147 (2020), rejecting – because a motion to strike was not renewed – claims of error regarding sufficiency of the evidence to establish that the court records involved were actually destroyed, concluding that the fraudulent intent language of the statute applies under the secreting provision but not in a charge on the theory of records destruction, and finding no error in the circuit court’s sustaining of certain hearsay and relevance objections (because the defendant took inconsistent positions on those issues in the proceedings below), or its denial of proffered jury instructions based on the incorrect fraudulent intent theory.

200165 Myers v. Commonwealth 05/13/2021 In a prosecution for carrying a concealed weapon, second offense, in violation of Code § 18.2-308, the Court of Appeals erred in affirming the conviction. Given the undisputed facts of this case, the defendant was entitled to the protection of the statutory exception in Code § 18.2-308(C)(8), exempting from criminal liability the possession of a concealed weapon in a secured container in his personal, private vehicle. The ordinary meaning of “secured” (when it is not considered an exact synonym of “locked”) includes a fully latched rigid container as well as a fully zippered soft container such as one made of cloth, canvas, or leather, like the backpack in which defendant’s gun was found in the present case. Final judgment is therefore entered, reversing this conviction and dismissing the indictment.

191599 White v. Llewellyn 05/06/2021 In a fraudulent conveyance action by a judgment creditor against a formerly married couple, a presumption of fraudulent conveyance, created upon the proof of one or more badges of fraud, shifts both the burdens of production and persuasion to the party seeking to uphold the validity of the transaction by rebutting the presumption. Thus, the circuit court erred when it did not consider whether the defendant former spouses established the bona fides of a deed of gift transaction involving their marital home by strong and clear evidence. Because of the incorrect standard used by the circuit court in evaluating the evidence before it, it cannot be discerned, as a matter of law, whether the court erred in not granting judgment and attorneys’ fees to the judgment creditor. The judgment is reversed, and this case is remanded for further proceedings not inconsistent with this opinion.

200386 Doe v. Baker 04/29/2021 In an action by a minor plaintiff alleging that she was sexually molested by a retired, but still active, pastor of her church in his home, pleading numerous claims against a variety of defendants, dismissal of counts for negligent hiring or retention is reversed to the extent they are based on the church hiring or retaining the pastor as an employee or volunteer following his retirement as the pastor of the church, and dismissal of claims for vicarious liability and negligent infliction of emotional distress are reversed. Dismissal of claims for willful and wanton negligence, intentional infliction of emotional distress, fraud, and for failure to warn protect as against all defendants, are affirmed. Dismissal of the individual defendants from the claims of negligent hiring or retention is also affirmed. The judgment of the circuit court is affirmed in part, reversed in part, and the case is remanded for further proceedings.

191735 Green v. Commonwealth (ORDER) 04/15/2021 In a prosecution leading to convictions under Code § 29.1-739.1 for failing to stop a vessel for law enforcement and under Code § 29.1-738.2 for refusing to take a breath or blood test after arrest for operating a boat while under the influence of alcohol, the trial court erred by not permitting the defendant to present evidence in support of a challenge to the lawfulness of his arrest on the theory that such objection must be raised by pretrial motion or objection in writing as provided in Code §§ 19.2-266.2(A) and (B). The implied-consent law under Code § 29.1-738.2 applies only when the defendant has been lawfully and timely arrested for one of the specified offenses. Code § 19.2-266.2 applies to motions or objections seeking suppression of evidence, but this defendant did not seek to suppress any evidence, nor did he argue that a constitutional violation required the court to prohibit admission of evidence. Instead, he argued that implied consent applies only when a defendant has been lawfully arrested for one of the specified offenses. The trial court, therefore, erred by holding that Code § 19.2-266.2 prohibited him from challenging at trial the lawfulness of his arrest. The conviction under Code § 29.1-738.2 is vacated without prejudice to the Commonwealth’s right to refile that charge, and the case is remanded for further proceedings consistent with this order.

200335 Northern Va. Kitchen, Bath & Basement v. Ellis 04/15/2021 In an appeal challenging a jury’s award of compensatory and punitive damages stemming from the appellants’ intentional statutory torts of racial harassment and stalking, in a case where liability was conceded, evidence of emotional distress alone, without any evidence of monetary damages, was sufficient to support the jury’s award. The judgment of the circuit court entered upon the jury’s verdict is affirmed.

200476 Canova Land & Investment Co. v. Lynn 04/15/2021 In a suit to quiet title in which the plaintiff argued that a reverter clause in an 1875 deed conveying property to a church should be voided as an unreasonable restraint on alienation – irrationally limited in scope and void as against public policy, hindering the plaintiff’s efforts to develop a larger parcel – the grantors’ deed gave the church a fee simple subject to the possibility of reverter, a restraint on use, which is not unreasonable in light of the charitable context in which it was given. The judgment of the circuit court upholding the 1875 deed as valid and dismissing the complaint is affirmed.

200153 Bryant-Shannon v. Hampton Roads CAP, Inc. 04/08/2021 In a defamation action, the circuit court did not err in dismissing with prejudice an amended complaint alleging certain statements made by an officer of a community action program in a disciplinary personnel action form and in evidence given by a member of the program’s board of directors in a proceeding the plaintiff brought before the Virginia Employment Commission (VEC). The disciplinary form statements did not demonstrate the requisite defamatory “sting” to the reputation of the plaintiff to be legally actionable, and statements made during proceedings of the VEC are protected by absolute privilege. The judgment of the circuit court dismissing the case with prejudice is affirmed.

191387 Galloway v. County of Northampton 04/01/2021 In consolidated actions by taxpayers alleging that their real property had been overvalued in recent tax assessments, the circuit court did not abuse its discretion in precluding testimony from one expert witness for the plaintiffs, but did abuse its discretion in precluding testimony of the other designated expert, and in the resulting order dismissing the case with prejudice. The judgment is reversed and the case is remanded for further proceedings.

191662 Stafford County v. D.R. Horton, Inc. 04/01/2021 In an appeal from a circuit court’s decision that cluster development plans submitted by two developers were not subject to review by a county’s planning commission under Code § 15.2-2232 and Code § 15.2-2286.1, the judgment is reversed. In this instance, the two properties at issue are not located within an area designated for water and sewer service. By its plain terms, Code § 15.2-2286.1(B) does not apply, and therefore Code § 15.2-2232, which requires the developers to submit their plans to the planning commission for review, is applicable. Prior approval of different plans for these developments, several years earlier, did not change the master plan, and did not obviate the needed review. The case is remanded for a review of the revised plans under Code § 15.2-2232 by the county planning commission.

200237 Plofchan v. Plofchan 04/01/2021 In an action by the trustees of their mother’s revocable trust, seeking injunctive relief to prohibit dissipation of trust assets and conduct interfering with the trust’s administration, and reimbursement for costs and expenses incurred while carrying out duties as co-trustees and attorney-in-fact, the Virginia circuit court erred in concluding that the plaintiffs lacked standing and were collaterally estopped from litigating the issue of the defendant’s relevant states of mental competency, because of rulings in a prior out of state guardianship proceeding. The circuit court also erred in dismissing claims for fees and costs purportedly incurred in carrying out fiduciary duties, because that ruling was based upon the circuit court’s erroneous determination that the plaintiffs lacked standing to bring those claims. The judgment of the circuit court is reversed and this case is remanded for further proceedings.

200637 Bolton v. McKinney 04/01/2021 In an action for violation of a covenant not to sue, plaintiffs should have been permitted to recover attorney’s fees as damages because, unlike in most cases, attorney’s fees are direct or consequential damages of a breach of this type of agreement, and an award of attorney's fees and costs helps to put the non-breaching party in the position it would have been in had the breach not occurred. The circuit court erred in failing to award the amount of attorney’s fees plaintiffs incurred defending the lawsuits initiated by defendant as damages in the current action. The general rule in Virginia law that attorney’s fees are not recoverable as damages is not overruled, and this decision recognizes only that the plaintiffs’ damages for a breach of a covenant not to sue may be the amount of the attorney’s fees incurred by the plaintiffs in defending actions that breached the agreement. The judgment of the circuit court is reversed and the action is remanded for further proceedings in accordance with this opinion.

200790 City of Charlottesville v. Payne 04/01/2021 In a case seeking declaratory and injunctive relief against a city’s actions relating to civil war memorial statues erected in the 1920s, the statutory prohibitions of Code § 15.2-1812 are limited to monuments and memorials erected pursuant to authority granted by that section, and there is no language demonstrating an intent by the General Assembly that it would apply to monuments or memorials erected prior to 1997. The statues in the present case were erected long before there was a statute which both authorized a city’s erection of a war memorial or monument and regulated the disturbance of or interference with that war memorial or monument. Code § 15.2-1812 did not provide the authority for the city to erect the statues, and it does not prohibit the city from disturbing or interfering with them. The circuit court erred in concluding that this Code provision applies to these statues, and in granting attorneys’ fees and costs, as well as declaratory and injunctive relief against the city. The judgments and orders of the circuit court are reversed and vacated, and final judgment is entered for the city.

191218 Shoemaker v. Funkhouser 03/25/2021 In a wrongful death action, judgment dismissing the case on demurrer is reversed. Consistent with § 318 of the Second Restatement of Torts, a landowner has a duty in tort to exercise reasonable care to control the conduct of a third party, who has been granted permission to use the land, to prevent that third party from intentionally harming others or from creating an unreasonable risk of bodily harm to others. The grandparent defendants were present and granted permission for their grandson to engage in the harmful conduct on their land, namely, to shoot at targets in a particular direction. They had the ability to control or forestall their grandson’s actions, and knew or should have known of the necessity and opportunity for exercising such control. The allegations in the complaint are sufficient, if proven, to state a legal duty the defendants owed to persons in the nearby house. Nor does the recreational immunity statute, Code § 29.1-509, provide the defendants with immunity in this situation because it does not, by its text, cover a situation when a landowner grants permission to shoot targets on the landowner’s property. Judgment dismissing the action is reversed, and the case is remanded for further proceedings.

191580 Haas v. Commonwealth (ORDER) 03/25/2021 In an appeal from convictions for one count of taking indecent liberties with a minor with whom defendant had a custodial or supervisory relationship, in violation of Code § 18.2-370.1, and one count of rape, in violation of Code § 18.2-61, any error by the circuit court in refusing to admit impeachment testimony from an aunt of the minor victim proffered by the defendant was harmless. That portion of the Court of Appeals’ decision construing three of the Virginia Rules of Evidence is vacated. The judgment of the Court of Appeals is affirmed in part and vacated in part, and the judgment of the circuit court is affirmed.

190840 NC Financial Solutions v. Commonwealth 02/25/2021 In an action by the Attorney General of Virginia on behalf of the Commonwealth against an on-line lender, seeking to enforce provisions of the Virginia Consumer Protection Act (the “VCPA”), Code §§ 59.1-196–59.1-207, the Federal Arbitration Act (“FAA”) did not preclude the Commonwealth (not a party to the agreements between the lender and Virginia consumers) from pursuing its VCPA enforcement action in a judicial forum. Moreover, the Commonwealth was not precluded from seeking victim-specific relief, including restitution for individual consumers, when enforcing the VCPA on behalf of the public. This construction is consistent with the plain language of the statutory provisions at issue and the remedial purpose of the VCPA. The judgment of the circuit court is affirmed.

200027 Kenner v. Commonwealth 02/25/2021 Convictions for animate object sexual penetration in violation of Code § 18.2-67.2, aggravated sexual battery in violation of Code § 18.2-67.3, and custodial sexual abuse in violation of Code § 18.2-370.1 are affirmed. Since the Commonwealth’s evidence showed that defendant played pornography while he touched the victim, the titles of child pornography found on his computer were particularly relevant to illustrate his inappropriate sexualized attitude toward children in general and toward the victim. The titles were relevant to establishing the elements of “lascivious intent” and that the acts were accomplished “knowingly and intentionally.” Here, the trial court correctly applied the requirement that the legitimate probative value of such evidence must exceed its incidental prejudice to the defendant. In addition, the defendant’s request for further polling of the jury regarding unanimity of its finding of guilt – raised in the separate sentencing phase of proceedings after submission and argument of sentencing instructions to the jury – came too late, and it was not error to deny such polling. The judgment of the Court of Appeals, upholding the defendant’s convictions, is affirmed.

200068 St. John v. Thompson 02/25/2021 A circuit court’s judgment for the plaintiffs on claims that the defendant defrauded and engaged in undue influence over an elderly victim is affirmed. In a fraud suit, a chancellor, in the exercise of discretion, may award attorney’s fees to a defrauded party, considering the circumstances surrounding the fraudulent acts and the nature of the relief granted to the defrauded party, and the fraud need not be particularly egregious. Here, the record reveals a thorough and thoughtful consideration of the issue of attorney’s fees by the circuit court. In addition, the failure to name a particular trust of a party was not error. The judgment is affirmed and the action is remanded for consideration whether any additional attorney’s fees should awarded in the discretion of the circuit court.

200117 Ferrara v. Commonwealth 02/25/2021 Statutes governing sexually violent predator civil commitment proceedings provide that Code § 37.2-906 should apply in probable cause hearings and Code § 37.2-907(A) should apply to commitment hearings. Thus, the bar on expert evidence found in Code § 37.2 906(D) applies in probable cause hearings, not commitment hearings, and the trial court erred in concluding that this statute barred the respondent from introducing evidence at his commitment hearing. Here, after being advised of the consequences of refusing to cooperate with the required evaluation, the respondent persisted, and the predictable consequences neither deprived him of a fair trial nor violated due process. Any error by the circuit court in construing the statute in this instance was harmless, because the result would have been the same: the prior psychological evaluator’s reports and testimony would have been excluded as substantive evidence, the trial would not have unfolded any differently, and the jury would have reached the same outcome. The judgment is affirmed.

191030 AlBritton v. Commonwealth 02/04/2021 In a personal injury action against the Commonwealth by an inmate in a state penitentiary, sued the Commonwealth of Virginia, alleging that the plaintiff was injured while falling down stairs negligently maintained by the Department of Corrections (“DOC”), dismissal of the complaint with prejudice by the circuit court for three alternative reasons is reversed, and the matter is remanded for further proceedings. The most reasonable interpretation of the grievance procedures is that an inmate may timely send a Level II grievance appeal by placing it in the prison mailing system and, that by doing so, the inmate has appealed the grievance to the next level. On remand, the circuit court should determine whether he did in fact mail that grievance within the applicable five-day deadline. Nor was summary judgment properly granted on the claim of the Commonwealth’s primary negligence or the plaintiff’s alleged contributory fault, and his assignment of error was sufficient to permit consideration of the arguments presented. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

190817 Platt v. Griffith (ORDER Reissued 5/27/2021) 01/21/2021 (Revised 05/27/2021) In an action against a decedent’s widow and a personal representative of the estate, alleging claims of breach of fiduciary duty, waste, constructive fraud, conversion, conspiracy and specifically alleging undue influence of the decedent regarding $13 million in assets, the circuit court did not err in dismissing the complaint for lack of standing on the part of the plaintiffs. The personal representative, not a beneficiary of the estate, is the proper party to litigate on behalf of the estate and that is true even when the personal representative is also a possible beneficiary of the estate. Although the plaintiffs consistently denied that they are challenging the estate or suing on behalf of the estate, their claims relating to rescission of inter vivos transfers are inherently on behalf of the estate as they would have belonged to the decedent during his lifetime, under Code §§ 8.01-25, 64.2-519, and 64.2-520. The estate would directly benefit if the claims prevailed, but the present plaintiffs would only indirectly benefit from their claims as the potential beneficiaries of the decedent’s 2010 will. Consequently, they do not have standing to bring the claims asserted, and the circuit court’s judgment is affirmed.

191680 Palmyra Associates, LLC v. Commissioner of Highways 12/17/2020 In a condemnation proceeding, the circuit court did not abuse its discretion in striking the testimony of a co-owner of the property, designated as an expert, which was based on a per-lot valuation of the residue of the property after the taking, in a case where the property had not been subdivided into lots. Nor was there an abuse of discretion in the court’s refusal to admit ten-year-old site plans into evidence. The landowner’s agreement after trial to confirmation of the valuation of the take bars a third assignment of error under the invited-error doctrine. The judgment of the circuit court is affirmed.

191443 Wilburn v. Mangano 12/10/2020 The terms of a testator’s codicil providing an option to purchase certain real property at its “fair market value” on a given date, without more specificity, did not provide a sufficiently certain price term to allow a court to compel specific performance of a contract regarding the purchase of the real estate. The judgment of the circuit court sustaining a demurrer to the specific performance claim is affirmed.

191500 Graves v. Shoemaker 12/10/2020 In a vehicular personal injury suit, the circuit court abused its discretion in ruling that the plaintiff could not cross-examine a defense’s expert witness on his prior financial relationship with the defendant’s insurer. While in this case the expert was hired by defense counsel rather than the insurer, if a plaintiff can demonstrate a substantial relationship between the witness and the insurer, its probative value concerning potential bias or prejudice of the witness outweighs any prejudice to the defendant resulting from the jury’s knowledge that the defendant carries liability insurance. An insurer’s payment of a considerable sum of money to an expert for his prior testimony favorable to its insureds can be enough to establish a substantial relationship on its own, and here the expert received nearly $800,000 over the course of seven years from this insurer. The issue of the defense expert’s bias was a consideration for the jury. The judgment is vacated and the matter is remanded.

191563 Johnson v. City of Suffolk 12/10/2020 In a declaratory judgment action by lessees from the Commonwealth for the purpose of raising oysters in the Nansemond River, bringing an inverse condemnation claim against the City of Suffolk and the Hampton Roads Sanitation District alleging that discharges from a sewer system operated by the respondents polluted the waters in which they raise their oysters, the circuit court did not err in granting the respondents’ demurrers and dismissing the case. The judgment is affirmed.

190643 Jones v. Phillips 12/03/2020 On a motion to quash in a garnishment proceeding, an insurer’s payments under a fire insurance policy were not immune from garnishment as “proceeds of the sale or disposition” of property held in trust under former Code § 55-20.2(C), recently recodified as Code § 55.1-136(C). Disposition involves an act of transferring something to another’s care or possession, or the relinquishing of property, and in this case the property was not transferred to the insurer or to anyone else. There being no disposition of property, the statutory immunity does not apply. An alternative argument that a couple’s contractual right to the insurance payments as intangible personal property was held by them as tenants by the entirety is also rejected, because the policy nowhere created a contractual right held by them with the common law right of survivorship, an essential attribute of a tenancy by the entirety. The judgment of the circuit court quashing and dismissing the garnishment is reversed, and the case is remanded.

190846 Evans v. Commonwealth 12/03/2020 Code § 19.2-294 does not preclude conviction for possession of a firearm by a convicted felon when the defendant has been convicted in a prior prosecution of carrying a concealed weapon. What is the “same act” under Code § 19.2-294 turns on a common sense assessment of whether (1) the act in question is a separate volitional act, (2) the acts are separated in time and place, and (3) the act differs in its nature. Here, concealing a weapon differs in its qualitative nature from merely possessing it and the additional act of concealing the weapon makes it a different act from merely possessing it. Thus, the successive prosecutions in the present cases did not rest on the “same act” and Code § 19.2-294 does not bar the subsequent prosecutions. Inconsistent prior precedent is overruled, and the defendants’ convictions in these consolidated appeals are affirmed. Combined case with Record No. 190898

190898 Conway v. Commonwealth 12/03/2020 Code § 19.2-294 does not preclude conviction for possession of a firearm by a convicted felon when the defendant has been convicted in a prior prosecution of carrying a concealed weapon. What is the “same act” under Code § 19.2-294 turns on a common sense assessment of whether (1) the act in question is a separate volitional act, (2) the acts are separated in time and place, and (3) the act differs in its nature. Here, concealing a weapon differs in its qualitative nature from merely possessing it and the additional act of concealing the weapon makes it a different act from merely possessing it. Thus, the successive prosecutions in the present cases did not rest on the “same act” and Code § 19.2-294 does not bar the subsequent prosecutions. Inconsistent prior precedent is overruled, and the defendants’ convictions in these consolidated appeals are affirmed. Combined case with Record No. 190846

190802 Sheehy v. Williams 11/25/2020 On appeals from a civil judgment finding that the appellant violated Code § 8.01-40.4 by disseminating images in a manner prohibited by Code § 18.2-386.2, in light of payment of the judgment amount in full while the appeals were pending, the Supreme Court retains jurisdiction but temporarily remands the case to the trial court pursuant to Rule 1:1B(b), for the purpose of making findings of fact regarding eight specific factual issues necessary to deciding a motion to dismiss a pending appeal relating to the issue of voluntary-payment of the judgment. Combined case with Record No. 191089

191089 Sheehy v. Williams 11/25/2020 On appeals from a civil judgment finding that the appellant violated Code § 8.01-40.4 by disseminating images in a manner prohibited by Code § 18.2-386.2, in light of payment of the judgment amount in full while the appeals were pending, the Supreme Court retains jurisdiction but temporarily remands the case to the trial court pursuant to Rule 1:1B(b), for the purpose of making findings of fact regarding eight specific factual issues necessary to deciding a motion to dismiss a pending appeal relating to the issue of voluntary-payment of the judgment. Combined case with Record No. 190802

191233 Commonwealth v. Groffel (ORDER) 11/19/2020 In an appeal by a defendant challenging some of his convictions on five counts of transporting a firearm while subject to a protective order (Code § 18.2-308.1:4), and two counts of possession of a firearm or ammunition by a felon (Code § 18.2-308.2), raising issues of double jeopardy as to certain of the convictions, in which the Court of Appeals affirmed four convictions for transporting a firearm while subject to a protective order and reversed one conviction for possessing ammunition after conviction of a felony, the judgment is affirmed for the reasons stated by the Court of Appeals in Groffel v. Commonwealth, 70 Va. App. 681, 695 (2019). Combined case with Record No. 191360

191360 Groffel v. Commonwealth (ORDER) 11/19/2020 In an appeal by a defendant challenging some of his convictions on five counts of transporting a firearm while subject to a protective order (Code § 18.2-308.1:4), and two counts of possession of a firearm or ammunition by a felon (Code § 18.2-308.2), raising issues of double jeopardy as to certain of the convictions, in which the Court of Appeals affirmed four convictions for transporting a firearm while subject to a protective order and reversed one conviction for possessing ammunition after conviction of a felony, the judgment is affirmed for the reasons stated by the Court of Appeals in Groffel v. Commonwealth, 70 Va. App. 681, 695 (2019). Combined case with Record No. 191233

190738 Wood v. Martin 10/22/2020 In a contest over rights to a share of $1.5 million in life insurance proceeds interpleaded into court by an insurer, the circuit court did not err in awarding the decedent’s ex-wife the share of policy proceeds agreed upon in a property settlement agreement that had been reached between the divorcing spouses, and that had been ratified, affirmed, and incorporated into the divorce decree several years before decedent’s death. The ex-wife had a superior equitable claim to the proceeds by a written assignment under the final divorce decree that incorporated the PSA, and the circuit court’s judgment is affirmed.

191000 Dumfries-Triangle Rescue Squad v. Board of Supervisors 10/22/2020 The circuit court erred in concluding that a county’s board of supervisors could dissolve the corporate status of a rescue squad registered with the State Corporation Commission in 1959 as a Virginia non-stock corporation under the provisions of Chapter 2 of Title 13.1. While the board had the power to cease its contractual relationship with the squad, its non-stock corporation was not an agency established pursuant to a later-enacted statute, Code § 32.1 111.4:7(D), which therefore provided no authority the board to dissolve its corporate status. The circuit court therefore erred as a matter of law by granting summary judgment for the board, entering a declaratory judgment, issuing a permanent injunction, and in appointing a receiver to wind up the corporate affairs of the squad’s non-stock corporation. The judgment is reversed, and final judgment is entered on this appeal.

191127 Neal v. Fairfax County Police 10/22/2020 In a suit under the Government Data Collection and Dissemination Practices Act, Code §§ 2.2-3800 to -3809 (Data Act), challenging a local police department’s use of information gathered and stored using automated license plate readers (ALPR), the circuit court erred in concluding that this constitutes an unlawful “information system” under the Act. To constitute an information system under the Data Act, an agency’s record-keeping process must contain both personal information and the name, personal number, or other identifying particulars, and the facts as found by the circuit court make it clear that the ALPR system itself does not include such information. Although other databases maintained by other agencies can allow police officers to learn the name, personal number, or other identifying particulars of a data subject, the ALPR system does not. Therefore, the police department’s passive use of the ALPR system is lawful under the Data Act. The judgment is reversed and final judgment is entered on this appeal in favor of the police department. Combined case with Record No. 191139

191132 McClary v. Jenkins 10/22/2020 In an action by local taxpayers seeking declaratory and injunctive relief against a sheriff and a Virginia locality concerning the sheriff’s cooperation agreement with the Immigration and Customs Enforcement branch of the United States Department of Homeland Security, undertaking to enforce federal immigration laws, the circuit court did not err in sustaining the defendants’ demurrers. The judgment dismissing the action is affirmed on the ground that the plaintiffs lack taxpayer standing based on the absence of any identified appropriation of funds being challenged.

191139 Fairfax County Police v. Neal 10/22/2020 In a suit under the Government Data Collection and Dissemination Practices Act, Code §§ 2.2-3800 to -3809 (Data Act), challenging a local police department’s use of information gathered and stored using automated license plate readers (ALPR), the circuit court erred in concluding that this constitutes an unlawful “information system” under the Act. To constitute an information system under the Data Act, an agency’s record-keeping process must contain both personal information and the name, personal number, or other identifying particulars, and the facts as found by the circuit court make it clear that the ALPR system itself does not include such information. Although other databases maintained by other agencies can allow police officers to learn the name, personal number, or other identifying particulars of a data subject, the ALPR system does not. Therefore, the police department’s passive use of the ALPR system is lawful under the Data Act. The judgment is reversed and final judgment is entered on this appeal in favor of the police department. Combined case with Record No. 191127

190603 Day v. MCC Acquisition, LC 10/15/2020 In an interpleader action filed by the Treasurer of the Commonwealth seeking a judicial resolution of two disputed claims of ownership of proceeds from the sale of unclaimed corporate stock, the reasoning and result of the circuit court holding that the buyer of the original stock, not the seller, had a superior equitable claim of ownership and awarding the proceeds accordingly — well as rejecting the seller’s argument that the buyer’s in rem claim was untimely under the five-year statute of limitations that Code § 8.01-246 imposes on in personam claims asserting breaches of written contracts — were correct and its judgment is affirmed.

190957 Alexandria City Public Schools v. Handel 10/15/2020 In a workers’ compensation case, the Court of Appeals erred by ruling that a claimant does not need to prove a structural or mechanical change in every body part affected by an obvious accident as long as there is at least one sudden mechanical or structural change and each injury is caused by the accident. The structural or mechanical change is the injury, when it produces harm or pain or a lessened facility of the natural use of any bodily activity or capability. Without such a change in a body part, there is no injury to it under the Workers Compensation Act. The judgment of the Court of Appeals is vacated and the case is remanded.

190542 International Paper Company v. County of Isle of Wight 09/17/2020 In an action under Code § 58.1-3984(A) by a New York-based international paper production company for relief from a county’s tax assessment on machinery and tools in a Virginia factory, the circuit court did not err in sustaining a motion to strike the taxpayer’s claims regarding vested rights, separation of powers, and the county’s alleged lack of statutory authority. However, the circuit court did err in granting a motion to strike two counts of the taxpayer’s application for correction of the machinery and tools tax assessment that on the grounds that a tax increase accompanied by a tax relief program for certain taxpayers, that operated as a partial tax exemption, resulted in an assessment of plaintiff’s property which was non-uniform, invalid, and illegal. The judgment of the circuit court is reversed in part, and the case is remanded to the circuit court for further proceedings in accordance with this opinion.

191194 Hampton v. Meyer 08/27/2020 Misidentification in an initial complaint of the identity of the defendant driver of a large sport utility vehicle that struck plaintiff’s vehicle was a misnomer, rather than a misjoinder, and the filing of a new complaint to correct it after a nonsuit was not barred by the statute of limitations. The judgment of the circuit court dismissing a personal injury action on limitating grounds is reversed and the case is remanded for further proceedings.

190331 Berry v. Fitzhugh 08/20/2020 In a partition action, the circuit court did not err in refusing to award the plaintiff recovery of attorney’s fees against her four defendant siblings under Code § 8.01-92, which only requires an award of fees when they are incurred for services rendered to unrepresented parceners, and the circuit court found as a fact that no services were rendered to the defendants here. Code § 8.01-31 authorizes an accounting in equity against a tenant in common or coparcener for receiving more than a just share or proportion, but a court acting in equity has discretion in the award of costs, and absent a showing that it abused its discretion, the decision will be affirmed. The ruling on non-recovery of costs is also affirmed because the unchallenged finding that two of the siblings provided upkeep for the property provided a separate and independent legal basis for affirming the trial court’s ruling on this issue. The judgment is affirmed.

191723 Baumann v. Virginia State Bar 07/30/2020 In an attorney’s appeal challenging a decision of the Virginia State Bar Disciplinary Board, it is determined that certain challenged provisions of the Virginia attorney disciplinary system are not unconstitutional, and that the Board applied the correct legal standard when it reviewed the District Committee’s decision imposing discipline. Substantial evidence in the record supported the Board’s determination that the attorney violated Rules 1.2, 1.4, and 1.5 of the Virginia Rules of Professional Conduct, and the decision is affirmed.

191159 Wal-Mart Stores East, LP v. State Corporation Commission 07/09/2020 In consolidated appeals challenging the disposition of the State Corporation Commission denying petitions filed pursuant to Code § 56-577(A)(4) seeking permission to combine the electric-energy demand of separate business locations to qualify to buy electricity from sources other than the incumbent public utilities, the Commission exercised its delegated discretion in a manner consistent with its statutory authority, and its order denying the petitions is affirmed. The statute provides the Commission with discretion to grant or deny such requests, and the contentions that it erred as a matter of law or acted arbitrarily and capriciously in denying the petitions, or in denying a motion for reconsideration, are rejected. Combined case with Record No. 191160

191160 Wal-Mart Stores East, LP v. State Corporation Commission 07/09/2020 In consolidated appeals challenging the disposition of the State Corporation Commission denying petitions filed pursuant to Code § 56-577(A)(4) seeking permission to combine the electric-energy demand of separate business locations to qualify to buy electricity from sources other than the incumbent public utilities, the Commission exercised its delegated discretion in a manner consistent with its statutory authority, and its order denying the petitions is affirmed. The statute provides the Commission with discretion to grant or deny such requests, and the contentions that it erred as a matter of law or acted arbitrarily and capriciously in denying the petitions, or in denying a motion for reconsideration, are rejected. Combined case with Record No. 191159

181670 Barrett v. Minor (ORDER) 06/18/2020 On an order to show cause, applying standards of Code § 17.1-410(A)(3) and (B) and Rule 5:17(c)(2), this appeal from underlying domestic relations proceedings fails to include a statement setting forth in what respect the decision of the Court of Appeals presents the requisite substantial constitutional question or a matter of significant precedential value, and it is dismissed. Appellant’s motion for sanctions is denied and, under Code § 8.01-271.1, sanctions requiring reimbursement of opposing counsel’s fees are awarded against the appellant because this is the third consecutive appeal that warrants dismissal for the same defect, and the reasonableness of opposing counsel’s declaration of attorney’s fees and costs incurred as a result of this conduct is unchallenged. In addition, to protect this Court from repetitious and harassing conduct that abuses the judicial process, considering appellant’s history of vexatious litigation, absence of good faith, the extent of burdens caused, and inadequacy of alternative sanctions, he shall be subject to a pre-filing injunction which requires him to obtain permission from the Court before filing other cases or appeals.

190834 Townes v. Virginia State Board of Elections 06/18/2020 In a petition for removal of two members of a local electoral board, the circuit court erred when it instructed the jury that the burden of proof was merely a preponderance, when it should have been clear and convincing evidence. The court did not err by allowing the Commonwealth to expand its grounds for removal beyond those pled in its sworn petition. The circuit court abused its discretion when it excluded certain defense evidence at trial, but ruled correctly regarding other evidentiary matters. The judgment is reversed and the case is remanded for further proceedings.

190620 Sosebee v. Franklin County School Board 06/11/2020 In an action for declaratory and injunctive relief by parents who homeschool their children, the circuit court erred when it denied relief to bar enforcement of the local school board’s policy requiring parents to provide a birth certificate and proof of residence in the county for any child who is homeschooled.

190181 Green v. Diagnostic Imaging Associates 06/04/2020 The circuit court erred in dismissing a suit for wrongful death against Virginia medical providers on the basis that the plaintiff had received a personal injury settlement against Kentucky medical providers concerning the same injury. Plaintiff’s ability to recover in Virginia for the personal injury or wrongful death of the decedent was not an election he was required to make under Code § 8.01-56. Because plaintiff alleged that the decedent died as a result of the injury she suffered at the hands of negligent defendants in Virginia, his claim could only proceed as a wrongful death action pursuant to Code § 8.01-50. Code § 8.01-56 does not prohibit filing a wrongful death action in Virginia because of a personal injury settlement in another state. Neither doctrines relating to double recovery, claim splitting, nor judicial estoppel apply here to bar this suit. The judgment is reversed and the case is remanded for further proceedings.

171205 Cole v. Smyth County Board of Supervisors 05/28/2020 In a petition filed pursuant to the Virginia Freedom of Information Act, the circuit court erred in ruling that closed sessions were properly held by a county Board of Supervisors, and that the discussions in the closed sessions were exempted, under Code § 2.2-3711(A)(7), from the open meeting requirements of the VFOIA. The judgment of the circuit court is reversed and vacated, and the case remanded for entry of judgment for the petitioner consistent with this opinion and to address the issue of her entitlement to attorney’s fees under Code § 2.2-3713(D).

190389 Erie Insurance Exchange v. Alba 05/28/2020 In an insurer’s subrogation suit against a tenant who leased a condominium unit from the individual owner, seeking to recover more than $800,000 for payments it made after a fire originating in the unit caused extensive damage to the premises, treated below as an application for declaratory relief, the circuit court erred in finding that the condominium association’s insurance provider waived its subrogation rights against the tenant of the individual unit owner, where the tenant was neither a named or nor an additional insured under the policy. The judgment is reversed, and the case is remanded for further proceedings.

190449 Byrne v. City of Alexandria 05/28/2020 In ruling on a landowner’s appeal from a city council’s decision in a land-use case, there was no error in granting a motion craving oyer of the entire legislative record upon which the city council’s decision was based, or in thereafter sustaining a demurrer. The judgment dismissing the case with prejudice is affirmed.

190580 Rowland v. Town Council of Warrenton 05/28/2020 In litigation challenging a rezoning of 31 acres by a town council, the circuit court correctly held that a local government may accept a conditional proffer from developers as part of a rezoning application that alters a minimum mixed-use requirement of a zoning district below that specified in the local zoning ordinance. Express language in Code §§ 15.2-2297 and 15.2-2298 makes clear that such proffers are accepted as part of an amendment to the zoning ordinance or as a part of a rezoning or amendment to a zoning map. The clearly stated purpose of proffers for rezoning under Code § 15.2-2296 is to provide a more flexible and adaptable zoning method for the protection of the community, and thus the General Assembly intended for these statutes to grant localities the authority to permit deviations from the requirements of a zoning ordinance by accepting voluntary proffers as part of a rezoning application. Applying the fairly-debatable standard, the circuit court did not err in sustaining the demurrer to the amended complaint’s challenge to the legislative judgment. Nor was re-committal of the issues to the local planning commission required. The judgment of the circuit court upholding the approval of the developers’ conditional zoning application by the town council is affirmed.

190671 Mackey v. McDannald 05/28/2020 In an action by the estates of three deceased partners in a lawfirm against a former partner for conversion of shares of stock owned by the former firm, Code § 8.01-229(D) tolled the running of the statute of limitations because the defendant committed an obstructive act with the intent to obstruct a future plaintiff’s filing of an action – regardless of whether the cause of action had accrued at the time of the obstructive act. Here, the defendant’s misrepresentation to an attorney working with the executor of one of the deceased partner’s estates that the stock was worthless was sufficient to toll the statute of limitations as to that party until they actually learned of the stock’s value. However, because the defendant demonstrated no obstructive intent as to the estates of the other two deceased partners in the former firm, Code § 8.01-229(D) did not toll the limitations period for their claims. The defendant converted the stock because he lacked a right to possess it, while executor of one of the deceased partners had an immediate right of possession to carry out her administrative duties as executor of her husband’s estate. The judgment is affirmed as to that executor, reversed as to the other estates, and the case is remanded for further proceedings consistent with this opinion.

190764 Hooked Group, LLC v. City of Chesapeake 05/28/2020 Dismissal of a landowner’s action seeking compensation from a Virginia city for reducing its access to public roads is affirmed. Exercise of the city’s police power to close access to and from the street in this case did not, as a matter of law, deprive the landowner of reasonable access, as the property retained access to a major public highway. Under Article I, § 11 of the Constitution of Virginia and implementing legislation, recovery for loss of access to property requires a material impairment of direct access to property, and here the landowner did not plead any facts that would indicate that closure of access was of real importance or great consequence, or that it was significant or essential. The trial court correctly granted the city’s demurrer, and the judgment is affirmed.

190832 Larsen v. Stack 05/28/2020 In ruling on a declaratory judgment case requesting construction of a decedent’s will and a determination of the extent of his widow’s interest in his house and farm, the circuit court did not err in receiving parol evidence from the attorney who drafted the will, or in ruling that the widow had a right to live in the house for so long as she is physically and mentally able to do so, rather than a life estate in the entire property. The judgment is affirmed.

191056 Fernandez v. Commissioner of Highways (ORDER) 05/28/2020 In a declaratory judgment action seeking an order that the Commissioner of Highways provide statutorily required relocation benefits under Code § 25.1-406 of the Virginia Relocation Assistance Act, the circuit court did not err in sustaining a defense demurrer because there is no implied private cause of action under the Act for payment of relocation expenses. In addition, the plaintiff failed to exhaust administrative remedies afforded to him under 24 VAC § 30-41-90, and had Virginia Administrative Process Act and mandamus remedies available. The judgment sustaining the demurrer in the present action is affirmed.

191128 Fairfax Board of Supervisors v. Ratcliff (ORDER) 05/28/2020 An appeal from a circuit court’s ruling against a locality in a zoning matter involving short term rental of property is dismissed as moot. The property owners, who prevailed in the circuit court, moved to dismiss the locality’s appeal on the ground that they have now sold their home, and thus there is no live controversy between the parties. When a prevailing party voluntarily and unilaterally moots a case, preventing an appellant from obtaining appellate review, vacatur of lower court judgments is generally appropriate. Because the mootness in the present case is the result of the unilateral action of the appellee, not the appellant, the judgment of the circuit court will be vacated, and the appeal is dismissed.

190107 Padula-Wilson v. Landry 05/14/2020 In a case brought by the mother of three children alleging claims of tortious interference with parental rights as well as defamation, the judgment of the circuit court dismissing the action is affirmed. A tort cause of action for interference with parental rights does not lie on the facts as alleged in this action against an attorney who served as guardian ad litem and various mental health professionals who participated in prior contested custody and visitation proceedings. The allegedly defamatory statements by one therapist are also non-actionable statements of opinion, and for this reason dismissal of the defamation claim is also upheld. The judgment dismissing the action is affirmed.

190222 Viers v. Baker 05/14/2020 In a suit by a former employee against an elected Commonwealth’s Attorney alleging defamation and intentional infliction of emotional distress, the circuit court erroneously applied federal immunity law and, under Virginia law, the facts as alleged—i.e., that defendant made false statements solely to assuage discontent among his constituents and his political party, without any plausible connection to a tenable pending or forthcoming criminal prosecution—do not qualify as performing judicial functions as required for quasi-judicial immunity, and were not prosecutorial duties intimately associated with the judicial phase of the criminal process. Thus, the circuit court’s judgment sustaining a demurrer to the defamation claim in this action is reversed. On the emotional distress claim, even assuming that plaintiff’s allegations are true and could be proved at trial by clear and convincing evidence, they do not establish the elements of that cause of action, thus demurrer was properly sustained to that claim. The judgment is reversed in part and affirmed in part, and the case is remanded for further proceedings.

190345 Davis Construction Corp. v. FTJ 05/14/2020 In an action by a supplier of construction materials, the circuit court did not err in finding a general contractor liable under the doctrine of unjust enrichment. Where a contract actually governs the relationship of the parties, it will foreclose relief under an unjust enrichment theory, but here a joint check payment agreement was of limited scope and the plaintiff did not raise claims under that agreement. Further, the general contractor’s conduct above and beyond its terms – repeatedly inducing the plaintiff to ship supplies and providing assurances of payment in the face of knowledge that its subcontractor lacked the means to pay – combined with the fact that the general contractor did not pay anyone for those supplies, permits the plaintiff to obtain relief. The bar against imposing double payment obligations on an unjust enrichment defendant is thus inapplicable here. This disposition is limited to the facts presented and, in ordinary circumstances, a supplier of labor or materials to a subcontractor will not be able to obtain a such relief against an owner or a general contractor. The judgment is affirmed.

190621 Loudoun County v. Richardson 05/07/2020 In a Workers’ Compensation case, in determining the amount of compensation arising from a work-related injury, Code § 65.2-503 requires that the extent of the worker’s functional loss of use to be measured before implantation of a prosthetic device that improves the worker’s functionality. The judgment of the Court of Appeals awarding benefits on this basis is affirmed.

180993 Jefferson v. Commonwealth (ORDER) 04/09/2020 A sentencing order on which the circuit court erroneously wrote “2018,” when 2017 was the date, started the period for filing a notice of appeal as of the actual date the order was entered. The original order reflected adjudication of guilt, imposed a sentence, and remanded the defendant into custody. Thus, it was a final order that left nothing to be done but ministerial execution. A manual correction penned by the judge the following month was merely correction of a scrivener’s error, and made no mention of modifying, vacating, or suspending the judgment contained in the original order, thus it did not disrupt the finality of the original order. Therefore, the Court of Appeals correctly determined that the defendant’s appeal was untimely.

190117 Curtis v. Highfill 04/09/2020 In a wrongful death case, the circuit court erred in striking the evidence supporting a claim for punitive damages against a physician who repeatedly prescribed narcotic pain medication to a patient. Willful and wanton negligence is acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another. Here, based on the evidence at trial, the jury could have reasonably determined that the defendant medical doctor was conscious of the risks associated with the long-term use of Percocet, which contains Oxycodone, and decedent’s increased risk of drug abuse and addiction, but consciously disregarded those risks when he continued to prescribe it for decedent while knowing that he had not examined her for signs of abuse or addiction for a significant period of time. Accordingly, the administrator’s punitive damages claim should have been submitted to the jury. Under the particular factual scenario presented, that portion of the judgment is reversed and the case is remanded for further proceedings.

190180 Musgrove Construction Co. v. Young 04/09/2020 In a towing company’s suit on theories of unjust enrichment and quantum meruit arising from responding to an overturned dump truck, the vehicle owner did not request the plaintiff’s services, thus a quantum meruit cause of action for a contract implied in fact, does not apply. Instead, the test for unjust enrichment provides the rule of decision, and the plaintiff towing company is entitled to recover to the extent that the truck owner benefitted from its actions. Here, the doctrine of unjust enrichment forecloses recovery for some of the charges on which the plaintiff obtained recovery in this matter. The judgment is affirmed in part and reversed in part, and the matter is remanded for a hearing to determine damages recoverable in light of this opinion.

190356 VACORP v. Young 04/09/2020 In an injured student’s declaratory judgment action seeking a ruling regarding the available scope of coverage with respect to a school board’s uninsured/underinsured motorist protections under a contractual self-insurance risk pooling arrangement covering school bus transportation, the circuit court did not err in concluding that the available UM/UIM coverage was $1 million, as provided in the contract between the school board and the risk pool, and that that the legislature has imposed a floor of $50,000, not a cap on UM/UIM coverage for entities that self-insure. The judgment of the circuit court is affirmed.

190439 Lambert v. Commonwealth 04/09/2020 In a prosecution leading to convictions for aggravated involuntary manslaughter in violation of Code § 18.2-36.1 and driving while intoxicated in violation of Code § 18.2-266, the Commonwealth presented evidence sufficient to support jury verdicts finding beyond a reasonable doubt that the defendant had self-administered intoxicants that impaired his ability to drive safely, prior to the accident in this case. The judgment of the Court of Appeals upholding these convictions is affirmed.

190541 Caldwell v. Commonwealth 04/09/2020 In a prosecution under Code § 18.2-188(2) for the crime of defrauding a hotel restaurant by obtaining food without paying, the circuit court did not find the essential element of specific intent to defraud at the time the defendant obtained the food beyond a reasonable doubt. The judgment of conviction, affirmed by the Court of Appeals, is reversed.

181313 Young-Allen v. Bank of America 04/02/2020 The circuit court did not err by sustaining the demurrers to a former homeowner’s equitable rescission and breach of fiduciary duty claims challenging a foreclosure sale. The plaintiff’s amended complaint failed to plead facts establishing that she incurred any harm resulting from the alleged breach of the deed of trust by the defendant bank or that its substitute trustee breached its fiduciary duty by conducting the foreclosure sale. The judgment dismissing the claims against both defendants with prejudice is affirmed.

190266 McQuinn v. Commonwealth (ORDER) 04/02/2020 Virginia case law has held that a defendant may be convicted of using a firearm during a robbery when the jury had found him not guilty of the robbery itself. The rationale behind these precedents is reiterated: Because the jury (i) may have erred in failing to convict the defendant of the predicate offense while finding him guilty of the compound offense, or (ii) may have made a mistake in finding the defendant guilty of the compound offense while finding him not guilty of the predicate offense, or (iii) may have simply decided to be lenient with the defendant by convicting him only of the compound offense. Inconsistent verdicts present a situation where “error,” in the sense that the jury has not followed the court’s instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, and the fact that the Commonwealth is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course. Virginia is more careful than most states to protect the inviolability and secrecy of jurors’ deliberations, and thus a court, in a case like this, is unlikely to discover what motivated the jury. The judgment of the Court of Appeals in refusing to vacate the convictions for using a firearm in the commission of an abduction and using a firearm in the commission of a malicious wounding is affirmed.

190094 Akers v. Commonwealth 03/26/2020 In an inmate’s appeal from the trial court’s refusal to entertain a motion to reduce his sentence under Code § 19.2-303, because he had been transferred into the custody of the Department of Corrections, the judgment of the Court of Appeals concluding that the trial court was deprived of jurisdiction to hear this motion by the transfer is affirmed. The legislature’s intent expressed in Code § 19.2-303 is clear and needs no interpretation. It establishes an absolute event, i.e. a transfer to the Department of Corrections, after which a trial court can no longer modify a sentence. The constitutional claims advanced by the inmate are insubstantial, and the judgment of the Court of Appeals is affirmed.

190206 Weatherholt v. Commonwealth 03/19/2020 In a drug distribution prosecution, the defendant’s Sixth Amendment right to counsel was not violated when – approximately one week before trial – he appeared before the circuit court without counsel to indicate whether he wished to have new counsel appointed in place of his attorney, whose license to practice law in Virginia was temporarily suspended. The purpose of this hearing was to advise the defendant of the status of his case and to ascertain his wishes with respect to having counsel of his choice. This inquiry did not require assistance of counsel to formulate his response and, thus, this was not a critical stage of the criminal proceedings that would give rise to a presumption of prejudice from not having counsel at that time. The judgment of the Court of Appeals upholding the defendant’s convictions is affirmed.

181680 Wakeman v. Commonwealth (ORDER) 03/12/2020 In an appeal from a conviction for rape, the conviction is affirmed. For the reasons expressed by the Court of Appeals in Wakeman v. Commonwealth, 69 Va. App. 528, 536 (2018), the trial court’s acceptance of Sexual Assault Nurse Examiner testimony by a qualified witness – although she had not completed the examination for formal certification – was not an error given the knowledge of the witness beyond that of an average person, and the standards under Virginia Rule of Evidence 2:702, and in the absence of a statutory bar on uncertified SANEs testifying as experts in the area of sexual assault forensic examinations.

190260 Hunter v. Hunter 03/12/2020 In a beneficiary’s action seeking declaratory interpretation of two trust instrument provisions, the circuit court erred in granting the defendant trustee’s motion for summary judgment on her counterclaim on the basis that the plaintiff’s declaratory judgment action had violated the no-contest provision of the trust, concluding that his interest in the trust was revoked. The declaratory judgment action did not trigger the no-contest provision requiring the forfeiture of the plaintiff beneficiary’s interest in the trust. The summary judgment dismissing his declaratory action with prejudice is reversed, and the case is remanded for further proceedings.

181608 Butcher v. Commonwealth 02/27/2020 In a criminal case charging misdemeanor failure to stop at the scene of an accident in violation of Code § 46.2-894, commonly known as the hit-and-run statute, in which the Court of Appeals of Virginia affirmed the defendant’s conviction, holding that the evidence proved that he had failed to satisfy either of two post-accident reporting requirements specified in the statute, the judgment of the Court of Appeals upholding the conviction is affirmed on that basis. That portion of the Court of Appeals’ decision addressing the conjunctive or disjunctive interpretation of the reporting requirements of the statute is vacated.

181613 Alexander v. Cobb 02/27/2020 In an action for an accounting, partition, and related relief relating to the ownership interests of two siblings in three tracts of land formerly owned by a testator, the circuit court did not err in ruling that claim preclusion arising from two prior litigations bars the defendant daughter from relitigating her claim of a 100% ownership interest in the properties based upon certain deeds of sale she received from her mother, or in concluding that she has a 75% interest and her plaintiff brother has a 25% interest in the properties. The circuit court’s judgment finding those ownership interests, and entering an order appointing special commissioners for sale of the properties and partition of the proceeds in accordance with those ownership interests, is affirmed.

181228 Flanders v. Commonwealth 02/13/2020 Because it is possible for a felony hit and run offense to have been committed with malice and for the resulting death to fall within the res gestae of that offense, felony hit and run may serve as a predicate offense for felony homicide. In this case, the evidence viewed in the light most favorable to the Commonwealth established that the defendant intentionally acted in a manner endangering the victim such that malice could be implied from her conduct and that his death was sufficiently related to the hit and run in time, place, and causal connection such that it was within the res gestae of the felony hit and run upon such facts. In this case, the evidence viewed in the light most favorable to the Commonwealth established that the defendant intentionally acted in a manner endangering the victim such that malice could be implied from her conduct, and that his death was sufficiently related to the hit and run in time, place, and causal connection such that it was within the res gestae of the felony hit and run. Accordingly, the judgment of the Court of Appeals upholding the conviction for felony homicide is affirmed.

190019 Tahboub v. Thiagarajah 02/13/2020 In a medical malpractice action, the plaintiff’s evidence that the defendant doctors departed from the standard of care and caused the patient’s death was sufficient to establish a prima facie case against both defendants and to survive a motion to strike at the conclusion of plaintiff’s case-in-chief. The judgment of the circuit court resolving the case on the motion to strike is reversed, and the case is remanded for a new trial.

181684 Taylor v. Commonwealth 02/06/2020 A conviction for attempted identity theft under Code § 18.2-186.3 is affirmed, where the evidence was that the defendant stole a check, made it payable to herself for a certain amount, forged the account owner’s signature and – using her own driver’s license as identification – presented it to a bank teller for cash, but left the bank before completing the transaction. These actions constituted attempted identity theft under the plain meaning of the statute, and the judgment of the Court of Appeals upholding the conviction is affirmed.

181439 Portsmouth 2175 Elmhurst, LLC v. City of Portsmouth 01/23/2020 In a challenge to real estate tax assessments for three years, applying the required standard of review, the taxpayer did not establish as a matter of law that the city’s assessment was not arrived at in accordance with generally accepted appraisal practices, procedures, rules, and standards as prescribed by nationally recognized professional appraisal organizations such as the International Association of Assessing Officers, and applicable Virginia law relating to valuation of property. An appraiser’s report offered by the taxpayer, asserting in relatively conclusory fashion violations of such practices, procedures, rules and standards, without additional clarifying testimony from the expert at the trial, is not the same thing as proving such violations, and may not be sufficient to persuade the factfinder that an assessment is deficient under the second part of the two-part test specified in Code § 58.1-3984(B). The judgment is affirmed.

180851 Cromartie v. Billings 01/16/2020 In civil litigation arising from a traffic stop by a police officer, forcible arrest and a search, giving rise to claims against the officer under Virginia Code § 19.2-59 and 42 U.S.C. § 1983, alleging unlawful arrest, use of excessive force, and related state-law claims, the circuit court erred in granting a defense motion to strike as to certain of the claims. Because the search was not lawful, there was no probable cause for arrest, and the defendant’s use of force was per se excessive, no liability questions remain regarding the claims, and neither sovereign immunity nor qualified immunity insulate the defendant from liability. Accordingly, the judgment granting the defendant’s motion to strike is reversed and the case is remanded to the circuit court for consideration of damages only, regarding the claims under Code § 19.2-59 alleging an unlawful search, as well as the § 1983 claims for false arrest and use of excessive force.

181533 Corriveau v. State Farm Mutual Ins. Co. 12/19/2019 In a declaratory judgment action on behalf of an autistic child, seeking a determination that the uninsured motorist provision in his mother’s automobile insurance provided coverage for his injuries arising from an assault that took place on a school bus, the policy’s “ownership, maintenance, or use” provision should be construed in the light of the subject matter with which the parties were dealing, and while the vehicle’s use need not be the direct, proximate cause of the injury, there must be a causal connection between the incident and the use of the vehicle as a vehicle. Here, the circuit court did not err in finding that the plaintiff’s injuries were not covered by the uninsured motorist provision because they did not arise out of the use of the school bus as a school bus. Dismissal of the declaratory claim is affirmed.

180885 Cilwa v. Commonwealth 12/12/2019 In a challenge to the circuit court’s revocation of a suspended sentence in a criminal case, because the trial court acted within its subject matter jurisdiction several years earlier when it entered an order – sought by both sides – indefinitely extending the defendant’s probation, the defendant could not, years later, attack that order as void ab initio. The trial court did not err by entering later revocation orders predicated on that extension order, and the Court of Appeals did not err in upholding the actions of the circuit court. The judgment is affirmed.

181375 Transparent GMU v. George Mason University 12/12/2019 In a mandamus petition seeking disclosure of information under the Virginia Freedom of Information Act from George Mason University and the George Mason University Foundation, the records of the Foundation, a privately held corporation, established to raise funds and manage donations given for the benefit of the University, are not subject to disclosure under VFOIA. The judgment of the circuit court finding that the Foundation is not a public body subject to VFOIA is affirmed.

181452 Spratley v. Commonwealth 12/12/2019 In a prosecution for felony destruction of property under Code § 18.2-137, the circuit court’s finding that the fair market replacement value of the destroyed property was $1,000 or more is neither plainly wrong nor without evidentiary support. Therefore, the Court of Appeals did not err in upholding the defendant’s conviction for felony destruction of property, and that judgment is affirmed.

181569 Watson v. Commonwealth 12/12/2019 In a prosecution for murder and related offenses, the circuit court did not abuse its discretion in limiting the scope of testimony from a defense expert on issues arising from eyewitness identification, or in refusing a proposed defense jury instruction on that topic. The judgment of the Court of Appeals upholding the defendant’s conviction is affirmed.

181694 Davison v. Commonwealth (ORDER) 12/12/2019 In a prosecution on multiple charges, including forcible sodomy and aggravated sexual battery, the Court of Appeals correctly determined that the elements of both crimes were: (1) that the defendant committed the proscribed sexual acts against the victim and (2) that those acts were committed without her consent and against her will. The jury must be unanimous in finding those elements proved but, in accord with the weight of authority in other jurisdictions, both federal and state, juror unanimity is not required for deciding the means used in the commission of an element of a crime. Thus, if all jurors in the present case agreed that that the defendant committed the alleged sexual acts without the victim’s consent and against her will, it is immaterial that some jurors may have thought her will was overcome by force while others may have ascribed it to the defendant’s knowing exploitation of her physical helplessness or mental incapacity. The convictions are affirmed for the reasons set forth by the Court of Appeals in Davison v. Commonwealth, 69 Va. App. 321 (2018).

190016 Watson-Scott v. Commonwealth 12/12/2019 In a homicide case, the facts in the record clearly support a finding that the defendant engaged in an intentional course of wrongful conduct likely to cause death or great bodily harm by unlawfully firing multiple shots from a handgun down a city street. Accordingly, the evidence of his actions implied sufficient malice to support his conviction for second degree murder. The judgment of the Court of Appeals upholding the conviction entered in the circuit court is affirmed.

190047 Yoder v. Commonwealth (ORDER) 12/12/2019 The Court of Appeals of Virginia did not err in affirming defendant’s conviction for driving after forfeiture of her license, third offense in ten years, in violation of Code § 18.2-272(A). That statute does not require any particular form of notice and does not mandate any degree of specificity for such notice. Here there was evidence sufficient to prove that on the date of the instant offense defendant had had actual notice that her license was revoked. She had been present in court for two prior guilty pleas for driving on a revoked license. In the instant arrest she made no excuse for not having a driver’s license, and tendered an ID card that under Code § 46.2-345(A)(4) could not simultaneously be possessed with a driver’s license. A rational factfinder could conclude beyond a reasonable doubt that defendant knew she was driving without any legal right to do so, as provided in ode § 18.2-272(A). Case law relating to individuals whose driving license suspensions have expired is factually distinguishable on a dispositive point, since defendant’s revocation was still in effect at the time of this offense. The judgment is affirmed.

190071 Massenburg v. City of Petersburg 12/12/2019 In a wrongful death action arising from a fire, the plaintiff’s case against a Virginia city was based on a defective fire hydrant, and judgment dismissing the action on sovereign immunity grounds is affirmed. A hydrant exists to facilitate the firefighting function of the municipality that installed it, a quintessentially governmental function. The city’s provision and maintenance of fire hydrants is therefore an immune governmental function. To the extent that this function coincides with the city’s proprietary functions relating to the plaintiff’s other surviving allegations, the governmental function is the overriding factor and the doctrine of sovereign immunity will shield the locality from liability. The trial court did not err in deciding the city’s plea in bar on the pleadings because the city did not dispute the complaint’s factual allegations, nor did it err in granting the city’s demurrer and plea in bar of sovereign immunity and dismissing the complaint with prejudice. The judgment is affirmed.

181192 Davis v. Davis 12/05/2019 In a suit for aid and direction concerning the validity of transfers of personal and real property shortly before the death of the gravely ill and hospitalized decedent, the circuit court erred in holding that the decedent’s mother, as attorney-in-fact under a written power of attorney document, had authority to execute the transfers – which gifted all of the decedent’s real and personal property to herself and her surviving children – and such transfers were invalid. The judgment is reversed and vacated, and the case is remanded for the circuit court to address the remaining issues regarding the interpretation of the decedent’s will, and the proper distribution of his property pursuant to the terms of the will.

181229 Jackson v. Jackson 11/27/2019 Six years after entry of a final decree of divorce, incorporating an order dividing a military pension, the circuit court did not have power, under Rule 1:1 or Code § 20-107.3(K)(4), to modify the pension distribution, since the former wife sought a substantive change in the distribution of the benefit, rather than an alteration to give effect to the intent reflected in the decree. The circuit court therefore did not err in denying her motion and the Court of Appeals did not err in affirming the judgment, which is affirmed.

181501 Futuri Real Estate v. Atlantic Trustee Services 11/27/2019 In a dispute between a foreclosure purchaser of real property and a bank that had held two of the encumbrances against the property – one as a senior lien and another in third priority – a recorded agreement subordinating the first lien to the third lien, which addressed only the priority of the bank’s two liens, will be construed as only a partial subordination of the senior lienholder’s priority position. The judgment is affirmed.

181002 Spruill v. Garcia (ORDER) 11/07/2019 In a personal injury action arising from a minor intersection collision – in which the jury returned a liability verdict for plaintiff but awarded no damages – the trial court erred in admitting certain medical records without proper authentication and in violation of the rule against hearsay evidence. The error asserted was harmless, however, since the medical records contain information that was directly or indirectly provided by, testified to, confirmed by, or alluded to by either plaintiff herself or another witness at trial. To the extent that specific details in the records were not directly or indirectly before the jury from other sources, the relevance of such details is diminished by the persuasive force of the entire record in this case, including plaintiff’s admitted history of prior back problems. Admission of the medical records was harmless error because such evidence was either cumulative or had but slight effect, if any, upon the jury’s verdict. The judgment of the circuit court is affirmed.

181596 Schmuhl v. Commonwealth (ORDER) 11/07/2019 In an appeal from convictions on two counts of abduction with intent to gain pecuniary benefit, two counts of aggravated malicious wounding, two counts of using or displaying a firearm during the commission of an aggravated malicious wounding, and burglary while armed with a deadly weapon, the judgment is affirmed for the reasons stated in the opinion of the Court of Appeals of Virginia, Schmuhl v. Commonwealth, 69 Va. App. 281, 312-13 (2018).

180791 Tingler v. Graystone Homes, Inc. 10/31/2019 In related suits alleging injuries and damage resulting from mold that developed in a home constructed by the defendant contractor, the circuit court did not err in dismissing the negligence tort counts as to the contractor’s alleged failures during the original-construction phase, dismissing a negligent-repair claim to the extent that it asserts property damage to the home and economic losses, or in dismissing counts of negligence per se as to contractor’s alleged failures during the original-construction phase. The circuit court erred in dismissing a negligent-repair count in the family’s personal-injury complaints to the extent that those allegations claim that the contractor’s misfeasance worsened the mold conditions and, by doing so, aggravated preexisting personal injuries. It also erred in dismissing negligent-repair claims asserting that misfeasance during the repair phase caused damage to personal property that is not a subject of the contract, in finding that the allegations were insufficient to state a claim based upon an actual agency relationship, and in dismissing contractual claims on a finding that they failed to allege sufficient facts from which to reasonably infer that the family and the contractor had intended for property owner to benefit from the contract. The judgment is affirmed in part and reversed in part, and the action is remanded.

180810 Virginia International Gateway v. City of Portsmouth 10/31/2019 In a challenge to a city’s tax assessments on realty, fixtures and personal property, the trial court’s exclusion of evidence from the taxpayer’s expert – who was licensed in New York, and obtained temporary licensure in Virginia to complete the appraisal offered in this case, and whose testimony formed the vast majority of the taxpayer’s evidence in the real estate case – was an abuse of discretion. The judgment in the real estate case is reversed, and that matter is remanded for further proceedings. The trial court did not err in ruling that taxpayer failed to overcome the presumption of the personal property assessment’s correctness. Accordingly, the judgment in the personal property case is affirmed.

181096 Burnham v. Commonwealth 10/31/2019 In a jurisdictional challenge concerning revocation of a defendant’s two suspended sentences, one for a felony and the other for a misdemeanor, the trial court could properly revoke and re-suspend the defendant’s felony sentence, but erred in doing the same for his misdemeanor conviction. The applicable conviction order did not specify a period of suspension of the sentence for either the felony or the misdemeanor. Regarding the felony conviction, the crimes upon which the revocation was based (possession of cocaine) were committed well within the maximum 10-year period of suspension applicable under Code §§ 19.2-306 and 18.2-10, and they constitute good cause for revoking the suspended portion of the sentence for that crime. However, regarding the misdemeanor conviction, under Code §§ 19.2-306 and 18.2-11(a), the maximum period of suspension was one year, and by the time that the defendant committed the more recent crimes the one-year period of suspension for the misdemeanor conviction (driving on a revoked license, third offense) had long since ended. Thus, by operation of Code § 19.2-306, the circuit court could not revoke the misdemeanor portion of his suspended sentence following a show cause order. The judgment is affirmed in part and reversed in part, and the case is remanded for entry of a new sentencing order.

181238 Everett v. Tawes 10/31/2019 A circuit court has equitable power to retroactively correct errors in interlocutory and temporary orders while it retains jurisdiction over the case. In a divorce proceeding, the circuit court had discretion – under Virginia statutory provisions – to modify a pendente lite spousal support order, and its decision to not reconsider the amount of pendente lite spousal support and resulting arrearage was apparently influenced by a mistake of law regarding its authority to retroactively modify the amount of spousal support and arrearage awarded in the pendente lite order. Thus, the circuit court abused its discretion in refusing to reconsider modifying the pendente lite spousal support award amount. The judgment is reversed, the ruling refusing reconsideration of the amount of spousal support awarded in the pendente lite order is vacated, and this matter is remanded to the circuit court for its consideration of the motion to reconsider pendente lite spousal support, in a manner consistent with this opinion. Both parties’ motions for appellate attorney’s fees and costs are denied.

180678 Radiance Capital v. Foster 10/24/2019 The circuit court correctly held that a contractual waiver of the right to plead the statute of limitations was not valid or enforceable because it did not meet the specific requirements of Code § 8.01-232, which restricts a party’s ability to promise not to plead the statute of limitations and which governs both a waiver of the right to plead the statute of limitations and a promise not to plead the statute of limitations. Here, the waiver was made contemporaneously with the guaranty agreement in contravention of Code § 8.01-232(A)(ii), and it attempted to waive the guarantors’ right to plead the statute of limitations for an indefinite period of time, in contravention of Code § 8.01-232(A)(iii). Since the waiver was made when the guarantors executed the guaranty agreement, it was not made to avoid or defer litigation pending the settlement of a case within the intendment of Code § 8.01-232(A)(i), but attempted to permanently bar the right to plead the statute of limitations upon execution of the underlying contract, before any controversy existed. The argument that the guarantors were estopped to plead the defense of the statute of limitations is without merit, and the judgment is affirmed.

181114 Jefferson v. Commonwealth 10/24/2019 In a prosecution for welfare fraud, Code § 63.2-522 provides that anyone who obtains, or attempts to obtain public assistance or benefits to which he or she is not entitled by means of a willful false statement or representation is guilty of larceny. Because that statute does not state whether a violation is grand or petit larceny, it must be read in connection with Code §§ 18.2-95 and 18.2-96, which define petit and grand larceny based on the value of the stolen property. At the time of these offenses, the felony threshold was $200, and the proper valuation method is the difference between the amount the defendant received and the amount of public assistance or benefits to which defendant would have been entitled to absent fraud. The Court of Appeals did not err in holding that the Commonwealth presented sufficient evidence of overpayments in benefits of $200 or more. Nor was there reversible error in the Court of Appeals’ ruling that the circuit court did not abuse its discretion by limiting defendant’s cross-examination of a fraud investigator. Because the evidence presented at trial clearly established that the overpayments met the statutory threshold for grand larceny, any further cross-examination regarding the amount of benefits defendant would have received if she had reported her income would not have demonstrated that the overpayments were less than the statutory threshold. The convictions are affirmed.

180681 Hill v. Commonwealth 08/30/2019 In a cocaine prosecution, the circuit court did not err in refusing to suppress drugs located after the physical seizure of a suspect pulled out of a parked car in a high crime, drug area. Applying the test of reasonable suspicion derived from Terry v. Ohio, in the totality of circumstances here the evidence shows that the detectives, at the time of the seizure, could have reasonably suspected that defendant was digging and reaching for a weapon inside the car while they shouted 7 to 10 times for him to show his hands. They understandably feared that their lives might have been in danger. There was nothing unreasonable about the detectives briefly seizing the defendant either to confirm or to dispel their suspicion that he may have had a weapon. The trial court correctly denied the motion to suppress, and the Court of Appeals correctly affirmed that decision. The judgment of the Court of Appeals upholding the convictions predicated upon the trial court’s refusal to suppress of the evidence seized is affirmed.

180736 Our Lady of Peace v. Morgan 08/30/2019 In a case where a nursing assistant molested and raped an 85-year-old resident at a nursing home, the trial court erred in holding, prior to trial (and also by instructing the jury at trial), that the nursing assistant had committed the molestation and rape while acting within the scope of his employment. The court also erred in excluding testimony from a defense expert on the standard of care for nursing facilities, and in admitting the challenged testimony of the estate’s expert witness. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

180691 Helmick Family Farm v. Commissioner of Highways 08/29/2019 In a condemnation case, the circuit court erred in restricting the landowner’s proffered evidence to the extent that it related to a potential rezoning of the agriculturally-zoned property for commercial development. The reasonable possibility of a rezoning should be taken into consideration in compensating landowners, if there is sufficient evidence of a reasonable probability of rezoning. The burden of proving a reasonable probability of rezoning rests on the property owner and unless the evidence relating to the likelihood of rezoning in the near future rises to the level of a probability, it is inadmissible. Certain of the instructions given to the jury were in error. The judgment is reversed, the compensation award is set aside, and the case is remanded for further proceedings.

180758 Gross v. Stuart (ORDER) 08/29/2019 There was no reversible error in the circuit court’s entry of judgment for the plaintiff on a jury verdict in a medical malpractice action. The circuit court did not abuse its discretion in allowing cross examination of a defense expert about citations by the board of medicine for violation of law and health regulations with regard to his practice, and whether – during his military deployment to Afghanistan – certain facts regarding his medical practice in Virginia were true. Evidence of the witness’ adherence to the standard of care in Virginia and the laws governing his practice were relevant to the basis of his opinions and the weight to be accorded to his opinions by the jury. Further the circuit court did not abuse its discretion in denying the motions for a mistrial and post-trial motions addressing rulings relating to issues of consent, or in failing to instruct the jury that consent was not an issue in the case. The judgment is affirmed.

180527 Bethea v. Commonwealth 08/28/2019 A conviction for first-degree murder is affirmed. The contention that the trial court violated the holding of Batson v. Kentucky, 476 U.S. 79 (1986), by permitting the prosecutor to exercise a racially motivated peremptory strike of an African-American juror is without merit. Assuming without deciding that the defendant’s post-trial argument merely amplified the objection made at trial, it is without merit under the three-step analysis applied to Batson claims, on which the defendant carries the ultimate burden of persuasion to prove the existence of purposeful discrimination. Here, the prosecutor provided a race-neutral explanation for the strike, and the defendant’s contention that this was mistaken collapses his argument, since a race-neutral explanation cannot at the same time be both an unintentional mistake and a pretextual, purposeful misrepresentation. Defendant’s proffer of an alleged multi-level hearsay statement does not change this result. The judgment of the Court of Appeals upholding the conviction is affirmed.

181037 Sainani v. Belmont Glen Homeowners Association 08/26/2019 The trial court in this case erred in awarding a monetary judgment, injunctive relief, as well as attorney fees and costs to a homeowners association in an action against lot owners for violations of the HOA’s guidelines governing the use of holiday decorations. The HOA’s seasonal lighting guidelines were not enforceable under the HOA’s declaration of restrictive covenants. The judgment and its ancillary award of attorney fees as well as costs are reversed, and the case is remanded for further proceedings consistent with this opinion.

180772 Henderson v. Cook 08/23/2019 In a case where final accounts relating to services of a trustee who also served as guardian and conservator for an incapacitated adult were presented for approval by the circuit court prior to review by the local Commissioner of Accounts, and not reviewed by the court thereafter, the judgment is reversed. The identification of issues to be resolved on appeal in light of altered assignments of error is also discussed.

180803 Trevathan v. Commonwealth (ORDER) 08/23/2019 Appeal is awarded from a final order entered by the Court of Appeals of Virginia on May 18, 2018, which is reversed. The Court of Appeals erred in ruling that the defendant’s knowing, intelligent, and voluntary guilty plea waived his right to appeal, and in dismissing the case rather than denying the appeal. A voluntary and intelligent guilty plea is a waiver of all non-jurisdictional defects that occurred before entry of the plea, thus the range of potential grounds for appeal following a guilty plea is limited in Virginia, but a defendant who has pled guilty still retains the statutory right to file a notice of appeal and present a petition for appeal to the Court of Appeals of Virginia. Further, when entry of a guilty plea waives an issue for appeal, the correct disposition is denial, not dismissal. The judgment of the Court of Appeals is reversed and vacated, and this case is remanded to the Court of Appeals for further proceedings consistent with this order.

181522 Murphy v. Smith (ORDER) 08/23/2019 A petition for a writ of habeas corpus is dismissed. Almost 15 years after he was indicted for capital murder and malicious wounding – but found incompetent to stand trial – the circuit court found petitioner likely to remain incompetent for the foreseeable future under Code § 19.2-169.3(A) and, under subsection (F) of the statute, began ordering a series of six-month periods of confinement in a state psychiatric hospital for continued treatment. The present petition, challenging the legality of his confinement under one such order, must be dismissed because petitioner’s confinement pursuant to that order has ended and the circuit court has twice received evidence and reexamined whether petitioner satisfies the factual requirements of Code § 19.2-169.3(F), including that his continued treatment is medically appropriate and that he presents a danger to himself or others. Petitioner is not currently detained pursuant to the order challenged in this petition or the evidence supporting it. Thus, a determination that this order was incorrect or improper cannot, on its face and standing alone, directly impact his present confinement. The petition is dismissed without prejudice to filing a habeas petition challenging a current order of confinement under Code § 19.2-169.3(F), or seeking expedited review so as to permit timely resolution of his claim.

170964 Handberg v. Goldberg 08/22/2019 In a defamation case, the trial court erred in its gatekeeping function by failing to properly segregate in its instructions to the jury the actionable statements of fact it could consider – as opposed to statements that were merely opinion and thus could not support liability for defamation. Because the trial court erred in submitting to the jury three statements in the allegedly defamatory email that were mere statements of opinion, without explanatory instructions, the judgment of the trial court in upholding the defamation verdict in favor of the plaintiff is reversed, and the case is remanded for further proceedings consistent with this opinion.

180979 Lane v. Bayview Loan Servicing 08/22/2019 In an action by a mortgage borrower against a loan servicing entity, a lawfirm, and the purchaser at a foreclosure sale seeking compensatory damages and rescission of the trustee’s deed at that sale, the decisions of the circuit court granting loan servicer’s plea in bar of res judicata and dismissing the amended complaint as to all defendants were in error. The judgments of the circuit court are reversed and vacated, and the case is remanded for further proceedings consistent with this opinion.

181043 Loch Levan Land v. Board of Supervisors 08/22/2019 In an action by developers challenging a county’s actions preventing extension of a roadway from an existing master-planned community into an adjacent county, to more profitably develop properties located there, the legal right to extend the roadway expired five years after recording the separate plat for that segment of road, under Code § 15.2-2261(C). Instead of building it or dedicating the entire right-of-way when recording a subdivision plat, the developers chose to proceed incrementally, recording separate plats for distinct segments of the roadway – avoiding the expense of completing the road, but giving up the indefinite protection offered by Code § 15.2-2261(F). In addition, a landowner has no vested rights in land uses of others, and there is no vested right in a public road. Here, dedication of the road operated to transfer the property, in fee simple, to the respective localities, under Code § 15.2-2265. The developers had no property right in the roadway once it was dedicated. The judgment of the circuit court sustaining the actions of the board is affirmed.

180520 A.H. v. Church of God in Christ 08/15/2019 In an action by a minor who was a victim of sexual abuse committed by a church youth leader who also served as a church deacon and drill team coach, on demurrers to her claims by two defendants – the local church and its national denomination – the circuit court correctly granted demurrers and dismissed claims of negligent hiring and negligent supervision, as well a claim for negligent infliction of emotional distress as a stand-alone tort. But its dismissal of plaintiff’s claims asserting negligence based upon duty arising from a special relationship, liability for negligent retention, and respondeat superior liability, are reversed. If successful on any of these claims, she may recover compensatory damages (including damages for emotional distress) but not punitive damages. The case is remanded to the circuit court for further proceedings consistent with this opinion.

180647 Bragg Hill Corp. v. City of Fredericksburg 08/15/2019 In a landowner’s declaratory judgment action on zoning issues, the circuit court did not err in dismissing all of the claims. A change in the zoning of the property upon its annexation by the city was not void ab initio because it was authorized by the city’s zoning ordinance and by the Virginia Code. Whether the landowner had a vested right to develop the land in accord with prior zoning provisions – based on pre-annexation approval by the county planning commission of a revised development master plan – was decided against the landowner in 2009 by the zoning administrator and that disposition was affirmed by the BZA. Since the landowner chose to pursue that challenge with the zoning administrator rather than the courts, that administrative ruling is final because its affirmance by the BZA it was not appealed by the landowner to the circuit court. The property owner was not deprived of any property interest as a result of the rezoning which occurred upon the annexation of its property, and its procedural due process rights were not violated. Accordingly, the judgment of the circuit court dismissing the action with prejudice is affirmed.

181108 Llewellyn v. White 08/15/2019 In a personal injury case arising from a vehicular accident, the circuit court did not err in concluding that a settlement agreement between the plaintiff and her underinsured motorist carrier did not entitle the underinsured defendant to a reduction of the jury verdict rendered against her pursuant to the statutory offset pursuant to Code § 8.01-35.1. Under that statute and Code § 38.2-2206, the tortfeasor remains primarily responsible for fully compensating the injury she caused. Plaintiff had the foresight to purchase more extensive motor vehicle insurance than statutorily required and, as the injured party, should retain any windfall that results from her prudence. No reason is found why the jury’s award of damages for injuries, for which defendant alone is responsible, should be reduced by the plaintiff’s insurance, and accordingly circuit court did not err when it refused to offset the judgment against defendant by the amount of the proceeds plaintiff received from a settlement with her UIM insurer.

171192 Ferguson Enterprises, Inc. v. F.H. Furr Plumbing 08/01/2019 In a case involving allegations of fraud, breach of contract, unjust enrichment and other claims, the circuit court erred in denying a defense motion to set aside the jury’s $3 million verdict. In the circumstances of this case, it was reversible error to rule that the defendant waived its statute of limitations argument when it did not refile its special plea on limitation grounds after the plaintiff filed (at the direction of the circuit court) a second amended complaint repeating certain averments verbatim. It was also error to conclude that the defendant waived the statute of limitations defense to those claims by failing to docket the plea in bar for a hearing before the trial. The judgment is reversed and the case is remanded on the limited issue of whether the statute of limitations barred a portion or all of the plaintiff’s fraud claims.

180329 Knop v. Knop 08/01/2019 In a declaratory judgment action by three children against their father, seeking judicial confirmation of the plaintiffs’ share ownership in the corporation begun by their father decades ago, the circuit court did not err in concluding that the father – who had expressed an intention to increase his three children’s share ownership in his corporation – never effectuated the gifts, because no delivery or constructive delivery of the share certificates was made as required by Virginia law in the case of transfers of certificated share ownership. Nor did the circuit court abuse its discretion in refusing to find the father estopped from denying the effectiveness of the purported gifts of these shares. The judgment of the circuit court is affirmed.

181033 Stoltz v. Commonwealth (ORDER) 08/01/2019 The defendant’s conviction for violating Code § 18.2-374.3(C) by using a computer for the purpose of soliciting a minor is affirmed. The contention that this statute is both vague and overbroad, thus violating his freedom of speech and his due process rights under the First and Fourteenth Amendments of the United States Constitution, is without merit. The language of the statute makes it unlawful for any person 18 years of age or older to use a communications system for the purposes of soliciting, with lascivious intent, any person he knows or has reason to believe is a child younger than 15 years of age to knowingly and intentionally engage in various sexual acts. The statutory mens rea — “knows or has reason to believe” — is not ambiguous, and an ordinary person would understand what conduct this statute prohibits. Nor does the First Amendment challenge to the statute have any merit. Code § 18.2-374.3(C) does not target speech, but conduct — specifically the use of a communications system (in this case, the Internet) for the purpose of soliciting a minor. The act of using a communications system is the actus reus of the crime, while the mens rea is the purpose of soliciting the child. Nothing in the statute criminalizes a substantial amount of protected speech when judged in relation to the statute’s plainly legitimate sweep. The judgment of the Court of Appeals upholding this conviction is affirmed.

180243 Carrington v. Aquatic Co. 07/18/2019 The judgment of the Court of Appeals of Virginia, affirming a determination by the Workers’ Compensation Commission that the claimant was not entitled to temporary benefits for a total disability caused by kidney failure unrelated to his employment, is affirmed.

180521 McKee Foods Co. v. County of Augusta 07/18/2019 In an application for relief from erroneously assessments for real property, the circuit court erred in applying a presumption of correctness to tax assessments for a large industrial property where the county’s assessor failed to properly utilize any of the three accepted valuation methods in assessing the property. The judgment is also reversed with respect to assessments for three other tax years. Under revised Code § 58-3984(B), in order to rebut the presumption of correctness, a taxpayer must first prove either that 1) the property has been valued at more than its fair market value, or 2) that that the assessment is not uniform in its application. If either of those two elements is shown by a preponderance of evidence, a second step is reached at which the taxpayer must also prove by a preponderance of the evidence that the assessment was not arrived at in accordance with generally accepted appraisal practices, procedures, rules, and standards as prescribed by nationally recognized professional appraisal organizations such the International Association of Assessing Officers and applicable Virginia law relating to the valuation of property. However, an appraisal performed under only one of the three accepted valuation approaches is entitled to a presumption of correctness only if the taxing authority considered – and properly rejected – the other valuation methods. The judgment is reversed and the proceeding is remanded.

180572 Nationwide Mut. Fire Ins. Co. v. Erie Ins. Exchange (ORDER) 07/18/2019 A prior appeal determined the allocation of coverages between two insurers and several policies. In this contribution action, one of the insurers seeks reimbursement for the second insurer’s share of a monetary settlement paid to a tort claimant while the case was on appeal, but the circuit court sustained a demurrer on the ground that the second insurer had no common obligation to pay the settlement because the first insurer had made a unilateral and voluntary settlement payment and because a condition precedent to the second insurer’s obligation to pay under its policies, namely, the existence of a judgment or its consent to settle, had not been satisfied. However, the allegations here were sufficient to state a claim for equitable contribution, which does not arise out of any express contract or agreement between the parties to indemnify each other, but is based on the broad principles of equity that where two or more persons are subject to a common burden it shall be borne equally. Payment must be made by one obligated to pay the whole, as between himself and the payee, but only bound to pay a proportionate part as between himself and co-obligors. The present complaint alleges facts that, if proven, justify an award of equitable contribution, and its dismissal was error. The judgment is vacated, and the case is remanded to determine the reasonableness of the settlement and to enter an order awarding the plaintiff insurer an amount consistent with the allocation of coverage liability decided in the prior appeal.

180631 Robinson v. Nordquist 07/18/2019 In an action between neighboring property owners, in which the plaintiff alleged water encroachments as “on-going,” and “continuous,” but also stated they were “repeated and intermittent,” it was not clear from the face of the amended complaint when the first measurable damage occurred or whether the water encroachments were continuous or intermittent. Therefore, the circuit court erred by sustaining the plea in bar based on the allegations in the amended complaint, and plaintiff is entitled to a jury trial on those issues. An easement’s scope may be determined by reference to the intention of the parties to the grant, and if the granting language states the object or purpose of the easement, the dimensions of the easement may be inferred to be such as are reasonably sufficient for the accomplishment of that object. Here, the “light and air” easement described the purpose, and circuit court erred by holding this term is unenforceable because it is vague, ambiguous, and without dimensions. It also erred in not recognizing that the “open yard” term in the easement was conjunctive requirement. There was no error in denying a rule to show cause. The judgment is affirmed in part, reversed in part, and the case is remanded.

181311 Morrissey v. Virginia State Bar (ORDER) 07/18/2019 After the Virginia State Bar alleged violations of the Virginia Rules of Professional Conduct by an attorney, he elected to proceed before a three-judge court, as provided in Code § 54.1-3935. After a five-day hearing, the three-judge court concluded that he violated Rules 5.1(b), 5.5(c), and 8.4(b) of the Rules of Professional Conduct. The charges under Rules 5.1 and 5.5(c) related to a court appearance made on behalf of a client of the attorney’s lawfirm by an associate attorney after she passed the bar, but a few days prior to being sworn in. The Rule 8.4 charges related to the uncontested fact that the attorney had sexual relations with a 17-year old minor, whom he later married. After an Alford plea, he was convicted of the crime of contributing to the delinquency of a minor, and was sentenced to 12 months in jail with six months suspended. The judges concluded that these violations warranted the revocation of the attorney’s license to practice law, and this appeal of right followed. Assuming that a three-judge court must make factual findings in a memorandum opinion, the findings made in this instance satisfy that requirement. There was clear and convincing evidence that the attorney violated Rules 5.1(b), 5.5(c), and 8.4(b). His extensive disciplinary record fully justifies the sanction of revocation of his license to practice law. The decision of the three-judge panel is affirmed.

180515 Young v. Commonwealth 07/03/2019 In a felony case where the trial date for the incarcerated defendant was adjourned well beyond the five-month period required under the Speedy Trial Act, the facts indicate that the defendant was not adverse to the granting of the continuance, nor did he affirmatively object as required under Code § 19.2-243(4). His argument that he would not be ready for trial on the date originally scheduled, and that he did not want the continuance counted against him for speedy trial purposes, was not an affirmative objection. The judgment of the Court of Appeals affirming the defendant’s convictions upon a finding that the continuance fixing the trial date beyond the five-month speedy trial period was court-ordered, an implied exception to Code § 19.2-243 to which no affirmative objection was made by the defendant, is affirmed for the reasons set forth herein.

180015 Harvey v. Commonwealth (CORRECTED) 06/27/2019 The arguments of two previously-adjudicated sexually violent predators that they should be afforded a psychological expert at the Commonwealth’s expense to assist them in hearings to determine whether they have violated the conditions of their release from commitment to the Department of Behavioral Health and Developmental Services, and whether these violations render them unsuitable for conditional release, are rejected. Such hearings must occur on an expedited basis and a respondent will subsequently be re-evaluated, upon request, within six months of his recommitment or sooner depending on the scheduling of the annual review. In this specific context, given the temporary, expedited nature of the hearing and the other protections afforded to the respondents, including the right to counsel, the Due Process Clause does not require the State to appoint an expert. The rulings of the circuit courts in these two proceedings are affirmed. Combined case with Record No. 180764

180764 Thomas v. Commonwealth (CORRECTED) 06/27/2019 The arguments of two previously-adjudicated sexually violent predators that they should be afforded a psychological expert at the Commonwealth’s expense to assist them in hearings to determine whether they have violated the conditions of their release from commitment to the Department of Behavioral Health and Developmental Services, and whether these violations render them unsuitable for conditional release, are rejected. Such hearings must occur on an expedited basis and a respondent will subsequently be re-evaluated, upon request, within six months of his recommitment or sooner depending on the scheduling of the annual review. In this specific context, given the temporary, expedited nature of the hearing and the other protections afforded to the respondents, including the right to counsel, the Due Process Clause does not require the State to appoint an expert. The rulings of the circuit courts in these two proceedings are affirmed. Combined case with Record No. 180015

181014 Sroufe v. Waldron (ORDER) 06/27/2019 In a defamation case against a school division superintendent by an elementary school principal reassigned for the stated reason that she failed to assure that student Individual Education Program teams understand criteria that affect Standards of Learning assessment criteria, the circuit judge erred in denying the defendant’s motion to dismiss on the grounds that the statement made by him, taken as a whole, was a matter of opinion, not actionable in defamation. Ensuring that defamation suits proceed only upon statements which actually may defame a plaintiff, rather than those which merely may inflame a jury to an award of damages, is an essential gatekeeping function of the court. Here, although the circuit judge correctly recognized that the allegedly defamatory statement was non-actionable opinion, the judge consciously disregarded the law and permitted the jury to return a verdict and award damages on a statement that he knew was not actionable as defamation as a matter of law. This displays a profound misapprehension of the proper role and responsibilities of a judge. The trial judge’s misinterpretation and misuse of judicial power in this case unnecessarily prolonged trial and led to full appellate review on the merits, which has not only delayed the just adjudication the parties were entitled to, but also imposed very real financial burdens on them. This Court must and does reprove it. The judgment of the circuit court is reversed and final judgment is entered for the defendant.

181164 Mooney v. Commonwealth 06/27/2019 In probation revocation proceedings – at which the probationer conceded that he had been convicted of three major violent new felonies: abduction, strangulation, and assault and battery on a family member, third offense – assuming that it was error for the prosecutor to read a newspaper account of testimony by the victim of these crimes, such error was harmless beyond a reasonable doubt. Over many years, the probationer repeatedly violated the terms of his probation, and the sentence imposed in the present revocation proceeding was less than the prosecutor recommended, and far less than the maximum sentence he could have received. The court did not indicate that its decision to revoke probation was based on anything other than the fact that this probationer received new convictions. Thus, any alleged error in allowing the prosecutor to read from the newspaper article was harmless beyond a reasonable doubt. The judgment of the Court of Appeals upholding the circuit court’s imposition of sentence at the revocation proceeding is affirmed.

180473 RMBS Recovery Holdings v. HSBC Bank 05/30/2019 Several investment entities sued a national bank, with its main office in Fairfax County, that acted as an indenture trustee of three trusts involving residential mortgage-backed securities. While contractual forum selection provisions are prima facie valid and should be enforced, unless they are unfair, unreasonable, or affected by fraud or unequal bargaining power, a party may waive a right conferred by a contract. Here, the defendant bank engaged in months of litigation before moving to dismiss based on the forum selection clauses, extensively utilizing the litigation machinery of the circuit court, arguing and receiving rulings on a demurrer, a plea in bar, a motion craving oyer, several discovery motions, a motion to have a judge assigned to the case, leave to file a third-party complaint, and a forum non conveniens motion. Thus, the bank waived its right to enforce the clauses. On the issue of dismissal of the action under the doctrine of forum non conveniens, however, the circuit court did not abuse its discretion in finding that good cause did not exist to dismiss the action in contemplation of its continuation in New York. It appropriately considered the practicalities that make a trial easy, expeditious, and inexpensive, such as the bank’s registered office in McLean, Virginia, accessibility of witnesses, access to documents, the location of the indenture trustee activities, and other factors. The judgment is affirmed in part, reversed in part, and the matter is remanded. Combined case with Record No. 180557

180497 Fairfax County School Board v. S.C. 05/30/2019 In its appellate review of a county school board’s disciplinary disposition regarding a high-school student, for nonconsensual, sexual touching of three students at school, the circuit court’s finding that the decision was arbitrary in violation of the student’s due process rights misapplied the legal standards governing such petitions and misinterpreted the factual record of the disciplinary proceedings. The judgment is reversed, and final judgment is entered dismissing the student’s petition with prejudice.

180557 HSBC Bank v. RMBS Recovery Holdings 05/30/2019 Several investment entities sued a national bank, with its main office in Fairfax County, that acted as an indenture trustee of three trusts involving residential mortgage-backed securities. While contractual forum selection provisions are prima facie valid and should be enforced, unless they are unfair, unreasonable, or affected by fraud or unequal bargaining power, a party may waive a right conferred by a contract. Here, the defendant bank engaged in months of litigation before moving to dismiss based on the forum selection clauses, extensively utilizing the litigation machinery of the circuit court, arguing and receiving rulings on a demurrer, a plea in bar, a motion craving oyer, several discovery motions, a motion to have a judge assigned to the case, leave to file a third-party complaint, and a forum non conveniens motion. Thus, the bank waived its right to enforce the clauses. On the issue of dismissal of the action under the doctrine of forum non conveniens, however, the circuit court did not abuse its discretion in finding that good cause did not exist to dismiss the action in contemplation of its continuation in New York. It appropriately considered the practicalities that make a trial easy, expeditious, and inexpensive, such as the bank’s registered office in McLean, Virginia, accessibility of witnesses, access to documents, the location of the indenture trustee activities, and other factors. The judgment is affirmed in part, reversed in part, and the matter is remanded. Combined case with Record No. 180473

180583 Spinner v. Commonwealth 05/30/2019 In a murder case, the trial court did not err in denying the defendant’s motion to suppress evidence obtained as a result of police interrogations after he received Miranda warnings. Viewed in the light most favorable to the Commonwealth, the evidence supports the conclusion that the defendant was not deprived of his freedom of action in any significant way during the first interrogation, conducted in a carport next to his residence, and the trial court’s finding to that effect in not plainly wrong or without evidence to support it. The argument that the phrasing of right-to-counsel portions of the Miranda warnings on that day tainted his statements given two days later, when he was under arrest, is rejected. Miranda requires only that the suspect be informed that he has a right to an attorney before and during questioning and that an attorney would be appointed for him if he could not afford one. The warnings given to this defendant, including the investigating officer’s “caveat” about availability of appointed counsel, met those requirements and were a fully effective equivalent of the warnings required by Miranda. For the reasons discussed in this opinion, the judgment of the Court of Appeals upholding the defendant’s convictions is affirmed.

180819 Watson v. Commonwealth 05/30/2019 The circuit court did not err in ruling that a felon convicted on charges including use of a firearm in the commission of a felony lacked standing to challenge the sentences of other felons imposed after their convictions under the same statute, Code § 18.2-53.1. In view of the limited scope of prior case law, it will not be held that standing is wholly irrelevant when a judgment is challenged as void ab initio for of a lack of subject-matter jurisdiction. Further, because circuit courts have subject-matter jurisdiction to try, convict, and impose sentence for all felonies, prior case law will not be extended to conclude that standing is irrelevant when a judgment is challenged as void for any of the other four identified bases. The opportunity to declare sua sponte the voidness of sentences imposed upon other felons is declined, as they are unquestionably necessary parties to an action to declare their sentences void, which, if successful, would result in the imposition of new sentences. The judgment of the circuit court dismissing the present motion challenging sentences under the statute is affirmed.

180940 Commonwealth v. Watson 05/30/2019 The circuit court erred in ruling that case law made a defendant’s erroneous sentences void ab initio. While it is undoubtedly error to sentence a defendant to a term of imprisonment shorter than the minimum authorized by the General Assembly, such error renders the judgment merely voidable, not void. Any excessive sentence is void because the power to render any further judgment did not exist, but the reverse is not true. A sentence for less than what the legislature has provided is merely legal error, and when a court has power to render a judgment, it has the power to render an erroneous one. Thus, the circuit court in this case lacked jurisdiction under Rule 1:1 to consider the defendant’s motion to vacate his sentences, after a decade, and its judgment granting that motion is vacated.

181603 Cofield v. Virginia State Bar (ORDER) 05/30/2019 On appeal from a Virginia State Bar disciplinary proceeding conducted after referral from a circuit court judge, the finding of a three-judge panel, after a hearing, that the attorney in this case violated Rule 3.3(a)(1) and should receive an admonition for filing pleadings with intentionally false statements as to the content of a provision in the Code of Federal Regulations, is affirmed for the reasons stated by the three-judge panel.

180624 James River Ins. v. Doswell Truck Stop (ORDER) 05/16/2019 In a declaratory action relating to insurance coverage, the circuit court erred on summary judgment in determining that an exclusion in the relevant policy was ambiguous with respect to the meaning of “maintenance” of an auto. A contractual term is ambiguous when it is subject to multiple interpretations in view of the entire contractual context, but here a review of the policy demonstrates that, of the two competing interpretations of “maintenance,” only one can reasonably be applied to every instance of the term in the policy, specifically, “regular repair operations” is the only interpretation that can be reasonably applied. The circuit court also erred in ruling that the underlying personal injury action asserted a premises liability claim providing an independent basis for potential liability not precluded by the auto exclusion. In an insurance policy, the phrase “arising out of the ownership, maintenance or use” of a vehicle is broad in its scope and, here, there was a significant causal connection between maintenance of a tire and the injuries, which thus arose out of the maintenance of a vehicle and the auto exclusion applies. The circuit court’s award of fees to the insured for fees incurred in defending the personal injury claim was premised on its view that the insurer had a duty to defend under the policy. Thus, there is no basis for such an award and it is reversed. The decision of the circuit court is reversed and final judgment is entered declaring that the auto exclusion precludes coverage for the personal injuries in this case under the policy.

180946 Commonwealth v. Murgia 05/16/2019 In a prosecution under Code § 18.2-374.3(D), the evidence was sufficient to establish beyond a reasonable doubt that the defendant’s text communications with a minor female, when viewed in the overall context of his relationship with her, constituted a violation of the statute, which prohibits use of a communications system for the purposes of soliciting, with lascivious intent, an adolescent between the ages of 15 and 18 to commit certain sexual acts as specified by Code § 18.2 374.3(C). The dispositions of the Court of Appeals of Virginia are reversed, and final judgment is entered on this appeal reinstating and upholding the conviction.

180537 Brown, T v. Commonwealth 05/02/2019 The circuit court did not abuse its discretion in denying a motion by defendant who had pled guilty to petty larceny two days earlier to withdraw her guilty plea. The defendant filed her motion to set aside the guilty plea after the circuit court had pronounced sentence from the bench but before a written order had been entered. In such a situation, the stringent manifest injustice standard applies under Code § 19.2-296. Here, the defendant failed to proffer evidence of a reasonable basis for contesting guilt. Her proffered contention that she could prove that the merchandise was left in the store was not a viable defense as a matter of law. The argument that she was unaware of the impact of a guilty plea on job or housing prospects does not state a manifest injustice upon which to set aside the plea. The judgment of the Court of Appeals of Virginia is affirmed.

180555 Callison v. Glick 04/18/2019 In an action seeking declaratory and injunctive relief, contribution and other monetary recovery relating to a commercial property and related loan obligations, under the circumstances of this case the circuit court did not err in refusing the equitable remedy of declaring the owner/lessor’s widow a subsurety on the loan obligation, holding that a purchase option on the property was enforceable and granting specific performance on that option agreement, or in declining to clarify its final orders regarding its effect on any future contribution claim. The judgment of the circuit court is affirmed.

161421 Brown v. Warden (ORDER) 04/11/2019 A petition for writ of habeas corpus is dismissed. Defendant’s 1970 conviction for murder was affirmed in 1971, and his petition for a writ of actual innocence pursuant to Code §§ 19.2-327.1 to -327.6 based on biological evidence was dismissed in 2018. Petitioner failed to prove by clear-and-convincing evidence that no rational factfinder would find him guilty of murder in light of the totality of the evidence. Simultaneous with the petition for a writ of actual innocence, petitioner submitted the present application for a writ of habeas corpus, citing the same forensic evidence. He acknowledges his petition is untimely under Code § 8.01-654(A)(2). The argument that this statutory limitation period violates the bar against suspension of the writ of habeas corpus as set forth in the Suspension Clause of Article I, Section 9 of the Constitution of Virginia is rejected. To the extent that petitioner attempts to raise a freestanding claim of actual innocence or argue his innocence should exempt him from the limitation period, both contentions are rejected. Habeas corpus is not a vehicle for raising claims of actual innocence nor does the statute of limitations include any exception for claims of innocence. The petition is dismissed.

180224 Spear v. Omary (ORDER) 04/11/2019 Where an appeal was filed from a child support ruling of a juvenile and domestic relations (JDR) district court, but then withdrawn by the appealing husband, and the circuit court entered an order memorializing the withdrawal but containing no remand provisions, both the circuit court and the Court of Appeals erred in concluding that the JDR court had no jurisdiction to modify the award of child support. Code § 16.1-106.1(F), by operation of law, effects an automatic remand whenever a circuit court enters an order noting the appellant’s withdrawal of an appeal from the JDR court. It does not require a circuit court to expressly remand a matter to the JDR court upon a withdrawn appeal, and in this case – when the circuit court failed to expressly retain jurisdiction – Code § 16.1-106.1(F) operated to remand the case to the JDR court. The circuit court and the Court of appeals erred by concluding otherwise and by holding that the circuit court, not the JDR court, had jurisdiction to modify the child support order. The judgment of the Court of Appeals is reversed and the case is remanded.

180644 Turner, T. v. Commonwealth (ORDER) 04/11/2019 On appeal from conviction of a defendant previously convicted in the state of Idaho as a sex offender and charged in Virginia with failure to register every 90 days as a sexually violent offender pursuant to Code § 9.1-904(A) and Code § 18.2-472.1(B), the plain language of the registration provisions set forth in Code § 9.1-902(F)(ii) define a “sexually violent” offense to include conviction for any similar offense under the laws of any other jurisdiction for which registration in a sex offender and crimes against minors registry is required under the laws of that jurisdiction. This defendant was required to register as a sex offender in Idaho and under Code § 9.1-902(F)(ii) he was required to register every 90 days as a sexually violent offender in Virginia. The judgment of the Court of Appeals of Virginia upholding the conviction for failure to register as required is affirmed.

181061 Dominion Resources, Inc. v. Alstom Power, Inc. 04/11/2019 A determinative question of law certified by a federal district court under Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, asking whether Virginia law applies the collateral source rule to a breach of contract action where the plaintiff has been reimbursed by an insurer for the full amount it seeks in damages from the defendant, is answered in the affirmative: there are some breach of contract situations where the collateral source rule may apply. Whether the rule applies to a given case requires a case-specific determination of whether the parties’ expectations, in light of the rationales for this doctrine, support the rule’s application. In the present case, the rule would apply. Because Virginia law thus recognizes that the rule can apply to breach-of-contract cases, the certified question is answered in the affirmative.

151277 Collins v. Commonwealth 03/28/2019 On remand from a decision of the United States Supreme Court holding that the automobile exception to the Fourth Amendment does not permit a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein – it is now held that the exclusionary rule does not apply in the circumstances of the present case. The pertinent analysis of deterrence and culpability is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal in light of all of the circumstances. At the time of the search in the present case, a reasonably well-trained police officer cannot be expected to have known that the automobile exception, which appeared to apply – under prior case law from the Supreme Court of the United States, this Court, and other state and federal courts – to the inside of an open, detached garage did not likewise apply to authorize search of a motorcycle located a few feet across the curtilage boundary of a private driveway, fully open to public view, along the side of a house. There is no basis in this record for accusing the officer of flagrantly ignoring his constitutional duties. That he mistakenly did so does not justify the remedy of excluding otherwise admissible, probative evidence. The judgment of the Court of Appeals of Virginia upholding the defendant’s conviction is affirmed.

180178 Dwyer v. Town of Culpeper (ORDER) 03/28/2019 A circuit court’s order confirming a jury’s award of compensation is final for purposes of appeal in a condemnation proceeding under Code §§ 25.1-239, -240 and -241, which expressly provide that such an order is appealable. Since the notice of appeal in this case was not filed within 30 days after such a confirmation order, this appeal is dismissed for failure to comply with the 30-day time requirement of Rule 5:9(a). The fact that the circuit court order contained the language “the court shall retain jurisdiction” does not change this outcome. Unlike a final order in an ordinary civil litigation, a confirmation order entered pursuant to Code § 25.1-239 is separate and distinct from a distribution order. By statute, these two types of orders can be appealed separately with neither impacting the other. In this case the language of the circuit court did not retain jurisdiction the portion of the order confirming the jury’s report of just compensation, but only retained jurisdiction over distribution of the award in the second stage of the condemnation proceeding. Accordingly, the appeal in this case is dismissed.

180812 Rankin v. Commonwealth (ORDER) 03/28/2019 In an appeal from the conviction of a police officer for voluntary manslaughter in the fatal shooting of a suspected shoplifter during an altercation in a retail store parking lot, the appellant failed to assign error and to appeal the alternative holding of the Court of Appeals in upholding the conviction, that any error of the circuit court in admitting into evident at trial the statement “It’s my second one,” was harmless error because the defendant had a fair trial on the merits and substantial justice was reached. A party who challenges the judgment of a lower court must on appeal assign error to each articulated basis for that ruling. A determination that error in a lower court’s ruling was harmless provides a sufficient legal foundation for affirming the judgment. Accordingly, because the appellant failed to assign error to the Court of Appeals’ holding that any error was harmless, the judgment is affirmed.

171562 Anderson v. Warden 03/21/2019 In a civil rights suit under 42 U.S.C. § 1983 in which an inmate claimed that prison officials violated his due process rights during a prison disciplinary proceeding that resulted in a $10 fine, dismissal of the action by the circuit court is affirmed. In addition to demonstrating a denial of fundamental fairness, to establish a constitutional violation a plaintiff must demonstrate how the alleged violation prejudiced his right to a fundamentally fair proceeding by affecting the ultimate result to some discernable degree. This cause-and-effect principle of prejudice factors into every § 1983 claim for compensatory damages. In the present case, the plaintiff’s allegations fall far short of demonstrating that his prison disciplinary hearing was fundamentally unfair or that he suffered any prejudice, and dismissal of this action on demurrer is affirmed.

171286 In Re: Scott 03/07/2019 Upon reviewing the totality of the evidence, including records from the original case, the evidence presented at the original trial, newly-discovered biological evidence, and the proffers made by the petitioner and the Commonwealth, this petitioner has proved, by clear and convincing evidence, all of the allegations required under Code § 19.2-327.3(A) and that no rational trier of fact would have found him guilty beyond a reasonable doubt in that he has been scientifically proven by DNA analysis to not be the source of the semen found on the victim’s jeans or the male DNA found on the vaginal swab obtained from the victim. The petition for writ of actual innocence is granted and his convictions are vacated.

171599 Dennis v. Commonwealth 02/21/2019 The Court of Appeals abused its discretion by dismissing a petition for a writ of actual innocence based on nonbiological evidence without referring the matter to a circuit court for an evidentiary hearing. In this case, the petitioner offered several previously unknown and untested witness affidavits in support of his petition for a writ of actual innocence based on nonbiological evidence, which the Commonwealth countered with previously unknown and untested witness statements of its own. The probative value of each witness’s testimony hinged on his or her credibility. Despite the statutory mechanism for referring issues in actual innocence cases to a circuit court for factual determination, the Court of Appeals determined from the record alone that the evidence supporting the petition was not material and accordingly denied the petition. Although the Court of Appeals has broad discretion to determine whether the facts require further development, under the facts in this case, the refusal to order a hearing constituted an abuse of discretion. Accordingly, the judgment of Court of Appeals’ dismissing the petition is reversed, and the case is remanded for purposes of ordering a circuit court evidentiary hearing consistent with this opinion.

180191 Reyes v. Commonwealth 02/21/2019 The Court of Appeals of Virginia did not err in upholding the circuit court’s exercise of discretion to deny a continuance sought under Code § 19.2-159.1(B), which requires that a defendant who was indigent when a criminal proceeding began but who ceases to be indigent notify the trial court forthwith, and then requires the court to grant reasonable continuance to allow counsel to be obtained and to prepare for trial. A court’s deviation from the legislature’s prescribed course of conduct does not violate any independent right for which the defendant is entitled to an independent remedy. In this case, the defendant asserted only that Code § 19.2-159.1 entitled him to a continuance, but the statute confers no rights on defendants, and they are entitled to no remedy under the statute if a court declines to substitute counsel and grant a continuance for him or her to prepare. The defendant is harmed only if his or her constitutional rights are violated, and that determination is evaluated according to familiar Sixth Amendment precedents – if the defendant appropriately invokes them at the proper time. This defendant did not. The judgment of the Court of Appeals upholding the trial court’s rulings is affirmed.

180322 Commonwealth v. Hall 02/21/2019 The circuit court erred in dismissing a civil forfeiture action because the property involved – a pickup truck in which the operator sat while delivering drugs – was only shown to have been used in one illegal transaction. Under the applicable civil forfeiture statute, Code § 19.2-386.22(A), forfeiture of property is authorized if it is used in substantial connection with the illegal manufacture, sale or distribution of controlled substances or possession with intent to sell or distribute controlled substances, and this may include use in a single episode of drug distribution. Where undisputed facts showed that a defendant transported himself to the location of a drug transaction in his pickup truck, and sat in his truck during completion of the transaction, there was clear and convincing evidence that he used the pickup truck in substantial connection with the illegal distribution of a controlled substance in this incident. Because no other evidence was required, the trial court erred in declaring the vehicle not subject to forfeiture under Code § 19.2-386.22(A). The judgment is reversed and the proceeding is remanded.

180358 Mercer v. MacKinnon 02/21/2019 In litigation alleging that a Canadian defendant illegally used assets of an elderly Virginia couple, the circuit court did not err in dismissing the action for failure of the facts to establish personal jurisdiction over the defendant under the only basis presented on appeal, the persistent course of conduct clause of Virginia’s long arm statute, Code § 8.01-328.1(A)(4). The judgment is affirmed.

180454 Brush Arbor Home Construction v. Alexander 02/21/2019 In a suit by homeowners against the construction company that built their house, the circuit court erred in denying a motion to compel for arbitration. In this case, the parties’ disagreement over the interpretation of the arbitration provision, as well as the application of the doctrine of impossibility to this article of the contract, are controversies or claims arising out of or relating to this contract, or the breach thereof and, therefore, an arbitrator must resolve them and the circuit court erred in concluding otherwise. The fact that the controversy or claim deals with the interpretation of the arbitration clause of the contract does not change the outcome. The judgment is reversed, and the case is remanded for entry of an order directing the parties to proceed to arbitration.

180564 Stone v. Commonwealth (PUBLISHED ORDER) 02/21/2019 In an appeal from guilty pleas and sentences in a multi-count drug case, the Court of Appeals did not err in affirming the circuit court’s judgment implementing four mandatory minimum sentences of incarceration. Defendant failed to satisfy his burden of production and persuasion by proving with a preponderance of the evidence his entitlement to the benefit of the safety-valve provision under Code § 18.2-248(C) – providing exemption from the three-year mandatory minimum incarceration provisions of the Code upon a showing that a defendant did not possess a firearm in connection with four cocaine distribution offenses. The stipulated evidence presented to the circuit court, and other evidence received at sentencing, established that the defendant had been in actual or constructive possession of an AK-47 firearm and a loaded magazine for the weapon at his residence during the time period when the four drug sales took place at that location. Thus the defendant did not carry his burden of proof under the exemption statute. The judgment of the Court of Appeals upholding the circuit court’s judgment implementing the mandatory minimum sentences for four convictions affirmed.

171467 Jeffreys v. The Uninsured Employer's Fund 02/14/2019 In a workers’ compensation appeal, the reasoning and result reached by the Court of Appeals in upholding a denial by the Virginia Workers’ Compensation Commission of a claim for benefits are correct and the judgment is affirmed. For private entities, the normal-work test generally applied under Code § 65.2-302(A) is whether the claimant was injured in an activity normally carried on through employees rather than independent contractors. In this case, the claimant had the burden of proving his statutory-employer claim for workers’ compensation benefits from the church and the historical society. Acting in its factfinding capacity, the Commission reviewed the history of the historical society, its informal governance structure, its charitable and nonprofit purposes, its fundraising and community-outreach efforts, its lack of any experience or involvement in the business of construction or renovation, and the individual defendant’s role in its activities. Claimant failed to persuade the Commission that his reconstruction work on the school building was part of the trade, business, or occupation of the church or the historical society. Whether work is part of the trade, business, or occupation of an owner depends upon the facts and circumstances of the particular case, and here the Court of Appeals did not err in concluding that the Commission applied the correct legal standard and acted within its factfinding discretion when it concluded that the claimant had failed to prove that the church or its historical society were his statutory employers. The judgment is affirmed.

171627 The Corporate Executive Board Co. v. Dept. of Taxation 02/07/2019 The judgment of the circuit court denying the claim of a corporate taxpayer for a refund and apportionment relief relating to income taxes imposed for three years by the Virginia Department of Taxation on the grounds that the computation method is unconstitutional under the “dormant” Commerce Clause and the Due Process Clause of the United States Constitution as applied to this taxpayer and, alternatively, that it is entitled to an adjustment because the statutory method for computing its tax constitutes an inequitable method under the Tax Department’s regulations, is affirmed.

180121 Norfolk Southern Railway Co. v. Sumner 01/31/2019 In the appeal of a judgment for an employee in an action under the Federal Employers’ Liability Act, the defendant railroad waived most of its arguments regarding testimony by plaintiff’s expert witness, and to the extent the testimony fell outside the range of expert opinion there was no error in permitting reference to matters within the common knowledge and experience of the jurors. Because evidence of causation in FELA cases where the events surrounding an injury are unwitnessed is often entirely circumstantial, the result must depend on the inference to be drawn from the evidence. Here, there was evidence to support the inference that the defendant’s negligence played a part, however small, in causing the fall into a trackside ravine which was the source of the plaintiff’s injury. The evidence may also have been sufficient to support an inference that the plaintiff’s fall resulted from causes unrelated to the defendant’s negligence. Under the settled principles governing FELA cases, that juxtaposition created a jury issue as to which inference should be drawn. The judgment is affirmed.

180120 Erie Ins. Exchange v. EPC MD 15, LLC 01/17/2019 In an insurance coverage dispute, the circuit court erred in concluding that a policy providing commercial coverage to a Maryland LLC for fire and other damage to real property in that state was extended under policy provisions to cover real estate owned by a Virginia LLC that was acquired by the Maryland LLC after the policy was issued. A coverage-extension provision in this policy relating to newly acquired buildings cannot be fairly read to apply to property of a newly acquired subsidiary entity that is neither a named nor an additional insured on the parent company’s policy. Nor can this provision be reasonably read to mean that a parent company “acquires” the real property of a subsidiary merely by virtue of the creation of a parent-subsidiary relationship after issuance of the policy. Because the policy did not cover the damaged property of the Virginia LLC, the circuit court erred in granting the insured’s motion for summary judgment and in denying the insurer’s motion for summary judgment. Final judgment is entered in favor of the insurer and the Maryland LLC’s claim is dismissed with prejudice.

171708 May v. R.A. Yancey Lumber Corporation 01/10/2019 In a declaratory and injunctive action by a director and minority shareholder of a corporation, the circuit court erred in sustaining a special plea in bar and entering judgment in favor of the corporation based on an erroneous interpretation of Code § 13.1-724. The plaintiff gave repeated notice to the corporation of her opposition to a planned sale of a significant part of the business, and it could have sought a declaratory judgment concerning its rights before expending effort in seeking a buyer. Thus, it suffered no undue prejudice by having to defend plaintiff’s claim when she later brought it. The circuit court abused its discretion when it found that laches barred plaintiff’s claim and – to the extent its denial of a requested injunction was based upon laches – that ruling was also in error. The judgment is reversed, and this case is remanded to the circuit court for further proceedings consistent with this opinion.

171393 Parson v. Miller 12/20/2018 In a will contest action brought by a daughter of the decedent alleging that a niece of the decedent – who was named the beneficiary of his residuary estate – had exercised undue influence over the testator, considering all of the evidence adduced at a two-day jury trial it is clear that the contestant of the will was entitled to a presumption of undue influence, and the trial court did not err in so finding. However, the trial court erred in refusing to grant the defendant’s motions to strike the evidence because the proof was insufficient as a matter of law to support a finding by the jury that the will was the result of undue influence. The judgment is reversed and the case is remanded for probate of the will.

180012 Shumate v. Mitchell 12/20/2018 In a rear-end intersection collision personal injury action, the trial court did not err in admitting hearsay statements of the deceased defendant driver – testified to by his son who was not at the scene of the collision but heard his father make these post-collision statements – because Virginia’s Dead Man’s Statute, Code § 8.01-397, provides that in any action by or against a deceased or disabled person, all memoranda or declarations of that person are admissible, so long as they are relevant to a matter in issue. The corroboration requirement in the first portion of the statute is inapplicable to this broad suspension of ordinary hearsay principles for a decedent’s hearsay declarations. The statute’s phrase “from any cause” does not render the hearsay exception inapplicable where liability in the action has been conceded. Neither the trial court’s pretrial rulings nor the Dead Man’s Statute required that the statements of the deceased driver be corroborated. Thus, it was not error to admit the statements. The trial court also did not err in refusing to set aside the jury’s verdict awarding no damages. Nothing in the jury instructions required a finding that plaintiff suffered damages, and – based on the evidence in this case – the jury appropriately exercised its fact-finding function by weighing the evidence and credibility of the witnesses to conclude that, although the decedent driver was liable for the collision, plaintiff suffered no compensable damages from it. The judgment is affirmed.

180060 Ray v. Ready 12/20/2018 In a widow’s action to claim an elective share of the augmented estate of her deceased husband, the complaint naming his “Estate” was a nullity and could not toll the running of the statute of limitations on that claim. Even though the complaint against the “Estate” was served on the personal representative, it was a nullity, not curable by amendment to insert the personal representative as a defendant, and it was not saved by the provisions of Code § 8.01-6.3 because the complaint, read as a whole, did not otherwise identify the personal representative. Thus, the circuit court did not err in denying the plaintiff’s motion to amend the complaint to name the personal representative, or in dismissing the action as time-barred. The judgment is affirmed.

180062 Crosby v. ALG Trustee, LLC 12/20/2018 In a debtor’s action against the trustee under a deed of trust, alleging breaches of fiduciary duties in foreclosure sale proceedings by selling property assessed at $436,800 for approximately $21,000, plaintiff’s claim sounded in contract, not tort, and the trial court erred in characterizing it as a common law negligence claim. The requirement of impartiality means that a trustee under a deed of trust must balance the conflicting positions of the creditor and debtor such that a benefit to one cannot come at a disproportionate expense of the other. Sale of property at a price that is so grossly inadequate as to shock the conscience will raise a presumption of fraud. Since the duty of impartiality is a common law duty that exists as an implied term of the deed of trust, the circuit court’s ruling that the duties of the trustee in this case were limited to the four corners of the contract and there is no duty by the trustee under the common law was erroneous. The judgment is reversed and the case is remanded for further proceedings.

180197 Hall v. Commonwealth 12/20/2018 In a drug distribution case where the defendant provided information to the trial court under Code § 18.2-248(C), providing for possible relief from mandatory sentences if the defendant truthfully provides all information and evidence concerning his offense to the Commonwealth not later than the time of the sentencing hearing, the circuit court erred in concluding that the proffer of such information on the morning of the sentencing proceeding, immediately prior to the hearing, was untimely and in declining to rule on the merits of the application for that reason. While the last minute nature of the disclosure may weigh into a trial court’s consideration on the merits, the court may not bar the motion from consideration if it is timely filed – that is, not later than the commencement of the sentencing hearing. Here, the motion was timely filed and warrants consideration on the merits by the trial court for the completeness and truthfulness of the disclosure, as well as any further disclosure made to the Commonwealth before resentencing. The sentences are vacated, and the case is reversed and remanded for proceedings consistent with this opinion.

170965 Leonard v. Commonwealth 12/13/2018 The circuit court abused its discretion in denying an application for a name change filed by an inmate under Code § 8.01-217. If good cause exists, the court must accept the application and follow the procedures mandated in Code § 8.01-217(D) to consider it on the merits. This application contained the information required by Code § 8.01 217(B) and articulated legitimate, nonfrivolous medical reasons supporting the requested name change. The circuit court denied the application prior to satisfying the procedural requirements prescribed by Code § 8.01-217(D), at a stage where the statute strictly limits review to assessing the application’s procedural sufficiency. Accordingly, the circuit court abused its discretion in denying the application for lack of good cause. Additionally, the circuit court referred the application to the Commonwealth’s Attorney for a response, before denying a good cause determination, which is inconsistent with the strict mandate of Code § 8.01-217(D). The circuit court thus also abused its discretion by deviating from the statutory process for assessing a name-change application. The judgment is reversed and the case is remanded.

171438 In re: Phillips 12/13/2018 Upon consideration of the petition for a writ of actual innocence based upon biological testing evidence, the petitioner’s motion for a nonsuit is denied, because such actual innocence petitions are criminal proceedings to which the civil case nonsuit provisions of Code § 8.01-380 do not apply. On the merits, the testing results on which petitioner relies were prepared by a private laboratory – not the Department of Forensic Science as required by Code § 19.2-327.1. Consequently, the petition must be dismissed for failure to state a claim, as provided in Code § 19.2-327.5. The writ will not issue and the petition is dismissed.

171483 Board of Supervisors v. Cohn 12/13/2018 The circuit court erred in concluding that Code § 15.2-2307(D) creates a vested right to continue an originally illegal use of a building or structure after the owner has paid taxes to the locality on the property for 15 years or more. That statute dictates that a building or structure itself may not be declared illegal or subject to removal after the owner of the building or structure has paid taxes to the locality for such building or structure for more than the previous 15 years – but it does not create any vested rights in an illegal use thereof. The judgment of the circuit court overturning a decision by the board of zoning appeals is reversed, the board’s decision is reinstated, and final judgment is entered here for the county.

180055 McGinnis v. Commonwealth 12/13/2018 In appeal from a judgment of the Court of Appeals of Virginia affirming convictions on counts of larceny by worthless check under Code § 18.2-181, assuming without deciding that the defendant’s evidence sufficiency assignment of error was properly preserved for review, the convictions are affirmed. Under this statute, larceny by worthless check is not limited to checks passed as present consideration for goods and services. When reviewing a conviction under Code § 18.2-181 for sufficiency of the evidence, the inquiry is whether the evidence and reasonable inferences therefrom, viewed in a light favorable to the Commonwealth, establish the two elements of the statutory offense. Here, the circuit court, as trier of fact, had sufficient evidence from which it could conclude that on all three occasions in which defendant presented a worthless check for payment on his accounts, he did so with the knowledge that there were not sufficient funds to cover the checks and with the intent to defraud. In refusing the defendant’s motion to vacate his convictions, the circuit court implicitly found that Code § 18.2-181 was not limited to checks made as payment for present consideration of goods or services, but applied to the passing of any worthless check with an intent to defraud. The circuit court’s determination is consistent with the proper construction of the statute and its determination of defendant’s guilt is not plainly wrong or without support in the evidence. Thus, the convictions are affirmed, and the judgment of the Court of Appeals is vacated.

180198 Smith v. Commonwealth 12/13/2018 In a homicide prosecution of the defendant for the shooting death of her husband, the jury instructions were agreed upon by the parties and became the law of the case, binding at trial and on appeal. By agreeing to the instructions as submitted, and filing to submit additional instructions on another theory, the defendant waived arguments challenging the instructions as given. On the sufficiency of the evidence, based upon the instructions as given in this case, the jury could reject defendant’s claim that she did not aim at her husband, and could have found that the act of pulling the trigger was intentional. It could have inferred that defendant was angry after an argument and shot the victim under a heat of passion, thus it cannot be said that the evidence was insufficient to support the jury’s verdict. The judgment upholding the conviction for the crime of voluntary manslaughter is affirmed for the reasons stated in the present opinion.

171183 Bergano v. City of Virginia Beach 12/06/2018 In ruling on the sufficiency of a city’s production of legal billing records pursuant to a Virginia Freedom of Information Act request, the circuit court’s application of the attorney-client and work product exceptions was excessively broad, allowing the city to withhold too many records from disclosure when these records plainly do not fall within the VFOIA exceptions for work-product and attorney-client privilege. This action is remanded for a further in camera review and for disclosure of unredacted billing records consistent with this opinion. On remand, the circuit court is directed to also consider whether to award reasonable costs and attorney’s fees under Code § 2.2-3713(D) in the circumstances of this case.

171450 Frouz v. Commonwealth 12/06/2018 In a proceeding initiated by summons issued pursuant to Code § 3.2-6540, under which the defendant was ordered to respond to an allegation that she was the owner of a “dangerous dog,” the circuit court did not err in finding, after a bench trial, that the dog in question was a “dangerous dog” within the meaning of Code § 3.2-6540(A)(1), that the defendant – while not the owner of that dog – was the custodian or harborer of the dog, and that defendant should be ordered to pay restitution of $3,896 for the injuries to another dog that belongs to defendant’s neighbor. The judgment is affirmed.

180052 Jones v. Commonwealth 12/06/2018 A conviction for the crime of for shooting at an occupied vehicle under Code § 18.2-154 is affirmed. The argument that to secure a conviction under this statute the prosecution must prove that the shooter was positioned outside of the occupied vehicle is rejected. The plain language of the statute does not require the prosecution to prove that the shooter was located outside of the vehicle when he fired shots at an occupied vehicle. The judgment of the Court of Appeals upholding the defendant’s conviction is affirmed.

180162 Gordon v. Kiser 12/06/2018 In an inmate’s action for injunctive relief to protect against unsanitary dental treatment, the circuit court erred in denying his motion for nonsuit, because the case had not been fully submitted to the court at the time the plaintiff sought the nonsuit. That part of the circuit court’s judgment holding that the complaint was speculative and failed to establish irreparable harm and the absence of an adequate remedy at law is therefore vacated. The circuit court did not consider the four-part test established in prior case law in imposing pre-service review and possible summary dismissal on any future complaints this plaintiff might file in the circuit court, and that portion of its judgment is also vacated; that portion of the case is remanded for the circuit court’s consideration of the four-prong test. That portion of the circuit court’s judgment denying this plaintiff prospective in forma pauperis status under Code § 8.01-692 because he has had at least three cases dismissed for failure to state a claim is affirmed. The judgment is affirmed in part, vacated in part, and the case is remanded.

180179 Martinez v. Commonwealth (PUBLISHED ORDER) 12/06/2018 An attempted appeal by a deaf and mute individual from El Salvador found incompetent in 2005 to stand trial for capital murder due to severe deficits in expressive and receptive language, who has received inpatient treatment for many years pursuant to Code § 19.2-169.2, and whose motions to dismiss the capital indictments and challenging his continued treatment – arguing that Code § 19.2-169.3(F) violates his rights to Due Process, Equal Protection, and a Speedy Trial – were denied by the circuit court in a civil commitment order pursuant to Code § 8.01-670(A)(3), is dismissed. The determination of competency to stand trial occurs while the circuit court retains jurisdiction over the criminal prosecution, suspends the criminal prosecution, and asks whether the defendant lacks substantial capacity to understand the criminal proceedings against him or to assist his attorney in his own defense. Accordingly, the determination of competency to stand trial is part of a purely criminal process, and an appeal from such a determination is criminal in nature. Therefore, this Court does not have jurisdiction to consider the appeal in this case. Under Code § 8.01-677.1, an appeal may be transferred to the Court of Appeals if that Court has jurisdiction, which is limited to appeals of final convictions in a circuit court as provided in Code § 17.1-406(A)(i). Because there has been no final conviction in this case, the appeal will not be transferred to the Court of Appeals. The appeal is dismissed, without prejudice, and the case is remanded to the circuit court for further proceedings.

171417 Chapman v. Commonwealth (PUBLISHED ORDER) 11/29/2018 The judgment of the Court of Appeals of Virginia upholding the defendant’s conviction upon a finding that the trial court did not err in finding appellant guilty of felony reckless driving that caused the death of a passenger, in violation of Code §§ 46.2-852 and 46.2-868(B), is affirmed for the reasons stated in the opinion of the Court of Appeals, Chapman v. Commonwealth, 68 Va. App. 131, 145 (2017). This order shall be published in the Virginia Reports.

170894 Francis Hospitality, Inc. v. Read Properties, LLC 11/21/2018 In a commercial real estate broker’s action for unpaid leasing fees, the circuit court erred in finding that a lessor and lessee tortiously interfered with their own lease contract by not paying such fees. The award of treble damages and attorney’s fees under a third count alleging civil conspiracy under Code § 18.2-499 and § 18.2-500 is reversed because of the failure of the claim for tortious interference as the predicate wrongful conduct. The award of damages for breach of contract is undisturbed, and final judgment for that amount is entered on this appeal.

171165 Sweely Holdings v. SunTrust Bank 11/21/2018 In a suit charging a lending bank with breach of contract, fraud in the inducement, and constructive fraud in pursuit of its rights and remedies after the borrower fell into default, the circuit court correctly interpreted the parties’ loan modification and forbearance (workout) agreement to preclude the plaintiff’s breach of contract claim, and correctly held that its fraud claims failed because plaintiff did not allege any justifiable reliance on defendant’s alleged misrepresentations concerning appraisals of the properties securing the loan. The judgment of the circuit court, dismissing these claims with prejudice on demurrer, is affirmed.

170132 Parker v. Carilion Clinic 11/01/2018 In a suit against a healthcare provider and two employees for allegedly disclosing confidential patient information, a notice of appeal filed within 30 days after the date given to plaintiff for filing an amended complaint was timely. The averment that the employees acted in the scope of their employment created a rebuttable presumption, applicable at the pleading stage as well as at trial, that they committed tortious acts in the scope of their duties of employment and in the service for which they were engaged. Plaintiff’s own averments did not rebut that presumption as a matter of law, and it was error to sustain the employer’s demurrer to a respondeat superior claim at this stage. Plaintiff did not allege that the employer authorized, directed, ratified or performed the tortious acts, or that the employees were corporate officers or authorized to act, hence the circuit court correctly sustained a demurrer to a claim of direct liability of the employer for breach of the duty of non-disclosure. While a statute may define the standard of care where there is an underlying common-law duty, the doctrine of negligence per se does not create a cause of action where none otherwise exists. The claim of negligence per se based on violation of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) has no basis in Virginia law, and Code § 8.01-221 does not create a cause of action for statutory violation. Thus, a demurrer was properly sustained on the negligence per se claim. The judgment is affirmed in part and reversed in part, and the case is remanded.

171555 Botkin v. Commonwealth 11/01/2018 The judgment of the Court of Appeals of Virginia is affirmed as to its interpretation of Code § 18.2-308.2(A). Mandatory minimum terms of confinement ordered pursuant to Code § 18.2-308.2(A) must run consecutively with any other sentence, including other mandatory minimum terms ordered pursuant to Code § 18.2-308.2(A). Because this defendant’s sentences were run concurrently, those sentences are vacated and the case is remanded to the Court of Appeals with direction to remand to the circuit court for resentencing consistent with this opinion.

170707 Thomas v. Commonwealth 10/18/2018 In a felony case where the jury fixed the defendant’s sentence at seven years in prison but the trial court entered an order imposing a sentence of ten years with three years suspended, the ten-year sentence imposed by the court does not conform to statutory requirements, specifically Code §§ 19.2-295 and 19.2-295.2, and that sentence improperly extended the maximum sentence fixed by the jury. The judgment is reversed and the case is remanded for entry of a new sentencing order.

170963 Johnson v. Commonwealth 10/18/2018 In a proceeding to revoke the supervised probation of a convicted rapist, the circuit court’s admission of hearsay evidence did not violate the probationer’s right to confront witnesses against him under the Due Process Clause of the Fourteenth Amendment. At a revocation proceeding, a probationer is entitled to cross-examine adverse witnesses, unless the hearing body specifically finds good cause for not allowing confrontation, under a balancing test that requires the court to weigh his interests in cross-examining accusers against the interests of the prosecution in denying confrontation, or a reliability test that permits the admission of hearsay if it possesses substantial guarantees of trustworthiness. In this case, the circuit court stated that its decision to revoke the probationer’s probation was based, in part, on the contact that he made with underage females. The evidence presented at the revocation hearing established that this probationer and the girls lived in the same area, that the girls’ statements to a detective were consistent with statements in the text messages, and that the man who approached the girls shared the same age, place of employment, and physical appearance as the probationer. This evidence, when viewed as a whole, establishes the reliability of the girls’ assertion that the man who approached them was the probationer. Accordingly, the circuit court did not violate his right to confront witnesses against him, and the judgment of the Court of Appeals upholding the revocation of probation is affirmed.

171542 Ettinger v. Oyster Bay II 10/18/2018 It is an established rule in Virginia that a conveyance of land bounded by or along a way carries title to the center of the way, unless a contrary intent is shown. Although the grantor may reserve the narrow strip to the center of the road from a conveyance, that must be done expressly. The description in the deed in the present boundary dispute litigation, stating that the parcel is “bounded on the Northeast” by a named roadway, places this case within the rule’s ambit. Quantity designations are regarded as the least certain mode of describing land, and hence must yield to description by boundaries and distances. Because nothing in the deed in this case expresses a contrary intent, the owner’s parcel extends to the center of identified roadway by operation of the rule of construction. The judgment of the circuit court is reversed and final judgment is entered in favor of the parcel owner.

180005 George Mason University v. Malik 10/18/2018 The circuit court erred in finding that a public university’s decision to deny a request for a tuition reclassification from out-of-state to instate was arbitrary, capricious, and contrary to law. The student bears the burden of proof regarding domicile issues, and continuously enrolled non-Virginia students are presumed to be in the Commonwealth for educational purposes unless they rebut that presumption with clear and convincing evidence of domicile, as provided in Code § 23.1-503(G). In this case the circuit court exceeded the scope of its review under Code § 23.1-510(C) by reweighing the evidence and substituting its judgment for that of the university. The record supports the university’s conclusion that the student failed to carry her burden of proof. Policies and guidelines of the State Council of Higher Education for Virginia do not warrant a different result in light of the binding law set forth in the governing statutes. Because the circuit court erred in finding that the decision to classify this student as an out-of-state student was arbitrary, capricious, and contrary to law, the judgment is reversed and final judgment is entered for the university.

170540 Secret v. Commonwealth 10/11/2018 In a case involving arson of an occupied dwelling and multiple counts of attempted first-degree murder of the occupants, the trial court did not err in denying the defendant’s motion to suppress his own statements, given after being informed of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and indicating that he waived them. An unwarned voluntary admission made before Miranda warnings are given must be suppressed, but admissibility of statements after such warnings will turn on whether they are knowingly and voluntarily made, considering the surrounding circumstances and the entire course of police conduct with respect to the suspect. Here, the claims that defendant’s post-warning confession was the product of an intentional and coercive two-step interrogation technique, or that it was otherwise involuntary, are rejected. In addition, the trial court did not err in denying defendant’s motions challenging the sufficiency of the Commonwealth’s evidence of his specific intent to commit murder, as the evidence was sufficient to support the jury’s finding that he possessed the requisite intent to kill the nine individuals located on the premises when he started the fire there, based on both direct and circumstantial evidence. Thus, the jury as fact-finder and the trial court in ruling on the defense motion to set aside the verdict were wholly justified in rejecting the claim that he only acted out of general malevolence, without the required specific intent. The judgment of the Court of Appeals upholding the convictions is affirmed.

171494 Quisenberry v. Huntington Ingalls Incorporated 10/11/2018 In response to a certified question of Virginia law from the United States District Court for the Eastern District of Virginia requesting that this Court exercise jurisdiction pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, the question as restated being: Does an employer owe a duty of care to a family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer’s negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home? The restated question is answered in the affirmative.

170604 Meuse v. Henry 10/04/2018 The circuit court did not err in law, or on the facts, by refusing to vacate an arbitration award under Code § 8.01-581.010. An attorney involved substantially complied with the Rules of Professional Conduct and any failure to obtain consent in writing before entering a business relationship with the client did not rise to the level of a violation of public policy that requires voiding portions of a contract. The judgment of the circuit court is affirmed.

171055 Haynes-Garrett v. Dunn 10/04/2018 Considering an appeal of a judgment in a personal injury action brought by a short-term renter of a Virginia Beach vacation home arising from an injury the renter suffered inside the home shortly after taking possession of it, the circuit court did not err in ruling that the defendant homeowners only owed plaintiff the duty of care that a landlord owes its tenant when she rented the house for her family’s one-week vacation. Under the common law, a landlord has no duty to maintain in a safe condition any part of the leased premises that is under a tenant’s exclusive control. In contrast, an elevated duty of care is imposed upon a property owner that operates an inn on its premises, obligating the innkeeper to take every reasonable precaution to protect the person and property of their guests and boarders. The plaintiff did not establish an innkeeper-guest relationship between herself and the defendants under the facts presented here. Accordingly, the judgment of the circuit court striking plaintiff’s evidence is affirmed.

170288 Terry v. Irish Fleet, Inc. 09/27/2018 The circuit court did not err in dismissing a wrongful death case on demurrer. Virginia law recognizes two theories upon which a duty to warn or protect against criminal assault by a third party: a duty arising from the existence of a special relationship, and a duty voluntarily assumed by an express undertaking. In this case, the amended complaint against several defendants alleging, among other things, that a taxicab fleet operator and dispatching service assumed a duty to warn cab drivers of suspicious calls from potential riders and was negligent in fulfilling that duty, was premised on an implied undertaking, and was therefore insufficient to state a tort claim based on the concept of assumption of duty. As a result, the circuit court did not err in in ruling that plaintiff’s amended complaint failed to state a claim for which relief could be granted. The judgment is affirmed.

171068 Kerns v. Wells Fargo Bank, N.A. 09/27/2018 Regarding a mortgage debtor’s claim that the holder of his promissory note had breached the mortgage loan agreement by failing to give him a contractually required opportunity to cure his default and by improperly accelerating the balance due after his default, which ultimately led to a foreclosure sale of the mortgaged property, the circuit court correctly held that the debtor’s breach of contract claims – whether viewed as a right of action under Code § 8.01-230 or a cause of action under Code § 8.01-246 – accrued when the debt was accelerated prior to foreclosure, and that because the debtor did not file his suit against the lender within five years of this date of accrual, the statute of limitations barred his breach of contract claims. The circuit court’s judgment is affirmed.

180122 Roberts v. Virginia State Bar 09/06/2018 In a decision of the Virginia State Bar Disciplinary Board sanctioning an attorney by a public reprimand with terms, the Board did not err when it affirmed the Committee’s findings that the attorney had violated Disciplinary Rules 1.15(a)(3)(ii) and 1.15(b)(5) of the Virginia Rules of Professional Conduct or when it affirmed the sanction of a public reprimand with terms. The disposition is affirmed.

171428 City of Alexandria v. State Corporation Commission 08/30/2018 Considering an appeal from an order of the State Corporation Commission approving a water company’s request for a new wastewater infrastructure surcharge (“WWISC”), the cities’ arguments that the Commission had no statutory authority to approve the new surcharge and that, even if it did, the evidence was insufficient to justify the Commission’s approval, are rejected. The pertinent provision of the Constitution of Virginia, Article IX, § 2, and the enabling statutes enacted by the General Assembly, including Code §§ 12.1-12, 56-1, 56-35, 56-235, and 56-235.2, are written in purposefully broad terms, and authorize the Commission to set just and reasonable rates for public utilities, including water and wastewater companies, without limitation as to the type of rate mechanism set. Viewed using the applicable highly deferential standard of review, the record indicates that the Commission’s finding that the WWISC is just and reasonable and in the public interest was based upon its proper consideration of the testimony on behalf of all parties and upon substantial evidence showing the appropriateness of the WWISC. In light of this record, the Commission’s decision is not contrary to the evidence or without evidentiary support and, while arguably controversial, the Commission’s approval of the WWISC does not offend any provision of the Constitution or the Code of Virginia, and the Commission had the authority to approve it. Consequently, the Commission’s order approving the WWISC is affirmed.

170934 Madison v. Board of Supervisors 08/29/2018 A pro se petition for writs of mandamus and prohibition was not well grounded in fact or warranted by existing law when filed, and it does not contain good faith arguments for extension, modification, or reversal of existing law. Accordingly, the costs and attorney’s fees incurred by the county in defending against the petition are imposed against the pro se litigant as an appropriate sanction under Code § 8.01-271.1. Given her history of filing duplicative, vexatious lawsuits, without any objective good faith basis and at the expense of the court system and opposing parties, and the fact that monetary sanctions will not necessarily prevent her from filing future pleadings, a pre-filing injunction is imposed as a further sanction, prohibiting the pro se litigant from filing in this Court any petition for appeal, motion, pleading, or other filing against the county board of supervisors or any of the county’s divisions or departments without obtaining the services of a practicing Virginia attorney, or obtaining leave of this Court to file any pro se pleading. The circuit court may also impose its own pre-filing injunction if it deems that appropriate. Judgment is entered for the county in the amount of $4,377.35, and the suspension of this Court’s February 27, 2018 order dismissing the petition is hereby lifted.

171381 Primov v. Serco, Inc. 08/23/2018 The circuit court did not abuse its discretion when it dismissed a complaint with prejudice upon sustaining a plea in bar for failure to comply with a contractual condition precedent before filing suit. The facts showed that this was the second litigation commenced without prior satisfaction of a pre-suit mediation requirement in the parties’ contract, the parties had expended considerable efforts in the initial action, plaintiff had repeatedly failed to comply with the mediation requirement despite having been notified of it, plaintiff had the opportunity to fully litigate his claim in the initial action – which he nonsuited at the trial date – and plaintiff conceded that the effect of dismissing the case with prejudice is practically the same as dismissing the case without prejudice. Under these circumstances, it cannot be said that the circuit court committed a clear error of judgment by dismissing this case with prejudice, and the decision of the circuit court is affirmed.

171098 Pure Presbyterian Church v. Grace of God Presbyterian Church 08/16/2018 In litigation over whether two churches had agreed to merge, a jury found that the churches had, in fact, contracted to merge. The challenges to this judgment on appeal, contending that the circuit court lacked subject matter jurisdiction to resolve this dispute as a result of its ecclesiastical context, that declaratory judgment proceedings were inappropriate, and that the federal bankruptcy court’s jurisdiction over the bankruptcy estate of one of the two churches precluded relief in the present action, are rejected. The trial court had subject matter jurisdiction to adjudicate this dispute and, therefore, the judgment is affirmed.

170458 Tirado v. Commonwealth 08/09/2018 In a prosecution for rape of a minor, the defendant’s waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), was knowing and voluntary, and at trial an audiovisual recording of the defendant’s statements made to police officers through an interpreter was properly admitted into evidence. The accuracy and authenticity of the recording was adequately supported and the circuit court did not abuse its discretion in admitting this evidence. The record supports the circuit court’s finding that the defendant had the requisite level of Spanish comprehension to make a knowing and intelligent waiver of his Miranda rights, and the Court of Appeals did not err in upholding the circuit court’s ruling that defendant voluntarily, knowingly, and intelligently waived his rights under Miranda. The judgment of conviction is affirmed.

170995 Commonwealth v. Hunter Laboratories, LLC 08/09/2018 The relators filed this qui tam action alleging that several laboratories illegally inflated the bills they submitted to Virginia’s Medicaid program. The case ultimately settled and the Commonwealth approved the settlement. The relators and the Commonwealth agreed that the relators are entitled to 28% of the proceeds of the settlement, but disagreed over whether that share should come out of the total, or gross, proceeds of the settlement, or only from of the Commonwealth’s net share of the proceeds, after refunding a portion of the proceeds to the United States. Since the statute does not speak of “net proceeds,” the trial court did not err in concluding that the relators were entitled to receive 28% of the gross proceeds of the settlement. The judgment of the circuit court is affirmed.

171030 Prince William Board v. Archie 08/09/2018 In proceedings in circuit court on a petition for a writ of certiorari, there was no error in reversing the decision of a local board of zoning appeals and determining that the use of the parcel at issue as an automobile graveyard is a lawful nonconforming use, begun before the county enacted its zoning restrictions, and which has not been discontinued for a two-year period in the interim. The judgment is affirmed.

170732 Curley v. Commonwealth 07/26/2018 In a criminal case, the Court of Appeals did not err in rejecting the defendant’s challenge to the trial court’s denial of his motion to suppress evidence seized during the stopping of a vehicle, or in upholding his convictions for multiple drug and firearm related offenses. Considering together defendant’s furtive movements causing concern that he might be in possession of a weapon, his overly nervous demeanor, and his possession on his person of a digital scale with suspected cocaine residue, consistent with drug distribution, through the lens of a trained police officer, there was sufficient evidence to establish that the officer had probable cause to search defendant’s vehicle without a warrant as there was a fair probability that contraband or evidence of a crime would be found. The judgment of the Court of Appeals upholding defendant’s convictions is affirmed.

171067 Catjen, LLC v. Hunter Mill West, L.C. 07/26/2018 The circuit court erred in a confessed judgment case by reducing the amount due under a deed of trust note, and entering the confessed judgment for the reduced amount without the agreement of the party seeking the judgment. Any judgment confessed under the provisions of § 8.01-432 may be set aside or reduced upon motion of the debtor on any ground which would have been an adequate defense or setoff in an action at law on the creditor's note, but where a court grants a motion to set aside or reduce a confessed judgment, the matter must be set for a full trial on the merits of the creditor’s claim. Code § 8.01-433 makes no distinction between a motion to set aside a confessed judgment and a motion to reduce a confessed judgment. In both instances, the statute requires that the matter be set down for a full trial on the merits of the creditor’s claim. Accordingly, the trial court erred by failing to place the present case on the docket for a trial on the merits, and the judgment is reversed.

170747 Canody v. Hamblin 07/19/2018 In a proceeding brought by a daughter for probate of a three-page computer-generated document tendered as the will of her father, the circuit court did not err in considering testimony to establish the testamentary nature of the pages proffered for probate, and did not err in regard to the requirement of the proponent of the will to authenticate all three pages of the document. The trial court properly admitted testimony to refute the claim that the will was fraudulent and correctly declined to adopt a novel and more rigorous standard for admitting a will to probate. The judgment admitting the will to probate is affirmed.

170829 Severance v. Commonwealth 07/19/2018 As relates to this appeal, the criminal defendant was convicted and sentenced for two criminal acts: murdering a first victim within three years of murdering the second, and murdering the second victim within three years of murdering the first victim. He committed these criminal acts at two separate dates and in two separate places, thus warranting punishment for two capital murder convictions. A criminal statute that allows separate convictions for separate criminal acts does not implicate, much less constitutionally offend, double jeopardy principles. The Court of Appeals did not err in affirming this defendant’s convictions and sentences for the capital murder of two individuals within a three-year period in violation of Code § 18.2-31(8). The judgment of the Court of Appeals is affirmed.

171117 McCulley v. Brooks & Co. 07/19/2018 In a rent-collection case in which a landlord obtained a default judgment against a commercial tenant and its guarantor for unpaid rent, the landlord conceded that the judgment was void as to the guarantor because it failed to properly serve the complaint on that party. The circuit court erred in finding that the guarantor had entered a general appearance by participation in post-judgment enforcement proceedings and had thereby waived any objection to the validity of the default judgment. An appearance after entry of judgment cannot retroactively validate a judgment that was void when rendered for lack of personal jurisdiction over a party. Nor were there facts in this case to support any estoppel barring the guarantor from raising the defectiveness of the judgment. The circuit court erred in denying the guarantor’s motion to vacate the default judgment. Because the judgment was concededly void, final judgment is entered on this appeal declaring it so and vacating both the judgment and all later orders seeking to enforce it.

171224 Commonwealth v. Giddens 07/19/2018 The circuit court erred in dismissing a petition by the Commonwealth to have a prisoner civilly committed as a sexually violent predator under the Civil Commitment of Sexually Violent Predators Act, Code § 37.2-900 et seq. The respondent’s claim that the Commonwealth’s failure to investigate his complaint about the accuracy of his recidivism risk assessment score constitutes gross negligence is rejected. His testimony was contradicted by other evidence in the record, and the Director of the Department of Corrections was not negligent, much less grossly negligent, for rejecting extensive documentary evidence at the screening stage in favor of the otherwise uncorroborated, impeached, and self-interested testimony of an inmate and his brother. The judgment is reversed and the order of dismissal is vacated. This matter is remanded for further proceedings consistent with this opinion.

170620 Barr v. Atlantic Coast Pipeline, LLC 07/05/2018 In declaratory judgment proceedings brought by a natural gas company seeking to gain access to private property under Code § 56-49.01(A) for the purpose of conducting surveys and other activities that are necessary for the selection of the most advantageous route, the trial court did not err in construing the statute’s authorization for activities necessary for two purposes as disjunctive, allowing activities for either purpose listed in the statute. The eventual notice of intent to enter explained that completion of the surveys and other activities would require multiple crews over several days, and provided a limited set of dates, the majority of which overlapped, when each crew would be present. As the landowners have not challenged these date ranges as being unreasonable, it cannot be said that the date ranges provided by the notice of intent to enter violated the statute. Since the trial court’s application of Code § 56-49.01 was not improper, it is not necessary to reach the question of whether the improper application of the statute amounts to an improper taking in violation of Article I, § 11 of the Constitution of Virginia. The judgment is affirmed.

170617 CGI Federal Inc. v. FCi Federal, Inc. 06/07/2018 In an action by a putative subcontractor in a government contracting dispute, involving claims for fraudulent inducement, breach of contract, and unjust enrichment related to a teaming agreement entered between the parties in an effort to obtain a federal government contract, there was no reversible error in the judgment of the circuit court setting aside a jury verdict for the plaintiff on contract and fraud theories, or in entering summary judgment against the plaintiff on the unjust enrichment claim. The judgment is affirmed.

170639 Jones v. Von Moll 06/07/2018 In proceedings on a complaint by a retired firefighter appealing an adverse decision of the Commonwealth of Virginia/Office of the Comptroller that denied him continuing health insurance coverage owed to disabled persons under the Virginia Line of Duty Death and Disability Act, the circuit court did not err in ruling that the retired firefighter was not a disabled person entitled to receive health insurance benefits under the Act. Because plaintiff was retired at the time he was determined to be physically incapacitated, his incapacity did not prevent the further performance of his duties as a firefighter, because he no longer had firefighting duties to perform. Accordingly, he is not a disabled person under the Act and, for that reason, he is not entitled to continued health insurance coverage under Code § 9.1-401(B). The judgment of the circuit court is affirmed.

161844 Gerald, P. v. Commonwealth 05/31/2018 In prosecutions in circuit court against a mother and daughter for driving while on a suspended license, third or subsequent offense, and upon indictments charging each of them with perjury arising from testimony they gave in the prior general district court proceedings on the charges, the evidence given by witnesses who were present during the general district court testimony was sufficient to support their perjury convictions. Their challenges to the territorial jurisdiction of the county’s circuit court over the prosecutions for perjury committed in the county’s general district court, which is located in a city rather than the county itself, are rejected. The daughter’s challenge of the sufficiency of the evidence to support her conviction for driving on a suspended license is also rejected, and the judgments are affirmed. Combined case with Record No. 170356

170356 Gerald, T. v. Commonwealth 05/31/2018 In prosecutions in circuit court against a mother and daughter for driving while on a suspended license, third or subsequent offense, and upon indictments charging each of them with perjury arising from testimony they gave in the prior general district court proceedings on the charges, the evidence given by witnesses who were present during the general district court testimony was sufficient to support their perjury convictions. Their challenges to the territorial jurisdiction of the county’s circuit court over the prosecutions for perjury committed in the county’s general district court, which is located in a city rather than the county itself, are rejected. The daughter’s challenge of the sufficiency of the evidence to support her conviction for driving on a suspended license is also rejected, and the judgments are affirmed. Combined case with Record No. 161844

170518 Lewis v. Commonwealth 05/31/2018 Code § 18.2-57.2(B) provides that upon a conviction for assault and battery against a family or household member, where the defendant has been previously convicted of two specified offenses against a family or household member within a period of 20 years, the defendant is guilty of a Class 6 felony. In this case, a felony conviction is upheld. The statute does not require that a defendant have two predicate convictions at the time he or she commits the offense ultimately charged as a felony, but instead requires that the felony charge must allege that he or she has been previously convicted of two of the listed predicate offenses on different dates within twenty years. The predicate convictions must exist at the time of the indictment because the Commonwealth must present sufficient evidence of them to enable a grand jury to find probable cause. The Commonwealth must thereafter adduce sufficient evidence at trial to prove them beyond a reasonable doubt, and proof by written order is not required. The judgment of the Court of Appeals, upholding the defendant’s felony conviction, is affirmed.

170697 Vesilind v. Board of Elections 05/31/2018 In a declaratory judgment proceeding, the circuit court did not err in declaring the constitutional validity of Virginia General Assembly legislative districts that were allegedly drawn in violation of the compactness requirement expressed in Article II, § 6 of the Virginia Constitution. The Constitution speaks to the result of the districting process, and mandates that districts be compact in the end, but it does not attempt to curtail the legislative process that creates the end result, nor does it require that compactness be given priority over other considerations. Here, there was evidence to support the circuit court’s ruling that reasonable and objective people could differ regarding the compactness of the districts challenged in this action, and it did not err in declaring the constitutional validity of the districts under the fairly debatable standard applied to determinations made by the legislature. Accordingly, the judgment of the circuit court is affirmed.

171020 Davis v. MKR Development, LLC 05/31/2018 In a derivative action brought on behalf of a limited liability company by the majority shareholder against the entity appointed under the LLC’s operating agreement to manage the company, along with two of the manager’s principals, the circuit court erred in dismissing the action on the ground that the plaintiff had failed to first make a demand for the corporation to take action. Although Code § 13.1-1042, as amended, no longer expressly states a “futility exception” to the demand requirement, the revised statute did not abolish the futility exception, which has long been part of the law and is contemplated in other provisions of Virginia statutory law. The judgment dismissing the case without prejudice is reversed and the case is remanded for further proceedings.

171022 Bragg v. Board of Supervisors 05/17/2018 In an action to enforce the Virginia Freedom of Information Act, the circuit court erred in dismissing the petition on the basis that it was not properly supported by an affidavit showing good cause. Here, the petitioner’s affidavit swore that all of the allegations in the petition were true and correct, except to the extent therein stated to be on information, and to such extent the petitioner believed them to be true. Under the circumstances of this case, the petitioner’s sworn statement was sufficient to comply with the requirements of Code § 8.01-280 and, by extension, Code § 2.2-3713(A). The circuit court further erred in holding that the petitioner’s affidavit failed to show good cause because the petition, and therefore the affidavit, did not identify the basis of her “information.” Code § 2.2-3712(D), moreover, did not prohibit a board of supervisors’ member from subsequently acknowledging that his prior certifications of compliance of closed meeting requirements were improper. The petition, which incorporated the board member’s acknowledgment, was supported by an affidavit showing good cause. The petition therefore satisfied the requirements of Code § 2.2-3713(A), and the circuit court erred to the extent it held otherwise. The judgment is reversed and the matter is remanded.

170282 Commissioner of Highways v. Karverly, Inc. 05/10/2018 In an eminent domain case, the circuit court erred in precluding the expert appraiser for the Commissioner of Highways from testifying that the taking of 0.115 acres caused $0 in damages to the residue of the landowner’s 5.17-acre property, after the court had permitted the expert witness for the landowner to testify that the take caused $193,270 in damages to the remainder. The Commissioner’s expert should have been given an opportunity to explain to the jury why he concluded that the remaining property suffered no damages, just as the landowner’s appraiser was given the opportunity to explain why he reached the opposite conclusion. The judgment is reversed and the case is remanded for retrial.

170631 The Game Place v. Fredericksburg 35 05/10/2018 In a landlord’s action for unpaid rent under a 15-year commercial lease, the circuit court erred in entering judgment for the landlord. The lease was unenforceable as a matter of law under the Statute of Conveyances, Code § 55-2, because it exceeded a term of five years and did not have either the common-law formality of a seal or the relaxed seal substitutes available under Code § 11-3. When a tenant takes possession under a defectively executed lease, it is a reasonable inference that the parties intended a tenancy on the terms of the original agreement, and the law implies a new contract between the parties corresponding therewith, so far as it is not in conflict with the statute. In this case, once the invalid 15-year term is excised from the lease, the tenancy created and the manner in which the rent was received on a monthly basis during the entirety of the lessor-lessee relationship implies a month-to-month tenancy. The tenant, which paid monthly until it vacated the premises, had no further rent obligation to the landlord. The judgment is reversed, and final judgment is entered for the tenant and its guarantor.

170491 Coward v. Wellmont Health System 05/03/2018 In a birth-mother’s suit alleging the tort of intentional interference with parental rights in connection with efforts to have her newborn infant adopted by another family, the circuit court correctly determined that the allegations did not state a viable claim for this tort as a matter of law as to these defendants. None of the allegations in the complaint reasonably imply that the medical defendants participated in a conspiracy or concert of action with a woman who sought to adopt the infant, or were aware of her alleged coercion or misrepresentations. The complaint expressly alleges that plaintiff initiated the adoption plan, contacted the prospective adoptive parents, verbally agreed to proceed with an adoption, and executed a written agreement and consent order authorizing the adopting family to have sole physical custody of the child. No allegation in the complaint, express or implied, claims that the present defendants interfered with plaintiff parental rights with knowledge that plaintiff did not consent, as required in Restatement (Second) of Torts § 700, which the model for this tort cause of action. The judgment sustaining demurrers to the claims as against these defendants is affirmed.

170718 Cherry v. Lawson Realty Corporation 05/03/2018 In a case seeking damages for exposure to mold in a rented apartment, the trial court erred in dismissing the two common law based counts of the complaint on the theory that Code § 8.01-226.12 was intended to abrogate such common law based causes of action. On this interlocutory appeal under Code § 8.01-670.1, it is concluded that the General Assembly did not intend to disturb existing causes of action under the common law when it enacted this statute. Accordingly, the decision below is reversed and the case is remanded for further proceedings.

170247 Neal v. Fairfax County Police Department 04/26/2018 In a suit under the Government Data Collection and Dissemination Practices Act challenging a local police department’s use of information gathered and stored using automated license plate readers, the circuit court erred in granting summary judgment in favor of the law enforcement defendants and in dismissing the plaintiff’s case. The pictures and associated data stored in the database meet the statutory definition of “personal information” under Code § 2.2-3801. However, on the record in this appeal it cannot be determined whether the police department’s retention and “passive use” of information generated may be classified as an “information system” governed by the Act. Accordingly, the judgment of the circuit court granting summary judgment in favor of the law enforcement defendants is reversed. The case will be remanded for a determination of whether the total components and operations of the automated record-keeping process provide a means through which a link between a license plate number and the vehicle’s owner may be readily made. If so, the “passive use” of the database is not exempt from the operation of the Act under the law enforcement exception of Code § 2.2-3802(7), because the police collected and retained personal information without any suspicion of criminal activity at any level of abstraction, and thus created an information system that does not deal with investigations and intelligence gathering related to criminal activity.

170437 Commonwealth v. Perkins (ORDER) 04/19/2018 In an appeal by the Commonwealth from a decision of the Court of Appeals of Virginia, overturning convictions for malicious wounding and use of a firearm in that crime, the judgment of the Court of Appeals is reversed and vacated in part, because a rational factfinder could infer from the evidence presented at trial that the defendant attacked the victim with the requisite intent to maliciously wound him during a robbery. Final judgment is entered reinstating the defendant’s convictions for malicious wounding and use of a firearm during the commission of a malicious wounding.

170031 Feeney, J. v. Feeney 04/12/2018 In combined suits concerning a will’s residuary clause, which the parties agreed was unambiguous and its meaning could be decided on summary judgment without the aid of extrinsic evidence, limitations expressed in the will, taken as a whole, manifestly demonstrate the testator’s intention to restrict a widow’s interest in the residual property, creating a life estate by implication, impaired to the extent of the limitations expressed therein. Any other construction would render most of the operative language meaningless. The circuit court’s conclusion to the contrary is reversed. The doctrine of “judicial instructions” (allowing recovery of attorney fees) has not been explicitly recognized in Virginia but, if it exists in the Commonwealth, this doctrine only applies where there is an ambiguity in the testator’s will or trust instruments, and here the parties agree that the residuary clause is unambiguous. Thus, the circuit court did not err in denying recovery of attorneys’ fees in this suit. The judgment is affirmed in part, reversed in part, and the matters are remanded for further proceedings. Combined case with Record No. 170032

170032 Feeney, S. v. Feeney 04/12/2018 In combined suits concerning a will’s residuary clause, which the parties agreed was unambiguous and its meaning could be decided on summary judgment without the aid of extrinsic evidence, limitations expressed in the will, taken as a whole, manifestly demonstrate the testator’s intention to restrict a widow’s interest in the residual property, creating a life estate by implication, impaired to the extent of the limitations expressed therein. Any other construction would render most of the operative language meaningless. The circuit court’s conclusion to the contrary is reversed. The doctrine of “judicial instructions” (allowing recovery of attorney fees) has not been explicitly recognized in Virginia but, if it exists in the Commonwealth, this doctrine only applies where there is an ambiguity in the testator’s will or trust instruments, and here the parties agree that the residuary clause is unambiguous. Thus, the circuit court did not err in denying recovery of attorneys’ fees in this suit. The judgment is affirmed in part, reversed in part, and the matters are remanded for further proceedings. Combined case with Record No. 170031

161506 RECP IV WG Land Inv. v. Capital One Bank 04/05/2018 In a dispute over contractual provisions in a real estate purchase agreement governing the allocation of future development density rights for properties located near a new Metro rail station, the circuit court did not err in dismissing the suit brought by an assignee of certain rights of the seller against the assignee of the purchaser. The plaintiff’s declaratory claim fails because the conduct at issue is completed, and hence declaratory relief is not available. The applicable development density rights formula in this case could only reasonably be construed as requiring the allocation to be made in reference to the county plan’s Metro Overlay, as the circuit court correctly concluded. The county’s removal of the cap under its amended plan made the formula impossible to calculate and perform, which is a defense to the contract claims. The judgment of the circuit court sustaining the demurrer to the declaratory relief count of the complaint and sustaining its plea in bar and granting its motion for summary judgment as to two other counts is affirmed. Since the defendant is the prevailing party, it is entitled to recover its fees and costs under an express provision of the parties’ agreement, severable from the formula provisions that became impossible to perform, and thus the judgment awarding attorney’s fees, costs and expenses to the defendant, is also affirmed.

170586 Commonwealth v. Gregg 04/05/2018 A defendant who shot and killed a man repossessing his vehicle was convicted of common law involuntary manslaughter as well as involuntary manslaughter under Code § 18.2-154. In this statute, the General Assembly has determined that a person who commits the acts proscribed and does so unlawfully but not maliciously, causing a death, is guilty of involuntary manslaughter. It did not draw a distinction between species of involuntary manslaughter – both common law involuntary manslaughter and involuntary manslaughter under Code § 18.2-154 constitute one crime of involuntary manslaughter. The defendant’s mental state and his acts are the same for both common law involuntary manslaughter and manslaughter under Code § 18.2-154, and there is one victim. Involuntary manslaughter under Code § 18.2 154 is the “same offence” as common law involuntary manslaughter. The General Assembly did not intend to permit simultaneous punishment for both common law involuntary manslaughter and manslaughter under Code § 18.2-154 for the same act. Thus, this defendant was twice punished in the same trial of the same offense, in violation of the Double Jeopardy Clause. The judgment of the Court of Appeals is affirmed and the case is remanded for the Commonwealth to elect between the convictions.

170712 Bryant v. Commonwealth 04/05/2018 In a prosecution for unlawfully discharging a firearm within an occupied building, made a Class 6 felony by Code § 18.2-279, the Commonwealth did not have the burden of proving that the firearm was not discharged accidentally or inadvertently. The statutory language is plain and unambiguous, proscribing the act of discharging a firearm within an occupied building in such a manner as to endanger the life of a person therein. The statute distinguishes between several levels of the offense and subjects them to punishments that differ according to the mens rea of the offender and the resulting harm. Use of the term “unlawfully” in Code § 18.2-279 describes conduct that merely demonstrates criminal negligence. The evidence, viewed in the light most favorable to the Commonwealth, was sufficient to support the conviction without any proof of the defendant’s intent when discharging the firearm and that the defendant’s proposed jury instruction placing the burden upon the Commonwealth to prove that the discharge of the firearm was not accidental was properly refused as an incorrect statement of the law. The judgment of the Court of Appeals upholding the conviction is affirmed.

171151 VEPCO v. State Corporation Commission 03/29/2018 In determining whether certain large customers can purchase electricity from any licensed supplier of energy in the Commonwealth under Code § 56-577(A)(5) without being subject to the notice requirement set forth in Code § 56-577(A)(3), the plain language of subsections (A)(3) and (A)(5) of the statute is clear and unambiguous. Subsection (A)(5) provides that “individual retail customers” can purchase electricity produced with 100% renewable energy from competitive service providers. Unlike subsection (A)(3), subsection (A)(5) does not contain a limitation based on the size of a customer’s demand for electricity. Further, subsection (A)(3) does not state that it governs all purchases of electricity by large customers from competitive service providers. Accordingly, customers who satisfy the size requirements of subsection (A)(3) can purchase electricity from a competitive provider under subsection (A)(5), provided that they satisfy the separate conditions of subsection (A)(5). The order of the State Corporation Commission is affirmed.

160681 Kohl's v. Va. Dep't of Taxation (REPLACING OPINION DATED AUGUST 31, 2017) 03/22/2018 In a proceeding for correction of allegedly erroneous assessment of income taxes for a corporate taxpayer that deducted the payment of royalties to an intangible holding company in Illinois, the circuit court correctly determined that only the portion of the royalties that was actually taxed by another state falls within the subject-to-tax exception of the Virginia "add back" statute, Code § 58.1-402(B)(8)(a)(1). However, it erred by holding that the Illinois holding company must be the entity that pays this tax for the exception to apply. The circuit court’s judgment is reversed and the matter is remanded for a determination of what portion of the royalty payments was actually taxed by another state and, therefore, excepted from treatment as income under the Virginia add back statute.

161422 In Re: Brown 03/22/2018 A petition seeking a writ of actual innocence pursuant to Code §§ 19.2-327.1 to -327.6 based on biological evidence – filed by a person convicted 48 years ago for the first-degree stabbing murder of a four-year-old child – is dismissed. The petition relies on DNA testing performed by a private laboratory, but the governing statutes limit review of allegedly exculpatory biological evidence to findings of the Commonwealth’s Department of Forensic Science, whose analysis does not support the petition. Moreover, even if private laboratory results were cognizable, those test results, the factual proffers in the petition, the post-trial evidence presented in the Commonwealth’s response, and the evidence presented at the original trial, fall far short of providing in the aggregate the statutorily required clear-and-convincing proof that no rational trier of fact would have found proof of guilt beyond a reasonable doubt. Thus, the petition is dismissed.

161788 Evans v. NACCO Materials Handling Group 03/22/2018 In a products liability wrongful death action against a lift truck manufacturer’s successor in interest, while the jury could have concluded from the evidence that the plaintiff’s proposed redesign of the brake system would have eliminated, or at least reduced, the likelihood that the type of accident at issue in this case would occur, without any evidentiary basis from which the jury could conclude that the plaintiff’s proposed redesign was safer overall, the plaintiff failed to prove that the operator-adjustable, over-center brake was unreasonably dangerous. The jury instructions in this case drew a distinction between negligent design and inadequate warnings as a basis for liability and, in the context of the facts of this case and of the instructions, the jury’s defense verdict on breach of warranty was necessarily a rejection of plaintiff’s failure to warn theory. While the trial court set the verdict aside on the grounds of contributory negligence by the decedent, the judgment is affirmed on the alternate basis that plaintiff failed as a matter of law to establish that the design is unreasonably dangerous.

161187 In Re: Watford 03/01/2018 On a petition for writ of actual innocence based upon biological evidence pursuant to Code § 19.2-327.2 et seq., decided after an evidentiary hearing in circuit court certifying factual findings for review, the petitioner has proven, by clear and convincing evidence, all of the allegations required under Code § 19.2-327.3(A) and no rational trier of fact would have found him guilty beyond a reasonable doubt in light of all of the facts in the record. Accordingly, a writ of actual innocence is granted and the petitioner’s conviction for rape is vacated.

161640 Robinson Family, LLC v. Allen 03/01/2018 In a landlord tenant case in which the general district court ruled against the plaintiff on its rent and property damage claims and against the defendants on their counterclaim, dismissing all claims, the circuit court erred – after the plaintiff appealed but later obtained leave to withdraw the appeal – by awarding sanctions against the plaintiff under Code § 8.01-271.1 on the ground that plaintiff was required to have all supporting evidence in hand prior to bringing suit, and erred in awarding relief to the defendants on their counterclaim, dismissal of which by the general district court was never appealed to the circuit court. The judgment awarding sanctions is reversed and the award of damages on the defendants’ unappealed counterclaim is vacated.

161804 Turner v. Commonwealth 03/01/2018 The Court of Appeals of Virginia did not err in upholding a conviction for displaying a noose on a public place with the intent to intimidate, and placing others in reasonable fear of death or personal injury, in violation of Code § 18.2-423.2. The noose, located on defendant’s private property, was visible from a public road and thus – applying the obvious and rational meaning of the term – it was on a “public place” within the proscription of subsection (B) of the statute. The conviction is affirmed.

170122 Commonwealth v. Williams 03/01/2018 The circuit court did not err in granting a motion to quash and dismissing a petition to remove an elected officer, pursuant to Code § 24.2-233, et seq., on the grounds that the petition was not signed under penalty of perjury by a number of registered voters equal to ten percent of the votes cast in the prior election for that office. The petition failed to comply with the requirement dictated by the text of Code §§ 24.2-233 and -235 that the signatures of petitioners, who are registered voters equal to ten percent of the votes cast in the last election, be made under penalty of perjury. The judgment of the circuit court is affirmed.

170199 A.R.A. v. Commonwealth 03/01/2018 In a petition to expunge a felony arrest record, the trial court erred in concluding that the existence of this record may not cause the petitioner a manifest injustice. The facts underlying the arrest are irrelevant and the petitioner need not show actual prejudice to prevail on her expungement petition. She needs only to demonstrate that the continued existence of an arrest record may cause a manifest injustice. On this record, there is a reasonable possibility that a felony arrest record would hinder her career and her educational opportunities. It is concluded that the petitioner made the requisite showing of a manifest injustice. The judgment is reversed and the matter is remanded for entry of an order expunging the felony arrest record at issue.

161230 Holt v. Chalmeta 02/22/2018 In a medical malpractice case, the circuit court abused its discretion when it refused to qualify plaintiff’s only proposed expert witness under Code § 8.01-581.20. In a case where treatment of a newborn with respiratory distress was at issue, the board certified pediatrician and neonatologist proffered by the plaintiff met both the knowledge and active clinical practice requirements of Code § 8.01-581.20. It was an abuse of discretion to disqualify this witness from testifying, and the subsequent entry of summary judgment for the defense was error. The judgment is reversed and the action is remanded for further proceedings consistent with this opinion.

161527 Jordan v. Commonwealth 02/22/2018 The circuit court did not abuse its discretion in denying a petition filed by an inmate to change his name, under the provisions of Code § 8.01-217. For inmates, probationers, and persons required to register as sex offenders, under Code § 8.01-217(D) a court must find as a threshold matter that the name change would not frustrate a legitimate law enforcement purpose, is not sought for a fraudulent purpose, and would not otherwise infringe on the rights of others. If any of those circumstances are present, the court must deny the petition. However, even when those circumstances are absent, the court is not required to grant the petition and retains broad discretion in ruling on the petition. Here, it was not an abuse of that discretion for the circuit court to conclude that a person who would commit crimes of an extraordinarily heinous and brutal nature must retain his given name, for the peace of mind of the victims and the victims’ families, and to avoid any possible future confusion about his identity. The judgment denying the petition is affirmed.

161777 Osburn v. Dep't of Alcoholic Beverage Control 02/22/2018 In an appeal from a state employee grievance proceeding brought by a special agent of the Virginia Department of Alcoholic Beverage Control who was terminated, the opinion of the Court of Appeals is vacated. For the reasons stated in the present opinion, the judgment of that court is affirmed – upholding the circuit court’s affirmance of a hearing officer’s decision to uphold the agent’s termination based on his actions that failed to follow Department policy, regulations and training, and violated the constitutional rights of a retail alcohol license applicant.

170350 Dixon v. Sublett 02/22/2018 In a medical malpractice action, the plaintiff failed to present sufficient evidence to prove causation of injury resulting from a two-day delay in treatment of a perforated bowel incurred during performance of a hysterectomy. The circuit court should have granted the defense motion to strike the evidence on the basis of lack of causation. The judgment of the circuit court implementing a jury verdict for plaintiff is reversed and final judgment is entered on this appeal for the defendants.

170521 D'Ambrosio v. Wolf 02/22/2018 The circuit court erred in concluding that a son’s challenge to the validity of his mother’s will is barred by claim preclusion, issue preclusion, or judicial estoppel. Under Rule 1:6(a), a final judgment forecloses successive litigation of the same claim, but claim preclusion will not bar a claim that does not accrue prior to the litigation triggering the bar. Since the testator was alive during the prior litigation, the son’s interest in the tentative dispositions of her will was nothing more than a bare expectancy, and he had suffered no injury. Thus, the present cause of action had not accrued, and claim preclusion cannot bar it now. Issue preclusion bars relitigation of common factual issues between the same or related parties, but the issue must have been actually litigated and essential to a valid and final personal judgment in the first action and here it is not certain that the issues were actually litigated and decided by the court. Judicial estoppel is an equitable doctrine intended to prevent litigants from adopting a position inconsistent with a stance taken in a prior litigation. Here, the son’s argument in the prior litigation that his mother was capable of executing powers of attorney is not fatally inconsistent with his present argument that she lacked the requisite testamentary capacity to execute a will. Further, the court did not rely upon his assertions in rendering its decision in the prior case. Thus, judicial estoppel does not apply. The judgment is reversed and the case is remanded for further circuit court proceedings.

170524 Martin v. Lahti 02/22/2018 In a medical malpractice action, the circuit court did not abuse its discretion in excluding lay opinions by a deceased patient’s sister and daughter that the patient would not have agreed to a gallbladder procedure if she had been properly advised of the risks of surgery and its alternatives. The opinions as to what their relative would have decided, if presented with proper advice of the risks and alternatives, were not rationally based on the witnesses’ perceptions and personal knowledge, and were inadmissibly speculative. With respect to the trial court’s exclusion of a proffered post-operative statement of the patient as irrelevant, the assignment of error fails to address this ground for its exclusion, and this challenge was thus waived. The judgment is affirmed.

170643 Kellogg v. Green 02/22/2018 In litigation between former spouses, the circuit court erred when it sustained a plea of res judicata and dismissed the ex-wife’s breach of contract action based on a prior ruling in a reinstated divorce action that denied a show cause application with regard to obligations under the parties’ premarital agreements. In this case, there was no final order entered regarding the claim that ex-husband is attempting to preclude by his assertion of res judicata. The reinstated divorce action retains the matter on the court’s docket to enforce the parties’ pre-marital agreements, and the only subsequent order entered – the show cause order – neither struck the divorce action from the docket nor found the agreements unenforceable. Because there was no relevant final judgment entered, res judicata does not bar the ex-wife’s contract action. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

180173 Commonwealth v. Duse (ORDER) 02/12/2018 In the Commonwealth’s appeal from a decision of the Court of Appeals upholding a circuit court ruling allowing bail in a first degree murder prosecution, the judgment is reversed and the bail order is vacated. Under Code § 19.2-120, where a defendant is charged with first-degree murder, for which the maximum sentence is life imprisonment, the circuit court is required to presume, subject to rebuttal, that no condition or set of conditions will reasonably assure the defendant’s appearance or the safety of the public. In this case, the circuit court abused its discretion by applying the doctrine of presumed innocence to a pre-trial bail hearing, by finding that the brutal and calculated circumstances of the murder were outweighed by the absence of any specific or immediate threat to any other individuals, by speculating that the defendant in this case was unlikely to abscond because of his age, and by wholly discounting and according no weight to the defendant’s well-documented prior history of mental disorders. The Court of Appeals’ January 25, 2018 order is reversed and the circuit court’s January 3, 2018 order granting pre-trial bail is vacated. The rule to show cause issued on February 7, 2018 is discharged.

161180 Ahmed v. Commonwealth (ORDER) 12/28/2017 In a Virginia Tort Claims Act case for injuries suffered while the plaintiff was an inmate at a correctional facility, it was error to dismiss the claim based on the one-year notice requirement of Code § 8.01-195.6. A separate statute, Code § 8.01-195.3(7), provides that the time for filing a notice of tort claim is tolled during the pendency of grievance procedures, which must be exhausted prior to commencing an action. Here, the claimant initiated the grievance procedure three days after the incident in which it is alleged he was injured, and – after notification by the Department of Corrections that his grievance was denied and that he had exhausted all administrative remedies – he filed a notice of claim within the one-year period as required by Code § 8.01-195.6(A). Therefore, the circuit court erred in dismissing this case on the ground that plaintiff did not timely file his notice of tort claim. The judgment is reversed and the case is remanded for further proceedings.

161339 Emerald Point, LLC v. Hawkins 12/28/2017 A judgment in favor of four plaintiffs in a premises liability action against the owner of an apartment building, and its management company, for carbon monoxide poisoning is reversed. The circuit court abused its discretion by permitting the edited video deposition of plaintiffs’ expert played for the jury to include statements and opinions not adequately disclosed in plaintiffs’ response to interrogatories. In addition, an adverse inference instruction for spoliation of evidence is proper only where the party has acted in bad faith or with intentional conduct calculated to suppress the truth, which was not shown in this case. Certain testimony of a city code inspector must be excluded in any retrial as lacking in relevancy. The circuit court did not abuse its discretion in refusing to sever the claims of the most severely injured plaintiff from those of the other three plaintiffs, but it was error to permit amendment of the ad damnum clauses of three plaintiffs after completion of all of the evidence. The judgment is affirmed in part and reversed in part, and the case is remanded for a new trial.

161346 Pijor v. Commonwealth 12/28/2017 No error is found in an appeal from a perjury conviction for which the circuit court and the Court of Appeals found that the doctrine of collateral estoppel did not bar the prosecution, and the evidence was sufficient to support the conviction. The ultimate issues of fact in a prior larceny trial, in which the defendant was acquitted, were different from those in the present perjury trial. Thus, the trial court and the Court of Appeals did not err in finding the Commonwealth was not collaterally estopped from bringing the indictment for perjury. The evidence, including circumstantial evidence, was sufficient to support a finding of guilt on the required elements of the perjury offense beyond a reasonable doubt. The judgment is affirmed.

161489 Rickman v. Commonwealth 12/28/2017 In a civil commitment proceeding under the Sexually Violent Predators Act, Code §§ 37.2-900 to -921 (“SVPA”), the circuit court’s failure to meet a statutory scheduling deadline for holding the initial probable cause hearing did not require that the SVPA petition be dismissed with prejudice. Code § 37.2-906(A)(ii) states that the court shall schedule a probable cause hearing within 90 days, but nothing in the statute provides that a court must dismiss the petition with prejudice if it holds the hearing beyond that deadline. Use of the term “shall” in a statute is generally construed as directory rather than mandatory and, consequently, no specific, exclusive remedy applies unless the statute manifests a contrary intent. The only remedy petitioner sought from the circuit court – a dismissal with prejudice – was not required as a matter of law. He did not claim the delay in any way prejudiced his defense of the SVPA petition. The circuit court did not abuse its discretion in refusing to dismiss the SVPA petition, and its ultimate determination that respondent’s status as a sexually violent predator required involuntary, secure inpatient treatment because no suitable less restrictive alternative existed, is not disturbed.

170128 Shin v. Commonwealth 12/28/2017 In an appeal from conviction for unreasonable refusal to submit a breath test in violation of Code § 18.2-268.3, the judgment is affirmed. The contention that Virginia’s implied consent law imposes an unconstitutional condition upon the privilege to drive within the Commonwealth, making it reasonable for a driver to refuse to provide a blood or breath sample when arrested on suspicion for driving while intoxicated is rejected. Nor is there merit in the argument that Code § 18.2-268.3 lacks an objective definition of what constitutes a reasonable refusal under the statute. The implied consent law also does not violate the Virginia Constitution.

161290 Shifflett v. Latitude Properties, Inc. 12/14/2017 In proceedings by judgment creditors under writs of fieri facias, the circuit court erred in granting summary judgment to creditors seeking to reach the debtors’ interest in federal tax refunds where the debtors had not yet filed tax returns for the tax year in question. Where an income tax return has not been filed by the return date on the writ of fieri facias, any potential income tax refunds are not in possession of or under the control of the debtor for purposes of Code § 8.01-501 and Code § 8.01-507. The judgment of the circuit court granting summary judgment and enforcing liens upon the potential 2015 income tax refunds of debtors is reversed and the matter is remanded for further proceedings consistent with this opinion.

161676 Commonwealth v. Campbell 12/14/2017 In the Commonwealth’s appeal from a decision of the Court of Appeals of Virginia reversing a circuit court’s order denying suppression of evidence under Code § 19.2-54, it will be assumed that a magistrate’s incomplete transmission of warrant application papers to the court clerk rendered the search warrant invalid under that statute, but the judgment of the Court of Appeal is reversed on the alternate ground that the search in this case was justified as a warrantless search under the exigent circumstances exception to the warrant requirement. Final judgment upholding the conviction in this case is entered.

161799 MCR Federal, LLC v. JB&A, Inc. (Corrected) 12/14/2017 In an action involving claims for breach of contract and constructive fraud arising out of a contract for the sale of a business, the circuit court erred in finding that the plaintiff was permitted to bring both fraud and breach of contract counts arising out of the transaction. Because the fraud claim arose from the contractual relation, it was barred, and the attorneys’ fee award predicated on that claim is reversed. However, there was adequate proof to support the conclusion that the defendant’s breach caused the plaintiff’s damages, and those damages were proven with reasonable certainty. The judgment is affirmed in part, reversed in part, and final judgment is entered on this appeal.

170071 Irving v. Divito 12/14/2017 In a proceeding to review a clerk’s decision to deny probate to a handwritten notation on a tab-divider in a binder of estate planning documents, the record in this case supports the circuit court’s rulings that the holographic writing was not signed in the manner required by Code § 64.2-403(A), and the proponent failed to show that it is manifest that the decedent’s initials were intended as his. The record also supports the circuit court’s conclusion that the proponent did not prove by clear and convincing evidence that the writing was intended as a codicil or executed with testamentary intent under Code § 64.2-404. The judgment refusing to probate this writing as a codicil to the decedent’s will is affirmed.

161311 Eilber v. Floor Care Specialists (Corrected) 12/07/2017 In a defamation action for which the claim arose after confirmation of the plaintiff’s Chapter 13 bankruptcy plan, but prior to the bankruptcy discharge, and plaintiff did not disclose his defamation action until after the discharge, the circuit court did not err in applying the doctrine of judicial estoppel which prohibited plaintiff from prosecuting his defamation claim after taking the position in the bankruptcy court that it did not exist. Judicial estoppel is not an affirmative defense that is waived if not pled, thus it was not waived by the failure of the defamation defendants to raise it in their pleadings, and the circuit court had the authority to raise and apply the doctrine sua sponte. The judgment dismissing this action on summary judgment is affirmed.

161505 Kim v. Kim (ORDER) 12/07/2017 In two litigations raising the issue whether a decedent’s will and trust were the product of undue influence by his brother, the attorney who drafted the instruments, the widow’s claims are rejected. In the context of testamentary documents, a presumption of undue influence arises upon proof that (1) the testator was enfeebled in mind when the testamentary document was executed; (2) the testator named a beneficiary who stood in a relationship of confidence or dependence; and (3) the testator previously had expressed an intention to make a contrary disposition of the testator’s property. The existence of a confidential relationship is insufficient, alone, to establish the second element. It must be accompanied by activity on the part of the dominant person in procuring or preparing the will in his favor before a presumption of undue influence will arise. In this case, the brother is not a beneficiary under either the will or the trust, and neither his entitlement to compensation as executor and trustee, nor his power as trustee to choose beneficiaries of certain trust property make him a beneficiary. The uncertain and contingent possibility that the brother might divert and distribute trust property to himself does not make him a beneficiary. Thus, the circuit court did not err in dismissing, with prejudice, the widow’s claims of undue influence.

161549 Rastek Construction v. General Land (Corrected) 11/30/2017 In an action brought by a real estate broker against a party that contracted to sell land but never closed on the $3 million transaction, the circuit court erred as a matter of law in concluding that the seller improperly prevented the closing, setting up a third-party beneficiary claim for recovery of a brokerage commission on the uncompleted sale. Under Code § 55-22, if a third-party beneficiary is allowed to sue, the claim against the promisor or covenantor is subject to defenses arising from the agreement. When a promisor prevents, hinders, or renders impossible the occurrence of a contractual condition by acts that are wrongful and in excess of the promisor’s rights, the promisor will not be relieved of the obligation to perform. This doctrine, however, does not compel positive action by the promisor to bring about the performance of the condition. Thus, the duty of a vendor to a broker is fulfilled by remaining passive and neutral; the condition, upon which the payment of commissions is made to depend, is waived only where the vendor is active to prevent or hinder its performance. Recovery of damages for preventing the performance of a condition also requires proof of causation. In this case, evidence was absent that the seller wrongfully prevented satisfaction of the contractual closing condition in excess of its legal rights. The judgment is reversed and final judgment is entered for the defendant seller on this appeal.

170889 Judicial Inquiry & Review Comm'n v. Pomrenke 11/27/2017 On a complaint brought by the Judicial Inquiry and Review Commission of Virginia pursuant to the original jurisdiction of the Court set forth in Article VI, Section 10 of the Constitution of Virginia and Code §17.1-902, presenting charges against a juvenile and domestic relations district court judge, who has admitted violations of the Canons of Judicial Conduct for the Commonwealth of Virginia, as set out in Part 6, Section III of the Rules of the Supreme Court of Virginia, it is concluded that the judge’s violations of the Canons have had such a significant impact upon public confidence in the judiciary, the confidence of coordinate branches of government, the reputation of the judiciary, and the expectations of our fellow judges, that his actions are of sufficient gravity to warrant removal from office. He is removed immediately from the office of juvenile and domestic relations district judge, pursuant to Article VI, §10, of the Constitution of Virginia.

161095 Woolford v. Virginia Dep't of Taxation 11/22/2017 In an appeal from a decision of the Virginia Department of Taxation rescinding $4.9 million in land preservation tax credits it had previously awarded to the property owners who donated a land preservation easement on a 450-acre farm, the circuit court erred in finding that appraiser hired by the property owners was not “qualified” within the intendment of Code §58.1-512(B) and applicable federal standards. That determination is reversed, and the case is remanded for consideration of all remaining issues.

161417 Grethen v. Robinson 11/22/2017 The circuit court erred in denying an inmate’s application to proceed in forma pauperis with a petition for a writ of mandamus. The “trust certificate of account history” and other records submitted with this application, showing “zero monthly balances,” were sufficient to satisfy the provisions Code §8.01-691 and the practice of the Department of Corrections of treating certain charges, loans or advances as “deposits” does not render those entries “deposits” within the meaning of the statute. The judgment denying permission to proceed in forma pauperis is reversed and the case is remanded for further proceedings.

161767 Appalachian Regional Healthcare v. Cunningham 11/22/2017 The State Corporation Commission did not err in denying claims filed by a group of Kentucky hospitals requesting reimbursement for some $449,000 in legal fees and costs from an insolvent insurer. The operative agreements constituting an assumption reinsurance transaction did not provide a contractual basis for the claims for legal fees and costs. The judgment of the Commission is affirmed.

161113 Cole v. Commonwealth 11/16/2017 In a drug prosecution, a decision on a pretrial appeal by the Commonwealth should have been subject to review by the Court of Appeals on a second appeal by the defendant after conviction. Strip searches of inmates and detainees will not violate the Fourth Amendment if they are reasonable in light of institutional security interests. On the record here, there was no substantial evidence that the jail’s response to the situation is exaggerated, and thus deference must be given to the officials in charge. For these reasons, the Court of Appeals did not err in reversing the circuit court’s pretrial suppression of the strip search evidence. Nor did the Court of Appeals err in concluding that there was sufficient evidence to sustain a conviction for possession of drugs with intent to distribute. The judgment of the Court of Appeals is affirmed in part, reversed in part, and final judgment is entered upholding the conviction.

160612 Chilton-Belloni v. Angle 11/09/2017 In two related zoning actions tried together, the circuit court erred in applying principles of res judicata to deny a writ of mandamus brought by a landowner against the local Board of Zoning Appeals, in refusing to stay the action pending further proceedings before the BZA, and in granting an injunction sought by the Zoning Administrator against the landowner. The appeal in the mandamus proceeding is dismissed. The judgment of the circuit court with respect to the stay and injunctive relief is reversed and the matter is remanded for further proceedings consistent with this opinion.

160540 Levick v. MacDougall 11/02/2017 In an appeal from a divorce proceeding, the parties' marriage is held valid. The public policy of Virginia has been to uphold the validity of the marriage status as for the best interest of society, and the presumption of the validity of a marriage is one of the strongest presumptions known to the law. While Code §20-13 states that every marriage shall be under a license and solemnized in the manner herein provided, there is no specific manner provided anywhere in the Code of Virginia. This statute does not mandate a precise sequence for performing the marriage ceremony and obtaining the marriage license, and does not mention a marriage “ceremony” at all, but addresses only the broader concept of solemnization. Nothing in Code §20-13 expressly indicates that the license and solemnization requirements must be performed in any particular order. Nor does any provision of the Code limit solemnization only to a ceremony. Even if the courts were to infer a particular sequence for the license and solemnization requirements, a violation of that judicially implied requirement would not render the parties' marriage either void ab initio or voidable. The marriage was valid and the circuit court, therefore, had authority to distribute the marital assets consistent with the marital agreement and to continue its adjudication of the divorce proceeding. The judgment of the Court of Appeals is reversed and the matter is remanded to that court for remand to the circuit court for further proceedings consistent with this opinion. Combined case with Record No. 160551

160551 MacDougall v. Levick 11/02/2017 In an appeal from a divorce proceeding, the parties' marriage is held valid. The public policy of Virginia has been to uphold the validity of the marriage status as for the best interest of society, and the presumption of the validity of a marriage is one of the strongest presumptions known to the law. While Code §20-13 states that every marriage shall be under a license and solemnized in the manner herein provided, there is no specific manner provided anywhere in the Code of Virginia. This statute does not mandate a precise sequence for performing the marriage ceremony and obtaining the marriage license, and does not mention a marriage “ceremony” at all, but addresses only the broader concept of solemnization. Nothing in Code §20-13 expressly indicates that the license and solemnization requirements must be performed in any particular order. Nor does any provision of the Code limit solemnization only to a ceremony. Even if the courts were to infer a particular sequence for the license and solemnization requirements, a violation of that judicially implied requirement would not render the parties' marriage either void ab initio or voidable. The marriage was valid and the circuit court, therefore, had authority to distribute the marital assets consistent with the marital agreement and to continue its adjudication of the divorce proceeding. The judgment of the Court of Appeals is reversed and the matter is remanded to that court for remand to the circuit court for further proceedings consistent with this opinion. Combined case with Record No. 160540

161419 Gray v. Binder 11/02/2017 In an estates dispute in which a commissioner of accounts entertained a petition for aid and direction in the interpretation of the decedent’s will and the determination of heirs, and the commissioner’s reports were confirmed by the circuit court, the judgment is affirmed. Commissioners of accounts were established to afford a prompt, certain, efficient, and inexpensive method for the settlement of fiduciaries’ accounts. They serve to assist the circuit court, not to supplant it. Their work is subject to review by the circuit court, which may accept or reject it, in whole or in part. The circuit court here, in confirming the commissioner’s report, was not acting as an appellate court. Commissioners are not lower tribunals from which appeals are taken. When a commissioner files a report, under Code §64.2-1213 it becomes the opinion of the circuit court if no exceptions are filed. When exceptions are filed, the court can accept or reject the report in whole or in part, as provided in Code §64.2-1212. A commissioner’s authority to assist the circuit court with the settlement of estates is simply an extension of the circuit court’s subject matter jurisdiction to administer estates. The circuit court’s jurisdiction to interpret wills and determine decedents’ heirs is undisputed. In this case, the circuit court had subject matter jurisdiction over the case and its decisions are reviewed, not those of the commissioner of accounts. The judgment is affirmed.

161195 La Bella Dona v. Belle Femme Enterprises 10/26/2017 In a civil action involving competing and successor spa businesses, the circuit court did not err when it held, as a matter of law, that a fraudulent conveyance under Code §55-80 cannot serve as the predicate liability basis needed to support a claim in Virginia for statutory or common law conspiracy. However, it was error to grant summary judgment on the fraudulent conveyance claim on the theory that a prima facie case could not be established when the recipient is a third party creditor with a higher security interest. In addition, the circuit court erred by applying a clear and convincing standard of proof to a claim for successor entity liability based on the mere continuation of business theory. The judgment of the circuit court is affirmed in part, reversed in part, and the matter is remanded for further proceedings consistent with this opinion.

161347 Kalergis v. Virginia Comm'r of Highways 10/26/2017 In a suit by former landowners seeking reconveyance of property taken by advance condemnation for a highway project that was later abandoned, where the improvements on the land were removed and demolished and the taken property remained undeveloped for more than 20 years, the judgment dismissing the claim for repurchase of the property at less than the full original purchase price under Code §33.2-1005(A) is affirmed. The statutory term “original purchase price” clearly refers to the amount paid to the landowners when the property was taken by advance acquisition. “Original purchase price,” as used in Code §33.2-1005(A), is not ambiguous and, thus, must be construed by its plain meaning. The “original purchase price” in this case was $1,150,000. The circuit court did not err in finding that it could not order reconveyance at a price of $286,110 – based on pre-taking appraisal of the land separated from its improvements – because the language of the statute clearly requires use of the “original purchase price,” rather than the appraised value of the land. For the reasons assigned in this opinion, the judgment is affirmed.

160952 Commonwealth v. Leonard 10/19/2017 The Court of Appeals erred in ruling that the Commonwealth was collaterally estopped in the present prosecution for driving under the influence (DUI), third or subsequent offense within a five-year period, from using a valid DUI conviction as a predicate offense for sentencing enhancement because a general district court, in an unrelated case, previously ruled that the Commonwealth could not use the same DUI conviction as a predicate offense for sentencing enhancement. The judgment of the Court of Appeals is reversed and the trial court’s order of conviction on DUI, third or subsequent offense within a five-year period, is reinstated.

160688 Graves v. Commonwealth 10/12/2017 A sentence of five years in prison, with two years suspended, imposed over a decade ago for the crime of using a firearm in the commission of a felony in violation of Code §18.2-53.1, was in excess of the statutory maximum. The statutorily prescribed three-year term is both a mandatory minimum and a mandatory maximum sentence. The judgment below is reversed insofar as it imposes a sentence exceeding the punishment authorized by the General Assembly in Code §18.2-53.1, the two year suspended sentence is vacated, and the case is remanded for entry of a new sentencing order in conformity with this opinion.

161066 Graham v. Community Management Corp. 10/12/2017 A former officer of the defendant corporation was sued by that entity in a prior lawsuit for allegedly breaching confidentiality duties when she took other employment. She won that litigation, and then instituted the present separate action as plaintiff to recover her legal fees from that prior case, relying on a contractual provision in the confidentiality agreement on which the corporation previously sued, which allows fee recovery by a prevailing party in confidential information disputes. The circuit court here correctly held that Rule 3:25 precluded the present plaintiff from requesting attorney’s fees because she failed to request recovery of fees in the underlying litigation involving allegations of breach of confidentiality duties. The judgment dismissing the present fee action is affirmed.

160414 Howsare v. Commonwealth (Order) 09/29/2017 Upon a petition for rehearing, the opinion of June 1, 2017 in this matter is corrected: the words appearing on page 3 of the slip opinion, lines 18 and 19, reading “but not assigned as error on appeal,” are deleted. The remaining parts of the opinion and the Court’s judgment affirming the judgment of the Court of Appeals are unaffected by this order.

160664 Palmer v. R. A. Yancey Lumber Corp. 09/14/2017 In a declaratory judgment by a lumber company seeking a ruling confirming an easement across the land of the defendant wide enough for its trucks, the circuit court’s judgment granting modifications expanding the easement by necessity for use by tractor-trailers was neither plainly wrong nor without evidence to support it. Viewed in the light most favorable to the plaintiff, as the prevailing party below, the evidence shows that such use of the easement – and the modifications to accommodate that use – are reasonably necessary for the benefit of the plaintiff's dominant property. At the same time, the evidence shows that the modifications will not create an unreasonable burden on the defendant's servient. Thus, it cannot be said that the circuit court, by granting plaintiff the right to make these limited modifications, failed to maintain a balance in the interests of the parties, respectively, as dominant and servient landowners. The judgment of the circuit court is affirmed.

161172 Erie Ins. Co. v. McKinley Chiropractic Ctr. (ORDER) 09/14/2017 Judgment holding a health care provider entitled to recover against an insurance company that had received prior notice of a patient’s assignment of all insurance and/or litigation proceeds and all causes of action arising out of a motor vehicle accident with the insured, but failed to honor such assignment when it paid the proceeds of a settlement of the personal injury claim directly to the patient, instead of to the health care provider, is reversed. Under Code §8.01-13 an assignee or beneficial owner of any bond, note, writing or other non-negotiable chose in action may maintain in his own name any action which the original obligee, payee, or contracting party might have brought thereon. However, an injured party possesses no right to recover tort damages from a tortfeasor’s insurer until the claim against the tortfeasor is reduced to a judgment. Here, the patient never obtained a judgment against the insured and relinquished all existing and future rights to recover from the insurer or its insured as part of the settlement of the personal injury claim. Thus, at no time did a right exist on which the patient could have maintained an action against the insurer – or on which the health care provider, as the patient’s assignee, could maintain an action in its own name against the insurer under Code §8.01-13. Final judgment is entered for the insurance company.

161519 Old Dominion Committee v. SCC 09/14/2017 In consolidated appeals challenging a decision of the State Corporation Commission upholding the constitutionality of Code §56-585.1:1, which suspended the Commission’s biennial base rate reviews for Appalachian Power Company and Virginia Electric and Power Company d/b/a Dominion Virginia Power under Code §56-585.1 until the years 2020 and 2021, respectively. The argument that Code §56-585.1:1 violates Article IX, §2 of the Constitution of Virginia is rejected, and the judgment of the Commission is affirmed. Combined case with Record Nos. 161520 and 161521

161520 VML/VACo APCo Steering Committee v. SCC 09/14/2017 In consolidated appeals challenging a decision of the State Corporation Commission upholding the constitutionality of Code §56-585.1:1, which suspended the Commission’s biennial base rate reviews for Appalachian Power Company and Virginia Electric and Power Company d/b/a Dominion Virginia Power under Code §56-585.1 until the years 2020 and 2021, respectively. The argument that Code §56-585.1:1 violates Article IX, §2 of the Constitution of Virginia is rejected, and the judgment of the Commission is affirmed. Combined case with Record Nos. 161519 and 161521

161521 Torrent v. SCC 09/14/2017 In consolidated appeals challenging a decision of the State Corporation Commission upholding the constitutionality of Code §56-585.1:1, which suspended the Commission’s biennial base rate reviews for Appalachian Power Company and Virginia Electric and Power Company d/b/a Dominion Virginia Power under Code §56-585.1 until the years 2020 and 2021, respectively. The argument that Code §56-585.1:1 violates Article IX, §2 of the Constitution of Virginia is rejected, and the judgment of the Commission is affirmed. Combined case with Record Nos. 161519 and 161520

160857 Dietz v. Commonwealth 09/07/2017 Upon review of the conviction of an elementary school teacher under Code §18.2-374.3(B) for the crime of using a cell phone for “purposes of procuring or promoting” one of her 11-year-old students for activity that would violate Code §18.2-370 (taking indecent liberties with children), the judgment is affirmed. The Court of Appeals correctly held that no third-party communication is required for a violation of Code §18.2-374.3(B) – a perpetrator can violate the statute by directly communicating with the child, with the objective of scheming or plotting to induce the minor to be the victim of the taking of indecent liberties, whether presently or in the future. In a prosecution for making an unlawful communication with a child under this statute, the Commonwealth was not required to prove completion of taking indecent liberties. Here, there was sufficient evidence to support conviction without determining whether defendant actually violated Code §18.2-370 by sending the young boy a picture of her partially obscured breasts. Conviction under Code §18.2-374.3(B) requires only evidence sufficient to show that the defendant’s communication was for the purpose of moving forward with a scheme of taking indecent liberties with a child. The judgment of the Court of Appeals upholding the defendant's conviction is affirmed.

160257 Williams v. Commonwealth (ORDER) 08/31/2017 In appeal from an assault conviction certified for consideration along with review of an involuntary commitment order relating to a later assault and attempted murder, the circuit court's decision to sequence defendant's prison term to precede his involuntary civil commitment did not result in a grave injustice. He was accorded due process in an evidentiary hearing and could be heard and present evidence, and he had counsel throughout. The propriety of the sentence imposed and the involuntary civil commitment order are not challenged. The arguments that the ends of justice exception should be applied because the circuit court ignored the seriousness of his mental illness and should have committed defendant directly to inpatient hospitalization, making the imprisonment a manifest injustice, is rejected. The five-year prison sentence is for a crime committed before defendant's alleged temporary insanity, to which he pled guilty after recovering from that condition. Statutes do not prescribe a sequence for imposition of incarceration for one offense in relation to involuntary civil commitment for different crimes committed in a later period of temporary insanity. Prisons are required to provide treatment, and defendant can also be transferred to a facility outside of the Department of Corrections if it is determined that he cannot be provided the kind of care required during incarceration. Thus the ends of justice exception under Rule 5:25 will not be applied to review the errors alleged, and the judgments of the circuit court are affirmed. Combined case with Record No. 161639

160979 City of Danville v. Garrett 08/31/2017 The circuit court erred by applying Code § 51.1-813 to determine the amount of disability benefits a city and its retirement system are obligated to pay a disabled former police officer. Under Code §§ 51.1-819 and -820 Article 2 of Title 51.1 of the Code of Virginia does not apply to localities, other than those counties having a county manager plan of government, unless a locality adopts the provisions of Article 2 by vote of its governing body in the manner described in Code § 51.1-819. In this case, it is undisputed that the city never passed a resolution adopting those provisions, and thus Code § 51.1-813 does not apply to the city. The circuit court erred in ordering the city and its retirement system to make payments to plaintiff pursuant to Code § 51.1-813, and in increasing the amount of plaintiff's disability benefits paid by the city and its retirement system pursuant to local ordinances. The judgment is reversed and final judgment is entered on this appeal for the city.

160999 Denton v. Browntown Valley Assocs. 08/31/2017 The circuit court did not abuse its discretion by denying a decree of specific performance to a seller under a contract for the sale of real property, and did not abuse its discretion when it determined the amount of attorney’s fees to award to the defendant as prevailing party under the contract’s fee-shifting provision. The circuit court therefore did not abuse its discretion by including in its award the attorney’s fees the defendant incurred while litigating the reasonableness of the award it sought. The judgment of the circuit court is affirmed, and the cases is remanded for an award of the costs and reasonable attorney’s fees incurred by the prevailing party in this appeal.

161017 Va. Education Assn. v. Davison (Corrected) 08/31/2017 Judgment in favor of a mandamus petitioner seeking production of Standards of Learning-related student growth percentile scores from a local county school division is reversed. Under Code §22.1-295.1(C), the word “used” refers solely to “other data” and not to “teacher performance indicators.” The information in the student growth percentile scores are teacher performance indicators and disclose identifiable teacher information, including teacher names and license numbers. This information requested by petitioner is confidential pursuant to Code §22.1-295.1(C) and the circuit court erred in ordering production of documents containing teachers’ identifiable information. The judgment is reversed and the issue of any attorney fee recovery is remanded to the circuit court. Combined case with Record Nos. 161025 and 1161031

161025 Va. Dep't. of Educ. v. Davison 08/31/2017 Judgment in favor of a mandamus petitioner seeking production of Standards of Learning-related student growth percentile scores from a local county school division is reversed. Under Code § 22.1-295.1(C), the word “used” refers solely to “other data” and not to “teacher performance indicators.” The information in the student growth percentile scores are teacher performance indicators and disclose identifiable teacher information, including teacher names and license numbers. This information requested by petitioner is confidential pursuant to Code § 22.1-295.1(C) and the circuit court erred in ordering production of documents containing teachers’ identifiable information. The judgment is reversed and the issue of any attorney fee recovery is remanded to the circuit court. Combined case with Record Nos. 161017 and 161031

161031 Loudoun Cty. School Board v. Davison 08/31/2017 Judgment in favor of a mandamus petitioner seeking production of Standards of Learning-related student growth percentile scores from a local county school division is reversed. Under Code §22.1-295.1(C), the word “used” refers solely to “other data” and not to “teacher performance indicators.” The information in the student growth percentile scores are teacher performance indicators and disclose identifiable teacher information, including teacher names and license numbers. This information requested by petitioner is confidential pursuant to Code §22.1-295.1(C) and the circuit court erred in ordering production of documents containing teachers’ identifiable information. The judgment is reversed and the issue of any attorney fee recovery is remanded to the circuit court. Combined case with Record Nos. 161017 and 161025

161163 Cole v. Norfolk Southern Railway 08/31/2017 In a case under the Federal Employers’ Liability Act (FELA), applying the risk of harm test as the rule of decision in the Commonwealth, a release does not violate § 5 of the Act if it is executed as part of a negotiated settlement of a FELA claim and is limited to those risks that were known to the parties at the time of its execution. The test is not whether a release explicitly lists a potential future claim, but whether the parties intended to release such a claim. Evidence in this case supports the circuit court’s factual finding that, in the year 2000, the plaintiff intended to release the present lung cancer claim as part of the settlement of a prior asbestosis action, and thus the release was not void under §5 of FELA. The judgment of the circuit court is affirmed.

161209 Board of Supervisors v. Rhoads (Corrected) 08/31/2017 In an appeal pursuant to Code to Code § 15.2-2314 from an adverse decision by a local board of zoning appeals, the circuit court did not err in applying Code § 15.2-231l(C) and ruling that property owners had a vested right to the use of their property in violation of a zoning ordinance, when more than 60 days elapsed after a zoning administrator issued a determination which allowed that use, and the property owners had relied upon that determination and materially changed their position to their financial detriment. The property owners' rights in using their property in the manner initially approved by the zoning administrator vested upon fulfillment of the requirements of Code § 15.2-2311(C), and were not subject to alteration by a successor zoning administrator, the board of zoning appeals, or the board of supervisors. Therefore, the circuit court did not err in applying Code § 15.2-2311(C) to uphold the property owners' vested rights to use their property in the manner originally approved by the zoning administrator. The judgments of the circuit court are affirmed.

161639 Williams v. Commonwealth (ORDER) 08/31/2017 In appeal from an assault conviction certified for consideration along with review of an involuntary commitment order relating to a later assault and attempted murder, the circuit court's decision to sequence defendant's prison term to precede his involuntary civil commitment did not result in a grave injustice. He was accorded due process in an evidentiary hearing and could be heard and present evidence, and he had counsel throughout. The propriety of the sentence imposed and the involuntary civil commitment order are not challenged. The arguments that the ends of justice exception should be applied because the circuit court ignored the seriousness of his mental illness and should have committed defendant directly to inpatient hospitalization, making the imprisonment a manifest injustice, is rejected. The five-year prison sentence is for a crime committed before defendant's alleged temporary insanity, to which he pled guilty after recovering from that condition. Statutes do not prescribe a sequence for imposition of incarceration for one offense in relation to involuntary civil commitment for different crimes committed in a later period of temporary insanity. Prisons are required to provide treatment, and defendant can also be transferred to a facility outside of the Department of Corrections if it is determined that he cannot be provided the kind of care required during incarceration. Thus the ends of justice exception under Rule 5:25 will not be applied to review the errors alleged, and the judgments of the circuit court are affirmed. Combined case with Record No. 160257

160939 Dulles Duty Free v. County of Loudoun 08/24/2017 Upon review of an airport-based "duty free" seller's challenge to a county's imposition of a Business, Professional, and Occupational License tax on a substantial portion of its sales – made to departing passengers as they board flights bound for destinations outside the United States – the Import-Export Clause of the Constitution of the United States, Article I, § 10, cl. 2, bars the county from imposing the tax on these sales. The judgment of the circuit court is reversed and the matter is remanded for calculation of the refund due to the taxpayer.

160652 In re: Dennis 08/17/2017 In a prisoner's petition for change of name under Code § 8.01-217(D), alleging religious reasons for the change, the circuit court abused its discretion in denying the application without a hearing. The only factor statutorily relevant to determining the adequacy of the petitioner's reason for filing the application was the reason alleged. It cannot be discerned, without evidence, whether the alleged religious conversion is sincere. To be a proper exercise of discretion in determining that an application lacks good cause, a circuit court’s determination must be supported by evidence in the record. Thus, the alleged religious basis for the change of name stated in the application constitutes good cause under Code § 8.01-217(D) for the application to be accepted and evaluated on its merits. The judgment of the circuit court is reversed and the case is remanded with directions to accept the application and to proceed to the hearing stage required by Code § 8.01-217(D), prior to exercising its discretion in determining whether this request for a change of name should be granted.

160314 Allison v. Brown 07/27/2017 In the trial of a medical malpractice action pled on theories of negligence, in which an additional count on the theory of liability for battery was dismissed with prejudice on statute of limitations grounds, it was reversible error for the trial judge to nonetheless instruct the jury about battery. In addition, plaintiff presented no evidence that a lack of disclosures by the defendant physician prevented her from making an informed decision with respect to the surgery on the part of her body to be operated on, or that she would not have elected to have the surgery in that location in the face of proper disclosures. Without any evidence to establish proximate causation, the informed consent claim fails as a matter of law. The judgment is reversed and the action is remanded for retrial on the negligence claims.

160377 Summers v. Syptak 07/20/2017 Dismissal of a medical malpractice plaintiff's complaint with prejudice is affirmed. Plaintiff failed, at the summary judgment stage, to come forward with expert opinion establishing certain alleged improper statements made by the defendant doctor were a proximate cause of her alleged injuries in the form of aggravation of preexisting mental or physical conditions. The judgment is affirmed.

170133 Judicial Inquiry & Review Comm'n v. Bumgardner (Corrected) 07/20/2017 In review of a complaint by the Judicial Inquiry and Review Commission filed against a senior judge of the Court of Appeals and a retired circuit court judge, in which it was asserted that these judges violated the Canons 1, 2A, 2B, 4D(1), and 5A(1) of the Virginia Canons of Judicial Conduct in relation to a group of persons opposing a referendum to move a county courthouse, there is not clear and convincing evidence that either judge engaged in either "misconduct" or "conduct prejudicial to the proper administration of justice," as provided in Article VI § 10 of the Constitution of Virginia. The complaint is dismissed.

160582 Chaffins v. Atlantic Coast Pipeline 07/13/2017 A natural gas company’s notices of intent to enter private property, specifying that the entry would occur "on or after" a date stated, did not comply with Code § 56-49.01. The “on or after” notices did not set forth the date of the intended entry as required by Code § 56-49.01(C). Accordingly, the judgment of the circuit court is reversed and the gas utility's petition for declaratory judgment is dismissed.

160630 Palmer v. Atlantic Coast Pipeline 07/13/2017 In a petition for a declaratory judgment filed by a Delaware public service company engaged in storage and transportation of natural gas in interstate commerce, seeking a declaration of its rights under Code § 56-49.01 to enter upon the property of landowners, without permission, to conduct preliminary surveys and examinations in anticipation of condemnation proceedings, appraisals, and surveys for proposed natural gas lines in order to satisfy regulatory requirements and to select the most advantageous route, the unambiguous language of the statute establishes the General Assembly’s intent for the entry-for-survey privilege be available to foreign natural gas companies that do business within the Commonwealth. Neither the common law nor Article I, § 11 of the Constitution of Virginia provides an objecting landowner with a legally cognizable property right to exclude a statutorily authorized utility from entering their property to conduct preliminary surveys and other tests in anticipation of condemnation proceedings. The judgment of the circuit court is affirmed.

160889 The Daily Press v. Office of Exec. Secretary 06/29/2017 Under Virginia statutes, the clerks of court are the designated custodians of court records. Therefore, under the Virginia Freedom of Information Act, a party requesting copies of court records must ask each jurisdiction’s clerk of court for certain court records, rather than seeking to obtain a copy of a database in the Office of the Executive Secretary of the Supreme Court of Virginia. The judgment of the circuit court denying enforcement of an FOIA request directed to the Office of the Executive Secretary is affirmed.

160500 Gelber v. Glock 06/22/2017 In litigation concerning the real and personal property of a family matriarch which was transferred to one of her five children, the circuit court did not err in denying a summary judgment motion challenging the decedent's capacity to convey to one of her daughters her personal property in her personal capacity when she held it as trustee under her revocable trust. Nor did the court err in excluding from evidence certain tax assessment records offered as proof of the value of the decedent's home, or in striking the plaintiff's evidence on a claim for civil conspiracy. However, the circuit court did err in excluding from evidence declarations made by matriarch disavowing the property transfers and in granting the motion to strike the executor plaintiffs’ evidence on their claims for undue influence and promissory fraud. Because an award of attorney's fees to the defendant daughter was based on the ruling in her favor on her motion to strike, that award is vacated. The judgment of the circuit court is affirmed in part and reversed in part. This matter is remanded for a new trial consistent with this opinion.

160993 Carter v. Commonwealth 06/22/2017 Convictions for first-degree murder and use of a firearm in the commission of a felony are affirmed. On the issue of self-defense in determining who was the aggressor or what was the reasonable apprehension of the defendant for his safety, the issue is what the victim probably did, and such evidence is admissible even when the defendant is unaware of it. Here, however, assuming without deciding that exclusion of certain alleged threats made by the victim against the defendant should have been admitted, such error was harmless in light of the overwhelming evidence. Where an accused adduces evidence that he acted in self-defense, evidence of specific acts is admissible to show the character of the decedent for turbulence and violence, even if the accused is unaware of such character, but here the trial court did not err in allowing recent episodes while excluding more temporally remote acts of the victim. Failure to make a timely proffer of conflicting testimony or to make a timely motion for mistrial concerning a comment made by the prosecutor in closing argument foreclose consideration of these matters on appeal. The judgment is affirmed.

160221 AGCS Marine Ins. v. Arlington County (Corrected) 06/15/2017 In an inverse condemnation action brought by two insurers who paid property damage claims for a grocery store and became subrogated to those claims, the circuit court did not err in concluding that the complaint against a county, as originally pled, failed to state a claim. The original complaint sounded wholly in tort and did not state a prima facie cause of action for inverse condemnation. However, the circuit court erred in denying the insurers’ motion for leave to amend, since the allegations in the proffered amended complaint, coupled with the reasonable inferences arising from these allegations, state a legally viable claim for inverse condemnation. The judgment is affirmed in part, reversed in part, and the action is remanded for further proceedings in light of this opinion.

160685 Adkins v. CP/IPERS Arlington Hotel (Show Cause Order) 06/08/2017 Petitioner has a lengthy history of filing vexatious, frivolous actions in circuit courts and challenging dismissal of those cases on appeal, unduly burdening opposing litigants and interfering with administration of justice. To preserve judicial resources and protect unwitting defendants, this habitual filing of meritless appeals is now addressed. Factors considered include a history of (1) filing duplicative, vexatious lawsuits, (2) without any objective good faith basis, and (3) at the expense of the court system and opposing parties. Concerning a fourth factor, adequacy of alternative sanctions, although monetary sanctions could be ordered pursuant to Code § 8.01-271.1, that remedy would not prevent filing of future pleadings. Exercising its inherent power to protect against repetitious and harassing conduct that abuses the judicial process, and to prevent continued filing of frivolous petitions for appeal, this litigant shall be prohibited from filing any petition for appeal, motion, pleading, or other filing without (1) obtaining the services of a practicing Virginia attorney, whose filings would be subject to Code 8.01-271.1, or (2) obtaining leave of Court to file any pro se pleading. The Clerk is instructed to comply with this order as it pertains to future filings.

161013 Commonwealth v. Moseley 06/08/2017 Convictions for burglary and larceny are affirmed. In a circumstantial case, the Commonwealth must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with guilt, which requires an unbroken evidentiary chain of necessary circumstances showing that both the corpus delicti and the criminal agency of the accused have been proved to the exclusion of any other rational hypothesis and to a moral certainty. Here, the totality of the evidence was sufficient for a rational factfinder to reject the defendant's hypothesis that someone else was the criminal agent who placed stolen items in a vehicle linked to him by documentary and testimonial evidence. As the prevailing party below, the Commonwealth is entitled to the benefit of all reasonable inferences that flow from the evidence. The Court of Appeals’ conclusion that the circumstantial evidence failed to link defendant to the offenses beyond a reasonable doubt resulted from a fragmented assessment of the record, and a failure to afford proper deference to the province of the factfinder, who here could reasonably reject the defendant's theories and find that the totality of the suspicious circumstances proved beyond a reasonable doubt that defendant was the criminal agent in each of the offenses charged. The circuit court’s finding to that effect was therefore not plainly wrong or without evidence to support it. The judgment of the Court of Appeals is reversed, and final judgment reinstating the convictions is entered on this appeal.

160414 Howsare v. Commonwealth (Corrected) 06/01/2017 In a homicide case, the circuit court did not err in instructing the jury on the element of intent. While the intent instruction could have been amended to include reference to the defendant's "acts, conduct and statements," where other instructions fully and fairly cover the principles of law governing the case, the trial court does not err in refusing an additional instruction language on the same subject. In light of the separate instruction regarding jury consideration of the defendant's statements, the instructions, taken as a whole, stated the law clearly and covered all issues fairly raised by the evidence. The argument that the intent instruction was not a model jury instruction is without merit, since Code § 19.2-263.2 expressly provides that an instruction that accurately states the law applicable to the case shall not be withheld for that reason. The judgment of the Court of Appeals upholding the conviction is affirmed.

160619 Hackett v. Commonwealth 06/01/2017 In a criminal appeal, the Court of Appeals of Virginia did not err in affirming the defendant’s conviction and sentence, and affirming the trial court’s refusal to set aside the conviction and sentencing orders after concluding that it had lost jurisdiction to modify them pursuant to Rule 1:1. In this case, the conviction order and the sentencing order were entered in 2009 and neither was modified, vacated or suspended within 21 days after their entry. Accordingly, they became final and the trial court lost jurisdiction to modify the conviction in this case. An oral understanding of the trial court, prosecutor, and defense counsel not embodied in a plea agreement or an order suspending, modifying or vacating the conviction and sentencing orders did not afford jurisdiction to the trial court to enter the relief sought long after the orders were entered. Neither the entry of orders nunc pro tunc nor the doctrine of orders void ab initio applies here. The judgment of the Court of Appeals upholding the circuit court's disposition is affirmed.

160814 Desai v. A. R. Design Group 06/01/2017 Considering the validity of mechanic's liens on two properties, the supporting memoranda either complied with the statute outright or were in substantial compliance with the statutory requirements. A mechanic’s lien may be perfected on an equitable as well as on a legal estate, and the memoranda properly identified the current trustee with legal title and the person holding the right to sell or encumber the properties, as the “owner” of the properties. Adding the word “trustee” was not necessary, and absence of the word “trustee” would not have negatively impacted an index search in this case. Signature on the memoranda by a vice president of the company on the claimant line, crossing out the agent option, did not cause the trustee any prejudice and it was sufficient to fulfill the purposes of the statute. The lienor here was not claiming any interest, and the contents of a memorandum specified by Code § 43-5 do not include a requirement that the memorandum expressly list the time or times when the amount is or will be due and payable. The memoranda in this case were substantially compliant because they closely tracked the form required by Code § 43-5, they provided sufficient notice that the owner was claiming amounts due, and any defect would not thwart an underlying purpose of the statute, such as providing notice to third parties. Therefore, the lienor is entitled to the safe harbor provided by Code § 43-5. The judgment of the circuit court upholding the liens is affirmed.

160879 Commonwealth v. White (Corrected) 06/01/2017 In a prosecution for possession of heroin with the intent to distribute, the alleged error of the circuit court in failing to suppress evidence found in a motel room near the parking lot where defendant was arrested was harmless as a matter of law. The record in the case confirms beyond a reasonable doubt that a rational factfinder would have found the defendant guilty absent the claimed error, in light of the limited role that the challenged evidence played at trial, coupled with the overwhelming and unchallenged evidence of defendant's guilt. Thus, applying the standard for review of alleged constitutional errors, the claimed error of trial court was harmless as a matter of law, and the contrary holding of the Court of Appeals is reversed. The remaining portion of the Court of Appeals' decision addressing the trial court’s denial of the defense motion to suppress the evidence found in the motel room is vacated is moot. Defendant's conviction for possession of heroin with the intent to distribute, third or subsequent offense, is reinstated.

161002 Epps v. Commonwealth 06/01/2017 In a felony criminal case where the indictment was returned by a grand jury as a true bill in open court but not recorded by order until weeks after trial on the charges, and no objection was made to the indictment until after trial, the indictment was not invalid. There is no time requirement for entry of an order recording the return of an indictment in open court. The Code of Virginia evinces a clear legislative policy that the requirement of an indictment in the prosecution for a felony may be waived, and hence is not jurisdictional. Thus, failure of the record to show affirmatively that the indictment was returned into court by the grand jury is not such a defect as will render null and void the judgment of conviction based thereon. Defendant was subject to the requirement of Rule 3A:9(b)(1) and (c) to challenge the indictment at least seven days before his trial, which he concedes he did not do. Because he did not argue that there was good cause to excuse this failure as provided in Rule 3A:9(d), he waived the right to object to the indictment.

160852 Manu v. GEICO Casualty Co. 04/27/2017 The circuit court did not err in sustaining a demurrer to a claim for damages predicated on Code § 8.01-66.1, alleging that an uninsured motorist insurance carrier violated its duty of good faith by refusing to pay its policy limits prior to the insured obtaining a judgment against the uninsured tortfeasor. The condition precedent to the carrier’s obligation to pay its insured is that the insured obtain a judgment against the uninsured tortfeasor whose actions come within the purview of the policy. Code § 8.01-66.1(D) does not impose any additional conditions upon insurers, but rather provides a remedy against insurers who arbitrarily refuse to pay claims they owe under the terms of the insurance contract. The present complaint failed to state a cognizable claim, and the circuit court did not err in sustaining the insurer's demurrer.

160813 Hale v. Town of Warrenton (ORDER) (Corrected) 04/20/2017 In a wrongful termination action converted to an application for writ of mandamus for reappointment to a position with the defendant town, the circuit court erred in sustaining the town's demurrer. The factual allegations, viewed in the light most favorable to the plaintiff at the demurrer stage, supported the reasonable inference that the Town Manager’s actions in hiring the plaintiff as the sole building official for the town on a full-time basis — subject only to a six-month at-will, probationary period — could be construed as a permanent appointment upon the expiration of that probationary status. The circuit court thus erred in concluding that plaintiff failed to plead sufficient allegations of material facts to withstand the town’s demurrer. The judgment of the circuit court is reversed, and this case is remanded for trial.

160013 Westlake Legal Group v. Flynn 04/13/2017 In an appeal by an attorney from an award of sanctions against him arising out of his efforts to collect fees and costs from a client, the award is affirmed. The attorney had a duty under Code § 8.01-271.1 not to file any pleading, motion or other paper unless he had read it, and to the best of his knowledge, information and belief formed after reasonable inquiry it was well grounded in fact and warranted by law. He filed a suggestion in garnishment to divert the client’s wages in an effort to enforce a judgment that had been void by operation of law for more than a year, a situation a reasonable inquiry would have disclosed. His breach of that duty resulted in harm to the client consisting of attorney’s fees, costs and expenses including those incurred by reason of the attorney’s meritless appeal. The judgment of the circuit court is affirmed, and the case is remanded with direction, after due notice and hearing, to impose such additional sanctions as the court finds appropriate to recompense the client’s additional expenses, including reasonable attorney’s fees, incurred by reason of this appeal.

160269 Lambert v. Sea Oats Condo. Ass'n 04/13/2017 In a suit where a condominium unit owner prevailed on a claim against the condominium association for the full amount of the $500 sought in damages, but the circuit court only awarded her $375 in attorney's fees out of more than $9,500 sought under the provisions of Code § 55-79.53(A), the circuit court abused its discretion by failing to consider seven relevant and non-exclusive factors that should have been given significant weight, including the results obtained in the action, and the damages awarded in comparison to the damages sought. Where, as here, a statutory basis for fee recovery applies, a court may not simply conclude that many thousands of dollars in legal fees are per se unreasonable where the claim is as small as $500. A party seeking to recover fees as the prevailing party in a litigation need not prove the attorney's fees in her case in chief, and it is often appropriate to delay the issue of awarding attorney’s fees until the disposition on the merits reveals which party has actually prevailed. That is why Rule 3:25(D) allows a trial court to establish a procedure before trial for deciding attorney’s fees in cases where they may be awarded. Nor is it necessary for a party to provide advance notice of the amount of fees it will seek if successful. The party who may be entitled to an award of attorney’s fees is merely required to notify the opposing party that it will seek them if it prevails, as required by Rule 3:25(B). The judgment is affirmed in part and reversed in part, and the case is remanded.

160349 Chamberlain v. Marshall Auto & Truck Ctr. 04/13/2017 The circuit court erred in holding that a surety who was an accommodation guarantor of a promissory note was not entitled to judgment against the maker of the note under Code § 49-27 upon default by the maker and seizure of collateral by the lender. This statute makes no distinction between compensated and uncompensated sureties, and the right to reimbursement is expressly available to any person liable as a guarantor. Here, if plaintiff made any gift at all it was in his decision to act as an accommodation surety rather than a compensated surety. Neither party testified that plaintiff agreed not to seek reimbursement if the collateral was drawn down by the lender, and the record does not contain any evidence that he waived his rights under Code § 49-27. The facts here triggered a right to reimbursement under this section, with interest from the time of payment, and five percent damages on such amount, and he is entitled to judgment. The judgment is reversed and the case is remanded for determination of the amount which is due to the plaintiff under the statute.

160458 Hilton v. Commonwealth 04/13/2017 In the trial of a defendant on multiple charges, including carjacking and use of a firearm in the commission of that felony, a rational factfinder could easily have concluded on the facts that – between the time defendant took the victim's truck keys at gunpoint and the time the victim was forced back into his truck, however brief that period of time may have been – defendant intentionally and temporarily seized control of the victim’s truck through the use of a firearm and thereby depriving him of possession or control of the truck, in violation of Code § 18.2-58.1. Thus, the trial court did not err in denying defendant’s motion to strike the evidence supporting the carjacking charge and a related firearm charge because the evidence was sufficient for the jury to find him guilty of these offenses. Nor did the court abuse its discretion in refusing the defendant's proffered jury instruction on carjacking, in light of a model instruction the trial court granted, which fully and accurately covered the carjacking offense. The convictions are affirmed.

160495 Toraish v. Lee 04/13/2017 In a medical malpractice wrongful death action against an otolaryngologist, an opinion offered by defendant's expert witness, a pediatric geneticist, based on a "differential diagnosis" purporting to establish that the decedent died of a syndrome relating to genetic defects properly considered in the report by a physician who conducted an autopsy, but those conclusions did not exclude respiratory compromise as alleged by the plaintiff as a cause of death, and thus the witness’ differential diagnosis was founded upon an assumption not established in the trial, and it was an abuse of discretion to permit the geneticist's testimony. A deposition of another physician – taken after the witness formed his opinion – was also not a basis for the defense expert's proffered opinion. Thus, it was an abuse of discretion to permit this testimony. However, the defendant doctor's own testimony regarding the circumstances that impacted or would have impacted his decision to perform surgery was not expert opinion but, instead, factual testimony, and its admission was not an abuse of discretion. Accordingly, the circuit court did not abuse its discretion by admitting the defendant's own testimony. The judgment is reversed and the case is remanded for a new trial.

160606 Shepherd v. Conde 04/13/2017 In a declaratory judgment action under the Virginia Property Owners' Association Act, Code §§ 55-508 to 55-516.2, the circuit court erred in ruling that a recorded declaration for a six-lot subdivision was not enforceable under the Act, and that an unincorporated architectural control committee created by that instrument failed to qualify as a property owners' association under the Act. A declaration must expressly both impose responsibilities and authorize assessments before an entity qualifies as a property owners’ association under the Act. Here, the demarcation of a road as an easement on the plat incorporated into the declaration was sufficient to fulfill the designation requirement for a common area, and the terms of the declaration expressly impose upon the architectural control committee a duty to maintain the road and authorize it to impose assessments for the costs of such maintenance. Consequently, both the declaration and the committee fulfill the qualifications imposed by the Act. However, all references in the declaration to any entity having power or responsibility under the Act refer to the architectural control committee, not an unincorporated property owners’ association, and nothing in the declaration either imposes upon the association a duty to maintain the road or authorizes it to impose assessments for road maintenance costs. This association therefore does not qualify as a property owners’ association under the Act, and the circuit court did not err by so ruling. The judgment is affirmed in part, reversed in part, and the action is remanded.

160665 Kim v. Commonwealth (Corrected) 04/13/2017 In a case charging unlawful refusal to submit to a blood alcohol breath test, after the Commonwealth initially offered proof of public access to the roads of a private apartment complex where defendant's car was located, creating a presumption that this "way" was a public highway under Code § 46.2-100, the trial court failed to give proper consideration to defendant's proof regarding "No Trespassing" signs posted at every vehicular entrance to the complex, and erred in focusing on the fact that no one has ever been prosecuted for trespassing on the apartment complex roadways. A general restriction on public access is sufficient to rebut the presumption of public access, and once the area has been shown to be restricted, this includes the roads found therein. Accordingly, the defendant in this case met the burden of rebutting the presumption that the location where his car was parked is a highway pursuant to Code § 46.2-100. Thus, the implied consent statute had no applicability and he was not required to submit a breath sample. Judgment finding unreasonable refusal to submit a breath sample under Code § 18.2-268.3 is reversed, and the warrant is dismissed.

160777 Lafferty v. School Board 04/13/2017 In a declaratory judgment action against a school board involving claims by a student at a public high school, by and through his parents as next friends, alleging distress over potential repercussions from the school board’s expansion of its anti-discrimination and anti-harassment policy, the student lacks standing to seek this relief, and neither his parents, individually, nor a third resident of the county have taxpayer standing. Because the plaintiffs failed to allege an actual controversy sufficient to bring a declaratory judgment action, the trial court did not err in finding that none of the plaintiffs have standing, and they likewise may not recover the injunctive relief requested therein. The judgment of the circuit court dismissing the action is affirmed.

160805 Nationwide v. Erie Ins. Exchange 04/13/2017 In a declaratory judgment action involving five insurance policies issued to a contractor and a subcontractor whose employee was involved in a fatal accident while driving a loaned vehicle, seeking determination of priority among the policies, the defendant insurer's commercial general liability policy excludes coverage for bodily injury arising out of the use of an automobile, and the trial court erred in finding otherwise. Also, an indemnification agreement between the contractor and subcontractor does not apply; thus, the trial court erred in finding that it required all three of the defendant insurer's policies to provide coverage ahead of the plaintiff insurer’s two policies. The plaintiff insurer's automobile policy for the contractor provides primary insurance coverage for anyone permissively using a covered auto, up to its coverage limit of $1,000,000. The defendant insurer's automobile policy for the subcontractor provides coverage for use of covered but non-owned automobiles as excess over any other collectible insurance, and applies since its employee was driving a “covered auto” that the subcontractor did not own. Thus, this auto policy provides excess coverage, up to $1,000,000, after exhaustion of the plaintiff insurer's auto policy. Also, the provisions of each insurer’s “excess insurance” clause in the two umbrella policies are irreconcilable and mutually repugnant, and pro rata distribution from both policies is thus appropriate as the third coverage priority. The judgment is reversed and final judgment is entered.

160381 Moonlight Enterprises v. Mroz 03/30/2017 In a legal malpractice action, dismissal of claims against one of the defendants on statute of limitations grounds is affirmed, but dismissal of claims against the second defendant is reversed. Under the continuous-representation rule, when malpractice is claimed to have occurred during the representation of a client by an attorney with respect to a particular undertaking or transaction, the statute of limitations begins to run when the attorney’s services rendered in that connection have terminated, notwithstanding the continuation of a general attorney-client relationship, and irrespective of the attorney’s work on other undertakings or transactions for the same client. The circuit court in this case correctly found that the three-year limitation period barred malpractice claims against the first attorney because his work on the particular undertaking at issue had ceased more than three years before plaintiff filed the present malpractice action. It erred in regard to the second defendant, however, since he continued to render services with respect to the undertaking involved until four days after the date a judgment order was actually entered, and the present action was filed three years to the day after that judgment was entered. The judgment is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent with this opinion.

160277 Coutlakis v. CSX Transportation, Inc. 03/09/2017 In a wrongful death case, the decedent’s continuing negligence to the time of the death did not bar the use of the last-clear-chance defense. Where the plaintiff’s decedent has negligently placed himself in a situation of peril from which he is physically able to remove himself, but is unconscious of his peril, the defendant is liable only if he saw the plaintiff and realized, or ought to have realized, his peril in time to avert the accident by using reasonable care. Once the injured party’s contributory negligence is established, application of the doctrine turns on which party, if any, had the last clear chance to avoid the accident. Here, the amended complaint was sufficient to state facts necessary for application of the last clear chance doctrine, and the fact that the negligence of the decedent in this case continued up to the point of the accident, without more, does not bar the application of the last clear chance doctrine. The judgment below, sustaining the defendants’ demurrer, is reversed and the case is remanded.

151955 Verizon Online v. Horbal 03/02/2017 In proceedings relating to the collection of personal property tax on television set top boxes used in providing cable television service, for a three-year period, the judgment of the circuit court upholding a determination by the State Tax Commissioner that the set top boxes are not subject to local taxation is affirmed, because these items used in the cable television provider's business – while tangible in fact – are statutorily defined as intangible personal property not subject to local taxation under Code § 58.1-1101(A)(2a). That portion of the circuit court's decision finding that the cable service provider was not entitled to recover refunds of taxes for two of the years for failure timely to appeal the decision of the local commissioner of revenue is reversed because that argument was not preserved in arguments before the Tax Commissioner, and thus could not be raised in an appeal thereafter to the circuit court. The judgment is affirmed in part and reversed in part, and the matter is remanded for completion of the refunds. Combined case with Record No. 151956

151956 Horbal v. Verizon Online 03/02/2017 In proceedings relating to the collection of personal property tax on television set top boxes used in providing cable television service, for a three-year period, the judgment of the circuit court upholding a determination by the State Tax Commissioner that the set top boxes are not subject to local taxation is affirmed, because these items used in the cable television provider's business – while tangible in fact – are statutorily defined as intangible personal property not subject to local taxation under Code § 58.1-1101(A)(2a). That portion of the circuit court's decision finding that the cable service provider was not entitled to recover refunds of taxes for two of the years for failure timely to appeal the decision of the local commissioner of revenue is reversed because that argument was not preserved in arguments before the Tax Commissioner, and thus could not be raised in an appeal thereafter to the circuit court. The judgment is affirmed in part and reversed in part, and the matter is remanded for completion of the refunds. Combined case with Record No. 151955

160202 Boasso America v. Chesapeake 03/02/2017 To initiate a proceeding under Code § 15.2-2314 to review a board of zoning appeals decision, a petitioner must name the necessary parties in the caption of the petition or in the body of the petition, and the petitioner must serve a proper petition within the 30-day window provided by that statute. The governing body for the locality served by the BZA is a necessary party under Code § 15.2-2314, and a litigant may not amend the petition after the 30-day period to belatedly add the necessary parties identified in Code § 15.2-2314. In this case, the judgment of the circuit court, which dismissed a petition for writ of certiorari for failure to name the local governing body in the petition and denied the petitioner leave to amend after the 30-day period had expired, is affirmed.

160305 Mount Aldie v. Land Trust of Virginia 03/02/2017 In an action seeking an injunction for restoration of property to its former state, or an award of damages sufficient for that purpose, the circuit court erred in its construction of a conservation easement at issue, and in its related findings. This case presents genuine issues of disputed material facts over whether the defendant breached the provisions of the easement thus precluding an award of partial summary judgment. On the record presented, the disputes center on questions involving the condition of an identified trail area before the defendant conducted what is described as buffer work, the specific nature of the work that the defendant performed in that area, and the use that could be made of the trail after the work was completed. Only after both sides are allowed to fully and fairly present their evidence to a factfinder can those issues be resolved through the application of the plain language of the easement as here construed. The judgment of the circuit court granting partial summary judgment to the plaintiff is reversed, and this action is remanded for further proceedings consistent with this opinion.

160267 Francis v. Nat'l Accrediting Commission 02/23/2017 In a wrongful termination action, the circuit court did not err in sustaining a demurrer to an amended complaint alleging a claim under the exception to the at-will employment doctrine based on violation of public policy by the employer. In this case, the plaintiff's wrongful discharge claim was based on alleged retaliation against her for exercise of her statutory right to obtain a protective order against threats of violence by a co-worker, but she did not allege that her termination itself violated the public policy stated in the protective order statutes by somehow endangering her health and safety. Nor did she allege that the employer prevented her from exercising her rights under the protective order statutes – rather, she only alleges that she was terminated because she exercised her rights under them. No generalized cause of action for the tort of retaliatory discharge has been recognized in Virginia. There is no public policy violated by the termination of plaintiff's at-will employment and thus she has failed to state a claim under this theory. The judgment dismissing the amended complaint with prejudice is affirmed.

151779 Forest Lakes v. United Land Corp. 02/16/2017 In an action by two property owners’ associations against various owners and developers of parcels of land in a shopping center development, claiming that the center’s sediment basins discharged sediment into a creek that flowed into a lake owned by the property owners’ associations, the circuit court did not err sustaining pleas in bar of the statute of limitations brought by the shopping center parties, because the incursion of sediment had been occurring for more than five years prior to the suit being filed, injuring the plaintiffs’ property. The judgment dismissing the action on statute of limitations grounds is affirmed.

160242 The Funny Guy v. Lecego 02/16/2017 The circuit court did not err in dismissing a suit for breach of an oral contract on res judicata grounds based upon the prior dismissal of an action alleging breach of a purported agreement settling claims made under that contract for amounts due. Rule 1:6 was meant to echo and implement the joinder principles of Code §§ 8.01-272 and 8.01-281, and their companion, Rule 1:4(k). If alternative claims qualify for joinder under the “same transaction or occurrence” standard in these joinder statutes and this Rule, they likewise constitute res judicata under the same standard in Rule 1:6 unless a qualifying principle of res judicata applies. The trial court correctly applied Rule 1:6, which prohibited plaintiffs from filing two separate lawsuits when one would have been perfectly sufficient. Because plaintiffs could have joined all three of its claims in a single suit and no qualifying principle of res judicata applies, Rule 1:6 prohibited them from filing a second suit after losing its first suit on the merits. The judgment dismissing the case on res judicata grounds is affirmed.

160311 Ricketts v. Strange 02/16/2017 A plaintiff who was allegedly injured in an automobile accident but filed for bankruptcy and obtained a discharge prior to commencing suit, lacked standing to pursue the personal injury action because she failed adequately to schedule and describe the potential negligence claim in her Chapter 7 federal bankruptcy filings, as needed in order to exempt and reserve that claim from the bankruptcy proceeding. Since she lacked standing to bring this claim herself, the circuit court did not err in denying leave to amend the complaint to name the bankruptcy trustee as the plaintiff, or to substitute the trustee for the named plaintiff. The judgment of the circuit court dismissing the action with prejudice is affirmed.

151450 Oprisko v. Director 02/09/2017 In a habeas corpus petition, the circuit court did not err in denying the sole claim for relief, arguing that the doctrine of Florida v. Jardines, 569 U.S. 1 (2013), that use of a drug-sniffing dog on a homeowner’s porch is a search within the meaning of the Fourth Amendment applies retroactively. On the contrary, this decision by the Supreme Court of the United States announced a new rule of constitutional law that was not dictated by precedent – indeed the large majority of federal appellate courts and state courts of last resort had reached a contrary conclusion under prior law – and therefore the habeas court did not err in determining that the decision does not apply retroactively to convictions such as petitioner’s, which became final prior to its issuance. Since the only fact relevant to the retroactivity determination was the date on which the petitioner's conviction became final, which was in the record and uncontested, the habeas court did not abuse its discretion in determining that the pure question of law presented by this habeas claim could be resolved solely on the recorded matters and a plenary hearing was unnecessary. The judgment denying a writ of habeas corpus is affirmed.

131385 Jones v. Commonwealth 02/02/2017 In review of a motion to vacate sentence, on remand from the United States Supreme Court, the argument that this defendant's life sentence was a mandatory life sentence in violation of Miller is rejected. The holding of the prior appeal in this matter that, under Virginia law, the trial court had the ability under Code § 19.2-303 to suspend part or all of the life sentence, and thus, the sentencing scheme applicable to the present movant's conviction was not a mandatory life without the possibility of parole scheme, is reaffirmed. In Virginia, a Miller violation can be addressed on direct review or in a habeas proceeding. Because the violation, if proven, does not render the sentence void ab initio but merely voidable, it cannot be addressed by a motion to vacate filed years after the sentence became final. Having reconsidered the prior decision in light of Montgomery, its holdings are reinstated subject to the qualifications made in the present opinion, and the trial court’s denial of the motion to vacate is affirmed.

151985 Mayr v. Osborne 02/02/2017 In a case arising from surgery where the surgeon mistakenly fused the wrong level of the patient's spine, the law confined plaintiff to recovery under a negligence theory because the surgeon’s actions did not constitute a battery. The judgment of the circuit court for the plaintiff on a battery theory of liability is reversed.

151111 Lindsey v. Commonwealth 01/19/2017 (Revised 03/13/2017) The Court of Appeals did not err in concluding that a defendant’s due process rights were not violated by a jury instruction concerning willful concealment of goods or merchandise while on the premises of a store. The jury was instructed that willful concealment of goods while on the premises of a store is evidence of intent to convert and defraud, which was a proper statement of the law under Code § 18.2-103. The instructions given reinforced the Commonwealth's burden of proving each element beyond a reasonable doubt, and did not state that willful concealment alone satisfied the burden of proof as to the element of intent. The instruction used in this case merely created a permissible inference that the jury was free to reject, not a mandatory presumption and, accordingly, the trial court did not err in giving it to the jury. On the whole, the instructions given by the trial court, including the finding instruction, fully and fairly covered the inferences permitted from evidence presented of willful concealment. Accordingly, the trial court did not err in refusing to give the defendant’s proffered alternative instruction. The judgment of the Court of Appeals upholding the conviction is affirmed.

151944 Gilliam v. Immel 01/19/2017 In a personal injury action where the jury returned a verdict in favor of the plaintiff but awarded her no damages, the trial court did not err in denying her motions to set aside the verdict and for a new trial. Nor did the trial court err in excluding a racially charged statement made by the defendant at the scene of the vehicle accident. The judgment of the trial court is affirmed.

151524 Payne v. Commonwealth 12/29/2016 In a prosecution for robbery and use of a firearm in the commission of a felony, there was no error in the judgment of the Court of Appeals affirming the circuit court’s evidentiary ruling excluding evidence of various portions of an email from an investigating detective to an assistant Commonwealth's Attorney, expressing reservations about the prosecution of the defendant and stating that the detective found the defendant believable. Nor was there any error in the trial court's refusal of a proffered jury instruction on the topic of eyewitness identification. While the defendant tendered an instruction relating to eyewitness identification testimony that was a correct statement of the law, other instructions granted in this case were sufficient to inform the jury that it could consider the reliability of the identification of the defendant, and factors noted by the defendant reflect common sense considerations. This decision does not foreclose the use of an appropriate eyewitness identification instruction in a future case, however. There is no reversible error in the judgment of the Court of Appeals affirming the convictions, and it is affirmed.

160246 Johnson v. Arlington County 12/22/2016 The circuit court erred in upholding a county's taxation of “transferrable development rights,” or TDRs, in their assessment of taxes upon the real estate of two taxpayers. If a county wishes to tax TDRs under Code § 15.2-2316.2(I), it must first enact an ordinance in conformity with the requirements imposed by Code § 15.2-2316.2(B). Here, the county did not establish an ordinance as required by subsection (B). Consequently, it may not rely on subsection (I) of that statute as a basis to tax the TDRs at issue. Code § 15.2-750 and the county’s ordinance contemplate approval of both a “sending” and a “receiving” site for the TDRs, hence there were no taxable interests in TDRs on the present properties until the second of the sites was approved. The judgment is reversed and the case is remanded for further proceedings.

141623 Johnson, Raheem v. Commonwealth 12/15/2016 In a murder case, the circuit court did not abuse its discretion in denying the defendant's request for appointment of a neuropsychologist at public expense to assist in his defense at the sentencing phase of the proceedings. While, upon request, the Commonwealth is required to provide indigent defendants with the basic tools of an adequate defense, the constitutional right to the appointment of an expert, at the Commonwealth's expense, is not absolute and an indigent defendant who seeks such an appointment must demonstrate that the assistance of an expert is likely to be a significant factor in the defense, and that the defendant will be prejudiced by the lack of such assistance. Here, the defendant’s request amounted to a mere hope that favorable evidence would be obtained. Thus, it cannot be said that a particularized need for the assistance of a neuropsychologist was demonstrated. Nor is the defendant entitled to the appointment of a neuropsychologist independent of a showing of a particularized need by virtue of Code § 19.2-299(A). While a sentence of mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on cruel and unusual punishments, under governing constitutional case law this doctrine does not apply when a juvenile offender has the opportunity to be considered for parole, such as the possibility of geriatric release under Code § 53.1-40.01 for which this defendant will be eligible when he turns 60 in 2053. The judgment of the Court of Appeals upholding the convictions is affirmed.

151641 Western Refining Yorktown v. County of York 12/15/2016 In an appeal from a judgment upholding the valuation of a refinery’s machinery and tools for purposes of levying a tax on such property, viewing the evidence in the light most favorable to the county as prevailing party below, and applying the presumption of correctness afforded to determinations of a tax commissioner, the trial court did not err in upholding the assessment. The evidence fails to establish that the tax commissioner overvalued the refinery’s machinery and tools for the two tax years in question, and the commissioner did not ignore the appraisal submitted by the refinery's expert in reaching the determination, instead rejecting the methodology adopted by that appraiser, concluding it was not a bona fide appraisal. Code § 58.1-3503(B) does not compel a contrary conclusion. Market conditions can reduce the value of machinery and tools, and the fact that for a portion of the year the refinery was idled due to adverse market conditions was a relevant consideration in assessing fair market value, but the refinery did not carry its burden of proving that the refinery was overvalued as of January 1 of each of the contested years. Finally, the county did not assume inconsistent positions in successive litigations, and there was no fatal inconsistency in its appraisals. The judgment is affirmed.

151723 In re: Vauter 12/15/2016 A writ of prohibition seeking to prevent a circuit court from hearing a habeas corpus petition challenging the pre-trial detention order entered by a different circuit court pursuant to Code § 19.2-169.3(F) is denied. Generally – with two primary exceptions not applicable here – any circuit court has subject-matter jurisdiction to hear a petition for a writ of habeas corpus as provided in Code § 8.01-654(A)(1). Here, the detainee's petition complains of detention under a competency finding pursuant to Code § 19.2-169.3(F), not a detention pursuant to a conviction order and, thus, Code § 8.01-654(B)(1) does not apply to create sole jurisdiction in that court. Additionally, the parties agree that there is no need for determination of unrecorded matters related to any previous judicial proceeding, and therefore Code § 8.01-657 does not apply to limit jurisdiction to the court in which the commitment reviews have been held. Thus, the statutory scheme governing habeas corpus jurisdiction does not prohibit the court where the present habeas corpus application has been made from hearing this petition.

151841 Rich v. Commonwealth 12/15/2016 Considering an appeal from a judgment of the Court of Appeals affirming the defendant’s conviction for driving under the influence in a reckless manner resulting in the permanent impairment of a victim in violation of Code § 18.2-51.4, no error is found. The Court of Appeals correctly determined that the circuit court had sufficient evidence before it to establish both the causation and criminal negligence elements of the crime, and its judgment is affirmed.

160132 Commonwealth v. Lambert 12/15/2016 Because it failed to consider an alternative and independently sufficient basis for the judgment of the circuit court convicting a school teacher of misdemeanor assault and battery of a special needs student, the Court of Appeals erred in reversing that conviction. The trial court made express findings on a record that supported the conclusion that the school personnel exception for simple assault and battery charges afforded under Code § 18.2-57(G) did not apply, and that the defendant's actions were unreasonable in the circumstances. The judgment of the Court of Appeals is reversed and the trial court’s order of conviction is reinstated by final judgment on this appeal.

160262 McGrath v. Dockendorf 12/15/2016 In a detinue action for recovery of an engagement ring following the termination of a couple's engagement, the circuit court did not err in ordering a former fiancée to return the engagement ring or pay its $26,000 value to the plaintiff. The Virginia “heart balm” statute, Code § 8.01-220, does not bar such an action to recovery property transferred as a conditional gift, such as an engagement ring, given in contemplation of marriage. The trial court found as fact that the ring was given as a conditional gift in contemplation of marriage. The marriage did not occur. Consequently, the judgment of the circuit court is affirmed.

151200 Johnson, Ronald v. Commonwealth 12/08/2016 Conviction of a defendant – who had been charged with three felonies and failed to appear on the day set for a preliminary hearing on all charges, and was then charged with three counts of failure to appear – does not violate the Double Jeopardy Clause. In the single-trial setting, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. The intent of the legislature is controlling, and it may determine the appropriate unit of prosecution and set the penalty for separate violations. The plain language of Code § 19.2-128 indicates that the legislature intended to establish each felony charge as the unit of prosecution for a failure to appear. The judgment of the Court of Appeals upholding the convictions is affirmed.

160102 Currier v. Commonwealth (ORDER) 12/08/2016 Considering an appeal from a judgment of the Court of Appeals upholding a defendant’s conviction for possession of a firearm after having been convicted of a violent felony, no error is found in that judgment. For the reasons explained by the Court of Appeals in its published opinion, 65 Va. App. 605, 609-14, 779 S.E.2d 834, 836-38 (2015), the Double Jeopardy Clause, and particularly its collateral estoppel protections, do not bar his conviction. The judgment of the Court of Appeals holding that the trial court did not err in its denial of the defendant’s motion to set aside the jury verdict on the basis of collateral estoppel is affirmed.

151857 Clark v. Virginia State Police 12/01/2016 (Revised 03/03/2017) A 1998 amendment to the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4323(b)(2), created a private right of action enforceable against States in their own courts. In this case, the trial court correctly held that principles of sovereign immunity barred a suit plaintiff filed pursuant to that Act against the Virginia Department of State Police, an arm of the Commonwealth. The judgment dismissing the suit is affirmed.

151917 Reineck v. Lemen 11/23/2016 In a suit by the heirs of a deceased wife against the attorney-in-fact and co-trustees for the deceased husband, the husband's power of attorney instrument expressly authorized the creation of inter vivos trusts and gifts to his children. It also authorized the designation of a new beneficiary for his individual retirement account. However, the trial court erred in awarding attorney’s fees to the prevailing parties in a second lawsuit based on actions taken in a prior, separate (though related) case that had ended before the second lawsuit was filed. Further, Code §64.2-795 does not contemplate awarding attorney’s fees against a litigant personally when that litigant is acting in a representative capacity. The award of attorney's fees is reversed and the judgment is, in all other respects, affirmed.

151780 Hensel Phelps Constr. v. Thompson Masonry 11/03/2016 In a prime contractor’s breach of contract suit against subcontractors and sureties who performed work on a public project, commenced 14 years after the last work and repairs were performed, the contracts at issue did not waive the applicable statute of limitations. The broad contract provision addressing the subcontractors’ duty to indemnify the prime contractor is invalid under prior case law, and other provisions do not create a genuine indemnification obligation. While Code § 8.01-231 may provide for a prime contractor’s ongoing liability to the Commonwealth on such a project, the contract documents considered here do not establish a similar ongoing responsibility owed by the subcontractors to the plaintiff. In addition, when indemnification is dependent on performance, a cause of action for failure to indemnify accrues at breach of performance. Here, while plaintiff claimed no damages until 2014, some injury or damage, however slight, is sufficient for a cause of action to accrue, and it is immaterial that all the resulting damages did not occur at the time of the injury. Nor were the subcontractors’ obligations here continuing duties. Thus, plaintiff’s right of action accrued upon breach of the performance provisions of the contracts at issue and the statute of limitations had long run by the time of filing of the present suit. Because any breach by the subcontractors occurred at that time, the statute of limitations has similarly run against the sureties. The judgment of the circuit court dismissing the actions is affirmed.

150849 Velazquez v. Commonwealth 10/27/2016 In proceedings on a Hispanic defendant's motion to withdraw a guilty plea to a charge of computer solicitation of a child, at a hearing held 18 days after the final sentencing order, the circuit court still had jurisdiction to consider the application pursuant to Code § 19.2-296 and Rule 1:1. The fact that an appellate court had jurisdiction based on a notice of appeal that was filed protectively, does not necessarily divest the trial court of all jurisdiction to act on certain matters. Although the Court of Appeals did not address the merits of the motion to withdraw the guilty plea, the trial court did not abuse its discretion when it denied the motion on the alternative basis that the defendant had failed to prove manifest injustice, a ruling that was fully supported by evidence in the record. The judgment of the Court of Appeals is affirmed as right for the wrong reason.

151066 Hines v. Commonwealth 10/27/2016 In a voluntary manslaughter case, the record demonstrates that the victim, while in defendant's home, was belligerent, had been drinking, and brandished a gun in the presence of defendant, his wife, and sister. In an attempt to defuse the situation and protect himself and his family, defendant retrieved his own gun from another room. When the defendant returned, the victim pointed his gun at defendant who, fearing for his life, shot the victim. These facts support the defendant's claim that he shot the victim in self-defense. The judgment of the Court of Appeals upholding the defendant’s manslaughter and firearms convictions is reversed, and the convictions are vacated.

151514 Commonwealth v. Proffitt 10/27/2016 In the trial of a case to declare the respondent a sexually violent predator under the Sexually Violent Predators Act, where the central issue was whether – because of a mental abnormality or personality disorder – the respondent finds it difficult to control his predatory behavior, which makes him likely to engage in sexually violent acts, the circuit court abused its discretion by holding that testimony for the Commonwealth from two women who had been raped by the defendant was not relevant to this material issue. Moreover, the proffered testimony was not unfairly prejudicial when balanced against its probative value, and not excludable as cumulative of the testimony of the Commonwealth’s expert witness. The proposed witnesses would have provided both direct probative evidence on the issues, and proof corroborative of the testimony of the expert witness. The error was not harmless in this case, and the matter is reversed and remanded for further proceedings.

151640 Shareholder Rep. Services v. Airbus Americas 10/27/2016 In litigation growing out of the purchase of a corporation pursuant to a merger agreement, the circuit court correctly applied a damage cap on recovery by the purchaser for certain breaches by the sellers which all involved failure to use generally accepted accounting principles, as contemplated in the merger agreement, to accurately establish the financial condition of the acquired corporation and, accordingly, the appropriate adjustment to the consideration to be paid by the purchaser to the seller. While the parties' agreement provided for different caps in separate subsections, the plain language does not contemplate that more than one of these caps would be applicable where, as here, the damages of the party entitled to indemnity all result from the same conduct. Rather, the cap in each subsection carefully defines a set of breaches to which it will apply and the failure to adhere to generally accepted accounting principles was a breach of representations and warranties as contemplated in the section providing that damages were limited to the $5.8 million escrow fund. The circuit court erred in not limiting the defendants' liability to indemnify the purchaser to damages that escrow cap. The judgment is reversed and final judgment is entered.

151783 Washington v. Prasad 10/27/2016 After the purchaser of property at a tax sale mistakenly made over $23,000 in improvements to a nearby parcel owned by others, the circuit court erred in imposing a constructive trust and lien upon the improved property. A purchaser must look to the title papers under which he buys, and is charged with notice of all the facts appearing upon their face, or to the knowledge of which anything there appearing will conduct him. A person with notice, actual or constructive, of a defect in his title is not entitled, upon being dispossessed by the rightful owner, to recover compensation for permanent improvements made on the premises, and these principles are applicable on the present facts. Based upon long-standing common law principles, the judgment of the circuit court is reversed.

151935 SunTrust Bank v. PS Business Parks 10/27/2016 In garnishment proceedings, the extent of the garnishee bank's liability to its depositor (the judgment debtor) is an element of the claim of the judgment creditor, and the circuit court erred by placing the burden of proof on the garnishee, instead the judgment creditor. The circuit court's final order for payment, finding that the garnishee bank was indebted to the judgment debtor in the sum of $1.2 million during the garnishment period, was plainly wrong and without evidentiary support. The evidence failed to prove that certain zero balance credits created liability on the garnishee bank to the judgment debtor. When these balance credits are removed, the sum of the outside deposits is the amount subject to garnishment, and this matter is remanded for determination of these outside deposits to the account, payable to the judgment creditor.

160039 Robinson v. Salvation Army 10/27/2016 The circuit court did not err in granting the defendant charity's motion for summary judgment and dismissing the plaintiff's claim of common law wrongful termination for refusing to commit fornication in violation of Code § 18.2 344. Under governing constitutional case law, this statute does not support a public policy Bowman claim for wrongful termination in this case. The provision is unconstitutional as applied to private consensual sexual activity between adults, and can no longer provide the basis for a valid allegation of wrongful termination whether the employee accedes to the demands or is terminated for refusing the demand. Plaintiff has not alleged any facts to show that she was asked to engage in any public sexual activity. The judgment of the circuit court dismissing the action with prejudice is affirmed.

160224 Elliott v. Carter 10/27/2016 In a wrongful death action turning upon allegations of gross negligence, even viewing the evidence in the light most favorable to plaintiff, the non-moving party, as required in considering a motion for summary judgment, the undisputed material facts support the conclusion that a peer leader of the decedent's Boy Scout troop exercised at least some degree of care in supervising the decedent and, therefore, his conduct did not constitute gross negligence. The circuit court did not err in finding that no reasonable jurist could find that the peer leader did nothing at all for the decedent's care, and thus there was no question for the jury, and the circuit court properly granted the defense motion for summary judgment. The judgment of the circuit court is affirmed.

151058 Du v. Commonwealth 09/22/2016 In a case rendered upon a plea of guilty to statutory rape of the defendant's 13-year-old half-sister, aggravated malicious wounding of his father, and malicious wounding of his stepmother, the trial court did not abuse its discretion in ordering lifetime probation following the period of defendant's active incarceration or in ordering that the defendant have no contact with the victims as a condition of his suspended sentences. The judgment is affirmed.

151702 Cygnus Newport v. City of Portsmouth 09/22/2016 In a suit by a successor property owner challenging special assessments on real property, and the lien priority of such assessments, it is held that a special assessment lien has priority over a deed of trust that was recorded before the special assessments were imposed, and that the new owners of property subject to a special assessment lien may not have such a lien declared void years after it has been agreed to by the prior owner, and after bonds have been issued in reliance on those assessments. The judgment of the circuit court against the plaintiff successor landowner is affirmed.

151277 Collins v. Commonwealth 09/15/2016 Assigning the correct reason in this Court, the Court of Appeals did not err in affirming a conviction entered after the trial court’s denial of a motion to suppress evidence obtained when police conducted a warrantless search of a stolen motorcycle parked in the driveway of a home where the defendant resided. Failure to obtain a warrant was not necessary in light of the vehicular exception to the warrant requirement of the Fourth Amendment.

151701 Miller & Rhoads Bldg. v. City of Richmond 09/15/2016 Considering a taxpayer’s appeal from the circuit court’s ruling rejecting its claim that a partial exemption from annual city-wide real estate tax under the city’s tax abatement for rehabilitated real estate program also applied to the city’s annual special service and assessment district tax, the circuit court correctly determined that the partial exemption did not apply to the special district tax, even though it is a type of real estate tax. Under the expressio unius maxim of statutory construction, a particular city code provision indicating that the special district tax is only “subject to” four other specifically mentioned sections in a particular article and chapter of the city code, none of which provide for the partial exemption, indicates that by omitting the remaining sections in that article and chapter of the city code–including the sections providing for the partial exemption–the city council did not intend for special district taxes to be “subject to” those omitted sections. Accordingly, because the special district tax is not subject to the partial exemption, the trial court was correct, albeit for the wrong reason, in ruling that the special district tax is not a real estate tax within the meaning and for the purposes of the partial exemption. Its judgment is therefore affirmed via application of the right result for the wrong reason doctrine.

160643 Edwards v. Vesilind 09/15/2016 Considering an appeal from a civil contempt order entered after the Division of Legislative Services and several senators of the General Assembly, invoking legislative privilege, refused to comply with a production order in a matter pending before the circuit court, on the limited record before it, the circuit court abused its discretion by holding the senators and the Division in contempt because it erroneously ruled that the materials sought in the subpoenas duces tecum were not protected by Virginia’s legislative privilege, as enshrined in the Speech or Debate Clause, Article IV, Section 9 of the Constitution of Virginia. Accordingly, the portion of the April 14, 2016 order holding the senators and the Division in contempt is vacated. The portions of the February 16, 2016 order that are inconsistent with this opinion are likewise vacated, and the case will be remanded for further proceedings consistent with this opinion.

150391 Holiday Motor Corp. v. Walters 09/08/2016 A judgment for $20 million on a jury verdict in favor of a plaintiff suing a major automobile manufacturer for alleged design defects in the convertible she was driving, which overturned while she was operating it with the soft top closed, is reversed. While plaintiff contended that she was injured after the windshield header disconnected from the top and pushed down on her head, allegedly due to the design of the soft top’s latching system which was defective in not being designed to stay latched in a foreseeable rollover crash, the manufacturer had no duty to design or supply a soft top that provided occupant protection in a rollover crash. Further, the opinion offered by plaintiff’s expert that the soft top’s latching system was defectively designed lacked a sufficient foundation. The judgment for plaintiff is reversed and final judgment is entered for the defense.

150936 Granado v. Commonwealth 09/08/2016 The Court of Appeals erred in denying a petition for appeal on the basis that there was no timely written statement of facts in lieu of a transcript in the record. A trial judge has the power to correct a written statement at any time while it remains in the office of the clerk after notifying counsel and providing an opportunity for a hearing. Thus, as long as a proposed written statement of facts was timely filed and the notice and hearing requirements are satisfied, this correction power allows a trial court to enter a revised version of a timely filed statement of facts. In this case, the statement of facts signed by the circuit court judge was timely filed in the circuit court and complied with the requirements of Rule 5A:8, and was properly part of the record as an authoritative account of the events that occurred at trial in lieu of a transcript. The Court of Appeals erred by ruling that there was no such statement of facts in the record for its consideration.

151214 Property Damage Specialists v. Rechichar 09/08/2016 Punitive damages are not available as a form of “appropriate relief” pursuant to Code § 40.1-51.2:2 for a violation of the Code § 40.1-51.2:1 provision barring discharge or discrimination against an employee who has filed a safety or health complaint, or has testified or otherwise acted to exercise rights under statutory safety and health provisions. That form of relief is not available in an action by the Commissioner of Labor and Industry under Code § 40.1-51.2:2(A) or a private action under subsection (B) of the statute. The award of punitive damages is reversed in this case, the judgment is affirmed in part, and final judgment is entered for the plaintiff on the remainder of the circuit court's award.

151688 Huff v. Winston 09/08/2016 Under the provisions of the Uniformed Services Employment and Reemployment Rights Act, service members entitled to reemployment rights will be reemployed in an appropriate position upon their return from service, and their employment status is protected during their absence. A two-year convalescence period is available to injured service members in applying for reinstatement to a former civilian position. However, Sections 4312 and 4313 of the Act afford returning service members protection only during the act of rehiring. Because there is no dispute in this case that the defendant Sheriff promptly rehired the plaintiff as a deputy upon her return from military deployment, the circuit court properly granted summary judgment to the Sheriff. Title 38 U.S.C. §§ 4312 and 4313 do not apply to claims based on an employer’s conduct after reemployment, and a "service related" heart attack suffered by a former service member eight months after returning to her civilian position did not restart or toll the notice period under the Act. The contention that § 4313 imposes a continuing duty to make reasonable efforts to accommodate the former service member's disabilities after reemployment is rejected. No claim under the Americans with Disabilities Act is involved in this appeal. The judgment dismissing claims against the defendant Sheriff is affirmed.

151848 Walker v. Forbes 09/08/2016 In a habeas corpus proceeding, the circuit court erred in ruling that a defendant had a federal constitutional right to counsel in a probation revocation hearing. The petitioner had no federal constitutional right to counsel in his probation revocation hearing and, under United States Supreme Court case law, he could not meet the requirements of review regarding a due process right to counsel because he admitted violating his probation by committing new crimes and did not otherwise contest revocation, and he did not present any circumstances mitigating or justifying the violation. Thus, his probation revocation hearing was not one in which fundamental fairness gave rise to a due process constitutional right to counsel. Therefore, petitioner could not have been denied the effective assistance of that counsel. Because the habeas court erred in ruling otherwise, the judgment granting the petitioner a delayed appeal is reversed.

151976 Board of Supervisors v. SCC 09/08/2016 In consolidated appeals of right from a decision of the State Corporation Commission, after a full evidentiary hearing, refusing to reduce tolls collectible by the operator of a privately owned toll road, there was evidentiary support for the Commission’s findings that the existing toll rates will not materially discourage use of the roadway by the public, and provide the operator no more than a reasonable return, both as required under of Code § 56-542(D). Therefore, the decision of the Commission is affirmed. Combined case with Record No. 160002

160002 Ramadan v. SCC 09/08/2016 In consolidated appeals of right from a decision of the State Corporation Commission, after a full evidentiary hearing, refusing to reduce tolls collectible by the operator of a privately owned toll road, there was evidentiary support for the Commission’s findings that the existing toll rates will not materially discourage use of the roadway by the public, and provide the operator no more than a reasonable return, both as required under of Code § 56-542(D). Therefore, the decision of the Commission is affirmed. Combined case with Record No. 151976

150181 Wright v. Commonwealth 08/18/2016 In a case involving charges of felony malicious bodily injury by means of a caustic substance under Code § 18.2-52, felony assault and battery of a law enforcement officer under Code § 18.2-57, obstruction of justice under Code § 18.2-460, and grand larceny from the person under Code § 18.2-95, the first two assignments of error concerning the grand larceny charge are precluded by operation of Rule 5:17(c)(iii). The Court of Appeals did not err in refusing to notice the defendant's argument regarding the absence of evidence of the value of the items taken pursuant to Rule 5A:12(c), and the defendant’s request to apply the ends of justice exception of Rule 5:25 to permit consideration thereof is rejected. Regarding the other charges, the sufficiency of circumstantial evidence, viewed in the light most favorable to the Commonwealth, did not establish beyond a reasonable doubt the defendant's guilt of felony malicious bodily injury by means of a caustic substance under Code § 18.2-52. Nor is the record sufficient to convict the defendant of this offense as a principal in the second degree. Thus, the rationale used by the Court of Appeals to affirm his convictions for assault and battery of a law enforcement officer and obstruction of justice is not valid. The judgment is affirmed in part, reversed in part, and final judgment is entered.

150932 Scott v. Commonwealth 08/18/2016 The judgment of the Court of Appeals denying appeal to a defendant convicted of credit card theft under Code § 18.2-192 is affirmed. Under the statute there are two distinct offenses, one of which, addressed in its first prong, involves the proscribed taking, obtaining, or withholding a credit card without the cardholder’s consent. The other encompassed offense, addressed in its second prong, requires a specific intent, but the crime of credit card theft under the first prong of the statute is completed when the credit card or number is unlawfully taken from its rightful owner. This is a general intent crime completed upon an unlawful taking and does not require that the Commonwealth allege or prove the specific intent required to support a conviction under the second prong of the statute. The judgment upholding the conviction on this charge is affirmed.

160784 Howell v. McAuliffe 07/22/2016 On petition for writs of mandamus and prohibition brought by the Speaker of the House of Delegates, the Majority Leader of the Senate, and four other Virginia registered voters against the Governor, the Secretary of the Commonwealth, the Virginia Department of Elections, its Commissioner, and the State Board of Elections seeking to cancel voter registrations under the Governor’s executive orders restoring voting rights and removing political disabilities of approximately 206,000 Virginians convicted of felonies, and to prevent further such orders categorically restoring voting rights, each petitioner has standing to challenge the executive orders and the registration of voters authorized in the orders. Code § 24.2-431 does not provide the exclusive remedy for petitioners’ allegations, and the petition is not deficient for failure to join necessary parties; accordingly, the motion to dismiss the petition is denied. On the merits, the executive orders violate Article I, Section 7 and Article II, Section 1 of the Constitution of Virginia, and are unconstitutional. No election official in the Commonwealth may enforce them. The Secretary of the Commonwealth, the State Board of Elections, the Virginia Department of Elections, and their employees, agents, chairpersons, and commissioners, are ordered to take specified actions to satisfy their duties to ensure that only qualified voters are registered to vote. The requested writ of mandamus is issued to that effect; a writ of prohibition is denied.

150965 Small v. Commonwealth 07/14/2016 The circuit court did not err in denying a motion to withdraw a guilty plea almost three years after it was made. Prejudice to the Commonwealth is a relevant factor that should be considered when reviewing a motion to withdraw a guilty plea, and in this case it cannot be said that the trial court erred by weighing the equities and considering the resulting prejudice to the Commonwealth due to the lengthy delay between the defendant's entry of his guilty plea and his motion to withdraw that plea. Nor can it be said that the trial court abused its discretion in finding that the prejudice to the Commonwealth outweighed any equities that favored granting the motion. Further, the defendant did not demonstrate an immediate, real threat to his safety, and thus did not have a defense of necessity to a charge of possession of a firearm after having been convicted of a felony. The judgment of the Court of Appeals, upholding the judgment of the circuit court, is affirmed.

151100 Edmonds v. Commonwealth 07/14/2016 The trial court did not abuse its discretion in refusing a defendant's motion to withdraw his guilty plea, and the Court of Appeals did not err in upholding that ruling, where the record supported the findings of both courts that there was no showing of imminently threatened harm to support the defendant's proposed defense of duress or necessity in possessing a firearm after having previously been convicted of a felony. The judgment of the Court of Appeals upholding the trial court’s denial of the defendant’s motion to withdraw his guilty plea is affirmed.

151758 Cherrie v. Virginia Health Services 07/14/2016 The circuit court judgment dismissing a declaratory judgment complaint filed by two decedents’ estates seeking to assert a private right of action for the production of documents under 12 VAC § 5-371-140(G) is affirmed. The governing statute does not imply a private right of action for the enforcement of this regulation and, thus, the estates’ claims cannot be enforced in a declaratory judgment action. The judgment of the circuit court is affirmed on the grounds explained here.

150617 City of Richmond v. VEPCO 06/30/2016 Code § 58.1-3814(H) does not permit a locality to impose a tax on natural gas consumed for the sole purpose of generating electricity. Thus, the circuit court did not err in rejecting the interpretation of this statute by the City of Richmond in imposing some $ 7.3 million in taxes on a large public utility that utilizes natural gas for that purpose. Omission of the word “power” from the definition of “pipeline distribution companies” in the tax statutes demonstrates that the legislature did not intend present Code provisions to permit localities to impose a tax on natural gas consumed solely for the purpose of generating electricity. The judgment is affirmed.

150830 Babcock & Wilcox v. AREVA 06/30/2016 In an appeal concerning a royalty dispute over the use of nuclear technology, which resulted in a jury verdict against the defendant and certain affiliated companies for breach of contract and violation of the Virginia Uniform Trade Secrets Act, Code §§ 59.1-336 to -343, the trial court erred in failing to set aside the verdict for plaintiff, and in entering judgment for the defendants on plaintiff’s royalty and trade secret claims on each of the 15 contracts listed on the verdict form. The controlling license and sublicense agreements provide that no royalty was owed to plaintiff if only the customers of the defendant and its sublicensees used plaintiff’s exclusive technology at their own sites. Nor was the royalty owed if the sublicensees used this technology at an off-site location. In addition, the royalty provision in the sublicense was not a scope limitation on the right to use plaintiff’s exclusive technology, but was a provision requiring compensation for use of plaintiff’s exclusive technology at specific plant sites. Further, even if the sublicensees had breached their contractual duty to pay royalties for the 15 customer contracts in this case, that fact would not convert plaintiff’s breach-of-contract claim into a statutory right of action for misappropriation of trade secrets. The judgment of the trial court is reversed and final judgment is entered dismissing plaintiff’s claims.

150930 Commonwealth, DRM v. Va. Ass'n of Counties 06/23/2016 In declaratory judgment actions involving insurance coverage afforded to a pretrial detainee who was injured while in jail custody and sued guards and nurses at a regional jail, for which there are two sources of insurance coverage, the circuit court erred in holding, as a matter of law, that one insurance source provided primary coverage and the other offered only excess coverage. Both provided concurrent primary liability coverage and, as a result, the judgment is reversed in part and affirmed in part. The case is remanded for the circuit court to determine the appropriate pro rata contributions from each insurance source to the costs of defense and indemnification associated with settlement of the underlying liability suit.

151158 Hamm v. Hazelwood 06/23/2016 The circuit court erred in declaring void a provision in a real property deed that sought to create a contingent reversionary interest in the grantor and her heirs. The provision, known as a possibility of reverter at common law, lawfully vested the beneficiary of that interest with the reversionary interest. The case is remanded for entry of a final order consistent with this opinion, to be filed in the land records, and the circuit court may in its discretion make an additional award of fiduciary compensation.

150454 Parrish v. FNMA 06/16/2016 Defendant mortgagors raised a bona fide question of title in an unlawful detainer proceeding in general district court, thereby divesting that court of subject matter jurisdiction. In the de novo appeal, the circuit court likewise lacked subject matter jurisdiction, because its subject matter jurisdiction was derived from and limited to the subject matter jurisdiction of the court from which the appeal was taken. Its authority therefore was limited to dismissing the proceeding without prejudice, thereby enabling the foreclosure purchaser to pursue its choice of available remedies in the circuit court under that court’s original jurisdiction. The judgment of the circuit court is vacated, thereby restoring each of the parties to their status prior to the commencement of the unlawful detainer proceeding.

150877 VEPCO v. Hylton 06/16/2016 In a condemnation proceeding, Code § 25.1-213(ii) makes it clear that a landowner objecting to a trial court’s jurisdiction must raise the issue in an answer within 21 days of being served with the petition for condemnation. A general denial based on disagreement with the sufficiency of the amount of an offer to purchase cannot be considered an objection to the bona fides of the offer and, in this case, the landowner waived objection to the trial court’s jurisdiction over this matter by failing to timely raise the issue. Thus, the decision of the trial court to grant a motion to dismiss on this ground is reversed. The trial court also erred in denying motions in limine with regard to the separate value of the coal reserves on the property, as well as a surface mine that was not contemplated at the time of the taking. However, considering the the unity of lands doctrine, the court did not err in denying a motion in limine with regard to evidence of the devaluation of the neighboring tracts owned by the landowner that were not part of the take because here, there is evidence from which a jury could find a unity of use. The judgment is affirmed in part, and reversed in part, and the matter is remanded.

151088 Dorman v. State Industries, Inc. 06/16/2016 In a products liability action alleging breach of warranty and negligence claims against the manufacturer of an atmospheric-vented gas fired water heater, proof of the sales volume of the product was not impermissible evidence of the absence of other injuries, but relevant to the merchantability of the product shown by its acceptance in the marketplace. Evidence as to other potential causes in products liability cases may be important in a products liability action, and here there was evidence from which the jury could have found that the defendant’s negligence, if it existed, was superseded by other causes, and the trial court did not abuse its discretion in admitting defense evidence of superseding causation. A proper superseding cause jury instruction was given in this case, and the plaintiffs’ objection to that instruction, premised on its failure to mention the burden of proof on a defendant asserting superseding causation, was waived because plaintiffs failed to tender a proposed instruction containing such language. The judgment in favor of the defendant is affirmed.

151022 Clarke v. Galdamez 06/09/2016 In a petition for habeas corpus relief alleging ineffective assistance of counsel in advising a criminal defendant – an alien from El Salvador residing in the United States on temporary protected status – about the consequences of pleading guilty to felony hit and run charges, with a maximum sentence of 10 years’ imprisonment, and driving while intoxicated under Code §18.2-266, the record supports the circuit court's findings that, had the criminal defendant been properly advised, he would have rejected the plea agreement and gone to trial, and that the decision to do so would have been rational in light of all the circumstances. Petitioner demonstrated that he had a strong desire to wish to maintain his immigration status and remain in this country, and a basis for doing so, and that he conveyed this position to his defense attorney prior to accepting the plea agreement. The evidence further supported a finding that a fact-finder could have found him not guilty of the hit and run offense. The record therefore supports the judgment of the trial court that a decision to reject the plea agreement and proceed to trial would have been rational. The judgment of the habeas court is thus not plainly wrong or without evidence to support it and, accordingly, is affirmed.

150528 Thorsen v. Richmond SPCA 06/02/2016 In an action for professional negligence/breach of contract brought by a party asserting it is a third-party beneficiary of the contractual relation between a testator and her counsel, seeking damages attributable to real property that – due to a drafting error – the will erroneously failed to cause to come to the plaintiff, the trial court did not err in entering judgment for the plaintiff. While difficult to establish, the specific agreement between a testator client and an attorney concerning the drafting of a will could identify an intended third-party beneficiary. Here, the facts sufficiently allege that the contract was entered into for the benefit of the testator’s mother and the plaintiff non-profit entity. When counsel accepted it, plaintiff became the intended beneficiary of the testator’s contract of employment with counsel. Plaintiff’s pleading was thus sufficient to allege a cause of action for breach of contract/professional negligence on behalf of an intended third-party beneficiary of the contract between the testator and her attorney, and the plaintiff’s status as a contingent, residuary legatee does not preclude its claim. Nor is the statute of limitations a bar here, because the plaintiff’s cause of action could not have accrued until the testator’s death, when injury to the plaintiff first occurred. The judgment for plaintiff is affirmed.

150977 Andrews v. Richmond Redev't & Housing Auth. 06/02/2016 In an employment termination case in which the plaintiff filed a grievance and a hearing officer ordered her reinstatement to employment with a public housing authority, the circuit court lacked subject matter jurisdiction to review that disposition. The housing authority’s grievance procedure is not controlled by Code § 15.2-1507, but instead by the State Grievance Procedure. Provisions of Code § 2.2-3006 make clear that either party may appeal a hearing officer’s decision to circuit court for review on grounds that it is contradictory to law, but no such right is available when the challenge to the decision presents a question whether it is consistent with policy. Here, the authority did not make a prima facie showing for invoking judicial review of the hearing officer’s decision under Code § 2.2-3006(B) because the substance of its appeal challenged only the hearing officer’s interpretation and application of authority’s policies. Consequently, the circuit court did not have subject matter jurisdiction to entertain the authority’s appeal under Code § 2.2-3006 because the statute does not grant the court the authority to review a case or controversy of this nature. The judgment overturning the result of the grievance procedure is reversed and final judgment is entered for the grievant.

151068 Wilkins v. Commonwealth 06/02/2016 Considering an appeal from a judgment of conviction in a criminal case that was tried before a jury, the defendant failed to support his claim that constitutional standards prohibiting trial of an accused in identifiable prison attire were violated. The judgment of the Court of Appeals of Virginia upholding the conviction is affirmed.

151160 Johnston v. Wood & Associates 06/02/2016 In accord with century-old case law holding that when an employment contract does not specify a time period for its duration, either party is ordinarily at liberty to terminate it at-will on giving reasonable notice of the intention to do so, the contention that such notice includes a temporal component, i.e., the notice must be provided at some reasonable time before the termination of the employment relationship, is rejected. In this context, “reasonable notice” simply means effectual notice that the employment has been terminated. The judgment sustaining a demurrer to the complaint of a former employee is affirmed.

151163 Commonwealth v. Bass 06/02/2016 In an appeal from a robbery conviction, the Court of Appeals misapplied the ends of justice exception to Rule 5A:18 and erroneously reversed the defendant’s conviction due to a variance between the indictments and the evidence presented at trial. It also erred in declining to address the defendant’s challenge to the sufficiency of the Commonwealth’s evidence after reversing the defendant’s conviction, and in ruling that in retrial on remand he could not be prosecuted for any claim beyond attempted robbery. The contention that the Commonwealth’s evidence was insufficient to convict defendant of robbery because the testimony of the Commonwealth’s eyewitnesses was inherently incredible and the jury should not have been allowed to consider it was not made to the circuit court and, therefore, it is barred by Rules 5A:18 and 5:25. The judgment of the Court of Appeals is reversed and final judgment is entered in accordance with the jury verdict and sentencing order.

151190 Bank of Hampton Roads v. Powell 06/02/2016 In breach of contract and fraudulent conveyance litigation, the trial court erred in imposing a constructive trust upon a subdivision lot after a developer breached a contract to convey a different property. To be entitled to the benefit of a constructive trust, a claimant’s interest must be distinctly traced to the property made subject to the trust, and here the plaintiff failed to distinctly trace her claim into that property. Her contract with the developers provided that she would receive a particular subdivision lot, but years later it was sold to a builder. After her choice of a lot, plaintiff’s interest lay with that property; its sale to others breached the contract, and she was entitled to damages. A constructive trust is an equitable remedy available under specific conditions and when legal remedies, such as monetary damages, would be insufficient. Accordingly, the trial court erred when it imposed a constructive trust upon the remaining subdivision lot of the developers, in which a bank had a secured interest. However, its award of $110,000 in damages against the developer defendants is proper. The judgment is reversed in part and final judgment is entered.

151191 Saddlebrook Estates v. City of Suffolk 06/02/2016 In an action by a homeowners’ association to stay judicial sale of a parcel serving as an equestrian center under the plan and declaration of the development, and for declaratory relief, the circuit court erred in ruling that a parcel of a cluster-development subdivision designated as an equestrian center did not fall within the meaning of “open or common space” as defined by Code § 58.1-3284.1 on the ground that it is a commercial enterprise. The statute provides that all real property used for open or common space shall be construed as having no value in itself for assessment purposes. Its only value lies in the value that is attached to the residential or commercial property which has a right by easement, covenant, deed or other interest. The common area is not exempt from taxation but the statute sets the value for assessment purposes as the value the common area provides to the dominant estate (i.e., the lots in the subdivision, which benefit from the easement). This is not the value of the fee of the common area itself, but the value by which access to and use of the common area augments the value of the lots. The first paragraph of Code § 58.1-3284.1(A) then makes the owners of the dominant estate (i.e., the owners of the lots), and only them, liable for the tax assessed on that value in proportion to each owner’s respective lot as a percentage of the whole subdivision. The judgment of the circuit court is reversed, the assessments are vacated, and final judgment is entered for the association.

151193 Pike v. Hagaman 06/02/2016 In an appeal from dismissal of a medical malpractice action against a registered nurse employed in a state facility, on the basis of sovereign immunity, the circuit court did not err in sustaining the plea in bar and dismissing the action. Applying the four-factor test recognized in Virginia case law, focusing on the state interests and control of the activities of the defendant and her exercise of judgment and discretion in rendering nursing care to the plaintiff, the facts of the present case, in light of legislation enacted by the General Assembly, demonstrate that it was not error to sustain the plea. The judgment is affirmed.

151296 Wallace v. Commonwealth (ORDER) 06/02/2016 The Court of Appeals did not err in upholding the decision of the circuit court in a case involving charges of indecent liberties with a child in violation of Code § 18.2-370.1, denying the defendant's pretrial motion to dismiss for lack of a speedy trial because the Commonwealth failed to bring him to trial within the period required by Code § 19.2-243 and the Sixth Amendment of the United States Constitution. For the reasons set forth in the opinion of the Court of Appeals of Virginia in this case, Wallace v. Commonwealth, 65 Va. App. 80, 774 S.E.2d 482 (2015), the judgment is affirmed.

150372 Mason v. Commonwealth 05/05/2016 In an appeal challenging the circuit court’s refusal to suppress drug-related evidence seized after a traffic stop, it is concluded that the objective facts and circumstances presented by the Commonwealth were such as to create a reasonable suspicion that a violation of Code § 46.2-1054, relating to objects suspended in a vehicle so as to obstruct the driver’s clear view of the roadway was occurring, justifying an investigatory stop of the vehicle in which the defendant was a passenger, and his Fourth Amendment rights were not violated by this traffic stop. The judgment of the Court of Appeals upholding the trial court’s denial of a motion to suppress evidence seized subsequent to the traffic stop, and the ensuing felony convictions, is affirmed.

150328 City of Chesapeake v. Dominion SecurityPlus 04/28/2016 In a condemnation proceeding, a subdivision plat note was a valid contract by which the landowner waived any damages to the residue as the result of the purchase or condemnation of a specified area, and the waiver was broad enough to include loss of visibility and loss of direct access to a roadway. Since the landowner rebuffed the city’s attempts to purchase the property, the waiver applies to acquisition of the property by eminent domain. The condemnation of additional land by the city was not governed by the subdivision plat note waiver, but the landowner failed to present any evidence damages could be apportioned and thus the entire judgment is reversed.

150522 Navar, Inc. v. Federal Business Council 04/28/2016 In an action asserting claims for breach of contract, unjust enrichment, quantum meruit, and trade secret misappropriation in which plaintiffs recovered a judgment of $1.25 million, plaintiffs failed to show at trial how the defendant misused their confidential information under a nondisclosure agreement or the Virginia Trade Secrets Act, Code § 59.1-336 et seq.,and failed to show how the nondisclosure agreement required it to use plaintiffs as subcontractors. On the evidence, the defendant cannot be found liable for breach of contract and the trial court erred in not striking the evidence on that theory. Nor did the defendant disclose or use the trade secrets in violation of the Trade Secrets Act, and nothing in the nondisclosure agreement or that Act required the defendant to use plaintiffs as subcontractors. The trial court did not err in finding a “teaming agreement” was unenforceable as a binding contract: it did not contain a sum, or any method for determining a sum, or any requirement that plaintiffs and defendant mutually agreed that plaintiffs would be the actual subcontractors hired by the defendants once a prime contract was awarded. The rules of contract law do not apply to the teaming agreement because it is merely an agreement to agree to negotiate at a future date, and accordingly plaintiffs are not entitled to damages for breach of the teaming agreement. The judgment is affirmed in part, reversed in part, and final judgment is entered with respect to certain claims.

150770 Luttrell v. Cucco 04/28/2016 In an appeal from a ruling on a former husband’s motion for adjustment of spousal support, the Court of Appeals erred in upholding the circuit court’s conclusion that only opposite-sex couples can “cohabit” in a “relationship analogous to marriage” for purposes of Code § 20-109(A), applicable in considering the termination of spousal support under the parties’ property and support settlement agreement in the divorce. The judgment of the Court of Appeals is reversed, the award of attorney’s fees to the wife is vacated, and the case is remanded for an evidentiary hearing consistent with this opinion to determine whether the former wife cohabited with her fiancée within the meaning of Code § 20-109(A) and for reconsideration of attorney’s fees pursuant to the property settlement agreement at that time.

150282 Dye v. CNX Gas Company, LLC 04/21/2016 In a declaratory judgment action, the circuit court did not err in concluding that the term “minerals” used in two severance deeds executed in 1886 and 1887 effected a conveyances of the natural gas and coal bed methane gas, absent some other language in the deeds indicating a different intent or creating sufficient ambiguity to permit the introduction of extrinsic evidence. There is no such language in these deeds. There is nothing within the four corners of the instant severance deeds to show a contrary meaning or less comprehensive meaning of the term “minerals” such as would exclude conveyances of the gas. Accordingly, the circuit court thus correctly sustained the demurrers to plaintiff’s complaint and amended complaint, and the judgment is affirmed.

150552 Mikhaylov v. Sales 04/21/2016 In a civil trial on claims including assault and battery, the circuit court misapplied principles of judicial estoppel with regard to the effect of a prior conviction of the defendant in general district court, entered upon a guilty plea, to charges assault and battery in the same incident in violation of Code § 18.2-57, and the court erroneously failed to exclude from evidence expert testimony about the alleged victim’s future treatment needs that had not been previously disclosed during pretrial discovery. The judgment is reversed and the case is remanded.

150638 JSR Mechanical, Inc. v. Aireco Supply, Inc. 04/21/2016 In an appeal reviewing the meaning and application of Virginia Code § 8.01-335(B) on the question whether a circuit court has discretion to deny a procedural motion to reinstate a case that has been discontinued or dismissed for extended inactivity under that subdivision of the statute, it is held that – if the petitioner has complied with the timeliness and notice requirements of the statute – the circuit court does not have discretion to deny the motion to reinstate the case dismissed or discontinued under this statute. The judgment is reversed, and the action is remanded.

150666 Haynes v. Haggerty 04/21/2016 In a civil action arising from alleged sexual abuse that occurred while plaintiff was a minor, the circuit court did not err in granting defendant’s plea in bar of the statute of limitations. The causes of action raised in this suit concerning activities that took place from the alleged inception of the relationship between the defendant and the plaintiff in 1971 up through the date of plaintiff’s 18th birthday in March 1975. A cause of action accrued when each unlawful contact occurred, and the limitations period governing these claims was tolled by the predecessor of Code § 8.01-229 until plaintiff reached the age of majority in March 1975. The limitations period on those claims began to run at that point and expired two years later on her birthday in March 1977. Plaintiff’s causes of action all existed before the effective date of Title 8.01 on October 1, 1977, and – pursuant to the provisions of Code § 8.01-256 – the statute of limitations for those causes of action is the same as if Code § 8.01-249 had not been enacted. Therefore, Code § 8.01-249(6) does not apply to these claims, and the circuit court did not err in granting the plea in bar of the statute of limitations.

150587 Lopez-Rosario v. Habib 04/14/2016 The circuit court did not err in dismissing a suit for medical malpractice on the basis that the plaintiff filed the lawsuit in her own name, although co-guardians, broadly responsible for her personal affairs, had been appointed. The judgment is affirmed.

150875 Ragland v. Soggin 04/14/2016 Imposition of a $200 sanction against each of two attorneys for submitting a jury instruction with an error, which the trial court found was an inadvertent mistake, is reversed because no Virginia statute or Rule of Court authorizes the imposition of a monetary sanction in this circumstance. The judgment is reversed and final judgment is entered in favor of the sanctioned attorneys.

141071 Vasquez v. Commonwealth 02/12/2016 The convictions and sentences of two defendants – who were 16 years of age when they perpetrated rape at knifepoint and some 30 other offenses – are affirmed. There is no basis for declaring the multiple term-of-years sentences imposed to be cruel and unusual under the Eighth Amendment. Nothing in governing constitutional case law dictates that multiple sentences involving multiple crimes be treated, for Eighth Amendment purposes, in exactly the same manner as a single life-without-parole sentence for a single crime. Doing so would require extension of the categorical rule of case law far beyond any binding precedent, embracing a wholly new doctrine that is constitutionally unnecessary and jurisprudentially imprudent. The evidence was sufficient to prove beyond a reasonable doubt that both defendants possessed a deadly weapon when they entered the victim’s townhouse on the night of the crimes. The Court of Appeals did not err in denying their petitions for appeal, and the judgments are affirmed. Combined case with Record No. 150357

141487 Smith v. Brown 02/12/2016 In a habeas corpus proceeding, the circuit court’s dismissal of the petition on the pleadings, without conducting an evidentiary hearing, is reversed, and the matter is remanded for an evidentiary hearing. The circuit court is directed to reconsider the petition after making findings on disputed allegations of material facts.

141577 Wetlands America Trust v. White Cloud Nine 02/12/2016 In a declaratory judgment proceeding centering around a conservation easement on real property, the circuit court did not err in rejecting claims by the non-profit holder of the easement that the property owner’s construction activities and intended commercial uses for its newly-constructed facility on the property violate the easement. The judgment is affirmed.

150085 Herrington v. Commonwealth 02/12/2016 In a prosecution for possession with intent to sell or distribute a Schedule I or II controlled substance, the circuit court did not err in denying the defendant’s motion to quash the indictment. The Commonwealth may obtain an indictment from the grand jury charging an offense for which the district court has previously found no probable cause, and the indictment against this defendant was not amended. Denial of his motion to dismiss the indictment under the speedy trial statute, Code § 19.2-243, was also not error, since the speedy trial time period began to run on the date of the defendant’s indictment, not on the date of the preliminary hearing. There is no factual support for the contention that defendant was denied his right to represent himself at trial. He had multiple opportunities to raise his right to self-representation and, when the case came on for trial, he was asked whether he wished to represent himself at trial, he informed the judge that he did not. Although the defendant argues the Commonwealth did not establish due diligence in obtaining its evidence for trial, he fails to allege any harm to him resulting from a two-week continuance that was granted. The judgment of the Court of Appeals upholding the conviction is affirmed.

150279 Wm. H. Gordon Assocs. v. Heritage Fellowship 02/12/2016 In multiple litigations arising from collapse of an underground storm water handling tank system designed and constructed for a church, the circuit court correctly found that the plaintiff’s claims were timely filed within five years after final approval of allegedly defective plans that solely caused the collapse. The judgment finding the design engineers liable under the engineering contract for breach of the applicable engineering standard of care is also affirmed. Because the record also supports the finding that the agreements did not transfer liability for design defects to the construction contractor that built the rain tank structure in accord with the plans, and that the defective plans were the sole proximate cause of its collapse, the circuit court did not err in finding that the contractor was entitled to be paid for removal of the collapsed tank and installation of a replacement system, or in passing the liability for paying the contractor on to the engineers. The action is remanded to the circuit court for a determination concerning any amount of offset that the engineers may be entitled to receive, based on a settlement agreement between the church and an inspection firm which was released on claims that included both attorneys’ fees and damages for the rain tank collapse. The award of damages in the form of extended construction loan interest which was not incurred by the church as a result of the breach of contract is reversed, and that amount will be deducted from the judgment. The judgment is affirmed in part, reversed in part, and the matter is remanded.

150357 Valentin v. Commonwealth 02/12/2016 The convictions and sentences of two defendants – who were 16 years of age when they perpetrated rape at knifepoint and some 30 other offenses – are affirmed. There is no basis for declaring the multiple term-of-years sentences imposed to be cruel and unusual under the Eighth Amendment. Nothing in governing constitutional case law dictates that multiple sentences involving multiple crimes be treated, for Eighth Amendment purposes, in exactly the same manner as a single life-without-parole sentence for a single crime. Doing so would require extension of the categorical rule of case law far beyond any binding precedent, embracing a wholly new doctrine that is constitutionally unnecessary and jurisprudentially imprudent. The evidence was sufficient to prove beyond a reasonable doubt that both defendants possessed a deadly weapon when they entered the victim’s townhouse on the night of the crimes. The Court of Appeals did not err in denying their petitions for appeal, and the judgments are affirmed. Combined case with Record No. 141071

150456 Tvardek v. Powhatan Village 02/12/2016 In a declaratory judgment action by landowners challenging an amendment to a declaration of protective covenants by a homeowners association – purportedly adopted by the requisite majority of the association’s members five years prior to the plaintiffs’ commencement of this action – the circuit court erred in granted a special plea in bar dismissing the action on the basis of the one-year statute of limitations established in Code § 55-515.1(E). The judgment is reversed and the case is remanded for further proceedings.

150591 Phelan v. Commonwealth 02/12/2016 A claim against the Commonwealth of Virginia by an inmate who allegedly suffered personal injuries at a Virginia correctional institution is barred by the doctrine of sovereign immunity because the notice of claim filed in this case did not include the identification of the agency or agencies allegedly responsible, as required by Code § 8.01-195.6. The judgment of the circuit court dismissing the action on the Commonwealth’s plea in bar is affirmed.

150693 Environment Specialist v. Wells Fargo Bank 02/12/2016 The circuit court erred when it awarded $1200 in sanctions against plaintiff’s counsel for failure to voluntarily extend the time in which a defendant might file its answer, since neither Code §8.01-271.1 nor the court’s inherent powers authorize a monetary sanction in these circumstances. The judgment is reversed.

151017 Blount v. Clarke 02/12/2016 In response to questions of Virginia law certified to this Court by the United States District Court pursuant to Article VI, Section 1 of the Constitution of Virginia, it is held that an executive order by the Governor of Virginia with respect to the punishment of a prisoner convicted of numerous offenses committed when he was 15 years of age constitutes a partial pardon because it exonerated him from some but not all of the punishment for his crimes. The Governor has the power to issue a conditional pardon or a partial pardon under the general pardoning power granted by Article V, § 12, and the prisoner may neither accept nor reject the partial pardon. Certified Question (1), alternative (a) is answered in the affirmative by the holding that the executive order constitutes a partial pardon. Certified Question (2) is answered in the affirmative: the actions taken by the Governor of Virginia in the executive order are valid under the Virginia State Constitution.

150192 Richmond v. Volk 01/28/2016 In personal injury litigation, the circuit court erred in granting a special plea of the statute of limitations to a refiled complaint. The original complaint identified the correct defendant involved in a traffic accident, but used an incorrect last name in naming her, a misnomer. Accordingly, upon the filing of the original complaint the statute of limitations was tolled by Code § 8.01-229(E)(1). When plaintiff took a voluntary nonsuit, Code § 8.01-229(E)(3) tolled the statute of limitations for an additional six months from the date of the nonsuit. Here, the plaintiff filed the present complaint within that six-month period and correctly named the defendant. Failure to correct the misnomer in the original action under Code § 8.01-6 did not affect the statute of limitations effects under Code § 8.01-229(E), and the decision of the circuit court granting the plea in bar of the statute of limitations in the refiled action is reversed. The matter is remanded for further proceedings not inconsistent with this opinion.

150323 Hampton Roads Bankshares v. Harvard 01/14/2016 In a suit by a former executive against a bank and bank holding company, alleging breach of an employment agreement based on failure of the defendants to make a contractually specified severance payment, the financial institutions participating in the federal Troubled Assets Relief Program can assert the federal prohibition on “golden parachute payments” as an enforceable defense. Because federal law prohibits the making of a golden parachute payment under the circumstances presented in this case, that section of the employment agreement in this case is void and unenforceable. Furthermore, the former executive may not collaterally attack the prohibition as an unconstitutional taking without just compensation, because the validity of the law rendering performance impossible does not affect the validity of the defense, provided the promisor relies upon the law in good faith, and nothing in the record suggests that the bank refused to make the golden parachute payment to plaintiff in bad faith. Payment of attorney’s fees based upon a fee shifting provision in the employment agreement that cannot be invoked unless there is a change in control of the employing entity also falls within the scope of a golden parachute payment, and is likewise prohibited. The judgment of the circuit court is reversed, the awards of damages and attorney’s fees in favor of the former executive are vacated, and final judgment is entered for the bank.

150335 EMAC, L.L.C. v. County of Hanover 01/14/2016 In an action for declaratory judgment and damages against a county and its board of supervisors, challenging the board’s decision to deny the plaintiff’s application for an extension of a conditional use permit for a sign, the circuit court did not err in granting the defendants’ demurrer and motion to dismiss. Considering the pleadings and documents brought before the circuit court for consideration on the demurrer by craving oyer, the plaintiff failed to show that it was situated similarly to another land owner which was granted an extension on its conditional use permit for a sign under county ordinances. Nor did plaintiff demonstrate that granting an extension of its permit was in the public interest. The judgment of the circuit court granting a demurrer and dismissing this action with prejudice is affirmed.

150317 Virginia Fuel Corp. v. Lambert Coal Co. 01/07/2016 The circuit court did not err in granting summary judgment in favor of a plaintiff that sold coal lease assets to one of the defendants for $2.5 million, in a transaction involving $40,000 per month payments to complete the purchase price. In this breach of contract action, the purchaser admitted that just over $1 million remained unpaid, and the circuit court correctly concluded that the purchaser was not excused from paying the full amount of the deferred purchase price because it found less mineable coal on the lease than it expected. The other defendant in this case admitted that it had guaranteed payment in full of the deferred purchase price. The circuit court correctly concluded that there was no material fact in dispute and summary judgment in favor of the plaintiff on its contract claim was appropriate. The circuit court also did not err in denying a continuance on the pending summary judgment motion based on discovery requests the defendants filed only five days before the hearing. A demurrer was properly granted on the defendants’ counterclaim charging misrepresentation or breach of warranty with respect to the available amount of coal. In an attachment to the sales agreement, reference to a royalty rate of 8-10% on 1.1 million tons of coal was part of the identification of the subject matter and an estimation of royalty percentages payable, and did not amount to a representation or warranty of the amount of coal actually available. There was no error in dismissing the defendants’ recoupment defense relating to the contract. Judgment for plaintiff is affirmed.

150005 Chacey v. Garvey 12/30/2015 In a case for timber trespass under the provisions of Code § 55-332, the trial court erred in ruling that the statutory phrase allowing recovery of “directly associated legal costs” includes attorney’s fees. Virginia follows the “American Rule,” under which, absent a specific contractual or statutory provision to the contrary, attorney’s fees are not recoverable by a prevailing litigant from the losing litigant. The authority for awarding costs and attorney’s fees is in derogation of common law and, therefore, subject to strict interpretation. In this statute, the General Assembly did not include the right to recover attorney’s fees. On the issue of damages, nothing in Code § 55-332(B) states that an owner is only entitled to a recovery of the amounts specified therein only after establishing the value of the timber that was improperly taken. Thus, the fact that the plaintiff in this case was unable to prove the value of the timber on the stump did not preclude her from being able to recover the other damages she was entitled to under Code § 55-332(B). Accordingly, the trial court did not err in allowing her claim for timber trespass to go the jury. The judgment is affirmed in part, reversed in part, and the action is remanded.

150150 Butler v. Fairfax County School Board 12/17/2015 Code § 22.1-296.1(A) requires, as a condition precedent to employment, that every applicant for employment by a school board must certify that he or she has not been convicted of any felony. An applicant who has been convicted of a felony prior to his or her application cannot fulfill this statutory condition precedent, and is not eligible to be hired. The statute is not ambiguous, and there is no inconsistency between this section and other Code provisions relating to school boards and teacher hiring, termination, or licensure by the Board of Education. Because of a prior conviction, the teacher in this case could not fulfill the statutory condition precedent to employment and the school board lacked authority to hire her, or to make a continuing contract with her the following year. The continuing contract therefore is ultra vires and void ab initio. There was no showing that the teacher reasonably relied on representations of the board to her detriment and, since the contract was void ab initio, it cannot form the basis for a claim of estoppel. The judgment is affirmed.

150278 CPM Virginia v. MJM Golf 12/17/2015 (Revised 03/13/2017) The circuit court erred as a matter of law in its interpretation of warranty provisions in a golf course development agreement and contract for sale of real estate. None of the terms required the plaintiff to ensure that fly ash previously deposited on the property be covered with at least 18 inches of topsoil as contended in the defendant’s counterclaim. Nor did a conditional use permit and state regulations mandate that plaintiff place the required amount of top soil on the property prior to closing, since there never was such a warranty in this case and, even if there had been, it could not have been violated prior to closing. The agreement’s anti-merger clause, stating that contractual provisions would survive closing and not be deemed merged into the deed of conveyance, does not create new contractual rights; it merely protects preexisting contractual rights (to the extent they need such protection) from being extinguished by operation of the merger doctrine. Nor can an anti-merger clause, absent express language stating otherwise, extend a contractual warranty beyond the closing date that, by its very terms, has no post-closing applicability. Because the warranty provisions in the parties’ agreement did not require plaintiff cover the fly ash with 18 inches of topsoil, the trial court erred as a matter of law in finding a breach of its provisions and in awarding damages to the defendant. The judgment for the defendant on its counterclaim is reversed, and the case is remanded for further proceedings.

141788 Director v. Kozich 12/10/2015 In reviewing a habeas corpus petition alleging ineffective assistance of counsel in violation of the Sixth Amendment guarantee of effective legal representation, the circuit court erred in granting the writ on the ground that the sentencing orders were only to have the effect of “continuing” the case as an open sentencing proceeding. The sentencing orders were final, appealable orders under Virginia law and no precedent recognizes a Sixth Amendment right to counsel to pursue a motion to reconsider a sentence after the entry of final judgment. The habeas court erred in granting the writ on this basis, but its findings of ineffectiveness of counsel and prejudice support the issuance of the writ based upon trial counsel’s failure to file a timely motion to reconsider and to obtain a ruling thereon prior to the entry of the final sentencing orders. Counsel’s failure to do so, given the mixed signals from the trial court during the sentencing hearing, was objectively unreasonable. This omission, coupled with the habeas court’s finding that the motion would have been granted, demonstrated prejudice. The writ of habeas corpus, therefore, was properly issued for these reasons, and the judgment is affirmed.

150303 Velasquez-Lopez v. Clarke 11/19/2015 The circuit court did not err in a habeas corpus proceeding by concluding that trial counsel for the petitioner did not provide ineffective assistance to the petitioner by failing to file a petition for appeal on his behalf. Petitioner was required to prove his claim that defense counsel disregarded instructions to prosecute an appeal. While petitioner argues that the evidence contained ambiguities or inconsistencies on the issue of whether such instructions were provided, here there was credible evidence to support the finding by the habeas court that no such instructions were given, and it cannot be said that the circuit court's finding was plainly wrong or unsupported by credible evidence. The judgment is affirmed.

140983 Kambis v. Considine 11/12/2015 In a sanction ruling entered after all of the plaintiffs’ numerous claims over a five-year litigation had been nonsuited or dismissed, the circuit court did not err in imposing a monetary sanction of $84,541.62 against the individual plaintiff for violation of that portion of Code § 8.01-271.1 providing that pleadings, motions, or other papers may not be “interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” This is by no means an exhaustive list of such improper purposes. One goal of Code § 8.01-271.1 is to reduce the volume of unnecessary litigation. A sanction can protect litigants from the assertions of unfounded factual and legal claims and against the assertions of valid claims for improper purposes. Sanctions can also be used to protect courts against those who would abuse the judicial process. An action filed out of a vindictive and malevolent desire to injure and intimidate a defendant is brought for an improper purpose, and in this case the record supports the trial court’s finding that the individual plaintiff pursued his claims principally in an attempt to intimidate and injure the defendants, rather than to vindicate his own legal rights. It is readily apparent that a claim brought for such vengeful and vindictive reasons is brought for an improper purpose under Code § 8.01-271.1. The judgment awarding sanctions is affirmed.

141650 Ricks v. Commonwealth 11/12/2015 In two appeals from decisions of the Court of Appeals of Virginia, it is held that the wounding or bodily injury element necessary to prove the crime of strangulation in violation of Code § 18.2-51.6 does not require that the victim experience any observable wounds, cuts, or breaking of the skin, broken bones or bruises. “Bodily injury” within the scope of Code § 18.2-51.6 is any bodily injury whatsoever, including internal injuries, and includes an act of damage or harm or hurt that relates to the body; is an impairment of a function of a bodily member, organ, or mental faculty; or is an act of impairment of a physical condition. Intentionally impeding the flow of oxygen to another person’s brain resulting in unconsciousness, however brief, constitutes a bodily injury under this statute. Even a “momentary ‘black out’” caused by pressure to the neck is sufficient to constitute a bodily injury. The Commonwealth need not present medical testimony to prove bodily injury resulting from strangulation; however, if the Commonwealth presents evidence sufficient to prove that unlawful pressure to the neck was applied to a victim and that it resulted in unconsciousness, this is sufficient to prove the element of bodily injury. Proof of some form of bodily injury is required to support conviction under this statute. The judgments are affirmed. Combined case with Record No. 141820

141820 Commonwealth v. Chilton 11/12/2015 In two appeals from decisions of the Court of Appeals of Virginia, it is held that the wounding or bodily injury element necessary to prove the crime of strangulation in violation of Code § 18.2-51.6 does not require that the victim experience any observable wounds, cuts, or breaking of the skin, broken bones or bruises. “Bodily injury” within the scope of Code § 18.2-51.6 is any bodily injury whatsoever, including internal injuries, and includes an act of damage or harm or hurt that relates to the body; is an impairment of a function of a bodily member, organ, or mental faculty; or is an act of impairment of a physical condition. Intentionally impeding the flow of oxygen to another person’s brain resulting in unconsciousness, however brief, constitutes a bodily injury under this statute. Even a “momentary ‘black out’” caused by pressure to the neck is sufficient to constitute a bodily injury. The Commonwealth need not present medical testimony to prove bodily injury resulting from strangulation; however, if the Commonwealth presents evidence sufficient to prove that unlawful pressure to the neck was applied to a victim and that it resulted in unconsciousness, this is sufficient to prove the element of bodily injury. Proof of some form of bodily injury is required to support conviction under this statute. The judgments are affirmed. Combined case with Record No. 141650

141533 Rafalko v. Georgiadis 11/05/2015 In a declaratory judgment suit by two sons seeking a determination that their conduct did not trigger a “no contest” clause in their father’s trust instrument, alleging that the trustee’s contrary decision was without authority, contrary to the purposes of the trust and an abuse of discretion, judicial review of the trustee’s decision is allowed pursuant to Virginia jurisprudence and Code § 64.2-703(B)(2). There was sufficient evidence for the court to find that the trustee’s conclusion that the sons violated the no contest provision was not motivated by a desire to carry out the testator’s intent, or to protect the beneficiaries, and was therefore done in bad faith. The record also supports a conclusion that letters sent by the sons did not interfere with the trustee’s administration of the trust and should not have resulted in their disqualification as beneficiaries. The circuit court’s judgment finding them and their descendants rightful beneficiaries of the trust is upheld because there was no challenge to the circuit court’s primary holding that the no contest provision applied only to challenges directed against a later-amended document, while the sons’ actions were directed only an earlier instrument; therefore there was no interference with or contest to the operative testamentary document. This alternative ground remains an independent ground for the circuit court’s judgment. Accordingly, the circuit court’s judgment awarding the sons attorneys’ fees and costs is also affirmed.

150433 Grafmuller v. Commonwealth 11/05/2015 When a felony sentence exceeds the maximum provided by law, the defendant has a constitutional and statutory right to be present at a hearing for resentencing, which is a critical stage of the proceedings that can affect his interest. This bright-line rule is not limited to cases in which the prior sentence was imposed by a jury, and applies equally to sentences imposed by a judge. In this case, involving a defendant who had entered Alford pleas of guilty to various sexual offenses involving minors, the judgment of the circuit court entered upon a resentencing – without first holding a new sentencing hearing at which the defendant was present – is reversed. The case is remanded for re-sentencing in accord with this opinion.

140999 McKellar v. Northrop Grumman Shipbuilding 10/29/2015 The Court of Appeals erred in ruling that retirement precluded an injured worker from receiving an award of temporary total disability benefits under Code § 65.2-500. The statute applies to totally disabled workers who have lost the capacity to earn wages, and an injured worker’s status in the labor market is irrelevant where the incapacity is total. Thus, a retired worker whose work-related injury causes total incapacity need not produce evidence of a pre-injury intent to reenter the workforce. In denying an award of temporary total disability benefits in this case, both the Commission and the Court of Appeals failed to apply the plain language of Code § 65.2-500 and further erred by conflating the analyses for total disability and partial incapacity under the Virginia Worker’s Compensation Act. When an employee is totally disabled and medically precluded from working, the appropriate test under Code § 65.2-500 focuses on the loss of earning capacity, not economic loss. In this case, the deputy commissioner correctly found that the claimant was totally disabled and that he lacked all earning capacity and, therefore, he is entitled to temporary total disability compensation. The judgment of the Court of Appeals is reversed and the case is remanded with direction that it be remanded to the Worker’s Compensation Commission with instructions to reinstate the award of compensation as determined by the Deputy Commissioner.

141121 Escamilla v. Superintendent 10/29/2015 The circuit court did not err in refusing a petition for a writ of habeas corpus filed by a resident alien who was detained for deportation by federal immigration authorities because of Virginia state convictions rendered several years ago. Habeas corpus relief under Code § 8.01-654 is available only to those who are subject to the actual or constructive detention of the Commonwealth as a result of the conviction they seek to challenge. Federal immigration detention does not satisfy the detention requirement of Code § 8.01-654 because such detention is pursuant to the laws and authority of another sovereign. In this case, the petitioner sought habeas corpus relief concerning a conviction for petit larceny a dozen years earlier; however, the sentence for that conviction and his detention on that conviction ended with the expiration of his sentence – many years before the present petition was filed. Therefore, petitioner was not unlawfully detained because of that Virginia conviction, at the time he filed his habeas petition. Accordingly, the judgment of the circuit court dismissing the petition for want of jurisdiction must be affirmed.

141674 Commonwealth v. Davis 10/29/2015 The acquittal of a defendant in general district court on a misdemeanor charge of reckless handling of a firearm under Code § 18.2-56.1, in which the judge articulated specific grounds for dismissal of the misdemeanor charge, had preclusive effect in two felony charges that arose from the same course of conduct. The misdemeanor charge was part and parcel of the same incident and the same alleged course of criminal conduct as the charged murder and attempted murder. All three charges required proof of the same issue of ultimate fact: that the defendant fired a weapon at a vehicle in a parking lot outside a nightclub on a specific evening. The district court’s finding that the evidence was insufficient to prove the identity of the shooter was a determination of that fact – which was applicable to all three charges. Upon the entry of a final judgment of acquittal on the misdemeanor, the Commonwealth was precluded from trying the defendant on any other charge for which that specific fact was necessary to prove as an element of the crime. In this case when the Commonwealth obtained felony convictions that relied on that specific fact, it put this defendant twice in jeopardy for the same offense and violated his rights under the Fifth Amendment. The judgment of the Court of Appeals reversing the judgments of conviction and dismissing the felony indictments is affirmed. The case is remanded to the Court of Appeals with directions to remand to the circuit court for the limited purpose identified in the Court of Appeals’ opinion.

141706 In re: Woodley 10/29/2015 In a case involving the wrongful death of a child in which the jury made awards to the parents and siblings of the decedent, the circuit court erred in ordering that the awards to the minors be held by the clerk of court until they reach the age of majority, rejecting irrevocable trusts proposed by the parents, to be professionally managed under appointment of a disinterested and experienced officer of a well-recognized institution to serve as trustee, under trust instruments that expressly preclude any interference by the parents, and providing for a gradual payout of the trust assets throughout the early years of their sons’ adult lives. A trial court presiding over a wrongful death award has no authority to disregard the statutory command of Code § 8.01-54(C) directing that the award “shall be paid” to the personal representatives for distribution to the beneficiaries awarded recovery in the verdict. The judgment is reversed and final judgment is entered ordering the payment of the awards to the personal representatives.

141737 Bowman v. Commonwealth 10/29/2015 In a prosecution for construction fraud, Code § 18.2-200.1 requires proof that a certified letter to the contractor made an unqualified demand for the return of the funds advanced. The evidence adduced at trial by the Commonwealth in this case was insufficient to prove that that the contractor received a statutorily compliant letter demanding a return of the advance of money he had previously received from the homeowner. The conviction is reversed.

141890 Fuentes v. Clarke 10/29/2015 In an appeal from denial of an application for a writ of habeas corpus, it is held that the petitioner, a lawful permanent resident of the United States, was correctly advised by her counsel in conjunction with her prior plea of guilty to a charge of grand larceny in violation of Code § 18.2-95 that her conviction would likely result in her deportation, unless she found an exemption within the immigration system. The attorney had informed petitioner that he was not an immigration attorney and advised her to consult one, but his deportation advice was correct regardless of the lawfulness or unlawfulness of her presence in the United States. On the facts of this case, her counsel’s performance in the grand larceny prosecution satisfied the constitutional standard of reasonableness, and the petitioner thus did not receive ineffective assistance of counsel when advised about the plea agreement to the charge of grand larceny, a crime involving moral turpitude rendering her deportable under 8 U.S.C. § 1227(a)(2)(A)(i). The judgment of the circuit court denying the application for a writ of habeas corpus is affirmed.

141206 Evans v. Commonwealth 09/17/2015 In this criminal case, in which the defendant entered a conditional guilty plea after the trial court denied his motion to suppress claiming that police officers unlawfully entered his apartment and seized his weapons and drugs based upon a strong odor of marijuana emanating from within that apartment, the officers did not violate the Fourth Amendment. Both probable cause and exigent circumstances justified the warrantless entry by the police officers into the defendant’s apartment to thwart the objectively reasonable possibility that evidence would be destroyed, discarded, or hidden if they did not take immediate action. The trial court did not err in denying defendant’s motion to suppress, and the Court of Appeals did not err in denying his petition for appeal. The judgment is affirmed.

141358 Bratton v. Selective Insurance Co. 09/17/2015 In declaratory judgment actions contesting the scope of automobile liability coverages under various policies for a decedent who worked as a paving company employee driving a dump truck to a highway site at night, who got out of his truck and moved nine feet to the rear of his truck in a 30-second period before being struck and killed as a result of two drunk drivers crashing into a highway work site, the decedent was (1) “getting out of” the dump truck he was operating and (2) “using” a nearby company pickup truck as a safety vehicle, as those terms are used in a motor vehicle insurance policy to establish insurance coverage. He was therefore “occupying” both of these “covered auto[s]” at the time of the accident and, thus, under the independent coverages set up under the policy, plaintiff is entitled to proceeds for both the dump truck and the company pickup truck. Plaintiff is also entitled to $100,000 in proceeds under the decedent’s personal motor vehicle insurance policy with another carrier. The judgment is reversed and the case is remanded to the circuit court for further proceedings consistent with this opinion.

141536 Allstate v. Ploutis 09/17/2015 The circuit court erred in applying limitations “tolling” based upon a prior nonsuit of an action against an insurer for breach of contract under a homeowner’s insurance policy. The policy’s two year contractual period in which suit may be brought is not a “statute of limitations” subject to tolling under the nonsuit statute provisions of Code § 8.01-229(E)(3), and the action filed after a prior nonsuit was not commenced within two years from the date of the loss. Hence, a demurrer should have been granted. The judgment is reversed and final judgment entered in favor of the insurer.

141541 Lee v. Spoden 09/17/2015 In litigation between former spouses, the ex-wife’s prior contempt proceeding barred most of the claims in the present contract action under the doctrine of res judicata and the circuit court erred in ruling otherwise. It also erred in excluding evidence of prior rulings in the contempt proceeding relevant to the issue of bad faith in the present contract action. Because leave to amend the plaintiff’s ad damnum clause was granted at trial, that ruling not appealed, and the jury’s award did not exceed the amount stated in the amended ad damnum, there was no error in the trial court’s refusal to set the verdict aside on the grounds that it exceeded the amount sought in the complaint.

141562 REVI, LLC v. Chicago Title Insurance Co. 09/17/2015 In an action alleging that a title insurer breached its obligations under a title insurance policy, and acted in bad faith, in which the plaintiff sought damages and an award of attorney’s fees and costs pursuant to Code § 38.2-209, the circuit court did not err in vacating a jury award of fees and costs, engaging in de novo review of the evidence, and deciding the entitlement to such recovery as a matter for the court. The word “court,” as used in Code § 38.2-209(A), means “judge.” A trial judge, not a jury, must determine whether an insurer has either denied coverage or failed or refused to make payment to the insured under the policy in bad faith, warranting an award of attorney’s fees to the insured, and this statute does not implicate a right to a jury trial under Article I, Section 11 of the Constitution of Virginia. The judgment of the circuit court is affirmed.

141627 Wooten v. Bank of America 09/17/2015 In a lender’s suit for a declaration that it holds a trust lien against the entire fee simple interest of a divorced couple in certain real property, the circuit court erred in entering summary judgment against the former wife based on the doctrine of judicial estoppel. Because the former wife made no affirmative, inconsistent representation to the divorce court, judicial estoppel is inapplicable as a matter of law in this case. The judgment declaring that the lender holds a valid first deed of trust lien against the entire fee simple interest of both former spouses is reversed, and the case is remanded to the circuit court for further proceedings.

141780 Department of Corrections v. Surovell 09/17/2015 Under the Virginia Freedom of Information Act, Code § 2.2-3705.2(6) provides that certain records related to public safety are excluded from disclosure to the extent their production would jeopardize security of a governmental facility or the safety of persons using the facility. In a mandamus proceeding to review the refusal of the Virginia Department of Corrections to produce certain documents pertaining to various aspects of executions conducted in Virginia, the circuit court was required to give substantial weight to the agency’s evidence of security concerns, and this standard should have been applied with respect to several contested documents. Two “execution manuals” sought contain security protocols exempt from disclosure under the Code § 2.2-3705.2(6). This statute does not refer to production of “portions” of records, and therefore an agency is not required to redact an exempt document in that category that may also contain non-exempt material. The judgment of the circuit court is reversed and, with respect to several documents, the matter is remanded to the circuit court for further proceedings in accord with this opinion.

141387 Commonwealth v. Swann (ORDER) 08/28/2015 The judgment of the Court of Appeals, reversing convictions for abduction, robbery, and statutory burglary, is affirmed on non-constitutional grounds. While the prosecution may introduce evidence of an anonymous “tip” received by the police for the purpose of showing the reason police officers pursued a particular individual as part of a criminal investigation, in this case the tip received by police through a "Crime Solvers" organization was used at trial – not to explain later police investigative steps – as evidence of the defendant's guilt. The trial court abused its discretion in admitting the detective’s disputed testimony, as it plainly constituted inadmissible hearsay. Defense counsel's questioning of a police witness about tips implicating other individuals did not "open the door" to substantive use of the tip regarding this defendant. The error in permitting this proof was not harmless under non-constitutional principles. Upon review of the entire record, it cannot be said with fair assurance that the jury was not substantially influenced by the erroneous admission into evidence of the substance of the tip implicating the defendant. That portion of the judgment of the Court of Appeals holding that the defendant’s constitutional rights were violated is vacated. That part of the Court of Appeals' judgment reversing the convictions and remanding the case for retrial if the Commonwealth be so advised is affirmed.

150621 Burns v. Sullivan (Injunction Appeal) 06/26/2015 The Court of Appeals erred in dismissing a petition for review of an injunction ruling as untimely under Code § 8.01-626 when – on the 15th day after the ruling below – it was delivered to a commercial carrier, expense pre-paid, for next-day delivery to the Clerk's Office for the Court of Appeals, but not actually delivered until four days later. For purposes of Code § 8.01-626, a petition for review is deemed to have been presented when it has been filed with the Clerk's Office of the Court of Appeals. Rule 5A:3(d) provides that any document required to be filed with the clerk of the Court shall be deemed to be timely filed if (1) it is transmitted expense pre-paid to the clerk of this Court by a third-party commercial carrier for next-day delivery, and (2) if the official receipt therefor be exhibited upon demand of the clerk or any party and it shows such transmission or mailing within the prescribed time limits. Thus, the petition for review in this case was timely filed with the Court of Appeals. The judgment of the Court of Appeals dismissing the petition as untimely is reversed and the matter is remanded for a decision on the merits of the petition for review.

140892 Spectra-4, LLP v. Uniwest Commercial Realty 06/04/2015 In litigation between two limited partnerships that own and lease adjacent commercial buildings and a company that provided management services for both buildings for 12 years after expiration of prior written contracts with a different management company, two separate implied-in-fact contracts existed which encompassed specific portions of previously expired express contracts executed by a different set of parties. However, these implied-in-fact contracts did not include terms and conditions permitting the management company to withdraw premature termination fees or copying charges from the operating accounts. The judgment below is reversed and the litigation is remanded to the circuit court for further proceedings consistent with this opinion.

140972 Marble Technologies, Inc. v. Mallon 06/04/2015 In a suit by landowners concerning the continued existence of an express easement granted along waterfront properties in 1936 by deed and an accompanying map showing metes and bounds of land that is now submerged under the Chesapeake Bay, the circuit court did not err in proceeding with the parties before it, since the necessary party doctrine does not implicate subject matter jurisdiction and there were numerous and varied parties added to the action, multiple opportunities for the litigants to add parties, and no claim that any of the allegedly missing parties were indispensable. The deed in this case was unambiguous and the annexed map designated the easement location with numerical point references, a drawing of its entire length and width, and the express legend that the easement road ran “along present mean high water.” Because the deed and map are unambiguous, there was no need for the circuit court to review evidence beyond the documents themselves to interpret them, and it erred in considering parol evidence. The easement never moved from the mean high water mark as it existed in 1936. The beach has eroded in the meantime, and the land where the easement was once located is now under the Chesapeake Bay and cannot serve as a road. Thus, the express easement created by the 1936 deed has been extinguished. The judgment of the circuit court finding that the plaintiff landowners have a variable express easement that moves with the mean high water line is reversed, and final judgment is entered on this appeal in favor of the defendants.

140978 Deutsche Bank v. Arrington 06/04/2015 Code § 55-52, which codifies the doctrine of after-acquired title, only applies between the parties to a deed and does not affect the rights of third parties or influence the relative priority of their interests. Code § 55-96(A) governs questions of priority between deeds, and an individual who obtains a deed of trust pursuant to a court order to secure the payment of court-ordered obligations is a lien creditor for purposes of Code § 55-96(A). It is also held that a deed of trust recorded outside a lien creditor's chain of title is not "duly admitted to record," and therefore is void as to such lien creditor. The judgment of the circuit court is affirmed.

141085 Alexandria Redev. & Housing Auth. v. Walker 06/04/2015 In ruling on a complaint alleging that plaintiff had been improperly discharged by a housing authority, the circuit court erred in applying Code § 15.2-1507 and in concluding that plaintiff was entitled to have her claims arbitrated under the authority’s grievance procedure. The judgment is reversed and final judgment is entered for the authority.

141096 Cosby v. Clem (ORDER) 06/04/2015 In personal injury litigation arising from a rear-end automobile collision, which was tried three times in the circuit court, the trial judge erred in setting aside the first verdict in the amount of $9,000. When reasonably fair-minded persons may differ as to the conclusions of fact to be drawn from the evidence, or if the conclusion is dependent upon the weight to be given the testimony, then such evidence is controverted, and the jury's verdict cannot be disturbed either by the circuit court or this Court. Where an impartial jury properly instructed has determined the issue of damages in a personal injury case, the verdict should not be disturbed if it is supported by a logical interpretation of the factual issues. In this case, based on the evidence, the jury was entitled to conclude that plaintiff failed to prove that the spinal cord stimulator implanted in her back malfunctioned as a result of the defendant’s negligence and it could decline to award her damages related to the treatment associated with that medical device. Because plaintiff’s medical expenses related primarily to the treatment and surgery associated with her stimulator, it cannot be said that the verdict of $9,000 was based upon an unreasonable interpretation of the evidence, which was susceptible to different findings. Under these circumstances, the trial court should not have set aside the first verdict. The judgment is reversed, the jury verdict returned in the first trial is reinstated, and final judgment is entered on that verdict.

141105 Cain v. Lee 06/04/2015 In a personal injury action arising from a rear-end vehicular collision in which the defendant admitted liability, the circuit did not err in excluding evidence of the defendant’s post-accident conduct, but the court erred in giving an instruction about the disfavored status of punitive damage claims that was crafted based upon statements in published Virginia case law. The judgment is reversed and remanded for further proceedings consistent with this opinion.

141116 Pendleton v. Newsome 06/04/2015 In a defamation action, the circuit court erred in sustaining a demurrer and dismissing the complaint without leave to amend. Whether a claim for defamation by inference, implication or insinuation, defamation actions may proceed in Virginia only upon statements which may actually defame a plaintiff, and in this case it is clear that any innuendo proceeding from the defendants' statements about the death of a child was aimed directly at the mother and at no other person. The statements were published, and were capable of conveying the defamatory innuendo that the plaintiff bore responsibility for her child's death. Assuming the truth of all the facts properly pled, and giving her the benefit of all facts implied and fairly and justly inferred from them, in the context set forth in the complaint the words ascribed to the defendants, given their plain meaning, are reasonably capable of conveying the defamatory innuendo of which the plaintiff complains. Because the circuit court erred in sustaining the demurrer, the judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

141159 Edmonds v. Edmonds 06/04/2015 In a widow’s "Complaint to Establish Copies of the Will and Trust Where Originals Cannot Be Located," the trial court did not err when it ordered a photocopy of a will to be probated. The proponent of a missing will is not required to specifically prove what became of the missing will, but is required to prove, by clear and convincing evidence, that the testator did not destroy the will with the intention of revoking it. Here, it is clear from the transcript and the final order that the trial court applied the proper legal standard recognizing that, because the will was traced to decedent’s possession but was not located at his death, the presumption of revocation applied, but that the presumption could be overcome by clear and convincing evidence that the will was not revoked by the defendant. The factual record here showed that decedent was unequivocal in all of his statements concerning his intent that his wife and daughter be the objects of his bounty, and that he specifically did not intend to leave anything to his son by a former marriage. There was also no evidence in the record of anything that might have changed the testator’s mind. Viewed in the light most favorable to the plaintiff widow, the evidence was sufficient to support the trial court's finding that she had rebutted the presumption of revocation by clear and convincing evidence, and that the original will was not missing because the testator had purposefully destroyed it with the intention of revoking it. The judgment of the trial court admitting the photocopy of the 2002 will to probate is affirmed.

141195 Birchwood-Manassas Assocs. v. Birchwood (ORDER) 06/04/2015 In an action for breach of contract, unjust enrichment and imposition of constructive trusts, including allegations of breach of the fiduciary duties of loyalty and care by corporate managers, the circuit court did not err in granting the defendants’ plea in bar of the statute of limitations. The parties agree that a three-year limitation period was applicable to the claims, and that the period had expired. The plaintiff corporation had the burden to prove its entitlement to tolling of the statute of limitations, and neither irrevocable conflict of interest nor breach of fiduciary duty is listed within the Code of Virginia as tolling of the statute of limitations. While equity will toll a statute of limitations under certain extraordinary circumstances, this plaintiff does not allege any fraud or failure to disclose the transactions on the part of any of its managers or the defendants, nor does it allege any affirmative acts that hindered the assertion of its claims. The conduct alleged was not concealed from or unknown to plaintiff, and even if its managers did not bring an action against the defendants before the statute of limitations ran, other members of the entity could have done so. As a matter of law, an action could have been filed to pursue collection of the loans within the statute of limitations. Equity aids the vigilant – not those who sleep on their rights – and plaintiff is not entitled to equitable relief. The circuit court did not err in granting the defendants’ plea in bar and its judgment is affirmed.

141239 Desetti v. Chester 06/04/2015 In a legal malpractice action against criminal defense counsel, the plaintiff has the burden of pleading and proving that the pecuniary injury for which recovery is sought was proximately caused by the attorney's negligence and was not proximately caused by the malpractice plaintiff’s own criminal actions, and here the circuit court did not err in sustaining the demurrers of the defendant attorney and law firm. Where it is alleged that an attorney’s malpractice resulted in a more severe conviction or longer sentence than necessary, the complaint must allege that the pecuniary injuries alleged would not have been proximately caused by a less severe conviction or lesser sentence. In such cases, the analysis must consider whether the injuries pled were proximately caused by legal malpractice rather than the legal malpractice plaintiff's own criminal actions. In this case, the plaintiff failed to satisfy her burden of pleading that the pecuniary damages she seeks to recover were proximately caused by her attorney's legal malpractice, rather than being proximately caused by her criminal actions. The circuit court's judgment sustaining the defendants’ demurrer is affirmed.

141248 Ballagh v. Fauber Enterprises 06/04/2015 In an action alleging violations of the Virginia Consumer Protection Act, Code §§59.1-196 to -207, the circuit court erred in giving jury instructions requiring that the plaintiff prove the required elements of her claims by clear and convincing evidence. A preponderance of the evidence standard applies to claims brought pursuant to the Act. The judgment is reversed and the case is remanded for further proceedings.

141277 Evans v. Evans 06/04/2015 A husband's unilateral execution of a deed purporting to convey to his wife all of his interest in certain real property held by them as tenants by the entirety was sufficient to establish his intent to divest himself of his tenancy by the entirety ownership in that property in favor of a fee simple ownership thereof in the wife. The wife's later execution of a deed, trust, and will addressing her ownership of that real property as her separate property was clear evidence of her affirmative intent to accept the prior deed from her husband and, thereby, her consent to the dissolution of the tenancy by the entirety to create her fee simple ownership of that property. In a declaratory judgment proceeding, the circuit court erred in finding that the deed executed by the husband was not valid to vest fee simple title in his wife. It follows that the later deed by the wife was a valid transfer of her fee simple interest in the real property to her trust. The judgment of the circuit court is reversed and final judgment is entered confirming that the property is the property of the trust.

141297 Collett v. Cordovana 06/04/2015 In a plaintiff landowner’s action alleging that the defendant neighboring property owners were liable in trespass, nuisance, negligence per se and ordinary negligence for directing large quantities of water and pollutants onto plaintiff’s property, the circuit court did not err in sustaining the defendants’ demurrers. Under Virginia's modified common law rule, surface water is treated as a common enemy, and each landowner may fight it off as best he can, provided a landowner does so reasonably and in good faith and not wantonly, unnecessarily, or carelessly. Plaintiff failed to plead viable claims under this standard for trespass, nuisance, and negligence. Nor do the ordinances plaintiff relies upon contain a provision for a private right of action. She is not a member of the class of person these ordinances were designed to protect, and none of her assertions plead a public nuisance. Thus, the complaint also failed to state a valid cause of action for negligence per se. The judgment is sustained.

141365 Egan v. Butler 06/04/2015 In a suit by a former employee on claims for malicious prosecution and defamation, the circuit court erred in excluding evidence probative of plaintiff’s future lost income, and that error may have affected the jury's determination of the compensatory damages claim against the individual supervisor defendant and the employer defendant. The judgment is reversed and the case is remanded for a new trial on compensatory damages against both defendants. The circuit court also erred in denying the employer’s motion to strike the punitive damages claim against it. That portion of the circuit court's judgment is reversed and final judgment is entered in its favor pertaining to punitive damages claims against the employer. These holdings do not disturb the circuit court's affirmance of the jury's finding of the defendants’ liability, or its entry of the punitive damages awards against the individual defendant; those issues are not subject to retrial on remand. The judgment is reversed and remanded in part, and final judgment is entered in part. Combined case with Record No. 141372

141372 Abilene Motor Express Co. v. Butler 06/04/2015 In a suit by a former employee on claims for malicious prosecution and defamation, the circuit court erred in excluding evidence probative of plaintiff’s future lost income, and that error may have affected the jury's determination of the compensatory damages claim against the individual supervisor defendant and the employer defendant. The judgment is reversed and the case is remanded for a new trial on compensatory damages against both defendants. The circuit court also erred in denying the employer’s motion to strike the punitive damages claim against it. That portion of the circuit court's judgment is reversed and final judgment is entered in its favor pertaining to punitive damages claims against the employer. These holdings do not disturb the circuit court's affirmance of the jury's finding of the defendants’ liability, or its entry of the punitive damages awards against the individual defendant; those issues are not subject to retrial on remand. The judgment is reversed and remanded in part, and final judgment is entered in part. Combined case with Record No. 141365

141480 Schaecher v. Bouffault 06/04/2015 In a case by a landowner alleging that a neighbor, who also served as a member of the local planning commission, is liable for defamation and tortious interference with contract for sending numerous email communications relating to plaintiff’s application for a special use permit to operate a dog kennel on her property, the circuit court did not err in sustaining a demurrer to several claims based on communications that did not contain a defamatory statement, as well as a demurrer regarding a defamation claim by a corporate plaintiff. With regard to an email charging that the individual plaintiff "is lying and manipulating facts," the basis for the writer’s rationale was fully disclosed, and the two persons to which it was sent would have perceived the accusation as pure opinion of the writer based upon her subjective understanding of the underlying scenario and not upon an implied factual predicate of which they were unaware. Thus, in the absence of a claim that the underlying facts stated in that email were themselves false and defamatory, the statement was purely the defendant's subjective analysis. It is protected by the First Amendment and not actionable. Dismissal of the corporate plaintiff's claim for tortious interference with contractual relations is affirmed for lack of any allegation that the contract at issue was terminated, or that it became more expensive or burdensome for that plaintiff. The judgment is affirmed.

140242 Yelp, Inc. v. Hadeed Carpet Cleaning 04/16/2015 Ancillary to a Virginia defamation action, a circuit court was not empowered to enforce a subpoena duces tecum requiring a California Internet-based social networking and consumer rating company to produce documents in the Commonwealth identifying three individuals who filed adverse reviews of a Virginia carpet cleaning company with the ratings company using pseudonyms. Although the General Assembly has expressly authorized Virginia courts to exercise personal jurisdiction over nonresident parties, it has not expressly authorized Virginia courts to compel nonresident non-parties to produce documents located outside of Virginia. Subpoena power was not conferred upon the circuit court by the Internet company’s registering to conduct business in Virginia or designating a registered agent for service of process. The judgment of the Court of Appeals and the contempt order of the circuit court are vacated and the case is remanded for further proceedings consistent with this opinion.

140275 Bartolomucci v. Federal Ins. Co. 04/16/2015 In a declaratory judgment suit concerning the scope and application of an insurance policy providing coverage for a partner's vehicle only when that vehicle is "used in" a law firm's business or personal affairs, the partner’s use of his vehicle to drive from home to work did not fall within the coverage as stated in the policy. While the trial court should overrule a motion to strike the evidence where there is any doubt on the question, based on this record, no evidence supported the claim that the law firm’s policy covered the partner’s vehicle at the time of the collision in this case, and it was conclusively apparent that he had proven no cause of action against the law firm’s insurer. The circuit court should have granted the motion to strike made at the conclusion of the partner’s case-in-chief. As the jury finding was contrary to the evidence, the court properly set it aside and entered final judgment in favor of the insurer pursuant to Code § 8.01-680. The judgment is affirmed. Combined case with Record No. 140297

140297 Vo v. Federal Ins. Co. 04/16/2015 In a declaratory judgment suit concerning the scope and application of an insurance policy providing coverage for a partner's vehicle only when that vehicle is "used in" a law firm's business or personal affairs, the partner’s use of his vehicle to drive from home to work did not fall within the coverage as stated in the policy. While the trial court should overrule a motion to strike the evidence where there is any doubt on the question, based on this record, no evidence supported the claim that the law firm’s policy covered the partner’s vehicle at the time of the collision in this case, and it was conclusively apparent that he had proven no cause of action against the law firm’s insurer. The circuit court should have granted the motion to strike made at the conclusion of the partner’s case-in-chief. As the jury finding was contrary to the evidence, the court properly set it aside and entered final judgment in favor of the insurer pursuant to Code § 8.01-680. The judgment is affirmed. Combined case with Record No. 140275

140462 BASF Corp. v. SCC 04/16/2015 In consolidated appeals of right by a Virginia county, environmental groups and a corporation owning affected land, challenging orders of the State Corporation Commission issuing certificates of public convenience and necessity to an electric utility for construction of electric transmission facilities, including a new overhead transmission line that will cross the James River, and a new associated switching station that will be located in the county, no error is found in the Commission’s interpretations of Code § 56-46.1(A) and (B). Considering the record, it cannot be said that the Commission erred in concluding that the proposed route across the James River reasonably minimizes the adverse impacts of the transmission line on the scenic assets, historic districts and environment of the affected area. However, under the plain language of Code § 56-46.1(F), a switching station is not a "transmission line." This provision does not reflect a manifest intent on the part of the General Assembly to exempt switching stations from local zoning ordinances, and the Commission erred in ruling otherwise. The objecting corporation’s appeal is affirmed, while the county and environmental group appellant’s appeals are affirmed in part, reversed in part, and the case is remanded. Combined case with Record Nos. 141009, 141201, 140470, and 141010

140470 James City County v. SCC 04/16/2015 In consolidated appeals of right by a Virginia county, environmental groups and a corporation owning affected land, challenging orders of the State Corporation Commission issuing certificates of public convenience and necessity to an electric utility for construction of electric transmission facilities, including a new overhead transmission line that will cross the James River, and a new associated switching station that will be located in the county, no error is found in the Commission’s interpretations of Code § 56-46.1(A) and (B). Considering the record, it cannot be said that the Commission erred in concluding that the proposed route across the James River reasonably minimizes the adverse impacts of the transmission line on the scenic assets, historic districts and environment of the affected area. However, under the plain language of Code § 56-46.1(F), a switching station is not a "transmission line." This provision does not reflect a manifest intent on the part of the General Assembly to exempt switching stations from local zoning ordinances, and the Commission erred in ruling otherwise. The objecting corporation’s appeal is affirmed, while the county and environmental group appellant’s appeals are affirmed in part, reversed in part, and the case is remanded. Combined case with Record Nos. 140462, 141009, 141201, and 141010

140670 Howard v. Ball 04/16/2015 In an action pursuant to seeking to establish the boundary lines of two contiguous parcels of property, the circuit court erred in allowing the defendant to rely on the defense of adverse possession at trial without having previously pled that defense. The judgment is reversed and the case is remanded.

140747 Walker v. Commonwealth 04/16/2015 In a drug distribution prosecution, the Court of Appeals erred in concluding that four separate charges of selling, giving, or distributing a controlled substance were permissibly joined for trial under Rules 3A:6(b) and 3A:10(c). The judgment is reversed, defendants' convictions are vacated, and the case is remanded for further proceedings consistent with this opinion, if the Commonwealth be so advised.

140748 Anheuser-Busch Co. v. Cantrell (ORDER) 04/16/2015 In mesothelioma litigation brought against numerous defendants who owned premises where plaintiff had previously worked and allegedly suffered exposure to asbestos, the circuit court erred in granting plaintiff’s motion for nonsuit after the parties had completed their briefing and argument on demurrers. An action is submitted for decision within the meaning of Code § 8.01-380(A) when the case is in the hands of the trial judge for final disposition, either on a dispositive motion or upon the merits, and a demurrer is a dispositive motion for the purpose of precluding a nonsuit under this statute. In this case, neither the parties nor the court anticipated any further proceedings on the demurrers which, therefore, were committed to the court for its ruling. Thus, the case was in the hands of the trial judge for final disposition at the time of plaintiff’s nonsuit motion. The judgment of the circuit court is reversed and the case is remanded for further proceedings consistent with this order. Combined case with Record No. 140749

140749 Newport News Shipbuilding v. Cantrell (ORDER) 04/16/2015 In mesothelioma litigation brought against numerous defendants who owned premises where plaintiff had previously worked and allegedly suffered exposure to asbestos, the circuit court erred in granting plaintiff’s motion for nonsuit after the parties had completed their briefing and argument on demurrers. An action is submitted for decision within the meaning of Code § 8.01-380(A) when the case is in the hands of the trial judge for final disposition, either on a dispositive motion or upon the merits, and a demurrer is a dispositive motion for the purpose of precluding a nonsuit under this statute. In this case, neither the parties nor the court anticipated any further proceedings on the demurrers which, therefore, were committed to the court for its ruling. Thus, the case was in the hands of the trial judge for final disposition at the time of plaintiff’s nonsuit motion. The judgment of the circuit court is reversed and the case is remanded for further proceedings consistent with this order. Combined case with Record No. 140748

140805 Sauder v. Ferguson 04/16/2015 The circuit court did not abuse its discretion in denying a plaintiff’s motion to set aside a default judgment previously entered in her favor, based upon her argument that service was not validly obtained against the defendant. The judgment is affirmed.

140837 Kelley v. Commonwealth 04/16/2015 The evidence was sufficient to support convictions for distributing child pornography in violation of Code § 18.2-374.1:1 where the defendant chose to download “peer-to-peer file-sharing software” to his computer and then downloaded files depicting explicit sexual material involving minors, placing the files in the program’s “sharing” folder on his laptop computer, without limiting access by other users of the software, thereby making them available to others. Reasonable jurors could conclude that the defendant, by his own volition, shared the child pornography files with an investigating law enforcement officer. Accordingly, the evidence was sufficient for the jury to find that that the defendant reproduced by computer, sold, gave away, electronically transmitted or distributed child pornography in violation of the statute. The judgment of the Court of Appeals upholding the convictions is affirmed.

140890 Wagoner v. Commonwealth 04/16/2015 In deciding a motion to set aside the verdict, a court only looks to whether the jury’s verdict is plainly wrong or without evidence to support it, as provided in Code § 8.01-680. In the present case, the defendant (owner of a residential home) was convicted of felony abuse or neglect of an incapacitated adult in violation of Code § 18.2–369(B) and the sole question is whether there was sufficient evidence of proximate cause to support the jury’s verdict. Upon a review of the evidence, under the correct standard of review, there was sufficient evidence from which the jury could reasonably find that defendant actions were a proximate cause of the victim’s death. The judgment of the Court of Appeals, upholding the conviction, is affirmed.

140929 Ramsey v. Commissioner of Highways 04/16/2015 In a condemnation proceeding, the circuit court erred in precluding testimony by a landowner about a valuation of the property initially reported to the owners that was almost twice the amount a successor appraiser for the Government testified to at trial. The trial court erred in finding that the Commissioner’s initial statement valuing the property was inadmissible as an offer to settle. At the time such statements are provided, there is no disputed claim, and hence no settlement negotiations of a disputed claim. If statements of just compensation are provided a prospective condemnee, they are admissible at a subsequent compensation trial as an admission, once it becomes known that at trial the Government is valuing the property at a lower figure. The judgment is reversed and the case is remanded for further proceedings.

141009 BASF Corp. v. SCC 04/16/2015 In consolidated appeals of right by a Virginia county, environmental groups and a corporation owning affected land, challenging orders of the State Corporation Commission issuing certificates of public convenience and necessity to an electric utility for construction of electric transmission facilities, including a new overhead transmission line that will cross the James River, and a new associated switching station that will be located in the county, no error is found in the Commission’s interpretations of Code § 56-46.1(A) and (B). Considering the record, it cannot be said that the Commission erred in concluding that the proposed route across the James River reasonably minimizes the adverse impacts of the transmission line on the scenic assets, historic districts and environment of the affected area. However, under the plain language of Code § 56-46.1(F), a switching station is not a "transmission line." This provision does not reflect a manifest intent on the part of the General Assembly to exempt switching stations from local zoning ordinances, and the Commission erred in ruling otherwise. The objecting corporation’s appeal is affirmed, while the county and environmental group appellant’s appeals are affirmed in part, reversed in part, and the case is remanded. Combined case with Record Nos. 140462, 141201, 140470, and 141010

141010 James City County v. SCC 04/16/2015 In consolidated appeals of right by a Virginia county, environmental groups and a corporation owning affected land, challenging orders of the State Corporation Commission issuing certificates of public convenience and necessity to an electric utility for construction of electric transmission facilities, including a new overhead transmission line that will cross the James River, and a new associated switching station that will be located in the county, no error is found in the Commission’s interpretations of Code § 56-46.1(A) and (B). Considering the record, it cannot be said that the Commission erred in concluding that the proposed route across the James River reasonably minimizes the adverse impacts of the transmission line on the scenic assets, historic districts and environment of the affected area. However, under the plain language of Code § 56-46.1(F), a switching station is not a "transmission line." This provision does not reflect a manifest intent on the part of the General Assembly to exempt switching stations from local zoning ordinances, and the Commission erred in ruling otherwise. The objecting corporation’s appeal is affirmed, while the county and environmental group appellant’s appeals are affirmed in part, reversed in part, and the case is remanded. Combined case with Record Nos. 140462, 141009, 141201, and 140470

141046 Williams v. Commonwealth 04/16/2015 In a drug possession and distribution prosecution, the Court of Appeals erred by inferring that the trial court took judicial notice that the situs of the offense was within its territorial jurisdiction. The record does not clearly reflect that the trial court took judicial notice of the situs of the offense and, absent the taking of such judicial notice, the evidence was insufficient to prove venue. The judgment of the Court of Appeals is reversed. Because the error did not stem from evidentiary insufficiency with respect to the guilt or innocence of the defendant, the case is remanded for a new trial, if the Commonwealth be so advised.

141080 Ramos v. Wells Fargo Bank, NA (ORDER) 04/16/2015 In a suit by homeowners alleging that the defendant lender wrongfully initiated foreclosure on their residence, violating Department of Housing and Urban Development regulations including 24 C.F.R § 203.604 by failing to conduct a face-to-face meeting with them before initiating foreclosure, plaintiffs failed to set forth a single factual allegation to show any injury or damage caused by the lender’s purported breach of its obligations, thus failing to establish an essential element of a breach of contract claim. In addition, whether a closing had been held does not affect the completion of the transaction for rescission purposes. The plaintiffs’ second amended complaint did not satisfy the pleading requirement of alleging facts upon which relief can be granted, and was thus insufficient to withstand a demurrer. The circuit court's judgment sustaining the lender's demurrer and dismissing the complaint with prejudice is affirmed.

141130 In re: Robert Floyd Brown, Jr. 04/16/2015 In an appeal governed by substantive or vested rights under a former version of Code § 8.01-217, the trial court abused its discretion in denying an application for name change filed by a federal prisoner diagnosed with Gender Identity Disorder who is transitioning from the male to the female gender. The judgment is reversed and the case is remanded.

141201 BASF Corp. v. SCC 04/16/2015 In consolidated appeals of right by a Virginia county, environmental groups and a corporation owning affected land, challenging orders of the State Corporation Commission issuing certificates of public convenience and necessity to an electric utility for construction of electric transmission facilities, including a new overhead transmission line that will cross the James River, and a new associated switching station that will be located in the county, no error is found in the Commission’s interpretations of Code § 56-46.1(A) and (B). Considering the record, it cannot be said that the Commission erred in concluding that the proposed route across the James River reasonably minimizes the adverse impacts of the transmission line on the scenic assets, historic districts and environment of the affected area. However, under the plain language of Code § 56-46.1(F), a switching station is not a "transmission line." This provision does not reflect a manifest intent on the part of the General Assembly to exempt switching stations from local zoning ordinances, and the Commission erred in ruling otherwise. The objecting corporation’s appeal is affirmed, while the county and environmental group appellant’s appeals are affirmed in part, reversed in part, and the case is remanded. Combined case with Record Nos. 140462, 141009, 140470, and 141010

141238 Fitzgerald v. Loudoun County Sheriff's Office 04/16/2015 In a proceeding under the Virginia Freedom of Information Act, to obtain a copy of a suicide note contained in a criminal investigative file opened by a sheriff’s office under its lawful authority to investigate the unexpected and unattended death of a senior United States Air Force official, the sheriff had the discretion, but not the duty, to disclose documents within this file and eventual closure of the file did not change its character. Nor did the suicide note, standing alone, constitute a compilation subject to disclosure under Code § 15.2-1722(B). The judgment of the circuit court denying a writ of mandamus to compel disclosure of this document is affirmed.

141702 Bailey v. Spangler 04/16/2015 In review of certified questions of law submitted by the United States District Court for the Eastern District of Virginia, it is held that the presumption of mine void ownership created by Code § 55-154.2 upon its effective date, July 1, 1981, does not apply to deeds executed before that date, such as the 1887 severance deed in the underlying litigation in this case. The first certified question is answered in the negative, and the second certified question is therefore moot.

131945 Hicks v. Dir., Dep't of Corr. 02/26/2015 In a habeas corpus petition alleging that exculpatory material had been was suppressed, arguments below were not sufficient to alert the habeas court to a claim that the tolling provisions of Code § 8.01-229(D) deferred the running of the period to file a habeas application, but in a claim under Brady v. Maryland failure to disclose exculpatory evidence qualifies as obstruction by a defendant preventing filing of a habeas action, making it error for the court below to conclude that the petition was untimely. On this record, which included the defendant’s confession, the allegedly withheld evidence could not reasonably put the whole case in such a different light that confidence in the guilty verdict is undermined, and petitioner failed to establish that he was prejudiced. Thus, failure to apply the ends of justice exception will not result in a grave injustice. Judgment dismissing the petition is affirmed.

140270 Brown v. Jacobs 02/26/2015 In a wrongful death case, the circuit court did not err in granting a demurrer because the complaint failed to allege a special relationship between an attorney and a private investigator hired by that attorney to serve process, sufficient to create a duty to warn of the danger of possible assault or criminal attack by a third party, and the circuit court did not abuse its discretion in refusing to grant reconsideration or leave to file a further amended complaint. The judgment is affirmed.

140350 Cowser-Griffin v. Griffin (ORDER) 02/26/2015 In an appeal from denial of an ex-wife’s application for entry of a qualified domestic relations order to enforce a property settlement agreement provision, incorporated into the divorce decree, that children of the marriage be named co-beneficiaries under all 401(k) plans which would be distributed upon the death of either party, for the reasons stated in the majority opinion of the Court of Appeals in Griffin v. Griffin, 62 Va. App. 736, 753 S.E.2d 574 (2014), the judgment of that court remanding the action with direction that the qualified domestic relations order be entered, is affirmed.

140414 Toghill v. Commonwealth 02/26/2015 In an appeal by a defendant convicted on charges of Internet solicitation of oral sex with a minor in violation of former Code § 18.2-374.3, under the former sodomy provisions of Code § 18.2-361(A), the applicable statutes were not unconstitutional as applied in this case under controlling constitutional decisions of the United States Supreme Court because statutes making sexual acts with minors criminal offenses are not unconstitutional. This defendant, therefore, lacked standing to make a facial challenge, and the judgment of the Court of Appeals of Virginia affirming the defendant’s convictions and finding the application of former Code § 18.2-361 not unconstitutional, in this instance, is affirmed.

140500 Shevlin Smith v. McLaughlin 02/26/2015 In a legal malpractice claim, the circuit court erred in denying a plea in bar addressing one of the alleged grounds for liability, failure to correctly anticipate a judicial ruling on an unsettled legal issue, and erred in holding that collectibility of a judgment is not probative of legal malpractice damages. Tort damages - including non-pecuniary damages for emotional distress and humiliation - are not recoverable for breach of contract, nor are wrongful incarceration and its attendant non-pecuniary damages. A plaintiff may not request from the jury, in either opening statement or closing, an amount of damages that exceeds plaintiff's ad damnum. Denial of the partial plea in bar and the circuit court's order affirming the jury award are reversed, the award is vacated, and the case is remanded.

140676 Frace v. Johnson (ORDER) 02/26/2015 The circuit court did not err in dismissing a certiorari proceeding to review a board of zoning appeals decision because petitioner failed to timely name the county board of supervisors, a necessary party. Under Code § 15.2-2314, an aggrieved person must timely notice the necessary parties identified by statute. While the 30-day period is not an aspect of the circuit court's subject matter jurisdiction and may be waived, no waiver occurred in the present case. The judgment of the circuit court dismissing the certiorari proceeding is affirmed.

140708 EE Mart F.C., L.L.C. v. Delyon 02/26/2015 In a Virginia litigation that followed a prior nonsuited Virginia action as well as a separate case pending in another state, the circuit court erred in awarding an attorney’s fee sanction under Code § 8.01-271.1 for work done prior to a sanctionable counterclaim that was filed in the present action. The judgment is reversed and the matter is remanded.

140719 Zemene v. Dir., Dep't of Corr. 02/26/2015 In a habeas corpus proceeding, the circuit court applied an incorrect standard for determining whether prejudice resulted from a criminal defense lawyer’s failure to advise his client (the present petitioner) of the adverse collateral consequences on his immigration status for accepting a plea agreement to a charge of petit larceny in violation of Code § 18.2-96. The judgment dismissing the petition for writ of habeas corpus is reversed, and the case is remanded for an evidentiary hearing regarding the factual allegations in the petition, as well as the entry of an appropriate order consistent with the views expressed in this opinion.

140836 Roop v. Whitt 02/26/2015 A Virginia sheriff is a constitutional officer, and sheriff’s deputies, who are employees of the sheriff, are not “local employees” for the purposes of Code § 15.2-1512.4. The circuit court therefore did not err in sustaining the defendant sheriff’s demurrer to a civil action brought by a deputy claiming unlawful retaliation under this statute based on termination of his employment in the sheriff’s office. The judgment dismissing the lawsuit is affirmed.

141455 Shannon v. Commonwealth (ORDER) 02/26/2015 In a Code § 19.2-124 appeal from bail granted in circuit court to a defendant charged with sexual offenses, on the record presented there is no reversible error. A bail decision should articulate its basis sufficiently to enable a reviewing court to make an objective determination that the court setting bail has not abused its discretion. Because the only statement made by the circuit court at the present bond hearing was to fix an amount of bail “under the circumstances of this case,” it cannot be found that the Court of Appeals erred in concluding that the circuit court abused its discretion by not considering a relevant factor which should have been given substantial weight, specifically, the defendant’s status as a registered sex offender. The order appealed from is affirmed.

132028 Powell v. Commonwealth 01/08/2015 In a prosecution for distribution of an imitation Schedule I or II controlled substance, where the defendant actually sold quetiapine, a Schedule VI controlled substance, the product distributed was not a controlled substance subject to abuse as defined by the Drug Control Act, Code § 54.1-3400 et seq., and thus the Commonwealth met its burden of proof under Code § 18.247(B)(ii). An undercover detective’s testimony about the substance supplied by the defendant for $40 was sufficient to permit the trier of fact to find beyond a reasonable doubt that the Commonwealth established that, by appearance and packaging, the substance would likely be mistaken for crack cocaine, and testimony about the verbal and physical conduct of the transaction itself was sufficient to prove that the defendant implied that the substance he was selling to the detective was cocaine. The judgment of the Court of Appeals holding that the evidence was sufficient to establish that the defendant distributed an imitation controlled substance in violation of Code § 18.2-248(A) is affirmed.

140011 City of Danville v. Tate (ORDER) 01/08/2015 The jurisdiction of the Virginia Workers’ Compensation Commission is limited to issues directly or necessarily related to the right of an employee to workers' compensation for a work-related injury. Thus, the Commission had no jurisdiction to decide a dispute in which a city sought recovery of sick leave payments it had made to a retired firefighter - no more than the Commission would have jurisdiction to decide a dispute over any other employment benefit such as annual leave or maternity leave. The circuit court thus erred in holding that the Commission rather than the court had jurisdiction over this case, but it nevertheless reached the right result, as a matter of law, in dismissing the city's complaint. The city did not have authority to recover sick leave pay from the retiree on the basis that he had also received workers' compensation for the same disability period, because the ordinance and regulatory provisions on which the city relied pertain to a distinct type of claim by the city against an employee's workers' compensation payment, but here the city is seeking to recover sick leave payments. For these reasons, the judgment of the circuit court dismissing the city's complaint in this case is affirmed.

140100 Virginia Dep't of Health v. Kepa, Inc. 01/08/2015 The Court of Appeals erred in construing the Virginia Indoor Clean Air Act to exempt from smoking restrictions a retailer of tobacco and tobacco products operating as a hookah bar and café, despite the fact that it also serves food. Code § 15.2-2821 does not exempt the establishment from regulation under Code § 15.2-2825, because it is not exclusively a retail tobacco store. The General Assembly authorized the Virginia Department of Health to regulate smoking in "any restaurant," defined broadly as "any place where food is served," except as permitted by Code § 15.2-2825(A)(1) through (6). The judgment of the Court of Appeals is reversed and final judgment is entered in favor of the Department.

140216 Hyundai Motor Co. v. Duncan 01/08/2015 In a products liability action against a Korean automobile manufacturer brought on behalf of a 17-year-old accident victim and his parents, the circuit court erred in admitting the opinion testimony of the plaintiffs’ designated expert witness, who testified that the location of the side airbag sensor in the vehicle being driven by the minor when he sustained injuries in a single-vehicle accident rendered the vehicle unreasonably dangerous. Expert opinion must be premised upon assumptions that have a sufficient factual basis and take into account all relevant variables. The testimony of the expert in this case that the vehicle was unreasonably dangerous was premised upon an assumption that the vehicle’s side airbag would have deployed to protect the driver if it had been located in a different part of the vehicle, but the witness did no analysis and performed no calculations to support this assumption. Since the plaintiffs relied on this inadmissible testimony to establish that the vehicle was unreasonably dangerous, the defendants are entitled to judgment as a matter of law. The judgment of the circuit court is reversed and final judgment is entered in the automobile manufacturer's favor.

140273 Shifflett v. Commonwealth (ORDER) 01/08/2015 The Court of Appeals of Virginia did not err in ruling that any alleged error by the circuit court in allowing the Commonwealth to elicit the nature of a prior felony conviction during its cross-examination of the defendant as a witness was harmless. While the circuit court did not permit the Commonwealth to mention the crime of subornation of perjury by name, it ruled that the defendant could be asked if he had been convicted of a crime involving moral turpitude, which was described as lying, cheating, or stealing. Unlike a misdemeanor, there is no requirement that it be stated that a felony involves moral turpitude in order for a conviction to be a basis for impeachment of a witness’ credibility. Assuming, without deciding, that the circuit court erred when it allowed the Commonwealth to elicit the additional information allowed into evidence regarding that conviction, that it involved lying, cheating, or stealing, that information did not convey anything more than the mere fact that the defendant is a person of doubtful veracity. It had no prejudicial effect as to his guilt or innocence of sexual battery. The fact that one of his felony convictions involved lying, cheating, or stealing did not in any way suggest to the jury that he might be more inclined to commit a sexual battery. Thus, even if the circuit court erred in allowing the information into evidence, the error was harmless. The judgment of the Court of Appeals upholding the defendant's conviction is affirmed.

140301 Devine, Donald v. Buki 01/08/2015 In a suit by purchasers of a home for rescission of the transaction and related relief, the fact that the trial court found that the selling husband’s wife did not engage in any wrongful conduct in the sale did not mean that it lost equitable jurisdiction to enter relief against the husband. That the sellers owned the property as tenants by the entireties has no effect here. The conceded failure of the husband to disclose certain damage to the house supported the purchasers’ claim for fraud in inducing them to complete the transaction, and thus the trial court did not err in granting rescission. Restitution is limited to the amount of benefit received by the adverse party and here the consequential damages awarded are more akin to compensatory damages, for which plaintiffs had abandoned their claim. In a fraud suit a chancellor has discretion to award attorney’s fees to a defrauded party and there is no showing of abuse of that discretion here. The circuit court erred in awarding prejudgment interest under Code § 8.01-382 because plaintiffs failed to request that remedy in their pleadings. On plaintiffs’ claim of cross-error for failure to award them punitive damages, no abuse of the court’s discretion has been shown. The judgment is affirmed in part and reversed in part, and the case is remanded for further proceedings.

140305 Devine, Nancy v. Buki 01/08/2015 A circuit court’s decision to award equitable relief against a wife in a rescission action relating to a couple’s sale of real property – where there was no evidence of wrongdoing on her part and no basis for an award of equitable relief against her – is reversed. In this companion case to Record No. 140301, no consequential damages were awarded against the wife, and no error was assigned to the failure to award such recovery. None of the relief sought in the plaintiffs' assignments of cross error apply to the wife in this case, and those assignments are dismissed as improvidently granted. The judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

140422 Nielsen Co. v. Board of Arlington County 01/08/2015 The Virginia Tax Commissioner employed a permissible methodology – a payroll percentage calculation – to determine the amount of certain receipts that, pursuant to Code § 58.1-3732(B)(2), may be deducted from the pool of taxable gross receipts upon which a locality may levy a business license tax. The circuit court's reversal of the Tax Commissioner's ruling is reversed, and the matter is remanded for further proceedings consistent with this opinion.

140444 Fisher v. Tails, Inc. 01/08/2015 Virginia law allowed a Virginia corporation to change its state of incorporation to Delaware under Code § 13.1-722.2(B), and its domestication as a Delaware corporation prior to a sale of assets did not entitle minority shareholders to appraisal rights under Code § 13.1-730(A). Once the corporation changed its domicile to the state of Delaware, that state’s law governed the shareholders’ entitlement to appraisal rights, and Delaware law does not provide appraisal rights upon the sale of corporate assets. In addition, even assuming that Virginia corporation law allows consideration of the step transaction doctrine and the substance over form doctrine as articulated by Delaware courts, neither doctrine would change the statutory provisions dictating that Delaware law properly applied in determining whether the minority shareholders were entitled to appraisal rights. Thus, the circuit court did not err in granting the corporation’s demurrer in this case. The judgment in favor of the defendant corporation is affirmed.

140505 CVAS 2, LLC v. City of Fredericksburg 01/08/2015 A circuit court lacked authority to enter a decree of sale of real estate pursuant to a city's suit to collect delinquent real estate taxes and delinquent special assessments under Code §§ 15.2-5158 and 58.1-3965. While the General Assembly has established a comprehensive statutory scheme affording localities, local governing bodies, and community development associations the ability to levy and collect real estate taxes, special taxes, and special assessments owed to a governmental entity by a property owner, including the right to sell the subjct real estate, the governmental authority must act pursuant to, and in compliance with, that statutory scheme in order to bring suit to collect such delinquent obligations. In this case, the city failed to act in compliance with the relevant statutory provisions and, as a result, the city had no basis for relief under those statutes. The decree of sale is vacated and the city’s suit against the property owner is dismissed.

131806 Commonwealth v. Windsor Plaza Condo. Ass'n 12/31/2014 In proceedings under the Virginia Fair Housing Law and the Federal Fair Housing Amendments Act, the Attorney General alleged that a condominium association violated Code § 36-96.3(B)(ii) in failing to make reasonable accommodations necessary to afford a disabled unit owner equal opportunity to use and enjoy his dwelling, and the owner and his wife intervened. The Commonwealth’s assignment claiming error in dismissal of four individual defendants is dismissed for failure to join these parties on appeal. The circuit court’s ruling that evidence on conversion of bicycle storage space into an accessible parking space supported a claim for reasonable modification under Code § 36-96.3(B)(i), rather than a claim for reasonable accommodation under Code § 36-96.3(B)(ii), is affirmed, as is its grant of a motion to strike. It erred in ruling that the condominium’s request for attorney’s fees against the Commonwealth was not barred by sovereign immunity, but the error was harmless since no fees were awarded. Sustaining of the condominium’s plea in bar is affirmed because the statute of limitations had expired when the disabled unit owner and his wife filed their intervening complaint. Claims asserted under Code §§ 36-96.3(A)(8) and (9) and 42 U.S.C. §§ 3604(f)(1), (2) and (3)(B) do not concern continuing violations, and accrued on August 23, 2007; thus, the statutes of limitations in Code § 36-96.18 and 42 U.S.C. § 3613(a)(1)(A) bar those claims. The circuit court did not abuse its discretion in refusing to award the condominium complex attorney’s fees. Combined case with Record No. 131817

131817 Fishel v. Windsor Plaza Condo. Ass'n 12/31/2014 In proceedings under the Virginia Fair Housing Law and the Federal Fair Housing Amendments Act, the Attorney General alleged that a condominium association violated Code § 36-96.3(B)(ii) in failing to make reasonable accommodations necessary to afford a disabled unit owner equal opportunity to use and enjoy his dwelling, and the owner and his wife intervened. The Commonwealth’s assignment claiming error in dismissal of four individual defendants is dismissed for failure to join these parties on appeal. The circuit court’s ruling that evidence on conversion of bicycle storage space into an accessible parking space supported a claim for reasonable modification under Code § 36-96.3(B)(i), rather than a claim for reasonable accommodation under Code § 36-96.3(B)(ii), is affirmed, as is its grant of a motion to strike. It erred in ruling that the condominium’s request for attorney’s fees against the Commonwealth was not barred by sovereign immunity, but the error was harmless since no fees were awarded. Sustaining of the condominium’s plea in bar is affirmed because the statute of limitations had expired when the disabled unit owner and his wife filed their intervening complaint. Claims asserted under Code §§ 36-96.3(A)(8) and (9) and 42 U.S.C. §§ 3604(f)(1), (2) and (3)(B) do not concern continuing violations, and accrued on August 23, 2007; thus, the statutes of limitations in Code § 36-96.18 and 42 U.S.C. § 3613(a)(1)(A) bar those claims. The circuit court did not abuse its discretion in refusing to award the condominium complex attorney’s fees. Combined case with Record No. 131806

130633 RGR, LLC v. Settle 10/31/2014 In a wrongful death action arising out of a collision at a private railroad crossing, the circuit court did not err in holding that the defendant lumber loading business owed a duty of reasonable care to plaintiff's decedent or in instructing the jury on that duty, finding that plaintiff's decedent was not contributorily negligent as a matter of law, and that the defendant business' negligence was a proximate cause of the collision. The circuit court's judgment sustaining the jury's verdict is affirmed; however, the circuit court erred in calculating the offset for prior amounts received as required under Code § 8.01-35.1. On that issue, the circuit court's judgment is reversed and the case is remanded for further proceedings.

131038 Brown v. Commonwealth 10/31/2014 When a defendant charged with possession of heroin with the intent to distribute in violation of Code § 18.2-248 asked for a continuance on the morning of trial to obtain other counsel, the circuit court did not violate his Sixth Amendment rights by denying him a continuance sought for the purported purpose of substituting counsel of his choosing for the court appointed counsel who was present and ready to proceed with trial. The judgment of the Court of Appeals upholding the conviction is affirmed.

131301 McBride v. Bennett 10/31/2014 In a wrongful death action brought by the administrator of the estate of a cyclist killed around 1:00 a.m. after being struck by one of two speeding police cars driven by officers responding to a domestic disturbance call, the officers were engaged in a governmental function and the operation of their respective vehicles entailed special risks arising from the governmental activity and the exercise of judgment or discretion about the proper means of effectuating the governmental purpose. For that reason, the circuit court did not err in ruling that they are entitled to the protection of sovereign immunity. The judgment of the circuit court is affirmed.

131385 Jones v. Commonwealth 10/31/2014 Denial of a motion to vacate sentence filed by an inmate 12 years after he pled guilty to capital murder in exchange for a sentence of life imprisonment without the possibility of parole, is affirmed. United States Supreme Court case law holding that the Eighth Amendment forbids a sentencing scheme that mandates life imprisonment without parole for juvenile offenders without affording the decision maker the opportunity to consider mitigating circumstances, is not applicable because the trial court has the ability under Code § 19.2-303 to suspend part or all of the life sentence imposed for a Class 1 felony conviction and, thus, the Virginia statutes do not embody a mandatory life without the possibility of parole sentencing scheme. Thus, the circuit court lacked jurisdiction to consider this motion, and its denial of the motion is affirmed.

131569 Synchronized Constr. Servs. v. Prav Lodging 10/31/2014 In an action to enforce a mechanic's lien filed by a subcontractor, the circuit court erred in concluding that a general contractor, which served as construction manager for the project but had no pecuniary interest in the bond posted to release the real estate subject to a subcontractor's mechanic's lien, was a necessary party in the subcontractor's mechanic's lien enforcement action. The general contractor had no mechanic's lien of its own and, thus, the circuit court could render complete relief in the subcontractor’s mechanic's lien enforcement action because, even in the absence of the general contractor, there was no monetary claim upon which the circuit court could award judgment in the general contractor’s favor, and no interest held by it which might need to be shielded from an adverse judgment. Under the facts of this case, the general contractor was a proper party but not a necessary party to a subcontractor's mechanic's lien enforcement action. The judgment dismissing the mechanic’s lien enforcement action is reversed and the case is remanded for further proceedings consistent with this opinion.

131584 Dinwiddie DSS v. Nunnally 10/31/2014 Upon consideration of the record, briefs, and argument of counsel, the judgment of the Court of Appeals reversing a trial court disposition on a motion to transfer a proceeding to terminate parental rights to a tribal court, vacating the order terminating the parental rights of the mother and father, and remanding the matter, is affirmed for the reasons stated in its unpublished memorandum opinion, Renee Bagley Nunnally, et al. v. Dinwiddie Department of Social Services, Rec. Nos. 1947-12-2, 1948-12-1, 1949-12-2, dated September 10, 2013. The case is remanded to the trial court for further proceedings in light of the standards articulated in the decision of the Court of Appeals in Thompson v. Fairfax County Dep't of Family Servs., 62 Va. App. 350, 747 S.E.2d 838 (2013), which rejected the traditional "best interests of the child test" in favor of the more limited test involving an immediate serious emotional or physical harm, or a substantial risk of such harm, to a child arising from transfer to a tribal court.

131747 Sarafin v. Commonwealth 10/31/2014 In a prosecution for operating a vehicle under the influence of alcohol in violation of Code § 18.2-266 – brought against a defendant found inebriated and asleep behind the steering wheel of a vehicle parked on a private driveway with the ignition key in place but turned “backward” to an auxiliary position on the switch – the definition of "operate" is considered, and it is held that operation of a vehicle need not be on a public highway to sustain a conviction for driving under the influence pursuant to Code § 18.2-266. No error was made in ruling on proposed jury instructions on these issues. The judgment of the Court of Appeals upholding the defendant’s conviction is affirmed.

131822 Hawkins v. Commonwealth 10/31/2014 In a prosecution for possession of more than ten forged bank notes, as described in Code § 18.2-170, with the knowledge that they were forged and with the intent to utter or employ them as true, in violation of Code § 18.2-173, the evidence was sufficient to support the conclusion that the defendant possessed the contraband and that he knew the bills were counterfeit. The conviction is affirmed.

131847 Grimes v. Commonwealth 10/31/2014 In a prosecution for statutory burglary in violation of Code § 18.2-91, where the Commonwealth proved that the defendant went into an enclosed "crawl space" underneath a dwelling house but failed to prove that he broke and entered into the habitable area of the dwelling house, because the crawl space was structurally part of the dwelling house, the judgment of the Court of Appeals of Virginia upholding the conviction is affirmed.

131869 Fiorucci v. Chinn 10/31/2014 In a medical malpractice action, the circuit court did not err in excluding evidence of certain discussions between the defendant oral maxillofacial surgeon and the plaintiff patient concerning the risks of surgery. Where lack of informed consent is not at issue, in claims for negligent performance of a medical procedure, pre-operative negligent treatment, and negligent diagnosis, admission of evidence concerning a plaintiff's consent could only serve to confuse the jury because it could conclude, contrary to the law and the evidence, that consent to the surgery was tantamount to consent to the injury which result from that surgery. In this case, the plaintiff did nothing to make his informed consent to the procedure an issue and it was not error to exclude defense proof about discussions between the plaintiff and the defendant surgeon about the risks of surgery. The judgment of the circuit court confirming a verdict for the plaintiff is affirmed.

131972 Lawlor v. Warden 10/31/2014 Upon consideration a petition for a writ of habeas corpus, and the respondent's motion to dismiss, the Court is of the opinion that the motion should be granted and the writ should not issue. Issues reviewed include required disclosure to the defense of exculpatory information, alleged misstatements by a prosecution police witness, a defendant’s right to plead guilty and to have his sentence determined by a jury under Code § 19.2-257, the alleged determination of sentence on the basis of facts not reflected in the jury verdict or admitted by the defendant, prima facie showings required on a claim of denial of a fair trial based upon the prosecution’s use of peremptory strikes during voir dire, and issues relating to the offer and consideration of mitigating evidence. Some of these matters are non-jurisdictional issues that could have been raised at trial and on direct appeal and, thus, are not cognizable in a petition for a writ of habeas corpus, and others fail upon application of the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). None of the other claims has merit. Petitioner has failed to demonstrate that there is a reasonable probability that, but for the alleged errors, the result of the guilt or sentencing phases of the proceedings would have been different. Accordingly, the petition is dismissed and the respondent shall recover costs from petitioner.

131974 DRHI, Inc. v. Hanback 10/31/2014 Considering appeals pertaining to a circuit court judgment imposing a compensatory contempt fine of $350,000 in a property development dispute, because it was not immediately apparent from the petitions for appeal whether this case involved a monetary judgment, a civil contempt fine, or both, in the interests of judicial economy the appeal to this Court was granted, and the case before the Court of Appeals was certified pursuant to Code §§ 17.1-409(A) and (B)(2), transferring jurisdiction to this Court over the entire case, regardless of the outcome on the merits. The circuit court's September 20, 2013 order is a judgment of civil contempt, but contempt only lies for disobedience of what is decreed, not for what may be decreed. The June 9, 2004 order leading to the present proceedings left unresolved any issues surrounding the respondent’s future failure to pay and any consequent damages. Because that order did not contain definite terms as to the total amount to be paid, and when such payment was due, the respondent could not be held in contempt for failing comply with the order. Accordingly, the circuit court abused its discretion by holding the respondent in contempt for violating the June 9, 2004 order and by ordering it to pay petitioner $350,000. The circuit court's judgment in the case certified from the Court of Appeals is reversed and the rule to show cause is dismissed. This decision moots the controversy in the direct appeal to this Court, which is also dismissed. Combined case with Record No. 140605

132048 Lasley v. Hylton 10/31/2014 In a personal injury case brought on behalf of a minor who was injured while being supervised by her own parent during a visit to the defendant’s property and while using the defendant's motorized all-terrain vehicle, it is held that a host owes a child social guest a legal duty to exercise reasonable care for the child's safety. Here the defendant satisfied this duty when he ensured that the child was being supervised by her father and had his permission to ride the ATV.If a child's parent is present and supervising, and knows or should know of open and obvious risks associated with an activity, a host does not breach the duty of reasonable care when he or she allows the child to participate in an activity with the parent's permission. The judgment of the circuit court dismissing the case on a motion to strike plaintiff’s evidence is affirmed.

140012 Farhoumand v. Commonwealth 10/31/2014 In a prosecution of the defendant for exposing his penis to a minor child in violation of Code § 18.2-370(A)(1), the view of the Court of Appeals that the term "expose" under this statute includes tactile exposure is rejected. The plain meaning of the statute, the legislative history, and case law demonstrat that exposure is limited to a visual display where the child saw, or could have seen, the uncovered genitalia. To the extent that the trial court relied on a tactile definition of exposure in convicting the defendant such reliance was error. However, the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to support conviction on two of the three indictments with proof that the defendant visually exposed his penis to the minor victim in violation of Code § 18.2-370(A)(1), during the time frames alleged. As to the third charge, no proof was offered that defendant's penis was ever uncovered during that incident and, thus, the evidence in the record was insufficient to sustain a conviction on that charge; that conviction is reversed and vacated.

140081 Blake v. Commonwealth 10/31/2014 Code § 22.1-254, a compulsory school attendance statute obligating parents and guardians to “send” children of specified age to school, cannot be used to criminally prosecute parents or guardians based upon tardiness in the children's arrival at school. The judgment of the Court of Appeals upholding three misdemeanor convictions of the defendant under this statute and Code § 22.1-263 is reversed, and final judgment is entered vacating the convictions.

140112 Jimenez v. Corr 10/31/2014 In an appeal relating to disposition of shares of stock in a family held business, the shares held by the mother of the principal litigants, which would otherwise be conveyed to an inter vivos trust under a pour-over provision in her will, must instead be bequeathed in a manner set forth in a shareholders' agreement the mother entered into several years after executing her estate planning documents. Because the shareholders' agreement allows the parties to first attempt to come to an agreement regarding how such a disposition shall occur, the case will be remanded to the circuit court so that the parties may, in the first instance, attempt to resolve who will purchase the mother’s remaining shares of stock, and in what quantities. If the parties cannot reach such an agreement, the shareholders’ agreement requires the shareholders, including mother’s executors on her behalf, to ensure that her remaining shares are sold to the company. The circuit court's judgment concluding that mother’s estate documents govern the disposition of her shares of company stock, and that the defendant son properly exercised his exclusive purchase option under the trust agreement, is reversed and the case is remanded for further proceedings.

140145 Payne v. Fairfax County School Bd. 10/31/2014 Code § 22.1-315(A) does not require a school board to hold a hearing before suspending a non-teaching employee without pay for fewer than five days. The present employee has no standing argue the due process rights of teachers, and any due process rights she may have had as a non-teaching employee were fulfilled by the grievance process. Code § 22.1-28 vests school boards with authority to supervise the schools in their school divisions. Under Dillon's Rule, the power to discipline school employees is not only necessarily and fairly implied from this provision, such power is essential and indispensable, and Code § 22.1-79(6) presupposes that school boards have it. The judgment of the circuit court is affirmed.

140171 Owens v. DRS Automotive FantomWorks, Inc. 10/31/2014 In a contract fraud and Virginia Consumer Protection Act suit, arising out of the repair and renovation of an antique automobile, the circuit court did not err in granting a motion to strike at the conclusion of plaintiffs' case. Plaintiffs were bound by uncontradicted testimony they elicited in their case in chief, and the trial court's comment that the testimony of two witnesses was credible did not usurp the function of the jury. Protection afforded under the Virginia Consumer Protection Act extends beyond fraud, and it does not require the consumer to prove in every case that misrepresentations were made knowingly or with the intent to deceive. Code § 59.1-204(A), however, requires proof in misrepresentation cases of the elements of reliance and damages. Here, plaintiffs failed to produce evidence of misrepresentations concerning the purchase price of the "donor car" purchased for its components, which were to be installed in the antique vehicle. If there were other misrepresentations, the plaintiffs offered no evidence of any loss suffered from reliance upon them. The evidence on the Consumer Protection Act claim was insufficient to go to the jury and no error is found in the rulings of the circuit court. The judgment is affirmed.

140605 DRHI, Inc. v. Hanback 10/31/2014 Considering appeals pertaining to a circuit court judgment imposing a compensatory contempt fine of $350,000 in a property development dispute, because it was not immediately apparent from the petitions for appeal whether this case involved a monetary judgment, a civil contempt fine, or both, in the interests of judicial economy the appeal to this Court was granted, and the case before the Court of Appeals was certified pursuant to Code §§ 17.1-409(A) and (B)(2), transferring jurisdiction to this Court over the entire case, regardless of the outcome on the merits. The circuit court's September 20, 2013 order is a judgment of civil contempt, but contempt only lies for disobedience of what is decreed, not for what may be decreed. The June 9, 2004 order leading to the present proceedings left unresolved any issues surrounding the respondent’s future failure to pay and any consequent damages. Because that order did not contain definite terms as to the total amount to be paid, and when such payment was due, the respondent could not be held in contempt for failing comply with the order. Accordingly, the circuit court abused its discretion by holding the respondent in contempt for violating the June 9, 2004 order and by ordering it to pay petitioner $350,000. The circuit court's judgment in the case certified from the Court of Appeals is reversed and the rule to show cause is dismissed. This decision moots the controversy in the direct appeal to this Court, which is also dismissed. Combined case with Record No. 131974

131137 Murry v. Commonwealth 09/12/2014 A defendant convicted in a bench trial on multiple counts of sexual battery under Code § 18.2-67.3(A) for the sexual abuse of his stepdaughter, starting at the age of five, and of raping her after she reached the age of 13 in violation of Code § 18.2-61, was sentenced to lengthy incarceration and made subject to a probation condition requiring him to submit to warrantless, suspicionless searches of his person, property, residence, and vehicle at any time by any probation or law enforcement officer. That probation condition is not reasonable in light of the offenses for which this defendant was convicted, his background, and the surrounding circumstances. The circuit court abused its discretion in weighing the state interests and personal privacy interests of the probationer. The case is remanded for the circuit court to conduct a new sentencing hearing.

131162 Kohn v. Marquis 09/12/2014 In an action for the wrongful death of a police recruit injured by blows to the head during training at a police academy, the circuit court did not err in granting summary judgment for the defendants on a plea in bar and dismissing the action. The facts showed that decedent suffered an injury that appeared suddenly at a particular time and place, was caused by an identifiable incident or sudden precipitating event, and resulted in an obvious mechanical or structural change in the decedent’s body. Even if there were prior injuries sustained during decedent’s preceding three months of training, the injuries on the day he collapsed and fell into a coma contributed to his death and established an injury by accident compensable under the Virginia Workers’ Compensation Act. Accordingly, the circuit court did not err in granting summary judgment on the plea in bar and in holding that the exclusivity provision of the Act, Code § 65.2-307(A), bars this action. The judgment is affirmed.

131590 Swords Creek Land P'ship v. Belcher 09/12/2014 In a case involving interpretation of a severance deed conveying ownership of, and the right to remove, coal and timber, in which the present owners of the surface of the land and the successors-in-interest to the grantees of the coal rights make conflicting claims to royalties generated by the extraction of coal bed methane gas (CBM) from the coal seams underlying the property, the surface land owners have at all times owned all mineral estates within their lands except coal, and are entitled to all royalties from the production of CBM therefrom. The judgment of the circuit court declaring the surface land owners' rights regarding the CBM and associated royalties is affirmed.

131754 Temple v. Mary Washington Hosp. 09/12/2014 Discovery rulings made by the circuit court in an action that was subsequently nonsuited cannot be reviewed on this appeal. An order entered when the action was refiled, stating that all discovery in the prior action “is hereby incorporated into the instant action," did not incorporate the motions, objections, or rulings made by the trial court in the prior nonsuited action. Consequently, those rulings cannot be challenged in this appeal from judgment in the second action. The judgment of the circuit court is affirmed.

131780 Stephens v. Rose 09/12/2014 In a case involving a woman and her former boyfriend, who had recently escalated his efforts to re-initiate contact with her years after their relationship had ended, the circuit court did not err in issuing a protective order pursuant to Code § 19.2-152.10. Code § 19.2-152.7:1 expressly includes stalking as an act of violence, force, or threat and there was sufficient evidence to support the circuit court’s finding of stalking on the part of the defendant under Code § 18.2-60.3(A). The judgment of the circuit court is affirmed.

131815 Bailey v. County of Loudoun 09/12/2014 In an action by law enforcement personnel in a county sheriff’s office concerning the obligation under the Virginia Gap Pay Act, Code § 9.1-700 et seq., to pay employees at least at a one and one-half overtime rate for hours of work in excess of the employees' regularly scheduled work hours but less than the federally established maximum limit after which an overtime rate must be paid, two of the employment practices of the defendant sheriff’s office violate the Act's provisions as set out in Code §§ 9.1-701(A) and -703: a "debiting leave" scheme applied when, within a single work period, a deputy works overtime hours and takes sick leave, and an "exchange hours" system implicated for overtime hours during a particular work period. A third practice, described as “force flexing," when a deputy accrues hours in addition to regularly scheduled work hours such as through overtime work or holiday duty, but the sheriff's office prohibits the deputy from working a full scheduled shift and sends the deputy home before sufficient hours are accrued to earn overtime, is permissible under the Act's provisions as set out in Code §§ 9.1-701(A) and -702 and does not violate the plaintiffs’ contractual employment rights. The case is remanded to the circuit court for further proceedings concerning the plaintiff’s damages for the two violations found, in accordance with this opinion.

131872 Attorney General v. State Corp. Comm'n 09/12/2014 The State Corporation Commission properly interpreted Code § 56-585.1(A)(6) to allow an electric power company to recover an enhanced rate of return on common equity relating to construction of transmission infrastructure associated with a county power station. The Commission correctly found that the transmission interconnection facilities must be constructed in order for the plant to function and serve its statutory purpose. The expressly stated intention of the General Assembly in this Code provision is to incentivize construction of generation plants capable of ensuring a reliable and adequate supply of electricity to citizens of the Commonwealth. Application of the enhanced rate to the “entire facility,” including the costs of necessary transmission interconnection infrastructure associated with it, clearly and unambiguously furthers this statutory purpose. A utility has the right to recover an enhanced rate of return on common equity for the costs of associated transmission infrastructure included in a Code § 56-585.1(A)(6) rate adjustment clause. The Commission’s decision is affirmed. Combined case with Record No. 131873

131873 Attorney General v. State Corp. Comm'n 09/12/2014 The State Corporation Commission properly interpreted Code § 56-585.1(A)(6) to allow an electric power company to recover an enhanced rate of return on common equity relating to construction of transmission infrastructure associated with a county power station. The Commission correctly found that the transmission interconnection facilities must be constructed in order for the plant to function and serve its statutory purpose. The expressly stated intention of the General Assembly in this Code provision is to incentivize construction of generation plants capable of ensuring a reliable and adequate supply of electricity to citizens of the Commonwealth. Application of the enhanced rate to the “entire facility,” including the costs of necessary transmission interconnection infrastructure associated with it, clearly and unambiguously furthers this statutory purpose. A utility has the right to recover an enhanced rate of return on common equity for the costs of associated transmission infrastructure included in a Code § 56-585.1(A)(6) rate adjustment clause. The Commission’s decision is affirmed. Combined case with Record No. 131872

131910 McMahon v. Wirick 09/12/2014 The circuit court did not abuse its discretion in denying a father’s petition for an order changing the surname of his daughter, who bears the mother’s maiden surname. The court correctly ruled that the father failed to produce sufficient evidence to demonstrate that either he or the daughter experienced anything beyond minor inconveniences and embarrassment from her use of a different surname, and the father failed to carry his burden of proof to show substantial reasons why a change of name is in the child’s best interest. The judgment of the circuit court is affirmed.

131574 Via v. Commonwealth 06/27/2014 Considering the defendant's appeal from the judgment of the Court of Appeals of Virginia affirming the circuit court's refusal to give his proposed jury instruction concerning uncorroborated accomplice testimony proffered by a witness who admitted to driving the getaway vehicle in connection with a home invasion undertaken by the defendant and another accomplice, the Court of Appeals erred in affirming the trial court’s refusal of the defendant's proffered jury instruction and in ruling that the other accomplice's testimony corroborated the testimony of the getaway vehicle driver. The judgment of the Court of Appeals is reversed, the defendant's convictions and sentences are vacated, and the case is remanded for further prosecution as the Commonwealth may see fit.

130627 Harman v. Honeywell Int'l, Inc. 06/05/2014 Judgments in two consolidated wrongful death actions are reversed because of erroneous admission of testimony regarding the contents of a private accident investigation report under the hearsay exception for “learned treatises,” as well as certain lay witness opinion testimony. Issues relating to objections and motions regarding objectionable comments in closing argument of counsel, and matters of jury instructions, are also discussed.

130633 RGR, LLC v. Settle 06/05/2014 (Revised 08/01/2014) The decision in RGR, LLC v. Settle, previously reported at 288 Va. 1 (2014) was withdrawn by Order of the Court dated August 1, 2014, in which a rehearing of the appeal was granted.

130681 Anthony v. Verizon Virginia, Inc. 06/05/2014 In ruling on complaints by terminated employees against their former employer and their union, alleging actual and constructive fraud as well as negligent infliction of emotional distress, the circuit court erred in holding that the plaintiffs' state law claims were completely preempted by § 301(a) of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185(a), and by dismissing those claims based on the defendants' demurrers. The judgment of the circuit court is reversed and the case is remanded for further proceedings in accordance with this opinion.

130989 Commonwealth v. Herring 06/05/2014 (Revised 06/05/2014) In cross-appeals from a decision of the Court of Appeals of Virginia in a prosecution for attempted murder, abduction, and a related firearms offense, issues concerning the specificity and alteration of assignments of error are considered, and the sufficiency of the evidence on each of these charges is discussed. That portion of the Court of Appeals' judgment reversing the convictions for abduction of the defendant’s father and three children is reversed, and the circuit court's judgment as to those abduction convictions is reinstated. In addition, that portion of the Court of Appeals' judgment upholding his convictions for attempted first degree murder and use of a firearm during the commission of an attempted felony is affirmed. Combined case with Record No. 131059

131059 Herring v. Commonwealth 06/05/2014 (Revised 06/05/2014) In cross-appeals from a decision of the Court of Appeals of Virginia in a prosecution for attempted murder, abduction, and a related firearms offense, issues concerning the specificity and alteration of assignments of error are considered, and the sufficiency of the evidence on each of these charges is discussed. That portion of the Court of Appeals' judgment reversing the convictions for abduction of the defendant’s father and three children is reversed, and the circuit court's judgment as to those abduction convictions is reinstated. In addition, that portion of the Court of Appeals' judgment upholding his convictions for attempted first degree murder and use of a firearm during the commission of an attempted felony is affirmed. Combined case with Record No. 130989

131166 Gardner v. Commonwealth 06/05/2014 Because the circuit court erred by sustaining the Commonwealth’s objection to a defendant's attempt to offer evidence of his good character in his defense to charges of sexual offenses involving pre-teen girls, the Court of Appeals erred in denying an appeal, and the error is not harmless. The judgment of the Court of Appeals is reversed, the convictions are vacated, and the case is remanded for further proceedings if the Commonwealth be so inclined.

131283 Bartee v. Vitocruz 06/05/2014 The circuit court erred in dismissing a wrongful death action brought by the sole surviving co-administrator of an intestate’s estate. The surviving co-administrator was duly appointed at the time he filed the wrongful death action and therefore he had standing to file the action. There was no other necessary party who could be joined as a party plaintiff since the other co-administrator was deceased at the time the action was filed. The office of administrator for this decedent’s estate was not vacant and no other appointment could be made. The power of appointment given the two co-administrators to prosecute a wrongful death action pursuant to Code § 8.01-50 could be exercised by the sole remaining administrator. The judgment of the trial court is reversed and the case is remanded for further proceedings.

130239 VMRC v. Chincoteague Inn 04/17/2014 In an appeal considering whether the Virginia Marine Resources Commission lacked authority to order removal of a floating platform that a restaurant operator had situated partially over state-owned subaqueous bottomlands, securing it alongside its premises for purposes of expanded restaurant operations, without a permit or statutory exception authorizing such action in violation of Code § 28.2-1203(A), such use of the platform was not protected by the Constitution of Virginia as a public right inherent to the jus publicum. The Court of Appeals erred in interpreting the scope of the Commission's authority under Code § 28.2-1203(A), and the case is remanded for resolution of all remaining issues, including whether application of Code § 28.2-1203(A) to the floating platform is preempted by federal maritime law.

130494 Squire v. VHDA 04/17/2014 In a suit brought by a former homeowner after the foreclosure sale of her home, the trial court erred in sustaining demurrers as to her breach of contract claims under the deed of trust against the Virginia Housing Development Authority and breach of fiduciary duty claim against the trustee for failure to hold a face-to-face meeting prior to foreclosure. The trial court did not, however, err in sustaining demurrers against her allegation of breach of contract under a forbearance agreement and her requests for declaratory judgment, rescission, and to quiet title. The judgment is affirmed in part and reversed in part, and the case is remanded.

130801 Lamar Co. v. City of Richmond 04/17/2014 In reviewing a challenge to the denial of a zoning variance by a board of zoning appeals, the circuit court incorrectly applied the "fairly debatable" standard of review. That standard is applicable when a governing body acts in a legislative capacity, such as when it adopts a zoning ordinance or grants a special use permit. When considering the decision of a board of zoning appeals to deny a request for a variance, the proper standard of review to apply is that articulated in Code § 15.2-2314 and the city charter. The judgment is reversed and the case is remanded for application of the correct standard.

130934 American Tradition Inst. v. Rector and Visitors 04/17/2014 The circuit court was correct in denying a request for disclosure of certain documents under the Virginia Freedom of Information Act. The purpose of the higher education research exemption under Code § 2.2-3705.4(4) for "information of a proprietary nature" is to avoid competitive harm, not limited to financial matters. The definition of "proprietary" in prior case law, that it is "a right customarily associated with ownership, title, and possession, an interest or a right of one who exercises dominion over a thing or property, of one who manages and controls," is consistent with that goal and the circuit court did not err in applying that definition. Viewing the facts in the light most favorable to the university that prevailed below, it produced sufficient evidence to meet each of the higher education research exemption’s seven requirements. Also, in the context of the Code § 2.2-3704(F) provision allowing a public entity to make reasonable charges for its actual cost incurred in accessing, duplicating, supplying or searching for requested records, "searching" includes inquiry into whether a disputed document can be released under federal or state law, and this statute permits a public body to charge a reasonable fee for exclusion review. The circuit court's judgment excluding disputed documents and approving such cost recovery is affirmed, and final judgment is entered in favor of the university.

130971 Sheppard v. Junes 04/17/2014 In ruling on a motion for aid and direction brought by the administrator of an estate, the circuit court erred in distributing the estate among the decedent’s paternal half-uncle and 14 maternal side collateral heirs. A correct application of the relevant statutory provisions separates the entire estate under Code § 64.2-200(A)(5) into two moieties, each valued at one-half of the decedent’s estate. One moiety passes to his maternal kindred and in this case, under Code § 64.2-200(A)(5)(b) or Code § 64.2-200(A)(5)(d), that moiety passes to decedent’s 14 second cousins. The other moiety passes to decedent’s paternal kindred, and Code § 64.2-200(A)(5)(b) requires that moiety to pass to his half-uncle, the only member of the applicable statutory class on that side of the family. Code § 64.2-202(A) requires the paternal side moiety to be distributed entirely to the half-uncle, and neither Code §§ 64.2-200(B), 64.2-202(B), nor 64.2-203(B) affects that distribution. The judgment of the circuit court is reversed and final judgment is entered in favor of the paternal-side half-uncle.

131064 Lucas v. Woody 04/17/2014 In a suit for personal injuries allegedly incurred during confinement in a city jail, the one-year statute of limitations in Code § 8.01-243.2 governing causes of action related to conditions of confinement in a state or local correctional facility is applicable – regardless of whether the plaintiff is still incarcerated when such action is filed. Thus, the circuit court did not err in finding that this plaintiff’s state law claims, set forth in a complaint filed 16 months after her release from jail, were barred by that statute of limitations. Nor did the court abuse its discretion in refusing to grant leave for plaintiff to file a second amended complaint, which sought to reassert state law claims that the court had properly dismissed pursuant to pleas in bar. The judgment of the circuit court is affirmed.

131065 Robinson-Huntley v. G.W. Carver Mut. Homes Ass'n 04/17/2014 In an action by the owner of a unit in a cooperative housing association seeking declaratory and injunctive relief arising from the association’s failure to pay plumbing expenses she incurred, under the evidence and the parties’ practical construction of their contract, the circuit court’s finding that plaintiff failed to prove that they intended the association to make the repairs she sought was not plainly wrong or without evidence to support it and it will be affirmed. The court may award attorney’s fees pursuant to Code § 55-492(A) in an appropriate case, but here the circuit court noted that plaintiff had prevailed on only two of her several claims. That is a relevant factor to consider in weighing whether a case is “appropriate” and the court did not abuse its discretion by declining to make such an award. The judgment is affirmed.

131066 Norfolk Southern Ry. v. E.A. Breeden, Inc. 04/17/2014 The circuit court did not err in granting a permanent injunction to a landowner requiring a railroad to restore a private crossing over its tracks, pursuant to a grade crossing agreement entered in 1940 between the parties’ predecessors. The railroad had no jury trial right in this case, and an injunction is the appropriate remedy for enforcement of a real property right. A party seeking to enforce a real covenant is generally entitled to the equitable remedy upon showing the validity of the covenant and its breach, and a defendant may only avoid imposition of the equitable remedy by proving that such relief would create a hardship or injustice out of proportion to the relief sought, if performance by the defendant would be impossible, or if enforcement of the decree would be unusually difficult for the court. Although the railroad chose not to call its witnesses at the injunction hearing and did not prevail on arguments regarding plaintiff’s burden to prove damages on an injunction application for violation of a real covenant, there is no evidence that its defenses were not well-grounded or were interposed for an improper purpose, and the circuit court did not abuse its discretion in denying the landowner’s motion for recovery of attorney’s fees as a sanction under Code § 8.01-271.1. The judgment of the circuit court is affirmed.

131091 Dominguez v. Pruett 04/17/2014 The circuit court did not err in denying a petition for a writ of habeas corpus filed by a defendant previously convicted of malicious wounding and robbery. While a proper malicious wounding instruction would include the element of intent to “permanently” maim, disfigure, or disable the victim, in this case the erroneous instruction did not render the trial fundamentally unfair, and petitioner’s claim for ineffective assistance of counsel fails to satisfy the prejudice requirement under the governing standard. Petitioner cannot meet his burden of proving that there is a reasonable probability that, had the jury been properly instructed, the result of the trial would have been different. The judgment is affirmed.

131121 Ferguson v. Stokes 04/17/2014 In an ejectment action, the defendant’s plea of the statute of limitations was a reassertion of a prior adverse possession claim seeking ownership of an island and causeway, which was waived pursuant to a prior settlement agreement between the parties, and the circuit court’s dismissal of the plea in bar of the statute of limitations is affirmed. Defendant’s argument with respect to his defense pursuant to Code § 28.2-1200.1(B)(2) will not be reviewed because he only assigned error to two of the three grounds on which the circuit court ruled, and an asserted error cannot be reviewed if an appellant does not bring within the record on appeal each articulated basis for the ruling below. If correct, the third ground here would render Code § 28.2-1200.1(B)(2) inapplicable. In addition, an oyster house on the land was clearly intended to be a permanent fixture, and the circuit court did not err in directing defendant to vacate it and all other areas of the plaintiff’s riparian zone. The judgment is affirmed.

131235 Lamar Co. v. City of Richmond 04/17/2014 In consolidated proceedings arising from a declaratory judgment action brought by landowners and a billboard advertising company challenging a city's enforcement proceedings to require removal of a billboard or reduction in its height to a conforming level under applicable ordinances, the circuit court erred in holding that the 15-year non-conforming use provision of Code § 15.2-2307 is "merely enabling" legislation and in granting the defendant city's demurrer on that basis. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. Combined case with Record No. 131249

131249 Shaia v. City of Richmond 04/17/2014 In consolidated proceedings arising from a declaratory judgment action brought by landowners and a billboard advertising company challenging a city's enforcement proceedings to require removal of a billboard or reduction in its height to a conforming level under applicable ordinances, the circuit court erred in holding that the 15-year non-conforming use provision of Code § 15.2-2307 is "merely enabling" legislation and in granting the defendant city's demurrer on that basis. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. Combined case with Record No. 131235

131256 Gibson v. Commonwealth 04/17/2014 In a petition by the Commonwealth for the civil commitment of the respondent as a sexually violent predator pursuant to the Civil Commitment of Sexually Violent Predators Act, Code §§ 37.2-900 through -921, after the fact finder determined that the respondent is a sexually violent predator, the circuit court erred in shifting to him the burden of proof to establish that he satisfies the criteria for conditional release as prescribed in Code § 37.2-912. Because the burden of proof does not shift, the circuit court's judgment is reversed.

131282 PS Business Parks v. Deutsch & Gilden, Inc. 04/17/2014 In garnishment proceedings, the circuit court did not err in ordering the return of $133,000 drawn on a master account in which the judgment debtor was not the account holder and had no right to possession of the funds. As to that account, there was no liability of the bank to the judgment debtor subject to garnishment by the creditor. As to a second account, operated as a subsidiary to the master account pursuant to a “zero balance” funds management system involving treasury instruments and daily fund management movements between the master and subsidiary accounts, in which some $1.2 million in deposits were made during the garnishment period but a putative balance of $15,000 remained, the matter is remanded to the circuit court to proceed with detailed inquiry into the transfers of funds in this account. The judgment is affirmed in part and reversed in part, and the case is remanded.

131308 Lewis v. City of Alexandria 04/17/2014 In a wrongful termination action against a Virginia city under Code § 8.01-216.8, the anti-retaliation provision of the Virginia Fraud Against Taxpayers Act, after approving an award of back pay, additional liquidated damages doubling that award, recovery of lost vacation pay, as well as over $240,000 in attorney’s fees, the circuit court did not abuse its discretion in declining to award reinstatement, front pay and/or additional compensation for lost pension benefits. The judgment is affirmed.

131512 Dean v. Morris 04/17/2014 In a suit alleging breach of an alleged oral contract for disposition of the estate of a decedent, the trial court’s finding that an oral contract with sufficiently definite terms existed between a husband and wife was without clear and convincing evidence to support it. The judgment of the trial court is reversed, an award of damages to the plaintiffs is vacated, and final judgment is entered for the defendants.

131656 Kuchinsky v. Virginia State Bar 04/17/2014 In an appeal of right from an attorney disciplinary proceeding before a three-judge panel appointed pursuant to Code § 54.1-3935, the panel's decision upholding a District Committee’s finding that the attorney violated Rules 1.8(a) and 8.4(a) of the Virginia Rules of Professional Conduct by acquiring an interest in his client's real property through a Special Commissioner’s deed, by asking that the Special Commissioner record the deed, and by pursuing a partition of the client's property once the deed had been recorded is affirmed. However, the panel erred in affirming the District Committee’s finding that the attorney violated Rule 3.4(d), because a prior private admonition upon which this finding was based did not include terms requiring that the attorney either take or refrain from taking any action. It did not require that the attorney divest himself of his interest in his client's real property, nor did it indicate that he must refrain from taking additional steps to secure his interest therein. Accordingly, he could not knowingly disobey that admonition within the intendment of Rule 3.4(d). The panel decision is affirmed in part and reversed in part, and the case is remanded for reconsideration of the sanction to be imposed.

122029 Rodriguez v. Leesburg Business Park 02/27/2014 In a wrongful death action the circuit court erred in sustaining a plea in bar and dismissing the action on the basis that the plaintiff's exclusive remedy is under the Virginia Workers' Compensation Act by operation of Code § 65.2-307. An employee of a general contractor, hired by an owner to construct warehouse buildings was, as a matter of law, not shown to be engaged in the "trade, business or occupation" of the owner under Code § 65.2-302(A) when he suffered fatal injuries in the course of employment. The judgment of the circuit court is reversed and the case is remanded for further proceedings.

122145 David v. David 02/27/2014 In a marital dispute under Virginia’s equitable distribution and marital property statutes, the Court of Appeals erred in interpreting Code § 20-107.3(A)(3)(a) as placing an initial burden upon the non-owning spouse, who seeks to establish that an appreciation in the value of separate property occurring during marriage is marital property, of proving that significant personal effort during marriage or a contribution of marital property proximately caused such appreciation. This statute provides that the non-owning spouse has the burden of proving that contributions of marital property or personal effort were made and that the separate property increased in value, and the statute provides that – once this burden of proof is met – the owning spouse has the burden of proving that the increase in value or some portion thereof was not caused by such contributions of marital property or personal effort. The judgment of the Court of Appeals is reversed and this case is remanded for further proceedings consistent with this opinion.

130549 D'Amico v. Commonwealth 02/27/2014 In a prosecution of the driver of a vehicle for unreasonably refusing to submit to a breath test in violation of Code § 18.2-268.3, admission into evidence of the arresting officer's "Declaration and Acknowledgment of Refusal" form under the statute was not required in order for the Commonwealth to establish a prima facie case. The relevant, undisputed evidence was that the defendant was arrested for driving under the influence of alcohol in violation of Code § 18.2-266 and refused to submit to a breath test until he had spoken with his attorney. Those facts were sufficient as a matter of law to support the finding of guilt, since unwillingness to take the test without prior consultation with counsel does not constitute a reasonable basis for the refusal. Thus, admission of the refusal form exhibit into evidence was, at most, harmless error. The judgment of the circuit court is affirmed.

130682 Beach v. Turim 02/27/2014 In a suit for declaratory and injunctive relief seeking recognition of plaintiffs' rights in an easement over a 4-foot private walk abutting plaintiffs' property, as shown on a plat referenced in a subdivision deed, the circuit court erred in holding that plaintiffs held an express easement. A plat alone cannot convey an express easement, and the deed in this case does not identify to whom the easement is granted, nor describe its purpose. The judgment is reversed, and the injunction entered below, precluding defendant from blocking use of the easement and requiring her to remove a wall and restore certain steps facilitating plaintiffs' use of the private walk, is vacated. Final judgment is entered for the defendant.

130691 Byrd Theatre Foundation v. Barnett 02/27/2014 In a personal injury negligence action asserting premises liability claims against a non-profit foundation and another company managing an historic theater, the circuit court did not err in denying the foundation’s plea of charitable immunity for claims of the plaintiff, who was volunteering assistance to repair an organ, owned by the foundation that was built into the theatre, when he was injured. Any error in filing to grant a jury instruction was harmless, and the judgment is affirmed.

130757 Commonwealth v. Amos 02/27/2014 In an appeal from imposition of imprisonment for summary contempt, the Court of Appeals did not err in holding that the contemporaneous objection exception in Code § 8.01-384(A) allows a litigant who was precluded by the trial court from asserting a contemporaneous objection to the trial court's ruling or order to raise the issue on appeal, notwithstanding the provisions of Rule 5A:18. Because this exception applies, no further steps were required to preserve her issues for appellate review. The judgment of the Court of Appeals considering the appeal, reversing the summary contempt conviction, and entering final judgment, is affirmed.

130810 Maxwell v. Commonwealth 02/27/2014 In two appeals considered together that present different applications of the provision in Code § 8.01-384(A) addressing the absence of a contemporaneous objection when there is no opportunity to make a timely objection, the Court of Appeals erred in one of the cases because the defendant and his counsel, through no fault of their own, were absent and thus did not have the opportunity to be present to make an objection contemporaneously with the circuit court's act of proceeding to consider and respond to questions from the jury in their absence. In this case, Code § 8.01-384(A) requires the Court of Appeals to address the defendant’s assignment of error concerning the circuit court's response. That judgment is reversed and that case is remanded to the Court of Appeals. In the other case, the Court of Appeals did not err because nothing in the record supports a finding that the defendant in that case lacked the opportunity to make a contemporaneous objection to allegedly improper statements made by the Commonwealth during closing argument at a time in and in a manner that would have made it clear to the circuit court the relief that the defendant sought and permitted it to take corrective action. Therefore, the Court of Appeals did not err in refusing to consider his challenge to those statements on appeal and the judgment in that case is affirmed. Combined case with Record No. 130881

130837 Coalson v. Canchola 02/27/2014 In a personal injury action arising from an automobile accident, the circuit court erred in remitting a jury’s award of $100,000 in punitive damages. The punitive damages award was not excessive under Virginia law, nor did it offend the defendant's due process rights. Accordingly, the judgment of the circuit court is reversed and the jury verdict awarding $100,000 in punitive damages will be reinstated. Final judgment is entered on the verdict.

130854 Woodard v. Commonwealth 02/27/2014 The Court of Appeals of Virginia did not err when, after reversing a felony murder conviction as not being supported by sufficient evidence, it refused to remand to the circuit court for resentencing two felony drug convictions, one of which supplied the underlying offense for the felony murder conviction, but which were not directly challenged on appeal. The defendant suffered no reviewable injury from the fact that the sentencing guidelines would have been different had he not been convicted of felony murder at the time the circuit court sentenced him for the felony drug convictions. The circuit court did not abuse its discretion, and the judgment of the Court of Appeals is affirmed.

130881 Rowe v. Commonwealth 02/27/2014 In two appeals considered together that present different applications of the provision in Code § 8.01-384(A) addressing the absence of a contemporaneous objection when there is no opportunity to make a timely objection, the Court of Appeals erred in one of the cases because the defendant and his counsel, through no fault of their own, were absent and thus did not have the opportunity to be present to make an objection contemporaneously with the circuit court's act of proceeding to consider and respond to questions from the jury in their absence. In this case, Code § 8.01-384(A) requires the Court of Appeals to address the defendant’s assignment of error concerning the circuit court's response. That judgment is reversed and that case is remanded to the Court of Appeals. In the other case, the Court of Appeals did not err because nothing in the record supports a finding that the defendant in that case lacked the opportunity to make a contemporaneous objection to allegedly improper statements made by the Commonwealth during closing argument at a time in and in a manner that would have made it clear to the circuit court the relief that the defendant sought and permitted it to take corrective action. Therefore, the Court of Appeals did not err in refusing to consider his challenge to those statements on appeal and the judgment in that case is affirmed. Combined case with Record No. 130810

131318 Dunlap v. Cottman Transmissions Systems 02/27/2014 In response to dispositive questions of law certified by the United States Court of Appeals for the Fourth Circuit pursuant to Virginia Supreme Court Rule 5:40, it is held (1) that a plaintiff may use tortious interference with contract or tortious interference with business expectancy as the predicate unlawful act for a claim under the Virginia business conspiracy statute, Code §§ 18.2-499-500, because tortious interference with contract and tortious interference with business expectancy are predicated on an independent common law duty arising outside of contract; and (2) that a five-year statute of limitations applies to claims of tortious interference with contract and tortious interference with business expectancy under Code § 8.01-243(B) because both of these claims involve injury to property rights.

121984 Simpson v. Roberts 01/10/2014 In a medical malpractice suit by an infant suing by her father and next friend for injuries sustained prior to her birth, during a doctor's attempt to extract amniotic fluid from the mother by an amniocentesis procedure, the circuit court did not err in reducing a $7 million jury verdict to the applicable amount of the statutory cap on damages imposed by the Virginia Medical Malpractice Act, Code § 8.01-581.1 et seq. It was correctly determined that the infant was a patient of the defendant doctor and that her claim relating to injuries sustained when she was a fetus in utero was subject to the Act's statutory cap on recoverable damages. The judgment is affirmed.

122024 Webb v. Virginian-Pilot Media Cos. 01/10/2014 In a defamation case in which plaintiff alleges that he has been defamed – not by statements of fact that are literally true but by an implication arising from them – the alleged implication must be reasonable. In this case, the implication that may reasonably be drawn from the newspaper article sued upon is not defamatory, and the alleged defamatory implication plaintiff ascribes to it cannot reasonably be drawn. Accordingly, the circuit court erred by overruling the defendants’ demurrer. However, the error is supplanted by its final judgment in favor of the defendants. That final judgment is affirmed.

122028 Starrs v. Commonwealth 01/10/2014 While a trial court that enters a formal adjudication of guilt must impose the punishment prescribed by the legislature for the underlying offense, until the trial court enters a written order finding the defendant guilty it has the inherent authority to take the matter under advisement or to continue the case for disposition at a later date. In this case the circuit court, upon accepting and entering the defendant’s guilty pleas in a written order, still retained inherent authority to withhold a finding of guilt, to defer the disposition, and to consider an outcome other than a felony conviction. Accepting and entering of the defendant’s guilty pleas was not a formal adjudication of guilt and the court erred in concluding that it no longer had the inherent authority to consider any disposition other than to impose the legislatively prescribed punishment. The judgment of the Court of Appeals is reversed, the defendant’s sentences are vacated, and the case is remanded.

130179 Linnon v. Commonwealth 01/10/2014 Convictions of the defendant school teacher on three counts of taking indecent liberties with a minor by a person in a custodial or supervisory relationship, in violation of Code § 18.2-370.1(A), are affirmed. Although the acts occurred at the defendant's home outside of school hours and during winter recess, the jury could reasonably infer from defendant's conduct that his relationship with the victim was the same whether they were on or off the school grounds, and whether school was in or out of session. There was sufficient evidence from which the jury could find that the proscribed acts occurred while the defendant maintained a custodial or supervisory relationship for the purposes of Code § 18.2-370.1(A). One party may not rely on the objection of another party to preserve an argument for appeal without expressly joining in the objection, and thus objections to certain jury instructions were waived. While the Court of Appeals erred in determining that defendant failed to state a basis for objection to another instruction, that error was harmless because his argument on appeal is not the one he made to the circuit court. Likewise, his arguments on appeal about two defense instructions that the trial court refused were not made to the circuit court, and they will not be considered on appeal. The judgment of the Court of Appeals is affirmed.

130204 Maldonado-Mejia v. Commonwealth 01/10/2014 A defendant charged with felony child neglect who made an Alford plea at arraignment that was accepted and made part of the record, was still under indictment – and knew that she was under indictment – seven months later when she completed a federal firearms purchase form, responding “No” to a question whether she was under any felony indictment at that time. Her conviction under Code § 18.2-308.2:2(K) is therefore affirmed. Based on that conviction the circuit court did not err in concluding that she violated the terms of her supervised release on the child neglect charge. The judgment of the Court of Appeals upholding her convictions is affirmed.

130210 Board of Supervisors v. Windmill Meadows, LLC 01/10/2014 In interpreting provisions relating to per-unit cash proffers in certain zoning proceedings under Code § 15.2-2303.1:1, on cross-motions for summary judgment in a declaratory judgment action, the circuit court did not err in concluding that subsection (A) of the statute applies to all payments of cash proffers due on or after July 1, 2010 – regardless whether the proffers were agreed to prior to that date. The circuit court erred in awarding attorney’s fees and costs to a nonprofit corporation creating a life-care facility, whose response to the complaint for declaratory judgment opposed the county’s interpretation of the Code provision but did not constitute a successful challenge to any administrative or other action of the county. However, the court did not err in awarding attorney's fees and costs under Code § 15.2 2303.1:1(C) to certain other property developers whose answers and counterclaims expressly challenged the county's actions in having accepted certain cash proffer payments during a specified period. The judgment is affirmed in part, reversed in part, and the case is remanded for further proceedings to determine whether the developers are entitled to a further award of attorney's fees and expenses for this appeal.

130259 Bates v. Commonwealth 01/10/2014 In applying Code §§ 19.2-182.3 and 19.2-182.7 to its findings of fact in determining that an individual found not guilty of arson by reason of insanity required commitment to inpatient hospitalization, the circuit court did not err. A thorough evaluation of each of the factors required by Code § 19.2-182.3 was completed in determining that commitment of the acquittee to inpatient hospitalization was required in this case for the safety of the individual and the public. Therefore, her circumstances failed to satisfy each of the elements required for conditional release, and the statute does not, by its plain language, place a duty on the circuit court to seek out an appropriate plan for treatment of an acquittee through conditional release when the acquittee's circumstances do not satisfy the elements of Code § 19.2-182.7. The judgment is affirmed.

130279 Board of Supervisors v. McQueen 01/10/2014 In a declaratory judgment action, the circuit court erred in holding that a landowner acquired a vested right under Code § 15.2-2307 to develop his property as a cluster subdivision pursuant to a county ordinance that was later repealed. A "compliance letter" that the property owner received from a county official, upon which his vesting claim was based, did not constitute a significant affirmative governmental act as required under Code § 15.2-2307 for a land use right to become vested. The judgment of the circuit court is reversed, and final judgment is entered for the county.

130304 Allen v. Commonwealth 01/10/2014 The Court of Appeals of Virginia erred in affirming the circuit court's finding that the Commonwealth presented sufficient evidence to slightly corroborate the corpus delicti of aggravated sexual battery. While the defendant confessed to his daughter to having engaged in inappropriate sexual behavior with his four-year-old grandson, the additional evidence offered in this case does nothing more than establish the mere opportunity to commit the corpus delicti and the Commonwealth failed to prove slight corroboration of the defendant's confession required to establish the corpus delicti beyond a reasonable doubt. The circuit court's judgment against the defendant was thus without sufficient evidence to support it. The order of the Court of Appeals is reversed, the defendant's conviction for aggravated sexual battery is vacated, and the indictment is dismissed.

130306 CNX Gas Co. v. Rasnake 01/10/2014 In an appeal turning upon the interpretation of a 1918 deed of bargain and sale, the grantors' language was ambiguous and, under applicable canons of construction, exception language in the deed must be interpreted in favor of the grantee. Here, the deed conveyed to the grantee in fee simple all of the mineral interests in the land embraced within the deed's metes and bounds description that the grantors were capable of conveying at the time, excluding only coal, which they no longer owned. Accordingly, it was error to construe the disputed language to constitute an unambiguous exception of all coal and other minerals from the conveyance. The circuit court's judgment is reversed and final judgment is entered on this appeal for the defendant gas production company, holding that the 1918 deed conveyed to its predecessor in interest all of the mineral estate in the land described therein except the coal previously conveyed to others.

130409 Findlay v. Commonwealth 01/10/2014 In an attempted appeal from felony convictions for possession of child pornography, the Court of Appeals of Virginia erred in holding that the defendant failed to comply with the assignment of error requirements of Rule 5A:12(c) in his petition for appeal. In this case, the assignment of error challenging the search and seizure of computer-related materials satisfies the requirement of this Rule that a petition list, clearly and concisely and without extraneous argument, the specific errors in the rulings below upon which the party intends to rely. The judgment of the Court of Appeals dismissing the petition for appeal is reversed and the case is remanded with directions to review the petition for appeal on the merits.

130416 Robertson v. Western Va. Water Auth. 01/10/2014 In a suit for negligence relating to a sanitary sewer line that burst, causing property damage, the circuit court erred in ruling that the doctrine of sovereign immunity applies to shield a municipal water authority from liability for the maintenance and operation of a sanitary sewer system. Such an activity is a proprietary function, and the judgment of the circuit court is reversed. The case is remanded for further proceedings.

130503 Shebelskie v. Brown 01/10/2014 In sanctioning two Virginia attorneys pursuant to Code § 8.01-271.1, the circuit court judge abused her discretion because one of the attorneys neither signed the relevant brief nor made a motion under the terms of that statute and, thus, did not violate Code § 8.01-271.1. The other attorney also did not violate the statute because he could have formed, after reasonable inquiry, the belief that the relevant brief and the arguments set forth therein were warranted under existing law. The judgment imposing sanctions is reversed and the rule to show cause underlying that judgment is dismissed.

130553 Dang v. Commonwealth 01/10/2014 In a prosecution for murder and felony violation of a protective order, the circuit court did not err in refusing to order a second examination, pursuant to Code § 19.2-169.1, on the issue of the competency of the defendant to stand trial. When a defendant has already been afforded a competency evaluation and been found competent, the circuit court need not order a second evaluation unless it is presented with a substantial change in circumstances. In this case, the circuit court carefully considered representations made by counsel both at a hearing and at trial. It also had the benefit of a prior psychological report addressing the issues, and had the opportunity to observe the defendant and his interaction with defense counsel. It cannot be concluded that the circuit court abused its discretion in weighing the significance of the various factors. The judgment of the Court of Appeals upholding the convictions is affirmed.

121717 Commonwealth v. Peterson 10/31/2013 In wrongful death suits filed against the Commonwealth by the administrators of the estates of two students who were murdered during the tragic 2007 mass shooting at Virginia Tech, even if there was a special relationship between the Commonwealth and the murdered students, under the facts of this case, there was no duty for the Commonwealth to warn students about the potential for criminal acts by third parties. Therefore, the judgment of the circuit court is reversed and final judgment is entered for the Commonwealth.

121797 Cashion v. Smith 10/31/2013 In a defamation action, review of a demurrer ruling that certain statements pled by plaintiff were matters of opinion, and hence not actionable, is not barred by his counsel's endorsement of the demurrer order with the entry, “We ask for this.” That endorsement requested only that the court enter an order memorializing its ruling; it did not indicate the plaintiff's agreement with the portion of the ruling that was adverse to him, and did not constitute an express written agreement to waive his objections to and arguments concerning that ruling on appeal for purposes of Code § 8.01-384. The circuit court correctly ruled that the statements at issue were not rhetorical hyperbole and that the statements enjoy a qualified privilege. Those portions of the judgment are affirmed. However, the circuit court erred in ruling that two of the alleged statements were non-actionable expressions of opinion, and erred by ruling that qualified privilege can be lost or abused only upon a showing of personal spite or ill will. Those dispositions are reversed, and this matter is remanded for further proceedings.

122013 Virginia Broadcasting Corp. v. Commonwealth 10/31/2013 The circuit court did not err in denying a broadcaster’s request to have a camera in the courtroom in order to broadcast the sentencing of the defendant in a highly publicized murder of a college student. In light of governing case law, the trial court expressed concern that enhanced media coverage would further impact potential jurors in a pending civil suit against the defendant by the victim's family, and also properly considered the opposition of both the Commonwealth and the defendant to the request. There is no constitutional right to have cameras in a courtroom, and the trial court’s ruling under Code § 19.2-266 to deny use of a camera in the courtroom was not an abuse of discretion. The judgment is affirmed.

122035 Amin v. County of Henrico 10/31/2013 The Court of Appeals erred in concluding that it lacked jurisdiction to consider an appellant’s assignment of error, added after the petition for appeal had already been granted, asserting that his conviction on a firearms offense was void ab initio because of the absence of a county ordinance incorporating the crime charged. The judgment is reversed and the case is remanded to the Court of Appeals.

122178 Burkeen v. Commonwealth 10/31/2013 The Court of Appeals did not err in affirming a conviction for malicious wounding, in violation of Code § 18.2-51, where the defendant, in an unprovoked attack, struck the victim with a bare fist only once, resulting in serious and disfiguring injuries. Under the circumstances of this case, there was sufficient evidence of violence and brutality for the circuit court to find that the defendant acted with malice and intended to maim the victim. The judgment is affirmed.

130062 Old Dominion Boat Club v. Alexandria City Council 10/31/2013 In an action to enforce an easement by injunction, the acquisition of a fee simple interest in a public way by a city, pursuant to a local ordinance, did not extinguish the pre-existing easement over that way when there has been no implied or express dedication of that easement by its holder. Plaintiff has a vested easement over this street. The judgment of the circuit court is reversed and the case is remanded for entry of appropriate injunctive relief.

130456 Rhoten v. Commonwealth 10/31/2013 In a proceeding pursuant to the Civil Commitment of Sexually Violent Predators Act, Code §§ 37.2-900 et seq., a finding several years earlier in a prior proceeding that the respondent did not qualify as such a predator did not prohibit a re-evaluation and re-determination in the present proceeding of the respondent's status as a sexually violent predator based upon the doctrine of res judicata. The judgment of the circuit court rejecting the defense of res judicata and ordering civil commitment of the respondent is affirmed.

130954 Elizabeth River Crossings v. Meeks 10/31/2013 The General Assembly did not unconstitutionally delegate its power of taxation to the Virginia Department of Transportation (VDOT) and Elizabeth River Crossings OpCo, LLC (ERC), as the concessionaire responsible for financing, design, construction, operation, and maintenance of a multi-tunnel highway transportation improvements project in the Norfolk/Portsmouth area, under the terms of the Public-Private Transportation Act of 1995, Code § 56-556 et seq. The General Assembly properly delegated to VDOT the legislative power to impose and set the rates of user fees, and this legislative power was not impermissibly delegated to ERC under the Act. The comprehensive agreement between the department and ERC also did not abridge the Commonwealth's police power. The judgment of the circuit court is reversed and final judgment is entered in favor of VDOT and ERC. Combined case with Record No. 130955

130955 VDOT v. Meeks 10/31/2013 The General Assembly did not unconstitutionally delegate its power of taxation to the Virginia Department of Transportation (VDOT) and Elizabeth River Crossings OpCo, LLC (ERC), as the concessionaire responsible for financing, design, construction, operation, and maintenance of a multi-tunnel highway transportation improvements project in the Norfolk/Portsmouth area, under the terms of the Public-Private Transportation Act of 1995, Code § 56-556 et seq. The General Assembly properly delegated to VDOT the legislative power to impose and set the rates of user fees, and this legislative power was not impermissibly delegated to ERC under the Act. The comprehensive agreement between the department and ERC also did not abridge the Commonwealth's police power. The judgment of the circuit court is reversed and final judgment is entered in favor of VDOT and ERC. Combined case with Record No. 130954

121232 Clifton v. Wilkinson 09/12/2013 In a declaratory judgment proceeding for an easement by necessity, because the plaintiff’s 10-acre tract did not become landlocked by a conveyance from a former owner severing a former unity of title, no implied grant of a right of ingress and egress arose. A former common ownership of the dominant and servient tracts, at some time in the past, is immaterial; such unity of ownership must exist at the time that the necessity arises in order to give rise to an easement by necessity. The tract at issue suffered damages by the taking of its access rights by eminent domain, and those damages were compensable in the condemnation proceeding, but the condemnation did not give rise to any implied grant of access rights over the lands of others. The judgment of the circuit court granting an easement by necessity is reversed, and final judgment is entered here for the defendants.

121534 PKO Ventures, LLC v. Norfolk Redev't & Housing Auth. 09/12/2013 In a condemnation proceeding in which the property owner asserted that a redevelopment and housing authority lacked the power to condemn unblighted private property that was located in a blighted area, the circuit court erred in permitting the condemnation after the effective date of the July 1, 2010 statutory deadline pursuant to Code § 1-219.1. The judgment of the circuit court is reversed and final judgment is entered in favor of the property owner.

121582 Schuiling v. Harris 09/12/2013 In a suit alleging various contract and tort claims arising out of a personal services relationship, the circuit court erred in refusing to order arbitration on the ground that an otherwise applicable arbitration agreement designated a specified arbitrator as an integral part of the agreement, thereby rendering the agreement unenforceable upon the subsequent unavailability of that particular arbitrator. This portion of the arbitration agreement is severable, and another arbitrator may be appointed under the applicable Code provisions. The case is reversed and remanded for further proceedings.

121728 Nejati v. Stageberg 09/12/2013 In a quiet title action involving the effect of Code § 15.2-2254 on the ability of a seller to convey severalty interests in real property where valid subdivision thereof has been approved, plaintiff and the defendants knew with certainty the property they purchased pursuant to their deeds, and the survey was expressly referenced and incorporated into both deeds. The property description is thus sufficient to create estates in severalty. Failure to comply with subdivision requirements significantly limits use of the property, but does not inhibit passage of title to the property as between the parties to an instrument. The judgment is reversed and the case is remanded for further proceedings in accord with this opinion.

121835 Jordan v. Commonwealth 09/12/2013 In an appeal challenging a conviction for possession of a firearm by a convicted felon in violation of Code § 18.2-308.2, the Court of Appeals of Virginia was correct in holding that the evidence was sufficient to support the defendant’s conviction in light of the identification of the weapon by the victim. The judgment is affirmed.

121989 Assurance Data, Inc. v. Malyevac 09/12/2013 In an employer's action to enforce certain provisions of an employment agreement restraining competition by a former employee, in sustaining a demurrer the circuit court improperly resolved the employee's challenge to the enforceability of the restraints on competition, short-circuiting the litigation. Because a demurrer cannot be used to decide the merits of a claim, the circuit court's judgment is reversed and the case is remanded for further proceedings.

122043 Ayers v. Shaffer 09/12/2013 In a suit by great-grandchildren of a decedent against the decedent’s sister and three members of a family who cared for the decedent in her declining years, the circuit court erred in granting a demurrer to certain counts of the complaint alleging that certain inter vivos financial transfers, which significantly reduced the decedent's estate, were the result of undue influence exercised by persons in confidential relationships with the decedent during her lifetime. Application of the presumption of undue influence is not limited to situations where an attorney-in-fact exercises power under a power of attorney to accomplish transactions that benefit her or others close to her. The judgment is reversed and the case is remanded for further proceedings.

122053 Commonwealth v. Leone 09/12/2013 A Virginia circuit court erred when it restored a petitioner's right to ship, transport, possess or receive firearms pursuant to Code § 18.2-308.2(C). Because the petitioner is not a resident of the geographical area where the circuit court is located, that court lacked territorial jurisdiction to adjudicate the petition for restoration of firearms rights. The judgment is reversed and the petition is dismissed.

122054 Prieto v. Warden (ORDER) 09/12/2013 Upon consideration of the petition for writ of habeas corpus filed November 30, 2012, and the respondent's motion to dismiss, the Court is of the opinion that the motion to dismiss should be granted and the writ should not issue. Each of the petitioner's claims is either without merit, or fails to satisfy either the "prejudice" or "performance" prong of the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). Petitioner’s motions for access to files from the Virginia Department of Forensic Science, for the appointment of a DNA expert, for an evidentiary hearing, and to hold his habeas corpus proceedings in abeyance pending resolution of habeas corpus proceedings in California are denied. In addition, respondent's motion to strike petitioner's rebuttal affidavits is denied, and those affidavits are considered pursuant to the appropriate evidentiary rules. The petition is dismissed.

122069 Raley v. Haider 09/12/2013 In a second consolidated litigation by a physician, relating to claims for compensation due after two years of work with a medical practice entity, the circuit court did not err in holding that res judicata bars various claims against the individual defendant, who had been sued by the plaintiff relating to the same transaction or occurrence in a previous action that was deemed to have been ended by a final judgment on the merits. However, the circuit court erred in holding that res judicata bars plaintiff’s claims against two LLC entities that were not parties to the prior litigation, and were not in privity with one of the former parties. The judgment dismissing plaintiff’s claims with prejudice is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

130317 Small v. Federal Nat'l Mortgage Ass'n 09/12/2013 In response to certified questions of law presented to the Court by a federal district court pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, it is held that a clerk of court in Virginia lacks statutory standing to initiate a lawsuit, in his official capacity, to enforce the real estate transfer tax on the recording of instruments under Code §§ 58.1-801 and -802. Because the ministerial duties of a clerk of court do not extend to enforcing the state taxes at issue, the first certified question is answered in the negative and the second certified question is not addressed as a result.

120760 New Dimensions, Inc. v. Tarquini 06/06/2013 In a woman's suit against an employer under the federal Equal Pay Act, 29 U.S.C. § 206(d)(1), the circuit court erred in precluding introduction of evidence relating to four defenses set forth in Act the on the ground that these are affirmative defenses that are waived if not pled. These statutory defenses are express exceptions contained within the statute creating the cause of action, and because in such cases there is little risk of prejudice or surprise, Virginia procedural law does not require that such affirmative defenses under the Act be pled to avoid waiver of the right to assert them. Under the facts of this case, the employer did not waive its right to present evidence regarding its defenses to this claim, and the judgment of the circuit court is reversed. The matter is remanded for proceedings consistent with this opinion.

120874 Friends of the Rappahannock v. Caroline Cnty. Bd. Sups. 06/06/2013 In ruling on a demurrer and motion to dismiss a declaratory judgment complaint brought by a conservation organization and several landowners, challenging the grant by a county of a special exception permit authorizing commencement of sand and gravel operations on a tract of land fronting on a river, the circuit court did not err in applying the aggrieved person standard in determining whether the plaintiffs had standing to proceed. Based upon the insufficiency of allegations in their complaint, these complainants did not have standing to proceed. The judgment dismissing the action on that ground is affirmed.

121282 Laster v. Russell 06/06/2013 The circuit court did not err in denying a petition for a writ of habeas corpus alleging error by trial counsel in connection with a plea offer. Even assuming that the performance of trial counsel in petitioner's initial trial was deficient, petitioner has offered no evidence to prove that this particular plea offer was within the boundaries of acceptable plea agreements and sentences in the jurisdiction, or that the presiding judge in the original trial had ever accepted similar plea agreements and sentences in other cases involving similar facts and charges. In light of the petitioner's burden of proof, in the present habeas corpus proceeding the circuit court did not err in dismissing the petition, and its judgment is affirmed.

121526 Martin v. City of Alexandria 06/06/2013 In an appeal by objecting neighbors from a circuit court judgment upholding the decision of a city's board of zoning appeals granting side and rear yard variances to the applicant landowners, none of the conditions asserted to justify the variance application satisfied the requirements of the variance provision of the city's charter, which governs this case. Accordingly, the decision of the BZA was contrary to law and the circuit court erred in upholding its decision. The judgment of the circuit court is reversed and final judgment is entered for the objecting neighboring landowners.

121540 Martin v. Garner 06/06/2013 In a declaratory judgment action for determination of title to a private alley running between parcels of property, no error is found in the ruling of the circuit court that the owners of one parcel hold fee simple title up to the centerline of that portion of the alley abutting their property, or in its dismissal of a claim against other abutting property owners seeking a determination as to ownership of the remaining length of the alley. The judgment of the circuit court is affirmed.

121562 Paugh v. Henrico Area Mental Health 06/06/2013 In circuit court rulings after an involuntary commitment proceeding before a special justice in the general district court, Code § 37.2-821 requires that the circuit court determine whether an individual meets the requirements for involuntary commitment on the date of the de novo circuit court hearing, not the date of the initial commitment. The circuit court used the incorrect date in this case, and because the Commonwealth conceded that the evidence was insufficient to commit plaintiff as of the day of the circuit court hearing, the court should have dismissed the involuntary commitment petition. The judgment of the circuit court is reversed, and the petition is dismissed.

121579 Smith v. Commonwealth 06/06/2013 The retroactive application of a 2008 amendment to Code § 9.1-902 in the case of a criminal defendant who pled guilty in 1999, resulting in imposition upon him of more stringent sexual offender registration requirements than were formerly applicable, did not involve violation of his contractual or constitutional rights. The circuit court's dismissal of his case challenging enforcement of such requirements is affirmed.

122144 Livingston v. Virginia State Bar 06/06/2013 In an appeal of right by an attorney from an order of the Virginia State Bar Disciplinary Board, an independent review of the record provides clear and convincing evidence that an assistant Commonwealth's Attorney violated Rule 1.1 of the Virginia Rules of Professional Conduct regarding competent representation, though such evidence is absent with regard to his alleged violation of Rules 3.1 and 3.8 relating to assertion of frivolous claims and contentions and failure to meet additional responsibilities of a prosecutor. The order of the Disciplinary Board is affirmed in part and reversed in part, and the matter is remanded for consideration of an appropriate sanction.

120463 Henderson v. Ayres & Hartnett, P.C. 04/18/2013 The circuit court erred in refusing a party's request to post an appeal bond and suspend an award of $130,000 in attorney's fees pursuant to Code § 8.01-676.1. However, the error is harmless because the circuit court’s award of fees was proper. Accordingly, the judgment of the circuit court is affirmed.

120702 The Doctors Co. v. Women's Healthcare Assocs. 04/18/2013 In a declaratory judgment action by a professional liability insurance company seeking a determination that its coverage of a health care provider does not apply to a pending breach of contract action brought by a family alleging that the health care provider misrepresented its participation in the Virginia Birth-Related Neurological Injury Compensation Act, Code § 38.2-5000 et seq., the judgment of the circuit court finding that the policy covers the claim is affirmed.

120919 The Falls Church v. Protestant Episcopal Church 04/18/2013 In a protracted and complex dispute between the Protestant Episcopal Church in the Diocese of Virginia and the Protestant Episcopal Church in the United States of America (together, the plaintiffs) and seven local congregations which disaffiliated from the plaintiffs, raising issues about whether the trial court properly applied neutral principles of law in deciding the ownership of church property, whether that application was constitutional, and whether the trial court granted the proper relief, the plaintiffs have shown that they have a proprietary interest in the property at issue, and that the fiduciary relationship required to impose a constructive trust exists under the facts presented. Thus, equity dictates that a constructive denominational trust be imposed on such property for the benefit of the plaintiffs. The judgment of the trial court with regard to the disposition of personal property acquired by the congregations after the vote to disaffiliate is reversed and that matter is remanded for further proceedings consistent with this opinion. The judgment of the trial court regarding Code § 57-7.1 is reversed. The remainder of the trial court’s judgment is affirmed.

121046 Caperton v. A.T. Massey Coal Co. 04/18/2013 In a Virginia suit between individuals and entities in the coal industry, alleging tortious interference with existing and prospective contractual and business relations, fraudulent misrepresentation, deceit, and concealment, and seeking compensatory and punitive damages, the circuit court erred in finding that res judicata operates to bar plaintiffs' current action based on a 15-year history of multiple state and federal litigations between the parties. The judgment is reversed and the case is remanded for proceedings consistent with this opinion.

121144 Boone v. Commonwealth 04/18/2013 In a prosecution for knowingly and intentionally possessing or transporting a firearm after having previously been convicted of a violent felony, in violation of Code § 18.2-308.2(A), the trial court did not err in overruling defense objections and allowing the Commonwealth to prove that the defendant in fact had five prior qualifying convictions. The judgment of the Court of Appeals upholding the conviction, is affirmed.

121177 Commonwealth v. Tuma 04/18/2013 In a prosecution for taking indecent liberties with a child, aggravated sexual battery, and animate object penetration, the Commonwealth committed no Due Process violation under Brady v. Maryland, 373 U.S. 83 (1963) by delaying production of an audio-tape recording of an investigative interview with the victim that could have been used in impeachment of four witnesses, because the recording was made available to the defendant during trial in sufficient time to allow for its effective use. The judgment of the Court of Appeals on the Brady issue is reversed and the case is remanded for consideration of a second assignment of error, not previously addressed by the Court of Appeals, challenging the trial court's denial of the defense request to admit the tape into evidence.

121191 Board of Supervisors v. Davenport & Co. LLC 04/18/2013 In a suit brought by a county board of supervisors against a financial advisor firm, on a multi-count complaint, the circuit court erred when it sustained a demurrer on the basis that the separation of powers doctrine obviated consideration of the controversy because the court would have to inquire into the motives of the board's legislative decision making. While members of a board of supervisors, as legislators of a municipality, are outside the scope of both federal and state constitutional legislative immunity provisions, they are protected by common law legislative immunity principles. As a result, the circuit court correctly held that the separation of powers doctrine was implicated. However, in this case the board effectively waived its common law legislative immunity from liability and the burden of litigation by failure to raise these protections, by filing suit, and actions effecting a waiver. The circuit court judgment sustaining the demurrer filed by the financial advisor is reversed, and the case is remanded.

121209 Newberry Station Homeowners Ass'n v. Board of Supervisors 04/18/2013 In an action for declaratory and injunctive relief challenging a county's approval of a special exception, Code § 15.2-852(A) did not prohibit two members of a board of supervisors from participating in and voting on the application based on their relationship with the Washington Metropolitan Area Transit Authority, which is not a "corporation" under the terms of this statute dealing with financial conflicts of interest. Nor did the circuit court err in finding sufficient evidence to make approval of the special exception application fairly debatable. To the extent plaintiffs adduced evidence of unreasonableness of the board's action, the board met the challenge by some evidence of reasonableness, and its decision must be sustained. The circuit court therefore did not err in awarding the board summary judgment, and its judgment dismissing the complaint is affirmed.

121216 Sigmon v. Director 04/18/2013 In a petition for a writ of habeas corpus filed under the original jurisdiction of the Supreme Court of Virginia, it is first held that a petition for a writ of habeas corpus and a direct appeal from a final judgment of conviction can proceed simultaneously in this Court. With regard to the claims of ineffective assistance of counsel raised in the petition, the petitioner failed to prove that but for his counsel's alleged errors, the outcome of his trial would have been different. Therefore, the petition is dismissed.

102281 Morva v. Warden (ORDER) 04/12/2013 Upon consideration of the petition for writ of habeas corpus filed December 3, 2010, and the respondent's motion to dismiss, the Court is of the opinion that the motion should be granted and the writ should not issue. Each of the petitioner's claims is without merit. Petitioner’s motions for leave to supplement the record, to amend the petition, for discovery and production of documents, for appointment of experts, and for an evidentiary hearing are denied, and his motion for en banc consideration is denied as moot. In addition, the respondent’s motion to strike portions of petitioner’s appendix and his reply is denied. The petition is dismissed.

120287 Glasser & Glasser v. Jack Bays, Inc. 02/28/2013 In an appeal considering the validity of various mechanics' liens filed under Code § 43-4, naming a beneficiary of the deed of trust that was also a trustee for the bondholders was sufficient to comply with the statutory necessary party requirements, and the circuit court was not plainly wrong in upholding the commissioner's rulings that the general contractor complied with the 90-day time limit for filing a notice of mechanics' lien and that it excluded charges more than 150 days prior to the last day that work was performed or materials supplied, as required. The commissioner and the trial court did not err in holding that the general contractor properly mitigated its damages. However, sale of property to satisfy a mechanics' lien may only extend to so much of the land therewith as is necessary, as provided in Code § 43-3, and the commissioner and the circuit court erred in approving the sale of the entire parcel of land to satisfy the contractors' liens, where no evidence was introduced to support this decision. The judgment is affirmed in part and reversed in part, and the case is remanded.

120291 Osman v. Osman 02/28/2013 In a declaratory judgment action, a decedent's estate administrators established, based on the undisputed evidence, that the decedent's son murdered his mother, without justification, by strangling her and beating her head against the ground. Under Virginia's "slayer statute", former Code §§ 55-401 through -415 (see now Code §§ 64.2-2500 through -2511), the evidence, measured under the preponderance of the evidence standard applicable to civil proceedings and made applicable in this case under clause (ii) of former Code § 55-401 (see now Code § 64.2-2500), is sufficient to prove the elements of murder. The trial court was therefore correct in finding that the son was a "slayer" under the statute and that, as a result, he cannot inherit his share of his mother's estate. The judgment of the trial court is affirmed.

120384 D.R. Horton, Inc. v. Board of Supervisors 02/28/2013 In a declaratory judgment suit by a real estate developer, the circuit court did not err in ruling that certain building permit fees the developer paid to a county, which were later found to be unlawful, were nonetheless paid "voluntarily" under the common law voluntary payment doctrine, thus defeating the claim for their return. The judgment of the trial court is affirmed.

120634 Norfolk 102, LLC v. City of Norfolk 02/28/2013 Two businesses operating as entertainment establishments serving alcoholic beverages for on-site consumption under previous versions of a city's zoning ordinance pursuant to a blanket special exception that was later revoked, cannot claim vested rights under Code § 15.2-2307 to a land use that was impermissible under the applicable zoning ordinance when they opened for business. No city official issued a determination under Code § 15.2-2311(C) authorizing use of these business premises in a manner not otherwise permitted under the zoning ordinances. Because the two businesses had notice of and an opportunity to be heard during the city council meeting when their applications for individual special use exceptions were considered and denied, any statutory notice issues were waived under Code § 15.2-2204 and their procedural due process rights were not violated. The circuit court's judgments denying declaratory and injunctive relief to the businesses, holding that the city acted lawfully in revoking the blanket special exception and in denying the businesses' applications for individual special exceptions, upholding the determination that the businesses possessed no vested rights, and granting the city's request for injunctive relief, are affirmed.

120711 County of Albemarle v. Camirand 02/28/2013 In seeking relief in the circuit court from a county board of supervisors' decision disallowing payment of a portion of certain retirement benefits due to former county employees, based on a miscalculation by a current county employee, the "Appeal Bond" filed by the former county employees did not comply with the requirement for "written notice" of an appeal pursuant to Code § 15.2-1246, and the preamble to this document did not alter its function as a bond. Thus, the circuit court erred in failing to sustain the defendants' demurrer. Its judgment is reversed, the appeal is dismissed with prejudice, and final judgment is entered in favor of the county defendants.

120858 Daily Press, Inc. v. Commonwealth 02/28/2013 Appeal from a circuit court order sealing certain exhibits in a then pending criminal trial is not rendered moot simply because the order no longer is in effect and the exhibits are now available for public inspection. The short-lived proceeding reflects a category of disputes involving irreparable injury to the public's interest in open trials which is capable of repetition yet evading review if deemed moot. The issues are not moot considering the right to contemporaneously review the files. On the merits, the sealing order in this case violated constitutional and statutory guarantees of public access to criminal proceedings since the circuit court failed to rebut the presumption in favor of open records through specific findings that there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity, closure would prevent that prejudice, and reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights. The circuit court's rationales were speculative and not supported by particularized factual findings. For the same reasons the order violated Code § 17.1-208. There was no showing of a compelling governmental interest that justified permitting the exhibits to be withdrawn from the file and copies of those exhibits to be placed under seal. The order of the circuit court is vacated.

120985 Tharpe v. Saunders 02/28/2013 In considering a defamation claim based on the false attribution of a certain quoted statement to the plaintiff and not the falsity of the assertion contained within that statement, the circuit court erred in sustaining a demurrer on the ground that the alleged statement constituted an expression of opinion. A false attribution may result in injury to reputation because the manner of expression or even the fact that the statement was made indicates a negative personal trait or an attitude the speaker does not hold. Thus, quotations falsely attributed to a plaintiff are actionable as defamation regardless of the truth or falsity of the substance of the quotation when the attribution injures plaintiff's reputation. The judgment is reversed, and the case is remanded.

121242 Daniels v. Mobley 02/28/2013 The declaratory judgment action by a plaintiff who formerly operated a "Texas Hold 'Em" card game facility failed to present a justiciable controversy over which the circuit court could exercise jurisdiction, and the circuit court did not err in determining the illegal gambling provisions of Code § 18.2-328 to be constitutionally valid upon a review for vagueness. The judgment is vacated in part, affirmed in part, and the case is dismissed.

121472 Hunter v. Virginia State Bar 02/28/2013 In review of an appeal of right in a disciplinary proceeding addressing whether an attorney’s weblog posts are commercial speech that is properly subject to regulation under Rule 7.1(a)(4) of the Virginia Rules of Professional Conduct considering whether an attorney may discuss information, not protected by the attorney-client privilege, that is publicly available and that is related to representation of the client without the client’s consent under Rule 1.6, and whether the attorney was ordered to post an insufficient disclaimer under Rule 7.2(a)(3), the three-judge circuit court did not err in concluding that the Bar's interpretation of Rule 1.6 violated the First Amendment or in finding that the weblog posts do not qualify as political speech for First Amendment purposes and may properly be regulated under Rules 7.1 and 7.2 as potentially misleading commercial speech consisting of lawyer advertising. However, the single disclaimer imposed by the circuit court impermissibly conflicts with the requirements of Rule 7.2(a)(3). The judgment is reversed and the matter is remanded for imposition of disclaimers that fully comply with Rule 7.2(a)(3).

121623 Northam v. Virginia State Bar 02/28/2013 In Virginia State Bar Disciplinary Board proceedings finding that an attorney violated Rule 1.10(a) of the Virginia Rules of Professional Conduct, the use of "knowingly" in the Rule is not without purpose, and is a separate and distinct element that must be proven before a violation can be established. An attorney in a law firm must have had knowledge at the time he represented a party that his partner was prohibited from doing so. Nothing in the board's findings of fact in this case resolves the issue whether the subject attorney continued representing the husband in a divorce case at a time when he knew that his partner was disqualified from doing so based on the partner's consultation with the wife. Based on the board's findings of fact, under the specific circumstances of this case its conclusion that the attorney knew that his partner was disqualified cannot be affirmed. Without this element of knowledge, a material element of Rule 1.10(a), the partner's disqualification will not be imputed to the subject attorney, and the order of the board will be reversed.

121656 Zaug v. Virginia State Bar 02/28/2013 In review of an appeal of right from a judgment entered by a three-judge circuit court in a disciplinary hearing, Rule 4.2 of the Virginia Rules of Professional Conduct prohibits attorneys from communicating about the subject of representation with a person represented by another attorney without consent of that counsel or legal authorization to do so. The Rule categorically and unambiguously forbids an attorney from initiating such communications and requires an attorney to disengage from such communications when they are initiated by others. However, it does not require attorneys to be uncivil, discourteous, or impolite when terminating a conversation begun by the represented individual. On specific and narrow facts, no violation of Rule 4.2 occurred in this case and the judgment of the circuit court is reversed, the sanction imposed is vacated, and the charge of misconduct dismissed.

121118 Harmon v. Ewing (ORDER) 02/08/2013 In a petition under the Virginia Freedom of Information Act arising from a request for production by a police department of personnel records of a specific officer, such records are subject to the protections of Code § 2.2-3705.1(1) and their production was appropriately refused by the Department; the circuit court's order requiring disclosure of the personnel records is reversed. The request for criminal incident information including the identities of all individuals, other than juveniles, arrested or charged by this officer must be accommodated by the Department. However, under Code § 2.2-3706 the portion of the request concerning the identities of individuals arrested by other officers based on observations or information supplied by the specified officer seeks information that is exempt from disclosure. Concerning the award of attorneys' fees in this matter under Code § 2.2-3713(D), the determination of "special circumstances" lies in the sound discretion of the trial court, and this issue must be considered in light of the several holdings in favor of the responding police department on this appeal. The circuit court must reconsider whether to award attorneys' fees and, if so, the appropriate quantum. The judgment is affirmed in part, reversed in part, and the case is remanded.

110741 Charlottesville Fitness Operators Ass'n v. Albemarle County 01/10/2013 In declaratory judgment suits by commercial fitness club operators against a city and a county challenging the lease of public property to a non-profit organization for the construction and operation of a non-profit family fitness and recreation facility, along with a use agreement governing the leased property entered into between the city, county, and the non-profit entity, the claims asserted by the fitness clubs do not present a justiciable controversy over which the circuit courts could exercise subject matter jurisdiction. Accordingly, the judgments are vacated and the declaratory judgment actions are dismissed.

111207 Funkhouser v. Ford Motor Company 01/10/2013 In a products liability wrongful death suit against a vehicle manufacturer arising from a fire of apparently electrical origin located in or near the vehicle's dashboard, seven prior fires in other such vehicles were not substantially similar to the fire in the present case. While Code § 8.01-401.1 permits experts to rely on inadmissible material in forming an opinion, an expert cannot offer opinion testimony based on evidence that fails the substantial similarity test, and in this case, expert testimony necessarily would have been based on assumptions that have an insufficient factual basis and too many missing variables. Thus the trial court did not err in precluding plaintiff’s experts from relying on the evidence of the seven other fires as a basis for their opinions. Therefore the judgment is affirmed.

111775 Exxon Mobil Corporation v. Minton 01/10/2013 In an appeal from a jury verdict against an oil company based on injuries suffered by the decedent as a result of his developing mesothelioma from exposure to asbestos while working on the defendant's ships during his employment at a Virginia shipyard, the judgment of the circuit court is reversed based on its exclusion of evidence regarding the shipyard's knowledge of the danger of asbestos exposure and its ability to remedy the danger, and the case is remanded for further proceedings consistent with this opinion. In addition, because punitive damages are a remedy prohibited by the federal Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b), the award of punitive damages is reversed and final judgment is entered as to that claim.

120074 Allied Concrete Co. v. Lester 01/10/2013 In wrongful death litigation where there was admitted misconduct by the plaintiff and his attorney, the defendant was aware of the misconduct prior to trial, and the trial court took significant steps to mitigate its effects. It cannot be said that it was an abuse of discretion to refuse to grant a motion for a new trial based on that misconduct. A juror's failure to answer during voir dire was not due to dishonesty on her part and her lack of a response was, in fact, an honest answer to the questions asked. Hence it was not error to deny a mistrial based on the voir dire. However, the trial court based its decision to grant remittitur on an improper comparison of awards and a failure to consider the proper factors in evidence. Furthermore, the trial court failed to provide any way of ascertaining whether the remitted award bears a reasonable relation to the damages suffered by the plaintiff. Accordingly, the liability judgments are affirmed, and the trial court’s order of remittitur is reversed and the jury’s verdict is reinstated.

120158 L.F. v. Breit 01/10/2013 Code §§ 20-158(A)(3) and 32.1-257(D) do not bar an unmarried, biological father from establishing legal parentage of his child conceived through assisted conception, pursuant to a voluntary written agreement as authorized by Code § 20-49.1(B)(2). The General Assembly did not intend to divest individuals of the ability to establish parentage solely due to marital status, where, as here, the biological mother and sperm donor were known to each other, lived together as a couple, jointly assumed rights and responsibilities, and voluntarily executed a statutorily prescribed acknowledgement of paternity. The judgment of the Court of Appeals reversing the circuit court’s decision to sustain the pleas in bar filed by the child's biological mother asserting that the child's biological father, who had been in a long-term relationship with the mother but not married to her, was barred from being the child's legal parent pursuant to Code §§ 20-158(A)(3) and 32.1-257(D) because they were never married and the child was conceived through assisted conception, is affirmed.

120208 Online Resources Corp. v. Lawlor 01/10/2013 In a case by a former corporate chief executive officer asserting claims sounding in contract, unjust enrichment, and wrongful termination, seeking damages, declaratory and injunctive relief, the trial court did not err or abuse its discretion in making a variety of rulings interpreting a severance agreement entered by the parties, permitting recovery of attorneys' fees, submitting various issues to the jury, giving instructions, and holding that the evidence was sufficient to support and affirm the jury's award. However, the trial court did err in determining that the plaintiff was entitled to recover his legal fees for claims other than those relating to breach of the parties' severance agreement, and accordingly the judgment of the trial court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

120283 Ford Motor Co. v. Boomer 01/10/2013 In appeals of jury verdicts against two corporations for wrongful death from mesothelioma caused by exposure to asbestos in dust from brakes installed in certain motor vehicles, it is held that in concurring causation cases, the "sufficient to have caused" standard in prior case law and in Section 27 of the Restatement (Third) of Torts (and comments thereto) is the proper way to define the cause-in-fact element of proximate cause. Use of the multiple-sufficient-causes approach is appropriate whether the concurring causes are all tortious in nature or some are innocent. Accordingly, the trial court erred in failing to sustain objections to "substantial contributing factor" jury instructions tendered in this case. Ample evidence was presented at trial to allow a jury to conclude that a reasonable person such as the decedent would have heeded a warning had one been given. No evidence was presented that the decedent knew of certain box label warnings or reasonably could have known of them, and a reasonable jury could thus have found that warning inadequate as to him and would have correctly disregarded the fact that the decedent's behavior remained unchanged. The jury could reasonably infer that the decedent, if properly informed of asbestos dangers at the time, would have taken precautionary measures. No defect is found in the circuit court's conclusion that there was evidence sufficient for a jury to find that the failure to warn was the proximate cause of decedent's injury. The judgment is reversed and the case is remanded.

120481 Lawlor v. Commonwealth 01/10/2013 In a prosecution for one count of capital murder in the commission of, or subsequent to, rape or attempted rape in violation of Code § 18.2-31(5), and one count of capital murder in the commission of abduction with the intent to defile in violation of Code § 18.2-31(1), no reversible error or abuse of discretion is found. Multiple issues, including the retention and exclusion of jurors, jury instructions, constitutional challenges, the denial of defense motions, denial of funding for a private investigator, exclusion of evidence concerning general prison conditions, expert testimony concerning the defendant's risk of future violence in prison society only rather than society as a whole, exclusion of future adaptability proof, exclusion of evidence on voluntary intoxication, and exclusion of certain other mitigating evidence are also considered and addressed. In addition, while a defendant’s probability of committing violence, even when confined within a penal environment, is relevant as mitigating evidence of his character and is constitutionally mandated provided the evidence establishing that probability arises specifically from his character and is sufficiently personalized to him, the testimony of the defendant's expert proffered in this case was not probative of the defendant's disposition to make a well-behaved and peaceful adjustment to life in prison; thus, the trial court did not abuse its discretion in excluding it. The convictions for capital murder and sentences of death are affirmed.

120496 Dressner v. Commonwealth 01/10/2013 In an appeal challenging the circuit court's denial of a request for expungement of police and court records, a possession of marijuana charge that was later amended to a reckless driving charge, was "otherwise dismissed" as contemplated by Code § 19.2-392.2(A)(2). The circuit court's judgment denying the requested expungement is reversed.

120512 Henderson v. Commonwealth 01/10/2013 Considering the limited right of a criminal defendant to confront his accusers in a probation revocation proceeding, the evidence – including threats against the victims that were made during recorded jailhouse telephone conversations – was sufficient to support a conclusion that the victims and witnesses in two robberies the defendant had allegedly committed were intimidated by the defendant and his allies in a criminal street gang to the degree that they had all refused to testify. Evidence of witness intimidation was alone sufficient to satisfy the "balancing test" for use of hearsay in a probation revocation proceeding, and the evidence at the revocation hearing, taken as a whole, was sufficient as a matter of law to satisfy both the reliability and the balancing tests, thereby comporting with the constitutional requirements for admitting the testimonial hearsay evidence and denying defendant his Fourteenth Amendment confrontation rights for "good cause." The judgment of the Court of Appeals sustaining admission of the testimonial hearsay is affirmed.

120579 Kelley v. Stamos 01/10/2013 In an appeal by a general district court judge from an order by the circuit court granting a Commonwealth's Attorney's petition for a writ of mandamus compelling the general district judge to sentence a criminal defendant on a charge of driving while intoxicated, the chief deputy Commonwealth's Attorney had standing to petition for the writ of mandamus relating to the underlying criminal prosecution. However, the general district court had jurisdiction over the subject matter and the parties, and did not go outside the scope of any statutes or exceed his authority. Thus the order disposing of the criminal case was not void ab initio, and after it became final it could no longer be undone. The circuit court erred in issuing a writ of mandamus against the district court judge. The defendant in the criminal case may be indirectly affected by the outcome of this appeal, but he would have no right to prevent a judge from performing a ministerial act, and thus his presence in the mandamus proceeding was not required. The judgment of the circuit court is reversed and the petition for writ of mandamus is dismissed.

120698 Kiser v. A.W. Chesterton Co. 01/10/2013 In response to a question of law certified by the United States Court of Appeals for the Third Circuit pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, it is held that the enactment of Code § 8.01-249(4) did not abrogate the common law indivisible cause of action principle and that a cause of action for personal injury based on exposure to asbestos accrues upon the first communication of a diagnosis of any of the specified diseases or some other disabling asbestos-related injury or disease by a physician.

111236 Kiddell v. Labowitz 11/01/2012 (Revised 11/02/2012) In a will contest, the circuit court did not err in refusing to strike the proponent's evidence, in light of conflicting testimony about the capacity of the testator. In denying that motion, the circuit court did not rule that the presumption of testamentary capacity had been rebutted but simply ruled that the will opponent had put on sufficient evidence to survive the proponent's motion to strike. Therefore it did not err in instructing the jury about the presumption. The judgment entered upon the jury's verdict upholding the will is affirmed.

111870 Gibbs v. Newport News Shipbuildng & Drydock Co. 11/01/2012 The exclusivity provision of the Virginia Workers' Compensation Act, Code § 65.2-307(A), applies only when an employer and employee have both accepted the provisions of the Act, respectively, to pay and accept compensation. Because the United States Navy would not in any circumstances have been liable to pay compensation under the Act, it was not a shipyard's statutory employer in a wrongful death case arising from asbestos exposure suffered by a Navy seaman assigned to perform testing and inspection duties on nuclear submarines under construction at the defendant shipyard in the 1960s. The laws of Virginia cannot subject the Navy to the requirements of the Virginia Workers' Compensation Act and the plaintiff never acquired the right to seek compensation under the Act. Plaintiffs whose claims fall entirely outside the purview of the Act are not barred by its exclusivity provision, and the common-law right to bring an action to recover for workplace injuries survives as to such plaintiffs. The Circuit court therefore erred in sustaining the shipyard's plea in bar. The judgment is reversed and the case is remanded for further proceedings.

112131 Dorr v. Clark 11/01/2012 In a petition for writ of mandamus, recharacterized by the circuit court as a habeas corpus petition, the circuit court did not err in holding that the petitioner was not entitled to credit toward his Virginia sentence of incarceration for a period during which he was detained in a Virginia jail awaiting trial when, at that time, he was a West Virginia prisoner receiving credit toward his West Virginia sentence under the Interstate Agreement on Detainers, Code § 53.1-210. The circuit court erred when it recharacterized his pleading as a habeas corpus application without providing him notice and an opportunity to be heard, but that error was harmless because petitioner was not required to challenge the recharacterization on appeal and he was not entitled to credit toward his Virginia sentence for the period of temporary custody involved. The judgment of the circuit court is affirmed.

112193 3232 Page Ave. Condo. Ass'n v. City of Virginia Beach 11/01/2012 In a city's suit to condemn certain easements in connection with a beach replenishment project, while alternatively claiming ownership of the easements, the circuit court had jurisdiction and was required to determine ownership of the condemned property as part of the condemnation proceeding. Based on public use and the city's exercise of dominion and control over the property, there was sufficient evidence proving that there was an implied dedication of this property and acceptance thereof by the city. Accordingly, the circuit court did not err in finding that the city had acquired ownership of the easements by implied dedication. The judgment of the circuit court is affirmed.

112283 Transportation Insurance Co. v. Womack 11/01/2012 The circuit court erred in extending summary judgment entered against a defendant motorist to likewise bind the underinsured motorist (UIM) insurance carrier. Despite the UIM carrier's reliance on the defendant and her liability insurer to mount a defense, the UIM insurance carrier retains its own right to defend in the event that the interests of the UIM insurance carrier and the defendant or her liability insurer diverge. The circuit court's award of summary judgment is reversed and the case is remanded to allow the UIM carrier to present a defense as permitted by Code § 38.2-2206(F) and prior case law.

112320 Fein v. Payandeh 11/01/2012 In a declaratory judgment action seeking a ruling that a certain subdivision of land parcels was void for violation of applicable restrictive covenants, the circuit court did not err in granting the defendant's motion for summary judgment - and denying plaintiff's amended cross-motion for summary judgment - on plaintiff's claim that the subdivision violated the restrictive covenant based on an interpretation of the covenant implying a requirement to comply with the 1997 version of the zoning ordinance in addition to the subdivision ordinance. However, the circuit court erred in refusing to consider plaintiff's claim that the subdivision violated certain provisions of the 1997 version of the subdivision ordinance. Accordingly, the case is remanded to the circuit court for consideration of that claim.

120086 Lynnhaven Dunes Condo. Ass'n v. City of Virginia Beach 11/01/2012 An authorizing ordinance fully encompassed the actions of a city in bringing a quiet title action in the nature of a condemnation proceeding, and the evidence was sufficient to support the circuit court’s ruling that the city had proved that it had acquired certain easements by implied dedication. The circuit court erred, however, in ruling that a condominium association's loss of riparian rights caused by the creation of a sand beach was non-compensable. The beach replenishment project was not sufficiently related to the dredging of an inlet for navigation purposes because failure to place sand on a beach adjacent to plaintiff's property would not have substantially impaired the dredging operation. Accordingly, rulings of the circuit court are affirmed in part and reversed in part, and the matter is remanded for a just compensation hearing to determine the value of plaintiff's riparian rights.

120112 Brown v. Commonwealth 11/01/2012 In imposing sentence upon a defendant found guilty of three counts of robbery and three counts of using or displaying a firearm in committing those felonies, the trial court and the Court of Appeals erred in concluding that the firearms sentences pursuant to Code § 18.2-53.1 may not be imposed to run concurrently. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

120139 Conley v. Commonwealth 11/01/2012 In proceedings on a petition for writ of actual innocence originating in the Court of Appeals in Virginia and initially decided by a three-judge panel of that Court, pursuant to Code § 17.1-420(E) the full Court sitting en banc could not reverse the judgment of the three-judge panel by an equally divided vote. The judgment entered en banc is reversed and annulled, and the case is remanded to the Court of Appeals with direction to vacate the stay in this matter and to reinstate the panel's judgment.

120252 Baker v. Commonwealth 11/01/2012 The Court of Appeals did not err in upholding three convictions of a defendant charged with possession of a firearm by a convicted felon under Code § 18.2-308.2(A), because a separate offense of possession can be established with each separate act or occurrence that can be proven by the government. Thus proof of possession of a firearm on the day it was stolen and on two later occasions when defendant attempted to sell the firearm constituted distinct acts or occurrences, each reflecting an enhanced danger to the public, and convictions for the three separate charges on the facts of this case are therefore valid under Code § 18.2-308.2(A). The judgment of the Court of Appeals is affirmed.

120261 Shellman v. Commonwealth 11/01/2012 Under the Virginia Sexually Violent Predator Act, conduct of the annual hearing to assess the need for secure inpatient treatment for a respondent previously determined to be a sexually violent predator using a two-way electronic video and audio communication system as provided in Code § 37.2-910(A), did not conflict with the respondent's due process and statutory rights since he and his counsel were able to participate fully in the proceedings, including the ability to see and hear the judge, opposing counsel, and the witnesses, and to cross-examine witnesses. In the absence of any evidence that respondent and his counsel sought to communicate privately or that such a request would not have been honored, use of the video conference procedure resulted in no detrimental effect on the ability of counsel to provide competent representation and respondent was not deprived of any statutory right afforded him under the Act. The judgment of the circuit court that respondent remains a sexually violent predator in need of secure inpatient treatment is affirmed, and the case is remanded for correction of the final order to eliminate certain surplus language.

120347 TravCo Insurance Co. v. Ward 11/01/2012 In response to a question of law certified from the United States Court of Appeals for the Fourth Circuit pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, it is held that - under the terms of an "all risk"� homeowners insurance policy - any damage resulting from defective drywall manufactured in China which emitted various sulphur-related compounds and/or toxic chemicals through "off-gassing"� that created noxious odors and caused health issues, damage and corrosion, is excluded from coverage under the terms of the policy because such damage is a loss caused by latent defect, faulty, inadequate, or defective materials, rust or other corrosion, or pollutants (as defined in the policy).

120348 VanBuren v. Grubb 11/01/2012 In response to question of law certified by the United States Court of Appeals for the Fourth Circuit pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, it is held that Virginia law recognizes a common law tort claim of wrongful discharge in violation of established public policy against an individual who was not the plaintiff's actual employer, but who was the actor in violation of public policy and who participated in the wrongful firing of the plaintiff, such as a supervisor or manager.

120394 Appalachian Power co. v. State Corp. Comm'n 11/01/2012 In an appeal challenging the construction and application of Code § 56-585.1(A)(5)(e) by the State Corporation Commission to deny rate adjustment clause recovery for certain costs incurred by an electric power utility, the utility is entitled to a rate adjustment clause for recovery of actual costs it directly incurred for environmental compliance in 2009 and 2010, but did not recover through its base rates. That portion of the Commission’s decision denying recovery of environmental compliance costs on the basis that those costs are connected with projects included in the utility's base rates which the company had the opportunity to recover is reversed. That portion of the Commission’s decision denying recovery of environmental compliance costs alleged to be embedded in the capacity equalization charges the utility paid to its affiliates in 2009 and 2010 is affirmed. The case is remanded to the Commission for further proceedings consistent with this opinion.

120398 Judicial Inquiry & Review Comm'n v. Waymack 11/01/2012 In a proceeding brought by the Judicial Inquiry and Review Commission by complaint against a judge of the juvenile and domestic relations district court pursuant to the original jurisdiction of the Supreme Court set forth in Article VI, § 10 of the Constitution of Virginia and Code § 17.1-902, there is not clear and convincing evidence that the judge engaged in either "misconduct" or "conduct prejudicial to the proper administration of justice" as provided in Va. Const. art. VI, § 10. Therefore, the complaint is dismissed.

120465 Dunham v. Commonwealth 11/01/2012 Appeal from a sentencing order entered in 2010 amounted to a collateral attack on a 1998 sentencing order in a felony prosecution that was final and not appealed and that imposed a 14-year period of suspension of sentence upon good behavior. In a criminal case, collateral attack on a prior extension of a period of suspended sentence is not permissible. Consistent with the requirements of Code § 19.2-306(A), the 2010 sentence suspension took place within the 14-year period previously ordered. Therefore, the trial court did not err in revoking appellant's suspended sentence in 2010 and resuspending it for an extended period. The judgment is affirmed.

120519 Virginia Elec. & Power Co. v. State Corp. Comm'n 11/01/2012 In consolidated appeals arising from a final determination of the State Corporation Commission in a mandated biennial review of the rates, terms and conditions for the provision of generation, distribution and transmission services of an investor-owned incumbent electric utility pursuant to the provisions of the Virginia Electric Utility Regulation Act, Code §§ 56-576 et seq., there is no merit in the utility's contentions that the Commission is not permitted to utilize the 10.9% ROE set in a prior order for the entire 2011-2012 biennial period in the 2013 biennial review of the rates, terms, and conditions for the provision of generation, distribution, and transmission services by the utility. The Commission's construction of Code § 56-585.1 was based upon the proper application of legal principles, and it did not abuse the discretion afforded to it under that statute. The judgment of the Commission will be affirmed.

101909 John Crane, Inc. v. Hardick 09/14/2012 In a rehearing of certain issues relating to the appeal decided in John Crane, Inc. v. Hardick, 283 Va. 358, 722 S.E.2d 610 (2012), the jury's $2 million award of damages for the decedent seaman's pre-death pain and suffering is reinstated, and the prior opinion in this case is modified accordingly. Rehearing was granted on specified issues and the decision modified from the decision of March 2, 2012

110832 Foltz v. Commonwealth 09/14/2012 In a prosecution under Code § 18.2-48 for abduction with intent to defile, and Code § 18.2-67.5:3 for commission of a subsequent violent sexual assault, the installation of a global positioning system (GPS) device on the defendant's work van and the use of that device by the police to gather information about his movements, without a valid search warrant, constituted an unconstitutional search. Assuming without deciding that the admission of a police officers' testimony concerning their observations of the defendant on the day of the charged assault was error, the admission of that testimony was harmless beyond a reasonable doubt. The judgment of the Court of Appeals upholding defendant's convictions is affirmed.

111389 Hale v. Maersk Line Limited 09/14/2012 In a seaman's action to recover maintenance and cure as well as compensatory and punitive damages from his former employer relating to post-traumatic stress disorder and depression as a result of being sexually assaulted while he was on authorized shore leave from the defendant's ship docked in Korea, the circuit court correctly concluded that there was insufficient evidence to support the assertion that defendant had been unreasonable in denying his maintenance and cure claim, and thus plaintiff's damages on the maintenance and cure claim were limited to recovery of maintenance and cure benefits. The circuit court properly granted a motion for partial summary judgment and properly set aside the jury verdict for compensatory and punitive damages on that claim. However, the circuit court erred by not ordering a new trial, as it may not use remittitur to remedy an unfair trial of liability issues. The circuit court correctly concluded as a matter of law that the defendant did not have a duty to ensure the seaman's safety while on shore leave pursuing his own private interests. Although Jones Act liability may extend to seamen on authorized shore leave, such liability does not apply in the instant case. Refusal of a defense instruction that accurately stated the circuit court’s correct pre-trial ruling on the Jones Act and seaworthiness claims was error that was not harmless. The judgment is reversed and the case is remanded for a new trial on specified issues.

111443 Prince William County School Bd. v. Rahim 09/14/2012 The judgment of the Court of Appeals of Virginia affirming the holding of the Virginia Workers' Compensation Commission that a claimant's change-in-condition application, as an injured employee of a county school board, was timely filed is affirmed for the reasons stated in the opinion of the Court of Appeals in Prince William Cnty. Sch. Bd. v. Rahim, 58 Va. App. 493, 711 S.E.2d 241 (2011).

111661 Dewberry & Davis v. C3NS, Inc. 09/14/2012 In an appeal challenging a judgment in a contract action awarding the plaintiff, as the prevailing party, only nominal damages of one dollar in attorneys' fees and expenses for its successful defense of a counterclaim, the circuit court erred in basing its award on its determination that the defendant had a "good faith" basis for the counterclaim, and abused its discretion in limiting plaintiff's recovery of attorneys' fees and expenses in contravention of the applicable contract provision. The circuit court's finding, after considering required factors, that fees and expenses plaintiff claimed for defense of the counterclaim, which sought 1.5 million dollars in damages, were fair and reasonable did not resolve the issue whether all of the fees and expenses were necessary. The judgment is reversed and the case is remanded to the circuit court to determine the proper award to be made to plaintiff for attorneys' fees and expenses for its successful defense of defendant's counterclaim, after receiving evidence on the issue whether all of the amounts charged were necessary, and with further direction that it award plaintiff additional fees and expenses reasonable and necessary for the successful prosecution of this appeal and defense of defendant's assertion of cross-error.

111720 Gallagher v. Commonwealth 09/14/2012 (Revised 09/14/2012) In two cases presenting questions of law pertaining to the jurisdiction of a circuit court under Code § 18.2-308.2 to restore rights to ship, transport, possess or receive firearms to a person who has lost those rights as a result of a felony conviction, but whose political disabilities are subsequently restored by the Governor of Virginia, one circuit court erred in ruling that a defendant's petition must be denied because the Governor had not given the petitioner a full restoration of rights. In the second appeal, the circuit court erred in ruling that another petition must be denied because the Governor, by excepting firearm rights from an order removing political disabilities, had placed a condition on this defendant's right to possess firearms that precluded the court from considering the petition. Accordingly, both judgments are reversed and the cases are remanded to the respective circuit courts for further proceedings. Combined case with Record No. 111727

111727 Vanover v. Commonwealth 09/14/2012 (Revised 09/14/2012) In two cases presenting questions of law pertaining to the jurisdiction of a circuit court under Code § 18.2-308.2 to restore rights to ship, transport, possess or receive firearms to a person who has lost those rights as a result of a felony conviction, but whose political disabilities are subsequently restored by the Governor of Virginia, one circuit court erred in ruling that a defendant's petition must be denied because the Governor had not given the petitioner a full restoration of rights. In the second appeal, the circuit court erred in ruling that another petition must be denied because the Governor, by excepting firearm rights from an order removing political disabilities, had placed a condition on this defendant's right to possess firearms that precluded the court from considering the petition. Accordingly, both judgments are reversed and the cases are remanded to the respective circuit courts for further proceedings. Combined case with Record No. 111720

111869 McKinney v. Virginia Surgical Associates 09/14/2012 In a medical malpractice action which was converted to a wrongful death proceeding upon the death of the plaintiff, the cause of action was the defendant's alleged medical malpractice resulting in injury to the decedent, giving rise to two rights of action: (1) the decedent's right to bring an action for personal injury during his lifetime, which survived to be carried on by his personal representative after his death, and (2) the personal representative's right to bring an action for wrongful death. The circuit court erred in holding that the survival action was a different cause of action from the wrongful death action and that it was therefore not saved by the tolling provision of Code § 8.01-229(E)(3). There was a single cause of action, and a right of action to enforce it was timely if brought within six months after entry of the order granting the nonsuit, which the plaintiff did in this case. The judgment dismissing the case as time-barred is reversed and the case is remanded.

111906 Preferred Systems Solutions v. GP Consulting 09/14/2012 In a suit brought by a government contractor, arising from a subcontractor's termination of its contract with plaintiff and its subsequent agreement to perform similar work for a competitor – alleging breach of contract, misappropriation of trade secrets, and tortious interference with contract – the judgment of the circuit court is affirmed after consideration of defendant's challenges to the finding of liability on the breach of contract claim and the resulting award of damages, as well as the admissibility of certain testimony, and plaintiff's challenges to the circuit court's refusal to grant injunctive relief, its failure to award damages on the tortious interference claim, and its dismissal of the trade secret claim.

111911 Tuttle v. Webb 09/14/2012 In a suit to determine a widower's elective share of his wife's estate after she died leaving a will that bequeathed her entire estate to her son by a prior marriage, the widower's step-son, a check for $41,750 of jointly owned funds drawn by the widower to his wife gifted those funds to her, and they became her sole property. Execution and gift of the check did not remove those funds from, or decrease the value of, his wife's estate, and did not exclude those funds from her augmented estate pursuant to Code § 64.1-16.1(B)(i). Consequently, the widower's written consent to or joinder in the wife's subsequent gift to the step-son was still required, and the circuit court erred by excluding the sum of $41,750 from the wife's augmented estate. Because the husband and wife were co-makers of a $50,000 note, personally liable to the holder for the full amount owed and as between themselves, jointly and severally liable, each was entitled to the right of contribution from the other for one-half of the joint indebtedness evidenced by the note. Thus, the circuit court erred by charging the widower with more than one-half of the total indebtedness. The judgment is reversed and the case is remanded.

111912 Virginia Polytechnic Institute v. Prosper Financial 09/14/2012 The circuit court erred in vacating a default judgment for $783,000 in a breach of contract action in which plaintiff served the out-of-state defendant by the Secretary of the Commonwealth at one of two known addresses for the defendant. Compliance with statutory requirements is achieved if service to the address contained in the affidavit filed is reasonably calculated, under all the circumstances, to reach the party to be served and is not significantly less likely to provide the notice than other feasible and customary substitutes. Use of a post office box address, although one of two addresses known to plaintiff, satisfied the "last known address" requirement of Code § 8.01-329(B) and service of process using this address was not invalid. Therefore the trial court’s determination that both addresses were required to comply with Code § 8.01-329(B) was error and cannot be sustained as a basis for setting aside the default judgment order. The trial court’s judgment vacating the default decree in the action filed pursuant to Code § 8.01-428(D) is reversed because when setting aside a default judgment in an independent action, the trial court must articulate its consideration of and findings with regard to all the necessary elements. The judgment vacating the order of default judgment in the independent action brought pursuant to Code § 8.01-428(D) is reversed, and final judgment against the defendant is reinstated.

111937 Johnson v. Anis 09/14/2012 In ruling upon a habeas corpus petition relating to a motion to withdraw a guilty plea – made in a prior felony prosecution after imposition of sentence – the habeas court erred in failing to apply the "manifest injustice" standard required under Code § 19.2-296 for applications to withdraw a plea that are made after imposition of sentence. The judgment is reversed and the writ of habeas corpus is dismissed.

111949 Manchester Oaks Homeowners Ass'n v. Batt 09/14/2012 Members sued a homeowners association for damages and a declaration that its parking policy and a later purported amendment to the community declaration on parking rights and common areas were invalid. A homeowners association that assigns parking spaces in common areas must treat all lot owners equally, unless the declaration expressly provides otherwise. The declaration in this case did not do so, and the circuit court did not err in ruling that parking spaces in the common area must be assigned equally among all lot owners. That court's determination that the meeting at which a declaration amendment was adopted was improper for lack of adequate notice forms an independent basis to affirm its ruling that the amendment was invalid. This record does not support an award of compensatory damages for diminution of property value, and that portion of the judgment is reversed. The award of compensatory damages for the portion of assessments attributable to maintenance of the common area is affirmed. Code § 55-515(A) allows lot owners and occupants as well as associations to recover litigation expenses in successful suits to enforce compliance with a declaration. In this action, only the breach of contract claim satisfies applicable criteria. Plaintiffs are entitled to recover costs and fees on that claim and the circuit court did not abuse its discretion in determining the amount of that award. The judgment is affirmed in part, reversed in part, final judgment is entered in part, and the case is remanded.

112070 Inova Health Care v. Kebaish 09/14/2012 In a multi-theory civil action, the circuit court did not err in allowing the plaintiff to take a nonsuit as a matter of right pursuant to Code § 8.01-380(B) based on its determination that plaintiff's prior voluntary dismissal of claims in federal court taken pursuant to Federal Rule of Civil Procedure 41 was not a nonsuit under Code § 8.01-380. Code § 8.01-229(E)(3) does not confirm or suggest that a voluntary dismissal taken pursuant to the federal rule is a nonsuit for purposes of Code § 8.01-380. Rather, the plain language of Code § 8.01-229(E)(3) demonstrates that the reference to actions originally filed in federal court applies only to the application of that statutory tolling provision. The judgment of the trial court is affirmed.

112096 Omega Protein, Inc. v. Forrest 09/14/2012 In a seaman's action for personal injury under the Jones Act, 46 U.S.C. § 30104, plaintiff failed to present adequate evidence that his injury was caused by his employer's alleged negligence. The trial court's award of damages upon a jury verdict is reversed, and final judgment is entered for the defendant corporations and vessel.

112112 Byler v. VEPCO 09/14/2012 In two actions seeking recovery for reduction in property values because of a public utility's construction of high-voltage electric lines for public use, the complaints did not, and could not, state a cause of action for declaratory relief for inverse condemnation where the sole damage alleged was a diminution in value owing to a proximity to property taken for a public use by eminent domain. Article I, Section 11 of the Constitution of Virginia does not function to waive sovereign immunity for the Commonwealth and its proxies in order to subject them to liability as private parties for any damage asserted by a property owner that might conceivably arise from an exercise of eminent domain, but operates as a waiver of immunity from having to pay compensation for the taking or damaging of a property right. Thus, while the circuit court applied the wrong standard in reviewing the pleadings, its judgment sustaining the demurrers was nonetheless correct under the proper standard. Combined case with Record No. 112113

112113 Wolfe v. VEPCO 09/14/2012 In two actions seeking recovery for reduction in property values because of a public utility's construction of high-voltage electric lines for public use, the complaints did not, and could not, state a cause of action for declaratory relief for inverse condemnation where the sole damage alleged was a diminution in value owing to a proximity to property taken for a public use by eminent domain. Article I, Section 11 of the Constitution of Virginia does not function to waive sovereign immunity for the Commonwealth and its proxies in order to subject them to liability as private parties for any damage asserted by a property owner that might conceivably arise from an exercise of eminent domain, but operates as a waiver of immunity from having to pay compensation for the taking or damaging of a property right. Thus, while the circuit court applied the wrong standard in reviewing the pleadings, its judgment sustaining the demurrers was nonetheless correct under the proper standard. Combined case with Record No. 112112

112192 Kurpiel v. Hicks 09/14/2012 In an action for common law trespass alleging that defendants did not develop their land in a reasonable manner and that, as a result, storm water was directed onto the plaintiffs' property, amounting to a trespass causing damage, the complaint alleged sufficient facts to state a cause of action based upon a violation of the modified common law rule applicable to surface water in Virginia, and the trial court erred in sustaining the defendant's demurrer. The judgment is reversed and the case is remanded for further proceedings.

111363 Booker v. Dir., Dep't of Corrections (ORDER) 06/08/2012 Upon consideration of the petition for a writ of habeas corpus filed July 27, 2011, and the respondent’s motion to dismiss, the Court is of the opinion that the motion should be granted and the writ should not issue. The order under which petitioner is detained was entered on June 16, 2009; thus, the petition, filed more than one year after that date, is untimely under Code § 8.01-654(A)(2). The petition is dismissed.

101006 Livingston v. Va. Dep't of Transportation 06/07/2012 (Revised 08/02/2012) In a suit for property damage under the Just Compensation Clause in Article I, Section 11 of the Constitution of Virginia, it is held that a single event of flooding can support an inverse condemnation claim, and that the plaintiffs' allegations that their homes and various items of personal property were damaged for a public use under Article I, Section 11 are sufficient to withstand demurrer. When VDOT constructs an improvement for the public benefit, it does not thereby become an insurer in perpetuity against flood damage to neighboring property, but a property owner may be entitled to compensation under Article I, Section 11 if VDOT's operation of that improvement causes damage to real or personal property. Thus, where VDOT relocated the channel of a waterway in order to permit highway construction, but failed to maintain the relocated channel via dredging or otherwise, and that failure is alleged to have impacted the magnitude of the damage plaintiffs suffered as the result of the single flooding event at issue, VDOT's choice not to maintain the relocated channel evinced its election to use the highway and nearby residential developments as makeshift storage sites for excess stormwater instead of allocating its resources to maintain the relocated channel. The contentions that plaintiffs lack standing to maintain an inverse condemnation suit and that they cannot recover under Article I, Section 11 for damage to personal property, are rejected. The circuit court's judgment is reversed and the case is remanded for further proceedings.

110113 Steward v. Holland Family Properties 06/07/2012 In a suit for injuries from exposure to lead paint, the trial court did not err in sustaining demurrers filed by two landlords, because a tort duty with regard to tenants of leased properties is not imposed upon the landlords by the common law, by the leases executed in this case, or by provisions of the Virginia Residential Landlord and Tenant Act, Code §§ 55-248.2 et seq., relating to compliance with building and housing codes concerning public health and safety. The judgment of the circuit court, dismissing the complaint for failure to state a cause of action, is affirmed.

110114 21st Century Systems v. Perot Sys. Gov't Services 06/07/2012 (Revised 08/02/2012) In an action on multiple theories, including breach of and interference with contract, breach of fiduciary duty, conspiracy, trade secret violation, and conversion, in which numerous employees of plaintiff allegedly left its employ, taking millions of dollars of accounts with them to establish a competitor in the same line of business, the trial court abused its discretion in admitting expert testimony for plaintiff regarding lost goodwill damages, and erred in refusing to set aside an award of lost goodwill damages based on that testimony. However, the trial court did not err when it refused to set aside the jury's award of both punitive and treble damages, or when it refused to set aside the jury's award of computer forensics damages. The judgment is affirmed in part and reversed in part, and the case is remanded.

110532 Belew v. Commonwealth 06/07/2012 In a criminal appeal, the Court of Appeals erred in declining to consider a transcript that was not filed within the 60-day period set forth in Rule 5A:8(a) but that was made part of the record as the correction of a clerical mistake by the circuit court under Code § 8.01-428(B) and Rule 5A:9. The magnitude of the mistake to be corrected is not relevant when applying Code § 8.01-428(B), and the circuit court had authority to correct the error under this statute prior to the defendant's filing of her petition for appeal in the Court of Appeals. Thus, the circuit court also had the authority under Rule 5A:9 to make the missing transcript part of the record on appeal. The judgment of the Court of Appeals is reversed and the matter is remanded to the Court of Appeals with directions to review the petition on its merits, considering the missing transcript as part of the record.

110650 Cline v. Dunlora South, LLC 06/07/2012 (Revised 07/31/2012) A circuit court did not err in sustaining a demurrer to negligence and nuisance claims brought by a motorist severely injured when a tree located on private land fell onto a public roadway striking his vehicle. The common law precedent in Virginia does not impose a duty upon landowners to protect individuals traveling on an adjoining public highway from natural conditions on the landowner’s property. In a case where the complaint did not allege any affirmative act of the landowner making the property different from its natural state, or from its condition when the road was built, instead asserting liability based upon an alleged failure to act, the judgment sustaining the demurrer without leave to amend is affirmed and final judgment is entered for the landowner.

110820 City of Richmond v. Jackson Ward Partners 06/07/2012 (Revised 07/31/2012) In a taxpayer's challenge to city real estate taxes assessed for multiple tax years on structures located on eight tax parcels that were renovated for use as a low-income, affordable residential housing development, the taxpayer failed to carry its burden to prove the fair market value of the eight parcels of real property at issue. By appraising the eight separate, non-contiguous parcels of real property in bulk as a single apartment complex, i.e., as one tax parcel, and then assigning a value to each tax parcel based on a mathematical calculation, the taxpayer's appraiser failed as a matter of law to carry its burden to prove the fair market value of each parcel. For these reasons, the judgment of the circuit court is reversed and the case is remanded for entry of an order reinstating the city's tax assessments on the eight parcels for the tax years in question.

111207 Funkhouser v. Ford Motor Company 06/07/2012 (Revised 10/10/2012) The decision in Funkhouser v. Ford Motor Co., previously reported at 284 Va. 214 (2012) was withdrawn by Order of the Court dated September 17, 2012, in which a rehearing of the appeal was granted.

111300 Napper v. ABM Janitorial Services 06/07/2012 (Revised 08/02/2012) In an office worker's personal injury suit, arising from a fall in the public lobby area of the building while walking to the restroom, the circuit court erred when it sustained a plea in bar and dismissed the plaintiff's suit with prejudice on the basis that the defendant janitorial services company was a statutory co-employee of the plaintiff under provisions of the Workers' Compensation Act, Code §§ 65.2-100 through -1310. The judgment of the circuit court is reversed and the case is remanded for further proceedings consistent with this opinion.

111314 Mansfield v. Bernabei 06/07/2012 In an appeal from dismissal upon demurrer of a defamation action arising from statements in a "draft complaint" that was circulated to interested persons shortly before it was filed in substantially the same form, the circuit court did not err in finding that absolute privilege may attach to pre-filing communications relevant to litigation seriously contemplated in good faith. The judgment of the circuit court, dismissing the complaint on demurrer, is affirmed.

111377 Murayama 1997 Trust v. NISC Holdings 06/07/2012 (Revised 06/28/2012) The circuit court did not err in sustaining a demurrer to the second amended complaint filed by a trust seeking damages relating to a settlement agreement entered with the defendants in a previous litigation between the parties. Based upon the language of the settlement agreement and allegations regarding the adversarial relationship between the parties that precipitated the settlement, as a matter of law the trust did not reasonably rely upon any alleged fraudulent omissions and misrepresentations by the defendants regarding the value of the shares of stock that the trust sold as part of the settlement. The judgment sustaining the demurrer with prejudice is affirmed.

111396 Brandon v. Cox 06/07/2012 (Revised 09/26/2012) In a proceeding which began with a housing authority tenant's warrant in debt in general district court to recover a security deposit, because the plaintiff failed to preserve the argument she advances on appeal, the argument is waived, and the judgment of the trial court is affirmed.

111406 Barson v. Commonwealth 06/07/2012 In an appeal from a misdemeanor conviction of "harassment by computer" pursuant to Code § 18.2-152.7:1, the Court of Appeals erred in substituting a dictionary definition of the term "obscene" for that provided by the General Assembly in Code § 18.2-372, which was adopted to comport with the constitutional requirements articulated by the United States Supreme Court. The definition of "obscene" provided by the General Assembly in Code § 18.2-372, and previously applied by the Court of Appeals, is controlling. In this case the defendant's emails to his wife, as offensive, vulgar, and disgusting as their language may have been, did not meet the standard of obscenity provided by Code § 18.2-372. The judgment of the Court of Appeals is reversed and final judgment is entered vacating the conviction.

111439 Ilg v. United Parcel Service 06/07/2012 In Workers' Compensation Act proceedings on an employer's application to suspend benefits pursuant to Code § 65.2-708 for the alleged unjustified refusal of an injured employee to accept vocational rehabilitation services provided by the employer under Code § 65.2-603, the Court of Appeals erred in determining that the claimant was precluded from asserting that his refusal of rehabilitation was justified because he remained fully disabled by a hand injury related to the same accident for which he was receiving benefits for a compensable knee injury. Because there has not yet been a determination as to whether the disability related to claimant's hand was, in fact, causally related to the accident, the case is remanded for the Commission to hold an evidentiary proceeding where the burden will be on the claimant to show that his refusal to participate in vocational rehabilitation was justified in light of his hand injury.

111490 Nolte v. MT Technology Enterprises 06/07/2012 (Revised 08/02/2012) In an action by a Delaware limited liability company against multiple defendants on claims for statutory conspiracy, tortious interference with economic expectancy, breach of contract and unjust enrichment, the foreign plaintiff was subject to the registration requirements of Code § 13.1-1057(A) and the trial court did not err in concluding that this requirement was met when it obtained a certificate from the State Corporation Commission after the jury verdict in this case but before the trial court entered its final order. A discovery sanction order under Rule 4:12(b), precluding several disobedient parties from opposing plaintiff's claims at trial or presenting any defenses, was within the court's discretion in the circumstances presented and is upheld, but the court abused its discretion in precluding those defendants from cross-examining plaintiff's witnesses in the damage hearing. Objection to withdrawal of liability issues from the jury – first made in a post-trial motion 15 days after the jury instructions embodying this ruling were given – was untimely and this claim of error is barred because defendants did not state their objection with reasonable certainty at the time of the ruling as required by Rule 5:25. The judgment of the trial court is affirmed in part and reversed in part and the case is remanded for further proceedings on damages only, and defendants will be permitted to cross-examine witnesses and introduce evidence addressing the amount of damages.

111492 Rives v. Commonwealth (ORDER) 06/07/2012 In considering an appeal from defendant's conviction for violating Code § 18.2-427 prohibiting the use of profane, threatening or indecent language over public airways, based on a series of telephone messages defendant left for a woman with whom he had recently been involved in an adulterous affair, using angry, vulgar, and threatening language, the question whether language used in telephonic communications is obscene for purposes of Code § 18.2-427 and the test applied in Miller v. California, 413 U.S. 15 (1973) is immaterial in cases involving threats to commit illegal or immoral acts, where the threat is made with the intent to coerce, intimidate or harass any person. Since the defendant's language was clearly sufficient to enable a rational fact-finder to conclude that he was threatening the victim with physical injury in the form of a sexual offense, with the obvious intent to intimidate and harass her, his use of that language violated Code § 18.2-427. The conviction is affirmed.

111548 Piney Meeting House Investments v. Hart 06/07/2012 In an injunction action relating to alleged interference with use of an easement, the circuit court erred in sustaining certain exceptions to the report of a commissioner in chancery regarding a buried propane tank and a well. The court erred in concluding that a buried propane tank and well under an easement for ingress and egress constituted unreasonable interference with the easement owner’s rights as a matter of law, even if the improvements did not affect vehicular access. The circuit court's award of costs to the prevailing party is affirmed, but its award of attorney’s fees is reversed. The judgment is affirmed in part and reversed in part, and the case is remanded for further proceedings.

111563 Turner, Mario L v. Commonwealth 06/07/2012 In a prosecution on charges of aggravated malicious wounding in violation of Code § 18.2-51.2, and a related firearm offense under Code § 18.2-53.1, the circuit court abused its discretion in ruling that a witness for the Commonwealth was unavailable to testify under criteria established in Sapp v. Commonwealth, 263 Va. 415, 559 S.E.2d 645 (2002). The court conducted no inquiry into the witness' claim of memory loss, and in the absence of such an inquiry it had no basis for determining the authenticity of the claim, which is a relevant factor that should have been given significant weight in determining whether he was unavailable. The error was not harmless. The judgment is reversed, the convictions are vacated, and the case is remanded.

111569 Rushing v. Commonwealth 06/07/2012 (Revised 06/13/2012) In appeal from convictions for participation in a criminal street gang in violation of Code § 18.2-46.2(A), and use of a firearm in commission of burglary, expert testimony regarding another individual's alleged gang-related crime, offered as part of the Commonwealth's required showing of predicate acts by gang members, was insufficiently grounded upon facts in evidence. If the record is considered without the erroneously admitted evidence of the other individual's conviction, the Commonwealth proved only one predicate crime committed by a gang member rather than the two required by the statute, and therefore failed to prove an essential element of the crime, and the Court of Appeals erred in affirming the defendant's conviction for gang participation. The Commonwealth concedes in light of the decision in Rowland v. Commonwealth, 281 Va. 396, 707 S.E.2d 331 (2011) that evidence against this defendant was insufficient to support the conviction for use of a firearm in commission of burglary because there was no proof that the firearm was used before entry was fully accomplished. Both convictions reviewed on this appeal are reversed, and final judgment is entered for the defendant on those two charges.

111658 Town of Leesburg v. Long Lane Associates 06/07/2012 In litigation challenging the rezoning of certain property, the circuit court erred in finding that a locality needs the consent of a neighboring property owner to rezone a parcel that was originally part of an undivided property, to which certain proffers applied. While the landowner has a vested right under Code § 15.2-2307 in the land use allowed by a subdivision rezoning ordinance, it has no vested right in its expectation that neighboring properties would continue to develop in accordance with the zoning they had at the time the landowner purchased its property and developed it in accordance with the prior proffers, even where the property was subdivided from a parcel which was rezoned subject to proffered conditions. Code § 15.2-2303(A) does not require all successors in title to agree prior to any portion of the subdivided parcel being rezoned. The town acted pursuant to its statutory authority in rezoning the neighboring property and granting it a special use permit, and there is no evidence that its actions were unreasonable. A landowner cannot acquire a vested right in a road shown on a town plan. The town's amendment of the town plan was a legislative act that did not require the landowner's consent and was not unreasonable. The judgment of the circuit court is reversed and final judgment is entered.

111771 Giordano v. McBar Industries, Inc. 06/07/2012 In a wrongful death action, the circuit court did not err in holding that the exclusive remedy provision of the Virginia Workers’ Compensation Act, Code § 65.2-307(A), bars a non-dependent individual who is not eligible to collect benefits under the Act from bringing an action in tort. However, the trial court erred in holding that this provision of the Act bars an action in tort against the supplier of a product used in the construction process who was not engaged in the trade, business, or occupation of the decedent's employer and was thus an "other party" to whom the exclusivity provision does not apply. The judgment is affirmed in part and reversed in part, and the case is remanded.

111805 Hill v. Fairfax County School Board 06/07/2012 In proceedings under the Virginia Freedom of Information Act, Code § 2.2-3700 et seq., the circuit court did not err in determining that certain exchanges of e-mails between members of a local school board did not constitute a "Meeting" within the meaning of Code § 2.2-3701 and, thus, did not violate the notice and open meeting requirements of the Act. Nor did the circuit court err in concluding that because the citizen requesting information under the Act had not substantially prevailed on the merits of the case as provided in Code § 2.2-3713(D) in the principal focus of the petition, she was not entitled to an award of attorneys' fees and costs. The judgment of the trial court is affirmed.

111956 Gleason v. Commonwealth 06/07/2012 In the statutorily-mandated review of two death sentences under Code § 17.1-313, considering whether the sentences were imposed under the influence of passion, prejudice or any other arbitrary factor, and whether the sentences are excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, the judgment of the circuit court is affirmed.

110349 Thorpe v. Ted Bowling Construction 05/04/2012 In a claim for workers' compensation benefits brought by the widow of a man who was killed while performing work on a single task for which he was to be paid $2,500, regardless of how long the work took, the burden of proof was upon the claimant to establish a basis for computing decedent's average weekly wage beyond the fact of his single transaction with this employer. Since decedent had never worked in this occupation or for this employer before, and there was no evidence that he would ever do so in the future, it would manifestly not be fair and just to both parties to impose on the employer an award based on the assumption that the employee was hired for a continuing wage of $2500 per week. The judgment of the Court of Appeals, upholding the Workers' Compensation Commission's award of weekly benefits calculated by dividing the one-time compensation in this case by 52 to arrive at an average weekly wage of $48.08, is affirmed.

100764 AES Corporation v. Steadfast Insurance Co. 04/20/2012 (Revised 04/23/2012) In a declaratory judgment action filed by an insurance carrier against its insured, the circuit court did not err in ruling that a civil complaint filed against the insured, asserting that it was liable for damages to an Alaskan village caused by global warming attributable to the insured's intentional release of large amounts of greenhouse gases in the course of its energy production and distribution business, did not allege an “occurrence” as that term is defined in the underlying contracts of commercial general liability insurance. Even if the insured was actually ignorant of the effect of its actions and/or did not intend for such damages to occur, the village alleges that its damages were the natural and probable consequence of the company's intentional actions, and therefore does not allege property damage that was the result of a fortuitous event or accident, and such loss is not covered under the relevant policies. Accordingly, the circuit court correctly held that the insurer did not owe its insured a defense or liability coverage. The judgment is affirmed. Opinion of September 16, 2011 set aside by Order dated January 17, 2012 granting petition for rehearing.

110380 Russell Realty Associates v. Russell 04/20/2012 In an action seeking judicial dissolution and winding up of a partnership pursuant to Code § 50-73.117(5), there was sufficient evidence to support the circuit court's grant of judicial dissolution of the partnership based on its findings that the economic purpose of the partnership was likely to be unreasonably frustrated and that the business can no longer practicably operate in conformity with the partnership agreement. The judgment is affirmed.

110394 Arnold v. Wallace 04/20/2012 In a personal injury suit arising from an automobile collision, a sufficient foundation was laid for admission of the plaintiff's "medical chart" through testimony of a doctor in the practice group which treated her, explaining the regular preparation of the record and reliance upon it in treating plaintiff. It is not the offering party's obligation to negate the presence of opinions within a proffered business record; rather, it is incumbent upon the objecting party to identify any inadmissible opinion in the record, and plaintiff's objection to the "foundation" for this exhibit was insufficient to apprise the circuit court of additional specific objections to inadmissible opinions within the record. The trial court also did not err in refusing to disqualify a defense expert witness because she was a member of the same medical practice group as an expert plaintiff had initially retained in the case, since there was no showing that any confidential or privileged information was conveyed by plaintiff to the first expert, or by him to the defense witness. The judgment awarding plaintiff $9,134 is affirmed.

110410 Professional Bldg. Maintenance Corp. v. School Board 04/20/2012 In a lawsuit asserting causes of action under the Virginia Public Procurement Act, Code § 2.2-4300 et seq., the plaintiff's allegations that it submitted the lowest bid in response to a contract solicitation by a county school board, which failed to either award it the contract or to determine that plaintiff was not "responsible" as required by the Act, and that certain scores given to its bid had no basis in fact and did not bear a rational relationship with the information provided, were not merely conclusory averments, and sufficiently state a cause of action under the Act. Thus the circuit court erred in sustaining the defendant's demurrer, and the action is remanded for further proceedings consistent with this opinion.

110433 Keith v. Lulofs 04/20/2012 (Revised 04/23/2012) In a challenge to probate of a will, the circuit court did not err in ruling that the party challenging the will failed to prove by clear and satisfactory evidence that a prior will executed by the present decedent as a "mirror image" to that of her then husband created irrevocable, reciprocal wills, contractually barring the decedent from executing a valid replacement will with a different disposition of her estate. The judgment admitting a later will to probate as the governing testamentary instrument is affirmed.

110485 Laws v. McIlroy 04/20/2012 In related personal injury actions arising from a vehicular accident, the circuit court erred in granting the defendants' motions to dismiss and plea in bar after the plaintiffs requested nonsuit of their original complaints, no action was taken on that application, they filed identical replacement actions, and then the nonsuit of the original actions was granted. The circuit court erred in holding that the tolling provisions of Code § 8.01-229(E)(3) only apply when a circuit court enters the nonsuit order before a plaintiff refiles his complaint. Accordingly, the judgment of the trial court dismissing these actions with prejudice as time-barred is reversed and the cases are remanded for further proceedings.

110669 PBM Nutritionals v. Lexington Insurance Company 04/20/2012 (Revised 04/23/2012) In a declaratory judgment action by a manufacturer of infant formula that was premised on several policies of insurance, seeking interpretation of policy language as well as exclusion and exception endorsements, and a declaration of coverage, the circuit court did not err in construing pollution exclusion endorsements in the commercial insurance policies as precluding coverage for a multi-million dollar loss resulting from contamination of numerous batches of plaintiff's infant formula attributed to an unintended disintegration of water filters occurring during the manufacturing process. The judgment is affirmed.

110692 Cattano v. Bragg 04/20/2012 In a suit brought by one member of a two-person legal professional corporation, where the totality of circumstances showed that the plaintiff fairly and adequately represented the interests of the corporation as required under Code § 13.1-672.1(A), the circuit court did not err in permitting her to pursue a derivative claim at the same time that she sought judicial dissolution of the firm, and did not err in refusing to send the question of fair and adequate representation under Code § 13.1-672.1(A) to the jury where the facts relevant to that determination were undisputed. Judicial dissolution is a remedial mechanism that exists in addition to, rather than as a substitute for, shareholders rights. It therefore cannot act as a per se bar to a derivative claim, and the additional advantage of providing a limited fee-shifting mechanism in a derivative claim is a deliberate policy choice on the part of the General Assembly, not a reason to bar such a claim. The circuit court did not err in awarding plaintiff attorneys' fees and costs incurred in pursuing the derivative claim, which conveyed a substantial benefit to the firm in recovery of over $234,000 in wrongfully converted funds, did not err in awarding plaintiff fees to redress the corporation's refusal to permit her to inspect corporate documents under Code § 13.1-773.1, and did not abuse its discretion in determining the amount of the fees and costs awarded. The judgment of the circuit court is affirmed.

110733 Seabolt v. County of Albemarle 04/20/2012 The circuit court lacked subject matter jurisdiction to hear a tort claim against a county arising from the alleged failure to maintain a public park, and did not err in dismissing the complaint. Counties, as political subdivisions of the Commonwealth, enjoy the same tort immunity as does the sovereign and cannot be sued unless and until that right and liability are conferred by law. Neither the Virginia Tort Claims Act, nor the recreational facilities statute, Code § 15.2-1809, waives the immunity of Virginia counties from tort claims, and the presentment and appeal provisions in Code §§ 15.2-1243 et seq. also do not abrogate sovereign immunity of counties in tort. The judgment of the circuit court dismissing the complaint is affirmed.

110754 Burns v. Gagnon 04/20/2012 In a suit alleging negligence and gross negligence against an assistant high school principal for failure to prevent an attack upon the plaintiff by a fellow student, there was no evidence that this defendant knew or should have known that plaintiff was in danger of serious bodily injury or death, and no "special relationship" is found between principal and student. The principal had a duty to supervise and care for the plaintiff as a reasonably prudent person would under similar circumstances. The issue whether he undertook the duty to investigate a reported threat of an impending attack, and to notify security personnel, is a factual matter to be determined on remand, along with whether plaintiff can show the elements for liability set forth in the Restatement (Second) of Torts § 324A. While the principal does not have immunity under Code § 8.01-220.1:2, common law sovereign immunity applies because he was required to exercise judgment and discretion in responding to the reported threat of an attack. However, the common law immunity of the principal does not obviate claims for gross negligence, and the trial court erred in refusing to instruct the jury on that theory. Various statements admitted in the prior trial were either non-hearsay or admissible under an established hearsay exception, and thus it was not an abuse of discretion to admit them. The case is affirmed in part, reversed in part, and remanded for a new trial limited to the gross negligence claim against this defendant.

110849 Orthopedic & Sports P.T. Assocs. v. Summit Group Properties 04/20/2012 In a lawsuit brought by a limited liability company that owned a medical office building asserting claims for breach of a lease contract and damages, in which the defendant tenant filed counterclaims alleging fraud in the inducement, the trial court erred in giving an instruction to the jury that it could only find liability of the LLC for fraudulent activity if the conduct was approved by the members of the LLC. The instruction was misleading because it was not a complete statement of the law concerning whether the activity was in the normal course of the business of the LLC. The judgment of the circuit court implementing a jury verdict for the plaintiff LLC is reversed and the case is remanded.

110967 Mathews v. PHH Mortgage Corp. 04/20/2012 (Revised 05/01/2012) A landowner who has breached a deed of trust by failing to make payments as required under the associated note may nevertheless enforce its conditions precedent, and the prerequisites to foreclosure set forth in 24 C.F.R. § 203.604 are incorporated as conditions precedent in a deed of trust that secures indebtedness insured by the Federal Housing Authority under regulations promulgated by the Secretary of Housing and Urban Development under the National Housing Act, 12 U.S.C. §§ 1701-1750jj, including 24 C.F.R. § 203.604. Accordingly, while the circuit court correctly determined that the requirements of the C.F.R. provision were incorporated into the deed of trust, it erred in concluding that the landowners could not sue to enforce the conditions precedent in the deed of trust and prevent the mortgagee's foreclosure action because they had breached the deed of trust first through non-payment. The trial court also erred in concluding that 24 C.F.R. § 203.604 did not apply to the landowners because the mortgagee did not have a "servicing office" within 200 miles of the mortgaged property. The judgment sustaining the mortgagee's demurrer and dismissing the landowners' complaint is affirmed in part and reversed in part, and the case is remanded for further proceedings.

111067 Environmental Staffing Corp. v. B & R Construction Mgmt. 04/20/2012 (Revised 04/24/2012) In a sub-subcontractor's action for payment, based on a claim that the plaintiff was a third-party beneficiary under a contract between a developer and a prime contractor to perform demolition work on a public works project, the circuit court did not err in sustaining a demurrer filed by the demolition company because the parties to the underlying contract did not intend to confer any third-party benefits, and plaintiff only benefitted incidentally from the contract. The judgment of the circuit court, dismissing the claims with prejudice, is affirmed.

111144 Deerfield v. City of Hampton 04/20/2012 In a declaratory judgment proceeding against a city and a developer, brought by a committee of citizens initially constituted pursuant to a city charter provision to seek a referendum on repeal of an ordinance, the circuit court did not err in dismissing the action, albeit for the wrong reason. After the city council's action repealing the ordinance, the citizens' committee lacked standing to challenge the development. The judgment of the circuit court dismissing the committee's complaint is affirmed.

111497 Wyatt v. McDermott 04/20/2012 (Revised 04/24/2012) In response to questions of law certified to the Court by the United States District Court for the Eastern District of Virginia, pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, regarding whether Virginia recognizes tortious interference with parental rights as a cause of action, that question is answered in the affirmative, and the elements of that tort are set forth in this opinion. The common law derivation and present application of the tort, along with important affirmative defenses, are discussed.

091615 Porter v. Warden (Habeas Corpus Order) 03/02/2012 In a petition for a writ of habeas corpus filed by a prisoner convicted of capital murder, a firearms offense and grand larceny, considering procedural issues and multiple asserted claims for habeas corpus relief, no grounds for granting the writ are found, and the various claims alleging ineffective assistance of counsel are rejected as not satisfying the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984). The petition is dismissed.

101909 John Crane, Inc. v. Hardick 03/02/2012 In a suit for wrongful death arising from decedent's exposure to asbestos, under United States Supreme Court precedent construing general maritime law, the Federal Death on the High Seas Act, 46 U.S.C. §§ 30301 et seq., and The Jones Act, 46 U.S.C. §§ 30104 et seq., the circuit court erred when it permitted the jury to award non-pecuniary damages since decedent was a Navy sailor exposed to asbestos both in territorial waters and on the high seas. Evidentiary issues are also discussed. The judgment of the trial court is affirmed in part and reversed in part, and the case is remanded for entry of a final order. Rehearing was granted on specified issues in John Crane, Inc. v. Hardick, 283 Va. 358 (2012) by Order of the Court dated May 1, 2012. Rehearing was granted on specified issues and the decision modified on Sept. 14, 2012

102138 Christy v. Mercury Casualty Company 03/02/2012 In an action by an insured to recover for medical expenses incurred under an automobile insurance policy, the circuit court correctly determined that an exclusion in the policy barred the policyholder from receiving any payment for medical expenses because a portion of those expenses had been paid by workers' compensation benefits. The language of the exclusion is clear that it applies to the circumstances under which the insured's injuries occurred, not whether payment under the applicable workers' compensation law was actually forthcoming. Accordingly, as it is not disputed here that the accident arose out of and in the course of the insured's employment, the phrase "to the extent that benefits therefor are in whole or in part payable under any [workers'] compensation law" in the exclusion permits the insurer to deny coverage for any expenses which would have been subject to workers' compensation coverage, without regard to whether all of those expenses were actually paid. The exclusion is not merely a set-off for workers' compensation benefits actually paid but, rather, operates to limit the scope of the coverage of the automobile insurance policy. The judgment is affirmed.

102144 Bowman v. Concepcion 03/02/2012 In a medical malpractice action, the requirement for a plaintiff to obtain service of process on a defendant within 12 months of filing an action, Code § 8.01-275.1 and Rule 3:5(e), was not subject to extension by the circuit court for "good cause," and the court correctly determined that the plaintiff's failure to obtain service on the defendant within 12 months from the filing of the complaint resulted from a lack of due diligence on her part. The judgment dismissing the action with prejudice is affirmed.

102176 Wakole v. Barber 03/02/2012 In a personal injury case, the circuit court did not err in allowing counsel for plaintiff to argue in closing that each item of damage was separate and had a fixed numerical value based on a formula provided by the circuit court, or in permitting her counsel to enumerate each item of damages to the jury during closing argument. As presented, the argument made for specific amounts for various types of damages did not invade the province of the jury, nor did it violate Code § 8.01-379.1. The judgment of the trial court upon a jury verdict for plaintiff is affirmed.

102196 Specialty Hospitals v. Rappahannock Goodwill Industries 03/02/2012 In a suit asserting claims for breach of contract, conversion, and quantum meruit arising from alleged non-payment of amounts due under a rental laundry-linen agreement, the circuit court did not abuse its discretion in refusing to grant the defendant foreign limited liability corporation relief from a default judgment entered against it for over $815,000. At a hearing, defendant presented no evidence to show either that the information contained in the affidavit for service was in error concerning the person to be served or the address of the registered agent as the appropriate registered agent for this defendant, or that the information in the affidavit was false or incorrect. Thus, the circuit court concluded that notice was provided through proper service by plaintiff under Virginia law. The judgment is affirmed.

102270 Bing v. Haywood 03/02/2012 In an action alleging assault and battery as well as intentional infliction of emotional distress arising out of an allegedly illegal search of the body cavities of a pretrial detainee by corrections personnel, the circuit court did not err when it granted a special plea of the statute of limitations because the action was filed beyond the one-year period prescribed by Code § 8.01-243.2 for commencement of claims related to "conditions of confinement." Plaintiff was "confined" within the meaning of that Code provision and a body cavity search prior to placement of a prisoner in the prison population is related to the conditions of her confinement in order to prevent contraband, whether drugs, weapons, or other substances, from entering the facility. The judgment of the circuit court is affirmed.

102342 St. Joe Company v. Norfolk Redev. and Housing Authority 03/02/2012 In an action alleging unjust enrichment, the circuit court did not err in imposing a constructive trust on funds removed from a debtor’s operating account by a secured creditor with a perfected interest in the account, when those funds were entrusted to the debtor in its capacity as the agent of a third party. Imposition of a constructive trust was proper and necessary to prevent a failure of justice, and unjust enrichment. The judgment is affirmed.

102359 Cuccinelli v. Rector and Visitors of University of Virginia 03/02/2012 (Revised 09/12/2012) In a petition by the University of Virginia to set aside two civil investigative demands issued to it by the Attorney General of Virginia, pursuant to the Virginia Fraud Against Taxpayers Act, Code §§ 8.01-216.1 through -216.19, the University is not a "person" under the Act, and there is neither an express nor necessary implication that the Act provides the Attorney General with authority to issue CIDs to Commonwealth agencies. The plain meaning of the statute shows that the General Assembly did not intend Code § 8.01-216.2 to include agencies of the Commonwealth in its definition of "person", and the term "corporation" as used in the Act is not sufficient to expressly include corporate agencies of the Commonwealth such as public universities. The ruling of the circuit court setting aside the CIDs is affirmed on the grounds stated in this opinion, and final judgment is entered in favor of the petitioning University.

102360 Commonwealth v. Blaxton 03/02/2012 In proceedings pursuant to the Sexually Violent Predators Act, §§ 37.2-900 et seq., the respondent, who had been adjudged a sexually violent predator, could not be conditionally released for supervision outside the Commonwealth on the basis of being subject to supervised probation for another crime and therefore eligible for transfer under the Interstate Compact for the Supervision of Adult Offenders, Code §§ 53.1-176.1, et seq. The judgment of the circuit court adopting a conditional release plan prepared by the Department of Behavioral Health and Developmental Services and ordering respondent's supervision to the state of Illinois is reversed, and the case is remanded for further proceedings regarding whether there is any suitable, less restrictive alternative to involuntary inpatient treatment, consistent with the Sexually Violent Predators Act.

102409 City of Richmond v. SunTrust Bank 03/02/2012 The question presented by this appeal is whether a municipal corporation has the authority to tax a non-exempt entity for the exempt entity's ownership interest in property owned by the two entities as tenants in common. Because the municipal corporation's arguments based on purportedly applicable case authority and a non "public purpose" use theory are without merit, and its statutory authority argument is procedurally barred, the circuit court's judgment ruling that the city lacked the authority to impose the tax is affirmed.

102416 Galumbeck v. Lopez 03/02/2012 In a wrongful death action alleging medical malpractice relating to a plastic surgery procedure performed upon the decedent and post-operative failure to properly deal with the conditions reported by the patient's family, the trial court did not err in denying the defendant physician's motion for a mistrial due to a juror’s alleged misconduct where the juror was able to explain his actions, or in admitting into evidence unpaid medical bills relating to the procedure performed. Certain evidentiary arguments were not properly preserved for appellate review because of off-the-record conferences and the absence of a proper proffer. The judgment of the trial court upon a jury verdict for plaintiff is affirmed.$ib

110187 Gerald T. Dixon, Jr., L.L.C. v. Hassell & Folkes 03/02/2012 In a contract lawsuit brought by a former landowner against the company that surveyed and marked boundary lines of a parcel of land after sending a letter agreement proposal to the owner, because this writing expressly required the owner's signature as a condition precedent to it becoming a written contract and the owner failed to sign it, there was no written contract. Accordingly, the owner's cause of action was subject to the three-year statute of limitations for unwritten contracts set forth in Code § 8.01-246(4) and was barred by the time the complaint was filed. The judgment of the circuit court sustaining a plea of the statute of limitations is affirmed.

110323 Askew v. Collins 03/02/2012 In a defamation action in which the jury found defendant liable for one particular statement, and returned a verdict for compensatory and punitive damages, the trial court did not err in refusing to set aside the verdict, nor did the trial court err in refusing to set-off credit against the judgment for amounts paid in settlement by other parties sued by the plaintiff, pursuant to Code § 8.01-35.1, because that provision only applies where the other sums were received relating to the "same injury" as that for which judgment has been awarded. The judgment is affirmed.

110348 Virginia Commonwealth University v. Su 03/02/2012 Because it cannot be reasonably said on the administrative record that a Virginia public university's decision denying a student's application for in-state tuition benefits was arbitrary, capricious, or otherwise contrary to law, the circuit court erred by reversing the University's decision. The judgment is reversed and final judgment is entered.

110523 E.C. v. Virginia Dep't of Juvenile Justice 03/02/2012 In a habeas corpus proceeding brought by a petitioner who was charged in the Juvenile and Domestic Relations District Court with rape and other crimes at age 15, adjudged delinquent, committed to the Department of Juvenile Justice, required to register as a sex offender, and released from custody on parole prior to filing the habeas corpus application, the circuit court erred in granting the Department's motion to dismiss on the basis that petitioner was released from parole six days after the filing of his petition for habeas corpus relief and that, in the absence of detention, it had no jurisdiction to consider a petition for a writ of habeas corpus, or on the alternative ground that the petition was moot because the petitioner was under no form of confinement or detention. The habeas corpus statutes vested the circuit court with subject matter jurisdiction of the proceeding and active jurisdiction arose because the petitioner was "detained" for purposes of habeas corpus when the petition was filed. Release from confinement, probation or parole during the pendency of the proceeding does not automatically render the proceeding moot, and the collateral consequences of a conviction challenged in a habeas corpus proceeding may be considered in determining whether the proceeding is moot. The circuit court’s judgment that it did not have jurisdiction to consider the petition and that the habeas corpus proceeding was moot is reversed, and the case is remanded for further proceedings.

110711 LaCava v. Commonwealth 03/02/2012 In an appeal begun pro se by a defendant convicted of embezzlement in the circuit court, the Court of Appeals erred in denying her motion, made after counsel was obtained, to extend the time for filing transcripts under Rule 5A:8(a). It was error to require the appellant to show good cause why the motion was not filed within 60 days from the entry of final judgment. Because the Court of Appeals considered and gave significant weight to an irrelevant and improper factor, it abused its discretion. Upon review of the facts of this case, the appellant has shown good cause to extend the period for filing transcripts. The order of the Court of Appeals denying the motion to file transcripts is therefore vacated. Its order denying her petition for appeal is vacated because it was predicated solely on the absence of a transcript or statement of facts. The case is remanded to the Court of Appeals to consider the petition for appeal on its merits with the transcripts incorporated into the record on appeal.

110818 Enriquez v. Commonwealth 03/02/2012 In an appeal from a conviction for driving or operating a motor vehicle while under the influence of alcohol in violation of Code § 18.2-266, where the accused was found in an intoxicated condition in a motor vehicle parked on a public street, with the keys in the ignition switch, the conviction is affirmed. When an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of Code § 18.2-266. The judgment of the Court of Appeals upholding the conviction is affirmed.

111297 Burrell v. Commonwealth 03/02/2012 A criminal sentencing order following a guilty plea to attempted rape was void ab initio due to a provision stating that the court would reduce the conviction from a felony to a misdemeanor following the defendant’s incarceration and successful completion of probation. The circuit court did not have the power to render a judgment reducing the conviction from a felony to a misdemeanor more than five years after its entry of the sentencing order. Because what would have happened had the parties and the court known that the court lacked power to render part of this sentence is speculative, the ultra vires provision in the sentencing order results in the entire sentencing order being void ab initio. The circuit court’s judgment denying defendant's motion to vacate the sentencing order is reversed, the sentencing order is vacated, and the case is remanded for sentencing.

111394 First American Title Insurance v. Western Surety Co. 03/02/2012 In response to questions of law certified to the Court by the United States Court of Appeals for the Fourth Circuit pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, it is held that that: (1) the Virginia Consumer Real Estate Settlement Protection Act does not recognize a private cause of action that may be asserted against a surety and the surety bond issued pursuant to former Code § 6.1-2.21(D)(3); (2) Virginia law nonetheless permits a cause of action against a surety and the surety bond executed pursuant to CRESPA by the assertion of a common law claim; and (3) a title insurance company may have standing, not in its own right, but as a subrogee of its insured, to maintain a cause of action against a surety and the surety bond issued pursuant to former Code § 6.1-2.21(D)(3).

111438 Casey v. Merck & Co., Inc. 03/02/2012 In response to two certified questions accepted pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, arising from lawsuits in the federal courts of New York, on appeal to the United States Court of Appeals for the Second Circuit, the Court responds that (1) Virginia law does not permit equitable tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction, and (2) Code § 8.01-229(E)(1) does not permit tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction.

101168 Campbell County v. Royal 01/13/2012 (Revised 01/30/2012) In an action by landowners for damages resulting from contamination of groundwater, the trial court erred in granting summary judgment for the plaintiffs under the "Discharge of Oil Into Waters" Law, Code § 62.1-44.34:14 through § 62.1-44.34:23, because those statutes do not apply to the passive, gradual seepage of leachate and landfill gas into groundwater. Since no damage instruction was tendered setting forth the proper measure of recovery on the plaintiff's alternative claim for inverse condemnation, there is no basis on which the plaintiffs can pursue that claim or retain the jury's award of damages. The judgment is reversed and final judgment is entered for the county.

101352 Jean Moreau & Assoc. v. Health Center Comm'n 01/13/2012 In an action by a contracting party against a county healthcare commission arising out of an agreement to plan and develop an independent-living community, the circuit court did not err in dismissing a breach-of-contract claim because plaintiff did not comply with the contractual claims procedure for timely submission of claims under the Virginia Public Procurement Act, Code §§ 2.2-4300 through 2.2-4377, and did not err in finding that a quantum meruit claim was barred by the doctrine of sovereign immunity because it arose out of the commission's exercise of a governmental function. The judgment of the circuit court is affirmed.

101408 Moore v. Virginia International Terminals 01/13/2012 In a wrongful death and premises liability case, the circuit court erred in sustaining a plea in bar on the ground that the parties were statutory employees of the Virginia Port Authority and therefore subject to the exclusive remedy provisions of the Virginia Workers’ Compensation Act. The judgment is reversed and the case is remanded for further proceedings.

101411 Collelo v. Geographic Services, Inc. 01/13/2012 (Revised 06/11/2012) In considering claims against a former employee and two entities by whom he later became employed, alleging breach of contract, tortious interference with a contract, and violations of the Virginia Uniform Trade Secrets Act arising out of the employee's disclosure and unauthorized use of trade secrets to his new employers, the trial court erred when it dismissed the plaintiff's claims under the Trade Secrets Act. The trial court did not err in dismissing plaintiff's claims for breach of contract, tortious interference and attorneys' fees, or in denying the individual defendant's motion for attorneys' fees relating to the breach of contract claim. The judgments appealed from are affirmed in part and reversed in part. The case is remanded for a new trial on claims under the Trade Secrets Act.

101476 Blue Ridge Env. Defense League v. Commonwealth 01/13/2012 In an appeal from a circuit court ruling setting aside a portion of the State Water Control Board's reissuance of a five-year water discharge permit for heated water from a nuclear power plant, the Court of Appeals' judgment, reversing the circuit court's decision, is affirmed for the reasons set forth in Commonwealth v. Blue Ridge Environmental Defense League, Inc., 56 Va. App. 469, 694 S.E.2d 290 (2010).

101630 Dykes v. Friends of the C.C.C. Road 01/13/2012 In a suit for an injunction to bar owners of real property from interfering with use of a road over their property, which the plaintiffs contended was a public road, the circuit court did not err in finding that there had been no dedication and acceptance of the road as a public road. There can be no implied acceptance of an implied dedication of a rural road, and there is no evidence of a formal acceptance of the road in this case. However, the circuit court erred in finding that the road is public solely by virtue of its long and continuous use by the general public and recognition of that use by the county. The law of this Commonwealth simply does not allow for a conversion of private property to public property solely by public use. The judgment of the circuit court granting a permanent injunction and requiring the property owners to remove the pole gates and to allow the general public unrestricted access to the road is reversed, and final judgment is entered for the property owners.

101761 Eberhardt v. Fairfax County Employees' Retirement System 01/13/2012 In a circuit court proceeding seeking review of the denial of service-connected disability retirement benefits by a county, ostensibly pursued under Code § 51.1-823, the court lacked subject-matter jurisdiction to hear the appeal because that Code provision applies only to police officer retirement systems in counties with the urban executive form of government. The judgment of the circuit court granting a motion to dismiss the proceeding is affirmed.

101831 Sinclair v. New Cingular Wireless PCS, LLC 01/13/2012 (Revised 03/30/2012) In a challenge to Albemarle County Code § 18-4.2.5, the circuit court correctly determined that waivers permitting construction on certain slopes within the county are not variances within the meaning of Code § 15.2-2201 and therefore need not be considered solely by the board of zoning appeals under Code § 15.2-2310 using the criteria set forth in Code § 15.2-2309(2). However, the circuit court erred in ruling that such waivers may be granted or denied by the planning commission because the General Assembly has authorized local governing bodies to delegate such legislative power only to the zoning administrator or board of zoning appeals. Accordingly, the judgment is affirmed in part, reversed in part, and the case is remanded.

101836 Northern Virginia Real Estate v. Martins 01/13/2012 In sanction proceedings following nonsuit – after a three-day presentation of plaintiff's evidence on claims for contract expectancy, conspiracy and defamation arising from a real estate transaction – the trial court had authority under Rule 1:1 to suspend the nonsuit order and, by explicitly doing so, it properly retained jurisdiction to consider and impose sanctions. The circuit court did not abuse its discretion when it imposed sanctions jointly and severally against the plaintiff real estate company and broker, as well as their attorney, pursuant to Code § 8.01-271.1. The circuit court also did not abuse its discretion in determining the amount of the sanctions, totaling approximately $270,000, particularly in light of its finding that the plaintiffs and their attorney filed the underlying action for an improper purpose and without a proper basis in law and in fact. The argument by the sanctioned attorney that it was error to deny his motion for a suspending order in connection with reconsideration of the sanction award without hearing oral argument is without merit. The judgment of the circuit court is affirmed.

101901 Weedon v. Weedon 01/13/2012 In a suit by four adult children of a decedent, challenging a will which made a fifth sibling the primary beneficiary of the decedent's estate, the circuit court's findings that the decedent lacked testamentary capacity and was unduly influenced when executing the contested will are reversed, and the case is remanded with instructions that the contested will be admitted to probate.

101902 Redifer v. Chester 01/13/2012 In an employee's suit for personal injuries against an employer which had failed to insure payment of workers' compensation benefits as required by Code § 65.2-800, the circuit court did not err in dismissing the civil complaint because the plaintiff had pursued his workers’ compensation claim to a final order, and had a remedy for collection of his workers’ compensation award against either the employer or the Uninsured Employers’ Fund. The judgment is affirmed.

102042 Maretta v. Hillman 01/13/2012 In an action by a decedent's widow seeking recovery of death benefits paid to his ex-wife as the named beneficiary of a Federal Employees' Group Life Insurance policy, federal law preempts Code § 20-111.1(D), which otherwise would allow the widow to recover those benefits. The judgment of the circuit court is reversed and final judgment is awarded for the former wife.

110067 Collins v. Commonwealth 01/13/2012 In the prosecution of a North Carolina bail bondsman, who was not licensed as such in Virginia, for attempted abduction under Code §§ 18.2-26 and 18.2-47 and use of a firearm in the commission of a felony pursuant to Code § 18.2-53.1, the convictions are upheld. The General Assembly has abolished any common law privilege for out-of-state bondsmen to enter the Commonwealth without authorization in order to capture fugitives. The defendant's argument that he mistakenly thought the person he attempted to capture was a fugitive from North Carolina, and thus that he lacked the specific intent required for abduction, is irrelevant. In the absence of common law privilege, defendant had no right to use force to detain anyone. His later abandonment of intent to capture the individual does not affect his guilt for the attempt. The judgment of the Court of Appeals upholding the convictions is affirmed.

110100 DeMille v. Commonwealth 01/13/2012 In a proceeding under the Civil Commitment of Sexually Violent Predators Act ("SVPA"), Code §§ 37.2-900 et seq., the determination that the respondent is likely to engage in sexually violent acts in the future need not be based on expert testimony that expressly states that opinion, but is to be based on the totality of the record, including but not limited to expert testimony. The judgment of the trial court is affirmed.

110263 Branham v. Commonwealth 01/13/2012 The circuit court did not err in denying a motion to suppress evidence in a drug case, where the initial encounter between the defendant and law enforcement personnel was entirely consensual. The officer had a reasonable articulable basis sufficient to detain him while attempting to gather information to dispel or confirm his suspicions. The consensual search of defendant's person and his vehicle were not, therefore, fruits of an unlawful seizure under the Fourth Amendment. It was not an abuse of discretion to admit in evidence a certificate of analysis of the seized cocaine pursuant to Code § 19.2-187.1 because testimony was received from the deputy who seized the material, an evidence technician in the sheriff's office who sent the material by certified mail to the regional evidence laboratory, and a chemical analyst at that laboratory who affirmed that the seal on the package was unbroken when he received it to perform the analysis. The judgment of the Court of Appeals upholding his conviction is affirmed.

110402 Stevens v. Commonwealth 01/13/2012 The Court of Appeals of Virginia did not err in affirming the trial court’s denial of a defendant’s motion to suppress a statement made to police during a custodial interrogation because, in light of the circumstances, the defendant’s request for a lawyer was ambiguous and, therefore, the officers were entitled to ask further clarifying questions. The judgment upholding his conviction is affirmed.

110552 Lahey v. Johnson 01/13/2012 In ruling on a motion to dismiss a petition for writ of habeas corpus which was submitted on the final day of the statute of limitations with an insufficient filing fee, and payment of the full filing fee was not completed until days later, the circuit court did not err in dismissing the petition as time-barred under the statute of limitations set forth in Code § 8.01-654(A)(2) because under the express requirements of Code § 8.01-655, the petition could not be filed, or deemed filed, without proper payment of the full filing fee. The judgment is affirmed.

110599 Haas v. Commonwealth 01/13/2012 In considering a petition for a writ of actual innocence based on non-biological evidence under Code § 19.2-327.10, the Court of Appeals did not abuse its discretion by making evidentiary findings or by dismissing the petition without first referring the case to the circuit court for an evidentiary hearing. The judgment denying the writ is affirmed.

110632 Prieto v. Commonwealth 01/13/2012 In the review of two death sentences imposed by a jury in a remanded sentencing proceeding after a prior appeal upheld two capital murder convictions as well as convictions for rape, grand larceny, and felonious use of a firearm, the circuit court did not err in sentencing the defendant to death in accordance with the jury's verdict. Various issues, including the use of expert and victim impact testimony in sentencing, use of prior unadjudicated acts proof in sentencing, the proper scope of mitigation evidence, and whether the trial court erred in denying the defendant's motion seeking recusal of the trial judge on remand, as well as his motions seeking information regarding the composition of the grand jury and for a view of the prison facility where he would serve his sentence, are considered. No reason is found to commute or set aside the sentences of death. The judgment is affirmed. See Record No. 082464, Prieto v. Commonwealth, September 18, 2009

110775 Commonwealth v. Quarles 01/13/2012 In a prosecution for robbery and conspiracy to commit robbery in violation of Code §§ 18.2-22 and 18.2-58, considering the content and context of a statement made by a detective in the presence of the defendant describing certain incriminating evidence obtained during interrogation of his co-conspirator, it cannot be said that the detective should have known that the defendant was likely to respond by insisting upon making a self-incriminating statement, and there is nothing in the record to show that the defendant was particularly susceptible to such an evidentiary exposure. Thus, the defendant's confession was voluntary and not obtained in violation of his Miranda rights under the Fifth Amendment of the United States Constitution. The circuit court did not err in denying defendant's motion to suppress his confession. The contrary judgment of the Court of Appeals is reversed and the defendant's convictions are reinstated.

100350 Montgomery County v. Va. Dep't of Rail and Public Transportation 11/04/2011 In an action by a county challenging the constitutionality of Code § 33.1-221.1:1.1 and an agreement entered thereunder between the Virginia Department of Rail and Public Transportation and a railroad, approved by the Commonwealth Transportation Board, for the development of an "intermodal" terminal in the county as a transition point for shifting the transportation of freight by road to shipment by rail, and vice versa, the statute as applied in this case does not violate either the internal improvements clause or the credit clause of Article X, Section 10 of the Constitution of Virginia. Accordingly, the judgment of the circuit court denying summary judgment to the county and awarding summary judgment in favor of the Department defendants, the Board, and the railroad, is affirmed.

100967 Schuman v. Schuman 11/04/2011 In an appeal from a judgment of the Court of Appeals holding that various stock options and awards granted to a wife by her employer during the marriage were her separate property, the Court of Appeals gave undue weight to the fact that such rights vested after the date of separation. The judgment is reversed and the case is remanded for further proceedings.

101102 Landrum v. Chippenham & Johnston-Willis Hospitals 11/04/2011 In a medical malpractice action, the circuit court did not abuse its discretion in excluding the plaintiff's expert witnesses because her counsel, an out-of-state attorney who was admitted pro hac vice, failed to obey pretrial scheduling orders and discovery obligations concerning identification of such witnesses and timely disclosure of the substance of their expected testimony, including the filing of papers not properly signed by local counsel. The judgment is affirmed.

101209 Ruhlin v. Samaan 11/04/2011 In a personal injury action arising from an automobile accident, the circuit court did not err under Code § 8.01-404 in permitting the use of a transcript of a recorded telephone conversation to refresh the recollection of the plaintiff as a witness, or in ruling that certain prior statements of plaintiff, allegedly made in the presence of his wife, that were consistent with his trial testimony were not admissible into evidence. The judgment is affirmed.

101278 Ott v. Monroe 11/04/2011 In an appeal from the denial of declaratory relief relating to ownership rights in a Virginia limited liability company, the circuit court did not err in holding that the daughter of a majority owner in the company inherited only her father's financial interest in the company – the right to share in profits and losses and to receive distributions. Because she was not a member, the circuit court did not err in holding that she lacked authority to remove its managing member and successor managing member. The judgment is affirmed.

101316 Adcock v. Commonwealth 11/04/2011 In an application by the Division of Child Support Enforcement on behalf of a former wife, seeking to reopen a 1966 divorce proceeding to establish child support arrearages and interest for obligations arising between 1966 and 1982 to set a payment plan, the circuit court erred in ruling that the statute of limitations did not bar the proceeding. By operation of Code § 8.01-426, each installment support payment ordered by the court in its decree became a judgment on the date such payment was due if it was not paid. Code § 8.01-251(A) applies to all judgments limiting enforcement to 20 years from the date each such missed payment becomes a judgment by operation of law, unless a statutorily authorized extension is obtained. The present proceeding to collect past due child support obligations through 1982 was filed more than 20 years after any payment obligations ordered by the 1966 decree became judgments by operation of law, and is barred pursuant to Code § 8.01-251(A). The judgment of the Court of Appeals is reversed, and final judgment is entered for the former husband.

101837 Home Paramount Pest Control v. Shaffer 11/04/2011 In a contract-related action arising from a "non-compete" provision in an employment contract, the trial court did not err in dismissing the former employer's complaint. The former employer did not satisfy its burden of proving that there were legitimate business interests warranting the broad terms of the restrictive provision in this employment agreement, barring the employee from assuming functions in the pest control business in the relevant area in any capacity whatsoever. The judgment is affirmed.

102244 Bakran v. Commonwealth 11/04/2011 The Court of Appeals correctly concluded that there was sufficient evidence to support the defendant's conviction for use of a vehicle to promote prostitution, in violation of Code § 18.2-349. The Court of Appeals' judgment upholding that conviction is affirmed.

102246 Bevel v. Commonwealth 11/04/2011 In two related appeals involving the requested abatement of proceedings in a criminal case in which the convicted defendant died during the appeal process, the Court of Appeals erred in applying the abatement doctrine. The judgment of the Court of Appeals applying the abatement doctrine is vacated. However, the judgment of the Court of Appeals holding that the defendant's death, under the specific facts and procedural posture of this case, renders the appeal of his conviction moot is affirmed.

102398 Smith, Russell v. Commonwealth 11/04/2011 In a prosecution for "willfully and intentionally making a materially false statement" on a form executed in connection with the purchase of a firearm in violation of Code § 18.2-308.2:2(K), there was no evidence to support a finding beyond a reasonable doubt that the defendant knew that he had been indicted and thus had actual knowledge that his statement to the contrary was false when he signed the required federal firearms form. Since there must be evidence to support a finding that the defendant knew the truth but nevertheless intended to, and did, utter a falsehood, the Commonwealth failed to prove an element of the crime. The judgment of the Court of Appeals is reversed and final judgment is entered vacating the conviction and dismissing the indictment.

102420 Davis v. Commonwealth (ORDER) 11/04/2011 In an appeal by a defendant convicted on firearms charges, alleging error by the trial court in accepting his guilty plea, the Court of Appeals denied the appeal and the defendant has not assigned error to that Court's holding that his guilty plea waived non-jurisdictional defects. Rule 5:17(c)(1)(ii) provides that – in appeals from the Court of Appeals – only assignments of error relating to assignments of error presented in, and to actions taken by, the Court of Appeals will be considered. Rule 5:17(c)(1)(iii), effective July 1, 2010, provides that an assignment of error that does not address a finding or ruling of the tribunal from which an appeal is taken is insufficient, and that if the assignments of error are insufficient, the petition for appeal shall be dismissed. By prescribing dismissal of the appeal, this Rule provision established that the inclusion of sufficient assignments of error is a mandatory procedural requirement and that the failure to comply with this requirement deprives this Court of its active jurisdiction to consider the appeal. Since the sole assignment of error in this appeal does not address any finding or ruling of the Court of Appeals, the appeal is dismissed.

102471 Bowman v. Johnson 11/04/2011 It was not error for the court hearing a petition for writ of habeas corpus challenging a conviction for bank robbery to deny the petition. A claim relating to the alleged failure of the prosecution to correct false testimony of one of its witnesses could have been raised at trial and on appeal, and is not available for habeas review. On the remaining issues, petitioner was not prejudiced under the standards articulated in Strickland v. Washington, 466 U.S. 668 (1984), by defense counsel's tactical decision not to present proof of the absence of certain DNA in evidence seized, and the absence of red dye residue on certain clothing of the defendant, and defense counsel's introduction of evidence through a fingerprint expert that confirmed the existence of his prints at the scene of the crime but provided the opportunity for explanation to the petitioner at his trial. There was no error in the habeas court's denial of the petition.

102477 Christian v. State Corporation Commission 11/04/2011 In an appeal from proceedings before the State Corporation Commission in which an individual sought injunctive and declaratory relief for the Commission Clerk's alleged failure to produce information as required under the Virginia Freedom of Information Act, Code §§ 2.2-3700 through -3714, that Act is inapplicable to the Commission, which is not a "public body" under the Act, but derives its authority from Article IX of the Constitution of Virginia, and the Commission is not subject to a constitutional enforcement mechanism under the Act. The order of the Commission dismissing the petition is affirmed.

102478 McDowell v. Commonwealth (ORDER) 11/04/2011 An appeal from a conviction under Code § 18.2-118 for failing to return rental property is dismissed. Defendant moved to strike the evidence at the close of the Commonwealth's case, contending that the Code provision required the lessor to send notice to the address exactly as given in the lease agreement, even if it was obviously incomplete, and that because the lessor in this case added additional information to complete the address the Commonwealth could not rely upon the presumption created by the statute to establish defendant's intent to defraud the lessor and, thus, that the evidence was not sufficient to prove the offense. After this motion was denied, defendant elected to put on evidence in his defense, and thereafter failed to renew the motion to strike. Defendant thereby waiving the right to stand on the motion. A defendant who elects to offer evidence after denial of a motion to strike must renew the motion at the conclusion of all the evidence or, in a bench trial, at the very least reassert the issues raised in the original motion to strike in closing argument in order to preserve the issues for appeal. Because the issue on which this appeal was granted was waived by the defendant in the circuit court, it was not properly preserved for appeal. The ends of justice do not require that the issue be reviewed despite this waiver. The judgment of the Court of Appeals addressing the merits of the challenge to the sufficiency of the Commonwealth's evidence to prove fraudulent intent through the Code § 18.2-118(b) notice is reversed, and the appeal is dismissed.

110069 Anderson v. Commonwealth 11/04/2011 In a prosecution for fellatio by force in violation of Code § 18.2-67.1, in which the defendant had raised an inconsistency between the victim's testimony that she had not seen a gun and a note appearing in a sheriff's deputy's report that she had told him otherwise, the circuit court did not err in admitting prosecution evidence of the victim's prior consistent statements to other witnesses. A prior inconsistent statement, by itself, calls the trustworthiness of the testimony of the witness making it into question. In this circumstance, it is appropriate to admit a prior consistent statement made by such witness as it may affect his or her credibility. Assuming, without deciding, that certain parts of the prior consistent statements presented in this case were overly repetitious of trial testimony, and that the circuit court erred in admitting them, that error was harmless in the circumstances. Independent evidence from medical and law enforcement witnesses bolstered the credibility of the victim. Considering the testimony and the trial court’s ability to directly see and hear the witnesses as they testified, it can be said with fair assurance that the error had but slight effect on the trial court’s credibility determinations. Based on the record, the defendant had a fair trial on the merits and substantial justice has been reached. The judgment of the Court of Appeals upholding the conviction is affirmed.

092491 Michael E. Siska Revocable Trust v. Milestone 09/16/2011 The necessary party doctrine does not implicate subject matter jurisdiction, and under Code § 8.01-5(A) and Rule 3:12, which govern the exercise of trial court discretion dealing with cases where a necessary party has not been joined, the trial court has discretion to take steps to correct problems and to decide whether to permit the case to continue with the existing parties or to refuse to exercise its jurisdiction over the action. Accordingly, in a derivative action brought on behalf of a limited liability company by the minority member alleging several claims against the majority members, but failing to join the limited liability company, the limited liability company is deemed to be a necessary party. The judgment of the circuit court sustaining the defendants’ pleas in bar and dismissing the amended complaint for lack of standing is reversed and the case is remanded for further proceedings.

100285 Doud v. Commonwealth 09/16/2011 The sovereign immunity of the Commonwealth was not waived with respect to a negligence claim arising out of injuries suffered by plaintiff’s decedent while incarcerated, allegedly resulting from actions of a county sheriff, sheriff’s deputies and jailors, since the sheriff is a constitutional officer under the Constitution of Virginia, and not an "employee" of the Commonwealth within the definitions contained in the Virginia Tort Claims Act, Code §§ 8.01-195.1 et seq., governing the express waiver of sovereign immunity. As a result, the circuit correctly dismissed the case for lack of subject-matter jurisdiction. The judgment of the circuit court is affirmed.

100434 Fox Rest Associates v. Little 09/16/2011 In a suit for to enforce a judgment under fraudulent and voluntary conveyance theories pursuant to Code § 55-80 and § 55-81, the plaintiff presented sufficient evidence in its case-in-chief to establish a prima facie case for both of its claims, except with respect to certain equipment sales, and the circuit court erred in granting a motion to strike the evidence on the two statutory claims. The judgment is affirmed in part and reversed in part and the case is remanded.

100764 AES Corporation v. Steadfast Insurance Co. 09/16/2011 (Revised 01/20/2012) The decision in The AES Corporation v. Steadfast Insurance Co. dated September 16, 2011 was set aside by Order of the Court on January 17, 2012, which granted a petition for rehearing of the appeal.

100929 Copeland v. Todd 09/16/2011 The Court of Appeals did not err in reversing the circuit court's holding in an adoption proceeding that the birth mother's consent to the adoption was not necessary under Code § 63.2-1202(H). However, the Court of Appeals erred in concluding that the circuit court violated her due process rights under Code §§ 63.2-1203 and -1205. The judgment is affirmed in part and reversed in part, and final judgment is entered.

100981 David White Crane Service v. Howell 09/16/2011 In a dispute concerning the scope and application of the exclusivity provisions of the Virginia Workers’ Compensation Act, the defendants were entitled to the protection provided by Code § 65.2-307 notwithstanding their lack of workers’ compensation insurance, because they were plaintiff’s statutory co-employees. Thus, the circuit court erred in denying the defendants' plea in bar in a common-law personal injury action. The judgment of the circuit court is reversed and final judgment is entered dismissing the case.

101004 Bell v. Casper 09/16/2011 In two consolidated declaratory judgment actions seeking to have the beneficiary under a will declared to be the "slayer" of the decedent and barred from inheriting any of the decedent's property under the Virginia "Slayer Statute," Code §§ 55-401 et seq., the circuit court correctly held that – under the laws of intestate succession at the time of the death, as modified by the version of the Slayer Statute in effect at that date – the decedent's estate passed to the next living person who is neither the "slayer" nor one making a claim through the "slayer." Further, the Slayer Statute, as it existed in 2005, does not deprive a "slayer's" heirs the right to inherit from the "slayer" property properly belonging to the "slayer," and does not work a forfeiture of estate because it does not require a "slayer" to forfeit his property. Thus it neither implicates nor violates Virginia's statutory prohibition against "corruption of blood or forfeiture of estate." The judgment is affirmed.

101031 McCarthy Holdings LLC v. Burgher 09/16/2011 In resolving a suit with claims for declaratory relief in the application of an easement on real property, the circuit court did not err in concluding that an easement agreement granting “exclusive use,” without stating the purpose or purposes for which the easement may be used, does not permit the owner of the dominant estate to bar the owner of the servient estate from reasonable use of the easement area as a matter of law. An alleged error regarding payment of property taxes does not concern a live controversy, and is not considered. The judgment is affirmed.

101085 Zinone v. Lee's Crossing Homeowners Ass'n 09/16/2011 In a property owner's suit against a homeowners association for declaratory and injunctive relief, among other remedies, the circuit court did not err in concluding that language of the association's declaration allowing the declarant of a recorded declaration to make unilateral amendments to its terms was not inconsistent with the Virginia Property Owners Association Act, which contains provisions concerning the ability to amend a declaration that are neither mandatory nor exclusive and, thus, can be controlled by the express provisions of a particular declaration. Accordingly, the judgment of the circuit court is affirmed.

101120 Bank of the Commonwealth v. Hudspeth 09/16/2011 In a suit by a former bank vice-president seeking compensation after his employment in a position involving sales of securities was terminated, the circuit court erred in refusing to stay the litigation and to compel arbitration before the Financial Industry Regulatory Authority ("FINRA") based on that court's finding that the bank was not a "customer" as defined by the FINRA Code of Arbitration Procedure for Customer Disputes. Applying the applicable federal arbitration principles, and the broad definition of "customer" under FINRA, arbitration should have been ordered. The judgment is reversed, and the case is remanded.

101128 Comtois v. Rogers 09/16/2011 In lawsuits between partners in a Virginia law firm, the circuit court did not err in concluding that the former senior partner's equity in the firm remained at the full stated value and in awarding interest on that amount notwithstanding any deposits or withdrawals from the income accounts provided for in the partnership agreement. However, the circuit court neither made factual findings as to the value of the partners’ respective account balances nor directed the repayment of any excessive withdrawals or distribution of any surplus, and thus it failed to perform the accounting necessarily inherent in a winding up of the firm’s business and prerequisite to a settlement of its accounts among the partners and its final judicial dissolution. The judgment is affirmed in part, vacated in part, and the case is remanded for further proceedings, including factual findings as to the satisfaction of any outstanding liabilities of the firm, the extent of any residual surplus, the value of each partner’s accounts based on his respective contributions and withdrawals, and the proportion to which any partner either is liable to the firm or is entitled to a distribution based on the provisions of the partnership agreement.

101232 Kummer v. Donak 09/16/2011 In a petition for aid and direction by an administrator of a decedent's estate, the circuit court correctly concluded that the adoption of the decedent's biological sister by another person severed the sister's legal ties to the decedent and her estate, even though the adoption was done while the sister was an adult. The adoption divested the sister and her descendants of inheritance rights running from her biological family. Thereafter, the sister's children were not the decedent's heirs-at-law and cannot inherit from her estate. The judgment is affirmed.

101457 Turner v. Commonwealth 09/16/2011 In a petition for a writ of actual innocence based on newly-discovered non-biological evidence, "recantation" testimony offered by another individual who was complicit in and prosecuted for the same homicide focused upon whether he restrained and choked the victim. Nothing in that testimony is material to the issue of whether a rational trier of fact could find petitioner guilty beyond a reasonable doubt of abduction of the victim with intent to defile involving deception, as the predicate for petitioner's conviction under the felony murder statute. Thus petitioner has not met his statutory burden of proof for the issuance of a writ of actual innocence and the Court of Appeals did not err in dismissing the petition and in denying petitioner's request to vacate his convictions. The judgment of the Court of Appeals is affirmed.

102314 Commonwealth v. Bell 09/16/2011 In a first annual review proceeding under the Virginia Civil Commitment of Sexually Violent Predators Act for a person previously found to be a predator under the Act and now committed to the Department of Behavioral Health and Developmental Services, the judgment of the circuit court that respondent is a sexual predator who qualifies for "conditional release" is without evidence to support it. Conditional release is permitted only after a judicial determination that the respondent satisfies all four criteria stated in Code § 37.2-912(A). In this case the first criterion – that he does not need secure inpatient treatment but needs outpatient treatment or monitoring – is not supported. On the record, the respondent has not satisfied the first criterion set forth in Code § 37.2-912(A) and he does need secure inpatient treatment. The judgment of the circuit court is reversed and final judgment is entered in favor of the Commonwealth.

091047 Brooks v. Commonwealth 06/09/2011 In a prosecution for possession of cocaine in which the circuit court denied defendant's motion to suppress drugs recovered during a consent search for weapons as well as a statement made by defendant concerning his ownership of those drugs, in light of the testimony evaluated by the circuit court, defendant failed to carry the burden of showing that the search was unconstitutional. Because the search was permissible under the Fourth Amendment, the fruit of the poisonous tree doctrine does not require exclusion of his accompanying statement. In addition, because the defendant was not in custody under totality of the circumstances and governing Fifth and Sixth Amendment constitutional standards, the Court of Appeals did not err in affirming the circuit court's denial of defendant's motion to suppress the drugs and his statement. However, as the Commonwealth conceded, the admission of a certificate of analysis concerning the recovered drugs was error under the Confrontation Clause. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for a new trial.

092465 Taco Bell v. Commonwealth 06/09/2011 In a condemnation proceeding, the trial court erred in striking evidence relating to certain alleged fixtures used in the operation of a fast food restaurant, and in directing the jury to disregard those items in determining compensation for the value of the property taken by the Commonwealth. Considering the evidence in the light most favorable to the landowner, the evidence on the issue whether the items in question were fixtures or personalty for condemnation purposes was sufficient to submit to the jury. The judgment of the trial court is reversed and the case is remanded for further proceedings.

100199 Bennett v. Sage Solutions 06/09/2011 In a suit for severance payments under an employment contract, the employee’s repudiation of future obligations under the employment contract, even after performance has begun, could be used by the employer as a defense against a breach of contract claim. The circuit court did not err in submitting the issue of repudiation to the jury, in allowing the defendant employer to amend its pleading to include that defense, in refusing to give the jury a clarifying instruction, or in refusing the plaintiff's motion to set aside the verdict. The judgment of the circuit court is affirmed.

100333 Mulford v. Walnut Hill Farm Group 06/09/2011 (Revised 06/10/2011) In an action by a landowner claiming a legal right to access certain property, the plaintiff failed to prove the requisite formal acceptance or express assertion of dominion over a purported access road by public authority. The trial court’s finding of fact regarding lack of use by plaintiff's predecessors was not plainly wrong, nor did the circuit court misapply the law in denying a prescriptive easement. There was no error in finding that the plaintiff failed to show that defendant acted with unclean hands, or that it should be estopped from denying an easement. There was no basis on which to presuppose the existence of the easement, and thus the circuit court did not err when it required the plaintiff to prove its existence. The judgment of the circuit court is affirmed.

100347 Riverside Owner v. City of Richmond 06/09/2011 In a taxpayers' action for relief from allegedly erroneous assessment of taxes on real property under Code § 58.1-3984, seeking a refund of overpayments, and recovery of attorney's fees, the city's use of an internal "policy" to calculate the amount of a partial exemption was inconsistent with provisions of the governing local ordinance, which requires that a property’s first assessed value after rehabilitation be used to determine the amount of a partial exemption. The taxpayers were not given a partial exemption that was greater than the increase in assessed value resulting from rehabilitation, because the first assessed value after rehabilitation did not include market appreciation. Any error in admitting expert testimony about real estate appraisal and the underlying rehabilitation program was harmless because it did not address issues decided by the trial court and could not have affected the result. There was no error in including retail space in the final order under these pleadings and this evidence. Nor was there error in denying attorney's fee recovery since this action was brought under the tax Code and not the parties' agreement where the purported fee recovery right is found. The judgment of the circuit court is affirmed.

100399 Kocher v. Campbell 06/09/2011 In a personal injury action in which a plea in bar raised the statute of limitations, under Virginia standing and limitations law, plaintiff lacked standing to bring suit after filing a petition for bankruptcy, causing his claim to become an asset of his bankruptcy estate. Because all three complaints filed against the defendant were legal nullities filed by a party who lacked standing, they, and several purported nonsuits, had no tolling effect. The statute of limitations had run before suit was filed, and the circuit court erred in denying the defendant’s motion for summary judgment. The judgment is reversed and the case is dismissed.

100457 Lewis-Gale Medical Center v. Alldredge 06/09/2011 In a case alleging that hospital personnel tortiously interfered with a physician's contractual and employment relationship with her medical practice group, the actions of hospital personnel in exercising the hospital's dominant position in its commercial relationship with the medical practice group, taken to achieve the goal of having plaintiff’s employment terminated, were not, as a matter of law, “improper methods” required to prove that the purposeful interference was tortious. Accordingly, the circuit court erred in not striking plaintiff’s evidence and in not granting summary judgment to the hospital. The judgment confirming the jury verdict in plaintiff's favor is reversed, and final judgment is entered for the hospital.

100499 Rutter v. Oakwood Living Centers 06/09/2011 In a wrongful death case during which the trial court purported to enter a self-executing, prospective order under Code § 8.01-335(B) providing for future discontinuance or dismissal of the action upon the required period of inactivity, the order was invalid. The subsequent order reviewed in the present appeal relating to one of the parties originally named in the action is not final for purposes of appeal, and the appeal is dismissed without prejudice.

100632 Davis v. County of Fairfax 06/09/2011 In proceedings under former Code provisions relating to an alleged unfit pet owner, the Court of Appeals erred in affirming the judgment of the circuit court, which had exercised subject matter jurisdiction over a case that originated in general district court, was appealed to the circuit court and non-suited there, was subsequently re-filed in the general district court, dismissed, and then appealed to the circuit court. The judgment is reversed and final judgment is entered.

100650 Eastlack v. Commonwealth 06/09/2011 A defendant in a criminal case who has been found not guilty by reason of insanity may not invoke the provisions of Code § 19.2-392.2 to obtain expungement of the police and court records pertaining to his criminal case. If the word “acquitted” in the expungement statute is interpreted to include acquittals by reason of insanity, the absurd result would follow that the General Assembly would have, by enacting the expungement law, made all its enactments relating to acquittals by reason of insanity potentially unenforceable. Such an intent cannot be attributed to the General Assembly; accordingly, the judgment of the circuit court denying the acquittee's petition for expungement in the instant case is affirmed.

100797 Cappo Management V, Inc. v. Britt 06/09/2011 Article Nine of the UCC as adopted in Virginia, Code §§ 8.9A-101 et seq., governs secured transactions, including a consumer's purchase of a car from a dealership under a retail installment sales contract and related documents. When a consumer trades in an old car, makes a down payment towards the purchase of a new car, and assumes an obligation to pay monthly installments until the full purchase price of the new car is satisfied, the consumer becomes a "debtor" under Code § 8.9A-102(a)(28)(A) and is entitled to the protections afforded under Article Nine. Thus, the circuit court did not err in its judgment that a dealership's repossession of a car previously sold to a consumer was governed by Article Nine and that the dealership failed to provide the consumer with the required notice of disposition of the car required by Article Nine. The judgment is affirmed.

100841 Dabney v. Augusta Mutual Insurance Co. 06/09/2011 In a declaratory judgment proceeding concerning the obligation of an insurer to defend and indemnify the estate of a homeowner in whose house two pit bull dogs resided at the time they attacked the plaintiff, the circuit court properly limited plaintiff to relief based on the allegations in her amended complaint, which contained particular allegations concerning alleged timely notice of the insurance claim. However, given the extenuating circumstances presented in this case, whether the notice of claim was timely under the policy was a question of fact upon which reasonable minds could disagree. Thus the circuit court erred in ruling that notice untimely as a matter of law, and the issue of substantial compliance with the policy should have been submitted to the jury. The judgment is affirmed in part, reversed in part, and the case is remanded.

101737 Rix v. Commonwealth (ORDER) 06/09/2011 In considering defendant's challenge to the sufficiency of the evidence supporting her conviction for operating a motor vehicle while under the influence of alcohol, second offense within five years, in violation of Code §§ 18.2-266 and -270, the undisputed facts from the record show that, at a time when she does not dispute that she was intoxicated and as the arresting officer watched, she took actual physical control of a stopped, but fully operational, motor vehicle on a highway, with its ignition key in the “on” position and its engine running. She thus met the statutory definition of an “operator” of a motor vehicle under Code § 46.2-100. Accordingly, the judgment of the Court of Appeals upholding the challenged conviction is affirmed.

101866 Kelso v. Commonwealth 06/09/2011 The crime of causing a juvenile to assist in the distribution of marijuana in violation of Code § 18.2-255(A)(ii) involves different elements of a single crime. One of the acts which must occur for conviction is distribution of the contraband by the juvenile to a third party. Under these circumstances, the place where that act occurred is an appropriate venue for prosecution. Since the prosecution in this case occurred in an appropriate venue measured by this standard, the circuit court properly denied defendant's motion to dismiss for improper venue. The judgment of the Court of Appeals upholding the conviction is affirmed.

101870 Sanders v. Commonwealth 06/09/2011 In a prosecution for forcible sodomy, rape, object sexual penetration, and taking indecent liberties with a child under the age of 13, there was no violation of the defendant's Confrontation Clause rights when the trial court permitted the state's medical witness to testify to her diagnosis that the child had the same sexually transmitted disease as her father, based in part on a California laboratory report of samples taken from the child which was not admitted in evidence. Under the circumstances of this case – in which there was no evidence that the out-of-state medical laboratory understood that its test results were intended for use in the prosecution, and in which the physician had both treatment and prosecution responsibilities and, in fact, treated the victim's sexually transmitted disease as a result of the laboratory report, in light of Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527 (2009), and other United States Supreme Court authority, the testimony did not involve "testimonial" use of the laboratory report. The convictions are affirmed.

101933 Commonwealth v. McNeal 06/09/2011 In a prosecution for failing to return rented personal property valued at more than $200 within ten days after expiration of the rental period in violation of Code § 18.2-118, the Court of Appeals erred in finding that contradictory testimony rendered the evidence insufficient to support the conviction. The judgment of the Court of Appeals is reversed and the conviction is reinstated.

102043 Level 3 Communications v. State Corporation Commission 06/09/2011 In considering several applications filed by a Virginia-based telecommunications company seeking to have the State Corporation Commission deduct certain Internet-related revenues when determining the gross receipts it certifies to the Virginia Department of Taxation pursuant to Code § 58.1-400.1, the Commission properly declined to allow the deduction, which the General Assembly did not provide for in the gross receipts statute. To allow for such a deduction would have required the Commission to exceed its statutory authority. Accordingly, the Commission's order dismissing the applications is affirmed.

091495 Uniwest Construction v. Amtech Elevator Services (Order) 04/21/2011 (Revised 05/23/2011) Upon consideration of the questions presented in petitions for rehearing concerning the disposition reached in Uniwest Construction, Inc. v. Amtech Elevator Services, Inc., 280 Va. 428, 699 S.E.2d 223 (2010), the matter is remanded to the circuit court for consideration of the legal and factual efficacy of questions pertaining to the scope or extent of liability under the commercial umbrella insurance policy at issue. Part II(D) of the above-referenced opinion is withdrawn, and the matter is remanded with instructions as to specific determinations to be made by the circuit court. See Record No. 091495, Uniwest Construction v. Amtech Elevator Services, dated September 16, 2010

092501 Virginia Dept. of Corrections v. Estep 04/21/2011 In an appeal from the judgment of a circuit court implementing the decision of a hearing officer pursuant to Code § 2.2-3006(D), a part of the State Grievance Procedure for employees of the Commonwealth, Code § 2.2-3000 et seq., the circuit court’s finding that the new position to which the grievant was assigned was not comparable to the one to which she was entitled to be reinstated, was supported by the evidence. The judgment is affirmed and the matter is remanded for the ascertainment and award of appellate attorney's fees.

092561 Commonwealth v. Smith, Corey 04/21/2011 In an appeal from a conditional plea of guilty challenging the trial court's failure to suppress evidence of a weapon seized in a pat-down search of the defendant, a frisk of a passenger in an automobile conducted during a valid traffic stop was supported by reasonable suspicion based upon an alert in a police computer system that the passenger was “probably armed and a narcotics seller/user.” The judgment of the Court of Appeals is reversed and final judgment is entered affirming the defendant's conviction.

092583 Volpe v. City of Lexington 04/21/2011 In a suit by the administrators of a minor decedent who was an invitee at a city park that included a dammed portion of a river, and drowned in a dangerous water current (hydraulic) around the dam, the natural, ordinarily encountered dangers of the river were as a matter of law open and obvious, but the dangerous current was not necessarily visible to a swimmer, and the circuit court erred in holding as a matter of law that the dam presented such an open and obvious danger. That factually specific determination was an issue for the jury. Regarding plaintiffs' gross negligence claim, reasonable persons could differ on whether the cumulative effect of the circumstances constituted a form of recklessness or total disregard of precautions, an absence of diligence or lack of even slight care by the city, and it was error to strike the evidence on that claim. However, there was no error in the granting of a motion to strike plaintiffs' claim for willful and wanton negligence against the city. The judgment is affirmed in part and reversed in part, and the case is remanded.

100034 Virginia Marine Resources Comm'n v. Clark 04/21/2011 In an appeal by residents who challenged a decision of the Virginia Marine Resources Commission the Court of Appeals erred in concluding that Rule 2A:4 sets out the only requirements for a legally sufficient petition for appeal from an administrative action. The agency challenge premised on the complaining residents' lack of standing to seek judicial review should have been considered. The circuit court did not err in dismissing the residents’ petition for appeal for failure to allege facts sufficient to demonstrate that they were “person[s] aggrieved” by the decision they sought to appeal within the intendment of Code § 28.2-1205(F). The judgment of the Court of Appeals is reversed and the judgment of the circuit court is reinstated.

100048 Dean v. Board of County Supervisors 04/21/2011 In a condemnation proceeding, there was no abuse of discretion in the ruling of the circuit court barring, on a motion in limine, introduction by the landowners of evidence at trial regarding a particular purported comparable sale of property to the same condemnor, because the landowners in the present case failed to produce evidence sufficient to establish that the purported comparable sale was voluntary and free from compulsion and not by way of compromise. The judgment is affirmed.

100052 Chalifoux v. Radiology Associates 04/21/2011 In a medical malpractice case, the circuit court erred in ruling that the "continuous treatment doctrine" was inapplicable to the plaintiff patient's claims against a radiological practice group that had conducted numerous imaging studies of the plaintiff over a period of time concerning the same or related ailments. The judgment dismissing the case on statute of limitations grounds is reversed and the case is remanded for further proceedings.

100068 Jennings v. Board of Supervisors 04/21/2011 In a challenge by a landowner with riparian rights to a locality's authority to regulate the construction of additional mooring slips and accompanying piers beyond the mean low-water mark of a tidal, navigable body of water, the circuit court did not err in denying relief on claims that the regulation was beyond the jurisdiction of the locality, and that the special exception permit ordinance is void for lack of adequate standards to guide the governing body's decision to grant or deny a special exception permit. The judgment of the circuit court is affirmed.

100070 Ford Motor Company v. Gordon 04/21/2011 In a Workers' Compensation Act proceeding in which a claimant's change-in-condition application for benefits was rejected by the Workers' Compensation Commission as time-barred, the Court of Appeals did not err by reversing the commission's decision and by holding that the provision in Code § 65.2-708(C) tolling the statute of limitations in Code § 65.2-708(A) runs anew under each successive award of compensation for a compensable injury. The judgment of the Court of Appeals holding that the claimant's change-in-condition application was not time-barred under Code § 65.2-708 is affirmed.

100082 Farmers Insurance Exchange v. Enterprise Leasing co. 04/21/2011 In a declaratory judgment proceeding it is held that a self-insured rental car company may seek indemnification from its renter for damages the company paid to a third party due to the renter’s negligence in an automobile accident. In this case the renter’s insurer is required, under the terms of its policy, to reimburse the rental car company for damages it satisfied on behalf of the insured. The judgment is affirmed.

100108 Riverside Healthcare Ass'n v. Forbes 04/21/2011 In a trustee's action concerning allocation of compensation from an eminent domain proceeding between income and principal, because the grantor expressly directed the allocation of such compensation to income under the language appearing in the trust agreement, the portion of the circuit court's judgment granting partial summary judgment in favor of the trustee is affirmed. However the circuit court erred in sustaining the trustee's demurrer to the remainder beneficiary's counterclaim for an equitable accounting pursuant to Code § 8.01-31, and that portion of the judgment is reversed.

100149 Scott v. Burwell's Bay Improvement Ass'n 04/21/2011 In a case involving riparian rights, the circuit court did not err in ruling that a party seeking to establish ownership of riparian rights by adverse possession, or, alternately, a prescriptive easement to use those rights, failed to prove these claims by clear and convincing evidence. The evidence to show that the use of the riparian rights was exclusive and continuous for the required period of time fell well below the clear and convincing standard required to prove adverse possession or prescriptive use of the riparian rights by the immediate prior occupants. Thus tacking was not available to establish the requisite time periods. The judgment of the circuit court is affirmed.

100157 Necaise v. Commonwealth 04/21/2011 The circuit court did not err in denying a petition pursuant to Code § 19.2-392.2 for expungement of all police and court records pertaining to two felony charges that were disposed of by the court's acceptance of the defendant's guilty pleas to lesser included misdemeanor offenses. Defendant was found guilty of offenses charged within the warrants upon which he was arrested, and was not an "innocent citizen" entitled to the benefit of the expungement statutes. The judgment is affirmed.

100260 Dunn, McCormack & MacPherson v. Connolly 04/21/2011 In a suit alleging intentional interference with contractual relations, the circuit court did not err when it sustained the individual defendant's demurrer and held that the law firm plaintiff failed to state a prima facie cause of action for tortious interference with a contract. The amended complaint did not sufficiently allege "improper" interference with the firm's at will contract. The judgment dismissing the case is affirmed.

100287 Ruby v. Cashnet, Inc. 04/21/2011 (Revised 05/25/2011) Under former Code § 6.1-459(6)(i) of the Payday Loan Act, which is now codified at Code § 6.2-1816(6)(i), a payday lender is prohibited from refinancing, renewing or extending any payday loan, and a payday lender violates this provision when it makes a loan to a borrower immediately after the borrower repays in full a previous loan. Consequently, the circuit court erred in finding that a payday lender's practice of making a loan to a customer immediately after the customer repaid a previous loan was not a refinancing or renewal under Code § 6.2-1816(6)(i) and, therefore, not in violation of the Act. The circuit court’s judgment in favor of the payday lender is reversed and the case is remanded for further proceedings.

100303 Condominium Services v. First Owners' Ass'n 04/21/2011 (Revised 05/25/2011) In a lawsuit between a condominium owners' association and a management services company, the circuit court did not err in sustaining the association's demurrers and striking an affirmative defense. The agreement between the parties, although it referenced the association's bylaws, did not require a three-fourths vote of the unit owners before the association could terminate the services of the management agent. The circuit court also did not err in denying a motion to dismiss the association's conversion claim, because the agreement had been terminated at the time the management company caused over $90,000 in fees to be deposited to its own bank account, and it was not error to grant summary judgment on the conversion claim. Expert witness designations, testimony regarding damages, punitive damages and remittitur are also discussed. The judgment is affirmed.

100305 Gunter v. Martin 04/21/2011 In a suit to quiet title and for allotment of property in lieu of partition filed by a plaintiff who alleged that he was the biological heir of a decedent, the remedy sought with respect to his alleged interest in the property was different from that sought in a prior action filed four years earlier against the same defendant. Thus, an element required to prevail on a plea of res judicata as that doctrine existed prior to the effective date of Rule 1:6 has not been established in this case. The judgment of the circuit court is reversed and the case is remanded for further proceedings consistent with this opinion.

100332 GEICO v. USAA 04/21/2011 In a declaratory judgment proceeding brought by two insurance carriers after an automobile crash, there was no evidence that the driver of a vehicle was using it within the scope of permission he might reasonably have believed he had from its owner or her daughter as the primary user, and accordingly the judgment upholding coverage under the two policies involved in this case is reversed.

100338 Lewis v. Kei 04/21/2011 (Revised 05/25/2011) In a case alleging malicious prosecution, false imprisonment, and defamation against the law enforcement officer who obtained a warrant for the arrest of the plaintiff for attempted abduction of a 10-year-old child based upon a citizen’s complaint that ultimately proved to be unfounded, the judgment sustaining the officer's demurrer to the malicious prosecution and false imprisonment claims is affirmed, but the judgment sustaining his demurrer to plaintiff's defamation claim is reversed and the case is remanded for further proceedings.

101282 Burton v. Commonwealth 04/21/2011 In a prosecution for abduction in violation of Code § 18.2-47(A), the evidence was not sufficient to prove that the defendant intended to deprive the victim of her personal liberty. The judgment of the Court of Appeals upholding the defendant's conviction is reversed, the conviction is vacated and the indictment is dismissed.

101289 Byrd v. Johnson 04/21/2011 In a habeas corpus proceeding based upon trial counsels' failure to renew a motion to strike the evidence at the conclusion of all the evidence, and failure at sentencing to obtain a ruling on a motion to set aside the verdict, petitioner suffered no prejudice under the standards set in Strickland v. Washington, 466 U.S. 668 (1984), because the jury in the criminal trial was entitled to reject his version of events and the Commonwealth's evidence, considered in the light of the instructions given by the court, fully supports the verdict. If counsel had performed without any professional errors and the petitioner's direct appeal had been available for review in the appellate courts free of any procedural bar, there is no reasonable probability that a different result would have been reached. The judgment of the circuit court is affirmed.

062556 Juniper v. Warden (ORDER) 03/04/2011 Upon consideration of a petition for a writ of habeas corpus, respondent's motion to dismiss the petition is granted. Petitioner's various claims alleging ineffective assistance of counsel are rejected as not satisfying the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and his remaining claims are rejected as lacking merit or as being either procedurally barred or improperly raised.

080524 Gray v. Warden (ORDER) 03/04/2011 Upon consideration of a petition for a writ of habeas corpus, the petition is granted as to petitioner's claim that his convictions for capital murder under Code § 18.2-31(7) and (8) arising from the same act violated the constitutional prohibition against double jeopardy. Several other claims raised in the petition alleging ineffective assistance of counsel are rejected as not satisfying the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and his remaining claims are rejected as lacking merit or as being either procedurally barred or improperly raised. A writ shall issue to remand petitioner's convictions under Code §§ 18.2-31(7) and (8) with directions, and the remainder of the petition is dismissed.

091244 AME Financial Corp. v. Kiritsis 03/04/2011 In a suit for declaratory relief and damages alleging breach of contract, fraud, conspiracy and violation of the Virginia Consumer Protection Act in the substitution by a lender of a changed promissory note in a mortgage transaction, no abuse of discretion is found in the trial court's refusal to relieve a defendant that failed timely to file an answer signed by a Virginia attorney from its default under the "good cause" standard, and there was no error in the trial court's consideration of whether the complaint stated a cause of action or in its granting of judgment against one of the defendants on a cross-claim. The judgments are affirmed.

091803 Reed v. Commonwealth 03/04/2011 There was no error in the denial by the circuit court of a defendant's motion to vacate his convictions on the ground that the judgment was void ab initio because the foreman of the grand jury did not sign the indictments under which the defendant was subsequently tried, convicted, and sentenced. The absence of the foreman’s signature from an indictment is a defect in form only and does not render the indictment so defective as to be in violation of the Constitution under Code § 19.2-227. The judgment is affirmed.

092158 Ford Motor Credit Co. v. Chesterfield County 03/04/2011 (Revised 03/04/2011) In ruling on a taxpayer's application for refund of business, professional and occupational license taxes paid to a county, the circuit court erred in holding that all the taxed gross receipts from a car manufacturer's credit and financing subsidiary's local branch were attributed to the exercise of a privilege subject to licensure at the branch within the county under Code § 58.1-3703.1(A). The circuit also erred in concluding that it was not "impractical or impossible to determine to which definite place of business gross receipts should be attributed" under the requirement of Code § 58.1-3703.1(A)(3)(a)(4) and (b) that the gross receipts from the performance of services shall be attributed to the definite place of business at which the services are performed. The judgment is reversed and on remand the entitlement to a deduction must be determined under Code § 58.1-3732(B)(2).

092323 Johnson v. Woodard 03/04/2011 In proceedings following petitions to remove members of a county board of supervisors pursuant to Code §§ 24.2-233 and 24.2-235 for alleged neglect of duty and misuse of office, a nonsuit order granted by the circuit court avoided the application of the 21-day time period of Rule 1:1 by including specific language stating that the court was retaining jurisdiction to address matters still pending, and that “for the purposes of Rule 1:1, this is not a final order.” While the court thus had jurisdiction to consider a sanctions application pending when the nonsuit was granted, under Code § 8.01-271.1 a court may only sanction an “attorney or party” who violates a duty imposed by the statute. Because the citizen petitioners were not parties to the removal action, the circuit court erred in imposing sanctions against them. The judgment is reversed and final judgment is entered on this appeal.

092385 Lee v. City of Norfolk 03/04/2011 In an action for alleged constitutional, statutory and common-law wrongs by a city in demolishing a building needing repair on the plaintiff's property that the city had deemed to be a public nuisance, there is no reversible error in the circuit court's dismissal, upon demurrer and pleas in bar, of the claims for compensation and damages. The judgment is affirmed.

092395 Kozmina v. Commonwealth 03/04/2011 The trial court did not err by denying a defendant’s motion to disqualify the Commonwealth’s Attorney from prosecuting a charge of first offense refusal to take a breath test in violation of Code § 18.2-268.3 on the theory that a Commonwealth's Attorney has no authority to prosecute "civil" offenses. Commonwealth’s Attorneys and their assistants are vested with the authority to prosecute such refusal cases under Code § 18.2-268.4(B). The judgment is affirmed.

092486 Fairfax Redevelopment and Housing Authority v. Riekse 03/04/2011 In an action by a county for specific performance, the circuit court’s determination that it could not order the former owners of a parcel to perform because it was impossible for them to offer the parcel to the county under a right of first refusal to repurchase the land was correct. The judgment is affirmed.

092541 Kaltman v. All American Pest Control 03/04/2011 In litigation alleging application of pesticide at a residence that was not approved for residential use, the circuit court erred in sustaining the demurrers by the defendant pest control company and its employee to claims for negligence and negligence per se, but did not err in sustaining the demurrers to claims alleging willful and wanton conduct. The judgment is affirmed in part and reversed in part and the case is remanded for further proceedings.

100506 Ellis v. Commonwealth 03/04/2011 In a prosecution under Code § 18.2-279 for the offense of discharging a firearm at or against any occupied building, the circuit court did not err in finding that the Commonwealth was not required to prove that the defendant had the specific intent to fire at or against a particular structure, and the Court of Appeals did not err in finding that the evidence was sufficient to support his conviction. The judgment is affirmed.

100727 Hicks v. Commonwealth 03/04/2011 The Court of Appeals did not err in affirming defendant's conviction for possession of heroin in violation of Code § 18.2-250 after his motion to suppress evidence seized pursuant to a search warrant was denied. The affidavit in support of the search warrant was sufficient in its statement of material facts constituting probable cause supporting the search of the defendant's home, and the execution of the search warrant 13 days after its issuance complied both with the mandates of Code § 19.2-56 and the requirements of the Fourth Amendment. The judgment of the Court of Appeals is affirmed.

100776 Courtney v. Comonwealth 03/04/2011 In a prosecution for use or display of a firearm in the commission of a felony under Code § 18.2-53.1, although the evidence was in conflict, there nevertheless was sufficient evidence for the trier of fact to determine that the defendant used or displayed a firearm in the commission of a robbery in violation of Code § 18.2-53.1. Although only a toy gun was recovered from the defendant's getaway vehicle and the victim never saw the actual object that the defendant had used during the robbery, the defendant told her that he had a gun, and the victim believed that he had a gun and became frightened. The Court of Appeals did not err in upholding the conviction, and its judgment is affirmed.

100778 Startin v. Commonwealth 03/04/2011 In a prosecution for use or display of a firearm in the commission of a felony under Code § 18.2-53.1, the defendant's replica of a firearm gave the appearance of an actual firearm and was capable of evoking fear of physical harm. Consequently, the Commonwealth’s evidence was sufficient to support the convictions, whether or not the object actually had the capacity to propel a bullet by the force of gunpowder. The judgment of the Court of Appeals upholding the convictions is affirmed.

100840 Commonwealth v. Amerson 03/04/2011 In proceedings pursuant to the Civil Commitment of Sexually Violent Predators Act, no provision of the Act authorized the conditional release of a violent predator outside the Commonwealth and the circuit court erred in conditionally releasing the respondent to an authority in Washington, D.C. The judgment of the circuit court is reversed and the case is remanded to allow that court to determine whether the respondent should be conditionally released in Virginia.

100906 Saunders v. Commonwealth 03/04/2011 A person under the age of 18 may be sentenced by a jury rather than a judge on one or more charges of the types specified in Code § 16.1-269.1(B) and (C), and Code § 16.1-272 does not apply to youthful offenders who fall within the scope of Code § 16.1-271. Thus, a jury was correctly allowed to sentence a defendant who was not a juvenile at the time that he appeared before the circuit court on charges of aggravated malicious wounding under Code § 18.2-51.2(A), use of a firearm in the commission of a felony under Code § 18.2-53.1, and participation in an act of violence in association with a street gang under Code § 18.2-46.2, and had been previously convicted as an adult and given an adult sentence on an unrelated charge. The judgment of the Court of Appeals upholding the circuit court's denial of defendant's motion for non-jury sentencing and his convictions is affirmed.

100912 Howard v. Commonwealth 03/04/2011 The Court of Appeals did not err in affirming defendant's convictions after the trial court denied a motion to dismiss for alleged speedy trial violations. A continuance entered by the court sua sponte is subject to the same requirements regarding objections as other continuances and defendant's failure to object to a delay resulted in no violation of the speedy trial statute, Code § 19.2-243, because the period was tolled. Similarly, no violation is found under federal constitutional speedy trial principles or under Art. I, § 8 of the Virginia Constitution, and there is no basis to apply the ends of justice exception. The judgment of the Court of Appeals is affirmed.

101003 Rowland v. Commonwealth 03/04/2011 In a case charging, among other things, burglary and robbery, the evidence was not sufficient to support the conviction of the defendant for use of a firearm in the commission of a burglary when the elements of the burglary were completed before the use or display of a firearm. The judgment of the Court of Appeals is reversed, the conviction is vacated, and the indictment dismissed.

101357 Smith v. Commonwealth 03/04/2011 In an appeal from a conditional guilty plea after denial of a motion to suppress evidence, in which the defendant/appellant failed to file the suppression hearing transcript in the time required by Rule 5A:8, the Court of Appeals was not deprived of appellate jurisdiction to consider the case, and the defendant effectively waived his contention regarding the suppression motion by failing to timely make the required filing. The judgment upholding the defendant's convictions is affirmed.

091693 Isle of Wight County v. Nogiec 01/13/2011 In a lawsuit charging a county with breach of an employment severance contract and asserting a defamation claim against its assistant administrator, the circuit court erred in denying the county’s motions to strike and set aside the verdict because the evidence was not sufficient to support a claim for damages. The judgment for plaintiff on the breach of contract claim is reversed. The circuit court, however, did not err in denying motions to strike and set aside the verdict on plaintiff's defamation claim. The statements alleged were not absolutely privileged because they were not made during a legislative proceeding. The qualified privilege report to a subordinate legislative body was applicable, whether the executive's statements were compelled or volunteered, making them actionable only if plaintiff was able to prove that they were made with malice. Accordingly, the circuit court did not err in denying the individual defendant's motions to strike and set aside the verdict on the defamation claim.

091762 Simms v. Ruby Tuesday, Inc. 01/13/2011 In a workers' compensation case, the workplace horseplay doctrine should have been considered and applied in determining whether injuries sustained when employees in a kitchen threw ice at a coworker were covered by the Workers' Compensation Act. Instances when a non-participating employee is injured by horseplay encountered in the workplace are distinguished from those in which a worker is injured by an assault. The judgment of the Court of Appeals is reversed and the case is remanded to the Workers' Compensation Commission for consideration, guided by the law as stated in this opinion.

091934 DiGiacinto v. Rector and Visitors of George Mason University 01/13/2011 In review of a complaint for declaratory and injunctive relief against a Virginia public university challenging a regulation prohibiting carrying weapons in academic and other buildings and while attending sporting, educational or entertainment events, the regulation does not violate Article I, § 13 of the Constitution of Virginia and the Second and Fourteenth Amendments of the United States Constitution. The university also had the authority to promulgate the regulation, and did not violate Article I, § 14 of the Constitution of Virginia in doing so. The judgment dismissing the complaint with prejudice and ordering that the university's regulation be sustained is affirmed.

091941 O'Connor v. Tice 01/13/2011 In an action for malicious prosecution after termination of a criminal charge against plaintiff for construction fraud, the evidence was sufficient to support the jury's determination that the defendants initiated the criminal prosecution against plaintiff without probable cause. The judgment of the circuit court is affirmed.

091991 CNH America v. Smith 01/13/2011 In a personal injury suit arising from the explosion of a hydraulic hose on a mowing device, the trial court erred in admitting into evidence opinion testimony of the plaintiff’s two expert witnesses. The judgment of the trial court is reversed and the case is remanded for further proceedings.

091993 Royal Indemnity Co. v. Tyco Fire Products 01/13/2011 (Revised 01/18/2011) In a product liability case, exterior sidewall sprinkler heads were “equipment” rather than ordinary building materials under Code § 8.01-250, and hence not subject to the statute of repose. The manufacturer’s description of how a sprinkler head functions did not constitute an express warranty of future performance. The designer and installer of the sprinkler system was neither a manufacturer or "supplier" of the products, and thus was entitled to protection under the statute of repose. The judgment of the circuit court sustaining the manufacturer's plea in bar under Code § 8.01-250 is reversed, and its judgment sustaining the installer's plea in bar under the statute is affirmed. That court's judgment sustaining the manufacturer's and the installer's pleas in bar based on the applicable statutes of limitation is affirmed, and the case against the manufacturer is remanded for further proceedings.

092076 Carlson v. Wells 01/13/2011 In an action involving the duty of care owed by the custodians of Uniform Transfers to Minors Act accounts prior to 2007, to which the Prudent Person Rule applied, the circuit court correctly concluded that the custodians were liable to the children for a speculative investment in breach of the applicable duty of care. Issues involving account records, the tracing of commingled funds and the award of attorneys’ fees to prevailing parties are discussed. The judgment is affirmed in part and reversed in part, and final judgment is entered.

092163 Commonwealth v. Morris 01/13/2011 In ruling on separate petitions for modification of sentences previously imposed, the errors alleged do not constitute “errors of fact” for the purposes of the writ of coram vobis, as contemplated by Code § 8.01-677, and the writ of audita querela may not be used to seek post-conviction relief from criminal sentences in Virginia. Accordingly, the trial courts erred in their reliance upon the writs of error coram vobis and audita querela to modify the criminal sentences imposed in these cases. The judgments are reversed and the petitions are dismissed.

092249 Vuich v. Great Eastern Resort Corp. 01/13/2011 In a personal injury case, the trial court's ruling on summary judgment that a snow tubing ride offered to the public was not an "amusement device" subject to regulation under the Virginia Amusement Device Regulations, 13 VAC § 5-31-10 et seq., reviewed here in an interlocutory appeal pursuant to Code § 8.01-670.1, was in error. The judgment is reversed and the case is remanded for further proceedings.

092272 Jenkins v. Mehra 01/13/2011 In an appeal challenging a trial court's judgment refusing to hold a party in contempt after having found that the party failed to abide by the terms of a prior order of the court awarding injunctive relief, the appeal is dismissed because this Court does not have jurisdiction to hear an appeal from the refusal to find civil contempt.

092279 Parish v. Parish 01/13/2011 In a will contest, the circuit court properly found that the proponent of a will carried her burden of proof to show that the decedent, an “incompetent” person with appointed conservators, had testamentary capacity, and that there was no undue influence when a major beneficiary of the will who also was the decedent’s conservator acted as the decedent’s translator during the drafting of the will. The judgment is affirmed.

092299 Harkleroad v. Linkous 01/13/2011 In cross-complaints concerning title to a parcel of improved real property, the circuit court correctly determined that co-tenants with an undivided one-half interest in the property had established the necessary elements to prove adverse possession as against the other co-tenants and, thus, was entitled to a judgment granting quiet title to the entire property in fee simple. The co-tenants in possession established by clear and convincing evidence all the necessary elements to obtain title by adverse possession. The fact that the other co-tenants may have been unaware of their own ownership rights is not relevant since the lack of knowledge did not arise from any purposeful act of the co-tenants in possession and the true ownership could have been ascertained by minimal acts of due diligence. The decrees granting title to the property in fee simple, and denying the application of the other co-tenants for an accounting for rent and partition of the property by sale, are affirmed.

092341 Angel v. Commonwealth 01/13/2011 In an appeal from convictions for malicious wounding, abduction with intent to defile, two counts of object sexual penetration, and misdemeanor sexual battery, arising out of attacks on two women on two different dates, no reversible error is found after review of issues involving denial of a motion to suppress defendant's statements to police during custodial interrogation, denial of appeal from an order of the J&DR court certifying charges against defendant to the grand jury pursuant to Code § 16.1-269.1(B), and denial of motions to dismiss the indictments, for appointment and compensation for a DNA expert, for a continuance, and for mistrial, as well as joinder of the trials of separate offenses and admitting evidence of other crimes. A challenge to the imposition of three consecutive life sentences for nonhomicide crimes, without parole, for offenses committed while a juvenile as cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution is also rejected. The judgment is affirmed.

092361 Addison v. Jurgelsky 01/13/2011 A wrongful death action against three physicians commenced by only one of two co-administrators of an estate was not properly dismissed as time-barred when the second co-administrator was joined as a plaintiff after the expiration of the statute of limitations. Code § 8.01-5(A) permitted joinder of the co-executor as a party plaintiff at any time as the ends of justice may require. Here it did not prejudice the defendants or change the pending claims. The judgment is reversed.

092498 Bottoms v. Commonwealth 01/13/2011 The circuit court erred in failing to permit a defendant to withdraw a plea of guilty to two counts of construction fraud, applying an incorrect standard under Code § 19.2-296. The record demonstrated that the defendant entered the plea inadvisedly, that his proffered defense was reasonable and not vague, and that he was not dilatory in raising such defense. The judgment of the Court of Appeals affirming that decision is reversed and the case is remanded. Defendant shall be permitted to withdraw his guilty plea and the case shall proceed to trial if the Commonwealth be so advised.

092524 Hernandez v. Commonwealth 01/13/2011 The Court of Appeals erred in finding that the trial court lacked statutory or inherent power, at the conclusion of the evidence in a bench trial on charges of assault upon a police officer, to defer disposition of the case on certain conditions. The judgment is reversed and the case is remanded.

100202 Crawford v. Commonwealth 01/13/2011 In a prosecution for capital murder, abduction with intent to defile, use of a firearm in the commission of a murder, use of a firearm in the commission of an abduction, rape, and grand larceny, error in admitting a testimonial affidavit previously given by the murder victim was constitutionally harmless, and all of the convictions are affirmed.

100263 Walker v. Commonwealth 01/13/2011 In a prosecution for grand larceny of an automobile under Code § 18.2-95, the Commonwealth's reliance at trial upon on the “blue book” published by the National Automobile Dealer’s Association to prove that the value of the stolen property exceeded $200, in accord with a Virginia statute, did not violate the defendant’s Sixth Amendment right of confrontation under Crawford v. Washington, 541 U.S. 36, 68 (2004), and Melendez-Diaz v. Massachusetts, 129 S.Ct 2527, 2531 (2009). The judgment of the Court of Appeals upholding the defendant's conviction is affirmed.

100395 Nelson v. Commonwealth 01/13/2011 (Revised 01/18/2011) In a prosecution for driving while intoxicated, fourth offense within ten years, the defendant was “operating” a motor vehicle within the meaning of Code § 18.2-266 because the vehicle's ignition key was in an “on or accessory position” and the radio was operating. Placing the key in this position constituted “manipulating . . . the electrical equipment of the vehicle” operating the vehicle. The judgment of conviction is affirmed.

100507 Roseborough v. Commonwealth 01/13/2011 (Revised 01/18/2011) In the trial of charges for driving while intoxicated, stemming from a single-vehicle accident on a private road in a gated, guarded residential complex, the trial court erred in receiving into evidence a certificate setting forth the defendant's blood alcohol content based on a breath test administered under the implied consent law, because the exceptions to the warrant requirement contained in Code § 19.2-81 do not apply, and the defendant was not validly arrested for a misdemeanor not committed in the officer's presence. The judgment is reversed and the case is remanded.

100596 Preston v. Commonwealth 01/13/2011 In a prosecution for possession of a firearm after having been adjudicated, as a juvenile 14 years of age or older, of a delinquent act that would be a violent felony if committed by an adult in violation of Code § 18.2-308.2(A)(iii), the evidence was not sufficient to sustain the conviction because the nature of the delinquent act for which defendant was adjudicated cannot be determined. Thus the Commonwealth did not meet its burden of proving that he previously had been adjudicated delinquent of an act that would be a violent felony if committed by an adult. Because the Commonwealth proved only the defendant's prior adjudication of a non-violent felony, the conviction is reversed and the case is remanded for a new sentencing proceeding on the lesser offense.

091274 McGhee v. Commonwealth 11/04/2010 In a prosecution for possession of cocaine with the intent to distribute, the Court of Appeals did not err in denying an appeal where the defendant's slurred speech and odor of alcohol about his person gave probable cause to arrest him for public intoxication, and the police search of his parked vehicle did not violate then-applicable limitations on searches incident to arrest. The judgment is affirmed.

091455 Town of Leesburg v. Giordano 11/04/2010 In an action against a town challenging an ordinance that imposed a 100% surcharge on the water and sewer rates affecting properties owned by the complainants that were located in the county, but outside the town, the circuit court erred in ruling that the town failed to present sufficient evidence to meet its burden under the fairly debatable standard. The testimony of an expert that the increased water rate charged to out-of-town customers is fair and reasonable, and that the increased sewer rate charged to out-of-town customers is practicable, equitable, and uniform, supported by his justifications for his opinion, was sufficient to make the issue fairly debatable. The judgment of the circuit court is reversed and final judgment is entered for the town.

091492 Conger v. Barrett 11/04/2010 Where a pending wrongful death action was dismissed for inactivity pursuant to Code § 8.01-335(B) but reinstated within one year on notice and motion, the circuit court erred in dismissing the reinstated action as time-barred. The motion to reinstate the case did not create “another action” subject to the wrongful death limitation period in Code § 8.01-244(B), but instead sought reopening of an existing action. Code § 8.01-335(B) establishes a one-year period for reinstatement, which had not expired when the court entered the order in this case. The judgment is reversed and the case is remanded.

091621 TB Venture v. Arlington County 11/04/2010 In a taxpayer's petition to correct erroneous tax assessments, the taxpayer failed to carry its burden to present evidence establishing the fair market value of individual condominium units, when its expert opined as to the fair market value of the group of units as a whole and then allocated a value to each unit based on its pro rata share of the income generated by all of the units. The judgment of the circuit court striking the taxpayer's evidence is affirmed.

091745 Jones v. Williams 11/04/2010 (Revised 05/23/2011) In a medical malpractice action against the estate of a deceased doctor, a nurse who gave testimony for the plaintiff as a non-party witness at trial was not an “interested party” whose testimony required corroboration under Code § 8.01-397. Thus there is no error in the circuit court’s denial of the defendant's motions to strike or its refusal to instruct the jury on the Dead Man's Act. Judgment for the plaintiff is affirmed.

091840 Heinrich Schepers GmbH & Co. v. Whittaker 11/04/2010 In the second appeal from an action by a longshoreman injured while working on a boat docked in Virginia, the plaintiff, who had made a limited waiver of his right to a jury during a prior trial, was entitled to a jury trial after reversal of the prior judgment and remand of the proceedings to the circuit court for a trial limited to the issue of damages. The standards for waiver of a jury trial right in subsequent proceedings were not met and the record supports the circuit court's finding that no jury trial waiver for subsequent proceedings was made by the plaintiff. The judgment of the circuit court is affirmed.

091883 FFW Enterprises v. Fairfax County 11/04/2010 In proceedings involving a challenge to Code §§ 58.1-3221.3 and 33.1-435 under the Constitution of Virginia, the plaintiff failed to meet its burden to prove that no reasonable basis for the tax classifications in these provisions can be conceived. The fact that untaxed others will benefit to some extent from the improvements funded by the taxes does not prove that there is no rational basis for the tax classifications approved by the General Assembly. The judgments of the circuit court are affirmed.

091945 Gheorghiu v. Commonwealth 11/04/2010 (Revised 05/23/2011) In a prosecution for identity theft, credit card fraud and 36 counts of credit card theft, the judgment of the Court of Appeals upholding convictions for credit card theft is affirmed because consideration of the issue raised with regard to these convictions was not preserved for appeal as required under Rule 5:25. The judgment of the Court of Appeals is reversed with regard to the identity theft and credit card fraud convictions because the Commonwealth did not present evidence sufficient to establish a strong presumption that the county where the charges were brought was a proper venue for prosecution of these offenses. Those cases are remanded for further proceedings should the Commonwealth be so inclined.

091987 Carroll v. Commonwealth 11/04/2010 (Revised 05/23/2011) The circuit court correctly found that a person charged with rape who entered an Alford plea violated the terms of his probation by refusing to admit his guilt during the course of required group therapy treatment for sex offenders. It was also not an abuse of discretion to reject a request for individual treatment and to require defendant to successfully complete the program of ordered group therapy treatment in order to avoid incarceration. The judgment of the Court of Appeals upholding the rulings of the circuit court is affirmed.

092064 Bly v. Commonwealth 11/04/2010 In a prosecution for possession with intent to distribute methamphetamine, as well as an imitation controlled substance, based upon controlled "buys" by a paid confidential informant, information that the same informant had made prior false claims about purchasing controlled substances from other individuals could clearly have led to evidence admissible at trial for impeachment purposes. The withholding of this information by the Commonwealth was prejudicial to the defendant, and impairs confidence in the outcome of the trial. The judgment appealed from is reversed and the case is remanded for a new trial consistent with this opinion if the Commonwealth be so advised.

092313 Sidney v. Commonwealth 11/04/2010 In a prosecution for possession of cocaine and possession of marijuana, the Court of Appeals did not err in denying a petition for appeal from a judgment entered on a conditional guilty plea after the trial court denied the defendant's motion to suppress evidence seized when he was stopped while driving a vehicle and arrested on outstanding warrants. Considering the totality of the circumstances, the officer had reasonable suspicion to believe that defendant was driving the vehicle and, thus, the investigative stop for the limited purpose of establishing the driver’s identity did not violate his Fourth Amendment rights. The judgment of the Court of Appeals is affirmed.

092402 Hood v. Commonwealth 11/04/2010 In a proceeding under the Civil Commitment of Sexually Violent Predators Act, the circuit court's ruling that the respondent prisoner would not be permitted to present expert evidence at trial because, a prior to appointment of counsel and prior to the filing of the commitment petition, he had refused to cooperate with the Commonwealth’s mental health expert during a court-ordered assessment examination, denied him procedural due process protections in the present circumstances. The judgment is reversed and the case is remanded.

092418 Perry v. Commonwealth 11/04/2010 (Revised 05/23/2011) In a prosecution for possession of phencyclidine, the Court of Appeals did not err in affirming the trial court's denial of the defendant's motion to suppress seized evidence and in affirming his conviction on the basis that there was probable cause to arrest when he was taken into custody. The judgment of the Court of Appeals is affirmed.

092455 Banks v. Commonwealth 11/04/2010 (Revised 05/23/2011) After a trial court suppression ruling which accepted only one of several grounds asserted by the Commonwealth to justify a search that yielded a weapon, the Court of Appeals erred in making factual findings in support of an additional theory not advanced below, on the issue of consent for the search of the defendant's jacket. The judgment is reversed and the case is remanded to the Court of Appeals for further consideration of the issue presented on defendant's appeal based on the trial court's ruling as to the existence of exigent circumstances justifying a warrantless seizure of his jacket.

092461 Ali v. Commonwealth 11/04/2010 In a prosecution for robbery and grand larceny from the person, the evidence was sufficient to support the defendant's conviction for robbery. However, the record does not support the theory that two successive takings occurred, or that defendant removed or otherwise moved any money being stolen, or took control of any part of it, until after a clerk intervened. The evidence is consistent only with the conclusion that defendant obtained all of the stolen money by force because his asportation was complete only when he “yanked” the money from the clerk's hands. In this circumstance the defendant could not properly be convicted of both crimes when the evidence showed the commission of a single act, and the “ends of justice” exception of Rule 5A:18 should have been invoked to permit the defendant to raise this question for the first time on appeal. The judgment of the Court of Appeals is affirmed with respect to the robbery conviction, but reversed with respect to the conviction of grand larceny from the person, which is vacated and final judgment is entered.

092592 Cordon v. Commonwealth 11/04/2010 In a prosecution for possession of cocaine the evidence was insufficient to establish constructive possession of the contraband by the defendant. The judgment of the Court of Appeals is reversed and the defendant's conviction is vacated.

100143 Carosi v. Commonwealth 11/04/2010 In a prosecution for, among other charges, child endangerment, three convictions for violation of Code § 40.1-103(A) were supported by sufficient evidence that the defendant endangered the lives of her three children by permitting illegal drugs to be kept in her home in a place accessible to the children. Considering the totality of the record, it cannot be said that the jury’s finding of criminal negligence in this case was plainly wrong or without support in the evidence. Thus the Court of Appeals did not err in refusing the defendant's petition for appeal, and the judgment is affirmed.

100160 Hall v. Commonwealth 11/04/2010 In a prosecution for felonious escape by force or violence in violation of Code § 18.2-478 there was sufficient evidence to prove that the defendant was under arrest and therefore in custody prior to his escape. The judgment of the Court of Appeals of Virginia upholding the conviction is affirmed.

100431 Sullivan v. Commonwealth 11/04/2010 (Revised 05/23/2011) In a prosecution under former Code § 3.1-796.122 for misdemeanor animal cruelty, the Court of Appeals did not err in finding that there was sufficient evidence to support defendant's conviction.

070815 Cypress v. Commonwealth 09/16/2010 In criminal proceedings remanded from the Supreme Court of the United States for consideration in light of Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527 (2009), admission into evidence of certificates of chemical analysis pursuant to procedures set forth in former Code §§ 19.2-187 and 19.2-187.1, without presentation by the Commonwealth of testimony from the forensic analysts who prepared them, violated the defendants’ rights secured by the Confrontation Clause of the Sixth Amendment to the United States Constitution. In one of the cases in this appeal the judgment of the Court of Appeals affirming the conviction is reversed, the conviction is vacated, and the case is remanded for a new trial if the Commonwealth be so advised. In the other case, the error was harmless and the judgment of the Court of Appeals upholding the convictions is affirmed.

082564 Aguilar v. Commonwealth 09/16/2010 (Revised 05/23/2011) In a case remanded by the Supreme Court of the United States for further consideration in light of Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527 (2009), the Commonwealth's failure to call as witnesses two forensic scientists who played preliminary roles in the DNA analysis at issue but did not author the certificates of analysis admitted into evidence did not violate the defendant's rights under the Confrontation Clause because neither scientist bore testimony against the defendant. The judgment of the Court of appeals concluding that the circuit court did not err in admitting the certificates into evidence and upholding the defendant's convictions for rape, object sexual penetration, and robbery and use of a firearm is affirmed.

091378 Wintergreen Partners v. McGuireWoods 09/16/2010 The circuit court did not err in granting summary judgment to a law firm sued for malpractice in failing timely to file transcripts on appeal on behalf of a client held liable for $8.3 million in a personal injury premises liability suit. Because jury instructions in that underlying injury action concerning an entity's exposure to liability independent of respondeat superior liability for the negligence of its employees were not objected to, and thus became law of the case, reversal was not available in the dismissed appeal based upon the theory that exoneration of the employees by the jury precluded imposition of liability on the entity. Therefore the judgment of the trial court granting summary judgment for the law firm is affirmed in the present malpractice action because the plaintiff could not meet the standard for proving a valid legal malpractice claim.

091430 Commonwealth v. AMEC Civil 09/16/2010 In a construction contract dispute in which the plaintiff contractor and the defendant Virginia Department of Transportation both assign error, issues are discussed concerning timely notice of claims, whether sustained elevated lake water levels constitute a differing site condition under the contract, entitlement to home office overhead damages, calculation of actual costs as a basis for an award of damages, and entitlement to pre-judgment interest as an element of damages. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for the circuit court to recalculate damages.

091493 Aguilera v. Christian 09/16/2010 (Revised 05/23/2011) In a personal injury litigation, the complaint was invalid and a nullity because it was not signed by the plaintiff as the party with the cause of action, or by an attorney licensed to practice law in this Commonwealth. A party who is acting pro se may not authorize a person who is not licensed to practice law in this Commonwealth to sign a complaint on behalf of the pro se party. Therefore, the trial court did not err in dismissing the complaint, and the judgment is affirmed.

091495 Uniwest Construction v. Amtech Elevator Services (Rehearing Granted 1/18/2011) 09/16/2010 (Revised 01/18/2011) Language in a construction subcontract obligating a subcontractor to indemnify the general contractor for claims – whether or not based on the contractor's own negligence – irreconcilably conflicts with the public policy of Virginia expressed in Code § 11-4.1. However, provisions of the subcontract's "general conditions" obligated the subcontractor to defend and indemnify the general contractor. The required predicates of the subcontractor's primary insurance policy are met, since it was required to defend and indemnify the prime contractor and to provide insurance to the prime contractor. Consequently, the prime contractor was an insured under the subcontractor's umbrella policies, and therefore the subcontractor's umbrella coverage carrier had a duty to defend and indemnify the prime contractor. The judgment of the circuit court is affirmed in part and reversed in part and the case is remanded. (Rehearing was granted by Order entered January 18, 2011) See Record No. 091495, Uniwest Construction v. Amtech Elevator Services dated April 21, 2011

091502 Arogas, Inc. v. Frederick County Board of Zoning Appeals 09/16/2010 In a certiorari and declaratory judgment challenge to an action of a county enforcing an amended proffer made part of a rezoning of real property, petitioners failed to state a cause of action because Code § 15.2-2285(C) authorized the board of supervisors to make changes to proffers the landowners originally submitted after conducting a public hearing, and the landowners in this case agreed with changes made to the amended proffer after the public hearing. The circuit court also did not err by failing to interpret the proffer itself, or in ordering that the zoning administrator accept the site plan for review. The judgment of the circuit court is affirmed.

091546 Abi-Najm v. Concord Condominium, LLC 09/16/2010 (Revised 05/23/2011) In two actions against a condominium company by purchasers of units in the complex, the trial court erred when it sustained demurrers to breach of contract claims in the complaints on the grounds that they were barred by the merger doctrine, because the deeds were nothing more than instruments intended to convey title and there was no patent and irreconcilable conflict between the purchase contracts and the deeds. The circuit court also erred in dismissing claims for violation of the Virginia Consumer Protection Act under the economic loss doctrine because the plaintiffs alleged a statutory duty that existed independent of the parties' contracts. The plaintiffs' allegations that the defendant made misrepresentations before the contracts were entered, with a present intention not to perform the promised obligations, alleged an actionable claim for fraud in the inducement that also finds its source outside the parties' contracts and should not have been dismissed on demurrers. The judgments are reversed and the cases are remanded for further proceedings.

091590 County of Albemarle v. Keswick Club 09/16/2010 On remand from a prior appeal, the circuit court’s reduction of an assessment for a private recreational club for two tax years was not reversible error. The circuit court’s ruling as to the proper value for the taxpayer’s property is not erroneous because it is not plainly wrong or without evidence to support it and, pursuant to Code § 58.1-3987, a circuit court may fix the assessment in accordance with the evidence. Any error in admission of certain contested evidence was harmless. The judgment is affirmed.

091659 Van Dam v. Gay 09/16/2010 In an action for legal malpractice, the circuit court correctly held that a wife’s legal injury arising out of the alleged malpractice in drafting divorce property settlement papers occurred when the court entered a final decree of divorce in 1986, terminating the defendant’s employment in the matter in which he was engaged. The wife’s right of action accrued and the statute of limitations began to run on that date instead of the date that the divorce decree was ultimately deemed insufficient to entitle the wife to survivor's benefits under her former husband's retirement plans. The circuit court did not err in sustaining the plea in bar and its judgment is affirmed.

091661 Virginian-Pilot v. Dow Jones & Company 09/16/2010 (Revised 05/23/2011) In a petition by a national financial newspaper for an order granting it authority under Code § 8.01-324(A) to publish legal notices, the circuit court lacked subject matter jurisdiction to entertain the application and its order concerning same is null and void. The judgment of the circuit court is reversed and its order is vacated.

091685 Jamerson v. Coleman-Adams Construction 09/16/2010 The trial court's dismissal of a personal injury action because it was filed beyond the statutory limitation period provided by Code § 8.01-250 is affirmed. The steel platform and pole which collapsed causing injury to the plaintiff are not “equipment, machinery or other articles" under Code § 8.01-250, but instead are ordinary building materials governed by the statute's five-year period of repose. The judgment of the trial court is affirmed.

091738 Shipe v. Hunter 09/16/2010 (Revised 05/23/2011) Regarding pleadings, Code § 8.01-271.1, considered along with Rules 1:4 and 1A:4, require the handwritten signature of either a pro se plaintiff or an attorney who is licensed to practice law in Virginia, and a Virginia lawyer may not validly authorize a lawyer licensed elsewhere, but not in Virginia, to sign the Virginia lawyer’s name to a pleading. Thus, a complaint bearing the handwritten signature of a Virginia attorney that was written in by a foreign attorney at the direction of the Virginia attorney was defective, could not be cured by amendment, and was a nullity. The judgment of the circuit court granting defendant's motion for summary judgment and dismissing plaintiff's case with prejudice, based on the lack of a proper signature on the complaint, is affirmed.

091878 Blanton v. Commonwealth 09/16/2010 (Revised 05/23/2011) In an appeal arising from a prosecution for murder and felonious use of a firearm, defendant's failure to make a timely motion for a cautionary instruction or mistrial concerning the prosecutor's comment about the defense evidence failing to show that the defendant was not guilty precludes consideration of the merits of her assignments of error regarding this comment. With respect to the prosecutor's subsequent comment about the defendant being in jail several days after the events, it cannot be said that the circuit court erred as a matter of law in denying defendant's mistrial motion. Considering the innocuous nature of this comment under all the circumstances of the case, the circuit court’s cautionary instruction to the jury, and the prosecutor’s corrective statement, the defendant's rights were clearly not so indelibly prejudiced as to necessitate a new trial. The judgment of the Court of Appeals is affirmed.

091911 Noakes v. Commonwealth 09/16/2010 In a prosecution for involuntary manslaughter arising from the suffocation death of an infant in defendant's care, there was sufficient evidence to support the finding that defendant was criminally negligent and that her acts were a proximate cause of the toddler's death. The judgment of conviction is affirmed.

092273 Warrington v. Commonwealth 09/16/2010 In civil commitment proceedings under the Sexually Violent Predators Act, Code §§ 37.2-900 et seq., the circuit court did not err in denying respondent's motions for dismissal and release where he failed meet his burden of proof to show that the actions of the Attorney General in filing the commitment petition and subsequent efforts to amend it were grossly negligent. By operation of Code § 37.2-905.1, the Attorney General is presumed to have substantially complied with Code §§ 37.2-903, 37.2-904, and 37.2-905, and the circuit court did not abuse its discretion in granting the motion to file a second amended petition, substituting the report of a qualified licensed psychologist for a report of an unqualified licensed psychologist, and ordering respondent to be held beyond his release date until a final order was entered on the commitment petition. The circuit court likewise did not err in denying respondent's motions seeking dismissal of the petition and his release from prison. The judgment is affirmed.

100374 Andrews v. Commonwealth 09/16/2010 Upon review of the four capital murder convictions and death sentences imposed on the defendant, non-harmless errors occurred in the penalty-determination phase of the trial. The death sentences are vacated and the case is remanded for a new penalty-determination proceeding. Defendant's convictions for robbery, malicious wounding, abduction, and various firearms charges are affirmed. Issues discussed include the propriety of simultaneous convictions under Virginia's statutes governing multiple killings under Code §§ 18.2-31(7) and (8), liability for killings as a principal in the first degree, spoliation of evidence, expert ballistics proof, double jeopardy, alleged prosecutorial misconduct, victim impact evidence concerning unadjudicated conduct and various other evidentiary and procedural issues.

090444 James v. City of Falls Church 06/10/2010 The trial court did not err in granting a motion to strike the evidence, or in dismissing an action by a church which had been denied an application for consolidation of several lots after consideration by a zoning administrator, planning staff, and the locality's planning commission. The circuit court did not fail to apply the correct standard of review, and the church failed to show that the planning commission’s denial of its consolidation application was not properly based on the applicable ordinances, or was arbitrary or capricious, as was its burden of proof under Code §§ 15.2-2259(D) and -2260(E). The circuit court did not err in finding that the commission had the right and authority to disregard the zoning administrator's interpretation of a local ordinance in deciding whether to approve or disapprove the consolidation application. The judgment is affirmed.

090682 The Protestant Episcopal Church v. Truro Church 06/10/2010 In a church property dispute involving a Virginia diocese of an international protestant church, the United States province of that church, and a number of constituent congregations, the circuit court erred in granting orders permitting the congregations to occupy and control real property held in trust after voting to disaffiliate from the Virginia diocese and to affiliate with a mission within a different province of the international protestant church under Code § 57-9(A). While the congregations established that there was a division within the church to which they had been attached as required by the statute, they failed to also establish that, as a result of that division, the congregations sought to affiliate with a branch derived from that same church, as opposed to a mere shared tradition of faith. The judgment is reversed and the cases are remanded.

091009 Walton v. Mid-Atlantic Spine Specialists 06/10/2010 In a medical malpractice case, the defendant doctor waived the attorney-client privilege for a letter he wrote to his attorney regarding potential negligence in his examination of key x-rays when that letter was produced to the plaintiff during discovery. While the doctor’s disclosure of the letter was inadvertent, the doctor waived his attorney-client privilege by failing to take reasonable measures to ensure and maintain the confidentiality of the letter. The judgment of the circuit court is reversed and the case is remanded for further proceedings.

091023 Dolby v. Dolby 06/10/2010 In an action by a decedent's executors for aid and direction regarding administration of the estate, in which the parties asked the circuit court to determine whether the estate or the surviving spouse was liable for payment of the indebtedness on a promissory note entered by the decedent alone, but which was secured by the deed of trust on property which, the time of his death, was held by the spouses as tenants by the entirety with right of survivorship, the judgment of the circuit court is reversed and final judgment is entered in favor of the widow. The mortgage debt is an obligation of and shall be paid from the estate.

091055 Schilling v. Schilling 06/10/2010 In a contest over probate of a holographic will, a determination whether a writing offered for probate is a valid will applies the law in effect on the date of the maker’s death. Thus the application of Code § 64.1-49.1 to an alleged will executed before the effective date of the statute, was not retroactive application of the laws with respect to a decedent who died after the effective date of the statute. The judgment of the circuit court is reversed and the case is remanded.

091172 Syed v. ZH Technologies 06/10/2010 In a small business commercial dispute, the trial court erred by entering judgment on business conspiracy and tortious interference with contract claims and by allowing a breach of fiduciary duty claim to proceed when a variance existed between the facts and legal theory of liability pled and the proof at trial. Issues with respect to the status of corporations and their officers, directors or agents during periods of corporate termination prior to reinstatement are discussed, along with the requirements for proof of compensatory damages in business conspiracy claims. The judgment is affirmed in part and reversed in part, and the case is remanded.

091180 Advanced Towing v. Fairfax County Board 06/10/2010 (Revised 05/23/2011) The trial court did not err in sustaining demurrers in a suit for declaratory relief filed by two towing companies challenging an ordinance requiring them to have a vehicle storage facility within the boundaries of the county. A reasonably conceivable state of facts appeared on the pleadings concerning enforcement of the provision that could provide a rational basis for the classification made by the ordinance under review, and the territorial limitation therefore survives analysis under the Equal Protection guarantee of the Fourteenth Amendment. Likewise, the Dillon Rule of limited local government powers allows a reasonable selection of method permitting local governing bodies to exercise discretionary authority where a statutory grant of power has been expressly made but is silent upon the mode or manner of its execution. The judgment is affirmed.

091265 Herndon v. Commonwealth 06/10/2010 In a prosecution for possession of cocaine, the circuit court did not abuse its discretion in admitting a certificate of analysis from the Department of Forensic Science into evidence when the court, which observed the evidence in question, made a factual finding that alleged discrepancies between the descriptions of the material on the request for examination form and certificate of analysis were not contradictory, and the Commonwealth presented sufficient evidence to establish with reasonable certainty that there had been no alteration or substitution of the evidence. The judgment of the Court of Appeals upholding the defendant's conviction is affirmed.

091271 TC MidAtlantic Development v. Commonwealth 06/10/2010 (Revised 05/23/2011) In a construction contract dispute, the trial court did not err in dismissing on demurrer two counts of a complaint brought by a construction company against the Virginia Department of General Services on the ground that compliance with conditions precedent for such claims was not adequately pled. The trial court erred in sustaining a demurrer and dismissing another count of the complaint as to which the timely claims requirement set forth in the demurrer was not applicable. The judgment is affirmed in part, and reversed in part, and the action is remanded for further proceedings.

091343 Covel v. Town of Vienna 06/10/2010 The judgment is affirmed in three consolidated circuit court actions involving challenges to a local historic preservation ordinance and decisions made by the locality thereunder. No evidence in the record rebuts the presumption of validity of the locality's decision denying a certificate of appropriateness to build a fence and denying permission to remove various parcels from the historic district. Code § 15.2-1427(C), reenacted in 2000, bars all non-constitutional challenges to the adoption of ordinances existing at that time, such as the ordinance involved in these cases. The ordinance provisions at issue here are sufficiently precise and definite to give fair warning of the information required for applications under its terms, and no error is found in the judgment of the circuit court dismissing the as-applied challenge to the ordinance.

091388 Ladysmith Rescue Squad v. Newlin 06/10/2010 (Revised 06/18/2010) In protracted trust litigation, the circuit court erred in granting over objections the motions to divide a testamentary charitable remainder unitrust and to commute and terminate one of two trusts created by that division, where the record did not support the findings required by Code § 55-544.17 that a division would not adversely affect achievement of the purposes of the trust, or of Code § 55-544.12(A) that there were circumstances not "anticipated by the settlor” and that "modification or termination will further the purposes of the trust.” The argument of the moving parties that the settlor could not have foreseen that the beneficiaries would “rather have [their] money today than wait” is rejected. The judgment is reversed and the case is remanded to the circuit court with direction to enter orders denying both motions and for further proceedings consistent with this opinion.

091410 Station #2, LLC v. Lynch 06/10/2010 In an action involving breach of contract, fraud, and conspiracy claims arising from the lease of the ground floor of a building for use as a restaurant and entertainment venue, an oral agreement for access to the space between floors to arrange for soundproofing of the premises was not made unenforceable by the statute of frauds. Claims of fraudulent inducement to contract and statutory conspiracy are also discussed. The judgment is reversed and the case is remanded for trial on plaintiff's breach of contract claim.

091469 Evans v. Evans 06/10/2010 In a personal injury suit by a minor child against a parent for negligence in failing to secure her in a proper child restraint device when traveling in a motor vehicle on the highways of Virginia, the provisions of Code § 46.2-1095(C) and Code § 46.2-1098 precluding claims of negligence per se in failure to comply with child seat restraint laws while transporting a minor in a vehicle, do not abrogate a common law action for negligence. The judgment granting a demurrer and dismissing the child's common law negligence case, which was not pled under the statutes, is reversed and the case is remanded.

091470 Smith v. Mountjoy 06/10/2010 In litigation brought by a widower challenging trusts set up by his spouse acting as his attorney-in-fact under a durable power of attorney, the severance of the parties' tenancy by the entirety interests in certain real property and conveyance of one-half interests in each of the properties to the spouse's trust was a gift, and steps taken by the widower before his death did not ratify the wife's actions. There was no error in the circuit court's refusal to consider deposition testimony proffered on cross-motions for summary judgment. The judgment is affirmed.

091507 Cokes v. Commonwealth 06/10/2010 In a criminal proceeding on multiple felony drug charges, the trial court abused its discretion by failing to determine whether the defendant's request for a jury trial – made on the day of his scheduled bench trial – could have been accommodated without substantially delaying or impeding the cause of justice. The judgment is reversed.

091535 Smith v. Commonwealth 06/10/2010 (Revised 05/23/2011) In an appeal from an order issued in proceedings under the Civil Commitment of Sexually Violent Predators Act, Code §§ 37.2-900 et seq., holding that respondent remains a sexually violent predator and remains in need of secure inpatient hospitalization, the circuit court did not err in considering evidence contained within respondent's treatment records because those treatment records were admissible under the business records exception to the hearsay rule, and the evidence was sufficient to support the circuit court’s determination that continued civil commitment was necessary. The judgment is affirmed.

091793 Midkiff v. Commonwealth 06/10/2010 In a prosecution under Code § 18.2-374.1:1 for possession of child pornography, because digital video recordings and still images admitted at trial were reproduced by making a bit for bit copy of the hard drives on defendant's computer, writing files from that copy to a digital video disc and then printing them without changes, the printed pictures and video recordings were reliable representations of the material contained in the files in the defendant’s computer hard drives and the circuit court did not abuse its discretion in receiving the pictures and video recordings into evidence. The judgment of the Court of Appeals upholding defendant's convictions is affirmed.

091895 Carter v. Commonwealth 06/10/2010 In a grand larceny prosecution arising from a scheme by defendant and accomplices to obtain a "refund" for goods that had never been purchased or removed from the store, but were simply placed in a cart and taken to the "returns" counter in the store, there was sufficient evidence of asportation and assertion of ownership of the property to prove intent to steal, and the conviction is affirmed.

092126 Moseley v. Virginia State Bar (ORDER) 06/10/2010 No error is found upon consideration of a judgment of a three-judge circuit court panel suspending an attorney’s license to practice law in the Commonwealth for six months based upon a finding that the attorney had violated Rules 3.3(a)(1), 3.4(e), 3.4(j), 4.1(a), 8.2 and 8.4(a), (b), and (c). Issues including the due process rights of a disciplined attorney, the statute of limitations, the validity of the panel's decision despite the Bar's noncompliance with Code § 54.1-100, the sufficiency of the evidence, and the appropriateness of the sanction imposed are addressed. The judgment is affirmed.

090345 Copp v. Nationwide Mutual Insurance Co. 04/15/2010 In a declaratory judgment action by an insurance company seeking a ruling that it had no obligation to defend or indemnify a college student, who was an insured under his parents' homeowners liability and umbrella insurance policies, from a claim for personal injuries that arose from an altercation in an apartment building, the circuit court erred in holding that the insurer owed no duty to defend or indemnify its insured in a tort action brought against him by another individual. While policy terms excluded coverage for “bodily injury and property damage intended or expected by the insured,” in evaluating whether there is a duty to defend in a given case an applicable exception required consideration of the insured’s claim that he caused bodily injury or property damage while trying to protect person or property, i.e., himself. The judgment is reversed and the case is remanded for a declaration of the parties' rights consistent with this opinion.

090404 Lane v. Starke 04/15/2010 In a contested suit to construe a will, although the enjoyment of certain devises made to remaindermen was postponed during a life estate held by the testator's widow, there was no language in the will evidencing an intent to postpone the vesting of their remainder interests, and thus the early vesting rule applies and the remainder interests vested at the time of the testator’s death. In light of the postponement by the testator of the rights of the remaindermen to enjoy the property, their duty to make payments specified by the testator in respect of the devises did not arise until the death of the life tenant, and the real estate assessments as of that date are applicable in determining the values. The judgment is reversed and the case is remanded for further proceedings.

090524 Snead v. C&S Properties 04/15/2010 In an injunction proceeding arising from allegations that an easement was subject to encroachment, the trial court erred in refusing permanent injunctive relief upon a finding that the encroachment was not a material interference with the dominant owners' rights because vehicular access remained possible. The judgment is reversed and the case is remanded for entry of permanent injunctive relief barring encroachment on the full width of the easement.

090596 Simpson v. Virginia Municipal Liability Pool 04/15/2010 In a declaratory judgment proceeding the circuit court did not err in determining that injuries suffered by a deputy sheriff during efforts to take into custody a suspect, who had left his vehicle and was tackled to the ground 10 feet away, were not covered under any of three automobile insurance policies because the injuries did not arise out of the "use" or "occupancy" of any of the vehicles involved. The judgment is affirmed.

090659 City of Alexandria v. J-W Enterprises, Inc. 04/15/2010 In a contribution suit, the trial court did not err in finding that an off-duty police officer working an "extra-duty detail" at a restaurant was performing a public function when he pursued a group of patrons who did not pay their bill, and shot one of them in the parking lot when their car drove straight at the officer at a high rate of speed as he commanded the driver to stop. The claim for contribution was thus defeated, and the judgment dismissing the action is affirmed.

090674 Idoux v. Helou 04/15/2010 (Revised 05/28/2010) The judgment of the circuit court sustaining a plea in bar of the statute of limitations against an action that was brought against an "estate" rather than the appointed personal representative, is affirmed. Code § 8.01-6.2(B) does not permit a plaintiff, who filed a warrant in debt against an estate, to file a subsequent action to add the proper defendant after the statute of limitations had expired.

090803 Schefer v. City Council of Falls Church 04/15/2010 In a declaratory judgment action by a landowner against a city challenging a zoning ordinance that sets different building height limits for standard and substandard lots as an alleged violation of the uniformity requirement of Code § 15.2-2282, the circuit court did not err in granting summary judgment for the defendant city because it uniformly applies its building height regulations for one-family dwellings on standard lots and uniformly applies its building height regulations for one-family dwellings on substandard lots in the zoning district. On plaintiff's further contention that the ordinance violated equal protection principles, because the height regulation is not inherently suspect involving infringement upon fundamental rights, plaintiff was required to establish that the ordinance was unreasonable, and failed to do so. Therefore plaintiff failed to rebut the presumption of its validity. The judgment is affirmed.

090881 Boyce v. Commonwealth 04/15/2010 In a proceeding by the Commonwealth seeking the appellant's civil commitment as a sexually violent predator, the circuit court did not abuse its discretion by refusing to strike the testimony of a mental health expert who relied upon a criminal charge for taking indecent liberties with children that was dismissed by nolle prosequi as one of many factors in forming the opinion that the appellant met the criteria for a sexually violent predator. The expert's opinions that appellant suffered from pedophilia and from a personality disorder, as well as his opinion that appellant was a sexually violent predator, were amply supported by prior convictions for sexual offenses against children and by evidence presented at trial. Therefore, these opinions were not speculative and unreliable as a matter of law, and were properly admitted into evidence. The judgment of the circuit court is affirmed.

090906 Shilling v. Baker 04/15/2010 The trial court did not err in concluding that a cemetery did not exist on a hilltop property where the cremated remains of plaintiff's grandfather and other relatives had been scattered, either prior to or at the time that an urn containing the cremated remains of plaintiff's mother was buried, or in finding that the interment of the urn at that location violated the county zoning code provision requiring a special use permit to use the land as a cemetery. Under applicable law, the scattering of cremains was insufficient to create a cemetery. The judgment is affirmed.

090907 Orndorff v. Commonwealth 04/15/2010 The trial court did not abuse its discretion in considering a motion for a new trial based on after-discovered evidence, since it reviewed the entire evidentiary record with care and applied the appropriate standard. When the evidence on a new trial motion is in conflict, the circuit court is not permitted to presume that the moving party’s evidence is true but is required to weigh all the evidence presented in determining whether the moving party has satisfied the materiality standard by showing that the evidence is such that it should produce an opposite result on the merits at a new trial. The judgment of the Court of Appeals, holding that the circuit court did not abuse its discretion in denying the motion for a new trial, is affirmed.

090947 Kimble v. Carey 04/15/2010 In a negligence case brought by a plaintiff who was injured while attempting to rescue the victim in a vehicular accident, the circuit court did not abuse its discretion by denying the plaintiff's motion to amend her complaint and by excluding evidence of the victim's intoxication, because whether the victim's conduct that put him in peril was willful or wanton was immaterial and irrelevant to the rescue doctrine analysis. However, the circuit court erred by determining that plaintiff was contributorily negligent as a matter of law, because the issue whether her conduct reached the level of rash or reckless disregard for her personal safety so as to bar her recovery under the rescue doctrine should have been submitted to the jury for determination. The judgment is affirmed in part and reversed in part. The case is remanded for further proceedings.

090958 Gilliam v. McGrady 04/15/2010 In equitable distribution proceedings involving apportionment of debt as part of a divorce, the trial judge erred by failing to consider statutory factors, and the Court of Appeals' decision explaining that conclusion is adopted. However, the trial court and the Court of Appeals erred in concluding that there is a presumption that debt is marital, and the case is remanded for proceedings applying the correct factors and traditional burdens of proof for prima facie showings. The judgment is affirmed in part and reversed in part, and the case is remanded.

090972 Hafner v. Hansen 04/15/2010 The circuit court was plainly wrong in holding that a party established by clear and convincing evidence a prescriptive easement for use of an underground sewer line. The evidence failed to establish knowledge by the owner of the burdened estate or her predecessors in title. As a general rule, when underground pipes have not been physically apparent throughout the prescriptive period and the servient landowner has not had notice of the existence of those pipes, the use of the servient estate is not considered to be sufficiently open and notorious to satisfy the requirement of adverse use necessary for the establishment of a prescriptive easement and courts have declined to recognize such easements. The judgment is reversed and the case is remanded.

090984 Johnson v. Hart 04/15/2010 In a legal malpractice action, the party prevailing in the circuit court on summary judgment endorsed the final order “seen and consented to,” but did not thereby expressly waive other arguments he presented to the trial court. On the merits, a sole testamentary beneficiary, in her individual capacity, may not maintain a legal malpractice action against the attorney for the estate based on the attorney’s allegedly negligent services rendered to the estate. The judgment is affirmed.

090989 Bailey v. Town of Saltville 04/15/2010 Considering the language appearing in a 1909 agreement and deed contemporaneously made by the defendant's predecessors in title concerning an 80 foot-wide strip of property conveyed to a railroad company for use as a right of way, the deed conveyed a fee simple interest in that property, rather than an easement. The deed does not feature any words of limitation that modify the words of grant, and does not describe the interest being conveyed as anything other than a complete conveyance of land. Thus, the circuit court did not err in finding that the plaintiff town, to which the railroad company had transferred all of its right and title to the property and improvements thereto via quitclaim deed, is presently the fee simple owner. The judgment of the circuit court is affirmed.

091127 Hawthorne v. VanMarter 04/15/2010 In appeals from defense verdicts in wrongful death and injury actions that arose when a police vehicle struck a civilian vehicle, the administrators of the decedent's estate did not have a right to file an appeal in a pro se capacity for a cause of action belonging to the beneficiaries, and that appeal is dismissed. In the injury case, the trial court did not abuse its discretion in refusing to reopen the record at trial after a pretrial ruling sustaining a plea in bar of sovereign immunity against claims of ordinary negligence, or in rejecting a venue challenge involving the residence and purported substantial business activities of the defendant. The trial court did not abuse its discretion in seating jurors and did not err in granting various instructions. One of the appeals is dismissed and the judgment is affirmed in the other.

091305 Clark v. Commonwealth 04/15/2010 The Court of Appeals did not err when it upheld a defendant's conviction for the crime of assault under Code § 18.2-57 in a case in which her words and actions included a verbal threat to the victim early one day, followed that afternoon by defendant's reappearance at a place where she had no explained reason for being, at which time she approached the door of the vehicle the victim was driving, blocked the victim's path of exit and made an unconditional threat to "get" the victim. There was sufficient evidence to indicate a purpose to inflict bodily injury upon the victim, and to support the circuit court’s conviction of the defendant for the crime of assault. The judgment is affirmed.

091539 Jones, Michael v. Commonwealth 04/15/2010 Defendant has failed to show that the circuit court committed reversible error in denying a motion to suppress. Although the seizure of defendant's wallet was unlawful, his detention remained lawful because at the time of the seizure the detectives were still trying to ascertain his identity, which was within the scope of the traffic stop. The judgment is affirmed.

082305 Volkswagen v. Smit 02/25/2010 The Court of Appeals erred in affirming a circuit court judgment upholding a decision of the Commissioner of the Department of Motor Vehicles that an automobile distributor violated Code § 46.2-1569(7) by failing to ship to a Virginia dealer a quantity of new vehicles that meets the statute's requirements, and erred in concluding that this statute was not vague as applied under the facts. Because the merits of the appeal can be decided on the narrower basis of an "as applied" challenge to Code § 46.2-1569(7) under due process, the distributor's facial challenge to the statute based on dormant Commerce Clause principles need not have been considered. The Court of Appeals' judgment is vacated in part and reversed in part, and final judgment is entered in favor of the automobile distributor.

082575 County of Chesterfield v. Tetra Associates, LLC 02/25/2010 In a declaratory judgment action arising from a county's disapproval of a preliminary subdivision application, the circuit court erred by declaring county code provisions void in their entirety. However, an applicable county subdivision code provision is void as an exercise of power not authorized by the General Assembly, and the definitions of “Subdivision, lot” and “Subdivision, residential parcel” are void as applied to the plaintiff's preliminary subdivision application for its property located in an agricultural district. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded for further proceedings.

090041 Hollingsworth v. Norfolk Southern Railway Co. 02/25/2010 (Revised 03/01/2010) In an action against a railroad under the Federal Employers' Liability Act, the circuit court did not err in granting the defendant’s motions in limine to exclude the testimony of two podiatrists because they were not medical doctors and, thus, were not qualified to render expert opinions as to the cause of the plaintiff’s alleged physical injuries. Consequently, the court did not err in granting the defendant’s motion for summary judgment based upon the absence of admissible proof of causation of the injuries alleged. The judgment entered for the defendant is affirmed.

090043 Marble Technologies v. City of Hampton 02/25/2010 In a suit for declaratory and injunctive relief against enforcement of a city zoning ordinance on the grounds that it exceeded city authority in violation of Virginia law and Dillon's rule, the ordinance, which makes inclusion in the federal Coastal Barrier Resources System a criterion for designating lands to be part of a Resource Protection Area under the Chesapeake Bay Preservation Act, violates the General Assembly's express mandate that a locality use the criteria developed by the Chesapeake Bay Local Assistance Board to determine the extent of the Chesapeake Bay Preservation Area within its jurisdiction. The zoning provisions challenged in this appeal are void insofar as they include lands in protection areas on the basis of the federal Coastal Barrier Resources Act's applicability. The judgment of the circuit court is reversed and final judgment is entered in favor of the plaintiff landowners.

090110 C. Porter Vaughan, Inc. v. DiLorenzo 02/25/2010 In an action for real estate brokerage commissions, the trial court erred in sustaining the defendant seller's demurrer on the grounds that the claim for a breach of an oral agreement was barred by the statute of frauds. A sales contract contained the essential terms of the brokerage agreement, along with other writings, and the trial court erred in sustaining a demurrer to the claim. The judgment is reversed and the case is remanded for trial on the merits.

090143 Sales v. Kecoughtan Housing Co. 02/25/2010 In a tenant's suit against an apartment owner and its management company for personal injury and property damage resulting from mold in the apartment, the trial court erred in sustaining the defendants' demurrers to allegations that liability arose from negligent failure to make a repair to eradicate mold after entering the premises for that purpose, and from fraudulent misrepresentations concerning the repair and the habitability of the apartment. The judgment is reversed and the case is remanded.

090193 Rascher v. Friend 02/25/2010 The circuit court erred in striking the plaintiff’s evidence in a personal injury case arising from an accident involving an automobile and bicycle on the ground that the plaintiff was contributorily negligent as a matter of law. The jury could have determined that plaintiff's conduct was reasonable under the circumstances of the case, and also might have found that the alleged negligence on plaintiff's part was not a proximate cause of the accident as a matter of law. The judgment is reversed and the case is remanded.

090250 Ligon v. County of Goochland 02/25/2010 (Revised 03/01/2010) In proceedings involving the Virginia Fraud Against Taxpayers Act, Code §§ 8.01-216.1 through –216.19, the doctrine of sovereign immunity bars a retaliatory discharge claim against a county filed under the “whistleblower protection” provision in Code § 8.01-216.8 because the text of the Act fails to explicitly and expressly waive sovereign immunity to permit the filing of retaliatory discharge actions by employees of the Commonwealth or its political subdivisions. The judgment of the circuit court sustaining the county's amended demurrer is affirmed.

090254 United Leasing Corp. v. The Lehner Family Business Trust 02/25/2010 In a contract action involving an assignment of claims and proof of damages, the defendant failed to preserve an objection made in a motion to strike at the conclusion of the plaintiff’s evidence, when the defendant moved to renew its motion to strike at the conclusion of the trial but failed to state its renewed objection or argument regarding the validity of the assignment with reasonable certainty. The judgment of the circuit court is affirmed.

090283 Cotton Creek Circles v. San Luis Valley Water Co. 02/25/2010 The circuit court did not err in confirming an arbitration award where a broad arbitration provision in a limited liability company operating agreement conferred on the arbitration panel the power to resolve “any dispute" with respect to that agreement, necessarily including authority to settle a dispute over the proper interpretation and application of a non-compete clause in the agreement. Even if the panel erred in its interpretation of the agreement, that error does not provide a basis for vacating the award under to section 10 of the Federal Arbitration Act. The judgment is affirmed.

090303 Scialdone v. Commonwealth 02/25/2010 (Revised 03/01/2010) The Court of Appeals erred in holding that two criminal defense attorneys and their student intern, who were all found in contempt relating to the submission of an allegedly altered document at trial, had failed to preserve the argument that the circuit court deprived them of due process by proceeding with summary contempt. On the merits, because the essential elements of the misconduct were not all actually observed by the trial judge, she erred by failing to afford the defendants a plenary proceeding with the requisite due process rights. The judgment of the Court of Appeals is reversed and the matters are remanded for further proceedings consistent with this opinion.

090313 School Board v. Commonwealth 02/25/2010 In a petition by a school board against the Commonwealth, alleging breach of contractual duty under the Virginia Local Government Risk Management Plan to defend and indemnify the board for educational and legal expenses awarded in administrative proceedings and an ensuing federal civil action to a child's parents who alleged that the school board failed to provide educational services as required by the Individuals with Disabilities Education Act (“IDEA”), the trial court erred in failing to find coverage for these expenses available to the school board under the Plan. The IDEA proceeding involved a federal civil action, which was a "claim" for compensatory monetary damages under the Plan and was not excluded as an administrative action. The Commonwealth breached its contractual duty to defend under the Plan and is therefore liable for the litigation costs associated with the defense of the parents' claim in federal court, as well as the costs of prosecuting the contract claim in the Virginia circuit court, this present appeal, and on remand. The judgment is reversed and the case is remanded for entry of judgment in favor of the school board, including the costs associated with the Commonwealth's breach of its duty to defend.

090328 W&W Partnership v. Prince William County Board of Zoning Appeals 02/25/2010 A zoning administrator's ruling that a voluntary conveyance of land within the owner's parcel to the Commonwealth for a road, physically separating the remaining portions of that parcel, did not effect a legal separation of such parcel into two lots, affirmed by the local board of zoning appeals and then the circuit court, was correct. Legal separation of property required that the owner, at minimum, duly record a change in the legal description of the retained property either by metes and bounds or by plat. The judgment is affirmed.

090979 Jones, Russell v. Commonwealth 02/25/2010 In review of a suppression ruling turning on whether off-duty law enforcement officers, privately employed by an apartment complex to protect against trespassers, unlawfully seized a defendant in violation of the Fourth Amendment when they requested that he accompany them to the rental office to issue a notice barring him from the property, the defendant has not carried his burden of showing that the circuit court’s findings of fact – that he consented to go to a rental office for a brief time, without force or coercion – were plainly wrong or unsupported by the evidence, or that the circuit court committed reversible error. No error in the application of the law by the circuit court or by the Court of Appeals is found, and the judgment is affirmed.

091015 Fullwood v. Commonwealth 02/25/2010 In a prosecution for drug violations within 1,000 feet of school property, the circuit court did not err in finding that the violations in question occurred on property open to public use under Code § l8.2-255.2 and that court did not exceed its legislative authorization in sentencing the defendant to multiple punishments. The judgment of the Court of Appeals upholding the convictions is affirmed.

091119 Lawrence v. Commonwealth 02/25/2010 In a proceeding under the Civil Commitment of Sexually Violent Predators Act, the circuit court erred in admitting expert testimony during direct examination regarding unsubstantiated hearsay details of unadjudicated allegations of sexual misconduct that an expert for the Commonwealth learned from police reports. In addition, the expert testimony did not have an adequate factual foundation to the extent that it was dependent upon assumption of the truth of the hearsay allegations concerning the respondent's past sexual misconduct not based upon evidence presented at trial. Expert opinions dependent upon the truth of hearsay allegations unsupported by evidence properly presented at trial were speculative and unreliable as a matter of law and should not have been admitted into evidence. The judgment is reversed and the case is remanded.

091120 Ghameshlouy v. Commonwealth 02/25/2010 Defendant's notice of appeal after conviction under a city code provision making it a misdemeanor to provide false identifying information to police was sufficient to give the Court of Appeals jurisdiction over this specific case. The notice of appeal identified the conviction sought to be appealed by its docket number, the specific circuit court, and the date. The notice stated that defendant was convicted of failing to provide identification to a police officer, a violation of the city's municipal code. This notice was sufficient on its face to identify the conviction being appealed, without reference to any other document in the record, and the Court of Appeals obtained jurisdiction over the case. The defect in the notice of appeal in not naming the city as the proper appellee, which otherwise would have justified dismissal of the appeal, was potentially subject to waiver, which clearly occurred by the subsequent actions of the city during the appeal process. Accordingly, the Court of Appeals erred in dismissing the appeal on the ground that it did not have jurisdiction over the case or the proper appellee.

091177 Harris v. Commonwealth 02/25/2010 A defendant had a liberty interest arising from participation in a drug treatment court program as part of a plea agreement, and the fact that he had no opportunity to participate in the decision to terminate his participation in that program, considered along with the circuit court's subsequent refusal to consider evidence about the reasons for that action, made the imposition of sentence in accord with the plea agreement error. The judgment of the Court of Appeals is reversed, the conviction and sentencing order are vacated, and the case is remanded for further proceedings consistent with this opinion.

091299 Roberson v. Commonwealth 02/25/2010 In an attempted appeal after defendant was convicted for driving under the influence of alcohol pursuant to a local ordinance, the appeal was procedurally barred because the notice of appeal failed to name the locality, an indispensable party, as the appellee. The appellant's contention that the conviction was obtained under a state statute and, thus, the notice of appeal properly named the Commonwealth as the appellee, is rejected. The rationale of the Court of Appeals is not accepted, but the conclusion of that Court that it did not have jurisdiction over the appeal is upheld. The judgment dismissing the appeal is affirmed.

091376 Weatherbee v. Virginia State Bar 02/25/2010 In a Bar discipline proceeding that led to a public reprimand, the record demonstrates by clear and convincing evidence that the attorney filed a medical malpractice lawsuit against a physician with no basis in law or fact, and the three-judge circuit court did not err when it concluded that the lawsuit was frivolous within the meaning of Rule 3.1 of the Virginia Rules of Professional Conduct. However, it cannot be said that the circuit court's finding that the attorney did not violate the provisions of Rule 1.1 concerning attorney competence was not justified by the evidence or contrary to law. The judgment is affirmed.

080760 Teleguz v. Commonwealth (ORDER) 01/15/2010 (Revised 01/22/2010) Upon consideration of a petition for a writ of habeas corpus, respondent's motion to dismiss the petition is granted. Petitioner's various claims alleging ineffective assistance of counsel are rejected as not satisfying the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and his remaining claims are rejected as lacking merit or as being either procedurally barred or improperly raised.

082475 Antisdel v. Ashby 01/15/2010 The circuit court did not err in holding that the administrator of an estate appointed solely for the purpose of bringing a wrongful death action under Code § 8.01-50 lacked standing to assert survival claims on behalf of the estate. The judgment is affirmed.

082607 Shapiro v. Younkin 01/15/2010 In an appeal to circuit court from a general district court proceeding in a landlord-tenant dispute, the trial judge erred in dismissing the plaintiff's appeal with prejudice based on his failure to obtain the services of a court reporter in contravention of the circuit court’s general directive that a court reporter be present at the trial of all civil cases. The judgment is reversed and the case is remanded for trial on the merits.

090010 Virginia Home for Boys and Girls v. Phillips 01/15/2010 (Revised 01/22/2010) In a suit seeking imposition of a trust upon the assets of a decedent, arising from her alleged failure to honor a promise to devise real estate to the plaintiff in exchange for services performed, the record contains no evidence independent of the plaintiff's testimony corroborating the existence or the terms of the parol agreement on which he relies, as required under the Dead Man’s Statute, Code § 8.01-397. As a result, the claim is barred by the Statute of Frauds, Code § 11-2(6), and the circuit court erred in granting specific performance of the alleged parol agreement. The judgment is reversed and final judgment entered on this appeal for the devisee of the property under the decedent's will.

090069 Hamilton v. Commonwealth 01/15/2010 In a prosecution for three misdemeanor counts of assault and battery by a mob in violation of Code § 18.2-42 and one felony count of participating in a criminal street gang in violation of Code § 18.2-46.2, the evidence was sufficient to sustain these convictions. Because defendant was a part of the mob that attacked the victims, he is "criminally culpable" even though he may not have actively encouraged, aided, or countenanced the assaults. The judgment of the Court of Appeals upholding the convictions is affirmed.

090161 Brown, Dwayne v. Commonwealth 01/15/2010 (Revised 01/22/2010) In two appeals involving multiple armed robbery and firearms convictions of two teenaged cousins, the Commonwealth failed to preserve a sentencing issue for appellate review in one of the appeals as required by Rule 5A:18. In that case the judgment of the Court of Appeals is reversed and the sentence imposed by the circuit court is reinstated. In the other appeal, the Court of Appeals correctly held that the circuit court erred when it sentenced the defendant to a juvenile disposition under Code § 16.1-272 instead of imposing the mandatory minimum sentences required by Code § 18.2-53.1. The judgment as to that defendant is affirmed, and the case is remanded for resentencing. (Consolidated with #090201, Brown, Demetrious v. Commonwealth)

090175 Whitaker v. Commonwealth 01/15/2010 (Revised 01/22/2010) In a prosecution for possession of a firearm while in possession of a controlled substance, possession with intent to distribute marijuana, possession of a firearm after having been convicted of a felony, and carrying a concealed weapon, the circuit court did not err in denying a defense motion to suppress the evidence seized in connection with the defendant's apprehension. The judgment of the Court of Appeals upholding the convictions is affirmed.

090194 Roberts v. CSX Transportation, Inc. 01/15/2010 In a personal injury action brought against a railroad under the Federal Employers' Liability Act, the circuit court erred in failing to strike for cause a potential juror who was a long time stockholder of the defendant railroad, thereby forcing the plaintiff to use a peremptory challenge to remove that juror from the jury panel. While federal substantive law governs the determination of rights and obligations in a FELA action, Virginia law governs the disposition of this error affecting a party's rights in jury selection of this action in Virginia circuit court. The judgment is reversed and the case is remanded for a new trial.

090265 Jones, Aubrey v. Commonwealth 01/15/2010 In a prosecution for burglary while armed with a deadly weapon, conspiracy to commit burglary, and wearing body armor while committing a crime of violence, in violation of Code §§ 18.2-91, 18.2-22 and 18.2-287.2, there is sufficient evidence in the record to support the convictions and the judgment of the Court of Appeals upholding the convictions is affirmed.

090339 Barnes v. Commonwealth 01/15/2010 In an appeal raising suppression of evidence issues, the search warrant affidavit in the case was constitutionally permissible and did not contravene the principles established in Franks v. Delaware, 438 U.S. 154 (1978). It clearly established probable cause based upon information from several witnesses, sufficient to cause a person of reasonable caution to believe that the defendant had committed the crimes. Thus, the issuing magistrate had a substantial basis for concluding that probable cause existed. On the merits, there was sufficient evidence to demonstrate beyond a reasonable doubt that the Commonwealth introduced sufficient evidence to support the convictions for malicious wounding and use or display of a firearm while committing aggravated malicious wounding. The judgment is affirmed.

090510 Murillo-Rodriguez v. Commonwealth 01/15/2010 The Court of Appeals did not err in refusing a petition for appeal of a conviction for abduction with intent to defile, in a case where the defendant moved to strike the evidence at the close of the prosecution's case and then elected to present defense evidence including his own testimony, but failed to renew his objection to the sufficiency of the evidence thereafter. The offering of defense evidence changed the issue by requiring consideration of all of the evidence in the record, and the defendant waived his challenge to the sufficiency of the evidence on the abduction charge by failing to present that issue. Code § 8.01-384(A) does not operate to preserve for appeal an issue that the party never allowed the trial court to rule upon, and a motion to strike the evidence presented after the Commonwealth's case-in-chief is a separate and distinct motion from a motion to strike all the evidence, or a motion to set aside an unfavorable verdict, made after the defendant has elected to introduce evidence on his own behalf. Accordingly, the judgment of the Court of Appeals is affirmed.

090518 Thomas v. Commonwealth 01/15/2010 (Revised 01/22/2010) In a first-degree murder and firearms prosecution for shooting and bludgeoning the victim to death, no reversible error is found in the trial court's rulings concerning appointment of a private investigator for the defense, pretrial disclosure of criminal record information for prosecution witnesses, voir dire questions, excuse of jurors for cause, sufficiency of the evidence for conviction as a principal in the second degree, jury instructions on accessory-after-the-fact status, malice and other issues, and evidentiary matters including statements of co-perpetrators. The judgment of the Court of Appeals upholding the convictions is affirmed.

090537 Avent v. Commonwealth 01/15/2010 In a first-degree murder and firearms prosecution for shooting and bludgeoning the victim to death, no reversible error is found in the trial court's rulings before, during or after trial, including its disposition of issues regarding use of the defendant's confession, alleged racial discrimination in jury selection, self-defense proof concerning justifiable and excusable homicide, voluntary intoxication of the defendant at the time of the offenses, jury instructions regarding these issues, new trial motions, after-discovered evidence, and proof of premeditation. The judgment of the Court of Appeals upholding the convictions is affirmed.

090557 Commonwealth v. Brown, Tavares 01/15/2010 In the appeal challenging suppression motion rulings, the Court of Appeals can only consider issues properly brought before it by the litigants, and while it broadly rephrased the question presented, an argument concerning probable cause to arrest was neither contained in the question presented nor briefed in the petition for appeal, or in any briefs filed by either party. Even though defendant raised the probable cause argument before the circuit court, the Court of Appeals cannot resurrect arguments abandoned on appeal. Neither party asserted a probable cause to arrest argument before the Court of Appeals, and thus that Court erred by considering that issue and by reversing the circuit court based on a lack of probable cause to arrest the defendant. The judgment is reversed and the case is remanded for entry of an order affirming the judgment of the circuit court.

090655 Harris v. Commonwealth 01/15/2010 In a proceeding under the Civil Commitment of Sexually Violent Predators Act, in which the Commonwealth moved for leave to amend its petition to identify the sexually violent offense for which the respondent was then serving an active sentence of incarceration to serve as the predicate offense under the Act, it cannot be said that the circuit court abused its discretion in allowing the amendment. The respondent made no showing of gross neglect or willful misconduct in regard to his inclusion in the database of prisoners incarcerated for a sexually violent offense, and the trial court thus did not err in denying his motion to dismiss the proceedings. The judgment is affirmed.

090706 Logan v. Commonwealth 01/15/2010 In accord with prior case law, the exclusionary rule is not applicable in probation revocation proceedings absent a showing of bad faith on the part of the police. The judgment of the Court of Appeals, which upheld the probation revocation order in the present case, is affirmed, but its opinion in this case is overruled to the extent that it suggests that prior case law has been to any extent changed.

090727 Jones, Ronald v. Commonwealth 01/15/2010 In determining whether a police officer had probable cause to arrest a defendant for driving under the influence of alcohol, a court may consider the driver’s refusal to perform field sobriety tests when such refusal is accompanied by evidence of the driver’s alcohol consumption and its discernable effect on his mental or physical state. However, the fact of such refusal is not evidence of a defendant's consciousness of guilt, and the Court of Appeals erred in holding otherwise. In this case, the totality of facts and circumstances concerning the defendant's physical and mental state rendered his refusal to perform field sobriety tests circumstantial evidence tending to show an awareness that his consumption of alcohol would affect his ability to perform those tests. The record supports the circuit court’s determination that the officer had probable cause to arrest the defendant for driving under the influence of alcohol. The judgment of the Court of Appeals affirming the judgment of the circuit court is vacated in part and affirmed in part.

090738 Anderson v. Commonwealth 01/15/2010 The "public safety" exception to the Miranda rule was applicable to permit evidential use of a defendant's response when an arresting officer asked defendant whether a gun he had thrown five or six feet away was loaded. Since the "public safety" exception applied to the response, other statements given by defendant after Miranda warnings were administered were not tainted. The Court of Appeals did not err in upholding the circuit court’s denial of the defendant's motion to suppress any of his statements to the police, and the judgment upholding his firearms possession conviction is affirmed.

090856 Vaughn v. Commonwealth (ORDER) 01/15/2010 In an appeal from a conviction for grand larceny in violation of Code § 18.2-95 in which defendant argues that the Court of Appeals erred by upholding the circuit court's denial of his motion to suppress evidence seized during a warrantless search of the curtilage of his dwelling, the issue of whether the law enforcement officer conducting the search lawfully entered defendant's backyard under the implied consent doctrine was procedurally defaulted under Rule 5A:18 and should not have been addressed. The judgment of the Court of Appeals is affirmed but that portion of its opinion addressing the implied consent doctrine and deciding whether the officer lawfully entered defendant's backyard is vacated.

090863 Burns, William Joseph v. Commonwealth 01/15/2010 (Revised 01/22/2010) Because a proceeding remanded pursuant to Code § 8.01-654.2 for determination of a claim of mental retardation by a person sentenced to death for a capital offense was criminal in nature, the circuit court erred in granting summary judgment to the Commonwealth and in ruling that the defendant's competence was irrelevant, refusing to adjudicate his competence. The circuit court’s judgment is reversed and the case is remanded for further proceedings consistent with this opinion. See Record No. 020971, Burns v. Warden Order dated March 11, 2005

081632 Hutchins v. Talbert 11/05/2009 In a medical malpractice action, an order denying a motion to set aside the verdict was not a final judgment for purposes of the deadline for filing a notice of appeal in a case in which the trial judge has rendered final judgment in a separate, previously entered order, which is not vacated, suspended, or modified by the order ruling upon the motion to set aside the verdict. Because the notice of appeal filed in this case was untimely, and the time prescribed for filing the notice of appeal is mandatory, the appeal is dismissed.

081715 Baker v. Commonwealth 11/05/2009 In a trespass prosecution, proof of the existence of two “no trespassing” signs on the property alone was insufficient to satisfy the elements of trespass set forth in Code § 18.2-119. Without evidence that a “no trespassing” sign was posted by one of the enumerated persons authorized by the statute to prohibit entry upon the property, the Commonwealth failed to put on sufficient evidence of the defendant’s guilt. The judgment of the Court of Appeals is reversed, the conviction under Code § 18.2-119 is vacated and the indictment is dismissed.

081718 Kellermann v. McDonough 11/05/2009 In a wrongful death action involving a minor decedent who was staying overnight in the home of her friend, in the care of that friend's parents, but was killed after being allowed to ride in a vehicle driven by another minor against the decedent's father's express instructions, the trial court erred in sustaining a demurrer as to both defendants on plaintiff's common law duty of supervision and care claim and as to the defendant mother on plaintiff's claim of assumption of duty, since the averments adequately alleged that she undertook to protect the decedent from inexperienced and/or young male drivers. However, the trial court did not err in sustaining the demurrer as to the defendant father on the assumption of duty claim. Further, a special relationship did not exist giving rise to a duty upon the defendants to protect the decedent from the acts of third persons, and the demurrer was properly sustained against that claim. Finally, a jury could find that the acts of the minor driver did not constitute a superseding cause of the decedent's death. The judgment is affirmed in part and reversed in part, and the case is remanded for a trial on plaintiff's claims of assumption of a duty against the defendant mother and breach of a common law tort duty of supervision and care against both defendants. See Rehearing granted - opinion #081718 dated July 17, 2009 withdrawn

081837 Hash v. Director 11/05/2009 In a habeas corpus proceeding, considering the totality of the evidence, petitioner failed to show that, but for his counsels' alleged error in failing to investigate a fellow inmate's federal file and use correspondence therein to further impeach his testimony implicating petitioner, the trial would have had a different result. Because this witness' motivation in testifying had already been clearly demonstrated, the failure to further impeach the witness did not constitute a breakdown in the adversary process rendering petitioner's conviction unreliable. Further, petitioner's failure to establish that the witness' testimony was false is fatal to his claim of prosecutorial misconduct. Accordingly, the circuit court did not err in denying petitioner a writ of habeas corpus, and that judgment is affirmed.

081920 Waller v. Commonwealth 11/05/2009 (Revised 11/06/2009) In a prosecution for possession of firearms after having been convicted of a felony in which six prior conviction orders not bearing a judicial signature were admitted into evidence, the provisions of Code § 8.01-389(A), which governs admission of records of all judicial proceedings except orders of circuit courts, did not authorize receipt of the orders. Code § 17.1-123(A) sets forth particular authentication requirements for judgment orders, and the six orders in question were admitted in error. Defendant's conviction for possessing a firearm after having been convicted of a violent felony is reversed. However, the evidence was sufficient to convict the defendant of the lesser offense of possessing a firearm after having been convicted of a non-violent felony. The judgment of the Court of Appeals is reversed and the case is remanded for a new sentencing hearing on the lesser offense of possessing a firearm after having been convicted of a non-violent felony.

082023 Harbour v. SunTrust Bank 11/05/2009 In ruling upon an action by a bank serving as trustee under a decedent's trust, seeking aid and guidance in the interpretation of the trust agreement and in the distribution of the trust proceeds, the circuit court erred in holding that the interests of two of the trust grantor's siblings lapsed in favor of a church. The judgment is reversed and the suit is remanded for entry of an order distributing the remainder interests of the parties in accordance with the holding expressed in this opinion.

082122 Turner v. Commonwealth 11/05/2009 Admission at a probation revocation proceeding of hearsay evidence concerning polygraph test results was error by the trial court. Polygraph test results fall far short of the “demonstrably reliable” hearsay evidence that may be received in such proceedings. The judgment appealed from is reversed and the case is remanded to the Court of Appeals with direction to remand the matter to the circuit court for resentencing consistent with this opinion.

082143 Dowdy v. Commonwealth 11/05/2009 In a prosecution for rape and first-degree murder, the Court of Appeals erred in finding that the defendant failed to preserve certain issues for appellate review, but correctly rejected his ineffective assistance of counsel claim on this direct appeal. The requirement under prior case law that a defendant demonstrate that denial of a request for appointed expert assistance will result in prejudice is upheld. Considering defendant's failure to show particularized need, the trial court did not abuse its discretion in refusing to provide him with additional investigative services. The judgment upholding defendant's convictions is affirmed.

082228 Smallwood v. Commonwealth 11/05/2009 In a prosecution for possession of a firearm after having been convicted of a felony in violation of Code § 18.2-308.2, the Commonwealth presented sufficient evidence to support conviction based on joint constructive possession of a handgun resting on a console between two front seats of a vehicle the defendant was driving. The judgment of the Court of Appeals upholding the conviction is affirmed.

082270 Singleton v. Commonwealth 11/05/2009 In two separate convictions of attorneys for criminal contempt of court, the evidence was insufficient to establish that either attorney intended to obstruct or interrupt the administration of justice within the intendment of Code § 18.2-456(1). In the absence of such intent, those convictions cannot be upheld. The judgments of the Court of Appeals sustaining the convictions in each case are reversed and the convictions are vacated.

082440 Commonwealth v. Squire 11/05/2009 In a petition by the Commonwealth under the Civil Commitment of Sexually Violent Predators Act, Code §§ 37.2-900 through –920, the trial court considered the Commonwealth's expert opinions as well as the respondent's life chronology which included no incidents of a sexual nature for almost 10 years, a fact suggesting that his actions were not consistent with the statistical predictors of re-offending and stood in contrast to the experts’ opinions on the likelihood of his committing future violent sexual acts. The trial court’s conclusion that the Commonwealth did not provide clear and convincing evidence that respondent is likely to commit sexually violent acts was not plainly wrong or without evidence to support it. The judgment for the respondent is affirmed

082477 Williams, Dekota v. Commonwealth 11/05/2009 In a robbery prosecution, there was sufficient evidence to convict the defendant where the evidence showed that the crime began as a larceny and subsequently matured into a robbery of the victim. The judgment of the Court of Appeals upholding the conviction is affirmed.

082547 Grattan v. Commonwealth 11/05/2009 In a prosecution on 16 indictments for murder, aggravated malicious wounding, multiple counts of attempted capital murder of a law enforcement officer, and related firearms offenses, the circuit court considered expert opinion, lay testimony, and its own observations of the defendant in finding that the defendant was competent to stand trial. This finding was not plainly wrong or without evidence to support it. The circuit court also did not abuse its discretion by barring the defendant's introduction of expert testimony at trial on the issue of his sanity at the time of the offenses, based on his failure to cooperate in allowing mental examinations by the Commonwealth's experts. The judgment of the Court of Appeals is affirmed.

082566 Carroll v. Johnson 11/05/2009 Code § 8.01-654 extends the availability of the writ of habeas corpus to prisoners who claim they are “detained without lawful authority,” and does not limit the availability of the writ to situations in which a ruling in the petitioner’s favor will result in his or her immediate release. The statute allows a petitioner to challenge the lawfulness of the entire duration of his or her detention so long as an order entered in the petitioner’s favor will result in a court order that, on its face and standing alone, will directly impact the duration of the petitioner’s confinement. Therefore, the circuit court erred in holding that it did not have habeas corpus jurisdiction to entertain such a claim. On the merits, however, petitioner is not entitled to credit toward his Virginia sentence as a matter of law for time spent as a New Jersey prisoner in temporary custody in Virginia awaiting trial, and the circuit court did not err in denying this petition for a writ of habeas corpus and denying an evidentiary hearing.

090013 Brown, Douglas v. Commonwealth 11/05/2009 In a prosecution for involuntary manslaughter, the evidence was sufficient to establish that the defendant was a proximate cause of the death of a driver whose car was struck by a police cruiser during a high-speed chase to apprehend the defendant. Because the police officer's actions did not break the chain of proximate causation between the defendant's criminally negligent conduct and the victim's death, the Court of Appeals did not err in concluding that the evidence supports the conviction. The judgment is affirmed.

090249 Piedmont Environmental Council v. VEPCO 11/05/2009 In consolidated appeals of right from an order of the State Corporation Commission granting, subject to certain conditions, the applications of two electric utilities for the construction and operation of Virginia segments of a proposed interstate electric transmission line to be operated by a regional transmission entity that is subject to federal regulation, the record manifestly demonstrates that the Commission conducted its review of the applications in accord with the requirements of Code §§ 56-46.1 and 56-265.2, and that the Commission’s decision to grant the applications is supported by the evidence. The Commission's order, as conditioned, is affirmed. (Consolidated with Record Nos. 090253, 090258, 090278 and 090284)

090308 Wright v. Commonwealth 11/05/2009 In a prosecution under Code § 18.2-308.4(C) for possession of a firearm while possessing a controlled substance with the intent to distribute, proof of actual, simultaneous possession of the firearm and controlled substance was not required, and a conviction can be sustained by proving constructive possession of the firearm and drugs. Further, no nexus between the possession of the firearm and the illegal activity is required under the statute. The judgment of the Court of Appeals upholding the convictions based on sufficiency of the evidence for the convictions is affirmed.

090337 Montague v. Commonwealth 11/05/2009 In a drug and firearms prosecution, the evidence was sufficient to support the decision of the circuit court denying a motion to suppress narcotics and a handgun found on the person of the defendant during an encounter with police that was consensual, and that defendant was not seized until the police attempted to take him into custody upon learning of his outstanding arrest warrants. The evidence supported the circuit court’s conclusion that a reasonable person in defendant's position would not have thought that he was required to remain in the police officers’ presence after providing them with the requested information regarding his identity. The evidence was also sufficient to show that defendant acted with the intent to inflict physical harm upon one of the arresting officers and to impede the officers’ ability to subdue him, when he struck one of the arresting officers in the chest with his elbow while being taken into custody. Thus the Court of Appeals did not err in concluding that the evidence was sufficient to convict defendant of the crime of assault and battery of a law enforcement officer under Code § 18.2-57(C). The judgment of the Court of Appeals upholding the convictions is affirmed.

090483 Williams, Michael v. Warden 11/05/2009 In a habeas corpus petition asserting entitlement to relief based on defense counsel's failure to properly appeal the petitioner's case from the Court of Appeals to the Supreme Court of Virginia, he is required to demonstrate that there is a reasonable probability that, but for his counsel's failure, the result of the proceeding would have been different. Since a review of the evidence shows that the investigating police officer had reasonable articulable suspicion to stop the vehicle in which petitioner had been riding as a passenger, and that such suspicion ripened into probable cause to arrest petitioner and search his person and the vehicle incident to that arrest, even if his counsel had properly appealed the issue of the validity of the traffic stop, the result of the appeal would have been the same. Accordingly, petitioner has not borne his burden of demonstrating prejudice under the requirements of Strickland v. Washington, 466 U.S. 668 (1984), and the petition is denied.

090845 Judicial Inquiry & Review Comm'n v. Taylor 11/05/2009 In a complaint filed by the Judicial Inquiry and Review Commission against a juvenile and domestic relations district court judge pursuant to Article VI, § 10 of the Constitution of Virginia and Code § 17.1-902, the judge’s actions in thwarting an appeal of the denial of bond for a juvenile detainee, and of his appeal of the judge's ruling, violated the law and public confidence in the integrity and impartiality of the judiciary was diminished. The judge violated Canons 1, 2A, and 3B(2) and these violations constituted conduct prejudicial to the administration of justice. The judge is censured.

081294 VEPCO v. Norfolk Southern Ry. Co. 09/18/2009 (Revised 09/22/2009) In a contract dispute between a railroad and two utility companies over periodic cost adjustments to rates charged by the railroad for transportation of coal to an electricity generating facility, the circuit court correctly determined that the contract was unambiguous in specifying the applicable cost adjustment factor, did not err in striking certain affirmative defenses raised by the utilities to the railroad’s claim for breach of the contract, and did not err in denying the utilities' motion to file an amended complaint. Although the circuit court did not abuse its discretion in concluding that certain pre-and post-judgment interest rates applied and that the railroad was entitled to an award of pre- and post-judgment interest, it did err in determining the basis for calculating the underlying damages to which the railroad is entitled. The judgment is affirmed in part and reversed in part and the case is remanded for further proceedings.

081672 Rawls v. Commonwealth 09/18/2009 A criminal defendant who is sentenced in excess of a prescribed statutory range of punishment is entitled to a new sentencing hearing. This rule eliminates the need for courts to resort to speculation in determining how a jury would have sentenced a criminal defendant had the jury been properly instructed as to the available range of punishment or had the jury properly followed correct instructions in that regard. Thus, a defendant who was sentenced to a punishment in excess of the statutorily prescribed maximum for second degree murder as a result of incorrect jury instructions is entitled to a new sentencing hearing on that conviction and the circuit court erred by reducing his sentence to the then maximum available sentence of 20 years imprisonment. The judgment is affirmed in part and reversed in part, and the matter is remanded for a new sentencing hearing regarding the defendant's conviction for second degree murder.

081691 Commonwealth v. Doe 09/18/2009 A court order entered under Code § 18.2-370.5 granting a stepfather who is a convicted violent sex offender permission to enter public school property under certain specified conditions violates Article VIII, Section 7 of the Constitution of Virginia, which vests in school boards the supervisory authority over public schools. Code § 18.2-370.5 authorizes a circuit court to lift the statutory ban imposed by Code § 18.2-370.5(A), but allows the affected private entity or public school board to determine whether and under what circumstances an offender may enter onto school property. The judgment of the circuit court is reversed and the case is remanded for further proceedings.

081720 Commonwealth v. Anderson 09/18/2009 (Revised 09/22/2009) In a prosecution that included charges of robbery and use of a firearm in the commission of robbery, the Court of Appeals did not err in finding that the Commonwealth had not proven intimidation of the robbery victim. Even viewing the evidence in the light most favorable to the Commonwealth, the prevailing party in the circuit court, the evidence was insufficient to establish that the alleged individual victim was intimidated or to support the circuit court’s judgment convicting the defendant of robbery and use of a firearm in the commission of robbery. Accordingly, the judgment of the Court of Appeals is affirmed.

081741 Dunn Construction Co. v. Cloney 09/18/2009 In an action for breach of contract between a building contractor and a property owner involving the partial construction of a new house, the builder's failure to construct a foundation wall "in a workmanlike manner according to standard practices" and his false representations that he had made adequate repairs to that wall to bring it into compliance with applicable building code requirements related to a duty arising under the construction contract rather than a common law duty. As a result, the circuit court erred in determining that there was sufficient evidence to permit the jury to find that the builder had committed an act of fraud independent of the contractual relationship such that the property owner could maintain an action both for breach of contract and for fraud, and erred in confirming the jury's award of punitive damages for fraud in favor of the property owner. The judgment is reversed in part and final judgment is entered for the property owner limited to an award of compensatory damages with interest.

081800 Howell v. Sobhan 09/18/2009 In a medical malpractice action, the trial court erred in sustaining the defendants' motion to strike the evidence on the grounds of failure to present sufficient evidence of proximate causation to take her case to a jury. The judgment is reversed and the case is remanded for a new trial.

082079 Burdette v. Brush Mountain Estates 09/18/2009 Code § 55-2, requiring that estates in land be conveyed by a deed or will, does not apply to the conveyance of an easement because an easement is not an estate in land. Nevertheless, the trial court erred in concluding that language appearing on a plat incorporated for descriptive purposes in deeds evidencing the conveyance of the servient estate was sufficient to convey an easement benefiting a third party, where neither the deeds nor the plat contained operative words of conveyance sufficient to demonstrate the manifest intention to grant an easement. The judgment of the circuit court is reversed and the case is remanded for the entry of an order to be recorded in the appropriate local land records.

082280 Keener v. Keener 09/18/2009 The same principles that are applied to a forfeiture or "no-contest" clause in a will apply with equal force to such provisions appearing in a trust that constitutes a part of a decedent’s testamentary estate plan. However, these provisions are strictly construed; thus, a daughter's acts in opening intestate administration of her father’s estate did not trigger the "no-contest" provisions of the trust at issue. The circuit court's judgment is reversed and the case is remanded for further proceedings.

082292 Graham v. Cook 09/18/2009 (Revised 09/29/2006) In a medical malpractice action, no reversible error is found in the rulings of the circuit court at trial permitting the defendants to present certain evidence from the plaintiff’s treating physicians, precluding certain cross-examination of a treating physician by the plaintiff, and limiting the plaintiff’s closing argument regarding x-rays that were admitted into evidence.

082345 City of Suffolk v. Lummis Gin Co. 09/18/2009 A proceeding brought by a city under Code §§ 58.1-3965 et seq. seeking to sell a parcel of land located within its boundaries in order to satisfy delinquent real estate tax liens, was not the same cause of action the city filed in 1995, and thus a nonsuit granted in the prior action did not operate to extinguish the city’s right to take a first nonsuit in the present action. The circuit court erred in determining that the city had been granted a second nonsuit, and it had no authority to award costs and attorneys’ fees against the city for the exercise of its absolute right to a first nonsuit. The nonsuit order in this case was a final order under Rule 1:1 and, therefore, the circuit court had no jurisdiction to award attorney fees and costs 21 days after its entry. The order awarding attorney fees and costs is reversed and final judgment is entered here in favor of the city.

082387 de Benveniste v. Aaron Christensen Family, LP 09/18/2009 In a suit for allotment, partition, or sale of property jointly held by four siblings and their families, the trial court did not abuse its discretion in requiring a cotenant to share subdivision development expenses that resulted in an increase in the value of real property upon sale, even though the investment did not result in “permanent” physical improvements to the property. Nor was it an abuse of discretion for the trial court to rule that such an award, if otherwise permissible, should not be barred by the doctrine of unclean hands under the circumstances presented. The judgment is affirmed.

082416 Anderson v. Delore 09/18/2009 In a dispute alleging that, by placing a dock, rip rap, and beach area within the "extended lot lines" of an adjacent lot, a neighbor encroached upon an express easement granted to the landowners to secure access to a lake and violated certain zoning ordinance provisions, the circuit court did not err in refusing to issue an injunction requiring removal of these improvements where the landowners failed to prove that their easement included the land on which the neighbor allegedly encroached. The circuit court also did not err in refusing to grant relief based upon the alleged zoning ordinance violations, as the ordinance provisions did not create a private right of action. The judgment is affirmed.

082458 Whitehead, Travis Stacey v. Commonwealth 09/18/2009 A positive alert on a vehicle by a trained narcotics detection dog, combined with the subsequent fruitless searches of the vehicle, the driver, and two passengers, did not provide sufficient particularized probable cause to allow a search of the only remaining passenger in the vehicle. Thus, the judgment of the Court of Appeals holding that the search at issue did not violate the Fourth Amendment is reversed. In addition, because the evidence seized as a result of the search should have been suppressed, there would be insufficient evidence to sustain a conviction on retrial. Defendant's conviction is therefore vacated and the indictment is dismissed.

082464 Prieto v. Commonwealth 09/18/2009 (Revised 11/09/2009) In proceedings leading to two capital murder convictions and two death sentences along with convictions for rape, grand larceny and felonious use of a firearm, the verdict forms utilized by the jury were defective because they lacked an option for the jury to sentence defendant to life imprisonment, with or without a fine, even if one or both death sentence aggravating factors were found, and the forms did not require a unanimous finding as to which of the aggravating factors were proven beyond a reasonable doubt. The capital murder convictions are affirmed, but the death sentences are reversed and the case is remanded for a new penalty proceeding on those convictions. The defendant's other convictions and sentences are affirmed. Other issues addressed include whether defendant was entitled to a directed verdict of life imprisonment, whether the trial court erred in declaring a mistrial in a prior trial based upon juror misconduct, the circuit court’s authorization of a retrial, denial of a separate proceeding regarding mental retardation, lost evidence, and the sufficiency of the evidence to prove defendant was the immediate perpetrator and thus eligible for the death penalty. see Record No. 110632, Prieto v. Commonwealth, Jan. 13, 2012

090186 Morva v. Commonwealth 09/18/2009 In a prosecution for three counts of capital murder, assault upon a law enforcement officer, escape, and two counts of use of a firearm in the commission of murder, no reversible error is found in the judgment of conviction in the circuit court or in the sentence of death, and no reason is found to set aside that sentence. Issues concerning the retention and exclusion of jurors, jury instruction language concerning a permissive inference, the appointment of a prison risk assessment expert and the introduction of prison life evidence as it relates to a defendant's future dangerousness are also addressed. The judgment of the circuit court is affirmed.

081718 Kellermann v. McDonough (A Rehearing was Granted on the Opinion dated July 17, 2009 ) 07/17/2009 (Revised 09/16/2009) The July 17, 2009 Opinion was Withdrawn by Order dated September 16, 2009. See Record #081718, Kellermann v. McDonough, dated November 5, 2009

080282 In Re: Commonwealth of Virginia 06/04/2009 Mandamus cannot be used to collaterally attack or vacate a final judgment entered upon the conclusion of a criminal proceeding, and prohibition cannot be used to vacate or "undo" that final judgment because that writ does not lie to undo acts already done. Thus, the Commonwealth's petition for a writ of mandamus seeking to compel a circuit court to vacate a final judgment in a capital murder proceeding setting aside a death sentence and imposing a term of life imprisonment pursuant to Code § 19.2-264.5, based on evidence of a Brady violation, is dismissed along with the Commonwealth's petition for a writ of prohibition seeking to vacate that final judgment.

080599 Bell v. Saunders 06/04/2009 The trial court erred in sustaining a demurrer as to one plaintiff in a declaratory judgment proceeding for interpretation of the wills of two decedents, since that plaintiff averred that the executor/trustee was denying her income from one-half of a trust estate to which she was entitled, thus pleading a justiciable controversy with specific adverse claims based on present facts that are ripe for adjudication pursuant to Code § 8.01-184. Because the executor/trustee did not assign cross-error to the failure of the trial court to rule on another ground of his demurrer, consideration of that ground is precluded on appeal. A demurrer was properly sustained as to the claims of the other plaintiff, who had alleged that the same lawyer had been named in the will of another decedent but was not properly qualified, but failed to plead the existence of an actual controversy involving an antagonistic assertion and denial of right between himself and the executor.

080751 Williams v. Joynes 06/04/2009 In a legal malpractice action alleging failure timely to file a Virginia personal injury action, the circuit court erred in granting summary judgment for the defendant attorneys based on the view that the plaintiff’s failure to file a similar action in a foreign jurisdiction with a longer statute of limitations was a superseding event, which severed the link of proximate causation between the defendants’ negligence and plaintiff's loss of his personal injury claim. Since the attorneys' conduct set in motion the need for plaintiff to consider filing a lawsuit elsewhere, as a matter of law the argument that his failure to file a lawsuit in another jurisdiction was a superseding cause that relieved them of liability must fail. The fact that one of the other vehicle drivers was not subject to suit in the other state also demonstrates that plaintiff's decision regarding litigation in another state could not have severed completely the link of proximate causation between the defendant attorneys' negligence and plaintiff's loss of his personal injury claim against that other driver. It was error to grant partial summary judgment to the defendants and the circuit court’s judgment is reversed. The case is remanded for a trial on the merits of the cause.

080775 Whitehead v. Commonwealth 06/04/2009 (Revised 10/22/2009) The Court of Appeals erred in affirming the multiple convictions for receiving stolen property and the revocation of the defendant's prior suspended sentences on unrelated offenses based in part upon the convictions at issue in this appeal. The trial court was plainly wrong in holding that the defendant “received” the property merely because she benefited from the proceeds of its sale. Arguments concerning constructive possession or concealment of stolen property were not properly raised below and are not considered on this appeal. Because the trial court placed significant weight upon defendant's new convictions in the revocation of the suspension of her prior sentences, she is entitled to a new hearing. The judgment of the Court of Appeals as to 32 convictions for receiving stolen property is reversed and the indictments are dismissed. With regard to the revocation of previously suspended sentences, the judgment is reversed and the case is remanded for a new revocation hearing.

080782 Fultz v. Delhaize America, Inc. 06/04/2009 In a personal injury suit by a grocery store customer who was injured when she tripped over a metal bar attached to the floor and extending along the side and to the front of an automated teller machine in the store, the circuit court erred in determining that the issue whether plaintiff was reasonably distracted before injuring herself on an open and obvious hazard was appropriate for summary judgment.

081174 Virginia Department of Health v. NRV Real Estate 06/04/2009 The Court of Appeals erred in a dispute between the Virginia Department of Health and a nursing home operator concerning an application to relocate nursing home beds from one facility to another. The list of services entitled to the benefit of the “twelve-month rule” by Code § 32.1-102.1 does not include nursing home beds, and the department acted in compliance with the applicable statutes in declining to accept the application. The judgment of the Court of Appeals is reversed, the judgment of the circuit court is reinstated, and final judgment is entered here dismissing the appeal.

081175 Frederick County Business Park v. Virginia Dept. of Environmental Quality 06/04/2009 In an appeal from a Court of Appeals’ judgment sustaining the decision of the Virginia Department of Environmental Quality, it cannot be said that the Department's decision that a facility proposed by a limited liability business park entity was a materials recovery facility subject to the permitting requirements of the Virginia Solid Waste Management Regulations, 9 VAC § 20-80-10, et seq., was arbitrary or capricious. The judgment of the Court of Appeals is affirmed.

081417 Brown v. Commonwealth 06/04/2009 In considering two cases involving requests to expunge police and court records relating to criminal charges pursuant to Code § 19.2-392.2(A), because the charges at issue were dismissed without the petitioners' entering a plea and without any finding that the evidence was sufficient to establish guilt, the charges were "otherwise dismissed" within the intendment of the statute and both petitioners were entitled to the requested expungements. The judgment of a circuit court denying expungement of the police and court records relating to the charge involving the first named petitioner is reversed and the matter is remanded for entry of an order of expungement. The judgment of another circuit court granting expungement of the police and court records pertaining to the charge involving the second named petitioner is affirmed.

081477 Winborne v. Virginia State Lottery 06/04/2009 In suit for declaratory relief brought by wheelchair-using petitioners, the Virginia Lottery offers a program, service, or activity within the meaning of the Virginians with Disabilities Act, Code § 51.5-1 et seq. (“VDA”), and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), and the Virginia Lottery has an obligation to ensure that disabled persons are not excluded from participation in or denied access to such program or activity of the Virginia Lottery. The circuit court erred in granting summary judgment on that issue to the respondents. However, there is no legal requirement as to how this access for the program, viewed in its entirety, must be accomplished. Thus, the circuit court did not err in denying petitioners’ motion for partial summary judgment. The judgment is reversed in part, affirmed in part, and the case is remanded.

081577 Williams v. Commonwealth 06/04/2009 There is no error in the Court of Appeals’ determination that the evidence at trial was sufficient to support the defendant's conviction of possession of methadone with intent to distribute. The judgment is affirmed.

081645 Commonwealth v. Ferguson 06/04/2009 Statements during a custodial interrogation should have been suppressed in the defendant's later criminal trial because he made a clear, unambiguous and unequivocal invocation of the right to counsel prior to making such statements and police failed to honor the invocation of that right. The encounter was one continuous custodial interrogation conducted by police in such a manner as to coerce the defendant to incriminate himself, and police may not use the product of such techniques as proof of a voluntary reinitiation of communication and subsequent waiver of the right to counsel. Thus, the trial court erred in denying the defendant's motion to suppress. The judgment of the Court of Appeals reversing the defendant's conviction is affirmed.

081738 Zektaw v. Commonwealth 06/04/2009 Statements made by the defendant in a criminal case during a custodial interrogation should have been suppressed where he made a clear, unambiguous and unequivocal invocation of the right to counsel prior to making such statements and police failed to honor the invocation of that right. Thus, the trial court erred in denying a motion to suppress, and the Court of Appeals erred in affirming such denial. The error was not harmless, and the judgment of the Court of Appeals is reversed. The case is remanded for a new trial if the Commonwealth be so advised.

081743 Board of Supervisors of Stafford County v. Crucible, Inc. 06/04/2009 In a landowner's suit for declaratory and injunctive relief on the theory that it had a vested right to "by right" development of its land under a particular zoning classification, which precluded enforcement of revised zoning provisions requiring a special use permit, Code § 15.2-2286 gave both the zoning administrator and the circuit court concurrent jurisdiction to make vested rights determinations. Thus the court did not err in allowing the landowner to seek a vested rights determination without first presenting this issue to the zoning administrator. The circuit court erred in holding that a "zoning verification letter" which did not affirmatively approve the project or provide a commitment to do so, but simply answered a question concerning the current classification, was a significant governmental act sufficient under Code § 15.2-2307 to vest a right in the landowner for a particular "by right" use. Finally, Code § 15.2-2311(C) does not establish an alternative basis for vesting in this case. The judgment is affirmed in part and reversed in part, and final judgment is entered.

081827 Mongold v. Woods 06/04/2009 In a case seeking compensation for extra work performed after a promise of future rewards, a party may state in a pleading as many claims as he has, and the fact that a plaintiff's first count alleged facts that might have framed a cause of action for promissory estoppel, which is not recognized in Virginia, is immaterial to the claim made in his second count for damages based on quantum meruit. On the facts of this case, there was no enforceable express contract between the parties covering the same subject matter, and it cannot be said that the trial court was plainly wrong in concluding that finding the existence of an implied contract was necessary to prevent injustice to the plaintiff. In this case there was evidence of an agreed hourly rate and additional, uncompensated work, and there was sufficient evidence of the reasonable value of the services performed. The recovery period extended back to the point early in the relationship of the parties when plaintiff's workload nearly doubled but his compensation remained the same, and promises of future rewards were made. The judgment is affirmed in part, reversed in part, and the case is remanded.

081863 McLane v. Vereen 06/04/2009 In a case involving fines imposed for a violation of a zoning ordinance that prohibited the maintenance of a "junk yard" on private property, when the landowners did not comply for 206 days after the final, extended compliance deadline, the circuit court erred in fixing fines payable in an amount less than the rate specified in a consent decree previously endorsed by the affected property owners and the county, and entered by the court. The judgment of the circuit court is reversed and final judgment is entered in favor of the county in the amount of $20,600.

081900 Virginia Farm Bureau Mutual Ins. v. Williams 06/04/2009 In considering whether an exclusion in an automobile insurance policy prohibited an insured party from “stacking,” or combining, the uninsured/underinsured motorist coverage for bodily injury (UM/UIM coverage) on the three separate vehicles listed in the policy, the circuit court correctly held that the insured was afforded UM/UIM coverage under the policy. However, the circuit court erred in failing to construe an ambiguity in the declarations portion of the policy in favor of the insured so as to allow such "stacking," and thus erred in failing to declare that the insured was entitled to total UM/UIM coverage in the amount alleged by the insured. The circuit court's judgment is affirmed in part and reversed in part, and final judgment is entered in favor of the insured.

082530 Green v. Virginia State Bar 06/04/2009 (Revised 06/05/2009) No error is found in reviewing an order of the Virginia State Bar Disciplinary Board suspending an attorney's license to practice law for 18 months for violation of Rules 1.4(a), 1.4(b), 1.4(c), 1.15(a)(2), and 1.16(d) of the Virginia Rules of Professional Conduct with respect to two matters. Issues including whether the Board substantially complied with procedural requirements, the sufficiency of the evidence of the Rule violations, and whether the attorney's record of prior discipline was appropriately considered are addressed. The order is affirmed.

080550 SunTrust Bank v. Farrar 04/17/2009 In a suit for breach of fiduciary duty arising from the management of a coal mining property under a trust, the circuit court erred in awarding damages to the beneficiaries based on a record containing no evidence supporting a property appraiser's assumption and premise that there existed a willing buyer or other circumstances creating a viable market at the appraised value. The judgment of the circuit court is reversed and final judgment is entered in favor of the trustee.

080920 Riley v. Commonwealth 04/17/2009 In a prosecution for driving while intoxicated in violation of Code § 18.2-266 and maiming another person as a result of driving while intoxicated in violation of Code § 18.2-51.4, the circuit court did not make a factual finding that the defendant was sleepwalking at the time of the charged offenses. Since the defendant's unconsciousness defense was predicated solely on the assumption that he was in fact sleepwalking, the defendant failed to meet his burden to establish his unconsciousness defense. Without that defense, the evidence established merely voluntary intoxication and was otherwise sufficient to sustain the defendant's conviction for maiming. Thus, the judgment of the Court of Appeals upholding the convictions is affirmed.

080939 Smith v. Kim 04/17/2009 In a wrongful death acting involving medical treatment, the trial court did not err in refusing an instruction proffered by the plaintiff that would have told the jury that a tortfeasor is legally responsible for any additional injuries a tort victim suffers during treatment for the original injuries the tortfeasor has caused. Whether the physician’s negligent acts cause a mere aggravation of the original injury or cause instead a separate and distinct injury should, as a general rule, be left to the determination of a jury, guided by ordinary principles of proximate cause. The proffered instruction withdrawing this important factual issue from the jury was not a correct statement of law, and the circuit court did not err by refusing to grant it. The judgment is affirmed.

080976 Virginia Tech. and State University v. Quesenberry 04/17/2009 In review of a state employee's termination grievance determination in accordance with Code § 2.2-3006(B), the Court of Appeals erred in affirming the circuit court’s judgment that a hearing officer’s decision upholding the termination was “contradictory to law,” because the grievant failed to identify to the circuit court any applicable law that the decision contradicted. Thus both the Court of Appeals and the circuit court lacked any basis for reviewing the hearing officer’s decision. The Court of Appeals also erred in affirming the circuit court’s judgment reinstating the grievant to his previous position of employment and awarding him compensation for accrued wages. The judgment of the Court of Appeals is reversed and final judgment is entered.

080998 Tanner v. City of Virginia Beach 04/17/2009 In a declaratory judgment proceeding the circuit court erred in rejecting a constitutional challenge to a municipal ordinance prohibiting any noise that was “unreasonably loud, disturbing and unnecessary,” of “such character, intensity and duration as to be detrimental to the life or health of persons of reasonable sensitivity,” or that “disturb[s] or annoy[s] the quiet, comfort or repose of reasonable persons.” The noise control ordinance fails to give “fair notice” to citizens with ascertainable standards of conduct required by the Due Process Clause. Its reach depends on the subjective tolerances, perceptions, and sensibilities of the listener, and it can only be enforced by police officers on a subjective basis. The circuit court’s judgment is reversed and final judgment is entered declaring that the entire ordinance is unconstitutional because its language is impermissibly vague.

081080 Florio v. Clark 04/17/2009 In an appeal by a parent from an order awarding custody of his child to non-parents (an aunt and uncle), the totality of the record is sufficient to support, by clear and convincing evidence, the trial court’s finding that the presumption in favor of placing custody with the natural father was rebutted by special circumstances constituting an extraordinary reason for taking a child away from its parent. After that finding, a clear preponderance of the evidence supports the conclusion that the child’s best interests would be served by the disposition made by the trial court and affirmed by the Court of Appeals. The judgment of the Court of Appeals is affirmed.

081131 Smit v. Shippers' Choice 04/17/2009 The Court of Appeals erred in determining that a person who does not receive compensation for conducting a class in a commercial driver training school is not an “instructor” as that term is defined in Code § 46.2-1700. A person is an “instructor” under that provision if he or she is teaching, conducting classes, giving demonstrations, or supervising persons learning to operate or drive a motor vehicle and is acting on behalf of a driver training school for compensation, regardless of the basis for the compensation received. The judgment of the Court of Appeals is reversed and the judgment of the circuit court sustaining the decision of the DMV Commissioner is reinstated.

081173 Rowe v. Commonwealth 04/17/2009 The Court of Appeals did not err in affirming a defendant's conviction for assault and battery of a law enforcement officer under Code § 18.2-57(C) where the evidence was sufficient to establish that his encounter with a police officer from another jurisdiction occurred while the officer was "engaged in the performance of his public duties" within the meaning of the statute. The argument for reversal of this conviction on a lesser included offense theory is rejected because a defendant in a criminal case may not approbate and reprobate by inviting error and then seek reversal of his conviction based upon such invited error. The judgment of the Court of Appeals is affirmed.

081251 Matthews v. Matthews 04/17/2009 In resolving appeals in a probate dispute, the circuit court did not err in failing to dismiss a probate appeal when the party appealing the probate order of the clerk had also submitted a different will for probate. The judgment is affirmed and final judgment is entered for the decedent's widow.

081258 Payne v. Commonwealth 04/17/2009 A defendant’s convictions and punishments arising out of her killing a person while driving in an intoxicated condition and following her commission of a felony "hit and run," do not violate the constitutional guarantee of protection against multiple punishments for the same offense. Aggravated involuntary manslaughter, Code § 18.2-36.1, and felony homicide, Code § 18.2-33, are different offenses under Virginia law because each offense requires proof of an element that the other does not, and the General Assembly intended for each to be punished separately. Issues concerning an alleged failure to disclose exculpatory evidence, admission of expert testimony concerning the ability of alcoholics to conceal certain effects of alcohol, and sufficiency of the evidence are also discussed. The judgment of the Court of Appeals upholding the defendant's convictions is affirmed.

081310 James v. Peyton 04/17/2009 In a personal injury action, the circuit court erred in concluding that a plaintiff's amended pleading – as actually worded in the caption and body of the averments – properly named an administrator of the estate of a deceased defendant, rather than the estate itself, as a party defendant. On these consolidated interlocutory appeals, the judgment of the trial court is reversed and final judgment is entered against the plaintiff.

081331 Seals v. Erie Insurance 04/17/2009 In a declaratory judgment proceeding, the circuit court erred in determining that a customer injured while test driving a motor vehicle was not entitled to underinsured motorist coverage under the automobile dealership’s garage keeper’s insurance policy. Under the applicable terms of the policy, he was operating a motor vehicle with respect to which the bodily injury or property damage liability coverage of the policy applied, making uninsured/underinsured coverage applicable. The judgment of the circuit court is reversed and final judgment is entered in favor of the customer.

081344 City of Lynchburg v. English Construction Co. 04/17/2009 In a dispute involving the power of a locality to impose business license taxes on the gross receipts of a contractor, whose principal place of business is in that locality, relating to business done outside of that locality, the circuit court correctly applied the "last antecedent" rule of statutory construction in harmonizing Code § 58.1-3703.1(A)(3)(a)(1) with other statutes in Title 58.1 of the Code of Virginia concerning business license taxes. The circuit court's judgments, concluding that a locality has no authority to levy a tax on gross receipts from services performed by a contractor in other localities in the Commonwealth in which the contractor has a definite place of business, despite not being taxed by such other localities, are affirmed, along with the required abatement of the challenged assessments and refund of the disputed taxes.

081392 Robert M. Seh Company v. O'Donnell 04/17/2009 In the trial of a suit on contract, fraud and consumer protection causes of action, the trial court abused its discretion during the course of the trial by allowing a juror to remain on the jury panel when he expressed concern about his ability to impartially decide the case based on communications the juror had long prior to the trial with a third party. The judgment of the trial court is reversed and the matter is remanded to the circuit court for a new trial.

081403 Martin Bros. Contr. v. Virginia Military Institute 04/17/2009 In litigation seeking damages for delay under the terms of a public construction contract, provisions in the agreement purporting to limit a contractor's recovery of damages for construction delay caused by the public body are rendered void by Code § 2.2-4335, and are not exempted under the Code as permissible liquidated damages provisions. The judgment is reversed and the case is remanded.

081433 Appalachian Voices v. State Corporation Commission 04/17/2009 In its decision on an electric utility's application for a rate adjustment with regard to a carbon capture compatible, clean-coal powered electric generation facility, with a cost exceeding $1.6 billion, to be located in a coalfield region of the Commonwealth, the State Corporation Commission did not err in approving the application over objections from interested groups contending that the applicable statutory provisions violate the Commerce Clause of the United States Constitution, and did not err in refusing to make an independent analysis of whether a coal-fueled generating facility that utilizes Virginia coal and is located in such a region “is in the public interest” in light of the existing statutes enacted by the General Assembly. The order of the State Corporation Commission is affirmed.

081536 Elliott v. Commonwealth 04/17/2009 In prosecutions pursuant to the provisions of Code § 16.1-253.2 for separate violations of a protective order issued under Code § 16.1-279.1 on two occasions, the evidence was sufficient to support the judgment finding that a restrained party violated the provisions of the protective order at issue on one occasion by making a telephonic contact, but not sufficient to support conviction for conduct on another occasion in which the restrained party placed himself in a visible position one block from the residence of the party protected by the order. The judgment of the Court of Appeals upholding the convictions is affirmed in part and reversed in part.

081935 Barrett v. Virginia State Bar (ORDER) 04/17/2009 In Virginia State Bar disciplinary proceedings, there was no error in an order revoking the license to practice law of an attorney who, while under a prior suspension of his license to practice law, represented himself in domestic relations proceedings during which he asserted persistently and repeatedly before the circuit court and the Court of Appeals of Virginia that he is no longer required to support his children. In light of the facts and applicable law, his position was completely frivolous and in violation of Rule 3.1 of the Virginia Rules of Professional Conduct. A lawyer whose license is suspended is still an active member of the bar and, although not in good standing, is subject to the Rules, and there is no merit to the lawyer's constitutional challenge to the application of the Rules in this case. The order revoking his license to practice law in this Commonwealth is affirmed.

080217 Seguin v. Northrup Grumman Systems Corp. 02/27/2009 In a defamation action against the plaintiff's employer relating to a work performance evaluation, the circuit court’s order compelling arbitration pursuant to the provisions of the Virginia Uniform Arbitration Act was not appealable under Code § 8.01-581.016. Additionally, the order was not a final judgment order contemplated by Code § 8.01-670(A)(3) since the circuit court retains jurisdiction under Code § 8.01-581.010 to vacate an arbitration award and under Code § 8.01-581.011 to modify or correct an arbitration award. Thus the order was not appealable and there is no jurisdiction to review the merits of plaintiff's contentions regarding the existence or enforceability of the arbitration agreement in question. The appeal is dismissed without prejudice.

080313 Remora Investments v. Orr 02/27/2009 In considering a suit brought by a member of a limited liability company as a direct action against the manager for alleged breach of a fiduciary duty, nothing in the statutes relating to limited liability companies provides for fiduciary duties between members or between a member and a manager. Analogous case law relating to corporations does not impose such duties, and the operating agreement of the present limited liability company does not create such duties. Accordingly, the trial court did not err in dismissing the member's complaint because it did not have standing to bring a direct action instead of a derivative proceeding on behalf of the entity.

080445 Thompson v. Commonwealth 02/27/2009 In a prosecution under Code § 18.2-308.2(A) for being a convicted felon carrying about his person a concealed weapon in the form of a "balisong" or “butterfly knife,” the evidence was sufficient to prove that such knife was a weapon. However, the evidence was insufficient establish that such knife was “of like kind” to any of those weapons enumerated in Code § 18.2-308(A). The judgment of the Court of Appeals is reversed, defendant's conviction is vacated, and the indictment is dismissed.

080515 Luria v. Board of Dir. of Westbriar 02/27/2009 In a multi-count suit by a condominium unit owners' association against developers of the complex, which included allegations of breach of fiduciary duty to the association as a creditor, and improper transfers and distributions by the entities involved in developing the complex, it is assumed – without so deciding – that a managing member of a limited liability company may owe a fiduciary duty to a third party creditor under certain circumstances. However, in this case the evidence presented was insufficient to establish that the plaintiff association was a creditor until the defendants had actual notice of facts supporting a specific potential statutory warranty claim under Code § 55-79.79. Because all of the transfers and distributions made in this case occurred before such notice, the circuit court erred in finding breach of fiduciary duty, and its judgment on these counts is reversed.

080651 Smith Mountain Bldg. Supply v. Windstar Properties 02/27/2009 In mechanic's lien proceedings, inclusion of charges in the memoranda of lien for materials supplied outside the 150-day limitation period prescribed by in Code § 43-4 rendered the mechanic's liens invalid and unenforceable. The trial court did not err in so ruling without allowing the lien claimant to present evidence that its inclusion of such charges was an "inaccuracy" within the meaning of Code § 43-15, and the judgments are affirmed.

080698 Burwell's Bay Improvement Ass'n v. Scott 02/27/2009 In a suit involving riparian rights to construct piers extending from adjoining parcels of land into the waters of the James River, a 1925 order of the circuit court under a statute granting to a specified person the “right and privilege” to erect a wharf was, as a matter of law, insufficient to convey riparian rights to the recipient’s successors in interest. The judgment of the circuit court finding that the 1925 order gave successors such riparian rights is reversed and the case is remanded for consideration of issues of adverse possession and prescription.

080794 Rudolph v. Commonwealth (ORDER) 02/27/2009 In a drug prosecution, the trial court should have granted the defense motion to suppress marijuana evidence discovered as a result of an illegal stop of the vehicle in which defendant was found. The fact that the stop occurred in a “high crime area” is a relevant factor but, standing alone, was insufficient to supply a particularized and objective basis for suspecting criminal activity. Viewing the totality of the circumstances objectively, even though it was 8 p.m. and there had been robberies and burglaries in the area, the circumstances did not supply a particularized and objective basis to suspect that the defendant's observed behavior was a precursor to criminal activity. Therefore, the stop was in violation of his rights under the Fourth Amendment and the marijuana evidence discovered should have been suppressed. The judgment of the Court of Appeals is reversed, defendant's conviction is vacated, and the matter is remanded with directions.

080852 Murphy v. Commonwealth 02/27/2009 Code § 18.2-262, which authorizes compelled testimony from certain witnesses and in return makes specific provision for immunity applicable to those witnesses, is fully coextensive with constitutional protections for a witness whose compelled testimony tends to incriminate him. The immunity protections of Code § 18.2-262 apply only to witnesses whose testimony has been compelled, and hence the judgment of the Court of Appeals upholding the conviction of a defendant in a prosecution for possession of marijuana with the intent to distribute, after he testified about the same transaction in a case against another defendant, is affirmed.

080906 Giles v. Commonwealth 02/27/2009 In a burglary prosecution under Code § 18.2-89, the Commonwealth was not required to prove that the structure alleged to be a "dwelling house" was inhabited at regular intervals. Rather, the Commonwealth must provide sufficient evidence that the structure is used as a habitation to satisfy the statute. Evidence of occasional stays at the house, considered together with evidence of current utility services, furnishings, food and other supplies, was sufficient indicia of habitation and actual use of the structure for it to be deemed a dwelling house. Thus the court of appeals did not err in affirming the circuit court's ruling that the structure in this case satisfied the "dwelling house" requirement of the statute.

080919 Cooper v. Commonwealth 02/27/2009 In an appeal from a conviction for possession of cocaine with intent to distribute in violation of Code § 18.2-248(C), the Court of Appeals erred in ruling that a proposed alibi defense instruction was not required, in circumstances where evidence was presented that the accused was elsewhere than at the scene of the crime at the exact time or for the entire period during which the crime was or could have been committed. Since the wording of the proffered instruction had been approved in prior case law, the instruction should have been granted. The judgment of the Court of Appeals is reversed, the conviction is vacated, and the case is remanded for a new trial with the jury instructed on alibi, provided the evidence remains substantially the same, the instruction is in proper form, and the defendant requests it.

080946 Comcast v. Board of Supervisors 02/27/2009 In a dispute between a county and a cable television distribution company concerning classification of certain personal property used in the cable television business as taxable tangible personal property pursuant to Code § 58.1-1101(A)(2a), the circuit court's order classifying the contested property as taxable “machines” was not a final order. The court had bifurcated proceedings to decide the classification and valuation issues, and was – at the time the present appeal was filed – awaiting briefs from the parties on a motion to compel relating to valuation of the property. There was more to be done in the case than to superintend ministerially the execution of the classification order appealed. Nor is this an interlocutory order appealable under Code § 8.01-670(A)(1). The appeal is dismissed as improvidently granted.

080987 State of Maine v. Adams 02/27/2009 In an action to quiet title to a "broadside" copy of the Declaration of Independence printed in July 1776, the circuit court did not err in holding that a Virginia resident who purchased this document from a third party had superior title than that claimed by the State of Maine, which contended that the document was a public record owned by the town of Wiscasset, Maine. The judgment is affirmed and final judgment is entered declaring that the plaintiff has good title to the print.

081000 Hale v. Board of Zoning Appeals of Blacksburg 02/27/2009 (Revised 02/27/2009) In considering whether developers obtained a vested right to a commercial use of their property under Code § 15.2-2307 as a result of proffers they made to obtain approval of a rezoning application, the circuit court erred in affirming a board of zoning appeals' ruling that the developers had acquired such a right and were therefore not required under a subsequent zoning ordinance amendment to obtain a special use permit for a proposed structure with more than 80,000 square feet of retail floor space. The proffers also did not prohibit enforcement of the subsequent zoning ordinance amendment under Code § 15.2-2298. The judgment is reversed, the determination of the zoning administrator that a special use permit is required for the proposed structure is reinstated, and final judgment is entered.

081038 Johnston Memorial Hospital v. Bazemore 02/27/2009 In this wrongful death action, the sole issue is whether a plaintiff claiming to be the administratrix of a decedent’s estate, but who filed the action prior to qualifying as such, is entitled to a nonsuit as a matter of right under Code § 8.01-380. Because the plaintiff was not a legal entity at the time she filed the action and therefore lacked standing to do so, the action is a nullity. Accordingly, no valid action was pending that could be nonsuited. The circuit court's judgment granting a nonsuit and denying defendants’ motions to abate is reversed.

081064 Kitt v. Crosby 02/27/2009 In an ejectment action in which the defendant sought to preclude jury consideration of the issue of ownership under the rule of preference adopted in prior case law, the trial court did not err in submitting the issue of ownership of the disputed property to the jury, did not err in allowing certain testimony by a surveyor, and did not err in disqualifying another surveyor as an expert under the "side switching" disqualification doctrine. The judgment is affirmed.

081065 Mwangi v. Commonwealth 02/27/2009 In a prosecution on charges of driving under the influence in violation of Code § 18.2-266, third offense, leading to a sentence under Code § 18.2-270(C)(1), the Court of Appeals erred in affirming the conviction where the Commonwealth's proof of recidivism at trial relied on a purported order from a general district court which was never endorsed by a judge, which did not prove the prior conviction that is an element of the felony offense. The judgment is reversed, the trial court conviction is vacated, and the case is remanded for a new trial on the lesser-included misdemeanor charge if the Commonwealth be so advised.

081100 Parfitt v. Parfitt 02/27/2009 The trial court erred in dismissing a complaint filed by the administrator of an estate against the decedent’s son, based on an erroneous finding that a confidential relationship did not exist with respect to transactions involving a joint bank account. The trial court also erred in applying evidentiary burdens regarding proof of undue influence and corroboration necessary under the dead man’s statute. The judgment is reversed and the case is remanded for a new trial consistent with this opinion.

081122 Lotz v. Commonwealth 02/27/2009 In a periodic review proceeding held pursuant to Code § 37.2-910, concerning continuation of secure inpatient treatment under the Civil Commitment of Sexually Violent Predators Act, there was sufficient evidence to support the trial court's determination that the respondent continued to be a sexually violent predator, and to support an order that he remain in secure inpatient treatment as opposed to being placed on a conditional release status. The Commonwealth's report prepared pursuant to Code § 37.2-910 was admitted into evidence, and fell within the definition of judicial records, creating a rebuttable presumption of public access. Because no evidence was presented to rebut this presumption, the circuit court also did not err in unsealing the evaluations contained in the report. The judgment of the circuit court is affirmed.

081151 Greene v. Commonwealth 02/27/2009 Under the rule of strict construction of penal statutes, because non-compliance with a subpoena issued by the Virginia Department of Charitable Gaming is not identified as a violation of Article 1.1:1 of the Charitable Gaming Statutes, Code §§ 18.2-340.15 through 340.37, the defendant could not be guilty of a Class 1 misdemeanor for failure to comply with a subpoena issued by the Department pursuant to Code § 18.2-340.37. The judgment of the Court of Appeals is reversed, the conviction is vacated, and the indictment is dismissed.

081240 Helton v. Phillip A. Glick Plumbing 02/27/2009 In a suit to collect amounts due to a plumbing company under invoices for work performed for a homeowner, the circuit court erred in failing to find an accord and satisfaction by use of an instrument within the intendment of Code § 8.3A-311, where the customer delivered a check marked "Payment in Full" which was deposited by the company after that notation was crossed out and a remaining amount due was written on the face of the check. The judgment of the circuit court is reversed and final judgment is entered in favor of the homeowner.

072306 Helms v. Manspile 01/16/2009 In a real property action, the trial court did not err in ruling that any easement the plaintiffs' may have had over land owned by the defendants was abandoned, but erred in finding that the defendants had not established a claim to ownership of a disputed strip of land by adverse possession. The defendants' possession of the disputed parcel was actual, adverse to the plaintiffs, and exclusive, and such use was open and notorious. The use was continuous in excess of the statutory period of 15 years, and was asserted as a claim of right to the property. The judgment is affirmed in part, reversed in part, and the case is remanded.

072354 Beeren & Barry Inv. v. AHC, Inc. 01/16/2009 In a declaratory judgment action in the circuit court in which the parties sought to quiet title to certain property, the trial court erred in granting summary judgment upon a finding that an option was a restrictive covenant that ran with the land. In light of its provisions permitting the option to be exercised only upon events personal to the holders, the option was merely personal in nature and is not binding on a foreclosure purchaser or its successors. The judgment is reversed and final judgment is entered.

072365 Landmark HHH, LLC v. Park 01/16/2009 In a commercial lease dispute, the circuit court correctly determined that the landlord was liable in contract damages for losses sustained by the tenant when a recently replaced roof leaked during a rainstorm, inundating the leased premises and causing substantial damage to the tenant’s inventory. The court also correctly found that lease provisions requiring the tenant to maintain hazard insurance and hold the landlord harmless for any insured losses did not bar the tenant from seeking damages from the landlord. The circuit court's judgment is affirmed.

072412 Commonwealth v. Wynn 01/16/2009 In proceedings under the Civil Commitment of Sexually Violent Predators Act, the circuit court did not err by refusing to admit hearsay testimony concerning unadjudicated allegations of sexual misconduct considered by an expert mental health witness in forming an opinion, or by admitting only a few pages of the expert witness’ written report. The judgment is affirmed.

072418 DurretteBradshaw, P.C. v. MRC Consulting, L.C. 01/16/2009 The trial court erred in refusing to sustain a demurrer to a complaint purporting to state a cause of action against a law firm for tortious interference with a contractual relationship, where the complaint alleged that the defendant induced the breach of one agreement (to which plaintiff was not a party), causing damage under a separate contract (to which the plaintiff was a party). Because the complaint did not allege that defendant intended to affect the plaintiff's contract, or that it acted for the purpose of interfering with that contract, plaintiff did not sufficiently state a cause of action for tortious interference with that contract. The judgment of the circuit court is reversed and final judgment is entered in favor of the defendant.

072501 Sunrise Continuing Care v. Wright 01/16/2009 (Revised 01/23/2009) In a suit arising from alleged breach of a continuing care services contract in which claims for rescission and fraud were dismissed, the plaintiffs presented no evidence of compensatory damages in support of their remaining count for breach of contract and thus failed to establish a prima facie claim. The trial court erred in denying the defendant's motion to strike the breach of contract claim and in entering final judgment in favor of the plaintiffs. The judgment of the trial court is reversed and final judgment is entered for the defendant.

072504 Portillo v. Nationwide Mutual Fire Ins. Co. 01/16/2009 In a declaratory judgment action, the trial court did not err in concluding that an applicant for a motor vehicle insurance policy had made material misrepresentations concerning the number of persons of driving age living in his household. Such misrepresentations were material because they would have caused the insurer to reject the risk or accept it only at a higher premium rate, and the policy was therefore void. The judgment is affirmed.

072571 Martin v. Duncan 01/16/2009 In a personal injury case, the trial court erred by imposing $540 in jury costs upon a plaintiff who took a first nonsuit, as a matter of right, during the trial. Because the imposition of financial costs not authorized in Code § 8.01-380(C) places a limitation on the absolute right of a plaintiff to take a first nonsuit, the trial court could not assess jury costs upon a plaintiff taking such a nonsuit, and a local court rule could not serve as authority for imposing such costs. That portion of the judgment is reversed.

080008 Centra Health, Inc. v. Mullins 01/16/2009 In a medical malpractice action, the circuit court did not err in refusing to require the administrators of a decedent’s estate to elect between alternative claims for wrongful death and a survival action for personal injuries to the decedent, both of which allegedly arose from the same acts of medical negligence. Election between these remedies was required only at a time when the record sufficiently established that the personal injuries and the death arose from the same cause. In this case there was no appropriate time prior to trial at which compelling an election would not have prejudiced plaintiffs and, consequently, unfairly benefited the defendant. Further, the circuit court did not err in denying the defense motion to strike the evidence on the survival claim in subsequently confirming the jury’s verdict in favor of the administrators on that claim, or in rejecting claims that the damage award was improper. The judgment is affirmed.

080126 Northampton Bd. of Zoning v. Eastern Shore Dev. Corp. 01/16/2009 In a certiorari proceeding challenging a ruling of a county board of zoning appeals, the trial court erred in reversing the board's decision. The zoning ordinance unconditionally prohibited new construction of the type proposed by the developer in this case, and the board of zoning appeals correctly so ruled. Although the county board of supervisors might have amended the zoning ordinance to permit the proposed construction after following the proper procedure, it was not at liberty to disregard it. Acts of a local governing body that are in conflict with its own ordinances exceed its authority and are void and of no effect. The judgment appealed is reversed and final judgment is entered affirming the decision of the board of zoning appeals.

080157 Hyland v. Raytheon Technical Servs. 01/16/2009 In a defamation action on remand from a prior appeal, the circuit court erred in granting summary judgment in favor of the defendants after considering isolated factual segments of two allegedly defamatory statements. The plaintiff had not conceded the expressed and implied import of the statements, and she is entitled to a jury trial on the two statements alleged. The judgment is reversed and the action is remanded for trial.

080215 Viking Enterprise, Inc. v. County of Chesterfield 01/16/2009 A construction company building a fire station for a county under a contract putatively covered by the Virginia Public Procurement Act, Code §§ 2.2-4300 through –4377, filed an appeal within the six-month period required by Code § 2.2-4363(E) from the county’s disallowance of a monetary claim arising out of the contract but failed to comply with the provisions of Code § 15.2-1246 requiring that written notice of the appeal be served on the county and that a bond be executed. Because the statutory provisions are not in conflict and can be read together, the circuit court did not err in dismissing the construction company's complaint for failure to fulfill the requirements of Code § 15.2-1246. The judgment is affirmed.

080286 Virginia Highlands Airport Authority v. Singleton Auto Parts 01/16/2009 (Revised 01/23/2009) In a proceeding commenced by an airport authority seeking condemnation of an avigation easement and to condemn rights to airspace over property owned by the defendant, the easement constituted a taking only to the extent that it created a right in the authority to remove grandfathered obstructions situated on the property which penetrated an existing approach zone for incoming and outgoing aircraft. The trial court erred by permitting the landowner to present evidence of damages from a taking of rights in airspace it did not possess after the prior promulgation of an ordinance, and further erred by permitting it to present evidence of speculative damages from future lower flights over the property and increased noise, vibrations, fumes, and traffic. The judgment entered upon a jury’s verdict is reversed and the case is remanded for a new trial on damages resulting from the limited taking.

080374 Jones v. Commonwealth 01/16/2009 In a prosecution for possession of a firearm by a convicted felon in violation of Code § 18.2-308.2, a positive alert from a narcotics detection dog was sufficiently reliable to establish probable cause to conduct a search of a vehicle. Thus the trial court did not abuse its discretion in finding the narcotics detection dog’s training and experience sufficient to support probable cause and therefore denying the defendant's motion to suppress evidence seized. The evidence was also sufficient to establish that an alleged firearm was designed, made, and intended to expel a projectile by means of an explosion, and the conviction is affirmed.

080383 Howard v. Commonwealth 01/16/2009 The evidence amply supported the defendant's conviction in circuit court on a summons charging him with disorderly conduct in violation of a city code provision based upon his alleged disruption of a meeting of the city council. The judgment of the Court of Appeals, which upheld the conviction, is affirmed.

080425 Hancock-Underwood v. Knight 01/16/2009 In litigation arising from a vehicular accident, the trial court did not err in refusing to instruct the jury on the “unavoidable accident” and “sudden emergency” doctrines. Because an "unavoidable accident" instruction merely restates the law of negligence, overemphasizes the defendant’s case, and is apt to confuse and mislead a jury, it is error to grant an unavoidable accident instruction, and thus the trial court in this case did not err in refusing such an instruction. In addition, the evidence did not support the proposed "sudden emergency" instruction as tendered. The judgment is affirmed.

080440 Finney v. Commonwealth 01/16/2009 In a prosecution for breaking and entering in violation of Code § 18.2-91, the circumstantial evidence did not justify the inference that the breaking and entering of a shed door and the larceny of tools in the shed were committed at the same time and by the same person. While the evidence creates a strong suspicion of defendant’s guilt, a reasonable hypothesis exists that another individual may have committed the breaking and that the defendant subsequently entered the shed without the necessity of a breaking to do so. Accordingly, the Commonwealth did not establish beyond a reasonable doubt that defendant was required to use any physical force to enter the shed and, thus, committed a breaking as required by Code § 18.2-91. The judgment of the circuit court is reversed and the indictment for statutory burglary is dismissed.

080502 Jackson v. Qureshi 01/16/2009 In a medical wrongful death action, because the evidence clearly demonstrated that a proffered medical expert witness met the statutory "knowledge" and "active clinical practice" requirements under Code § 8.01-581.20 to testify with regard to the medical procedure at issue, the circuit court’s judgment dismissing the case with prejudice after finding that the expert could not testify is reversed and the case is remanded for further proceedings.

080622 McMillan v. Commonwealth 01/16/2009 In a prosecution for, inter alia, possession with intent to distribute illegal drugs and possession of a firearm after being convicted of a felony, the evidence was sufficient to prove beyond a reasonable doubt that the defendant possessed cocaine with the intent to distribute in violation of Code § 18.2-248. However, the circuit court erred by permitting the Commonwealth to introduce in evidence an exhibit that purported to establish that the defendant had a prior felony conviction. The portion of the judgment of the Court of Appeals that affirmed the defendant's conviction for possession of a firearm is reversed and that conviction is vacated, the portion of the judgment approving the defendant's other convictions is affirmed, and the case is remanded.

071167 Mayfield-Brown v. Sayegh (ORDER) 10/31/2008 In consolidated appeals, the circuit court erred in holding that Eastern Virginia Medical School Academic Physicians and Surgeons Health Services Foundation and/or its employees and agents are entitled to charitable immunity. This entity has a stated purpose and organization very similar to that of the University of Virginia Health Services Foundation discussed in University of Va. Health Servs. Found. v. Morris, 275 Va. 319, 657 S.E.2d 512 (2008); thus, it and/or its employees are not entitled to charitable immunity. The judgments of the trial court granting the special pleas of charitable immunity in each case are reversed, and the cases are remanded for further proceedings.

071654 Commonwealth v. Garrett 10/31/2008 In a proceeding under the Sexually Violent Predators Act the circuit court erred in ruling that respondent had acquired a vested right under the version of Code § 16.1-306 in effect at the time of his last juvenile court proceeding in December 1985 to have that court's records pertaining to him destroyed twenty years after that date. The circuit court also correctly ruled that the Commonwealth’s expert witness was precluded from expressing an opinion based, in part, upon certain criminal conduct of which respondent had been accused as a minor but for which he was not ultimately prosecuted. The orders of the circuit court are affirmed in part and reversed in part and the case is remanded for further proceedings, if the Commonwealth be so advised.

071894 Fruiterman v. Granata 10/31/2008 (Revised 04/06/2009) In separate wrongful birth cases filed by the mother and father of twin daughters afflicted with Down syndrome, the circuit court judgment sustaining a jury verdict in favor of the mother is reversed because the evidence was insufficient as a matter of law to prove the element of proximate causation. In the father’s case, the circuit court granted a motion to strike the evidence because the father failed to prove the existence of a physician-patient relationship, and that judgment is affirmed.

072041 Norfolk and Portsmouth Railroad v. Wilson 10/31/2008 In the trial of a personal injury suit brought under the Federal Employers’ Liability Act there was no error in challenged evidentiary rulings concerning expert qualification to testify about industry safety standards and dangerous conditions located other than where the plaintiff was injured, but the trial court erred in allowing into evidence proof of safety statutes from other jurisdictions which did not apply in this case and were prejudicial. Inapplicable statutes are inadmissible as proof of the standard of reasonable conduct in a negligence case. The judgment is affirmed in part, reversed in part, and the case is remanded.

072042 Virginia Baptist Homes v. Botetourt County 10/31/2008 In a challenge to local property tax assessments, the trial court erred in finding a home for aged persons operated by a religious group not to be tax exempt. Code § 58.1-3650.33(B) requires that property involved be used “exclusively for religious or benevolent purposes” and the record shows that this standard is met. The judgment is reversed and final judgment is entered for the property owners.

072174 Turman v. Commonwealth 10/31/2008 In a prosecution leading to convictions for rape and sexual battery, the trial judge erred by instructing the jury that it could consider defendant's purported flight from the location of the alleged crimes, when the record was devoid of more than a scintilla of evidence that left the victim's apartment after the sexual acts had occurred because he sought to avoid detection, apprehension, arrest, or criminal prosecution. Since the dispositive issue at trial was whether the sexual conduct between the victim and defendant was consensual, and the factual testimony was in sharp conflict, it cannot be said that the error was harmless. The judgment of the Court of Appeals upholding the convictions is reversed and the case is remanded for further proceedings if the Commonwealth be so advised.

072175 Britt v. Commonwealth 10/31/2008 In a prosecution for grand larceny, the evidence was insufficient to establish that the value of the goods taken was at least $200 where the owner of a burglarized store presented a tabulation at trial of the total value of the items recovered outside the store along with items found on the floor of the store itself. Since there was no evidence showing the quantity or value of those items retrieved from the floor, the total amount of $410.59 was not competent evidence of the value of the items removed from the store, and thus the Commonwealth failed to prove that the value of the items taken was $200 or more. The judgment of the Court of Appeals is reversed and the judgment of conviction for grand larceny is vacated. The case is remanded.

072193 Sasson v. Shenhar 10/31/2008 (Revised 11/07/2008) In appeals from circuit court judgments in an international child custody dispute and a contempt order arising from a petition for rule to show cause in that case, the Court of Appeals did not abuse its discretion in applying the fugitive disentitlement doctrine to hold that the child's father had forfeited his right to appeal by willfully becoming a fugitive. Dismissing his appeals furthers the goals of the doctrine by discouraging flight from justice, encouraging compliance with court orders, and promoting the efficient, dignified operation of the courts. The judgment of the Court of Appeals dismissing the father's appeals with prejudice is affirmed.

072449 Ortiz v. Commonwealth 10/31/2008 In an appeal from a conviction for rape of a female child under the age of thirteen in violation of Code § 18.2-61, issues including denial of a motion to appoint an expert witness, admissibility of other crimes or bad acts evidence, competency of the child to testify, amendment of the indictment and denial of defendant's motion for continuance following such amendment, and application of Virginia's Rape Shield statute and the "motive to fabricate" exception thereto are addressed. No error is found and the judgment of the Court of Appeals upholding the defendant's conviction is affirmed.

072539 Vincent v. Commonwealth 10/31/2008 In a prosecution for breaking and entering with the intent to commit larceny in violation of Code § 18.2-91, the evidence and available inferences were insufficient to prove beyond a reasonable doubt that the defendant had the intent to commit larceny when he broke into and entered a retail department store. The judgment of the Court of Appeals upholding the conviction is reversed and the indictment is dismissed.

080030 Hasan v. Commonwealth 10/31/2008 In a prosecution for carrying a concealed weapon, second or subsequent offense, and possession of a firearm by a convicted felon, the Court of Appeals erred in affirming defendant's conviction upon a conditional guilty plea, entered after denial of his motion to suppress statements made during a traffic stop in the absence of Miranda warnings and evidence resulting therefrom. A reasonable person in defendant's position would have understood that his freedom was being restricted to a degree associated with a formal arrest, and because he was in custody when questioned but had not been given Miranda warnings, the Court of Appeals’ affirmance of the trial court’s denial of his motion to suppress was erroneous. The judgment of the Court of Appeals is reversed and the case is remanded.

080130 Brickhouse v. Commonwealth 10/31/2008 The Court of Appeals erred in affirming defendant's conviction for possession with the intent to distribute cocaine as a principal in the second degree, where there was no evidence that she procured, encouraged, countenanced or approved the criminal act. There was no evidence of defendant, who lived at an apartment allegedly used for drug distribution along with two family members, having consented to the felonious purpose, contributing to its execution, committing an overt act knowingly in furtherance of the crime, or sharing in the criminal intent of the principal committing the crime. The judgment of the Court of Appeals affirming her conviction is reversed, the conviction is vacated, and the indictment is dismissed.

080166 White v. Commonwealth 10/31/2008 In a criminal case arising from a drug possession charge that was deferred by the trial court after a guilty plea, under Virginia’s first-offender statute, Code § 18.2-251, the Court of Appeals erred when it affirmed the circuit court’s judgment revoking the first-offender status of the defendant and convicting her of the possession of cocaine, the underlying offense with which she was charged. The judgment is reversed and final judgment is entered for the defendant.

080178 Milazzo v. Commonwealth 10/31/2008 The evidence was sufficient to prove that the defendant was guilty of felony hit and run in violation of Code § 46.2-894 based on his use of a car to ram two police vehicles that blocked his further movement after officers pursuing him for many traffic violations. The term "accident" as used in the Code § 46.2-894 is not limited to unintentional incidents; the purpose of the statute is to protect persons injured as the result of, and to ensure the assessment of liability arising out of, an unfortunate vehicular event, and it makes no difference whether the collision was intentional or unintentional. The judgment of the Court of Appeals upholding the defendant's conviction is affirmed.

080199 Moore v. Commonwealth 10/31/2008 (Revised 04/06/2009) In a prosecution on drug possession and distribution charges, along with a related firearms possession offense, the trial court and the Court of Appeals sitting en banc erred in rejecting a motion to suppress evidence seized from a motorist's car that was stopped based upon an officer's observation that an inspection sticker on the windshield was peeling. Under all the circumstances of this case, the officer's suspicion that the driver was violating the motor vehicle inspection law was insufficient grounds for stopping the vehicle, and the fruits of the search that followed should have been suppressed. The judgment of the Court of Appeals en banc is reversed, a panel decision of that Court is reinstated, and the case is remanded for further proceedings if the Commonwealth should be so advised.

080222 Sadler v. Commonwealth 10/31/2008 In a prosecution under Code § 18.2-370.1 for taking indecent liberties with a minor with whom the defendant maintained a custodial or supervisory relationship, it was not incumbent upon the Commonwealth to show that defendant was engaged in the activity that gave rise to the custodial or supervisory relationship at the time of the offensive conduct. The judgment of the Court of Appeals upholding defendant's conviction is affirmed.

080339 George v. Commonwealth 10/31/2008 In an embezzlement prosecution under Code § 18.2–111, the Court of Appeals did not err in affirming the convictions of a physician who failed to remit funds withheld from employees to the Virginia Department of Taxation, since those were not funds belonging to the employer but were held in trust for the Commonwealth pursuant to Code § 58.1-474. Although the Court of Appeals erred in holding that the defendant did not raise at trial his claim that there existed a fatal variance between the crimes charged in the indictments and the evidence and jury instructions, no such fatal variance existed and the judgment is affirmed.

080437 Harris v. Commonwealth 10/31/2008 In a prosecution for feloniously operating a motor vehicle while intoxicated in violation of Code § 18.2-266, under the totality of the circumstances an anonymous tip that the defendant was driving while intoxicated lacked sufficient indicia of reliability to justify an investigatory stop of his vehicle. In addition, the officer's observations of the defendant while driving were not sufficient to create a reasonable suspicion of criminal activity. Thus, he was stopped in violation of Fourth Amendment protections, and the circuit court erred in denying his motion to suppress. The judgment of the Court of Appeals affirming the conviction is reversed, the conviction is vacated, and the indictment is dismissed.

080727 Potomac Edison Co. v. State Corporation Commission 10/31/2008 In considering a power company's application under Code § 56-582(B)(i) for an upward adjustment in retail electric rates for Virginia customers to permit recovery of a portion of the costs of acquiring electricity from the competitive wholesale market, the State Corporation Commission did not abuse its discretion in setting a retail rate increase providing for recovery of an amount less than that sought by the power company in its application. The Commission, acting in its legislative capacity, properly interpreted language in its previous order incorporating a memorandum of understanding under which the power company had agreed to an established pricing mechanism that the Commission relied upon in setting such rate. The Commission's order is affirmed.

062388 Jaynes v. Commonwealth 09/12/2008 In a prosecution for violations of Code § 18.2-152.3:1, the unsolicited bulk electronic mail provision of the Virginia Computer Crimes Act, the circuit court had jurisdiction over the person of the defendant, and defendant had standing to raise a First Amendment overbreadth claim as to the statute. Because Code § 18.2-152.3:1 is overbroad on its face, prohibiting the anonymous transmission of all unsolicited bulk e-mails – including those containing political, religious or other protected speech – the judgment of the Court of Appeals upholding the defendant's convictions is reversed and those convictions are vacated. Opinion #062388, Jaynes v. Commonwealth originally issued Feb. 29, 2008 was withdrawn by Order

071395 Board of Zoning Appeals v. Board of Supervisors of Fairfax County 09/12/2008 The circuit court did not err in dismissing a declaratory judgment action filed by a board of zoning appeals (BZA) against the board of supervisors of the same county based on the court’s conclusion that the BZA does not have the authority to institute litigation on its own behalf. Since a BZA has only those powers expressly granted to it and the Virginia Code contains no express grant of authority allowing a BZA to institute litigation on its own behalf, the judgment of the circuit court is affirmed.

071411 West Creek Associates v. County of Goochland 09/12/2008 In an appeal involving applications for relief from the allegedly erroneous assessment of real property taxes on multiple parcels of real estate situated in a business park, the circuit court erred by holding that, in order to show manifest error, a taxpayer must prove what information the taxing authority considered and how it arrived at the challenged assessments. However, the circuit court correctly ruled that the taxpayers failed to present credible evidence of fair market value with regard to certain parcels. The judgment is affirmed in part, reversed in part, and the case is remanded for further proceedings.

071421 Travelers Property Casualty Co. v. Ely 09/12/2008 In consolidated appeals from the Court of Appeals of Virginia, certain policies of workers' compensation and employers' liability insurance were not "nonrenewed by the insurer" within the intendment of Code § 65.2-804(B), where the insureds failed to timely pay insurance premiums necessary to renew such policies. As a result, the insurer was not required to provide notice to the Virginia Workers' Compensation Commission before the policies could be terminated. The judgments of the Court of Appeals are reversed and final judgments are entered in favor of the insurer.

071424 Board of Sup. Loudoun County v. Town of Purcellville 09/12/2008 (Revised 04/06/2009) In consolidated appeals from judgments of a circuit court in disputes concerning an annexation agreement and a joint comprehensive plan entered into by a town and county, as well as appeals from determinations of both the county's and town's respective boards of zoning appeals, issues are addressed concerning authority over new development in the area covered by the plan, including whether a declaratory judgment action brought by the town was properly before the court, whether the matters in controversy were moot, whether a certain proposed development is a feature shown on the plan, and whether approval pursuant to Code § 15.2-2232 was required for such development. The judgments in these appeals are affirmed in part and reversed in part, and the matters are remanded for further proceedings.

071608 Pocahontas Mining Liability Co. v. CNX Gas Co. 09/12/2008 (Revised 04/06/2009) In a declaratory judgment proceeding involving provisions of a lease granting the lessee exclusive rights in coalseam gas on the lessor’s property, the trial court erred in finding that the lease also granted the lessee the exclusive right to construct and maintain pipelines and structures to transport any gas over the lessor’s property. The disputed lease provisions protect the lessee's rights to take such actions as are necessary and convenient to conduct its activities, but do not permit it to prevent other uses of the land that do not affect its exercise of its stated lease rights. The circuit court’s order declaring the parties’ rights under the lease is reversed and the case is remanded for such further action as may be required.

071653 Nextel WIP Lease Corp. v. Saunders 09/12/2008 In a declaratory judgment proceeding, the circuit court correctly held that the lease of a parcel of land atop a mountain permits the erection of one telecommunications tower rather than two such towers. Although ambiguities in a lease agreement must be strictly construed against the lessor, parol evidence was properly considered by the trial court and established that the parties bargained for and agreed to the erection of only a single tower. The judgment is affirmed.

071674 Delta Star, Inc. v. Michael's Carpet World 09/12/2008 In a case governed by the Uniform Commercial Code – Sales, Code §§ 8.2-101 et seq., the trial court erred in failing to apply the UCC's Statute of Frauds, Code § 8.2-201, to declare unenforceable a purported oral contract for the sale of goods. The goods at issue were not specifically manufactured, no confirmatory writing exists, the parties' course of dealing cannot establish the existence of the alleged contract, part performance does not extend to the disputed portions of the alleged contract, and the party sought to be charged did not admit the existence of such contract. The judgment of the trial court is reversed and final judgment is entered in the customer's favor.

071895 Virginia Cellular LLC v. Virginia Dept. of Taxation 09/12/2008 In a case involving the Virginia Telecommunications Companies Minimum Tax, the trial court erred in finding that the tax imposed by Code § 58.1-400.1 is applicable to all telecommunications companies, regardless of whether they are corporations or pass-through entities. The minimum tax imposed upon telecommunications companies pursuant to Code § 58.1-400.1 is inapplicable to noncorporate telecommunications companies. In addition, 23 VAC § 10-120-89 is inconsistent with Code § 58.1-400.1 to the extent that it imposes the minimum tax provided for under that statute upon pass-through entities, and therefore the circuit court erred in upholding its validity. The judgment is reversed and final judgment is entered.

071920 Palace Laundry, Inc. v. Chesterfield County 09/12/2008 Because cleaning and maintaining its rental property does not transform a rental business into a processing business, the circuit court did not err in finding that a linen rental company that cleans only its own linens is not a processing business for personal property tax purposes under Code § 58.1-3507(A). The judgment of the circuit court is affirmed.

071964 Lynchburg Division of Social Services v. Cook 09/12/2008 The Court of Appeals erred in affirming a circuit court judgment awarding custody of a child who was subject to a foster care plan to her grandparents because the findings required by the foster care and general custody provisions in the Code of Virginia for an award of custody to a relative other than the child's prior family were neither made nor stated in the order, and are not subsumed under the "best interests of the child" standard. The Court of Appeals also erred in rejecting the grandparents' claim for attorney's fees on appeal under Code § 16.1-278.19. The judgment is reversed and the case is remanded with instructions.

071978 Perreault v. The Free Lance-Star 09/12/2008 In wrongful death litigations under Code § 8.01-50 in which settlement agreements were achieved through mediation, the circuit court did not err in requiring the settling parties to file written petitions reciting the financial terms of the compromise settlements in order to obtain court approval pursuant to Code § 8.01-55. The presumption of public access to court records mandated by Code § 17.1-208 and the provisions of Code § 8.01-581.22 governing confidentiality of mediation proceedings are considered, and the decision of the circuit court denying a request to partially seal the records in these cases by permitting the redaction of the monetary amounts of the compromise settlements in the court records is reviewed. The judgment is affirmed and the case is remanded for filing of unredacted records.

071995 SuperValu, Inc. v. Johnson 09/12/2008 In a suit based upon business decisions by a grocery wholesaler and its subsidiary alleged to have destroyed plaintiff's competing grocery businesses, the circuit court erred in refusing to set aside a multi-million dollar jury verdict in plaintiff's favor on claims of constructive fraud and intentional infliction of emotional distress where the evidence was insufficient as a matter of law to support either claim. Plaintiff failed to present evidence that defendants negligently or innocently misrepresented a present or pre-existing material fact, and the tort of intentional infliction of emotional distress does not encompass conduct intended to cause economic damage to a business or the personal consequences of such conduct. Issues concerning the adequacy and timing of jury instructions are also addressed. The judgment is reversed and final judgment is entered in defendants' favor.

072097 Shaikh v. Johnson 09/12/2008 In an appeal from an order dismissing a petition for a writ of habeas corpus alleging a denial of the right to effective assistance of counsel in a murder trial, the alleged failure of petitioner's trial counsel to make a rejected jury instruction part of the appellate record caused defendant no prejudice in the outcome. Additionally, the contention that trial counsel rendered ineffective assistance by failing to call as a witness a co-defendant who was the immediate perpetrator of the crime for which petitioner was on trial raises a matter of trial strategy which was within the range of reasonable professional assistance to which petitioner was entitled. The claim that the habeas court erred in denying him an evidentiary hearing is also rejected, and the judgment of the circuit court is affirmed.

072247 McMorris v. Commonwealth 09/12/2008 The Court of Appeals erred in affirming the defendant's conviction for robbery as a principal in the second degree. The evidence was insufficient to prove that defendant knowingly committed an overt act in furtherance of the robbery, shared in the criminal intent of the principal committing the robbery, or that the robbery was a natural and probable consequence of the wrongful assault in which defendant participated. The Court of Appeals' judgment upholding the conviction of robbery as a principal in the second degree is reversed, the conviction is vacated, and the indictment against this defendant is dismissed.

072342 Logan v. Commonwealth 09/12/2008 The Court of Appeals erred in holding that the exclusionary rule never applies to evidence submitted in probation revocation proceedings, regardless of the searching officer's conduct or bad faith. The judgment of the Court of Appeals is reversed and the case is remanded for a review of the defendant's challenge to the trial court's determination that the police officer's actions did not constitute bad faith.

062688 Moreau v. Fuller 06/06/2008 (Revised 04/06/2009) The circuit court erred in issuing a writ of mandamus sought by a Commonwealth's Attorney and directing a juvenile and domestic relations district court judge, who had taken a case involving criminal charges under advisement for deferred disposition, to immediately make a final disposition in the case. A Commonwealth's Attorney has standing to seek mandamus or prohibition in such matters but the act of rendering judgment is an inherent power within the discretion of the court and the very essence of adjudication. In this case, the only signed, written order has no terms or conditions and no provision for a specific future disposition, but merely declares the evidence sufficient to convict the defendant and continues the matter to a date certain. Such a disposition was within the discretionary authority of the district court and is therefore not subject to mandamus. The judgment is reversed, the writ is vacated, and the petition is dismissed.

070524 Commonwealth v. Jackson 06/06/2008 In a proceeding pursuant to the Civil Commitment of Sexually Violent Predators Act, Code §§ 37.2-900 et seq., seeking to have an inmate declared a sexually violent predator, the circuit court did not err in finding that the requirements to establish probable cause under Code § 37.2-906 had not been met. The circuit court was entitled to weigh conflicting opinions given by the Commonwealth's witness regarding the inmate's status as a sexually violent predator in determining whether probable cause was established, and evidence in the record, established by cross-examination, impeached the witness' ultimate conclusion that the inmate was a sexually violent predator. Thus, the circuit court’s decision was neither plainly wrong nor without evidence to support it. The judgment is affirmed.

070580 Levisa Coal Co. v. Consolidation Coal Co. 06/06/2008 In a dispute between a mineral estate owner and a competing mining company, the trial court erred in concluding that the competitor had the right to store excess water from its mining operations on other property, and erred in denying injunctive relief. Since the deed did not convey the right to use the mineral estate to support mining operations on other lands, the lease in this case could not confer such a right and the purported authorization to do so was invalid. Issues concerning standing to seek injunctive relief and entitlement to such relief are also addressed. The judgment of the circuit court is reversed and the case is remanded for further proceedings.

070843 Dodge v. Randolph-Macon Woman's College 06/06/2008 In a case pled on the theory of breach of contract, the plaintiffs failed to plead the existence of a clear, definite, and explicit contract between themselves and a Virginia college that required the institution to provide a four-year education for the plaintiffs in an academic environment predominantly for women. The judgment of the circuit court sustaining the college's demurrer and dismissing the case is affirmed.

070933 Miller-Jenkins v. Miller-Jenkins 06/06/2008 (Revised 06/10/2008) In a child custody dispute arising out of the dissolution of a same-sex civil union entered into under Vermont law, because the Court of Appeals’ holding in an earlier appeal is binding under the “law of the case” doctrine with respect to the parties and the issues in the instant case, the merits of the underlying issues presented in this appeal are not reached. For these reasons, the Court of Appeals’ judgment directing a Virginia circuit court to register a custody and visitation order rendered in Vermont upon consideration of the federal Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, and the requirements of full faith and credit, is affirmed.

070988 Moorman v. Blackstock, Inc. 06/06/2008 In an action for specific performance of a purported oral contract for the sale of real property, the circuit court erred in finding that various notes, memoranda, and draft agreements circulated between the parties were sufficient to satisfy the statute of frauds, Code § 11-2. The circuit court also erred in finding that one of the property owners acted as the agent of the sellers and in granting the prospective purchasers specific performance based upon equitable estoppel and part performance of the purported contract. The judgment of the circuit court is reversed and final judgment is entered in favor of the sellers.

071008 Webb v. Smith 06/06/2008 On the particular facts and circumstances of this medical malpractice action, where the defendant doctor failed to perform one of two scheduled procedures, leading plaintiff to undergo a second surgical procedure, the plaintiff was not required to present expert testimony on the issue of causation. The trial court therefore erred in setting aside a jury verdict in her favor based on the absence of such proof. The judgment is reversed and final judgment is entered for plaintiff.

071079 Andrews v. Browne 06/06/2008 (Revised 02/26/2009) In a case charging securities law violations in the sale of a closely-held corporation, the trial court erred in granting partial summary judgment and in dismissing a claim brought against the defendant sellers for making untrue statements of material fact and omitting material facts in the sale of a security under Code § 13.1-522. If an instrument bears the label "stock" and possesses the characteristics typically associated with stock, it is a “security” within the meaning of the Virginia Securities Act, Code § 13.1-501 et seq. Therefore, a transaction in which 100% of the stock of a closely held corporation possessing such characteristics was transferred to a group of three purchasers under a stock purchase agreement executed to accomplish the sale of a business is regulated by the Act. The judgment is reversed and the case is remanded for further proceedings.

071162 Commonwealth v. Dotson 06/06/2008 A motion for expungement of police and court records relating to a marijuana possession charge that was dismissed pursuant to the applicable first offender statute, Code § 18.2-251, was erroneously granted because – in accepting the defendant's plea of nolo contendere, placing her on first offender status, and imposing certain obligations upon her – the trial court was required to find evidence sufficient for a finding of guilt in order to defer the proceedings pursuant to the statute. Thus, the charge against her was not “otherwise dismissed” within the meaning of the expungement statute, and she was not entitled to have the charge expunged from her record. The judgment is reversed and final judgment is entered for the Commonwealth.

071164 Town of Leesburg v. Giordano 06/06/2008 (Revised 12/05/2008) In a challenge to the fairness and uniformity of rates charged by a municipality for water and sewer service, brought pursuant to Code §§ 15.2-2119 and 15.2-2143 more than 30 days after the municipality's recently adopted utility bond resolution was filed with the court pursuant to Code § 15.2-2607, the circuit court correctly held that the 30-day limitation in Code § 15.2-2627 did not apply and overruled the municipality's plea in bar. If the municipality had wished to include the challenged rates in its bond resolution as permitted under Code § 15.2-2607, those rates would have been immunized from attack after the expiration of 30 days by Code § 15.2-2627. However, since the municipality elected to omit them from its bond resolution, the rates fall outside the protection of Code § 15.2-2627. The order from which this certified interlocutory appeal was taken pursuant to Code § 8.01-670.1 is affirmed and the case is remanded for further proceedings.

071197 Whitaker v. Heinrich Schepers GMBH & Co. KG 06/06/2008 In a personal injury case that was removed to federal court and then remanded back to the Virginia circuit court, the trial court abused its discretion in denying the plaintiff’s subsequent motion to amend his ad damnum clause. The decision is reversed in part and the case is remanded for further proceedings with respect to damages.

071206 Jenkins v. Johnson 06/06/2008 In a proceeding to confirm partial ownership of real property by intestate succession and for partition, children of the decedent who were born out of wedlock were not required to comply with the proof of paternity provisions of Code § 64.1-5.1(4), relating to “the settlement of [a] decedent’s estate,” in order to assert rights as legal heirs to real property owned by a decedent. The judgment is affirmed and the case is remanded for further proceedings.

071220 Gray v. Virginia Secretary of Transportation 06/06/2008 (Revised 06/17/2008) In a constitutional challenge seeking declaratory and injunctive relief relating to the Dulles Toll Road and contractual agreements between the Commonwealth of Virginia and the Metropolitan Washington Airports Authority, concerning among other issues the power to fix and collect tolls, the circuit court erred in sustaining demurrers and pleas in bar asserting sovereign immunity on behalf of certain of the defendants because Article I, Section 5; Article III, Section 1; and Article IV, Section 1 of the Constitution of Virginia are self-executing provisions and thereby waive the Commonwealth’s sovereign immunity. The judgment of the circuit court is reversed in part and affirmed in part, and the case is remanded for further proceedings.

071248 Dodge v. Randolph-Macon Woman's College 06/06/2008 The judgment of the circuit court sustaining a demurrer in an action brought by students and others to challenge the decision of a women's college to become coeducational is affirmed. Code § 2.2-507.1 does not impose any duties upon a nonstock charitable corporation such as this college, which is also not a trust subject to the Uniform Trust Code. The judgment of the circuit court is affirmed.

071292 Schmidt v. Household Finance Corp. 06/06/2008 In a dispute arising out of a mortgage loan, the circuit court did not err in sustaining a demurrer to the plaintiff borrower's claim for rescission because he did not allege sufficient facts to state a cause of action for rescission. Nor did the circuit court err in sustaining a plea in bar of the applicable statutes of limitation as to claims for actual and constructive fraud, along with several statutory causes of action, because plaintiff did not allege facts demonstrating that, despite the exercise of due diligence, he could not have discovered the alleged fraud within the applicable statutory limitation periods preceding his commencement of the action. The judgment is affirmed.

071338 Lovelace v. Orange County Bd. of Zoning Appeals 06/06/2008 In an appeal from the decision of a board of zoning appeals, the circuit court erred by affirming that decision, which upheld a zoning administrator’s decision to deny a permit for the construction of a residential dwelling with a garage and shed. No declaration of covenant was recorded and the ambiguous language of the plat in question imposes no restrictions on the development of the parcel. The judgment is reversed.

071373 Palmer & Palmer Co. v. Waterfront Marine Construction, Inc. 06/06/2008 In an action for breach of contract the trial court erred in interpreting the parties' agreement to impose liability upon a landowner for damages resulting when a marine construction company's crane fell into an abandoned and disconnected septic tank located under several inches of sand on the property. There was no contract provision that would make the landowner liable for these damages. The judgment is reversed and final judgment is entered in favor of the defendant.

071409 Williams v. Le 06/06/2008 In a wrongful death action arising from alleged medical malpractice, the trial court erred in instructing the jury on superseding intervening causation. This doctrine does not operate to exempt a defendant from liability if the purportedly intervening cause is put into operation by the defendant’s wrongful act or omission. In this case it could not be said that defendant's alleged negligence did not contribute “in the slightest degree” to the death of plaintiff's decedent. The trial court therefore erred in granting the superseding intervening causation instruction. The judgment is reversed and the case remanded for a new trial.

071451 Ayala v. Aggressive Towing and Transport, Inc. 06/06/2008 (Revised 04/06/2009) In a wrongful death action against a tow truck driver and his employer arising from a vehicular crash, the trial court erred by receiving into evidence the guilty pleas and an order of conviction for involuntary manslaughter of the driver of the car in which the victim was riding at the time of the crash. The judgment is reversed and the case is remanded for a new trial.

071542 Duty v. Duty 06/06/2008 In a suit to determine the rightful owner of a disputed parcel of land, the trial court did not err in finding that the evidence was insufficient to establish the source of title of the disputed parcel in respect of either the plaintiff's deed or the predecessor-in-title to the defendant's deed, and did not err in holding that because plaintiff was the first to record her deed with the clerk’s office for the county she is the valid title holder of the land in dispute by virtue of the priority of her deed, and that she shall have title clear and free from claims of the defendant. The judgment of the trial court is affirmed.

071553 Nichols Construction Corp. v. Virginia Machine Tool Co. 06/06/2008 In a suit by the owner of an industrial building alleging that a roofing company breached a construction contract for installation of a new roof, the defendant contractor failed to produce sufficient evidence to overcome the plaintiff's prima facie case on damages and the circuit court did not err in awarding damages for breach of the contract based upon the cost of removing the defective roof and replacing it with a new rafter system roof, which was the object of the original contract. However, since there is no assertion that breach of the contract was willful or the result of deliberate bad faith, the circuit court erred in failing to award defendant an offset for the amount remaining due under the contract. The judgment is affirmed in part and reversed in part, and the case is remanded for calculation of the amount of the offset against the judgment and recalculation of the pre-judgment interest due on the adjusted award of damages.

071567 Hubbard v. Commonwealth 06/06/2008 In a prosecution for felonious escape from custody in violation of Code § 18.2-478, which requires that the Commonwealth prove that the defendant was taken into custody “on a charge of criminal offense,” the evidence was insufficient as a matter of law in circumstances where there was no written criminal complaint or formal accusation against the person who escaped from custody. Considering the plain language of Code § 18.2-478, it is clear the Commonwealth failed to prove beyond a reasonable doubt that the defendant violated the statute, and he should not have been convicted of felonious escape from custody. The judgment of the Court of Appeals affirming the conviction is reversed and the indictment is dismissed.

071626 Booker v. Commonwealth 06/06/2008 In a criminal trial, the circuit court erred in responding to a question posed by the jury during deliberations in the sentencing phase by instructing the jury that the court had the power to reduce but not to increase the sentence imposed by the jury. The Court of Appeals erred in affirming the convictions and sentences. The judgment is reversed and the case is remanded.

071744 Pryor v. Commonwealth 06/06/2008 In a cocaine distribution prosecution arising from transactions in two successive months, and in which the trial court granted a motion to strike as to one count, leaving only charges arising in the earlier month, it was error to permit the jury to consider a videotaped recording of the later drug transaction as evidence pertaining to an earlier transaction. The judgment of the Court of Appeals upholding the conviction on that count is reversed and the case is remanded for a new trial if the Commonwealth be so advised.

071787 Velasquez v. Commonwealth 06/06/2008 In an appeal from a rape conviction under Code § 18.2-61, the Court of Appeals erred in affirming the circuit court's ruling granting an instruction telling the jury that an intent to rape could be inferred from the defendant's unauthorized presence in the victim's home. Rape, unlike burglary, is a general-intent crime; thus, the instruction was an improper comment on the evidence. However, error in granting the instruction was harmless beyond a reasonable doubt due to the overwhelming evidence of the defendant's guilt. Because the result would not be different if the instruction had been refused, the judgment of the Court of Appeals upholding the defendant's rape conviction is affirmed.

071928 Porter v. Commonwealth 06/06/2008 (Revised 06/24/2008) In the appeal of a capital murder conviction and sentence of death imposed for the killing of a police officer, no reversible error is found and the conviction and sentence are affirmed. Issues addressed include questions of jurisdiction arising from the granting of a motion for change of venue, the constitutionality of Virginia's electrocution and lethal injection methods for execution, the applicability of the Virginia Administrative Process Act to execution procedures, admissibility of prior convictions as evidence of motive, refusal of proffered jury instructions, alleged prejudice to the defendant arising from the level of courtroom security at trial, and the denial of a defense motion seeking to appoint a prison risk assessment expert to provide opinion testimony as to defendant's future dangerousness.

071986 Jones v. Commonwealth 06/06/2008 In a prosecution for maintaining or operating a fortified drug house in violation of Code § 18.2-258.02, the evidence was not sufficient to sustain the defendant's conviction. While each case turns on its own peculiar facts, the statutory phrase “substantially altered from its original status” was not satisfied upon proof that a stove was placed against the rear door of defendant's house, a "2 by 4" board was used to brace the stove, and a screwdriver was wedged into the door latch. The judgment of the Court of Appeals upholding the conviction is reversed and the indictment is dismissed.

072023 Gibson v. Commonwealth 06/06/2008 In considering multiple convictions for willful failure to collect or truthfully account for and pay over withholding taxes under Code § 58.1-1815, the Court of Appeals did not err in holding that a responsible party must account for and pay over the taxes, and that liability can arise under the statute for failure to pay over such taxes even if a responsible party accounts for and collects them. The judgment of the Court of Appeals upholding the defendant's convictions is affirmed.

070277 Prince Seating Corp. v. Rabideau (ORDER) 04/18/2008 An appellant must present a sufficient record for an appellate court to determine whether a lower court has erred, including the basis of the challenged ruling. Where an appellant claimed that its motion under Code § 8.01-428(A) to set aside a default judgment was erroneously denied, but failed to include any transcript of the circuit court's hearing on that motion or a statement of facts relating to that hearing as required by Rule 5:11, the appellate court could not consider several arguments advanced by appellant on its claim of error, as there was no evidence establishing that the arguments were ever pled or otherwise made to the circuit court. The judgment is affirmed.

070371 Logan v. City Council of the City of Roanoke 04/18/2008 In an appeal from a declaratory judgment action involving the application and enforcement of a municipal subdivision ordinance under Code §§ 15.2-2242 and 15.2-2255, the trial court did not err in concluding that the municipality lawfully delegated to its agent the authority to administer and enforce provisions of that ordinance pertaining to public improvements and that the ordinance provided adequate standards to guide the agent’s exercise of discretion in granting allowed exceptions to ordinance requirements. However, the trial court erred in holding that the plaintiff landowners were entitled to seek a declaratory judgment regarding the agent’s application of the subdivision ordinance to a proposed subdivision approved by the municipality. The appeal is dismissed in part, and the trial court's judgment is affirmed in part, reversed in part, vacated in part, and final judgment is entered in the defendants' favor.

070410 Bostic v. About Women OB/GYN, P.C. 04/18/2008 During a jury trial in a medical malpractice case, the circuit court erred in permitting the reading and exhibition to the jury of excerpts from medical literature without proper foundation as to their authoritativeness, or cautionary instructions. The testifying witness must, based upon his or her own knowledge and expertise, endorse the views of the author of such literature; further, an objection and request for a cautionary instruction based on this requirement were timely. The judgment is reversed and the case is remanded.

070498 Jennings v. Kay Jennings Ltd. Partnership 04/18/2008 In a derivative suit brought by a limited partner of a family limited partnership, the trial court correctly ruled that the plaintiff lacked standing to bring the action under Code § 50-73.62. His economic interests as landlord and lessee of certain real property managed by the partnership were in direct conflict with the partnership's interests, and under the circumstances he could not fairly and adequately represent the interests of the other partners and the partnership. The trial court's judgment is affirmed and the case is remanded for an award of attorney's fees incurred on appeal pursuant to Code § 50-73.65.

070522 McNally v. Rey 04/18/2008 Under Code § 8.01-271.1, a circuit court abused its discretion by imposing sanctions upon an attorney who, after filing a pretrial witness and exhibit list, informed the court on the morning of a scheduled trial that his client had filed a federal bankruptcy petition the previous evening. While the attorney knew that his client was considering the bankruptcy filing for some time before it was made, nothing in the record supports a conclusion that he filed the witness and exhibit list in the Virginia proceeding at a time when he did not intend to try the case. A litigant's decision to file a petition in bankruptcy while litigation is pending does not constitute a violation of Code § 8.01-271.1, provided the filing complies with the Bankruptcy Code. Additionally, the filing of a pretrial witness and exhibit list did not violate Code § 8.01-271.1, and the circuit court lacked inherent authority to impose an award recovery of attorneys’ fees and costs to the opposing party as a sanction. The judgment is reversed and final judgment is entered in the sanctioned attorney's favor.

070528 Snell v. Commonwealth (ORDER) 04/18/2008 In a case involving the issue of whether a police officer had probable cause to seize folded currency found in a defendant's wallet and subject it to further search by unfolding it to reveal drugs, the Court of Appeals erred in upholding the circuit court's denial of the defendant's motion to suppress. The folded currency at issue in Grandison v. Commonwealth, 274 Va. 316, 645 S.E.2d 298 (2007) is not materially distinguishable from the folded currency at issue in this case. As a result, the Court of Appeals' ruling conflicts with the contrary ruling in Grandison, and its judgment constitutes reversible error. The judgment is reversed, the conviction is vacated, and the indictment is dismissed.

070614 Wright v. Minnicks 04/18/2008 In a wrongful death case, the circuit court erred in setting aside the original verdict for the plaintiff and ordering a new trial, where there was sufficient evidence in the first trial to support all parts of that verdict. In light of evidence that the plaintiff's marriage to the decedent was failing at the time of the decedent's demise, the jury could properly refuse to award solace damages, while awarding her expenses and compensatory damages for loss of the decedent's income, services, protection, care, and assistance. The verdict was thus not internally inconsistent and did not compel the conclusion that the jury misconceived or misunderstood either the facts or the law. The verdict in the second trial is set aside and vacated, the original verdict is reinstated and final judgment is entered thereon.

070720 Commonwealth v. Barker 04/18/2008 (Revised 04/24/2008) In a case concerning death and health insurance benefits provided to the surviving spouse of a law enforcement officer under the Line of Duty Act, the circuit court erred in making an award under Code § 9.1-402(A) since the evidence failed to establish that decedent’s performance of his law enforcement duty was the direct or proximate cause of his death. However, the diagnosis of hypertension in the decedent's pre-employment physical examination is not a bar to use of the statutory presumption in Code § 65.2-402(B) because death by heart disease was a different medical condition. Thus, plaintiff is entitled to an award pursuant to Code § 9.1-402(B) and, as a result, the circuit court did not err in awarding health insurance benefits to the surviving spouse under Code § 9.1-401. The circuit court's judgment is reversed in part and final judgment is entered in plaintiff's favor in part.

070954 Buhrman v. Commonwealth 04/18/2008 The trial court erred in denying a motion to suppress physical evidence obtained in a search incident to arrest because the observation of hand-rolled cigarettes in the defendant's vehicle did not provide probable cause to arrest her for possession of marijuana. Evidence of the defendant's alleged "intoxication" and vaguely "suspicious" actions, without more, does not suffice to indicate that the hand-rolled cigarette materials were being used for an illegitimate purpose. After suppression of the items seized there would be insufficient evidence to sustain convictions in any retrial on indictments that were brought charging defendant with possession of cocaine, heroin, and marijuana. The judgment of the Court of Appeals is reversed, the convictions are vacated, and the indictments against the defendant are dismissed.

071189 McCain v. Commonwealth 04/18/2008 During the course of a traffic stop conducted in the early morning hours in a "high-crime, high-drug" area, where no circumstances developed to create a reasonable suspicion of criminal activity or that the defendant, a passenger in a vehicle that had been stopped for equipment and traffic violations, was armed and dangerous, he was not properly subjected to a "pat-down" search for weapons. The defendant was thus seized and frisked in violation of his rights under the Fourth Amendment, and his motion to suppress evidence recovered from his person should have been granted. The judgment is reversed, the convictions are vacated and the indictments are dismissed.

071419 Commonwealth v. Robertson 04/18/2008 In considering the defendant's motion to suppress items obtained in a warrantless entry of his residence by police officers after his arrest outdoors, the Court of Appeals employed the correct standard of review and gave proper deference to the trial court's findings of fact in holding that the trial court erred in denying the motion. The Court of Appeals also properly concluded that, based on those facts, neither the protective sweep nor exigent circumstances exceptions to the warrant requirement of the Fourth Amendment applied to justify the warrantless entry. The judgment of the Court of Appeals is affirmed.

071432 Jay v. Commonwealth 04/18/2008 Because the provisions of Rule 5A:20(e) do not impose jurisdictional requirements, the Court of Appeals erred in the appeals collected here by applying that rule in dismissing the petitions for appeal, or portions thereof, where the applicants did not comply with the rule's requirements for setting forth argument and support for points raised. The judgments of the Court of Appeals in these appeals are reversed and remanded for consideration of the questions presented and/or issues erroneously dismissed. In one of the appeals, the evidence was insufficient to sustain convictions for attempted robbery and attempted use of a firearm during the commission of attempted robbery; in that appeal the judgment is reversed and remanded in part and dismissed in part.

071436 Young v. Commonwealth 04/18/2008 In a prosecution for possession of a Schedule I or Schedule II controlled substance, the record was devoid of evidence sufficient to support a finding, beyond a reasonable doubt, that the defendant possessed the charged substance with knowledge of its nature and character. Bare possession of a controlled substance, without more, does not furnish proof of the essential element of guilty knowledge required to support a conviction under Code § 18.2-250. The judgment of the Court of Appeals upholding the defendant's conviction is reversed and the indictment is dismissed.

062388 Jaynes v. Commonwealth - OPINION WITHDRAWN BY ORDER 02/29/2008 (Revised 07/16/2008) The February 29, 2008 opinion in Jaynes v. Commonwealth, 275 Va. 341 (2008), was withdrawn by the Court in an Order dated July 9, 2008, after a petition for rehearing was granted by Orders dated April 28, 2008 and May 19, 2008. See Record No. 062388, Jaynes v. Commonwealth, opinion dated September 12, 2008

062674 Adams v. Commonwealth 02/29/2008 In a murder case in which defendant challenged the search of his residence by police under a search warrant, considering the totality of the circumstances surrounding the issuance and execution of the warrant, the Court of Appeals did not err in holding that the good-faith exception set forth in United States v. Leon, 468 U.S. 897 (1984) applies, and thus it correctly upheld the trial court's decision admitting the fruits of the search into evidence. A reasonably well trained police officer would not have known that the search was illegal despite the issuance of the warrant. Admission at trial of certain testimony challenged as hearsay, if error, was harmless. The judgment of the Court of Appeals is affirmed.

070214 UVA Health Services v. Morris 02/29/2008 In collected appeals, it is concluded that a health services foundation associated with a public university's medical center is not itself a hospital whose charitable immunity is governed by Code §§ 8.01-38 and 32.1-123, and it is likewise not entitled to common law charitable immunity from tort liability. The foundation, which was created to increase revenue and generates funds for salaries and incentive payments, among other things, pursues thousands of collection actions in court and has a low ratio of charitable work to revenues. Considering four relevant factors, the manner in which the foundation actually conducts its affairs is not dominantly in accord with the charitable purpose stated in its articles of incorporation. Instead, it operates like a profitable commercial business with extensive revenue and assets. It is therefore not immune from tort liability under the doctrine of charitable immunity. Dispositions in the collected cases are affirmed, reversed and remanded accordingly.

070229 Goyonaga v. Board of Zoning Appeals of Falls Church 02/29/2008 In a dispute concerning whether the initial decision of a board of zoning appeals to grant a variance allowing a nonconforming structure to be enlarged and extended converts that structure into a conforming use for subsequent zoning ordinance applications, the circuit court did not err in ruling that the variance did not result in the plaintiffs' property becoming a conforming use. The court also correctly determined that the plaintiffs failed to establish that they had a vested right to continue the nonconforming use of their property after the existing structure had been completely demolished to its foundation. The circuit court's judgment is affirmed.

070304 Brown v. Hoffman 02/29/2008 In a medical malpractice case involving a patient's death from internal bleeding after kidney surgery, it was error for the trial court to strike plaintiff's evidence. Reviewing the evidence in the light most favorable to the plaintiff, reasonable minds could differ as to whether the defendant doctor encountered a normal or abnormal anatomical configuration during the surgery. Therefore, the issue should have been decided by the jury, and the trial court erred in striking plaintiff's evidence and entering summary judgment for the defendant. The judgment is reversed and the case is remanded for a new trial.

070318 Board of Zoning Appeals v. Board of Supervisors of Fairfax County 02/29/2008 The trial court erred in a writ of certiorari proceeding pursuant to Code § 15.2-2314 when it permitted the petitioning county board of supervisors to take a nonsuit after adverse intervening case law was announced. Because a proceeding filed pursuant to Code § 15.2-2314 is in the nature of an appeal, not a trial proceeding, the nonsuit provisions of Code § 8.01-380, which apply to trial proceedings, were not applicable. The judgment of the circuit court granting a nonsuit is reversed and the case is remanded for further proceedings.

070322 Kitchen v. City of Newport News 02/29/2008 The circuit court erred in sustaining a city's demurrer to a claim for inverse condemnation filed by some 700 plaintiffs based on property damage from flooding allegedly resulting from inadequate municipal drainage infrastructure and authorized property development. The plaintiffs pled specific, factual actions that resulted in a taking of property, sufficient to state a claim, and the circuit court erred in finding the claim not "ripe" based on failure to obtain final adjudication of state law claims before pursuing federal law theories. Code § 8.01-187 is not the exclusive remedy for claimants making inverse condemnation claims against political subdivisions of the Commonwealth, and claims under Article I, Section 11 of the Constitution of Virginia may also be pursued. The judgment is reversed.

070344 Hicks v. Mellis 02/29/2008 Because an order reinstating a medical malpractice action to the circuit court's docket under Code § 8.01-335(B) that was entered without notice to the defendant was not void ab initio, and the action was thereafter nonsuited and refiled, the circuit court erred in dismissing the case on statute of limitation grounds. The judgment is reversed.

070401 Hampton Roads Seventh-Day Adventist Church v. Stevens 02/29/2008 In a challenge to the probate of a typed and attested will where there was no evidence of fraud, the will was subscribed in a manner satisfying the requirements of Code § 64.1-49 where the testatrix expressly specified in the will that it consisted of five pages, signed her name below the statement that described the number of pages contained in her will, and on the fourth page signed a self-proving affidavit. Witnesses placed their signatures under that of the testatrix on that page. The judgment of the trial court is reversed and the case is remanded for entry of an appropriate order.

070496 Cost v. Commonwealth 02/29/2008 (Revised 03/04/2008) In a case charging drug possession for distribution, the Court of Appeals erred in affirming defendant's convictions after the trial court denied his motion to suppress evidence seized during a "pat-down" search. When the arresting officer felt capsules in defendant's pocket, their illicit character was not immediately apparent from the officer's tactile perceptions. The defendant's conduct and verbal interaction with the officer supported a "hunch" that the capsules contained contraband, but together with the "plain feel" of the pat-down these factors did not provide probable cause to support the seizure of the capsules under the totality of the circumstances. The judgment of the Court of Appeals upholding defendant's conviction is reversed and the indictment is dismissed.

070762 Magruder v. Commonwealth 02/29/2008 In collected appeals in which multiple defendants each claimed that admission into evidence, pursuant to Code § 19.2-187, of a certificate of analysis in the absence of testimony at trial from the person who performed the particular analysis and prepared the certificate violated his rights under the Confrontation Clause of the Sixth Amendment, it is concluded that the procedure provided in Code § 19.2-187.1 adequately protects a criminal defendant’s rights under the Confrontation Clause. Because the defendants in these appeals failed to utilize that procedure, they waived the challenges under the Confrontation Clause to the admissibility of the certificates of analysis. The judgments of the Court of Appeals upholding the various convictions at issue are affirmed.

070831 Maxwell v. Commonwealth 02/29/2008 In a prosecution for possession of cocaine with intent to distribute, and possession of marijuana, viewing the evidence most favorably to the Commonwealth, no rational trier of fact could have found the essential elements of the crimes proven beyond a reasonable doubt. While defendant’s conduct may have been suspicious, no one ever saw him with the drugs, he never made any incriminating statements, and the one fingerprint found was not his but someone else’s. Defendant was seen near a lumber yard's stacks of plywood where the drugs were found, but proximity is not sufficient to prove possession and no other evidence connected defendant to the drugs. The judgment of the Court of Appeals is reversed and the indictments are dismissed.

070980 Garnett v. Commonwealth 02/29/2008 (Revised 03/03/2008) In a case involving conviction upon four charged felonies related to the abduction and rape of the victim, the circuit court did not err in failing to set aside the verdict because the Commonwealth withheld exculpatory evidence, or in denying defendant's request for a new trial on the basis of newly discovered evidence. Defendant was not entitled to compel the Commonwealth to disclose the recordings and verbatim transcripts of multiple interviews law enforcement officers conducted with the victim, when the Commonwealth provided the defendant with a written summary of the inconsistent statements the victim had made during such interviews as exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963). While the more prudent and expeditious route would have been for the Commonwealth to provide the recordings and transcripts, Brady does not embrace a “best evidence” rule prohibiting the use of such summaries. The Court of Appeals' judgment upholding the convictions rendered in the circuit court is affirmed.

071065 Daniels v. Commonwealth 02/29/2008 In a prosecution for burglary, abduction and robbery of several victims in separate episodes, in which the jury was instructed on the burden of proof, inconsistent statements, and the witnesses’ credibility, the instructions given fully and fairly covered the legal principles addressed in a proposed defense instruction on the danger of eyewitness identification testimony, which was itself unclear in certain parts. Therefore the trial court did not abuse its discretion in refusing the defendant's proposed instruction. The judgment of the Court of Appeals upholding the convictions is affirmed.

071364 Gilman v. Commonwealth 02/29/2008 Because the provisions of Code § 16.1-69.24 and Code § 18.2-459 prevail over the more general provisions of Code § 16.1-132 and Code § 16.1–136, a contemnor appealing an adjudication of summary contempt from general district court does not receive a trial de novo in the circuit court with attendant Sixth Amendment protections. Thus when the circuit court admitted in evidence in a summary contempt adjudication under Code § 18.2-459 the certificate of the district court judge reciting the factual circumstances underlying the contempt adjudication, no Sixth Amendment violation occurred. The judgment of the Court of Appeals upholding this disposition is affirmed.

071959 Marshall v. Northern Virginia Transp. Authority 02/29/2008 In an appeal from a bond validation proceeding instituted by a regional transportation authority in circuit court, it is concluded that a multi-faceted chapter of the 2007 Acts of Assembly does not violate the "single object" requirement for legislation specified in Article IV, Section 12 of the Constitution of Virginia, but that certain provisions thereof are unconstitutional due to their delegation of the General Assembly's power of taxation to a political subdivision that is not a county, city, town, or regional government and that is not an elected body. Although the Constitution does not explicitly prohibit it, such delegation is prohibited by necessary implication based on the language of certain Constitutional provisions. The taxes and fees already imposed are null and void, and the circuit court erred in validating the proposed bonds based thereon. The invalid statutes allowing the authority to impose the taxes and fees are severed from the remaining portions of the legislation, the circuit court's judgment is affirmed in part and reversed in part, and final judgment is entered.

062250 Mission Residential v. Triple Net Properties 01/11/2008 In an appeal from an order denying a motion to stay arbitration proceedings pursuant to Code § 8.01-581.02(B) filed by one of the members of a member-managed limited liability company against the other member, the trial court erred in denying the motion where the party opposing it failed to meet its burden of proving the existence of an agreement in which the movant had agreed to submit its disputes with the limited liability company to arbitration. The circuit court's judgment is reversed and the case is remanded for further proceedings.

062368 Purce v. Patterson 01/11/2008 The trial court did not err in ruling that an estranged husband was not eligible for an elective share of the spouse's augmented estate under Code § 64.1-16.3. The record shows that both before and after the parties separated, the husband showed none of the normal indicia of supporting his spouse or of the marital relationship. The evidence was sufficient to support the trial court’s holding that he abandoned his wife prior to and continuing until the time of her death under Code § 64.1-16.3. Accordingly, the judgment of the trial court that he was not eligible for an elective share of the wife's augmented estate is affirmed.

062449 Coston v. Bio-Medical Applications 01/11/2008 In a medical negligence case alleging that defendant's employees placed the plaintiff in a defective chair for a kidney dialysis procedure, even though they had knowledge that the chair was not safe, the allegations, if proven at trial, would be sufficient to establish a prima facie case of medical negligence without the necessity of expert testimony. Based upon these allegations, the issue whether the acts or omissions constitute medical negligence is within a jury's common knowledge and experience and, therefore, expert testimony is not necessary. The judgment of the circuit court is reversed and the case is remanded for a trial on the merits.

062527 Wright v. Commonwealth 01/11/2008 The Court of Appeals did not err in finding that a circuit court, after accepting a plea agreement of the type specified in Rule 3A:8(c)(1)(C), can nevertheless impose additional terms of suspended incarceration and post-release supervision pursuant to Code §§ 18.2-10(g) and 19.2-295.2(A) when such terms are not mentioned in the plea agreement. Because general principles of contract law apply to plea agreements and the law in effect when a contract is made becomes a part of the contract as though expressly incorporated therein, the judgment of the Court of Appeals of Virginia is affirmed.

062570 Malbrough v. Commonwealth 01/11/2008 In a prosecution for drug and weapons violations in which defendant claimed that a consent search of his person conducted at a roadside stop after being told that he was free to leave violated his Fourth Amendment rights, it cannot be said that the trial court's conclusion that a reasonable person would have felt free to ignore such request and leave the scene was plainly wrong or unsupported by the evidence. Defendant did not establish that the circuit court committed reversible error in that finding, and no error is found in the application of law by either that court or the Court of Appeals. Accordingly the judgment upholding the convictions is affirmed.

062603 George Mason University v. Floyd 01/11/2008 In an appeal from a state university's decision denying a student in-state tuition status under Code § 23-7.4(B), jurisdiction lies in the Supreme Court under Code § 8.01-670(A)(3) because under Code § 17.1-405 the Court of Appeals does not have jurisdiction over an administrative decision made by an entity that is not purely an administrative agency. On the merits, in light of the presumption established in Code § 23-7.4(B), the university's decision was not arbitrary, capricious, or otherwise contrary to law. The judgment of the circuit court is reversed, and final judgment is entered for the university.

062620 Ford Motor Co. v. Favinger 01/11/2008 In considering a claim for temporary partial disability benefits under the Virginia Workers’ Compensation Act, Code §§ 65.2-100 through 65.2-1310, the Commission's award, affirmed by the Court of Appeals, was not predicated upon evidence that the employee made a reasonable effort to market his residual work capacity. Because the record contains no such evidence, the judgment of the Court of Appeals is reversed and final judgment is entered for the employer.

062715 Bayview Loan Servicing v. Simmons 01/11/2008 In a breach of contract action arising out of foreclosure proceedings, the circuit court did not err in holding that no right to foreclose had vested in favor of a loan servicing company because it had failed to comply with pre-acceleration notice requirements contained in the deed of trust. The statutory cure provisions of Code § 55-59.1(A) also do not apply, because the issue of whether the right to accelerate is in existence and capable of being exercised by a foreclosure notice is not controlled by the statute and thus remains a matter of contract between the parties. The judgment compensating plaintiff for the equity lost as a result of the foreclosure is affirmed.

062719 Upper Occoquan Sewage Authority v. Blake Construction Co. 01/11/2008 (Revised 02/08/2008) In considering contract claims arising under the Virginia Public Procurement Act, the circuit court had jurisdiction to determine interest due under a judgment and did not err in determining that interest accrued on awarded compensatory damages, but did err in setting the applicable interest rate. The court also erred in determining that post-judgment interest accrued on the pre-judgment interest awarded in two trials and that the judgment debtor had made a timely allocation of payment on the debt; however it did not err in denying the judgment debtor's motion for satisfaction. The judgment is affirmed in part, reversed in part, and the case is remanded.

070091 Hilton v. Martin 01/11/2008 In an action to recover damages for personal injury and death resulting from an assault on the victim by a fellow employee, the trial court erred in concluding that the Virginia Worker’s Compensation Act provided the exclusive remedy for the claims. Applying the actual risk test, the assault on the victim had no relationship with her status as an employee. Whether intended as flirtatious, merely playful, or as harassment, the assault was purely personal and thus the resulting injury and death did not "arise out of the employment" under Code § 65.2-101. The judgment is reversed and the case is remanded for further proceedings.

070143 Dogwood Valley Citizens Ass'n v. Shifflett 01/11/2008 In a proceeding which followed from a homeowners' association's levy of special assessments and subsequent warrants in debt against lot owners in a development, the circuit court did not err in determining that the association, a non-stock Virginia corporation, did not qualify as a property owners’ association under the Property Owners’ Association Act, Code §§ 55-508 through -516.2. Because the filing of the association's articles of incorporation and bylaws in the land records did not constitute a declaration imposing upon it operational or maintenance responsibilities for the common areas or roads of the development, the judgment of the circuit court is affirmed.

070146 Ahari v. Morrison 01/11/2008 (Revised 02/08/2008) In a wrongful death action, the circuit court did not err in granting the defense plea of the statute of limitations. Because Rule 1:8 requires leave of court to amend any pleading after it is filed, an amended complaint is not deemed filed, and is thus without legal efficacy, until a trial court grants leave to amend. Thus, the claims asserted against the defendants named in an amended complaint were time barred despite plaintiff having sought leave to amend three days prior to the expiration of the limitations period. The judgment is affirmed.

070190 Lloyd v. Kime 01/11/2008 In a medical malpractice case, the trial court did not err in using deposition evidence to resolve a motion in limine and subsequent motion for summary judgment where no objection was made, or in holding that an expert witness was not qualified under Code § 8.01-581.20 to testify on standard of care and breach thereof respecting intraoperative negligence. However, it was an abuse of discretion to conclude that the expert was not qualified to testify on these issues with respect to postoperative negligence, or causation as to either allegation of negligence. The judgment is affirmed in part and reversed in part, and the case is remanded.

070228 Ott v. L&J Holdings 01/11/2008 In a declaratory suit addressing whether a wife's execution of a deed should be set aside as exceeding her authority under a power of attorney, the circuit court did not err in admitting parol evidence. Credible evidence supported the findings that the deed was not a deed of gift, that it was given for a valuable consideration without donative intent, that the transfer was undertaken for legitimate business reasons, and that both spouses received benefits commensurate with their respective property interests without any self-dealing by the wife. The transaction was therefore within the powers granted by the power of attorney. The judgment is affirmed.

070399 Phelps v. Commonwealth 01/11/2008 In a prosecution for felony eluding and endangerment in violation of Code § 46.2-817(B), the defendant was himself a "person" endangered by his own conduct and could be convicted under this section on that basis. The judgment of the Court of Appeals upholding his conviction is affirmed.

070531 Johnson v. Tice 01/11/2008 In considering a habeas corpus petition, the circuit court erred in holding that petitioner satisfied his evidentiary burden in an ineffective assistance of counsel claim based on failure to move for suppression of his confession at trial. As a matter of law, petitioner failed to establish that there was a reasonable probability of a different result at trial if the jury had not considered the confession. The record does not undermine confidence in the outcome of the proceedings, and the assignment of cross-error regarding trial counsel's failure to offer a particular letter in evidence does not affect this decision.

070640 Bishop v. Commonwealth 01/11/2008 In a prosecution for violation of Code § 46.2-357 the Commonwealth failed to prove beyond a reasonable doubt that the defendant received actual notice that he had been determined to be an habitual offender, where the transcript of the defendant's driving record failed to clearly reflect that he had received such notice. The defendant's conviction for a violation of Code § 46.2-357 is dismissed. On request of the Commonwealth and the defendant, a conviction for violation of Code § 18.2-460(C) is vacated, and a portion of the case is remanded to the circuit court for a new sentencing proceeding on the lesser included offense as set forth in Code § 18.2-460(B).

070703 Parker v. Commonwealth 01/11/2008 In a prosecution for the felony of obtaining money in excess of $200 under false pretense in violation of Code § 18.2-178 by passing off fake pills in a drug transaction, the element of false inducement to part with money or property was proven by sufficient evidence and the question whether the purchaser would have parted with his money or goods without this pretense was properly a question for the jury. The judgment of the Court of Appeals, upholding the conviction, is affirmed.

070796 Glenn v. Commonwealth 01/11/2008 The circuit court correctly denied a defendant's motion to suppress evidence obtained in a search of his grandfather's house, where the grandfather consented to the search without reservation and defendant took no action to countermand such consent or object to the search of that portion of the residence he claimed he occupied and a closed backpack found therein. The facts available to the officers at the time of the search of the house were thus sufficient to lead a reasonable police officer to believe that the grandfather had authority to consent to a search of the backpack. The Court of Appeals' judgment affirming defendant's convictions is affirmed.

070816 Bolden v. Commonwealth 01/11/2008 In the prosecution of firearms possession charges related to a drug offense, there was sufficient evidence that the defendant was aware of the presence and character of the firearm and that it was within his dominion and control, in a bag immediately adjacent to where he sat in a vehicle. The bag containing the gun was open and obvious, and at the time it was observed, defendant possessed illegal drugs with the intent to distribute same. The evidence was sufficient to establish that he possessed the firearm, and the judgment of the Court of Appeals is affirmed.

050573 Elliott, Larry Bill v. Warden (ORDER) 11/02/2007 Upon consideration of a petition for a writ of habeas corpus, respondent's motion to dismiss the petition is granted. Petitioner's claims alleging violations of the Commonwealth's obligations under Brady v. Maryland, 373 U.S. 83 (1963) are rejected as being without merit, his various claims of ineffective assistance of counsel are rejected as not satisfying the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and his remaining claims are likewise rejected as lacking merit or as being either procedurally barred or improperly raised. See Record # 031610, Elliott, Larry Bill v. Commonwealth, dated 03/05/2004

062134 Dagner v. Anderson 11/02/2007 In a wrongful death medical malpractice action against an emergency room physician, testimony from an expert medical witness as to the cause of the decedent’s injury and death was relevant to the question of the defendant physician’s alleged negligence in discharging the decedent from the emergency department of the hospital where she was being treated, but the trial court erred in accepting the tendered witness, whose familiarity with a particular condition asserted as the cause of injury and death lacked a sufficient basis. The case is remanded for new trial on all issues.

062180 Billips v. Commonwealth 11/02/2007 (Revised 11/05/2007) Admissibility of opinion evidence based upon plethysmograph testing at a sentencing proceeding requires the same threshold finding of reliability of the scientific method as applies to the use of scientific evidence in judicial proceedings generally. The burden of making a prima facie showing of that foundation rests upon the proponent of the evidence, subject to the opponent’s opportunity for cross-examination and refutation. Here, the Court of Appeals erred in reversing that burden, requiring the defendant to introduce evidence of unreliability of this technique. The judgment is reversed and the case is remanded for resentencing.

062231 Perez v. Commonwealth 11/02/2007 Petitions in juvenile court and an undated order provided clear and non-conjectural proof of prior juvenile adjudications of guilt for acts that would have been felonies if committed by an adult, and that such convictions occurred before the date of the incident for which defendant is presently charged. Thus the Commonwealth’s evidence was sufficient to support the defendant's conviction for felony possession of a firearm, and the judgment of the Court of Appeals is affirmed.

062357 Marcus, Santoro & Kozak v. Wu 11/02/2007 (Revised 02/08/2008) The circuit court correctly determined that the lien of a writ of fieri facias under Code § 8.01-501 required two Virginia law firms to cease disbursing funds from their trust accounts in satisfaction of accrued legal fees and related costs and to pay those funds to a judgment creditor effective with the issuance of the writ of fieri facias. The judgment of the circuit court is affirmed.

062452 Meeks v. Commonwealth 11/02/2007 Because the crime of credit card theft is completed where the card or number is unlawfully taken from its rightful owner or is received with knowledge that it has been taken and with the intent to use it, sell it, or transfer it, venue in a prosecution for credit card theft was not proper in a city where the defendant used the card and was arrested, because the offense was completed in another locale where the card was stolen. Accordingly, the judgment of the Court of Appeals is reversed and the indictment is dismissed.

062454 Scott v. Commonwealth 11/02/2007 In a criminal prosecution, the circuit court abused its discretion in granting the Commonwealth’s motion that a defendant be tried in a single case for nine robberies and other related crimes involving different victims that occurred in various locations on different dates over a four-month period. The Commonwealth failed to establish that the offenses pending against the defendant constituted parts of a "common scheme or plan" within the meaning of Rule 3A:6(b). The judgment of the Court of Appeals upholding the defendant's convictions is reversed, and the case is remanded to the Court of Appeals with directions.

062482 McGowan v. Commonwealth 11/02/2007 In a prosecution for cocaine distribution, the trial court erred in admitting evidence of a subsequent crime committed by the defendant for the purpose of impeaching the credibility of the defendant’s testimony during cross-examination. The judgment of the Court of Appeals upholding her convictions is reversed, and the case is remanded for a new trial if the Commonwealth be so advised.

062504 Little v. Cooke 11/02/2007 In a partnership derivative suit alleging counts for breach of fiduciary duty and legal malpractice, issues relating to an award of “tax damages,” damages for over-charges, and wrongfully withheld funds, punitive damages and the award of attorneys’ fees and expenses to be paid from a “common fund” awarded to the partnership, and questions relating to the damages appropriate where real estate was allegedly sold below its value, the judgment of the trial court is affirmed in part and reversed in part, and the case is remanded.

070007 Alston v. Commonwealth 11/02/2007 (Revised 02/08/2007) Considering a constitutional challenge to the postrelease supervision component of a defendant's sentence, Code §§ 19.2-295 and 19.2-295.2 do not, as a matter of Virginia law, limit the relevant statutory maximum punishment to the 3 year term of active incarceration determined by the jury. Nor does the postrelease supervision exceed “the relevant statutory maximum” for Sixth Amendment purposes, as it was imposed solely based on facts reflected in the jury verdict. Thus, the Court of Appeals did not err in holding that the postrelease supervision imposed under Code § 19.2-295.2 did not violate the defendant's Sixth Amendment rights. The judgment is affirmed.

070136 Martin v. Commonwealth 11/02/2007 (Revised 02/08/2007) In light of Code § 19.2-305(B), which provides that a defendant placed on probation following conviction may be required to provide support for his wife or others, and the General Assembly's adoption of child support guidelines in § 20-108.2, in a criminal proceeding a trial court did not abuse its discretion in requiring a defendant to submit to court-ordered child support as a condition of a suspended sentence. The judgment of the Court of Appeals upholding that order is affirmed.

070137 Jackson v. Commonwealth 11/02/2007 (Revised 11/06/2007) In a case where a hospital emergency room nurse administered a physician-prescribed narcotic pain analgesic to the defendant, who shortly thereafter caused his car to collide with a telephone pole, leading to a charge of violating Code § 18.2-266 by driving under the influence of a narcotic drug or any other self-administered intoxicant, the meaning of the statutory phrase is quite clear: the narcotic drug that the operator of the motor vehicle is "under the influence of" must be self-administered. Finding no merit in the Commonwealth's arguments, the judgment of the Court of Appeals is reversed and the defendant's conviction for violation of Code § 18.2-266 is dismissed.

070150 Howell v. Commonwealth 11/02/2007 It was an abuse of discretion for a trial court to require a defendant to pay for the installation of a security system as restitution for a burglary offense. Installation of a security system, while related to the burglary, was not caused by the offense as required by Code §§ 19.2-303, -305(B), and -305.1(A). The judgment of the Court of Appeals is reversed.

070376 Davis v. Johnson 11/02/2007 The record refutes a habeas corpus petitioner's claim that the trial court failed adequately to consider a supplemental submission, and no abuse of discretion is found in the circuit court's consideration of the remaining habeas claims after a belated appeal was granted to the petitioner on other points. The circuit court had discretion to determine, where the record was sufficient, whether the remaining habeas claims were sufficient as a matter of law, were procedurally barred, or should be dismissed without prejudice. There was no across-the-board requirement flowing from the grant of a belated appeal that the remaining claims be dismissed without prejudice. The judgment is affirmed.

070479 Commonwealth v. Juares 11/02/2007 A trial court did not err in denying motions for a mistrial and to set aside the verdict in a sexual battery prosecution based on an ex parte communication between the jury and court personnel during deliberations. The communication was not presumptively prejudicial as a matter of law because it did not concern matters pending before the jury, and the defendant failed to establish that he was prejudiced by the communication. The judgment of the Court of Appeals is reversed and the conviction is reinstated.

070515 Green v. Virginia State Bar 11/02/2007 (Revised 02/08/2008) In an attorney's appeals of right from the judgment of a three-judge panel convened pursuant to Code § 54.1-3935(B) suspending his license to practice law, and a separate Order of a Disciplinary Board suspending the license for an additional 45-day period, a number of procedural arguments are reviewed. No error is found in the panel's judgment imposing a 6-month suspension of the attorney's license to practice law, and no abuse of discretion is found in the Board's additional 45-day suspension.

071014 Judicial Inquiry and Review Comm'n v. Shull 11/02/2007 In considering a complaint filed by the Judicial Inquiry and Review Commission against a general district court judge alleging that he violated the Canons of Judicial Conduct by deciding a visitation issue based on coin tosses, requiring a litigant to repeatedly engage in humiliating conduct in open court, and initiating an improper ex parte telephone call regarding a disputed material matter, the record establishes by clear and convincing evidence that the judge disregarded the dignity of the litigants and the judicial process with respect to these proceedings. Based on these actions, as well as the judge's failure to heed the Commission’s prior advice, the judge is removed from office.

061348 Banks v. Mario Industries 09/14/2007 (Revised 02/08/2008) In consolidated appeals from judgments in favor of an established business claiming that certain former at-will employees and independent sales representatives conspired to harm its business via a newly-formed competing business, the trial court did not err in denying a motion to strike, submitting a breach of fiduciary duty claim to the jury, submitting a verdict form to the jury, instructing the jury, admitting a pre-resignation memorandum into evidence, or by refusing to set aside the punitive damages award. The judgment is affirmed.

061577 Nizan v. Wells Fargo Bank 09/14/2007 In a proceeding concerning the liability of a guarantor of a deed of trust note and involving application of the Uniform Commercial Code, the circuit court erred in denying him the opportunity to conduct discovery related to the defense of double recovery, in concluding that a prior settlement between the creditor and another financial institution could not, as a matter of law, constitute a double recovery for the damages the creditor sought from the guarantor, and in adopting the rationale that the defense of double recovery required a common liability instead of common damages. The judgment of the circuit court is reversed and the case is remanded for further proceedings.

061701 Pruitt v. Commonwealth 09/14/2007 The Court of Appeals erred in upholding the judgment of the circuit court convicting a defendant of concealing a weapon "about his person" in violation of Code § 18.2-308(A) where the evidence showed that he placed a pistol in a closed console of his vehicle after a traffic accident, got out of the car, and closed the driver's door behind him with the windows in the "up" position. Because the evidence was not sufficient to show that defendant concealed the pistol "about his person," the judgment of the Court of Appeals is reversed, the conviction is vacated, and the indictment is dismissed.

061719 Harris v. Commonwealth 09/14/2007 Because a "box cutter" is not a weapon described in Code § 18.2-308(A), or a weapon of "like kind," the evidence supporting defendant's felony conviction for carrying a concealed weapon after previously having been convicted of a felony was insufficient as a matter of law. The judgment of the Court of Appeals of Virginia is reversed and the conviction is vacated.

061728 Collins v. Shepherd 09/14/2007 In a civil case for personal injury damages in which the circuit court sua sponte entered an order of dismissal with prejudice pursuant to a local rule providing for the dismissal of cases not served upon the defendant within one year of filing, the local rule is held invalid because it conflicts with Code §§ 8.01-335 and, therefore, the circuit court was without authority to dismiss the case pursuant to that rule. The plaintiff's failure to challenge the dismissal order until after the expiration of the twenty-one day limitation period in Rule 1:1 is no bar to review because the subject order was void ab initio, subject to challenge at any time.

061737 Commonwealth Transp. Comm'r v. Target Corp. 09/14/2007 In a condemnation case that resulted in a judgment in favor of the owner of a high-volume discount retail store, the Commonwealth Transportation Commissioner failed to make a proffer sufficient to enable appellate review of a challenged evidentiary ruling and improperly attempted to raise new arguments for the first time on appeal. No reversible error is found and the judgment is affirmed on procedural grounds without addressing the substantive argument regarding the availability of damages for loss of real property visibility resulting from a governmental taking.

061797 Architectural Stone, LLC v. Wolcott Center, LLC 09/14/2007 In an unlawful detainer action, a district court's denial of a tenant's motion to set aside a default judgment pursuant to Code § 8.01-428 is not an appealable judgment or order under Code § 16.1-106, because the ruling did not dispose of the merits of the underlying possessory action. Rather, the merits of that action were disposed of in the default judgment, which was not appealed. The circuit court's dismissal of the tenant's appeal is affirmed.

061813 Heron v. Transportation Casualty Ins. Co. 09/14/2007 The trial court erred in ruling that insurance coverage under the MCS-90 liability endorsement required by the Federal Motor Carrier Act of 1980 only applies to accidents that occur in the course of transportation in interstate commerce and does not apply to purely intrastate activity. The contractual language contains no terms limiting coverage to the use or operation of a vehicle in interstate commerce, and such absent terms will not be read into the contract the parties made. The trial court's declaratory judgment order regarding the extent of coverage is reversed and the case is remanded to the trial court with directions.$ib

061909 McCabe v. Commonwealth 09/14/2007 Requiring a convicted sex offender to comply with post-incarceration periodic reregistration requirements that were amended after the offense and trial proceedings in her particular case does not violate her substantive due process or procedural due process rights, and her equal protection claim is moot. Therefore, the judgment of the trial court dismissing her complaint challenging application of the new reregistration requirements is affirmed.

061960 Vahdat v. Holland 09/14/2007 In a case arising from a vehicular accident, the circuit court did not err by giving a jury instruction on the "sudden emergency" doctrine containing no reference to the defendant’s evidentiary burden. The judgment of the circuit court is affirmed.

062012 Ace Temporaries v. City Council of Alexandria 09/14/2007 (Revised 09/25/2007) The portion of the judgment of the trial court holding that under Code § 15.2-2286(A)(7) the text of an ordinance amendment did not have to be in written format at the time of its initiation is affirmed. The portion of the judgment of the trial court holding that the procedural requirements of that Code provision were met when enacting the contested ordinance is reversed. The case is remanded for entry of an order consistent with this opinion.

062025 Morency v. Commonwealth 09/14/2007 A 2004 court order directing removal of the identifying information of a convicted violent sex offender from the Internet sex offender registry maintained by the State Police pursuant to Code § 9.1-909 was a procedural remedy that could be altered "at will" by the legislature. The order did not give the offender any vested or substantive interest preventing the reposting of his identifying information on the registry pursuant to a 2006 amendment to that Code section. Nor did the offender have an accrued right that was affected by the retroactive application of the 2006 amendment to Code § 9.1-909 for purposes of Code § 1-329. The judgment of the circuit court denying a petition by the offender to bar the posting is affirmed.

062051 Anderson v. Commonwealth 09/14/2007 (Revised 02/08/2008) The taking of a person's DNA upon arrest for certain crimes pursuant to Code § 19.2-310.2:1 does not result in an unconstitutional seizure in violation of the Fourth Amendment, and the chain of custody presumption afforded certificates of DNA analysis by Code § 19.2-187.01 is not testimonial in nature. No Confrontation Clause violation is found, and the judgment of the Court of Appeals upholding the defendant's convictions and sentences is affirmed.

062111 Miller v. Highland County 09/14/2007 In appeals challenging a county board of supervisors' approval of a conditional land use permit, it is held that the board is a required party defendant and that Code § 15.2-2232 does not create a third-party right of action to challenge a determination that a proposed land use is in “substantial accord” with a comprehensive plan. The judgment in the first appeal is reversed and the case dismissed for failure to timely join the board. In the other appeal, summary judgment for the permit applicant and the board is affirmed because plaintiffs, adjoining landowners, failed to assert a valid request for declaratory relief.

062152 Umstattd v. Centex Homes 09/14/2007 (Revised 02/08/2008) Mandamus was not an appropriate remedy to compel a local land development official to accept an application for a subdivision and a preliminary subdivision plat. Declaratory judgment proceedings afford an adequate remedy to decide the mixed questions of law and fact in controversy, and to resolve the legal disputes between the parties, providing guidance to the parties in their future courses of action. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

062164 John Crane, Inc. v. Jones 09/14/2007 (Revised 02/08/2008) In a products liability personal injury action involving exposure to asbestos, there was no error in the trial court's application of general maritime law rather than Virginia law, in its evidentiary rulings regarding the testimony of a defendant's employee and two of the defense expert witnesses, or in its refusal to set aside the jury verdict as excessive. The judgment of the trial court is affirmed.

062303 West Square, L.L.C. v. Communication Technologies 09/14/2007 (Revised 09/24/2007) In litigation concerning whether a commercial lease with an attorneys' fee and cost recovery provision had been breached, the circuit court did not abuse its discretion in determining that the amount of reasonable attorneys’ fees to award to the landlord as the prevailing party was less than the amount claimed, but did abuse its discretion by refusing to award certain claimed costs and expenses. The judgment is affirmed in part and reversed in part, and because the tenant is the prevailing party on appeal, the case is remanded to the circuit court for a determination of reasonable attorneys’ fees, costs and expenses incurred by the tenant on appeal.

062339 Fancher v. Fagella 09/14/2007 Injunctive relief is available under Virginia law to compel an adjoining landowner to remove a tree, the roots of which intrude into and cause significant, continuous and increasing structural damage to the plaintiff's property. The prior decision in Smith v. Holt, 174 Va. 213, 5 S.E.2d 492 (1939), is overruled insofar as it conditions a right of action upon the “noxious” nature of such a plant. Factors to be considered in fashioning an appropriate remedy in such cases are discussed. The circuit court's order denying injunctive relief is reversed and the case is remanded for further proceedings.

062430 Boots, Inc. v. Singh 09/14/2007 A provision in a contract for the sale of a business and certain associated real estate making a purchaser's cash deposit non-refundable under certain circumstances was a valid liquidated damages clause. The deposit was only 3.3% of the purchase price and the purchaser offered nothing to show that this amount would be out of all proportion to any probable loss incurred by the seller due to the purchaser's failure to perform. In addition, the purchaser failed to present evidence to establish that the liquidated damages clause was an unenforceable penalty. The judgment is reversed and the case is remanded for entry of an order directing payment of the deposit to the seller.

062460 Neighbors v. Commonwealth 09/14/2007 Under Code § 16.1-106 and Code § 8.01-677, which recognize the application of the “writ of error coram vobis” without a limitation to any court, the appeal of the denial of a petition for writ of coram vobis in the general district court is within the jurisdiction of a circuit court under Code § 17.1-513. It was thus error for a circuit court to determine that it lacked jurisdiction to hear an appeal from the judgment of the general district court in a coram vobis proceeding filed to challenge a prior guilty plea. However, the judgment of the circuit court denying a writ of coram vobis was correct. The judgment is affirmed in part, reversed in part, and final judgment is entered.

062502 King v. Cooley 09/14/2007 (Revised 09/24/2007) In a medical malpractice case, any error in the exclusion of testimony by a treating physician was harmless in light of the testimony of other witnesses and the scope of the proffered testimony. The admissibility of testimony under Code § 8.01-399(B) is addressed, and the judgment is affirmed.

062563 Fenter v. Norfolk Airport Authority 09/14/2007 In a dispute concerning the Virginia Freedom of Information Act, the trial court erred in finding that an airport authority subject to restrictions on the disclosure of sensitive security information imposed by Part 1520 of Title 49, C.F.R., complied with the Act's requirements despite failing to timely respond in the manner required by Code § 2.2-3704(B). The trial court's judgment is reversed and the case is remanded for a determination of reasonable costs and attorney's fees to be awarded to the petitioner under the Act.

061428 Muhammad v. Warden (ORDER) 06/12/2007 Upon consideration of a petition for a writ of habeas corpus, respondent's motion to dismiss the petition is granted. Petitioner's various claims alleging ineffective assistance of counsel are rejected as not satisfying the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and his remaining claims are rejected as lacking merit or as being either procedurally barred or improperly raised.

042743 Lewis v. Warden 06/08/2007 In a habeas corpus petition filed by a defendant who pled guilty to seven felonies, including two capital murders for hire, the petitioner has failed to demonstrate that but for trial counsel’s alleged failures there is a reasonable probability that she would have pled not guilty and that the result of the proceedings would have been different. The record does not undermine confidence in the outcome of the proceedings. Several claims are rejected in this published opinion. The remaining claims are rejected in an unpublished order also issued this date. The petition is dismissed. (See the UNPUBLISHED order in Lewis v. Warden dated June 8, 2007)

052568 Miles v. Commonwealth (ORDER) 06/08/2007 Upon considering the Commonwealth's petition for rehearing regarding the prior decision of this appeal reported in Miles v. Commonwealth, 272 Va. 302, 634 S.E.2d 330 (2007), the Court is of the opinion that its judgment reversing the judgment of the circuit court should not be set aside and should stand as issued. Accordingly, the Commonwealth's petition requesting that the defendant be classified as a sexually violent predator and subjected to civil commitment under the Sexually Violent Predators Act is dismissed with prejudice. See Record #052568, Miles v. Commonwealth, dated September 15, 2006

060280 Shelton v. Commonwealth 06/08/2007 (Revised 02/08/2008) In a proceeding under the Civil Commitment of Sexually Violent Predators Act, an inmate properly preserved the argument that his score on a test designed to predict sex offender recidivism fell below the minimum qualifying an inmate for further evaluation under the Act, and the circuit court erred in denying his motion to dismiss under then-applicable Code provisions. Undisputed evidence showed that the correctly computed score on the risk assessment instrument was lower than the minimum required by the statute. The circuit court’s judgment is reversed and the Commonwealth's petition is dismissed with prejudice.

060869 Haugen v. Shenandoah Valley Dept. of Social Services 06/08/2007 (Revised 02/08/2008) The Court of Appeals of Virginia did not err in ruling that a transcript or statement of facts was necessary in an appeal asserting that the circuit court erred by refusing to require an incarcerated parent's presence during a hearing to terminate her parental rights. However, the present record is sufficient to show that the circuit court abused its discretion by failing to grant a continuance to that parent, who participated by telephone, when federal prison officials terminated her participation before the evidence was completed. The judgment is reversed and the case is remanded.

061086 Jones v. Brandt 06/08/2007 The circuit court correctly found that an attorney-in-fact had the authority, by virtue of a durable power of attorney under which he acted, to change the beneficiary payable upon death of a certificate of deposit belonging to the decedent, his principal. Specific and general authorizations made in the power of attorney, when considered in concert, sufficiently expressed the decedent's intent to confer authority to make a certificate of deposit beneficiary change upon the attorney-in-fact. The judgment is affirmed.

061121 Ogunde v. Prison Health Services 06/08/2007 (Revised 02/08/2008) In a prisoner's action relating to medical treatment, a health services company selected via competitive bidding and certain of its personnel were independent contractors; thus the trial court erred in dismissing medical malpractice and gross negligence claims against them on sovereign immunity grounds. The court also erred in dismissing the inmate's claims for breach of contract and violation of Article I, § 9 of the Constitution of Virginia, and abused its discretion by denying leave to amend the complaint. However, there was no error in sustaining a demurrer to the inmate's claim for intentional infliction of emotional distress. The judgment is affirmed in part and reversed in part, and the case is remanded.

061218 Justus v. Commonwealth 06/08/2007 The circuit court abused its discretion in refusing to grant a defendant's motion to withdraw her guilty pleas before sentencing pursuant to Code § 19.2-296, and the Court of Appeals erred in affirming such refusal. Upon review of the record, it is held that the ends of justice would be served in permitting the defendant to withdraw her pleas, where the record shows that the motion was made in good faith and was premised upon a reasonable basis for defenses to the charges. The judgment of the Court of Appeals is reversed, the defendant's convictions are vacated, and the case is remanded.

061228 Stephens v. Commonwealth 06/08/2007 An inmate's petition to change his name for "religious purposes," filed under oath and complying with all of the requirements of Code § 8.01-217(B), set forth good cause for the change within the meaning of subsection (A) of the statute. Denial of the petition was therefore an abuse of discretion. The case is remanded to the circuit court for consideration of the petition in accord with the requirements of Code § 8.01-217(C).

061264 Baldwin v. Commonwealth 06/08/2007 In an attempted murder prosecution of a defendant who sped away from an officer standing close to his stopped vehicle, the facts were insufficient as a matter of law to prove a specific intent to kill. Thus the Commonwealth failed to prove a necessary element of the crime of attempted murder and the Court of Appeals erred in affirming the conviction for attempted murder. The judgment of the Court of Appeals is reversed and the indictment is dismissed.

061272 Adams Outdoor Advertising v. Board of Zoning Appeals 06/08/2007 In a dispute regarding zoning ordinance provisions applicable to a lawful nonconforming billboard, the circuit court correctly upheld a board of zoning appeals (BZA) determination that the billboard's owner had structurally altered and enlarged it by installing an electronic message board component and that, as a result, the ordinance required removal of the entire billboard. The modification increased the depth and weight of the billboard, and the BZA's determination did not involve application of erroneous principles of law and was not plainly wrong or in violation of the intent and purpose of the ordinance. The circuit court's judgment is affirmed.

061279 Peerless Insurance Co. v. County of Fairfax 06/08/2007 In a suit seeking to allocate financial responsibility between insurance companies and a county concerning a personal injury involving a storm water detention easement, the trial court did not err in sustaining the county's demurrers and plea in bar. Code § 15.2-970 applies to the easement, and there was no written contract between the county and the insurers as required by this statute. In addition, judicial estoppel did not apply regarding the county's factual positions as to the nature, ownership, and maintenance of the easement, and the breach of implied contract and breach of express contract claims were time-barred. The judgment is affirmed.

061296 Grandison v. Commonwealth 06/08/2007 (Revised 07/02/2007) In a cocaine possession prosecution, the trial court erred in refusing to suppress evidence obtained in an unlawful seizure when – in the absence of other circumstances indicating criminal activity – the officer removed a folded one-dollar bill from the defendant's pocket and opened it to reveal drugs. The Court of Appeals' judgment affirming the trial court disposition is reversed, and this case is remanded to the Court of Appeals with directions to remand the case to the trial court for a new trial if the Commonwealth be so advised.

061304 Mark Five Construction v. Castle Contractors 06/08/2007 In an indemnity action for the benefit of a contractor's insurer against an "intermediate contractor" arising from payments made to an injured worker, the circuit court did not err in sustaining the defendants' demurrer because a party can only seek indemnification under Code § 65.2-304 from persons who would have been liable to pay compensation under the Act and thus are subject to jurisdiction under the Act. Plaintiff did not allege that the defendant contracting company was such a person and, as a matter of law, cannot make that showing. The judgment of the circuit court is affirmed.

061317 BBF, Inc. v. Alstom Power, Inc. 06/08/2007 The claim that an arbitration award of liquidated damages violated the public policy of Virginia did not state a ground for vacating an arbitration award under the governing provisions of Code § 8.01-581.010. Therefore, the trial court did not err in refusing to vacate the arbitration award, and its judgment is affirmed.

061329 Committee of Petitioners v. City of Norfolk 06/08/2007 (Revised 06/22/2007) In proceedings relating to a referendum petition seeking a repeal of four city ordinances, the circuit court did not err in allowing a city and a redevelopment authority to intervene, but erred in concluding that the petition did not comply with the requirements of the referendum process. The petition was not invalid because it listed more than one challenged ordinance and separate petitions for each challenged ordinance were not required. That portion of the judgment holding that the petition was invalid is reversed and the case is remanded for further proceedings.

061339 Augusta Mutual Insurance Co. v. Mason 06/08/2007 In an insurance company's third-party action for damages arising out of an insurance agent’s allegedly fraudulent misrepresentations regarding the condition of a dwelling that the insurance company agreed to insure, because the only duties allegedly violated by the agent emanate exclusively from the parties’ preexisting contractual relationship, the insurer failed to properly state claims for either fraud in the inducement or breach of fiduciary duty. The circuit court’s judgment sustaining demurrers and dismissing the insurer’s third-party claim with prejudice is affirmed.

061368 Kopalchick v. Catholic Diocese of Richmond 06/08/2007 Because a church diocese is not a “natural person,” the statute of limitations accrual provisions relating to sexual abuse in Code § 8.01-249(6) have no effect upon the constitutionally protected right of the diocese to rely on the bar of the statute of limitations. The judgment of the circuit court dismissing a case involving alleged childhood sexual abuse decades before the suit was filed is affirmed.

061373 Settlement Funding v. Von Neumann-Lillie 06/08/2007 In a suit arising out of a loan transaction, the circuit court erred in refusing to apply the law of the jurisdiction stipulated in the choice of law provision of the loan contract and in its application of Virginia's usury law to the provisions of that contract. Since the trial court was provided with sufficient information regarding the substance of chosen state's law, it erred in refusing to apply that law in the construction of the loan agreement. Those portions of the judgments of the circuit court entering judgment in favor of the borrower based on her claim of usury under Code § 6.1-330.57 and awarding her damages, costs and attorneys' fees under that statute are reversed, and the case is remanded for further proceedings.

061410 Scott v. Walker 06/08/2007 In a suit to enforce a restrictive covenant against property being used for other than for residential purposes, in which the plaintiff homeowners sought to enjoin the short-term rental of a single-family dwelling in the same subdivision, the restrictive covenant is ambiguous and is construed in favor of the free use of land. The judgment of the circuit court enjoining the nightly and weekly rental of the property at issue is reversed and final judgment is entered for the lessors.

061456 McDonald v. Commonwealth 06/08/2007 In a constitutional challenge to Code § 18.2-361 prohibiting sodomy, as applied to an adult convicted of engaging in certain proscribed sexual activity on a private and consensual basis with two minor females, the 16 and 17-year-old victims were minors as defined by the Code § 1-207 and nothing in governing constitutional case law prohibits the application of the sodomy statute to conduct between adults and minors. The judgment of the Court of Appeals upholding the sodomy convictions is affirmed.

061458 Manassas Autocars v. Couch 06/08/2007 (Revised 02/08/2008) In a suit concerning the advertisement and sale of a new automobile, the trial court correctly ruled that a statute governing the permissible means of advertising the sale of new automobiles, Code § 46.2-1581(12)(a), prevails over a conflicting administrative regulation, and also did not err in submitting the purchasers' claims under the Virginia Consumer Protection Act, Code § 59.1-196 et seq., and the revocation of acceptance statute, Code § 8.2-608, to the jury. The trial court's judgment is affirmed.

061496 Brizzolara v. Sherwood Memorial Park 06/08/2007 (Revised 07/02/2007) In a corporate governance dispute presented on motions for summary judgment, the trial court erred in ruling that a majority of the directors of a Virginia nonstock corporation could not retire its debt by authorizing payment of outstanding debentures, but correctly ruled under Code § 13.1-842(D) and the language of a special meeting notice, that the members of record on the day before the effective date of the notice could vote at that meeting to remove all of the directors and elect an entirely new board. Aspects of summary judgment availability are also discussed. The judgment is reversed in part, affirmed in part, and remanded with directions.

061505 Jackson v. Hartig 06/08/2007 In an action for defamation brought by an unsuccessful candidate for election to the Virginia House of Delegates against the author and publisher of a newspaper editorial endorsing the candidate’s opponent, there are no material facts genuinely in dispute and the evidence in the record would not permit a reasonable fact finder to conclude, by clear and convincing evidence, that the defendants acted with actual malice. The judgment of the circuit court granting summary judgment for the defendants and dismissing the defamation action with prejudice is affirmed.

061506 Torloni v. Commonwealth 06/08/2007 In a personal injury suit against the Commonwealth, the trial court erred in reducing the ad damnum against the Commonwealth to the $100,000 recovery cap provided in the Virginia Tort Claims Act prior to verdict, and also erred in dismissing the plaintiff's claim against the Commonwealth pursuant to Code § 8.01-35.1 on the ground that she had previously recovered $100,000 against another tortfeasor. The judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

061559 Daly v. Shepherd 06/08/2007 Where certain residential real property was capable of co-occupation, in the absence of exclusion or ouster by an occupying co-tenant, the non-occupying co-tenant is not entitled to a ratable share of fair rental value in an action for partition. The judgment of the trial court is affirmed.

061911 Robinson v. Commonwealth 06/08/2007 Applying the rule of strict construction of penal laws, the driver of a vehicle is "involved" in an accident triggering an obligation to remain at the scene and provide information under Code § 46.2-894 only if there is physical contact between the driver's vehicle and another vehicle, person, or object, or if the defendant driver was a proximate cause of an accident. Since the present defendant's vehicle had no physical contact with that of the accident victim, and defendant was not a cause of the accident, the judgment of the Court of Appeals is reversed and the conviction for violation of Code § 46.2-894 is dismissed.

061936 Clifford v. Commonwealth (ORDER) 06/08/2007 In a sex crimes case, the Court of Appeals erred in ruling that the trial court should have granted a defense motion to permit cross-examination of the victim regarding a prior alleged false accusation of sexual molestation she had made against another. The defendant abandoned his argument supporting such cross examination by failing to assert it on appeal and also failed to object to the specific basis of the trial court's denial of his motion; thus, the theory presented in the argument which formed the basis of the Court of Appeals' ruling was not properly before that Court. The Court of Appeals' judgment is reversed and the case remanded to that court with directions.

062659 Gray v. Commonwealth 06/08/2007 (Revised 02/08/2008) In an appeal of defendant's multiple capital murder convictions and two death sentences arising from the stabbing, beating and arson killings of a couple and their two minor children in the course of a robbery, no reversible error is found in the judgment of the circuit court, and no reason is found to commute or set aside the sentences of death. The judgment of the circuit court, including the sentences of death, is affirmed.

052376 Williams & Connolly v. PETA 04/20/2007 In protracted civil litigation, the trial court did not abuse its discretion in imposing monetary sanctions against six attorneys and their law firms under Code § 8.01-271.1 for filing unfounded motions to vacate a rule to show cause and seeking recusal of the trial judge. Nor was there error in revoking the pro hac vice admission of one of those attorneys. The trial court's judgment is affirmed.

060120 Conley v. Commonwealth 04/20/2007 In an appeal arising from a prosecution for abduction with intent to defile and forcible sodomy, the Court of Appeals correctly held that the trial court did not err in allowing a licensed clinical social worker to testify as an expert witness regarding her diagnosis that the crime victim suffered from post-traumatic stress disorder. The judgment of the Court of Appeals is affirmed.

060369 Moses v. Southwestern Va. Transit Mgmt. Co. 04/20/2007 In a personal injury lawsuit, the circuit court erred in setting aside a jury verdict for the plaintiff and entering judgment for the defendants on the basis that the plaintiff's decedent was guilty of contributory negligence as a matter of law. The issue of proximate causation relating to contributory negligence was properly submitted to the jury for resolution, and reasonable minds could differ as to the conclusions to be drawn from the evidence presented. Consequently it was reversible error for the circuit court to set aside the jury verdict for the plaintiff. The judgment of the circuit court is reversed and final judgment is entered for the plaintiff.

060473 Young v. Commonwealth 04/20/2007 The Court of Appeals erred in remanding a robbery case for a new sentencing proceeding under Code § 19.2-295.1 – rather than ordering a new trial on all issues – where the reversible error lay in the erroneous admission of evidence of other crimes during the guilt phase of a defendant’s trial. The judgment is reversed, and the case is remanded to the Court of Appeals for further remand to the circuit court for a new trial on the robbery indictment, if the Commonwealth be so advised.

060858 Philip Morris v. The Chesapeake Bay Foundation 04/20/2007 Code § 62.1-44.29 provides for representational standing, by an appropriate entity, to seek judicial review of a case decision by the State Water Control Board, as well as for individual standing. In the present case the petition by a foundation dedicated to preservation of the Chesapeake Bay adequately establishes, for purposes of surviving demurrers filed by a manufacturer and the Commonwealth, its representational and individual standing to seek judicial review of the Board’s decision to renew a wastewater discharge permit for the manufacturer's facility. The judgment of the Court of Appeals is affirmed.

060966 Reilly v. Shepherd 04/20/2007 In a malicious prosecution action against a police officer who investigated an armed robbery, and caused plaintiff to be arrested, the circuit court erred in denying the defendant’s motion to strike the plaintiff’s evidence. While the victim was ultimately unable to identify plaintiff as the perpetrator of the crime, and the case was dismissed by nolle prosequi, the evidence was insufficient, as a matter of law, to warrant submission of the issue of the lack of probable cause to the jury. The judgment of the circuit court is reversed and final judgment is entered in favor of the defendant.

061000 Isbell v. Commercial Investment Associates 04/20/2007 The circuit court correctly dismissed a tenant's personal injury suit against a landlord for failure to maintain the premises in a safe condition. The comprehensive scheme of landlord and tenant contractual rights and remedies in the Residential Landlord and Tenant Act does not create a statutory personal injury cause of action for a tenant since the General Assembly did not plainly manifest an intention therein to abrogate the common law rule that a landlord is not liable in tort for a tenant’s personal injuries caused by the landlord’s failure to repair premises under the tenant’s control and possession. The judgment of the circuit court is affirmed.

061015 Commonwealth v. Miller 04/20/2007 In a proceeding under the Sexually Violent Predators Act, Code §§ 37.2-900 et seq., the circuit court erred in permitting testimony from a particular expert witness for the prisoner, who was qualified in the diagnosis and assessment of sex offenders, but was not shown to be skilled in the treatment of such individuals, as plainly required by the Act. The court further erred in concluding that the Commonwealth failed to prove by clear and convincing evidence that the respondent is a sexually violent predator as defined by the Act. The judgment is reversed, final judgment is entered in favor of the Commonwealth, and the case is remanded for further proceedings under the Act.

061028 Alexandria City Council v. Mirant Potomac River 04/20/2007 (Revised 06/22/2007) The circuit court did not err in declaring an amendment to a city's zoning ordinance invalid and reinstating two auxiliary special use permits issued to a power company that operates a coal-burning electricity generating plant. The amendment violated Code § 15.2-2307 because it impaired an established vested right to operate the plant, and the revocation of the two auxiliary special use permits pursuant to the amendment was unlawful. The judgment of the circuit court is affirmed.

061042 Washington v. Commonwealth 04/20/2007 Defendant's conviction for obstruction of justice in violation of Code § 18.2-460(C) is reversed because the Commonwealth failed to prove that, at the time of the defendant's acts, the law enforcement officer to whom the acts were directed was discharging duties related to a violation of or conspiracy to violate one of the various felony offenses listed in the statute. The judgment of the Court of Appeals of Virginia is reversed and the indictment is dismissed.

061050 Baldwin v. McConnell 04/20/2007 In an assault and battery case, the trial court abused its discretion in ordering remittitur of a jury award of compensatory and punitive damages when, taking the evidence in the light most favorable to plaintiff, the jury's award of compensatory damages was not excessive as a matter of law, and an independent review of the $100,000 punitive damages award shows that it is not shocking to the conscience or otherwise inappropriate in light of defendant's egregious conduct, and hence was not excessive as a matter of law. The judgment is reversed and final judgment is entered for plaintiff.

061085 John C. Holland Enterprises v. Southeastern Pub. Service Auth. 04/20/2007 The trial court did not err in determining that Code § 15.2-5121(A) did not apply to a refuse collection and disposal authority created by a group of municipalities under the Virginia Water and Waste Authorities Act so as to require the constituent municipalities to make the findings mandated therein before the authority could begin disposing of a new type of refuse at its established landfill. Code § 15.2-5121(A) applies only to the initial decision to operate a "system" of refuse collection as defined under the Act and the service of handling a new type of refuse does not constitute the operation of a "system." The trial court's judgment is affirmed.

061106 APAC-Atlantic, Inc. v. General Insurance Co. 04/20/2007 Under the Virginia Public Procurement Act, actions on payment bonds relating to general construction projects under contracts awarded by the Virginia Department of Transportation must be brought within the one-year limitations period contained in Code § 2.2-4341(C). Accordingly, where a plaintiff subcontractor finished work on certain roadway improvement projects more than one year before filing the present litigation, the circuit court did not err in granting the defendant surety company's motion for summary judgment and entering judgment in its favor. The judgment of the circuit court is affirmed.

061138 Budd v. Punyanitya 04/20/2007 In a medical malpractice case, the trial court correctly applied Code § 8.01-401.1 to bar a party from introducing certain statements contained in published medical literature because the statements had not been provided to the opposing party 30 days prior to trial. The judgment is affirmed.

061168 Select Management Resources v. The Runnymede Corp. 04/20/2007 Under a commercial lease in which the tenant covenanted not to make any alterations or improvements without prior written permission of the landlord, painting the exterior of the leased structure with a color scheme that will cost over $18,000 to return to pre-lease condition at the end of the tenancy constituted an alteration requiring the landlord's prior permission. The judgment of the trial court denying the tenant's request for an injunction is affirmed.

061183 Phillips v. Mazyck 04/20/2007 The circuit court erred in sustaining a plea in bar and ordering the parties to arbitrate a plaintiff’s personal injury claim because the record failed to establish that the parties mutually assented to the terms of a purported arbitration agreement. The judgment is reversed and the case is remanded for a trial on the merits.

061211 Jordan v. Commonwealth 04/20/2007 Because the evidence was insufficient to sustain an accused's convictions of possession with the intent to distribute a Schedule I controlled substance in violation of Code § 18.2-248 and felonious obstruction of justice in violation of Code § 18.2-460(C), the judgment of the Court of Appeals of Virginia is reversed and the indictments are dismissed.

061216 Seymour v. City of Alexandria 04/20/2007 In litigation concerning a municipality's consideration of a re-subdivision application involving a residential neighborhood lot, the trial court correctly ruled that the controlling ordinance provision did not permit the municipality to consider improvements intended for the affected property, but erred in affirming the municipality's disapproval of the application. The trial court's judgment is affirmed in part and reversed in part, and the case is remanded for entry of an appropriate order.

061230 Reifman v. Gorsen (ORDER) 04/20/2007 There is no reversible error in the judgment of the Circuit Court in a medical malpractice action in which plaintiff's counsel did not move the court to admit a particular exhibit until after the evidence was closed, the parties had rested, an alternate juror had been excused, the court had instructed the jury, and the jury had retired to consider its verdict. Even if the exhibit might properly have been admitted into evidence, the trial court was given no timely opportunity to do so. A motion to admit evidence after the evidence has been closed comes too late. The judgment is affirmed.

061237 In Re: Moseley 04/20/2007 A circuit court had jurisdiction to revoke an attorney's privilege to practice before it, and courts are not required to list with specificity the factual basis for issuing a rule to show cause why such privilege should not be revoked. Thus, an attorney's contrary arguments are deemed meritless, and where the record shows that the attorney received adequate notice of the conduct that the circuit court would consider in deciding whether to revoke his privilege to practice before that court, no error is found in the judgment revoking such privilege. The judgment is affirmed.

061361 Fitzgerald v. Commonwealth 04/20/2007 In a prosecution for taking of indecent liberties with a minor by a person in a custodial or supervisory relationship, and charges of object sexual penetration, the trial court did not err in permitting a licensed professional counselor to testify as an expert witness that the alleged victim suffered from post-traumatic stress disorder. The Court of Appeals' judgment ruling that the trial court did not abuse its discretion in permitting the witness to testify is affirmed.

061785 Petrosinelli v. PETA 04/20/2007 In protracted civil litigation, the trial court abused its discretion in adjudging a foreign attorney to be in civil contempt under Code § 18.2-456 and imposing monetary sanctions against him based on his issuance of a subpoena to an out-of-state witness in alleged violation of prior court discovery orders. The orders contained no language specifically prohibiting issuance of the subject subpoena; thus its issuance could not be an act of contempt as a matter of law. The judgment of the trial court is reversed, the sanctions award based thereon is vacated, and final judgment is entered in the foreign attorney's favor.

062013 Martin v. Howard 04/20/2007 A trial court's order of exhumation rendered pursuant to Code § 32.1-286(C) in order to facilitate DNA testing by a woman claiming to be the daughter of the decedent was not in error. The General Assembly expressly provided that the need of a qualified illegitimate child to prove parentage for the purpose of inheritance is sufficient cause for exhumation. The order is affirmed and the case is remanded to the trial court for further proceedings.

062085 Teleguz v. Commonwealth 04/20/2007 In an appeal from defendant's conviction for capital murder for hire, and imposition of the death sentence, after review of numerous assignments of error and completion of the statutorily-mandated review of the imposition of the death penalty, no error is found, and no grounds for setting aside or commuting the sentence of death are found. The judgment of the trial court is affirmed.

052501 Winston v. Warden (Unpublished Order) 03/07/2007 Upon consideration of a petition for a writ of habeas corpus, respondent's motion to dismiss the petition is granted. Petitioner's various claims alleging ineffective assistance of counsel are rejected as not satisfying the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and his remaining claims are rejected as lacking merit or as being either procedurally barred or improperly raised.

051094 Taboada v. Daly Seven (Order) 03/02/2007 Upon considering a petition for rehearing regarding the prior decision of this appeal reported at Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428 (2006), the Court is of the opinion that its judgment should not be set aside. Accordingly, the judgment of the trial court sustaining the defendant innkeeper's demurrer to the plaintiff guest's claim under Code § 35.1-28 is affirmed, but its judgment sustaining the innkeeper's demurrer to the guest's common law negligence claim is reversed and the case is remanded for a trial on the merits thereof. (See the Opinion, Taboada v. Daly Seven, Inc., dated March 3, 2006)

060363 Johnson v. Commonwealth 03/02/2007 In an appeal raising various issues concerning the Court of Appeals’ consideration and dismissal of a petition for a writ of actual innocence based on non-biological evidence under Code §§ 19.2-327.10 through -327.14, involving recantation of evidence provided at a murder trial by a co-defendant, the Court of Appeals did not err in concluding that the petitioner failed to meet his statutory burden of proof. The judgment of the Court of Appeals dismissing the petition is affirmed.

060400 Raytheon Technical Services Co. v. Hyland 03/02/2007 In a defamation case, the judgment must be reversed because three of the five allegedly actionable statements are expressions of opinion, not fact, and therefore, should not have been submitted to the jury. Because the record does not reflect which statement or statements formed the basis of the jury verdict and the other grounds for reversal raised by the defendants are not dispositive in the posture of this case, the verdict is set aside and the case is remanded for further proceedings.

060554 Switzer v. Switzer 03/02/2007 The Court of Appeals abused its discretion in summarily dismissing divorce and custody appeals brought of right by an indigent pro se litigant based on its prior order barring him from filing future appeals until he paid a $500 judgment entered against him pursuant to Code § 8.01-271.1 as a sanction for filing a frivolous appeal in another custody case involving his son. The order was not narrowly tailored to correct the problem of frivolous filings, and summary dismissal was an unduly severe sanction depriving him of the statutory right to consideration of the appeals. The judgments are reversed and the cases are remanded.

060607 Commonwealth v. Epps 03/02/2007 Criminal contempt victimizes the court as an institution, as opposed to individual members thereof. Thus, in the appeal of the conviction of a city sheriff for criminal contempt and an order finding him in civil contempt, the Court of Appeals did not err in holding that a circuit court judge was not a "victim" of contempt of court as contemplated by Code § 19.2-271 and that she was therefore incompetent to testify in the contempt trial. The Court of Appeals' judgment is affirmed.

060638 Carpitcher v. Commonwealth 03/02/2007 The Court of Appeals’ dismissal of a petition for a writ of actual innocence based on non-biological evidence, in which a petitioner sought relief based on recantation evidence provided by the victim of the crimes who had given contrary testimony at petitioner’s original trial, correctly applied the statutory provisions governing such petitions, Code §§ 19.2-327.10 through -327.14. There was no abuse of discretion by the Court of Appeals in evaluating the evidence presented, and the judgment is affirmed.

060689 Belton v. Crudup 03/02/2007 In rejecting a petition to establish a parent-child relationship with a decedent whose estate is pending, the circuit court did not err in applying the requirements set forth in Code § 64.1-5.1(4) for a child born out of wedlock to share in the distribution of a putative parent’s estate. The sole act of filing a list of heirs identifying petitioner as decedent’s child did not toll the period during which an action seeking adjudication of the existence of the parent-child relationship was required to have been filed, and the petitioner cannot, as a matter of law, share in the settlement of the estate because no such action was commenced within one year of the decedent's death. The judgment is affirmed.

060717 W. R. Hall v. Hampton Roads Sanitation District 03/02/2007 Contractual indemnification provisions are not void as against public policy insofar as they entitle an indemnitee to be reimbursed by an indemnitor for costs and expenses incurred in the defense of a personal injury claim by a third party. Accordingly, the trial court correctly ruled that the indemnity provisions in a construction contract were enforceable. The judgment of the trial court is affirmed.

060762 Hamlet v. Hayes 03/02/2007 In a suit for specific performance of a shareholders' agreement relating to purchase of shares in a closely held corporation, the trial court erred in sustaining the defendants' demurrers based on the view that, as a matter of law, the plaintiffs' bill of complaint failed to allege the essential elements of a breach of contract suit entitling them to the relief of specific performance. The judgment is reversed and the case is remanded for further proceedings.

060913 Trustees v. Bd. of Zoning, City of Norfolk 03/02/2007 In a zoning dispute, the circuit court did not err in affirming a zoning administrator's conclusion, upheld by the board of zoning appeals, that the term "adjacent" used in an ordinance provision permitting a zoning lot to be comprised of multiple adjacent lots for purposes of determining maximum buildable area, did not include two of plaintiffs' lots situated across from one another but separated by a public street. This interpretation is neither plainly wrong nor in violation of the purpose and intent of the ordinance as a whole, and correct principles of law were applied in adopting it. The judgment is affirmed.

060927 C. Givens Brothers, L.L.C. v. Town of Blacksburg (Order) 03/02/2007 The circuit court did not err in finding that a limited liability company's petition for a writ of mandamus seeking to compel a municipality's construction of sewer lines to its property, which the municipality had previously annexed, was barred by the statute of limitations. Prior case law does not limit the application of a statute of limitations to such a petition on the basis of the relief sought therein, and since the limited liability company's cause of action accrued, at the latest date, in November of 1985, regardless of which statute of limitations applies in the case at bar, the petition, filed approximately 20 years later, was not timely.

060934 Parikh v. Family Care Center, Inc. 03/02/2007 Judgment for the plaintiff medical care center, a non-professional corporation, in a suit to enforce a covenant not to compete given by a physician it formerly employed is reversed because a non-professional corporation cannot engage in the practice of medicine in the Commonwealth. As a result, plaintiff has no legitimate business interest in enforcing the covenant not to compete against the physician following the termination of his employment. The judgment is reversed and final judgment is entered in favor of the physician.

060935 Lambert v. Javed 03/02/2007 In a wrongful death and breach of warranty action arising from medical treatment of the decedent, the trial court correctly dismissed the plaintiff's case because of a prior final order dismissing the same cause of action with prejudice based on a plea of the statute of limitations. The dismissal with prejudice of a prior case on the basis of the statute of limitations was an adjudication on a substantive element of the cause of action, thereby directly supporting the doctrine of res judicata. The judgment is affirmed.

060951 Allstate Insurance Co. v. Gauthier 03/02/2007 In an insurance coverage dispute concerning the insurer's denial of a loss claim for the sinking of a boat, the trial court's findings that the loss was caused by the negligence of the insured in failing to close the boat's seacock valve, and that such negligence did not fall within the exclusions to the policy, are neither plainly wrong nor without evidence to support them. Accordingly, pursuant to Code § 8.01-680, the trial court's judgment will not be disturbed, and it is therefore affirmed.

060959 Doherty v. Aleck 03/02/2007 In a malpractice case against a podiatrist, the evidence was clearly sufficient to make a jury issue of whether the surgery performed upon the plaintiff was a proximate cause of the amputation of his toe. The jury’s verdict was supported by credible evidence, and the trial court erred in setting the verdict aside. Issues concerning testimony to a reasonable degree of medical probability, waiver of objections, and proximate causation are discussed. The jury’s verdict is reinstated, and final judgment is entered in favor of plaintiff.

060989 McDowell v. Commonwealth 03/02/2007 In prosecutions for grand larceny under Code §§ 18.2-95 and 18.2-108.01(A), the trial court did not err in admitting into evidence a computer report generated by a retailer's loss prevention officer after using its automatic inventory database system that specified the items taken in a shoplifting incident, their quantities, and their selling prices. Under the circumstances, the report qualified as a business record under the Shopbook Rule. The Court of Appeals' judgment approving the trial court’s ruling admitting the report and upholding the convictions is affirmed.

061277 Nusbaum v. Berlin 03/02/2007 On appeal from the imposition of a monetary sanction against an attorney for misconduct during a jury trial consisting of an award of attorneys’ fees and costs to the opposing parties, a finding that the attorney was guilty of criminal contempt of court in violation of Code § 18.2-456(1), and imposition of a fine of $250 pursuant to Code § 18.2-457, the circuit court’s judgment is reversed in part and vacated, because a trial court’s inherent authority to discipline an attorney does not include the power to assess attorneys’ fees and costs incurred by an adverse party. The judgment convicting the attorney of contempt of court and imposing the fine is affirmed.

061302 Estes Express Lines v. Chopper Express, Inc. 03/02/2007 An indemnity provision in a vehicle lease agreement is not void as against public policy insofar as it would entitle a party to indemnification for liability incurred as the result of personal injuries caused by its own negligence. Thus, the trial court erred in ruling that such an indemnity provision is unenforceable, and in sustaining a demurrer for that reason. The judgment is reversed and the case is remanded for further proceedings.

051769 Ford Motor Co. v. Benitez 01/12/2007 The trial court did not abuse its discretion in imposing monetary sanctions against an attorney under Code § 8.01-271.1 where, under an objective standard of reasonableness, the attorney had knowledge at the time of signing a pleading, formed after reasonable inquiry, that there was no factual support for several affirmative defenses asserted therein. The trial court's judgment is affirmed.

052137 Doe v. Terry 01/12/2007 In a personal injury action, the circumstantial evidence adduced was insufficient to establish by a preponderance of the evidence that an unknown driver threw an object that struck and injured plaintiff as he was performing maintenance work inside an interstate highway tunnel. Thus, there was insufficient evidence of John Doe's negligence to permit plaintiff to recover against the defendant insurer. The jury verdict in the plaintiff’s favor is reversed and final judgment is entered in John Doe's favor.

052263 West v. Director, Dept. of Corrections 01/12/2007 A writ of habeas corpus is granted on a claim for denial of the Sixth Amendment right to effective assistance of counsel based on the failure of petitioner's trial attorney to raise a double jeopardy challenge to convictions of both aggravated involuntary manslaughter and involuntary manslaughter, and the "concurrent sentencing doctrine" is rejected as a basis for denying petitioner relief from the latter conviction. The petitioner's common law involuntary manslaughter conviction and sentence are vacated, and the remainder of the petition is dismissed.

052378 Almy v. Grisham 01/12/2007 (Revised 01/26/2007) The trial court erred in dismissing a claim for intentional infliction of emotional distress upon demurrer by several defendants, where the plaintiff had alleged facts sufficient to satisfy the elements of such claim with respect to these defendants. However, a plaintiff may not assert a cause of action in Virginia for civil conspiracy to intentionally inflict severe emotional distress; thus, the trial court did not err in dismissing this claim with respect to all of the defendants. The judgment is affirmed in part and reversed in part, and the case is remanded.

060085 Parker v. Warren 01/12/2007 In this personal injury action, the trial court erred in concluding that Code § 8.01-229(B)(2)(b) contained a "scrivener's error" and could not be applied as written. There is no "scrivener's error" in this Code provision, and it does not apply to a motion for judgment filed against a defendant who later dies. The judgment is reversed and the case is remanded for further proceedings.

060205 Mona v. Cranston (ORDER) 01/12/2007 Under former law, a general district court judgment became unenforceable after the judgment creditor failed to file for extension of its effect by motion in the general district court within 10 years of the date on which the judgment was rendered. Docketing the judgment in circuit court was not sufficient to render it a judgment of the circuit court under the mandatory requirements of the then-applicable statutory provisions. The judgment appealed from is reversed and final judgment is entered in favor of the judgment debtor.

060232 Conyers v. Martial Arts World 01/12/2007 The judgment of the circuit court that a particular martial arts instruction program for children, which qualifies as a “child day program” generally subject to licensure by the Virginia Department of Social Services, is exempt from licensure is reversed because of an erroneous interpretation of the “come and go” exemption set forth in Code § 63.2-1715(A)(2). Because a determination is required whether the subject program actually complied with its written policy that children may enter and leave its premises without permission or supervision in order to determine whether the exemption from licensure under Code § 63.2-1715(A)(2) applies, the case is remanded.

060237 Cline v. Berg 01/12/2007 In a suit for an injunction requiring removal of a 32-foot high, 200-foot long fence constructed of utility poles and plastic wrap which allegedly interfered unreasonably with plaintiff's use and enjoyment of his real property, the circuit court abused its discretion in granting injunctive relief to the plaintiff because it failed to apply the "clean hands" doctrine. For that reason, the circuit court’s judgment is reversed and final judgment is entered for the defendants.

060252 Farrakhan v. Commonwealth 01/12/2007 The trial court erred in finding a criminal defendant guilty of possession of a concealed weapon described in Virginia Code § 18.2-308(A), having previously been convicted of a felony offense. The kitchen knife the defendant possessed was not a "weapon" because it was neither designed for fighting purposes nor commonly understood to be a "weapon." The judgment of the Court of Appeals is reversed and the defendant's conviction is vacated.

060417 Robinson v. Commonwealth 01/12/2007 In the prosecution of a husband and wife on multiple counts of contributing to the delinquency of a minor under Code § 18.2-371 arising from a party held at their home at which alcohol was served to their underage son and his guests, the trial court did not err in denying the defendants' motions to suppress evidence obtained as a result of a warrantless search and seizure occurring within the curtilage of their home. Exigent circumstances existed, the investigating officer had probable cause to justify his entry into the curtilage, and he did not exceed the scope of implied consent to such entry. The Court of Appeals' judgment upholding the trial court's judgment is affirmed.

060469 Crocker v. Riverside Brick & Supply Co. 01/12/2007 A truck driver employed by a shipping company engaged by a supplier of masonry products to deliver stone to a customer is not barred by the Virginia Workers' Compensation Act from bringing a personal injury claim against the customer since this defendant is an "other party" within the meaning of the Act. The shipping company's driver was not the defendant's statutory employee because, even though she endeavored to assist in unloading the pallets of stone, the unloading of the freight was the sole responsibility of the defendant. The judgment is reversed, and the case is remanded for further proceedings.

060482 Ellison v. Commonwealth 01/12/2007 In a civil proceeding under Code § 37.2-900 et seq., the Commonwealth alleged that an inmate previously convicted of a sexual crime was a sexually violent predator. Under the doctrine of collateral estoppel and the constitutional protections against double jeopardy, the trial court did not err by admitting into evidence in the civil trial evidence from a rape victim in a criminal case where the defendant had been acquitted. The judgment is affirmed.

060518 Westlake Properties v. Westlake Pointe Ass'n 01/12/2007 In a property owners' association's action against the corporate developer of a townhome community and the construction contractor, no error or abuse of discretion is found in the trial court's rulings allowing the association to proceed on a damage claim involving nonparty property owners, finding that the association had standing, concluding that individual property owners were not necessary parties, denying a mistrial arising from impeachment of a witness, or instructing the jury concerning proximate causation and damages. The judgment is affirmed.

060647 Sullivan v. Robertson Drug Co. 01/12/2007 (Revised 01/26/2007) In a physician's contribution action against a pharmacist and his employer following the physician's settlement of a malpractice claim, the trial court erred in giving jury instructions suggesting that the pharmacist could not be found liable for the whole, indivisible injury caused by prescribed medications he had dispensed, permitting the jury to apportion damages based on relative degrees of the parties' negligence, and by submitting the reasonableness of the settlement to the jury where the pharmacist failed to present evidence that it was unreasonable or excessive. The judgment is reversed and the case is remanded for a new trial on all issues.

060672 Keswick Club v. County of Albemarle 01/12/2007 Considering an application under Code § 58.1-3984 for correction of real property tax assessments, the circuit court erred in employing the standard of review applicable when assessments are entitled to a presumption of validity, requiring proof of manifest error or that controlling evidence was disregarded. An assessment based on a single market value determination approach, when others are not considered and properly rejected, is not entitled to a presumption of validity. The judgment is reversed and the case remanded for application of the less stringent standard of review requiring the taxpayer to prove only that the assessments were erroneous.

060682 Holmes v. Levine 01/12/2007 (Revised 03/27/2007) In a wrongful-death action based on alleged medical malpractice by a radiologist, the trial court erred in refusing to give the plaintiff’s requested jury instruction on the issue of proximate causation. The trial court did not err either in overruling plaintiff’s objection that certain testimony of a treating physician did not satisfy the requirements of Code § 8.01-399(B) or in sustaining an objection to testimony elicited on cross-examination of a medical expert witness concerning the cause of death listed in a death certificate. The judgment is reversed in part and affirmed in part, and the case is remanded for a new trial on all issues.

060684 Hughes v. Doe 01/12/2007 (Revised 02/01/2007) In a suit alleging that an employer was liable for the negligence of its employee under a respondeat superior theory, dismissal of a claim against the employee with prejudice on procedural grounds terminates the plaintiff's ability to hold the employee liable for any alleged negligence, but does not amount to an affirmative finding of the employee's non-negligence. Absent such a finding, the employer is not exonerated under the derivative liability principle and such dismissal does not preclude further proceedings against the employer. The judgment of the trial court dismissing the case is reversed and the case is remanded for further proceedings.

060704 Harmon v. Sadjadi 01/12/2007 A foreign personal representative not qualified in Virginia lacked standing to file a proceeding in Virginia arising from alleged personal injury suffered by the decedent here. Neither her initial suit filed in Virginia, nor her foreign qualification, triggered the one-year period for commencement of suits under Code § 8.01-229(B)(1). Instead, that period began to run upon her later qualification as personal representative in Virginia. The present case was filed within one year thereof; therefore the trial court erred in sustaining the defendants’ plea of the statute of limitations. The judgment is reversed and the case is remanded for further proceedings.

060713 Bailey v. Turnbow 01/12/2007 In an action by an executrix of a decedent's estate to invalidate a deed of gift for real property made shortly before death, the evidence was insufficient to establish a confidential relationship between the decedent and the donee and thus no presumption of undue influence arose. Without such a presumption the chancellor's decision setting the deed aside on the ground that it had been procured by undue influence was unsupported by the evidence. The decree is reversed and final judgment is entered.

060755 McGuire v. Hodges 01/12/2007 In a wrongful death action, the trial court erred in setting aside a jury verdict for the plaintiff where circumstantial evidence was sufficient to support the decision reached by the jury that defendant's negligence was probably, rather than merely possibly, a proximate cause of a child's death. The judgment of the trial court is reversed, the jury's verdict is reinstated, and final judgment is entered for the plaintiff.

060767 Afzall v. Commonwealth 01/12/2007 In a declaratory judgment action by an injured minor seeking a determination that the Commonwealth’s lien arising from Medicaid benefits provided in his treatment should be reduced by the legal fees and costs he incurred in obtaining the settlement of a negligence case against a third-party tortfeasor for causing the injuries, the bar of sovereign immunity applies because the Commonwealth has not waived that defense in the context of a declaratory judgment action within the purview of Code § 8.01-66.9. Thus the trial court was without jurisdiction to adjudicate this claim. The appeal is dismissed and final judgment is entered in favor of the Commonwealth.

060774 Commonwealth v. Burns 01/12/2007 In a wrongful death case in which the negligence of Virginia Department of Transportation personnel working on the shoulder of a public highway allegedly caused the death of a motorcyclist, the public duty doctrine does not bar a claim of negligence or gross negligence against a public employee. The judgment of the circuit court is affirmed upon interlocutory appeal, and the case is remanded.

060788 Ward v. Commonwealth 01/12/2007 The trial court did not err in refusing to grant defendant’s motion to suppress evidence obtained pursuant to an anticipatory search warrant issued for a physical address other than the address shown on a suspicious parcel found to contain illegal drugs. None of the circumstances recognized in United States v. Leon, 468 U.S. 897 (1984), for excluding application of the good-faith exception to the exclusionary rule apply under the facts presented. The Court of Appeals' judgment approving the trial court's judgment is affirmed.

060878 Kuznicki v. Mason 01/12/2007 In a suit by condominium unit owners involving a limited common element, under Code §§ 55-79.53(A) and -79.80(B) only a condominium unit owners’ association has standing to sue for claims related to common elements and limited common elements. As a result, the circuit court erred by failing to address the standing issue asserted by the defendants, but nevertheless properly dismissed the plaintiff's complaint; therefore, the judgment is affirmed.

051737 White v. Commonwealth 11/03/2006 In a murder and assault case, the trial court’s grant of the Commonwealth’s motion in limine barring defense testimony in support of an insanity defense was not error. The defendant's proffered evidence was insufficient to establish a prima facie defense of insanity because the "settled insanity" theory relied upon is only permitted when prolonged, habitual, and chronic alcohol or drug abuse has created a mental disease or defect. The judgment is affirmed.

052242 Gunn v. Commonwealth 11/03/2006 The judgment of the Court of Appeals upholding a conviction under Code § 18.2-112 is affirmed, where the evidence was sufficient to establish that the defendant, a public school teacher, had possession of funds that came into her custody by virtue of her official position as an employee of a city school system and that she knowingly misused or misappropriated these funds to her own use.

052371 Baker v. PoolService Company 11/03/2006 In a wrongful death action, the trial court did not err in sustaining a swimming pool service company's demurrer because plaintiff alleged duties that are not recognized in Virginia law. Similarly, there was no error in granting a pool products manufacturer's plea in bar because the action was filed after the expiration of the five-year period of repose applicable to ordinary building materials under Code § 8.01-250. The judgments dismissing the claims against both parties are affirmed.

052411 Workman v. Commonwealth 11/03/2006 In a murder and firearms prosecution, certain evidence discovered by the defendant after trial and before sentencing was exculpatory in nature and should have been disclosed by the Commonwealth prior to trial. The trial court and the Court of Appeals erred in denying a new trial because of Brady violations. The judgment of the Court of Appeals and the trial court is reversed, and the voluntary manslaughter conviction is reversed. The case is remanded for retrial if the Commonwealth be so advised for an offense no greater than voluntary manslaughter.

052476 Johnson v. DeBusk Farm, Inc. 11/03/2006 (Revised 11/17/2006) The trial court did not err in finding the existence of a prescriptive easement across real property, and in finding that the owner of the servient tract had notice of such easement when she purchased the tract. The judgment is affirmed.

052526 1924 Leonard Road v. Van Roekel 11/03/2006 In suits for partition of residential property and imposition of a resulting trust, the circuit court erred in certain evidentiary rulings but not in others. Issues involving the hearsay rule and Virginia's "Dead Man's Statute," Code § 8.01-397, the business records exception to the hearsay rule, the admission of testimony relating to the intent of contracting parties, application of the doctrines of estoppel by deed and laches, and the "second marriage" presumption are discussed. The judgment is affirmed in part and reversed in part and the case is remanded for a new trial.

052533 Jones v. Commonwealth 11/03/2006 In a prosecution for felony child neglect in violation of Code § 18.2-371.1(B)(1), the evidence was sufficient to prove that the defendant willfully failed to provide care for her child in a manner so gross, wanton, and culpable as to show a reckless disregard for the child’s life, where the defendant routinely sold illegal drugs out of her apartment, permitted her unattended child access to those drugs, and exposed him to the dangers inherent in the drug trade. The judgment of the Court of Appeals upholding the conviction is affirmed.

052556 DiMaio v. Commonwealth 11/03/2006 In considering a former corporate employee's convictions for computer fraud in violation of Code § 18.2-152.3 and larceny in violation of Code § 18.2-111 based on unauthorized removal of employee data files, custom document forms and templates, and signed covenants not to compete, the Commonwealth presented sufficient evidence of the value of the files, forms and signed documents to support the convictions. The defendant's convictions are affirmed.

052600 Parson v. Carroll 11/03/2006 In a defamation case, the circuit court erred in granting summary judgment for the defendant where the material factual allegations of plaintiff's motion for judgment remained in dispute. Plaintiff did not, by entering an Alford plea to criminal charges arising out of the allegedly defamatory statements, make any concessions of fact which, through application of the doctrine of judicial estoppel, raised a legal bar to his action. The judgment is reversed and the case is remanded for further proceedings.

052609 Haley v. Haley 11/03/2006 In elective share litigation pursued by the surviving spouse of a Virginia decedent, the trial court did not err in finding that the spouse failed to strictly comply with the requirements of Code § 64.1-13 by filing a properly acknowledged claim for an elective share of her deceased husband’s estate. A subsequent attempt to file a properly acknowledged claim was outside the six-month time period required by the Code and therefore also failed as a matter of law. The judgment of the trial court sustaining a demurrer to her claim is affirmed.

052619 Moore v. Commonwealth 11/03/2006 In a drug prosecution, violation of the requirement under Code § 19.2-74 that police issue a summons to a person detained for a Class 1 misdemeanor and forthwith release him from custody upon his promise to appear at a specified time and place, rendered the fruits of a later search of the individual unconstitutional. The Fourth Amendment forbids expansion of the search incident to arrest doctrine to include a search incident to citation. The judgment of the Court of Appeals upholding his conviction is reversed and the charges are dismissed.

052629 Harrell v. Harrell 11/03/2006 In a divorce proceeding where each party made certain claims, the Court of Appeals erred in affirming the trial court's reservation of spousal support to a party who had not lodged a valid pleading requesting it. The judgment of the Court of Appeals is reversed.

052635 Tronfeld v. Nationwide Mutual Insurance Co. 11/03/2006 In a defamation action by an attorney against an insurance company and its employee, the trial court erred in sustaining a demurrer asserting that the statements sued upon were opinion that could not form the basis for a cause of action. The defamatory statements alleged had a provably false factual connotation, and could prejudice plaintiff in his profession, thus supporting an action for defamation. The judgment is reversed and the case is remanded for further proceedings.

052647 Collins v. First Union National Bank 11/03/2006 In an action against a bank by designated beneficiaries of accounts set up by other persons as part of a fraudulent investment scheme, because the beneficiaries had not contracted with the bank and had no signatory authority over the accounts, the plaintiffs were not “customers” of the bank as defined by the Uniform Commercial Code, Code § 8.4-104(a)(5), and the bank had not assumed duties to protect their interests. The judgment dismissing their claims is affirmed.

052654 Morris v. Commonwealth 11/03/2006 In a prosecution for felonious child neglect in violation of Code § 18.2-371.1(B), as a matter of law the accused mother's conduct was not a willful act or omission in the care of her children that was so gross, wanton, and culpable as to show a reckless disregard for their lives. Therefore, the evidence was insufficient to sustain her convictions. The judgment of the Court of Appeals is reversed and the charges are dismissed.

052679 Castle v. Lester 11/03/2006 In a medical-malpractice claim arising from the birth of a neurologically impaired child, the defendant doctor's argument for overruling prior settled law is rejected. Thus the trial court did not err in instructing the jury that injury to an unborn child is physical injury to the mother, or in admitting evidence on the mother’s claim for damages for mental suffering due to the birth of her impaired son, including the nature of the child’s injuries, his daily care needs and life expectancy, as well as the mother’s depression and loss of income. Denial of a mistrial after inadvertent improper testimony was not an abuse of discretion. The judgment is affirmed.

060034 Gillespie v. Commonwealth 11/03/2006 In the bifurcated sentencing proceeding of a non-capital felony, the trial court erred in failing to redact sentencing information from the defendant's record of convictions. The judgment of the Court of Appeals is reversed and the case is remanded.

060043 Bethel Investment Co. v. City of Hampton 11/03/2006 In an inverse condemnation and property damage action, the defendant city failed to carry its burden of proof on affirmative defenses based on Code § 8.01-222 and the applicable statutes of limitations, and the trial court erred in failing to accord plaintiff a jury hearing on the issue of when its claims accrued and in ruling that its claims were barred. The judgment is reversed and the case is remanded for trial, but on remand, defendant is not entitled to relitigate its claim that the plaintiff's claims accrued more than five years prior to the filing of the motion for judgment.

060053 Uninsured Employer's Fund v. Gabriel 11/03/2006 In a claim for workers' compensation benefits, the Court of Appeals erred in its judgment that the Workers’ Compensation Commission had jurisdiction over this case in light of the number of employees in the company involved. The judgment of the Court of Appeals is reversed in part and vacated in part, and final judgment is entered for the Uninsured Employer's Fund.

060162 Walker v. Commonwealth 11/03/2006 The evidence was sufficient to support the defendant's convictions for abduction in violation of Code § 18.2-47 and use of a firearm in the commission of abduction in violation of Code § 18.2-53.1, where the defendant used a firearm to detain and disarm an automobile repossessor who had begun to tow one of his vehicles away. Since the defendant was acquitted of robbery charges stemming from this incident, the "incidental detention doctrine" does not apply. The judgment of the Court of Appeals upholding the convictions is affirmed.

060263 Bristol v. Commonwealth 11/03/2006 (Revised 11/03/2006) In a criminal case based on defendant’s alleged operation of a motor vehicle while under the influence of alcohol, the circuit court erred in admitting a certificate of blood analysis because the defendant was not arrested within three hours of the offenses as required by the implied consent provisions of Code § 18.2-268.2. Neither the exigent circumstances doctrine, nor the doctrine of harmless error supports another result. The judgment is reversed and the case is remanded.

060267 Molina v. Commonwealth 11/03/2006 In a prosecution for rape and forcible sodomy, the trial court did not err in granting an instruction permitting the jury to find that the rape was committed through the mental incapacity of the victim and did not err in finding the evidence sufficient to support the defendant's convictions. The evidence sufficiently indicated that defendant knew or should have known of the victim's mental incapacity at the time of the sexual acts constituting rape, and that he used force in the commission of sodomy. The defendant's convictions are affirmed.

060392 Riverside Hospital, Inc. v. Johnson 11/03/2006 (Revised 11/03/2006) In a personal injury suit brought against a hospital and its nurse by a decedent's executor, alleging failure to take proper precautions against falls by an elderly patient, evidentiary objections to certain statistical evidence were not preserved and the trial court did not err in admitting certain nurse orientation and training materials into evidence as background for expert opinion, along with certain internal quality control reports of a factual nature about patient care incidents kept in the normal course of business of the treatment facility. There was also no error in ruling on the form of certain expert testimony, and no reversible error in the jury instructions. The judgment is affirmed.

060558 Green v. Virginia State Bar 11/03/2006 In remanded proceedings concerning imposition of an appropriate sanction for an attorney's violation of Rules 1.3(a) and 8.4(b) of the Virginia Rules of Professional Conduct, the Virginia State Bar Disciplinary Board did not err in conducting the proceedings via telephonic conference call, but abused its discretion in refusing to admit certain evidence in mitigation that the attorney sought to introduce pursuant to Part 6, § IV, Para. 13(I)(2)(f)(2) of the Rules of Court. The sanction order is reversed, the sanction is vacated, and the case is remanded for further proceedings to consider and impose an appropriate sanction.

060216 Dupree v. Commonwealth (ORDER) 10/27/2006 In a prosecution for malicious wounding and use of a firearm in the commission of a felony, it was error under the common law and Code § 8.01-403 to preclude the defendant from impeaching his own witness, who testified differently than expected at the trial. The judgment of the Court of Appeals is reversed, and the case is remanded.

042716 Powell v. Warden 09/15/2006 In a habeas corpus proceeding, the petitioner did not meet the burden of showing a reasonable probability that the result of his capital murder trial would have been different absent the admission into evidence of a form containing an inaccuracy pertaining to his criminal history, where there was overwhelming support for the jury's sentencing decision in the record and its finding that the crime was outrageously or wantonly vile was wholly unaffected by the evidence at issue. Thus, petitioner did not demonstrate that he had suffered prejudice within the meaning of Strickland v. Washington, 466 U.S. 668 (1984). The petition for a writ of habeas corpus is dismissed. Exhibit (See the unpublished order on Petition for a Writ of Habeas Corpus dated November 8, 2005.)

051386 Hodges v. Commonwealth 09/15/2006 (Revised 11/07/2006) In a first-degree murder case, the Court of Appeals erred in one portion of its holding that the trial court did not commit reversible error by admitting into evidence certain statements made by the victim prior to her death. The judgment of the Court of Appeals is reversed and the case is remanded for a new trial if the Commonwealth be so advised.

051825 Herr v. Wheeler 09/15/2006 The trial court erred in granting a "sudden emergency" instruction in a vehicular accident case where the defendant's vehicle "hydroplaned" on water during a heavy rainstorm. The judgment is reversed and the case is remanded for a new trial.

051875 Washington v. Commonwealth 09/15/2006 The Court of Appeals did not err in affirming the judgment convicting defendant of malicious wounding after having been twice convicted of a violent felony and one count of stabbing, cutting or wounding another person in the commission of a felony, in a case where the trial judge allowed the Commonwealth to present evidence of defendant's two prior felony convictions during the guilt phase of the trial subject to appropriate instructions. The judgment is affirmed.

051890 Stevens v. Commonwealth 09/15/2006 Any error in defendant's prosecution for aggravated involuntary manslaughter under Code § 18.2-36.1 arising from evidence as to certain blood alcohol tests, and the alleged deprivation of his right to have a particular blood sample independently tested, was harmless beyond a reasonable doubt. Further, the evidence was sufficient to support his conviction, which is affirmed.

052094 Barber v. VistaRMS, Inc. 09/15/2006 In a petition for writ of mandamus filed by a former shareholder of an employee-owned closely-held corporation, the trial court did not err in sustaining the defendant corporation's demurrer. Petitioner’s ownership of stock in the corporation ceased, by operation of written agreements, upon the termination of his employment; thus, petitioner was not a shareholder and lacked standing to pursue the petition at the time of filing. The trial court's judgment sustaining the demurrer and dismissing the amended petition with prejudice is affirmed.

052128 Rawls v. Commonwealth 09/15/2006 In a prosecution for possession of a firearm by a convicted felon under Code § 18.2-308.2(A), an amended warrant charging that the prior conviction was for a violent felony under Code § 17.2-805 did not alter the nature or character of the offense. The Court of Appeals correctly determined that the trial court did not err in allowing the trial to proceed on the amended warrant. The effect of defendant's purported waiver of indictment, sufficiency of the evidence of possession to support the conviction, and refusal of a mistrial based on an excessive sentence in the jury's initial verdict, are also discussed. The judgment is affirmed.

052139 Renkey v. County Bd. of Arlington County 09/15/2006 In this zoning dispute, the circuit court erred by treating certain language in a county zoning ordinance as a preamble and not an operative part of the ordinance. The language in question sets out mandatory eligibility criteria for a certain zoning classification, and the county acted in direct violation of the ordinance by re-zoning certain property without first complying with the eligibility criteria. The re-zoning was void and of no effect. The circuit court’s judgment is reversed and the case is remanded for further proceedings.

052224 The Country Vintner, Inc. v. Louis Latour, Inc. 09/15/2006 In a civil case involving wholesale wine distributorships, it was error to dismiss with prejudice certain common law and statutory conspiracy claims as preempted by the Wine Franchise Act. While the trial court had jurisdiction over the claims and the Alcoholic Beverage Control Board did not, certain issues in the case are more appropriately resolved by the Board under the doctrine of primary jurisdiction. The trial court should stay judicial proceedings until the agency has an opportunity to resolve matters within its special competence and any applicable appeals have concluded. The judgment is reversed and the case remanded for further proceedings.

052231 Janvier v. Arminio 09/15/2006 In a medical malpractice action, an order granting the plaintiff a second nonsuit without prejudice pursuant to Code § 8.01-380(B) was not void ab initio due to a failure to give notice to the named defendants, who had not yet been served. Since the order was not void, upon a proper finding that the second nonsuit order did not result from fraud, the trial court had no authority to vacate the second nonsuit order after it became final 21 days following entry. The action, re-filed within six months of the entry of the second nonsuit order, was timely. Rulings of the trial court are reversed in part and the case is remanded for further proceedings.

052240 Gowin v. Granite Depot 09/15/2006 In a derivative suit brought by a member of a limited liability company whose membership was terminated due to nonpayment of a promissory note, the trial court correctly held that the manager's waiver of payment did not bind the company and that amendment of the articles of organization to permit such termination did not breach any fiduciary duty. However, since the note was a demand note and no demand for payment had been made, the membership at issue could not be terminated for nonpayment, and plaintiff therefore remains a member of the company. The judgment is affirmed in part and reversed in part, and the case is remanded for further proceedings.

052272 Davis v. Commonwealth 09/15/2006 The judgment of the Court of Appeals of Virginia, which denied the defendant's petition for appeal from his conviction in a bench trial for object sexual penetration pursuant to Code § 18.2-67.2(A) over his contention that the evidence was insufficient to establish the necessary element of penetration owing to the fact that the victim, a law enforcement officer, was wearing pants and underwear at the time of the contact, is affirmed.

052317 Bio-Medical Applications of VA v. Coston 09/15/2006 In a medical malpractice case, after briefing and oral argument of defendant's motion for summary judgment concerning the absence of any expert witness supporting plaintiff's claims, the trial judge announced a ruling for the defendant and invited further comments of counsel. Plaintiff's attempt to take a nonsuit at that time came too late. The trial court's ruling allowing a nonsuit is reversed and the case is remanded for further proceedings.

052333 White Dog Publishing v. Culpeper Bd. of Sup. 09/15/2006 In considering certain newspaper publishers' application for a writ of mandamus, the circuit court erred in finding that a county board of supervisors did not violate the Virginia Freedom of Information Act (FOIA) by going into a closed session at a particular meeting and erred in failing to award reasonable costs and attorney's fees under the Act. Because the purpose of the closed session was not the formation or modifications of a procurement contract, it did not fall within FOIA's statutory public contract exemption under Code § 2.2-3711(A)(30), and special circumstances did not make an award of fees and costs unjust. The judgment is reversed and the case is remanded.

052506 Hoffman Family, L.L.C. v. City of Alexandria 09/15/2006 The circuit court correctly concluded that a city's condemnation of land to relocate a box culvert for its storm water management system, deemed necessary by the city to permit private development of an adjoining parcel in a manner consistent with the city's comprehensive plan, was for a public use contemplated under Code § 15.2-2109. The fact that such condemnation benefits an adjoining property owner is irrelevant, since the condemned property will be used exclusively as part of a public utility system built and controlled by the city. The judgment is affirmed.

052508 Dreher v. Budget Rent-A-Car System, Inc. 09/15/2006 A New York Vehicle and Traffic Law provision imposing vicarious liability on a vehicle owner for injuries caused by a permissive operator's negligence concerns a matter of contract. Comity principles and Virginia's choice of law rules thus require its application in Virginia litigation arising out of an accident occurring in Virginia involving a vehicle rented under a contract entered in New York. As a result, the circuit court’s judgment applying Virginia law to hold that two vehicle rental companies would have no vicarious liability based on their ownership of the vehicle is reversed. The case is remanded for further proceedings.

052537 Today Homes, Inc. v. Williams 09/15/2006 In a case involving alleged arrogation of a corporate opportunity by two officers of the plaintiff corporation, the judgment of the trial court is affirmed in part, and reversed in part, and the case is remanded. Issues involving the corporate opportunity doctrine and the fiduciary duties of officers of a corporation are discussed.

052568 Miles v. Commonwealth 09/15/2006 When strictly construed, the provisions of Code § 37.2-903(C), a part of the Civil Commitment of Sexually Violent Predators Act, Code §§ 37.2-900 through -919, require that an inmate evaluated with a designated testing instrument receive, as a condition precedent, a particular numerical score in order for the Commonwealth to initiate proceedings to have him declared a sexually violent predator under the Act. The judgment is reversed and the Commonwealth's petition is dismissed with prejudice. See Record No. 052568, Miles v. Commonwealth (Order) dated June 8, 2007

060248 Barrett v. Virginia State Bar 09/15/2006 Concerning charges of attorney misconduct, that part of a judgment of a three-judge court holding that certain actions taken by an attorney during his divorce proceeding violated Rules 4.4, 8.4(b), 3.1 and 3.4 of the Rules of Professional Conduct is affirmed, but that part holding that his actions regarding representation of a personal injury client and an ensuing legal malpractice action violated Rules 1.1 and 1.3 is reversed. The sanction imposed is vacated and the case remanded for consideration of an appropriate sanction for the affirmed violations.

051094 Taboada v. Daly Seven, Inc. 08/11/2006 A Virginia-licensed attorney violated Code § 8.01-271.1 by filing a petition for rehearing on behalf of a client containing intemperate language critical of the Court's opinion issued in the underlying appeal that, measured under an objective standard of reasonableness, did not assist the Court in determining whether to grant or deny the petition. Thus the attorney interposed the petition for an improper purpose under the statute, specifically, to harass the Court, and an appropriate sanction is entered against him. The client is granted leave to file another petition, if it so desires. See Record No. 051094, Taboada v. Daly Seven, Inc. dated March 2, 2007

051228 Eads v. Clark 06/08/2006 The trial court did not err in refusing to allow a licensed attorney to intervene in a suit regarding the disposition of real property that he filed while retained as counsel for the guardian of the landowner, who was incompetent. The attorney's claim for fees earned and costs expended prior to termination of his representation, filed as a lien, was not germane to the proceedings after his termination. The judgment is affirmed.

051335 Commonwealth Transp. Comm'r v. Windsor Industries 06/08/2006 The chancellor correctly determined that real property formerly owned by a now-dissolved corporation and acquired by the Commonwealth for an anticipated transportation project under Code § 33.1-90 should be reconveyed to the corporation's successor-in-interest where timely demand was made therefor. A possibility of reverter exists under the statute in favor of the owner of real property so acquired, which ripens into an enforceable right to compel reconveyance upon, inter alia, publication of the Commonwealth's intent to publicly dispose of the property. The judgment requiring such reconveyance is affirmed.

051613 Saks Fifth Avenue v. James, Ltd. 06/08/2006 In a suit for breach of fiduciary duty and violation of Code §§ 18.2-499 and -500 prohibiting conspiracy to injure another’s business, involving the employment of one of plaintiff's clothing salesmen by a competing business, the trial court erred in denying defense motions to strike the plaintiff’s evidence of damages and in adopting the plaintiff's calculation of damages, where plaintiff failed to show that its damages were proximately caused by the defendants' actions. The judgment of the trial court is reversed.

051701 Alcoy v. Valley Nursing Homes, Inc. 06/08/2006 Causes of action for negligence as well as sexual assault and battery based on the failure of nursing home personnel to ensure a resident's safety are not subject to the provisions of the Medical Malpractice Act, Code § 8.01-581.1 through -581.20:1, because such claims are not “based on health care or professional services rendered, or which should have been rendered,” within the meaning of the Act. The circuit court’s contrary judgment is reversed and the case is remanded for further proceedings.

051708 Norfolk Redevelopment v. C and C Real Estate 06/08/2006 Concerning allegedly blighted property condemned and acquired pursuant to a housing authority's conservation plan, the circuit court erred in concluding that the condemnation violated due process, but did not err in holding that Code § 36-49.2 does not prohibit property acquisition for industrial purposes, that certain language in the plan was overbroad and did not allow acquisition under Code § 36-50.1(4), and that the plan required notice and an opportunity to correct deficiencies to be provided prior to condemnation. Because such notice was not provided, dismissal of the condemnation proceeding was not erroneous. The judgment is affirmed.

051745 Burroughs v. Keffer 06/08/2006 In a personal injury action arising from a motor vehicle accident, reasonable persons could differ regarding the issue of whether, based on the evidence, the driver of a car that collided with a flatbed trailer parked in one lane of an undivided highway was guilty of contributory negligence. Thus, that issue was a question of fact for the jury, and the trial court erred in setting aside the jury's verdict in favor of the driver on the ground that the plaintiff was contributorily negligent as a matter of law. The judgment of the trial court is reversed and final judgment is entered in accordance with the jury's verdict.

051798 Huaman v. Aquino 06/08/2006 A testator “owned” a personal injury action at the time of her death, as a chose in action that survived her death pursuant to the law of the District of Columbia. Thus the judgment of the trial court, under which proceeds obtained from the settlement should pass under the personal property clause of her will, is affirmed.

051852 Shutler v. Augusta Health Care for Women 06/08/2006 In a patient's medical negligence suit against a physician and his employer based on vicarious liability, the trial court erred in granting the employer's motion for summary judgment. Dismissal of claims against the physician with prejudice did not amount to an adjudication on the merits in the physician's favor and, therefore, did not operate to exonerate the employer as a matter of law, where the plain language of the dismissal order permitted the patient's vicarious liability claims to proceed against the employer. The trial court’s judgment is reversed and the case is remanded for further proceedings.

051859 Grubb v. Grubb 06/08/2006 In consolidated appeals relating to a decedent's estate, involving charges that the executor improperly transferred numerous certificates of deposit to his sole ownership and committed constructive or actual fraud, that part of the chancellor’s judgment holding that a necessary party was absent with respect to claims involving a particular certificate of deposit is reversed. All remaining parts of the chancellor’s judgment in this appeal, involving other assets, the executor's duty to reimburse the estate, award of prejudgment interest, and refusal to award costs and fees under Rule 4:12(c), are affirmed. The case is remanded for further proceedings.

051882 Bland v. Virginia State University 06/08/2006 In Virginia Freedom of Information Act litigation concerning whether an agency properly redacted personnel information appearing in certain reports, the trial court erred in failing to grant a former employee's motion to require production of unredacted versions of the reports and make them part of the record under seal. Exclusion of evidence considered by a trial court in reaching its decision, when properly tendered for the record, impedes appellate review and constitutes an abuse of discretion. The trial court's judgment is reversed and the case is remanded for further proceedings.

051891 Bitar v. Rahman 06/08/2006 In a medical malpractice action, although plaintiff’s only medical expert witness did not state his opinion to a reasonable degree of medical probability, defendant did not make a contemporaneous objection thereto and defendant’s motion to strike the expert’s testimony, made at the close of plaintiff’s evidence, was not timely. Thus the objection was waived and the jury properly considered the expert’s opinion. Plaintiff presented sufficient evidence that defendant breached the standard of care and proximately caused her injury, and the judgment in favor of the plaintiff is affirmed.

051968 Wilson v. Commonwealth 06/08/2006 In a case charging possession with intent to distribute drugs, there is no merit in defendant's challenge to the sufficiency of the evidence, but the judgments of conviction are vacated and the case remanded. Several of the trial judge's actions, including his refusal to consider an unwritten plea agreement reached on the day of trial, demonstrated an appearance of partiality and raise concerns about the public perception of his fairness. Therefore, the trial judge abused his discretion in refusing to recuse himself.

051990 Judicial Inquiry & Review Comm'n v. Elliott 06/08/2006 Upon consideration of a complaint filed by the Judicial Inquiry and Review Commission of Virginia presenting seven charges of misconduct by a sitting judge, it is held that the complaint is not properly before the Court. Because the judge had previously accepted the Commission's oral offer to enter into a detailed supervision agreement in lieu of having a formal complaint filed against him, he had begun to comply with the terms of such offer, and he had not violated those terms, the agreement was binding and the judge was entitled to its benefit. The complaint is dismissed without prejudice.

052025 Kone v. Wilson 06/08/2006 An administrator of a decedent's estate who is not licensed to practice law in Virginia may not file a wrongful death action pro se. Any such filing is invalid and of no legal effect, and does not toll the applicable statute of limitations. Thus, the circuit court did not err in dismissing such an action with prejudice, where a valid pleading signed by counsel was not filed within six months after the administrator, by and through Virginia counsel, had nonsuited timely and properly filed separate wrongful death actions against three healthcare providers. The circuit court judgment is affirmed.

052060 Martin v. Commonwealth 06/08/2006 The Court of Appeals correctly determined that, as used in Code § 18.2-67.10(6)(b), "force" includes actual and constructive force, and that constructive force includes engaging in proscribed conduct with a victim who is under the legal age of consent. It also correctly concluded that proof that a victim is under the legal age of consent also constitutes proof of force necessary to establish aggravated sexual battery under Code § 18.2-67.3(A)(1). The judgment sustaining the conviction of the 14-year-old defendant for aggravated sexual battery of an eight-year-old child under Code § 18.2-67.3 based on the use of constructive force is affirmed.

052079 Lynch v. Commonwealth 06/08/2006 The Court of Appeals correctly affirmed a defendant's conviction on murder, armed robbery, burglary and firearms charges, rejecting challenges focusing on the admission of certain "adoptive admissions" against the defendant. The judgment is affirmed.

052348 Atkins v. Commonwealth 06/08/2006 In a capital murder case previously appealed, the reinstatement of a death sentence after a jury in the current phase of proceedings found the defendant not mentally retarded is reversed because the circuit court erred admitting testimony from one of the Commonwealth’s expert witnesses and by informing the venire that another jury had already sentenced the defendant to death. The case is remanded for a new proceeding to determine whether defendant is mentally retarded.

060138 Commonwealth v. South (ORDER) 06/08/2006 In reversing a conviction of felony assault and battery of law enforcement officers under Code § 18.2-57(C), the Court of Appeals erred in remanding the case for a new trial instead of simply remanding it for a new sentencing proceeding on the lesser-included offense of misdemeanor assault and battery for which the defendant was validly convicted. That part of the judgment of the Court of Appeals remanding the case for a new trial is reversed, and the case is remanded to the Court of Appeals with instruction to remand to the trial court for a new sentencing proceeding on the lesser-included misdemeanor assault and battery conviction.

042077 Kondaurov v. Kerdasha 04/21/2006 (Revised 04/24/2006) In a personal injury case arising from a vehicular accident involving plaintiff and her dog, the trial court did not err in admitting certain evidence regarding the dog or in refusing a motion to strike pending decision on appropriate jury instructions. However, it erred in giving a duplicative damages instruction tendered by the plaintiff and in refusing to grant a limiting instruction barring recovery of damages for emotional distress arising from plaintiff's concerns about her dog. The judgment is reversed and remanded for further proceedings on the issue of damages. See Record #042077, Kondaurov v. Kerdasha, dated September 16, 2005 opinion was withdrawn

050212 Ogunde v. Commonwealth 04/21/2006 The trial court erred in ruling that an inmate's negligence action brought against the Commonwealth under the Virginia Tort Claims Act, Code §§ 8.01-195.1 to -195.9, is governed by Code § 8.01-243.2, the statute of limitations applicable to persons confined in state correctional facilities, and not by Code § 8.01-195.7, the statute of limitations for actions brought under the Act. The inmate statute deals with all classes of litigation filed by inmates, while the Act applies specifically to tort actions against the Commonwealth. The judgment is reversed and the case is remanded for further proceedings.

050722 Jakabcin v. Town of Front Royal 04/21/2006 A quorum of a governing body's members must be physically present to convene a valid meeting and take any action other than adjourning the meeting to a later date, even though some members may be disqualified from acting on matters pursuant to the State and Local Government Conflict of Interests Act, Code §§ 2.2-3100 et seq. Thus, the trial court erred in ruling that actions taken on rezoning and special use applications by members of a local governing body were valid when less than a quorum was physically present at the meetings when those actions were taken. The judgment is reversed and final judgment is entered declaring the actions invalid.

050909 Roe v. Commonwealth 04/21/2006 An order dismissing criminal charges, entered where the Commonwealth failed to procure the presence of a defendant who was in the custody of federal officials, and where it was not prepared to proceed with its case against the defendant, was with prejudice and not in the nature of a nolle prosequi. The circuit court had denied the Commonwealth's motion for a continuance, and the Commonwealth neglected to request a nolle prosequi. The judgment of the Court of Appeals is reversed and the indictments are dismissed.

051044 Spencer v. City of Norfolk 04/21/2006 (Revised 04/21/2006) In a reckless driving case, the Supreme Court has jurisdiction to hear the appeal where a term of incarceration was imposed, and then suspended, by the trial court. On the merits, the evidence was insufficient to sustain a conviction where the record did not demonstrate that the defendant was speeding so as to endanger a person, disregarded the consequences of her acts, or was indifferent to the safety of others. The judgment is reversed and the case is dismissed.

051243 Montgomery v. McDaniel 04/21/2006 (Revised 04/24/2006) The trial court did not err in sustaining an employer's demurrer to a former employee's motion for judgment asserting a claim for abuse of process. Although the former employee had clearly alleged a malicious or malevolent intent in the employer's institution of process against her, she failed to allege an act in the employer's use of the process that was not proper in the regular conduct of the proceeding, and the absence of such an allegation is fatal to her claim. The judgment is affirmed.

051349 Lewis v. Lewis 04/21/2006 An interlocutory decree in a divorce case, dismissing a cross-bill for annulment, did not adjudicate the principles of a cause and therefore was not appealable. The Court of Appeals lacked subject matter jurisdiction to entertain the appeal. Its judgment is reversed and the appeal is dismissed.

051378 Nobrega v. Commonwealth 04/21/2006 In its consideration of a defendant's convictions under Code § 18.2-61 and Code § 18.2-370.1 for rape of a child under age thirteen and sexual abuse of the same child over whom he maintained a custodial or supervisory relationship, the Court of Appeals correctly held that the trial court had no authority to order the complaining witness to undergo a psychiatric or psychological examination and that the evidence was sufficient to support the convictions. The judgment of the Court of Appeals upholding the convictions is affirmed.

051410 Campbell v. Harmon 04/21/2006 (Revised 04/21/2006) A personal representative has standing under Code § 8.01-25 to maintain a cause of action existing at the time of the decedent’s death, which includes the right to compel an accounting under Code § 8.01-31 relating to a trust of which the decedent was a beneficiary, and the trial court erred in ruling otherwise. However, because the decedent did not have a cause of action during his lifetime relating to tangible personal property removed from his residence after his death, the trial court did not err in concluding that the executor lacked standing to seek an accounting for that property. The judgment is affirmed in part and reversed in part, and the case is remanded.

051451 Restaurant Co. v. United Leasing Corp. 04/21/2006 (Revised 04/24/2006) A debtor's assumption of a lease pursuant to a confirmed Chapter 11 plan does not create a new lease, and bankruptcy proceedings do not toll the statute of limitations applicable to actions against the debtor's sureties. Accordingly, the statute of limitations as to a surety's obligations begins to run from the date of the debtor's initial default and does not commence anew upon plan confirmation. Thus, the trial court erred in finding that a suit against a debtor's sureties was timely filed, where the initial default occurred outside of the limitations period. The trial court judgment is reversed and final judgment is entered in the sureties' favor.

051478 Orndorff v. Commonwealth 04/21/2006 In a prosecution for second degree murder in the shooting death of the defendant's husband, the Court of Appeals did not err in approving the circuit court’s determination that the defendant was competent to stand trial in the sentencing phase of the proceedings, but erred in approving portions of the judgment relating to the reasonable diligence and materiality standards for an award of a new trial based on after-discovered evidence of a mental disorder allegedly supporting an insanity defense. The Court of Appeals' judgment is affirmed in part and reversed in part, and the case is remanded for further proceedings.

051543 Eagle Harbor v. Isle of Wight County 04/21/2006 (Revised 04/24/2006) In a suit by developers seeking declaratory and compensatory relief relating to utility connection fees imposed by a county under certain ordinances, where it was not alleged that the fees represented an improper revenue raising device amounting to an illegal tax, impact fee, or special assessment so as to be void, the trial court did not err in refusing to apply a "reasonable correlation" test. Applying the "fairly debatable" standard, the trial court did not err in granting a demurrer as to a claim under Code § 15.2-2119. Since evidence before the court was adequate to resolve the issues, the trial court did not err in ruling without an evidentiary hearing. The judgment is affirmed.

051563 Welch v. Commonwealth 04/21/2006 Testimony by a minor victim that she had a "sexual relationship" with an adult defendant "over 20" times, and defendant's purported admission to her mother that he was "having sexual relations" with the minor, without further proof, was not sufficient to prove one of the particular acts constituting “carnal knowledge” under Code § 18.2-63. The judgment of the Court of Appeals upholding the defendant's conviction is reversed and the indictment is dismissed.

051570 Baker v. Elmendorf 04/21/2006 An appeal of a general district court conviction to a circuit court under Code § 16.1-132 is a de novo appeal. Thus, whenever a defendant appeals such a conviction, the fact of that conviction is not admissible in the appeal or in a subsequent civil proceeding because the de novo appeal negates any judgment entered by the general district court. Accordingly, the trial court erred in admitting the fact of the plaintiff's general district court conviction into evidence in a malicious prosecution action brought following the successful appeal of such conviction to the circuit court. The judgment is reversed and the case is remanded for further proceedings.

051592 Monahan v. Obici Medical Management 04/21/2006 In a medical malpractice case, the defendant health care provider was not required to affirmatively plead the defense of failure to mitigate damages in order to request a jury instruction on that topic, but the trial court erred in granting a such an instruction where there was no evidentiary basis to support it, and in refusing a request by plaintiff that the jury be directed to disregard certain evidence regarding the plaintiff's actions after leaving the defendant's premises. It is presumed the jury’s consideration of damages was affected by the improperly given mitigation instruction. Since no cross-error was assigned to the judgment that defendant is liable for negligence, the case is remanded for a new trial limited to the issue of damages.

051612 Thornton v. Glazer 04/21/2006 In a medical malpractice case, the trial court erred in its refusal to admit deposition testimony of a treating physician as rebuttal, and erred in its refusal of an adverse witness jury instruction. The judgment is reversed and the case is remanded for a new trial.

051651 Schlegel v. Bank of America 04/21/2006 In litigation involving funds frozen by a receiving bank after transfer pursuant to unauthorized payment orders, Code § 8.4A-204(a) preempts certain common law claims relating to the unauthorized payment, but does not preempt common law claims relating to the subsequent freezing of the funds. Further, while the trial court did not err in awarding attorney's fees in the bank's related interpleader action, it abused its discretion in failing to limit the award to necessary and appropriate fees and in its apportionment of the award among the obligated parties. The judgment of the circuit court is affirmed in part and reversed in part.

051699 Cherrystone Inlet v. BZA for Northampton County 04/21/2006 A board of zoning appeals properly denied variances from setback requirements where a developer failed to show that its recently platted lots existed when the zoning ordinance and a governing statute became effective and that the ordinance interfered with all reasonable beneficial uses of its property, taken as a whole. Instead of dividing it into multiple lots, the developer could have treated the property as a single lot upon which one residential structure could be built as of right, with the remainder serving as an appurtenant waterfront amenity. The circuit court's judgment affirming the denial of the variances is affirmed.

051750 American Physical Therapy Ass'n v. Fed. of State Boards of Physical Therapy 04/21/2006 In a breach of contract action regarding the setting of fees, the trial court erred in ruling that the five-year statute of limitations embodied in Code § 8.01-246(2) barred all of plaintiff's claims. Where the contract terms contemplated distinct obligations arising at regular intervals rather than a single, continuing obligation, a new injury occurred and a separate cause of action accrued each time a new fee amount was imposed. Under these circumstances, plaintiff was entitled to bring its claims for those breaches occurring within the five years preceding its filing suit. The judgment is reversed and the case is remanded for further proceedings.

051986 City of Chesapeake v. States Self-Insurers Risk Retention Group 04/21/2006 In response to a certified question accepted under Article VI, Section 1 of the Constitution of Virginia and Rule 5:42, it is held that coverage for reimbursement of legal fees was excluded under provisions of a city's risk retention group policy for claims relating to suits filed by 214 women who alleged that they suffered miscarriages resulting from exposure to chemicals in the city's water supply. The certified question is answered in the affirmative.

052136 Pappas v. Virginia State Bar 04/21/2006 In a discipline proceeding in which the Virginia State Bar Disciplinary Board suspended an attorney's license to practice law for a period of six months, the Board's decision to permit amendment of the certification of charges and to admit certain deposition testimony by a former client were improper. On the charge that was before the Board, the evidence was insufficient to find by clear and convincing evidence that the attorney violated Rule 8.4(c). The order of the Board is reversed and the action against this attorney is dismissed.

042751 Jackson (Jerry T.) v. Warden (ORDER) 03/24/2006 Upon consideration of a petition for a writ of habeas corpus, respondent's motion to dismiss the petition is granted. Petitioner's various claims alleging ineffective assistance of counsel are rejected as not satisfying the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and his remaining claims are rejected as lacking merit or as being either procedurally barred or improperly raised.

050461 Board of Sup. of Culpeper v. Greengael, L.L.C. 03/03/2006 (Revised 05/26/2006) In suits brought by a developer against a local governing body and others alleging improper denial of a subdivision plat application and improper rezoning of its property, the trial court correctly sustained demurrers and dismissed several of the developer's claims, but erred in overturning such denial and in invalidating the rezoning, where the record showed that the local governing body's actions were neither arbitrary nor capricious and did not violate the developer's due process rights. The trial court's judgment is affirmed in part and reversed in part and final judgment is entered in favor of the local governing body.

050702 Berry v. F&S Financial Marketing, Inc. 03/03/2006 In an action to collect upon a debt contract used to finance the purchase of a motor vehicle, the trial court did not err in granting plaintiff's request for a nonsuit made prior to the defendant’s lodging of a motion to dismiss for failure to satisfy the one-year service of process requirement set forth in Rule 3:3(c) and Code § 8.01-275.1. The judgment granting the nonsuit is affirmed.

050710 Virginia Tech. v. Interactive Return Service 03/03/2006 In a research contract dispute leading to partially offsetting judgments and obligations, the Setoff Debt Collection Act and Code § 58.1-535 permit a claimant agency, when in compliance with the provisions of that statute, to offset the amount of a monetary judgment in favor of a judgment creditor against a larger debt the judgment creditor owes to the agency. Accordingly, the circuit court’s order denying a public university's motion to have a judgment against it marked satisfied against a larger debt owed to the university is reversed, and the case remanded to the circuit court for the sole purpose of marking the judgment satisfied.

051094 Taboada v. Daly Seven, Inc. 03/03/2006 In a guest's suit against an innkeeper for injuries resulting from a criminal assault by a third party occurring on the hotel's property, the trial court erred in sustaining demurrers to the guest's common law negligence claims in light of the innkeeper's duty to protect guests against reasonably foreseeable injury arising from third-party criminal acts, but correctly sustained the innkeeper's demurrer to the guest's similar claim under Code § 35.1-28. The judgment is affirmed in part and reversed in part, and the case remanded for a trial on the merits. See Record No. 051094, Taboada v. Daly Seven, Inc. dated August 11, 2006

051161 Berry v. Trible 03/03/2006 In a will contest, the circuit court erred in confirming a jury verdict that a handwritten phrase and notation, made on the face of a typewritten draft of a will containing many other handwritten entries, constituted a valid holographic will. The document, viewed as a whole, was neither wholly in the decedent's handwriting nor duly attested by two competent witnesses. That part of the decree holding that the proffered document was the decedent's last will is reversed; that part holding that a prior attested will was valid is affirmed, and the court’s apportionment of the fees of a guardian ad litem is affirmed. Final judgment is entered admitting the prior will to probate.

051179 PMA Capital Insurance Co. v. US Airways 03/03/2006 In an insurance case involving a claim for compensation for business interruption losses in the airline industry arising from the September 11, 2001, terrorist attack on the United States of America, the trial court erred in interpreting and applying the insurance contract with regard to the reduction of claimed losses on account of payments made to the insureds under a federal statute passed to stabilize the airline industry and compensate airlines for losses resulting from such attack. The judgment is reversed, and final judgment is entered in favor of the insurer.

051269 Board of Sup. Fairfax Cty. v. Bd. of Zoning of Fairfax 03/03/2006 In an appeal from a decision of a board of zoning appeals (BZA) to the circuit court, the 30-day filing requirement set forth in Code § 15.2-2314 is not an element of the circuit court's subject matter jurisdiction, and thus, a county's failure to timely file a certiorari application cannot be raised for the first time on appeal. The BZA ruling, affirmed by the circuit court, that a garage apartment was a lawful nonconforming use was plainly wrong and in violation of the purpose and intent of the applicable zoning ordinance, notwithstanding a lengthy history of continuous rental use. The judgment is reversed and final judgment entered in the county's favor.

051423 Juniper v. Commonwealth 03/03/2006 No error is found upon review of capital murder convictions and death sentences, along with convictions and sentences for related burglary and firearms offenses, arising from the defendant's killing of his former girlfriend, her brother, and two of her children while taking property from her apartment. Issues concerning disqualification of the Commonwealth's Attorney, pretrial discovery, and various procedural evidentiary matters, along with jury selection and instructions, as well as sentence proportionality, are addressed. The convictions and sentences are affirmed.

060023 In re: Robert F. Horan, Jr., Commonwealth's Attorney (ORDER) 01/19/2006 In ruling on defendant's pre-trial motion alleging that the Commonwealth violated the defendant's rights under the Vienna Convention on Consular Relations in events preceding a capital murder prosecution, the circuit court judge exceeded her discretion under the applicable statutory scheme by prohibiting the prosecution from seeking the death penalty in the event that the defendant is found guilty. The petition for a writ of mandamus, brought by the Commonwealth's Attorney under the Court's original jurisdiction, is granted and that writ is issued, and the petition for a writ of prohibition is dismissed as moot.

050095 Ulloa v. QSP, Inc. 01/13/2006 In an action for misappropriation of confidential business information in violation of an employment contract, the trial court did not err in determining that the employer was entitled to attorneys’ fees in connection with its breach of contract claim, but erred in awarding fees for services performed with respect to other claims not relating to the contract. The judgment is affirmed in part and reversed in part, and the case is remanded for reconsideration of the amount of the attorneys' fee award.

050329 Plunkett v. Plunkett 01/13/2006 In a case where husband and wife executed a marital agreement and mutual reciprocal wills, the trial court erred in considering extrinsic evidence pertaining to the agreement and in imposing a constructive trust. The spouses intended to leave their property first to the surviving spouse, and then to the husband's children. The judgment of the trial court is reversed and final judgment is entered in favor of the widow.

050333 Cox v. Geary 01/13/2006 A plaintiff who was wrongly convicted of criminal charges suffered one indivisible injury in the conviction and imprisonment, giving rise to one cause of action. His release of the Commonwealth after the General Assembly passed a compensation bill which he accepted, bars a legal malpractice claim against his former defense counsel. The Commonwealth and his former attorneys are not joint tortfeasors with respect to the wrongful incarceration, and thus Code § 8.01-35.1 is inapplicable. Under common law, his unconditional release of the Commonwealth bars recovery against his former counsel for the same injury, regardless of the theory on which the later claim is based. The judgment dismissing plaintiff's legal malpractice claims is affirmed.

050353 Schmidt v. Wachovia Bank 01/13/2006 (Revised 01/31/2006) The trial court correctly determined, under the early vesting rule, that remainder interests in two trusts created by parents for their daughter's benefit vested upon their deaths because an intent to defer vesting is not found in the language of the wills at issue. In the absence of such language, the doctrine of early vesting applies. The judgment is affirmed.

050374 Jenkins v. Director, Va. Ctr. for Behavior Rehab. 01/13/2006 In view of the substantial liberty interest at stake in an involuntary civil commitment based upon Virginia's Sexually Violent Predators Act, the due process protections embodied in the federal and Virginia Constitutions mandate that the subject of the involuntary civil commitment process has the right to counsel at all significant stages of the judicial proceedings, including the appellate process. The present habeas corpus petitioner's counsel was ineffective because he failed to perfect such an appeal in the manner provided by law. The petition is granted and a delayed appeal is awarded.

050376 Johnston v. First Union National Bank 01/13/2006 In a suit by mortgage debtors for a declaration that their obligation was fully paid and discharged, under Code § 8.3A-311 a discharge of the debt by an accord and satisfaction was accomplished when the debtor presented a check marked “Acc’t. Paid in full” that was accepted by the creditor and not refunded. That part of the circuit court’s decree holding otherwise is reversed and final judgment is entered for the debtors.

050395 Commonwealth v. Cary 01/13/2006 In a prosecution for first-degree murder and use of a firearm in that murder, the trial court erred in refusing to give a proffered instruction on self-defense where the instruction was legally correct and, viewed in the light most favorable to the defendant as the proponent, there was sufficient evidence in the record to warrant giving the instruction. The Court of Appeals' judgment vacating the defendant's convictions and remanding the case for a new trial is affirmed, and as a result the other claims of error asserted by the Commonwealth on appeal are either rendered moot or are not considered.

050417 White v. Boundary Association, Inc. 01/13/2006 A board of directors of a property owners’ association was not authorized under the applicable declaration to assign parking spaces for the exclusive use of individual unit owners, and the parking policy is invalid because it effectively, and without authority, divested the unit owners of a property right that runs with and binds the land. The circuit court’s judgment is reversed and final judgment is entered. The case is remanded for determination of an award of attorneys’ fees allowed under provisions of the Property Owners' Association Act.

050478 Overbey v. Commonwealth 01/13/2006 In a prosecution for possession of a firearm by a convicted felon under Code § 18.2-308.2, the Commonwealth failed to prove the required element that the defendant had been previously convicted of a felony. The judgment is reversed and final judgment is entered for the defendant.

050510 Foster v. Commonwealth 01/13/2006 Under Code § 18.2-181, the five-year statute of limitations for petit larceny applies when the defendant is charged with a misdemeanor for passing a bad check, because a larceny which is a misdemeanor is a petit larceny. The judgment of the Court of Appeals upholding defendant's conviction is affirmed.

050544 Hubbard v. Dresser, Inc. 01/13/2006 In a case alleging breaches of express and implied warranties in the sale of petroleum dispensing equipment, it was error to sustain a demurrer against a pleading which alleged an express warranty by the defendant, rather than merely stating the legal bases upon which such a warranty might have been created. The trial court further erred in sustaining a demurrer to a count pleading violation of the implied warranty of merchantability, because it is not necessary to plead with specificity the specific trade or industry standard for merchantability in order to withstand a demurrer. The judgment is reversed and the case is remanded.

050643 Sexton v. Cornett 01/13/2006 Code §§ 51.1-124.4, 51.1-510 and 38.2-3339, which exempt certain life insurance proceeds and vested retirement benefits from legal process, remain in effect as exceptions to the application of the more recently enacted augmented estate laws. Thus the rights of beneficiaries of a decedent’s Virginia Retirement System life insurance and retirement benefits are unaffected by the augmented estate laws. In a contested estate case, those exempt assets did not become a part of the augmented estate, and their value should not be added to it. The judgment of the trial court is affirmed.

050699 Cangiano v. LSH Building Co. 01/13/2006 The trial court did not err in granting specific performance of a real estate purchase agreement and in awarding attorney's fees to the purchaser. The final decree did not order the seller to perform the impossible by conveying property that he did not then own, only that he use his best efforts to acquire and convey those additional easements and land described in the agreement. The fee award was reasonable despite the fact that it was approximately four times what the seller had paid his own counsel. The judgment is affirmed.

050715 Harris v. Kreutzer 01/13/2006 In a case against a clinical psychologist who had examined the plaintiff pursuant to Rule 4:10 in connection with a prior tort action, the trial court correctly sustained a demurrer to a count of the complaint alleging intentional infliction of emotional distress because the alleged conduct of the psychologist was not sufficiently outrageous and intolerable, nor was the alleged impact upon plaintiff severe enough, to state a cause of action. The trial court erred in sustaining a demurrer to a count charging medical malpractice by this health care professional in conducting the examination under Rule 4:10 to assess plaintiff's condition for litigation purposes. The judgment is affirmed in part and reversed in part, and the case is remanded for further proceedings.

050728 Bowie v. Murphy 01/13/2006 The circuit court erred in sustaining demurrers to plaintiff’s assault and defamation claims involving the pastor and other members of plaintiff’s church. The defamation claims did not involve matters of church governance and could be decided without addressing issues of religious faith and doctrine. Also plaintiff was not required to allege that he suffered a physical injury in order to sufficiently plead a claim of assault. The judgment is reversed and the case remanded for further proceedings.

050768 Lyren v. Ohr 01/13/2006 A general appearance waives all questions concerning service of process. Therefore, a defendant who was served with process more than one year after commencement of an action but who did not file a motion under Code § 8.01-277 attacking the service prior to, or contemporaneously with, his responsive pleading cannot raise the bar against judgment in Rule 3:3(c) after having entered a general appearance. The judgment of the circuit court granting a motion to dismiss under Rule 3:3(c) in these circumstances is accordingly reversed.

050896 Blue Ridge Service Corp. v. Saxon Shoes 01/13/2006 In a case charging a corporate cleaning service with negligence in starting a fire that destroyed plaintiff's facility, the trial court erred in denying the defendant's motion to exclude testimony of plaintiff's fire-causation expert which was not supported by the evidence and was thus purely speculative. Without this causation testimony, plaintiff did not make a prima facie case of negligence because it could not prove either a breach of duty or proximate cause related to the defendant, and thus the trial court also erred in denying a motion to strike the plaintiff's evidence. The judgment of the trial court is reversed and final judgment is entered for the defendant cleaning service.

050943 Government Micro Resources, Inc. v. Jackson 01/13/2006 In a defamation case brought against plaintiff's former employer and its principal, the trial court correctly denied the defendants' motion to strike, but erred in granting their motion for remittitur and in reducing the compensatory damages awarded by the jury. The defamatory statements were not opinion, the claim was timely and properly plead and proven, and actual malice was shown by clear and convincing evidence, but the trial court failed to consider factors in evidence relevant to the compensatory damages award. The judgment of the trial court is affirmed in part and reversed in part, and final judgment is entered reinstating the verdict on that award.

051000 Commonwealth v. Neely 01/13/2006 The Court of Appeals correctly held that a circuit court judge could consider a convicted defendant's motion to modify his sentence while that defendant was in the custody of the Federal Bureau of Prisons, because the evidence did not establish that the defendant had been transferred to the custody of the Virginia Department of Corrections so as to divest the trial judge of jurisdiction under the provisions of Code § 19.2-303. The judgment of the Court of Appeals is affirmed.

051004 Britt Construction v. Magazzine Clean, LLC 01/13/2006 Code § 43-4 requires a general contractor, as a condition of perfecting a mechanic’s lien, to contemporaneously file with the memorandum of lien a “certification” that a copy of the memorandum has been mailed to the property owner. Therefore, the circuit court correctly held that 12 mechanic’s liens filed by a general contractor were invalid, and properly released a construction project owner's property therefrom, where the general contractor failed to contemporaneously file certifications of mailing along with the memoranda of liens. The judgment of the circuit court is affirmed.

051041 Boynton v. Kilgore 01/13/2006 In a case by 12 former employees of the Office of the Attorney General for severance benefits, the trial court correctly sustained a demurrer, concluding that the Virginia Personnel Act, Code § 2.2-2900 et seq., does not cover these employees so as to qualify them for benefits under the Workforce Transition Act of 1995, Code § 2.2-3201 et seq., when they were involuntarily separated from service due to budget constraints. The judgment is affirmed.

051091 Barnett v. Kite 01/13/2006 In a personal injury action where plaintiff alleged that venue was proper due to defendant's status as the majority shareholder of a closely-held corporation regularly conducting business within the chosen forum, the circuit court erred in overruling defendant’s objection to venue. The corporation was not shown to be the defendant's alter ego, and the evidence failed to establish that defendant personally conducted business on a regular basis in the chosen forum sufficient to permit an action against him in his individual capacity to proceed there. The judgment is reversed and the case is remanded with instructions.

042716 Powell v. Warden (Unpublished Order) 11/08/2005 Upon consideration of a petition for a writ of habeas corpus, respondent's motion to dismiss the petition is granted. Petitioner's various claims alleging ineffective assistance of counsel are rejected as not satisfying the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and his remaining claims are rejected as lacking merit or as being either procedurally barred or improperly raised. (See Opinion dated September 15, 2006)

042196 Alliance to Save the Mattaponi v. Commonwealth 11/04/2005 In a dispute over construction of a reservoir, Code § 62.1-44.29 waives sovereign immunity for judicial review of Water Control Board actions. The Board properly applied Code § 62.1-44.15:5(C) and the judgment under the Administrative Process Act is affirmed. On separate claims transferred from the Court of Appeals, that portion of the circuit court’s judgment holding that a particular Treaty is Virginia law is affirmed. The circuit court’s judgment that it lacked jurisdiction to consider the separate Treaty claims is reversed, and those claims are remanded for further proceedings.

042647 Williams v. Commonwealth 11/04/2005 In sentencing a defendant convicted of two firearms-related offenses, a three-year term of postrelease supervision is added pursuant to Code § 19.2-295.2 to the 10-year term that could have been imposed for these offenses. The sentences imposed by the trial court were within the ranges set by the General Assembly for the underlying offenses and the period of postrelease supervision authorized by the statute and, therefore, were not illegal. Nor did the trial court abuse its discretion by imposing the sentences. The judgment of the Court of Appeals is affirmed.

042894 McAlevy v. Commonwealth 11/04/2005 The Court of Appeals did not err in affirming a conviction for larceny on the grounds that the asportation element of that crime may be imputed to one who acts through an innocent agent. For the reasons stated in the opinion of the Court of Appeals, that court’s judgment is affirmed.

042904 The Lamar Co. v. Board of Zoning Appeals 11/04/2005 In a case challenging a local board of zoning appeals' denial of an advertising company's request to change the location of two billboards, the trial court did not apply an incorrect standard of review under Code § 15.2-2314, as it solely resolved a question of law. Because cross-error was not assigned to any factual basis of the trial court’s decision, the presumption of the correctness of the BZA’s decision is not at issue as to any factual matter. The judgment of the trial court is affirmed.

050002 Garlock Sealing Technologies v. Little 11/04/2005 In a wrongful death case arising from exposure to asbestos, federal maritime principles apply to plaintiff's cause of action against a manufacturer of products used during the construction and repair of navy vessels situated in navigable waters. The judgment is affirmed.

050022 Butler v. Southern States Cooperative, Inc. 11/04/2005 In an action charging assault and battery and infliction of emotional distress by a co-worker who made sexual advances to the plaintiff, the trial court erred in sustaining special pleas in bar by the co-worker and the defendant employer asserting that the incident arose out of and in the course of the employment so as to be barred by the exclusivity provision of the Workers’ Compensation Act, Code § 65.2-307. The judgment of the trial court is reversed and the case is remanded for further proceedings.

050107 Coles v. Commonwealth 11/04/2005 In a prosecution for attempted capital murder of a law enforcement officer by ramming into a police cruiser with a stolen automobile, the Court of Appeals correctly decided that the trial court reasonably could have concluded, upon consideration of all the evidence, including the defendant's conduct, that he was guilty of the charged offense beyond a reasonable doubt. The judgment is affirmed.

050139 Ola v. YMCA of South Hampton Roads 11/04/2005 In a personal injury case brought by the parents of a minor who was abducted and sexually assaulted in a bathroom while using the defendant membership-based organization's recreational facilities, the trial court correctly sustained the defendant's special plea of charitable immunity. Substantial evidence supported the court's conclusion that at the time of the minor's injury, defendant was a charitable organization operating in accordance with a charitable purpose and that the minor was a beneficiary of its charitable bounty. The judgment of the trial court is affirmed.

050155 Doe v. Zwelling 11/04/2005 In an action to recover damages for professional malpractice of a health care provider who allegedly engaged in an inappropriate and extraprofessional relationship with the plaintiff’s wife, the amended motion for judgment presented a combination of claims, some of which are barred by Code § 8.01-220 and others which are not. Thus the trial court erred in dismissing the entire case by sustaining the health care provider's demurrer. The judgment is reversed and the case is remanded.

050160 Norfolk Southern Rwy. Co. v. Rogers 11/04/2005 In an action against a railroad under the Federal Employers’ Liability Act, expert testimony offered by the plaintiff concerning exposure to unreasonably dangerous levels of silica dust lacked an adequate factual foundation. The remainder of the evidence presented was insufficient as a matter of law on the issue of the defendant's negligence. The judgment of the circuit court is reversed and final judgment is entered for the defendant railroad.

050181 Dowling v. Rowan 11/04/2005 In a dispute over probate of a will, the trial court correctly concluded that a premarital agreement constituted a waiver of the surviving spouse’s claims against "separate property" specified under the agreement, such that his claims for a statutory elective share of the decedent's estate, family allowance, and exempt property, could not be satisfied using any such property. Certain foreign real estate and life insurance policies were properly excluded from the augmented estate. Because the surviving spouse's elective share claim is distinguishable from his duties as executor of the estate, the trial court properly granted him fees for administration of the estate while denying his claim for fees related to the elective share litigation. The judgment is affirmed.

050206 Oraee v. Breeding 11/04/2005 (Revised 12/09/2005) In a medical malpractice context, the immunity from civil liability afforded a physician under Code § 8.01-581.18(B) applies only when that physician fails to review, or take action in response to the receipt of, a report containing the results of a laboratory test or examination conducted “not at the request or with the written authorization of a physician.” Thus, the judgment of the circuit court refusing to grant immunity to a physician who failed to obtain the results of certain laboratory tests requested by another physician is affirmed.

050215 Davis v. Holsten 11/04/2005 In a dispute concerning the sale of a residence, the trial court correctly ruled that the substantial compliance principle of contract law did not apply to an escrow agreement obligating the seller to either accomplish, or cause to be accomplished, repairs that the buyers had specified in the agreement. The seller did not carry his burden of proof to show that he had strictly complied with the agreement and, therefore, did not establish that he was entitled to release of the escrowed funds. The judgment of the trial court is affirmed.

050236 Crawford v. Haddock 11/04/2005 (Revised 12/09/2005) In an interpleader action commenced by a life insurance company for a determination of which of the possible beneficiaries of a Virginia state employee's policy should be paid the death benefits, the trial court did not err in ruling that Code § 51.1-510 bars imposition of a constructive trust on proceeds from a Virginia Retirement System group life insurance policy. The judgment of the trial court is affirmed.

050312 Calcote v. Fraser Forbes Co. 11/04/2005 In a Virginia proceeding enforcing a District of Columbia judgment confirming an arbitration award, the trial court erred because it did not enforce the judgment in a manner consistent with the provisions of the award. The judgment is reversed and the case is remanded.

050315 Brown v. Virginia State Bar 11/04/2005 In a bar disciplinary proceeding, the Virginia State Bar submitted itself to the jurisdiction of a three-judge panel when it stipulated that an attorney's demand to have the matter heard before that tribunal was timely. The subsequent decision of the Disciplinary Board suspending the attorney's license to practice law in this Commonwealth for a period of one year is reversed and the case is remanded for further proceedings before a three-judge panel.

050358 Bussey v. E.S.C. Restaurants, Inc. 11/04/2005 In a food poisoning case in which plaintiff alleged negligence and breach of implied warranty, the evidence was sufficient to support the jury’s verdict for plaintiff and the trial judge erred in setting aside the verdict and entering judgment for the defendant. The judgment is reversed, the jury verdict is reinstated, and final judgment is entered for the plaintiff.

050388 Westgate Condo Ass'n v. Philip Richardson Co. 11/04/2005 Inclusion of a particular parcel of land in the property description and plat of a condominium declaration was not a scrivener's error. Therefore, the developers were not entitled to remove that parcel from the condominium unilaterally by a "correction amendment" under Code § 55-79.71(F). Because the trial court erred in granting judgment to the developers, they were not entitled to recovery of attorneys' fees under Code § 55-79.53(A). The judgment of the trial court is reversed and the case is remanded for further proceedings.

050639 Brown v. Commonwealth 11/04/2005 In a drug prosecution, considering the totality of the circumstances, the investigating officer did not have probable cause to arrest and search a defendant found sleeping in a car with a partially burned, hand-rolled cigarette visible in his hand. Thus, the trial court erred in denying his motion to suppress the evidence. The judgment of the Court of Appeals is reversed, defendant's convictions are vacated and the case is remanded to the Court of Appeals with direction to remand the matter to the trial court for further proceedings, if the Commonwealth be so advised.

050948 Anthony v. Virginia State Bar 11/04/2005 A derogatory statement concerning the qualifications or integrity of a judge, made by a lawyer with knowing falsity or with reckless disregard of its truth or falsity, violates Rule 8.2 of the Rules of Professional Conduct and does not qualify as constitutionally protected speech. No merit is found in any of the attorney's assignments of error, and since the record supports the finding that the attorney in the instant case made such statements, the conclusion that he violated Rule 8.2 and the concomitant sanction imposed for such violation by a three-judge court are affirmed.

042077 Kondaurov v. Kerdasha (Opinion Withdrawn) 09/16/2005 The opinion rendered September 16, 2005 in this appeal has been withdrawn and rehearing of the appeal in the March 2006 session was granted in an Order entered November 10, 2005. See Record #042077, Kondaurov v. Kerdasha, opinion dated April 21, 2006

042130 Jackson v. Warden 09/16/2005 The circuit court erred in dismissing petitioner's claim of ineffective assistance of counsel as raised in his petition for a writ of habeas corpus where trial counsel failed to object to petitioner being tried before a jury while wearing a jail-issued “jumpsuit.” Under the circumstances, compelling petitioner to stand trial before the jury so attired prejudiced his right to a fair trial. The judgment is reversed, petitioner's convictions are set aside, and the circuit court is directed to issue the writ and grant petitioner a new trial on the underlying indictments if the Commonwealth be so advised.

042223 Townsend v. Commonwealth 09/16/2005 A capital murder defendant failed to argue against seating two jurors at trial on the grounds that public confidence in the judicial system would be undermined by allowing those jurors to sit. As a result, he cannot raise that contention on appeal. The judgment of the Court of Appeals upholding the defendant's convictions is affirmed.

042265 Williamsburg Peking Corp. v. Kong 09/16/2005 Where a motion for sanctions pursuant to Code § 8.01-271.1 is pending when a plaintiff moves for a first nonsuit, the trial court is empowered to consider the sanctions motion either before entry of the nonsuit order or within 21 days after the entry thereof. The trial court's contrary ruling in the present case was erroneous and is reversed. The nonsuit order is set aside and vacated, and the case is remanded with directions to consider the motion for sanctions prior to granting plaintiff's nonsuit motion.

042274 West Lewinsville Heights Cit. Ass'n v. Bd. of Supervisors of Fairfax County 09/16/2005 In a zoning dispute involving use of an athletic field at a public park by private entities, the circuit court erred in denying a Board of Zoning Appeals' plea in bar and in reaching the merits of the dispute where the Board of Supervisors' petition for a writ of certiorari seeking review of the Board of Zoning Appeals' final decision was not filed within 30 days after the date of that decision as required under Code § 15.2-2314. The circuit court’s holding that the petition was timely is reversed, its holdings on the merits are vacated, and final judgment is entered dismissing the Board of Supervisors' appeal.

042287 OMNIPLEX World Services Corp. v. US Investigations Services, Inc. 09/16/2005 In an action seeking to enforce an employment contract provision restricting a former employee from certain forms of subsequent employment, the trial court correctly concluded that the non-competition provision was overly broad and unenforceable. Because the prohibition in this non-competition provision is not limited to employment that would be in competition with the former employer, the trial court's judgment is affirmed.

042411 State Farm Mutual Ins. Co. v. Remley 09/16/2005 (Revised 12/09/2005) The circuit court correctly denied a motion to set aside a default judgment against a driver and an insurer under Code § 8.01-428, and properly refused to reconsider such judgment as corrected pursuant thereto. Although his conduct is neither approved or nor condoned, plaintiff's counsel neither committed a fraud upon the court nor committed actual or constructive fraud upon the defendants by engaging in such conduct. The statute does not authorize courts to consider issues other than those specified therein. The circuit court's judgment is affirmed.

042426 VEPCO v. Northern Va. Regional Park Authority 09/16/2005 In a dispute concerning a series of real estate transactions through which a regional park authority acquired fee simple title to lands previously held by a public utility, the trial court correctly held that the language of the deeds in question was not ambiguous and provided the utility with a non-exclusive easement in gross that could not be apportioned to third parties for telecommunications purposes without a license granted by the park authority. The judgment of the trial court is affirmed.

042656 Safeway, Inc. v. DPI Midatlantic, Inc. 09/16/2005 The exclusivity provision of the Virginia Workers’ Compensation Act, Code § 65.2-307, does not invalidate an express indemnity agreement between an employer and a third party, nor do any provisions of the Act prohibit parties from entering into such an agreement. The circuit court therefore erred in sustaining an employer's plea in bar based on such a provision and in dismissing the third party plaintiff's motion for judgment asserting claims arising under the indemnity agreement. The judgment of the circuit court is reversed and the case is remanded for further proceedings.

042699 Newman v. Walker 09/16/2005 The circuit court erred in sustaining a defendant's plea of the statute of limitations in a personal injury action arising from an automobile accident, where he made an affirmative misrepresentation about his identity at the accident scene. Under these circumstances, the defendant undertook an affirmative act within the intendment of Code § 8.01-229(D). The judgment of the circuit court is reversed and the case is remanded for further proceedings.

042717 Hix v. Commonwealth 09/16/2005 (Revised 12/09/2005) The Court of Appeals correctly held that "impossibility" was not a defense to attempted indecent liberties with a minor under Code § 18.2-370 where a police officer impersonated a minor in dealing with defendant, that a challenge to defendant's conviction for use of a computer to solicit a minor under Code § 18.2-374.3 based upon an alleged variance between the proof and the indictment was procedurally barred, and that the indictment was sufficient to support each conviction. Neither statute requires the involvement of a real minor as a prerequisite to conviction. No reason being found to apply the ends of justice exception to Rule 5:25, the Court of Appeals' judgment is affirmed.

042741 Sanchez v. MediCorp Health System 09/16/2005 In a medical malpractice case, the trial court correctly sustained a hospital's demurrer to a motion for judgment based on the theory of negligence via apparent or ostensible agency between the hospital and a healthcare provider who was an independent contractor. This theory had not previously been applied in Virginia to impose liability upon an employer for the negligent acts of an independent contractor and, under the facts presented, permitting the hospital to be held vicariously liable would adversely affect the balance struck by the General Assembly in the Medical Malpractice Act. The judgment is affirmed.

042842 Ellis v. Simmons 09/16/2005 In seeking to establish a prescriptive easement over a roadway, the complainants failed to prove by clear and convincing evidence that the proposed use of the roadway would not increase the easement's burden. Instead of showing the boundaries of the original dominant estate to enable proper restriction of the easement's benefit, complainants’ evidence showed an impermissible increase in its burden due to annexation of land to the dominant estate. The chancellor therefore erred in declaring the easement to be appurtenant to complainants' property. The chancellor’s decree is reversed and final judgment is entered in respondents' favor.

050985 In re: Gordon E. Hannett 09/16/2005 (Revised 09/19/2005) In a dispute concerning appointment of an acting Commonwealth's Attorney under Code § 19.2-156, the circuit court had jurisdiction to consider the necessity of such an appointment and to make it, where an elected Commonwealth Attorney's active military service would require him to be absent for an extended period. While mandamus was the proper means for him to seek relief, and prohibition did not lie because he was not being forced to forfeit or vacate his office, the trial court did not abuse its discretion in acting under the statute. The petitions for writs of prohibition and mandamus are dismissed.

042706 Kent Jermaine Jackson v. Warden (Unpublished Order) 06/16/2005 Habeas Corpus Petition in capital murder case is dismissed.

041737 Rose v. Commonwealth 06/09/2005 In an appeal from a capital murder conviction based on a killing committed in the commission of robbery or attempted robbery, the circuit court and the Court of Appeals erred in concluding that evidence that the defendant had committed an assault and a "purse-snatching" robbery several weeks before the murder was admissible, but under Code § 8.01-678 and cases applying that statute, the admission of such evidence was harmless error, because it plainly appears from the record that the defendant had a fair trial and that the verdict and judgment were not substantially affected by the admission of such evidence. The judgment of the Court of Appeals is affirmed.

041919 Charles v. Commonwealth 06/09/2005 The Court of Appeals erred in finding that a defendant's participation in the Detention Center Incarceration Program was merely a condition of probation and that the issue whether such participation should be credited against an outstanding sentence was a matter within a trial court's discretion. Participation in the Program is incarceration, and cannot be ignored upon revocation of probation where doing so would enlarge the sentence imposed in a sentencing order that has become final under Rule 1:1. Under the ends of justice exceptions to Rules 5:25 and 5A:18, the judgment of the Court of Appeals is reversed and the case is remanded with instructions for remand to the trial court for entry of an appropriate order.

041934 Autumn Ridge, L.P. v. Acordia of Virginia Insurance 06/09/2005 In an action by 12 limited partnerships alleging negligence and breach of contract by an insurance broker in failing to include them as named insureds on a builders risk insurance policy, the trial court erred in concluding after a hearing that the plaintiffs could show no cognizable damages. When no loss has occurred that would have been covered by the requested insurance policy, the measure of damages for failure to procure insurance is the amount paid by the intended insured as the premium. The judgment is reversed.

041941 Southern Christian Leadership Conference v. Shannon 06/09/2005 In a dispute between Virginia and Georgia corporations over use of a corporate name and various service marks, the trial court did not err in finding that under the common law, due to its continuous use of the name and service marks in Virginia since 1960, the Georgia entity had a superior right thereto, despite the fact that the Virginia corporation had been the first to file a fictitious name certificate respecting the contested name and the first to register the service marks with the State Corporation Commission. The judgment is affirmed.

041952 Dixon v. Commonwealth 06/09/2005 (Revised 10/05/2005) In a prosecution for driving under the influence of alcohol, driving on a suspended license, and refusing to submit to a breath or blood alcohol test, defendant's statements regarding prior alcohol consumption and operation of the vehicle should have been suppressed. Such statements were made under circumstances where a reasonable person in the defendant’s position would have concluded that his freedom was being curtailed to a degree associated with a formal arrest, and no prior Miranda warnings had been given. The circuit court's judgment is affirmed as to the refusal charge, but the criminal convictions are reversed, with the charges remanded for a new trial if the Commonwealth so elects.

041954 Shivaee v. Commnwealth 06/09/2005 (Revised 12/09/2005) In considering appeals from two different trial court judgments of civil commitment under Virginia's Sexually Violent Predators Act (SVPA), it is held, contrary to the respondents' arguments in each case, that the SVPA comports with all constitutional requirements of due process and is not unconstitutional. Furthermore, the judgment of one trial court concerning the sufficiency of the evidence with respect to the respondent challenging that court's determination that he was a sexually violent predator was not plainly wrong or without evidence to support it. The judgments of the trial courts are affirmed in both cases.

041985 Couplin v. Payne 06/09/2005 Code § 5.1-173(B) provides no statutory immunity to an employee of the Metropolitan Washington Airport Authority in a personal injury action involving an ambulance driven by the Authority's employee. The trial court erred in sustaining the employee's special plea and dismissing the action. The judgment is reversed and the case is remanded for further proceedings.

041990 WBM, LLC v. Wildwoods Holding Corp. 06/09/2005 In a suit seeking specific performance of a contract to sell real estate comprising a corporation's sole asset, the chancellor did not err in striking the plaintiff's evidence and denying specific performance, where the corporation's president lacked authority to sign the contract on its behalf, no corporate resolution authorizing the sale had ever been adopted, and the terms of the contract were unclear, uncertain, incomplete and indefinite. The chancellor's decree is affirmed.

042069 City of Lynchburg v. Brown 06/09/2005 In a "slip and fall" personal injury case involving a damaged bleacher at a municipally-maintained athletic park, the trial court erred in refusing to rule that the plaintiff failed to establish that the municipality was guilty of gross negligence. While the municipality's employees committed acts of omission by failing to observe the open and obvious damage to the bleacher, such conduct merely amounts to ordinary negligence, and constructive knowledge of this hazard, standing alone, is insufficient to present a jury issue on gross negligence. The judgment of the trial court is reversed and final judgment is entered in the municipality's favor.

042122 Morgan v. Russrand Triangle Associates, L.L.C. 06/09/2005 The trial court erred in entering an order nunc pro tunc more than 21 days after entry of a prior order, where entry of the prior order was not a clerical error subject to correction under Code § 8.01-428, the prior order was not suspended, modified or vacated within 21 days of its entry, and the nunc pro tunc order did not correct the record to reflect the actual chain of events. Under these circumstances the trial court lacked jurisdiction to enter the nunc pro tunc order, which was of no force or effect. The judgment of the trial court is reversed and final judgment is entered reinstating the prior order.

042158 Farnsworth v. Commonwealth 06/09/2005 In a prosecution under Code § 18.2-308.2 for possession of a firearm by a convicted felon, the Court of Appeals correctly concluded that the circuit court did not err in determining that restoration of the defendant's civil rights by a foreign jurisdiction following release from incarceration did not operate to permit him to lawfully possess a firearm in Virginia. As explained by the Court of Appeals, the prohibitory language of the statute is plain and unambiguous, and the defendant did not pursue either of the statutory exceptions available under its terms. The judgment is affirmed.

042192 Commonwealth Transportation Comm'r v. Glass 06/09/2005 In a partial taking condemnation case where a landowner sought compensation for damage to properties other than those listed in the certificate of take and the petition for condemnation, and challenged the condemnor's valuation of the take, the trial court erred in confirming an award of damages for the non-listed properties, but did not err in confirming the damage award in other respects, because the landowner failed to establish unity of use among the listed and non-listed parcels. The judgment is affirmed in part and reversed in part, and final judgment is entered.

042204 Commonwealth v. Hilliard 06/09/2005 A criminal suspect was questioned by law enforcement personnel after he invoked his right to counsel, and thus his motion to suppress an incriminating statement, made after an unequivocal request for the presence of an attorney, should have been granted. The judgment of the Court of Appeals is affirmed.

042226 Auer v. Miller 06/09/2005 In a wrongful death case, the trial court did not err in granting immunity to a physician pursuant to Code § 8.01-581.18 or in vacating a verdict against his practice group, where the claim was based on the physician's allegedly negligent failure to take appropriate action regarding the results of laboratory tests he neither ordered nor authorized, the physician was not presented with a report of the test results in connection with any consultation request, and the practice group's failure to respond to the decedent's post-operative telephone calls was not a proximate cause of the decedent's death. The trial court's judgment is affirmed.

042228 Bates v. McQueen 06/09/2005 Arbitrators appointed to consider a dispute under a timber sale agreement failed to conduct a hearing, and it was error for the trial court not to vacate their award because a hearing is required by the terms of Code §§ 8.01-581.04 and -581.010(4). Under the parties' agreement, the issue of attorney’s fees must be decided by arbitrators. The judgments of the circuit court are reversed.

042240 Cartwright v. Commonwealth Transportation Comm'r 06/09/2005 In a Virginia Freedom of Information Act dispute, the circuit court erred in sustaining a state agency's demurrer and in denying plaintiff’s petition for a writ of mandamus on the ground that plaintiff had an adequate remedy at law by means of discovery in a pending proceeding against the agency. Plaintiff was not required to prove absence of an adequate remedy at law, nor could the mandamus proceeding be barred on the ground that some other remedy at law was available, and the agency's eventual provision of the requested information did not render plaintiff's appeal moot. The judgment is reversed and the case remanded for further proceedings.

042275 Holley v. Pambianco 06/09/2005 It was error for the trial court to receive into evidence in a medical malpractice trial certain general statistical information related to the frequency of problems relating to diagnostic and surgical excision procedures. The judgment is reversed and the case is remanded.

042344 Nerri v. Adu-Gyamfi 06/09/2005 The trial court erred in granting a nonsuit in a proceeding in which a motion for judgment was signed by an attorney whose license to practice law in the Commonwealth had been administratively suspended. Under the statutes and rules regulating the practice of law and licensing of lawyers, the attorney was not authorized to practice law during this period. Thus, any pleadings filed by him or her are invalid and have no legal effect. Therefore, no valid proceeding was pending which could be nonsuited. The judgment of the trial court is reversed and final judgment is entered for the defendant.

042404 United States v. Blackman 06/09/2005 In response to questions of law certified under Rule 5:42 from the United States District Court for the Western District of Virginia, it is held that the law of Virginia in 1973 recognized as valid the conveyance of a negative easement in gross by a private property owner to a private party for the purpose of land conservation and historic preservation.

040275 Morrisette v. Warden (Order) 06/03/2005 (Revised 11/04/2005) In considering a habeas corpus petition, the petitioner's various claims with respect to the guilt and penalty phases of his trial are rejected as being procedurally defaulted or without substantive merit, but the failure of his attorney to object during the penalty phase to a verdict form omitting a required sentencing option, as mandated in Powell v. Commonwealth, 261 Va. 512, 552 S.E.2d 344 (2001), constituted ineffective assistance of counsel prejudicial to the petitioner's defense. A limited grant of the writ is issued and the matter remanded to the trial court for a new sentencing hearing.

040797 Asplundh Tree Expert Co. v. Pacific Employers Insurance 04/22/2005 (Revised 05/10/2005) In a declaratory judgment action brought by an insurer to determine its motor vehicle liability policy obligations after funding settlement under a reservation of rights in a separate tort action brought against the policyholder by an injured employee in another forum, the trial court did not err in determining that it retained jurisdiction after settlement of the underlying tort action and that the insurer was not liable on the policy. The trial court properly directed the policyholder to refund to the insurer the amount tendered to fund the settlement. The judgment is affirmed.

041050 Muhammad v. Commonwealth 04/22/2005 (Revised 07/26/2005) No error is found upon review of capital murder convictions and death sentences arising out of a portion of defendant's conduct in a series of 16 shootings in Virginia and other jurisdictions resulting in 10 deaths. Issues are discussed concerning Virginia's statutes governing capital murder based on multiple killings within a 3 year period and killings during commission or attempted commission of an act of terrorism. Principal and accomplice liability, sufficiency of the evidence, and various procedural and evidentiary matters are addressed. The convictions and death sentences are affirmed.

041180 Davenport v. Little-Bowser 04/22/2005 The trial court erred in holding that Code § 32.1-261 and 12 VAC § 5-550-330 prevent new birth certificates listing both adoptive parents from being issued for children born in Virginia who have been validly adopted by same-sex couples outside of Virginia. Nothing in the statute precludes recognition of same-sex couples as adoptive parents or requires that forms listing only one mother and one father be used, and the regulation's requirement as to form use, as interpreted by the responsible agency, is contrary to the ordinary and plain language of the statute. The judgment is reversed and the case remanded for further proceedings.

041271 XL Specialty Insurance Co. v. Commonwealth 04/22/2005 The Court of Appeals erred in transferring a surety's consolidated appeal from two circuit court judgments to the Supreme Court of Virginia. The surety was required to comply with administrative agency claims resolution procedures embodied in Code § 33.1-386 before filing its circuit court actions, and since it had done so, the appeals at issue were appeals from final decisions of a circuit court reviewing decisions of an administrative agency under Code § 17.1-405, the statute defining the Court of Appeals' appellate jurisdiction. The matter is returned to the Court of Appeals for further consideration.

041584 Lee v. Mulford 04/22/2005 In an action upon a promissory note, the trial court did not err in confirming a jury verdict and refusing to award attorney's fees in a post-verdict proceeding. Absent prior agreement of the parties with the concurrence of the court, or pursuant to contract or statute with specific provisions, a litigant is not entitled to bifurcate the issues and have the matter of attorneys' fees decided by the trial court in post-verdict proceedings. The judgment is affirmed.

041585 Commonwealth v. Hudgins 04/22/2005 In reviewing the defendant's claim of double jeopardy, the Court of Appeals erred in determining that grand larceny from the person is a lesser-included offense of robbery and that the prosecution of the defendant for the grand larceny was barred by his earlier acquittal of the robbery offense. The judgment of the Court of Appeals is reversed and final judgment is entered reinstating the defendant’s conviction of grand larceny.

041716 Stockbridge v. Gemini Air Cargo, Inc. 04/22/2005 In a breach of contract action pertaining to a Delaware corporation's obligation to repurchase shares of its own stock from a former employee, the trial court erred by relying on Title 8, Section 160(a) of the Delaware Code in granting summary judgment in the corporation’s favor. Issues concerning the propriety of summary judgment, a corporation's standing to assert this statute as a defense to a contractual stock repurchase obligation, and waiver of contract rights are discussed. The judgment of the trial court is reversed and the case remanded for further proceedings.

041720 Xspedius Management Co. v. Stephan 04/22/2005 In an action for continuing trespass to real property arising from a fiber optic cable that was buried under the land without permission, the defendant did not act with such recklessness as to evince a conscious disregard of the plaintiffs' property rights where although it did not install the cable, defendant negotiated in good faith with plaintiffs in an attempt to compensate them and took steps to begin relocating the cable once plaintiffs demanded that it be removed. The portion of the circuit court’s judgment awarding punitive damages is reversed.

041722 Forbes v. Rapp 04/22/2005 In an action arising from the refusal of the high bidder at an auction of real estate to complete the purchase transaction, the chancellor did not err in awarding damages to the selling landowner for breach of contract despite claims of failure on the part of the seller to mitigate damages. Error in admitting certain expert testimony was harmless, and the judgment is affirmed.

041861 Kollman v. Jordan 04/22/2005 In a defamation action by a city's former mayor against a local resident for publishing advertisements in connection with an election allegedly stating inaccurately the mayor's actions as a member of the city council concerning a pending public housing project, a judgment for compensatory and punitive damages is reversed because the former mayor failed to offer clear and convincing proof that the author of the advertisements acted with actual malice in causing them to be published. The judgment is reversed and final judgment is entered for the author of the advertisements.

041885 Jordan v. Kollman 04/22/2005 In a defamation action by a city's former mayor against a local resident for publishing advertisements in connection with an election allegedly stating inaccurately the mayor's actions as a member of the city council concerning a pending public housing project, a judgment for compensatory and punitive damages is reversed because the plaintiff failed to offer clear and convincing proof that defendant acted with actual malice in causing them to be published. The judgment is reversed and final judgment is entered for the defendant.

041892 Jenkins v. Pyles 04/22/2005 (Revised 05/10/2005) In a personal injury case, the circuit court erred in setting aside a jury verdict in the plaintiff's favor on the ground that plaintiff was guilty of contributory negligence as a matter of law, and erred in denying plaintiff's motion for additur or a new trial on the issue of damages, where it was proper for the jury to have resolved the conflicts in the contributory negligence evidence, and the jury returned a verdict that was inadequate as a matter of law. The judgment is reversed, the verdict in plaintiff's favor reinstated on the issue of liability, and the case remanded for a new trial limited to the issue of damages.

041908 Baumann v. Capozio 04/22/2005 The trial court erred in ruling that parents of a minor child injured by the defendant's tortious conduct had, by implication, waived their cause of action against defendant for recovery of medical expenses incurred on the child's behalf where defendant failed to prove such waiver by clear and convincing evidence. The judgment of the trial court is reversed and the case is remanded for a trial on the merits.

041994 Safrin v. Travaini Pumps USA, Inc. 04/22/2005 More than 21 days after the entry of a confessed judgment pursuant to Code § 8.01-432, the trial court lacked jurisdiction to modify that judgment by entering an award of liquidated attorney’s fees. The judgment is reversed and final judgment is entered for the judgment debtor.

042306 Judicial Inquiry & Review Comm'n v. Peatross 04/22/2005 In considering a complaint filed against a circuit court judge by the Judicial Inquiry and Review Commission, charges that the judge engaged in misconduct or conduct prejudicial to the proper administration of justice in violation of the Canons of Judicial Conduct were not established under the clear and convincing evidence standard of proof. Although some of the judge's actions were outside the scope of lawful authority and some conduct did not exemplify the level of professionalism that judges in the Commonwealth should exhibit, such actions and conduct are not so egregious as to warrant censure or removal from office. The complaint is dismissed.

042336 Barrett v. Virginia State Bar 04/22/2005 (Revised 05/10/2005) In an appeal of right from a ruling of the Virginia State Bar Disciplinary Board suspending a Virginia attorney's license to practice law for a period of three years based upon violations of several provisions of the Virginia Rules of Professional Conduct, the Board's order is affirmed in part, reversed in part, and remanded for reconsideration of any sanction to be imposed for the violation findings that are upheld.

042630 Pilli v. Virginia State Bar 04/22/2005 In an appeal of right from a ruling of the Virginia State Bar Disciplinary Board suspending an attorney's license to practice law in the Commonwealth for a period of 90 days based on a finding that he violated Rule 8.2 of the Virginia Rules of Professional Conduct in making unfounded accusations about a sitting judge, the record supports the Board's determination and order of suspension, which are affirmed.

020971 Burns, William Joseph v. Warden (ORDER) 03/11/2005 (Revised 03/14/2005) Code § 8.01-654.2 alters the normal procedures applicable both to direct appeals and habeas corpus proceedings in a very limited number of cases and creates a separate procedure for determining the specific claim of mental retardation. Since the present petitioner's claim of mental retardation has been found not frivolous, the procedures required by Code § 8.01-654.2 entitle him upon remand to have the claim of mental retardation determined by a jury because he was originally tried by a jury in a capital murder prosecution. See Record No. 020971, Burns v. Warden dated June 10, 2004

021660 Yarbrough v. Warden 03/03/2005 In a petition for a writ of habeas corpus alleging deprivation of the Sixth Amendment right to effective assistance of counsel during penalty phase proceedings in a capital murder case, petitioner failed to demonstrate that his defense was prejudiced by trial counsel’s failure to investigate and present available mitigation evidence. The record does not demonstrate that, but for trial counsel’s alleged failures, there is a reasonable probability that the result of the penalty phase proceeding would have been different. The petition for a writ of habeas corpus is dismissed.

031201 Emmett v. Warden (Order) 03/03/2005 In a habeas corpus petition the error in a verdict form on which the application relies was not a structural error under governing law. Accordingly, the prejudice analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984) is applied, and the petitioner has failed to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result in the proceeding would have been different. The petition for a writ of habeas corpus is dismissed.

040480 Green v. Ingram 03/03/2005 (Revised 03/04/2005) In a wrongful death case, the trial court erred in granting a motion to strike the plaintiff's evidence as it applied to the claim of gross negligence. However, the trial court did not err in granting the motion to strike the plaintiff's evidence as it applied to willful and wanton conduct and a claim for punitive damages. The case is remanded for a new trial on the issue of gross negligence.

040616 Patton v. City of Galax 03/03/2005 In companion equity and law cases concerning a board of zoning appeals' denial of a conditional use permit for a parcel of real property, the property owners failed to establish that a prior nonconforming use of another portion of their property had also sufficiently existed with respect to the portion at issue and that this portion was manifestly arranged or designed for such use when the zoning ordinance was adopted. Denial of the conditional use permit was neither plainly wrong nor in violation of the purposes and intent of that ordinance. The trial court's judgments are affirmed.

040726 Parker v. Commonwealth 03/03/2005 The Court of Appeals correctly concluded that claimed errors in a misdemeanor conviction under Code § 3.1-398.1 for operating a "food manufacturing plant" without Virginia Department of Agriculture inspection were not jurisdictional in nature and were not properly preserved for appeal, and that the lower courts had each properly exercised subject matter jurisdiction with respect to the matter. The Court of Appeals' judgment upholding the defendant's conviction is affirmed.

040774 Hood v. Commonwealth 03/03/2005 (Revised 04/26/2005) Because a murder defendant's evidence at trial was inconsistent with information provided in proffer statements he submitted to the government during plea negotiations, under the terms of the proffer agreement it was not error for the trial court to allow the Commonwealth to use the proffered statements in the trial. The evidence was sufficient to sustain a conviction, and the judgment of the Court of Appeals upholding defendant's conviction is affirmed.

040928 Palmer v. Commonwealth 03/03/2005 Defendant's convictions under Code § 18.2-308.2 for possession of a firearm under the age of 29 after having been convicted of a delinquent act as a juvenile that would have been a felony if committed by an adult are reversed because the evidence was not sufficient to prove an element of the offense, namely, the defendant’s conviction as a juvenile of a delinquent act felonious in nature. Final judgment is entered in favor of the defendant.

040979 Townes v. Commonwealth 03/03/2005 Because a prisoner had completed serving his sentence for a rape conviction at the time proceedings were begun by the Commonwealth to have him civilly committed as a sexually violent predator, he was no longer “incarcerated for a sexually violent offense” and the trial court erred in ruling that he was subject to the provisions of the statutes providing for commitment of sexually violent predators. The judgment of the trial court is reversed and the Commonwealth’s petition is dismissed.

041200 McCloud v. Commonwealth 03/03/2005 (Revised 03/16/2005) In a petition seeking involuntary civil commitment of a prisoner to a secure mental health facility as a sexually violent predator, the trial court did not err in admitting evidence of the prisoner's prior convictions and prison infractions, in finding that less restrictive alternatives to involuntary confinement were unsuitable, or in applying the burdens of proof. The commitment order is affirmed.

041308 Jackson v. Fidelity and Deposit Company 03/03/2005 (Revised 03/16/2005) The trial court erred in ignoring the plain language of a will when it failed to accord full spendthrift protection to a trust, barring garnishment. Further, the trial court erred in concluding that a non-statutory exception to the provisions of Code § 55-19 could be created to permit a beneficiary’s creditor to attach the beneficiary’s interest in a trust where that beneficiary had committed a breach of fiduciary duty resulting in his liability. The judgment of the trial court is reversed and final judgment is entered on behalf of the trustee.

041338 Viney v. Commonwealth 03/03/2005 The evidence was sufficient to support the defendant's conviction on two counts of taking indecent liberties with a child in violation of Code § 18.2-370, where the defendant's eye contact with the victims, his glance in the direction of his groin, and his conduct subsequent thereto established the lascivious intent required by the statute. The judgment of the Court of Appeals upholding his convictions is affirmed.

041386 Bentley Funding Group v. SK&R Group 03/03/2005 In a dispute over ownership of cash erosion control escrow deposits, the trial court erred in finding that a development company's failure to list the escrows as assets in bankruptcy filings precluded its ownership claim, in determining that a contract conveying the property to a new purchaser transferred the escrows to the purchaser (either as purchased property or as development rights), and in determining that the developer's principal had no claim to the escrows. The judgment is reversed and the case remanded for a determination of the ownership of the escrows as between the development company and its principal.

041390 Lewis v. Commonwealth 03/03/2005 In a murder and robbery prosecution, the Commonwealth's Attorney's repeated questioning of an alibi witness concerning criminal activity involving the defendant but unrelated to the charged offenses was prejudicial, and the Court of Appeals erred in approving the circuit court’s judgment entered upon a denial of the defendant’s mistrial motion.

041454 Commonwealth v. Allen 03/03/2005 The trial judge did not err in ruling that the Commonwealth failed to meet its burden of proof in a petition pursuant to Code § 37.1-70.6(A) to civilly commit a prisoner nearing the end of his prison term to the custody of a secure mental institution as a sexually violent predator. The trial court did not err under then-applicable law in admitting testimony of the defense expert witness, a psychologist not licensed to practice in Virginia, or in applying the correct standards under the statutes. The judgment dismissing the Commonwealth's petition is affirmed.

041455 Gas Mart Corp. v. Board of Supervisors 03/03/2005 In resolving a number of complaints challenging the validity of revisions to a county's zoning ordinance, the trial court erred in ruling on the sufficiency of descriptive summaries in the public hearing notices as they related to certain changes in "Design Policies" and to the geographic areas of the county affected by proposed rezoning. In all other respects, the trial court's dispositions are affirmed in this interlocutory appeal. The matter is remanded for further proceedings consistent with this opinion.

032714 Morris v. Commonwealth 01/14/2005 The trial court correctly concluded that a flare gun is a firearm and properly convicted the defendant of knowingly and intentionally possessing or transporting a firearm after having been convicted of a felony, in violation of Code § 18.2-308.2, as well as for misdemeanor brandishing of a firearm in such manner as to reasonably induce fear in the mind of another, in violation of Code § 18.2-282. The Court of Appeals' judgment denying defendant's appeal from these convictions and upholding defendant's conviction in the trial court is affirmed.

040143 El-Amin v. Commonwealth 01/14/2005 (Revised 01/27/2005) In a prosecution for possession of cocaine with intent to distribute and possession of a firearm while in possession of a controlled substance, the trial court did not err in refusing to suppress evidence found as a result of a pat-down search of the defendant following discovery of a hand gun on the person of one of his three companions while they were located in a known high crime area. Under these circumstances, the search was reasonable given legitimate safety concerns of the investigating officers. The defendant's convictions are affirmed.

040254 Jefferson v. Commonwealth 01/14/2005 The Court of Appeals of Virginia did not err in affirming a circuit court's judgment revoking a suspended sentence where the sentencing order was entered at the revocation hearing nunc pro tunc as of the date of the original sentencing hearing. The judgment is affirmed.

040367 Collins v. Commonwealth 01/14/2005 The trial court correctly revoked a defendant's suspended sentence after he committed a second offense while free on bond pending appeal of the original conviction. The second offense violated the condition of good behavior to which the suspension of the sentence and probation imposed for the prior offense were subject. Because defendant was subject to a final judgment of conviction and sentence on the initial charges at the time of the second offense, the trial court's revocation of the suspension was mandatory under Code § 19.2-306(C). The Court of Appeals' judgment upholding the trial court's ruling is affirmed.

040389 Hinkley v. Koehler 01/14/2005 In a medical malpractice action, the circuit court erred in concluding that one of the defendants’ witnesses was qualified under Code § 8.01-581.20(A) to give expert testimony with regard to the standard of care because this witness had not had an active clinical practice in the defendant doctors’ specialty or a related field within one year of the alleged negligence. Because this error was not harmless, the judgment of the circuit court is reversed and the case remanded for a new trial.

040418 National Bank of Fredericksburg v. Virginia Farm Bureau Ins. 01/14/2005 The trial court correctly ruled that, when the owners of a vehicle covered by insurance failed to renew the policy by timely payment of the premium, it expired and the bank holding a security interest in the vehicle had no contractual rights against the insurer, even though the policy contained a “union mortgage clause” specifying the bank as a lienholder. The bank's rights under the clause were subject to the terms of the original policy; thus, the renewal declaration sent to the bank was ineffectual to create new insurance in the bank's favor where no contract of insurance existed between the insurer and the insureds. The judgment is affirmed.

040433 Hudson v. Jarrett 01/14/2005 (Revised 01/27/2005) The trial court erred in granting intervention to a stevedore company and its insurer in a tort action by one of the stevedore's employees against another stevedore and its employee, and erred in dismissing the action pursuant to the exclusive remedy provision of the Workers' Compensation Act. Neither stevedore had a contractual relationship with the marine terminal where they operated sufficient to make their employees statutory fellow employees, and the intervenors failed to show that their asserted federal lien claim was a right involved in the employee's tort action. The judgment is reversed and the case remanded for further proceedings.

040569 Capelle v. Orange County 01/14/2005 (Revised 01/27/2005) The circuit court erred in holding that zoning provisions in a county code permitted construction of an access road to transport materials mined under a special use permit on land zoned for agricultural use across another portion of that land that was zoned for residential use. The judgment of the circuit court regarding the proposed access road is reversed and final judgment is entered.

040585 Drinkard-Nuckols v. Andrews 01/14/2005 (Revised 01/20/2005) In a medical malpractice case, the trial court did not err in admitting evidence, over the plaintiff's objection, concerning what the defendant doctors expected from other physicians regarding the interpretation of an x-ray, thereby suggesting that physicians other than the defendants were negligent, where plaintiff presented testimony of the same nature in her case-in-chief. Under these circumstances, plaintiff's objection was waived and Code § 8.01-384(A) does not require a different result. The judgment is affirmed.

040746 Correll v. Commonwealth 01/14/2005 In a trial for felonious abuse or neglect of an incapacitated adult in violation of Code §§ 18.2-33 and 18.2–369, the evidence supported a finding beyond a reasonable doubt that the defendant guardian's failure to obtain timely medical treatment for her mother's chronic starvation, dehydration, and infected decubiti constituted knowing and willful conduct resulting in a serious threat to health and safety, and that the pneumonia ultimately causing her mother's death was a foreseeable and expected consequence of such conduct. The Court of Appeals' judgment upholding the defendant's conviction is affirmed.

040779 LZM, Inc. v. Virginia Dept. of Taxation 01/14/2005 In a dispute concerning the collection and remittance of sales tax on charges for portable toilet pumping services, the trial court did not err in holding that the true object test embodied in 23 VAC 10-210-4040 applies to lease/service transactions, or in concluding that the maintenance contract exemption embodied in Code § 58.1-609.5 was inapplicable, where those services were inseparable from the taxpayer's toilet rental transactions. Further, the trial court's factual misstatements did not produce a judgment contrary to the testimony and stipulated facts. The judgment is affirmed.

040804 Martin v. Ziherl 01/14/2005 In a private tort suit alleging transmission of herpes virus in consensual sexual conduct between unmarried adults, the trial court erred in sustaining a demurrer based on prior Virginia case law barring recovery for injuries suffered in private sexual conduct between consenting unmarried adults that was illegal under the fornication statute. Virginia Code § 18.2-344, which prohibits sexual intercourse between unmarried persons, is unconstitutional under Lawrence v. Texas, 539 U.S. 558 (2003), as an infringement of the Due Process rights of adults to engage in private sexual conduct. The judgment is reversed and the case is remanded.

040913 Vasquez v. Mabini 01/14/2005 Because expert testimony concerning damages in a wrongful death case was based upon fictional assumptions not supported by the evidence, it was speculative and unreliable as a matter of law and should have been stricken. The defendants made a timely motion to strike the evidence and did not waive their objections, and the trial court erred in denying their motion. Since no error is assigned to the jury's finding for the plaintiff on the issue of negligence, the judgment is reversed and the case is remanded for a new trial limited to the issue of damages.

040915 Pettus v.Gottfried 01/14/2005 In a wrongful death case alleging medical negligence it was error for the trial court to receive certain portions of deposition testimony from treating physicians offered by the defense that were not based upon reasonable medical probability. Arguments concerning waiver of objections by offering proof of the same nature and the impact of Code § 8.01-399 on proof relating to medical diagnoses and treatment are also discussed. The judgment is reversed and the case is remanded.

040916 Zelnick v. Adams 01/14/2005 (Revised 01/27/2005) In litigation concerning legal services provided on a minor's behalf, the trial court erred in holding that because the minor was approaching the age of majority he had a legal right to approve a retainer agreement before it could become effective, but correctly held that services provided thereunder were not necessities where the minor was less than one year from attaining the age of majority and counsel was aware that he would not be eligible to receive the trust distributions at issue for at least another 17 years. Under these circumstances, postponing the services would not have compromised the minor's rights. The trial court's judgment is affirmed.

040939 Carter v. Commonwealth 01/14/2005 Defendant's conviction for assault on a police officer in violation of Code § 18.2-57(C), under circumstances where there was no showing that he had the present ability to inflict bodily injury, is affirmed. The applicable definition of assault does not require that an assailant have the actual ability to inflict bodily harm.

040967 Mid-Atlantic Business Communications v. Virginia Dept. of Motor Vehicles 01/14/2005 In litigation under the Virginia Public Procurement Act, the trial court correctly dismissed plaintiff's motion for judgment seeking a contract payment and sustained the defendant state agency's demurrer and plea in bar based on the statute of limitations. Plaintiff's motion was not filed within six months from the date of the agency's letter embodying its final decision to deny plaintiff's demand for payment, as required under the Act, and no conduct warranting tolling of the limitations period under Code § 8.01-229(D) was committed. The trial court's judgment is affirmed.

040213 Bowman v. Washington (Order) 12/03/2004 In granting a habeas corpus request for a belated appeal where the petitioner was denied his right to appeal through no fault of his own due to counsel's failure to file a timely petition for appeal, the trial court abused its discretion in dismissing several of petitioner's other claims with prejudice. The circuit court’s order is affirmed in part and reversed in part, and the cause is remanded to the circuit court for entry of an order dismissing the petitioner’s remaining habeas corpus claims without prejudice.

030665 Chandler v. Graffeo 11/05/2004 In a medical malpractice case, the trial court erred in admitting a medical malpractice review panel's opinion favoring the defense and testimony of its members into evidence when that opinion was not timely rendered under Code § 8.01-581.7:1, permitting two panel members to testify as experts for the defense, granting jury instructions on the issue of contributory negligence, and allowing the defendant physician to recite the out-of-court opinion of a non-testifying physician as to the applicable standard of care. The judgment is reversed and the case remanded for further proceedings.

032390 Board of Sup. of Fairfax v. Board of Zoning Appeals 11/05/2004 The circuit court correctly determined that a county board of supervisors had standing under Code § 15.2-2314 as a "person aggrieved" to seek reversal of a variance granted by the county's board of zoning appeals. However, because the applicable zoning restrictions did not interfere with all reasonable beneficial uses of the property at issue, that court erred in concluding that the variance was properly granted. The judgment is affirmed in part, reversed in part, and the case is remanded for entry of an order vacating the variance.

032444 Halifax Corporation v. Wachovia Bank 11/05/2004 In a case seeking to impose liability upon a bank relating to embezzlement of an account holder's corporate funds by its own comptroller, the trial court did not err in granting summary judgment for the defendant bank because Code § 8.3A-406 does not create an affirmative cause of action, the plaintiff's common law claim for conversion has been displaced by Code § 8.3A-420(a), and plaintiff failed to allege sufficient facts to state a cause of action for aiding and abetting the embezzler's breach of fiduciary duty, assuming such an action exists. The judgment is affirmed.

032464 Peyton v. Commonwealth 11/05/2004 The trial court abused its discretion in revoking the suspended sentence of a defendant who had been placed in an alternative sentencing program pursuant to Code § 19.2-316.2 and who was unable to complete that program due to an unforeseen medical condition. Such inability cannot reasonably be considered willful behavior on defendant's part. The judgment of the Court of Appeals affirming the trial court's revocation of defendant's suspended sentence is reversed and the case remanded for further proceedings.

032674 Parr v. Alderwoods Group, Inc. 11/05/2004 Several contemporaneously executed contracts relating to the acquisition of a funeral home business are treated as integrated in determining the enforceability of various provisions in the contracts after one party's default. The noncompetition provisions in a business management agreement and restrictive covenants in a related lease were unenforceable by a party which had defaulted on its payment obligations in the transaction. The judgment is affirmed in part, reversed in part, and final judgment is entered.

032726 Alderwoods Group, Inc. v. Parr 11/05/2004 Several contemporaneously executed contracts relating to the acquisition of a funeral home business are treated as integrated in determining the enforceability of various provisions in the contracts after one party's default. The noncompetition provisions in a business management agreement and restrictive covenants in a related lease were unenforceable by a party which had defaulted on its payment obligations in the transaction. The judgment is affirmed in part, reversed in part, and final judgment is entered.

032757 Union of Needletrades v. Jones 11/05/2004 In a common law defamation action by a former local union administrator against the union, the trial court erred in failing to grant the defendant union's motion to strike the evidence where the plaintiff failed to establish that an allegedly defamatory statement regarding indications of "financial malpractice" at the local union, made in a resolution adopted by the union's general executive board and sent to the officers of the local union, was false. The judgment of the trial court is reversed and final judgment entered for the defendant.

032758 Cowan v. Hospice Support Care 11/05/2004 The circuit court erred in sustaining a plea of charitable immunity to pleadings alleging gross negligence as well as willful and wanton negligence committed by volunteers of the defendant charity, a residential hospice facility. The public policy rationale shielding a charity from liability for acts of simple negligence does not extend to acts of gross negligence or acts of willful and wanton negligence. The judgment is reversed and the case is remanded.

032765 Commonwealth v. Norman 11/05/2004 Sufficient evidence existed supporting a defendant's conviction for operating a motor vehicle after having been declared a habitual offender, second or subsequent offense, in violation of Code § 46.2-357, where a prior order issued by the circuit court restoring the defendant’s privilege to operate a motor vehicle on the condition that he fulfill certain requirements did not terminate his habitual offender status. The judgment of the Court of Appeals invalidating defendant's conviction and dismissing the indictment is reversed, and the defendant's conviction is reinstated.

032974 City of Chesapeake v. Cunningham 11/05/2004 In a case concerning a municipality's liability for injuries allegedly caused by consumption of contaminated municipal drinking water, the trial court erred in denying the municipality's sovereign immunity plea. Planning and design decisions regarding the upgrading of a water treatment plant and dissemination of information to the public regarding temporary health hazards associated with consuming municipal drinking water during the upgrade process were governmental functions of the municipality. The judgment of the trial court is affirmed in part, reversed in part, and final judgment is entered in the municipality's favor.

040002 Cunningham v. City of Chesapeake 11/05/2004 In a case concerning a municipality's liability for injuries allegedly caused by consumption of contaminated municipal drinking water, the trial court erred in denying the municipality's sovereign immunity plea. Planning and design decisions regarding the upgrading of a water treatment plant and dissemination of information to the public regarding temporary health hazards associated with consuming municipal drinking water during the upgrade process were governmental functions of the municipality. The judgment of the trial court is affirmed in part, reversed in part, and final judgment is entered in the municipality's favor.

040028 Nelson v. Commonwealth 11/05/2004 In a prosecution for sexual offenses against a minor, the Court of Appeals did not err in ruling that the trial court correctly reviewed sensitive medical records of the victim in camera and properly refused to allow examination of the records by the defendant, and the Court of Appeals did not err in ruling that the trial court correctly declined to conduct a hearing regarding allegations of a juror's possible bias. The judgment is affirmed.

040036 Covil v. Commonwealth 11/05/2004 The circumstances properly considered by the trial court were sufficient to support defendant's conviction for grand larceny resulting from possession of recently stolen property. The judgment of the Court of Appeals upholding the conviction is affirmed.

040116 Daniel v. Commonwealth 11/05/2004 The trial court did not err in concluding that an assault and battery charge taken under advisement for one year, and later dismissed, was not “otherwise dismissed” as contemplated by Code § 19.2-392.2(A)(2), and it properly denied a petition for expungement on that ground. Further, the statute does not contemplate a hearing to permit the petitioner to assert his innocence of the original criminal charge. The judgment is affirmed.

040134 Amstutz v. Everett Jones Lumber Corp. 11/05/2004 In two collected suits involving asserted prescriptive easement rights over a roadway on private land, there was not credible evidence to support the circuit court finding that a lumber company and an adjoining landowner had established such an easement under the clear and convincing evidence standard. Use of the roadway was not of sufficient continuity to give notice to the owners of the putative servient tenement that an easement was being exercised for agricultural, forestry, timbering or logging purposes. The judgment of the circuit court granting the prescriptive easement is reversed.

040173 Tucker v. Commonwealth 11/05/2004 Because under Code § 18.2-102 the crime of unauthorized use of a motor vehicle is committed upon the “use” of a vehicle without the owner’s consent, regardless of whether initial possession of the vehicle was obtained by a trespassory taking, the Court of Appeals' judgment allowing defendant's conviction for this offense to stand is affirmed.

040218 City of Martinsville v. Commonwealth Blvd. Assoc. 11/05/2004 A taxpayer is entitled to relief under Code § 58.1-3984 for real estate taxes erroneously assessed during the interim between general reassessments, and may challenge an annual levy of taxes without showing that the previous general reassessment, upon which the annual levy was based, was erroneous. An order reducing an assessment is affirmed.

040242 Inova Health System v. Grandis 11/05/2004 The circuit court erred in adjudicating matters concerning involuntary commitment of a patient to a hospital where the 180-day period of commitment permitted under Code § 37.1-67.3 had expired well before the court's challenged order was entered, and no further involuntary commitment petition had been filed. Under these circumstances, the court no longer had jurisdiction to adjudicate these matters. The judgment of the circuit court imposing certain requirements and an obligation to care for the patient upon the hospital is reversed and the hospital is dismissed from the proceeding.

040264 McCloskey v. Kane 11/05/2004 The trial court erred in dismissing a wrongful death action against an emergency medical care provider at a state mental hospital based upon the doctrine of sovereign immunity. The Commonwealth's interest and involvement in the defendant doctor's functions was slight and its control limited. Therefore, defendant was not entitled to the protection of the doctrine of sovereign immunity from liability for his alleged negligent acts in treating the decedent, and the trial court erred in sustaining the defendant's plea of sovereign immunity. The judgment is reversed and the case is remanded for further proceedings.

040268 Billups v. Carter 11/05/2004 In two related actions under 42 U.S.C. § 1983 alleging assault and battery by a prison employee who demanded unconsented sexual conduct, the trial court erred in sustaining the defendants’ demurrers, pleas and motions to dismiss, dismissing the actions on statute of limitations and exhaustion of administrative remedies grounds, and denying a plaintiff’s motion to add the Commonwealth as a party defendant. The final orders in both cases are reversed and the cases are remanded to the trial court for further proceedings.

040349 Smith v. Irving 11/05/2004 In the trial of a medical malpractice action in which the jury returned a verdict for the defendant physician, the circuit court did not abuse its discretion in refusing to permit the plaintiff to cross-examine the defendant regarding “standard of care” issues not addressed by the defendant's testimony on direct examination. The judgment is affirmed.

040385 Lindeman v. Lesnick 11/05/2004 In a defamation case, the trial court did not err in refusing to strike the evidence based on a claim that the defamatory statements were made by a workers' compensation award recipient to his counsel, long after the award of benefits was finalized. The judgment for the plaintiff is affirmed.

040470 Austin v. Commonwealth 11/05/2004 The Court of Appeals correctly upheld the circuit court's denial of a juvenile's motion to dismiss parole revocation proceedings because under Code § 16.1-241 the circuit court acquired subject matter jurisdiction over the matter upon the juvenile's appeal from the juvenile and domestic relations court, and the circuit court retained such jurisdiction under Code § 16.1-297 at the time when the parole revocation proceedings were initiated. The Court of Appeals' judgment is affirmed.

040481 Level 3 Communications v. State Corp. Comm'n 11/05/2004 The judgment of the State Corporation Commission denying without prejudice an application for certificates of public convenience and necessity to provide local and interexchange telecommunications services in the Commonwealth is affirmed.

040686 Winston v. Commonwealth 11/05/2004 No error is found upon review of three counts of capital murder and related felony convictions. Issues concerning appointment of defense experts, seating and removal of jurors, admission of evidence, in-court identification testimony, jury instructions and verdict forms, malice, concerted action/joint participation, depravity of mind, lesser included offenses, as well as sufficiency of the evidence, double jeopardy, and mental retardation claims are considered. Sentence proportionality issues are also addressed. The defendant's convictions and death sentences are affirmed.

031299 Riner v. Commonwealth 09/17/2004 (Revised 10/06/2004) The Court of Appeals did not err in affirming a judgment under which defendant was convicted for the first degree murder of his wife, arson of their marital home, and petit larceny. Issues pertaining to change of venue motions, use of a private attorney to assist a public prosecutor, admissibility of double hearsay evidence consisting of a statement made by the decedent to a co-worker recounting a death threat allegedly made by the defendant, admissibility of pawn shop transaction records, and sufficiency of the evidence supporting an arson conviction are discussed. The Court of Appeals' judgment, and the defendant's convictions, are affirmed.

032105 Braddock v. Board of Supervisors 09/17/2004 (Revised 10/06/2004) In a suit challenging a locality's rezoning decision, the trial court correctly ruled that plaintiff lacked standing to initiate the suit and that this defect could not be cured by adding of parties having standing after the 30-day statutory limitation period for challenging rezoning decisions set by Code § 15.2-2285(F) had expired. The judgment of the trial court is affirmed.

032239 MicroStrategy Inc. v. Li 09/17/2004 The chancellor did not err in holding that a corporate plaintiff failed to meet its burden of proving that the defendants, two former employees and one of plaintiff's indirect competitors, misappropriated certain alleged trade secrets within the meaning of the Virginia Uniform Trade Secrets Act. The chancellor's judgment is affirmed.

032313 Dept. of Medical Assistance Serv. v. Beverly Healthcare 09/17/2004 The Court of Appeals correctly held that Code § 2.2-4030(A) permits each prevailing party in a consolidated case contesting an agency action to recover up to $25,000 in attorneys’ fees, and did not err in affirming the trial court's judgment that five claims brought by four healthcare providers were barred by the regulatory limitations period set by former 12 VAC § 30-90-131. The Court of Appeals' judgment is affirmed and the case remanded to the trial court for a determination of the reasonable attorneys’ fees to be awarded each of the individual providers up to a maximum of $25,000.

032315 Friday-Spivey v. Collier 09/17/2004 (Revised 10/06/2004) In a personal injury action arising from a collision between plaintiff's vehicle and a fire truck, the truck driver was not entitled to sovereign immunity. The crew was responding to a dispatch involving an infant locked in a vehicle but defendant knew this was a low priority dispatch and knew there was no danger. Defendant acknowledged that he was required to conform to all traffic laws. On these facts, he was not exercising judgment and discretion beyond that necessary in an ordinary driving situation - a ministerial act - and was not entitled to sovereign immunity for claims of alleged negligence. The judgment of the circuit court is reversed.

032321 Gamache v. Allen 09/17/2004 In an action for medical negligence, the circuit court erred by refusing to permit defendants to cross-examine plaintiff and his witnesses on certain issues relating to plaintiff's claim for damages. The portion of the judgment confirming the defendants' negligence is affirmed, and the case is remanded for a new trial limited to the issues of proximate causation and damages.

032349 Greater Richmond Transit Co. v. Massey 09/17/2004 In a personal injury case arising out of the collision of a passenger vehicle and a city bus, the trial court properly permitted plaintiff to introduce an absent nonparty witness’s deposition into evidence under Rule 4:7(a)(4) where plaintiff was unable to obtain the witness's attendance by subpoena and there was no evidence that plaintiff had procured his absence, and correctly refused proposed instructions on contributory negligence where the record established that in rising from her seat as the bus approached her stop, plaintiff acted merely as an ordinary, reasonable passenger would have acted. The judgment is affirmed.

032402 Powell v. Commonwealth 09/17/2004 (Revised 10/06/2004) Defendant's convictions for use of a firearm while committing three felonies in violation of Code § 18.2-53.1 were neither plainly wrong, nor without evidence to support them, despite evidence of defendant's actions during a robbery that conflicted with the inference that he had a gun, and evidence that no gun was seen or found. The trier of fact properly considered all the evidence. The judgment of the Court of Appeals affirming the defendant's convictions is affirmed.

032533 General Motors Corp. v. Commonwealth 09/17/2004 The trial court erred in ruling that the Department of Taxation's interpretation of the term “cost of performance,” as embodied in 23 VAC § 10-120-250, was not plainly inconsistent with the use of that term in Code § 58.1-418 for purposes of determining the Virginia taxable income of a financial corporation. The judgment of the trial court is reversed and the case remanded for entry of an appropriate order consistent with the views expressed in this opinion and the prior stipulations of the parties.

032554 Allfirst Trust co. v. County of Loudoun 09/17/2004 (Revised 10/06/2004) In an annexation case, a special three-judge court erred in ruling that defects in an initial annexation petition filed with the Commission on Local Government could not be cured by subsequent corrective filings, but correctly held that landowners seeking to initiate annexation proceedings under Code § 15.2-3203 concerning non-contiguous territories must, as a jurisdictional requirement, constitute 51% of the "owners of real estate in number and land area" within each separate territory. The special court's order dismissing the landowners' petition for failure to satisfy this requirement is affirmed.

032562 Quatannens v. Tyrrell 09/17/2004 In a dispute over a narrow strip of land between adjoining landowners, the trial court erred in concluding that the plaintiffs failed to establish ownership of the disputed land by adverse possession, where the evidence showed that despite not knowing that their property did not in fact include the disputed land, plaintiffs and their predecessors in interest had used and enclosed the land and had constructed and maintained a portion of a room of their residence, a brick archway, and a walkway on it for a period of time satisfying the minimum period set by Code § 8.01-236. The judgment of the trial court is reversed and the case is remanded.

032572 Shoosmith Bros., Inc. v. County of Chesterfield 09/17/2004 In a dispute concerning a county's tax assessment of real property used as a landfill, the trial court did not err in concluding that the taxpayer failed to show either that the county committed manifest error in assessing the property based on the income method or that the county ignored controlling evidence in determining the fair market value of the property. The judgment of the trial court is affirmed.

032615 Frazier v. Commonwealth 09/17/2004 (Revised 09/21/2004) The Court of Appeals did not err in upholding the defendant's conviction for aiding and abetting her boyfriend's failure to appear in court for his drug/weapons trial, or in ruling that defendant's own testimony, given at her boyfriend's trial for failure to appear, was admissible in her own case under Code § 19.2-270 because it was given in her own behalf as well as in her boyfriend's behalf. The judgment of the Court of Appeals upholding the defendant's conviction is affirmed.

032632 Jones v. State Farm Mutual Auto. Ins. Co. 09/17/2004 (Revised 10/06/2004) The trial court correctly held that territorial limitations of the defendants' automobile insurance policies pertaining to coverage for medical expenses are clear, unambiguous and reasonable and do not violate Code § 38.2-2201. The judgment of the trial court is affirmed.

032707 Lowe v. Cunningham 09/17/2004 The trial court abused its discretion in denying plaintiff's motion for a mistrial in a personal injury case, where, on cross-examination, defense counsel deliberately and improperly posed an inherently prejudicial and irrelevant question to plaintiff regarding his past failure to pay child support. The trial court's judgment is reversed and the case is remanded for a new trial limited to the issues of damages.

032709 American Safety Casualty Insurance Co. v. C.G. Mitchell Construction, Inc. 09/17/2004 The circuit court did not err in entering judgment in favor of a payment bond claimant and against a surety in an action for recovery on the bond, where the surety had notice of the underlying breach of contract claim against its principal and the right and opportunity to defend its principal against such claim, but permitted a judgment by default to be taken against its principal on the underlying claim. Under these circumstances, the judgment by default was binding upon and conclusive as to the surety. The circuit court’s judgment is affirmed.

032716 Lofton Ridge LLC v. Norfolk Southern Rwy. Co. 09/17/2004 The trial court erred in dismissing with prejudice, based on the doctrine of judicial estoppel, plaintiff’s suit for declaratory and injunctive relief concerning an easement across land owned by the defendant, where the parties in plaintiff's separate action against its attorneys and land surveyor were not the same as the parties in the present action. The judgment is reversed and the case is remanded for further proceedings.

032805 Norton v. City of Danville 09/17/2004 (Revised 10/06/2004) In an appeal from a denial of a certificate of appropriateness required under city architectural review ordinances, the trial court lacked jurisdiction to consider plaintiff’s challenges to the validity of the ordinances and incorrectly held that the city council's refusal to grant the certificate was a fairly debatable action where the council failed to meet its evidentiary burden to demonstrate that its action was reasonable. The judgment of the trial court is reversed.

040497 Indiana Insurance Guaranty Ass'n v. Gross 07/09/2004 Defendant's motion to dismiss appeals from two orders entered by the State Corporation Commission is appropriate because the orders appealed from are not final. The motion is granted and the appeals are dismissed without prejudice.

020971 Burns, William Joseph v. Warden (Order) 06/10/2004 A portion of a prior order providing a limited grant of a Writ of Habeas Corpus is reinstated and the case is remanded to the circuit court for a jury determination of the petitioner's claim of mental retardation in accord with Code §§ 8.01-654.2, 18.2-10, 19.2-175, 19.2-264.3:1, 19.2-264.3:1.1, 19.2-264.3:1.2, 19.2-264.3:3, and 19.2-264.4. See Record #020971, Burns v. Warden (Order) dated March 11, 2005

022291 Harvey v. Warden (Order) 06/10/2004 A petition for a writ of habeas corpus challenging the validity of a post-trial certificate of DNA analysis and related test results pursuant to Code § 19.2-327.1 is dismissed for lack of jurisdiction. Subsection G of that Code section expressly states that an action under this section shall not form the basis for relief in any habeas corpus proceeding or any other appeal.

031475 Horner v. Dept. of Mental Health 06/10/2004 In an employment dispute involving an agency of the Commonwealth and one of its employees, resolved under a now-superseded version of the statutory provisions governing grievances and the powers of the first-level respondent to afford relief, the legislature provided the employee with the substantive right to be afforded a remedy by the first-level respondent. Once the employee accepted the remedy, the statutory scheme at the time precluded management from contesting the decision. The judgment of the Court of Appeals is reversed, and the judgment of the circuit court is reinstated. The case is remanded.

031507 Jaccard v. Commonwealth 06/10/2004 Because a prior probation revocation is not admissible in the penalty determination phase of a bifurcated criminal jury trial as part of “the record of conviction” of the defendant’s “prior criminal convictions” pursuant to Code § 19.2-295.1, the judgment of the Court of Appeals to the contrary is reversed, and the case is remanded for a new sentencing hearing.

031537 Johnson v. Windsor Insurance Company 06/10/2004 The trial court erred in ruling under Code § 38.2-2204 that an insurer was not required to provide automobile liability coverage for a named insured alleged to have negligently entrusted the insured vehicle to a permissive user where the insurer had already paid the "per person" policy limit in settlement of a negligence claim against the permissive user. The judgment is reversed and the case remanded.

031540 Christian v. Surgical Specialists of Richmond 06/10/2004 The trial court erred in refusing to qualify as an expert witness a physician called by a medical malpractice plaintiff, after hearing evidence about his familiarity with the standard of care in Virginia. The judgment is reversed and the case is remanded.

031595 McGehee v. Edwards 06/10/2004 The trial court erred in concluding that the term "direct lineal descendants" used in certain inter vivos trusts created prior to 1978 includes adopted persons. The decree is reversed and final judgment is entered.

031613 Stottlemyer v. Ghramm 06/10/2004 In a medical negligence action, the circuit court did not err in refusing to permit the plaintiff to cross-examine the defendant physician regarding alleged prior acts of negligence and misconduct. The judgment is affirmed.

031640 Friendly Ice Cream Corp. v. Beckner 06/10/2004 In a suit to rescind a commercial lease amendment, the lessor was not entitled to a presumption of undue influence, and the chancellor erred in granting rescission based on such a presumption, where the record was insufficient to support either the finding that the lessor had a confidential relationship with the lessee's representative or that the amendment was either given in exchange for grossly inadequate consideration or was obtained under suspicious circumstances. The decree rescinding the lease amendment is reversed and final judgment is entered in favor of the lessee.

031773 Schlimmer v. Poverty Hunt Club 06/10/2004 In a personal injury suit arising from an accidental shooting at a hunt club, the trial court erred in failing to instruct the jury on the doctrine of negligence per se. The judgment is reversed and the case is remanded for a new trial.

031830 Cook v. Commonwealth 06/10/2004 Under Code § 16.1-271, the juvenile and domestic relations district court lacks jurisdiction over a juvenile who has previously been certified to the circuit court and indicted by a grand jury as an adult on charges that were later nolle prosequied. The circuit court's refusal to dismiss subsequent charges against the present defendant was correct. The judgment of conviction is affirmed.

031844 Walker v. American Ass'n of Prof. Eye Care Specialists 06/10/2004 The trial court erred in concluding that an attorney, by delivering to the trial court clerk's office a pleading signed by a pro se plaintiff, became "counsel of record." The court erred in dismissing the motion for judgment with prejudice for being improperly signed by the individual party. The judgment is reversed and the motion for judgment is reinstated on the trial court's docket. The case is remanded.

031852 Gray v. Rhoads 06/10/2004 In a case arising from the fatal shooting of plaintiff's decedent by a police officer, the circuit court erred by refusing to allow plaintiff to introduce into evidence the transcripts of audio-recorded statements by certain police officers as party admissions in the plaintiff’s case-in-chief. The judgment is reversed and the case is remanded for a new trial.

031907 Shilling v. Jimenez 06/10/2004 (Revised 06/29/2004) The trial court did not err in sustaining a demurrer to an action by two landowners, aggrieved by the local governing body's approval of a subdivision of neighboring property, attacking that approval indirectly by suit against the subdividers and their successors in title. The judgment is affirmed.

031909 Waikoloa Ltd. Partnership v. Arkwright 06/10/2004 In a case involving four limited partnerships, the chancellor correctly held that dissolution occurred when a managing partner's physical condition amounted to effective retirement, and that under express terms of the parties' agreements it was the remaining general partner's duty to sell or liquidate the assets of the partnerships. However, the chancellor erred in ruling that a successor partnership was required to make payments to limited partners in the original four partnerships based on a particular appraisal. The judgment is affirmed in part, reversed in part, and final judgment is entered.

031915 Barris v. Keswick Homes, L.L.C. 06/10/2004 The trial court erred in ruling that a lot in a residential subdivision is no longer subject to a restrictive covenant prohibiting resubdivision without prior written consent of three-fourths of the current lot owners. The judgment is reversed and the case remanded for further proceedings.

031948 Brake v. Payne 06/10/2004 After a plaintiff who lacked standing to bring an action took a nonsuit, the circuit court ruled correctly in a second action – by a proper plaintiff – in allowing a nonsuit as a matter of right because the plaintiff without standing and the proper plaintiff in the second action were not suing in the same right. However, the court erred by entering that nonsuit order nunc pro tunc to a date 18 months earlier when the motion for nonsuit was filed. The judgment is affirmed in part, reversed in part, and the case is remanded.

031950 Turner v. Caplan 06/10/2004 (Revised 06/29/2004) In a case concerning whether the pasturing of a horse within a residential subdivision either violated certain restrictive covenants and exceptions thereto set out in a recorded declaration, or constituted an enjoinable nuisance, the trial court erred in its interpretation of the legal effect of the covenants and exceptions. While it did not err in finding that a nuisance existed, the court erred in the scope of the remedy it prescribed on that basis. The judgment is reversed and final judgment is entered.

032014 Rose v. Jaques 06/10/2004 In a personal injury action, the trial court did not err in granting the parties the right to file, pursuant to Code § 8.01-428(C), a notice of appeal from an earlier order entering judgment, and therefore defendant's notice of appeal was timely filed. Issues concerning plaintiff's contributory negligence, the trial court's questioning of a witness, availability of damages for deposition-related stress, exclusion of evidence, propriety of closing argument, and excessiveness of the verdict are addressed. The judgment is affirmed.

032037 Atkinson v. Penske Logistics, LLC 06/10/2004 The trial court did not err in concluding that a waiver of uninsured motorist insurance coverage higher than the statutory minimum by a single named insured on a business vehicle insurance policy is binding upon all other named insureds on the policy under Code § 38.2-2206. The judgment is affirmed.

032104 Etherton v. Doe 06/10/2004 The trial court erred in striking the plaintiff's evidence with respect to counts charging assault and willful and wanton conduct in a case arising from a non-contact altercation between the drivers of two automobiles. The judgment is reversed and the case is remanded for trial on both theories.

032106 Green v. Goodman-Gable-Gould Co. 06/10/2004 The circuit court erred in going forward with trial of a declaratory judgment proceeding because the relief requested was a determination of a disputed issue rather than an adjudication of the parties’ rights, and should have been litigated in a breach of contract action. The judgment is reversed and the case is dismissed.

032208 Carter v. Meadowgreen Associates 06/10/2004 Under applicable federal and state law relating to tenancy in an apartment subject to rent subsidization by the federal Department of Housing and Urban Development, a tenant's family member, residing in leased property with the consent of the landlord, does not succeed to the tenant's rights under the lease upon the death of the tenant.

032213 Quadros & Associates v. City of Hampton 06/10/2004 The circuit court did not err in granting summary judgment in a breach of contract action where the terms of the agreement were plain and unambiguous, and did not require the defendant city to provide to the plaintiff law firm either a specific quantity of work or certain information that would facilitate the timely completion of such work. The judgment is affirmed.

032242 Commonwealth v. Sanchez 06/10/2004 The Court of Appeals erred in finding that a hit-and-run defendant's conclusory proffer in support of a request for additional funds to secure trial testimony from a DNA expert showed the required “particularized need.” The trial court did not abuse its discretion in denying the defendant's request. The judgment of the Court of Appeals is reversed and defendant’s conviction is reinstated.

032252 Barrett v. Commonwealth 06/10/2004 The evidence was sufficient to sustain the defendant's conviction under Code § 18.2-371.1(A) of a Class 4 felony for criminal neglect of her ten-month-old son, resulting in his death, and her conviction pursuant to Code § 18.2-371.1(B) of a Class 6 felony for criminal neglect of her daughter, aged two years and ten months. Changes in the charges after a prior reversal of her convictions were not shown to be vindictive, and the trial court correctly refused to quash the additional indictment. The convictions are affirmed.

011728 Commonwealth v. Hicks 04/23/2004 (Revised 05/18/2004) In a proceeding remanded from the United States Supreme Court, it is held that a redevelopment and housing authority's trespass policy is not void for vagueness under the Fourteenth Amendment to the United States Constitution and that the authority's policy does not violate a defendant's right of intimate association guaranteed by the Fourteenth Amendment. The judgment of the Court of Appeals is reversed and final judgment is entered affirming the defendant's trespass conviction. (See Record No. 011728, Commonwealth v. Hicks, dated 6/7/2002).

030965 Virginia Tech. v. Interactive Return Service 04/23/2004 The circuit court did not err in admitting evidence of consequential damages in a breach of contract action concerning assignment of intellectual property rights arising out of a privately sponsored research program at a public university, because a reasonably prudent person in the position of the contracting parties would have considered these damages to be the natural consequences of a breach of the agreement. The judgment of the circuit court is affirmed.

030982 Cochran v. Fairfax Cty. Bd. of Zoning Appeals 04/23/2004 Under Code § 15.2-2309(2) a board of zoning appeals has no authority to grant a variance from the applicable zoning ordinance provisions unless the ordinance, as applied to the property under consideration, would, in the absence of a variance, interfere with all reasonable beneficial uses of the property, taken as a whole. Three judgments involving variance resolutions are reversed and final judgments are entered.

031052 Slagle v. Hartford Insurance Company 04/23/2004 The trial court erred in denying summary judgment for an injured plaintiff, who was "using" a tractor-trailer in a manner contemplated by Code § 38.2-2206(B) when he was injured and, thus, was entitled to underinsured motorist coverage despite the fact that he had neither previously occupied nor immediately intended to occupy the tractor-trailer at the time of his injury. The judgment is reversed and final judgment is entered for plaintiff.

031064 Maddox v. Commonwealth 04/23/2004 In a personal injury claim arising out of a bicycle accident, the trial court did not err in dismissing the action on grounds of sovereign immunity. The nuisance claims in this case are precluded by the legislative function exception to the Commonwealth’s waiver of sovereign immunity in the Virginia Tort Claims Act. The judgment is affirmed.

031097 Southern Floors and Acoustics v. Max-Yeboah 04/23/2004 (Revised 07/01/2004) In a personal injury action against a grocery store, the issue of contributory negligence was properly submitted to the jury, but the court erred in instructing the jury that the store could be liable for the negligence of an independent contractor working on the floors. The store did not have a duty to supervise the work and did not have actual or constructive knowledge of the condition causing plaintiff's injury. Final judgment is entered affirming in part and reversing in part.

031140 Food Lion, Inc. v. Max-Yeboah 04/23/2004 In a personal injury action against a grocery store, the issue of contributory negligence was properly submitted to the jury, but the court erred in instructing the jury that the store could be liable for the negligence of an independent contractor working on the floors. The store did not have a duty to supervise the work and did not have actual or constructive knowledge of the condition causing plaintiff's injury. Final judgment is entered affirming in part and reversing in part.

031224 Maitland v. Allen 04/23/2004 (Revised 05/18/2004) The trial court correctly held that partition could not be compelled by a life tenant of certain properties as against holders of the remainder interests in the properties. Denial of summary judgment on the life tenant's partition claim against another life tenant was not an appealable order. The judgment is affirmed in part and remanded.

031233 Commissary Concepts Mgmt. Corp. v. Mziguir 04/23/2004 The evidence in an action for malicious prosecution was insufficient as a matter of law to support a finding that a prosecution against the plaintiff was instituted without probable cause. Thus, the trial court erred in denying the defendant's motion to strike the evidence and motion to set aside the jury verdict. The judgment is reversed, and final judgment is entered for the defendant.

031291 Perel v. Brannan 04/23/2004 (Revised 07/01/2004) The judgment in a suit involving restrictive covenants for building set-backs and buffer areas in a residential subdivision is affirmed in part and reversed in part, and the case is remanded. Issues are addressed with respect to specific enforcement of covenants, approvals by an architectural review committee under a recorded declaration, failure to plead claims for particular equitable relief, various equitable defenses, and the award of attorneys' fees.

031376 Lifestar Response of Maryland v. Vegosen 04/23/2004 Plaintiff’s failure to serve the required notice along with the motion for judgment in a personal injury suit meant that defendant never received "process." The trial court thus lacked jurisdiction over defendant and erred in entering a default judgment. Since the process was defective, rather than the manner of service, the savings provision of Code § 8.01-288 does not apply. The default is vacated and the judgment is reversed. The case is remanded.

031407 Filak v. George 04/23/2004 (Revised 07/01/2004) In an action alleging breach of contract and constructive fraud based on an insurance agent's alleged failure to procure a fire insurance policy with certain provisions, the circuit court did not err in sustaining the defendant's demurrer to a constructive fraud claim and in striking the plaintiff's evidence on a breach of contract claim. The judgment is affirmed.

031457 Dandridge v. Marshall 04/23/2004 In a personal injury action, the trial court erred in excluding certain testimony proffered by the plaintiff and allowing other testimony over objection. The judgment is reversed and the case is remanded for a new trial on the issue of damages.

031486 Video Zone, Inc. v. KF&F Properties 04/23/2004 The circuit court did not err in holding that the terms of a commercial lease required a tenant to replace certain heating, ventilation, and air conditioning equipment located primarily on the roof of the leased premises. The judgment is affirmed.

031513 Richmeade, L.P. v. City of Richmond 04/23/2004 The trial court did not err in applying the three-year limitations period of Code § 8.01-246 to an inverse condemnation action. The judgment is affirmed.

031514 Jones v. Hill 04/23/2004 (Revised 07/01/2004) The trial court correctly ruled that a lien may attach to the vested interest of a remainderman who takes from a life tenant having full power to dispose of the entire corpus of the estate, and that a creditor of a remainderman may enforce the lien after the death of the life tenant, when the remainderman predeceases the life tenant. The judgment is affirmed.

031515 Fireman's Fund Insurance Co. v. Sleigh 04/23/2004 In a declaratory judgment proceeding, the trial court correctly concluded that an uninsured motorist's use of a car door to injure the insured was a use of the uninsured vehicle "as a vehicle" such that uninsured motorist coverage was applicable under Code § 38.2-2206 and the terms of the injured insured's own motor vehicle insurance policy. The judgment is affirmed.

031519 Bullard v. Alfonso 04/23/2004 In a personal injury case, the trial court erred in excluding evidence of lost income allegedly suffered by the plaintiff, whose employer continued to pay him his regular salary during the period of his disability. The judgment is reversed and the case is remanded for a new trial limited to the issue of damages.

031532 Dyer v. Dairyland Insurance Co. 04/23/2004 A personal injury plaintiff's recovery for the negligence of one tortfeasor under the liability provision of a motor vehicle insurance policy did not preclude her recovery under the underinsured motorist provision of the same policy for the negligence of a joint tortfeasor. The trial court erred in ruling to the contrary on summary judgment. The judgment is reversed and final judgment is entered for the plaintiff.

031558 Milteer v. Commonwealth 04/23/2004 The evidence was sufficient to sustain defendant's conviction under Code § 59.1-41.3 for knowing possession of illegally reproduced videocassettes for sale, and that conviction is affirmed. A charge for possessing compact discs that did not disclose their true manufacturer (a counterfeiter) is dismissed because Code § 59.1-41.4 does not independently criminalize failure to abide by its labeling requirements. A related probation revocation disposition is reversed and remanded for further proceedings.

031698 Schwartz v. Commonwealth 04/23/2004 The circuit court did not err in finding defendant guilty of three counts of arson where the facts showed that two vehicles and a home were destroyed by fire ignited on one of the vehicles. The judgment of the Court of Appeals confirming these convictions is affirmed.

031770 MacNeal v. Town of Pulaski Bd. of Zoning Appeals 04/23/2004 Under Code § 15.2-2309(2) a board of zoning appeals has no authority to grant a variance from the applicable zoning ordinance provisions unless the ordinance, as applied to the property under consideration, would, in the absence of a variance, interfere with all reasonable beneficial uses of the property, taken as a whole. Three judgments involving variance resolutions are reversed and final judgments are entered.

031771 Bd. of Zoning of the City of Virginia Beach v. Pennington 04/23/2004 Under Code § 15.2-2309(2) a board of zoning appeals has no authority to grant a variance from the applicable zoning ordinance provisions unless the ordinance, as applied to the property under consideration, would, in the absence of a variance, interfere with all reasonable beneficial uses of the property, taken as a whole. Three judgments involving variance resolutions are reversed and final judgments are entered.

031824 O'Neill v. Windshire-Copeland Associates 04/23/2004 In responding to a certified question of law, it is held that a personal injury plaintiff's contributory negligence in connection with a fall from an apartment balcony may be relied upon by the defendant apartment owner even where the protective railing of the balcony does not comply with municipal building code height requirements.

031867 Jackson (Jerald) v. Commonwealth 04/23/2004 (Revised 04/28/2004) An anonymous tip lacked sufficient indicia of reliability to justify an investigatory stop of a vehicle in which defendant was a passenger. Thus, the stop and subsequent search of the defendant were illegal, and the trial court erred in refusing to grant pre-trial suppression of the firearm and narcotics evidence seized. The judgment of the Court of Appeals is reversed, and the indictments are dismissed.

040598 Orbe v. Johnson, Director, Va Dept. of Corrections (Order) 03/31/2004 Petitioner's federal constitutional issues, raised for the first time in his petition for rehearing of the Court's order denying his appeal, are barred pursuant to Rule 5:20 of the Rules of the Supreme Court of Virginia, and his petition for rehearing to set aside the judgment is denied. See Record No. 040598, Orbe v. Johnson dated March 30, 2004

040673 Orbe v. Johnson 03/31/2004 The trial court did not err in refusing injunctive relief staying appellant's execution because it lacked power to grant such relief and because a declaratory judgment action could not serve as the vehicle for obtaining such relief, due to the removal of appellant's claimed constitutional issues from actual controversy by operation of a statute under which he was deemed to have selected the method of his execution. Appellant's appeal and his request for a stay of execution are denied. See Record No. 040598, Orbe v. Johnson dated March 30, 2004

040597 Orbe v. Warden Sussex State Prison (Order) 03/30/2004 A petition for writ of habeas corpus attempting to challenge the constitutionality of Virginia's lethal injection protocol is dismissed for lack of jurisdiction where the petition failed to challenge petitioner's death sentence and either the fact or the duration of petitioner's imprisonment, and did not seek a determination that petitioner was entitled to an immediate or speedier release.

040598 Orbe v. Johnson, Director Va Dept. of Corrections (Order) 03/30/2004 (Revised 07/01/2004) The trial court correctly dismissed appellant's declaratory judgment action seeking an adjudication that Virginia's lethal injection protocol violates the Constitution of Virginia and a permanent injunction preventing the use of such protocol in carrying out his execution where appellant was deemed, by operation of statute, to have selected lethal injection rather than electrocution as the method of his execution. Appellant's petition for appeal and motions attendant thereto are denied. See Record No. 040598, Orbe v. Johnson dated March 31, 2004

003014 Elliott (Richard) v. Commonwealth 03/05/2004 (Revised 07/01/2004) In a proceeding remanded by the U.S. Supreme Court involving the constitutionality of Virginia's cross-burning statute, Code § 18.2-423, it is held that the prima facie evidence provision of the statute is unconstitutionally overbroad under the First Amendment and Article I, § 12 of the Constitution of Virginia. The statute is severable and the core provisions of the statute that remain are constitutional. The convictions of two defendants for cross burning are affirmed.

012883 Lenz, Michael W. v. Warden 03/05/2004 In a rehearing of the petitioner's application for a writ of habeas corpus, it is concluded that trial counsel were not ineffective in failing to object to a verdict form in the sentencing phase of petitioner's capital murder trial. The petition is denied. See Record #012883, Lenz v. Warden, dated April 17, 2003

030295 Gambrell v. City of Norfolk 03/05/2004 In a personal injury action involving a "slip and fall" accident on snow and ice in a municipal parking lot, the evidence was sufficient to support the circuit court's decision sustaining the city's special plea of sovereign immunity since the action related to governmental functions after a major snow storm.

030396 Bates v. Commonwealth 03/05/2004 In a wrongful death action against the Commonwealth under the Virginia Tort Claims Act, a notice of claim naming a university medical center was sufficient to comply with the requirements of Code § 8.01-195.6 for identification of the "place" where the injury was alleged to have occurred. The trial court erred in sustaining a plea of sovereign immunity and dismissing the claim with prejudice. The judgment is reversed and the case is remanded for further proceedings.

030461 Jerman v. Director Dept. of Corrections 03/05/2004 In a petition for a writ of habeas corpus raising claims of ineffective assistance of counsel with regard to the petitioner's conviction for abduction, there is not a reasonable probability that, but for counsel's alleged deficiencies, the outcome of the proceeding would have been different. The petition is dismissed.

030465 AAA Disposal Services v. Eckert 03/05/2004 A confession of judgment for the amount specified in the ad damnum clause of a motion for judgment was not valid and binding under Code § 8.01-431 without the plaintiff's acceptance. Therefore, the circuit court did not err in granting the plaintiff's motion to nonsuit the action after the defendant's filing of the confession.

030495 Spero v. Heath 03/05/2004 The trial court abused its discretion in determining that a name change was in the best interests of a minor child, where the child is in the mother's custody, lives with the mother and bears her surname. The natural father petitioned the court to change the child's surname to his own. The judgment is reversed, the name change order is vacated, and the petition is dismissed.

030500 Shipman v. Kruck 03/05/2004 A cause of action for legal malpractice accrued at the time of the attorney's breach, subject to the continuous representation rule. Therefore, the plaintiffs had three years from the end of the attorney's representation of them in which to file their claim. Since the action was commenced almost three years and eight months later, the trial court did not err in granting the defendant's plea in bar of the statute of limitations. The judgment is affirmed. (Revised 3/31/04)

030592 King George County Service Authority v. Presidential Service Company 03/05/2004 The circuit court was correct in specifically enforcing an agreement for the purchase of a private water company's existing water system by a county service authority under an agreement ratified by the authority's board, but erred in directing the authority to purchase other water and sewer system facilities because there was no resolution of the authority's board authorizing or ratifying a further agreement. The decree is affirmed in part and reversed in part.

030634 Harrison-Wyatt LLC v. Ratliff 03/05/2004 The trial court correctly ruled that where a surface owner of a tract of land, or his predecessor-in-title, has conveyed all the coal in and under his land, title to the coal bed methane gas in the tract has not passed to the coal owner along with the coal. The trial court's judgment is affirmed. (Revised 4/1/04)

030637 Washington v. United Parcel Service 03/05/2004 In a workers' compensation appeal, the Court of Appeals erred in addressing an issue of causal connection that was not properly before that court and not properly before the Commission. As a result, there was no basis for concluding that the claimant would be unjustly enriched by receiving benefits to which he was not entitled. A prior award of benefits remains valid, and the refusal to assess a 20% penalty was error. The judgment is reversed and the case is remanded for further proceedings. (Revised 3/8/04)

030638 The Dunbar Group LLC v. Tignor 03/05/2004 In litigation involving the requested expulsion of a member of a limited liability company and an application for judicial dissolution of that entity, the trial court's judgment is affirmed in part, reversed in part, and final judgment is entered.

030658 Wright v. Kaye 03/05/2004 (Revised 05/18/2004) In a medical malpractice action, the trial court erred in striking the plaintiff's expert witnesses and granting summary judgment for the defendant doctor. The court also erred in failing to grant certain in limine motions to exclude the discussions about risks of surgery and to bar certain hearsay statements. Other in limine motions were correctly decided. The judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings.

030723 Beck v. Shelton 03/05/2004 (Revised 07/01/2004) The trial court did not err in concluding that members-elect of a public body are not "members" under the plain language of The Freedom of Information Act (FOIA) and that a neighborhood street gathering was not a "meeting" under the FOIA, but did err in concluding that the e-mail communications used in this case constituted a "meeting" under the FOIA. The judgment is affirmed in part and reversed in part, and final judgment is entered.

030744 Barkley v. Wallace 03/05/2004 Because the circuit court erred in ruling that evidence of a personal injury plaintiff's medical bills and expenses that were discharged in bankruptcy was inadmissible for the limited purpose of proving her pain and suffering caused by the accident, the judgment is reversed and the case is remanded.

030800 Phipps v. Liddle 03/05/2004 Where the granting of a nonsuit was appealed, Code § 8.01-229(E)(3) afforded the plaintiff six months to refile the action, running from the date the appellate court's mandate resolving the appeal was entered by the trial court. Because the plaintiff refiled the present action within that period, the trial court erred in dismissing it as untimely. The judgment is reversed and the case is remanded for further proceedings.

030892 Russ v. Destival 03/05/2004 A jury instruction stating that a bicyclist has a duty to refrain from entering or crossing an intersection in disregard of "close or approaching" traffic is an inaccurate statement of law in light of the plain terms of Code § 46.2-924(B), and thus the circuit court erred in granting the instruction. The judgment is reversed and the case is remanded.

030942 Commonwealth v. Jones 03/05/2004 The Court of Appeals erred in holding that the doctrine of inevitable discovery was inapplicable to support the trial court's refusal to suppress evidence seized in a search purportedly lacking in probable cause. The judgment is reversed and final judgment is entered.

031016 Kingsbur v. Commonwealth 03/05/2004 The trial court correctly concluded that, in spite of its being in a state of disrepair, a handgun that was found in the defendant's possession was a firearm for purposes of Code § 18.2-308.2 and did not err in refusing to grant the defendant's motion to strike the evidence supporting his conviction for unlawful possession of a firearm by a convicted felon. The judgment of the Court of Appeals upholding the defendant's conviction is affirmed.

031036 Commonwealth v. Duncan 03/05/2004 The Court of Appeals erred in reversing a circuit court's holding that a defendant's acts and omissions in the care of his six-month- old son were "so gross, wanton and culpable as to show a reckless disregard for human life" under Code § 18.2-371.1. The judgment of the Court of Appeals is reversed and the defendant's conviction for child abuse and neglect is reinstated in accordance with the circuit court's judgment order.

031610 Elliott, Larry Bill v. Commonwealth 03/05/2004 The automatic review of defendant's death sentence is consolidated with appeal of his capital murder and other non-capital convictions. Upon considering the issues raised by the defendant and conducting the mandated review of the imposition of the death penalty in this case, no error is found in the judgment of the trial court. The judgment and the sentence of death are affirmed. See Record #050573, Elliott, Larry Bill v. Commonwealth dated November 2, 2007

032153 Lewis v. Commonwealth 03/05/2004 No error is found in a review of the sentences of death imposed upon defendant after her guilty plea to charges of capital murder for hire in violation of Code § 18.2-31(2), robbery and related firearms offenses. There is no reason to commute the death sentences, and the judgment of the circuit court is affirmed.

031823 Rice v. Virginia State Bar 02/20/2004 The Virginia State Bar Disciplinary Board did not err in finding that an attorney failed to exercise proper diligence in representing his client under Rule of Professional Conduct 1.3(a), but the Board did err in finding that the attorney had violated Rule 8.1(c) based upon his failure to appear at a disciplinary hearing. The Board's findings are affirmed in part, reversed in part, and the sanction is remanded for reconsideration.

022409 Barter Foundation v. Widener 01/16/2004 In a suit concerning dedication of streets for public use, the chancellor correctly ruled that a town has not accepted dedication of a 25 foot wide street contained in a 1944 subdivision plat, but that this dedication has not been abandoned. Plaintiff neighboring landowners have not acquired fee simple ownership of the property, and the defendant adjacent landowner and the general public have a right-of-way or easement to use that property as a public way. The decree is affirmed.

022678 Hines v. Kuplinski 01/16/2004 The trial court did not err in dismissing a petition for a writ of habeas corpus, where the record did not support the petitioner's assertion that he could not have discovered the grounds for habeas corpus relief within the two-year limitations period established by Code § 8.01-654(A)(2) and the petition was not filed within this period. The judgment of the trial court is affirmed.

022984 Frederick County School Bd. v. Hannah 01/16/2004 The trial court did not err in denying a school board's motion to reduce certain tort plaintiffs' ad damnum to $50,000, the limit on liability for school bus accidents set forth in Code § 22.1-194, and in awarding damages in excess of the $50,000 limit. The judgment is affirmed.

030058 Clean Sweep v. Talley 01/16/2004 The trial court erred in overruling pleas in bar based upon the exclusivity provisions of the Virginia Workers' Compensation Act, because plaintiff and the alleged tortfeasor are statutory fellow employees. The judgment is reversed, and final judgment is entered sustaining the pleas in bar.

030085 Rawlings v. Lopez 01/16/2004 The circuit court erred in holding that the plaintiffs' claims were precluded by the doctrines of collateral estoppel and res judicata, because the parties in a prior suit were different, mutuality was lacking, and there was no privity between the present plaintiffs and the plaintiff in the prior suit. The judgment of the circuit court is reversed and the cases are remanded for further proceedings.

030109 Tazewell County School Bd. v. Brown 01/16/2004 The trial court erred in finding that a school principal was entitled to proceed with a grievance under the local grievance procedure established pursuant to Code § 22.1-79, rather than the statewide grievance procedure established by the State Board of Education pursuant to Code § 22.1-308, as a means of addressing his suspension and that such suspension was properly a grievable matter under that procedure. The judgment of the trial court is reversed.

030123 Jones v. Peacock 01/16/2004 An executor failed to satisfy the burden of establishing that an elderly man did not have the mental capacity to understand his right to elect against his deceased wife's will and take a share of the estate as prescribed by statute. The judgment of the trial court is reversed and the case is remanded for further proceedings.

030180 River Heights v. Batten 01/16/2004 (Revised 07/01/2004) The trial court correctly held that owners of lots in a subdivision sufficiently showed a justiciable controversy under Virginia's declaratory judgment statutes, and correctly determined that a restrictive covenant prohibiting commercial use of certain lots within the subdivision was not rendered unenforceable, either as the result of a plat note restricting access to the lots if they were to be put to residential uses, or as the result of changed conditions. The judgment of the trial court is affirmed.

030181 Wright v. Eckhardt 01/16/2004 The trial court erred in holding that the doctrine of res judicata barred an application to accord full faith and credit to a judgment of the Texas Court of Appeals. The judgment is reversed and the case is remanded for further proceedings.

030258 Rector and Visitors of UVA v. Carter 01/16/2004 The trial court erred when it failed to grant a public university's plea of sovereign immunity because the limited waiver of such immunity in the Virginia Tort Claims Act leaves intact the sovereign immunity of the Commonwealth's agencies. The judgment is reversed and the case is remanded for further proceedings.

030269 National Housing v. Acordia of Virginia 01/16/2004 In a suit by a builder against an insurance agency alleging negligent failure to list the builder as a named insured under a builder's risk insurance policy, the trial court correctly concluded that the builder could not recover damages because the policy would not have covered the loss actually suffered, mitigation expenses arising from the builder's use of defective or deficient materials or designs. The judgment of the trial court for the defendant insurance agency is affirmed.

030286 McMinn v. Rounds 01/16/2004 In a civil action based upon an alleged assault and battery in which the defendant pled self-defense, the trial court erred in admitting testimonial evidence of a prior, specific act of alleged assaultive or combative behavior on the part of the plaintiff. The judgment is reversed and the case is remanded.

030294 Hudson (Alexander) v. Commonwealth 01/16/2004 (Revised 07/01/2004) The Court of Appeals did not err in rejecting a defendant's claim that he was denied his right under Code § 19.2-243 to a "speedy trial." That Court did err in considering whether the defendant affirmatively claimed speedy trial protections, and whether he was prejudiced by the delay in coming to trial. The judgment is affirmed.

030310 Jones (Robert) v. Commonwealth 01/16/2004 (Revised 07/01/2004) The trial court correctly ruled that the University of Virginia is a governmental entity for the purposes of determining its status as a statutory employer under the Virginia Workers' Compensation Act, and in holding that a tort claim against the University and its employees is therefore barred. The judgment is affirmed.

030390 Richardson v. AMRESCO Resid. Mtge. Corp. 01/16/2004 The trial court erred in concluding that, under the Uniform Transfers to Minors Act, a former guardian's conveyance of an asset of a minor's custodial estate to herself via quitclaim deed was a valid, protected transfer and that subsequent deeds of trust encumbering the asset were valid and enforceable liens against the proceeds of the sale of that asset to a third party. The judgment is reversed and the case is remanded for entry of an order invalidating the quitclaim deed and deeds of trust.

030401 Commonwealth v. Minor 01/16/2004 The trial court abused its discretion in denying a defendant's motion for separate trials of indictments for offenses against three victims occurring on three different dates. In this case, evidence of the other crimes was not relevant to the only contested issue, whether each victim consented to sexual intercourse. The judgment of the Court of Appeals reversing defendant's convictions is affirmed.

030476 White v. Commonwealth 01/16/2004 Defendant's conviction for felony escape in violation of Code § 18.2-479(B) is reversed and the underlying indictment is dismissed because there was no evidence that defendant was in "custody" within the meaning of that statute prior to his flight from a police officer.

030589 Commonwealth v. Jones (Eric) 01/16/2004 (Revised 07/01/2004) Defendant's convictions for robbery and use of a firearm during that robbery are reinstated, where the evidence showed that defendant used violence and/or intimidation to convert custody of merchandise he had taken into possession in committing a robbery. The judgment of the Court of Appeals is reversed and the case is remanded for reinstatement of the trial court's judgment.

030848 Alger v. Commonwealth 01/16/2004 (Revised 07/01/2004) The Court of Appeals correctly concluded that Code § 18.2-380.2 did not permit defendant, who had been previously convicted of a felony, to possess a firearm within her home, the curtilage thereof, or anywhere else. The judgment of the Court of Appeals is affirmed.

031022 Blevins v. Commonwealth 01/16/2004 The trial court did not err in denying a motion for a mistrial based on alleged dishonesty of a juror during voir dire, where defendant failed to establish both that the juror failed to answer honestly a material question and that a correct response would have provided a valid basis to challenge the juror for cause. The Court of Appeals judgment upholding the trial court's ruling is affirmed.

031053 Dogwood Valley v. Winkelman 01/16/2004 The circuit court erred in concluding that a particular community association was a property owners' association within the meaning of the Virginia Property Owners' Association Act. That portion of the decree is reversed, and other portions of the decree based on the Act are vacated. Other rulings are affirmed, and final judgment is entered.$ib

031186 Commonwealth v. Jackson 01/16/2004 (Revised 07/01/2004) The Court of Appeals erred in concluding that a trial judge must recuse himself from presiding over a probation revocation hearing if he was the Commonwealth's Attorney for the jurisdiction at the time and place of the defendant's original criminal conviction. The judgment of the Court of Appeals is reversed and the judgment of the trial court is reinstated.

031306 Johnson v. Commonwealth 01/16/2004 No error is found upon review of the death sentence imposed in a resentencing proceeding in a capital murder case pursuant to Code § 19.2-264.3. The judgment is affirmed.

031421 Powell v. Commonwealth 01/16/2004 No error is found upon review of the capital murder conviction and death penalty imposed on the defendant for the crime of capital murder during the commission of or subsequent to attempted rape. The judgment is affirmed. (Revised 2/12/04)

031461 Hudson (James) v. Commonwealth 01/16/2004 The defendant received a death sentence upon a plea of guilty to capital murder. Although defendant waived appeal, Code § 17.1-313 mandates review of the death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, and whether that sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Upon such review, the judgment of the trial court is affirmed.

031517 Jackson (Jerry) v. Commonwealth 01/16/2004 No error is found upon review of the convictions and sentences imposed on the defendant, including sentences of death for committing capital murder in the commission of rape or attempted rape and in the commission of robbery or attempted robbery. The convictions and sentences are affirmed.

020306 Ryland v. Manor Care Inc. 10/31/2003 The circuit court correctly ruled in a suit in equity under Code § 8.01-428 that a default judgment should not be enforced. The judgment is affirmed.

021271 Montgomery Mutual Ins. v. Riddle 10/31/2003 In a declaratory judgment action seeking to determine insurance coverage, the trial court was not plainly wrong or without evidence to support its finding that an insurance agent did not rely on statements or omissions in certain policy applications in binding coverage, and hence that an insurer had failed to make the showing required under Code § 38.2-309 to void the policy. The judgment is affirmed.

022075 Blake Constr. v. Upper Occoquan Sewage Auth. 10/31/2003 In litigation arising from a construction contract with a public body, the trial court erred in sustaining the public body's demurrer to the plaintiff's claim that certain provisions of the contract were unenforceable and void as against public policy under Code § 2.2-4335(A). The trial court correctly dismissed plaintiff's claim for damages under a particular work order for failure to give a timely notice of claim. The judgment is affirmed in part and reversed in part, and the case is remanded. (Revised 11/13/03)

022195 Daniels v. Warden 10/31/2003 The allegations of fact in a petition for a writ of habeas corpus, forming the basis of the claims challenging the legality of petitioner's convictions, unquestionably were known to him at the time he filed a prior habeas petition in the trial court, but were not raised therein. Accordingly the present petition for a writ of habeas corpus will be dismissed pursuant to Code § 8.01-654.

022213 Williams v. Gloucester Sheriff's Dept. 10/31/2003 The Court of Appeals did not err in applying Rule 5A:18 in this case and holding that the claimant failed to preserve the issues he sought to raise in his appeal. The judgment of the Court of Appeals is affirmed.

022402 Volkswagen of America v. Smit 10/31/2003 The Court of Appeals erred in affirming a circuit court judgment upholding a decision of the Commissioner of the Department of Motor Vehicles that an automobile distributor violated Code § 46.2- 1569(7), which requires a finding that the distributor failed to ship to a Virginia dealer a quantity of new vehicles that meets the statute's requirements. The decision is reversed in part and vacated in part, and the case is remanded.

022435 Kappa Sigma Fraternity Inc. v. Kappa Sigma Fratern 10/31/2003 Because a challenge to a voidable corporate act is subject to the defense of the statute of limitations, the trial court erred in failing to apply the statute to certain 1974 corporate changes and in related rulings about the imposition of express and constructive trusts with respect to the entity's assets, vacating director and officer positions, and appointing a commissioner in chancery to manage the corporation's assets and operations. The judgment is reversed, vacated in part, and final judgment is entered.

022524 Esteban v. Commonwealth 10/31/2003 In a prosecution under Code § 18.2-308.1(B) for possession of a firearm on school property, the trial court correctly treated the offense as one of strict criminal liability, and did not err in rejecting a jury instruction proposed by the defense that asked for a finding on defendant's knowing possession of the weapon, as proof of mens rea or scienter. The judgment is affirmed.

022528 Upper Occoquan Sewage Auth. v. Blake Constr. 10/31/2003 In an appeal from multiple jury verdicts and rulings of the circuit court in proceedings between a public authority and a construction joint venture arising out of a contract for the building of a waste water treatment facility, the judgment is affirmed in part and reversed in part. (Revised 11/13/03)

022543 Lewis v. C.J. Langenfelder & Son 10/31/2003 Because removal of an action from state court to federal court effects a transfer of the entire case, this Court has no jurisdiction to hear an appeal from dismissal of a claim filed in Virginia circuit court under the Jones Act, 46 U.S.C. § 688, but which the trial court dismissed prior to removal of the action. The appeal is dismissed without prejudice.

022575 Chase v. DaimlerChrysler Corp. 10/31/2003 A consumer who ended her case against a car manufacturer under the Virginia Motor Vehicle Warranty Enforcement Act in a settlement that did not conclude with an order or judgment in her favor, was not a "successful party" entitled to attorney's fees pursuant to Code § 59.1-207.14. The judgment of the trial court denying recovery of fees and costs is affirmed. (Revised 11/13/03)

022776 Commonwealth v. Nuckles 10/31/2003 The Court of Appeals erred reversing the conviction of a defendant charged with grand larceny based upon the Commonwealth's failure to prove that the party from whom the property was taken was a corporation as stated in the indictment. The corporate status of the victim was not necessary to identify it, or to establish an element of the offense. The judgment of the Court of Appeals is reversed and defendant's conviction is reinstated.

022852 Klaiber v. Freemason Associates 10/31/2003 In separate suits asserting various claims for damages arising from the conveyances of two individual units of a condominium, the trial judge did not err in ruling as a matter of law that plaintiffs failed to allege a compensable loss sufficient to support claims of fraud and false advertising, but erred in granting summary judgment against claims for breach of contract and breach of statutory warranties arising from the same transactions. The judgment is affirmed in part, reversed in part, and the case is remanded. (Revised 11/3/03)

022937 Glazebrook v. Board of Supervisors 10/31/2003 The trial court erred in sustaining a county's demurrer in a suit seeking to invalidate certain zoning ordinance amendments for failure to provide adequate published notice describing the nature of the proposals to be considered. Since the publications did not provide an adequate "descriptive summary," the amendments were void ab initio. The judgment is reversed and the case is remanded.

022966 Chappell v. Perkins 10/31/2003 In a suit for the establishment of a surviving spouse's elective share of his deceased wife's estate, the circuit court did not err in applying Code § 64.1-16.1 as it existed at the time of the wife's death, in placing the burden of proof on the estate to establish that certain property should be excluded from her augmented estate, and in including certain property in the augmented estate. The judgment is affirmed.

022983 Wilkins v. Peninsula Motor Cars 10/31/2003 The trial court erred in requiring the plaintiff in an action under the Virginia Consumer Protection Act against a car dealership to elect between remedies after a jury awarded recovery under the Act as well as a common law fraud count, and awarded both enhanced and punitive damages. The judgment is reversed and the case is remanded.

030008 Ford Motor Company v. Jones 10/31/2003 The trial court properly permitted a plaintiff to take a voluntary nonsuit pursuant to Code § 8.01-380(A) after a judgment that confirmed a jury verdict had been reversed, and the case had been remanded to the circuit court for the new trial. The judgment is affirmed.

030039 Board of Supervisors v. Robertson 10/31/2003 The trial court erred in holding that denial of a landowner's application for a deviation from zoning ordinance provisions requiring a setback of buildings from a nearby road was arbitrary, capricious, and unreasonable. Sufficient evidence of reasonableness is present to make the denial a fairly debatable issue, and the judgment of the circuit court is reversed. Final judgment is entered for the county.

030070 Herndon v. St. Mary's Hospital 10/31/2003 In a medical malpractice action involving a minor, the trial court correctly dismissed without prejudice a suit brought under the style "Debbie Thompson Herndon, as mother and next friend of Matthew McNeil Herndon" because the common law requires that an action on behalf of a minor child be brought in the child's name, not in the name of his next friend, and the 1998 amendment to Code § 8.01-8 did not express an intention to change that rule.

030081 Pease v. Commonwealth 10/31/2003 The Court of Appeals correctly ruled that the trial court did not err in a criminal case by entering judgment upon a jury verdict convicting the defendant. The judgment is affirmed.

030334 Holsapple v. Commonwealth 10/31/2003 The Court of Appeals correctly affirmed the judgment of the trial court convicting defendant of construction fraud. The judgment is affirmed. (Edited 1/16/04)

030450 Dana v. 313 Freemason 10/31/2003 In a case arising from the development and sale of condominium property, the trial court did not err in piercing the corporate veil of a close corporation to assess liability for a judgment against the corporation upon its stockholders. The judgment is affirmed.

030749 Jackson v. Commonwealth 10/31/2003 No error is found upon review of the capital murder conviction and death penalty imposed on the defendant along with his convictions for robbery, felony stabbing, and statutory burglary. The judgment is affirmed. (Revised 1/16/04)

012663 Lovitt v. Warden 09/12/2003 In a petition for a writ of habeas corpus by a prisoner convicted of capital murder and sentenced to death, neither the failure of the prosecution to disclose allegedly exculpatory information to defense counsel before trial, nor destruction of evidence after the trial, provided any valid basis for habeas corpus relief. Petitioner's claim that his trial counsel were ineffective is also rejected. The petition is dismissed.

021761 Honsinger v. Egan 09/12/2003 In a personal injury case, the use of the phrase "reasonable certainty" in two jury instructions proposed by the defendant rendered them either confusing or an incorrect statement of the law in appearing to impose upon the plaintiff a burden greater than that of proving her case by a preponderance of the evidence. The trial court did not err in refusing to grant the two instructions, and the judgment is affirmed.

022303 Gaston v. Commonwealth 09/12/2003 In an appeal from the circuit court's denial of a motion under Code § 19.2-327.1 for post-trial scientific analysis of certain evidence, the language of Code § 19.2-327.1(G) is clear and unambiguous and means that a circuit court's ruling is unappealable. Consequently, the appeal is dismissed for want of jurisdiction.

022351 Buchanan v. Buchanan 09/12/2003 In an appeal from consolidated divorce and fraudulent conveyance proceedings, the wife was properly permitted to pursue payment from the husband under the fraudulent conveyance statute, and the trial court's orders directing that a special commissioner hold certain funds did not create constructive trusts. An issue regarding attorneys' fees is moot. The judgment is affirmed.

022359 Zimmerman v. Commonwealth 09/12/2003 In a case involving charges that defendant feloniously assaulted a law enforcement officer engaged in public duties, viewing the evidence in its proper light there was sufficient proof to support a conviction based on the manner in which defendant drove his vehicle while the officer was standing in the roadway waving for him to stop. The judgment is affirmed.

022417 Atrium Unit Owners Assoc. v. King 09/12/2003 In a negligence case, the plaintiff failed to produce sufficient evidence from which a jury reasonably could infer a causal connection between a condominium unit owners association's alleged failure to use due care regarding a convenience key and the damages sustained by plaintiff in a burglary of her condominium. The judgment implementing a jury verdict for the plaintiff is reversed. (Revised 3/31/04)

022434 Andrews v. Ring 09/12/2003 In suits against a county's Commonwealth's attorney and a building inspector, the trial court did not err by granting defense motions for summary judgment on claims under Code §§ 18.2-499 and -500, as well as certain malicious prosecution claims. However, the evidence did not support issuance of a criminal warrant against the chairperson of the county school board, and her malicious prosecution case is remanded for further proceedings. The judgments are affirmed in part, reversed in part, and remanded.

022446 Commonwealth v. Diaz 09/12/2003 In a case in which a suspended misdemeanor sentence was revoked based upon a felony occurring after the misdemeanor conviction in general district court but prior to withdrawal of an appeal to the circuit court from that conviction, the Court of Appeals erred in concluding that the circuit court erroneously revoked the suspended portion of the defendant's sentence. The judgment of the Court of Appeals is reversed and final judgment is entered in accordance with the judgment of the circuit court.

022479 Atkins v. Rice 09/12/2003 The trial court erred in granting a nonsuit after a defendant's motion to dismiss had been filed, memoranda of law in support and in opposition were submitted, arguments had been made before the trial court by both parties, no further evidence was to be presented or arguments to be made, and the case had been submitted to the court for decision. The judgment is reversed and the case is remanded.

022514 Estes Funeral Home v. Adkins 09/12/2003 In an equal protection challenge to a county ordinance levying fees for solid waste disposal, the classifications in the ordinance do not bear a reasonable relation to a legitimate governmental objective and the record is devoid of evidence of reasonableness sufficient to make the issue fairly debatable. The judgment of the circuit court upholding the constitutionality of the ordinance is reversed.

022578 Alderson v. County of Alleghany 09/12/2003 Chapter 78 of the 2002 Acts of Assembly, addressing personal property taxes in the former City and current Town of Clifton Forge and the County of Alleghany, does not violate the Constitution of Virginia. The judgment of the trial court is affirmed.

022591 Hansen v. Stanley Martin Companies 09/12/2003 In an action by homeowners against the builder of their home, in which summary judgment was granted to the defendant based on applicable statutes of limitations, as to certain of the claims the limitations defenses were susceptible of summary adjudication while as to other claims the limitations defenses were not. The judgment of the trial court is affirmed in part, reversed in part, and the case is remanded.

022592 Cohn v. Knowledge Connections Inc. 09/12/2003 The trial court correctly granted an employer's motion to strike the evidence and motion to set aside a verdict in a fraud case returned on behalf of a prospective employee. The judgment of the trial court is affirmed.

022659 Virginia Financial Assoc. v. ITT Hartford Group 09/12/2003 In a case seeking quantum meruit compensation for services performed in an insurance venture, the plaintiff presented sufficient evidence to establish the reasonable value of services it rendered to the defendant. The circuit court did not err in permitting two witnesses to testify as to customary compensation in such circumstances. The judgment is affirmed.

022703 Hudson v. Commonwealth 09/12/2003 A conviction for refusal to submit to a breath alcohol test in violation of Code § 18.2-268.3 is affirmed upon review of arguments that the defendant's initial detention was unlawful and that defendant established that he was unable to take a breath alcohol test. The judgment of the circuit court is affirmed. (Revised 2/12/04)

022710 Barner v. Chappell 09/12/2003 The chancellor correctly determined that a restrictive covenant prohibiting building a house or other structure on a lot in a residential subdivision is enforceable by neighboring landowners who acquired interests through original grantees whose deeds were executed after the deed containing the restriction. The chancellor incorrectly determined, in the alternative, that the restriction is enforceable as an equitable servitude. Final judgment is entered upholding the permanent injunction issued against the defendants.

022877 Velocity Express v. Hugen 09/12/2003 In a personal injury case, the plaintiff's closing argument to the jury was prejudicial and constituted reversible error. Plaintiff established liability and the improper jury argument could not have affected the finding of negligence. The judgment is affirmed in part and reversed in part, and the action is remanded for a new trial solely on the issue of damages.

030312 MCI WorldCom Network Service v. OSP Consultants 09/12/2003 A question of law certified by the United States Court of Appeals for the Fourth Circuit, inquiring whether a telecommunications services carrier is entitled to loss of use damages in the absence of evidence that it suffered loss of revenue or other damages during the time that its transmission cable was unavailable due to a defendant's actions, is answered in the negative.

000395 Atkins v. Commonwealth 06/06/2003 In a capital murder case on remand from the Supreme Court of the United States, petitioner's claim of mental retardation is not frivolous. Because the claim was presented on direct appeal and the case is now being remanded to the circuit court where the sentence of death was imposed by a jury, a new jury shall be empaneled for the sole purpose of making a determination of mental retardation. See Record No. 052348, Atkins v. Commonwealth dated June 8, 2006

020757 Green v. Commonwealth 06/06/2003 The automatic review of defendant's death sentence for murder during a robbery is consolidated with appeal of his capital murder conviction. Upon considering the issues raised by the defendant and conducting the mandated review of the imposition of the death penalty, there is no error found in the judgment of the circuit court. The judgment and the sentence of death are affirmed.

020938 Tanner v. State Corporation Commission 06/06/2003 Upon a petition for rehearing filed by the State Corporation Commission, a prior decision in this appeal, which construed various provisions of the Virginia Securities Act, is modified. Securities issued pursuant to federal Rule 504 Regulation D under the authority of § 3(b) of the Securities Act of 1933 are not "covered securities" and, therefore, must be registered under Virginia Code § 13.1-507. See Record No. 020938, Tanner v. State Corporation Commission dated January 10, 2003

021186 Commonwealth v. Fletcher 06/06/2003 The Court of Appeals correctly held that a parent whose "residual parental rights" have been terminated no longer owes a duty to support her minor children. The judgment is affirmed.

021718 Miles v. Sheriff of Va. Beach City Jail 06/06/2003 In an appeal from a judgment dismissing a petition for a writ of habeas corpus, petitioner asserted ineffective assistance of counsel because his trial counsel failed to appeal. Although the petitioner pled guilty, counsel's failure to file an appeal after having been instructed to do so constituted deficient performance and petitioner is entitled to a belated appeal. The judgment of the circuit court dismissing the petition for a writ of habeas corpus is reversed.

021741 Board of Dir. Colchester v. Wachovia 06/06/2003 The trial court correctly determined that proceeds from the sale of a condominium unit pursuant to Code § 55-79.84(I) must be used to satisfy a first deed of trust lien before a condominium association's lien for unpaid condominium fee assessments. The judgment is affirmed.

021968 Dickerson v. Commonwealth 06/06/2003 Subsequent to a traffic stop, questions by a law enforcement officer after the defendant was told he was free to leave were asked in the context of a consensual encounter and, therefore, the defendant was not seized in violation of Fourth Amendment rights. Accordingly, the trial court did not err in denying defendant's motion to suppress narcotics evidence seized from his vehicle, and the judgment of the Court of Appeals upholding his conviction is affirmed.

021981 City of Suffolk v. Board of Zoning 06/06/2003 There is credible evidence to support the findings of a board of zoning appeals and the trial court that certain land use rights vested in a landowner as to property in a development. Neither the trial court nor the BZA was plainly wrong in determining that a rezoning of a specific tract of land in 1988 was a significant affirmative governmental act and that the developer thereafter incurred significant expenditures in diligent pursuit of the entire project. The trial court's decision is affirmed.

021985 Lackman v. Long & Foster Real Estate 06/06/2003 The trial court did not err in rejecting contentions that an arbitration award should be vacated because it was procured by fraud, because the arbitrators engaged in misconduct, or because the arbitrators exceeded their powers. Nor did it not err in striking a count which invoked the trial court's equity powers to enjoin enforcement of the arbitration award based on equitable defenses of fraud, estoppel, and unclean hands. The judgment is affirmed.

021987 Utsch v. Utsch 06/06/2003 Because the text of a deed of gift proves by clear and convincing evidence the intent of a husband to jointly title a marital residence and proves the donative intent of the husband in making the transfer, the Court of Appeals erred in finding the instrument ambiguous in certain respects and in directing that parol evidence be used in interpreting it. That judgment is reversed and the case is remanded to the Court of Appeals for consideration of other issues.

021993 Jenkins v. Bay House Associates 06/06/2003 In a proceeding in equity concerning ownership and use of a "salt pond," that portion of a chancellor's decree holding that plaintiff owns the bed of the pond and enjoining defendant landowners from trespassing upon the submerged land is affirmed. Those portions of the decree holding that plaintiff owns the pond's waters, and enjoining defendants from building or maintaining piers or other structures in those waters that do not touch the pond bed, are reversed.

022168 Harris v. Commonwealth 06/06/2003 Since a driver was illegally detained by police after a traffic stop and identity check were completed, evidence of stolen material obtained in a search of his truck should have been suppressed. The judgment of the Court of Appeals is reversed and the conviction is vacated. The case will be remanded.

022189 Pollack v. Allen 06/06/2003 The circuit court erred by requiring a substitute trustee under deeds of trust to file accounts of sale with the commissioner of accounts with respect to advertised foreclosure sales that were not made and further erred by assessing fees personally against the trustee for summonses and reports issued by the commissioner with regard to those advertised sales. The judgment is reversed.

022212 C.F. Trust Inc. v. First Flight 06/06/2003 In response to two questions of Virginia Law certified by the United States Court of Appeals for the Fourth Circuit, it is held that Virginia would recognize a claim for outsider reverse veil- piercing under the facts of this case and the standards which must be met for such reverse veil-piercing of a limited partnership are set out in the opinion.

022242 GEICO v. Moore 06/06/2003 In declaratory judgment proceedings involving a first-party claim for coverage relating to personal injuries sustained on account of a spouse's negligence, the trial court erred in determining that the omnibus clause of Code § 38.2-2204(A) applied to an umbrella insurance policy and also erred in determining that an exclusion in the policy was vague and ambiguous. The trial court also erred in applying a severability of interests clause. The judgment is reversed and final judgment entered for the insurer.

022244 Yellow Freight v. Courtaulds 06/06/2003 Before an employer petitioned to enforce subrogation rights in an employee's personal injury action, the employee entered a settlement absolutely releasing the tortfeasor from liability. Although the employee's motion for judgment was still pending, he no longer had a right of recovery. The employer's petition was filed prior to a verdict, but its right of subrogation was no longer enforceable. The judgment of the trial court denying the employer's petition is affirmed.

022260 Fowler v. Winchester Medical Center 06/06/2003 A suit for wrongful death brought by a nonresident party who was not qualified as a personal representative in Virginia or any other state did not serve to toll the statute of limitations while it was pending. The trial court's dismissal of the proceeding with prejudice is affirmed.

022458 Cilman v. Virginia State Bar 06/06/2003 An attorney charged with failure to provide required notice to clients that his license to practice law was suspended made a timely demand that the alleged violations be tried before a three- judge court, and from that point the Virginia State Bar Disciplinary Board had no authority to adjudicate the adequacy of the attorney's compliance with the notice requirement. The order suspending the attorney's license for an additional two years is reversed and the case remanded.

012883 Lenz, Michael W. v. Warden 04/17/2003 A convicted murder's habeas corpus claims are dismissed except for a claim that he was denied effective assistance of counsel because his trial counsel failed to object to improper verdict forms. The petition for habeas corpus is granted in that respect only, and petitioner shall be granted a new sentencing hearing. See Record No. 002779, Lenz v. Warden, dated April 20, 2001. See Lenz v. Warden, Record #012883 dated March 5, 2004

021006 Berner v. Mills 04/17/2003 The Court of Appeals correctly affirmed a decision of the Workers' Compensation Commission that it lacked jurisdiction to consider a claim against a professional corporation under the Virginia Birth- Related Neurological Injury Compensation Act because statutory amendments including professional corporations under the Act do not apply retroactively to bar a wrongful death action filed in a circuit court against a particular professional corporation. The judgment is affirmed.

021201 Allstate Insurance Co. v. Wade 04/17/2003 The trial court did not err in refusing to allow plaintiff's uninsured motorist insurance carrier to inform the jury that a punitive damage award would not serve deterrent purposes because the insurer would be the source of payment, nor was it an abuse of discretion to refuse to bifurcate the jury's consideration of punitive and compensatory damages. The compensatory damage awards were not excessive, and the evidence supported the award of punitive damages against one defendant. The judgment is affirmed.

021324 Rose v. Commonwealth 04/17/2003 The trial court erred in denying a defendant's motion to strike and in convicting him of driving after having been adjudicated an habitual offender, second or subsequent offense, and the Court of Appeals erred in sustaining the conviction. The judgment is reversed, the indictment charging appellant with violating Code § 46.2-357 is dismissed, and final judgment is entered for the defendant.

021350 Shaheen v. County of Mathews 04/17/2003 In the absence of prejudice to the defendant landowners, the trial court did not err in allowing a county to withdraw and amend responses to requests for admissions so that the merits of its claim could be tried. The trial court also did not err in "affirming" the existence of a public easement because the landowners were not innocent purchasers without constructive notice, and because they implicitly agreed to a description of the landing in accepting their deed. The judgment is affirmed.

021419 Harrell v. City of Norfolk 04/17/2003 The trial court did not err in granting a city's special plea in bar and dismissing a motion for judgment for personal injuries on the ground that the alleged negligence concerned maintenance of a crosswalk that was a traffic regulatory device which involves a discretionary governmental function, invoking the locality's governmental immunity from suit. The judgment is affirmed.

021507 State Water Control Board v. Crutchfield 04/17/2003 In a petition by landowners challenging a State Water Control Board permit for a county to discharge treated wastewater into a river, the Court of Appeals did not err in affirming a circuit court ruling that allowed the county to be added as a party after the filing of the appeal, in finding that it was an abuse of discretion not to permit amendment of the petition, or in ruling that the landowners had standing. The judgment is affirmed and the case will be remanded for trial on the merits.

021513 Doe v. Isaacs 04/17/2003 In personal injury actions arising from a traffic accident in which plaintiffs' automobile was struck from the rear by a car driven by an individual who fled the scene, the trial court erred in permitting recovery of punitive damages and that portion of the judgment which provides for punitive damages recovery is reversed. The judgment for compensatory damages is affirmed.

021567 Eden v. Weight 04/17/2003 In a case involving charges of misrepresentations by corporate directors, the trial court did not err in holding that there was no evidence that the plaintiff co-administrators relied upon misrepresentations after a certain date and no evidence of damage suffered prior to that date. Accordingly, the judgment of the trial court setting aside the jury verdict and entering judgment in favor of the defendants is affirmed.

021606 Wilby v. Gostel 04/17/2003 The trial court correctly granted plaintiff a nonsuit of all claims against all defendants in a wrongful death case, without preserving in the nonsuit order a prior ruling granting partial summary judgment for the defense on the ground that the decedent was contributorily negligent as a matter of law. Thus the nonsuit order was not a final appealable order with respect to the issue of contributory negligence. The appeal is dismissed and the judgment is affirmed.

021627 Simon v. Forer 04/17/2003 The circuit court correctly sustained pleas of the statute of limitations when the plaintiff in a medical malpractice action nonsuited her case and then refiled the action after the expiration of the six-month period provided by the nonsuit tolling provisions, and more than two years after the cause of action originally accrued. Under Code § 8.01-229(E) the original statute of limitations was not tolled by the pendency of the nonsuited action. The judgment is affirmed.

021659 USAA Casualty Insurance v. The Hertz Corp. 04/17/2003 In a declaratory judgment proceeding, the chancellor erred in concluding that a self-insuring car rental company operating in Virginia, required to provide primary bodily injury and property damage liability insurance coverage in the amounts specified in Code § 46.2-472 to its customer on a motor vehicle rented in Virginia, could delegate that obligation by its rental agreement to the customer's insurance provider. The judgment is reversed and a final judgment is entered.

021781 Santen v. Tuthill 04/17/2003 In a civil action arising out of a physical assault, the trial court did not err in excluding a defendant's guilty plea in general district court which was later annulled by appeal to the circuit court, or in excluding results of a preliminary breath test and testimony of an expert toxicologist because there was not an adequate foundation to support the admissibility of this evidence. The judgment is affirmed.

021891 Commonwealth v. Hudson 04/17/2003 The Court of Appeals erred in reversing the judgment of the trial court, where a jury found the defendant guilty of the second-degree murder of his wife and a related firearms offense. There was sufficient evidence from which the jury could properly have found the defendant guilty. The judgment of the Court of Appeals is reversed and the trial court's judgment is reinstated.

021976 Pulte Home Corp. v. Parex Inc. 04/17/2003 The trial court did not err in sustaining a defendant's demurrer to a co-defendant's cross-claim for breach of express warranty because the warranty was not adequately pled and as to a claim for breach of implied warranty because the damages at issue are consequential, and it is not claimed that privity exists between these parties. Indemnity and contribution claims were also properly dismissed. The judgment is affirmed.

020392 Williams v. Dominion Technology Partners 02/28/2003 The trial court erred in finding sufficient evidence that a former employee had a fiduciary duty to his former employer and in permitting the jury to determine whether that duty was breached. Because the same conduct was the basis for "intentional misconduct" and "legal malice" elements of two other theories of liability, there was no basis for findings for the employer on those counts as well. The judgment is reversed and final judgment is entered for the former employee.

020421 Davis v. Marshall Homes 02/28/2003 The trial court erred in holding that the present action for breach of contract arising out of several real estate loans was barred under the doctrine of res judicata by a prior fraud action brought by the plaintiff against the same defendants relating to the same transactions. That judgment is reversed and the case is remanded.

020595 Ainslie v. Inman 02/28/2003 In a declaratory judgment proceeding involving lien priority under provisions of the UCC and the Uniform Partnership Act, the trial court properly held that the receiver of a partner's interest in a partnership has first lien priority as to any distributions of income and profits due from the partnership. For the reasons assigned, the judgment of the trial court is affirmed.

020801 Shooting Point LLC v. Wescoat 02/28/2003 In an appeal of a chancellor's disposition relating to an easement over real property, no error is found in pretrial procedural rulings or in the determination as to the easement's location and the conclusion that subdivision of the dominant parcel would not overburden the servient estate. The judgment is affirmed.

020834 N & W Ry. v. Keeling 02/28/2003 In a Federal Employers' Liability Act action against a railroad, issues of negligence and foreseeability were properly submitted to the jury and the trial court did not abuse its discretion in excluding the testimony of the railroad's expert. The judgment is affirmed.

020923 Taylor v. Davis 02/28/2003 The circuit court erred in dismissing a legal malpractice action on demurrers where the plaintiff pled that his former criminal defense attorneys were negligent in allowing him to suffer a conviction, incarceration, monetary loss and other damages, because the purported offense for which he was convicted did not constitute a crime and that he was unable to establish actual innocence because of the attorneys' negligence. The judgment is reversed and the case remanded.

020994 Paul Johnson Plastering v. Johnson 02/28/2003 That portion of a Court of Appeals' judgment remanding a case seeking permanent total disability benefits for a brain injury to the Workers' Compensation Commission is reversed, and final judgment is entered in favor of the employer.

021075 Standard Banner Coal Corp. v. Rapoca Energy Co. 02/28/2003 The trial court erred in concluding that several amendments and supplements to a fifty-year coal lease altered the lease to allow the lessee to extend the lease beyond its stated termination date without satisfying certain contractual terms. The judgment is reversed and the case is remanded.

021086 Forster v. Hall 02/28/2003 The chancellor correctly determined that an implied reciprocal negative easement prohibits the placement of "mobile homes" on all lots of a residential subdivision. However the trial court incorrectly determined that certain structures permanently annexed to the land are not in violation of the restriction imposed by this easement. That judgment is affirmed in part and reversed in part, and the case is remanded.

021107 The Daily Press Inc. v. City of Newport News 02/28/2003 The trial court erroneously applied the definition of "machinery and tools" in ruling that a locality may collect personal property tax on equipment used in a newspaper's newsgathering, editing and "pre-press" activities. Such intangible personal property is "capital" subject to taxation solely by the Commonwealth. The judgment is reversed, and the matter remanded for correction of the assessments, refund, and entry of a final judgment in favor of the taxpayer.

021148 Shepherd v. Smith 02/28/2003 In a personal injury suit, the trial court erred in setting aside a verdict for plaintiff and ordering a new trial based on a motion by the defendant claiming that the verdict for the plaintiff was inadequate. The judgment is reversed, and final judgment is entered in favor of the plaintiff.

021181 PGI Inc. v. Rathe Productions Inc. 02/28/2003 In a civil action the trial court erred by striking plaintiff's claim for punitive damages and refusing to submit that issue to the jury for determination, and by setting aside a plaintiff's jury verdict on a claim of tortious conversion of property. The judgment is reversed and the case is remanded.

021441 In Re: Commonwealth's Attorney 02/28/2003 Two petitions for writs of prohibition and/or mandamus filed by a Commonwealth's Attorney and directed to a judge of the circuit court, filed under the original jurisdiction of the Supreme Court of Virginia, are dismissed.

021520 Whitfield v. Commonwealth 02/28/2003 The Court of Appeals of Virginia correctly affirmed a circuit court's refusal to suppress certain evidence gathered following defendant's detention by the police. The judgment is affirmed.

021542 Henry v. Warden 02/28/2003 The judgment of the trial court dismissing a petition for a writ of habeas corpus is affirmed because the issue raised by the petition was addressed and resolved in the trial court and on direct appeal of the petitioner's criminal conviction. Therefore the claim is not cognizable in a habeas corpus proceeding.

021583 Smith v. Commonwealth 02/28/2003 Convictions for first-degree murder and use of a firearm in the commission of that crime are affirmed upon a finding that the trial court did not err in admitting expert opinion testimony on "blood spatter analysis".

021591 Williams v. Commonwealth 02/28/2003 In a prosecution for driving under the influence of alcohol the Court of Appeals correctly held that Code § 18.2-270 permits enhanced punishment for a third DUI offense when a defendant had not been convicted of his second DUI offense at the time he committed the third offense. The judgment is affirmed.

021621 Friedline v. Commonwealth 02/28/2003 A circuit court did not err in dismissing a habeas corpus petition alleging ineffective assistance of counsel without conducting an evidentiary hearing or receiving an affidavit from trial counsel. The judgment is affirmed.

021872 Wolfe v. Commonwealth 02/28/2003 Upon review of defendant's convictions under charges of capital murder for hire and other offenses, and the sentence of death on the capital murder charge, no reversible error is found in the record, and no reason to commute the death sentence is found. The judgment of the circuit court is affirmed.

021998 Northern Va. Electric v. VEPCO 02/28/2003 According the presumption of correctness to a decision of the State Corporation Commission as to which of two utilities is the proper provider of electric power service to a customer whose property lies partly within the certificated service territory of each utility, the order of the Commission is affirmed.

020101 Ottofaro v. City of Hampton 01/10/2003 The trial court correctly held that a city condemned private property for a public purpose to create a road, and that the city council's condemnation resolution complied with the applicable law. The judgment confirming a compensation award is affirmed.

020116 Thurmond v. Prince William Baseball 01/10/2003 The trial court did not err in awarding summary judgment to the defendants in a negligence action on the ground that the plaintiff, a spectator at a minor league professional baseball game, assumed the risk of being struck by a batted foul ball. That judgment is affirmed.$ib

020162 Austin v. City of Alexandria 01/10/2003 In proceedings relating to a decedent's trusts, the trial court erred in determining that an individual who was grantor, trustee, and beneficiary of a revocable trust effectively conveyed title to real property in the trust by a subsequent deed which did not specify the capacity in which he was acting. That judgment is reversed, judgment is entered on appeal, and the case is remanded for entry of an appropriate order.

020188 Shepherd v. Davis 01/10/2003 In consolidated suits for specific performance of agreements concerning two adjacent parcels of land, there was no error in the chancellor's decrees holding that a lessee forfeited a fixed-price option to purchase the property, and a right of first refusal, by failing to exercise the right of first refusal, or in rulings denying specific performance and awarding only nominal damages to third-parties who offered to purchase the property. The decrees are affirmed, and an issue of fees and costs is remanded.

020338 Whitley v. Chamouris 01/10/2003 The trial court did not err in holding that expert testimony was not required in order to prove proximate causation in a legal malpractice action. The judgment of the trial court is affirmed.

020339 SIGNAL Corp. v. Keane Federal Systems Inc. 01/10/2003 In confirming an arbitration award for breach of contract and civil conspiracy, the circuit court correctly found that the arbitrators did not exceed their powers within the intendment of Code § 8.01- 581.010(3) under the terms of the parties' arbitration agreement, and that judgment is affirmed.

020343 Pro-Football Inc. v. Uhlenhake 01/10/2003 Judgment holding that the Virginia Workers' Compensation Commission did not err in ruling that professional football players are not exempt from coverage under the Workers' Compensation Act when they suffer injuries in the game they are employed to perform is affirmed for the reasons set forth in the opinion of the Court of Appeals in this proceeding.

020439 Koffman v. Garnett 01/10/2003 The trial court erred in dismissing personal injury plaintiffs' motion for judgment for failure to state causes of action for gross negligence and battery. The case is remanded for further proceedings consistent with this opinion.

020466 Woods v. Mendez 01/10/2003 In a personal injury action arising from an automobile accident, the trial court erred in sustaining the defendants' demurrers on the grounds that the plaintiff failed to state a claim for punitive damages either under Code § 8.01-44.5 or at common law. The judgment is reversed and the case is remanded for a trial on the merits of plaintiff's statutory and common law punitive damages claims.

020476 Williams v. Condit 01/10/2003 In a personal injury suit, the circuit court erred in granting a defendant's motion to strike the plaintiff's evidence for failure to present corroborating testimony as required by the dead man's statute, because a defense witness testified about the facts surrounding the accident. The judgment is reversed and the case is remanded. (Revised 3/05/03)

020479 In Re: Iris Lynn Phillips 01/10/2003 Code § 53.1-231.2, which allows a convicted felon to seek circuit court approval of a petition for restoration of eligibility to register to vote, is not unconstitutional, and petitioner's application is remanded for consideration in conformance with its provisions.

020487 Carraway v. Hill 01/10/2003 In a petition for declaratory and injunctive relief in which the plaintiff alleged that a city treasurer violated the Government Data Collection and Dissemination Practices Act by disclosing employment information, the judgment of the circuit court is reversed and final judgment is entered in favor of the defendant because the Act does not apply to constitutional officers.

020628 Fuste v. Riverside Healthcare Assoc. 01/10/2003 In a defamation action brought by two physicians, certain of the alleged statements contain provably false factual connotations while other alleged statements are dependent upon the speaker's viewpoint. Thus, the judgment of the circuit court sustaining a demurrer is reversed in part and affirmed in part. The case is remanded.

020680 Nelson v. Great Eastern Resort Management 01/10/2003 In a personal injury case brought against the proprietors of a "snow tubing" recreational facility, the trial court erred in instructing the jury that the owner/operator of a recreational facility owed no duty to protect a voluntary participant from the "inherent risks" of the recreational activity in which the participant was injured. The judgment is reversed and the case is remanded for a new trial.

020852 Brugh v. Jones 01/10/2003 In a personal injury case, the trial court erred in refusing to admit evidence that the defendant abruptly left the scene of the accident. The judgment is reversed and the case is remanded for a new trial.

020938 Tanner v. State Corporation Commission 01/10/2003 In a review of a finding of the State Corporation Commission that the defendants violated certain sections of the Virginia Securities Act, it is determined that certain of the instruments sold by the defendants were securities required to be registered with the Commission, but that others were not. The judgment is affirmed in part and reversed in part. The proceeding is remanded to the Commission for reconsideration of penalties in the light of these holdings. (Revised 3/05/03) See Record No. 020938, Tanner v. State Corporation Commission dated June 6, 2003

021014 Commonwealth v. Leal 01/10/2003 In a prosecution charging the defendant with maiming by mob and causing bodily injury in violation of Code § 18.2-41, the trial court correctly denied an instruction on the lesser crime of assault or battery by mob in violation of Code § 18.2-42. The judgment of the Court of Appeals, which concluded that such an instruction was appropriate, is reversed and final judgment is entered reinstating the circuit court's judgment of conviction.

021851 Fails v. Virginia State Bar 01/10/2003 An order of the Virginia State Bar Disciplinary Board revoking an attorney's license to practice law in Virginia is affirmed upon consideration of the interaction between Part 6, § IV, 13(C)(6)(a)(i) of the Rules of Court and Code § 54.1-3915.

012225 Green v. Young 11/01/2002 The circuit court erred in dismissing a prisoner's petition for a writ of habeas corpus averring that he was denied effective assistance of counsel when trial counsel failed to object to an instruction that allowed the jury to find the petitioner guilty even if the Commonwealth failed to prove beyond a reasonable doubt each element of the charged offense. Because counsel's performance was deficient and prejudiced the defense, the order is reversed and the proceeding is remanded.

012348 Alston v. Commonwealth 11/01/2002 The Court of Appeals did not err in approving the trial court's admission into evidence of an uncounseled custodial statement made by the defendant without the presence of counsel previously appointed to represent him on an unrelated charge. The judgment is affirmed.

012506 Commonwealth v. Tweed 11/01/2002 That portion of the Court of Appeals' judgment that awarded the defendant a new trial based on purported after-discovered evidence is reversed, and his convictions are reinstated. The case is remanded for a new sentencing proceeding because of an erroneous jury instruction regarding parole. The remaining portion of the judgment of the Court of Appeals is affirmed.

012526 Commonwealth v. Hill 11/01/2002 The Court of Appeals erred in reversing a defendant's conviction and dismissing an indictment based on the view that the common law right to use reasonable force to resist an illegal arrest also confers a right to use reasonable force to resist an illegal detention. The judgment of the Court of Appeals is reversed and the defendant's convictions are reinstated in accordance with the trial court's judgment order.

012682 The Globe Newspaper v. Commonwealth 11/01/2002 The trial court did not err in refusing petitions by several newspapers requesting access to biological samples collected in a criminal case investigation for the purpose of testing the material, 20 years after a murder trial and 10 years after execution of the defendant found guilty of the offense. The judgment is affirmed.

012730 King v. Commonwealth 11/01/2002 In a criminal case, the Court of Appeals of Virginia erred in holding that a defendant, who had objected to and moved to strike the proof based on a fatal variance between the charge in the indictment and the evidence at trial, waived his objection by failing to oppose a later jury instruction. That decision is reversed and the case is remanded.

012761 America Online v. Nam Tai Electronics Inc. 11/01/2002 In Virginia trial court proceedings for discovery ancillary to a case pending in the courts of California, the circuit court properly applied principles of comity under the Uniform Foreign Depositions Act in refusing to quash a subpoena duces tecum.

012826 Butler v. Commonwealth 11/01/2002 A murder defendant was not entitled to a continuance when the prospective jury panel was reconstituted and his counsel did not receive the new jury panel list forty-eight hours before trial. Because the requirements of Code § 8.01-353 are directory rather than mandatory, and defendant suffered no specific prejudice, the judgment of the Court of Appeals, upholding the circuit court's refusal to grant a continuance, is affirmed. (Revised 11/20/02)

012881 Haisfield v. Lape 11/01/2002 A "line-of-sight" or "view" easement rendered title to certain real property unmarketable, and the trial court erred in holding that the buyers were in breach for refusing to complete the purchase. That judgment is reversed. (Revised 11/13/02)

012884 Mozley v. The Prestwould Board of Directors 11/01/2002 In litigation between a condominium owner and the owners' association, the chancellor erred in interpreting Code § 55-79.84 but correctly awarded of attorneys' fees and costs to the association board based on the provisions of Code § 55-79.53(A). The case is affirmed in part, reversed in part, and judgment is entered. The matter is also remanded for an award of reasonable attorneys' fees and entry of final judgment.

020033 Long Long & Kellerman v. Wheeler 11/01/2002 The trial court correctly enjoined a trustee's action to enforce a deed of trust through foreclosure proceedings based on the 20-year statute of limitations contained in Code § 8.01-242, even though the assignor of the deed of trust is a federal agency which would not have been subject to this statute of limitations. The decree of the circuit court is affirmed. (Revised 11/20/02)

020060 Cave Hill Corporation v. Hiers 11/01/2002 In an action for breach of an employment contract, the trial court erred in refusing to rule as a matter of law that the contract was one terminable at will, in permitting a jury to interpret the agreement, and in admitting parol evidence. The judgment is reversed and final judgment is entered for the defendant.

020200 Ward v. Commonwealth 11/01/2002 In a rape and sexual battery prosecution against an attendant in a nursing home, the trial court did not err in allowing an expert to testify that the victim suffered from post-traumatic stress disorder. The evidence was sufficient to support the defendant's convictions, and the Court of Appeals' judgment denying defendant's appeal is affirmed.

020321 Dalo v. Commonwealth 11/01/2002 For the reasons set forth in the opinion of the Court of Appeals, that court's judgment upholding defendant's conviction for involuntary manslaughter is affirmed upon rejection of arguments that his conviction violated the principles of double jeopardy in that he had previously been convicted in general district court for driving under the influence of alcohol relating to the same event.

020677 Sheikh v. Buckingham Correctional Center 11/01/2002 The trial court did not err in dismissing a petition for a writ of habeas corpus in which the petitioner alleged denial of effective assistance of counsel during the jury sentencing phase of a criminal trial. The judgment is affirmed.

020685 Kirby v. Commonwealth 11/01/2002 The Court of Appeals correctly affirmed defendant's conviction for unlawfully discharging a firearm in an occupied dwelling, and being a felon in possession of a firearm, considering challenges under the spousal testimony statute, Code § 19.2-271.2. Even though the endangered spouse was not struck by a bullet, she was properly permitted to testify against the defendant under the statute because the prosecution was for offenses committed by the defendant against his spouse. The judgment is affirmed. (Revised 11/19/02)

020771 Murphy v. Commonwealth 11/01/2002 In a narcotics prosecution, the trial court erred in denying the defendant's motion to suppress evidence of controlled substances seized from his person because those items were seized after he was arrested illegally based on the search of his pocket without probable cause. The judgment of the Court of Appeals, which upheld the convictions, is vacated and the case is remanded.

020774 Commonwealth v. Bruhn 11/01/2002 The Court of Appeals of Virginia correctly determined that under Code § 18.2-111, as amended, proof of embezzlement will not sustain a conviction under an indictment charging grand larceny under Code § 18.2-95. The judgment is affirmed.

021003 Wilkins v. West 11/01/2002 In litigation challenging the redistricting of numerous House and Senate electoral districts enacted by the General Assembly in 2001, the judgment of the circuit court, which had invalidated certain of the districts and enjoined their use in elections, is reversed. (Revised 11/20/02)

021232 Yamaha Motor Corp. v. Quillian 11/01/2002 Questions certified by the U.S. District Court concerning Virginia Code § 46.2-1993.67(5) and the restrictions it places on motorcycle manufacturers and distributors who wish to establish a new franchise in the Commonwealth are restated and answered. Notice under the statute must be given to any existing franchised dealer in the Commonwealth, and proof of inadequate representation of the product is not statewide, but also not limited to the locality where the new franchised dealer would be located.

992913 Hedrick v. Warden 11/01/2002 The petition of a prisoner convicted of capital murder for a writ of habeas corpus is without merit, and is dismissed.

020114 McDaniel v. Commonwealth 10/18/2002 The judgment is affirmed in a criminal case where the trial court found that a World War I-era handgun for which ammunition was not readily available was a "firearm" for purposes of prosecution under Code § 18.2-308.4 for possessing a firearm while also possessing cocaine. (Published ORDER)

020518 In Re: Hopeman Brothers Inc. 09/18/2002 Upon consideration of the petition for writ of mandamus, the Court is of opinion that the petitioner is not entitled to the issuance of a writ of mandamus because petitioner failed to establish a clear and specific legal right to be enforced, or a duty which ought to be and can be performed and that there is no other specific and adequate legal remedy. (Published ORDER)

011755 Wellmore Coal Corp. v. Harman Mining Corp. 09/13/2002 A notice of appeal that was signed only by a foreign attorney, in violation of Rule 1A:4 of the Rules of the Supreme Court of Virginia, was invalid and requires granting of a motion to dismiss an appeal.

012008 Perdieu v. Blackstone Family Practice Center 09/13/2002 In a negligence and medical malpractice action against a nursing home and physicians, the trial court did not err in refusing to qualify three of the plaintiff's proposed expert witnesses, or in granting the defendants' motions to strike at the conclusion of the plaintiff's case-in-chief for failure to present essential expert testimony. The judgment is affirmed.

012316 Commonwealth v. Hill 09/13/2002 In a criminal appeal, the Court of Appeals erred in reversing a defendant's conviction on the ground that the trial court refused to permit questions asking prospective jurors about the range of punishment that could be imposed upon conviction. Neither the defendant nor the Commonwealth in a non-capital criminal prosecution has a right to ask about such matters during voir dire. The judgment of the Court of Appeals is reversed and the judgment of the circuit court is reinstated.

012319 Gelles & Sons General Contracting v. Jeffrey Stack 09/13/2002 The trial court did not commit reversible error in holding that a subcontractor's claim for additional monies due under a construction contract was barred by an accord and satisfaction pursuant to Code § 8.3A-311. The trial court's factual determination, that a reasonable person would consider that plaintiff was provided with a "conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim," was not clearly erroneous, and the judgment is affirmed.

012447 Commonwealth v. Redmond 09/13/2002 The Court of Appeals of Virginia erred in holding that a murder defendant clearly and unambiguously invoked his right to counsel during a custodial interrogation, requiring suppression of a confession. The judgment of the Court of Appeals is reversed, and the judgment of the circuit court entered upon the defendant's conviction and sentence is reinstated. (Opinion revised 9/24/02)

012519 Chesterfield Meadows Shopping Center Assoc. v. Smi 09/13/2002 The chancellor did not err in ruling that a plaintiff established the necessary change in conditions to destroy the purpose of a restrictive land use covenant, and correctly determined that the change in conditions rendered the covenant null and void. The judgment is affirmed.

012543 Lee County v. Town of St. Charles 09/13/2002 The trial court erred in ruling that a board member of a water and sewer authority must reside within the authority's service area to be qualified to hold that office, and that judgment is reversed. The joint appointee is not disqualified from serving on the board based on her place of residence and she is entitled to remain in office for the duration of her present term.

012554 Titan America v. Riverton Investment Corp. 09/13/2002 The trial court did not err by applying the Noerr-Pennington doctrine to state tort claims for interference with economic expectancy, considering the sham exception to that doctrine and issues of standing. It properly found without additional discovery that defendants had probable cause to bring the underlying proceedings, and did not err in sustaining defendants' demurrer to a defamation count.

012560 May v. Caruso 09/13/2002 In a medical malpractice case, the trial judge did not err in precluding use during an expert's direct examination of hearsay statements published in authoritative treatises and articles upon which the witness relied, or in excluding several hundred pages of medical records concerning the decedent that the court found cumulative. The judgment for defendants is affirmed.

012583 Taylor v. McConchie 09/13/2002 The circuit court did not err in finding that an original easement was extinguished and replaced by a relocated right-of-way limited to vehicular and pedestrian traffic. However, the court abused its discretion in refusing to allow the owners of the dominant parcel to present evidence about their ability to access their property in light of a post-trial survey changing a small portion of the easement. The judgment is affirmed in part, reversed in part, and remanded.

012612 Rutter v. Jones Blechman Woltz and Kelly 09/13/2002 In a legal malpractice action in which the administrator of a decedent's estate alleged that the defendant attorneys negligently prepared decedent's testamentary documents, the trial court properly sustained the defendants' demurrer, and that judgment is affirmed.

012699 American Communications Network Inc. v. Williams 09/13/2002 In a defamation case, the circuit court erred in confirming a jury verdict for plaintiff because the statements in the alleged defamatory publication are either opinion which is not actionable, or have been admitted as true. The judgment of the circuit court is reversed and final judgment is entered in favor of the defendants.

020314 Emmett v. Commonwealth 09/13/2002 Upon review of a capital murder prosecution in which the defendant was convicted and sentenced to death, it is concluded that other sentencing bodies generally impose the death penalty for crimes comparable or similar to those committed by the defendant. The sentence of death in this case was not disproportionate, nor imposed as a result of passion, prejudice or other arbitrary factor. The sentence of death will not be commuted, and the judgment of the trial court is affirmed.

020323 Morrisette v. Commonwealth 09/13/2002 After considering a capital murder defendant's assignments of error and conducting the mandated review pursuant to Code § 17.1-313(C), no error is found in the judgments of the circuit court. The defendant's convictions for rape and capital murder, and his sentence of death, are affirmed.

020696 Judicial Inquiry and Review Commission v. Lewis 09/13/2002 Clear and convincing evidence is found to support a complaint by the Judicial Inquiry and Review Commission that a juvenile and domestic relations district court judge engaged in conduct prejudicial to the proper administration of justice by enforcing an order that had been stayed by the circuit court. Accordingly, it is ordered that the judge be, and he hereby is, censured.

011393 Kimberlin v. PM Transport Inc. 06/07/2002 In a personal injury case, the trial court erred in striking plaintiff's evidence, and erred in ruling as a matter of law that defendant did not violate federal regulations, but did not err in rulings on certain Virginia Code provisions or in excluding evidence of defendant's alleged impaired vision and failure to wear eyeglasses. The judgment is affirmed in part and reversed in part, and the case is remanded for a new trial.

011557 Howerton v. Mary Immaculate Hospital 06/07/2002 In a medical malpractice action, the trial court erred in striking the plaintiffs' evidence on the ground that the proof was insufficient to establish negligence or proximate causation, and in entering summary judgment for the defendant hospital. The judgment is reversed and the case is remanded.

011562 Frank Shop Inc. v. Crown Central Petroleum 06/07/2002 In a second appeal of the parties' litigation under the Virginia Petroleum Products Franchise Act, the judgment of the trial court is reversed and the case is remanded for determination of when defendant ceased operating a retail outlet, to make an award to the plaintiff company of the profits earned by the defendant from its unlawful operation, and to determine attorney's fees and costs incurred subsequent to the trial court's prior hearing, including those incurred in this appeal.

011728 Commonwealth v. Hicks 06/07/2002 A trespass conviction is reversed because a public redevelopment and housing authority's trespass policy is overly broad and infringes upon First and Fourteenth Amendment protections and this defendant charged with trespass may assert the constitutional challenge in the criminal prosecution. The judgment of the Court of Appeals is affirmed in part and vacated in part, and final judgment is entered. See Record #011728, Commonwealth v. Hicks, dated April 23, 2004

011739 E.I. du Pont de Nemours and Co. v. Eggleston 06/07/2002 Where an employee had three work-related conditions involving incapacity to perform work, the Court of Appeals correctly upheld a decision of the Workers' Compensation Commission denying an employer's request for payment credit against each of a claimant's underlying injuries rather than just a condition that had resolved itself. The judgment is affirmed.

011741 Sawyer v. Comerci 06/07/2002 In a wrongful death action arising from alleged medical negligence, the circuit court erred in granting a contributory negligence instruction and in precluding cross-examination of a defense expert concerning prior testimony for, and compensation from, the defendant, but did not err in granting an instruction on mitigation of damages. The judgment is reversed and the case remanded for a new trial.

011742 City of Richmond v. Holt 06/07/2002 In a personal injury action, the trial court correctly held that the evidence was sufficient to establish constructive notice to a municipality of a defect in a municipal right-of-way adjoining a public street. That judgment is affirmed.

011777 Bell v. Commonwealth 06/07/2002 In an appeal from a capital murder conviction for the killing of a police officer, no error is found in the judgment of the circuit court. Defendant's conviction of capital murder in violation of Code § 18.2-31(6) and the imposition of the death penalty are affirmed.

011778 Polyzos v. Cotrupi 06/07/2002 In an action for negligence and breach of contract against a real estate agent arising from a property sales agreement which required conveyance of a parcel larger than that which the owners retained the agent to sell, expert testimony was not essential and, therefore, the trial court erred in sustaining a motion to strike and in entering judgment for the agent based on the absence of expert evidence. The judgment is reversed and the case remanded. (Revised 11/26/02)

011807 Caplan v. Bogard 06/07/2002 In a personal injury action arising from a traffic accident, the trial court erred by instructing the jury that the entrance to a restaurant parking lot was a "highway" within the meaning of Code § 46.2-100. The judgment is reversed and the case is remanded for a new trial.

011880 Baysden v. Roche 06/07/2002 Plaintiff brought a claim against the defendant for failure to repay a $50,000 loan plaintiff alleges he undertook, pursuant to the parties' oral agreement, to provide funds to defendant. The trial court improperly granted a motion to strike plaintiff's evidence because, when viewed in the most favorable light, there was sufficient evidence that the parties' agreement was entirely oral and that certain check endorsements were evidence that the contract was performed, not part of a written contract.

011913 Patel v. Anand L.L.C. 06/07/2002 In an action for fraud, breach of fiduciary duty, and breach of contract, plaintiff failed to present evidence supporting an award of compensatory damages other than litigation expenses. The award of unrecoverable damages is reversed and the jury's verdict of compensatory damages is reduced. Final judgment is entered on a punitive damage award that was not the subject of any assignment of error.

011952 Hot Shot Express Inc. v. Brooks 06/07/2002 In a personal injury action, the trial court correctly found that a truck driver's action in stopping on a highway when there was no emergency was negligence per se. However, it cannot be said that the trial court's error in instructing the jury on the presumption of ordinary care by the plaintiff, who had no memory of the accident, was harmless. The judgment is reversed and the case is remanded.

011961 Caine v. Freier 06/07/2002 In a bank's suit as personal representative for aid and guidance in the administration of a decedent's estate, the chancellor did not err in ruling that the widow had not waived statutory rights or in refusing to impose discovery sanctions. The judgment is affirmed.

012006 Faulknier v. Shafer 06/07/2002 In a dispute over the proceeds of a life insurance policy, the decedent's former wife alleged sufficient facts to state a cause of action for the imposition of a constructive trust on the insurance proceeds. The circuit court's judgment sustaining a demurrer is reversed.

012007 Niese v. City of Alexandria 06/07/2002 In an action against a city in which plaintiff alleged that a police officer employed by the locality repeatedly raped her, the trial court did not err in sustaining the city's special plea of sovereign immunity and dismissing the motion for judgment. The judgment is affirmed.

012009 Johnson v. Raviotta 06/07/2002 Code § 8.01-397 (the dead man's statute) applied to the testimony of the defendant doctor regarding an office visit and that of a nurse regarding care given the patient. Such testimony, as a matter of law, was not corroborated as required by the statute. The trial court erred in submitting that testimony and the issue of its corroboration to the jury, and such error was not harmless. The judgment of the trial court is reversed and the case is remanded for further proceedings.

012050 WJLA-TV v. Levin 06/07/2002 In a case arising from television coverage about a doctor's treatment of a pain syndrome by vaginal manipulation of female patients, the trial court did not err in entering judgment on a $2 million jury verdict for common law defamation, and that portion of the judgment is affirmed. An award under Code § 8.01-40 on the theory that defendants made unauthorized use of the plaintiff's image for advertising purposes is reversed.

012220 Commonwealth v. Bower 06/07/2002 The Court of Appeals erred in reversing defendant's conviction under Code § 18.2-67.2 for animate object sexual penetration of his thirteen-year old daughter. Testimonial evidence, along with the familial relationship between the parties and their relative ages and sizes, constitute sufficient proof that the defendant intimidated the victim and overcame her will in committing this crime. The judgment of the Court of Appeals is reversed and the conviction is reinstated.

012576 Amchem Products Inc. v. Newport News Circuit Court 06/07/2002 In a proceeding arising after settlement of hundreds of cases relating to exposure to asbestos, the circuit court did not err by refusing to require the litigants to resolve their purported dispute in accordance with an arbitration provision in the settlement agreement, as modified, because, applying the federal law, no legally cognizable dispute exists that would subject the litigants to arbitration and, thus, there is nothing for an arbitrator to decide. The judgment is affirmed and the case is remanded. (Revised 11/26/02)

012702 Weingarten v. Gross 06/07/2002 The State Corporation Commission erred in holding that a $3.5 million judgment arising from settlement of certain claims by directors of an insolvent insurance company was not entitled to be paid as an administrative expense of the insurer's receivership estate. The judgment of the Commission is reversed and the matter is remanded to the Commission for further proceedings. (Revised 11/26/02)

012841 Nationwide Mutual Insurance Co. v. Smelser 06/07/2002 The United States Court of Appeals for the Fourth Circuit certified to this Court a question of Virginia insurance law asking whether a pedestrian, who was injured when her purse was "snatched" by an unidentified passenger in a moving vehicle, sustained injuries arising out of the use of an uninsured motor vehicle for purposes of uninsured motorist provisions in a certain insurance policy. The certified question is answered in the affirmative.

991490 Burch v. Hechinger Company 06/07/2002 In a personal injury action that arose at a retail establishment, the trial court correctly held that the plaintiff was a statutory employee of the defendant, and thus correctly sustained a plea in bar based on the exclusivity provision of the Virginia Workers' Compensation Act, Code § 65.2-307(A). The judgment is affirmed.

010729 Countryside Corporation v. Taylor 04/19/2002 In an action arising from a contract relating to the extension of a road near certain developable land, the trial court erred in failing to strike plaintiffs' evidence of damages on the ground that the supporting expert opinion was based on an erroneous factual foundation. The judgment is reversed and final judgment is entered.

011034 Washburn v. Klara 04/19/2002 The circuit court erred in striking the evidence in a medical tort case tried on theories of battery and exceeding the patient's informed consent because the evidence, including radiology reports, was sufficient to present a factual issue as to whether the defendant surgeon intentionally performed a procedure exceeding the scope of the patient's consent. The judgment of the circuit court is reversed and the case is remanded for a new trial on the claim of battery.

011150 Tauber v. Commonwealth 04/19/2002 In an accounting of the assets of a defunct charitable corporation, the chancellor properly applied a constructive trust, determined the value of the assets, adopted a cy pres distribution, imposed prejudgment interest, fixed the appeal bond, and denied recovery of attorney's fees and costs. The chancellor erred in reducing the amount of the award from the sums established in accepted testimony. The judgment is affirmed in part, reversed in part, modified, final judgment is entered, and the matter is remanded.

011154 Dean v. Dearing 04/19/2002 In a defamation case brought by a police officer who was part of a department that was allegedly defamed by the town mayor, the trial court did not err in sustaining the defendant's demurrer and dismissing the action. The judgment is affirmed.

011230 Super Fresh Food Markets v. Ruffin 04/19/2002 The trial court which had entered a final judgment lost jurisdiction over a case once the 21-day period allowed under Rule 1:1 expired because no order that clearly and expressly modified, vacated, or suspended the final judgment was entered within that 21-day period. The appeal from a later order was improvidently granted and is dismissed.

011268 Modern Environments Inc. v. Stinnett 04/19/2002 The trial court correctly held that a covenant not to compete prohibiting a former employee from being employed in any capacity by a competitor of the employer was over-broad and unenforceable. That judgment is affirmed.

011299 Ancient Art Tattoo Studio v. City of Virginia Beac 04/19/2002 The circuit court did not err in denying mandamus relief to petitioners who sought approval of applications to operate tattoo establishments in a city. Because a zoning administrator's decision on the applications involved the performance of a discretionary duty, the circuit court's judgment is affirmed.

011307 City of Virginia Beach v. International Family Ent 04/19/2002 The trial court correctly held that a city has no authority to tax satellite transponders that are located on satellites that orbit the earth in space, but are owned and used by a corporation that had offices in that city, and that judgment is affirmed.

011390 Zelnick v. Adams 04/19/2002 The trial court erred in holding on summary judgment that the doctrine of necessaries did not apply to a contract for legal services on behalf of a minor. The judgment is reversed and the case is remanded for further proceedings.

011396 PTS Corporation v. Buckman 04/19/2002 In a suit for improper use of a person's name for advertising and trade purposes under Code § 8.01-40(A), the trial court erred in overruling a motion in limine to exclude evidence of a police investigation of the plaintiff. The trial court did not err in overruling the individual defendants' demurrer concerning personal liability under Code § 8.01-40(A). The judgment is reversed and the case is remanded.

011407 Bolden v. Commonwealth 04/19/2002 In a prosecution for possession of more than five pounds of marijuana with intent to distribute, the Court of Appeals erred in affirming the trial court's denial of a motion to suppress evidence obtained in the search of a suitcase located in the trunk of a motor vehicle. The defendant's conviction is vacated and the case is remanded.

011448 James v. James 04/19/2002 Because the trial court entered nonsuit orders and did not vacate or suspend those orders during the 21-day period thereafter, the court lost jurisdiction to take further action on pending sanction motions or to enter dismissal of the cases with prejudice. The judgment appealed from is reversed, the nonsuit orders reinstated, and final judgment is entered in favor of plaintiff.

011570 Commonwealth v. Pannell 04/19/2002 The Court of Appeals erred in concluding that former Code § 16.1-291 required the exclusion of hearsay evidence and the use of a reasonable doubt standard when considering charges of probation violations against a juvenile. The judgment of the Court of Appeals is reversed and the trial court judgment finding defendant in violation of the terms of his probation and committing him to the Department of Juvenile Justice is reinstated.

011583 Southern Insurance Co. v. Williams 04/19/2002 The trial court in a declaratory judgment action erred in concluding that an insurance company had a duty to defend and provide liability coverage for claims arising out of a rental house business under a "businessowners" policy issued to the proprietor of a furniture and appliance store. The judgment is reversed, and final judgment is entered for the insurer.

011613 City of Virginia Beach v. Oakes 04/19/2002 In a condemnation proceeding, the landowners' evidence of damage to the residue was speculative, consisting of lost rents from an "envisioned" building, possible future contamination of a detention pond, and the cost of monitoring such pond, which cannot be recovered. The judgment in favor of the landowners is reversed and the case is remanded.

011633 Eure v. Norfolk Shipbuilding & Drydock Corp. 04/19/2002 The trial court erred in finding the language of an agreement to provide health care coverage unambiguous and in not considering parol evidence to determine the intent of the parties. The trial court properly dismissed a parent company as a party in a suit against its subsidiary. The judgment is affirmed in part, reversed in part, and final judgment is entered.

011948 Armstrong v. Commonwealth 04/19/2002 The Court of Appeals correctly determined that conviction of a defendant for being a felon in possession of a firearm, Code § 18.2- 308.2, does not require the Commonwealth to prove that the object possessed by the defendant was an "operable" firearm. Accordingly, the judgment of the Court of Appeals is affirmed. The case is remanded with instructions for remand to the trial court for the purpose of correcting, nunc pro tunc, a clerical error in the sentencing order.

011306 Willis v. Mullett 04/09/2002 The statute that reduces the tolling period provided for minors' tort claims for medical malpractice (Code § 8.01-243.1) is constitutional under federal and Virginia standards, and the trial court correctly sustained the statute of limitations pleas of certain defendants. The judgment is affirmed. (Revised 11/26/02)

011980 Martin v. Moore 04/09/2002 In a chancery suit, the circuit court properly determined that plaintiffs had established a right to use a portion of a driveway by virtue of a prescriptive easement. Ruling on the cross-bill, the court did not err in finding that defendants failed to prove that plaintiff's activities created a private nuisance, but did err awarding damages relating to siltation of defendants' lake. The judgment is affirmed in part and reversed in part, and final judgment is entered. (Revised 11/26/02)

010136 Jones v. Ford Motor Co. 03/01/2002 In an automobile products liability action, the circuit court erred in refusing admission of certain of the plaintiff's evidence of notice of a product defect based on a purported judicial admission proffered by the defendant. Other evidentiary and jury instruction issues are addressed. The judgment is affirmed in part, reversed in part, and remanded.

010310 Haas v. Lee 03/01/2002 The circuit court properly dismissed a petition for writ of habeas corpus because it was not filed timely pursuant to Code § 8.01- 654(A)(2), which became effective July 1, 1998. The statute of limitations contained in that section bars the petition because petitioner was provided a reasonable opportunity to enforce and protect his right to file his habeas corpus petition.

010346 National Title Insurance v. First Union Bank 03/01/2002 The trial court correctly ruled that Code § 8.4-103(a) permits a bank and its customer to shorten by contract the one-year statutory period for the customer to assert the unauthorized signature or alteration of an instrument and that a 60-day period was not manifestly unreasonable. The judgment is affirmed.

010480 Commonwealth v. Shaffer 03/01/2002 A person whose operator's license was revoked under then-existing habitual offender provisions in 1997, and who waited until late in 1999 to file a petition for review, was not entitled, after repeal of § 46.2-352(B), to a post-deprivation review in order to satisfy his due process rights. The judgment of the Court of Appeals is reversed and final judgment is entered dismissing this petition for review.

010501 Riggins v. O'Brien 03/01/2002 The Court of Appeals reached the correct result in the appeal of a domestic relations matter in which an award of child support arrearages was made. The decree entered a decade before the present proceedings was valid and, because the parties did not obtain court approval for changes thereto, the trial court correctly imposed an obligation to pay arrearages. The judgment of the Court of Appeals is affirmed.

010506 Pysell v. Keck 03/01/2002 In claims for a surviving spouse's elective share of her deceased husband's estate, a family allowance, and exemption of certain property for the benefit of the surviving spouse, the trial court erred in granting summary judgment for the executor under the terms of an antenuptial agreement. The judgment of the trial court is reversed and the case is remanded. (Typo corrected 3/26/02)

010523 County of Chesterfield v. Windy Hill Ltd. 03/01/2002 The Alcoholic Beverage Control Board's exclusive authority to regulate sale of alcoholic beverages does not preclude a municipality from using valid zoning ordinances to regulate the location of an establishment selling alcoholic beverages. The judgment of the trial court with respect to the operator of a sports complex is reversed, and the case is remanded for entry of a permanent injunction prohibiting violation of the conditional use permit under which it operates.

010535 Reliable Constructors v. CFJ Properties 03/01/2002 The circuit court erred by invalidating a mechanic's lien without permitting the lien claimant to present evidence that its inclusion of a fine in the lien memorandum constituted an inaccuracy that was not willfully false.

010580 Turner v. Board of Supervisors 03/01/2002 The circuit court correctly determined that a zoning ordinance constituted piecemeal downzoning prohibiting two landowners from developing property consistent with the comprehensive plan. In response to the landowners' prima facie showing that there was no change in circumstances justifying the change, the county failed to carry its burden of producing evidence sufficient to make the validity of the ordinance fairly debatable. The judgment is affirmed in part, reversed in part, and final judgment is entered.

010592 First Bank v. Transportation Commissioner 03/01/2002 In an eminent domain proceeding, the trial court erred in the per se disqualification of all customers of the landowner from serving as commissioners. The judgment is reversed and the case is remanded for a new trial.

010614 Liddle v. Phipps 03/01/2002 In a personal injury case, the trial court did not err in entering an order of nonsuit under Code § 8.01-380(A) when an application for a final order of dismissal relating to discovery failures was also before the court.

010759 John v. Im 03/01/2002 In a personal injury lawsuit, the trial court did not abuse its discretion in excluding evidence of a quantitative electroencephalogram test and the testimony of two expert psychologists about traumatic brain injury based on this testing. The judgment entered upon a jury verdict is affirmed.

010786 Centreville Car Care v. North America Mortgage 03/01/2002 In a case involving multiple deeds of trust on the same property, the chancellor erred in granting equitable subrogation to first priority position for the plaintiff mortgage company which failed to uncover defendant's second deed of trust when it lent money to new purchasers and extinguished a former first deed of trust. The judgment is reversed and judgment is entered on appeal for the defendant lienor confirming that its deed of trust is first in priority.

010791 Fairfax County Fire and Rescue v. Mottram 03/01/2002 In a workers' compensation proceeding involving a county emergency rescue worker, the Court of Appeals correctly ruled that posttraumatic stress disorder (PTSD) is a disease, but erred in concluding in this case that it is an ordinary disease of life as opposed to an occupational disease as defined in Code § 65.2-400. The judgment is affirmed in part, reversed in part, and remanded.

010796 Interim Personnel v. Messer 03/01/2002 In a tort action arising from a traffic accident, the trial court erred in ruling that foreseeability was a jury issue, and in refusing to sustain motions to set the verdict aside. A judgment in favor of the plaintiff is vacated, and final judgment is entered in favor of the appealing defendants.

010913 Commonwealth v. Washington 03/01/2002 The defendant implicitly waived his double jeopardy rights by failing to make the required objection in circuit court when the judge declared a mistrial. Accordingly, the judgment of the Court of Appeals is reversed, and a final judgment is entered reinstating the defendant's convictions.

010934 Firebaugh v. Whitehead 03/01/2002 In a suit for specific performance and damages relating to a written right of first refusal agreement for a real estate sale, the trial court correctly held that the right of first refusal was valid and enforceable against the co-executors of a decedent landowner's estate.

010965 Sheets v. Castle 03/01/2002 In a suit for specific performances of a land sale contract, the trial court did not err in holding that there was no "prevailing party" upon the granting of a nonsuit and that attorney's fees under the contract could not be awarded. The judgment is affirmed.

011069 Angelone v. Dabney 03/01/2002 The trial court erred in awarding a writ of habeas corpus to a petitioner based on a conclusion that the Commonwealth knowingly used perjured testimony to obtain his conviction. That finding was plainly wrong, and the judgment is reversed. The petition for a writ of habeas corpus is dismissed.

011098 Acordia Insurance Agency v. Genito Glenn L.P. 03/01/2002 In litigation arising from failed insurance coverage, the trial court correctly ruled that an agent acted on behalf of plaintiff in procuring insurance and thus that privity existed between the plaintiff and the insurance agency. However, it erred in denying credit in the present case for the value of a settlement in another litigation. The judgment is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

011225 Beeton v. Beeton 03/01/2002 In an executors' suit concerning entitlement to estate assets, the chancellor correctly awarded a certificate of deposit to one of the deceased's sons but erred in its decree with respect to ownership of two disputed Treasury Bills. The cause is remanded for entry of final judgment in favor of that son. (Opinion edited 3/26/02)

011244 Sapp v. Commonwealth 03/01/2002 In a criminal case, the trial court abused its discretion in finding that the trial testimony of two frightened witnesses was "unavailable" and thereafter admitting their prior testimony from a preliminary hearing. The judgment of the Court of Appeals upholding the judgment of conviction in the trial court is reversed. The case will be remanded for a new trial if the Commonwealth be so advised.

011446 Industrial Development Authority v. Board of Super 03/01/2002 The trial court erred by invalidating certain bonds issued by a locality based upon a construction of the term "finance" in a section of the Industrial Development and Revenue Bond Act to include the "refinance" of existing bonds issued under that Act. The judgment is reversed and final judgment validating the bonds is entered.

011732 Rowan v. Tractor Supply Company 03/01/2002 In response to a certified question under Rule 5:42, a plaintiff's complaint does not state a viable common law cause of action for termination of an at-will employment upon allegations that an employer discharged the plaintiff because she refused to yield to a demand to discontinue pursuit of criminal charges of assault and battery against a fellow employee.

012253 Thomas v. Commonwealth 03/01/2002 In a capital murder prosecution which led to a sentence of death, the trial court erred, as a matter of law, by failing to apply the proper test and failing to consider the necessary factors when making its decision to deny the defendant's motion to change venue because of extensive pretrial publicity. Other issues are addressed. The judgment of conviction is vacated and the case is remanded. (Opinion edited 5/1/02)

012417 Williams v. Commonwealth 01/17/2002 The Court of Appeals erred in transferring an appeal lodged after a motion to withdraw guilty pleas. Such a motion is designed by statute to be filed and decided while the circuit court has jurisdiction over the case, and is criminal in nature. The appeal from decision on the motion is subject to the criminal appellate jurisdiction of the Court of Appeals. The case is returned to the Court of Appeals for consideration of the appeal.

012418 Green v. Commonwealth 01/17/2002 Because the appeal from a circuit court order revoking a defendant's probation, and revoking the suspension of a portion of his sentence, is part of the criminal process under Code § 19.2- 306, appeal from that disposition was properly filed in the Court of Appeals. The order transferring the case to this Court is reversed and the case is returned to the Court of Appeals for consideration under its appellate criminal jurisdiction.

002900 O'Connell v. Bean 01/11/2002 In a legal malpractice case, due to the failure of plaintiff's counsel to include the out-of-state defendant's address in an affidavit submitted pursuant to the service of process provisions of the Long-Arm Statute, the trial court lacked in personam jurisdiction over the defendant at the time it entered default orders and judgments, and those rulings were void. The case is remanded for trial on the merits and the issues of damages.

003006 Board of Supervisors v. Stickley 01/11/2002 In a zoning case the trial court erred in finding that a fairly debatable issue was not presented by the decision of a board of supervisors to deny a landowner a special use permit to raise and release game birds in a shooting preserve on a portion of his large turkey growing farm, and in holding that the denial of this permit was unreasonable, arbitrary, and capricious. That decision is reversed and final judgment entered for the county.

010024 TM Delmarva Power v. NCP of Virginia 01/11/2002 In a dispute between parties who contracted for the construction and operation of a power plant, the trial court erred in denying a motion to compel arbitration. Upon an interlocutory appeal, pursuant to Code § 8.01-581.016(1), the judgment is reversed and the matter remanded with instructions to the trial court for entry of an order compelling arbitration.

010027 City of Emporia v. Mangum 01/11/2002 The circuit court erred by ruling that a mobile home, a nonconforming use under local zoning laws, could be replaced when destroyed by fire. The plain language in the city code prohibits substitution of a nonconforming building, and under definitions found in the city code a mobile home is a building. The judgment of the circuit court is reversed and final judgment is entered in favor of the city.

010028 Tashman v. Gibbs 01/11/2002 In the trial of a medical malpractice action, the trial court erred when it permitted the plaintiff's "informed consent" claim to be considered by the jury. The judgment is reversed and the case is remanded for a new trial on both counts of the motion for judgment.

010030 Pritchett v. Commonwealth 01/11/2002 In a capital murder trial, the trial court erred in excluding proffered opinions of experts concerning the susceptibility of some mentally retarded persons to suggestive police interrogation. The case is affirmed in part, reversed in part, and remanded.

010110 Pocahontas Mining v. Jewell Ridge Coal Corp. 01/11/2002 The trial court correctly interpreted a lease provision obligating a coal company that leased certain property for many years to leave intact a functional preparation plant at the end of the lease. The trial court's judgment is affirmed with a modification: if an action for breach of contract is commenced, any damages shall be determined as of the final termination date of the lease, not the date operation of the plant ceased.

010220 Flanary v. Milton 01/11/2002 An oral property settlement agreement between spouses made during an action for divorce was subject to the provisions of Code § 20-155. The agreement was not in writing and signed by the parties, as required by statute. Therefore, the trial court erred in finding the agreement valid and dismissing the wife's petition as surviving spouse for determination of family allowance, exempt property, and an elective share of the estate. The judgment of the trial court is reversed and the case is remanded.

010350 Liberty Mutual Insurance v. Fisher 01/11/2002 The trial court erred in barring an employer from recovering under a workers' compensation lien, as part of the settlement of a third- party wrongful death action, benefits paid to persons who did not participate in the settlement of that wrongful death action. Code §§ 65.2-309 and -310 do not permit any such restriction on the amount that an employer may recover under its statutory lien. No provision in the Wrongful Death Act gives a trial court the discretion to impose limits on the amount of an employer's lien created by Code § 65.2-309.

010351 Love v. Hammersley Motors Inc. 01/11/2002 A purchaser of a used car, who revoked acceptance of the vehicle and sought monetary damages as permitted by Code § 8.2-608, properly filed the motion for judgment on the law side of court, and the circuit court erred when it set aside a jury verdict that awarded damages to her. Therefore, the jury verdict is reinstated and this case is remanded to the circuit court so that it can enter an award of attorney's fees for the plaintiff.

010392 Kramer v. Commonwealth 01/11/2002 The trial court did not err in holding that the maximum coverage under the Commonwealth's Risk Management Plan available in the circumstances of this wrongful death case is $25,000 in uninsured motorist coverage. The judgment of the trial court is affirmed.

010423 G & M Homes Inc. v. Pearson 01/11/2002 In an action for specific performance and contract damages arising from defendants' refusal to complete a sale of real property, the circuit court did not err in granting pretrial summary judgment on the claim for specific performance. Nor did the court err in finding as a matter of law, after hearing evidence, that the contract of sale was not valid and binding between the parties. The judgment is affirmed.

010425 Pollins v. Jones 01/11/2002 In the trial of a wrongful death case, the evidence presented did not support a jury instruction telling the jury to enter judgment in favor of the doctor if it found that he chose one of two or more alternative courses of action recognized by the profession as proper. The evidence failed to show that the experts recognized or agreed that alternative procedures were proper. The judgment in favor of the defendant is reversed and the case is remanded.

010438 Salzi v. Virginia Farm Bureau Insurance 01/11/2002 Since no language in an insurance contract permits the conclusion that the definition of business is limited to plaintiffs' business activities as opposed to the business activities of others, their barn is a structure within the plain meaning of the policy and was "used for business" within its plain meaning because they permitted a farmer to store hay in the barn. The judgment of the trial court is affirmed.

010636 Commonwealth v. Gregory 01/11/2002 The judgment of the Court of Appeals is affirmed on appeal from murder, robbery and firearms convictions because police interrogation in this investigation did not violate defendant's constitutional rights. The judgment of the Court of Appeals overturning burglary, larceny and vandalism convictions upon consideration of speedy trial objections is reversed.

010749 Commonwealth v. Smith 01/11/2002 In a prosecution under indictments for several murders, the trial court did not abuse its discretion in denying the defendant's motion to sever. The judgment of the Court of Appeals is reversed, final judgment is entered reinstating the judgment of the trial court, and the case is remanded for enforcement of the sentencing order.

010789 Commonwealth v. Vaughn 01/11/2002 In a malicious wounding case, the trial court did not err in refusing to instruct the jury on the lesser included offense of assault and battery because evidence in supporting such an instruction was absent. The judgment of the Court of Appeals, overturning the conviction on that issue, is reversed, and the trial court's judgment is reinstated.

010852 Stephens v. Commonwealth 01/11/2002 In a case involving shooting from a motor vehicle at another occupied vehicle, the defendant was not subjected to multiple punishments for the same offense in contravention of the Double Jeopardy Clauses in the Fifth Amendment to the Constitution of the United States and Article I, § 8 of the Constitution of Virginia. The judgment of the Court of Appeals upholding the convictions is affirmed.

010883 Commonwealth v. Jerman 01/11/2002 In a murder and abduction prosecution, the Court of Appeals erred when it reversed and vacated the defendant's sentence on the ground that the circuit court did not instruct the jury on the abolition of parole. The judgment of the Court of Appeals is reversed and the circuit court's judgment on the defendant's abduction conviction is reinstated.

010926 Velazquez v. Commonwealth 01/11/2002 In this appeal of a conviction for rape, the trial court did not err in permitting a sexual assault nurse examiner to testify regarding her expert medical opinion on the causation of the victim's injuries. However, the examiner's opinion testimony improperly invaded the province of the jury on the ultimate issue of fact. The judgment is affirmed in part and reversed in part, and the case is remanded. (Opinion edited at p. 15, citation 1/30/02)

011794 Commonwealth v. The JOCO Foundation 01/11/2002 In a case involving a charitable Virginia nonstock corporation, the trial court correctly ruled that it lacked subject matter jurisdiction over the Commonwealth's claims seeking appointment of a receiver and a preliminary injunction against corporate directors because the Commonwealth's exclusive remedy to address alleged breaches of fiduciary duties is set forth in Title 13.1 of the Code of Virginia, which gives exclusive jurisdiction to the State Corporation Commission. The judgment is affirmed.

002735 Bosley v. Shepherd 11/02/2001 In a personal injury action brought by an injured worker against the general contractor of a construction project, the general contractor's employee, and a steel erection subcontractor, the trial court correctly held that the injured worker was a stranger to the business of the general contractor. The court erred in permitting a witness to testify that defendants violated certain "general" OSHA provisions. The judgment is affirmed in part, reversed in part, and remanded.

002770 Tonti v. Akbari 11/02/2001 The trial court erred in awarding attorney's fees against a party after denying the party's motions to quash subpoenas duces tecum issued to non-parties. That aspect of the judgment awarding fees is reversed and the case is remanded for entry of an order directing return of funds paid pursuant to the judgment.

002776 Shepard v. Capitol Foundry 11/02/2001 In a wrongful death action, the circuit court erred in remitting portions of a jury verdict for the plaintiff. Because the circuit court failed to consider the evidence relevant to damages in the light most favorable to the prevailing party, the judgment is reversed and the jury verdict is reinstated.

002784 Pyramid Development v. D&J Associates 11/02/2001 The trial court erred in finding language of a deed ambiguous and in permitting the introduction of parol evidence concerning an easement conveyed. The trial court further erred in finding that an easement continued to exist over the property, despite the discontinuance of rail service, and erred in granting injunctive relief. The judgment is reversed and final judgment is entered dismissing the bill of complaint. (Revised 11/5/01)

002794 Brown v. Sparks 11/02/2001 The trial court erred in granting summary judgment based on the existence of an accord and satisfaction when there was a material conflict in the evidence. The judgment of the trial court is reversed and the case remanded for further proceedings consistent with this opinion.

002810 Tran v. Gwinn 11/02/2001 The trial court correctly concluded that a zoning ordinance prohibiting use of property in a residential district as a place of worship without a special use permit is a neutral law of general applicability which has a minimal or incidental burden on religious practice or conduct, and is constitutional. However, the final decree is vacated and the case is remanded for entry of an injunction consistent with this opinion.

002813 Chesapeake Hospital v. Commonwealth 11/02/2001 The trial court correctly found that certain food prepared by a hospital and provided free of charge was directly related to the hospital's main purpose of providing health care and therefore was exempt from use tax. The trial court also correctly refused to hold that interest on the judgment awarded the hospital should be compounded daily. Since no error is found, the judgment is affirmed.

002839 Turner v. Thiel 11/02/2001 In a medical malpractice case, the trial court abused its discretion by permitting the defendants to call as an expert witness an individual previously retained by plaintiff's counsel to consult on the case and review plaintiff's medical records. The judgment of the circuit court is reversed and the case is remanded for a new trial in which that individual will not be permitted to testify as an expert witness.

002865 Patten v. Commonwealth 11/02/2001 The trial court did not err in dismissing a wrongful death action alleging negligent medical treatment of a patient committed to a state mental institution, because an exception in the Virginia Tort Claims Act covering the execution of a lawful court order bars the civil action. The judgment is affirmed.

002873 Decipher Inc. v. iTRiBE Inc. 11/02/2001 The trial court did not commit reversible error in holding that the defendant corporation failed to carry its burden of proof on a breach of contract counterclaim against the plaintiff. An erroneous ruling that certain testimony would be admitted under the business records exception to the hearsay rule was harmless. The judgment of the trial court is affirmed. (Revised 11/13/01)

002927 Grisso v. Nolan 11/02/2001 A decedent's former spouse had no standing to petition the circuit court to have her body disinterred and reburied in accord with what he contended was the decedent's expressed wish regarding her final resting place. The judgment of the chancellor is reversed and final judgment is entered dismissing the petition for disinterment and reburial.

002942 Chesterfield County v. Stigall 11/02/2001 On the facts of this case, Code § 58.1-3241(A) did not authorize a county to assess "roll-back" taxes, defined in Code § 58.1-3237, against certain real property as a result of conveyances of the entire property in two separate parcels by the owner, in the absence of a change in the use of the property. The judgment of the trial court is affirmed.

003012 Lambert v. Downtown Garage Inc. 11/02/2001 The trial court did not err in granting a motion to strike plaintiff's evidence on claims for common law fraud and violation of the Virginia Consumer Protection Act, Code §§ 59.1-196 through - 207, arising from the purchase of a used car. The judgment is affirmed.

003017 Anderson v. Dillow 11/02/2001 In this tort claim seeking recovery for personal injuries sustained in a work environment, the plaintiff's action is barred by the exclusivity provision of the Virginia Workers' Compensation Act. The judgment of the trial court is affirmed.

003022 Cha v. Korean Presbyterian Church 11/02/2001 The trial court correctly held that the First Amendment to the Constitution of the United States and Article I, § 16 of the Constitution of Virginia prohibit the circuit court from resolving a former pastor's claims against a church and certain defendants who were involved in the church's governance. That judgment is affirmed. (Revised 11/9/01)

003030 Didato v. Strehler 11/02/2001 In these consolidated appeals in two related medical negligence actions, plaintiffs failed to plead cognizable causes of action under the doctrines governing special relationships between the parties, and a demurrer was properly sustained as to those claims. The remaining portions of the circuit court's judgments are reversed, and these cases are remanded for further proceedings on the plaintiffs' claims of negligence and affirmative assumption of duties.

003033 Commonwealth v. Williams 11/02/2001 The Court of Appeals erred in reversing the circuit court's judgment on the ground that failure to grant a felony defendant's request for a jury trial denied him a constitutional right. The circuit court did not abuse its discretion in denying the defendant's request to withdraw his waiver of jury trial rights. The Court of Appeals' judgment is reversed and defendant's convictions are reinstated in accordance with the circuit court's judgment order.

003042 Vaughn Inc. v. Beck 11/02/2001 The trial court correctly held that, under Code § 55-70.1, a purchaser of a new home is not required to notify the builder of a defect in construction within the statutory warranty period as a prerequisite to bringing an action against the builder for breach of that warranty. The judgment is affirmed.

010071 Commonwealth v. Sands 11/02/2001 The trial court ruled correctly in refusing to give a requested jury instruction on self-defense in a spousal murder case, and the Court of Appeals' judgment to the contrary is reversed. The defendant's convictions are reinstated. (Revised 11/8/01)

010091 Scates v. Commonwealth 11/02/2001 The Court of Appeals and the trial court erred in approving the admission of evidence of other crimes in the trial of a prosecution for grand larceny and breaking and entering. The order of the Court of Appeals affirming the convictions is reversed, and the case is remanded to the Court of Appeals with direction that it be remanded to the circuit court for a new trial if the Commonwealth be so advised.

010123 Black v. Commonwealth 11/02/2001 Code § 18.2-423, which prohibits the burning of a cross with the intent of intimidating any person or group of persons, impermissibly infringes upon freedom of speech and is unconstitutional on its face because it prohibits otherwise permitted speech solely on the basis of its content, and the statute is overbroad. The convictions of defendants in three collected cases are vacated and the indictments are dismissed. (Revised 11/13/01)

010193 Hills v. Commonwealth 11/02/2001 A ruling of the Court of Appeals requiring voir dire questioning of prospective jurors concerning their knowledge of parole ineligibility is reversed, and this rape case will be remanded to the trial court for a new sentencing hearing.

010227 Zirkle v. Commonwealth 11/02/2001 Upon review pursuant to Code § 17.1-313, the sentence of death imposed upon this defendant is found neither excessive nor disproportionate to the penalties imposed in similar cases, considering both the crime and the defendant. The sentence will not be commuted to imprisonment for life, and the judgment of the circuit court is affirmed.

010456 Short Pump Town Center v. Hahn 11/02/2001 Because a community development authority was not authorized to bring a bond validation action under the Public Finance Act, the judgment of the circuit court invalidating a bond issuance undertaken to finance development of a retail shopping mall is reversed, and the action is dismissed.

010471 Weathers v. Commonwealth 11/02/2001 The Court of Appeals of Virginia correctly affirmed a trial court's action in admitting evidence of defendant's prior convictions in a drug prosecution upon substantial compliance with the applicable notice requirements. The judgment is affirmed.

010600 Bloom v. Commonwealth 11/02/2001 In a case involving an attempt to take indecent liberties with a child and solicitation to commit sodomy, the trial court did not err in admitting into evidence certain out-of-court statements where the defendant was sufficiently identified as the person who had made the statements via the Internet. The judgment of the Court of Appeals upholding the trial court's ruling is affirmed.

010686 Barrett v. Commonwealth 11/02/2001 The trial court abused its discretion in refusing to strike a prospective juror whose brother, a police officer, was a witness for the prosecution in two consolidated criminal cases. The judgments of the trial court and the Court of Appeals are reversed and the case is remanded to the Court of Appeals with direction that the case be remanded to the trial court for further proceedings.

010692 Tidwell v. Virginia State Bar 11/02/2001 The Virginia State Bar Disciplinary Board did not err in revoking appellant's license to practice law pursuant to the provisions of Part Six, § IV, Para. 13(G)(2001) of the Rules of Court. He was not denied notice because he had notice of the crime with which he was charged and that conviction would result in disbarment. He was not denied the opportunity to be heard because he had the right to defend against the criminal charge but he chose to plead guilty.

001798 Patterson v. Commonwealth 09/14/2001 Upon finding no error in the proceedings below and no reason to set aside the sentence of death, the judgment of the trial court in this capital murder case is affirmed.

001947 Goldman v. Landsidle 09/14/2001 Because the petitioners seeking a writ of mandamus against the Commonwealth cannot identify a statutory right permitting them to seek this relief, and because they have not demonstrated a direct interest in the proceedings different from that of the public at large, the trial court correctly dismissed the application because the petitioners lack standing to seek the requested relief. (Revised 9/18/01)

002120 Fritts v. Carolinas Cement Co. 09/14/2001 The trial court did not err in holding that a cement company's proposed cement and flyash terminal is a warehousing and distribution facility permitted by right under a county zoning ordinance, and the judgment of the trial court will be affirmed.

002184 Parker-Smith v. Sto Corp. 09/14/2001 In a case involving a synthetic exterior finishing product used in construction, the circuit court correctly found that the period of limitation in Code § 8.01-248 applies to false advertising claims. The judgment for defendant is affirmed.

002253 Virginia Retirement System v. Avery 09/14/2001 Since service of process upon an opposing party is not a requirement for perfecting appeal of an administrative agency's decision, the circuit court had jurisdiction and the savings statute cures any defective service on the facts of this case, the Court of Appeals correctly affirmed the trial court's rulings, and that judgment is affirmed.

002255 Peck v. Safway Steel Products Inc. 09/14/2001 The trial court did not err in ruling that the plaintiff's wrongful death action is barred by the exclusivity provision of the Virginia Workers' Compensation Act since the defendant was engaged in an essential part of the work that the employer was required to perform under its contract and defendant is not an "other party" under the Act.

002266 Zirkle v. Commonwealth 09/14/2001 In review of a death sentence pursuant to Code § 17.1-313, no basis is found for disturbing the sentence imposed, and the sentence will not be commuted to imprisonment for life. The judgment of the circuit court is affirmed.

002301 Nelson v. Warden 09/14/2001 In an original habeas corpus application, the petitioner did not preserve the error in a juvenile court's failure to give his father notice of proceedings and did not raise the issue for many years prior to this petition. Because petitioner's convictions were merely voidable, his failure to raise the issue in a timely manner constitutes a waiver of the error and results in dismissal of this petition.

002337 Harris v. Commonwealth 09/14/2001 The trial court erred in failing to suppress evidence obtained as a result of police stopping a suspect based on an anonymous tip about the conduct of drug transactions at a public housing development, and evidence obtained in the subsequent search of the defendant's person incident to his arrest, and the Court of Appeals erred in affirming the trial court's judgment. The judgment of the Court of Appeals is reversed, and final judgment is entered vacating the convictions and dismissing the indictments.

002354 Willard v. Moneta Building Supply 09/14/2001 The trial court erred in determining that a stockholder's motion for judgment against a corporation was subject to the two-year catch-all limitation period provided by Code § 8.01-248 and in dismissing his claim. The stockholder alleged an "injury to property" and his claim was thus subject to the five-year limitation in Code § 8.01-243(B). The judgment is reversed and the case remanded for further proceedings. (Revised 9/27/01)

002414 Bhatia v. Mehak Inc. 09/14/2001 In consolidated personal injury actions, the trial court erred in sustaining pleas of charitable immunity on behalf of a restaurant business and its co-owners for claims that arose when they donated catering services at a religious organization's ceremony. The judgment is reversed.

002415 Lamar Corp. v. Commonwealth Transp. Comm'r 09/14/2001 In a condemnation proceeding, the trial court's exclusion of certain expert testimony denied the plaintiff tenant its right under Code § 25-46.21:1 to offer admissible evidence during the valuation proceeding. Absent any evidence of the value of the billboard, the commissioners' determination of just compensation was erroneous as a matter of law. The judgment is reversed and the case is remanded.

002420 Kidd v. Gunter 09/14/2001 The trial court correctly held that even though a decedent clearly had testamentary intent in creating a journal, she did not make it manifest that her name on the inside cover was intended as a signature to the writing. The journal therefore did not satisfy the requirements for a holographic will. The judgment is affirmed.

002459 Lombard v. Rohrbaugh 09/14/2001 In a personal injury case, the trial court did not err in permitting reference to insurance in connection with bias impeachment of a defense expert, or in enforcing a stipulation reached in pretrial discovery proceedings. The judgment is affirmed.

002485 Stockdale v. Stockdale 09/14/2001 The Court of Appeals correctly held that the trial court's statement that the respondent father bore the burden of showing by a preponderance of the evidence that his relationship with his children would be substantially impaired by their relocation was error, but that the error was harmless. For the reasons set forth in the opinion of the Court of Appeals, that court's judgment is affirmed.

002499 Radvany v. Davis 09/14/2001 In a personal injury case, the trial court did not err in refusing to allow the introduction into evidence of the amounts accepted by health care providers for the medical services rendered to plaintiff and did not err in instructing the jury on the aggravation of a preexisting condition. The judgment is affirmed.

002536 Grimes v. Suzukawa 09/14/2001 A plaintiff who alleged intentional tort causes of action against defendant arising from a masked, sexual assault, was not entitled to rely upon the tolling provision of Code § 8.01-229(D) when the assailant's identity was learned several years later. Since she did not establish that defendant undertook any affirmative act, directly or indirectly, to obstruct her right to file an action, and the judgment of the trial court dismissing the motion for judgment with prejudice is affirmed.

002550 Jeneary v. Commonwealth 09/14/2001 The trial court incorrectly applied sections of the Workers' Compensation Act to claims made by the Uninsured Employer's Fund and a health care provider against the proceeds of a settlement in a wrongful death action. It also erred in failing to stay the hospital's efforts to force distribution of the proceeds. The judgment is reversed in part, the order directing distribution of proceeds is vacated, and the case is remanded for further proceedings.

002574 Jefferson Green Unit Owners Assoc. v. Gwinn 09/14/2001 Although the circuit court erred in finding that a zoning proffer making recreational facilities available to a condominium by requiring payment of membership dues in a private recreational association is unconstitutional, the judgment requiring a unit owners' association to re-establish membership in the recreational facility and to pay membership dues is affirmed. The circuit court correctly determined that the proffer does not violate the limitation in Code § 15.2-2297(A)(v).

002605 Clark v. Commonwealth 09/14/2001 An accused has no right to a physical examination of the victim in a statutory rape case, and the judgment of the Court of Appeals upholding a defendant's convictions will be affirmed.

002615 Caine v. NationsBank 09/14/2001 A financial institution did not breach its statutory or contractual duties when it allowed one party to a joint account unilaterally to add another party to the account. The judgment of the trial court is affirmed.

002802 McMillion v. Dryvit Systems Inc. 09/14/2001 The circuit court correctly ruled that the limitation period in Code § 8.01-248 applies to a cause of action for false advertising, and its ruling sustaining a plea of the statute of limitations is affirmed. The trial court's action in sustaining a demurrer to counts alleging fraud is also affirmed.

002816 Megel v. Commonwealth 09/14/2001 In an appeal of a firearms conviction where the controlling issue was failure of the trial court to suppress items seized in a warrantless search of defendant's home, the Court of Appeals erred in ruling that, by entering a so-called home electronic incarceration program, defendant waived Fourth Amendment rights and his home became the equivalent of a prison cell. The judgment is reversed. Because the issue of consent has not been addressed, the case is remanded for consideration of that issue.

002866 Commonwealth v. Southerly 09/14/2001 Under the circumstances of this case, the Court of Appeals should have transferred defendant's appeal to this Court. Without such a transfer, jurisdiction is lacking to decide questions presented by the Commonwealth's argument that notice to a juvenile defendant's father was unnecessary. Accordingly, the case is remanded to the Court of Appeals with direction to transfer the matter to this Court for further proceedings.

002894 Transcontinental Insurance Co. v. RBMW Inc. 09/14/2001 The trial court erred in ruling that an exclusion in a piers, wharfs, and docks coverage form of an insurance policy did not apply to storm damage to a marina. The trial court did not err in granting a nonsuit of a cause of action against an insurance agency and its agent.

010161 Yarbrough v. Commonwealth 09/14/2001 There is no reversible error in a re-sentencing proceeding that resulted in imposition of the sentence of death upon the defendant. Upon review of the sentence pursuant to Code § 17.1-313, no basis is found for commuting the sentence and the trial court's judgment is affirmed.

010579 Remington v. Commonwealth 09/14/2001 Upon review of a sentence of death, no reversible error is found. There is no reason to commute the death sentence, and the judgment of the circuit court is affirmed.

001133 Whiting v. Whiting 06/08/2001 Since no challenge was made within 21 days of its entry, a final decree of divorce remained in full force and effect. The award of spousal support was terminated when the cause was dismissed by the final decree of divorce. The Court of Appeals judgment is reversed, the trial court's first decree is vacated and its second decree is vacated to the extent that it is inconsistent with this holding.

001371 County of Giles v. Wines 06/08/2001 Because a county employee had only a contract of employment that was terminable at-will, it was error to confirm a jury verdict for the employee in his employment termination case. The judgment is reversed.

001615 Pfeifer v. Krauss Construction Co. 06/08/2001 Under the exclusive remedy provision of the Virginia Workers' Compensation Act, a common-law claim brought by an employee of one subcontractor on a construction job against another subcontractor for personal injuries received on the job was barred. The trial court's judgment is affirmed.

001622 Rappahannock Pistol and Rifle Club v. Bennett 06/08/2001 The trial court properly held that the plaintiff failed, as a matter of law, to prove that the defendants tortiously interfered with plaintiff's contract with a landowner for the purchase of land. Accordingly, the judgment of the trial court in favor of the defendants is affirmed.

001711 Nelson v. Davis 06/08/2001 The trial court erred in dissolving a temporary injunction and denying a permanent injunction relating to interference with the plaintiffs' use of a gravel driveway over defendant's property, where a prescriptive easement was asserted. The judgment is reversed and remanded.

001712 Ponirakis v. Choi 06/08/2001 In a medical malpractice action the trial court erred in instructing the jury on the defense of contributory negligence because there was no evidence to support that instruction. The trial court's judgment is reversed and the case is remanded for a new trial.

001729 Connell v. Kersey 06/08/2001 In response to a petition for a writ of mandamus under the Virginia Freedom of Information Act to compel a Commonwealth's Attorney to produce records related to an ongoing criminal investigation or prosecution, the trial court properly sustained a demurrer. The judgment is affirmed.

001740 Vaughan's Landscaping v. Dodson 06/08/2001 In a workers' compensation claim, the Commission correctly concluded that the claimant's injuries arose out of and in the course of his employment, and that intoxication of the employee during transportation from work supplied by the employer did not bar recovery. The judgment of an evenly divided Court of Appeals upholding the Commission's finding is affirmed.

001773 McDonald v. National Enterprises Inc. 06/08/2001 The trial court did not err in entering judgment against a loan guarantor where the plaintiff was not in possession of the original note. Neither prior litigation nor the statute of limitations barred the claim under the guaranty, and no reversible error was committed in evidentiary rulings or in awarding attorney's fees. The judgment is affirmed.

001795 Shackleford v. Commonwealth 06/08/2001 On appeal by a juvenile tried as an adult in circuit court for drug-related offenses, there is no merit to arguments that the trial court lacked jurisdiction because the youth's parents did not receive notice of certain proceedings, or in challenges to the voluntariness of his statement to police, the seizure of certain physical evidence, and the sufficiency of the evidence. The judgment of the Court of Appeals is affirmed.

001849 T.L. Garden & Associates v. First Savings Bank 06/08/2001 In a case concerning a bank's agreement to reserve funds generated during a construction project for payment of a subcontractor's equipment costs, the trial court properly set aside a jury verdict in favor of the subcontractor. The judgment is affirmed.

001881 Commonwealth v. Huynh 06/08/2001 In exercising the authority granted by Code § 8.01-66.9 to reduce a lien in favor of the Commonwealth for medical services rendered to an infant injured by the alleged negligence of her physician, the trial court erred in failing to award at least some portion of an infant's settlement with the physician to the Commonwealth. The judgment is reversed and remanded.

001887 Flora v. Shulmister 06/08/2001 A trial court abused its discretion by imposing monetary sanctions in a medical malpractice and wrongful death case for failure of a litigant's counsel to produce an autopsy report in response to a request for production of documents, because the attorney could have formed a reasonable belief, grounded in fact and warranted under existing law, that the report contained facts known and opinions held by an expert and was, therefore, discoverable only pursuant to Rule 4:1(b)(4). The award of sanctions is reversed.

001914 Ohio Casualty Insurance v. State Farm Fire & Casua 06/08/2001 In a coverage dispute between two insurance carriers, arising from the damage by fire of two homes under construction by the same builder, the trial court erred in ruling that the carriers shared "a concurrent insurance obligation" for the damage. The judgment is reversed and vacated, and final judgment is entered.

001919 The Investor Associates v. Copeland 06/08/2001 The trial court committed no error in deciding a controversy among partners of a Virginia general partnership concerning the proper statute of limitations, who is indebted to whom, and which of the partners have the right to wind up the partnership affairs. The order appealed from is affirmed and the cause is remanded to the trial court for such further proceedings as may be necessary to wind up the partnership affairs.

001927 City of Bedford v. Zimmerman 06/08/2001 In a negligence personal injury case against a locality, the jury could have found from the evidence that the plaintiff's conduct was reasonable, and therefore the trial judge correctly refused to strike plaintiff's evidence on the basis that he was guilty of contributory negligence as a matter of law. There was also no error in refusing certain duplicative jury instructions. The judgment is affirmed.

001940 Motion Control Systems Inc. v. East 06/08/2001 The trial court correctly held that a covenant not to compete executed by an employee was overbroad and unenforceable and that judgment is affirmed. The trial court erred in entering an injunction permanently barring the former employee from disclosing confidential, proprietary or trade secret information of his former employer and the portion of the judgment imposing an injunction is reversed.

001944 Halifax Corp. v. First Union National Bank 06/08/2001 Where an employee embezzled millions of dollars and the company charged that a bank was liable for paying numerous checks drawn with facsimile signatures, the trial court correctly found the claims barred under Code § 8.4-406(f) and barred by failure to allege forged indorsements. Plaintiff's contract claim that the bank breached a deposit agreement or corporate banking authorization is displaced by the Uniform Commercial Code. The judgment is affirmed.

002010 Molchon v. Tyler 06/08/2001 In a wrongful death action alleging medical malpractice in the negligent discharge of a psychiatric patient who subsequently committed suicide, the trial court properly sustained a jury verdict in favor of the decedent's representative. The judgment is affirmed.

002058 Johnson v. Cauley 06/08/2001 Because the record supports the trial court's finding that a decedent had lodged her testamentary instruments with counsel, and thereafter did not have access to them, and it would be speculative to find that she had retrieved them, the burden was upon the challengers to prove by clear and convincing evidence that the instruments were revoked. Such proof was not made, and the judgment of the trial court, approving the probate of copies of the instruments, is affirmed.

002073 Weitz v. Hudson 06/08/2001 In an interlocutory appeal pursuant to Code § 8.01-581.016 from an order denying an application to compel arbitration, the specific controversy alleged in the motion for judgment was covered by an arbitration clause in a limited partnership agreement. The judgment of the circuit court denying an order compelling arbitration is reversed and remanded for determination whether any new issues raised in the amended motion for judgment are subject to arbitration.

002112 Clay v. Commonwealth 06/08/2001 In a first-degree murder prosecution, the trial court did not commit reversible error in (1) allowing certain evidence under the state-of-mind exception to the hearsay rule and (2) excluding certain testimony of a deputy sheriff. The judgment of the Court of Appeals upholding the trial court's conviction of the defendant is affirmed.

002143 Gardner v. Commonwealth 06/08/2001 In a prosecution for obtaining money by false pretenses, a fatal variance existed between the averment in the indictment that the money was the property of a named individual, and the evidence, which showed that the money was the property of the bank from which it was obtained. The judgment of the Court of Appeals is reversed, the judgment of the trial court is vacated, and the indictment is dismissed.

002183 Flippo v. CSC Associates 06/08/2001 There was no abuse of discretion in the trial court judgment, nor was there reversible error in holding one member of a limited liability company liable for a breach of fiduciary duty, barring two members from performing as managers of the company, awarding compensatory and punitive damages, and imposing sanctions pursuant to Code § 8.01-271.1. The judgment is affirmed.

002242 Powell v. Commonwealth 06/08/2001 Upon rehearing, a conviction for capital murder is reversed, the related convictions are affirmed, and the case remanded for prosecution on charges no greater than first degree murder, should the Commonwealth be so advised. The revised opinion clarifies that in future capital murder trials the jury must be given verdict forms that expressly provide for the option of imposing a life sentence even though one or both aggravating factors are present. (Rev. 6/8/01)

002976 Green v. Commonwealth 06/08/2001 In a capital murder trial the circuit court abused its discretion in refusing to remove two members from the venire. The judgment confirming the capital murder conviction is reversed.

003010 Schmitt v. Commonwealth 06/08/2001 Upon a review of the capital murder conviction and death sentence imposed on defendant for murder committed during a bank robbery, along with his several non-capital convictions, no error is found, and the sentence is not commuted. The judgments are affirmed.

002146 Magco of Maryland Inc. v. Barr 05/11/2001 Since there was an independent basis for the judgment below which was not challenged on appeal, the merits of assignments of error to another basis for the judgment are not considered, and the judgment is affirmed.

000566 Dorsey v. Angelone 04/20/2001 In a habeas corpus proceeding, the trial court correctly ruled that a prisoner's second petition for a writ of habeas corpus was procedurally barred under Code § 8.01-654(B)(2), which controls the filing of successive habeas petitions. Dismissal of the petition is affirmed.

000785 Simmons v. Miller 04/20/2001 The trial court did not err in ruling on individual and derivative claims brought by a shareholder in a closely held corporation, claims for statutory conspiracy under Code §§ 18.2- 499 and -500, a legal malpractice claim, and a claim for conversion. The court erred in failing to set aside a verdict enforcing a restrictive employment covenant. The judgment is affirmed in part and reversed in part. (Revised 5/2/01)

001072 Bertozzi v. Hanover County 04/20/2001 In a land use dispute, the trial court erred in ruling that a local planning commission's disapproval of applications and plats for a subdivision properly was based on the applicable ordinance and was not arbitrary or capricious. The judgment is reversed and the case remanded. (Revised 5/2/01)

001073 Shelor Motor Co. v. Miller 04/20/2001 In a declaratory judgment suit the chancellor erred in holding that certain merchants' capital that was removed temporarily from a county before the "tax day" of January 1 is subject to taxation by that county under Code § 58.1-3511(A).

001074 Prosise v. Foster 04/20/2001 The trial court correctly held that an on-call attending physician for a teaching hospital had no physician-patient relationship with a patient in the absence of direct contact with or consultation concerning the patient to show that the patient's care was entrusted to the physician and that the physician accepted the case. The judgment in favor of the doctor and her employer is affirmed.

001079 Edmunds v. CBC Enterprises Inc. 04/20/2001 The circuit court did not err in ruling that there was insufficient evidence to establish that the subcontractor had assigned to plaintiff funds due it for work it performed under subcontracts with defendant. (Revised 5/2/01)

001203 Lostrangio v. Laingford 04/20/2001 The trial court erred in sustaining a plea in bar of sovereign immunity under Code § 15.2-1809 in a personal injury lawsuit filed against a locality arising out of a July 4th celebration.

001204 Stout v. Bartholomew 04/20/2001 In an action arising out of an accident between a motorcycle and a dog, the circuit court did not err in refusing to grant an instruction on negligence per se, in setting aside a jury verdict for plaintiff, and in sustaining a demurrer with regard to claims for failure to warn. The judgment is affirmed.

001349 Allstate Insurance Co. v. Jones 04/20/2001 The trial court correctly ruled that a passenger in a car that was insured at the time of an accident is entitled to enforce a judgment entered against a named insured driver pursuant to the uninsured motorist provisions of the driver's automobile liability insurance policy even though the insurance company which had issued the policy denied liability coverage to its named insured driver for failure to cooperate.

001350 AEGIS Waste Solutions v. Concerned Taxpayers 04/20/2001 Since there was substantial evidence in the agency record upon which the Department of Environmental Quality as the trier of the facts could reasonably find that certain outparcels were not included in a landfill permit issued to a waste management company, the judgment of the Court of Appeals is reversed, the judgment of the circuit court is reinstated, and final judgment is entered in favor of the company and DEQ.

001364 Alexakis v. Mallios 04/20/2001 There was no error in the trial court's dismissal of consolidated legal and equitable proceedings because a settlement agreement recited in open court was valid and binding upon all parties. The judgment is affirmed.

001386 Adams Outdoor Advertising v. Bd. of Zoning 04/20/2001 The trial court correctly ruled that a board of zoning appeals did not have authority to grant a variance from an ordinance governing modifications of certain signs treated as nonconforming uses under the local zoning ordinance, and in declining to address certain compensation issues. The judgment is affirmed.

001484 Board of Supervisors v. McDonald's Corp. 04/20/2001 A trial court erred in reversing the decision of a county board of supervisors to deny a special zoning exception for a fast-food restaurant to create a drive-through service operation. The judgment is reversed and final judgment entered.

001558 Russell v. Commonwealth 04/20/2001 In a condemnation proceeding, evidence of a prior valuation of certain condemned property for tax assessment purposes was properly admissible to impeach an appraiser's testimony valuing the property for purposes of determining just compensation. The judgment is affirmed. (Revised 5/30/01)

002003 Burlile v. Commonwealth 04/20/2001 In a capital murder case, the Court of Appeals properly held that the trial court did not err in failing to instruct the jury that in order to convict the defendant of the willful killing of more than one person within a three-year period in violation of Code § 18.2- 31(8) it is necessary that the jury find the defendant was a principal in the first degree, or "triggerman," in each killing at issue. The conviction is affirmed.

002613 Adams v. Alliant Techsystems 04/20/2001 In response to certified questions of law from a federal district court, it is held that the Virginia Workers' Compensation Act does not bar a plaintiff from bringing a common-law action to recover damages for hearing loss resulting from cumulative trauma if the claim accrued during the period in which such hearing loss was not a compensable injury or disease under the Act, and that pursuing a claim before the Commission in the first instance is not required.

002779 Lenz, Michael W. v. Commonwealth 04/20/2001 The trial court did not err in sentencing to death an inmate who killed another inmate while incarcerated. Upon a review of the sentence of death, finding no reversible error in the record, and perceiving no reason to commute the death sentence, the judgment of the circuit court is affirmed. See Record No. 012883, Lenz v. Warden, dated April 17, 2003

000509 Mattaponi Indian Tribe v. Commonwealth 03/02/2001 In environmental litigation arising under laws dealing with the quality of state waters, the protesters of the actions involved have standing to seek judicial review of such action in a state court. The contrary judgment below is reversed and the case remanded for further proceedings. (Opinion edited 3/19/01)

000736 State Water Control Board v. Smithfield Foods 03/02/2001 In an enforcement action brought by the State Water Control Board and the Director of the Department of Environmental Quality against defendant company for alleged violations of a permit issued pursuant to both state and federal law, the judgment of the trial court sustaining defendant's plea of res judicata and dismissing the Board's enforcement action is affirmed because privity exists between the Board and the EPA under the facts of this case.

000767 American Spirit Insurance Co. v. Owens 03/02/2001 The trial court erred in finding that the indemnification provisions contained in an agency agreement between an insurance company and its agent did not provide for recovery of attorney's fees and other expenses related to litigation of claims made on an insurance policy issued by the agent in breach of the agency agreement. That judgment is reversed.

000835 Hudson v. Pillow 03/02/2001 There was sufficient evidence to support the circuit court's judgment that an old road that ran through a farm to provide access to another parcel has been abandoned. The judgment is affirmed.

000836 Welding Inc. v. Bland County Service Auth. 03/02/2001 Since the tolling provision of Code § 8.01-229(E)(1) is applicable to this action, the judgment of the trial court sustaining the defendant's plea in bar under a limitations provision is reversed. The allegations in plaintiff's proposed amended motion for judgment were sufficient to withstand demurrer because they reflected compliance with certain statutory and contractual provisions required for recovery. The judgment sustaining the demurrer is reversed and the case is remanded.

000861 Smith Mountain Lake Yacht Club v. Ramaker 03/02/2001 The chancellor erred in holding that a landowner had the right to construct a dock over neighboring property to reach the waters of a lake, and the decree is reversed and remanded for entry of an injunction barring such construction.

000868 Commonwealth v. Athey 03/02/2001 The trial court erred in finding that a boating service was not a sightseeing carrier by boat regulated by the Department of Motor Vehicles. The judgment is reversed and final judgment entered declaring that the business is that of a "sight-seeing carrier by boat," covered by the provisions of Code §§ 46.1-2600 through -2610.

000934 Atkinson v. Sachno 03/02/2001 In a medical malpractice case the trial court erred in finding that a physician providing consultant services for an agency of the Commonwealth was not an independent contractor and that he was entitled to the protection of the doctrine of sovereign immunity from liability for his alleged acts of negligence. The judgment is reversed and the case remanded for further proceedings.

000959 Scales v. Lewis 03/02/2001 The trial court erred in granting a plea of res judicata and collateral estoppel in favor of one defendant, and a plea of judicial estoppel in favor of two other defendants. The judgment is reversed and the case remanded for further proceedings consistent with this opinion.

000961 Flory Small Business Dev. Ctr. v. Commonwealth 03/02/2001 The trial court correctly denied the claim of a small business development center for services rendered to a state department because of failure to comply with the notice provisions of the Virginia Public Procurement Act. The judgment is affirmed.

000974 America Online v. Anonymous Publicly Traded Co. 03/02/2001 A publicly traded company, a party to litigation in another state, should not have been permitted to litigate anonymously in an ancillary discovery proceeding in Virginia under the Uniform Foreign Depositions Act. The judgment below is reversed and the proceeding remanded.

001010 Town of Front Royal v. Martin Media 03/02/2001 On a landowner's petition for a writ of certiorari to review a decision by a local board of zoning appeals, and the concurrent motion of the locality for declaratory judgment and injunctive relief, the trial court erred in holding that a billboard was a lawful nonconforming use of the land. The judgment is reversed and the case remanded for entry of appropriate injunctive relief directing removal of the billboard.

001090 Heath v. Commonwealth 03/02/2001 Since a criminal defendant's request for a psychiatric examination to determine competency tolled the running of the speedy trial period, and he acquiesced in one other delay of trial, his eventual trial was within the five-month period specified by the Code, and the resulting conviction is affirmed.

001183 Tarpley v. Commonwealth 03/02/2001 The evidence in a grand larceny prosecution was insufficient as a matter of law to establish larcenous intent at the time the defendant drove away in the victim's automobile because the trier of fact could not determine, without speculation, that defendant intended to deprive the owner of his car permanently. The conviction is reversed and the indictment dismissed.

001879 Burns v. Commonwealth 03/02/2001 Defendant's sentence of death is not excessive or disproportionate to sentences generally imposed in this Commonwealth for capital murders comparable to the defendant's murder of this victim. No error is found either in the judgments of the circuit court or in the imposition of the death penalty. No reason is found to commute the sentence of death and the judgments of the circuit court are affirmed.

002286 Williams v. Virginia State Bar 03/02/2001 The Virginia State Bar Disciplinary Board did not err in suspending an attorney's license to practice law in the Commonwealth for a period of six months because he failed to comply with the terms of an agreed disposition order entered after a prior finding of misconduct. The Board's order suspending the attorney's license is affirmed.

000023 Dugan v. Childers 01/12/2001 In a case involving conflicting claims to the survivor benefits of a deceased retired military officer, the trial court properly refused to impose a constructive trust on benefits being received by the widow because a former wife had not fulfilled the requirements of the governing federal act by registering her claim within one year. The action of the trial court is affirmed.

000069 Norfolk Southern Ry. Co. v. Bowles 01/12/2001 In a railroad case under the Federal Employers' Liability act, the trial court did not err in admitting certain expert opinion, in submitting the issue of the railroad's negligence to the jury, and in ruling on the impact of a discrepancy between the jury panel list and the membership of the panel. The judgment is affirmed.

000115 Cummings v. Fulghum 01/12/2001 In a case involving the issue whether a plea of recoupment under Code § 8.01-422 is subject to a statute of limitations defense raised by a plaintiff in an action to enforce payment of a note, the trial court's judgment is reversed, and the case is remanded for further proceedings.

000142 Golding v. Floyd 01/12/2001 Since the parties to a lawsuit agreed to settle subject to execution of a formal agreement at a later time, the trial court erred in finding the existence of a binding contract and in dismissing the underlying action. The judgment is reversed and the trial court's judgment is vacated. Plaintiff's cause of action is reinstated, and the case is remanded for further proceedings.

000143 Coleman v. Commonwealth 01/12/2001 Defendant's convictions and punishments for the malicious wounding and attempted murder of the same victim did not subject him to double jeopardy in violation of the Fifth Amendment to the federal Constitution, and the convictions are affirmed.

000216 Frank Shop Inc. v. Crown Central Petroleum 01/12/2001 In a case involving application the Virginia Petroleum Products Franchise Act to a service station located less than one and one- half miles from a competing outlet, the trial court erred by admitting certain documentary evidence, and exclusion of such evidence results in a failure of proof concerning the defendant's entitlement to protection under the Act's "grandfather clause." The judgment of the trial court is reversed and the case is remanded.

000260 Waterman v. Halverson 01/12/2001 The trial court erred in dismissing plaintiff's renewed motion for judgment in a medical malpractice case as barred by the statute of limitations based on an interpretation of the one-year service rule codified in Code § 8.01-275.1. Since that section did not limit the jurisdiction of the trial court to grant a nonsuit of a prior proceeding, the renewed suit filed within six months of the nonsuit order was timely. The judgment is reversed and the case remanded.

000277 Blanton v. Amelia County 01/12/2001 Certain county sewer sludge use ordinances are inconsistent with Virginia statutes and the Biosolids Use Regulations promulgated thereunder, and hence the trial court erred in failing to enter a declaration that the ordinances are void and unenforceable. The judgment of the circuit court is reversed and final judgment is entered on behalf of the plaintiff farmers.

000291 Linhart v. Lawson 01/12/2001 In a case in which a school bus was involved in a traffic accident with another vehicle, the judgment of the trial court sustaining the school board's plea of sovereign immunity is reversed and the case is remanded for further proceedings. The judgment of the trial court sustaining defendant employee's plea of sovereign immunity is affirmed.

000293 Gray & Gregory v. GTE South Inc. 01/12/2001 In a condemnation proceeding, the circuit court erred by excluding the landowner's evidence of the amount of rental income previously generated by the property taken. The final order confirming the award is reversed, and the case is remanded for a new trial on compensation.

000337 Smith v. Richmond Newspapers Inc. 01/12/2001 The circuit court properly concluded that audio tape recordings of a felony criminal trial were records of the circuit court open to inspection pursuant to Code § 17.1-208, and that mandamus was the proper remedy to direct the clerk of court to permit petitioners to listen to these tapes. Accordingly, the issuance of a writ of mandamus by the circuit court is affirmed.

000461 Thompson v. Skate America Inc. 01/12/2001 In a case arising from an assault committed upon plaintiff at a skating rink, the trial court erred in sustaining the demurrer of the business, but it correctly sustained a demurrer filed by the mother of juvenile alleged tortfeasor. The case is remanded for further proceedings.

000474 Commercial Underwriters Ins. v. Hunt & Calderone 01/12/2001 In a declaratory judgment action regarding coverage under a professional liability insurance policy, the insured had the burden to show satisfaction of conditions precedent to the contract and the insurance company had the burden on its claim of material misrepresentation. The trial court correctly found that the insured satisfied its evidentiary burden but that the insurance company did not. The judgment of the trial court is affirmed.

000475 Carr v. Kidd 01/12/2001 In a suit to determine riparian rights of neighboring landowners, the trial court did not err in confirming the report of a commissioner in chancery which recommended apportionment based on an approximated historic shoreline existing prior to manmade development of the perimeter of the parties' properties. That judgment is affirmed.

000497 Melanson v. Commonwealth 01/12/2001 Since mailing by certified mail, return receipt requested, is the exclusive method for filing a notice of claim against the Commonwealth under the Virginia Tort Claims Act, the trial court's dismissal of a motion for judgment against the Commonwealth is affirmed.

000558 Countryside Orthopaedics P.C. v. Peyton 01/12/2001 Four agreements executed as part of a single transaction to accomplish an agreed purpose should be construed together. In these cases, the trial court's disposition of a doctor's claim for base compensation from a professional corporation is affirmed, but since the doctor was the first party to commit a material breach, the award of severance pay to that doctor is reversed.

000562 Napert v. Napert 01/12/2001 In ruling upon a bill of review, the trial court erred in finding that a decree was entered in violation of Rule 1:13. The judgment is reversed and the bill of review is dismissed.

000589 Harris v. Commonwealth 01/12/2001 The Court of Appeals of Virginia correctly determined that the prosecution sufficiently established the chain of custody of certain material seized from defendant's person upon arrest, and hence that a certificate of analysis stating that the substance was cocaine was properly admitted in the trial of defendant. The judgment is affirmed.

000590 HomeSide Lending v. Unit Owners Assoc. 01/12/2001 In a case commenced by a condominium owners' association for unpaid assessments, Code § 55-79.84(A) establishes the applicable priority of liens and the part of the judgment of the circuit court directing certain disbursements for fees, court costs and repair expenses before payment of a note secured by the first deed of trust is reversed, the part of the judgment directing payment of fees of the special commissioner before payment of the note is affirmed, and the case is remanded.

000636 Singh v. Mooney 01/12/2001 In a medical malpractice case, the trial court did not have jurisdiction to vacate a prior dismissal order because more than twenty-one days had passed after its entry. Similarly the trial court was without jurisdiction to enter an order of nonsuit. Accordingly, the judgment of the trial court is reversed and the order dismissing the action with prejudice is reinstated.

000700 Clinchfield Coal Co. v. Robbins 01/12/2001 In a declaratory judgment proceeding brought by a coal company against a county commissioner of revenue, the judgment of the trial court is reversed and final judgment is entered in favor of the coal company declaring that the commissioner lacked authority to appoint members of an accounting firm as deputy commissioners. A summons requiring production of business tax records for use by the accounting firm is quashed.

001539 Dudas v. Glenwood Golf Club 01/12/2001 The trial court properly awarded summary judgment to a golf course on the ground that it did not owe a duty of care to warn or protect its invitee, who was the victim of a criminal assault by unknown third parties while on the premises. The judgment is affirmed. (Opinion edited 3/09/01)

993015 Yuzefovsky v. St. John's Wood Apartments 01/12/2001 A tenant alleged that the defendant apartment complex had a special relationship with him based upon expressed security concerns and certain misrepresentations by defendants' personnel, but failed to allege the imminent probability of harm giving rise to duties to warn and protect him from criminal assault by a third party. The trial court correctly sustained a demurrer to negligence and fraud claims, and that judgment is affirmed.

001024 Wright v. Commonwealth 11/30/2000 The defendant abandoned the issue on which he appeals in the Court of Appeals of Virginia, and he may not resurrect the issue here. The defendant's arguments in this appeal are not encompassed within the assignment of error and only questions properly presented by appropriate assignment of error are considered. The circuit court had jurisdiction to revoke defendant's suspended sentence and this appeal is dismissed. (Order Revised 12/11/00)

000071 Roberts v. Roberts 11/03/2000 Code § 64.1-57(1)(k) insulates an executor from liability for negligence committed by a bank in failing to include certain bonds in the taxable estate of a decedent, and the executor did not act negligently in relying on the bank or, later, in failing to sue the bank. The judgment of the trial court is reversed and the cause is remanded.

000107 Pitt v. Commonwealth 11/03/2000 Since any error in admitting a co-defendant's statement to police into evidence in the defendant's trial for attempted robbery was harmless beyond a reasonable doubt, the Court of Appeals' judgment upholding the conviction is affirmed.

000130 Commonwealth v. Montague 11/03/2000 In a case where the accidental killing of a victim was not related in time or place to a larceny, the grand larceny and the homicide were not parts of the same criminal enterprise as required by the res gestae rule and the felony-murder statute does not apply to the facts of this case. The Court of Appeals' judgment reversing the felony murder conviction is affirmed.

000175 Stone v. Door-Man Manufacturing Co. 11/03/2000 Under the Workers' Compensation Act, an employee of a manufacturer of motor vehicles was not the statutory fellow employee of an architect and contractors involved in a construction project at the manufacturing plant. Therefore the plaintiff worker's personal injury action against the defendants was not barred by the exclusivity provision of the Act. The judgment of the trial court is reversed, the motion for judgment reinstated, and the case remanded. (Opinion Revised 2/5/01)

000177 Fowler v. International Cleaning Service 11/03/2000 In an action for personal injuries, an employee of a retail furniture business who fell on a wet floor was the statutory fellow employee of a firm that regularly provided janitorial services at the store. The defendant cleaning service was not a stranger to the statutory employer's business and the trial court did not err in dismissing plaintiff's action with prejudice. The judgment is affirmed.

000408 Thomas v. Commonwealth 11/03/2000 The trial court erred in denying a criminal defendant's motion that he be permitted to waive his right to counsel and represent himself at trial and the Court of Appeals erred in denying an appeal of that judgment. The conviction is reversed, and the case remanded.

000552 Overton v. Commonwealth 11/03/2000 Finding no merit in defendant's contentions on this appeal of a capital murder conviction, after conducting review pursuant to Code § 17.1-313, and finding no reason to commute the defendant's sentence of death to life imprisonment, the judgment of the circuit court is affirmed.

001015 Lovitt v. Commonwealth 11/03/2000 Upon review of the defendant's sentence of death for capital murder, no error is found in the judgments of the trial court concerning the various convictions and sentence, and no reason is found to commute the sentence of death. The judgments are affirmed.

001139 Morrissey v. Virginia State Bar 11/03/2000 There was no error in the judgment of a special three judge court suspending an attorney's license to practice law for three years. The sanction imposed was not excessive, and the judgment is affirmed.

992099 Virginia College Bldg. Auth. v. Lynn 11/03/2000 With the exception of a School of Divinity, inclusion of a private Christian university in a college construction bond financing program does not violate Virginia statutes, the Constitution of Virginia, or the Establishment Clause of the United States Constitution. The order of the trial court refusing validation of the bonds is reversed and the case is remanded for entry of an order validating the bonds. (Opinion Revised 2/9/01)

992179 Majorana v. Crown Central Petroleum 11/03/2000 A plaintiff's claims of respondeat superior liability for an employee's assault were erroneously dismissed as a matter of law; judgment upon a jury verdict in favor of the employer on claims of negligence, gross negligence, and negligent hiring and retention, is affirmed, and the case is remanded for further proceedings.

992215 Dearing v. Commonwealth 11/03/2000 Admission into evidence of a co-defendant's statement to police, implicating the defendant, while putatively error under the Confrontation Clause of the Sixth Amendment, was harmless beyond a reasonable doubt under the circumstances of this case, and hence the conviction is affirmed. (Opinion Revised 11/20/00)

992257 Jewel v. Commonwealth 11/03/2000 For purposes impeachment of a witness under Code § 19.2-269, the word "conviction" includes a guilty plea accepted by a trial court. The judgment of the Court of Appeals, upholding defendant's conviction for the underlying crime, is affirmed.

992394 Whitley v. Commonwealth 11/03/2000 In a wrongful death action, the trial court did not err in granting summary judgment for defendants employed at a state facility charged with gross negligence, based on collateral estoppel arising from a prior federal court proceeding. Ordinary negligence claims against certain nurses are barred by sovereign immunity. Claims against the Commonwealth under the Tort Claims Act were erroneously dismissed. The judgment is affirmed in part, reversed in part, and the case remanded.

992557 Gina Chin & Associates v. First Union Bank 11/03/2000 The trial court erred in striking the evidence at the conclusion of the plaintiff's case-in-chief by ruling, as a matter of law, that a bank teller who participated in a scheme to deposit forged checks was acting outside the scope of his employment, thus relieving the bank from civil liability for those acts. The judgment of the trial court is reversed and the case remanded for further proceedings.

992562 Dowden v. Commonwealth 11/03/2000 Since the evidence established that defendant killed his baby son, and the jury was entitled to infer from those acts that the killing, although unintended, was the direct result of negligence accompanied by carelessness so gross, wanton, and culpable that it showed a callous disregard for the baby's life, the judgment of the Court of Appeals affirming the circuit court's finding of manslaughter is affirmed.

992566 Gray v. Commonwealth 11/03/2000 The Court of Appeals did not err in affirming convictions on charges of conspiracy to commit murder and attempted possession of a firearm silencer. The judgment is affirmed.

992662 Arlington County v. Mutual Broadcasting Sys. 11/03/2000 The trial court correctly found that a broadcaster which widely disseminated and transmitted its radio signal for reception by the general public had carried its burden of proving that it is a "radio broadcasting service" qualified for exemption from a business license tax under Code § 58.1-3703(B)(3). The judgment is affirmed. (Summary Revised 2/5/01)

992681 Varga v. Commonwealth 11/03/2000 The trial court properly convicted a defendant of driving after being declared an habitual offender under Code § 46.2-357(A), relying upon an order rendered 14 years earlier in which defendant was declared an habitual offender. The judgment of the Court of Appeals of Virginia upholding the conviction is affirmed.

992706 Commonwealth v. Chatman 11/03/2000 Because a juvenile under the age of 14 does not have either a constitutional or statutory right to assert an insanity defense at the adjudicatory phase of a juvenile delinquency proceeding, the contrary judgment of the Court of Appeals is reversed, and the judgment of the circuit court adjudicating the juvenile to be delinquent is reinstated.

992710 Cook v. Radford Community Hospital 11/03/2000 Code § 37.1-141 precludes the filing of an action by a person adjudged incapacitated and requires such action to be brought by the guardian of that person. In such a case, the trial court correctly refused to allow amendment of the pleadings to add or substitute a guardian as the plaintiff. Neither Rule 1:8, relating to amendment of pleadings, nor Code § 8.01-5, relating to misjoinder and nonjoinder of parties, is applicable here, and the trial court's judgment is affirmed.

992812 Tran v. Board of Zoning Appeals 11/03/2000 Failure of a board of zoning appeals to render a decision on an appeal within 90 days did not deprive it of jurisdiction to act, and failure to decide the matter for 550 days did not result in a denial of due process. Provisions of the county zoning ordinance allowing continuances beyond 90 days do not conflict with Code § 15.2-2312, and the trial court judgment is affirmed.

992904 Beck v. Smith 11/03/2000 The trial court erred concluding that buyers of property could not prevail on a breach of contract claim because the terms of the contract for sale were merged into the deed, but correctly ruled that they could not recover for fraud because a title examination would have disclosed the facts. Judgment on the contract claim is reversed, the jury verdict awarding the plaintiffs compensatory and consequential damages for the contract claim is reinstated, and dismissal of the fraud claim is affirmed. (Opinion revised 11/8/00)

992957 Cooper Industries v. Melendez 11/03/2000 The trial court did not err in ruling on issues of proximate causation, product misuse, and the statute of repose in a product liability case. Nor did it abuse its discretion in sending a jury back for further deliberations when one juror expressed disagreement with the verdict during a poll of the jury. The judgment of the circuit court is affirmed. (Opinion Revised 11/13/00)

992996 Taylor v. Commonwealth 11/03/2000 Since the evidence was sufficient to support the defendant's conviction in this case involving accomplice liability arising from the alleged abduction by a natural father of his illegitimate child, the judgment of the Court of Appeals affirming the conviction is affirmed.

000392 Motley I v. Virginia State Bar 09/15/2000 There was no error in an order of the Virginia State Bar Disciplinary Board imposing upon an attorney a public reprimand for failing to inform a client in a criminal case of the denial of his appeal by the Court of Appeals of Virginia in time for him to decide whether to seek an appeal to this Court. The order is affirmed.

000395 Atkins v. Commonwealth 09/15/2000 After review pursuant to Code § 17.1-313(C), in which the Court considered both the crime and the defendant, and the record, it cannot be said that the defendant's sentence of death is excessive or disproportionate to sentences generally imposed in this Commonwealth for capital murders comparable to defendant's murder of this victim. There is no reason to commute the sentence and the judgment of the circuit court is affirmed. See Record No. 000395, Atkins v. Commonwealth, dated June 6, 2003

000417 Motley II v. Virginia State Bar 09/15/2000 An order of the Virginia State Bar Disciplinary Board is reviewed in an appeal of right. Since there is no error found, the order imposing upon the attorney an eighteen-month license suspension for mishandling a real estate transaction and mismanaging a trust account is affirmed.

992018 State Health Comm'r v. Sentara Norfolk Gen. Hosp. 09/15/2000 In denying a certificate of public need for establishment of a new liver transplant facility, the State Health Commissioner did not exceed statutory authority in electing not to apply certain standards in the State Medical Facilities Plan found outdated, inaccurate, and inadequate; nor did the Commissioner rely on extra-record evidence; reliance on a mistaken factual premise was harmless error. The trial court judgment dismissing the hospital's challenge to denial of the certificate is reinstated.

992331 Sugarland Run Homeowners Ass'n v. Halfmann 09/15/2000 In a wrongful death case involving a child on a bicycle, there was - as a matter of law -insufficient evidence to establish that any alleged defects in a pathway and its intersection with a street proximately caused the accident. The judgment of the circuit court is reversed and final judgment entered for the defendant homeowners' association.

992345 Sami v. Varn 09/15/2000 The trial court erred in holding that an obstetrician-gynecologist was not qualified to give expert testimony on the standard of care for a pelvic examination performed by an emergency room physician. Because the doctor satisfied both requirements of § 8.01-581.20, he should have been qualified by the trial court to give such expert testimony. Accordingly, the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

992355 Commonwealth v. Hutchins 09/15/2000 The Commonwealth did not violate defendant's statutory rights to a speedy trial contained in Code § 19.2-243. The judgment of the Court of Appeals is reversed and defendant's conviction is reinstated in accordance with the circuit court's judgment order.

992459 Board of Supervisors v. HCA Health Services 09/15/2000 The trial court did not err in holding that a county board of supervisors committed manifest error in real estate tax assessments of a hospital property, and in correcting the assessments under the evidence presented. That judgment is affirmed.

992478 Peterson v. Castano 09/15/2000 The circuit court erred in denying a plaintiff's motion to amend two motions for judgment arising from a motor vehicle accident to increase each ad damnum clause. The portion of the judgment holding defendants liable is affirmed, while that portion assessing plaintiff's damages is reversed. The proceedings are remanded with directions to permit plaintiff to amend the motions for judgment to increase each ad damnum clause, and on remand, the plaintiff will be entitled to a trial on the issue of damages only.

992543 Mid-East Services v. Enterprise Ford Tractor 09/15/2000 The trial court did not err in finding that the defendant was not a seller or an agent for a seller in a transaction involving the sale of lawn servicing equipment to the plaintiff. The judgment is affirmed.

992609 Media General v. Smith 09/15/2000 The trial court properly dismissed a bill of complaint filed pursuant to Code § 8.01-428(D), seeking to set aside a default judgment entered against a corporation.

992751 Brown v. Black 09/15/2000 The circuit court, which had not entered orders compelling discovery, erred in dismissing plaintiffs' motions for judgment because of their failure to respond to the defendants' discovery requests. Accordingly, the judgments are reversed, and these proceedings are remanded.

992764 Murphy v. Norfolk Community Services Board 09/15/2000 In an employee grievance matter, the trial court hearing a petition for review erred in holding that the employer properly terminated the grievance based on the employee's failure to comply with certain filing deadlines. That decree is reversed and the case is remanded.

992820 Government Employees Insurance Co. v. Hall 09/15/2000 An insured under a motor vehicle liability policy effectively waived the maximum uninsured motorist insurance coverage mandated by Code § 38.2-2206(A) for that policy when she submitted an uninsured motorist waiver form more than 20 days after receiving it from her insurer, and the waiver was effective several years later when an accident occurred. The judgment below is reversed, and final judgment entered for the insurer.

992887 Musselman v. The Glass Works 09/15/2000 The trial court erred in holding that the death of a party to a non- competition agreement, executed as part of the sale of a business, relieved the purchaser of the business of its obligation to make payments under the agreement. That judgment is reversed and the case is remanded to the trial court for entry of judgment, in favor of plaintiff executor of the individual seller's estate, for the full amount due under the non-competition agreement.

992894 Akers v. Commonwealth 09/15/2000 The defendant received a death sentence upon a plea of guilty to capital murder committed during a robbery. Although the defendant waived appeal, Code § 17.1-313 mandates review of the death sentence to determine whether it was imposed under the influence of passion, prejudice or any other arbitrary factor, and whether that sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Upon such review, the sentence is affirmed.

991389 Medici v. Commonwealth 06/09/2000 In a rape and sexual assault prosecution, the trial court did not err in admitting evidence of defendant's prior rape convictions, or in rejecting a proffered stipulation as to those convictions, but did err in refusing to strike a prospective juror for cause.

991417 Reittinger v. Commonwealth 06/09/2000 The trial court erred in refusing to suppress certain evidence found during a search of a defendant who was detained by a deputy sheriff after a routine traffic stop without probable cause and without articulable suspicion for further investigation. The Court of Appeals erred in affirming the conviction, and the case is remanded.

991582 Dobson v. Commonwealth 06/09/2000 The Court of Appeals did not err in concluding that a defendant's due process rights were not violated by a jury instruction concerning exclusive possession of recently stolen property, and the judgment is affirmed.

991615 Fishback v. Commonwealth 06/09/2000 An armed robbery case is remanded for a new sentencing hearing because, upon request of a defendant or inquiry of the jury, a defendant in a non-capital trial for felony offenses committed on or after January 1, 1995 is entitled to have the jury instructed that parole has been abolished in Virginia, a matter materially vital in the penalty-determination phase of the criminal trial. Where applicable and upon request of the Commonwealth, the jury will also be instructed on the possibility of geriatric release.

991696 Paramount Builders Inc. v. Commonwealth 06/09/2000 Since the application for a civil investigative order against a home improvement/construction company and its president complied with the requirements of Code § 59.1-201, the judgment of the trial court refusing to set the order aside is affirmed.

991705 Wolfe v. Board of Zoning Appeals 06/09/2000 In two cases involving parking of commercial vehicles on lots in a residentially zoned neighborhood, the use was not grandfathered or a permitted nonconforming use, nor was the zoning administrator estopped from asserting the violation. However, with respect to the second lot, the zoning administrator was not acting on behalf of the board of supervisors in seeking certiorari and the writ is dismissed.

991786 Commonwealth v. Alexander 06/09/2000 A deadly weapon may not be brandished solely in defense of personal property. Thus the Court of Appeals erred in reversing the defendant's conviction based on jury instructions concerning brandishing a firearm.

991787 Lower Chesapeake Assoc. v. Valley Forge Insurance 06/09/2000 The evidence supports the trial court's finding that collapse of a portion of a dock was caused by windstorm. Since neither party presented evidence concerning the cost of repairing only the collapsed portion of the dock, the trial court's judgment is affirmed in part and reversed in part and remanded for a determination of damages owed to plaintiff.

991876 Partnership Umbrella Inc. v. Federal Insurance 06/09/2000 In a declaratory judgment action involving an insurance policy dealing with executive liability and indemnification, a portion of the judgment prohibiting the insured organization from seeking recovery for payments made on behalf of an insured director for legal expenses incurred during a particular period is reversed. The trial court's judgment is affirmed in all other respects, and the case is remanded for further proceedings.

991880 Rice v. Charles 06/09/2000 In a wrongful death action, the circuit court did not err in striking a contributory negligence defense because defendant's testimony was not corroborated as required by Code § 8.01-397, but did err in denying a motion for new trial on the issue of damages because the jury verdict was only for the exact amount of the decedent's funeral expenses. The judgment is reversed in part and affirmed in part, and the case remanded.

991943 Virginia State Bar v. Goggin 06/09/2000 A trial court order requiring that funds in an attorney's trust account be disbursed among claimants on a pro rata basis is reversed and the case is remanded for entry of a new distribution order because, to the extent possible, funds in an attorney's trust account should be distributed among claimants in accordance with clearly ascertainable ownership interests in the funds.

991945 Lindsay v. McEnearney Associates Inc. 06/09/2000 The trial court properly granted summary judgment in a real estate commission case because a contract that must be in writing pursuant to the statute of frauds, Code § 11-2, may not be modified by a parol agreement. The statute of frauds does not permit a defense of accord and satisfaction by oral modification of the agreement in such cases. The judgment of the trial court is affirmed.

991958 Stanley v. Webber 06/09/2000 In this appeal from a judgment entered in favor of plaintiffs in malicious prosecution proceedings, the evidence was sufficient to support the jury verdict and the trial court judgment is affirmed.

991993 Walsh v. Bennett 06/09/2000 In a medical malpractice action, the trial court abused its discretion when - two days before compliance was due under scheduling directions - it struck plaintiff's designation of his expert witness for failure to comply with an order to provide discovery.

991996 Feddeman & Company v. Langan Associates P.C. 06/09/2000 In a case in which an aborted corporate buy-out or merger was followed by mass resignation of plaintiff's employees, the evidence was sufficient to support a jury determination that defendants knew and intended that their resignation plan would injure plaintiff. The trial court erred in setting the verdict aside, and that judgment is reversed. Because the trial court did not consider an award in accordance with § 18.2-500, the case is remanded for entry of a judgment consistent with this opinion.

991997 Commonwealth v. Wilks 06/09/2000 The trial court erred in concluding that failure of the Commonwealth to file a notice of seizure for forfeiture within 21 days as to certain property seized pursuant to a search warrant, as required in the Code, was a jurisdictional defect. Since the filing requirement is directory and procedural rather than mandatory and jurisdictional, the trial court erred in dismissing several related forfeiture proceedings. That ruling is reversed and the proceedings are remanded.

992028 McDermott v. Reynolds 06/09/2000 The trial court properly held that Code § 8.01-220 bars a plaintiff's action against his former wife's paramour for intentional infliction of emotional distress, when the conduct alleged would support an action for alienation of affection, a cause of action specifically prohibited by statute. The judgment is affirmed.

992091 Nationwide Mutual Insurance Co. v. Hylton 06/09/2000 In a tort action for injuries arising from a vehicular accident, the trial court erred in entering judgment against a plaintiff's own insurer, which had been served with a copy of the process pursuant to underinsured/uninsured motorist statute, but was not a party in the circuit court proceedings. The court correctly held that a state trooper sued in the tort action was entitled to assert the defense of sovereign immunity as a bar to the plaintiff's tort claims.

992098 Decker v. Harlan 06/09/2000 The circuit court did not err in holding that Code § 15.2-809 shields a municipality from civil liability for negligence arising out of an accident caused by an employee while driving a truck loaded with trash on its way from a recreational facility to a steam plant, miles from the facility, for incineration.

992228 Acuar v. Letourneau 06/09/2000 In an appeal arising out of a motor vehicle accident, the trial court erred in permitting repeated references to an accident report, but correctly ruled that a plaintiff may offer evidence of the full amount of reasonable medical expenses without any reduction for amounts "written off" by health care providers. The judgment is reversed and the case remanded.

992258 Leeman v. Troutman Builds Inc. 06/09/2000 The trial court erred in granting summary judgment in a dispute over a restrictive covenant, and the judgment is reversed.

992259 Fredericksburg Constr. Co. v. J.W. Wyne Excavating 06/09/2000 In a breach of contract case, the trial court properly denied a motion to vacate a judgment, rejecting arguments that it was void because it had been entered without proper notice.

992269 Longshore v. Commonwealth 06/09/2000 There is no error in the judgment of the Court of Appeals affirming defendant's felony conviction. The circuit court properly permitted the Commonwealth to introduce the preliminary hearing testimony of a witness who was unavailable at trial, and the use of this transcript did not violate Virginia hearsay rules or the Sixth Amendment right of a defendant to confront the witnesses against him.

992352 Allstate Insurance Co. v. Atlanta Casualty Co. 06/09/2000 Since an insured signed and dated a certificate of title to the subject vehicle, and delivered the certificate in blank along with the car into the possession and control of her former boyfriend, she satisfied statutory requirements for an owner's endorsement to transfer ownership. The trial court erred in finding that she remained the owner of the vehicle, and in concluding that her insurer has a duty to defend and provide coverage on the facts of this case.

992489 Oulds v. Commonwealth 06/09/2000 In a prosecution for assault and battery on a law-enforcement officer engaged in public duties, a felony defined in a Virginia statute, the Commonwealth proved the elements of the crime charged, including the adoption of a city ordinance authorizing police officers to utilize their police powers while engaged in off-duty employment. The judgment of the Court of Appeals upholding the conviction is affirmed.

992934 HCA Health Services of Virginia v. Levin 06/09/2000 In appeals of a contempt order entered in a defamation action, the statutory privilege from disclosure accorded to medical peer review records applies outside the medical malpractice realm, does not belong to the physician subject to peer review and hence cannot be waived by that physician, and is only overcome by a showing of good cause arising from extraordinary circumstances. The contempt order and attendant fines are set aside.

992366 Pauley v. State Farm Mutual Auto. Insurance 05/12/2000 An automobile liability insurance policy exclusion, providing that medical expense coverage will not apply for bodily injuries sustained while occupying a vehicle available for regular use by the named insured or covered relatives which is not an insured vehicle, does not violate requirements of Code § 38.2-2201, and applies even where the occupied vehicle is covered under another policy issued by the same insurer, because it is still not "an insured vehicle" under the subject policy.

981302 Hoffman Family L.L.C. v. Mill Two Associates 04/21/2000 On the specific facts of a suit for declaratory judgment to construe a restrictive covenant burdening one parcel of land in a proposed combined development, a justiciable controversy existed at the time plaintiff sued, and the chancellor properly exercised jurisdiction in rendering judgment to resolve that controversy. The chancellor correctly determined that the proposed development did not violate the covenant, and that decree is affirmed.

990891 Caudill v. County of Dinwiddie 04/21/2000 In a case arising from efforts to provide a new system of solid waste disposal for a locality, the parties to one of the contracts involved had an absolute right to change a provision relating to release of funds, to the alleged prejudice of bondholders, and plaintiffs had no right as third-party beneficiaries to object. The motion for judgment was insufficient to state a claim for breach of contract and the trial court correctly sustained demurrers. That judgment is affirmed.

991079 Commonwealth v. Brown 04/21/2000 General district courts do not have statutory authority to issue transportation orders for prisoners confined in state correctional facilities in order that they may appear in civil proceedings. The judgment of the circuit court is reversed and the case is remanded with instructions that it be further remanded to the general district court for further proceedings.

991092 Kim v. Douval Corporation 04/21/2000 In litigation in which the motion for judgment sought ejectment and a counterclaim alleged adverse possession, the trial court erred in setting aside a jury verdict for the plaintiff and awarding the defendant judgment for adverse possession. Conflicting inferences can be drawn from the evidence with regard to whether possession of the disputed property was under a claim of right, and the judgment of the circuit court is reversed.

991117 Berczek v. Erie Insurance Group 04/21/2000 The trial court erred in concluding on summary judgment that an insured's release of a tort claim against the tortfeasor also operated to bar the insured's contract claim against his insurer for medical expenses arising from the accident in question. The judgment is reversed and the case remanded.

991124 Newton v. Fairfax County Police Dept. 04/21/2000 The Court of Appeals correctly held that statutory beneficiaries of a deceased claimant are not entitled to an award of indemnity benefits under the Workers' Compensation Act, and the judgment is affirmed.

991168 Network Solutions v. Umbro International 04/21/2000 Applying traditional legal principles, a contractual right to use an Internet domain name is the product of a contract for services and hence is not subject to garnishment. Accordingly, the judgment of the circuit court holding such items subject to garnishment is reversed.

991244 Commonwealth v. Smith 04/21/2000 Since the evidence at the trial of a malicious wounding case raised no more than a suspicion of the defendant's guilt, the Court of Appeals correctly held that the proof was insufficient to sustain a criminal conviction. The Court of Appeals' judgment reversing the conviction and dismissing the indictment is affirmed.

991245 Economopoulos v. Kolaitis 04/21/2000 In litigation by three sisters against their brother, a confidential relationship did not exist as a matter of law between their deceased father and the defendant brother, and hence there was no presumption of fraud. The trial court did not err in striking a constructive fraud cause of action for lack of prima facie proof, or in striking claims of conversion, unjust enrichment, and tortious interference with inheritance. The judgment is affirmed.

991282 Hertz v. Times-World Corporation 04/21/2000 In these consolidated appeals, a writ of mandamus was not an appropriate remedy to challenge juvenile and domestic relations district court rulings that closed preliminary hearings to the public and the news media and was not an appropriate alternative to an appeal. Accordingly, the judgments of the circuit courts are reversed, the writs are vacated, and the petitions are dismissed.

991306 Snyder Plaza Properties v. Adams Outdoor Advertisi 04/21/2000 The chancellor properly approved the report of a commissioner in chancery fixing the value of a leasehold interest in a portion of a parcel of condemned property. Since the record supports the valuation method used by the commissioner, there was no error in approving the commissioner's report and entering judgment in accordance with its recommendation.

991374 Arlington County v. White 04/21/2000 A local governing body acted ultra vires in extending coverage under its self-funded health insurance benefits plan to unmarried "domestic partners" of its employees. The expanded definition is an unreasonable method of implementing the power granted under the Code because it is contrary to legislative intent and inappropriate to the ends sought to be accomplished. Summary judgment holding the provision invalid is affirmed.

991477 Jackson v. Commonwealth 04/21/2000 Since the circuit court never acquired jurisdiction to try the petitioner for capital murder and five felonies, a writ of habeas corpus is awarded and the conviction for capital murder ad the accompanying felonies are vacated.

991567 Larimore v. Blaylock 04/21/2000 The plaintiff's tenure review at a university was a privileged occasion and any defamatory statements communicated by defendants to the governing board and members of the university administration were entitled to a qualified privilege which shields defendants from liability unless a showing of malice is made by clear and convincing evidence. Because the communications at issue are matters of qualified privilege, the judgment of the trial court is reversed and the matter is remanded.

991589 Jett v. DeGaetani 04/21/2000 A judgment which ordered specific performance of an oral agreement is unenforceable because a person to whom the chancellor ordered the defendants to convey an interest in real property is not a party to this litigation. It was not practically impossible to join the former wife as a party, and her interests were not separable from the plaintiff's interests to the extent that the chancellor could enter an order without prejudice to her rights. The chancellor's order is reversed.

991591 Dail v. York County 04/21/2000 The trial court erred in holding that a declaratory judgment action by certain landowners challenging provisions of zoning ordinances addressing silvicultural activity was premature because of failure to exhaust administrative remedies and that judgment is reversed. The portion of the judgment concluding that the challenged provisions of the county zoning ordinance are valid is affirmed.

991630 Mark Turner v. Commonwealth 04/21/2000 In an appeal of two related criminal convictions, the trial court's rulings on the defendant's motion for a new trial were not erroneous (1) in failing to find that there was a conflict of interest in defense counsel's representation of the defendant and (2) in excluding the defendant's evidence of allegedly inadequate representation. The judgment is affirmed.

991641 The Berean Law Group v. Cox 04/21/2000 The circuit court no longer had control over a final order sustaining demurrers in a legal malpractice action when it entered a later order permitting a plaintiff to take a voluntary nonsuit. The order of nonsuit is reversed, and final judgment is entered for the defendants.

991770 May v. Grandy 04/21/2000 Code § 8.01-217 requires a parent who seeks to change a child's surname over objection of the other parent to demonstrate that the change is in the child's best interest. The mother here demonstrated with satisfactory evidence that the name change was in the best interest of the child and the circuit court did not abuse its discretion in granting the name change. Accordingly, the order granting the name change is affirmed.

991810 Sweeney v. West Group Inc. 04/21/2000 The trial court erred in giving effect to a lease provision requiring a lessee to give written notice of intent to vacate leased premises at the end of a fixed-term residential real estate lease. Because that provision is in effect a statutorily proscribed waiver of the lessee's rights under Code § 55-222, the judgment in favor of the lessor is reversed.

991870 Carter v. Chesterfield County Health Commission 04/21/2000 The trial court properly concluded that a county health commission was immune from tort liability because it was entitled to the status of a municipal corporation and was performing a governmental function in the operation of a nursing home. The judgment is affirmed.

991920 Paden v. Commonwealth 04/21/2000 Because the maker of an out-of-court statement was not shown to be "unavailable" by being called to the stand to claim his right against self-incrimination, his statement was erroneously received as a declaration against penal interest. The defendant's conviction is vacated, reversed and remanded.

992005 Ronney Turner v. Commonwealth 04/21/2000 The trial court did not err in permitting the Commonwealth to present evidence of other crimes committed by a defendant more than 13 years before the offenses charged in this prosecution. The Court of Appeals did not err in refusing the defendant's petition for an appeal.

992525 Johnson v. Commonwealth 04/21/2000 In these appeals, the capital murder conviction and death sentence imposed on defendant, along with his conviction for rape are reviewed. There is no reversible error in the judgments of the trial court. Upon review pursuant to Code § 17.1-313, the sentence of death is not commuted and the trial court's judgments are affirmed. (Revised 11/20/02)

992840 Bailey v. Commonwealth 04/21/2000 After review mandated by Code § 17.1-313, the convictions of the defendant for capital murder of his two-year-old son and first- degree murder of his wife, the death sentences imposed thereon, and related convictions and sentences, there is no reversible error in the record, and no reason to commute the death sentences. The judgment of the trial court is affirmed.

990376 Jan Paul Fruiterman M.D. and Assoc. v. Waziri 03/03/2000 In a medical malpractice, wrongful death action, the trial court correctly applied the Virginia Birth-Related Neurological Injury Compensation Act, which expressly limits those entitled to its rights and benefits to selected health-care providers. The jury's award in the wrongful death claim was fully supported by the record, and the judgment is affirmed.

990405 Zion Baptist Church v. Estate of Willie Peay 03/03/2000 The trial court did not err in refusing to set aside a judicial sale when the building on the subject property was destroyed by fire shortly after the entry of the decree confirming the sale, and that judgment is affirmed.

990409 Coca-Cola Bottling Co. v. County of Botetourt 03/03/2000 In a case involving taxation of personal property of a soft drink bottling company, the trial court correctly held that the property was to be considered equipment used in a sales business and subject to local taxation, rather than property used in a manufacturing business and part of the Commonwealth's tax base. The judgment is affirmed.

990428 National Fruit Product Co. v. Staton 03/03/2000 For the reasons expressed by the Court of Appeals in National Fruit Product Co. v. Staton, 28 Va. App. 650, 507 S.E.2d 667 (1998), there was no error in determining that uncontradicted opinion testimony expressed as a "high probability" of causation is sufficient to support a finding by "clear and convincing evidence (not a mere probability)" within the context of Code § 65.2-401.

990489 Virginia Power v. Westmoreland-LG&E Partners 03/03/2000 Because the decision in an earlier appeal did not limit consideration of the parties' intent regarding disputed sections of a contract to the intent existing in 1989, the trial court erred in limiting parol evidence to that period. The judgment of the trial court will be reversed and the case remanded for further proceedings. The trial court did not err in holding that a letter was entitled to the protection of the attorney-client privilege.

990528 Norfolk Beverage Company v. Cho 03/03/2000 In this appeal of judgments entered in consolidated tort actions, the jury's verdicts were not excessive and the circuit court did not err by permitting an expert witness to render an opinion that certain medical expenses that the plaintiffs incurred were related to their injuries. The judgments of the circuit court are affirmed.

990531 Pardoe & Graham Real Estate v. Schulz Homes 03/03/2000 The trial court erred in concluding that the statute of frauds barred a real estate brokerage firm from recovering damages for breach of an oral contract for a commission on the sale of a custom home to be constructed on a lot already owned by the home buyer. The judgment is reversed and final judgment entered.

990534 Combs v. Virginia Power 03/03/2000 The circuit court correctly ruled that an employee's exclusive remedy against an employer is under the Virginia Workers' Compensation Act. Because the employee who was stricken during an exercise class suffered an injury by accident arising out of and in the course of employment, the circuit court's judgment sustaining the employer's special plea in bar is affirmed.

990611 Shirley v. Shirley 03/03/2000 The circuit court correctly relied on the common law rule that a reservation in a deed in favor of a stranger to the instrument does not create in the stranger any right or interest in the property to sustain demurrers to a complaint seeking a declaratory judgment that a deed created a life estate for the benefit of the stranger. The rule is applicable pursuant to Code § 1-10, and any change thereof falls within the province of the General Assembly.

990665 David Moore v. Commonwealth 03/03/2000 The circuit court lacked jurisdiction to try a juvenile as an adult on two counts of murder because the failure of the juvenile court to give the notice then required to his biological father rendered transfer to the circuit court ineffectual. The convictions are void because this was a jurisdictional defect not subject to waiver by the juvenile either in the juvenile court or the circuit court. The case is reversed and remanded.

990710 O'Brien v. O'Brien 03/03/2000 In a will case, it is found that the testator, by her will, converted a loan to her son into an advancement and, if his legacy exceeds that amount, he is entitled to the excess; if, however, the advancement exceeds the legacy, he is not required to pay the excess. Complainants are entitled to have attorneys' fees paid by the estate, but their brother is not. The judgment will be affirmed in part, reversed in part, and remanded.

990746 Lilly v. Caroline County 03/03/2000 In a land use controversy, the trial court correctly ruled that landowners aggrieved by a zoning administrator's oral decision failed to exhaust administrative remedies by not filing a timely appeal to the board of zoning appeals as required by statute, and thus that a later declaratory judgment proceeding is time-barred. The judgment is affirmed.

990766 Smyth County Comm. Hospital v. Town of Marion 03/03/2000 The trial court erred in determining that a county community hospital was not entitled to a tax exemption pursuant to Code § 58.1-3606(A)(5) for property it owned and operated as a nursing home. That judgment is reversed and the case is remanded for determination of the amount to be refunded to the taxpayer.

990769 Reid v. Boyle 03/03/2000 The trial court correctly determined that a plaintiff in the entertainment industry established with clear and convincing evidence that his written employment contract with defendants was modified by their course of dealing. He also established that he owned an interest in a leasehold, and proved with reasonable certainty damages he incurred as a result of the defendants' breach of contract. He did not prove a cause of action under the Virginia Antitrust Act. The chancellor's judgments are affirmed.

990774 Williams v. Commonwealth 03/03/2000 The trial court and the Court of Appeals correctly held that when a person has been lawfully arrested and his property lawfully seized pursuant to that arrest, the arrestee has no reasonable expectation of privacy in that property, and later examination of it by other law enforcement agents does not violate the Fourth Amendment. The evidence was sufficient to support defendant's convictions for murder, robbery, and statutory burglary, and the judgment of the Court of Appeals upholding the defendant's convictions is affirmed.

990776 Dennis Moore v. Commonwealth 03/03/2000 The provisions of Code § 16.1-269.1(E) cure a defect in felony proceedings in a juvenile and domestic relations district court caused by the Commonwealth's failure to notify the defendant's biological father of the proceedings pursuant to the requirements of former Code §§ 16.1-263 and -264. Defendant's convictions are affirmed.

990778 Robinson v. Matt Mary Moran Inc. 03/03/2000 The trial court did not err in sustaining a demurrer to a wrongful death action, which asserted theories of common law negligence and negligence per se against a restaurant and its bartender who allegedly served alcoholic beverages to two intoxicated persons under the age of 21. The judgment is affirmed.

990779 Gilmore v. Finn 03/03/2000 Since, under the circumstances of this case, the trial court erred in awarding sanctions pursuant to Code § 8.01-271.1 against the Governor and the Commonwealth for filing a lawsuit that allegedly was neither "well grounded in fact [nor] warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law," the judgment of the trial court is reversed and final judgment is entered in favor of the Governor and the Commonwealth.

990787 Pizzarelle v. Dempsey 03/03/2000 Because an easement has not been partially abandoned, and an encroachment on the easement is not too insubstantial to warrant injunctive relief, the judgment of the circuit court denying injunctive relief to the dominant owners is reversed.

990818 Bolling v. D'Amato 03/03/2000 Because appointment of a so-called "co-administrator" for purpose of bringing a medical malpractice action on behalf of a decedent's estate was void, plaintiff lacked standing to bring the action because he was not the personal representative of the decedent's estate. The trial court properly granted a motion to abate the action, and the order dismissing the action is affirmed.

990830 Revocor Corp. v. Commonwealth Transp. Comm'n 03/03/2000 In this condemnation proceeding, the circuit court improperly excluded evidence of adjustment costs as a factor to be considered by the commissioners when determining damage to the residue of the property. The judgment of the trial court is reversed and the case is remanded for a new trial.

990853 Riverview Farm Assoc. v. Bd. of Supervisors 03/03/2000 The dismissal of certain claims in a rezoning dispute is affirmed, but the trial court erred in sustaining a demurrer to another portion of the pleading challenging a local governing body's decision approving a conditional rezoning application. That portion of the judgment is reversed, and the cause is remanded.

990894 Bass v. Commonwealth 03/03/2000 A police officer's perception that a driver performed a legal driving maneuver with the intent to evade a temporary traffic checkpoint was not sufficient to justify an investigative stop. Since defendant was seized in violation of the Fourth Amendment, the trial court erred in failing to suppress the evidence obtained, and the Court of Appeals erred in affirming the judgment. The conviction is vacated and the warrant dismissed.

990912 Moore v. Hinkle 03/03/2000 In this appeal from denial of a writ of habeas corpus, the petitioner has failed to establish that his attorney's deficient representation prejudiced his case such that there was a "reasonable probability" that the outcome of the trial would have been different but for that inadequate representation. The trial court did not err in dismissing the petition for writ of habeas corpus and that judgment will be affirmed.

990919 City of Virginia Beach v. Carmichael Dev. Co. 03/03/2000 The trial court erred in entering judgment against a locality for alleged tortious interference with a land sales contract. While there was a proprietary aspect to the city's property acquisition, the overriding nature of the step was a governmental function to benefit the welfare and safety of the public, and hence the city's actions were shielded by sovereign immunity. The trial court ruling is reversed and final judgment is entered for the city.

990923 Rowland v. Shurbutt 03/03/2000 In petitions by a father to change the surname of his minor child, the applicant failed to carry the burden of showing that the change was in the best interest of the child, and hence the trial court abused its discretion in granting the name change. The order below is reversed and the father's several petitions are dismissed.

990969 Blue Stone v. Neff 03/03/2000 In a breach of contract case between two land developers, the trial court erred in sustaining the plaintiff's motion in limine on the ground that the expenses of construction of an alternative access road were consequential damages not specially pled. The judgment is reversed and the case remanded for a new trial on plaintiff's claim and defendant's counterclaim.

991042 Glumina Bank v. D.C. Diamond Corporation 03/03/2000 In this appeal of a default judgment in a contract action against a nonresident bank for failure to transfer funds to a Virginia bank account, long-arm jurisdiction was satisfied because the cause of action arose from defendant's contracting to supply services or things in the Commonwealth. There was full compliance by plaintiffs with each procedural requirement leading to judgment by default. Accordingly, the trial court properly entered the default judgment, and it will be affirmed.

991043 Craig v. Dye 03/03/2000 Construing a personal liability umbrella insurance policy which allowed an insurer to deny coverage if an insured "refuses" to perform certain duties, the trial court erred because the insureds in this case merely failed to perform those duties, but did not refuse to do so. The judgment in favor of the insurance company is reversed.

991078 Sully Station v. Dye 03/03/2000 In a dispute between a community association and eight of its members concerning a policy adopted with respect to parking in a common area of a residential community, the trial court did not err in declaring the policy void and unenforceable. The judgment is affirmed.

991964 GTE South Inc. v. AT&T 03/03/2000 In an appeal from a decision of the Virginia State Corporation Commission reducing the applicant telephone company's gross operating income by approximately $27,000,000, the Commission's order was not an abuse of discretion. The applicant's attempt to have the Commission incorporate new depreciation rates in the proceeding was untimely. The judgment of the Commission is affirmed.

982401 Dearing v. Commonwealth 01/14/2000 While the trial court violated a criminal defendant's federal constitutional right to confrontation by admitting in evidence a co- defendant's confession, that error was harmless error beyond a reasonable doubt. The facts are more than sufficient to support the convictions, and the judgment is affirmed.

982635 Commonwealth v. Luzik 01/14/2000 The Commonwealth did not waive its right to assert the bar of sovereign immunity to a suit by state employees in state court for back overtime wages and, thus, has not consented to be sued in its own courts for alleged violation of the Fair Labor Standards Act. Accordingly, applying Alden v. Maine, ___ U.S. ___, 119 S.Ct. 2240 (1999), the chancellor's denial of the Commonwealth's plea of sovereign immunity is reversed and final judgment is entered for the Commonwealth.

990161 Nationwide Mutual Insurance Co. v. St. John 01/14/2000 There is support in the record for the trial court's determination that an insurer acted in bad faith in refusing to pay a patient's claim for medical expenses incurred after a particular date, and the trial court's judgment was not clearly erroneous. The judgment is affirmed.

990164 Smith v. Chesterfield Meadows Shopping Ctr. 01/14/2000 The trial court erred in sustaining a demurrer to a bill of complaint that sought to have a restrictive covenant declared null and void. The pleadings were sufficient to state a cause of action, and therefore the judgment is reversed and the case is remanded for further proceedings.

990175 Delk v. Columbia/HCA HealthCare Corp. 01/14/2000 The circuit court correctly sustained defendants' demurrers to a cause of action for negligent infliction of emotional distress. The remaining portions of the judgment are reversed. Plaintiff may proceed on her claims that defendants breached the duty of care owed to her in that they failed to protect her from a reasonably foreseeable harm, and failed to control the assailant, and her claim for intentional infliction of emotional distress.

990181 Keesee v. Donigan 01/14/2000 The trial court abused its discretion in an automobile crash negligence case in allowing an accident reconstruction expert to testify concerning "average" driver perception and reaction times absent evidence that a party fell within the average range. This error was not harmless. The trial court's judgment is reversed, and the case remanded for a new trial.

990224 Cantrell v. Crews 01/14/2000 The trial court erred in refusing to strike a prospective juror in a motor vehicle accident litigation where the juror was a client of the plaintiff's attorney. The case is remanded for a new trial limited to the issue of damages only.

990225 River Road Shopping Center v. Scott 01/14/2000 Because lease terms bound a shopping center's sureties and the damages sought were consistent with those allowed under the terms of the lease, the trial court erred in striking the landlord's evidence because of failure to mitigate damages. The judgment of the trial court is reversed and the case remanded.

990247 Virginia Farm Bureau Mutual Ins. Co. v. Gile 01/14/2000 The trial court erred in concluding that a teenager who lives with her mother and her mother's male companion is the "foster child" of that companion and, thus, an "insured" person as those terms are defined in his motor vehicle liability insurance policy. The trial court's judgment is reversed and final judgment is entered in favor of the insurer, declaring that the teenager is not the insured's "foster child" under the policy.

990309 Russell Co. Dept. of Social Services v. O'Quinn 01/14/2000 Code §§ 8.01-186 and -191, which are contained in the Virginia Declaratory Judgment Act, do not authorize a circuit court to award attorney's fees to a prevailing litigant. Accordingly, the portion of the circuit court's judgment which awards costs to the employee in this action is affirmed, and that portion of the judgment which awards attorney's fees is reversed, and final judgment is entered.

990311 Halterman v. Radisson Hotel Corp. 01/14/2000 The trial court did not err in striking the plaintiff's evidence on a claim of negligence per se because the record contains no evidence that defendant failed to provide information required under a certain hazardous materials regulation, and thus plaintiff failed to prove violation of that regulation. Since the trial court reached the correct result for reasons not stated in its ruling, that result is upheld.

990319 Powell v. Margileth 01/14/2000 In a medical malpractice case involving a cancer diagnosis, the trial court erred in concluding that the evidence would not permit a jury to find that the defendant's breaches of the standards of care proximately caused the decedent's injuries or adversely affected his rate of survival. Qualified experts in the field testified otherwise. Therefore, it was error to grant a motion to strike the plaintiff's evidence. The judgment entered below is reversed and the case is remanded.

990320 Wohlford v. Quesenberry 01/14/2000 The Uniform Statewide Building Code (the BOCA Code) has not modified the common law rule that a tenant who has exclusive possession and control of a premises, absent an agreement to the contrary, is responsible for its maintenance and repair. The trial court judgment sustaining a demurrer to a tenant's counterclaim is affirmed.

990333 Knewstep v. Jackson 01/14/2000 Since there was sufficient clear and convincing evidence to support a finding of mutual mistake in locating an easement, and that a neighbor had a right to subject a portion of the property to a right of way to reach a public road, the court correctly decreed that an amended plat be recorded to show the correct location of the easement. However, since the amended plat incorrectly shows a part of the easement crossing a corral, the decree is reversed in that respect and the case is remanded to have the amended plat modified.

990334 Jampol v. Farmer 01/14/2000 Following a depositor's death, controversy arose over ownership of several certificates of deposit. There is no evidence that in replacing prior CD's the decedent intended to leave the accounts unchanged, and the burden to prove that fact was upon those who challenged the form of the accounts at the time of her death. The trial court's judgment disapproving the commissioner's report is reversed, and final judgment entered decreeing the estate's ownership of the instruments.

990336 Jones v. Town of Marion 01/14/2000 Failure to offer an accused a preliminary breath analysis, as provided by Code § 18.2-267, did not invalidate the accused's arrest, and failure to bring the accused before a magistrate to determine probable cause, as required by Code § 19.2-82, did not deny the accused due process of law. Therefore, the judgment of the Court of Appeals is affirmed.

990366 First American Bank v. J.S.C. Concrete Constr. 01/14/2000 In a suit to enforce mechanics' liens, the trial court erred in refusing to rule that a contractor waived its rights to file mechanics' liens. The judgment of the court below is reversed and final judgment is entered in favor of the bank, dismissing the contractor's bill of complaint.

990377 Finn v. Virginia Retirement System 01/14/2000 Code § 2.1-526.8 does not confer upon a former trustee of the Virginia Retirement System (VRS) a right of indemnification against the Commonwealth for legal fees incurred defending criminal investigations that allegedly arose out of the performance of his official duties.

990399 Mitchem v. Counts 01/14/2000 Code § 2.1-725(D) of the Virginia Human Rights Act does not bar a common law action for wrongful termination of employment based on violation of public policies not reflected in the VHRA, when the conduct alleged also violates a public policy reflected in the VHRA. That portion of the trial court's judgment dismissing plaintiff's claims based on the public policy embodied in Code §§ 18.2-344 and - 345 is reversed, and this remaining part of her action is remanded for trial.

990404 Stepp v. Foster 01/14/2000 Trustees who successfully defended an action by beneficiaries of a trust holding title to common area property in a subdivision are entitled to receive an award of attorney's fees and litigation costs from the trust corpus rather than from the beneficiaries individually. The trial court's judgment is modified to place liability for the award on the trust, and final judgment is entered for the trustees.

990500 Lockheed Information Mgmt. Syst. v. Maximus Inc. 01/14/2000 In a case involving a disputed government contract, the trial court did not err in holding that plaintiff was not entitled to recover its overhead. The part of the trial court's judgment imposing liability for intentional interference with a business expectancy and setting damages of $741,124 is affirmed and that part of the judgment imposing liability for conspiracy in violation of § 18.2- 499, and imposing treble damages, attorneys' fees and costs pursuant to § 18.2-500, is reversed, and final judgment is entered.

990535 City of Virginia Beach v. Harris 01/14/2000 In a case involving discharge of a police officer by a city police department, the principle of res judicata bars plaintiff's claim against the individual defendants and no public policies in Code § 18.2-460 and former § 15.1-138 support the wrongful discharge cause of action. The circuit court's judgment in favor of plaintiff is reversed and final judgment is entered in favor of the city and the individual defendants.

990733 Nationwide Mutual Insurance Co. v. Home 01/14/2000 Rehearing Granted and Opinion Withdrawn on March 3, 2000

990764 Commonwealth v. Dalton 01/14/2000 Since the defendant in a murder prosecution was not specifically charged with being an accessory after the fact, the trial court correctly refused to grant an accessory-after-the-fact instruction. The Court of Appeals judgment reversing the trial court is reversed, and the case remanded for reinstatement of the trial court's judgment.

990821 Mercer v. Commonwealth 01/14/2000 The term "mentally ill" in Code § 37.1-1 is considered in relation to the criteria set forth in Code §§ 19.2-182.3 and -182.5 for the continued commitment of an individual found not guilty of criminal charges by reason of insanity. Because there is sufficient evidence in the record to support the circuit court's judgment that the present acquittee does not satisfy the requirements for conditional release, the judgment is affirmed.

990081 Rivera v. Nedrich 12/22/1999 A person under a legal disability, such as the children here, may bring an action by a "next friend" at any time during the continuance of the legal disability or, after the disability is removed in their own name, within such time as allowed under Code § 8.01-229 and the prescribed limitation period. The trial court erred in sustaining the defendant's plea in bar asserting the statute of limitations. The judgment is reversed and the case remanded.$ib

972385 Lilly v. Commonwealth 11/05/1999 Statements from the defendant's brother undoubtedly carried weight with the jury and there is a reasonable possibility that those statements contributed to defendant's conviction for capital murder. It cannot be said that error in admitting the statements was harmless beyond a reasonable doubt. The defendant's other convictions are affirmed, but the defendant's conviction for capital murder and the related firearm charge is reversed and the case is remanded for a new trial. See Record No. 972385, Lily v. Commonwealth, dated April 17, 1998

981447 Lovelace v. Commonwealth 11/05/1999 Based on a recent U.S. Supreme Court decision, the search of the defendant was not consistent with the Fourth Amendment. Accordingly, the Court of Appeals erred in upholding the circuit court's denial of defendant's motion to suppress evidence obtained during the search. That judgment is reversed, the indictment charging possession with intent to distribute cocaine, and the warrant for possession of marijuana, are dismissed.

982376 Moore v. Millers Cove Energy Co. 11/05/1999 At the time a garnishment summons was returnable, the court had not entered an order directing the clerk of court to pay money to the judgment debtor. Therefore, at that time, the clerk owed no debt subject to garnishment. Consequently, the trial court erred in awarding garnishment against the clerk. Judgment is reversed and the garnishment is dismissed.

982476 Cochran v. Commonwealth 11/05/1999 By an order entered in response to a habeas corpus petition, defendant was awarded leave to petition for appeal. Conducting review de novo, and finding no error in the decision of the Court of Appeals sitting en banc, the judgment is affirmed because the trial court did not err in overruling defendant's motion to suppress the evidence as obtained by an unreasonable seizure of the defendant in violation of his Fourth Amendment rights.

982520 Dinwiddie County School Board v. Cole 11/05/1999 Under the Virginia Workers' Compensation Act, awards of compensation benefits are based upon the average weekly wage. Here an employee who performs two separate jobs for her employer and was injured in one sought to combine wages received from both in calculating the average weekly wage for compensation purposes. The Workers' Compensation Commission did not err in combining the employee's wages and awarding compensation accordingly, and its judgment is affirmed.

982534 Welch v. Miller and Long Co. of Maryland 11/05/1999 Under the exclusive remedy provision of the Workers' Compensation Act, the uninsured motorists statute does not permit the personal representative of a deceased employee to prosecute a wrongful death action against the statutory employer and a fellow servant, as well as two uninsured motorist carriers, and collect a judgment from the insurers. The trial court judgment is affirmed.

982606 Johnson v. Campbell 11/05/1999 The trial court erred in ruling as a matter of law that any illegal conduct in which two plaintiffs may have participated was a proximate cause of the alleged injuries, and in dismissing counterclaims for lack of proximate causation as a matter of law. The judgments of the trial court in the two cases are reversed and the cases remanded for further proceedings on the motions for judgment and the counterclaims.

982627 Board of Supervisors v. Washington D.C. 11/05/1999 Telecommunications facilities constructed by a private commercial owner on its leasehold on land within the rights-of-way of the Virginia Department of Transportation are not exempt from the zoning authority of the locality in which that land is located. The trial court ruling to the contrary is reversed and the case remanded.

982638 Holmes v. LG Marion Corporation 11/05/1999 Plaintiff recovered damages plus attorneys' fees and costs from a used car dealership for violation of the Virginia Consumer Protection Act (VCPA). The judgment of the trial court is affirmed because there was no abuse of discretion in determining the award of reasonable attorneys' fees and in refusing to enhance the amount of actual damages under Code § 59.1-204. Although the trial court erred in striking plaintiff's claim for a violation of the Magnuson-Moss Warranty Act, such error was harmless.

982682 Norfolk Southern Railway Company v. Thomas 11/05/1999 In an action brought under the Federal Employers' Liability Act (FELA), the trial court erred in refusing to instruct the jury on contributory negligence. The worker's acts or omissions were evidence of contributory negligence, and not solely evidence of assumption of the risk, because they would support a conclusion that he caused dangers that were additional to any hazardous conditions that the railway negligently permitted to exist. The judgment is reversed and the case is remanded.

982684 Bray v. Brown 11/05/1999 A deputy sheriff is not barred by the Virginia constitutional prohibition against holding multiple offices, or the implementing statute, from also serving as a member of a town council. The judgment of the trial court to the contrary is reversed, and final declaratory judgment is entered here.

990006 Higgs v. Kirkbride 11/05/1999 In these appeals consolidated for argument, the trial court erred in reversing a decision of a board of zoning appeals that a lot created by subdivision of an existing residential lot is irregular in shape and does not have a sufficient average width for the zone in which it is located, and that decision is reversed.

990014 Cardinal Holding Company v. Deal 11/05/1999 The trial court did not err in basing a sanction award on the proposition that counsel should have known that legal malpractice claims are not assignable in Virginia, or in awarding sanctions against the firm which employed the attorney. There being no error in the amount of sanctions awarded, the judgment of the trial court on this issue is affirmed.

990030 Lawrence v. Jenkins 11/05/1999 An individual requesting documents pursuant to the Virginia Freedom of Information Act was not denied rights and privileges conferred by that Act when a responding public official chose to exercise an exemption, redacted exempt information from documents produced, but failed to timely cite the applicable Code section for the exemption. The circuit court erred in issuing a writ of mandamus and ordering release of the exempt information. The judgment is reversed.

990031 Board of Supervisors v. Countryside Investment Co. 11/05/1999 Pursuant to strict construction required by the Dillon Rule, a county board of supervisors does not have unfettered discretion when deciding what to include in its subdivision ordinance and is entitled to exercise discretion only to the extent permitted by Code §§ 15.2-2241 and -2242. A board is not permitted to enact standards which would permit it to rezone property inconsistent with the uses permitted by the property's zoning classification. The trial court decision is affirmed.

990032 Stevenson v. Commonwealth 11/05/1999 When a doctor's altered report was made, no prejudice befell a medical insurance carrier, because at that time the subject surgery had been successfully completed and insurer's liability already existed. Because the insurer's liability could not have been affected, no real or potential prejudice to the insurer could result from the forged writing. Therefore, the crime of forgery was not established. The doctor's conviction is reversed and the indictment dismissed.

990052 Nationwide Mutual Fire Ins. Co. v. Rezainik 11/05/1999 The record in this case supports the conclusion that the Iranian- origin goods plaintiff brought to the United States as baggage were for personal use, and the trial court did not err in holding that they were exempt from the prohibition of importation of Iranian- origin goods into the United States under 31 C.F.R. § 560.210. Accordingly, the judgment of the trial court in favor of plaintiff's claim on her homeowner's insurance policy is affirmed.

990065 Black v. Bladergroen 11/05/1999 In a medical malpractice case, the trial court erred in excluding testimony of a medical expert called by the plaintiff. The judgment is reversed.

990093 Phan v. Commonwealth 11/05/1999 The evidence was sufficient to support the jury's findings that the defendant perpetrated criminal acts of murder and malicious wounding. While no single piece of evidence may be sufficient, the combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion. Accordingly, the judgment of the Court of Appeals is affirmed.$ib

990137 Pollard & Bagby Inc. v. Pierce Arrow L.L.C. 11/05/1999 By contract, the former owner of an apartment building is obligated to pay commissions as long as a tenant procured by the plaintiff leasing agent continues in the premises. Since the former owner failed to obtain a release from this obligation upon sale of the property, he remains liable because the assignment had no effect on his privity of contract with the leasing agent. The new owner, as an assignee of the old owner, also is liable for the obligation to pay commissions to the agent.

990270 Harris v. Commonwealth 11/05/1999 A defendant was not denied a speedy trial under Code § 19.2-243 and the Sixth Amendment where he was reindicted following the Commonwealth's motion for nolle prosequi on the original indictment since the time between accepting service of the second indictment and his subsequent conviction did not constitute a violation of his constitutional right to a speedy trial. The judgment of the Court of Appeals is affirmed.

990612 Vinson v. Commonwealth 11/05/1999 The trial court committed no error, and the sentence of death was properly assessed in this capital murder case. Thus, the trial court's judgment in the capital murder case and in the noncapital cases is affirmed.

990677 Perez v. Capital One Bank 11/05/1999 A certified question, whether § 6.1-330.63 of the Virginia Code precludes a challenge, under the common law doctrine of unlawful liquidated damages, to late fees included in contracts between credit-card issuers and card holders, where those contracts are governed by Virginia law, is answered in the affirmative.

991284 Thomas v. Garraghty 11/05/1999 The minor defendant's aunt and uncle, as persons "standing in loco parentis," were served with a juvenile transfer hearing which, along with the notice provided to the defendant, fully complied with former Code § 16.1-263 because the defendant had no parents, guardian, or legal custodian. The Commonwealth's failure to provide notice to biological parents did not create a jurisdictional defect rendering his convictions void. The petition for a writ of habeas corpus is denied.

991816 Roach v. Director Dept. of Corrections 11/05/1999 When the juvenile defendant appeared in circuit court with his parents and counsel for review of a transfer decision, the circuit court had jurisdiction to consider the transfer decision and the juvenile court's transfer order. The circuit court's order, authorizing the Commonwealth to seek an indictment, confirmed the juvenile court's transfer decision and completed the jurisdictional transfer to the circuit court under former Code § 16.1-269. The defendant's petition for a writ of habeas corpus is denied.

981767 Dray v. New Market Poultry Products 09/17/1999 A generalized, common-law "whistleblower" retaliatory discharge claim is not recognized as an exception to Virginia's employment-at- will doctrine, and the Virginia Meat and Poultry Inspection Act does not confer any rights or duties that obviate that doctrine. The trial court did not err in sustaining an employer's demurrer, and the judgment is affirmed.

981936 City of Virginia Beach v. Hay 09/17/1999 Section 2-166 of the Virginia Beach City Code, providing that assistant city attorneys be appointed, non-merit employees, is a reasonable implementation of the City's charter authority. Accordingly, the judgment of the trial court holding that the plaintiff had a right to a grievance procedure is reversed and final judgment is rendered for the City.

982204 Donnelly v. Donatelli & Klein Inc. 09/17/1999 The chancellor correctly ruled in favor of a general partner in litigation arising out of a real estate development limited partnership, construing a "tie-breaker" provision and related sections of the parties agreement to allow the challenged transactions and denying rescission. The decree is affirmed.

982269 Gravitt v. Ward 09/17/1999 In this medical malpractice case there was not sufficient evidence from which the jury could reasonably find that the plaintiff was guilty of contributory negligence. It was error for the trial court to give the contributory negligence instruction. Because the issue of primary negligence was principally a classic battle of the experts, it cannot be said that the erroneous instruction did not affect the jury's determination of liability. The judgment is reversed and the case remanded for a new trial.

982345 Garrett v. I. R. Witzer Co. 09/17/1999 In a personal injury, product liability case the plaintiff did not establish a prima facie case of negligence and breach of warranty against a manufacturer and a seller of the product. Accordingly the circuit court's judgment, entered after striking plaintiff's evidence at trial, is affirmed.

982377 Clark v. Scott 09/17/1999 In an appeal from a decree providing for an accounting in the dissolution of a dental partnership, the evidence does not support the chancellor's award of damages, which was for an amount less than that recommended by a commissioner in chancery. The trial court's judgment will be affirmed in part, reversed in part, and final judgment is rendered.

982400 ITT Hartford v. Virginia Financial Assoc. 09/17/1999 Because future earnings projections made by an expert used several variables (premium amounts, population sizes, penetration rates, and retention rates) that were completely divorced from economic reality, these projections resulted in a verdict based upon speculation and conjecture which is reversed. Fraud was also not proven. The case is reversed and remanded.

982434 Lumbermen's Underwriting v. Dave's Cabinet Inc. 09/17/1999 Because an employer failed to prove the elements of constructive fraud in a claim against an insurer for promising reduced workers' compensation insurance rates, the trial court judgment on that claim is reversed.

982449 Breeding v. Hensley 09/17/1999 In this case concerning the law of public nuisances, the plaintiffs' bare allegations of fact, considered according to demurrer rules, support the elements of a public nuisance claim. The trial court erred in short circuiting the litigation upon demurrer, and the judgment as to the individual defendants is reversed. Dismissal of the claim against the municipal defendant for lack of notice under Code § 8.01-222 is affirmed.

982466 School Board City of Portsmouth v. Colander 09/17/1999 The evidence was insufficient in a student's case against a local school board to support the conclusion that the decision to continue the services of a teacher after prior misconduct reflected deliberate indifference to the risk that he would violate plaintiff's federal civil rights by videotaping her in a state of undress. As a matter of law, proof of causation was inadequate. The judgment in favor of plaintiff is reversed, and final judgment entered.

982467 Ligon v. Southside Cardiology Assoc. 09/17/1999 In this medical negligence case the trial court erred in admitting "habit" evidence from medical personnel to prove that a patient did not complain of pain on a specific occasion and that the defendant's treatment of the patient conformed to his routine practice. The trial court's judgment is reversed and the case remanded for a new trial in accordance with the principles expressed in the opinion.

982473 Ravindranathan v. Virginia Commonwealth Univ. 09/17/1999 Since the facts upon which plaintiff relies to support her purported Virginia domicile could also be deemed auxiliary to educational objectives or temporary residence in the Commonwealth, a state university's decision denying in-state status and tuition benefits was not arbitrary or capricious, and the circuit court's affirmation of that decision was not plainly wrong and is affirmed.

982474 Apartment Inv. & Mgmt v. Nat'l Loan Investors 09/17/1999 The trial court's award of a money judgment is reversed because the plaintiff, which obtained a promissory note by an assignment without the consent required under the terms of the note, was not a valid holder of the note but, was in fact, a stranger. Since the consent was an unsatisfied precondition to the formation of a valid assignment, the plaintiff in this action was not entitled to maintain the present causes of action. The judgment below is reversed and final judgment entered for the defendants.

982483 Gaymon v. Gaymon 09/17/1999 The trial court correctly held that the testator created a life estate in favor of the testator's widow, but erred in its conclusion that the language in the will showed an intent by the testator to make the remainder persons personally liable for the interest as well as the principal due under the two deeds of trust on the property. The trial court's judgment is reversed and remanded.

982485 VEPCO v. Dungee 09/17/1999 In a personal injury case in which a ten-year-old boy received severe burns after crawling through a fence into an electric power substation, in view of the evidence in the record, the trial court did not abuse its discretion in concluding that the jury's verdict was not excessive. Accordingly, the trial court's denial of defendant's motion to set the verdict aside or order remittitur is affirmed.

982556 Breeden v. Roberts 09/17/1999 In a traffic accident case, expert opinion testimony excluded by the trial judge was relevant because it tended to support the defendant's contention about why he lost control of his truck. The proffered testimony was based upon the knowledge and experience of a qualified mechanic and was not speculative. It related to a matter beyond the ordinary experience of a jury. Therefore, the trial court erred in excluding the testimony and the case is reversed and remanded.

982573 City Council of Alexandria v. Lindsey Trusts 09/17/1999 A city charter authorized the city to adopt a zoning ordinance that modifies the "grandfathered" rights of property owners. The trial court's declaratory judgment is reversed and final judgment entered.

982588 Turner v. Reed 09/17/1999 The principal issue in this appeal is whether the chancellor erred in construing the term "personal property", as used in a testamentary bequest, to include only tangible personal property. Since there is no merit in the assignments of error, the judgment below is affirmed.

982618 Hickson v. Commonwealth 09/17/1999 Defendant was convicted of arson in a bench trial and the Court of Appeals found sufficient evidence to support the conviction and affirmed the judgment of the circuit court. Because the evidence fails, as a matter of law, to establish that the defendant was the person who committed the arson, the judgment of the Court of Appeals is reversed and the indictment is dismissed.

982671 Superior Insurance Company v. Hunter 09/17/1999 The underinsured motorist provision of a tortfeasor's automobile liability insurance policy is not available to satisfy claims of passengers who are insureds under the same policy where their claims exceed limits of the policy's liability coverage. Accordingly, the judgment of the trial court is reversed and final judgment for is entered for the insurer.

990261 Yarbrough v. Commonwealth 09/17/1999 Defendant's conviction of capital murder is affirmed. The death sentence imposed in the trial court is vacated, and the case is remanded for a new penalty determination. The defendant's related robbery conviction and sentence of life imprisonment are affirmed.

990285 VYVX of Virginia v. Cassell 09/17/1999 In this appeal of an order entered by the State Corporation Commission, no error was found in the Commission's imposition of a fine upon the appellant corporation, or in its denial of an application for authority to construct and acquire fiber optic telecommunications facilities for intrastate purposes. The order of the Commission is affirmed.

990363 Orbe v. Commonwealth 09/17/1999 In a capital murder case in which the defendant murdered a gas station attendant during commission of a robbery, the circuit court imposed the death sentence. After considering each of defendant's arguments and conducting statutory review pursuant to Code § 17.1- 313, no error is found in the defendant's convictions and sentence. The judgments of the circuit court are affirmed.$ib

980612 Bass v. City of Richmond Police Dept. 06/11/1999 Three workers' compensation appeals present the question whether the Commission properly concluded that the employers failed to present sufficient evidence to overcome the presumption established in Code § 65.2-402(B) that hypertension or heart disease afflicting police officers, sheriffs and deputy sheriffs are occupational diseases covered by the Act unless such presumption is overcome by a preponderance of competent evidence to the contrary.

980770 Lucy v. County of Albemarle 06/11/1999 A citizen-initiated petition for reversion of an independent city to town status under Code § 15.2-4102 was properly filed in the circuit court prior to the notice specified in Code § 15.2-2907(A) being given to the Commission on Local Government and affected local governments. The judgment of a special three-judge court to the contrary is reversed and the case is remanded.

981197 Wood v. Woolfolk Properties Inc. 06/11/1999 In this personal injury action relating to a curbside fall near a restaurant entrance at a shopping center, it was error for the circuit court to admit evidence pertaining to the absence of prior accidents. The judgment is reversed and the case remanded for a new trial.

981673 Prospect Development Company v. Bershader 06/11/1999 In a real estate case, the chancellor's decree is affirmed insofar as it holds that defendant sellers breached the contract and committed actual and constructive fraud, and affirmed in establishing that plaintiff purchasers have a negative easement in a neighboring lot and granting permanent injunctive relief. The award of damages to the plaintiffs is reversed and the decree is modified to reduce the award of attorney's fees.

981691 Robinson v. Commonwealth 06/11/1999 In a shoplifting case where the value of items stolen was established by testimony of store employees concerning the prices of the items as marked on tags, the Court of Appeals properly held that such evidence was properly admitted. An exception to the hearsay rule is here recognized for shoplifting cases permitting the admission into evidence of price tags regularly affixed to items offered for sale or testimony concerning the amounts shown on such tags.

981836 Willard v. Moneta Building Supply 06/11/1999 In a case involving sale of the assets of a closely-held corporation, the trial court correctly rejected the minority stockholder's attacks on theories of breach of statutory and common law duties by the directors and majority stockholders in failing to maximize the purchase price, conflict of interests, and failure to comply with the statutory procedures. The judgment upholding the transaction is affirmed.

981857 Coady v. Strategic Resources Inc. 06/11/1999 In a case where additional compensation was sought by a contractor under a consulting agreement, after an accord and satisfaction was reached by the parties under UCC provisions an application for fees and expenses was made by the defendant. Since the record discloses no motion by defendant for recovery of expert witness fees, the award of expert fees is disallowed. The award of attorney's fees is affirmed and final judgment is entered in favor of the defendant for that award.

981872 Moore v. Maroney 06/11/1999 The Virginia Freedom of Information Act provides that certain "official records" of public bodies are "excluded" from its disclosure requirements, including certain "personnel records" not defined in the Act. The trial court's application of the exemption to documents relating to a police investigation of possible misconduct by a public official will stand without appellate approval because there is not an adequate record presented by the appellants.

981878 Hitt Contracting v. Industrial Risk Insurers 06/11/1999 A suit for failure to pay a claim under a replacement coverage endorsement of an insurance policy is subject to the two-year limitations period in the policy and required by Code § 38.2-2105. The trial court correctly dismissed the motion for judgment on the basis that it was not filed within the two-year limitations period.

981998 Vincent v. Warden 06/11/1999 A certificate of discharge from probation supervision containing a prospective discharge date was superseded by a subsequent parole board warrant for the arrest and detention of the parolee pending a parole revocation hearing. The Parole Board had jurisdiction to revoke the parole of the petitioner and petitioner's detention pursuant to the revocation is lawful. The petition for a writ of habeas corpus is denied.

982018 Motley v. Tarmac 06/11/1999 The circuit court erred in denying a plaintiff's post-trial motion for a new trial because the corporate defendant designated as its agent, for purposes of Code § 8.01-375, a former employee whose negligence was at issue in the litigation, thus permitting the former employee to observe the trial even though the circuit court had excluded witnesses. The judgment of the circuit court is reversed, and the case remanded for a new trial.

982070 Smith v. Colonial Ins. Co. of California 06/11/1999 In a motor vehicle insurance case in which the insured made material misrepresentations when applying for insurance, the trial court correctly decided that the parol evidence rule did not apply to testimony about questions asked of the insured and the insured's verbal answers to those questions during the application process. The judgment below is affirmed.

982076 Hamm v. Scott 06/11/1999 In an appeal stemming from the execution of two promissory notes, the trial court erred in refusing to enforce the second note. Part of the consideration for the second note was a promise to forebear attempts to collect on the first note, and when the borrower failed to pay the second note, both notes became enforceable according to the understanding of the parties. The decision of the trial court is reversed and remanded for entry of judgment in favor of plaintiff.

982098 Sonoma Development Inc. v. Miller 06/11/1999 Because a Declaration of Restriction was part of a transaction that included transfer of an interest in the land to be benefited by the restrictive covenant, the judgment of the circuit court based on a finding that horizontal privity existed between the original covenanting parties is affirmed.

982102 Commonwealth v. Baker 06/11/1999 A judgment of the Court of Appeals, under a now-superseded version of the Code, declaring the transfer of jurisdiction from a juvenile and domestic relations district court to a circuit court ineffectual and the subsequent convictions void because the juvenile's father was not notified, is affirmed.

990096 Walker v. Commonwealth 06/11/1999 In a case in which the death penalty was imposed for the willful, deliberate, and premeditated killing of more than one person within a three-year period (Code § 18.2-31(8)), the sentence is neither excessive nor disproportionate to sentences imposed in the Commonwealth for similar crimes. The trial court committed no reversible error and, after an independent review of the record, it is concluded that the sentence of death was properly assessed. The trial court's judgment is affirmed.

981093 Industrial Alloy Fabricators v. Williams Industri 04/16/1999 In an indemnification and warranty case involving the purchase of corporate assets, the buyers appeal from a judgment in favor of sellers. Since the trial court correctly found that the buyers failed to comply with consent-to-settlement requirements applicable under the indemnity provisions, its judgment is affirmed.

981100 North Ridge Apartments v. Ruffin 04/16/1999 In this unlawful detainer action, the trial court erred in finding that the lessee had been constructively evicted from the demised premises and that judgment is reversed.

981171 Giant of Maryland v. Enger 04/16/1999 In the trial of a tort action, the circuit court erred in the language used in instructing the jury on the doctrine of respondeat superior. The judgment is reversed and the case remanded for a new trial.

981184 Gregory v. Board of Supervisors 04/16/1999 The trial court did not err in upholding a decision by a county board of supervisors denying an application for rezoning that included proffers of monetary conditions substantially lower in amount than those recommended by the county. The trial court's decision is affirmed.

981185 Patterson v. Patterson 04/16/1999 The trial court properly determined that a certificate of deposit registered in the joint names of a husband and wife with right of survivorship was the sole property of the wife and, upon her death, became part of her estate. The judgment of the trial court awarding $100,000 plus accrued interest to the estate is affirmed.

981246 Board of Zoning Appeals v. 852 L.L.C. 04/16/1999 In this land use controversy, the trial court did not err in reversing the county board of supervisors' decision that adopted the zoning administrator's interpretation of an ordinance prescribing computation of developable land area. The interpretation was plainly wrong and the board applied erroneous principles of law in adopting it. The judgment below will be affirmed.

981269 Pender v. Angelone 04/16/1999 Since the facts entitled the trial court in a criminal prosecution to find defendant guilty of first degree murder, and the evidence at a habeas corpus proceeding did not support a finding that any errors of counsel in the criminal trial presented issues or facts that would render the result of petitioner's criminal trial unreliable or unfair, the judgment of the circuit court dismissing the petition for a writ of habeas corpus is affirmed.

981270 Mooring v. Virginia Wesleyan College 04/16/1999 The trial court dismissed an accidentally injured plaintiff's motion for judgment, finding that the defendant college professor was a volunteer at a club for young people and entitled to charitable immunity due to the club's status as a charity. Because the defendant was not engaged in the charity's work at the time of the alleged negligence, the trial court erred in dismissing the plaintiff's motion for judgment. The judgment is reversed and the case is remanded.

981313 Cooley v. Tyson Foods Inc. 04/16/1999 A discharged employee failed to present sufficient evidence to support a jury's finding that he was fired because he had intended to file a workers' compensation claim. The trial court's actions in setting aside a verdict and entering judgment for the defendant former employer are affirmed.

981333 Alfonso v. Robinson 04/16/1999 In a traffic accident case where a tractor-trailer truck stalled in a travel lane of an interstate highway and the driver failed to deploy flares or reflective triangles to warn oncoming traffic, the cumulative evidence of the driver's knowledge and conduct raised a question of willful and wanton negligence. The trial court did not err in instructing the jury on the issue, and judgment entered upon the jury's verdict for the plaintiff is affirmed.

981335 Far East Bank v. Dang 04/16/1999 Since the record supports the chancellor's finding that purported shareholders failed to prove that they owned stock in an expropriated foreign bank, and there was no evidence that the bank's board of directors authorized a claim to the fund held by the court, the decree rejecting these claims is affirmed.

981365 Shalimar Development v. FDIC 04/16/1999 Since there was no evidence that negotiations between plaintiff real estate firm and potential purchasers resulted in or facilitated the ultimate sale of the property, the trial court correctly determined as a matter of law that the plaintiff was not the procuring cause of the particular sale and, thus, that this issue was improperly submitted to the jury. Its action in setting aside the greater part of a jury verdict for the plaintiff relating to this sale is affirmed.

981387 Gray v. INOVA Health Care Services 04/16/1999 A parent who witnesses the effects of a negligent, tactile tort committed upon a child in the presence of the parent does not have a cause of action in tort for negligent infliction of emotional distress and its symptomatic effects. The judgment of the trial court sustaining the tortfeasor's demurrer is affirmed.

981388 Nichols v. Kaiser Foundation Health Plan 04/16/1999 In a tort action for negligently dispensing an incorrect medication, the medical facts and medical opinion combined with lay testimony, without the addition of pure expert testimony, entitled the plaintiff to have a jury weigh the evidence of causation, and the trial court erred in ruling to the contrary. The judgment below is reversed, the verdict of the jury is reinstated, and final judgment is entered here.

981428 Holmes v. Doe 04/16/1999 In a jury trial of an automobile accident liability claim, the trial court properly permitted the introduction of expert testimony concerning the relationship between tire tread depth and hydroplaning by a motor vehicle. The judgment is affirmed.

981454 Wagner v. Shird 04/16/1999 Because the circuit court's 30-day suspension of its final order expired without entry of a further order to extend the length of the stay, the court no longer retained jurisdiction over the action when it later entered an order of remittitur. The judgment of the circuit court is reversed and the jury's verdict in favor of the plaintiff is reinstated.

981474 Yates v. Pitman Manufacturing Inc. 04/16/1999 In this products liability personal injury case, the trial court erred in holding that the plaintiff, who was not the purchaser of the product, must have given notice of breach of warranty to the product's manufacturer as a prerequisite to recovery. The trial court also erred in striking the plaintiff's express warranty claim. The judgment is reversed and the case remanded for a new trial.

981492 Sansom v. Board of Supervisors 04/16/1999 Pursuant to a county subdivision ordinance, the circuit court determined that a substantial surface drainage course is located in the area of the landowner's application and upheld the county's denial of the application to approve a subdivision plat. The circuit court properly held that the county based its denial on the applicable ordinance and that its decision was neither arbitrary nor capricious. The judgment of the circuit court is affirmed.

981801 Gilpin v. Joyce 04/16/1999 Since a defendant's general appearance without prior service of process waives the application of Virginia Supreme Court Rule 3:3, a trial court ruling sustaining a plea in bar is reversed, and the case is remanded.

981829 Phillips v. Commonwealth 04/16/1999 The Court of Appeals correctly determined that Code § 19.2-294 does not bar a defendant's conviction on two felony charges of selling marijuana on school property after he had been convicted in the general district court on two misdemeanor charges of distribution of marijuana based on the same acts. The judgment is affirmed.

981994 El-Amin v. Virginia State Bar 04/16/1999 Since the evidence heard by three-judge court supports its findings in a Virginia State Bar initiated disciplinary proceeding against a lawyer licensed to practice law in the Commonwealth, the judgment is affirmed and the attorney's license to practice law is suspended for four years.

980371 Rosen v. Greifenberger 02/26/1999 In a medical malpractice action, the trial court erred in giving a jury instruction on a physician's duty to continue services as long as they are necessary where the evidence showed that another physician within the treating physician's group practice was advised that the patient might need additional care during the treating physician's temporary absence, and such care was provided. The judgment is reversed and remanded.

980519 Carolina Builders Corp. v. Cenit Equity Co. 02/26/1999 Since the mechanic's lien statute plainly states that the memorandum of lien shall not include sums for materials furnished more than 150 days prior to the last day that material was furnished to the job preceding the filing of the memorandum, the circuit court did not err when it held that a mechanic's lien was invalid and unenforceable.

980707 Fidelity Nat'l Ins. v. Southern Heritage Ins. 02/26/1999 In this action for breach of contract the trial court did not err in sustaining, at the conclusion of the plaintiff's case-in-chief, the defendant's motion to strike the plaintiff's evidence on the issue of damages. The judgment is affirmed.

980712 Rivera v. Witt 02/26/1999 Because a John Doe defendant and an insured motorist later identified as the John Doe are not considered the same entity for purposes of the statute of limitations, dismissal of a motion for judgment filed against the identified individual after the statute of limitations had run is affirmed.

980728 Peninsula Cruise Inc. v. New River Yacht Sales 02/26/1999 Because the circuit court erred in refusing to exercise personal jurisdiction pursuant to Code § 8.01-328.1, the Virginia long-arm statute, over a Florida corporation that delivered a boat into Virginia and had other contacts with the Commonwealth, the judgment is reversed and the case remanded for further proceedings.

980731 Fairfax County Redevelopment v. Worcester Bros. 02/26/1999 Since the trial court's award of unabsorbed home office expenses to a contractor on a public construction project following an unreasonable delay by the government agency was based upon sufficient proof of the existence and amount of those damages, the judgment is affirmed.

980758 Dominion Savings Bank v. Costello 02/26/1999 Because the unambiguous terms of two first mortgage notes for real estate loans provide for interest to be charged in advance, the circuit court finding that interest is to be paid in arrears is reversed and final judgment is entered.

980805 Asphalt Roads & Materials Co. v. Commonwealth 02/26/1999 Because a contract authorized additional compensation to a contractor for having provided additional backfill material in an excavation project, and for disposal of excess material taken from the site, final judgment is entered for the contractor as provided in the trial court. The judgment of the Court of Appeals is reversed as to the additional compensation and the case remanded for further action in conformance with the balance of the Court of Appeals' opinion.

980813 Gordonsville Energy v. VEPCO 02/26/1999 Judgment is affirmed in part and reversed in part in a contract litigation between a large electrical power company and a generating facility that supplies electricity to the power company, involving recovery of liquidated damages for an 11-day period during which the generating facility's plant was "shut down" due to a mechanical failure.

980824 Commonwealth v. Delta Air Lines 02/26/1999 The circuit court's judgment refunding corporate income taxes and interest to an airline for two tax years is affirmed. A ruling holding refund claims for two earlier years time-barred is reversed, and the proceeding is remanded for a determination of the amount of refund to which the airline is entitled for those years.

980825 Parrish v. Worldwide Travel Service 02/26/1999 Because there was ample evidence in the record to sustain the trial court's finding that an employee was discharged for cause under an employment contract, the judgment for the defendant in his wrongful termination action is affirmed.

980828 Food Lion Inc. v. Cox 02/26/1999 Since cross-examination of a witness is not a privilege, but an absolute right, the trial court's ruling depriving a civil party of the right to cross-examine witnesses called by another party as adverse witnesses was error. The judgment entered below is reversed and the case remanded for a new trial on all the issues.

980846 Rogers v. Rogers 02/26/1999 Because certain creditors, who obtained a judgment against a husband and a different judgment against his wife, may not compel the sale of real property owned by the couple in a tenancy by the entireties with right of survivorship to satisfy those judgments, the trial court's judgment to that effect is affirmed.

980909 Glasco v. Commonwealth 02/26/1999 Because a defendant who left his vehicle before being approached by police officers was a recent occupant of the vehicle, the judgment of the Court of Appeals finding that a search of the vehicle incident to his arrest was lawful is affirmed.

980913 Parish v. Spaulding 02/26/1999 In this appeal of an order adjudicating issues of child custody, visitation, and support, the trial court employed proper procedures in determining the merits of the custodial parent's move from Virginia to Indiana, which was made in violation of a court order.

980953 Brooks & Company v. Randy Robinson Contracting 02/26/1999 Because the trial court correctly found that the parties had an oral agreement for performance of certain construction work, and that a written contract was never agreed to by the parties, and thus that there was no agreement to submit disputes to arbitration, the judgment entering a stay of arbitration is affirmed.

981000 Southeast Apartments Management v. Jackman 02/26/1999 The trial court erred in ruling that a jury question was presented on a tenant's claims that an owner of leased premises breached either its duty to exercise reasonable care in the hiring of its employee, the tortfeasor, or its duty to exercise reasonable care in the retention of the employee, and that judgment is reversed. The verdict in favor of the plaintiff is set aside and final judgment is rendered in favor of the defendants.

981011 Uninsured Employer's Fund v. Flanary 02/26/1999 In an appeal challenging award of lifetime benefits to a sufferer of third-stage pneumoconiosis, and refusing to prorate any portion of the obligation of the Uninsured Employer's Fund to the Virginia Property and Casualty Insurance Guaranty Association, the decision in Uninsured Employer's Fund v. Mounts, 255 Va. 254, 497 S.E.2d 464 (1998) is not disturbed, and the present appeal is affirmed for the reasons assigned by the Court of Appeals in Uninsured Employer's Fund v. Flanary, 27 Va. App. 201, 497 S.E.2d 912 (1998).

981043 Lansdowne Development Co. v. Xerox Realty 02/26/1999 Since the chancellor correctly ruled that a contract between the parties to a real estate transaction required the purchaser to provide a deed of trust to the seller to secure the purchaser's performance of rezoning proffers made by the seller to the local government, and no error has been adequately demonstrated in the award of certain litigation expenses to the seller, the decree is affirmed.

981088 Conner v. National Pest Control Association 02/26/1999 Enactment of the 1995 amendments to the Virginia Human Rights Act (VHRA) by the Virginia General Assembly eliminated a common law cause of action for wrongful termination based on any public policy which is reflected in the VHRA, regardless of whether the policy is articulated elsewhere. The trial court's order sustaining the demurrer of the defendant and dismissing the plaintiff's motion for judgment for failure to state a cause of action is affirmed.

981146 Lynn v. Commonwealth 02/26/1999 For the reasons given in its opinion, the Court of Appeals properly upheld the judgment of circuit court refusing defendant's proffered jury instructions on "cooling off," "right to arm," and "relative strength and size" of the parties in a second degree murder prosecution. The judgment entered below is affirmed.

981394 Bramblett v. Commonwealth 02/26/1999 The trial court committed no reversible error in this capital murder proceeding. Based upon the required review, defendant's sentence is not excessive or disproportionate to penalties generally imposed by sentencing bodies in the Commonwealth for similar conduct, and an independent review of the entire record shows that the sentence of death was properly assessed. The judgments on the capital and noncapital charges are affirmed.

981477 Atkins, Daryl Renard v. Commonwealth 02/26/1999 (Revised 02/26/1999) There was no reversible error in the guilt phase of defendant's capital murder trial and, accordingly, the conviction for capital murder is affirmed. Because there was error in the penalty phase of the trial with respect to the imposition of the death penalty, the sentence of death is reversed and the case remanded to the trial court for a new penalty proceeding on the capital murder conviction. See Record # 000395, Atkins v. Commonwealth, dated September 15, 2000

981552 Earley v. Landsidle 02/26/1999 An original petition for mandamus brought by the Attorney General of Virginia under Code § 8.01-653, which does not seek a writ compelling payment of money as contemplated in the statute, is dismissed for lack of subject matter jurisdiction.

981798 Cherrix v. Commonwealth 02/26/1999 After a review of the capital murder conviction and death penalty imposed upon defendant, along with his convictions for forcible sodomy, two counts of using a firearm in the commission of a felony, and possessing a firearm after being convicted of a felony, no reversible error is found in the issues presented. After reviewing the defendant's death sentence pursuant to Code § 17.1-313, commutation of the sentence of death is denied and the judgment of the trial court is affirmed.

982055 Hedrick v. Commonwealth 02/26/1999 No error is found in the appeal of a capital murder conviction, sentence of death, and related convictions imposed upon the defendant in a prosecution for murder, rape and forcible sodomy involving use of a firearm. The sentence is not commuted, and the judgments are affirmed.

980139 Amoco Foam Products Co. v. Johnson 01/08/1999 In this appeal of an award under the Workers' Compensation Act, the Court of Appeals' application of the doctrine of compensable consequences was erroneous in holding that an employee might recover for the compensable consequence of a compensable consequence and the award is reversed.

980166 Tate v. Colony House Builders Inc. 01/08/1999 The defendants' alleged representations that the design and construction of a dwelling were of the highest quality are not sufficient to support an action for constructive fraud, and the judgment dismissing the plaintiffs' claim based upon these statements is affirmed. However, representations that the house was free from structural defects and fit for habitation are statements of fact sufficient to support a cause of action for constructive fraud and the case is reversed and remanded.

980187 Commonwealth v. Shifflett 01/08/1999 In two criminal appeals, involving findings of guilty in noncapital felony prosecutions, the Court of Appeals of Virginia erred in reversing the respective circuit courts, which limited evidence the defendants sought to introduce during the sentencing proceedings conducted as part of the bifurcated jury trials. The judgments of the Court of Appeals are reversed and final judgment entered reinstating the sentencing orders of the trial courts.

980190 Granados v. Windson Development Corp. 01/08/1999 A workers' compensation plaintiff could not have been in the service of the employer under any contract of hire because, under the Immigration Reform and Control Act of 1986, an illegal alien cannot be employed lawfully in the United States. Therefore, he was not an "employee," within the meaning of Code § 65.2-101, eligible for compensation under the Act. For the reasons assigned here, the Commission's conclusion is sustained and the judgment of the Court of Appeals affirmed.

980197 White v. White 01/08/1999 Because an agreement to pay a mortgage on the former marital home, which was ratified and incorporated into a final divorce decree, did not obligate the former husband to make payments to his former wife after the mortgage was satisfied, the trial court erred in requiring spousal support payments after the mortgage debt had been satisfied. That ruling is reversed and final judgment entered for the former husband.

980283 Zink v. Stafford 01/08/1999 In this chancery suit, the trial court correctly found that four promissory notes made to the decedent are estate assets and the notes did not pass to the decedent's daughter, individually, by right of survivorship. The judgment of the trial court is affirmed.

980324 Richardson v. Braxton-Bailey 01/08/1999 In this personal injury damages case, the dispositive issue was the quality of the evidence, not the proximity between the amount of the verdict and the special damages claimed. Based on this record, the jury was entitled to believe that not all the damages claimed by the plaintiff were incurred as a result of the accident. Therefore, the trial court erred in setting the verdict aside. That judgment is reversed and the jury verdict reinstated.

980343 Board of Directors v. City of Richmond 01/08/1999 Because the trial court erred in ruling that a condominium association was entitled to be classified as residential for purposes of a city's utility tax scheme, and in ruling that the individual unit owners should be treated as purchasers of residential utility services such that the association's utility tax should be computed on this basis, its judgment is reversed and final judgment is entered for the city.

980345 Walker v. Mason 01/08/1999 The trial court in each of three cases improperly set aside damage verdicts for inadequacy. When the jury verdict is not in the exact amount of all the special damages claimed, the trial court must review the evidence under traditional principles relating to the adequacy of jury verdicts. In each of these three cases the judgment of the trial court is reversed and the jury verdict reinstated.

980355 Simbeck Inc. v. Dodd Sisk Whitlock Corp. 01/08/1999 The trial court did not err in concluding that while defendant's violations of trade standards were the basis of both the tortious interference and breach of fiduciary duty rights of action, such violations were insufficient as a matter of law to justify imposition of punitive damages. The trial court acted properly in setting aside the punitive damage verdict, and the judgment below is affirmed.

980386 Allstate Insurance Company v. White 01/08/1999 In a personal injury case against an unidentified John Doe, the trial court erred in setting aside the jury verdict because, based on the evidence, the jury was entitled to infer that the plaintiff's perception of the circumstances of the accident was impaired. Furthermore, assuming there was a Doe vehicle, there was no direct evidence that Doe was negligent. The judgment of the trial court is reversed and final judgment entered reinstating that portion of the jury verdict in favor of John Doe.

980392 Bayliner Marine Corporation v. Crow 01/08/1999 Because there was not sufficient evidence to support the trial court's ruling that the manufacturer of a sport fishing boat breached express and implied warranties of merchantability and fitness for a particular purpose, the trial court's judgment is reversed and final judgment is entered for the manufacturer.

980407 Hardy v. Board of Zoning Appeals 01/08/1999 Because disposition of a petition for writ of certiorari in a zoning matter, and a prospective intervenor's application for nonconforming use status, depend on construction of a prior decision by a board of zoning appeals, the circuit court erred in dismissing the present case as moot. The matter is remanded.

980444 Phillips v. Southeast 4-H Educational Ctr. 01/08/1999 The trial court did not err in striking the plaintiff's evidence at the conclusion of the plaintiff's case-in-chief. Neither did the trial court err in excluding certain evidence proffered by the plaintiff's expert witness. The judgment of the trial court is affirmed.

980453 Southern Express v. Green 01/08/1999 Because a claimant's chilblains suffered as a result of being exposed to cold temperature in a walk-in cooler during a four-hour period constituted an "injury by accident" under the Virginia Workers' Compensation Act, caused by an identifiable incident and resulting in a structural change in her body, the judgment of the Court of Appeals that the injury is compensable under the Act is affirmed.

980454 A New Leaf Inc. v. Sunrise Terrace Inc. 01/08/1999 Because a workers' compensation claimant's contact dermatitis was caused by a reaction to allergens in certain flowers and not by cumulative trauma induced by repetitive motion, it is compensable as an occupational disease under the Virginia Workers' Compensation Act. The judgment of the Court of Appeals is affirmed.

980460 Commonwealth v. Sandy 01/08/1999 Absent judicial approval or prejudice to a criminal defendant, a proposed plea agreement cannot be binding upon the Commonwealth because the defendant has suffered no harm, and the defendant is free to reject the proposed agreement before it is submitted to a court. The Commonwealth's Attorney was entitled to withdraw her consent because the defendant was not prejudiced. The judgment of the Court of Appeals is reversed, and judgments of the circuit court reinstated.

980482 Holles v. Sunrise Terrace Inc. 01/08/1999 There was no reversible error in the trial court's entry of judgment for a defendant provider of management services at an "adult care residence" on counts of breach of contract and negligence, which arose from an attack by an intruder on the plaintiff's decedent, a tenant in the facility. The judgment is affirmed.

980498 City of Richmond v. United Methodist Homes 01/08/1999 The trial court erred in ruling that certain residential properties for aged persons were used as charitable "asylums" and, thus, were entitled to exemption from the assessment of local real estate taxes. The judgment is reversed and final judgment is entered for the municipality.

980558 Martone v. Martone 01/08/1999 Because some of the proponents of a decedent's prior will had a mere expectancy under that will and not a legally ascertainable, pecuniary interest, they are not "person[s] interested" as that term is used in Code § 64.1-90. The judgment of the circuit court dismissing their suit is affirmed.

980559 Payne v. Commonwealth 01/08/1999 Since the trial court's death sentences do not violate the constitutional guarantee of protection against multiple punishments for the same offense and the death sentences were not imposed under the influence of passion, prejudice, or any other arbitrary factor and are not excessive or disproportionate, they are affirmed. The convictions and sentences do not violate the constitutional guarantee against double jeopardy.

980659 Pulliam v. Coastal Emergency Services 01/08/1999 Since the medical malpractice cap does not violate any constitutional guarantees, the cap's constitutionality is upheld and Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989) which upheld the medical malpractice cap imposed by Code § 8.01-581.15 is reaffirmed. Two other issues involving the cap are addressed in this case.

980940 Hussen v. Commonwealth 01/08/1999 An expert witness' testimony did not improperly invade the province of the jury because it did not express an opinion on the ultimate question of fact in the case and the judgment of the trial court is affirmed.

972315 Buck v. Jordan 11/06/1998 Because the language of a joint investment account agreement overcame the presumption that the account was opened for the convenience of the decedent, the circuit court's judgment awarding funds in the account to the surviving joint tenant is affirmed.

972334 Hoar v. Great Eastern Resort Management 11/06/1998 In this case involving serious injury to a skier at a resort, from the circumstances that were proven below, and according to the ordinary experience of mankind, the jury was warranted in concluding that the skier's injury would not have occurred had a warning been given. The jury verdict in favor of the skier's guardian is reinstated.

972622 Ward v. NationsBank 11/06/1998 Because a trustee had authority to grant a purchase option on trust property and exercised that authority in a prudent manner, and that action provided a benefit to the trust, the judgment of the trial court that the trustee did not breach the trust agreement by executing the option, agreeing to a deed of trust on the property securing funds lent to the lessee/purchaser for development of the property, and subsequently conveying the trust property, is affirmed.

972637 Downer v. CSX Transportation Inc. 11/06/1998 In a Federal Employers' Liability Act case against an oil company and an employer, in which the employee alleged that he was injured when the defendants negligently exposed him to noxious chemicals at the oil company's refinery, the trial court did not err in reducing the jury award against the employer by the amount the employee had been paid by the oil company in settlement of his claim against it, in accordance with Code § 8.01-35.1(A)(1), and that judgment is affirmed.

972645 Commonwealth v. Zamani 11/06/1998 Since the Court of Appeals correctly interpreted and applied Code § 16.1-133, relating to the withdrawal of appeals to circuit court from judgments of courts not of record, and Code § 16.1-133.l, relating to the reopening of cases in courts not of record, its judgment is affirmed.

972694 Atkinson v. Scheer 11/06/1998 In this medical negligence action the trial court erred in allowing the defendant to present evidence that another doctor, who is not a party to this litigation, breached the standard of care owed to a patient after taking over from defendant at the end of an emergency room shift. Judgment for defendant is reversed and the action is remanded for a new trial.

972711 Ash v. All Star Lawn and Pest Control 11/06/1998 The trial court erred in ruling that purchasers of real property could not recover for breach of contract against an inspection company for failure to provide an adequate termite and moisture damage report on behalf of the seller as part of the transaction. The judgment is reversed and the case is remanded.

972717 O'Brian v. Langley School 11/06/1998 In a contract case for payment of school tuition, the circuit court erroneously entered summary judgment for the school before permitting the parents to conduct discovery with regard to their defense that a liquidated damages clause in the contract was an unenforceable penalty. The judgment is reversed and the case remanded.

980014 Webb v. Rivers 11/06/1998 Plaintiff in a vehicular accident case having offered proof that defendant had a blood alcohol content of .21%, was so intoxicated that he did not know where he was and was traveling 90 m.p.h. in a residential neighborhood with a 25 m.p.h. legal speed limit, that portion of the trial court's judgment which dismissed the plaintiff's common law claim for punitive damages is reversed and the proceeding is remanded for trial on that claim.

980019 Bruce v. Commonwealth 11/06/1998 Published Order

980024 Combs v. Norfolk and Western Rwy. 11/06/1998 An expert in the field of biomechanical engineering was qualified to render an opinion on the compression forces placed on the plaintiff's spine at the time of an incident, but was not a medical doctor and, thus, was not qualified to state an expert medical opinion regarding what factors cause a human disc to rupture. The judgment is affirmed in part, reversed in part, and remanded for a new trial.

980025 Newman v. Erie Insurance Exchange 11/06/1998 In a declaratory judgment proceeding concerning insurance coverage, final judgment is awarded declaring that a child was "using" the school bus at the time of an accident, within the meaning of Code § 38.2-2206, and was entitled to coverage under the uninsured/underinsured motorist portion of the applicable policy.

980061 Commonwealth v. Price 11/06/1998 Because the Court of Appeals correctly found that the defendant was held continuously in custody in excess of five months from a finding of probable cause until trial in violation of the "speedy trial" statute, its decision to reverse and dismiss the convictions is affirmed for the reasons set forth in Price v. Commonwealth, 25 Va. App. 655, 492 S.E.2d 447 (1997).

980081 Richmond Metropolitan Authority v. McDevitt Street 11/06/1998 In a case alleging actual and constructive fraud, the judgment of the circuit court dismissing the causes of action is affirmed because any duty breached existed solely by reason of a contract between the parties.

980100 Gloucester County v. Kennedy 11/06/1998 The trial court properly applied Code § 63.1-248.5:1(C), which deals with reports of investigation prepared by a local department of social services following receipt of information or allegation of child abuse or neglect, and correctly ordered the department to provide the petitioner with a copy of the records in question. Consequently, the judgment below will be affirmed.

980152 York Federal Savings & Loan Assoc. v. Hazel 11/06/1998 In this mechanic's lien enforcement suit the holder of a mechanic's lien that was "bonded off" pursuant to Code § 43-70 was still required to establish the priority of the lien. The judgment is reversed and the case remanded.

980250 Smith v. Litten 11/06/1998 In a case alleging age discrimination in the termination of employment, the trial court's instructions to the jury constituted a fair summary of the applicable principles. The jury found the evidence sufficient to support an award of damages compensating the plaintiff for the losses he sustained and an award of damages punishing the defendant for committing a common law wrong. The judgment of the trial court is affirmed.

980259 Commonwealth v. Donkor 11/06/1998 Because there was no evidence to support the defendant's request for a jury instruction on the lesser-included offense of malicious wounding, the judgment of the Court of Appeals is reversed and the defendant's conviction of aggravated malicious wounding in violation of Code § 18.2-51.2 is reinstated and final judgment entered.

980325 Commonwealth v. Presley 11/06/1998 There was sufficient evidence of record to permit the jury to find beyond a reasonable doubt that a defendant's acts caused the victim's death. The Court of Appeals' judgment is reversed and the conviction for voluntary manslaughter is reinstated.

980378 Commonwealth v. Taylor 11/06/1998 The Court of Appeals erred in reversing the defendant's conviction for grand larceny on the ground that the evidence was insufficient to prove his criminal intent. The judgment is reversed and the conviction reinstated.

980486 Anderson v. Commonwealth 11/06/1998 The Court of Appeals did not err in affirming the trial court's denial of a defendant's motion to suppress evidence seized from his person and property because he had entered into a written plea agreement in which he agreed to waive his Fourth Amendment rights. The waiver was given knowingly and voluntarily, was not the result of coercion, was not overly broad, and was reasonable in the circumstances.

980564 Town of Blackstone v. Southside Electric Cooperati 11/06/1998 A city or town seeking to exercise the right provided by Code § 56- 265.4:2 must comply with Code § 25-233, which provides that permission must first be obtained from the State Corporation commission by any public corporation or authority seeking to take by condemnation proceedings the property of any other entity also possessing that power. To do so, the city or town must demonstrate that a public necessity or that an essential public convenience shall so require. The judgment in this proceeding is affirmed.$ib

980677 Swisher v. Commonwealth 11/06/1998 No error is found in the review of a capital murder conviction, sentence of death, and appeal of related convictions. The judgment is affirmed.

980797 Kasi v. Commonwealth 11/06/1998 Upon a review of numerous issues in a capital murder conviction considered with appeal of convictions for other offenses, it is concluded that the trial court committed no reversible error, and the sentence of death was properly assessed and is affirmed.

981020 Reid v. Commonwealth 11/06/1998 No error is found in the review of a death sentence imposed upon conviction for capital murder nor is any reason found to commute the death sentence, and the judgment is affirmed.

971519 Prince William Cty. Service Auth. v. Harper 09/18/1998 An employee's false statement on an employment application that she had not been convicted of a felony does not bar her receipt of workers' compensation benefits where there is no causal relationship between the injury in question and the misrepresentation. The judgment of the Court of Appeals sustaining the Commission's award of workers' compensation benefits is affirmed.

971772 Hartzell Fan Inc. v. Waco Inc. 09/18/1998 Since a manufacturer's sales representative was the "agent" of the manufacturer within the meaning of Code § 8.3A-420 and was liable to the manufacturer for conversion of several checks, the manufacturer is entitled to offset such liabilities in a garnishment proceeding brought by a judgment creditor of the agent. The decision below is affirmed in part, reversed in part, and remanded for entry of a final judgment.

971938 Taylor v. Commonwealth 09/18/1998 The Court of Appeals correctly held that it was not an abuse of discretion to deny a mistrial when a juror failed to respond to a question during voir dire and made a disclosure of responsive information after opening statements had been delivered. The judgment is affirmed for the reasons stated in the opinion of the Court of Appeals, 25 Va. App. 12, 486 S.E.2d 108 (1997).

971990 Irby v. Roberts 09/18/1998 The trial court erred in determining that the language of a deed purporting to grant an easement to construct a pier was ambiguous and, thus, that it failed to transfer the necessary riparian right for that purpose. That holding was in error and is reversed, and final judgment is entered.

972018 Amos v. NationsBank 09/18/1998 Because the evidence was insufficient as a matter of law to establish that defendant bank had a duty to remove ice and snow from its premises at the time a plaintiff fell, the trial court correctly set aside a verdict in her favor and entered final judgment for the defendant. That judgment is affirmed.

972041 Hegwood v. Virginia Natural Gas Inc. 09/18/1998 The trial court did not err in striking the plaintiff's evidence in wrongful death actions because the evidence failed as a matter of law to present a prima facie case of negligence by the defendant gas company. The defendant's mechanic, upon discovering certain appliances' defects, took appropriate action to shut off the gas supply to the defective appliances and properly warned the occupants of the defects. The judgment is affirmed.

972102 Claycomb v. Didawick 09/18/1998 The trial court erred in striking the plaintiff's evidence and entering summary judgment in favor of the defendant on the ground that the evidence showed, as a matter of law, that the plaintiff was contributorily negligent because he failed to keep a proper lookout. The judgment is reversed and the case remanded.

972112 Bailey v. Lancaster Ruritan Recreation Ctr. 09/18/1998 In this negligence action the defendant corporation is not protected from liability under the doctrine of charitable immunity because the relevant financial history of the corporation must be examined to properly determine charitable status, the defendant had the burden to present such a history and failed, or was unable to do so. The trial court erred in sustaining the plea of charitable immunity. The trial court judgment is reversed and the case remanded.

972212 Toyota Motor Credit v. Hyman Auto Wholesale 09/18/1998 The trial court properly held that a lienholder whose lien was omitted from a duplicate certificate of title for an automobile because of fraud by the owner is not entitled to enforce that lien against a subsequent bona fide purchaser of the automobile, who was entitled to rely on a certificate of title which did not contain a notation of the lien, and that holding is affirmed.

972263 Shenandoah Acres Inc. v. D.M. Conner Inc. 09/18/1998 The trial court erred in determining that the owner of a non- exclusive easement may limit access to the easement by the servient landowner and its lessee. Judgment limiting use of the easement is reversed and final judgment entered for the landowner and the lessee. Because the trial court failed to address the request for an injunction prohibiting a mining company's interference with the use of the easement, judgment in a second suit is reversed and the case remanded.

972272 Kelly v. Carrico 09/18/1998 Because a nonsuit motion was made prior to submission of the case to the trial judge for consideration of dispositive motions, the grant of a second nonsuit was proper and the trial court judgment is affirmed.

972275 Mountain View Ptnrshp v. City of Clifton Forge 09/18/1998 A former city ordinance setting rates for refuse collection imposed a valid fee. Since the evidence supports the trial court's finding that reasonableness of the classifications under the ordinance was fairly debatable, the trial court correctly found the ordinance valid. The judgment is affirmed.

972283 Hanover County v. Bertozzi 09/18/1998 Because a developer failed to submit complete applications for subdivision of two sections before the effective date of a new zoning ordinance, judgment with respect to those sections is reversed. The judgment as to subdivision of other sections is reversed because the record is devoid of any evidence or factual findings, and the matter is remanded for an evidentiary hearing on whether disapproval of the applications for those sections was based on the ordinance, or was arbitrary or capricious.

972356 Ayers v. Mosby 09/18/1998 In this chancery suit, there was an effort to rescind a deed upon the grounds of mutual mistake of fact or coercion. The chancellor did not err in sustaining defendant's motion to strike the evidence following presentation of plaintiffs' case-in-chief during an ore tenus hearing, and that action is affirmed.

972378 Martin & Martin Inc. v. Bradley Enterprises 09/18/1998 The trial court correctly refused to permit the plaintiff to use parol evidence to explain a purported ambiguity in a contract, and the judgment is affirmed.

972382 Commonwealth v. Harley 09/18/1998 In a case where the Commonwealth appealed a judgment of the Court of Appeals which held that a defendant was entitled to a transcript of a pretrial hearing in a criminal case, the Commonwealth is not a party aggrieved within the meaning of Code § 17-116.08 since the lack of transcript was held to be harmless error, and the appeal is dismissed.

972401 Town of Rocky Mount v. Wenco of Danville 09/18/1998 Since a town neither agreed to provide nor actually provided sewer service to properties outside its boundaries, it was not "holding out" the availability of sewer services, and provision of any such service was thus a proprietary function to be administered within the sound judgment of the town. The judgment below is reversed and final judgment entered for the town.

972435 Scarbrow v. State Farm Mut. Auto. Ins. Co. 09/18/1998 A provision in an insurer's automobile insurance policy excluding coverage for medical expenses that are payable under a workers' compensation statute is valid and enforceable. Because such an exclusion does not conflict with Code § 38.2-2201, the judgment of the circuit court is affirmed.

972436 Dept. of Environmental Quality v. Wright 09/18/1998 The circuit court exceeded its statutory jurisdiction in awarding certain relief to an employee because the hearing officer's recommendation, while included within his written opinion, was not a "decision" within the meaning of the statute allowing implementation of a hearing officer's decision. Because the trial court erred, its decision is reversed, the award of attorney's fees to the employee is nullified, the bill of complaint is dismissed.

972543 Bill Greever Corp. v. Tazewell Bank 09/18/1998 The trial court correctly found that liability claims by an entity that was reorganized under Chapter 11 of the Bankruptcy Code against a former creditor are barred by the doctrine of res judicata. That judgment is affirmed.

972621 Wagoner v. Benson 09/18/1998 The judgment of the trial court holding that the defendant school board was entitled to sovereign immunity from damages for injuries plaintiff sustained when she was hit by an automobile while crossing a road to board a school bus is reversed and the case remanded because the accident arose out of the "loading" of the school bus as defined in the applicable liability insurance policy and, therefore, the defendants were not entitled to sovereign immunity pursuant to Code § 22.1-194.

980074 Hilfiger v. Transamerica Occidental Life 09/18/1998 An insurance application initiated and signed by a son seeking a policy insuring the life of his father violated Code § 38.2-302 because the insured neither signed the application nor provided written consent thereto, and the policy is not enforceable. Knowledge by the insurer's agents of the incorrectness of the signature on the application does not estop the insurer from refusing to honor the policy. Certified questions of law are answered accordingly.

971364 Runion v. Helvestine 06/05/1998 Because the bill of complaint, fairly read, stated a case for an agreement requiring an elderly lady to make a devise of property to plaintiffs and to give them an option to purchase a second tract, the chancellor's ruling sustaining a demurrer is reversed.

971373 Mottesheard v. Castern 06/05/1998 The trial court did not err in a medical malpractice action in refusing to permit a party to offer evidence of his general reputation for truth and veracity. The judgment is affirmed.

971463 Gina Chin & Assoc. v. First Union Bank 06/05/1998 Under revised Code §§ 8.3A-404 and -405, in situations involving forgery of both the payee's indorsement and the signature of the drawer, the drawer is not precluded from asserting a cause of action against a depositary bank. The judgment of the trial court to the contrary is reversed, and the case remanded for further proceedings.

971616 Williams v. Williams 06/05/1998 There is no constitutional infirmity in the statute governing visitation rights of parents and grandparents, and since there is no allegation or proof in this case that denial of grandparent visitation would be detrimental to the child, the judgment of the Court of Appeals is affirmed as modified and the petition for visitation is dismissed.

971635 Tidewater Psychiatric Inst. v. City of Virginia Be 06/05/1998 In a taxpayer's appeal from a judgment upholding assessments of a private psychiatric hospital for the tax years 1990 through 1995, the judgment is affirmed because the taxpayer failed to meet its burden of showing that a city's choice of depreciated reproduction cost as the method for valuing a particular property was manifest error or in disregard of controlling evidence.

971730 Thomas v. Commonwealth 06/05/1998 Because General Assembly used of the word "offense" rather than "conviction" in the statutes dealing with operation of motor vehicles by habitual offenders, defendant's conviction for a second or subsequent offense committed before conviction upon the first indictment is affirmed.

971773 Treacy v. Smithfield Foods 06/05/1998 Because there was no justiciable controversy between the adverse parties and a declaratory judgment proceeding may not be maintained against a party with whom there is no controversy in order to resolve a controversy with one not a party to the proceeding, the trial court's decree is reversed and vacated, and final judgment is entered.

971821 Subaru of America Inc. v. Peters 06/05/1998 Since Virginia's so-called "Lemon Law" applies to purchasers of used vehicles during the manufacturer's warranty period, and the evidence in this case was sufficient to support the jury finding that the vehicle in question was not conformed to the warranty as required, the trial court did not err and the judgment is affirmed.

971833 Coleman v. Coleman 06/05/1998 Because a life tenant may have a vested remainder interest in property, though actual enjoyment is deferred, the trial court's judgment in a will construction proceeding is reversed and final judgment entered specifying that appellant owns a one-quarter interest in a decedent's residual estate.

971835 Massie v. Blue Cross/Blue Shield 06/05/1998 The tolling provision in Code § 8.01-229(E)(3), which allows a plaintiff to recommence a cause of action within six months from the date of an order of nonsuit or within the original period of limitation, whichever is longer, does not apply to a limitation period fixed by contract rather than by statute. Dismissal of an action arising from a health insurance contract is affirmed.

971876 Meyer v. Brown 06/05/1998 In this appeal of a judgment in favor of a plaintiff in a personal injury action, the trial court erred in overruling the defendant's objection to venue. That judgment is reversed and the case remanded.

971884 Lim v. Choi 06/05/1998 Because a written memorandum did not contain any language demonstrating an intent to convey an interest in real estate, it was not a valid deed. The judgment of the circuit court to the contrary is reversed.

971895 Sabre Construction v. County of Fairfax 06/05/1998 The trial court correctly held that the Public Procurement Act requires that a bidder who seeks to challenge a public body's determination that its bid was non-responsive institute legal action protesting the bid award within ten days after the public body's written decision on the bidder's protest. The judgment below is affirmed.

971899 Hundley v. Osbourne 06/05/1998 Because evidence about a personal injury plaintiff's future medical expenses and future lost wages was subject to differing interpretations, and thus was controverted, it was error for the trial court to set aside a jury verdict on the grounds of inadequate damages and to direct a new trial. The judgment is reversed, the jury verdict is reinstated, and final judgment entered.

971907 R.K. Chevrolet v. Bank of the Commonwealth 06/05/1998 The trial court properly awarded damages against an automobile dealership for breaching its agreement with a lender by incorrectly titling a motor vehicle. The judgment is affirmed.

971950 Advanced Marine Enterprises v. PRC 06/05/1998 The liability judgment of the chancellor in a suit under Code § 18.2-499 and -500 is affirmed. Certain interest and costs rulings are rejected, and the suit is remanded for entry of a decree.

971951 Toombs v. Hayes 06/05/1998 A jury's verdict for the exact amount of a personal injury plaintiff's special damages was inadequate as a matter of law. The trial court judgment upon the verdict for that amount is reversed, and the action remanded for a new trial on damages.

971952 Jones v. Eley 06/05/1998 In this paternity suit, the evidence is sufficient to support the trial court's finding by clear and convincing evidence that the petitioners, who were born out of wedlock, are the biological children of the deceased. The judgment is affirmed.

971959 Jaynes v. Becker 06/05/1998 The trial court correctly found that an automobile manufacturer's subsidiary is in the business of leasing within the meaning of Virginia Code § 38.2-2205 and that the limitation of liability coverage provided therein applies. The judgment is affirmed.

972060 Board of Zoning Appeals v. Caselin Systems Inc. 06/05/1998 Since a landowner did not acquire a vested property right to build and operate a planned medical waste incinerator before enactment of a zoning ordinance precluding such use, the trial court's decision to the contrary is reversed and final judgment is entered for the County Board of Zoning Appeals. 1

972103 Jeld-Wen Inc. v. Gamble 06/05/1998 As a matter of law, a window screen producer had no duty to manufacture the screen in question so that it would act as a childproof restraint. Judgment of the circuit court for the minor plaintiff in a products liability claim for personal injuries is reversed and final judgment is entered for the manufacturer.

972627 Austin v. Consolidation Coal Company 06/05/1998 Pursuant to Rule 5:42, a certified question from a United States District Court is answered in the negative because Virginia law would not recognize intentional or negligent interference with a prospective civil action against a third party by spoliation of evidence as an independent tort under the facts of this particular case.

972635 Edwards v. Government Employees Insurance Co. 06/05/1998 A certified question whether a person changing a flat tire was using the vehicle for purposes of Virginia Code § 38.2-2206(B) is answered in the affirmative. The injured person was not "occupying" the vehicle within the meaning of an applicable insurance policy provision and a certified question on that issue is answered in the negative.

972659 Va. Society for Human Life v. Caldwell 06/05/1998 Reviewing the Campaign Finance Disclosure Act in response to a certified question of law from the U.S. Court of Appeals for the Fourth Circuit, the term "for the purpose of influencing the outcome of an election," may be narrowly construed to limit application to groups that expressly advocate the election or defeat of a clearly identified candidate. The certified question is answered in the affirmative.

980010 Walton v. Commonwealth 06/05/1998 Upon review of three sentences of death entered upon convictions for capital murders, finding no reversible error in the record, and no reason to commute the death sentences, the judgment of the trial court is affirmed.

980437 Oxenham v. Martin 06/05/1998 Because a juvenile and domestic relations district court judge had jurisdiction and authority to appoint counsel for a minor charged with assaulting his mother, a writ of prohibition issued by the circuit court was in error. The judgment is reversed and the petition for writ of prohibition is dismissed.

970112 Fields v. Fields 04/17/1998 Since evidence from witnesses to the execution of a will, coupled with testimony of others present, establishes by a preponderance of evidence that the testator had the requisite testamentary capacity, a decree denying probate of that will is reversed and the case is remanded for admission of the will to probate.

970941 Chawla v. Burger Busters Inc. 04/17/1998 The trial court in a lease dispute erred in denying the defendant landlords a right to recover fees to the extent that they prevailed on aspects of the defense, and in imposing upon them the burden of proving that the tenant's fee request was unreasonable. The judgment is reversed and the case remanded.

971090 Diehl v. Butts 04/17/1998 Because it was error to allow a doctor to testify to a conversation with a now-deceased patient without the level of corroboration required by Code § 8.01-397, commonly referred to as the dead man's statute, the action is reversed and remanded.

971155 Tauber v. Commonwealth 04/17/1998 In this chancery suit concerning assets located in Virginia held by trustees in dissolution of a foreign charitable corporation, the judgment appealed from, an interlocutory decree adjudicating the principles of the cause, is affirmed and the cause remanded for further proceedings.

971257 State Farm Mutual Auto. Ins. Co. v. Bowers 04/17/1998 In litigation involving reimbursement for medical expenses incurred by an insured under a medical payments provision of an automobile insurance policy, the term "incurred" includes only those amounts that the insured would be legally obligated to pay. The judgment below is reversed.

971316 Jordan v. Shands 04/17/1998 Because a claim for false imprisonment is subject to the two- year statute of limitations applicable to actions for personal injuries, the trial court's dismissal of that claim in this action is reversed. The trial court correctly dismissed plaintiff's defamation claim under a one-year limitation period and correctly dismissed an emotional distress claim for lack of specificity. The judgment is reversed in part, and remanded.

971361 Panameno v. Commonwealth 04/17/1998 Since a juvenile defendant transferred by the juvenile and domestic relations district court to the circuit court for trial neither alleged that he was incompetent to stand trial nor offered any evidence to that effect, an explicit finding that the defendant was competent to stand trial was not required by Code § 16.1-269.1.

971416 Dalloul v. Agbey 04/17/1998 Under Code § 8.01-380 a plaintiff may not take a nonsuit with respect to claims or parties previously dismissed from the case, because these claims are no longer part of the "proceeding" contemplated by the statute. The trial court judgment is reversed and the case is remanded for entry of a final judgment.

971431 Commonwealth v. Jackson 04/17/1998 A person against whom judgment is deferred after a determination that the evidence is sufficient to support conviction is not "innocent" of the offense regardless of the plea entered, and hence an order of the trial court directing expungement of court records is reversed and final judgment entered for the Commonwealth.

971461 Richfood Inc. v. Jennings 04/17/1998 Because a release agreement applied only to claims that arose prior to its execution and because a subsidiary corporation is separate and distinct from its parent, the judgment of the circuit court applying a release agreement is reversed.

971472 Greenberg v. Commonwealth 04/17/1998 Because the Consumer Finance Act authorizes restitution only from a "lender", the trial court judgment imposing such an obligation on a majority shareholder of the lender under a theory of "active participation" in an illegal lending practice is reversed. The trial court's refusal to pierce the corporate veil is affirmed.$ib

971536 Polston v. Commonwealth 04/17/1998 Because the officers in this case searched in good faith pursuant to a warrant that was not defective, the trial court correctly denied a drug defendant's motion to suppress, and the ensuing guilty plea and sentence are affirmed.

971537 Commonwealth v. Jenkins 04/17/1998 The Court of Appeals' judgment overturning defendant's convictions of first degree murder and use of a firearm in the commission of murder is reversed because the evidence was sufficient to prove that the victim died from gunshot wounds inflicted by the defendant. The defendant's convictions are reinstated in accordance with the trial court's order. The defendant's convictions are reinstated in accordance with the trial court's order.

971587 Brown v. Moore 04/17/1998 In this case, the trial court did not err in ruling that a strip of real property was not a public way but was acquired by an adjoining landowner through adverse possession.

971645 Horton v. Commonwealth 04/17/1998 Because the evidence in these two cases proved that the defendants each penetrated the outer portion of the respective victim's genitalia, convictions are affirmed for forcible sodomy by engaging in cunnilingus in violation of Code § 18.2-67.1.

971647 Soering v. Deeds 04/17/1998 In this habeas corpus case, there is no reasonable probability that, had the evidence in question been disclosed to the defense, the result of the criminal trial would have been different. The mere possibility that an item of undisclosed information might have helped the defense or affected the outcome of the trial does not establish materiality in the constitutional sense.

971655 Board of Zoning Appeals v. Kahhal 04/17/1998 The circuit court correctly reversed the decision of a board of zoning appeals because the board applied erroneous principles of law, and the judgment of the circuit court is affirmed.

971720 Jackson v. Commonwealth 04/17/1998 No reversible error is found in the issues presented in this appeal of a capital murder conviction and death sentence along with five other related felony convictions. The sentence will not be commuted, and the judgment of the trial court is affirmed.

971746 City of Virginia Beach v. Giant Square Shopping Ct 04/17/1998 In this eminent domain case the trial court abused its discretion and committed reversible error in refusing to strike for cause a prospective commissioner who was a client of the attorney for the landowners. However, the trial court did not err in refusing a proposed instruction on a subject already adequately covered in granted instructions. The case is affirmed in part, reversed in part and remanded.

971818 Mason v. Commonwealth 04/17/1998 The trial court properly denied a motion for mistrial on the grounds that one of the jurors had such a limited command of English as to undermine the defendant's criminal trial.

971921 Shaw v. The Titan Corporation 04/17/1998 Upon two questions of Virginia Law certified by the United States Court of Appeals for the Fourth Circuit, the first question concerning adequacy of jury instructions given on the issue of causation in a common law action for wrongful termination of employment is answered in the negative. The second question involving the availability of punitive damages in such an action is answered in the affirmative.

972385 Lilly v. Commonwealth 04/17/1998 No reversible error is found in the judgment of the trial court in this appeal of a capital murder conviction and death sentence. Upon review of the death sentence pursuant to Code § 17-110.1, it will not be commuted, and the trial court's judgment is affirmed. See Record # 972385, Lily v. Commonwealth, dated November 5, 1999

970361 Bucholtz v. Computer Based Systems 02/27/1998 Since a lessee did not have valid debts to set off against a lease obligation, the trial court judgment denying setoff is affirmed, but the use of a panel of realtors to set a new rental rate under the lease was beyond the court's power, and judgment is entered continuing the prior rental rate.

970596 Rizzo v. Virginia Retirement System 02/27/1998 Since the ninety-day limitation in Code § 9-6.14:11(D), during which an agency is required to render a case decision, began to run when the agency representative held a fact-finding conference, after expiration of the statutory period a decision was deemed entered in favor of a disability claimant. The judgment of the Court of Appeals is reversed and the judgment of the circuit court is reinstated.

970628 Virginia Parole Board v. Wilkins 02/27/1998 Since the trial court's determination in a habeas corpus petition does not affect the lawfulness of the petitioner's immediate custody and detention, and release from immediate detention will not follow as a result of the trial court's order, the trial court did not have habeas corpus jurisdiction to grant the relief it ordered.

970642 Town of Madison v. Ford 02/27/1998 Because minutes recording action of a town council did not reflect which of the council members actually voted for adoption of a zoning ordinance, whether any member abstained, or if any member was absent when the vote was taken, the minutes do not comply with the constitutional requirement of Article VII, § 7 of the Constitution of Virginia, and accordingly the ordinance is null and void.

970867 Georgia-Pacific Corp. v. Darcy 02/27/1998 Code § 65.2-500 measures compensation for total disability and in affirming a ruling of the Workers' Compensation Commission finding that the claimant was entitled to compensation for permanent and total incapacity when the evidence showed that he suffers a permanent injury to both legs and that the combination of the injuries renders him unemployable the Court of Appeals did not err, and its decision is affirmed.

970880 Williams v. Harrison 02/27/1998 In a wrongful death action following an automobile accident, the trial court's ruling allowing submission of the defense of contributory negligence and its refusal to instruct the jury on the last clear chance doctrine are affirmed.

970905 Ragan v. Woodcroft Village Apartments 02/27/1998 Since the tenant in an unlawful detainer proceeding did not appeal from a final order of the general district court, the circuit court lacked jurisdiction to hear her appeal and for that reason, the circuit court's judgment is reversed and the general district court's order denying the tenant's motion for a new trial is reinstated.

970922 Hollander v. World Mission Church 02/27/1998 Since evidence sufficiently supported the required elements for a finding of adverse possession of a strip of land for the statutory period, the judgment of the trial court is reversed and the case is remanded for further proceedings to adjudicate the true boundary line between the properties of the parties and to record that judgment in the current deed book.

970924 Virginia Housing Dev. Auth. v. Fox Run Ltd. 02/27/1998 Because the chancellor erred in finding that prior to a foreclosure the public housing authority had not made an election to impose a prepayment fee authorized under the deed of trust on a multi-family housing project, and the trustee's advertisement of the sale substantially complied with the requirements of Code § 55-59.3, the trial court's judgment is reversed and final judgment is entered on appeal.

970938 Virginia Dept. of Taxation v. Blanks Oil Co. 02/27/1998 In this sales tax case, the trial court erroneously ruled that the proper situs for assessment of a local tax on sales of home heating fuel is the place of delivery rather than the place of the dealer's business, and that ruling is reversed.

970970 Lee v. Nationwide Mutual Insurance Co. 02/27/1998 In a case involving injuries sustained in an automobile accident which occurred when three young people were riding in a stolen car late at night, the trial court correctly determined that the defense of illegality barred a claim for damages by a 13-year- old boy, striking the plaintiff's evidence as a matter of law rather than submitting to the jury the issue of the boy's consent to the illegal act. That holding is affirmed.

971001 Cardinal Development Co. v. Stanley Constr. Co. 02/27/1998 In an action for breach of a construction contract, the developer's agreement to pay for additional work along with the construction company's actual performance of that work constitutes valuable consideration sufficient to modify the original contract. It cannot be said that the trial court's award of damages to the construction company is plainly wrong or without evidence to support it, and its judgment is affirmed.

971006 Hudson v. Lanier 02/27/1998 The trial court did not err in ruling that a plaintiff in a malicious prosecution action failed to prove the element of malice and that judgment is affirmed.

971020 Washington Metro. Transit Auth. v. Briggs 02/27/1998 The trial court properly held that the phrase "in accordance with the law of the applicable signatory" contained in an interstate compact does not incorporate the limitation on damages contained in the Virginia Tort Claims Act. Courts in Virginia must apply governing tort law to conduct of Washington Metropolitan Area Transit Authority personnel who commit torts while performing any proprietary function, and the trial court judgment is affirmed.

971039 Luebbers v. Fort Wayne Plastics 02/27/1998 Since materials incorporated into a swimming pool were ordinary building materials within the meaning of Code § 8.01-250, manufactured and installed into an improvement to real property more than five years before the plaintiff filed the present wrongful death suit, the statute of repose applies. The trial court judgment sustaining a plea in bar is affirmed.

971042 Twietmeyer v. City of Hampton 02/27/1998 Because the defendants in this proceeding failed to overcome the presumption of validity attaching to an interim city ordinance imposing a stormwater management fee on real property owners, the circuit court judgments in favor of the city are affirmed.

971060 Hubbard v. Henrico Ltd. Partnership 02/27/1998 The trial court correctly held that a tenant in an unlawful detainer action who pays overdue rent and related charges before the first court return date has invoked the rights afforded by Code § 55-243 to retain possession of the leased premises, and therefore is not entitled to invoke the rights afforded by that provision in another action in the same twelve-month period.

971074 Uninsured Employer's Fund v. Mounts 02/27/1998 Given the statutory mandate to insure and keep insured its liability, an employer with employees susceptible to pneumoconiosis must anticipate that claims may accrue in the future and must secure its liability for potential claims as required by § 65.2-801, even when its insurer has been declared insolvent. Here there was a failure to do so, and the Court of Appeals correctly found the Uninsured Employer's Fund is liable because the employer violated its statutory duty.

971075 State Farm Fire & Casualty Co. v. Mabry 02/27/1998 The trial court erred in determining that an insurer was estopped from litigating whether its insured's acts were negligent or intentional based on a judgment in a prior tort action in which the insurer provided the insured a defense. That decision is reversed and the case is remanded.

971083 USAA Casualty Ins. Co. v. Randolph 02/27/1998 In an insurance coverage dispute, the case was inappropriate for declaratory judgment proceedings because it did not involve a determination of rights, but only a disputed issue to be determined in future litigation between the parties, namely, whether an employee's injuries arose out of and in the course of employment. The trial court's decree is reversed and the bill of complaint for declaratory judgment is dismissed.

971117 City of Virginia Beach v. Bell 02/27/1998 Because a city's sand dune protection ordinance pre-dates a permit applicant's acquisition of the subject property, denial of a building permit does not constitute a compensable taking and the judgment of the circuit court is reversed.

971154 Hawkins v. Commonwealth 02/27/1998 In a Workers' Compensation case where the claimant separately sued third-party physicians for malpractice in treating her injury and settled that action, the trial court properly fixed the amount of an employer's lien for medical expenses and set a proportionate share of attorneys' fees and costs, but improperly undertook to apply the apportionment percentage to future compensation benefits, which was beyond the court's jurisdiction and was error. Final judgment is entered as modified.

971244 Stickley v. Stickley 02/27/1998 Because a will which directs all estate taxes and administration expenses to be paid out of the residuary estate treated all debts, costs and expenses in the same manner, estate taxes should not be apportioned upon depletion of the residuary estate but should be changed generally against the probate estate. The testator satisfied the requirements of the anti-apportionment statute and the judgment is affirmed.

971275 Shelby Insurance Co. v. Kozak 02/27/1998 The ruling of the trial court in a personal injury action granting a new trial limited to the issue of damages is reversed, judgment entered in the second trial is annulled, and the action is remanded for a new trial on all the issues.

971304 Yeagle v. Collegiate Times 02/27/1998 The trial court correctly dismissed a defamation action because as a matter of law the phrase at issue could not reasonably be interpreted as stating actual facts about the plaintiff, and that judgment is affirmed.

971369 Walton v. Commonwealth 02/27/1998 The evidence was sufficient to support defendant's conviction for possession of marijuana, and suspension of his driver's license pursuant to Code § 18.2-259.1 did not violate his constitutional right to substantive due process. The judgment of the Court of Appeals is affirmed.

971441 MNC Credit Corp. v. Sickels 02/27/1998 Enactment of Code § 8.01-26 did not plainly manifest an intent by the General Assembly to alter or change the common law rule which prohibits assignment of legal malpractice claims to third parties. The trial court properly sustained the attorneys' demurrer to a bill of complaint because the plaintiff failed to allege that the attorneys executed contracts with the lending institution with the intent of conferring a direct benefit upon the plaintiff.

961984 A.H. v. Rockingham Publishing Co. 01/09/1998 Since a former newspaper delivery boy failed to establish either that the newspaper publisher had a duty to warn him of the danger of criminal assault by a third party while delivering newspapers in early morning hours, or that the court erred in excluding evidence proffered by the plaintiff, the trial court judgment sustaining the defendants' motion to strike the evidence is affirmed.

962510 Jim Carpenter Company v. Potts 01/09/1998 The Chancellor properly considered parol evidence to limit the lien of a third deed of trust to the amount of the net proceeds of the sale of a lot encumbered by that deed of trust.

970002 Tull v. Brown 01/09/1998 Because a tape recording of certain conversations on a county's "911" system is an official record that is exempt from disclosure, the judgment of the circuit court is denying disclosure under the Virginia Freedom of Information Act is affirmed.

970016 Evans v. Smyth-Wythe Airport Commission 01/09/1998 A judgment which purported to divest an airport commission of its power of eminent domain was void ab initio.

970050 Po River Water and Sewer v. Indian Acres Club 01/09/1998 A property owners' association must pay a utility for services provided to common area facilities owned by the association, at rates fixed by the State Corporation Commission, since the association owns the common areas and received the services. Judgment of the trial court to the contrary is reversed.

970158 Carter v. County of Hanover 01/09/1998 In this suit between adjoining landowners on the issue of whether an easement from previous use had been established, the judgment of the chancellor is reversed and judgment is entered for the plaintiffs in accord with the report of the commissioner. Because the chancellor failed to grant temporary injunctive relief, the case will be remanded for a determination of damages to which the plaintiffs are entitled for the interruption in their use of the easement.

970160 Waldrop v. Commonwealth 01/09/1998 In this case concerning whether the statutory requirement that an election candidate report all campaign "contributions" applies to money received after the election to defray legal expenses associated with a recount proceeding, the Commonwealth failed to prove that the candidate wilfully and knowingly committed perjury. The judgment of the Court of Appeals is reversed and the indictments are dismissed.

970236 New Kent County v. Worley Aviation Inc. 01/09/1998 Because a lessee of county land satisfied the jurisdictional requirements under Code §§ 15.1-550 and 15.1-552 for an appeal from an action of a county board of supervisors to the circuit court, and was entitled, under the terms of the lease, to recover the fair market value of a capital improvement on the leased premises, the circuit courts judgment in favor of the lessee is affirmed.

970278 Lynch v. Commonwealth Transp. Comm'r 01/09/1998 In a case involving a landowner's liability to refund overpayment received in a condemnation case pursuant to a petition for payment prior to award, the landowner was the person who was paid within the meaning of the statute and order. The trial court correctly imposed liability upon the landowner for repayment of such excess.

970279 K & W Builders v. Merchants and Business Men's Ins 01/09/1998 Under the terms of a fire insurance policy, fraud or dishonest acts by certain insureds provided a proper basis for the insurance company to deny coverage to an innocent co-insured.

970297 Riddett v. VEPCO 01/09/1998 Summary judgment was correctly entered in a wrongful death action because the action became time barred when a nonsuited action was not refiled within the time prescribed by the wrongful death statute of limitations in effect when the cause of action accrued.

970343 Waynesboro Village v. BMC Properties 01/09/1998 The trial court properly held that a restrictive covenant is enforceable since it is unambiguous and was created to establish a general plan of development in which a lodging facility would be developed on one parcel while factory outlets, discount retail stores, gas stations and fast food facilities would be developed only on the remaining parcel. The judgment is affirmed.

970351 Spence v. Board of Zoning Appeals 01/09/1998 The trial court did not err in upholding a decision of a board of zoning appeals that authorized a variance from certain residential setback and parking space requirements based on the physical characteristics of the property because the developer followed the procedures to obtain a variance before attempting to use the property.

970414 Suffolk City School Board v. Conrad Brothers 01/09/1998 Since the trial court erred in finding a suit against a contractor barred by the statute of limitations, that judgment is reversed and the action remanded.

970423 Supinger v. Stakes 01/09/1998 Because the additur provisions of Code § 8.01-383.1(B), as written and as applied in this case, violate a plaintiff's right to a jury trial as guaranteed in the Constitution of Virginia art. I, § 11, the case is reversed and remanded.

970461 Norris v. Mitchell 01/09/1998 In real property sales litigation, since an order sustaining a demurrer and dismissing a prior action was not a final order, an essential element for application of the doctrine of res judicata, the trial court erred in sustaining the sellers' plea of res judicata. There was no error in the trial court's holding that the purchasers had not alleged a cause of action for fraud, the judgment of the trial

970477 Uninsured Employer's Fund v. Thrush 01/09/1998 Although the Workers' Compensation Act provides several permissible methods of computing an average weekly wage, none supports the wage determination made by the Commission in this case. The case is remanded to the Commission for consideration of the $42 the employee was to be paid for one day of work as a basis for computing the compensation payable to the widow and child.

970503 Henderson v. Henderson 01/09/1998 The trial court erred in rescinding a deed of gift conveying real property from a grandfather to his granddaughter because, by the grandfather's own testimony, the granddaughter told him that there would be tax on the transaction and, therefore, she was not guilty of constructive fraud. The judgment of the trial court is reversed and final judgment is entered in favor of the granddaughter.

970545 Empire Mgmt. and Dev. Co. v. Greenville Associates 01/09/1998 In a dispute over rental income guarantees in the sale of commercial real estate, the trial court erred in finding that a closing statement triggered the operation of the doctrine of merger superseding the guarantees, and these provisions were likewise not merged in a deed conveying one parcel. The case is remanded for further proceedings.

970582 Catron v. State Farm Mut. Auto. Ins. Co. 01/09/1998 In a case concerning the underinsurance obligations of a self-insurer and a commercial insurer under two statutes, the trial court erred in ruling that the motor vehicle law § 46.2-368(B) modified Code § 38.2- 2206(B), which controls coverage credit priorities. The commercial insurer is liable to the plaintiff for $25,000 if there is a settlement or judgment in the plaintiff's personal injury claim equal to or in excess of $125,000. The judgment below is reversed and final judgment entered in favor of the plaintiff.

970622 Orgain v. Butler 01/09/1998 In this appeal from a decree of sale entered in a partition suit, it is found that the chancellor abused his discretion in ordering the property sold at public auction, rather than through a real estate broker as recommended by the commissioner in chancery. Since the evidence does not support the chancellors conclusions, the chancellors decree is reversed, the commissioners report is confirmed, and the case is remanded for further proceedings.

970671 Allstate Insurance Company v. Charity 01/09/1998 Since a proof of loss submitted by an insured under a fire insurance policy without setting forth the dollar value of the property destroyed substantially complied with the terms and conditions of the policy, the judgment of the trial court is affirmed.

970727 Wood v. Henry County Public Schools 01/09/1998 A public school division which expelled a student who violated the school division's code of student conduct did not violate that student's due process rights guaranteed by the Fourteenth Amendment to the United States Constitution. While the student's pocketknife is not a firearm or a weapon of like kind, the school division did not abridge the student's due process rights, and the expulsion is upheld.

970789 Randall v. Liberty Mutual Insurance Co. 01/09/1998 A highway worker placing lane closure signs along the side of a highway qualified as an insured under Code § 38.2-2206 because he was using his employers vehicle when he was struck and killed. Accordingly, the decision of the trial court is reversed and the case remanded for further proceedings.

970833 Mariner's Museum v. City of Newport News 01/09/1998 In an action for relief from alleged erroneous assessment of local taxes, the trial court correctly held that a charitable corporation forfeits exemption from real estate taxes when it leases realty to another charitable corporation and the lease is "a source of revenue or profit" to the lessor under Code § 58.1-3603(A). The judgment is affirmed.

971010 Parker v. Commonwealth 01/09/1998 An encounter between a police officer and a pedestrian was a seizure within the meaning of the Fourth Amendment of the Constitution of the United States, and the police officer had reasonable, articulable suspicion to detain the defendant for investigative purposes. The drug conviction obtained using evidence of cocaine seized from the defendant is affirmed.

971153 Guill v. Commonwealth 01/09/1998 The trial court erred in admitting evidence of another crime committed by the defendant for the purpose of proving his intent to commit the crime charged. The Court of Appeals' judgment affirming that judgment is reversed and the case remanded to the Court with direction that the matter be remanded to the trial court for a new trial, if the Commonwealth be so advised, consistent with the principles set forth in this opinion.

962555 Turner v. Commonwealth 11/14/1997 The Court of Appeals properly held that although the trial court erred in failing to instruct the jury on voluntary manslaughter in addition to its instructions on first degree murder, second degree murder, self defense and irresistible impulse, but also properly held that the trial court's error was harmless and its judgment is affirmed.

970464 Hohman v. Commonwealth 11/14/1997 The trial court did not err when it imposed a jail sentence on the defendant who had not appeared for trial, had not entered a plea to the charge and had not waived his right to trial by jury, and there being no error in the judgment appealed from, that judgment is affirmed.

961854 County of Fairfax v. Century Concrete Services 10/31/1997 The trial court erred in imposing prejudgment and judgment interest against a county, contrary to the mandate of Code § 15.1-549, and that portion of the judgment is reversed.

961945 W.J. Schafer Associates v. Cordant Inc. 10/31/1997 In a contract dispute between entities involved in bidding for a government project, no enforceable contract existed for the sale of certain technological devices to the plaintiff and the alternative theory of promissory estoppel does not state a cognizable cause of action. Hence the judgment of the trial court is reversed and final judgment entered in favor of both defendants.

961978 Ridgwell v. Brasco Bay Corp. 10/31/1997 The trial court correctly ordered certain landowners to remove a gate across an easement, since they have not yet complied with the statutory requirements of Code § 33.1-202 for erection of a gate. However, the owner of the right of way did not present sufficient evidence from which the trial court could determine whether it has a right to build a roadway to accommodate subdivision of its property.

961985 Bowers v. Sprouse 10/31/1997 A plaintiff who received a jury verdict for the exact amount of her medical and other special damages is entitled to a new trial because the verdict was inadequate as a matter of law. Since liability was conceded, the case is remanded for a new trial on the issue of damages.

962068 Fairfax Hospital v. Curtis 10/31/1997 The trial court correctly held that the plaintiff had a medical malpractice cause of action for negligence in voluntarily disseminating confidential information in her medical records, which was not authorized by a proper finding that her medical condition was in issue in pending litigation, and that judgment is affirmed.

962082 Wood v. Board of Supervisors 10/31/1997 In a case involving an erroneous payment of real estate taxes on a parcel of land, because an inadvertent payment is a mistake of fact which may be corrected even if the mistake was unilateral, the lower court's judgment holding that the county board of supervisors can correct the mistake by refunding the erroneous payment to the payor or by crediting the payor's other tax accounts is affirmed.

962090 Caprio v. Commonwealth 10/31/1997 The Court of Appeals of Virginia erred in upholding the trial court's ruling denying the appellant's motion for a continuance and allowing the Commonwealth to introduce the testimony of an expert concerning an extrapolation of blood profile frequency based upon analysis of a series of DNA profiles and reports, proffered the day before defendant's second trial. The conviction is annulled and the case remanded.

962261 Benjamin v. University Internal Med. Found. 10/31/1997 The trial court's rulings, finding a physician who served as medical director for an episodic care clinic to be protected by sovereign immunity from negligence liability in a medical malpractice case, and granting summary judgment on sovereign immunity grounds to a medical foundation with which she was affiliated, are affirmed.

962366 Curo v. Becker 10/31/1997 The circuit court erred in awarding a writ of habeas corpus to the petitioner for denial of effective assistance of counsel. Because the petitioner did not show that her attorney's representation was deficient, the judgment of the circuit court is reversed and the petition is dismissed.

962519 Maximus Inc. v. Lockheed Inf. Mgmt. Systems 10/31/1997 Because the trial court did not apply the correct elements in determining whether a plaintiff had established a prima facie case of tortious interference with contract expectancy, the judgment of the trial court is reversed and the case remanded for further proceedings.

962533 Bd. of Supervisors v. FCS Bldg. Association 10/31/1997 The trial court erred in awarding interest on a refund of erroneously assessed real estate taxes when the local ordinance authorizing the payment of such interest was repealed prior to entry of the final judgment order. The award of interest is reversed, and final judgment entered as modified.

962535 Virginia School of the Arts v. Eichelbaum 10/31/1997 The trial court correctly held that the terms of a so-called "matching grant" or "challenge grant" are not enforceable when there has been a failure to meet the conditions of the grant.

962538 Shuttleworth Ruloff and Giordano v. Nutter 10/31/1997 Because a disputed employment contract addendum between a law firm and a lawyer does not violate the Virginia Code of Professional Responsibility, summary judgment granted to the lawyer in an action to recover lease payments personally guaranteed by him is reversed, and the case is remanded for further proceedings.

962544 Ward's Equipment v. New Holland North America 10/31/1997 In this controversy arising from a written contract between a manufacturer and a dealer in farm equipment, the trial court correctly held that a party suing for damages may not allege facts that essentially reform the contract and thereby withstand demurrer.

962561 Augusta County Sheriff's Dept. v. Overbey 10/31/1997 The Court of Appeals erred in upholding the ruling of the Workers' Compensation Commission that an employer who did not exclude every possibility of job-related causes had not rebutted the presumption in Code § 65.2-402(B) that a deputy sheriff's heart disease was an occupational disease by offering a preponderance of competent evidence to the contrary. That judgment is reversed and the claimant's petition dismissed.

962572 Buonocore v. C&P Telephone Co. 10/31/1997 The trial court correctly entered summary judgment finding that an employee has no cause of action under Code § 19.2-59 against his corporate employer and its agent who conducted a warrantless search of the employee's home.

962600 Trisvan v. Agway Insurance Company 10/31/1997 In enacting Code § 38.2-2206(B), the General Assembly did not intend that the uninsured/underinsured motorist coverage in the tortfeasor's automobile liability insurance policy would be afforded to the tortfeasor's passengers in a single vehicle accident when determining the extent to which the tortfeasor's motor vehicle is underinsured. Accordingly, the judgment of the trial court correctly fixing the insurer's total liability to the insured passenger is affirmed.

962627 Falls Church Construction Co. v. Laidler 10/31/1997 The Court of Appeals properly upheld the Workers' Compensation Commission's decision that an employee's intentional concealment of a material fact on an employment application did not bar his receipt of benefits for a work-related injury, and that decision is affirmed.

970053 Virginia High School League v. J.J. Kelly H.S. 10/31/1997 A nonstock corporation organized to foster athletic competitions between Virginia high schools violated its own bylaws in reclassifying a school based on enrollment figures for a date other than the one fixed in the bylaws, and such action was therefore invalid. The trial

970069 Atkisson v. Wexford Associates 10/31/1997 A prior judgment entered without the participation of necessary parties is void and not separable from the disposition affecting other parties, and hence it was error to enforce that judgment against other defendants. The decree in a second trial is affirmed and final judgment entered.

970223 Citizens Bank & Trust v. Crewe Factory Sales 10/31/1997 Since voluntary payment of a judgment deprives the payor of the right of appeal, the appeal in this case was improvidently awarded and is dismissed.

970243 Warner v. The Money Store Investment Corp. 10/31/1997 The trial court correctly decided that a trustee under a deed of trust owes no fiduciary duty to the guarantors of the debt secured by the deed of trust and that judgment is affirmed.

970385 Lawyers Title Insurance Co. v. Norwest Corp. 10/31/1997 The State Corporation Commission did not err in ruling that it had no authority to regulate a product offered to consumers in the title insurance market. The dispositive question is whether the product involves a shifting of the risk of title defects, thus constituting insurance subject to Commission regulation. The Commission's final order is affirmed.

970437 Recalde v. ITT Hartford 10/31/1997 A certified question inquiring whether, for purposes of deciding the scope of coverage of a commercial insurance policy for injury or property damage arising from use of a nonowned motor vehicle, a sole proprietorship named as the insured is a legal entity separate and distinct from the individual owner doing business in that name, is answered in the negative.

970703 Doss v. Jamco Inc. 10/31/1997 A certified question of law, inquiring whether Va. Code § 2.1-725(D) prohibits a common law cause of action based upon the public policies reflected in the Virginia Human Rights Act, is answered in the affirmative.

961426 Browning-Ferris Industries v. Residents Involved 09/12/1997 Code § 10.1-1408.1(D) requires the Director of the Department of Environmental Quality, before issuing a permit for a new solid waste management facility, to make an explicit determination on the face of the record that the proposed facility poses no substantial danger to human health or the environment. The case is remanded to the Director to consider the existing record and make the required determination before issuing a new permit.

961459 Jenkins v. Commonwealth 09/12/1997 Because admission of certain expert testimony against the accused in a criminal case constituted reversible error, the judgment of the Court of Appeals is reversed, the conviction is annulled, and the case is remanded to the Court of Appeals with direction to remand it to the trial court for further proceedings consistent with this opinion.

961577 Hise v. BARC Electric Cooperative 09/12/1997 The trial court correctly held that a power company's prescriptive right of way was 30 feet wide and correctly concluded that a power company's express power to improve and make additions to its facilities as acquired in the eminent domain proceedings sufficiently supports the inference of apportionability, such that the power company could permit television and cable companies to attach lines to the new poles, and that decision is affirmed.

961579 Angstadt v. Atlantic Mutual Ins. Co 09/12/1997 The chancellor did not err in entering judgment, contrary to a jury verdict, that an individual's willful failure to cooperate with an insurer relieved the insurer of any duty under its policy with him and his employer to indemnify either of them for a two million dollar judgment entered in favor of a tort claimant.

961603 Orchard Glen East v. Prince William County 09/12/1997 The trial court properly decided that a condominium development in which no individual units were sold or offered for sale by the developer was properly assessed for real estate taxes based on the value of the individual units as separate parcels rather than on the value of the development as a single parcel actually used as an apartment complex, and that judgment is affirmed.

961606 Morrison-Knudsen Company v. Wingate 09/12/1997 The plaintiff failed to establish that the use by the defendants of smooth-finished concrete on a stair landing constituted a defect or a hazardous, unsafe or unfit condition which the defendants were bound to repair. Therefore the jury verdict in a slip and fall case finding that the defendants breached their duty of ordinary care is set aside because it is not supported by evidence and could only have been reached through speculation and conjecture. Final judgment is entered in favor of the defendants.

961633 Moore v. Commonwealth 09/12/1997 In this case, there was no medical or forensic evidence of the alleged fact that the defendant committed the rape of a young child and the victim's testimony stands alone; because of the nature of the victim's testimony there was a failure of proof of penetration as a matter of law and the Court of Appeals erred in ruling to the contrary and that ruling is reversed. The indictment is dismissed.

961718 Nunnally v. Artis 09/12/1997 Dismissal of an action for wrongful conception on statute of limitation grounds is reversed and Scarpa v. Melzig, 237 Va. 509, 379 S.E.2d 307 (1989), is overruled because the injury triggering the running of the limitations period for wrongful conception is the later pregnancy rather than the failed sterilization.

961739 School Bd. of the City of Norfolk v. Wescott 09/12/1997 In the termination of an employee for excessive absenteeism, the action of the school was not arbitrary or capricious and was supported by substantial evidence; therefore, the judgment of the trial court ordering that the school board pay the former employee all back pay, allowances and benefits for the remainder of the school year is reversed and judgment is entered for the school board.

961752 Smith v. Settle 09/12/1997 In consolidated personal injury cases resulting from an accident between a vehicle which was proceeding through a green light and an ambulance, the plaintiffs' assignments of cross error are rejected and the judgment of the trial court enforcing a "high- low" payment agreement between the parties is reversed. Final

961778 Chesapeake Builders Inc. v. Lee 09/12/1997 Since the record supports the finding that the landowners in a sales transaction did not act in bad faith, the buyer was not entitled to contract damages for its alleged loss of bargain. The chancellor correctly sustained the commissioner's refusal to set an abatement which would have deprived the landowners of more than two-thirds the fair market value of their lot. Final judgment is entered in favor of the buyer for specific performance of the contract.

961781 Afify v. Simmons 09/12/1997 Under prior statutes, after the defendant elected to remove a case from general district court to circuit court, it was error to permit the plaintiffs to amend their original claims to increase the damages sought to amounts in excess of the civil jurisdictional limits of the general district court and, because the circuit court was without jurisdiction to consider the amended claims, the trial and verdict on that pleading are nullities. The judgment is vacated and the case remanded.

961969 State Farm Mut. Auto. Ins. Co. v. Kendrick 09/12/1997 In a personal injury case, evidence concerning the anticipated cost of possible future surgery and lost wages related thereto was too speculative to allow the jury to consider damages for future surgery expenses and lost wages, and should not have been admitted. The plaintiff, a doctor, was competent to express an opinion about his future medical needs and should have been allowed to testify even though he was a party to the action. The trial court judgment is reversed and the case remanded.

962102 Davis v. Tazewell Place Associates 09/12/1997 In a case involving a real estate sale, the express warranty contained in the contract of sale between the plaintiffs and defendant is enforceable and did not merge with the deed at closing. The judgment of the trial court is reversed and the case remanded for further proceedings.

962149 Parker v. Putney 09/12/1997 In an equity suit in which the plaintiffs, whose property fronts on a navigable river, sought declaration of an implied easement by necessity across land of the defendant, the trial court erred in finding that privately owned boat landings along the river afford plaintiffs reasonable access to their property via the river and that this access is sufficient to deny the plaintiffs a right of way of necessity. The judgment of the trial court is reversed and final judgment will be entered affording the plaintiffs an easement.

962214 Haislip v. Southern Heritage Insurance Co. 09/12/1997 Code § 38.2-2204 requires an insurer to provide a maximum of $25,000 in coverage for any claim that the plaintiff may have against a named insured allegedly guilty of negligent entrustment of a vehicle, even though the insurer already had paid the policy limits on behalf of a permissive user who negligently operated the insured vehicle. The judgment of the trial court declaring that the coverage available to the plaintiff had been exhausted by the payment of his claim against the driver is reversed.

962217 Willis v. Magetta 09/12/1997 In a chancery suit, the trial court properly determined that a prescriptive easement had been established by the evidence, and that the easement had been used during the prescriptive period for agricultural, logging, recreational, and residential purposes. That judgment is affirmed. However, the trial court erred in fixing the width of the easement at 30 feet since there was no evidence that during the prescriptive period the width was greater than 20 feet. The decree is modified to that extent and final judgment entered.

962235 Helmick v. Town of Warrenton 09/12/1997 The trial court properly sustained a demurrer to an amended bill of complaint by landowners challenging the refusal of a town to consent to vacation of a subdivision plat, and that ruling is affirmed.

962264 Sloan v. Johnson 09/12/1997 Since the complainants in a declaratory judgment suit seeking enforcement of restrictive covenants limiting the number of dwellings on a single lot demonstrated common law covenants that run with the land and there is evidence that there was privity between the original grantor and the complainants' predecessors in interest, the judgment of the trial court is reversed and a declaration is entered that the restrictive covenants are enforceable.

962266 Commonwealth Transp. Comm'r v. Chadwell 09/12/1997 In an eminent domain proceeding, the trial court erred in refusing to strike for cause a prospective commissioner based on his ownership of property directly across the highway from the condemnee's land. Judgment confirming the award is reversed and the case remanded for a new trial.

962267 Archambault v. Roller 09/12/1997 Code § 8.10-399 generally prohibits a lawyer from obtaining information from a physician in connection with pending or threatened litigation without the consent of the physician's patient except through discovery and, in this case, the lawyer did not violate this statutory prohibition. The trial court's judgment is reversed and final judgment is entered in favor of the lawyer.

962304 Ewell v. Commonwealth 09/12/1997 Since the off-duty officer who stopped the defendant did not have a reasonable suspicion that she may have been engaged in trespassing or any other criminal activity, the defendant was seized in violation of her Fourth Amendment rights and, therefore, the trial court erred in failing to suppress the evidence of drug possession obtained as a result of the seizure and the Court of Appeals erred in affirming the trial court's judgment. Final judgment vacates the conviction and dismisses the indictment.

962341 Jury v. Giant of Maryland 09/12/1997 Code § 18.2-105 does not provide a merchant absolute immunity from civil liability for assault and battery, negligence, and intentional infliction of emotional distress alleged to have occurred during the detention of a customer suspected of shoplifting. Dismissal of plaintiff's motion for judgment is reversed and the case is remanded for further proceedings, including consideration of whether the alleged torts were committed in a willful, wanton, or otherwise unreasonable or excessive manner.

962398 Branham v. Branham 09/12/1997 The trial court erred in overruling the report of a special commissioner in chancery recommending that a deed be set aside based upon the commissioner's finding that clear and convincing evidence established that the deed had been procured by fraud. The decision of the trial court is reversed, the deed is declared void, and the matter remanded with directions that a special commissioner be appointed to effect transfer of the property back to the original owner.

962461 O'Brien v. Everfast 09/12/1997 In this personal injury action the absence of evidence as to what caused a bolt of fabric to fall on the plaintiff's foot did not preclude the jury from finding that the injury resulted from the defendant's negligence in permitting a dangerous condition to exist. Since the factual issues were properly submitted to the jury, the judgment of the trial court setting aside the verdict is reversed. The jury's verdict is reinstated and final judgment is entered for the plaintiff.

962474 Pavlick v. Pavlick 09/12/1997 The trial court correctly sustained a plea of intra-family immunity with respect to the defendant's alleged negligence in the death of his infant son, but the trial court failed to recognize an exception to the rule of intra-family immunity that would have allowed recovery against the defendant for the death of his unemancipated child as a result of his allegedly intentional act, and that portion of the case is reversed and remanded for further proceedings.

962512 Foster-Zahid v. Commonwealth 09/12/1997 The Court of Appeals did not err in ruling that the trial court had jurisdiction to try the appellant for violation of Code § 18.2-49.1(A) or that Fairfax County was the proper venue in which to prosecute the appellant for that violation, and that judgment is affirmed.

970131 Beard Plumbing & Heating v. Thompson Plastics 09/12/1997 A certified question of Virginia law from the United States Court of Appeals for the Fourth Circuit: "Is privity required to recover economic loss under Va. Code § 8.2-715(2) due to the breach of the implied warranty of merchantability, notwithstanding the language of Va. Code § 8.2-318?" is answered in the affirmative.

960534 Williams v. Warden 06/06/1997 Under the 1995 amendment to Code § 8.01-654, whether a prisoner held under a death sentence is entitled to habeas relief is a mixed question of law and fact. Here there is no doubt that there was mitigation evidence not presented at the criminal trial, but the crucial inquiry is whether the circuit court correctly applied the law to the established facts. Since it did not, the petition for a writ of habeas corpus, as amended, is denied.

961176 Horton v. Horton 06/06/1997 A party's failure to perform a contractual obligation was a material breach of the contract and barred recovery for the other party's nonperformance, and the trial court's judgment is affirmed.

961236 Austin v. Shoney's Inc. 06/06/1997 The trial court erred in sustaining the defendant's renewed motion to strike the plaintiff's evidence in a restaurant slip and fall case after the jury was unable to return a verdict. The testimony of plaintiff's witnesses was sufficient to permit a jury to find that the decedent's fall was caused by the condition of a restaurant floor as the result of improper cleaning methods.

961294 James v. Commonwealth 06/06/1997 The credibility of witnesses and the weight given to their testimony are questions exclusively for the jury and the settled law of Virginia simply does not permit a defendant to ask a witness to opine whether another witness is "capable of lying" at trial, but requires the finder of fact to determine the veracity of the witness.

961409 Bryan v. Burt 06/06/1997 In a wrongful death action alleging medical malpractice against both an emergency room physician and a family practitioner, the trial court did not err in striking the evidence at the close of plaintiff's case- in-chief, and that judgment is affirmed.

961410 Westmoreland-LG&E Partners v. Virginia Power 06/06/1997 The trial court's action in excluding evidence of trade custom and usage is affirmed. However, for error in excluding parol evidence concerning the parties' intent and understanding with respect to terms in a sales contract for electrical power, the judgment of the trial court is reversed and the case is remanded for further proceedings.

961500 Moore v. Virginia International Terminals 06/06/1997 The Court of Appeals did not err in ruling that the Virginia Workers' Compensation Act (Code § 65.2-520) grants an employer a "dollar-for- dollar," as opposed to a "week-for-week," credit for benefits paid to an injured employee under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., which exceeded the employer's obligations under the Virginia Workers' Compensation Act.

961582 Parker v. Commonwealth 06/06/1997 In this grand larceny prosecution, since the Commonwealth did not prove the value of the item stolen, the evidence was inadequate as a matter of law to establish the element of value beyond a reasonable doubt. The judgment of the Court of Appeals is reversed and the judgment of conviction is vacated. The case is remanded for a new trial on the charge of petit larceny.

961719 Poliquin v. Daniels 06/06/1997 The trial court did not err in qualifying an out-of-state physician as an expert witness, submitting proximate cause issues to a jury, and allowing testimony of an expert on the issue of life expectancy, nor did it err in refusing certain jury instructions tendered by the defendants since the legal principles set forth in those instructions were adequately and objectively covered in other, granted instructions. The trial court's judgment in this medical malpractice case is affirmed.

961736 Coleman v. Hogan 06/06/1997 The trial court erred in holding that a potential juror who had been subject to an unconstitutionally exercised peremptory strike and then reseated might be stricken from the panel of prospective jurors a second time by the same party.

961738 Town of Jonesville v. Powell Valley Village L.P. 06/06/1997 The trial court correctly held that a town's zoning ordinance, while a comprehensive zoning regulation, does not contain a number of elements required to be included in a comprehensive plan and did not constitute a comprehensive plan under Code § 15.1-446.1. Therefore, since such a plan is required prior to adoption of a zoning ordinance, the town's zoning ordinance was void ab initio. The trial court did not err in issuing a writ of mandamus requiring the town to issue a zoning permit in this case.

961766 Smith v. Smith 06/06/1997 The trial court did not err in granting the defendant's motion to strike the plaintiff's evidence in a case claiming alleged conversion of funds under Code § 31-38, which is a part of the Virginia Uniform Transfers to Minors Act, and that judgment is affirmed.

961815 Long v. Abbruzzetti 06/06/1997 Since the record fails to support the trial court's judgment that a plaintiff who recovered consequential damages for breach of contract presented sufficient evidence that those damages were within the contemplation of the parties at the time the contract was made, that judgment is reversed and final judgment rendered in favor of the defendant.

961830 Bell Atlantic v. Arlington County 06/06/1997 In an inverse condemnation proceeding the trial court erred in sustaining the defendant county's plea in bar on the ground of sovereign immunity and in sustaining the defendant county's demurrer on the ground that the plaintiff's motion for judgment fails to state a claim for damages under Article I, Section 11 of the Constitution of Virginia. The trial court's judgment is reversed and the case is remanded for further proceedings.

961831 McDonald v. Hampton Training School for Nurses 06/06/1997 The facts and inferences in this medical malpractice action, taken in the light most favorable to the plaintiff, do not lead to a single possible conclusion on the issue of whether a particular physician was an employee or an independent contractor and the issue should have been left to the jury for determination. Therefore, the trial court's order granting the hospital's motion to strike the plaintiff's evidence and dismissing the case is reversed and the case is remanded.

961851 Griffin v. The Spacemaker Group 06/06/1997 Since the evidence the plaintiff's experts would have presented if permitted was sufficient to raise a jury question whether the defendant was negligent in not discovering and repairing a defective condition in a forklift, the trial court's decision to strike the plaintiff's evidence was error and is reversed.

961857 Butler v. Hayes 06/06/1997 Since the buyers of land involved in this case were fully aware of a title defect when they made improvements on the property, the trial court correctly ruled that they are not entitled to an allowance for the improvements made to the land they had acquired as the result of a forged deed and that judgment is affirmed.

961873 Tyler v. Commonwealth 06/06/1997 Fingerprint evidence adduced in this statutory burglary and grand larceny case, coupled with attendant circumstances, was sufficient to support the trial judge's finding of fact that the defendant was the criminal agent. The judgment of the Court of Appeals upholding the

961958 Pickett v. Spain 06/06/1997 The doctrine of election does not prevent a beneficiary named in a will from asserting a right of contribution arising from her payment of debts she and the testator owed at the time of the testator's death, and the trial court judgment is affirmed.

961996 Greenway v. Commonwealth 06/06/1997 Since the error of the trial court in admitting opinion testimony of a 12-year-old witness concerning the speed of a vehicle immediately prior to an accident was harmless, and the evidence was sufficient to sustain a finding of criminal negligence necessary to support the defendant's convictions for involuntary manslaughter, the judgment of the Court of Appeals refusing the defendant's petition for appeal is affirmed.

962021 Town of Rocky Mount v. Southside Investors 06/06/1997 The developer's failure to obtain site plan approval for new construction on a tract of land before the property was rezoned defeated its vested rights claim, and the trial court erred in ruling otherwise.

962531 Bradick v. Grumman Data Systems Corp. 06/06/1997 The certified question "Does the common law of Virginia provide a wrongful discharge remedy to an employee of an employer covered by the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., where the employee is discharged on account of his disability or the employer's perception of his disability?" is answered in the affirmative.

962601 Crown Central Petroleum Corp. v. Hill 06/06/1997 In response to a certified question from the United States District Court for the Eastern District of Virginia, it is concluded that Code § 59.1-21.16:2(A) regulates interbrand competition because it prohibits a refiner from operating a retail outlets unless that outlet is located at least one and one-half miles from a retail outlet operated by a franchised petroleum dealer, including franchised dealers that are not franchisees of the refiner.

960261 Hawthorn v. City of Richmond 04/18/1997 The trial court properly sustained the demurrer of a city to a motion for judgment alleging negligent failure to provide a guardrail or warning on a path in a public park and alleging nuisance liability based on that negligence for a resulting injury. Code § 15.1-291 created an immunity for municipalities so far as recreational facilities are concerned, barring negligence and nuisance liability, and abrogating the common law to that extent.

960754 Commercial Business Systems v. Halifax Corp. 04/18/1997 Since the plaintiff company established merely a subjective belief or hope that the business relationship between it and another company would continue and merely the possibility that future economic benefit would accrue to it, the trial court did not err in setting aside a verdict in favor of the plaintiff for its failure to prove the cause of action. The judgment from which appeal was awarded is affirmed.

960794 Perk v. Vector Resources Group 04/18/1997 Since the trial court correctly sustained the defendants' demurrers to some of the counts in the plaintiff's motion for judgment, but erred in sustaining the demurrer to another count, the case is affirmed in part, reversed in part, and remanded.

960876 St. George v. Pariser 04/18/1997 Since there is nothing in the record in a medical malpractice case for misdiagnosis of a malignant mole fixing the date of injury to the plaintiff more than two years prior to filing of the motion for judgment, the defendant's statute of limitations plea was not supported by evidence and the trial court erred in denying a motion to strike the plea as a matter of law. The judgment is reversed and the case remanded for entry of an order denying the defendant's plea and for further proceedings.

961079 Blair Construction v. Weatherford 04/18/1997 Since the record does not contain clear and convincing evidence that would permit a jury to find that the defendant subcontractor committed acts of constructive fraud in submitting a bid to the plaintiff construction company, the trial court's action granting the defendant's motion to strike a claim for constructive fraud is affirmed.

961290 Mathy v. Virginia Dept. of Taxation 04/18/1997 Since the business tax imposed by the District of Columbia on plaintiffs is illegal and unauthorized under the Home Rule Act, the plaintiffs are not entitled to credit for such payments under Virginia Code § 58.1-332(A), based on the plain language of the statute. Here the trial court has reached the correct result, but has given the wrong reason, and the outcome will be sustained on the grounds assigned in this opinion.

961318 Harrison & Bates Inc. v. Featherstone Assoc. 04/18/1997 The Commercial Real Estate Broker's Lien Act does not permit a commercial real estate broker to record and enforce a lien against rents on a property after the property has been transferred to a

961324 Moore & Moore Gen. Contr. v. Basepoint Inc. 04/18/1997 In this dispute concerning a buyer's acceptance of nonconforming goods, the trial court correctly concluded that the Uniform Commercial Code controlled, that acceptance of the nonconforming goods by the buyer could not be revoked, and that the buyer was not entitled to recover from the seller the cost of substitute goods.

961377 Commonwealth v. Walker 04/18/1997 A circuit court did not have jurisdiction to entertain an appeal from the judgment of a juvenile and domestic relations district court when the appealing party failed to post an appeal bond and, accordingly, the judgment of the Court of Appeals is reversed and the district court's judgment which became final when the defendant failed to perfect his appeal is reinstated.

961529 Straessle v. Air Line Pilots Ass'n 04/18/1997 Applying Federal Rule of Civil Procedure 54(b), a federal district court order which dismissed the plaintiff's claim against the defendant is not a final judgment. Full faith and credit will not be extended to a federal district court's order which is not final and which would not have any res judicata effect in federal proceedings. The trial court judgment is reversed and the case remanded.

961531 Dickerson v. Fatehi 04/18/1997 If the facts alleged and admitted by a doctor in a medical malpractice case were presented to a jury, the jurors, absent expert testimony, reasonably could determine, by calling upon their common knowledge and experience, whether the doctor was negligent and whether his negligence was a proximate cause of the plaintiff's injuries, and thus the trial court erred in ruling that expert testimony was necessary to establish the standard of care. The trial court's judgment for the defendant is reversed and the case remanded.

961774 Harris v. Harman 04/18/1997 The trial court properly submitted to a jury the issue whether actions of a "tailgating" driver were a proximate cause of an accident and did not err in refusing to instruct the jury on willful and wanton negligence, and thus the part of the judgment awarding the passenger $25,000 is affirmed. Because the driver of the first vehicle was contributorially negligent as a matter of law, the part of the judgment awarding him $50,000 damages is reversed and final judgment entered in favor of the following driver on that issue.

962431 Beck v. Commonwealth 04/18/1997 After review of capital murder convictions and death sentences imposed upon the defendant, it is concluded that the trial court did not err in receiving "victim impact evidence" from persons other than family members of the victims. Defendant's death sentences are not excessive or disproportionate to penalties generally imposed by other sentencing bodies in the Commonwealth for similar crimes, and the sentences are affirmed.

960327 Adkins v. Dixon 02/28/1997 In this legal malpractice case the former court-appointed attorney for the plaintiff was not entitled to sovereign immunity and the trial court erred in sustaining the plea of immunity. However, the plaintiff had the burden of alleging and proving as a part of his cause of action that he was innocent and that he obtained post-conviction relief and, therefore, the trial court should have sustained the

960395 Schwartz v. Brownlee 02/28/1997 Code § 8.10-581.15 makes the medical malpractice recovery cap applicable only to licensed health care providers, thereby providing in medical malpractice cases an exception to the rule that the liabilities of principals and agents are coterminous. The holding of the trial court limiting the verdict against the doctor to one million dollars, but not so limiting that a non-health care provider professional corporation is affirmed.

960944 Adams Outdoor Advertising v. Long 02/28/1997 In a dispute between a landowner and a tenant who leased an advertising billboard on the land, the trial court correctly found that the landowner owned the billboard, but erred in awarding the landowner damages. The judgment is affirmed in part and reversed in part.

961029 Lee v. Commonwealth of Virginia 02/28/1997 The evidence supports the trial court's finding that the defendant rather than his sister is the true owner of a vehicle and the Commonwealth established, by a preponderance of the evidence, a substantial connection between the defendant's drug activity and the vehicle and large amounts of cash. Accordingly, the trial court properly upheld the civil action for forfeiture initiated pursuant to Code § 18.2-249.

961032 Young v. Lambert 02/28/1997 The evidence in a wrongful death case failed to show that the plaintiffs' deceased assumed the risk of riding with the defendant's deceased in his intoxicated state and absent evidence that she knew that the driver's ability to drive was likely to be impaired due to his consumption of alcohol, the record was insufficient to support a jury instruction on assumption of the risk.

961088 Lake v. Northern Virginia Women's Medical Ctr. 02/28/1997 The plaintiff should be permitted to amend a motion for judgment at the threshold of trial to substitute the proper defendant where the error in the original pleading was known to the defendants and actions were taken by them to mislead the plaintiff as to the identity of the corporate defendant. The trial court erred in not permitting the plaintiff to amend her motion for judgment. That judgment is reversed and the case remanded.

961095 Hill v. Brooks 02/28/1997 Since a deed of gift was clear and unequivocal on its face in establishing a joint tenancy between the parties with a right of survivorship, and the undisputed testimony clearly established that the deed was made as the grantor wanted, that he understood the legal terms, and that he did not suffer from a lack of mental capacity, the trial court erred in rendering a judgment in favor of the grantor and imposing a constructive trust on the land so deeded. That judgment is reversed and the case in dismissed.

961140 Matthews v. Virginia Dept. of Transportation 02/28/1997 Given the location and circumstances of the plaintiff's fall on a ferry boat, the trial court erred in ruling that the action was not a maritime tort to be decided under federal admiralty law. The judgment in favor of the defendant is reversed and the case is remanded for further proceedings.

961142 City of Chesapeake v. Gardner Enterprises 02/28/1997 Code § 15.1-492 expressly grants local governments the power to regulate existing structures, and authority to regulate new construction is implied from the statutory language protecting nonconforming uses, only so long as the buildings or structures are maintained in their then structural condition. Here the trial court erred in finding a local zoning ordinance prohibiting construction of additional buildings to support a nonconforming use invalid, and that judgment is reversed.

961214 Gay v. Norfolk and Western Railway Co. 02/28/1997 Since the trial court erred in holding that the plaintiff had waived his objection to the trial court's use of his deposition and in entering summary judgment based on the deposition without agreement by the parties as required by Rule 3:18 and § 8.01-420, that judgment is reversed and the case is remanded for further proceedings with instructions concerning the proper method for determining the accrual date of this FELA cause of action.

961235 Wilkins v. Commonwealth 02/28/1997 Published Order: The Court of Appeals of Virginia properly held that argument made during the penalty phase of a bifurcated criminal trial by the prosecutor, asking jurors to send a message to drug dealers in the county, was proper and that the trial court did not err in denying the appellant's motion for a mistrial. There was no error in the judgment of the Court of Appeals in denying appellant's petition for appeal.

961270 Virginia Dept. of Taxation v. Davenport 02/28/1997 The phrase "federal adjusted gross income" contained in Code § 58.1- 322 refers to the amount of federal adjusted gross income that the taxpayers specified on their federal income tax returns, subject to any modifications authorized by Virginia statutes. Therefore, taxpayers who included unearned income of their minor children in reporting adjusted gross income for federal tax purposes must also do so when reporting gross income for Virginia tax purposes. The judgment of the trial court is reversed and final judgment is rendered.

961284 Anderson v. Lake Arrowhead Civic Association 02/28/1997 Since the homeowners' association in this case is not a property owners' association as defined by Virginia law, but merely an assignee of the developer which operates as a voluntary community association, it cannot enforce any assessment in excess of the one provided in a covenant, which it can continue to collect provided it expends the monies for general maintenance. The judgment of the trial court is reversed and the case remanded to determine which of the liens sought can be enforced to the extent of the covenant.

961285 City of Virginia Beach v. Siebert 02/28/1997 Since Code § 16.1-106 allows a city a right of appeal to the circuit court from an adverse judgment in a refusal to submit to blood or breath alcohol test case, the trial court's judgment to the contrary is reversed and the case remanded.

961320 Jordan v. Clay's Rest Home 02/28/1997 The trial court did not err in refusing to adopt an indirect, burden shifting method of proof in wrongful discharge cases but did err when it imposed sanctions against an employee and her attorney for filing a frivolous lawsuit. The order entering summary judgment on the merits of the plaintiff's case is affirmed and the order assessing sanctions against the plaintiff and her attorney is reversed.

961332 Hagan v. Adams Property Associates 02/28/1997 The trial court's rulings that the transfer of property from its owners to a limited liability company in which the owners were members was a sale of the property, that a real estate broker was entitled to a commission on the gross sales amount, and that the gross sales amount is the debt relief plus the value of a second deed of trust note the owners received, is affirmed.

961338 Ward v. Insurance Company of North America 02/28/1997 Since the courts in the Commonwealth must use calendar years and not 365-day periods when computing whether a statute of limitations has expired, and since the plaintiff filed her motion for judgment within five calendar years from the date her cause of action against the defendants accrued, she was entitled to both the tolling provision applicable to nonsuits and the statutory time extension contained in Code § 1-13.3:1. The trial court judgment dismissing the suit is reversed and the case is remanded for further proceedings.

961353 Ripper v. Bain 02/28/1997 Since the trial court erred in ruling that the plaintiff clients had failed to establish a prima facie case of negligence against their former attorney in a malpractice case, that judgment is reversed and the case remanded.

960283 Cooper v. Brodie 01/10/1997 The trial court erred in terminating a trust and ordering the distribution of its assets to the beneficiaries before estate tax liability had been determined and that action is reversed. Other issues involving trustee compensation and attorney's fees are resolved and the case is remanded.

960433 Commonwealth Transportation Comm'r v. Matyiko 01/10/1997 Since, at the time the board of directors of a corporation distributed its assets they had knowledge that an anticipated condemnation award in favor of the corporation possibly would be less than the amount distributed under an interim "drawdown" order, they could not rely on opinions of an attorney and an accountant and the trial court's erroneous ruling that they acted in good faith is reversed. Final judgment is entered for the Commissioner.

960493 GSHH-Richmond Inc. v. Imperial Associates 01/10/1997 The trial court erred in concluding that a lease agreement did not provide adequate consideration for the lessor's promise to pay a sales commission to the leasing agent if the lessee later purchased the property and that judgment is reversed. The case is remanded for further proceedings.

960508 Board of Sup. of Prince William County v. Omni Hom 01/10/1997 Since the plaintiff developers had not acquired the rights necessary to realize their preferred method of development either by contract or easement, the action of a county in purchasing a neighboring tract could not damage a non-existent right and the purchase did not damage or take the plaintiffs' property as an uncompensated taking under either the Fifth Amendment of the United States Constitution or Article I, § 11 of the Constitution

960530 Bailey v. Scott-Gallaher Inc. 01/10/1997 Because the plaintiff employee pled factual allegations which, if proven true, could support a jury finding that she was discriminated against because of her gender and this basis for termination of employment is repugnant to Virginia's strong public policy, the judgment of the trial court sustaining the employer's demurrer is reversed, and the case is remanded for a trial on the merits.

960533 Norfolk Southern Railway Co. v. Trimiew 01/10/1997 When the facts of this case are examined against the background of the applicable principles of the Federal Employers' Liability Act, the evidence was insufficient as a matter of law to raise a jury issue upon the question of the defendant railroad's negligence toward its employee and, therefore, judgment for the plaintiff is reversed and final judgment is entered for the defendant.

960575 Commonwealth v. National Private Truck Council 01/10/1997 A Virginia tax regulation which defines the manner of delivery necessary to qualify for immunity from state taxation under 15 U.S.C. § 381 violates federal law because it limits the conditions under which a company is entitled to immunity from state taxation; therefore the judgment of the trial court is affirmed.

960604 NAJLA Associates Inc. v. William L. Griffith & Co. 01/10/1997 Since a plaintiff's purported damages in a breach of contract case are consequential, the plaintiff was required to prove that they were within the contemplation of the contracting parties at the time an escrow agreement was executed. Since the plaintiff presented no such evidence, the judgment of the trial court is

960616 C.F. Garcia Enterprises v. Enterprise Ford Tractor 01/10/1997 Since a contract provision which allowed a party to purchase a piece of construction equipment for $1 after having made all monthly payments established as a matter of law that the contract was a security agreement rather than a lease, the defendant was not entitled to seize and sell the equipment after all the payments had been made. The trial court's judgment is reversed and the case is remanded for determination of the plaintiff's damages.

960664 Hairston Motor Company v. Newsome 01/10/1997 Since the trial court incorrectly construed venue provisions in a federal law governing liability of common carriers arising under receipts or bills of lading to require dismissal of an action for lack of proper venue within Virginia, that judgment is reversed and the case remanded for further proceedings.

960693 Fletcher v. Fletcher 01/10/1997 Since the beneficiary of a trust is entitled to review the trust documents in their entirety in order to assure that the trustees are discharging their duty to deal impartially with all the beneficiaries within the restrictions and conditions imposed by the trust agreement, the trial court correctly required the trustees to furnish information about an inter vivos trust instrument and about other documents relating to the trust to the beneficiaries of the trust, and that ruling is upheld.

960761 Draper v. Pauley 01/10/1997 Since a niece wrote her name in the body of her aunt's will, witnessed the preparation and execution of the will by the testator and, in the presence of the testator, witnessed the subscription of the will by the other witness, she was a subscribing witness to the will within the meaning of Code § 64.1-49, and the trial court was correct in holding that the will was properly admitted to probate.

960916 First Security Federal Savings Bank v. McQuilken 01/10/1997 The trial court properly applied the parol evidence rule in this case because the third party beneficiaries were not "strangers" to a release agreement between the parties. When the trial court has reached the correct result for reasons not expressed in its ruling, the result is upheld.

960933 Moates v. Hyslop 01/10/1997 The trial court correctly ruled that the plaintiff patient was required to show by qualified medical experts whether and to what extent information should have been disclosed to him by the defendant surgeon prior to and subsequent to surgery and since the plaintiff did not have an expert in the field, he could not pursue the claim.

960943 R.K. Chevrolet Inc. v. Hayden 01/10/1997 The trial court erred in striking the plaintiff's evidence in a case involving an alleged breach of an employment contract and in refusing to allow the plaintiff's expert to testify concerning the cause and extent of damages. The trial court's judgment is reversed and vacated and the case is remanded for a new trial consistent with the views expressed in this opinion.

960961 Mullins v. Virginia Lutheran Homes 01/10/1997 In this action by a worker alleging that she was unlawfully discharged from employment for filing a workers' compensation claim, the trial court erred in striking the plaintiff's evidence because, viewed in the light most favorable to the worker, the evidence was sufficient to raise a question of fact whether the worker was discharged solely for filing a workers' compensation

960984 Abbott v. Willey 01/10/1997 The trial court did not err in holding that Code § 64.1-193 permits a person to disclaim an interest in the proceeds of a life insurance policy to the detriment of her creditors, nor did it err in holding that the claim against the contingent beneficiaries for unjust enrichment was barred. The decision of the trial court is affirmed.

961005 Yeskolski v. Crosby 01/10/1997 In this action to quiet title to real property, the possessor of a deed of trust note was not a holder in due course of that note. The chancellor erred in failing to uphold the commissioner's finding that a second deed of trust note had been paid in full before the possessor acquired it. The judgment entered below is reversed and vacated and final judgment is entered declaring that the second deed of trust is

961021 Seyfarth Shaw v. Lake Fairfax Seven Ltd. Partnersh 01/10/1997 In a dispute over legal fees, since the law firm executed a written contract with the defendants, and the contract identified the lawyers who would perform work and the hourly billing rates that would be charged by each attorney, the law firm was not required to present expert testimony to prove the reasonableness of the total fees charged to the defendants. The trial court order striking the plaintiff's evidence is reversed and the case remanded.

961078 Swiss Re Life Company America v. Gross 01/10/1997 There is no merit in a reinsurer's claims for administrative priority over other creditors of an insolvent insurer, and the decision of the State Corporation Commission that Code § 38.2-1509 does not permit a reinsurer for an insurance company in receivership to obtain administrative priority over other creditors in recovering amounts owed it under an ongoing treaty of reinsurance with the insolvent company is affirmed.

960412 Stone v. Liberty Mutual Insurance Company 12/16/1996 In response to a certified question from the U.S. Court of Appeals for the Fourth Circuit, under the facts of this case, an employer's insurance policy did not cover an employee driving his own car while delivering pizzas so as to make the employee an insured under the uninsured motorist endorsement of the policy and the policy does not violate Code § 38.2-2206(A). The employee is not entitled to receive uninsured motorist benefits under the policy and the judgment of the district court is reversed.

951874 Mueller v. Murray 11/01/1996 Since the Supreme Court of the United States announced an "new" rule in Simmons v. South Carolina, 512 U.S. 154 (1994), that rule does not apply retroactively to the defendant's conviction for capital murder the year before the new rule was announced.

951973 Robbs v. Commonwealth 11/01/1996 The five-month trial date limitation in Code § 19.2-243 applies only if the person charged is held in continuous custody, and here the accused was released before five months from the date of the preliminary hearing and later re-arrested. However, the Commonwealth did not carry its burden of proving that a motion by the defendant to suppress evidence was the cause of delay to be excluded in computing the permitted maximum of nine months between the preliminary hearing and the trial, and the defendant is discharged from prosecution.

952053 Johnson v. Commonwealth 11/01/1996 When, as here, the trial of an accused has been commenced within the applicable time period prescribed by the Virginia speedy trial statute and, on appeal, a conviction is reversed and the case is remanded for retrial, the time for retrial rests within the discretion of the trial court, measured and controlled by constitutional standards of reasonableness and fairness. Since no error is found in the judgment below, that judgment is affirmed.

952160 Persinger & Company v. Larrowe 11/01/1996 An individual cannot be bound by a non-competition clause in a partnership agreement to which he was not a signatory, although he accepted a partnership interest and served as a partner for several months. The judgment of the trial court is reversed and final judgment entered for the former partner.

952208 Allen & Rocks Inc. v. Dowell 11/01/1996 Given the plain language of Code § 8.01-45, the insulting words statute, an action may not be maintained absent proof that the insulting words were such as to tend to violence and breach of the peace. Therefore the trial court erred in failing to sustain the defendants' motion to strike the plaintiff's evidence as to a count under this statute. That judgment is reversed and final judgment

952224 City of Virginia Beach Police Dept. v. Compton-Wal 11/01/1996 The deceased, a passing motorist who helped an off-duty auxiliary policeman render assistance to accident victims, was not a member of the city's auxiliary police force and, thus, had not been extended workers' compensation benefits under the city code. She did not meet the definition of "employee" under the Workers' Compensation Act. The judgment of the Court of Appeals is reversed and final judgment entered for the department.

952244 Walton v. Capital Land Inc. 11/01/1996 Since limiting language in a contested easement is consistent with the category of conveyances which are true easements and which leaves the servient owner the right to use the land in a manner not inconsistent with the easement, the portion of the judgment of the trial court holding that the owner of the easement has the right to exclude the owner of the servient tract from using the easement is reversed.

952286 Tuomala v. Regent University 11/01/1996 Under the circumstances of this case, the trial court correctly held that an employer's refusal to renew employment contracts under their original terms did not constitute breach of contract, and that judgment is affirmed.

952312 Harrah v. Washington 11/01/1996 In a wrongful death action following a series of motor vehicle accidents on a fog-shrouded mountain, the question whether the defendant's negligence, if any, was a proximate cause of the collision resulting in the decedent's death was, at the very least, a question for the jury. However, because the trial court committed reversible error in instructing the jury on unavoidable accident, the case must be remanded.

952317 Lee v. Bourgeois 11/01/1996 Because the function of a particular physician at a state medical school was related to patient care and the acts taken were within the professional medical judgment of the physician, the state's interest and degree of involvement were slight and the physician is not entitled to sovereign immunity for the alleged negligent acts raised in this action. Accordingly, the judgment of the trial court is reversed and the case remanded for further proceedings.

960014 Balbir Brar Inc. v. Consolidated Trading 11/01/1996 Since an examination of separate federal and state proceedings reveals that there is no underlying thread of evidentiary similarity between the litigants' federal and state claims, the trial court erred in ruling that Federal Rule of Civil Procedure Rule 13(a) bars a litigant who failed to assert a counterclaim in the federal proceeding from pursuing its claims in the state proceeding. The judgment of the trial court is reversed and the case remanded for further proceedings.

960062 Auerbach v. County of Hanover 11/01/1996 Since the intent, express and unambiguous on the face of a deed, its incorporated plat, and all the references thereon, was to establish an easement across the piece of land conveyed servient to the grantors' entire combined land, the trial court did not err in finding that an easement serves the entire proposed subdivision of land and in directing the county to approve the subdivision plat, and that judgment is affirmed.

960193 Monticello Insurance Co. v. Baecher 11/01/1996 Under the circumstances of this case involving lead paint, the trial court erred in concluding that the health hazard exclusion clause in an insurance policy was not enforceable. That judgment is reversed and a judgment is entered declaring that the insurer has no duty to defend and/or indemnify a landlord against the claims of tenants.

960329 Union Recovery Ltd. Partnership v. Horton 11/01/1996 A receiver's right to sue within a federal statute of limitations period is inherent in its possession of the instruments at issue in this case and is among the rights, remedies and benefits which are incidental to the thing assigned and not merely a right personal to the assignor and for its benefit only, therefore the trial court ruling dismissing the case is reversed, and the case remanded.

960352 Carnes v. Chesterfield County 11/01/1996 In this case where the primary issue on appeal concerns the validity of two local ordinances which impose a $125 increase in the fee charged for new residential construction, the trial court's finding that the ordinances did not violate either Code § 36-105 or the Uniform Statewide Building Code § 104.3 is supported by the evidence. The evidence also supports the trial court's ruling that the expenditures funded by the fee ordinances were rationally related to the cost of USBC enforcement.

960372 Richardson v. City of Suffolk 11/01/1996 The trial court correctly found that evidence of the reasonableness of a city council's action was sufficient to make the issue whether an automobile racetrack is a permitted use under the city code fairly debatable and that, because the issue was fairly debatable, the city's zoning decision must be sustained, and that holding is affirmed.

960421 Lewis v. Carpenter 11/01/1996 Since the plaintiff failed to prove that an incident occurred which normally would not have occurred if the defendant had used reasonable care, the trial court's ruling that the doctrine of res ipsa loquitur was not applicable to this case is affirmed.

960473 Lawson v. Elkins 11/01/1996 In this medical negligence action, the trial court did not abuse its discretion in refusing to permit a physician to testify as an expert witness and the judgment of the trial court is affirmed.

960511 Stern v. Cincinnati Insurance Co. 11/01/1996 In answer to questions certified to the Court by the United States Court of Appeals for the Fourth Circuit: (1) an injured student was not "occupying" the school bus, as the term is defined in the relevant insurance policy, when she was struck while crossing a street and was injured, and (2) she was not "using" the school bus, at that term is defined in Virginia Code Ann. § 38.2-2206, when she was injured crossing the center of the road to approach the stopped bus.

961014 Gilmore v. Landsidle 11/01/1996 Since the enrolled House Bill 29 is the same bill enacted by the General Assembly, the bill was published "at length" within the meaning of Article IV, Section 12 of the Constitution of Virginia, and the bill did not impair the Governor's item veto power or his ability to ensure that expenses for the biennium did not exceed revenues, a writ of mandamus will not be awarded as prayed by the Attorney General.

961216 Mickens v. Commonwealth 11/01/1996 In an appeal reviewing a judgment sentencing a defendant to death following a second sentencing hearing, no reversible error is found in the trial court's judgment and the sentence is affirmed.

951470 United Savings Assoc. v. Jim Carpenter Co. 09/13/1996 In three cases involving the applicability of mechanic's liens to construction projects where the suppliers delivered materials under pre-existing, non-binding credit agreements between contractors and suppliers, it is held that where materials and deliveries were identifiable to specific projects under running accounts, the deliveries were under a single contract. Where trial courts had held otherwise, the cases are reversed and remanded.

951678 Kraft v. Burr 09/13/1996 Letters of patent from two English monarchs, acting through their royal governors, could and did grant exclusive fishing rights in a navigable river. The complainants are the successors in title to the patentees and can assert those rights to prohibit the public from fishing in that part of the river. The judgment of the trial court is

951742 Tittsworth v. Robinson 09/13/1996 Since challenged expert testimony in this personal injury action was speculative, founded upon assumptions lacking a sufficient factual basis, relied upon dissimilar tests and contained too many disregarded variables, it was unreliable as a matter of law and the trial court erred in admitting it. The trial court's judgment is reversed and the case remanded for a new trial.

951761 Swann v. Marks 09/13/1996 Since a nonsuit order was not a final judgment and did not clothe a substitution order with the force of res judicata, the trial court's consideration of the special plea of the statute of limitations, including consideration of the substitution order, was proper and the trial court properly ruled that a motion for judgment against the estate of a deceased person did not toll the statute of limitations.$ib

951876 Cherry v. D.S. Nash Construction Co. 09/13/1996 Because of the admission of evidence which should not have been received at trial and the refusal to admit other evidence which was not barred by Code § 46.2-379, the trial court's judgment is reversed and the case is remanded for a new trial.

951880 Husske v. Commonwealth 09/13/1996 The Court of Appeals properly concluded that the Due Process and Equal Protection clauses of the Fourteenth Amendment to the federal Constitution did not require that this indigent defendant receive, at the Commonwealth's expense, a DNA expert to assist with his defense. Further, defendant's statements were not the product of compulsion and, thus, his Fifth Amendment right against self-incrimination was not violated and the judgment is affirmed. -- Opinion Footnotes Edited 2/97

951916 Simmons v. Commonwealth 09/13/1996 The trial court did not err in holding that neither res judicata nor collateral estoppel bars a court from suspending a person's motor vehicle operator's license for one year for refusal to take a blood or breath alcohol test when he has already suffered a seven-day administrative suspension for the same refusal, and that decision is affirmed.

951919 VEPCO v. Northbrook Prop. and Cas. Ins. 09/13/1996 Given the plain and generally accepted meaning of the term "employee," the trial court erred in determining that the employee exclusion of an insurance policy permitted the insurer to refuse to fulfill its obligation to defend the insured from a personal injury lawsuit. That judgment is reversed and judgment is entered for the insured. The case is remanded for determination of damages.

951927 Wall v. Fairfax County School Board 09/13/1996 The trial court properly ruled that the total number of votes received by each candidate in a public high school student election was information exempt from disclosure under The Virginia Freedom of Information Act, Code § 2.1-340, and that judgment is affirmed.

951969 Chapman v. City of Virginia Beach 09/13/1996 Since the trial court erred in its rulings on issues relating to public nuisance, admission of expert testimony, and contributory negligence, it erroneously set aside a jury verdict and entered judgment in favor of a municipality in this wrongful death action. That judgment is reversed and the case is remanded. -- Opinion Edited 2/27/97

951975 Weinberg v. Given 09/13/1996 Since the plain language in amended Code § 8.01-401.1 provides that, in certain limited instances, statements contained in published treatises or periodicals in a discipline such as medicine, established as a reliable authority by testimony, shall not be excluded as hearsay, the trial court did not err in permitting the jury to consider, as substantive evidence, statements made in medical periodicals.

952041 Woodward v. Morgan 09/13/1996 Since construction of a residence on a particular lot would violate the applicable restrictive covenants for a residential subdivision, the final decree of the trial court is plainly wrong and contrary to law. The cause is remanded to the trial court for entry, if necessary, of an appropriate injunction to enforce this judgment.

952047 Hutter v. Heilmann 09/13/1996 An indemnification provision in a contract between the parties requires the defendants, who own all of the stock in a company, to indemnify the plaintiffs for the entire amount they paid a bank on a loan to the company which they earlier had personally guaranteed. The trial court judgment that the defendants were not liable is reversed and judgment entered awarding plaintiffs damages.

952115 Frazer v. Millington 09/13/1996 The portion of the trial court's judgment holding that an attempt to exercise a special testamentary power of appointment under a trust agreement was ineffective is reversed and judgment is entered for the person appointed. The portion of the judgment of the trial court regarding appointment of and directions to an independent trustee and directing that the trust pay certain attorneys' fees and costs is affirmed.

952137 Ashmore v. Herbie Morewitz Inc. 09/13/1996 Since the signature on a subordination agreement was obtained by the fraud of the defendant, the agreement was voidable and a third party beneficiary of that agreement took its interests under the subordination agreement subject to the plaintiff's right to rescind the agreement because of the defendant's fraud, even though the third party lender had no knowledge of the fraud. Judgment is entered setting aside the subordination agreement and declaring the plaintiff to be holder of a first lien deed of trust on the property.

952168 Barnabei v. Commonwealth 09/13/1996 Having considered all issues discussed in the defendant's brief and finding no reversible error, and having conducted a sentence review pursuant to Code § 17-110.1, the defendant's capital murder conviction and sentence of death are affirmed along with the defendant's conviction for rape.

952306 Plummer v. Center Psychiatrists 09/13/1996 Since the trial court erred by holding, as a matter of law, that a psychologist who had sexual intercourse with a patient during therapy was acting outside the scope of his employment, rendering the doctrine of respondeat superior inapplicable, that judgment is reversed and the case is remanded for further proceedings.

952340 Brame v. Commonwealth 09/13/1996 The trial court did not err in finding that a one-year suspension of a person's operator's license based upon his refusal to submit to a blood or breath test when he had already suffered a seven-day administrative suspension for the same refusal did not violate the constitutional prohibition against double jeopardy. Nor did the court err in finding that application of the seven-day administrative suspension statute to the defendant did not result in denial of due process.

960214 Sachs v. Horan 09/13/1996 Since the plaintiff does not have a place of abode in Fairfax County, the trial court did not err in ruling that the registrar properly canceled his voter registration in that county, and that ruling is affirmed.

951493 City Council of Salem v. Wendy's 06/07/1996 In this land use controversy, the trial court erred in ruling that a local governing body's denial of a rezoning petition was arbitrary and capricious and that judgment is reversed. Final judgment is entered dismissing the motion for a declaratory judgment by the landowner.

951503 Kelley v. Griffin 06/07/1996 The trial court erred in ruling that a stranger to a contract between two parties was a third party beneficiary of that contract and had standing to seek reformation and subordination of a first deed of trust to his own. The judgment of the trial court is reversed and vacated and the case is remanded with directions that appropriate action be taken to ensure the superiority of the lien of the seller's deed of trust.

951568 Yancey v. JTE Constructors Inc. 06/07/1996 The trial court erred in holding that a general contractor was the statutory employer of a subcontractor's injured employee at the time of the injury and that holding is reversed. The case is remanded for further proceedings.

951573 Cronin v. City of Alexandria 06/07/1996 The Court of Appeals of Virginia correctly held that a workers' compensation claim of an employee's estate is barred by the two-year statute of limitations contained in Code § 65.2-406(A)(5) because the employee was medically informed that his heart condition was an occupational disease for which he could receive workers' compensation more than two years before the claim for death benefits was made by his estate.

951619 Morgen Industries Inc. v. Vaughan 06/07/1996 There was sufficient evidence to support the jury's verdict in this products liability negligence action, and the judgment entered by the trial court is affirmed.

951621 City of Winchester v. American Woodmark Corp. 06/07/1996 Under the particular facts of this case, a municipal government's assessments of a business, professional, and occupational license tax did not comport with the requirements of the Commerce Clause of the United States Constitution and the trial court properly held that the assessments were not constitutional. That judgment is affirmed.

951624 TransDulles Center Inc. v. Sharma 06/07/1996 The circuit court erred in refusing to apply collateral estoppel in favor of a landlord who had obtained a default judgment against a tenant in a prior action. That ruling is reversed, an earlier order is reinstated, and final judgment is entered in favor of the landlord against the tenant.

951640 Gentry v. Toyota Motor Corporation 06/07/1996 Since the trial court abused its discretion in dismissing with prejudice the plaintiffs' action against a Japanese vehicle manufacturer and other defendants for damages sustained while operating an allegedly defective pickup truck because of spoliation of evidence, the judgment is reversed and the case remanded for further proceedings.

951681 Allen v. Commonwealth 06/07/1996 The Court of Appeals erred in finding that the appellant waived his double jeopardy objections and in affirming the trial court's order that the appellant be tried again after the jury had been empaneled, reached a verdict, recommended a sentence and had been dismissed by the trial court. The case is remanded for reinstatement of the original verdict rendered by the jury, and for imposition of sentence.

951683 Greenan v. Solomon 06/07/1996 The plaintiff landowners have an easement to use a right-of-way over neighboring land described in a deed recorded in the county records. The judgment below is reversed and final judgment is entered for the landowners.

951688 King v. Sowers 06/07/1996 In a medical malpractice action, the trial court did not err in instructing the jury regarding acceptable and customary methods of treatment, nor did it err in permitting certain testimony by an ophthalmic pathologist, including his evaluation of computerized axial tomography, and the trial court's judgment is affirmed.

951718 Retail Property Investors Inc. v. Skeens 06/07/1996 Since the shareholder presented clear, reasonable and uncontradicted evidence that the production of the records he sought would be injurious to the corporation, the trial court erred in ordering a corporation to permit that shareholder to inspect and copy its shareholder list. The trial court holding is reversed and final judgment is entered for the corporation.

951794 Griswold v. Commonwealth 06/07/1996 Since the defendant had been unrepresented by counsel in two prior DUI convictions within the prior 5 to 10 years of the one here being appealed, and one of those convictions resulted in a two day jail sentence and therefore was a violation of his constitutionally guaranteed right to counsel, his conviction in this case based on evidence of those convictions is reversed and the case is remanded for

951833 Garrett v. Majied 06/07/1996 Since Code § 32.1-286 does not authorize an exhumation order for the purpose of establishing paternity, the trial court was without subject matter jurisdiction to enter an exhumation order based on that section. Because no other ground was asserted for the trial court's jurisdiction, the order of the trial court is reversed and the case remanded for further proceedings.

951836 Conner v. Rose 06/07/1996 The circuit court erred in holding that Code § 8.01-380(A) does not allow a plaintiff who had taken a nonsuit in a general district court to refile her action in the circuit court when the ad damnum clause in her motion for judgment exceeds the jurisdictional limit of the general district court. That judgment is reversed and the case remanded to the circuit court.

952162 Clagett v. Commonwealth 06/07/1996 In this review of capital murder convictions and the imposition of five death sentences for four murders, the sentence for multiple homicide capital murder is vacated, but no other error is found in the action of the trial court and no reason is found to commute the four death sentences for capital murder during the commission of robbery. The sentences were not imposed under the influence of passion, prejudice or any other arbitrary factor and are not excessive or disproportionate to the penalty imposed in similar cases.

960069 Williams v. Commonwealth 06/07/1996 After a review of the death sentence imposed upon a defendant following his plea of guilty to murder for hire, it is found that the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

950227 Lexie v. State Farm Mutual Auto. Ins. Co. 04/19/1996 Each of four appeals arises from "drive-by shootings" and presents a question whether an intentional shooting by a person occupying an uninsured vehicle constitutes "use" of the vehicle for purposes of uninsured motorist coverage. Since the requisite causal relationship between the incident and employment of the vehicle does not exist, the respective trial courts correctly ruled that the intentional shootings did not constitute "use" of the vehicles for purposes of uninsured motorist coverage, and those judgments for the insurers are affirmed.

950808 Bennet v. Virginia Life 04/19/1996 Since provisions of Code § 38.2-1700(C)(5) exclude from coverage any contract or certificate which is not both issued to and owned by an individual, guaranteed interest contracts which were issued to a group rather than to individuals were not protected by the Virginia Life, Accident and Sickness Insurance Guaranty Association and the State Corporation Commission's holding is affirmed.

951086 Anderson v. Commonwealth 04/19/1996 The trial court did not err in ruling in a probation revocation proceeding that the exclusionary rule may not be used to exclude evidence suppressed in a prior criminal proceeding, and the judgment is affirmed.

951144 Sims Wholesale Co. v. Brown-Forman Corp. 04/19/1996 In a case involving statutory interpretation of Virginia's Wine Franchise Act, a part of the Alcoholic Beverage Control Act, "good cause" as used in the Act means more than merely a well-founded reason, and "good cause" does not always exist when a winery unilaterally cancels a wholesaler agreement in the good faith exercise of its business judgment. In this case the winery had not established sufficient "good cause" under the statute and the holding of the Court of Appeals is reversed and that of the Board reinstated.

951218 Waterfront Marine Constr. v. North End 49ers 04/19/1996 Since a construction contract between the parties did not specifically provide that questions of arbitrability and res judicata be submitted to arbitration, the trial court erred in failing to resolve those issues and in referring them to an arbitration panel. The claims in a second demand for arbitration relating to noncompliance with the first arbitration award were not arbitrable, and the claim for breach of warranty is barred by res judicata. The judgment of the trial court confirming the second arbitration award is reversed.

951272 Gregory v. Hawkins 04/19/1996 In a case concerning alleged attorney malpractice, the client's evidence failed as a matter of law to establish that an attorney's conduct was the proximate cause of the loss sustained; the judgment of the trial court is reversed and final judgment is entered for the attorney.

951364 Stuarts Draft Shopping Ctr. v. S-D Associates 04/19/1996 In a case involving the sale of a shopping center, the trial court erred in submitting the issues of breach of warranty and waiver to the jury. The trial court's judgment is reversed and the case is remanded

951427 Tomlin v. McKenzie 04/19/1996 The trial court erred in sustaining a plea in bar, which asserted that a clinical social worker conducting court-referred family therapy was immune from liability for various claims of malpractice and defamation; that dismissal order is reversed and the cause is remanded for further proceedings.

951428 Norfolk and Western Railway v. Chittum 04/19/1996 Since the evidence supports a jury's finding that a railroad's negligence played a part in producing its employee's injuries and the employee's testimony alone was sufficient to create a jury issue regarding causation, the judgment of the trial court is affirmed. The trial court did not err in refusing to deduct the employee's pension contributions in calculating his net income, and that decision is also affirmed.

951869 Goins v. Commonwealth 04/19/1996 A review of the capital murder convictions and death sentence imposed on the defendant, along with his convictions for first degree murder, malicious wounding, and use of a firearm in the commission of murder and malicious wounding, fails to disclose that the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor. The death sentence is not disproportionate to penalties generally imposed in the Commonwealth for comparable crimes. The trial court's judgments are affirmed.

950114 Lockhart v. Commonwealth 03/01/1996 Since defense counsel voluntarily put in issue defendant's alleged innocence of other drug transactions to create an impression in defendant's favor, the prosecution was justified in rebutting that impression with evidence of an arrest of defendant for a drug offense that occurred eight months after his arrest in the present case and no error exists in the judgment of the Court of Appeals in upholding the action of the circuit court.

950149 First Virginia Bank v. O'Leary 03/01/1996 State and local taxing authorities are not bound by Code § 6.1- 125.3(D), requiring creditors seeking funds from a joint bank account to obtain a summons notifying nondelinquent owners of the account of an order of garnishment, attachment or other levy addressed to that account, therefore, the Dept. of Taxation is not subject to that section when it issues a notice of tax lien and demand for payment to a financial institution which has in its possession funds owned by a delinquent taxpayer in a joint bank account.

950266 Charles E. Smith Mgmt. v. Dept. of Taxation 03/01/1996 Since the Commonwealth's licensure of aircraft based at National Airport is a valid exercise of the police power retroceded to it in the Metropolitan Washington Airports Act of 1986, such aircraft are taxable pursuant to Code § 58.1-1502, and the judgment of the trial court is affirmed.

950793 Craver-Farrell v. Anderson 03/01/1996 Since the trial court erred in applying the presumption of survivorship provided in Code § 6.1-125.5(A) to funds which had once been held in joint accounts but which were no longer so held at the time of the death of one of the parties to those accounts, the judgment concerning those funds is reversed and the case remanded.$ib

950799 RF&P Railroad v. Metro. Wash. Airports Auth. 03/01/1996 In this inverse condemnation case the trial court correctly determined in a declaratory judgment proceeding under Code § 8.01-187 that private property had not been taken or damaged for public use without just compensation, within the meaning of Article I, Section 11 of the Constitution of Virginia, and that judgment is affirmed.

950827 Fairfax County Dept. of Human Dev. v. Donald 03/01/1996 Since, in the present case, an appeal was not taken within ten days of a final order from the district court, the circuit court was without jurisdiction and the matter was not properly before it. Therefore, the Court of Appeals erred in ruling that, under the facts of this case, the trial court had authority to award attorney's fees, and that ruling is reversed.

950829 The Stenrich Group v. Jemmott 03/01/1996 The Workers' Compensation Commission and the Court of Appeals erred in finding that a job-related physical impairment resulting from cumulative trauma caused by repetitive motion is a disease within the contemplation of the Workers' Compensation Act and each of three judgments under review is reversed and each claim for benefits is dismissed with final judgment entered in favor of the employer.

950843 Sussex Comm. Services v. Va. Soc. for Ment. Ret. C 03/01/1996 The trial court correctly concluded that Code § 36-96.6(C), as amended in 1991, can be applied to single family restrictive covenants recorded in 1975 and that judgment is affirmed.

950896 Rash v. Hilb Rogal & Hamilton Co. 03/01/1996 In a cause in equity for breach of contract, tortious interference with contractual relations, and common law conspiracy, the trial court did not err in holding that the defendants had committed acts which justified the imposition of a constructive trust on certain funds, and the trial court judgment is affirmed.

950916 City of Virginia Beach v. Flippen 03/01/1996 The present city is a person in control of the land or premises as contemplated by Code § 29.1-509 and is entitled to the immunity extended by the statute for activities it undertook in providing public access across private land to a beach adjacent to a stairway and, therefore, the trial court erred in concluding that the city was not covered by Code § 29.1-509 when sued for negligence by a plaintiff who was injured while crossing to the beach for recreational purposes.

950949 Frey v. Jefferson Homebuilders 03/01/1996 In a breach of contract case against a corporation where papers were delivered by hand to a registered agent, the trial court's denial of a motion to quash service of process is affirmed. However the trial court erred in holding that no judgment could be entered in favor of the plaintiffs because of their delayed service of process and the

951027 Doswell Ltd. Partnership v. Virginia Power 03/01/1996 In a breach of contract action, the trial court did not err in ruling that the disputed portion of a written agreement was clear and unambiguous, precluding consideration of extrinsic evidence supporting one party's interpretation of the document, and the trial court's judgment is affirmed.

951037 Lanasa v. Willey 03/01/1996 In an action on a promissory note, the trial court erred in limiting the payee's recovery to one-half of the principal amount of the note and the judgment is modified to award the full principal amount of the note, with interest and costs in favor of the payee.

951044 Halberstam v. Commonwealth 03/01/1996 The trial court correctly found that the plaintiff in a personal injury suit did not comply with the notice requirement of the Virginia Tort Claims Act, Code §§ 8.01-195.1 through -195.9, and that judgment is affirmed.

951129 Mortarino v. Consultant Eng. Services 03/01/1996 In a case involving the question whether certain statements contained in a report are actionable as constructive fraud, the portion of the trial court's judgment holding that the plaintiff failed to plead a cause of action for constructive fraud is affirmed, but the portion of the judgment denying the plaintiff's motion to amend his motion for judgment is reversed.

951184 Poulston v. Rock 03/01/1996 In a defamation action the trial court abused its discretion in determining that a jury verdict for compensatory damages was excessive and in requiring a plaintiff to remit part of the verdict amount and accept judgment for the reduced sum. On de nova review, the punitive damage award in the case is upheld and the jury verdict is reinstated.

951189 David A. Parker Enterprises v. Templeton 03/01/1996 In a personal injury action, the trial court erred in allowing testimony by doctors, based on their examination of the plaintiff's wounds, on the issue of whether the propeller of the defendant's motorboat was rotating when the plaintiff was injured. The trial court judgment is reversed and the case remanded for a new trial.

951196 Donovan v. Bd. of Zoning Appeals 03/01/1996 Since the trial court erred in upholding a decision by a board of zoning appeals affirming a zoning administrator's interpretation on the application of a zoning ordinance, that judgment is reversed and final judgment is rendered.

951237 McNew v. McCoy 03/01/1996 The trial court erred in holding that a gravel access road was dedicated at the time a subdivision plat was recorded and that such dedication was for the benefit of the owners of the lots shown on the map and in granting certain injunctive relief to the plaintiffs. That judgment is reversed and final judgment entered on behalf of the defendant.

951260 Brown v. Harms 03/01/1996 In a case concerning distribution of marital assets, the portion of the trial court's judgment holding that a German court's decree does not constitute a written contract is affirmed. The portion of the trial court's judgment which holds that the plaintiff's purported cause of action for breach of an oral contract is barred by the statute of limitations is reversed and the case is remanded for further proceedings.

951295 Courson v. Simpson 03/01/1996 The trial court correctly determined that sureties were not discharged from their obligation by Code §§ 49-25 and -26 after giving written notice to the creditor to institute suit against a debtor corporation which the sureties concede was insolvent, and that judgment is affirmed. OPINION REVISED AND UPDATED 4/19/96

951355 Douglas v. Chesterfield County Police 03/01/1996 Code § 8.01-229 (B)(6) does not extend any limitation period, nor is it intended to retroactively validate any action taken on behalf of a decedent by a person who might subsequently qualify as the personal representative at some date subsequent to the expiration of the appropriate limitation period, and the certified question from the United States District Court for the Eastern District of Virginia is answered in the negative.

951365 Gerald M. Moore and Son Inc. v. Drewry 03/01/1996 In the absence of privity, a person cannot be held liable for economic loss damages caused by his negligent performance of a contract and a question of Virginia law involving the application of the economic loss doctrine to an award of damages for negligent performance of a contract certified from the United State Court of Appeals for the Fourth Circuit is answered in the negative.

951416 Roach v. Commonwealth 03/01/1996 In the automatic review of a death sentence pursuant to Code § 17- 110.1 consolidated with an appeal of the capital murder conviction, it is found that the imposition of the death penalty in this case is neither excessive nor disproportionate to the penalty imposed in comparable cases. No reversible error is found in the issues presented and the judgment of the trial court is affirmed.

941482 Johnson v. Marcel 01/12/1996 Since the plaintiffs' amended motion for judgment states a legally cognizable cause of action for deliberate trespass, the trial court erred in sustaining a demurrer and the case will be reversed and remanded for further proceedings.

941940 Asch v. Friends of Mt. Vernon 01/12/1996 The appeal of a court order which did not join an incorporated club as a party is dismissed because a court lacks the power to proceed with a suit unless all necessary parties are properly before the court and the respondents failed to make the club which was an indispensable party a party to the appeal.

950194 Richmond v. Hall 01/12/1996 Sellers of land which had a defect in title were not bona fide purchasers within the intendment of Code § 8.01-166; they had constructive notice and made improvements at their own peril. It would be inequitable to compel the remainder owners to surrender to the sellers the value of the improvements annexed to the fee if those improvements were made with knowledge of the remainder interests. The trial court erred in excluding the value of improvements as an element of the value of the remainder interests and that ruling is reversed.

950211 Hazel & Thomas v. Yavari 01/12/1996 In this attorney malpractice suit, the client failed to introduce sufficient evidence that his former lawyers' negligence was a proximate cause of his loss. The judgment of the circuit court is reversed and final judgment is entered for the defendants.

950279 Ware v. Crowell 01/12/1996 The trial court erred in holding that after a daughter had released her expected interest in an ancestor's estate, she was not barred from taking real property under the terms of the ancestor's will and that judgment is reversed.

950361 Charles E. Brauer Co. v. NationsBank 01/12/1996 When a commercial debtor was sued by a bank for repayment of funds advanced, the debtor alleged by counterclaims and in a separate suit that the bank was guilty of tortious breach of a duty of good faith, failure to deal with collateral in a commercially reasonable manner, conspiracy, and tortious interference with contract. The trial court rejected these claims, and its rulings are confirmed.

950441 Children Inc. v. City of Richmond 01/12/1996 Since a charitable organization met its burden of establishing that it was entitled to a tax exemption for personal property acquired after July 1, 1971 under Code § 58.1-3606(A)(7), the part of the judgment of the trial court holding that personal property acquired after July 1, 1971 was not exempt from property tax by the City of Richmond is reversed.

950520 Hughes v. Cole 01/12/1996 The trial court correctly determined that an agreement between members of a gambling pool to share possible proceeds from winning lottery tickets is void and unenforceable under North Carolina and Virginia law. The trial court's actions in granting the ticketholders' motion for summary judgment, dissolving a temporary injunction, and ordering payment of fees, are affirmed.

950568 Lawrence Chrysler Plymouth v. Brooks 01/12/1996 An at will employee does not have a cause of action for wrongful discharge because he is unable to identify any Virginia statute establishing a public policy that his employer violated in firing him; therefore the trial court erred in its judgment, which is reversed, and final judgment is entered on behalf of the employer.

950578 Toomey v. Toomey 01/12/1996 The circuit court did not have jurisdiction to consider a nonresident party's motion for equitable distribution that was filed more than 21 days after a final decree had been entered in a divorce suit and the order of the Court of Appeals affirming the circuit court's decree in favor of the nonresident party is reversed.

950585 Norfolk and Western Railway Co. v. Johnson 01/12/1996 The trial court did not err in submitting to a jury a Federal Employers' Liability Act case for damages due to work related carpal tunnel syndrome or in refusing to grant defendant's motion to set the verdict aside; the judgment below is affirmed.

950648 Collins v. Fuller 01/12/1996 Since the trial court erroneously restricted the manner in which an express right of way could be used to the laying and maintaining of a water line to a spring, and there is no basis to impose that limitation, the decree is reversed and the final judgment is entered.

950649 Smith v. Avco Mortgage and Acceptance 01/12/1996 The debtors made timely tender of their payment obligation under a loan modification agreement, but the creditor had the right to refuse the tender on the ground that an uncertified check is not legal tender; however, upon the rejection of the tender, the debtors had a reasonable time thereafter to procure legal tender. Since it seems reasonable to infer here that legal tender the following day would have been a useless act the debtors were not required to perform, the judgment of the trial court is reversed and the case remanded.

950661 Jenkins v. Payne 01/12/1996 In this medical malpractice case, the trial court did not err in excluding from the jury's consideration (1) opinion evidence that another physician, who had settled the plaintiff's claim against him, was negligent in his treatment of the decedent, and (2) the defendants' argument that this physician was the sole proximate cause of the decedent's death, and the trial court's judgment is affirmed.

950720 Cash v. Commonwealth 01/12/1996 The trial court did not err in granting a prosecutor's pretrial motion limiting the evidence defendant could present to a jury on the question of the reasonableness of her refusal to submit to blood or breath tests when she was arrested and charged with driving a vehicle while under the influence of alcohol and no error is found in the instructions or sufficiency of evidence to sustain a conviction for refusing to submit to a blood or breath test to determine the alcohol content of her blood.

950729 USAA Casualty Insurance Company v. Hensley 01/12/1996 Since reasonable persons could not differ in concluding that, at the time of an accident, the driver of a car was a member of his grandmother's household in Virginia rather than a member of his mother's household in Saudi Arabia, the trial court erred in concluding that the mother's insurance policy provided additional coverage against the son's possible liability to another motorist and

950730 Bremer v. Doctors Building Partnership 01/12/1996 The trial court did not err in granting the plaintiffs a nonsuit when a defendant's plea filed pursuant to Code § 8.01-422 was pending. The plaintiffs' motion for a nonsuit was made before the matter was submitted to the court for decision; no counterclaim, cross claim, or third-party claim was pending and, therefore, the plaintiffs were entitled to a nonsuit as a matter of right under § 8.01-380.

950732 Hampton Nissan v. City of Hampton 01/12/1996 The trial court wrongly determined that a city may collect, as license taxes, payments that a motor vehicle dealer had collected improperly from motor vehicle purchasers in excess of the rate permitted by law, and that judgment is reversed.

950752 Wammco Inc. v. Commonwealth Transp. Comm'r 01/12/1996 In a highway condemnation case, the trial court properly excluded evidence of adjustment costs as an element of damages to the residue of the property, and the judgment is affirmed.

950757 Davis v. Mullins 01/12/1996 After many years in the courts, a bitterly contested boundary dispute was erroneously resolved since the trial court decisions over more than ten years were based on a 1983 proceeding which treated a 1982 order as having been vacated when it had not been. Therefore, orders and injunctions issued thereafter were in error, except for a 1990 injunction to enforce the 1982 order. The 1995 decree is reversed and final judgment is entered.

950802 Price v. Taylor 01/12/1996 While the trial court ruling that there was consideration for a contract for the sale of land was not erroneous, excluding certain jury instructions on fraud in the procurement of the contract and admitting certain expert testimony and prohibiting evidence that the contract was subject to a condition precedent was error. The judgment is reversed and the matter is remanded for a new trial.

950850 Stewart v. Lady 01/12/1996 In a battle over corporate control of a Virginia nonstock, nonprofit corporation which has no members, the chancellor erroneously found that an individual who was agent for the complainants was entitled to elect the respondents to the board of directors of the corporation. That finding is reversed and the complainants are declared the lawful directors of the corporation. The case is remanded for entry of such injunctive relief as is necessary to effectuate this declaration.

951117 Osborne v. National Union Fire Ins. 01/12/1996 A certified question: "Whether [an insurer] may deny UM coverage to [the insured] on the grounds that [the insured] settled with [another insurer] without [the insurer's] consent, when [the insurer's] UM contract contained a consent-to-settlement clause but [the insurer] was not prejudiced by the settlement," is answered in the affirmative.

951459 City of Suffolk v. Carter 01/12/1996 As a matter of law, a municipality was not liable in damages for the plaintiff's injuries sustained as the result of a slight defect in a city sidewalk and, accordingly, the circuit court's judgment awarding a judgment against the city for personal injuries the plaintiff sustained when she fell is reversed and annulled.

941729 Virginia Dept. of Taxation v. Daughtry 11/03/1995 The common issue in these two appeals is whether state-agency employers took proper actions to transfer employees following decisions of grievance panels issued pursuant to the provisions of former Code § 2.1-114.5:1. In each case it is concluded that they did and, therefore, in each case the final order of the trial court is reversed and a final decree dismissing the petition is entered.

941863 Travelers Insurance Company v. LaClair 11/03/1995 Since an intentional shooting by a person who had been occupying an uninsured vehicle does not constitute use of the vehicle for purposes of uninsured motorist insurance coverage, the judgment appealed from will be reversed and final judgment entered in favor of the insurers declaring that neither owes coverage to the injured person under their respective policies.

942034 Franconia Associates v. Clark 11/03/1995 The trial court correctly held that the plaintiff did not exceed the scope of his status as an invitee in a shopping mall when he pursued a fleeing robber, and, furthermore, he was not injured by chasing the robber, but rather by the defective condition of defendants' door. There was also ample evidence to support the jury's finding that the plaintiff was not guilty of contributory negligence and that finding will not be disturbed on appeal.

942077 Galloway Corp. v. S.B. Ballard Construction Co. 11/03/1995 In a contract dispute between a general contractor and several of its subcontractors on a construction project following the project owner's default in making payment on its contract with the general contractor, the evidence shows that some of the parties, by their negotiations and prior dealings understood and intended their contracts to give the contractor an absolute "pay when paid" defense to claims by subcontractors; the trial court's awards for breach of contract to these subcontractors were in error and are reversed.

942142 Board of Supervisors v. Reed's Landing Corp. 11/03/1995 The trial court properly held that the board of supervisors of a county violated Code § 15.1-491.2:1 when it demanded a "voluntary" cash proffer from a zoning applicant as a condition for rezoning, and that judgment is affirmed.

942157 Moore v. Warren 11/03/1995 Under the doctrine of charitable immunity, a volunteer of a charity is immune from liability to the charity's beneficiaries for negligence while the volunteer was engaged in the charity's work, and the trial court's judgment is affirmed.

942184 United States Fire Ins. Co. v. Parker 11/03/1995 The trial court erred in holding that an insurer must provide underinsured motorist coverage for a gardener who was injured by a motorist while working near the insured truck; that order will be reversed and final judgment entered in favor of the insurer, declaring that it does not owe underinsured motorist coverage to the gardener.

942210 International Fidelity Ins. Co. v. Ashland Lumber 11/03/1995 The chancellor erred in holding that a judgment creditor may obtain a lien by writ of fieri facias on, and thus reach by garnishment, funds retained by a principal relating to a contract upon which the judgment debtor has defaulted, where the judgment debtor's surety has assumed the duties and responsibilities of indemnitee. That judgment is reversed and the case remanded.

942231 Lee's Hill Homeowners v. Carter 11/03/1995 Since a developer and community association reserved the right to exchange and thereafter convey parts of the common area in the orderly subdivision and development of property, provided that the developer maintained the minimum "open space," the lot owners' easements are not fixed upon a particular parcel of land, but can be shifted from time to time to other parcels of land duly conveyed to the community

950001 Bridgestone/Firestone v. Prince William Square Ass 11/03/1995 The trial court erred in failing to rule as a matter of law that, under the facts of this case, a limitation in the warranty precluded the defendant's liability for repair of a roofing system, and that judgment is reversed.

950005 Carr v. The Home Insurance Company 11/03/1995 Since the only cognizable claim available to the plaintiff insurer was one in subrogation as provided in Code § 38.2-2206(G) and the insurer did not bring its action seeking recovery within the two year limitation period for personal injury actions, the trial court erred in denying the defendant's plea of the statute of limitations.

950013 City of Winchester v. American Woodmark Corp. 11/03/1995 A manufacturer's furniture, fixtures, office equipment, and computer equipment are intangible personal property constituting capital used in manufacturing business, within the meaning of Code § 58.1- 1101(A)(2), and therefore are not subject to taxation by a municipality. The trial court's ruling that city taxes paid on this property for three years must be refunded is affirmed.

950044 Parrish v. Jessee 11/03/1995 A guardian's challenge, in a court of equal dignity, to the prior judgment of a court of competent jurisdiction on the ground that the first court had erred in applying a statute was improvidently considered and the portion of the judgment rendered in the second court on that basis is null and void.

950052 Balzer and Associates Inc. v. The Lakes on 360 Inc 11/03/1995 The chancellor erred in granting a motion to strike in a suit by a judgment creditor to void a transfer of real property by the judgment debtor, and that judgment is reversed. The proceeding is remanded for a new trial.

950065 Bogle Development Co. v. Buie 11/03/1995 Since the Court of Appeals erred in determining that the Workers' Compensation Commission had jurisdiction to consider whether Blue Cross/Blue Shield was entitled to reimbursement from a fund, when no right of the claimant remained in issue, that decision affirming the order of the Commission is reversed, and the petition is dismissed.

950105 Godbolt v. Brawley 11/03/1995 Under the circumstances of this case the evidence of the plaintiff's assault conviction is inadmissible in this civil action for assault arising out of the same incident and the trial court erred in ruling that the conviction barred the plaintiff's action against the defendants; therefore the judgment of the trial court is reversed and the case remanded for a new trial.

950120 S.F. an Infant (Jane Doe) v. West American Ins. Co 11/03/1995 In an action to determine the amount of insurance available under the terms of an insurance contract to satisfy any judgments that may be entered against the insureds by third parties, the decision of the trial court is reversed and it is found that the insurance contract requires the insurer to pay on behalf of its insureds all sums which the insureds shall become legally obligated to pay to the claimants in an amount not to exceed one million dollars for each infant claimant.

950131 Orchard Management Co. v. Soto 11/03/1995 The record does not disprove personal jurisdiction of the Puerto Rico courts over the Virginia-based defendants in this case, and the trial court judgment giving full faith and credit to default judgments rendered against the defendants in Puerto Rico affirmed.

950178 Gilbreath v. Brewster 11/03/1995 Dismissal under Rule 3:3 for lack of timely service is with prejudice, and the trial court erred in dismissing the plaintiffs' actions without prejudice. The trial court's orders vacating previously granted nonsuits are affirmed, but its dismissals of two personal injury actions without prejudice are reversed and those actions are dismissed with prejudice for lack of timely service.

950195 General Insurance of Roanoke v. Page 11/03/1995 An insured's failure to read his insurance policy, or to have it read to him, constituted negligence as a matter of law that bars a recovery against the insurance agent for inadequate coverage; the trial court's judgment for the insured is reversed and final judgment entered in favor of the agent.

950210 Norfolk and Western Rwy. Co. v. Puryear 11/03/1995 The trial court erred in admitting into evidence a litigant's written summary of those parts of the testimony favorable to his case and, accordingly, the judgment of the trial court is reversed and the case remanded for a new trial.

950217 Ramey v. Bobbitt 11/03/1995 This case falls within the general rule that an employee going to or from his place of employment is not performing a service arising out of and incidental to the employment and the trial court erred in ruling that the Virginia Workers' Compensation Act provided plaintiff's exclusive remedy against the employer and a fellow worker who was driving the employer's truck at the time of an accident.

950223 Wise County Board of Sup. v. Wilson 11/03/1995 The trial court erred in dismissing a motion for declaratory judgment filed by a county board of supervisors which asked the court to declare that the board, as the local governing body, has the sole authority to set the assessment ratio for computing merchants' capital tax under Code § 58.l-3509; that judgment is reversed and final judgment entered in favor of the board of supervisors.

950235 CSX Transportation Inc. v. Casale 11/03/1995 Because of erroneous admission of testimony prejudicial to the defendant, the judgment of the trial court in a FELA case is reversed and the case remanded for a new trial limited to the question of damages.

950256 Lake Monticello Owners' Assoc. v. Lake 11/03/1995 The trial court correctly found the board of directors of a nonstock corporation subject to the Property Owners' Association Act improperly excluded certain proposals by lot owners from a proxy statement, but the court erred in finding certain bylaw provisions invalid. A declaratory judgment is granted in favor of the plaintiff homeowner.

950270 American Assoc. of Retired Persons v. Bell Atlanti 11/03/1995 The evidence of record before the State Corporation Commission supported each of the findings required under Code § 56-235.5(B) and establishes that the Commission was authorized to use an alternative form of regulation in lieu of the ratemaking methodology set forth in Code § 56-235.2. The judgment of the Commission is affirmed.

950305 Lee Gardens v. Arlington County Board 11/03/1995 In a taxpayer's challenge to a tax assessment for a large apartment complex, the trial court did not err in denying the taxpayer's request for disclosure of tax assessment worksheets used by the county. Nor did it err in rejecting the taxpayer's proposed testimony from a private tax consultant offered as an expert in valuation of commercial real estate. The court correctly granted the county's motion to strike the taxpayer's evidence.

950673 Fry v. Commonwealth 11/03/1995 The defendant's sentence of death in this capital murder case is neither excessive nor disproportionate to penalties generally imposed by sentencing bodies in the Commonwealth and did not result from any arbitrary factor; the trial court acted with extreme care in applying the law to the undisputed facts of the crime and gave full consideration to the defendant's evidence in mitigation and its judgment is affirmed.

950760 Sheppard v. Commonwealth 11/03/1995 In this appeal in a capital murder case, it is determined that the trial court committed no error and an independent review of the entire record reveals that the sentences of death were properly assessed and, therefore, the judgment of the trial court will be affirmed.

950948 Graham v. Commonwealth 11/03/1995 The trial court did not err in its instructions to the jury and its judgment in this capital murder case is affirmed. The evidence in this case satisfies the requirements of Code § 18.2-31(7) in that the defendant was the triggerman in the principal murder charged, and that he was at least an accomplice in the murder of an additional person as part of the same act or transaction.

940326 Harper v. Virginia Dept. of Taxation 09/15/1995 Since the trial court erred in denying refunds for taxes erroneously collected for pension income received by federal retirees, that judgment is reversed and final judgment is entered in favor of the taxpayers, directing that the amounts unlawfully collected from them be refunded with interest.

941300 Crestar Bank v. Williams 09/15/1995 The trial court's decree granting priority to certain investors' claims over those of certain of a defaulting debtor's judgment creditors with reference to seven assets erroneously declared a blanket constructive trust in favor of the investors when they failed to trace "invested" funds to the debtor's acquisition of any particular asset. The constructive trust set forth in the decree is reversed and annulled. The decree is affirmed in part, reversed in part, and remanded.

941410 Harris v. DiMattina 09/15/1995 In two appeals of medical malpractice actions the question is whether the trial courts erred in sustaining pleas of the statute of limitations. Judgments in favor of health care providers are affirmed in one case and reversed in another case, applying the 1993 amendment to Code § 8.01-581.2, which eliminated the notice of claim requirement, and giving effect to the repeal of former Code § 8.01- 581.9 on the particular facts of each case.

941561 Sackadorf v. JLM Group Ltd. Partnership 09/15/1995 The trial court correctly held in a case involving the priorities of several deeds of trust that a transaction structured as an assignment of a note and first deed of trust was not a payment and satisfaction by the deed of trust debtor that extinguished the first lien and that modifications of the first deed of trust and physical changes made to the property by the deed of trust debtor did not require that the junior lienors be advanced in priority.

941600 Payne v. Carroll 09/15/1995 For the purposes of impeachment in a civil case, the fact of a prior conviction of a felony may be shown against a party-witness, but the name of the felony, other than perjury, and the details of thereof may not be shown. Applying this rule, the judgment entered below is

941615 Wainger v. Glasser & Glasser 09/15/1995 The trial court properly held, in litigation between a law firm and one if its former partners, that certain contingent legal fees had not been "fully earned" within the meaning of the firm's partnership agreement prior to the time the former partner withdrew from the firm, and that judgment is affirmed.

941657 Kirwan & Co. v. Pelletier-Baker 09/15/1995 In a collection action, the trial court erred in according res judicata or collateral estoppel effect to the judgment in a prior action brought and tried after an assignment of the same claim to the present plaintiffs, since the defendant asserting the pleas in bar failed to carry her burden of proving that the assignment left the present plaintiff pursuing the claim solely on behalf of the party who sued previously. The judgment is reversed and the case is remanded.

941686 Va. Builders' Supply v. Brooks & Co. 09/15/1995 In this creditors' rights controversy, the trial court erred in holding that a garnishee, after being served with the summons in garnishment, may commence arbitration with the judgment debtor while excluding the judgment creditor from the arbitration, obtain default relief against the judgment debtor, and then bind the judgment creditor to the result of the arbitration, and that holding is reversed.

941711 Barrett v. Commonwealth 09/15/1995 Since odd but not evidently illegal conduct did not indicate that either the operator of a moving vehicle or its occupants were in need of police assistance, the police officer stopped the vehicle and seized the appellant in violation of his Fourth Amendment rights and the Court of Appeals erred in affirming the trial court's judgment to the contrary. The judgment of conviction is vacated and the warrant is dismissed, since without evidence acquired as a result of the illegal stop, there was no evidence to support the conviction.

941716 Midkiff v. Commonwealth 09/15/1995 There was no reversible error in the Court of Appeals judgment upholding the defendant's criminal convictions because he did not clearly invoke his constitutional right to counsel or his right to remain silent and, under the totality of the circumstances, his confession was clearly voluntary.

941719 Levine v. Selective Insurance Co. 09/15/1995 The trial court erred in granting an insurer's motion for summary judgment because the facts, if proven at trial, would create a jury issue whether the plaintiffs' loss was caused by the insurer's breach of its covenant of good faith and fair dealing. Also the question whether the plaintiffs made reasonable and necessary repairs required to protect their property is a factual issue to be determined by a jury.

941856 Bogese Inc. v. State Highway Comm'r 09/15/1995 In an eminent domain case the trial court correctly held that, because two tracts of land were owned by different entities at the time of condemnation for a highway project, unity of ownership did not exist and, thus, the unity of lands doctrine is not satisfied. The trial court's judgment is affirmed.

941858 Cotchan v. State Farm Fire & Casualty Co. 09/15/1995 Since nothing in Code § 38.2-2201 prohibits a policy exclusion which disallows medical expense coverage for the named insured or any relative while occupying a motor vehicle owned by or available for the regular use of the named insured or relative and which is not an insured motor vehicle, and the exclusion in the automobile insurance policy here was clear and unambiguous, and the trial court's judgment is affirmed.

941911 Bowman v. Wintergreen Property Owners Assoc. 09/15/1995 The trial court correctly held that certain restrictive covenants in a residential subdivision were violated by a homeowner who made changes in the appearance of his residence by displaying signs, decorations and other items on the outside of his house and on his deck. The injunction requiring the homeowner to remove the personal property is upheld.

941926 Capital Commercial Properties v. Vina Enterprises 09/15/1995 A lease between the parties is unambiguous and the terms for an option to extend did not require the landlord to notify the tenant of any defaults that the tenant had not cured during the period in which the tenant could exercise its option. Under the circumstances here, the tenant was in default and was not entitled to extend the lease for an additional period. The judgment of the trial court is reversed and final judgment is entered on behalf of the landlord.

941963 River Place North Housing Corp. v. American Landma 09/15/1995 The trial court correctly ruled that a cooperative housing association was not permitted to obtain a personal money judgment against a purchaser at foreclosure for assessments of cooperative fees unpaid by the owners of proprietary leases which were the subject of the foreclosure, and that judgment is affirmed.

941971 Davis v. Henning 09/15/1995 The trial court correctly held that there was no express easement for the benefit of a particular parcel of land, but it incorrectly concluded that no implied easement exists and granted an injunction which is vacated.

942033 Wood v. Bass Pro Shops 09/15/1995 The trial court erred in a product liability action in allowing the jury to consider an assumption of the risk defense to a claim for breach of an implied warranty and its judgment is reversed and the case remanded.

942035 Clohessy v. Weiler 09/15/1995 In a case involving an accident between a motor vehicle and a pedestrian, the trial court erred in submitting the issue of willful and wanton negligence to the jury and in granting a particular jury instruction concerning contributory negligence; therefore, the judgment of the trial court is reversed and the case remanded for retrial.

942042 Parker v. Elco Elevator Corp. 09/15/1995 Because of errors in rulings made by the trial court which culminated in the entry of an order granting the defendant's motion for summary judgment in this negligence action, the judgment of the trial court is reversed and the case is remanded for further proceedings.$ib

942047 Gardner v. Phipps 09/15/1995 Because of the trial court's error in granting the contributory negligence and unavoidable accident instructions, the judgment below is reversed and the case is remanded for a new trial.

942076 Parker v. Miller 07/21/1995 Since no written notice was given to the owner of an abutting lot, as required by Code §§ 15.1-431 and -495, a zoning variance for construction of a convenience store on a lot considerably smaller than required by a city zoning ordinance for that use was granted without the proper authority. The judgment of the trial court is reversed, the decision of the board of zoning appeals is vacated, the variance is invalidated without prejudice, and the

941052 Stump v. Doe 06/09/1995 In a wrongful death case, since the factual issues were properly submitted to the jury and there was sufficient evidence to sustain a finding of causation and foreseeable injury, the judgment of the trial court setting the verdict aside is reversed and final judgment is entered for the plaintiff.

941106 Chappell v. Virginia Electric and Power Co. 06/09/1995 In this appeal from a judgment confirming the report of a panel of commissioners in a proceeding to condemn an easement, the landowner's testimony and the evidence he vouched for the record were insufficient to prove that the difference between the market value of the residue immediately before and immediately after the condemnation was greater than the award the commissioners made,

941129 Schultz v. Schultz 06/09/1995 In one of two pending litigations involving divorcing spouses, the trial court erred by failing to grant the wife's motion as 50% shareholder of a corporation to vacate an order that approved a plan of corporate dissolution and by denying her motion to intervene since a court cannot render a valid judgment when necessary parties are not before the court; the case is reversed and remanded.

941189 City of Manassas v. Board of Sup. 06/09/1995 In a case involving an inter-jurisdictional agreement between a city and the surrounding county, the chancellor correctly held that the city retained jurisdiction over a courthouse complex, that the county's counterclaim is not barred by the statute of limitations or laches, and that the city is required to institute proceedings to cede jurisdiction of the complex to the county as required by the agreement. The chancellor's decree is affirmed and the proceedings are remanded so that the chancellor may retain continuing jurisdiction over the matters.

941224 Food Lion Inc. v. Melton 06/09/1995 When an amendment to a response to a request for admissions is allowed by the trial court, the matters originally admitted are returned to the case as issues which must be proved, but the trial court erred in barring introduction of the original responses as evidence of the propositions they support. Since the error affected the presentation of evidence on the counts of defamation, insulting words, false imprisonment, and negligence, the plaintiff is entitled to a new trial on all those counts.

941229 Jones v. Harrison 06/09/1995 The trial court erred in failing to impose a constructive trust upon a certain portion of the life insurance proceeds in the defendant widow's hands for the benefit of the deceased's children by a prior marriage, pursuant to the terms of a property settlement agreement, and that judgment is reversed.

941247 Arrington v. Peoples Security Life Ins. Co. 06/09/1995 Since the trial court did not err in sustaining a plea of the statute of limitations in a case involving recovery of the proceeds under two life insurance policies, that judgment is affirmed.

941263 State Farm Mutual Auto. Ins. Co. v. Haines 06/09/1995 An admission under Rule 4:11 was binding upon a party and the trial court erred in admitting testimony to the contrary. Since there was no other evidence from which the jury could have found that the insured had given permission to her son-in-law to drive a particular vehicle, the trial court erred in failing to sustain the insurance company's motions to strike; final judgment is entered for the insurer, which is not obligated to provide a defense and coverage in the underlying tort action.

941269 Janus v. Sproul 06/09/1995 Since there was no writing which satisfied the requirements of the Statute of Frauds concerning an alleged guaranty agreement between the parties, the trial court properly sustained the plea in bar of the litigation and that judgment is affirmed.

941302 Trible v. Bland 06/09/1995 The trial court correctly held that a town has not violated the state statute on group homes by allowing a group home to be operated in a residential district, with a permit from the Department of Social Services and with more than eight disabled persons residing therein, because the town simply has been more permissive than the state statute in its definition of the type of group home permitted in such district. The trial court judgment is affirmed.

941414 Purcell v. Tidewater Construction Corp. 06/09/1995 The plaintiff's suit for retaliatory discharge from employment is not a suit for a positive, physical or mental hurt and he advances no other applicable limitation period, therefore his cause of action is subject to the limitation period established in Code § 8.01-248 and the judgment dismissing his action as untimely filed is affirmed.

941420 Reed v. Liverman 06/09/1995 The trial court erred in concluding that an order terminating a prior action with prejudice was not res judicata as to this subsequent action on the same promissory note, and that judgment is reversed and final judgment granted.

941437 Yeager v. Adkins 06/09/1995 The mere failure to appear in general district court to contest a traffic offense does not constitute a forfeiture within the plain meaning of Code § 8.01-418 and, therefore, the trial court did not err by refusing to admit the reckless driving conviction entered in the general district court, and that judgment is affirmed.

941440 McManama v. Plunk 06/09/1995 The defendant below had no justifiable expectation of a Rule 3:3 or statute of limitations defense under Virginia law that was entitled to protection under the due process clause of the Constitution and was not deprived of any other property interest, or prejudiced in any way, by the nonsuit and, consequently, the trial court erred in refusing to give limitations tolling effect as prescribed by statute to a prior order of nonsuit on the ground that its ex parte entry violated the constitutional guarantee of procedural due process and that ruling is reversed.

941446 Gibson v. Riverside Hospital Inc. 06/09/1995 Applying clear and unambiguous language contained in the statute, the plaintiffs' action does not fall within the exclusive jurisdiction of the Virginia Birth-Related Neurological Injury Compensation Act and the trial court erred in sustaining the defendants' special plea in bar; therefore, the judgment is reversed and the case is remanded.

941447 Vicars v. First Virginia Bank 06/09/1995 Considering the language used, a grantor conveyed all his interest in tracts of land which were specifically described in a deed and that language was not sufficient to convey mineral interests in a tract of land which was not specifically identified in the deed. The trial court judgment denying plaintiff's claim to an undivided one-half interest in the minerals and mineral rights to another tract formerly held by the same grantor is reversed and the judgment with respect to the damage issue is affirmed.

941465 Burns v. Johnson 06/09/1995 The plaintiff invitee did not present sufficient evidence to establish a duty upon the owner of land to protect the invitee from the criminal acts of a third person committed while the invitee was upon the premises; the judgment of the trial court in favor of the plaintiff is reversed and final judgment entered for the defendant.

941475 Little v. Ward 06/09/1995 In a case where there was friction between the original trustee and a co-trustee who was added after the irrevocable inter vivos trust was established, the judgment of the trial court is affirmed to the extent that it removed the co-trustee, but reversed to the extent that it removed the original trustee and named a new trustee in his place.

941562 Chaney v. Haynes 06/09/1995 The evidence was not sufficient to support the trial court's ruling that a prescriptive easement had been established for a right of way over subdivided lots providing access to a river, and the plaintiffs failed to prove an adverse use; therefore, the trial court's ruling approving the commissioner's report was plainly wrong and it is reversed.

941572 Holly's Inc. v. County of Greensville 06/09/1995 Since the award of a public contract reviewed in this case was not an honest exercise of discretion and not in accord with the terms and conditions of the invitation to bid, the plaintiff is entitled to reversal of the judgment of the trial court, a declaration that the contract is void, and a remand to the trial court for consideration of the plaintiff's prayer for injunctive relief.

941647 Sprouse v. Griffin 06/09/1995 In a case where one of the parties to a pending divorce action died after the marital home held by the couple as tenants by the entireties was sold but before the money was divided, the trial court correctly ruled that the funds became the sole property of the wife upon the husband's death and the ruling of the Court of Appeals that the trial court lacked jurisdiction to determine entitlement to the funds is reversed.

941648 Tarmac Mid-Atlantic Inc. v. Smiley Block Co. 06/09/1995 The trial court abused its discretion in excluding expert testimony on the basis that it lacked an adequate foundation and granted a motion to strike where there was sufficient evidence to create a question for the jury's determination. The judgment is reversed and the case remanded for a new trial consistent with the principles expressed in the opinion.

942189 Graham v. Commonwealth 06/09/1995 In a capital murder case, review discloses nothing to indicate that the jury was influenced by any arbitrary factor in imposing the death sentence and the jury's findings of both the "vileness" and the "future dangerousness" factors are amply supported by the evidence. The defendant's death sentence was not excessive or disproportionate, considering both the crime and the defendant, and the convictions and the sentence are affirmed.

942223 Royal v. Commonwealth 06/09/1995 The defendant was indicted for the capital murder of a police officer and use of a firearm in the commission of murder. He entered pleas of guilty on both charges and received sentences of death for the capital murder charge and three years imprisonment for the firearms charge. The defendant's appeal of the imposition of the death penalty is considered along with the automatic review of the death sentence to which he is entitled under Code § 17.110.1. No reversible error is found among the issues presented; the judgment of the trial court is affirmed.