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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 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 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. Martin 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 a 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 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

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.