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Supreme Court of Virginia Opinions and Published Orders

As of February 8, 2008 all opinions are Adobe Acrobat PDF documents. The Adobe Acrobat Viewer (free from Adobe) allows you to view and print PDF documents.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

120347 TravCo Insurance Co. v. Ward

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

112070 Inova Health Care v. Kebaish 09/14/2012 In a multi-theory civil action, the circuit court did not err in allowing the plaintiff to take a nonsuit as a matter of right pursuant to Code § 8.01-380(B) based on its determination that plaintiff’s prior voluntary dismissal of claims in federal court taken pursuant to Federal Rule of Civil Procedure 41 was not a nonsuit under Code § 8.01-380. Code § 8.01-229(E)(3) does not confirm or suggest that a voluntary dismissal taken pursuant to the federal rule is a nonsuit for purposes of Code § 8.01-380. Rather, the plain language of Code § 8.01-229(E)(3) demonstrates that the reference to actions originally filed in federal court applies only to the application of that statutory tolling provision. The judgment of the trial court is affirmed.

112096 Omega Protein, Inc. v. Forrest 09/14/2012 In a seaman’s action for personal injury under the Jones Act, 46 U.S.C. § 30104, plaintiff failed to present adequate evidence that his injury was caused by his employer’s alleged negligence. The trial court’s award of damages upon a jury verdict is reversed, and final judgment is entered for the defendant corporations and vessel.

112112 Byler v. VEPCO 09/14/2012 In two actions seeking recovery for reduction in property values because of a public utility’s construction of high-voltage electric lines for public use, the complaints did not, and could not, state a cause of action for declaratory relief for inverse condemnation where the sole damage alleged was a diminution in value owing to a proximity to property taken for a public use by eminent domain. Article I, Section 11 of the Constitution of Virginia does not function to waive sovereign immunity for the Commonwealth and its proxies in order to subject them to liability as private parties for any damage asserted by a property owner that might conceivably arise from an exercise of eminent domain, but operates as a waiver of immunity from having to pay compensation for the taking or damaging of a property right. Thus, while the circuit court applied the wrong standard in reviewing the pleadings, its judgment sustaining the demurrers was nonetheless correct under the proper standard. Combined case with Record No. 112113

112113 Wolfe v. VEPCO 09/14/2012 In two actions seeking recovery for reduction in property values because of a public utility’s construction of high-voltage electric lines for public use, the complaints did not, and could not, state a cause of action for declaratory relief for inverse condemnation where the sole damage alleged was a diminution in value owing to a proximity to property taken for a public use by eminent domain. Article I, Section 11 of the Constitution of Virginia does not function to waive sovereign immunity for the Commonwealth and its proxies in order to subject them to liability as private parties for any damage asserted by a property owner that might conceivably arise from an exercise of eminent domain, but operates as a waiver of immunity from having to pay compensation for the taking or damaging of a property right. Thus, while the circuit court applied the wrong standard in reviewing the pleadings, its judgment sustaining the demurrers was nonetheless correct under the proper standard. Combined case with Record No. 112112

112192 Kurpiel v. Hicks 09/14/2012 In an action for common law trespass alleging that defendants did not develop their land in a reasonable manner and that, as a result, storm water was directed onto the plaintiffs’ property, amounting to a trespass causing damage, the complaint alleged sufficient facts to state a cause of action based upon a violation of the modified common law rule applicable to surface water in Virginia, and the trial court erred in sustaining the defendant’s demurrer. The judgment is reversed and the case is remanded for further proceedings.

111363 Booker v. Dir., Dep’t of Corrections (ORDER) 06/08/2012 Upon consideration of the petition for a writ of habeas corpus filed July 27, 2011, and the respondent’s motion to dismiss, the Court is of the opinion that the motion should be granted and the writ should not issue. The order under which petitioner is detained was entered on June 16, 2009; thus, the petition, filed more than one year after that date, is untimely under Code § 8.01-654(A)(2). The petition is dismissed.

101006 Livingston v. Va. Dep’t of Transportation 06/07/2012 (Revised 08/02/2012) In a suit for property damage under the Just Compensation Clause in Article I, Section 11 of the Constitution of Virginia, it is held that a single event of flooding can support an inverse condemnation claim, and that the plaintiffs’ allegations that their homes and various items of personal property were damaged for a public use under Article I, Section 11 are sufficient to withstand demurrer. When VDOT constructs an improvement for the public benefit, it does not thereby become an insurer in perpetuity against flood damage to neighboring property, but a property owner may be entitled to compensation under Article I, Section 11 if VDOT’s operation of that improvement causes damage to real or personal property. Thus, where VDOT relocated the channel of a waterway in order to permit highway construction, but failed to maintain the relocated channel via dredging or otherwise, and that failure is alleged to have impacted the magnitude of the damage plaintiffs suffered as the result of the single flooding event at issue, VDOT’s choice not to maintain the relocated channel evinced its election to use the highway and nearby residential developments as makeshift storage sites for excess stormwater instead of allocating its resources to maintain the relocated channel. The contentions that plaintiffs lack standing to maintain an inverse condemnation suit and that they cannot recover under Article I, Section 11 for damage to personal property, are rejected. The circuit court’s judgment is reversed and the case is remanded for further proceedings.

110113 Steward v. Holland Family Properties 06/07/2012 In a suit for injuries from exposure to lead paint, the trial court did not err in sustaining demurrers filed by two landlords, because a tort duty with regard to tenants of leased properties is not imposed upon the landlords by the common law, by the leases executed in this case, or by provisions of the Virginia Residential Landlord and Tenant Act, Code §§ 55-248.2 et seq., relating to compliance with building and housing codes concerning public health and safety. The judgment of the circuit court, dismissing the complaint for failure to state a cause of action, is affirmed.

110114 21st Century Systems v. Perot Sys. Gov’t Services 06/07/2012 (Revised 08/02/2012) In an action on multiple theories, including breach of and interference with contract, breach of fiduciary duty, conspiracy, trade secret violation, and conversion, in which numerous employees of plaintiff allegedly left its employ, taking millions of dollars of accounts with them to establish a competitor in the same line of business, the trial court abused its discretion in admitting expert testimony for plaintiff regarding lost goodwill damages, and erred in refusing to set aside an award of lost goodwill damages based on that testimony. However, the trial court did not err when it refused to set aside the jury’s award of both punitive and treble damages, or when it refused to set aside the jury’s award of computer forensics damages. The judgment is affirmed in part and reversed in part, and the case is remanded.

110532 Belew v. Commonwealth 06/07/2012 In a criminal appeal, the Court of Appeals erred in declining to consider a transcript that was not filed within the 60-day period set forth in Rule 5A:8(a) but that was made part of the record as the correction of a clerical mistake by the circuit court under Code § 8.01-428(B) and Rule 5A:9. The magnitude of the mistake to be corrected is not relevant when applying Code § 8.01-428(B), and the circuit court had authority to correct the error under this statute prior to the defendant’s filing of her petition for appeal in the Court of Appeals. Thus, the circuit court also had the authority under Rule 5A:9 to make the missing transcript part of the record on appeal. The judgment of the Court of Appeals is reversed and the matter is remanded to the Court of Appeals with directions to review the petition on its merits, considering the missing transcript as part of the record.

110650 Cline v. Dunlora South, LLC 06/07/2012 (Revised 07/31/2012) A circuit court did not err in sustaining a demurrer to negligence and nuisance claims brought by a motorist severely injured when a tree located on private land fell onto a public roadway striking his vehicle. The common law precedent in Virginia does not impose a duty upon landowners to protect individuals traveling on an adjoining public highway from natural conditions on the landowner’s property. In a case where the complaint did not allege any affirmative act of the landowner making the property different from its natural state, or from its condition when the road was built, instead asserting liability based upon an alleged failure to act, the judgment sustaining the demurrer without leave to amend is affirmed and final judgment is entered for the landowner.

110820 City of Richmond v. Jackson Ward Partners 06/07/2012 (Revised 07/31/2012) In a taxpayer’s challenge to city real estate taxes assessed for multiple tax years on structures located on eight tax parcels that were renovated for use as a low-income, affordable residential housing development, the taxpayer failed to carry its burden to prove the fair market value of the eight parcels of real property at issue. By appraising the eight separate, non-contiguous parcels of real property in bulk as a single apartment complex, i.e., as one tax parcel, and then assigning a value to each tax parcel based on a mathematical calculation, the taxpayer’s appraiser failed as a matter of law to carry its burden to prove the fair market value of each parcel. For these reasons, the judgment of the circuit court is reversed and the case is remanded for entry of an order reinstating the city’s tax assessments on the eight parcels for the tax years in question.

111207 Funkhouser v. Ford Motor Company 06/07/2012 (Revised 10/10/2012) The decision in Funkhouser v. Ford Motor Co., previously reported at 284 Va. 214 (2012) was withdrawn by Order of the Court dated September 17, 2012, in which a rehearing of the appeal was granted.

111300 Napper v. ABM Janitorial Services 06/07/2012 (Revised 08/02/2012) In an office worker’s personal injury suit, arising from a fall in the public lobby area of the building while walking to the restroom, the circuit court erred when it sustained a plea in bar and dismissed the plaintiff’s suit with prejudice on the basis that the defendant janitorial services company was a statutory co-employee of the plaintiff under provisions of the Workers’ Compensation Act, Code §§ 65.2-100 through -1310. The judgment of the circuit court is reversed and the case is remanded for further proceedings consistent with this opinion.

111314 Mansfield v. Bernabei 06/07/2012 In an appeal from dismissal upon demurrer of a defamation action arising from statements in a “draft complaint” that was circulated to interested persons shortly before it was filed in substantially the same form, the circuit court did not err in finding that absolute privilege may attach to pre-filing communications relevant to litigation seriously contemplated in good faith. The judgment of the circuit court, dismissing the complaint on demurrer, is affirmed.

111377 Murayama 1997 Trust v. NISC Holdings 06/07/2012 (Revised 06/28/2012) The circuit court did not err in sustaining a demurrer to the second amended complaint filed by a trust seeking damages relating to a settlement agreement entered with the defendants in a previous litigation between the parties. Based upon the language of the settlement agreement and allegations regarding the adversarial relationship between the parties that precipitated the settlement, as a matter of law the trust did not reasonably rely upon any alleged fraudulent omissions and misrepresentations by the defendants regarding the value of the shares of stock that the trust sold as part of the settlement. The judgment sustaining the demurrer with prejudice is affirmed.

111396 Brandon v. Cox 06/07/2012 (Revised 09/26/2012) In a proceeding which began with a housing authority tenant’s warrant in debt in general district court to recover a security deposit, because the plaintiff failed to preserve the argument she advances on appeal, the argument is waived, and the judgment of the trial court is affirmed.

111406 Barson v. Commonwealth 06/07/2012 In an appeal from a misdemeanor conviction of “harassment by computer” pursuant to Code § 18.2-152.7:1, the Court of Appeals erred in substituting a dictionary definition of the term “obscene” for that provided by the General Assembly in Code § 18.2-372, which was adopted to comport with the constitutional requirements articulated by the United States Supreme Court. The definition of “obscene” provided by the General Assembly in Code § 18.2-372, and previously applied by the Court of Appeals, is controlling. In this case the defendant’s emails to his wife, as offensive, vulgar, and disgusting as their language may have been, did not meet the standard of obscenity provided by Code § 18.2-372. The judgment of the Court of Appeals is reversed and final judgment is entered vacating the conviction.

111439 Ilg v. United Parcel Service 06/07/2012 In Workers’ Compensation Act proceedings on an employer’s application to suspend benefits pursuant to Code § 65.2-708 for the alleged unjustified refusal of an injured employee to accept vocational rehabilitation services provided by the employer under Code § 65.2-603, the Court of Appeals erred in determining that the claimant was precluded from asserting that his refusal of rehabilitation was justified because he remained fully disabled by a hand injury related to the same accident for which he was receiving benefits for a compensable knee injury. Because there has not yet been a determination as to whether the disability related to claimant’s hand was, in fact, causally related to the accident, the case is remanded for the Commission to hold an evidentiary proceeding where the burden will be on the claimant to show that his refusal to participate in vocational rehabilitation was justified in light of his hand injury.

111490 Nolte v. MT Technology Enterprises 06/07/2012 (Revised 08/02/2012) In an action by a Delaware limited liability company against multiple defendants on claims for statutory conspiracy, tortious interference with economic expectancy, breach of contract and unjust enrichment, the foreign plaintiff was subject to the registration requirements of Code § 13.1-1057(A) and the trial court did not err in concluding that this requirement was met when it obtained a certificate from the State Corporation Commission after the jury verdict in this case but before the trial court entered its final order. A discovery sanction order under Rule 4:12(b), precluding several disobedient parties from opposing plaintiff’s claims at trial or presenting any defenses, was within the court’s discretion in the circumstances presented and is upheld, but the court abused its discretion in precluding those defendants from cross-examining plaintiff’s witnesses in the damage hearing. Objection to withdrawal of liability issues from the jury – first made in a post-trial motion 15 days after the jury instructions embodying this ruling were given – was untimely and this claim of error is barred because defendants did not state their objection with reasonable certainty at the time of the ruling as required by Rule 5:25. The judgment of the trial court is affirmed in part and reversed in part and the case is remanded for further proceedings on damages only, and defendants will be permitted to cross-examine witnesses and introduce evidence addressing the amount of damages.

111492 Rives v. Commonwealth (ORDER) 06/07/2012 In considering an appeal from defendant’s conviction for violating Code § 18.2-427 prohibiting the use of profane, threatening or indecent language over public airways, based on a series of telephone messages defendant left for a woman with whom he had recently been involved in an adulterous affair, using angry, vulgar, and threatening language, the question whether language used in telephonic communications is obscene for purposes of Code § 18.2-427 and the test applied in Miller v. California, 413 U.S. 15 (1973) is immaterial in cases involving threats to commit illegal or immoral acts, where the threat is made with the intent to coerce, intimidate or harass any person. Since the defendant’s language was clearly sufficient to enable a rational fact-finder to conclude that he was threatening the victim with physical injury in the form of a sexual offense, with the obvious intent to intimidate and harass her, his use of that language violated Code § 18.2-427. The conviction is affirmed.

111548 Piney Meeting House Investments v. Hart 06/07/2012 In an injunction action relating to alleged interference with use of an easement, the circuit court erred in sustaining certain exceptions to the report of a commissioner in chancery regarding a buried propane tank and a well. The court erred in concluding that a buried propane tank and well under an easement for ingress and egress constituted unreasonable interference with the easement owner’s rights as a matter of law, even if the improvements did not affect vehicular access. The circuit court’s award of costs to the prevailing party is affirmed, but its award of attorney’s fees is reversed. The judgment is affirmed in part and reversed in part, and the case is remanded for further proceedings.

111563 Turner, Mario L v. Commonwealth 06/07/2012 In a prosecution on charges of aggravated malicious wounding in violation of Code § 18.2-51.2, and a related firearm offense under Code § 18.2-53.1, the circuit court abused its discretion in ruling that a witness for the Commonwealth was unavailable to testify under criteria established in Sapp v. Commonwealth, 263 Va. 415, 559 S.E.2d 645 (2002). The court conducted no inquiry into the witness’ claim of memory loss, and in the absence of such an inquiry it had no basis for determining the authenticity of the claim, which is a relevant factor that should have been given significant weight in determining whether he was unavailable. The error was not harmless. The judgment is reversed, the convictions are vacated, and the case is remanded.

111569 Rushing v. Commonwealth 06/07/2012 (Revised 06/13/2012) In appeal from convictions for participation in a criminal street gang in violation of Code § 18.2-46.2(A), and use of a firearm in commission of burglary, expert testimony regarding another individual’s alleged gang-related crime, offered as part of the Commonwealth’s required showing of predicate acts by gang members, was insufficiently grounded upon facts in evidence. If the record is considered without the erroneously admitted evidence of the other individual’s conviction, the Commonwealth proved only one predicate crime committed by a gang member rather than the two required by the statute, and therefore failed to prove an essential element of the crime, and the Court of Appeals erred in affirming the defendant’s conviction for gang participation. The Commonwealth concedes in light of the decision in Rowland v. Commonwealth, 281 Va. 396, 707 S.E.2d 331 (2011) that evidence against this defendant was insufficient to support the conviction for use of a firearm in commission of burglary because there was no proof that the firearm was used before entry was fully accomplished. Both convictions reviewed on this appeal are reversed, and final judgment is entered for the defendant on those two charges.

111658 Town of Leesburg v. Long Lane Associates 06/07/2012 In litigation challenging the rezoning of certain property, the circuit court erred in finding that a locality needs the consent of a neighboring property owner to rezone a parcel that was originally part of an undivided property, to which certain proffers applied. While the landowner has a vested right under Code § 15.2-2307 in the land use allowed by a subdivision rezoning ordinance, it has no vested right in its expectation that neighboring properties would continue to develop in accordance with the zoning they had at the time the landowner purchased its property and developed it in accordance with the prior proffers, even where the property was subdivided from a parcel which was rezoned subject to proffered conditions. Code § 15.2-2303(A) does not require all successors in title to agree prior to any portion of the subdivided parcel being rezoned. The town acted pursuant to its statutory authority in rezoning the neighboring property and granting it a special use permit, and there is no evidence that its actions were unreasonable. A landowner cannot acquire a vested right in a road shown on a town plan. The town’s amendment of the town plan was a legislative act that did not require the landowner’s consent and was not unreasonable. The judgment of the circuit court is reversed and final judgment is entered.

111771 Giordano v. McBar Industries, Inc. 06/07/2012 In a wrongful death action, the circuit court did not err in holding that the exclusive remedy provision of the Virginia Workers’ Compensation Act, Code § 65.2-307(A), bars a non-dependent individual who is not eligible to collect benefits under the Act from bringing an action in tort. However, the trial court erred in holding that this provision of the Act bars an action in tort against the supplier of a product used in the construction process who was not engaged in the trade, business, or occupation of the decedent’s employer and was thus an “other party” to whom the exclusivity provision does not apply. The judgment is affirmed in part and reversed in part, and the case is remanded.

111805 Hill v. Fairfax County School Board 06/07/2012 In proceedings under the Virginia Freedom of Information Act, Code § 2.2-3700 et seq., the circuit court did not err in determining that certain exchanges of e-mails between members of a local school board did not constitute a “Meeting” within the meaning of Code § 2.2-3701 and, thus, did not violate the notice and open meeting requirements of the Act. Nor did the circuit court err in concluding that because the citizen requesting information under the Act had not substantially prevailed on the merits of the case as provided in Code § 2.2-3713(D) in the principal focus of the petition, she was not entitled to an award of attorneys’ fees and costs. The judgment of the trial court is affirmed.

111956 Gleason v. Commonwealth 06/07/2012 In the statutorily-mandated review of two death sentences under Code § 17.1-313, considering whether the sentences were imposed under the influence of passion, prejudice or any other arbitrary factor, and whether the sentences are excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, the judgment of the circuit court is affirmed.

110349 Thorpe v. Ted Bowling Construction 05/04/2012 In a claim for workers’ compensation benefits brought by the widow of a man who was killed while performing work on a single task for which he was to be paid $2,500, regardless of how long the work took, the burden of proof was upon the claimant to establish a basis for computing decedent’s average weekly wage beyond the fact of his single transaction with this employer. Since decedent had never worked in this occupation or for this employer before, and there was no evidence that he would ever do so in the future, it would manifestly not be fair and just to both parties to impose on the employer an award based on the assumption that the employee was hired for a continuing wage of $2500 per week. The judgment of the Court of Appeals, upholding the Workers’ Compensation Commission’s award of weekly benefits calculated by dividing the one-time compensation in this case by 52 to arrive at an average weekly wage of $48.08, is affirmed.

100764 AES Corporation v. Steadfast Insurance Co. 04/20/2012 (Revised 04/23/2012) In a declaratory judgment action filed by an insurance carrier against its insured, the circuit court did not err in ruling that a civil complaint filed against the insured, asserting that it was liable for damages to an Alaskan village caused by global warming attributable to the insured’s intentional release of large amounts of greenhouse gases in the course of its energy production and distribution business, did not allege an “occurrence” as that term is defined in the underlying contracts of commercial general liability insurance. Even if the insured was actually ignorant of the effect of its actions and/or did not intend for such damages to occur, the village alleges that its damages were the natural and probable consequence of the company’s intentional actions, and therefore does not allege property damage that was the result of a fortuitous event or accident, and such loss is not covered under the relevant policies. Accordingly, the circuit court correctly held that the insurer did not owe its insured a defense or liability coverage. The judgment is affirmed. Opinion of September 16, 2011 set aside by Order dated January 17, 2012 granting petition for rehearing.

110380 Russell Realty Associates v. Russell 04/20/2012 In an action seeking judicial dissolution and winding up of a partnership pursuant to Code § 50-73.117(5), there was sufficient evidence to support the circuit court’s grant of judicial dissolution of the partnership based on its findings that the economic purpose of the partnership was likely to be unreasonably frustrated and that the business can no longer practicably operate in conformity with the partnership agreement. The judgment is affirmed.

110394 Arnold v. Wallace 04/20/2012 In a personal injury suit arising from an automobile collision, a sufficient foundation was laid for admission of the plaintiff’s “medical chart” through testimony of a doctor in the practice group which treated her, explaining the regular preparation of the record and reliance upon it in treating plaintiff. It is not the offering party’s obligation to negate the presence of opinions within a proffered business record; rather, it is incumbent upon the objecting party to identify any inadmissible opinion in the record, and plaintiff’s objection to the “foundation” for this exhibit was insufficient to apprise the circuit court of additional specific objections to inadmissible opinions within the record. The trial court also did not err in refusing to disqualify a defense expert witness because she was a member of the same medical practice group as an expert plaintiff had initially retained in the case, since there was no showing that any confidential or privileged information was conveyed by plaintiff to the first expert, or by him to the defense witness. The judgment awarding plaintiff $9,134 is affirmed.

110410 Professional Bldg. Maintenance Corp. v. School Board 04/20/2012 In a lawsuit asserting causes of action under the Virginia Public Procurement Act, Code § 2.2-4300 et seq., the plaintiff’s allegations that it submitted the lowest bid in response to a contract solicitation by a county school board, which failed to either award it the contract or to determine that plaintiff was not “responsible” as required by the Act, and that certain scores given to its bid had no basis in fact and did not bear a rational relationship with the information provided, were not merely conclusory averments, and sufficiently state a cause of action under the Act. Thus the circuit court erred in sustaining the defendant’s demurrer, and the action is remanded for further proceedings consistent with this opinion.

110433 Keith v. Lulofs 04/20/2012 (Revised 04/23/2012) In a challenge to probate of a will, the circuit court did not err in ruling that the party challenging the will failed to prove by clear and satisfactory evidence that a prior will executed by the present decedent as a “mirror image” to that of her then husband created irrevocable, reciprocal wills, contractually barring the decedent from executing a valid replacement will with a different disposition of her estate. The judgment admitting a later will to probate as the governing testamentary instrument is affirmed.

110485 Laws v. McIlroy 04/20/2012 In related personal injury actions arising from a vehicular accident, the circuit court erred in granting the defendants’ motions to dismiss and plea in bar after the plaintiffs requested nonsuit of their original complaints, no action was taken on that application, they filed identical replacement actions, and then the nonsuit of the original actions was granted. The circuit court erred in holding that the tolling provisions of Code § 8.01-229(E)(3) only apply when a circuit court enters the nonsuit order before a plaintiff refiles his complaint. Accordingly, the judgment of the trial court dismissing these actions with prejudice as time-barred is reversed and the cases are remanded for further proceedings.

110669 PBM Nutritionals v. Lexington Insurance Company 04/20/2012 (Revised 04/23/2012) In a declaratory judgment action by a manufacturer of infant formula that was premised on several policies of insurance, seeking interpretation of policy language as well as exclusion and exception endorsements, and a declaration of coverage, the circuit court did not err in construing pollution exclusion endorsements in the commercial insurance policies as precluding coverage for a multi-million dollar loss resulting from contamination of numerous batches of plaintiff’s infant formula attributed to an unintended disintegration of water filters occurring during the manufacturing process. The judgment is affirmed.

110692 Cattano v. Bragg 04/20/2012 In a suit brought by one member of a two-person legal professional corporation, where the totality of circumstances showed that the plaintiff fairly and adequately represented the interests of the corporation as required under Code § 13.1-672.1(A), the circuit court did not err in permitting her to pursue a derivative claim at the same time that she sought judicial dissolution of the firm, and did not err in refusing to send the question of fair and adequate representation under Code § 13.1-672.1(A) to the jury where the facts relevant to that determination were undisputed. Judicial dissolution is a remedial mechanism that exists in addition to, rather than as a substitute for, shareholders rights. It therefore cannot act as a per se bar to a derivative claim, and the additional advantage of providing a limited fee-shifting mechanism in a derivative claim is a deliberate policy choice on the part of the General Assembly, not a reason to bar such a claim. The circuit court did not err in awarding plaintiff attorneys’ fees and costs incurred in pursuing the derivative claim, which conveyed a substantial benefit to the firm in recovery of over $234,000 in wrongfully converted funds, did not err in awarding plaintiff fees to redress the corporation’s refusal to permit her to inspect corporate documents under Code § 13.1-773.1, and did not abuse its discretion in determining the amount of the fees and costs awarded. The judgment of the circuit court is affirmed.

110733 Seabolt v. County of Albemarle 04/20/2012 The circuit court lacked subject matter jurisdiction to hear a tort claim against a county arising from the alleged failure to maintain a public park, and did not err in dismissing the complaint. Counties, as political subdivisions of the Commonwealth, enjoy the same tort immunity as does the sovereign and cannot be sued unless and until that right and liability are conferred by law. Neither the Virginia Tort Claims Act, nor the recreational facilities statute, Code § 15.2-1809, waives the immunity of Virginia counties from tort claims, and the presentment and appeal provisions in Code §§ 15.2-1243 et seq. also do not abrogate sovereign immunity of counties in tort. The judgment of the circuit court dismissing the complaint is affirmed.

110754 Burns v. Gagnon 04/20/2012 In a suit alleging negligence and gross negligence against an assistant high school principal for failure to prevent an attack upon the plaintiff by a fellow student, there was no evidence that this defendant knew or should have known that plaintiff was in danger of serious bodily injury or death, and no “special relationship” is found between principal and student. The principal had a duty to supervise and care for the plaintiff as a reasonably prudent person would under similar circumstances. The issue whether he undertook the duty to investigate a reported threat of an impending attack, and to notify security personnel, is a factual matter to be determined on remand, along with whether plaintiff can show the elements for liability set forth in the Restatement (Second) of Torts § 324A. While the principal does not have immunity under Code § 8.01-220.1:2, common law sovereign immunity applies because he was required to exercise judgment and discretion in responding to the reported threat of an attack. However, the common law immunity of the principal does not obviate claims for gross negligence, and the trial court erred in refusing to instruct the jury on that theory. Various statements admitted in the prior trial were either non-hearsay or admissible under an established hearsay exception, and thus it was not an abuse of discretion to admit them. The case is affirmed in part, reversed in part, and remanded for a new trial limited to the gross negligence claim against this defendant.

110849 Orthopedic & Sports P.T. Assocs. v. Summit Group Properties 04/20/2012 In a lawsuit brought by a limited liability company that owned a medical office building asserting claims for breach of a lease contract and damages, in which the defendant tenant filed counterclaims alleging fraud in the inducement, the trial court erred in giving an instruction to the jury that it could only find liability of the LLC for fraudulent activity if the conduct was approved by the members of the LLC. The instruction was misleading because it was not a complete statement of the law concerning whether the activity was in the normal course of the business of the LLC. The judgment of the circuit court implementing a jury verdict for the plaintiff LLC is reversed and the case is remanded.

110967 Mathews v. PHH Mortgage Corp. 04/20/2012 (Revised 05/01/2012) A landowner who has breached a deed of trust by failing to make payments as required under the associated note may nevertheless enforce its conditions precedent, and the prerequisites to foreclosure set forth in 24 C.F.R. § 203.604 are incorporated as conditions precedent in a deed of trust that secures indebtedness insured by the Federal Housing Authority under regulations promulgated by the Secretary of Housing and Urban Development under the National Housing Act, 12 U.S.C. §§ 1701-1750jj, including 24 C.F.R. § 203.604. Accordingly, while the circuit court correctly determined that the requirements of the C.F.R. provision were incorporated into the deed of trust, it erred in concluding that the landowners could not sue to enforce the conditions precedent in the deed of trust and prevent the mortgagee’s foreclosure action because they had breached the deed of trust first through non-payment. The trial court also erred in concluding that 24 C.F.R. § 203.604 did not apply to the landowners because the mortgagee did not have a “servicing office” within 200 miles of the mortgaged property. The judgment sustaining the mortgagee’s demurrer and dismissing the landowners’ complaint is affirmed in part and reversed in part, and the case is remanded for further proceedings.

111067 Environmental Staffing Corp. v. B & R Construction Mgmt. 04/20/2012 (Revised 04/24/2012) In a sub-subcontractor’s action for payment, based on a claim that the plaintiff was a third-party beneficiary under a contract between a developer and a prime contractor to perform demolition work on a public works project, the circuit court did not err in sustaining a demurrer filed by the demolition company because the parties to the underlying contract did not intend to confer any third-party benefits, and plaintiff only benefitted incidentally from the contract. The judgment of the circuit court, dismissing the claims with prejudice, is affirmed.

111144 Deerfield v. City of Hampton 04/20/2012 In a declaratory judgment proceeding against a city and a developer, brought by a committee of citizens initially constituted pursuant to a city charter provision to seek a referendum on repeal of an ordinance, the circuit court did not err in dismissing the action, albeit for the wrong reason. After the city council’s action repealing the ordinance, the citizens’ committee lacked standing to challenge the development. The judgment of the circuit court dismissing the committee’s complaint is affirmed.

111497 Wyatt v. McDermott 04/20/2012 (Revised 04/24/2012) In response to questions of law certified to the Court by the United States District Court for the Eastern District of Virginia, pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, regarding whether Virginia recognizes tortious interference with parental rights as a cause of action, that question is answered in the affirmative, and the elements of that tort are set forth in this opinion. The common law derivation and present application of the tort, along with important affirmative defenses, are discussed.

091615 Porter v. Warden (Habeas Corpus Order) 03/02/2012 In a petition for a writ of habeas corpus filed by a prisoner convicted of capital murder, a firearms offense and grand larceny, considering procedural issues and multiple asserted claims for habeas corpus relief, no grounds for granting the writ are found, and the various claims alleging ineffective assistance of counsel are rejected as not satisfying the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984). The petition is dismissed.

101909 John Crane, Inc. v. Hardick 03/02/2012 In a suit for wrongful death arising from decedent’s exposure to asbestos, under United States Supreme Court precedent construing general maritime law, the Federal Death on the High Seas Act, 46 U.S.C. §§ 30301 et seq., and The Jones Act, 46 U.S.C. §§ 30104 et seq., the circuit court erred when it permitted the jury to award non-pecuniary damages since decedent was a Navy sailor exposed to asbestos both in territorial waters and on the high seas. Evidentiary issues are also discussed. The judgment of the trial court is affirmed in part and reversed in part, and the case is remanded for entry of a final order. Rehearing was granted on specified issues in John Crane, Inc. v. Hardick, 283 Va. 358 (2012) by Order of the Court dated May 1, 2012. Rehearing was granted on specified issues and the decision modified on Sept. 14, 2012

102138 Christy v. Mercury Casualty Company 03/02/2012 In an action by an insured to recover for medical expenses incurred under an automobile insurance policy, the circuit court correctly determined that an exclusion in the policy barred the policyholder from receiving any payment for medical expenses because a portion of those expenses had been paid by workers’ compensation benefits. The language of the exclusion is clear that it applies to the circumstances under which the insured’s injuries occurred, not whether payment under the applicable workers’ compensation law was actually forthcoming. Accordingly, as it is not disputed here that the accident arose out of and in the course of the insured’s employment, the phrase “to the extent that benefits therefor are in whole or in part payable under any [workers’] compensation law” in the exclusion permits the insurer to deny coverage for any expenses which would have been subject to workers’ compensation coverage, without regard to whether all of those expenses were actually paid. The exclusion is not merely a set-off for workers’ compensation benefits actually paid but, rather, operates to limit the scope of the coverage of the automobile insurance policy. The judgment is affirmed.

102144 Bowman v. Concepcion 03/02/2012 In a medical malpractice action, the requirement for a plaintiff to obtain service of process on a defendant within 12 months of filing an action, Code § 8.01-275.1 and Rule 3:5(e), was not subject to extension by the circuit court for “good cause,” and the court correctly determined that the plaintiff’s failure to obtain service on the defendant within 12 months from the filing of the complaint resulted from a lack of due diligence on her part. The judgment dismissing the action with prejudice is affirmed.

102176 Wakole v. Barber 03/02/2012 In a personal injury case, the circuit court did not err in allowing counsel for plaintiff to argue in closing that each item of damage was separate and had a fixed numerical value based on a formula provided by the circuit court, or in permitting her counsel to enumerate each item of damages to the jury during closing argument. As presented, the argument made for specific amounts for various types of damages did not invade the province of the jury, nor did it violate Code § 8.01-379.1. The judgment of the trial court upon a jury verdict for plaintiff is affirmed.

102196 Specialty Hospitals v. Rappahannock Goodwill Industries 03/02/2012 In a suit asserting claims for breach of contract, conversion, and quantum meruit arising from alleged non-payment of amounts due under a rental laundry-linen agreement, the circuit court did not abuse its discretion in refusing to grant the defendant foreign limited liability corporation relief from a default judgment entered against it for over $815,000. At a hearing, defendant presented no evidence to show either that the information contained in the affidavit for service was in error concerning the person to be served or the address of the registered agent as the appropriate registered agent for this defendant, or that the information in the affidavit was false or incorrect. Thus, the circuit court concluded that notice was provided through proper service by plaintiff under Virginia law. The judgment is affirmed.

102270 Bing v. Haywood 03/02/2012 In an action alleging assault and battery as well as intentional infliction of emotional distress arising out of an allegedly illegal search of the body cavities of a pretrial detainee by corrections personnel, the circuit court did not err when it granted a special plea of the statute of limitations because the action was filed beyond the one-year period prescribed by Code § 8.01-243.2 for commencement of claims related to “conditions of confinement.” Plaintiff was “confined” within the meaning of that Code provision and a body cavity search prior to placement of a prisoner in the prison population is related to the conditions of her confinement in order to prevent contraband, whether drugs, weapons, or other substances, from entering the facility. The judgment of the circuit court is affirmed.

102342 St. Joe Company v. Norfolk Redev. and Housing Authority 03/02/2012 In an action alleging unjust enrichment, the circuit court did not err in imposing a constructive trust on funds removed from a debtor’s operating account by a secured creditor with a perfected interest in the account, when those funds were entrusted to the debtor in its capacity as the agent of a third party. Imposition of a constructive trust was proper and necessary to prevent a failure of justice, and unjust enrichment. The judgment is affirmed.

102359 Cuccinelli v. Rector and Visitors of University of Virginia 03/02/2012 (Revised 09/12/2012) In a petition by the University of Virginia to set aside two civil investigative demands issued to it by the Attorney General of Virginia, pursuant to the Virginia Fraud Against Taxpayers Act, Code §§ 8.01-216.1 through -216.19, the University is not a “person” under the Act, and there is neither an express nor necessary implication that the Act provides the Attorney General with authority to issue CIDs to Commonwealth agencies. The plain meaning of the statute shows that the General Assembly did not intend Code § 8.01-216.2 to include agencies of the Commonwealth in its definition of “person”, and the term “corporation” as used in the Act is not sufficient to expressly include corporate agencies of the Commonwealth such as public universities. The ruling of the circuit court setting aside the CIDs is affirmed on the grounds stated in this opinion, and final judgment is entered in favor of the petitioning University.

102360 Commonwealth v. Blaxton 03/02/2012 In proceedings pursuant to the Sexually Violent Predators Act, §§ 37.2-900 et seq., the respondent, who had been adjudged a sexually violent predator, could not be conditionally released for supervision outside the Commonwealth on the basis of being subject to supervised probation for another crime and therefore eligible for transfer under the Interstate Compact for the Supervision of Adult Offenders, Code §§ 53.1-176.1, et seq. The judgment of the circuit court adopting a conditional release plan prepared by the Department of Behavioral Health and Developmental Services and ordering respondent’s supervision to the state of Illinois is reversed, and the case is remanded for further proceedings regarding whether there is any suitable, less restrictive alternative to involuntary inpatient treatment, consistent with the Sexually Violent Predators Act.

102409 City of Richmond v. SunTrust Bank 03/02/2012 The question presented by this appeal is whether a municipal corporation has the authority to tax a non-exempt entity for the exempt entity’s ownership interest in property owned by the two entities as tenants in common. Because the municipal corporation’s arguments based on purportedly applicable case authority and a non “public purpose” use theory are without merit, and its statutory authority argument is procedurally barred, the circuit court’s judgment ruling that the city lacked the authority to impose the tax is affirmed.

102416 Galumbeck v. Lopez 03/02/2012 In a wrongful death action alleging medical malpractice relating to a plastic surgery procedure performed upon the decedent and post-operative failure to properly deal with the conditions reported by the patient’s family, the trial court did not err in denying the defendant physician’s motion for a mistrial due to a juror’s alleged misconduct where the juror was able to explain his actions, or in admitting into evidence unpaid medical bills relating to the procedure performed. Certain evidentiary arguments were not properly preserved for appellate review because of off-the-record conferences and the absence of a proper proffer. The judgment of the trial court upon a jury verdict for plaintiff is affirmed.$ib

110187 Gerald T. Dixon, Jr., L.L.C. v. Hassell & Folkes 03/02/2012 In a contract lawsuit brought by a former landowner against the company that surveyed and marked boundary lines of a parcel of land after sending a letter agreement proposal to the owner, because this writing expressly required the owner’s signature as a condition precedent to it becoming a written contract and the owner failed to sign it, there was no written contract. Accordingly, the owner’s cause of action was subject to the three-year statute of limitations for unwritten contracts set forth in Code § 8.01-246(4) and was barred by the time the complaint was filed. The judgment of the circuit court sustaining a plea of the statute of limitations is affirmed.

110323 Askew v. Collins 03/02/2012 In a defamation action in which the jury found defendant liable for one particular statement, and returned a verdict for compensatory and punitive damages, the trial court did not err in refusing to set aside the verdict, nor did the trial court err in refusing to set-off credit against the judgment for amounts paid in settlement by other parties sued by the plaintiff, pursuant to Code § 8.01-35.1, because that provision only applies where the other sums were received relating to the “same injury” as that for which judgment has been awarded. The judgment is affirmed.

110348 Virginia Commonwealth University v. Su 03/02/2012 Because it cannot be reasonably said on the administrative record that a Virginia public university’s decision denying a student’s application for in-state tuition benefits was arbitrary, capricious, or otherwise contrary to law, the circuit court erred by reversing the University’s decision. The judgment is reversed and final judgment is entered.

110523 E.C. v. Virginia Dep’t of Juvenile Justice 03/02/2012 In a habeas corpus proceeding brought by a petitioner who was charged in the Juvenile and Domestic Relations District Court with rape and other crimes at age 15, adjudged delinquent, committed to the Department of Juvenile Justice, required to register as a sex offender, and released from custody on parole prior to filing the habeas corpus application, the circuit court erred in granting the Department’s motion to dismiss on the basis that petitioner was released from parole six days after the filing of his petition for habeas corpus relief and that, in the absence of detention, it had no jurisdiction to consider a petition for a writ of habeas corpus, or on the alternative ground that the petition was moot because the petitioner was under no form of confinement or detention. The habeas corpus statutes vested the circuit court with subject matter jurisdiction of the proceeding and active jurisdiction arose because the petitioner was “detained” for purposes of habeas corpus when the petition was filed. Release from confinement, probation or parole during the pendency of the proceeding does not automatically render the proceeding moot, and the collateral consequences of a conviction challenged in a habeas corpus proceeding may be considered in determining whether the proceeding is moot. The circuit court’s judgment that it did not have jurisdiction to consider the petition and that the habeas corpus proceeding was moot is reversed, and the case is remanded for further proceedings.

110711 LaCava v. Commonwealth 03/02/2012 In an appeal begun pro se by a defendant convicted of embezzlement in the circuit court, the Court of Appeals erred in denying her motion, made after counsel was obtained, to extend the time for filing transcripts under Rule 5A:8(a). It was error to require the appellant to show good cause why the motion was not filed within 60 days from the entry of final judgment. Because the Court of Appeals considered and gave significant weight to an irrelevant and improper factor, it abused its discretion. Upon review of the facts of this case, the appellant has shown good cause to extend the period for filing transcripts. The order of the Court of Appeals denying the motion to file transcripts is therefore vacated. Its order denying her petition for appeal is vacated because it was predicated solely on the absence of a transcript or statement of facts. The case is remanded to the Court of Appeals to consider the petition for appeal on its merits with the transcripts incorporated into the record on appeal.

110818 Enriquez v. Commonwealth 03/02/2012 In an appeal from a conviction for driving or operating a motor vehicle while under the influence of alcohol in violation of Code § 18.2-266, where the accused was found in an intoxicated condition in a motor vehicle parked on a public street, with the keys in the ignition switch, the conviction is affirmed. When an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of Code § 18.2-266. The judgment of the Court of Appeals upholding the conviction is affirmed.

111297 Burrell v. Commonwealth 03/02/2012 A criminal sentencing order following a guilty plea to attempted rape was void ab initio due to a provision stating that the court would reduce the conviction from a felony to a misdemeanor following the defendant’s incarceration and successful completion of probation. The circuit court did not have the power to render a judgment reducing the conviction from a felony to a misdemeanor more than five years after its entry of the sentencing order. Because what would have happened had the parties and the court known that the court lacked power to render part of this sentence is speculative, the ultra vires provision in the sentencing order results in the entire sentencing order being void ab initio. The circuit court’s judgment denying defendant’s motion to vacate the sentencing order is reversed, the sentencing order is vacated, and the case is remanded for sentencing.

111394 First American Title Insurance v. Western Surety Co. 03/02/2012 In response to questions of law certified to the Court by the United States Court of Appeals for the Fourth Circuit pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, it is held that that: (1) the Virginia Consumer Real Estate Settlement Protection Act does not recognize a private cause of action that may be asserted against a surety and the surety bond issued pursuant to former Code § 6.1-2.21(D)(3); (2) Virginia law nonetheless permits a cause of action against a surety and the surety bond executed pursuant to CRESPA by the assertion of a common law claim; and (3) a title insurance company may have standing, not in its own right, but as a subrogee of its insured, to maintain a cause of action against a surety and the surety bond issued pursuant to former Code § 6.1-2.21(D)(3).

111438 Casey v. Merck & Co., Inc. 03/02/2012 In response to two certified questions accepted pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, arising from lawsuits in the federal courts of New York, on appeal to the United States Court of Appeals for the Second Circuit, the Court responds that (1) Virginia law does not permit equitable tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction, and (2) Code § 8.01-229(E)(1) does not permit tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction.

101168 Campbell County v. Royal 01/13/2012 (Revised 01/30/2012) In an action by landowners for damages resulting from contamination of groundwater, the trial court erred in granting summary judgment for the plaintiffs under the “Discharge of Oil Into Waters” Law, Code § 62.1-44.34:14 through § 62.1-44.34:23, because those statutes do not apply to the passive, gradual seepage of leachate and landfill gas into groundwater. Since no damage instruction was tendered setting forth the proper measure of recovery on the plaintiff’s alternative claim for inverse condemnation, there is no basis on which the plaintiffs can pursue that claim or retain the jury’s award of damages. The judgment is reversed and final judgment is entered for the county.

101352 Jean Moreau & Assoc. v. Health Center Comm’n 01/13/2012 In an action by a contracting party against a county healthcare commission arising out of an agreement to plan and develop an independent-living community, the circuit court did not err in dismissing a breach-of-contract claim because plaintiff did not comply with the contractual claims procedure for timely submission of claims under the Virginia Public Procurement Act, Code §§ 2.2-4300 through 2.2-4377, and did not err in finding that a quantum meruit claim was barred by the doctrine of sovereign immunity because it arose out of the commission’s exercise of a governmental function. The judgment of the circuit court is affirmed.

101408 Moore v. Virginia International Terminals 01/13/2012 In a wrongful death and premises liability case, the circuit court erred in sustaining a plea in bar on the ground that the parties were statutory employees of the Virginia Port Authority and therefore subject to the exclusive remedy provisions of the Virginia Workers’ Compensation Act. The judgment is reversed and the case is remanded for further proceedings.

101411 Collelo v. Geographic Services, Inc. 01/13/2012 (Revised 06/11/2012) In considering claims against a former employee and two entities by whom he later became employed, alleging breach of contract, tortious interference with a contract, and violations of the Virginia Uniform Trade Secrets Act arising out of the employee’s disclosure and unauthorized use of trade secrets to his new employers, the trial court erred when it dismissed the plaintiff’s claims under the Trade Secrets Act. The trial court did not err in dismissing plaintiff’s claims for breach of contract, tortious interference and attorneys’ fees, or in denying the individual defendant’s motion for attorneys’ fees relating to the breach of contract claim. The judgments appealed from are affirmed in part and reversed in part. The case is remanded for a new trial on claims under the Trade Secrets Act.

101476 Blue Ridge Env. Defense League v. Commonwealth 01/13/2012 In an appeal from a circuit court ruling setting aside a portion of the State Water Control Board’s reissuance of a five-year water discharge permit for heated water from a nuclear power plant, the Court of Appeals’ judgment, reversing the circuit court’s decision, is affirmed for the reasons set forth in Commonwealth v. Blue Ridge Environmental Defense League, Inc., 56 Va. App. 469, 694 S.E.2d 290 (2010).

101630 Dykes v. Friends of the C.C.C. Road 01/13/2012 In a suit for an injunction to bar owners of real property from interfering with use of a road over their property, which the plaintiffs contended was a public road, the circuit court did not err in finding that there had been no dedication and acceptance of the road as a public road. There can be no implied acceptance of an implied dedication of a rural road, and there is no evidence of a formal acceptance of the road in this case. However, the circuit court erred in finding that the road is public solely by virtue of its long and continuous use by the general public and recognition of that use by the county. The law of this Commonwealth simply does not allow for a conversion of private property to public property solely by public use. The judgment of the circuit court granting a permanent injunction and requiring the property owners to remove the pole gates and to allow the general public unrestricted access to the road is reversed, and final judgment is entered for the property owners.

101761 Eberhardt v. Fairfax County Employees’ Retirement System 01/13/2012 In a circuit court proceeding seeking review of the denial of service-connected disability retirement benefits by a county, ostensibly pursued under Code § 51.1-823, the court lacked subject-matter jurisdiction to hear the appeal because that Code provision applies only to police officer retirement systems in counties with the urban executive form of government. The judgment of the circuit court granting a motion to dismiss the proceeding is affirmed.

101831 Sinclair v. New Cingular Wireless PCS, LLC 01/13/2012 (Revised 03/30/2012) In a challenge to Albemarle County Code § 18-4.2.5, the circuit court correctly determined that waivers permitting construction on certain slopes within the county are not variances within the meaning of Code § 15.2-2201 and therefore need not be considered solely by the board of zoning appeals under Code § 15.2-2310 using the criteria set forth in Code § 15.2-2309(2). However, the circuit court erred in ruling that such waivers may be granted or denied by the planning commission because the General Assembly has authorized local governing bodies to delegate such legislative power only to the zoning administrator or board of zoning appeals. Accordingly, the judgment is affirmed in part, reversed in part, and the case is remanded.

101836 Northern Virginia Real Estate v. Martins 01/13/2012 In sanction proceedings following nonsuit – after a three-day presentation of plaintiff’s evidence on claims for contract expectancy, conspiracy and defamation arising from a real estate transaction – the trial court had authority under Rule 1:1 to suspend the nonsuit order and, by explicitly doing so, it properly retained jurisdiction to consider and impose sanctions. The circuit court did not abuse its discretion when it imposed sanctions jointly and severally against the plaintiff real estate company and broker, as well as their attorney, pursuant to Code § 8.01-271.1. The circuit court also did not abuse its discretion in determining the amount of the sanctions, totaling approximately $270,000, particularly in light of its finding that the plaintiffs and their attorney filed the underlying action for an improper purpose and without a proper basis in law and in fact. The argument by the sanctioned attorney that it was error to deny his motion for a suspending order in connection with reconsideration of the sanction award without hearing oral argument is without merit. The judgment of the circuit court is affirmed.

101901 Weedon v. Weedon 01/13/2012 In a suit by four adult children of a decedent, challenging a will which made a fifth sibling the primary beneficiary of the decedent’s estate, the circuit court’s findings that the decedent lacked testamentary capacity and was unduly influenced when executing the contested will are reversed, and the case is remanded with instructions that the contested will be admitted to probate.

101902 Redifer v. Chester 01/13/2012 In an employee’s suit for personal injuries against an employer which had failed to insure payment of workers’ compensation benefits as required by Code § 65.2-800, the circuit court did not err in dismissing the civil complaint because the plaintiff had pursued his workers’ compensation claim to a final order, and had a remedy for collection of his workers’ compensation award against either the employer or the Uninsured Employers’ Fund. The judgment is affirmed.

102042 Maretta v. Hillman 01/13/2012 In an action by a decedent’s widow seeking recovery of death benefits paid to his ex-wife as the named beneficiary of a Federal Employees’ Group Life Insurance policy, federal law preempts Code § 20-111.1(D), which otherwise would allow the widow to recover those benefits. The judgment of the circuit court is reversed and final judgment is awarded for the former wife.

110067 Collins v. Commonwealth 01/13/2012 In the prosecution of a North Carolina bail bondsman, who was not licensed as such in Virginia, for attempted abduction under Code §§ 18.2-26 and 18.2-47 and use of a firearm in the commission of a felony pursuant to Code § 18.2-53.1, the convictions are upheld. The General Assembly has abolished any common law privilege for out-of-state bondsmen to enter the Commonwealth without authorization in order to capture fugitives. The defendant’s argument that he mistakenly thought the person he attempted to capture was a fugitive from North Carolina, and thus that he lacked the specific intent required for abduction, is irrelevant. In the absence of common law privilege, defendant had no right to use force to detain anyone. His later abandonment of intent to capture the individual does not affect his guilt for the attempt. The judgment of the Court of Appeals upholding the convictions is affirmed.

110100 DeMille v. Commonwealth 01/13/2012 In a proceeding under the Civil Commitment of Sexually Violent Predators Act (“SVPA”), Code §§ 37.2-900 et seq., the determination that the respondent is likely to engage in sexually violent acts in the future need not be based on expert testimony that expressly states that opinion, but is to be based on the totality of the record, including but not limited to expert testimony. The judgment of the trial court is affirmed.

110263 Branham v. Commonwealth 01/13/2012 The circuit court did not err in denying a motion to suppress evidence in a drug case, where the initial encounter between the defendant and law enforcement personnel was entirely consensual. The officer had a reasonable articulable basis sufficient to detain him while attempting to gather information to dispel or confirm his suspicions. The consensual search of defendant’s person and his vehicle were not, therefore, fruits of an unlawful seizure under the Fourth Amendment. It was not an abuse of discretion to admit in evidence a certificate of analysis of the seized cocaine pursuant to Code § 19.2-187.1 because testimony was received from the deputy who seized the material, an evidence technician in the sheriff’s office who sent the material by certified mail to the regional evidence laboratory, and a chemical analyst at that laboratory who affirmed that the seal on the package was unbroken when he received it to perform the analysis. The judgment of the Court of Appeals upholding his conviction is affirmed.

110402 Stevens v. Commonwealth 01/13/2012 The Court of Appeals of Virginia did not err in affirming the trial court’s denial of a defendant’s motion to suppress a statement made to police during a custodial interrogation because, in light of the circumstances, the defendant’s request for a lawyer was ambiguous and, therefore, the officers were entitled to ask further clarifying questions. The judgment upholding his conviction is affirmed.

110552 Lahey v. Johnson 01/13/2012 In ruling on a motion to dismiss a petition for writ of habeas corpus which was submitted on the final day of the statute of limitations with an insufficient filing fee, and payment of the full filing fee was not completed until days later, the circuit court did not err in dismissing the petition as time-barred under the statute of limitations set forth in Code § 8.01-654(A)(2) because under the express requirements of Code § 8.01-655, the petition could not be filed, or deemed filed, without proper payment of the full filing fee. The judgment is affirmed.

110599 Haas v. Commonwealth 01/13/2012 In considering a petition for a writ of actual innocence based on non-biological evidence under Code § 19.2-327.10, the Court of Appeals did not abuse its discretion by making evidentiary findings or by dismissing the petition without first referring the case to the circuit court for an evidentiary hearing. The judgment denying the writ is affirmed.

110632 Prieto v. Commonwealth 01/13/2012 In the review of two death sentences imposed by a jury in a remanded sentencing proceeding after a prior appeal upheld two capital murder convictions as well as convictions for rape, grand larceny, and felonious use of a firearm, the circuit court did not err in sentencing the defendant to death in accordance with the jury’s verdict. Various issues, including the use of expert and victim impact testimony in sentencing, use of prior unadjudicated acts proof in sentencing, the proper scope of mitigation evidence, and whether the trial court erred in denying the defendant’s motion seeking recusal of the trial judge on remand, as well as his motions seeking information regarding the composition of the grand jury and for a view of the prison facility where he would serve his sentence, are considered. No reason is found to commute or set aside the sentences of death. The judgment is affirmed. See Record No. 082464, Prieto v. Commonwealth, September 18, 2009

110775 Commonwealth v. Quarles 01/13/2012 In a prosecution for robbery and conspiracy to commit robbery in violation of Code §§ 18.2-22 and 18.2-58, considering the content and context of a statement made by a detective in the presence of the defendant describing certain incriminating evidence obtained during interrogation of his co-conspirator, it cannot be said that the detective should have known that the defendant was likely to respond by insisting upon making a self-incriminating statement, and there is nothing in the record to show that the defendant was particularly susceptible to such an evidentiary exposure. Thus, the defendant’s confession was voluntary and not obtained in violation of his Miranda rights under the Fifth Amendment of the United States Constitution. The circuit court did not err in denying defendant’s motion to suppress his confession. The contrary judgment of the Court of Appeals is reversed and the defendant’s convictions are reinstated.

100350 Montgomery County v. Va. Dep’t of Rail and Public Transportation 11/04/2011 In an action by a county challenging the constitutionality of Code § 33.1-221.1:1.1 and an agreement entered thereunder between the Virginia Department of Rail and Public Transportation and a railroad, approved by the Commonwealth Transportation Board, for the development of an “intermodal” terminal in the county as a transition point for shifting the transportation of freight by road to shipment by rail, and vice versa, the statute as applied in this case does not violate either the internal improvements clause or the credit clause of Article X, Section 10 of the Constitution of Virginia. Accordingly, the judgment of the circuit court denying summary judgment to the county and awarding summary judgment in favor of the Department defendants, the Board, and the railroad, is affirmed.

100967 Schuman v. Schuman 11/04/2011 In an appeal from a judgment of the Court of Appeals holding that various stock options and awards granted to a wife by her employer during the marriage were her separate property, the Court of Appeals gave undue weight to the fact that such rights vested after the date of separation. The judgment is reversed and the case is remanded for further proceedings.

101102 Landrum v. Chippenham & Johnston-Willis Hospitals 11/04/2011 In a medical malpractice action, the circuit court did not abuse its discretion in excluding the plaintiff’s expert witnesses because her counsel, an out-of-state attorney who was admitted pro hac vice, failed to obey pretrial scheduling orders and discovery obligations concerning identification of such witnesses and timely disclosure of the substance of their expected testimony, including the filing of papers not properly signed by local counsel. The judgment is affirmed.

101209 Ruhlin v. Samaan 11/04/2011 In a personal injury action arising from an automobile accident, the circuit court did not err under Code § 8.01-404 in permitting the use of a transcript of a recorded telephone conversation to refresh the recollection of the plaintiff as a witness, or in ruling that certain prior statements of plaintiff, allegedly made in the presence of his wife, that were consistent with his trial testimony were not admissible into evidence. The judgment is affirmed.

101278 Ott v. Monroe 11/04/2011 In an appeal from the denial of declaratory relief relating to ownership rights in a Virginia limited liability company, the circuit court did not err in holding that the daughter of a majority owner in the company inherited only her father’s financial interest in the company – the right to share in profits and losses and to receive distributions. Because she was not a member, the circuit court did not err in holding that she lacked authority to remove its managing member and successor managing member. The judgment is affirmed.

101316 Adcock v. Commonwealth 11/04/2011 In an application by the Division of Child Support Enforcement on behalf of a former wife, seeking to reopen a 1966 divorce proceeding to establish child support arrearages and interest for obligations arising between 1966 and 1982 to set a payment plan, the circuit court erred in ruling that the statute of limitations did not bar the proceeding. By operation of Code § 8.01-426, each installment support payment ordered by the court in its decree became a judgment on the date such payment was due if it was not paid. Code § 8.01-251(A) applies to all judgments limiting enforcement to 20 years from the date each such missed payment becomes a judgment by operation of law, unless a statutorily authorized extension is obtained. The present proceeding to collect past due child support obligations through 1982 was filed more than 20 years after any payment obligations ordered by the 1966 decree became judgments by operation of law, and is barred pursuant to Code § 8.01-251(A). The judgment of the Court of Appeals is reversed, and final judgment is entered for the former husband.

101837 Home Paramount Pest Control v. Shaffer 11/04/2011 In a contract-related action arising from a “non-compete” provision in an employment contract, the trial court did not err in dismissing the former employer’s complaint. The former employer did not satisfy its burden of proving that there were legitimate business interests warranting the broad terms of the restrictive provision in this employment agreement, barring the employee from assuming functions in the pest control business in the relevant area in any capacity whatsoever. The judgment is affirmed.

102244 Bakran v. Commonwealth 11/04/2011 The Court of Appeals correctly concluded that there was sufficient evidence to support the defendant’s conviction for use of a vehicle to promote prostitution, in violation of Code § 18.2-349. The Court of Appeals’ judgment upholding that conviction is affirmed.

102246 Bevel v. Commonwealth 11/04/2011 In two related appeals involving the requested abatement of proceedings in a criminal case in which the convicted defendant died during the appeal process, the Court of Appeals erred in applying the abatement doctrine. The judgment of the Court of Appeals applying the abatement doctrine is vacated. However, the judgment of the Court of Appeals holding that the defendant’s death, under the specific facts and procedural posture of this case, renders the appeal of his conviction moot is affirmed.

102398 Smith, Russell v. Commonwealth 11/04/2011 In a prosecution for “willfully and intentionally making a materially false statement” on a form executed in connection with the purchase of a firearm in violation of Code § 18.2-308.2:2(K), there was no evidence to support a finding beyond a reasonable doubt that the defendant knew that he had been indicted and thus had actual knowledge that his statement to the contrary was false when he signed the required federal firearms form. Since there must be evidence to support a finding that the defendant knew the truth but nevertheless intended to, and did, utter a falsehood, the Commonwealth failed to prove an element of the crime. The judgment of the Court of Appeals is reversed and final judgment is entered vacating the conviction and dismissing the indictment.

102420 Davis v. Commonwealth (ORDER) 11/04/2011 In an appeal by a defendant convicted on firearms charges, alleging error by the trial court in accepting his guilty plea, the Court of Appeals denied the appeal and the defendant has not assigned error to that Court’s holding that his guilty plea waived non-jurisdictional defects. Rule 5:17(c)(1)(ii) provides that – in appeals from the Court of Appeals – only assignments of error relating to assignments of error presented in, and to actions taken by, the Court of Appeals will be considered. Rule 5:17(c)(1)(iii), effective July 1, 2010, provides that an assignment of error that does not address a finding or ruling of the tribunal from which an appeal is taken is insufficient, and that if the assignments of error are insufficient, the petition for appeal shall be dismissed. By prescribing dismissal of the appeal, this Rule provision established that the inclusion of sufficient assignments of error is a mandatory procedural requirement and that the failure to comply with this requirement deprives this Court of its active jurisdiction to consider the appeal. Since the sole assignment of error in this appeal does not address any finding or ruling of the Court of Appeals, the appeal is dismissed.

102471 Bowman v. Johnson 11/04/2011 It was not error for the court hearing a petition for writ of habeas corpus challenging a conviction for bank robbery to deny the petition. A claim relating to the alleged failure of the prosecution to correct false testimony of one of its witnesses could have been raised at trial and on appeal, and is not available for habeas review. On the remaining issues, petitioner was not prejudiced under the standards articulated in Strickland v. Washington, 466 U.S. 668 (1984), by defense counsel’s tactical decision not to present proof of the absence of certain DNA in evidence seized, and the absence of red dye residue on certain clothing of the defendant, and defense counsel’s introduction of evidence through a fingerprint expert that confirmed the existence of his prints at the scene of the crime but provided the opportunity for explanation to the petitioner at his trial. There was no error in the habeas court’s denial of the petition.

102477 Christian v. State Corporation Commission 11/04/2011 In an appeal from proceedings before the State Corporation Commission in which an individual sought injunctive and declaratory relief for the Commission Clerk’s alleged failure to produce information as required under the Virginia Freedom of Information Act, Code §§ 2.2-3700 through -3714, that Act is inapplicable to the Commission, which is not a “public body” under the Act, but derives its authority from Article IX of the Constitution of Virginia, and the Commission is not subject to a constitutional enforcement mechanism under the Act. The order of the Commission dismissing the petition is affirmed.

102478 McDowell v. Commonwealth (ORDER) 11/04/2011 An appeal from a conviction under Code § 18.2-118 for failing to return rental property is dismissed. Defendant moved to strike the evidence at the close of the Commonwealth’s case, contending that the Code provision required the lessor to send notice to the address exactly as given in the lease agreement, even if it was obviously incomplete, and that because the lessor in this case added additional information to complete the address the Commonwealth could not rely upon the presumption created by the statute to establish defendant’s intent to defraud the lessor and, thus, that the evidence was not sufficient to prove the offense. After this motion was denied, defendant elected to put on evidence in his defense, and thereafter failed to renew the motion to strike. Defendant thereby waiving the right to stand on the motion. A defendant who elects to offer evidence after denial of a motion to strike must renew the motion at the conclusion of all the evidence or, in a bench trial, at the very least reassert the issues raised in the original motion to strike in closing argument in order to preserve the issues for appeal. Because the issue on which this appeal was granted was waived by the defendant in the circuit court, it was not properly preserved for appeal. The ends of justice do not require that the issue be reviewed despite this waiver. The judgment of the Court of Appeals addressing the merits of the challenge to the sufficiency of the Commonwealth’s evidence to prove fraudulent intent through the Code § 18.2-118(b) notice is reversed, and the appeal is dismissed.

110069 Anderson v. Commonwealth 11/04/2011 In a prosecution for fellatio by force in violation of Code § 18.2-67.1, in which the defendant had raised an inconsistency between the victim’s testimony that she had not seen a gun and a note appearing in a sheriff’s deputy’s report that she had told him otherwise, the circuit court did not err in admitting prosecution evidence of the victim’s prior consistent statements to other witnesses. A prior inconsistent statement, by itself, calls the trustworthiness of the testimony of the witness making it into question. In this circumstance, it is appropriate to admit a prior consistent statement made by such witness as it may affect his or her credibility. Assuming, without deciding, that certain parts of the prior consistent statements presented in this case were overly repetitious of trial testimony, and that the circuit court erred in admitting them, that error was harmless in the circumstances. Independent evidence from medical and law enforcement witnesses bolstered the credibility of the victim. Considering the testimony and the trial court’s ability to directly see and hear the witnesses as they testified, it can be said with fair assurance that the error had but slight effect on the trial court’s credibility determinations. Based on the record, the defendant had a fair trial on the merits and substantial justice has been reached. The judgment of the Court of Appeals upholding the conviction is affirmed.

092491 Michael E. Siska Revocable Trust v. Milestone 09/16/2011 The necessary party doctrine does not implicate subject matter jurisdiction, and under Code § 8.01-5(A) and Rule 3:12, which govern the exercise of trial court discretion dealing with cases where a necessary party has not been joined, the trial court has discretion to take steps to correct problems and to decide whether to permit the case to continue with the existing parties or to refuse to exercise its jurisdiction over the action. Accordingly, in a derivative action brought on behalf of a limited liability company by the minority member alleging several claims against the majority members, but failing to join the limited liability company, the limited liability company is deemed to be a necessary party. The judgment of the circuit court sustaining the defendants’ pleas in bar and dismissing the amended complaint for lack of standing is reversed and the case is remanded for further proceedings.

100285 Doud v. Commonwealth 09/16/2011 The sovereign immunity of the Commonwealth was not waived with respect to a negligence claim arising out of injuries suffered by plaintiff’s decedent while incarcerated, allegedly resulting from actions of a county sheriff, sheriff’s deputies and jailors, since the sheriff is a constitutional officer under the Constitution of Virginia, and not an “employee” of the Commonwealth within the definitions contained in the Virginia Tort Claims Act, Code §§ 8.01-195.1 et seq., governing the express waiver of sovereign immunity. As a result, the circuit correctly dismissed the case for lack of subject-matter jurisdiction. The judgment of the circuit court is affirmed.

100434 Fox Rest Associates v. Little 09/16/2011 In a suit for to enforce a judgment under fraudulent and voluntary conveyance theories pursuant to Code § 55-80 and § 55-81, the plaintiff presented sufficient evidence in its case-in-chief to establish a prima facie case for both of its claims, except with respect to certain equipment sales, and the circuit court erred in granting a motion to strike the evidence on the two statutory claims. The judgment is affirmed in part and reversed in part and the case is remanded.

100764 AES Corporation v. Steadfast Insurance Co. 09/16/2011 (Revised 01/20/2012) The decision in The AES Corporation v. Steadfast Insurance Co. dated September 16, 2011 was set aside by Order of the Court on January 17, 2012, which granted a petition for rehearing of the appeal.

100929 Copeland v. Todd 09/16/2011 The Court of Appeals did not err in reversing the circuit court’s holding in an adoption proceeding that the birth mother’s consent to the adoption was not necessary under Code § 63.2-1202(H). However, the Court of Appeals erred in concluding that the circuit court violated her due process rights under Code §§ 63.2-1203 and -1205. The judgment is affirmed in part and reversed in part, and final judgment is entered.

100981 David White Crane Service v. Howell 09/16/2011 In a dispute concerning the scope and application of the exclusivity provisions of the Virginia Workers’ Compensation Act, the defendants were entitled to the protection provided by Code § 65.2-307 notwithstanding their lack of workers’ compensation insurance, because they were plaintiff’s statutory co-employees. Thus, the circuit court erred in denying the defendants’ plea in bar in a common-law personal injury action. The judgment of the circuit court is reversed and final judgment is entered dismissing the case.

101004 Bell v. Casper 09/16/2011 In two consolidated declaratory judgment actions seeking to have the beneficiary under a will declared to be the “slayer” of the decedent and barred from inheriting any of the decedent’s property under the Virginia “Slayer Statute,” Code §§ 55-401 et seq., the circuit court correctly held that – under the laws of intestate succession at the time of the death, as modified by the version of the Slayer Statute in effect at that date – the decedent’s estate passed to the next living person who is neither the “slayer” nor one making a claim through the “slayer.” Further, the Slayer Statute, as it existed in 2005, does not deprive a “slayer’s” heirs the right to inherit from the “slayer” property properly belonging to the “slayer,” and does not work a forfeiture of estate because it does not require a “slayer” to forfeit his property. Thus it neither implicates nor violates Virginia’s statutory prohibition against “corruption of blood or forfeiture of estate.” The judgment is affirmed.

101031 McCarthy Holdings LLC v. Burgher 09/16/2011 In resolving a suit with claims for declaratory relief in the application of an easement on real property, the circuit court did not err in concluding that an easement agreement granting “exclusive use,” without stating the purpose or purposes for which the easement may be used, does not permit the owner of the dominant estate to bar the owner of the servient estate from reasonable use of the easement area as a matter of law. An alleged error regarding payment of property taxes does not concern a live controversy, and is not considered. The judgment is affirmed.

101085 Zinone v. Lee’s Crossing Homeowners Ass’n 09/16/2011 In a property owner’s suit against a homeowners association for declaratory and injunctive relief, among other remedies, the circuit court did not err in concluding that language of the association’s declaration allowing the declarant of a recorded declaration to make unilateral amendments to its terms was not inconsistent with the Virginia Property Owners Association Act, which contains provisions concerning the ability to amend a declaration that are neither mandatory nor exclusive and, thus, can be controlled by the express provisions of a particular declaration. Accordingly, the judgment of the circuit court is affirmed.

101120 Bank of the Commonwealth v. Hudspeth 09/16/2011 In a suit by a former bank vice-president seeking compensation after his employment in a position involving sales of securities was terminated, the circuit court erred in refusing to stay the litigation and to compel arbitration before the Financial Industry Regulatory Authority (“FINRA”) based on that court’s finding that the bank was not a “customer” as defined by the FINRA Code of Arbitration Procedure for Customer Disputes. Applying the applicable federal arbitration principles, and the broad definition of “customer” under FINRA, arbitration should have been ordered. The judgment is reversed, and the case is remanded.

101128 Comtois v. Rogers 09/16/2011 In lawsuits between partners in a Virginia law firm, the circuit court did not err in concluding that the former senior partner’s equity in the firm remained at the full stated value and in awarding interest on that amount notwithstanding any deposits or withdrawals from the income accounts provided for in the partnership agreement. However, the circuit court neither made factual findings as to the value of the partners’ respective account balances nor directed the repayment of any excessive withdrawals or distribution of any surplus, and thus it failed to perform the accounting necessarily inherent in a winding up of the firm’s business and prerequisite to a settlement of its accounts among the partners and its final judicial dissolution. The judgment is affirmed in part, vacated in part, and the case is remanded for further proceedings, including factual findings as to the satisfaction of any outstanding liabilities of the firm, the extent of any residual surplus, the value of each partner’s accounts based on his respective contributions and withdrawals, and the proportion to which any partner either is liable to the firm or is entitled to a distribution based on the provisions of the partnership agreement.

101232 Kummer v. Donak 09/16/2011 In a petition for aid and direction by an administrator of a decedent’s estate, the circuit court correctly concluded that the adoption of the decedent’s biological sister by another person severed the sister’s legal ties to the decedent and her estate, even though the adoption was done while the sister was an adult. The adoption divested the sister and her descendants of inheritance rights running from her biological family. Thereafter, the sister’s children were not the decedent’s heirs-at-law and cannot inherit from her estate. The judgment is affirmed.

101457 Turner v. Commonwealth 09/16/2011 In a petition for a writ of actual innocence based on newly-discovered non-biological evidence, “recantation” testimony offered by another individual who was complicit in and prosecuted for the same homicide focused upon whether he restrained and choked the victim. Nothing in that testimony is material to the issue of whether a rational trier of fact could find petitioner guilty beyond a reasonable doubt of abduction of the victim with intent to defile involving deception, as the predicate for petitioner’s conviction under the felony murder statute. Thus petitioner has not met his statutory burden of proof for the issuance of a writ of actual innocence and the Court of Appeals did not err in dismissing the petition and in denying petitioner’s request to vacate his convictions. The judgment of the Court of Appeals is affirmed.

102314 Commonwealth v. Bell 09/16/2011 In a first annual review proceeding under the Virginia Civil Commitment of Sexually Violent Predators Act for a person previously found to be a predator under the Act and now committed to the Department of Behavioral Health and Developmental Services, the judgment of the circuit court that respondent is a sexual predator who qualifies for “conditional release” is without evidence to support it. Conditional release is permitted only after a judicial determination that the respondent satisfies all four criteria stated in Code § 37.2-912(A). In this case the first criterion – that he does not need secure inpatient treatment but needs outpatient treatment or monitoring – is not supported. On the record, the respondent has not satisfied the first criterion set forth in Code § 37.2-912(A) and he does need secure inpatient treatment. The judgment of the circuit court is reversed and final judgment is entered in favor of the Commonwealth.

091047 Brooks v. Commonwealth 06/09/2011 In a prosecution for possession of cocaine in which the circuit court denied defendant’s motion to suppress drugs recovered during a consent search for weapons as well as a statement made by defendant concerning his ownership of those drugs, in light of the testimony evaluated by the circuit court, defendant failed to carry the burden of showing that the search was unconstitutional. Because the search was permissible under the Fourth Amendment, the fruit of the poisonous tree doctrine does not require exclusion of his accompanying statement. In addition, because the defendant was not in custody under totality of the circumstances and governing Fifth and Sixth Amendment constitutional standards, the Court of Appeals did not err in affirming the circuit court’s denial of defendant’s motion to suppress the drugs and his statement. However, as the Commonwealth conceded, the admission of a certificate of analysis concerning the recovered drugs was error under the Confrontation Clause. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for a new trial.

092465 Taco Bell v. Commonwealth 06/09/2011 In a condemnation proceeding, the trial court erred in striking evidence relating to certain alleged fixtures used in the operation of a fast food restaurant, and in directing the jury to disregard those items in determining compensation for the value of the property taken by the Commonwealth. Considering the evidence in the light most favorable to the landowner, the evidence on the issue whether the items in question were fixtures or personalty for condemnation purposes was sufficient to submit to the jury. The judgment of the trial court is reversed and the case is remanded for further proceedings.

100199 Bennett v. Sage Solutions 06/09/2011 In a suit for severance payments under an employment contract, the employee’s repudiation of future obligations under the employment contract, even after performance has begun, could be used by the employer as a defense against a breach of contract claim. The circuit court did not err in submitting the issue of repudiation to the jury, in allowing the defendant employer to amend its pleading to include that defense, in refusing to give the jury a clarifying instruction, or in refusing the plaintiff’s motion to set aside the verdict. The judgment of the circuit court is affirmed.

100333 Mulford v. Walnut Hill Farm Group 06/09/2011 (Revised 06/10/2011) In an action by a landowner claiming a legal right to access certain property, the plaintiff failed to prove the requisite formal acceptance or express assertion of dominion over a purported access road by public authority. The trial court’s finding of fact regarding lack of use by plaintiff’s predecessors was not plainly wrong, nor did the circuit court misapply the law in denying a prescriptive easement. There was no error in finding that the plaintiff failed to show that defendant acted with unclean hands, or that it should be estopped from denying an easement. There was no basis on which to presuppose the existence of the easement, and thus the circuit court did not err when it required the plaintiff to prove its existence. The judgment of the circuit court is affirmed.

100347 Riverside Owner v. City of Richmond 06/09/2011 In a taxpayers’ action for relief from allegedly erroneous assessment of taxes on real property under Code § 58.1-3984, seeking a refund of overpayments, and recovery of attorney’s fees, the city’s use of an internal “policy” to calculate the amount of a partial exemption was inconsistent with provisions of the governing local ordinance, which requires that a property’s first assessed value after rehabilitation be used to determine the amount of a partial exemption. The taxpayers were not given a partial exemption that was greater than the increase in assessed value resulting from rehabilitation, because the first assessed value after rehabilitation did not include market appreciation. Any error in admitting expert testimony about real estate appraisal and the underlying rehabilitation program was harmless because it did not address issues decided by the trial court and could not have affected the result. There was no error in including retail space in the final order under these pleadings and this evidence. Nor was there error in denying attorney’s fee recovery since this action was brought under the tax Code and not the parties’ agreement where the purported fee recovery right is found. The judgment of the circuit court is affirmed.

100399 Kocher v. Campbell 06/09/2011 In a personal injury action in which a plea in bar raised the statute of limitations, under Virginia standing and limitations law, plaintiff lacked standing to bring suit after filing a petition for bankruptcy, causing his claim to become an asset of his bankruptcy estate. Because all three complaints filed against the defendant were legal nullities filed by a party who lacked standing, they, and several purported nonsuits, had no tolling effect. The statute of limitations had run before suit was filed, and the circuit court erred in denying the defendant’s motion for summary judgment. The judgment is reversed and the case is dismissed.

100457 Lewis-Gale Medical Center v. Alldredge 06/09/2011 In a case alleging that hospital personnel tortiously interfered with a physician’s contractual and employment relationship with her medical practice group, the actions of hospital personnel in exercising the hospital’s dominant position in its commercial relationship with the medical practice group, taken to achieve the goal of having plaintiff’s employment terminated, were not, as a matter of law, “improper methods” required to prove that the purposeful interference was tortious. Accordingly, the circuit court erred in not striking plaintiff’s evidence and in not granting summary judgment to the hospital. The judgment confirming the jury verdict in plaintiff’s favor is reversed, and final judgment is entered for the hospital.

100499 Rutter v. Oakwood Living Centers 06/09/2011 In a wrongful death case during which the trial court purported to enter a self-executing, prospective order under Code § 8.01-335(B) providing for future discontinuance or dismissal of the action upon the required period of inactivity, the order was invalid. The subsequent order reviewed in the present appeal relating to one of the parties originally named in the action is not final for purposes of appeal, and the appeal is dismissed without prejudice.

100632 Davis v. County of Fairfax 06/09/2011 In proceedings under former Code provisions relating to an alleged unfit pet owner, the Court of Appeals erred in affirming the judgment of the circuit court, which had exercised subject matter jurisdiction over a case that originated in general district court, was appealed to the circuit court and non-suited there, was subsequently re-filed in the general district court, dismissed, and then appealed to the circuit court. The judgment is reversed and final judgment is entered.

100650 Eastlack v. Commonwealth 06/09/2011 A defendant in a criminal case who has been found not guilty by reason of insanity may not invoke the provisions of Code § 19.2-392.2 to obtain expungement of the police and court records pertaining to his criminal case. If the word “acquitted” in the expungement statute is interpreted to include acquittals by reason of insanity, the absurd result would follow that the General Assembly would have, by enacting the expungement law, made all its enactments relating to acquittals by reason of insanity potentially unenforceable. Such an intent cannot be attributed to the General Assembly; accordingly, the judgment of the circuit court denying the acquittee’s petition for expungement in the instant case is affirmed.

100797 Cappo Management V, Inc. v. Britt 06/09/2011 Article Nine of the UCC as adopted in Virginia, Code §§ 8.9A-101 et seq., governs secured transactions, including a consumer’s purchase of a car from a dealership under a retail installment sales contract and related documents. When a consumer trades in an old car, makes a down payment towards the purchase of a new car, and assumes an obligation to pay monthly installments until the full purchase price of the new car is satisfied, the consumer becomes a “debtor” under Code § 8.9A-102(a)(28)(A) and is entitled to the protections afforded under Article Nine. Thus, the circuit court did not err in its judgment that a dealership’s repossession of a car previously sold to a consumer was governed by Article Nine and that the dealership failed to provide the consumer with the required notice of disposition of the car required by Article Nine. The judgment is affirmed.

100841 Dabney v. Augusta Mutual Insurance Co. 06/09/2011 In a declaratory judgment proceeding concerning the obligation of an insurer to defend and indemnify the estate of a homeowner in whose house two pit bull dogs resided at the time they attacked the plaintiff, the circuit court properly limited plaintiff to relief based on the allegations in her amended complaint, which contained particular allegations concerning alleged timely notice of the insurance claim. However, given the extenuating circumstances presented in this case, whether the notice of claim was timely under the policy was a question of fact upon which reasonable minds could disagree. Thus the circuit court erred in ruling that notice untimely as a matter of law, and the issue of substantial compliance with the policy should have been submitted to the jury. The judgment is affirmed in part, reversed in part, and the case is remanded.

101737 Rix v. Commonwealth (ORDER) 06/09/2011 In considering defendant’s challenge to the sufficiency of the evidence supporting her conviction for operating a motor vehicle while under the influence of alcohol, second offense within five years, in violation of Code §§ 18.2-266 and -270, the undisputed facts from the record show that, at a time when she does not dispute that she was intoxicated and as the arresting officer watched, she took actual physical control of a stopped, but fully operational, motor vehicle on a highway, with its ignition key in the “on” position and its engine running. She thus met the statutory definition of an “operator” of a motor vehicle under Code § 46.2-100. Accordingly, the judgment of the Court of Appeals upholding the challenged conviction is affirmed.

101866 Kelso v. Commonwealth 06/09/2011 The crime of causing a juvenile to assist in the distribution of marijuana in violation of Code § 18.2-255(A)(ii) involves different elements of a single crime. One of the acts which must occur for conviction is distribution of the contraband by the juvenile to a third party. Under these circumstances, the place where that act occurred is an appropriate venue for prosecution. Since the prosecution in this case occurred in an appropriate venue measured by this standard, the circuit court properly denied defendant’s motion to dismiss for improper venue. The judgment of the Court of Appeals upholding the conviction is affirmed.

101870 Sanders v. Commonwealth 06/09/2011 In a prosecution for forcible sodomy, rape, object sexual penetration, and taking indecent liberties with a child under the age of 13, there was no violation of the defendant’s Confrontation Clause rights when the trial court permitted the state’s medical witness to testify to her diagnosis that the child had the same sexually transmitted disease as her father, based in part on a California laboratory report of samples taken from the child which was not admitted in evidence. Under the circumstances of this case – in which there was no evidence that the out-of-state medical laboratory understood that its test results were intended for use in the prosecution, and in which the physician had both treatment and prosecution responsibilities and, in fact, treated the victim’s sexually transmitted disease as a result of the laboratory report, in light of Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527 (2009), and other United States Supreme Court authority, the testimony did not involve “testimonial” use of the laboratory report. The convictions are affirmed.

101933 Commonwealth v. McNeal 06/09/2011 In a prosecution for failing to return rented personal property valued at more than $200 within ten days after expiration of the rental period in violation of Code § 18.2-118, the Court of Appeals erred in finding that contradictory testimony rendered the evidence insufficient to support the conviction. The judgment of the Court of Appeals is reversed and the conviction is reinstated.

102043 Level 3 Communications v. State Corporation Commission 06/09/2011 In considering several applications filed by a Virginia-based telecommunications company seeking to have the State Corporation Commission deduct certain Internet-related revenues when determining the gross receipts it certifies to the Virginia Department of Taxation pursuant to Code § 58.1-400.1, the Commission properly declined to allow the deduction, which the General Assembly did not provide for in the gross receipts statute. To allow for such a deduction would have required the Commission to exceed its statutory authority. Accordingly, the Commission’s order dismissing the applications is affirmed.

091495 Uniwest Construction v. Amtech Elevator Services (Order) 04/21/2011 (Revised 05/23/2011) Upon consideration of the questions presented in petitions for rehearing concerning the disposition reached in Uniwest Construction, Inc. v. Amtech Elevator Services, Inc., 280 Va. 428, 699 S.E.2d 223 (2010), the matter is remanded to the circuit court for consideration of the legal and factual efficacy of questions pertaining to the scope or extent of liability under the commercial umbrella insurance policy at issue. Part II(D) of the above-referenced opinion is withdrawn, and the matter is remanded with instructions as to specific determinations to be made by the circuit court. See Record No. 091495, Uniwest Construction v. Amtech Elevator Services, dated September 16, 2010

092501 Virginia Dept. of Corrections v. Estep 04/21/2011 In an appeal from the judgment of a circuit court implementing the decision of a hearing officer pursuant to Code § 2.2-3006(D), a part of the State Grievance Procedure for employees of the Commonwealth, Code § 2.2-3000 et seq., the circuit court’s finding that the new position to which the grievant was assigned was not comparable to the one to which she was entitled to be reinstated, was supported by the evidence. The judgment is affirmed and the matter is remanded for the ascertainment and award of appellate attorney’s fees.

092561 Commonwealth v. Smith, Corey 04/21/2011 In an appeal from a conditional plea of guilty challenging the trial court’s failure to suppress evidence of a weapon seized in a pat-down search of the defendant, a frisk of a passenger in an automobile conducted during a valid traffic stop was supported by reasonable suspicion based upon an alert in a police computer system that the passenger was “probably armed and a narcotics seller/user.” The judgment of the Court of Appeals is reversed and final judgment is entered affirming the defendant’s conviction.

092583 Volpe v. City of Lexington 04/21/2011 In a suit by the administrators of a minor decedent who was an invitee at a city park that included a dammed portion of a river, and drowned in a dangerous water current (hydraulic) around the dam, the natural, ordinarily encountered dangers of the river were as a matter of law open and obvious, but the dangerous current was not necessarily visible to a swimmer, and the circuit court erred in holding as a matter of law that the dam presented such an open and obvious danger. That factually specific determination was an issue for the jury. Regarding plaintiffs’ gross negligence claim, reasonable persons could differ on whether the cumulative effect of the circumstances constituted a form of recklessness or total disregard of precautions, an absence of diligence or lack of even slight care by the city, and it was error to strike the evidence on that claim. However, there was no error in the granting of a motion to strike plaintiffs’ claim for willful and wanton negligence against the city. The judgment is affirmed in part and reversed in part, and the case is remanded.

100034 Virginia Marine Resources Comm’n v. Clark 04/21/2011 In an appeal by residents who challenged a decision of the Virginia Marine Resources Commission the Court of Appeals erred in concluding that Rule 2A:4 sets out the only requirements for a legally sufficient petition for appeal from an administrative action. The agency challenge premised on the complaining residents’ lack of standing to seek judicial review should have been considered. The circuit court did not err in dismissing the residents’ petition for appeal for failure to allege facts sufficient to demonstrate that they were “person[s] aggrieved” by the decision they sought to appeal within the intendment of Code § 28.2-1205(F). The judgment of the Court of Appeals is reversed and the judgment of the circuit court is reinstated.

100048 Dean v. Board of County Supervisors 04/21/2011 In a condemnation proceeding, there was no abuse of discretion in the ruling of the circuit court barring, on a motion in limine, introduction by the landowners of evidence at trial regarding a particular purported comparable sale of property to the same condemnor, because the landowners in the present case failed to produce evidence sufficient to establish that the purported comparable sale was voluntary and free from compulsion and not by way of compromise. The judgment is affirmed.

100052 Chalifoux v. Radiology Associates 04/21/2011 In a medical malpractice case, the circuit court erred in ruling that the “continuous treatment doctrine” was inapplicable to the plaintiff patient’s claims against a radiological practice group that had conducted numerous imaging studies of the plaintiff over a period of time concerning the same or related ailments. The judgment dismissing the case on statute of limitations grounds is reversed and the case is remanded for further proceedings.

100068 Jennings v. Board of Supervisors 04/21/2011 In a challenge by a landowner with riparian rights to a locality’s authority to regulate the construction of additional mooring slips and accompanying piers beyond the mean low-water mark of a tidal, navigable body of water, the circuit court did not err in denying relief on claims that the regulation was beyond the jurisdiction of the locality, and that the special exception permit ordinance is void for lack of adequate standards to guide the governing body’s decision to grant or deny a special exception permit. The judgment of the circuit court is affirmed.

100070 Ford Motor Company v. Gordon 04/21/2011 In a Workers’ Compensation Act proceeding in which a claimant’s change-in-condition application for benefits was rejected by the Workers’ Compensation Commission as time-barred, the Court of Appeals did not err by reversing the commission’s decision and by holding that the provision in Code § 65.2-708(C) tolling the statute of limitations in Code § 65.2-708(A) runs anew under each successive award of compensation for a compensable injury. The judgment of the Court of Appeals holding that the claimant’s change-in-condition application was not time-barred under Code § 65.2-708 is affirmed.

100082 Farmers Insurance Exchange v. Enterprise Leasing co. 04/21/2011 In a declaratory judgment proceeding it is held that a self-insured rental car company may seek indemnification from its renter for damages the company paid to a third party due to the renter’s negligence in an automobile accident. In this case the renter’s insurer is required, under the terms of its policy, to reimburse the rental car company for damages it satisfied on behalf of the insured. The judgment is affirmed.

100108 Riverside Healthcare Ass’n v. Forbes 04/21/2011 In a trustee’s action concerning allocation of compensation from an eminent domain proceeding between income and principal, because the grantor expressly directed the allocation of such compensation to income under the language appearing in the trust agreement, the portion of the circuit court’s judgment granting partial summary judgment in favor of the trustee is affirmed. However the circuit court erred in sustaining the trustee’s demurrer to the remainder beneficiary’s counterclaim for an equitable accounting pursuant to Code § 8.01-31, and that portion of the judgment is reversed.

100149 Scott v. Burwell’s Bay Improvement Ass’n 04/21/2011 In a case involving riparian rights, the circuit court did not err in ruling that a party seeking to establish ownership of riparian rights by adverse possession, or, alternately, a prescriptive easement to use those rights, failed to prove these claims by clear and convincing evidence. The evidence to show that the use of the riparian rights was exclusive and continuous for the required period of time fell well below the clear and convincing standard required to prove adverse possession or prescriptive use of the riparian rights by the immediate prior occupants. Thus tacking was not available to establish the requisite time periods. The judgment of the circuit court is affirmed.

100157 Necaise v. Commonwealth 04/21/2011 The circuit court did not err in denying a petition pursuant to Code § 19.2-392.2 for expungement of all police and court records pertaining to two felony charges that were disposed of by the court’s acceptance of the defendant’s guilty pleas to lesser included misdemeanor offenses. Defendant was found guilty of offenses charged within the warrants upon which he was arrested, and was not an “innocent citizen” entitled to the benefit of the expungement statutes. The judgment is affirmed.

100260 Dunn, McCormack & MacPherson v. Connolly 04/21/2011 In a suit alleging intentional interference with contractual relations, the circuit court did not err when it sustained the individual defendant’s demurrer and held that the law firm plaintiff failed to state a prima facie cause of action for tortious interference with a contract. The amended complaint did not sufficiently allege “improper” interference with the firm’s at will contract. The judgment dismissing the case is affirmed.

100287 Ruby v. Cashnet, Inc. 04/21/2011 (Revised 05/25/2011) Under former Code § 6.1-459(6)(i) of the Payday Loan Act, which is now codified at Code § 6.2-1816(6)(i), a payday lender is prohibited from refinancing, renewing or extending any payday loan, and a payday lender violates this provision when it makes a loan to a borrower immediately after the borrower repays in full a previous loan. Consequently, the circuit court erred in finding that a payday lender’s practice of making a loan to a customer immediately after the customer repaid a previous loan was not a refinancing or renewal under Code § 6.2-1816(6)(i) and, therefore, not in violation of the Act. The circuit court’s judgment in favor of the payday lender is reversed and the case is remanded for further proceedings.

100303 Condominium Services v. First Owners’ Ass’n 04/21/2011 (Revised 05/25/2011) In a lawsuit between a condominium owners’ association and a management services company, the circuit court did not err in sustaining the association’s demurrers and striking an affirmative defense. The agreement between the parties, although it referenced the association’s bylaws, did not require a three-fourths vote of the unit owners before the association could terminate the services of the management agent. The circuit court also did not err in denying a motion to dismiss the association’s conversion claim, because the agreement had been terminated at the time the management company caused over $90,000 in fees to be deposited to its own bank account, and it was not error to grant summary judgment on the conversion claim. Expert witness designations, testimony regarding damages, punitive damages and remittitur are also discussed. The judgment is affirmed.

100305 Gunter v. Martin 04/21/2011 In a suit to quiet title and for allotment of property in lieu of partition filed by a plaintiff who alleged that he was the biological heir of a decedent, the remedy sought with respect to his alleged interest in the property was different from that sought in a prior action filed four years earlier against the same defendant. Thus, an element required to prevail on a plea of res judicata as that doctrine existed prior to the effective date of Rule 1:6 has not been established in this case. The judgment of the circuit court is reversed and the case is remanded for further proceedings consistent with this opinion.

100332 GEICO v. USAA 04/21/2011 In a declaratory judgment proceeding brought by two insurance carriers after an automobile crash, there was no evidence that the driver of a vehicle was using it within the scope of permission he might reasonably have believed he had from its owner or her daughter as the primary user, and accordingly the judgment upholding coverage under the two policies involved in this case is reversed.

100338 Lewis v. Kei 04/21/2011 (Revised 05/25/2011) In a case alleging malicious prosecution, false imprisonment, and defamation against the law enforcement officer who obtained a warrant for the arrest of the plaintiff for attempted abduction of a 10-year-old child based upon a citizen’s complaint that ultimately proved to be unfounded, the judgment sustaining the officer’s demurrer to the malicious prosecution and false imprisonment claims is affirmed, but the judgment sustaining his demurrer to plaintiff’s defamation claim is reversed and the case is remanded for further proceedings.

101282 Burton v. Commonwealth 04/21/2011 In a prosecution for abduction in violation of Code § 18.2-47(A), the evidence was not sufficient to prove that the defendant intended to deprive the victim of her personal liberty. The judgment of the Court of Appeals upholding the defendant’s conviction is reversed, the conviction is vacated and the indictment is dismissed.

101289 Byrd v. Johnson 04/21/2011 In a habeas corpus proceeding based upon trial counsels’ failure to renew a motion to strike the evidence at the conclusion of all the evidence, and failure at sentencing to obtain a ruling on a motion to set aside the verdict, petitioner suffered no prejudice under the standards set in Strickland v. Washington, 466 U.S. 668 (1984), because the jury in the criminal trial was entitled to reject his version of events and the Commonwealth’s evidence, considered in the light of the instructions given by the court, fully supports the verdict. If counsel had performed without any professional errors and the petitioner’s direct appeal had been available for review in the appellate courts free of any procedural bar, there is no reasonable probability that a different result would have been reached. The judgment of the circuit court is affirmed.

062556 Juniper v. Warden (ORDER) 03/04/2011 Upon consideration of a petition for a writ of habeas corpus, respondent’s motion to dismiss the petition is granted. Petitioner’s various claims alleging ineffective assistance of counsel are rejected as not satisfying the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and his remaining claims are rejected as lacking merit or as being either procedurally barred or improperly raised.

080524 Gray v. Warden (ORDER) 03/04/2011 Upon consideration of a petition for a writ of habeas corpus, the petition is granted as to petitioner’s claim that his convictions for capital murder under Code § 18.2-31(7) and (8) arising from the same act violated the constitutional prohibition against double jeopardy. Several other claims raised in the petition alleging ineffective assistance of counsel are rejected as not satisfying the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and his remaining claims are rejected as lacking merit or as being either procedurally barred or improperly raised. A writ shall issue to remand petitioner’s convictions under Code §§ 18.2-31(7) and (8) with directions, and the remainder of the petition is dismissed.

091244 AME Financial Corp. v. Kiritsis 03/04/2011 In a suit for declaratory relief and damages alleging breach of contract, fraud, conspiracy and violation of the Virginia Consumer Protection Act in the substitution by a lender of a changed promissory note in a mortgage transaction, no abuse of discretion is found in the trial court’s refusal to relieve a defendant that failed timely to file an answer signed by a Virginia attorney from its default under the “good cause” standard, and there was no error in the trial court’s consideration of whether the complaint stated a cause of action or in its granting of judgment against one of the defendants on a cross-claim. The judgments are affirmed.

091803 Reed v. Commonwealth 03/04/2011 There was no error in the denial by the circuit court of a defendant’s motion to vacate his convictions on the ground that the judgment was void ab initio because the foreman of the grand jury did not sign the indictments under which the defendant was subsequently tried, convicted, and sentenced. The absence of the foreman’s signature from an indictment is a defect in form only and does not render the indictment so defective as to be in violation of the Constitution under Code § 19.2-227. The judgment is affirmed.

092158 Ford Motor Credit Co. v. Chesterfield County 03/04/2011 (Revised 03/04/2011) In ruling on a taxpayer’s application for refund of business, professional and occupational license taxes paid to a county, the circuit court erred in holding that all the taxed gross receipts from a car manufacturer’s credit and financing subsidiary’s local branch were attributed to the exercise of a privilege subject to licensure at the branch within the county under Code § 58.1-3703.1(A). The circuit also erred in concluding that it was not “impractical or impossible to determine to which definite place of business gross receipts should be attributed” under the requirement of Code § 58.1-3703.1(A)(3)(a)(4) and (b) that the gross receipts from the performance of services shall be attributed to the definite place of business at which the services are performed. The judgment is reversed and on remand the entitlement to a deduction must be determined under Code § 58.1-3732(B)(2).

092323 Johnson v. Woodard 03/04/2011 In proceedings following petitions to remove members of a county board of supervisors pursuant to Code §§ 24.2-233 and 24.2-235 for alleged neglect of duty and misuse of office, a nonsuit order granted by the circuit court avoided the application of the 21-day time period of Rule 1:1 by including specific language stating that the court was retaining jurisdiction to address matters still pending, and that “for the purposes of Rule 1:1, this is not a final order.” While the court thus had jurisdiction to consider a sanctions application pending when the nonsuit was granted, under Code § 8.01-271.1 a court may only sanction an “attorney or party” who violates a duty imposed by the statute. Because the citizen petitioners were not parties to the removal action, the circuit court erred in imposing sanctions against them. The judgment is reversed and final judgment is entered on this appeal.

092385 Lee v. City of Norfolk 03/04/2011 In an action for alleged constitutional, statutory and common-law wrongs by a city in demolishing a building needing repair on the plaintiff’s property that the city had deemed to be a public nuisance, there is no reversible error in the circuit court’s dismissal, upon demurrer and pleas in bar, of the claims for compensation and damages. The judgment is affirmed.

092395 Kozmina v. Commonwealth 03/04/2011 The trial court did not err by denying a defendant’s motion to disqualify the Commonwealth’s Attorney from prosecuting a charge of first offense refusal to take a breath test in violation of Code § 18.2-268.3 on the theory that a Commonwealth’s Attorney has no authority to prosecute “civil” offenses. Commonwealth’s Attorneys and their assistants are vested with the authority to prosecute such refusal cases under Code § 18.2-268.4(B). The judgment is affirmed.

092486 Fairfax Redevelopment and Housing Authority v. Riekse 03/04/2011 In an action by a county for specific performance, the circuit court’s determination that it could not order the former owners of a parcel to perform because it was impossible for them to offer the parcel to the county under a right of first refusal to repurchase the land was correct. The judgment is affirmed.

092541 Kaltman v. All American Pest Control 03/04/2011 In litigation alleging application of pesticide at a residence that was not approved for residential use, the circuit court erred in sustaining the demurrers by the defendant pest control company and its employee to claims for negligence and negligence per se, but did not err in sustaining the demurrers to claims alleging willful and wanton conduct. The judgment is affirmed in part and reversed in part and the case is remanded for further proceedings.

100506 Ellis v. Commonwealth 03/04/2011 In a prosecution under Code § 18.2-279 for the offense of discharging a firearm at or against any occupied building, the circuit court did not err in finding that the Commonwealth was not required to prove that the defendant had the specific intent to fire at or against a particular structure, and the Court of Appeals did not err in finding that the evidence was sufficient to support his conviction. The judgment is affirmed.

100727 Hicks v. Commonwealth 03/04/2011 The Court of Appeals did not err in affirming defendant’s conviction for possession of heroin in violation of Code § 18.2-250 after his motion to suppress evidence seized pursuant to a search warrant was denied. The affidavit in support of the search warrant was sufficient in its statement of material facts constituting probable cause supporting the search of the defendant’s home, and the execution of the search warrant 13 days after its issuance complied both with the mandates of Code § 19.2-56 and the requirements of the Fourth Amendment. The judgment of the Court of Appeals is affirmed.

100776 Courtney v. Comonwealth 03/04/2011 In a prosecution for use or display of a firearm in the commission of a felony under Code § 18.2-53.1, although the evidence was in conflict, there nevertheless was sufficient evidence for the trier of fact to determine that the defendant used or displayed a firearm in the commission of a robbery in violation of Code § 18.2-53.1. Although only a toy gun was recovered from the defendant’s getaway vehicle and the victim never saw the actual object that the defendant had used during the robbery, the defendant told her that he had a gun, and the victim believed that he had a gun and became frightened. The Court of Appeals did not err in upholding the conviction, and its judgment is affirmed.

100778 Startin v. Commonwealth 03/04/2011 In a prosecution for use or display of a firearm in the commission of a felony under Code § 18.2-53.1, the defendant’s replica of a firearm gave the appearance of an actual firearm and was capable of evoking fear of physical harm. Consequently, the Commonwealth’s evidence was sufficient to support the convictions, whether or not the object actually had the capacity to propel a bullet by the force of gunpowder. The judgment of the Court of Appeals upholding the convictions is affirmed.

100840 Commonwealth v. Amerson 03/04/2011 In proceedings pursuant to the Civil Commitment of Sexually Violent Predators Act, no provision of the Act authorized the conditional release of a violent predator outside the Commonwealth and the circuit court erred in conditionally releasing the respondent to an authority in Washington, D.C. The judgment of the circuit court is reversed and the case is remanded to allow that court to determine whether the respondent should be conditionally released in Virginia.

100906 Saunders v. Commonwealth 03/04/2011 A person under the age of 18 may be sentenced by a jury rather than a judge on one or more charges of the types specified in Code § 16.1-269.1(B) and (C), and Code § 16.1-272 does not apply to youthful offenders who fall within the scope of Code § 16.1-271. Thus, a jury was correctly allowed to sentence a defendant who was not a juvenile at the time that he appeared before the circuit court on charges of aggravated malicious wounding under Code § 18.2-51.2(A), use of a firearm in the commission of a felony under Code § 18.2-53.1, and participation in an act of violence in association with a street gang under Code § 18.2-46.2, and had been previously convicted as an adult and given an adult sentence on an unrelated charge. The judgment of the Court of Appeals upholding the circuit court’s denial of defendant’s motion for non-jury sentencing and his convictions is affirmed.

100912 Howard v. Commonwealth 03/04/2011 The Court of Appeals did not err in affirming defendant’s convictions after the trial court denied a motion to dismiss for alleged speedy trial violations. A continuance entered by the court sua sponte is subject to the same requirements regarding objections as other continuances and defendant’s failure to object to a delay resulted in no violation of the speedy trial statute, Code § 19.2-243, because the period was tolled. Similarly, no violation is found under federal constitutional speedy trial principles or under Art. I, § 8 of the Virginia Constitution, and there is no basis to apply the ends of justice exception. The judgment of the Court of Appeals is affirmed.

101003 Rowland v. Commonwealth 03/04/2011 In a case charging, among other things, burglary and robbery, the evidence was not sufficient to support the conviction of the defendant for use of a firearm in the commission of a burglary when the elements of the burglary were completed before the use or display of a firearm. The judgment of the Court of Appeals is reversed, the conviction is vacated, and the indictment dismissed.

101357 Smith v. Commonwealth 03/04/2011 In an appeal from a conditional guilty plea after denial of a motion to suppress evidence, in which the defendant/appellant failed to file the suppression hearing transcript in the time required by Rule 5A:8, the Court of Appeals was not deprived of appellate jurisdiction to consider the case, and the defendant effectively waived his contention regarding the suppression motion by failing to timely make the required filing. The judgment upholding the defendant’s convictions is affirmed.

091693 Isle of Wight County v. Nogiec 01/13/2011 In a lawsuit charging a county with breach of an employment severance contract and asserting a defamation claim against its assistant administrator, the circuit court erred in denying the county’s motions to strike and set aside the verdict because the evidence was not sufficient to support a claim for damages. The judgment for plaintiff on the breach of contract claim is reversed. The circuit court, however, did not err in denying motions to strike and set aside the verdict on plaintiff’s defamation claim. The statements alleged were not absolutely privileged because they were not made during a legislative proceeding. The qualified privilege report to a subordinate legislative body was applicable, whether the executive’s statements were compelled or volunteered, making them actionable only if plaintiff was able to prove that they were made with malice. Accordingly, the circuit court did not err in denying the individual defendant’s motions to strike and set aside the verdict on the defamation claim.

091762 Simms v. Ruby Tuesday, Inc. 01/13/2011 In a workers’ compensation case, the workplace horseplay doctrine should have been considered and applied in determining whether injuries sustained when employees in a kitchen threw ice at a coworker were covered by the Workers’ Compensation Act. Instances when a non-participating employee is injured by horseplay encountered in the workplace are distinguished from those in which a worker is injured by an assault. The judgment of the Court of Appeals is reversed and the case is remanded to the Workers’ Compensation Commission for consideration, guided by the law as stated in this opinion.

091934 DiGiacinto v. Rector and Visitors of George Mason University 01/13/2011 In review of a complaint for declaratory and injunctive relief against a Virginia public university challenging a regulation prohibiting carrying weapons in academic and other buildings and while attending sporting, educational or entertainment events, the regulation does not violate Article I, § 13 of the Constitution of Virginia and the Second and Fourteenth Amendments of the United States Constitution. The university also had the authority to promulgate the regulation, and did not violate Article I, § 14 of the Constitution of Virginia in doing so. The judgment dismissing the complaint with prejudice and ordering that the university’s regulation be sustained is affirmed.

091941 O’Connor v. Tice 01/13/2011 In an action for malicious prosecution after termination of a criminal charge against plaintiff for construction fraud, the evidence was sufficient to support the jury’s determination that the defendants initiated the criminal prosecution against plaintiff without probable cause. The judgment of the circuit court is affirmed.

091991 CNH America v. Smith 01/13/2011 In a personal injury suit arising from the explosion of a hydraulic hose on a mowing device, the trial court erred in admitting into evidence opinion testimony of the plaintiff’s two expert witnesses. The judgment of the trial court is reversed and the case is remanded for further proceedings.

091993 Royal Indemnity Co. v. Tyco Fire Products 01/13/2011 (Revised 01/18/2011) In a product liability case, exterior sidewall sprinkler heads were “equipment” rather than ordinary building materials under Code § 8.01-250, and hence not subject to the statute of repose. The manufacturer’s description of how a sprinkler head functions did not constitute an express warranty of future performance. The designer and installer of the sprinkler system was neither a manufacturer or “supplier” of the products, and thus was entitled to protection under the statute of repose. The judgment of the circuit court sustaining the manufacturer’s plea in bar under Code § 8.01-250 is reversed, and its judgment sustaining the installer’s plea in bar under the statute is affirmed. That court’s judgment sustaining the manufacturer’s and the installer’s pleas in bar based on the applicable statutes of limitation is affirmed, and the case against the manufacturer is remanded for further proceedings.

092076 Carlson v. Wells 01/13/2011 In an action involving the duty of care owed by the custodians of Uniform Transfers to Minors Act accounts prior to 2007, to which the Prudent Person Rule applied, the circuit court correctly concluded that the custodians were liable to the children for a speculative investment in breach of the applicable duty of care. Issues involving account records, the tracing of commingled funds and the award of attorneys’ fees to prevailing parties are discussed. The judgment is affirmed in part and reversed in part, and final judgment is entered.

092163 Commonwealth v. Morris 01/13/2011 In ruling on separate petitions for modification of sentences previously imposed, the errors alleged do not constitute “errors of fact” for the purposes of the writ of coram vobis, as contemplated by Code § 8.01-677, and the writ of audita querela may not be used to seek post-conviction relief from criminal sentences in Virginia. Accordingly, the trial courts erred in their reliance upon the writs of error coram vobis and audita querela to modify the criminal sentences imposed in these cases. The judgments are reversed and the petitions are dismissed.

092249 Vuich v. Great Eastern Resort Corp. 01/13/2011 In a personal injury case, the trial court’s ruling on summary judgment that a snow tubing ride offered to the public was not an “amusement device” subject to regulation under the Virginia Amusement Device Regulations, 13 VAC § 5-31-10 et seq., reviewed here in an interlocutory appeal pursuant to Code § 8.01-670.1, was in error. The judgment is reversed and the case is remanded for further proceedings.

092272 Jenkins v. Mehra 01/13/2011 In an appeal challenging a trial court’s judgment refusing to hold a party in contempt after having found that the party failed to abide by the terms of a prior order of the court awarding injunctive relief, the appeal is dismissed because this Court does not have jurisdiction to hear an appeal from the refusal to find civil contempt.

092279 Parish v. Parish 01/13/2011 In a will contest, the circuit court properly found that the proponent of a will carried her burden of proof to show that the decedent, an “incompetent” person with appointed conservators, had testamentary capacity, and that there was no undue influence when a major beneficiary of the will who also was the decedent’s conservator acted as the decedent’s translator during the drafting of the will. The judgment is affirmed.

092299 Harkleroad v. Linkous 01/13/2011 In cross-complaints concerning title to a parcel of improved real property, the circuit court correctly determined that co-tenants with an undivided one-half interest in the property had established the necessary elements to prove adverse possession as against the other co-tenants and, thus, was entitled to a judgment granting quiet title to the entire property in fee simple. The co-tenants in possession established by clear and convincing evidence all the necessary elements to obtain title by adverse possession. The fact that the other co-tenants may have been unaware of their own ownership rights is not relevant since the lack of knowledge did not arise from any purposeful act of the co-tenants in possession and the true ownership could have been ascertained by minimal acts of due diligence. The decrees granting title to the property in fee simple, and denying the application of the other co-tenants for an accounting for rent and partition of the property by sale, are affirmed.

092341 Angel v. Commonwealth 01/13/2011 In an appeal from convictions for malicious wounding, abduction with intent to defile, two counts of object sexual penetration, and misdemeanor sexual battery, arising out of attacks on two women on two different dates, no reversible error is found after review of issues involving denial of a motion to suppress defendant’s statements to police during custodial interrogation, denial of appeal from an order of the J&DR court certifying charges against defendant to the grand jury pursuant to Code § 16.1-269.1(B), and denial of motions to dismiss the indictments, for appointment and compensation for a DNA expert, for a continuance, and for mistrial, as well as joinder of the trials of separate offenses and admitting evidence of other crimes. A challenge to the imposition of three consecutive life sentences for nonhomicide crimes, without parole, for offenses committed while a juvenile as cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution is also rejected. The judgment is affirmed.

092361 Addison v. Jurgelsky 01/13/2011 A wrongful death action against three physicians commenced by only one of two co-administrators of an estate was not properly dismissed as time-barred when the second co-administrator was joined as a plaintiff after the expiration of the statute of limitations. Code § 8.01-5(A) permitted joinder of the co-executor as a party plaintiff at any time as the ends of justice may require. Here it did not prejudice the defendants or change the pending claims. The judgment is reversed.

092498 Bottoms v. Commonwealth 01/13/2011 The circuit court erred in failing to permit a defendant to withdraw a plea of guilty to two counts of construction fraud, applying an incorrect standard under Code § 19.2-296. The record demonstrated that the defendant entered the plea inadvisedly, that his proffered defense was reasonable and not vague, and that he was not dilatory in raising such defense. The judgment of the Court of Appeals affirming that decision is reversed and the case is remanded. Defendant shall be permitted to withdraw his guilty plea and the case shall proceed to trial if the Commonwealth be so advised.

092524 Hernandez v. Commonwealth 01/13/2011 The Court of Appeals erred in finding that the trial court lacked statutory or inherent power, at the conclusion of the evidence in a bench trial on charges of assault upon a police officer, to defer disposition of the case on certain conditions. The judgment is reversed and the case is remanded.

100202 Crawford v. Commonwealth 01/13/2011 In a prosecution for capital murder, abduction with intent to defile, use of a firearm in the commission of a murder, use of a firearm in the commission of an abduction, rape, and grand larceny, error in admitting a testimonial affidavit previously given by the murder victim was constitutionally harmless, and all of the convictions are affirmed.

100263 Walker v. Commonwealth 01/13/2011 In a prosecution for grand larceny of an automobile under Code § 18.2-95, the Commonwealth’s reliance at trial upon on the “blue book” published by the National Automobile Dealer’s Association to prove that the value of the stolen property exceeded $200, in accord with a Virginia statute, did not violate the defendant’s Sixth Amendment right of confrontation under Crawford v. Washington, 541 U.S. 36, 68 (2004), and Melendez-Diaz v. Massachusetts, 129 S.Ct 2527, 2531 (2009). The judgment of the Court of Appeals upholding the defendant’s conviction is affirmed.

100395 Nelson v. Commonwealth 01/13/2011 (Revised 01/18/2011) In a prosecution for driving while intoxicated, fourth offense within ten years, the defendant was “operating” a motor vehicle within the meaning of Code § 18.2-266 because the vehicle’s ignition key was in an “on or accessory position” and the radio was operating. Placing the key in this position constituted “manipulating . . . the electrical equipment of the vehicle” operating the vehicle. The judgment of conviction is affirmed.

100507 Roseborough v. Commonwealth 01/13/2011 (Revised 01/18/2011) In the trial of charges for driving while intoxicated, stemming from a single-vehicle accident on a private road in a gated, guarded residential complex, the trial court erred in receiving into evidence a certificate setting forth the defendant’s blood alcohol content based on a breath test administered under the implied consent law, because the exceptions to the warrant requirement contained in Code § 19.2-81 do not apply, and the defendant was not validly arrested for a misdemeanor not committed in the officer’s presence. The judgment is reversed and the case is remanded.

100596 Preston v. Commonwealth 01/13/2011 In a prosecution for possession of a firearm after having been adjudicated, as a juvenile 14 years of age or older, of a delinquent act that would be a violent felony if committed by an adult in violation of Code § 18.2-308.2(A)(iii), the evidence was not sufficient to sustain the conviction because the nature of the delinquent act for which defendant was adjudicated cannot be determined. Thus the Commonwealth did not meet its burden of proving that he previously had been adjudicated delinquent of an act that would be a violent felony if committed by an adult. Because the Commonwealth proved only the defendant’s prior adjudication of a non-violent felony, the conviction is reversed and the case is remanded for a new sentencing proceeding on the lesser offense.

091274 McGhee v. Commonwealth 11/04/2010 In a prosecution for possession of cocaine with the intent to distribute, the Court of Appeals did not err in denying an appeal where the defendant’s slurred speech and odor of alcohol about his person gave probable cause to arrest him for public intoxication, and the police search of his parked vehicle did not violate then-applicable limitations on searches incident to arrest. The judgment is affirmed.

091455 Town of Leesburg v. Giordano 11/04/2010 In an action against a town challenging an ordinance that imposed a 100% surcharge on the water and sewer rates affecting properties owned by the complainants that were located in the county, but outside the town, the circuit court erred in ruling that the town failed to present sufficient evidence to meet its burden under the fairly debatable standard. The testimony of an expert that the increased water rate charged to out-of-town customers is fair and reasonable, and that the increased sewer rate charged to out-of-town customers is practicable, equitable, and uniform, supported by his justifications for his opinion, was sufficient to make the issue fairly debatable. The judgment of the circuit court is reversed and final judgment is entered for the town.

091492 Conger v. Barrett 11/04/2010 Where a pending wrongful death action was dismissed for inactivity pursuant to Code § 8.01-335(B) but reinstated within one year on notice and motion, the circuit court erred in dismissing the reinstated action as time-barred. The motion to reinstate the case did not create “another action” subject to the wrongful death limitation period in Code § 8.01-244(B), but instead sought reopening of an existing action. Code § 8.01-335(B) establishes a one-year period for reinstatement, which had not expired when the court entered the order in this case. The judgment is reversed and the case is remanded.

091621 TB Venture v. Arlington County 11/04/2010 In a taxpayer’s petition to correct erroneous tax assessments, the taxpayer failed to carry its burden to present evidence establishing the fair market value of individual condominium units, when its expert opined as to the fair market value of the group of units as a whole and then allocated a value to each unit based on its pro rata share of the income generated by all of the units. The judgment of the circuit court striking the taxpayer’s evidence is affirmed.

091745 Jones v. Williams 11/04/2010 (Revised 05/23/2011) In a medical malpractice action against the estate of a deceased doctor, a nurse who gave testimony for the plaintiff as a non-party witness at trial was not an “interested party” whose testimony required corroboration under Code § 8.01-397. Thus there is no error in the circuit court’s denial of the defendant’s motions to strike or its refusal to instruct the jury on the Dead Man’s Act. Judgment for the plaintiff is affirmed.

091840 Heinrich Schepers GmbH & Co. v. Whittaker 11/04/2010 In the second appeal from an action by a longshoreman injured while working on a boat docked in Virginia, the plaintiff, who had made a limited waiver of his right to a jury during a prior trial, was entitled to a jury trial after reversal of the prior judgment and remand of the proceedings to the circuit court for a trial limited to the issue of damages. The standards for waiver of a jury trial right in subsequent proceedings were not met and the record supports the circuit court’s finding that no jury trial waiver for subsequent proceedings was made by the plaintiff. The judgment of the circuit court is affirmed.

091883 FFW Enterprises v. Fairfax County 11/04/2010 In proceedings involving a challenge to Code §§ 58.1-3221.3 and 33.1-435 under the Constitution of Virginia, the plaintiff failed to meet its burden to prove that no reasonable basis for the tax classifications in these provisions can be conceived. The fact that untaxed others will benefit to some extent from the improvements funded by the taxes does not prove that there is no rational basis for the tax classifications approved by the General Assembly. The judgments of the circuit court are affirmed.

091945 Gheorghiu v. Commonwealth 11/04/2010 (Revised 05/23/2011) In a prosecution for identity theft, credit card fraud and 36 counts of credit card theft, the judgment of the Court of Appeals upholding convictions for credit card theft is affirmed because consideration of the issue raised with regard to these convictions was not preserved for appeal as required under Rule 5:25. The judgment of the Court of Appeals is reversed with regard to the identity theft and credit card fraud convictions because the Commonwealth did not present evidence sufficient to establish a strong presumption that the county where the charges were brought was a proper venue for prosecution of these offenses. Those cases are remanded for further proceedings should the Commonwealth be so inclined.

091987 Carroll v. Commonwealth 11/04/2010 (Revised 05/23/2011) The circuit court correctly found that a person charged with rape who entered an Alford plea violated the terms of his probation by refusing to admit his guilt during the course of required group therapy treatment for sex offenders. It was also not an abuse of discretion to reject a request for individual treatment and to require defendant to successfully complete the program of ordered group therapy treatment in order to avoid incarceration. The judgment of the Court of Appeals upholding the rulings of the circuit court is affirmed.

092064 Bly v. Commonwealth 11/04/2010 In a prosecution for possession with intent to distribute methamphetamine, as well as an imitation controlled substance, based upon controlled “buys” by a paid confidential informant, information that the same informant had made prior false claims about purchasing controlled substances from other individuals could clearly have led to evidence admissible at trial for impeachment purposes. The withholding of this information by the Commonwealth was prejudicial to the defendant, and impairs confidence in the outcome of the trial. The judgment appealed from is reversed and the case is remanded for a new trial consistent with this opinion if the Commonwealth be so advised.

092313 Sidney v. Commonwealth 11/04/2010 In a prosecution for possession of cocaine and possession of marijuana, the Court of Appeals did not err in denying a petition for appeal from a judgment entered on a conditional guilty plea after the trial court denied the defendant’s motion to suppress evidence seized when he was stopped while driving a vehicle and arrested on outstanding warrants. Considering the totality of the circumstances, the officer had reasonable suspicion to believe that defendant was driving the vehicle and, thus, the investigative stop for the limited purpose of establishing the driver’s identity did not violate his Fourth Amendment rights. The judgment of the Court of Appeals is affirmed.

092402 Hood v. Commonwealth 11/04/2010 In a proceeding under the Civil Commitment of Sexually Violent Predators Act, the circuit court’s ruling that the respondent prisoner would not be permitted to present expert evidence at trial because, a prior to appointment of counsel and prior to the filing of the commitment petition, he had refused to cooperate with the Commonwealth’s mental health expert during a court-ordered assessment examination, denied him procedural due process protections in the present circumstances. The judgment is reversed and the case is remanded.

092418 Perry v. Commonwealth 11/04/2010 (Revised 05/23/2011) In a prosecution for possession of phencyclidine, the Court of Appeals did not err in affirming the trial court’s denial of the defendant’s motion to suppress seized evidence and in affirming his conviction on the basis that there was probable cause to arrest when he was taken into custody. The judgment of the Court of Appeals is affirmed.

092455 Banks v. Commonwealth 11/04/2010 (Revised 05/23/2011) After a trial court suppression ruling which accepted only one of several grounds asserted by the Commonwealth to justify a search that yielded a weapon, the Court of Appeals erred in making factual findings in support of an additional theory not advanced below, on the issue of consent for the search of the defendant’s jacket. The judgment is reversed and the case is remanded to the Court of Appeals for further consideration of the issue presented on defendant’s appeal based on the trial court’s ruling as to the existence of exigent circumstances justifying a warrantless seizure of his jacket.

092461 Ali v. Commonwealth 11/04/2010 In a prosecution for robbery and grand larceny from the person, the evidence was sufficient to support the defendant’s conviction for robbery. However, the record does not support the theory that two successive takings occurred, or that defendant removed or otherwise moved any money being stolen, or took control of any part of it, until after a clerk intervened. The evidence is consistent only with the conclusion that defendant obtained all of the stolen money by force because his asportation was complete only when he “yanked” the money from the clerk’s hands. In this circumstance the defendant could not properly be convicted of both crimes when the evidence showed the commission of a single act, and the “ends of justice” exception of Rule 5A:18 should have been invoked to permit the defendant to raise this question for the first time on appeal. The judgment of the Court of Appeals is affirmed with respect to the robbery conviction, but reversed with respect to the conviction of grand larceny from the person, which is vacated and final judgment is entered.

092592 Cordon v. Commonwealth 11/04/2010 In a prosecution for possession of cocaine the evidence was insufficient to establish constructive possession of the contraband by the defendant. The judgment of the Court of Appeals is reversed and the defendant’s conviction is vacated.

100143 Carosi v. Commonwealth 11/04/2010 In a prosecution for, among other charges, child endangerment, three convictions for violation of Code § 40.1-103(A) were supported by sufficient evidence that the defendant endangered the lives of her three children by permitting illegal drugs to be kept in her home in a place accessible to the children. Considering the totality of the record, it cannot be said that the jury’s finding of criminal negligence in this case was plainly wrong or without support in the evidence. Thus the Court of Appeals did not err in refusing the defendant’s petition for appeal, and the judgment is affirmed.

100160 Hall v. Commonwealth 11/04/2010 In a prosecution for felonious escape by force or violence in violation of Code § 18.2-478 there was sufficient evidence to prove that the defendant was under arrest and therefore in custody prior to his escape. The judgment of the Court of Appeals of Virginia upholding the conviction is affirmed.

100431 Sullivan v. Commonwealth 11/04/2010 (Revised 05/23/2011) In a prosecution under former Code § 3.1-796.122 for misdemeanor animal cruelty, the Court of Appeals did not err in finding that there was sufficient evidence to support defendant’s conviction.

070815 Cypress v. Commonwealth 09/16/2010 In criminal proceedings remanded from the Supreme Court of the United States for consideration in light of Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527 (2009), admission into evidence of certificates of chemical analysis pursuant to procedures set forth in former Code §§ 19.2-187 and 19.2-187.1, without presentation by the Commonwealth of testimony from the forensic analysts who prepared them, violated the defendants’ rights secured by the Confrontation Clause of the Sixth Amendment to the United States Constitution. In one of the cases in this appeal the judgment of the Court of Appeals affirming the conviction is reversed, the conviction is vacated, and the case is remanded for a new trial if the Commonwealth be so advised. In the other case, the error was harmless and the judgment of the Court of Appeals upholding the convictions is affirmed.

082564 Aguilar v. Commonwealth 09/16/2010 (Revised 05/23/2011) In a case remanded by the Supreme Court of the United States for further consideration in light of Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527 (2009), the Commonwealth’s failure to call as witnesses two forensic scientists who played preliminary roles in the DNA analysis at issue but did not author the certificates of analysis admitted into evidence did not violate the defendant’s rights under the Confrontation Clause because neither scientist bore testimony against the defendant. The judgment of the Court of appeals concluding that the circuit court did not err in admitting the certificates into evidence and upholding the defendant’s convictions for rape, object sexual penetration, and robbery and use of a firearm is affirmed.

091378 Wintergreen Partners v. McGuireWoods 09/16/2010 The circuit court did not err in granting summary judgment to a law firm sued for malpractice in failing timely to file transcripts on appeal on behalf of a client held liable for $8.3 million in a personal injury premises liability suit. Because jury instructions in that underlying injury action concerning an entity’s exposure to liability independent of respondeat superior liability for the negligence of its employees were not objected to, and thus became law of the case, reversal was not available in the dismissed appeal based upon the theory that exoneration of the employees by the jury precluded imposition of liability on the entity. Therefore the judgment of the trial court granting summary judgment for the law firm is affirmed in the present malpractice action because the plaintiff could not meet the standard for proving a valid legal malpractice claim.

091430 Commonwealth v. AMEC Civil 09/16/2010 In a construction contract dispute in which the plaintiff contractor and the defendant Virginia Department of Transportation both assign error, issues are discussed concerning timely notice of claims, whether sustained elevated lake water levels constitute a differing site condition under the contract, entitlement to home office overhead damages, calculation of actual costs as a basis for an award of damages, and entitlement to pre-judgment interest as an element of damages. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for the circuit court to recalculate damages.

091493 Aguilera v. Christian 09/16/2010 (Revised 05/23/2011) In a personal injury litigation, the complaint was invalid and a nullity because it was not signed by the plaintiff as the party with the cause of action, or by an attorney licensed to practice law in this Commonwealth. A party who is acting pro se may not authorize a person who is not licensed to practice law in this Commonwealth to sign a complaint on behalf of the pro se party. Therefore, the trial court did not err in dismissing the complaint, and the judgment is affirmed.

091495 Uniwest Construction v. Amtech Elevator Services (Rehearing Granted 1/18/2011) 09/16/2010 (Revised 01/18/2011) Language in a construction subcontract obligating a subcontractor to indemnify the general contractor for claims – whether or not based on the contractor’s own negligence – irreconcilably conflicts with the public policy of Virginia expressed in Code § 11-4.1. However, provisions of the subcontract’s “general conditions” obligated the subcontractor to defend and indemnify the general contractor. The required predicates of the subcontractor’s primary insurance policy are met, since it was required to defend and indemnify the prime contractor and to provide insurance to the prime contractor. Consequently, the prime contractor was an insured under the subcontractor’s umbrella policies, and therefore the subcontractor’s umbrella coverage carrier had a duty to defend and indemnify the prime contractor. The judgment of the circuit court is affirmed in part and reversed in part and the case is remanded. (Rehearing was granted by Order entered January 18, 2011) See Record No. 091495, Uniwest Construction v. Amtech Elevator Services dated April 21, 2011

091502 Arogas, Inc. v. Frederick County Board of Zoning Appeals 09/16/2010 In a certiorari and declaratory judgment challenge to an action of a county enforcing an amended proffer made part of a rezoning of real property, petitioners failed to state a cause of action because Code § 15.2-2285(C) authorized the board of supervisors to make changes to proffers the landowners originally submitted after conducting a public hearing, and the landowners in this case agreed with changes made to the amended proffer after the public hearing. The circuit court also did not err by failing to interpret the proffer itself, or in ordering that the zoning administrator accept the site plan for review. The judgment of the circuit court is affirmed.

091546 Abi-Najm v. Concord Condominium, LLC 09/16/2010 (Revised 05/23/2011) In two actions against a condominium company by purchasers of units in the complex, the trial court erred when it sustained demurrers to breach of contract claims in the complaints on the grounds that they were barred by the merger doctrine, because the deeds were nothing more than instruments intended to convey title and there was no patent and irreconcilable conflict between the purchase contracts and the deeds. The circuit court also erred in dismissing claims for violation of the Virginia Consumer Protection Act under the economic loss doctrine because the plaintiffs alleged a statutory duty that existed independent of the parties’ contracts. The plaintiffs’ allegations that the defendant made misrepresentations before the contracts were entered, with a present intention not to perform the promised obligations, alleged an actionable claim for fraud in the inducement that also finds its source outside the parties’ contracts and should not have been dismissed on demurrers. The judgments are reversed and the cases are remanded for further proceedings.

091590 County of Albemarle v. Keswick Club 09/16/2010 On remand from a prior appeal, the circuit court’s reduction of an assessment for a private recreational club for two tax years was not reversible error. The circuit court’s ruling as to the proper value for the taxpayer’s property is not erroneous because it is not plainly wrong or without evidence to support it and, pursuant to Code § 58.1-3987, a circuit court may fix the assessment in accordance with the evidence. Any error in admission of certain contested evidence was harmless. The judgment is affirmed.

091659 Van Dam v. Gay 09/16/2010 In an action for legal malpractice, the circuit court correctly held that a wife’s legal injury arising out of the alleged malpractice in drafting divorce property settlement papers occurred when the court entered a final decree of divorce in 1986, terminating the defendant’s employment in the matter in which he was engaged. The wife’s right of action accrued and the statute of limitations began to run on that date instead of the date that the divorce decree was ultimately deemed insufficient to entitle the wife to survivor’s benefits under her former husband’s retirement plans. The circuit court did not err in sustaining the plea in bar and its judgment is affirmed.

091661 Virginian-Pilot v. Dow Jones & Company 09/16/2010 (Revised 05/23/2011) In a petition by a national financial newspaper for an order granting it authority under Code § 8.01-324(A) to publish legal notices, the circuit court lacked subject matter jurisdiction to entertain the application and its order concerning same is null and void. The judgment of the circuit court is reversed and its order is vacated.

091685 Jamerson v. Coleman-Adams Construction 09/16/2010 The trial court’s dismissal of a personal injury action because it was filed beyond the statutory limitation period provided by Code § 8.01-250 is affirmed. The steel platform and pole which collapsed causing injury to the plaintiff are not “equipment, machinery or other articles” under Code § 8.01-250, but instead are ordinary building materials governed by the statute’s five-year period of repose. The judgment of the trial court is affirmed.

091738 Shipe v. Hunter 09/16/2010 (Revised 05/23/2011) Regarding pleadings, Code § 8.01-271.1, considered along with Rules 1:4 and 1A:4, require the handwritten signature of either a pro se plaintiff or an attorney who is licensed to practice law in Virginia, and a Virginia lawyer may not validly authorize a lawyer licensed elsewhere, but not in Virginia, to sign the Virginia lawyer’s name to a pleading. Thus, a complaint bearing the handwritten signature of a Virginia attorney that was written in by a foreign attorney at the direction of the Virginia attorney was defective, could not be cured by amendment, and was a nullity. The judgment of the circuit court granting defendant’s motion for summary judgment and dismissing plaintiff’s case with prejudice, based on the lack of a proper signature on the complaint, is affirmed.

091878 Blanton v. Commonwealth 09/16/2010 (Revised 05/23/2011) In an appeal arising from a prosecution for murder and felonious use of a firearm, defendant’s failure to make a timely motion for a cautionary instruction or mistrial concerning the prosecutor’s comment about the defense evidence failing to show that the defendant was not guilty precludes consideration of the merits of her assignments of error regarding this comment. With respect to the prosecutor’s subsequent comment about the defendant being in jail several days after the events, it cannot be said that the circuit court erred as a matter of law in denying defendant’s mistrial motion. Considering the innocuous nature of this comment under all the circumstances of the case, the circuit court’s cautionary instruction to the jury, and the prosecutor’s corrective statement, the defendant’s rights were clearly not so indelibly prejudiced as to necessitate a new trial. The judgment of the Court of Appeals is affirmed.

091911 Noakes v. Commonwealth 09/16/2010 In a prosecution for involuntary manslaughter arising from the suffocation death of an infant in defendant’s care, there was sufficient evidence to support the finding that defendant was criminally negligent and that her acts were a proximate cause of the toddler’s death. The judgment of conviction is affirmed.

092273 Warrington v. Commonwealth 09/16/2010 In civil commitment proceedings under the Sexually Violent Predators Act, Code §§ 37.2-900 et seq., the circuit court did not err in denying respondent’s motions for dismissal and release where he failed meet his burden of proof to show that the actions of the Attorney General in filing the commitment petition and subsequent efforts to amend it were grossly negligent. By operation of Code § 37.2-905.1, the Attorney General is presumed to have substantially complied with Code §§ 37.2-903, 37.2-904, and 37.2-905, and the circuit court did not abuse its discretion in granting the motion to file a second amended petition, substituting the report of a qualified licensed psychologist for a report of an unqualified licensed psychologist, and ordering respondent to be held beyond his release date until a final order was entered on the commitment petition. The circuit court likewise did not err in denying respondent’s motions seeking dismissal of the petition and his release from prison. The judgment is affirmed.

100374 Andrews v. Commonwealth 09/16/2010 Upon review of the four capital murder convictions and death sentences imposed on the defendant, non-harmless errors occurred in the penalty-determination phase of the trial. The death sentences are vacated and the case is remanded for a new penalty-determination proceeding. Defendant’s convictions for robbery, malicious wounding, abduction, and various firearms charges are affirmed. Issues discussed include the propriety of simultaneous convictions under Virginia’s statutes governing multiple killings under Code §§ 18.2-31(7) and (8), liability for killings as a principal in the first degree, spoliation of evidence, expert ballistics proof, double jeopardy, alleged prosecutorial misconduct, victim impact evidence concerning unadjudicated conduct and various other evidentiary and procedural issues.

090444 James v. City of Falls Church 06/10/2010 The trial court did not err in granting a motion to strike the evidence, or in dismissing an action by a church which had been denied an application for consolidation of several lots after consideration by a zoning administrator, planning staff, and the locality’s planning commission. The circuit court did not fail to apply the correct standard of review, and the church failed to show that the planning commission’s denial of its consolidation application was not properly based on the applicable ordinances, or was arbitrary or capricious, as was its burden of proof under Code §§ 15.2-2259(D) and -2260(E). The circuit court did not err in finding that the commission had the right and authority to disregard the zoning administrator’s interpretation of a local ordinance in deciding whether to approve or disapprove the consolidation application. The judgment is affirmed.

090682 The Protestant Episcopal Church v. Truro Church 06/10/2010 In a church property dispute involving a Virginia diocese of an international protestant church, the United States province of that church, and a number of constituent congregations, the circuit court erred in granting orders permitting the congregations to occupy and control real property held in trust after voting to disaffiliate from the Virginia diocese and to affiliate with a mission within a different province of the international protestant church under Code § 57-9(A). While the congregations established that there was a division within the church to which they had been attached as required by the statute, they failed to also establish that, as a result of that division, the congregations sought to affiliate with a branch derived from that same church, as opposed to a mere shared tradition of faith. The judgment is reversed and the cases are remanded.

091009 Walton v. Mid-Atlantic Spine Specialists 06/10/2010 In a medical malpractice case, the defendant doctor waived the attorney-client privilege for a letter he wrote to his attorney regarding potential negligence in his examination of key x-rays when that letter was produced to the plaintiff during discovery. While the doctor’s disclosure of the letter was inadvertent, the doctor waived his attorney-client privilege by failing to take reasonable measures to ensure and maintain the confidentiality of the letter. The judgment of the circuit court is reversed and the case is remanded for further proceedings.

091023 Dolby v. Dolby 06/10/2010 In an action by a decedent’s executors for aid and direction regarding administration of the estate, in which the parties asked the circuit court to determine whether the estate or the surviving spouse was liable for payment of the indebtedness on a promissory note entered by the decedent alone, but which was secured by the deed of trust on property which, the time of his death, was held by the spouses as tenants by the entirety with right of survivorship, the judgment of the circuit court is reversed and final judgment is entered in favor of the widow. The mortgage debt is an obligation of and shall be paid from the estate.

091055 Schilling v. Schilling 06/10/2010 In a contest over probate of a holographic will, a determination whether a writing offered for probate is a valid will applies the law in effect on the date of the maker’s death. Thus the application of Code § 64.1-49.1 to an alleged will executed before the effective date of the statute, was not retroactive application of the laws with respect to a decedent who died after the effective date of the statute. The judgment of the circuit court is reversed and the case is remanded.

091172 Syed v. ZH Technologies 06/10/2010 In a small business commercial dispute, the trial court erred by entering judgment on business conspiracy and tortious interference with contract claims and by allowing a breach of fiduciary duty claim to proceed when a variance existed between the facts and legal theory of liability pled and the proof at trial. Issues with respect to the status of corporations and their officers, directors or agents during periods of corporate termination prior to reinstatement are discussed, along with the requirements for proof of compensatory damages in business conspiracy claims. The judgment is affirmed in part and reversed in part, and the case is remanded.

091180 Advanced Towing v. Fairfax County Board 06/10/2010 (Revised 05/23/2011) The trial court did not err in sustaining demurrers in a suit for declaratory relief filed by two towing companies challenging an ordinance requiring them to have a vehicle storage facility within the boundaries of the county. A reasonably conceivable state of facts appeared on the pleadings concerning enforcement of the provision that could provide a rational basis for the classification made by the ordinance under review, and the territorial limitation therefore survives analysis under the Equal Protection guarantee of the Fourteenth Amendment. Likewise, the Dillon Rule of limited local government powers allows a reasonable selection of method permitting local governing bodies to exercise discretionary authority where a statutory grant of power has been expressly made but is silent upon the mode or manner of its execution. The judgment is affirmed.

091265 Herndon v. Commonwealth 06/10/2010 In a prosecution for possession of cocaine, the circuit court did not abuse its discretion in admitting a certificate of analysis from the Department of Forensic Science into evidence when the court, which observed the evidence in question, made a factual finding that alleged discrepancies between the descriptions of the material on the request for examination form and certificate of analysis were not contradictory, and the Commonwealth presented sufficient evidence to establish with reasonable certainty that there had been no alteration or substitution of the evidence. The judgment of the Court of Appeals upholding the defendant’s conviction is affirmed.

091271 TC MidAtlantic Development v. Commonwealth 06/10/2010 (Revised 05/23/2011) In a construction contract dispute, the trial court did not err in dismissing on demurrer two counts of a complaint brought by a construction company against the Virginia Department of General Services on the ground that compliance with conditions precedent for such claims was not adequately pled. The trial court erred in sustaining a demurrer and dismissing another count of the complaint as to which the timely claims requirement set forth in the demurrer was not applicable. The judgment is affirmed in part, and reversed in part, and the action is remanded for further proceedings.

091343 Covel v. Town of Vienna 06/10/2010 The judgment is affirmed in three consolidated circuit court actions involving challenges to a local historic preservation ordinance and decisions made by the locality thereunder. No evidence in the record rebuts the presumption of validity of the locality’s decision denying a certificate of appropriateness to build a fence and denying permission to remove various parcels from the historic district. Code § 15.2-1427(C), reenacted in 2000, bars all non-constitutional challenges to the adoption of ordinances existing at that time, such as the ordinance involved in these cases. The ordinance provisions at issue here are sufficiently precise and definite to give fair warning of the information required for applications under its terms, and no error is found in the judgment of the circuit court dismissing the as-applied challenge to the ordinance.

091388 Ladysmith Rescue Squad v. Newlin 06/10/2010 (Revised 06/18/2010) In protracted trust litigation, the circuit court erred in granting over objections the motions to divide a testamentary charitable remainder unitrust and to commute and terminate one of two trusts created by that division, where the record did not support the findings required by Code § 55-544.17 that a division would not adversely affect achievement of the purposes of the trust, or of Code § 55-544.12(A) that there were circumstances not “anticipated by the settlor” and that “modification or termination will further the purposes of the trust.” The argument of the moving parties that the settlor could not have foreseen that the beneficiaries would “rather have [their] money today than wait” is rejected. The judgment is reversed and the case is remanded to the circuit court with direction to enter orders denying both motions and for further proceedings consistent with this opinion.

091410 Station #2, LLC v. Lynch 06/10/2010 In an action involving breach of contract, fraud, and conspiracy claims arising from the lease of the ground floor of a building for use as a restaurant and entertainment venue, an oral agreement for access to the space between floors to arrange for soundproofing of the premises was not made unenforceable by the statute of frauds. Claims of fraudulent inducement to contract and statutory conspiracy are also discussed. The judgment is reversed and the case is remanded for trial on plaintiff’s breach of contract claim.

091469 Evans v. Evans 06/10/2010 In a personal injury suit by a minor child against a parent for negligence in failing to secure her in a proper child restraint device when traveling in a motor vehicle on the highways of Virginia, the provisions of Code § 46.2-1095(C) and Code § 46.2-1098 precluding claims of negligence per se in failure to comply with child seat restraint laws while transporting a minor in a vehicle, do not abrogate a common law action for negligence. The judgment granting a demurrer and dismissing the child’s common law negligence case, which was not pled under the statutes, is reversed and the case is remanded.

091470 Smith v. Mountjoy 06/10/2010 In litigation brought by a widower challenging trusts set up by his spouse acting as his attorney-in-fact under a durable power of attorney, the severance of the parties’ tenancy by the entirety interests in certain real property and conveyance of one-half interests in each of the properties to the spouse’s trust was a gift, and steps taken by the widower before his death did not ratify the wife’s actions. There was no error in the circuit court’s refusal to consider deposition testimony proffered on cross-motions for summary judgment. The judgment is affirmed.

091507 Cokes v. Commonwealth 06/10/2010 In a criminal proceeding on multiple felony drug charges, the trial court abused its discretion by failing to determine whether the defendant’s request for a jury trial – made on the day of his scheduled bench trial – could have been accommodated without substantially delaying or impeding the cause of justice. The judgment is reversed.

091535 Smith v. Commonwealth 06/10/2010 (Revised 05/23/2011) In an appeal from an order issued in proceedings under the Civil Commitment of Sexually Violent Predators Act, Code §§ 37.2-900 et seq., holding that respondent remains a sexually violent predator and remains in need of secure inpatient hospitalization, the circuit court did not err in considering evidence contained within respondent’s treatment records because those treatment records were admissible under the business records exception to the hearsay rule, and the evidence was sufficient to support the circuit court’s determination that continued civil commitment was necessary. The judgment is affirmed.

091793 Midkiff v. Commonwealth 06/10/2010 In a prosecution under Code § 18.2-374.1:1 for possession of child pornography, because digital video recordings and still images admitted at trial were reproduced by making a bit for bit copy of the hard drives on defendant’s computer, writing files from that copy to a digital video disc and then printing them without changes, the printed pictures and video recordings were reliable representations of the material contained in the files in the defendant’s computer hard drives and the circuit court did not abuse its discretion in receiving the pictures and video recordings into evidence. The judgment of the Court of Appeals upholding defendant’s convictions is affirmed.

091895 Carter v. Commonwealth 06/10/2010 In a grand larceny prosecution arising from a scheme by defendant and accomplices to obtain a “refund” for goods that had never been purchased or removed from the store, but were simply placed in a cart and taken to the “returns” counter in the store, there was sufficient evidence of asportation and assertion of ownership of the property to prove intent to steal, and the conviction is affirmed.

092126 Moseley v. Virginia State Bar (ORDER) 06/10/2010 No error is found upon consideration of a judgment of a three-judge circuit court panel suspending an attorney’s license to practice law in the Commonwealth for six months based upon a finding that the attorney had violated Rules 3.3(a)(1), 3.4(e), 3.4(j), 4.1(a), 8.2 and 8.4(a), (b), and (c). Issues including the due process rights of a disciplined attorney, the statute of limitations, the validity of the panel’s decision despite the Bar’s noncompliance with Code § 54.1-100, the sufficiency of the evidence, and the appropriateness of the sanction imposed are addressed. The judgment is affirmed.

090345 Copp v. Nationwide Mutual Insurance Co. 04/15/2010 In a declaratory judgment action by an insurance company seeking a ruling that it had no obligation to defend or indemnify a college student, who was an insured under his parents’ homeowners liability and umbrella insurance policies, from a claim for personal injuries that arose from an altercation in an apartment building, the circuit court erred in holding that the insurer owed no duty to defend or indemnify its insured in a tort action brought against him by another individual. While policy terms excluded coverage for “bodily injury and property damage intended or expected by the insured,” in evaluating whether there is a duty to defend in a given case an applicable exception required consideration of the insured’s claim that he caused bodily injury or property damage while trying to protect person or property, i.e., himself. The judgment is reversed and the case is remanded for a declaration of the parties’ rights consistent with this opinion.

090404 Lane v. Starke 04/15/2010 In a contested suit to construe a will, although the enjoyment of certain devises made to remaindermen was postponed during a life estate held by the testator’s widow, there was no language in the will evidencing an intent to postpone the vesting of their remainder interests, and thus the early vesting rule applies and the remainder interests vested at the time of the testator’s death. In light of the postponement by the testator of the rights of the remaindermen to enjoy the property, their duty to make payments specified by the testator in respect of the devises did not arise until the death of the life tenant, and the real estate assessments as of that date are applicable in determining the values. The judgment is reversed and the case is remanded for further proceedings.

090524 Snead v. C&S Properties 04/15/2010 In an injunction proceeding arising from allegations that an easement was subject to encroachment, the trial court erred in refusing permanent injunctive relief upon a finding that the encroachment was not a material interference with the dominant owners’ rights because vehicular access remained possible. The judgment is reversed and the case is remanded for entry of permanent injunctive relief barring encroachment on the full width of the easement.

090596 Simpson v. Virginia Municipal Liability Pool 04/15/2010 In a declaratory judgment proceeding the circuit court did not err in determining that injuries suffered by a deputy sheriff during efforts to take into custody a suspect, who had left his vehicle and was tackled to the ground 10 feet away, were not covered under any of three automobile insurance policies because the injuries did not arise out of the “use” or “occupancy” of any of the vehicles involved. The judgment is affirmed.

090659 City of Alexandria v. J-W Enterprises, Inc. 04/15/2010 In a contribution suit, the trial court did not err in finding that an off-duty police officer working an “extra-duty detail” at a restaurant was performing a public function when he pursued a group of patrons who did not pay their bill, and shot one of them in the parking lot when their car drove straight at the officer at a high rate of speed as he commanded the driver to stop. The claim for contribution was thus defeated, and the judgment dismissing the action is affirmed.

090674 Idoux v. Helou 04/15/2010 (Revised 05/28/2010) The judgment of the circuit court sustaining a plea in bar of the statute of limitations against an action that was brought against an “estate” rather than the appointed personal representative, is affirmed. Code § 8.01-6.2(B) does not permit a plaintiff, who filed a warrant in debt against an estate, to file a subsequent action to add the proper defendant after the statute of limitations had expired.

090803 Schefer v. City Council of Falls Church 04/15/2010 In a declaratory judgment action by a landowner against a city challenging a zoning ordinance that sets different building height limits for standard and substandard lots as an alleged violation of the uniformity requirement of Code § 15.2-2282, the circuit court did not err in granting summary judgment for the defendant city because it uniformly applies its building height regulations for one-family dwellings on standard lots and uniformly applies its building height regulations for one-family dwellings on substandard lots in the zoning district. On plaintiff’s further contention that the ordinance violated equal protection principles, because the height regulation is not inherently suspect involving infringement upon fundamental rights, plaintiff was required to establish that the ordinance was unreasonable, and failed to do so. Therefore plaintiff failed to rebut the presumption of its validity. The judgment is affirmed.

090881 Boyce v. Commonwealth 04/15/2010 In a proceeding by the Commonwealth seeking the appellant’s civil commitment as a sexually violent predator, the circuit court did not abuse its discretion by refusing to strike the testimony of a mental health expert who relied upon a criminal charge for taking indecent liberties with children that was dismissed by nolle prosequi as one of many factors in forming the opinion that the appellant met the criteria for a sexually violent predator. The expert’s opinions that appellant suffered from pedophilia and from a personality disorder, as well as his opinion that appellant was a sexually violent predator, were amply supported by prior convictions for sexual offenses against children and by evidence presented at trial. Therefore, these opinions were not speculative and unreliable as a matter of law, and were properly admitted into evidence. The judgment of the circuit court is affirmed.

090906 Shilling v. Baker 04/15/2010 The trial court did not err in concluding that a cemetery did not exist on a hilltop property where the cremated remains of plaintiff’s grandfather and other relatives had been scattered, either prior to or at the time that an urn containing the cremated remains of plaintiff’s mother was buried, or in finding that the interment of the urn at that location violated the county zoning code provision requiring a special use permit to use the land as a cemetery. Under applicable law, the scattering of cremains was insufficient to create a cemetery. The judgment is affirmed.

090907 Orndorff v. Commonwealth 04/15/2010 The trial court did not abuse its discretion in considering a motion for a new trial based on after-discovered evidence, since it reviewed the entire evidentiary record with care and applied the appropriate standard. When the evidence on a new trial motion is in conflict, the circuit court is not permitted to presume that the moving party’s evidence is true but is required to weigh all the evidence presented in determining whether the moving party has satisfied the materiality standard by showing that the evidence is such that it should produce an opposite result on the merits at a new trial. The judgment of the Court of Appeals, holding that the circuit court did not abuse its discretion in denying the motion for a new trial, is affirmed.

090947 Kimble v. Carey 04/15/2010 In a negligence case brought by a plaintiff who was injured while attempting to rescue the victim in a vehicular accident, the circuit court did not abuse its discretion by denying the plaintiff’s motion to amend her complaint and by excluding evidence of the victim’s intoxication, because whether the victim’s conduct that put him in peril was willful or wanton was immaterial and irrelevant to the rescue doctrine analysis. However, the circuit court erred by determining that plaintiff was contributorily negligent as a matter of law, because the issue whether her conduct reached the level of rash or reckless disregard for her personal safety so as to bar her recovery under the rescue doctrine should have been submitted to the jury for determination. The judgment is affirmed in part and reversed in part. The case is remanded for further proceedings.

090958 Gilliam v. McGrady 04/15/2010 In equitable distribution proceedings involving apportionment of debt as part of a divorce, the trial judge erred by failing to consider statutory factors, and the Court of Appeals’ decision explaining that conclusion is adopted. However, the trial court and the Court of Appeals erred in concluding that there is a presumption that debt is marital, and the case is remanded for proceedings applying the correct factors and traditional burdens of proof for prima facie showings. The judgment is affirmed in part and reversed in part, and the case is remanded.

090972 Hafner v. Hansen 04/15/2010 The circuit court was plainly wrong in holding that a party established by clear and convincing evidence a prescriptive easement for use of an underground sewer line. The evidence failed to establish knowledge by the owner of the burdened estate or her predecessors in title. As a general rule, when underground pipes have not been physically apparent throughout the prescriptive period and the servient landowner has not had notice of the existence of those pipes, the use of the servient estate is not considered to be sufficiently open and notorious to satisfy the requirement of adverse use necessary for the establishment of a prescriptive easement and courts have declined to recognize such easements. The judgment is reversed and the case is remanded.

090984 Johnson v. Hart 04/15/2010 In a legal malpractice action, the party prevailing in the circuit court on summary judgment endorsed the final order “seen and consented to,” but did not thereby expressly waive other arguments he presented to the trial court. On the merits, a sole testamentary beneficiary, in her individual capacity, may not maintain a legal malpractice action against the attorney for the estate based on the attorney’s allegedly negligent services rendered to the estate. The judgment is affirmed.

090989 Bailey v. Town of Saltville 04/15/2010 Considering the language appearing in a 1909 agreement and deed contemporaneously made by the defendant’s predecessors in title concerning an 80 foot-wide strip of property conveyed to a railroad company for use as a right of way, the deed conveyed a fee simple interest in that property, rather than an easement. The deed does not feature any words of limitation that modify the words of grant, and does not describe the interest being conveyed as anything other than a complete conveyance of land. Thus, the circuit court did not err in finding that the plaintiff town, to which the railroad company had transferred all of its right and title to the property and improvements thereto via quitclaim deed, is presently the fee simple owner. The judgment of the circuit court is affirmed.

091127 Hawthorne v. VanMarter 04/15/2010 In appeals from defense verdicts in wrongful death and injury actions that arose when a police vehicle struck a civilian vehicle, the administrators of the decedent’s estate did not have a right to file an appeal in a pro se capacity for a cause of action belonging to the beneficiaries, and that appeal is dismissed. In the injury case, the trial court did not abuse its discretion in refusing to reopen the record at trial after a pretrial ruling sustaining a plea in bar of sovereign immunity against claims of ordinary negligence, or in rejecting a venue challenge involving the residence and purported substantial business activities of the defendant. The trial court did not abuse its discretion in seating jurors and did not err in granting various instructions. One of the appeals is dismissed and the judgment is affirmed in the other.

091305 Clark v. Commonwealth 04/15/2010 The Court of Appeals did not err when it upheld a defendant’s conviction for the crime of assault under Code § 18.2-57 in a case in which her words and actions included a verbal threat to the victim early one day, followed that afternoon by defendant’s reappearance at a place where she had no explained reason for being, at which time she approached the door of the vehicle the victim was driving, blocked the victim’s path of exit and made an unconditional threat to “get” the victim. There was sufficient evidence to indicate a purpose to inflict bodily injury upon the victim, and to support the circuit court’s conviction of the defendant for the crime of assault. The judgment is affirmed.

091539 Jones, Michael v. Commonwealth 04/15/2010 Defendant has failed to show that the circuit court committed reversible error in denying a motion to suppress. Although the seizure of defendant’s wallet was unlawful, his detention remained lawful because at the time of the seizure the detectives were still trying to ascertain his identity, which was within the scope of the traffic stop. The judgment is affirmed.

082305 Volkswagen v. Smit 02/25/2010 The Court of Appeals erred in affirming a circuit court judgment upholding a decision of the Commissioner of the Department of Motor Vehicles that an automobile distributor violated Code § 46.2-1569(7) by failing to ship to a Virginia dealer a quantity of new vehicles that meets the statute’s requirements, and erred in concluding that this statute was not vague as applied under the facts. Because the merits of the appeal can be decided on the narrower basis of an “as applied” challenge to Code § 46.2-1569(7) under due process, the distributor’s facial challenge to the statute based on dormant Commerce Clause principles need not have been considered. The Court of Appeals’ judgment is vacated in part and reversed in part, and final judgment is entered in favor of the automobile distributor.

082575 County of Chesterfield v. Tetra Associates, LLC 02/25/2010 In a declaratory judgment action arising from a county’s disapproval of a preliminary subdivision application, the circuit court erred by declaring county code provisions void in their entirety. However, an applicable county subdivision code provision is void as an exercise of power not authorized by the General Assembly, and the definitions of “Subdivision, lot” and “Subdivision, residential parcel” are void as applied to the plaintiff’s preliminary subdivision application for its property located in an agricultural district. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded for further proceedings.

090041 Hollingsworth v. Norfolk Southern Railway Co. 02/25/2010 (Revised 03/01/2010) In an action against a railroad under the Federal Employers’ Liability Act, the circuit court did not err in granting the defendant’s motions in limine to exclude the testimony of two podiatrists because they were not medical doctors and, thus, were not qualified to render expert opinions as to the cause of the plaintiff’s alleged physical injuries. Consequently, the court did not err in granting the defendant’s motion for summary judgment based upon the absence of admissible proof of causation of the injuries alleged. The judgment entered for the defendant is affirmed.

090043 Marble Technologies v. City of Hampton 02/25/2010 In a suit for declaratory and injunctive relief against enforcement of a city zoning ordinance on the grounds that it exceeded city authority in violation of Virginia law and Dillon’s rule, the ordinance, which makes inclusion in the federal Coastal Barrier Resources System a criterion for designating lands to be part of a Resource Protection Area under the Chesapeake Bay Preservation Act, violates the General Assembly’s express mandate that a locality use the criteria developed by the Chesapeake Bay Local Assistance Board to determine the extent of the Chesapeake Bay Preservation Area within its jurisdiction. The zoning provisions challenged in this appeal are void insofar as they include lands in protection areas on the basis of the federal Coastal Barrier Resources Act’s applicability. The judgment of the circuit court is reversed and final judgment is entered in favor of the plaintiff landowners.

090110 C. Porter Vaughan, Inc. v. DiLorenzo 02/25/2010 In an action for real estate brokerage commissions, the trial court erred in sustaining the defendant seller’s demurrer on the grounds that the claim for a breach of an oral agreement was barred by the statute of frauds. A sales contract contained the essential terms of the brokerage agreement, along with other writings, and the trial court erred in sustaining a demurrer to the claim. The judgment is reversed and the case is remanded for trial on the merits.

090143 Sales v. Kecoughtan Housing Co. 02/25/2010 In a tenant’s suit against an apartment owner and its management company for personal injury and property damage resulting from mold in the apartment, the trial court erred in sustaining the defendants’ demurrers to allegations that liability arose from negligent failure to make a repair to eradicate mold after entering the premises for that purpose, and from fraudulent misrepresentations concerning the repair and the habitability of the apartment. The judgment is reversed and the case is remanded.

090193 Rascher v. Friend 02/25/2010 The circuit court erred in striking the plaintiff’s evidence in a personal injury case arising from an accident involving an automobile and bicycle on the ground that the plaintiff was contributorily negligent as a matter of law. The jury could have determined that plaintiff’s conduct was reasonable under the circumstances of the case, and also might have found that the alleged negligence on plaintiff’s part was not a proximate cause of the accident as a matter of law. The judgment is reversed and the case is remanded.

090250 Ligon v. County of Goochland 02/25/2010 (Revised 03/01/2010) In proceedings involving the Virginia Fraud Against Taxpayers Act, Code §§ 8.01-216.1 through –216.19, the doctrine of sovereign immunity bars a retaliatory discharge claim against a county filed under the “whistleblower protection” provision in Code § 8.01-216.8 because the text of the Act fails to explicitly and expressly waive sovereign immunity to permit the filing of retaliatory discharge actions by employees of the Commonwealth or its political subdivisions. The judgment of the circuit court sustaining the county’s amended demurrer is affirmed.

090254 United Leasing Corp. v. The Lehner Family Business Trust 02/25/2010 In a contract action involving an assignment of claims and proof of damages, the defendant failed to preserve an objection made in a motion to strike at the conclusion of the plaintiff’s evidence, when the defendant moved to renew its motion to strike at the conclusion of the trial but failed to state its renewed objection or argument regarding the validity of the assignment with reasonable certainty. The judgment of the circuit court is affirmed.

090283 Cotton Creek Circles v. San Luis Valley Water Co. 02/25/2010 The circuit court did not err in confirming an arbitration award where a broad arbitration provision in a limited liability company operating agreement conferred on the arbitration panel the power to resolve “any dispute” with respect to that agreement, necessarily including authority to settle a dispute over the proper interpretation and application of a non-compete clause in the agreement. Even if the panel erred in its interpretation of the agreement, that error does not provide a basis for vacating the award under to section 10 of the Federal Arbitration Act. The judgment is affirmed.

090303 Scialdone v. Commonwealth 02/25/2010 (Revised 03/01/2010) The Court of Appeals erred in holding that two criminal defense attorneys and their student intern, who were all found in contempt relating to the submission of an allegedly altered document at trial, had failed to preserve the argument that the circuit court deprived them of due process by proceeding with summary contempt. On the merits, because the essential elements of the misconduct were not all actually observed by the trial judge, she erred by failing to afford the defendants a plenary proceeding with the requisite due process rights. The judgment of the Court of Appeals is reversed and the matters are remanded for further proceedings consistent with this opinion.

090313 School Board v. Commonwealth 02/25/2010 In a petition by a school board against the Commonwealth, alleging breach of contractual duty under the Virginia Local Government Risk Management Plan to defend and indemnify the board for educational and legal expenses awarded in administrative proceedings and an ensuing federal civil action to a child’s parents who alleged that the school board failed to provide educational services as required by the Individuals with Disabilities Education Act (“IDEA”), the trial court erred in failing to find coverage for these expenses available to the school board under the Plan. The IDEA proceeding involved a federal civil action, which was a “claim” for compensatory monetary damages under the Plan and was not excluded as an administrative action. The Commonwealth breached its contractual duty to defend under the Plan and is therefore liable for the litigation costs associated with the defense of the parents’ claim in federal court, as well as the costs of prosecuting the contract claim in the Virginia circuit court, this present appeal, and on remand. The judgment is reversed and the case is remanded for entry of judgment in favor of the school board, including the costs associated with the Commonwealth’s breach of its duty to defend.

090328 W&W Partnership v. Prince William County Board of Zoning Appeals 02/25/2010 A zoning administrator’s ruling that a voluntary conveyance of land within the owner’s parcel to the Commonwealth for a road, physically separating the remaining portions of that parcel, did not effect a legal separation of such parcel into two lots, affirmed by the local board of zoning appeals and then the circuit court, was correct. Legal separation of property required that the owner, at minimum, duly record a change in the legal description of the retained property either by metes and bounds or by plat. The judgment is affirmed.

090979 Jones, Russell v. Commonwealth 02/25/2010 In review of a suppression ruling turning on whether off-duty law enforcement officers, privately employed by an apartment complex to protect against trespassers, unlawfully seized a defendant in violation of the Fourth Amendment when they requested that he accompany them to the rental office to issue a notice barring him from the property, the defendant has not carried his burden of showing that the circuit court’s findings of fact – that he consented to go to a rental office for a brief time, without force or coercion – were plainly wrong or unsupported by the evidence, or that the circuit court committed reversible error. No error in the application of the law by the circuit court or by the Court of Appeals is found, and the judgment is affirmed.

091015 Fullwood v. Commonwealth 02/25/2010 In a prosecution for drug violations within 1,000 feet of school property, the circuit court did not err in finding that the violations in question occurred on property open to public use under Code § l8.2-255.2 and that court did not exceed its legislative authorization in sentencing the defendant to multiple punishments. The judgment of the Court of Appeals upholding the convictions is affirmed.

091119 Lawrence v. Commonwealth 02/25/2010 In a proceeding under the Civil Commitment of Sexually Violent Predators Act, the circuit court erred in admitting expert testimony during direct examination regarding unsubstantiated hearsay details of unadjudicated allegations of sexual misconduct that an expert for the Commonwealth learned from police reports. In addition, the expert testimony did not have an adequate factual foundation to the extent that it was dependent upon assumption of the truth of the hearsay allegations concerning the respondent’s past sexual misconduct not based upon evidence presented at trial. Expert opinions dependent upon the truth of hearsay allegations unsupported by evidence properly presented at trial were speculative and unreliable as a matter of law and should not have been admitted into evidence. The judgment is reversed and the case is remanded.

091120 Ghameshlouy v. Commonwealth 02/25/2010 Defendant’s notice of appeal after conviction under a city code provision making it a misdemeanor to provide false identifying information to police was sufficient to give the Court of Appeals jurisdiction over this specific case. The notice of appeal identified the conviction sought to be appealed by its docket number, the specific circuit court, and the date. The notice stated that defendant was convicted of failing to provide identification to a police officer, a violation of the city’s municipal code. This notice was sufficient on its face to identify the conviction being appealed, without reference to any other document in the record, and the Court of Appeals obtained jurisdiction over the case. The defect in the notice of appeal in not naming the city as the proper appellee, which otherwise would have justified dismissal of the appeal, was potentially subject to waiver, which clearly occurred by the subsequent actions of the city during the appeal process. Accordingly, the Court of Appeals erred in dismissing the appeal on the ground that it did not have jurisdiction over the case or the proper appellee.

091177 Harris v. Commonwealth 02/25/2010 A defendant had a liberty interest arising from participation in a drug treatment court program as part of a plea agreement, and the fact that he had no opportunity to participate in the decision to terminate his participation in that program, considered along with the circuit court’s subsequent refusal to consider evidence about the reasons for that action, made the imposition of sentence in accord with the plea agreement error. The judgment of the Court of Appeals is reversed, the conviction and sentencing order are vacated, and the case is remanded for further proceedings consistent with this opinion.

091299 Roberson v. Commonwealth 02/25/2010 In an attempted appeal after defendant was convicted for driving under the influence of alcohol pursuant to a local ordinance, the appeal was procedurally barred because the notice of appeal failed to name the locality, an indispensable party, as the appellee. The appellant’s contention that the conviction was obtained under a state statute and, thus, the notice of appeal properly named the Commonwealth as the appellee, is rejected. The rationale of the Court of Appeals is not accepted, but the conclusion of that Court that it did not have jurisdiction over the appeal is upheld. The judgment dismissing the appeal is affirmed.

091376 Weatherbee v. Virginia State Bar 02/25/2010 In a Bar discipline proceeding that led to a public reprimand, the record demonstrates by clear and convincing evidence that the attorney filed a medical malpractice lawsuit against a physician with no basis in law or fact, and the three-judge circuit court did not err when it concluded that the lawsuit was frivolous within the meaning of Rule 3.1 of the Virginia Rules of Professional Conduct. However, it cannot be said that the circuit court’s finding that the attorney did not violate the provisions of Rule 1.1 concerning attorney competence was not justified by the evidence or contrary to law. The judgment is affirmed.

080760 Teleguz v. Commonwealth (ORDER) 01/15/2010 (Revised 01/22/2010) Upon consideration of a petition for a writ of habeas corpus, respondent’s motion to dismiss the petition is granted. Petitioner’s various claims alleging ineffective assistance of counsel are rejected as not satisfying the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and his remaining claims are rejected as lacking merit or as being either procedurally barred or improperly raised.

082475 Antisdel v. Ashby 01/15/2010 The circuit court did not err in holding that the administrator of an estate appointed solely for the purpose of bringing a wrongful death action under Code § 8.01-50 lacked standing to assert survival claims on behalf of the estate. The judgment is affirmed.

082607 Shapiro v. Younkin 01/15/2010 In an appeal to circuit court from a general district court proceeding in a landlord-tenant dispute, the trial judge erred in dismissing the plaintiff’s appeal with prejudice based on his failure to obtain the services of a court reporter in contravention of the circuit court’s general directive that a court reporter be present at the trial of all civil cases. The judgment is reversed and the case is remanded for trial on the merits.

090010 Virginia Home for Boys and Girls v. Phillips 01/15/2010 (Revised 01/22/2010) In a suit seeking imposition of a trust upon the assets of a decedent, arising from her alleged failure to honor a promise to devise real estate to the plaintiff in exchange for services performed, the record contains no evidence independent of the plaintiff’s testimony corroborating the existence or the terms of the parol agreement on which he relies, as required under the Dead Man’s Statute, Code § 8.01-397. As a result, the claim is barred by the Statute of Frauds, Code § 11-2(6), and the circuit court erred in granting specific performance of the alleged parol agreement. The judgment is reversed and final judgment entered on this appeal for the devisee of the property under the decedent’s will.

090069 Hamilton v. Commonwealth 01/15/2010 In a prosecution for three misdemeanor counts of assault and battery by a mob in violation of Code § 18.2-42 and one felony count of participating in a criminal street gang in violation of Code § 18.2-46.2, the evidence was sufficient to sustain these convictions. Because defendant was a part of the mob that attacked the victims, he is “criminally culpable” even though he may not have actively encouraged, aided, or countenanced the assaults. The judgment of the Court of Appeals upholding the convictions is affirmed.

090161 Brown, Dwayne v. Commonwealth 01/15/2010 (Revised 01/22/2010) In two appeals involving multiple armed robbery and firearms convictions of two teenaged cousins, the Commonwealth failed to preserve a sentencing issue for appellate review in one of the appeals as required by Rule 5A:18. In that case the judgment of the Court of Appeals is reversed and the sentence imposed by the circuit court is reinstated. In the other appeal, the Court of Appeals correctly held that the circuit court erred when it sentenced the defendant to a juvenile disposition under Code § 16.1-272 instead of imposing the mandatory minimum sentences required by Code § 18.2-53.1. The judgment as to that defendant is affirmed, and the case is remanded for resentencing. (Consolidated with #090201, Brown, Demetrious v. Commonwealth)

090175 Whitaker v. Commonwealth 01/15/2010 (Revised 01/22/2010) In a prosecution for possession of a firearm while in possession of a controlled substance, possession with intent to distribute marijuana, possession of a firearm after having been convicted of a felony, and carrying a concealed weapon, the circuit court did not err in denying a defense motion to suppress the evidence seized in connection with the defendant’s apprehension. The judgment of the Court of Appeals upholding the convictions is affirmed.

090194 Roberts v. CSX Transportation, Inc. 01/15/2010 In a personal injury action brought against a railroad under the Federal Employers’ Liability Act, the circuit court erred in failing to strike for cause a potential juror who was a long time stockholder of the defendant railroad, thereby forcing the plaintiff to use a peremptory challenge to remove that juror from the jury panel. While federal substantive law governs the determination of rights and obligations in a FELA action, Virginia law governs the disposition of this error affecting a party’s rights in jury selection of this action in Virginia circuit court. The judgment is reversed and the case is remanded for a new trial.

090265 Jones, Aubrey v. Commonwealth 01/15/2010 In a prosecution for burglary while armed with a deadly weapon, conspiracy to commit burglary, and wearing body armor while committing a crime of violence, in violation of Code §§ 18.2-91, 18.2-22 and 18.2-287.2, there is sufficient evidence in the record to support the convictions and the judgment of the Court of Appeals upholding the convictions is affirmed.

090339 Barnes v. Commonwealth 01/15/2010 In an appeal raising suppression of evidence issues, the search warrant affidavit in the case was constitutionally permissible and did not contravene the principles established in Franks v. Delaware, 438 U.S. 154 (1978). It clearly established probable cause based upon information from several witnesses, sufficient to cause a person of reasonable caution to believe that the defendant had committed the crimes. Thus, the issuing magistrate had a substantial basis for concluding that probable cause existed. On the merits, there was sufficient evidence to demonstrate beyond a reasonable doubt that the Commonwealth introduced sufficient evidence to support the convictions for malicious wounding and use or display of a firearm while committing aggravated malicious wounding. The judgment is affirmed.

090510 Murillo-Rodriguez v. Commonwealth 01/15/2010 The Court of Appeals did not err in refusing a petition for appeal of a conviction for abduction with intent to defile, in a case where the defendant moved to strike the evidence at the close of the prosecution’s case and then elected to present defense evidence including his own testimony, but failed to renew his objection to the sufficiency of the evidence thereafter. The offering of defense evidence changed the issue by requiring consideration of all of the evidence in the record, and the defendant waived his challenge to the sufficiency of the evidence on the abduction charge by failing to present that issue. Code § 8.01-384(A) does not operate to preserve for appeal an issue that the party never allowed the trial court to rule upon, and a motion to strike the evidence presented after the Commonwealth’s case-in-chief is a separate and distinct motion from a motion to strike all the evidence, or a motion to set aside an unfavorable verdict, made after the defendant has elected to introduce evidence on his own behalf. Accordingly, the judgment of the Court of Appeals is affirmed.

090518 Thomas v. Commonwealth 01/15/2010 (Revised 01/22/2010) In a first-degree murder and firearms prosecution for shooting and bludgeoning the victim to death, no reversible error is found in the trial court’s rulings concerning appointment of a private investigator for the defense, pretrial disclosure of criminal record information for prosecution witnesses, voir dire questions, excuse of jurors for cause, sufficiency of the evidence for conviction as a principal in the second degree, jury instructions on accessory-after-the-fact status, malice and other issues, and evidentiary matters including statements of co-perpetrators. The judgment of the Court of Appeals upholding the convictions is affirmed.

090537 Avent v. Commonwealth 01/15/2010 In a first-degree murder and firearms prosecution for shooting and bludgeoning the victim to death, no reversible error is found in the trial court’s rulings before, during or after trial, including its disposition of issues regarding use of the defendant’s confession, alleged racial discrimination in jury selection, self-defense proof concerning justifiable and excusable homicide, voluntary intoxication of the defendant at the time of the offenses, jury instructions regarding these issues, new trial motions, after-discovered evidence, and proof of premeditation. The judgment of the Court of Appeals upholding the convictions is affirmed.

090557 Commonwealth v. Brown, Tavares 01/15/2010 In the appeal challenging suppression motion rulings, the Court of Appeals can only consider issues properly brought before it by the litigants, and while it broadly rephrased the question presented, an argument concerning probable cause to arrest was neither contained in the question presented nor briefed in the petition for appeal, or in any briefs filed by either party. Even though defendant raised the probable cause argument before the circuit court, the Court of Appeals cannot resurrect arguments abandoned on appeal. Neither party asserted a probable cause to arrest argument before the Court of Appeals, and thus that Court erred by considering that issue and by reversing the circuit court based on a lack of probable cause to arrest the defendant. The judgment is reversed and the case is remanded for entry of an order affirming the judgment of the circuit court.

090655 Harris v. Commonwealth 01/15/2010 In a proceeding under the Civil Commitment of Sexually Violent Predators Act, in which the Commonwealth moved for leave to amend its petition to identify the sexually violent offense for which the respondent was then serving an active sentence of incarceration to serve as the predicate offense under the Act, it cannot be said that the circuit court abused its discretion in allowing the amendment. The respondent made no showing of gross neglect or willful misconduct in regard to his inclusion in the database of prisoners incarcerated for a sexually violent offense, and the trial court thus did not err in denying his motion to dismiss the proceedings. The judgment is affirmed.

090706 Logan v. Commonwealth 01/15/2010 In accord with prior case law, the exclusionary rule is not applicable in probation revocation proceedings absent a showing of bad faith on the part of the police. The judgment of the Court of Appeals, which upheld the probation revocation order in the present case, is affirmed, but its opinion in this case is overruled to the extent that it suggests that prior case law has been to any extent changed.

090727 Jones, Ronald v. Commonwealth 01/15/2010 In determining whether a police officer had probable cause to arrest a defendant for driving under the influence of alcohol, a court may consider the driver’s refusal to perform field sobriety tests when such refusal is accompanied by evidence of the driver’s alcohol consumption and its discernable effect on his mental or physical state. However, the fact of such refusal is not evidence of a defendant’s consciousness of guilt, and the Court of Appeals erred in holding otherwise. In this case, the totality of facts and circumstances concerning the defendant’s physical and mental state rendered his refusal to perform field sobriety tests circumstantial evidence tending to show an awareness that his consumption of alcohol would affect his ability to perform those tests. The record supports the circuit court’s determination that the officer had probable cause to arrest the defendant for driving under the influence of alcohol. The judgment of the Court of Appeals affirming the judgment of the circuit court is vacated in part and affirmed in part.

090738 Anderson v. Commonwealth 01/15/2010 The “public safety” exception to the Miranda rule was applicable to permit evidential use of a defendant’s response when an arresting officer asked defendant whether a gun he had thrown five or six feet away was loaded. Since the “public safety” exception applied to the response, other statements given by defendant after Miranda warnings were administered were not tainted. The Court of Appeals did not err in upholding the circuit court’s denial of the defendant’s motion to suppress any of his statements to the police, and the judgment upholding his firearms possession conviction is affirmed.

090856 Vaughn v. Commonwealth (ORDER) 01/15/2010 In an appeal from a conviction for grand larceny in violation of Code § 18.2-95 in which defendant argues that the Court of Appeals erred by upholding the circuit court’s denial of his motion to suppress evidence seized during a warrantless search of the curtilage of his dwelling, the issue of whether the law enforcement officer conducting the search lawfully entered defendant’s backyard under the implied consent doctrine was procedurally defaulted under Rule 5A:18 and should not have been addressed. The judgment of the Court of Appeals is affirmed but that portion of its opinion addressing the implied consent doctrine and deciding whether the officer lawfully entered defendant’s backyard is vacated.

090863 Burns, William Joseph v. Commonwealth 01/15/2010 (Revised 01/22/2010) Because a proceeding remanded pursuant to Code § 8.01-654.2 for determination of a claim of mental retardation by a person sentenced to death for a capital offense was criminal in nature, the circuit court erred in granting summary judgment to the Commonwealth and in ruling that the defendant’s competence was irrelevant, refusing to adjudicate his competence. The circuit court’s judgment is reversed and the case is remanded for further proceedings consistent with this opinion. See Record No. 020971, Burns v. Warden Order dated March 11, 2005

081632 Hutchins v. Talbert 11/05/2009 In a medical malpractice action, an order denying a motion to set aside the verdict was not a final judgment for purposes of the deadline for filing a notice of appeal in a case in which the trial judge has rendered final judgment in a separate, previously entered order, which is not vacated, suspended, or modified by the order ruling upon the motion to set aside the verdict. Because the notice of appeal filed in this case was untimely, and the time prescribed for filing the notice of appeal is mandatory, the appeal is dismissed.

081715 Baker v. Commonwealth 11/05/2009 In a trespass prosecution, proof of the existence of two “no trespassing” signs on the property alone was insufficient to satisfy the elements of trespass set forth in Code § 18.2-119. Without evidence that a “no trespassing” sign was posted by one of the enumerated persons authorized by the statute to prohibit entry upon the property, the Commonwealth failed to put on sufficient evidence of the defendant’s guilt. The judgment of the Court of Appeals is reversed, the conviction under Code § 18.2-119 is vacated and the indictment is dismissed.

081718 Kellermann v. McDonough 11/05/2009 In a wrongful death action involving a minor decedent who was staying overnight in the home of her friend, in the care of that friend’s parents, but was killed after being allowed to ride in a vehicle driven by another minor against the decedent’s father’s express instructions, the trial court erred in sustaining a demurrer as to both defendants on plaintiff’s common law duty of supervision and care claim and as to the defendant mother on plaintiff’s claim of assumption of duty, since the averments adequately alleged that she undertook to protect the decedent from inexperienced and/or young male drivers. However, the trial court did not err in sustaining the demurrer as to the defendant father on the assumption of duty claim. Further, a special relationship did not exist giving rise to a duty upon the defendants to protect the decedent from the acts of third persons, and the demurrer was properly sustained against that claim. Finally, a jury could find that the acts of the minor driver did not constitute a superseding cause of the decedent’s death. The judgment is affirmed in part and reversed in part, and the case is remanded for a trial on plaintiff’s claims of assumption of a duty against the defendant mother and breach of a common law tort duty of supervision and care against both defendants. See Rehearing granted – opinion #081718 dated July 17, 2009 withdrawn

081837 Hash v. Director 11/05/2009 In a habeas corpus proceeding, considering the totality of the evidence, petitioner failed to show that, but for his counsels’ alleged error in failing to investigate a fellow inmate’s federal file and use correspondence therein to further impeach his testimony implicating petitioner, the trial would have had a different result. Because this witness’ motivation in testifying had already been clearly demonstrated, the failure to further impeach the witness did not constitute a breakdown in the adversary process rendering petitioner’s conviction unreliable. Further, petitioner’s failure to establish that the witness’ testimony was false is fatal to his claim of prosecutorial misconduct. Accordingly, the circuit court did not err in denying petitioner a writ of habeas corpus, and that judgment is affirmed.

081920 Waller v. Commonwealth 11/05/2009 (Revised 11/06/2009) In a prosecution for possession of firearms after having been convicted of a felony in which six prior conviction orders not bearing a judicial signature were admitted into evidence, the provisions of Code § 8.01-389(A), which governs admission of records of all judicial proceedings except orders of circuit courts, did not authorize receipt of the orders. Code § 17.1-123(A) sets forth particular authentication requirements for judgment orders, and the six orders in question were admitted in error. Defendant’s conviction for possessing a firearm after having been convicted of a violent felony is reversed. However, the evidence was sufficient to convict the defendant of the lesser offense of possessing a firearm after having been convicted of a non-violent felony. The judgment of the Court of Appeals is reversed and the case is remanded for a new sentencing hearing on the lesser offense of possessing a firearm after having been convicted of a non-violent felony.

082023 Harbour v. SunTrust Bank 11/05/2009 In ruling upon an action by a bank serving as trustee under a decedent’s trust, seeking aid and guidance in the interpretation of the trust agreement and in the distribution of the trust proceeds, the circuit court erred in holding that the interests of two of the trust grantor’s siblings lapsed in favor of a church. The judgment is reversed and the suit is remanded for entry of an order distributing the remainder interests of the parties in accordance with the holding expressed in this opinion.

082122 Turner v. Commonwealth 11/05/2009 Admission at a probation revocation proceeding of hearsay evidence concerning polygraph test results was error by the trial court. Polygraph test results fall far short of the “demonstrably reliable” hearsay evidence that may be received in such proceedings. The judgment appealed from is reversed and the case is remanded to the Court of Appeals with direction to remand the matter to the circuit court for resentencing consistent with this opinion.

082143 Dowdy v. Commonwealth 11/05/2009 In a prosecution for rape and first-degree murder, the Court of Appeals erred in finding that the defendant failed to preserve certain issues for appellate review, but correctly rejected his ineffective assistance of counsel claim on this direct appeal. The requirement under prior case law that a defendant demonstrate that denial of a request for appointed expert assistance will result in prejudice is upheld. Considering defendant’s failure to show particularized need, the trial court did not abuse its discretion in refusing to provide him with additional investigative services. The judgment upholding defendant’s convictions is affirmed.

082228 Smallwood v. Commonwealth 11/05/2009 In a prosecution for possession of a firearm after having been convicted of a felony in violation of Code § 18.2-308.2, the Commonwealth presented sufficient evidence to support conviction based on joint constructive possession of a handgun resting on a console between two front seats of a vehicle the defendant was driving. The judgment of the Court of Appeals upholding the conviction is affirmed.

082270 Singleton v. Commonwealth 11/05/2009 In two separate convictions of attorneys for criminal contempt of court, the evidence was insufficient to establish that either attorney intended to obstruct or interrupt the administration of justice within the intendment of Code § 18.2-456(1). In the absence of such intent, those convictions cannot be upheld. The judgments of the Court of Appeals sustaining the convictions in each case are reversed and the convictions are vacated.

082440 Commonwealth v. Squire 11/05/2009 In a petition by the Commonwealth under the Civil Commitment of Sexually Violent Predators Act, Code §§ 37.2-900 through –920, the trial court considered the Commonwealth’s expert opinions as well as the respondent’s life chronology which included no incidents of a sexual nature for almost 10 years, a fact suggesting that his actions were not consistent with the statistical predictors of re-offending and stood in contrast to the experts’ opinions on the likelihood of his committing future violent sexual acts. The trial court’s conclusion that the Commonwealth did not provide clear and convincing evidence that respondent is likely to commit sexually violent acts was not plainly wrong or without evidence to support it. The judgment for the respondent is affirmed

082477 Williams, Dekota v. Commonwealth 11/05/2009 In a robbery prosecution, there was sufficient evidence to convict the defendant where the evidence showed that the crime began as a larceny and subsequently matured into a robbery of the victim. The judgment of the Court of Appeals upholding the conviction is affirmed.

082547 Grattan v. Commonwealth 11/05/2009 In a prosecution on 16 indictments for murder, aggravated malicious wounding, multiple counts of attempted capital murder of a law enforcement officer, and related firearms offenses, the circuit court considered expert opinion, lay testimony, and its own observations of the defendant in finding that the defendant was competent to stand trial. This finding was not plainly wrong or without evidence to support it. The circuit court also did not abuse its discretion by barring the defendant’s introduction of expert testimony at trial on the issue of his sanity at the time of the offenses, based on his failure to cooperate in allowing mental examinations by the Commonwealth’s experts. The judgment of the Court of Appeals is affirmed.

082566 Carroll v. Johnson 11/05/2009 Code § 8.01-654 extends the availability of the writ of habeas corpus to prisoners who claim they are “detained without lawful authority,” and does not limit the availability of the writ to situations in which a ruling in the petitioner’s favor will result in his or her immediate release. The statute allows a petitioner to challenge the lawfulness of the entire duration of his or her detention so long as an order entered in the petitioner’s favor will result in a court order that, on its face and standing alone, will directly impact the duration of the petitioner’s confinement. Therefore, the circuit court erred in holding that it did not have habeas corpus jurisdiction to entertain such a claim. On the merits, however, petitioner is not entitled to credit toward his Virginia sentence as a matter of law for time spent as a New Jersey prisoner in temporary custody in Virginia awaiting trial, and the circuit court did not err in denying this petition for a writ of habeas corpus and denying an evidentiary hearing.

090013 Brown, Douglas v. Commonwealth 11/05/2009 In a prosecution for involuntary manslaughter, the evidence was sufficient to establish that the defendant was a proximate cause of the death of a driver whose car was struck by a police cruiser during a high-speed chase to apprehend the defendant. Because the police officer’s actions did not break the chain of proximate causation between the defendant’s criminally negligent conduct and the victim’s death, the Court of Appeals did not err in concluding that the evidence supports the conviction. The judgment is affirmed.

090249 Piedmont Environmental Council v. VEPCO 11/05/2009 In consolidated appeals of right from an order of the State Corporation Commission granting, subject to certain conditions, the applications of two electric utilities for the construction and operation of Virginia segments of a proposed interstate electric transmission line to be operated by a regional transmission entity that is subject to federal regulation, the record manifestly demonstrates that the Commission conducted its review of the applications in accord with the requirements of Code §§ 56-46.1 and 56-265.2, and that the Commission’s decision to grant the applications is supported by the evidence. The Commission’s order, as conditioned, is affirmed. (Consolidated with Record Nos. 090253, 090258, 090278 and 090284)

090308 Wright v. Commonwealth 11/05/2009 In a prosecution under Code § 18.2-308.4(C) for possession of a firearm while possessing a controlled substance with the intent to distribute, proof of actual, simultaneous possession of the firearm and controlled substance was not required, and a conviction can be sustained by proving constructive possession of the firearm and drugs. Further, no nexus between the possession of the firearm and the illegal activity is required under the statute. The judgment of the Court of Appeals upholding the convictions based on sufficiency of the evidence for the convictions is affirmed.

090337 Montague v. Commonwealth 11/05/2009 In a drug and firearms prosecution, the evidence was sufficient to support the decision of the circuit court denying a motion to suppress narcotics and a handgun found on the person of the defendant during an encounter with police that was consensual, and that defendant was not seized until the police attempted to take him into custody upon learning of his outstanding arrest warrants. The evidence supported the circuit court’s conclusion that a reasonable person in defendant’s position would not have thought that he was required to remain in the police officers’ presence after providing them with the requested information regarding his identity. The evidence was also sufficient to show that defendant acted with the intent to inflict physical harm upon one of the arresting officers and to impede the officers’ ability to subdue him, when he struck one of the arresting officers in the chest with his elbow while being taken into custody. Thus the Court of Appeals did not err in concluding that the evidence was sufficient to convict defendant of the crime of assault and battery of a law enforcement officer under Code § 18.2-57(C). The judgment of the Court of Appeals upholding the convictions is affirmed.

090483 Williams, Michael v. Warden 11/05/2009 In a habeas corpus petition asserting entitlement to relief based on defense counsel’s failure to properly appeal the petitioner’s case from the Court of Appeals to the Supreme Court of Virginia, he is required to demonstrate that there is a reasonable probability that, but for his counsel’s failure, the result of the proceeding would have been different. Since a review of the evidence shows that the investigating police officer had reasonable articulable suspicion to stop the vehicle in which petitioner had been riding as a passenger, and that such suspicion ripened into probable cause to arrest petitioner and search his person and the vehicle incident to that arrest, even if his counsel had properly appealed the issue of the validity of the traffic stop, the result of the appeal would have been the same. Accordingly, petitioner has not borne his burden of demonstrating prejudice under the requirements of Strickland v. Washington, 466 U.S. 668 (1984), and the petition is denied.

090845 Judicial Inquiry & Review Comm’n v. Taylor 11/05/2009 In a complaint filed by the Judicial Inquiry and Review Commission against a juvenile and domestic relations district court judge pursuant to Article VI, § 10 of the Constitution of Virginia and Code § 17.1-902, the judge’s actions in thwarting an appeal of the denial of bond for a juvenile detainee, and of his appeal of the judge’s ruling, violated the law and public confidence in the integrity and impartiality of the judiciary was diminished. The judge violated Canons 1, 2A, and 3B(2) and these violations constituted conduct prejudicial to the administration of justice. The judge is censured.

081294 VEPCO v. Norfolk Southern Ry. Co. 09/18/2009 (Revised 09/22/2009) In a contract dispute between a railroad and two utility companies over periodic cost adjustments to rates charged by the railroad for transportation of coal to an electricity generating facility, the circuit court correctly determined that the contract was unambiguous in specifying the applicable cost adjustment factor, did not err in striking certain affirmative defenses raised by the utilities to the railroad’s claim for breach of the contract, and did not err in denying the utilities’ motion to file an amended complaint. Although the circuit court did not abuse its discretion in concluding that certain pre-and post-judgment interest rates applied and that the railroad was entitled to an award of pre- and post-judgment interest, it did err in determining the basis for calculating the underlying damages to which the railroad is entitled. The judgment is affirmed in part and reversed in part and the case is remanded for further proceedings.

081672 Rawls v. Commonwealth 09/18/2009 A criminal defendant who is sentenced in excess of a prescribed statutory range of punishment is entitled to a new sentencing hearing. This rule eliminates the need for courts to resort to speculation in determining how a jury would have sentenced a criminal defendant had the jury been properly instructed as to the available range of punishment or had the jury properly followed correct instructions in that regard. Thus, a defendant who was sentenced to a punishment in excess of the statutorily prescribed maximum for second degree murder as a result of incorrect jury instructions is entitled to a new sentencing hearing on that conviction and the circuit court erred by reducing his sentence to the then maximum available sentence of 20 years imprisonment. The judgment is affirmed in part and reversed in part, and the matter is remanded for a new sentencing hearing regarding the defendant’s conviction for second degree murder.

081691 Commonwealth v. Doe 09/18/2009 A court order entered under Code § 18.2-370.5 granting a stepfather who is a convicted violent sex offender permission to enter public school property under certain specified conditions violates Article VIII, Section 7 of the Constitution of Virginia, which vests in school boards the supervisory authority over public schools. Code § 18.2-370.5 authorizes a circuit court to lift the statutory ban imposed by Code § 18.2-370.5(A), but allows the affected private entity or public school board to determine whether and under what circumstances an offender may enter onto school property. The judgment of the circuit court is reversed and the case is remanded for further proceedings.

081720 Commonwealth v. Anderson 09/18/2009 (Revised 09/22/2009) In a prosecution that included charges of robbery and use of a firearm in the commission of robbery, the Court of Appeals did not err in finding that the Commonwealth had not proven intimidation of the robbery victim. Even viewing the evidence in the light most favorable to the Commonwealth, the prevailing party in the circuit court, the evidence was insufficient to establish that the alleged individual victim was intimidated or to support the circuit court’s judgment convicting the defendant of robbery and use of a firearm in the commission of robbery. Accordingly, the judgment of the Court of Appeals is affirmed.

081741 Dunn Construction Co. v. Cloney 09/18/2009 In an action for breach of contract between a building contractor and a property owner involving the partial construction of a new house, the builder’s failure to construct a foundation wall “in a workmanlike manner according to standard practices” and his false representations that he had made adequate repairs to that wall to bring it into compliance with applicable building code requirements related to a duty arising under the construction contract rather than a common law duty. As a result, the circuit court erred in determining that there was sufficient evidence to permit the jury to find that the builder had committed an act of fraud independent of the contractual relationship such that the property owner could maintain an action both for breach of contract and for fraud, and erred in confirming the jury’s award of punitive damages for fraud in favor of the property owner. The judgment is reversed in part and final judgment is entered for the property owner limited to an award of compensatory damages with interest.

081800 Howell v. Sobhan 09/18/2009 In a medical malpractice action, the trial court erred in sustaining the defendants’ motion to strike the evidence on the grounds of failure to present sufficient evidence of proximate causation to take her case to a jury. The judgment is reversed and the case is remanded for a new trial.

082079 Burdette v. Brush Mountain Estates 09/18/2009 Code § 55-2, requiring that estates in land be conveyed by a deed or will, does not apply to the conveyance of an easement because an easement is not an estate in land. Nevertheless, the trial court erred in concluding that language appearing on a plat incorporated for descriptive purposes in deeds evidencing the conveyance of the servient estate was sufficient to convey an easement benefiting a third party, where neither the deeds nor the plat contained operative words of conveyance sufficient to demonstrate the manifest intention to grant an easement. The judgment of the circuit court is reversed and the case is remanded for the entry of an order to be recorded in the appropriate local land records.

082280 Keener v. Keener 09/18/2009 The same principles that are applied to a forfeiture or “no-contest” clause in a will apply with equal force to such provisions appearing in a trust that constitutes a part of a decedent’s testamentary estate plan. However, these provisions are strictly construed; thus, a daughter’s acts in opening intestate administration of her father’s estate did not trigger the “no-contest” provisions of the trust at issue. The circuit court’s judgment is reversed and the case is remanded for further proceedings.

082292 Graham v. Cook 09/18/2009 (Revised 09/29/2006) In a medical malpractice action, no reversible error is found in the rulings of the circuit court at trial permitting the defendants to present certain evidence from the plaintiff’s treating physicians, precluding certain cross-examination of a treating physician by the plaintiff, and limiting the plaintiff’s closing argument regarding x-rays that were admitted into evidence.

082345 City of Suffolk v. Lummis Gin Co. 09/18/2009 A proceeding brought by a city under Code §§ 58.1-3965 et seq. seeking to sell a parcel of land located within its boundaries in order to satisfy delinquent real estate tax liens, was not the same cause of action the city filed in 1995, and thus a nonsuit granted in the prior action did not operate to extinguish the city’s right to take a first nonsuit in the present action. The circuit court erred in determining that the city had been granted a second nonsuit, and it had no authority to award costs and attorneys’ fees against the city for the exercise of its absolute right to a first nonsuit. The nonsuit order in this case was a final order under Rule 1:1 and, therefore, the circuit court had no jurisdiction to award attorney fees and costs 21 days after its entry. The order awarding attorney fees and costs is reversed and final judgment is entered here in favor of the city.

082387 de Benveniste v. Aaron Christensen Family, LP 09/18/2009 In a suit for allotment, partition, or sale of property jointly held by four siblings and their families, the trial court did not abuse its discretion in requiring a cotenant to share subdivision development expenses that resulted in an increase in the value of real property upon sale, even though the investment did not result in “permanent” physical improvements to the property. Nor was it an abuse of discretion for the trial court to rule that such an award, if otherwise permissible, should not be barred by the doctrine of unclean hands under the circumstances presented. The judgment is affirmed.

082416 Anderson v. Delore 09/18/2009 In a dispute alleging that, by placing a dock, rip rap, and beach area within the “extended lot lines” of an adjacent lot, a neighbor encroached upon an express easement granted to the landowners to secure access to a lake and violated certain zoning ordinance provisions, the circuit court did not err in refusing to issue an injunction requiring removal of these improvements where the landowners failed to prove that their easement included the land on which the neighbor allegedly encroached. The circuit court also did not err in refusing to grant relief based upon the alleged zoning ordinance violations, as the ordinance provisions did not create a private right of action. The judgment is affirmed.

082458 Whitehead, Travis Stacey v. Commonwealth 09/18/2009 A positive alert on a vehicle by a trained narcotics detection dog, combined with the subsequent fruitless searches of the vehicle, the driver, and two passengers, did not provide sufficient particularized probable cause to allow a search of the only remaining passenger in the vehicle. Thus, the judgment of the Court of Appeals holding that the search at issue did not violate the Fourth Amendment is reversed. In addition, because the evidence seized as a result of the search should have been suppressed, there would be insufficient evidence to sustain a conviction on retrial. Defendant’s conviction is therefore vacated and the indictment is dismissed.

082464 Prieto v. Commonwealth 09/18/2009 (Revised 11/09/2009) In proceedings leading to two capital murder convictions and two death sentences along with convictions for rape, grand larceny and felonious use of a firearm, the verdict forms utilized by the jury were defective because they lacked an option for the jury to sentence defendant to life imprisonment, with or without a fine, even if one or both death sentence aggravating factors were found, and the forms did not require a unanimous finding as to which of the aggravating factors were proven beyond a reasonable doubt. The capital murder convictions are affirmed, but the death sentences are reversed and the case is remanded for a new penalty proceeding on those convictions. The defendant’s other convictions and sentences are affirmed. Other issues addressed include whether defendant was entitled to a directed verdict of life imprisonment, whether the trial court erred in declaring a mistrial in a prior trial based upon juror misconduct, the circuit court’s authorization of a retrial, denial of a separate proceeding regarding mental retardation, lost evidence, and the sufficiency of the evidence to prove defendant was the immediate perpetrator and thus eligible for the death penalty. see Record No. 110632, Prieto v. Commonwealth, Jan. 13, 2012

090186 Morva v. Commonwealth 09/18/2009 In a prosecution for three counts of capital murder, assault upon a law enforcement officer, escape, and two counts of use of a firearm in the commission of murder, no reversible error is found in the judgment of conviction in the circuit court or in the sentence of death, and no reason is found to set aside that sentence. Issues concerning the retention and exclusion of jurors, jury instruction language concerning a permissive inference, the appointment of a prison risk assessment expert and the introduction of prison life evidence as it relates to a defendant’s future dangerousness are also addressed. The judgment of the circuit court is affirmed.

081718 Kellermann v. McDonough (A Rehearing was Granted on the Opinion dated July 17, 2009 ) 07/17/2009 (Revised 09/16/2009) The July 17, 2009 Opinion was Withdrawn by Order dated September 16, 2009. See Record #081718, Kellermann v. McDonough, dated November 5, 2009

080282 In Re: Commonwealth of Virginia 06/04/2009 Mandamus cannot be used to collaterally attack or vacate a final judgment entered upon the conclusion of a criminal proceeding, and prohibition cannot be used to vacate or “undo” that final judgment because that writ does not lie to undo acts already done. Thus, the Commonwealth’s petition for a writ of mandamus seeking to compel a circuit court to vacate a final judgment in a capital murder proceeding setting aside a death sentence and imposing a term of life imprisonment pursuant to Code § 19.2-264.5, based on evidence of a Brady violation, is dismissed along with the Commonwealth’s petition for a writ of prohibition seeking to vacate that final judgment.

080599 Bell v. Saunders 06/04/2009 The trial court erred in sustaining a demurrer as to one plaintiff in a declaratory judgment proceeding for interpretation of the wills of two decedents, since that plaintiff averred that the executor/trustee was denying her income from one-half of a trust estate to which she was entitled, thus pleading a justiciable controversy with specific adverse claims based on present facts that are ripe for adjudication pursuant to Code § 8.01-184. Because the executor/trustee did not assign cross-error to the failure of the trial court to rule on another ground of his demurrer, consideration of that ground is precluded on appeal. A demurrer was properly sustained as to the claims of the other plaintiff, who had alleged that the same lawyer had been named in the will of another decedent but was not properly qualified, but failed to plead the existence of an actual controversy involving an antagonistic assertion and denial of right between himself and the executor.

080751 Williams v. Joynes 06/04/2009 In a legal malpractice action alleging failure timely to file a Virginia personal injury action, the circuit court erred in granting summary judgment for the defendant attorneys based on the view that the plaintiff’s failure to file a similar action in a foreign jurisdiction with a longer statute of limitations was a superseding event, which severed the link of proximate causation between the defendants’ negligence and plaintiff’s loss of his personal injury claim. Since the attorneys’ conduct set in motion the need for plaintiff to consider filing a lawsuit elsewhere, as a matter of law the argument that his failure to file a lawsuit in another jurisdiction was a superseding cause that relieved them of liability must fail. The fact that one of the other vehicle drivers was not subject to suit in the other state also demonstrates that plaintiff’s decision regarding litigation in another state could not have severed completely the link of proximate causation between the defendant atto