Drew lynch dating girl from x factor

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.

191680Palmyra 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.

191443Wilburn 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.

191500Graves 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.

191563Johnson 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.

190643Jones 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.

190846Evans 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

190898Conway 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

190802Sheehy 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

191089Sheehy 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

191233Commonwealth 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

191360Groffel 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

190738Wood 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.

191000Dumfries-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.

191127Neal 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

191132McClary 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.

191139Fairfax 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

190603Day 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.

190957Alexandria 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.

190542International 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.

191194Hampton 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.

190331Berry 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.

191723Baumann 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.

191159Wal-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

191160Wal-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

181670Barrett 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.

190834Townes 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.

190620Sosebee 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.

190181Green 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.

171205Cole 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).

190389Erie 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.

190449Byrne 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.

190580Rowland 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.

190671Mackey 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.

190764Hooked 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.

190832Larsen 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.

191056Fernandez 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.

191128Fairfax 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.

190107Padula-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.

190222Viers 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.

190345Davis 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.

190621Loudoun 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.

180993Jefferson 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.

190117Curtis 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.

190180Musgrove 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.

190356VACORP 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.

190439Lambert 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.

190541Caldwell 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.

181313Young-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.

190266McQuinn 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.

190094Akers 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.

190206Weatherholt 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.

181680Wakeman 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.

190260Hunter 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.

181608Butcher 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.

181613Alexander 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.

181228Flanders 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.

190019Tahboub 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.

181684Taylor 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.

181439Portsmouth 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.

180851Cromartie 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.

181533Corriveau 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.

180885Cilwa 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.

181375Transparent 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.

181452Spratley 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.

181569Watson 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.

181694Davison 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).

190016Watson-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.

190047Yoder 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.

190071Massenburg 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.

181192Davis 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.

181229Jackson 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.

181501Futuri 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.

181002Spruill 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.

181596Schmuhl 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).

180791Tingler 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.

180810Virginia 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.

181096Burnham 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.

181238Everett 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.

180678Radiance 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.

181114Jefferson 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.

180681Hill 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.

180736Our 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.

180691Helmick 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.

180758Gross 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.

180527Bethea 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.

181037Sainani 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.

180772Henderson 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.

180803Trevathan 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.

181522Murphy 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.

170964Handberg 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.

180979Lane 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.

181043Loch 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.

180520A.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.

180647Bragg 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.

181108Llewellyn 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.

171192Ferguson 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.

180329Knop 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.

181033Stoltz 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.

180243Carrington 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.

180521McKee 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.

180572Nationwide 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.

180631Robinson 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.

181311Morrissey 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.

180515Young 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.

180015Harvey v. Commonwealth (CORRECTED)