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Monthly Archives: April 2005

COSBY v. COMMONWEALTH

Trial court erred in finding evidence sufficient to support appellant?s conviction of conspiracy to distribute heroin as the Commonwealth failed to prove beyond a reasonable doubt that appellant entered into an agreement to distribute drugs to a third party

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SIMPSON v. SIMPSON (116238)

Trial court did not err in classifying assets as the husband?s separate property, in upholding a deed of partition, and in issuing a prospective ruling; trial court correctly calculated spousal support

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SIMPSON v. SIMPSON

Trial court did not err in classifying assets as the husband?s separate property, in upholding a deed of partition, and in issuing a prospective ruling; trial court correctly calculated spousal support

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FERGUSON v. COMMONWEALTH

Trial court did not err in denying appellant?s motion to suppress as the challenged entry and subsequent searches were reasonable based on apparent authority

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BARRETT v. BARRETT

Trial court did not abuse its discretion in considering the testimony of witnesses wife did not identify in the discovery order, or in its equitable distribution of the parties' assets; trial court erred in classifying wife?s attorney?s fees, incurred in the divorce proceedings and after the parties separated, as marital debt and in apportioning $6,000 of that debt to husband for payment

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CROXTON v. COMMONWEALTH

Trial court did not err in finding evidence sufficient to convict appellant for aggravated sexual battery and taking indecent liberties with a child, admitting statements from a videotaped interview and sustaining the Commonwealth?s motion to quash the subpoenas

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MYERS v. COMMONWEALTH

Trial court did not abuse its discretion in revoking a portion of appellant?s suspended sentences; appellant is procedurally barred from arguing for the first time on appeal that he was financially unable to comply with the terms of his supervised probation

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PILLI v. VIRGINIA STATE BAR

In an appeal of right from a ruling of the Virginia State Bar Disciplinary Board suspending an attorney's license to practice law in the Commonwealth for a period of 90 days based on a finding that he violated Rule 8.2 of the Virginia Rules of Professional Conduct in making unfounded accusations about a sitting judge, the record supports the Board's determination and order of suspension, which are affirmed.

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BARRETT v. VIRGINIA STATE BAR

In an appeal of right from a ruling of the Virginia State Bar Disciplinary Board suspending a Virginia attorney's license to practice law for a period of three years based upon violations of several provisions of the Virginia Rules of Professional Conduct, the Board's order is affirmed in part, reversed in part, and remanded for reconsideration of any sanction to be imposed for the violation findings that are upheld.

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JUDICIAL INQUIRY & REVIEW COMM'N v. PEATROSS

In considering a complaint filed against a circuit court judge by the Judicial Inquiry and Review Commission, charges that the judge engaged in misconduct or conduct prejudicial to the proper administration of justice in violation of the Canons of Judicial Conduct were not established under the clear and convincing evidence standard of proof. Although some of the judge's actions were outside the scope of lawful authority and some conduct did not exemplify the level of professionalism that judges in the Commonwealth should exhibit, such actions and conduct are not so egregious as to warrant censure or removal from office. The complaint is dismissed.

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SAFRIN v. TRAVAINI PUMPS USA, INC.

More than 21 days after the entry of a confessed judgment pursuant to Code § 8.01-432, the trial court lacked jurisdiction to modify that judgment by entering an award of liquidated attorney?s fees. The judgment is reversed and final judgment is entered for the judgment debtor.

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BAUMANN v. CAPOZIO

The trial court erred in ruling that parents of a minor child injured by the defendant's tortious conduct had, by implication, waived their cause of action against defendant for recovery of medical expenses incurred on the child's behalf where defendant failed to prove such waiver by clear and convincing evidence. The judgment of the trial court is reversed and the case is remanded for a trial on the merits.

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JENKINS v. PYLES

In a personal injury case, the circuit court erred in setting aside a jury verdict in the plaintiff's favor on the ground that plaintiff was guilty of contributory negligence as a matter of law, and erred in denying plaintiff's motion for additur or a new trial on the issue of damages, where it was proper for the jury to have resolved the conflicts in the contributory negligence evidence, and the jury returned a verdict that was inadequate as a matter of law. The judgment is reversed, the verdict in plaintiff's favor reinstated on the issue of liability, and the case remanded for a new trial limited to the issue of damages.

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JORDAN v. KOLLMAN

In a defamation action by a city's former mayor against a local resident for publishing advertisements in connection with an election allegedly stating inaccurately the mayor's actions as a member of the city council concerning a pending public housing project, a judgment for compensatory and punitive damages is reversed because the plaintiff failed to offer clear and convincing proof that defendant acted with actual malice in causing them to be published. The judgment is reversed and final judgment is entered for the defendant.

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KOLLMAN v. JORDAN

In a defamation action by a city's former mayor against a local resident for publishing advertisements in connection with an election allegedly stating inaccurately the mayor's actions as a member of the city council concerning a pending public housing project, a judgment for compensatory and punitive damages is reversed because the former mayor failed to offer clear and convincing proof that the author of the advertisements acted with actual malice in causing them to be published. The judgment is reversed and final judgment is entered for the author of the advertisements.

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FORBES v. RAPP

In an action arising from the refusal of the high bidder at an auction of real estate to complete the purchase transaction, the chancellor did not err in awarding damages to the selling landowner for breach of contract despite claims of failure on the part of the seller to mitigate damages. Error in admitting certain expert testimony was harmless, and the judgment is affirmed.

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XSPEDIUS MANAGEMENT CO. v. STEPHAN

In an action for continuing trespass to real property arising from a fiber optic cable that was buried under the land without permission, the defendant did not act with such recklessness as to evince a conscious disregard of the plaintiffs' property rights where although it did not install the cable, defendant negotiated in good faith with plaintiffs in an attempt to compensate them and took steps to begin relocating the cable once plaintiffs demanded that it be removed. The portion of the circuit court?s judgment awarding punitive damages is reversed.

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STOCKBRIDGE v. GEMINI AIR CARGO, INC.

In a breach of contract action pertaining to a Delaware corporation's obligation to repurchase shares of its own stock from a former employee, the trial court erred by relying on Title 8, Section 160(a) of the Delaware Code in granting summary judgment in the corporation?s favor. Issues concerning the propriety of summary judgment, a corporation's standing to assert this statute as a defense to a contractual stock repurchase obligation, and waiver of contract rights are discussed. The judgment of the trial court is reversed and the case remanded for further proceedings.

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COMMONWEALTH v. HUDGINS

In reviewing the defendant's claim of double jeopardy, the Court of Appeals erred in determining that grand larceny from the person is a lesser-included offense of robbery and that the prosecution of the defendant for the grand larceny was barred by his earlier acquittal of the robbery offense. The judgment of the Court of Appeals is reversed and final judgment is entered reinstating the defendant?s conviction of grand larceny.

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LEE v. MULFORD

In an action upon a promissory note, the trial court did not err in confirming a jury verdict and refusing to award attorney's fees in a post-verdict proceeding. Absent prior agreement of the parties with the concurrence of the court, or pursuant to contract or statute with specific provisions, a litigant is not entitled to bifurcate the issues and have the matter of attorneys' fees decided by the trial court in post-verdict proceedings. The judgment is affirmed.

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XL SPECIALTY INSURANCE CO. v. COMMONWEALTH

The Court of Appeals erred in transferring a surety's consolidated appeal from two circuit court judgments to the Supreme Court of Virginia. The surety was required to comply with administrative agency claims resolution procedures embodied in Code § 33.1-386 before filing its circuit court actions, and since it had done so, the appeals at issue were appeals from final decisions of a circuit court reviewing decisions of an administrative agency under Code § 17.1-405, the statute defining the Court of Appeals' appellate jurisdiction. The matter is returned to the Court of Appeals for further consideration.

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ASPLUNDH TREE EXPERT CO. v. PACIFIC EMPLOYERS INSURANCE

In a declaratory judgment action brought by an insurer to determine its motor vehicle liability policy obligations after funding settlement under a reservation of rights in a separate tort action brought against the policyholder by an injured employee in another forum, the trial court did not err in determining that it retained jurisdiction after settlement of the underlying tort action and that the insurer was not liable on the policy. The trial court properly directed the policyholder to refund to the insurer the amount tendered to fund the settlement. The judgment is affirmed.

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M & S AUTO PARTS, INC., et al. v. PRESGRAVES

Commission did not err in awarding claimant temporary total disability benefits following his compensable industrial accident and back injury as claimant?s post-injury termination from full-duty employment did not automatically bar his subsequent receipt of disability benefits during periods in which he was partially disabled and unable to find suitable alternative employment

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SCHWARTZ v. COMMONWEALTH

Trial court did not err in denying appellant?s motion to dismiss, submitting the charges of murder and conspiracy to commit murder to the jury, concluding that the double jeopardy doctrine and Wharton?s Rule did not bar appellant?s conviction for both murder and conspiracy to commit murder, denying appellant access to doctor?s testimony and notes and the mental health center?s notes

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DINKINS v. COMMONWEALTH

Trial court erred in admitting a certificate of analyzing DNA specimens as the evidence did not establish with reasonable certainty all vital links connecting the evidence as retrieved to the evidence as tested

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TOLSON v. COMMONWEALTH

No error in trial court?s denial of appellant?s motion to dismiss on double jeopardy grounds as appellant failed to establish the identity of the offenses under the facts of this case

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FREY v. COMMONWEALTH

Trial court erred in convicting appellant for felony child neglect as evidence was insufficient to prove criminal negligence

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NEWPORT v. COMMONWEALTH

Trial court did not err in applying the statute?s prima facie presumption of larceny for failure to return bailed property and finding appellant?s evidence insufficient to rebut that presumption

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CHARLES EDWARD VIARS v. COMMONWEALTH

Trial court did not violate appellant?s Fifth Amendment right against double jeopardy; the trial court had authority to convict appellant of both offenses because his single act was a violation of two distinct statutory crimes

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CLINTON QUESENBERRY v. RICHMOND DEPARTMENT OF SOCIAL SERVICES

Summary affirmance ? trial judge did not err in finding that the Department of Social Services presented clear and convincing evidence satisfying the statutory requirements of Code Section 16.1-283(C)(1) and 16.1-283(C)(2) and establishing that termination of appellant?s residual parental rights is in the child?s best interest

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MARK EDWARD KIMBERLIN v. COMMONWEALTH

Trial court did not err in finding evidence sufficient to convict appellant of violating Code Section 18.2-461 by giving a false report of a crime to law enforcement officials with the intention of misleading them; other issue raised on appeal procedurally barred pursuant to Rule 5A:18

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