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Monthly Archives: September 2005

COMMONWEALTH OF VIRGINIA, et al. v. BAKKE, et al.

Commission did not err in concluding that certain medical experts are most qualified to evaluate the timing of the infant?s injury, that the Program failed to rebut the presumption contained in Code Section 38.2-5008(A)(1), and in finding that the Program failed to prove a specific non-birth-related cause of the injury

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KELVIN v. BOWLES, S/K/A KELVIN VON BOWLES v. COMMONWEALTH

Trial court did not err in convicting appellant of misdemeanor failure to re-register with the Department of State Police for inclusion in the Sex Offender and Crimes Against Minors Registry as appellant concedes evidence supported his conviction for the misdemeanor offense and because nothing in the record establishes that the trial court ruled against appellant on the constitutional issue

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GREGORY TODD LLOYD v. STEPHANIE MARIE LLOYD

Summary affirmance ? trial court did not err in granting the parties a divorce based on their separation in excess of one year as credible evidence supports its decision that wife did not desert the marriage and that husband acquiesced in the parties? separation

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TODD ANDREW GERL v. ROSEANNE NMN DISO GERL

Trial court erred in deviating from the provisions of Code Section 20-108.2 by requiring appellant to pay 80% of all unreimbursed medical expenses of the children rather than his proportionate share of the unreimbursed medical expenses in excess of $250 per child per calendar year; matter remanded to trial court to modify its order or to make additional findings that would allow a deviation

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BOWLES v. COMMONWEALTH

Trial court did not err in convicting appellant of misdemeanor failure to re-register with the Department of State Police for inclusion in the Sex Offender and Crimes Against Minors Registry as appellant concedes evidence supported his conviction for the misdemeanor offense and because nothing in the record establishes that the trial court ruled against appellant on the constitutional issue

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THOMAS v. COMMONWEALTH

Trial court did not err in finding that appellant voluntarily consented to both the entry and the search of her residence; appellant?s conviction for possessing stolen goods is affirmed

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LLOYD v. LLOYD

Summary affirmance ? trial court did not err in granting the parties a divorce based on their separation in excess of one year as credible evidence supports its decision that wife did not desert the marriage and that husband acquiesced in the parties? separation

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GERL v. GERL

Trial court erred in deviating from the provisions of Code Section 20-108.2 by requiring appellant to pay 80% of all unreimbursed medical expenses of the children rather than his proportionate share of the unreimbursed medical expenses in excess of $250 per child per calendar year; matter remanded to trial court to modify its order or to make additional findings that would allow a deviation

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THE UNINSURED EMPLOYER?S FUND v. WILSON

Commission did not err in denying appellant a credit against medical benefits owed under the Act for payments made to the claimant pursuant to an out-of-state settlement that had not been submitted to the VWCC for approval

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IN RE: GORDON E. HANNETT

In a dispute concerning appointment of an acting Commonwealth's Attorney under Code § 19.2-156, the circuit court had jurisdiction to consider the necessity of such an appointment and to make it, where an elected Commonwealth Attorney's active military service would require him to be absent for an extended period. While mandamus was the proper means for him to seek relief, and prohibition did not lie because he was not being forced to forfeit or vacate his office, the trial court did not abuse its discretion in acting under the statute. The petitions for writs of prohibition and mandamus are dismissed.

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ELLIS v. SIMMONS

In seeking to establish a prescriptive easement over a roadway, the complainants failed to prove by clear and convincing evidence that the proposed use of the roadway would not increase the easement's burden. Instead of showing the boundaries of the original dominant estate to enable proper restriction of the easement's benefit, complainants? evidence showed an impermissible increase in its burden due to annexation of land to the dominant estate. The chancellor therefore erred in declaring the easement to be appurtenant to complainants' property. The chancellor?s decree is reversed and final judgment is entered in respondents' favor.

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SANCHEZ v. MEDICORP HEALTH SYSTEM

In a medical malpractice case, the trial court correctly sustained a hospital's demurrer to a motion for judgment based on the theory of negligence via apparent or ostensible agency between the hospital and a healthcare provider who was an independent contractor. This theory had not previously been applied in Virginia to impose liability upon an employer for the negligent acts of an independent contractor and, under the facts presented, permitting the hospital to be held vicariously liable would adversely affect the balance struck by the General Assembly in the Medical Malpractice Act. The judgment is affirmed.

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HIX v. COMMONWEALTH

The Court of Appeals correctly held that "impossibility" was not a defense to attempted indecent liberties with a minor under Code § 18.2-370 where a police officer impersonated a minor in dealing with defendant, that a challenge to defendant's conviction for use of a computer to solicit a minor under Code § 18.2-374.3 based upon an alleged variance between the proof and the indictment was procedurally barred, and that the indictment was sufficient to support each conviction. Neither statute requires the involvement of a real minor as a prerequisite to conviction. No reason being found to apply the ends of justice exception to Rule 5:25, the Court of Appeals' judgment is affirmed.

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NEWMAN v. WALKER

The circuit court erred in sustaining a defendant's plea of the statute of limitations in a personal injury action arising from an automobile accident, where he made an affirmative misrepresentation about his identity at the accident scene. Under these circumstances, the defendant undertook an affirmative act within the intendment of Code § 8.01-229(D). The judgment of the circuit court is reversed and the case is remanded for further proceedings.

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SAFEWAY, INC. v. DPI MIDATLANTIC, INC.

The exclusivity provision of the Virginia Workers? Compensation Act, Code § 65.2-307, does not invalidate an express indemnity agreement between an employer and a third party, nor do any provisions of the Act prohibit parties from entering into such an agreement. The circuit court therefore erred in sustaining an employer's plea in bar based on such a provision and in dismissing the third party plaintiff's motion for judgment asserting claims arising under the indemnity agreement. The judgment of the circuit court is reversed and the case is remanded for further proceedings.

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VEPCO v. NORTHERN VA. REGIONAL PARK AUTHORITY

In a dispute concerning a series of real estate transactions through which a regional park authority acquired fee simple title to lands previously held by a public utility, the trial court correctly held that the language of the deeds in question was not ambiguous and provided the utility with a non-exclusive easement in gross that could not be apportioned to third parties for telecommunications purposes without a license granted by the park authority. The judgment of the trial court is affirmed.

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STATE FARM MUTUAL INS. CO. v. REMLEY

The circuit court correctly denied a motion to set aside a default judgment against a driver and an insurer under Code § 8.01-428, and properly refused to reconsider such judgment as corrected pursuant thereto. Although his conduct is neither approved or nor condoned, plaintiff's counsel neither committed a fraud upon the court nor committed actual or constructive fraud upon the defendants by engaging in such conduct. The statute does not authorize courts to consider issues other than those specified therein. The circuit court's judgment is affirmed.

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OMNIPLEX WORLD SERVICES CORP. v. US INVESTIGATIONS SERVICES, INC.

In an action seeking to enforce an employment contract provision restricting a former employee from certain forms of subsequent employment, the trial court correctly concluded that the non-competition provision was overly broad and unenforceable. Because the prohibition in this non-competition provision is not limited to employment that would be in competition with the former employer, the trial court's judgment is affirmed.

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WEST LEWINSVILLE HEIGHTS CIT. ASS'N v. BD. OF SUPERVISORS OF FAIRFAX COUNTY

In a zoning dispute involving use of an athletic field at a public park by private entities, the circuit court erred in denying a Board of Zoning Appeals' plea in bar and in reaching the merits of the dispute where the Board of Supervisors' petition for a writ of certiorari seeking review of the Board of Zoning Appeals' final decision was not filed within 30 days after the date of that decision as required under Code § 15.2-2314. The circuit court?s holding that the petition was timely is reversed, its holdings on the merits are vacated, and final judgment is entered dismissing the Board of Supervisors' appeal.

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WILLIAMSBURG PEKING CORP. v. KONG

Where a motion for sanctions pursuant to Code § 8.01-271.1 is pending when a plaintiff moves for a first nonsuit, the trial court is empowered to consider the sanctions motion either before entry of the nonsuit order or within 21 days after the entry thereof. The trial court's contrary ruling in the present case was erroneous and is reversed. The nonsuit order is set aside and vacated, and the case is remanded with directions to consider the motion for sanctions prior to granting plaintiff's nonsuit motion.

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TOWNSEND v. COMMONWEALTH

A capital murder defendant failed to argue against seating two jurors at trial on the grounds that public confidence in the judicial system would be undermined by allowing those jurors to sit. As a result, he cannot raise that contention on appeal. The judgment of the Court of Appeals upholding the defendant's convictions is affirmed.

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JACKSON v. WARDEN

The circuit court erred in dismissing petitioner's claim of ineffective assistance of counsel as raised in his petition for a writ of habeas corpus where trial counsel failed to object to petitioner being tried before a jury while wearing a jail-issued ?jumpsuit.? Under the circumstances, compelling petitioner to stand trial before the jury so attired prejudiced his right to a fair trial. The judgment is reversed, petitioner's convictions are set aside, and the circuit court is directed to issue the writ and grant petitioner a new trial on the underlying indictments if the Commonwealth be so advised.

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KONDAUROV v. KERDASHA

In a personal injury case arising from a vehicular accident involving plaintiff and her dog, the trial court did not err in admitting certain evidence regarding the dog or in refusing a motion to strike pending decision on appropriate jury instructions. However, it erred in permitting the jury to award damages to a hypersensitive person for emotional distress beyond that which a person of normal sensitivity and reactions reasonably could be expected to sustain, and in refusing to bar recovery of damages for emotional distress arising from concerns about plaintiff's dog. The judgment is reversed and remanded for further proceedings on the issue of damages.

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HELEN M. KEARNEY v. RICHARD v. KEARNEY

Trial judge did not err in denying appellant?s claims for a survivor benefit under an annuity and for spousal support; trial judge did not err in ruling that monies appellee gave to appellant were gifts, not loans, and in determining the division of equity in the marital residence

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ROY LEJUENE MCDANIEL v. TYSON FOODS, INC.

Summary affirmance ? commission did not err in finding that appellant?s misrepresentations regarding his medical history during the job application process with appellee precluded him from receiving benefits under the Workers? Compensation Act for an accidental injury

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