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Monthly Archives: April 2007

JOHN EUGENE SOWERS, JR. v. COMMONWEALTH

Trial court did not err in denying the pre-trial motion to suppress evidence pursuant to a search warrant and in applying the good faith exception of United States v. Leon; appellant?s conviction of possession of cocaine with the intent to distribute is affirmed

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EDWARD YAP v. COMMONWEALTH

This Court finds that the trial court did not err in not remanding this case to the district court for resolution and that the trial court did not interpret Code Sections 18.2-266 and 18.2-269 as rebuttable presumptions; appellant?s conviction is affirmed

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VICTOR GARNETTE CUNNINGHAM v. COMMONWEALTH

Trial judge erred in denying the motion to suppress the evidence found in appellant?s house pursuant to the search warrant as the search warrant was not supported by probable cause; appellant?s conviction for possession of marijuana with the intent to distribute is reversed and the case is remanded to the trial court

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CHRISTOPHER L. LUCIANO v. CITY OF HAMPTON DEPARTMENT OF SOCIAL SERVICES

Trial court did not err in terminating appellant?s residual parental rights to his son as the department of social services presented clear and convincing evidence satisfying the statutory requirements of Code Section 16.1-283(C)(2) and establishing that termination of appellant?s residual parental rights was in the child?s best interests

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CHARITY v. COMMONWEALTH

As sufficient evidence exists to find appellant guilty of the charge of conspiracy to commit escape from prison, appellant?s conviction of conspiracy is affirmed

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SOWERS v. COMMONWEALTH

Trial court did not err in denying the pre-trial motion to suppress evidence pursuant to a search warrant and in applying the good faith exception of United States v. Leon; appellant?s conviction of possession of cocaine with the intent to distribute is affirmed

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YAP v. COMMONWEALTH

This Court finds that the trial court did not err in not remanding this case to the district court for resolution and that the trial court did not interpret Code Sections 18.2-266 and 18.2-269 as rebuttable presumptions; appellant?s conviction is affirmed

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CUNNINGHAM v. COMMONWEALTH

Trial judge erred in denying the motion to suppress the evidence found in appellant?s house pursuant to the search warrant as the search warrant was not supported by probable cause; appellant?s conviction for possession of marijuana with the intent to distribute is reversed and the case is remanded to the trial court

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RIDLEY v. CHESAPEAKE

As this case does not satisfy the ends of justice exception to Rule 5A:18, trial court?s decision terminating appellant?s residual parental rights to his minor son is affirmed

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LUCIANO v. CITY OF HAMPTON

Trial court did not err in terminating appellant?s residual parental rights to his son as the department of social services presented clear and convincing evidence satisfying the statutory requirements of Code Section 16.1-283(C)(2) and establishing that termination of appellant?s residual parental rights was in the child?s best interests

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COMMONWEALTH v. RAMSDELL

Trial court?s judgment granting the motion to suppress evidence obtained during the search of appellee?s car is affirmed and the case is remanded to the trial court

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TELEGUZ v. COMMONWEALTH

In an appeal from defendant's conviction for capital murder for hire, and imposition of the death sentence, after review of numerous assignments of error and completion of the statutorily-mandated review of the imposition of the death penalty, no error is found, and no grounds for setting aside or commuting the sentence of death. The judgment of the trial court is affirmed.

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MARTIN v. HOWARD

A trial court's order of exhumation rendered pursuant to Code § 32.1-286(C) in order to facilitate DNA testing by a woman claiming to be the daughter of the decedent was not in error. The General Assembly expressly provided that the need of a qualified illegitimate child to prove parentage for the purpose of inheritance is sufficient cause for exhumation. The order is affirmed and the case is remanded to the trial court for further proceedings.

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PETROSINELLI v. PETA

In protracted civil litigation, the trial court abused its discretion in adjudging a foreign attorney to be in civil contempt under Code § 18.2-456 and imposing monetary sanctions against him based on his issuance of a subpoena to an out-of-state witness in alleged violation of prior court discovery orders. The orders contained no language specifically prohibiting issuance of the subject subpoena; thus its issuance could not be an act of contempt as a matter of law. The judgment of the trial court is reversed, the sanctions award based thereon is vacated, and final judgment is entered in the foreign attorney's favor.

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FITZGERALD v. COMMONWEALTH

In a prosecution for taking of indecent liberties with a minor by a person in a custodial or supervisory relationship, and charges of object sexual penetration, the trial court did not err in permitting a licensed professional counselor to testify as an expert witness that the alleged victim suffered from post-traumatic stress disorder. The Court of Appeals' judgment ruling that the trial court did not abuse its discretion in permitting the witness to testify is affirmed.

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IN RE: MOSELEY

A circuit court had jurisdiction to revoke an attorney's privilege to practice before it, and courts are not required to list with specificity the factual basis for issuing a rule to show cause why such privilege should not be revoked. Thus, an attorney's contrary arguments are deemed meritless, and where the record shows that the attorney received adequate notice of the conduct that the circuit court would consider in deciding whether to revoke his privilege to practice before that court, no error is found in the judgment revoking such privilege. The judgment is affirmed.

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REIFMAN v. GORSEN (ORDER)

There is no reversible error in the judgment of the Circuit Court in a medical malpractice action in which plaintiff's counsel did not move the court to admit a particular exhibit until after the evidence was closed, the parties had rested, an alternate juror had been excused, the court had instructed the jury, and the jury had retired to consider its verdict. Even if the exhibit might properly have been admitted into evidence, the trial court was given no timely opportunity to do so. A motion to admit evidence after the evidence has been closed comes too late. The judgment is affirmed.

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SEYMOUR v. CITY OF ALEXANDRIA

In litigation concerning a municipality's consideration of a re-subdivision application involving a residential neighborhood lot, the trial court correctly ruled that the controlling ordinance provision did not permit the municipality to consider improvements intended for the affected property, but erred in affirming the municipality's disapproval of the application. The trial court's judgment is affirmed in part and reversed in part, and the case is remanded for entry of an appropriate order.

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JORDAN v. COMMONWEALTH

Because the evidence was insufficient to sustain an accused's convictions of possession with the intent to distribute a Schedule I controlled substance in violation of Code § 18.2-248 and felonious obstruction of justice in violation of Code § 18.2-460(C), the judgment of the Court of Appeals of Virginia is reversed and the indictments are dismissed.

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PHILLIPS v. MAZYCK

The circuit court erred in sustaining a plea in bar and ordering the parties to arbitrate a plaintiff?s personal injury claim because the record failed to establish that the parties mutually assented to the terms of a purported arbitration agreement. The judgment is reversed and the case is remanded for a trial on the merits.

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SELECT MANAGEMENT RESOURCES v. THE RUNNYMEDE CORP.

Under a commercial lease in which the tenant covenanted not to make any alterations or improvements without prior written permission of the landlord, painting the exterior of the leased structure with a color scheme that will cost over $18,000 to return to pre-lease condition at the end of the tenancy constituted an alteration requiring the landlord's prior permission. The judgment of the trial court denying the tenant's request for an injunction is affirmed.

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BUDD v. PUNYANITYA

In a medical malpractice case, the trial court correctly applied Code § 8.01-401.1 to bar a party from introducing certain statements contained in published medical literature because the statements had not been provided to the opposing party 30 days prior to trial. The judgment is affirmed.

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APAC-ATLANTIC, INC. v. GENERAL INSURANCE CO.

Under the Virginia Public Procurement Act, actions on payment bonds relating to general construction projects under contracts awarded by the Virginia Department of Transportation must be brought within the one-year limitations period contained in Code § 2.2-4341(C). Accordingly, where a plaintiff subcontractor finished work on certain roadway improvement projects more than one year before filing the present litigation, the circuit court did not err in granting the defendant surety company's motion for summary judgment and entering judgment in its favor. The judgment of the circuit court is affirmed.

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JOHN C. HOLLAND ENTERPRISES v. SOUTHEASTERN PUB. SERVICE AUTH.

The trial court did not err in determining that Code § 15.2-5121(A) did not apply to a refuse collection and disposal authority created by a group of municipalities under the Virginia Water and Waste Authorities Act so as to require the constituent municipalities to make the findings mandated therein before the authority could begin disposing of a new type of refuse at its established landfill. Code § 15.2-5121(A) applies only to the initial decision to operate a "system" of refuse collection as defined under the Act and the service of handling a new type of refuse does not constitute the operation of a "system." The trial court's judgment is affirmed.

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BALDWIN v. MCCONNELL

In an assault and battery case, the trial court abused its discretion in ordering remittitur of a jury award of compensatory and punitive damages when, taking the evidence in the light most favorable to plaintiff, the jury's award of compensatory damages was not excessive as a matter of law, and an independent review of the $100,000 punitive damages award shows that it is not shocking to the conscience or otherwise inappropriate in light of defendant's egregious conduct, and hence was not excessive as a matter of law. The judgment is reversed and final judgment is entered for plaintiff.

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WASHINGTON v. COMMONWEALTH

Defendant's conviction for obstruction of justice in violation of Code § 18.2-460(C) is reversed because the Commonwealth failed to prove that, at the time of the defendant's acts, the law enforcement officer to whom the acts were directed was discharging duties related to a violation of or conspiracy to violate one of the various felony offenses listed in the statute. The judgment of the Court of Appeals of Virginia is reversed and the indictment is dismissed.

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ALEXANDRIA CITY COUNCIL v. MIRANT POTOMAC RIVER

The circuit court did not err in declaring an amendment to a city's zoning ordinance invalid and reinstating two auxiliary special use permits issued to a power company that operates a coal-burning electricity generating plant. The amendment violated Code § 15.2-2307 because it impaired an established vested right to operate the plant, and the revocation of the two auxiliary special use permits pursuant to the amendment was unlawful. The judgment of the circuit court is affirmed.

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COMMONWEALTH v. MILLER

In a proceeding under the Sexually Violent Predators Act, Code §§ 37.2-900 et seq., the circuit court erred in permitting testimony from a particular expert witness for the prisoner, who was qualified in the diagnosis and assessment of sex offenders, but was not shown to be skilled in the treatment of such individuals, as plainly required by the Act. The court further erred in concluding that the Commonwealth failed to prove by clear and convincing evidence that the respondent is a sexually violent predator as defined by the Act. The judgment is reversed, final judgment is entered in favor of the Commonwealth, and the case is remanded for further proceedings under the Act.

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ISBELL v. COMMERCIAL INVESTMENT ASSOCIATES

The circuit court correctly dismissed a tenant's personal injury suit against a landlord for failure to maintain the premises in a safe condition. The comprehensive scheme of landlord and tenant contractual rights and remedies in the Residential Landlord and Tenant Act does not create a statutory personal injury cause of action for a tenant since the General Assembly did not plainly manifest an intention therein to abrogate the common law rule that a landlord is not liable in tort for a tenant?s personal injuries caused by the landlord?s failure to repair premises under the tenant?s control and possession. The judgment of the circuit court is affirmed.

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REILLY v. SHEPHERD

In a malicious prosecution action against a police officer who investigated an armed robbery, and caused plaintiff to be arrested, the circuit court erred in denying the defendant?s motion to strike the plaintiff?s evidence. While the victim was ultimately unable to identify plaintiff as the perpetrator of the crime, and the case was dismissed by nolle prosequi, the evidence was insufficient, as a matter of law, to warrant submission of the issue of the lack of probable cause to the jury. The judgment of the circuit court is reversed and final judgment is entered in favor of the defendant.

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PHILIP MORRIS v. THE CHESAPEAKE BAY FOUNDATION

Code § 62.1-44.29 provides for representational standing, by an appropriate entity, to seek judicial review of a case decision by the State Water Control Board, as well as for individual standing. In the present case the petition by a foundation dedicated to preservation of the Chesapeake Bay adequately establishes, for purposes of surviving demurrers filed by a manufacturer and the Commonwealth, its representational and individual standing to seek judicial review of the Board?s decision to renew a wastewater discharge permit for the manufacturer's facility. The judgment of the Court of Appeals is affirmed.

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YOUNG v. COMMONWEALTH

The Court of Appeals erred in remanding a robbery case for a new sentencing proceeding under Code § 19.2-295.1 ? rather than ordering a new trial on all issues ? where the reversible error lay in the erroneous admission of evidence of other crimes during the guilt phase of a defendant?s trial. The judgment is reversed, and the case is remanded to the Court of Appeals for further remand to the circuit court for a new trial on the robbery indictment, if the Commonwealth be so advised.

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CONLEY v. COMMONWEALTH

In an appeal arising from a prosecution for abduction with intent to defile and forcible sodomy, the Court of Appeals correctly held that the trial court did not err in allowing a licensed clinical social worker to testify as an expert witness regarding her diagnosis that the crime victim suffered from post-traumatic stress disorder. The judgment of the Court of Appeals is affirmed.

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