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Monthly Archives: September 2007

WALTER H.C. DRAKEFORD v. LISA M. DRAKEFORD

Trial court erred in adopting appellee?s written statement of facts without allowing appellant adequate opportunity to file objections under Rule 5A:8; matter remanded to trial court for a proper statement of facts

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DRAKEFORD v. DRAKEFORD

Trial court erred in adopting appellee?s written statement of facts without allowing appellant adequate opportunity to file objections under Rule 5A:8; matter remanded to trial court for a proper statement of facts

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MANPOWER INC. v. GODFREY

Summary affirmance ? no error in commission?s finding that appellee proved she sustained permanent partial disability within the applicable statute of limitations and awarding benefits for specified loss of use

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FRANKLIN v. COMMONWEALTH

Trial court did not err in finding evidence sufficient to support appellant?s convictions of two felony and two misdemeanor counts of embezzlement

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TURMAN v. COMMONWEALTH

Trial court did not err in allowing victim to testify as to content of appellant?s instant message to her; trial court did not err in granting Commonwealth?s proposed jury instruction on flight

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WYSOCKI v. HENRICO COUNTY

No error in trial court?s termination of appellant?s parental rights to his children where evidence showed reasonable and appropriate services were provided to him and it was in children?s best interest to terminate his parental rights

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THALES MORGAN, JR. v. COMMONWEALTH

Trial court did not err in finding that Commonwealth exercised reasonable diligence to procure attendance at trial of a deported witness thus supporting determination that witness was unavailable and permitting admission of earlier transcribed testimony

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MARQUISE LEON NELSON v. COMMONWEALTH

Evidence was sufficient to support conviction of failure to appear as jury could infer appellant?s failure to appear was willful where appellant provided false identification when arrested, violated conditions of bond by traveling to another state, getting arrested in that state, and failed to notify Virginia authorities of his incarceration

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MORGAN v. COMMONWEALTH

Trial court did not err in finding that Commonwealth exercised reasonable diligence to procure attendance at trial of a deported witness thus supporting determination that witness was unavailable and permitting admission of earlier transcribed testimony

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NELSON v. COMMONWEALTH

Evidence was sufficient to support conviction of failure to appear as jury could infer appellant?s failure to appear was willful where appellant provided false identification when arrested, violated conditions of bond by traveling to another state, getting arrested in that state, and failed to notify Virginia authorities of his incarceration

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MORIN v. COMMONWEALTH

Evidence was sufficient to support appellant?s conviction of driving under the influence under both subsection (i) and (ii) of Code § 18.2-266

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JOHN CRANE, INC. v. JONES (124475)

In a products liability personal injury action involving exposure to asbestos, there was no error in the trial court's application of general maritime law rather than Virginia law, in its evidentiary rulings regarding the testimony of a defendant's employee and two of the defense expert witnesses, or in its refusal to set aside the jury verdict as excessive. The judgment of the trial court is affirmed.

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COMMONWEALTH v. KATHERINE ELIZABETH CARTER

Trial court erred in granting motion to suppress evidence obtained incident to appellee?s arrest for public drunkenness where appellee charged under city ordinance with a more narrow scope of ?in public? as officer had probable cause to arrest for public drunkenness under state statute

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COMMONWEALTH v. CARTER

Trial court erred in granting motion to suppress evidence obtained incident to appellee?s arrest for public drunkenness where appellee charged under city ordinance with a more narrow scope of ?in public? as officer had probable cause to arrest for public drunkenness under state statute

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FENTER v. NORFOLK AIRPORT AUTHORITY

In a dispute concerning the Virginia Freedom of Information Act, the trial court erred in finding that an airport authority subject to restrictions on the disclosure of sensitive security information imposed by Part 1520 of Title 49, C.F.R., complied with the Act's requirements despite failing to timely respond in the manner required by Code § 2.2-3704(B). The trial court's judgment is reversed and the case is remanded for a determination of reasonable costs and attorney's fees to be awarded to the petitioner under the Act.

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KING v. COOLEY

In a medical malpractice case, any error in the exclusion of testimony by a treating physician was harmless in light of the testimony of other witnesses and the scope of the proffered testimony. The admissibility of testimony under Code § 8.01-399(B) is addressed, and the judgment is affirmed.

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NEIGHBORS v. COMMONWEALTH

Under Code § 16.1-106 and Code § 8.01-677, which recognize the application of the ?writ of error coram vobis? without a limitation to any court, the appeal of the denial of a petition for writ of coram vobis in the general district court is within the jurisdiction of a circuit court under Code § 17.1-513. It was thus error for a circuit court to determine that it lacked jurisdiction to hear an appeal from the judgment of the general district court in a coram vobis proceeding filed to challenge a prior guilty plea. However, the judgment of the circuit court denying a writ of coram vobis was correct. The judgment is affirmed in part, reversed in part, and final judgment is entered.

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BOOTS, INC. v. SINGH

A provision in a contract for the sale of a business and certain associated real estate making a purchaser's cash deposit non-refundable under certain circumstances was a valid liquidated damages clause. The deposit was only 3.3% of the purchase price and the purchaser offered nothing to show that this amount would be out of all proportion to any probable loss incurred by the seller due to the purchaser's failure to perform. In addition, the purchaser failed to present evidence to establish that the liquidated damages clause was an unenforceable penalty. The judgment is reversed and the case is remanded for entry of an order directing payment of the deposit to the seller.

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FANCHER v. FAGELLA

Injunctive relief is available under Virginia law to compel an adjoining landowner to remove a tree, the roots of which intrude into and cause significant, continuous and increasing structural damage to the plaintiff's property. The prior decision in Smith v. Holt, 174 Va. 213, 5 S.E.2d 492 (1939), is overruled insofar as it conditions a right of action upon the ?noxious? nature of such a plant. Factors to be considered in fashioning an appropriate remedy in such cases are discussed. The circuit court's order denying injunctive relief is reversed and the case is remanded for further proceedings.

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WEST SQUARE, L.L.C. v. COMMUNICATION TECHNOLOGIES

In litigation concerning whether a commercial lease with an attorneys' fee and cost recovery provision had been breached, the circuit court did not abuse its discretion in determining that the amount of reasonable attorneys? fees to award to the landlord as the prevailing party was less than the amount claimed, but did abuse its discretion by refusing to award certain claimed costs and expenses. The judgment is affirmed in part and reversed in part, and because the tenant is the prevailing party on appeal, the case is remanded to the circuit court for a determination of reasonable attorneys? fees, costs and expenses incurred by the tenant on appeal.

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UMSTATTD v. CENTEX HOMES

Mandamus was not an appropriate remedy to compel a local land development official to accept an application for a subdivision and a preliminary subdivision plat. Declaratory judgment proceedings afford an adequate remedy to decide the mixed questions of law and fact in controversy, and to resolve the legal disputes between the parties, providing guidance to the parties in their future courses of action. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

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