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RAWLS v. COMMONWEALTH (121806)

In a prosecution for possession of a firearm by a convicted felon under Code § 18.2-308.2(A), an amended warrant charging that the prior conviction was for a violent felony under Code § 17.2-805 did not alter the nature or character of the offense. The Court of Appeals correctly determined that the trial court did not err in allowing the trial to proceed on the amended warrant. The effect of defendant's purported waiver of indictment, sufficiency of the evidence of possession to support the conviction, and refusal of a mistrial based on an excessive sentence in the jury's initial verdict, are also discussed. The judgment is affirmed.

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RENKEY v. COUNTY BD. OF ARLINGTON COUNTY (121807)

In this zoning dispute, the circuit court erred by treating certain language in a county zoning ordinance as a preamble and not an operative part of the ordinance. The language in question sets out mandatory eligibility criteria for a certain zoning classification, and the county acted in direct violation of the ordinance by re-zoning certain property without first complying with the eligibility criteria. The re-zoning was void and of no effect. The circuit court?s judgment is reversed and the case is remanded for further proceedings.

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THE COUNTRY VINTNER, INC. v. LOUIS LATOUR, INC. (121808)

In a civil case involving wholesale wine distributorships, it was error to dismiss with prejudice certain common law and statutory conspiracy claims as preempted by the Wine Franchise Act. While the trial court had jurisdiction over the claims and the Alcoholic Beverage Control Board did not, certain issues in the case are more appropriately resolved by the Board under the doctrine of primary jurisdiction. The trial court should stay judicial proceedings until the agency has an opportunity to resolve matters within its special competence and any applicable appeals have concluded. The judgment is reversed and the case remanded for further proceedings.

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JANVIER v. ARMINIO (121809)

In a medical malpractice action, an order granting the plaintiff a second nonsuit without prejudice pursuant to Code § 8.01-380(B) was not void ab initio due to a failure to give notice to the named defendants, who had not yet been served. Since the order was not void, upon a proper finding that the second nonsuit order did not result from fraud, the trial court had no authority to vacate the second nonsuit order after it became final 21 days following entry. The action, re-filed within six months of the entry of the second nonsuit order, was timely. Rulings of the trial court are reversed in part and the case is remanded for further proceedings.

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GOWIN v. GRANITE DEPOT (121810)

In a derivative suit brought by a member of a limited liability company whose membership was terminated due to nonpayment of a promissory note, the trial court correctly held that the manager's waiver of payment did not bind the company and that amendment of the articles of organization to permit such termination did not breach any fiduciary duty. However, since the note was a demand note and no demand for payment had been made, the membership at issue could not be terminated for nonpayment, and plaintiff therefore remains a member of the company. The judgment is affirmed in part and reversed in part, and the case is remanded for further proceedings.

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DAVIS v. COMMONWEALTH (121811)

The judgment of the Court of Appeals of Virginia, which denied the defendant's petition for appeal from his conviction in a bench trial for object sexual penetration pursuant to Code § 18.2-67.2(A) over his contention that the evidence was insufficient to establish the necessary element of penetration owing to the fact that the victim, a law enforcement officer, was wearing pants and underwear at the time of the contact, is affirmed.

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BIO-MEDICAL APPLICATIONS OF VA v. COSTON (121812)

In a medical malpractice case, after briefing and oral argument of defendant's motion for summary judgment concerning the absence of any expert witness supporting plaintiff's claims, the trial judge announced a ruling for the defendant and invited further comments of counsel. Plaintiff's attempt to take a nonsuit at that time came too late. The trial court's ruling allowing a nonsuit is reversed and the case is remanded for further proceedings.

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WHITE DOG PUBLISHING v. CULPEPER BD. OF SUP. (121813)

In considering certain newspaper publishers' application for a writ of mandamus, the circuit court erred in finding that a county board of supervisors did not violate the Virginia Freedom of Information Act (FOIA) by going into a closed session at a particular meeting and erred in failing to award reasonable costs and attorney's fees under the Act. Because the purpose of the closed session was not the formation or modifications of a procurement contract, it did not fall within FOIA's statutory public contract exemption under Code § 2.2-3711(A)(30), and special circumstances did not make an award of fees and costs unjust. The judgment is reversed and the case is remanded.

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HOFFMAN FAMILY, L.L.C. v. CITY OF ALEXANDRIA (121814)

The circuit court correctly concluded that a city's condemnation of land to relocate a box culvert for its storm water management system, deemed necessary by the city to permit private development of an adjoining parcel in a manner consistent with the city's comprehensive plan, was for a public use contemplated under Code § 15.2-2109. The fact that such condemnation benefits an adjoining property owner is irrelevant, since the condemned property will be used exclusively as part of a public utility system built and controlled by the city. The judgment is affirmed.

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DREHER v. BUDGET RENT-A-CAR SYSTEM, INC. (121815)

A New York Vehicle and Traffic Law provision imposing vicarious liability on a vehicle owner for injuries caused by a permissive operator's negligence concerns a matter of contract. Comity principles and Virginia's choice of law rules thus require its application in Virginia litigation arising out of an accident occurring in Virginia involving a vehicle rented under a contract entered in New York. As a result, the circuit court?s judgment applying Virginia law to hold that two vehicle rental companies would have no vicarious liability based on their ownership of the vehicle is reversed. The case is remanded for further proceedings.

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TODAY HOMES, INC. v. WILLIAMS (121816)

In a case involving alleged arrogation of a corporate opportunity by two officers of the plaintiff corporation, the judgment of the trial court is affirmed in part, and reversed in part, and the case is remanded. Issues involving the corporate opportunity doctrine and the fiduciary duties of officers of a corporation are discussed.

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HODGES v. COMMONWEALTH (121801)

In a first-degree murder case, the Court of Appeals erred in one portion of its holding that the trial court did not commit reversible error by admitting into evidence certain statements made by the victim prior to her death. The judgment of the Court of Appeals is reversed and the case is remanded for a new trial if the Commonwealth be so advised.

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MILES v. COMMONWEALTH (121817)

When strictly construed, the provisions of Code § 37.2-903(C), a part of the Civil Commitment of Sexually Violent Predators Act, Code §§ 37.2-900 through -919, require that an inmate evaluated with a designated testing instrument receive, as a condition precedent, a particular numerical score in order for the Commonwealth to initiate proceedings to have him declared a sexually violent predator under the Act. The judgment is reversed and the Commonwealth's petition is dismissed with prejudice.

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HERR v. WHEELER (121802)

The trial court erred in granting a "sudden emergency" instruction in a vehicular accident case where the defendant's vehicle "hydroplaned" on water during a heavy rainstorm. The judgment is reversed and the case is remanded for a new trial.

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BARRETT v. VIRGINIA STATE BAR (121818)

Concerning charges of attorney misconduct, that part of a judgment of a three-judge court holding that certain actions taken by an attorney during his divorce proceeding violated Rules 4.4, 8.4(b), 3.1 and 3.4 of the Rules of Professional Conduct is affirmed, but that part holding that his actions regarding representation of a personal injury client and an ensuing legal malpractice action violated Rules 1.1 and 1.3 is reversed. The sanction imposed is vacated and the case remanded for consideration of an appropriate sanction for the affirmed violations.

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