1996)

Present: All the Justices OPINION BY JUSTICE A. CHRISTIAN COMPTON December 16, 1996 THOMAS M. STONE v. Record No. 960412 LIBERTY MUTUAL INSURANCE COMPANY UPON A QUESTION OF LAW CERTIFIED BY THE UNI...

2. 951874 Mueller v. Murray 11/01/1996 Since the Supreme Court of the United States announced an "new" rule in Simmons v. South Carolina, 512 U.S. 154 (1994), that rule does not apply retroactively to th (11/01/1996)

3. 951973 Robbs v. Commonwealth 11/01/1996 The five-month trial date limitation in Code A (11/01/1996)

4. 952053 Johnson v. Commonwealth 11/01/1996 When, as here, the trial of an accused has been commenced within the applicable time period prescribed by the Virginia speedy trial statute and, on appeal, a (11/01/1996)

5. 952160 Persinger & Company v. Larrowe 11/01/1996 An individual cannot be bound by a non-competition clause in a partnership agreement to which he was not a signatory, although he accepted a partnershi (11/01/1996)

6. 952208 Allen & Rocks Inc. v. Dowell 11/01/1996 Given the plain language of Code A (11/01/1996)

7. 952224 City of Virginia Beach Police Dept. v. Compton-Wal 11/01/1996 The deceased, a passing motorist who helped an off-duty auxiliary policeman render assistance to accident victims, was not a member (11/01/1996)

8. 952244 Walton v. Capital Land Inc. 11/01/1996 Since limiting language in a contested easement is consistent with the category of conveyances which are true easements and which leaves the servient owne (11/01/1996)

9. 952286 Tuomala v. Regent University 11/01/1996 Under the circumstances of this case, the trial court correctly held that an employer's refusal to renew employment contracts under their original terms (11/01/1996)

Present: Carrico, C.J., Compton, Stephenson, Lacy, Keenan, and Koontz, JJ., and Whiting, Senior Justice JEFFREY C. TUOMALA, ET AL. v. Record No. 952286 OPINION BY JUSTICE BARBARA MILANO KEENAN Novembe...

10. 952312 Harrah v. Washington 11/01/1996 In a wrongful death action following a series of motor vehicle accidents on a fog-shrouded mountain, the question whether the defendant's negligence, if any, was (11/01/1996)

11. 952317 Lee v. Bourgeois 11/01/1996 Because the function of a particular physician at a state medical school was related to patient care and the acts taken were within the professional medical judgment (11/01/1996)

12. 960014 Balbir Brar Inc. v. Consolidated Trading 11/01/1996 Since an examination of separate federal and state proceedings reveals that there is no underlying thread of evidentiary similarity between t (11/01/1996)

13. 960062 Auerbach v. County of Hanover 11/01/1996 Since the intent, express and unambiguous on the face of a deed, its incorporated plat, and all the references thereon, was to establish an easement acr (11/01/1996)

14. 960193 Monticello Insurance Co. v. Baecher 11/01/1996 Under the circumstances of this case involving lead paint, the trial court erred in concluding that the health hazard exclusion clause in an insur (11/01/1996)

15. 960329 Union Recovery Ltd. Partnership v. Horton 11/01/1996 A receiver's right to sue within a federal statute of limitations period is inherent in its possession of the instruments at issue in this c (11/01/1996)

16. 960352 Carnes v. Chesterfield County 11/01/1996 In this case where the primary issue on appeal concerns the validity of two local ordinances which impose a $125 increase in the fee charged for new res (11/01/1996)

Present: All the Justices W. S. CARNES, INC., ET AL. v. Record No. 960352 OPINION BY JUSTICE BARBARA MILANO KEENAN November 1, 1996 BOARD OF SUPERVISOR...

17. 960372 Richardson v. City of Suffolk 11/01/1996 The trial court correctly found that evidence of the reasonableness of a city council's action was sufficient to make the issue whether an automobile ra (11/01/1996)

18. 960421 Lewis v. Carpenter 11/01/1996 Since the plaintiff failed to prove that an incident occurred which normally would not have occurred if the defendant had used reasonable care, the trial court's r (11/01/1996)

19. 960473 Lawson v. Elkins 11/01/1996 In this medical negligence action, the trial court did not abuse its discretion in refusing to permit a physician to testify as an expert witness and the judgment of (11/01/1996)

Present: All the Justices BELINDA H. LAWSON OPINION BY JUSTICE LEROY R. HASSELL, SR. v. Record No. 960473 November 1, 1996 ROBERT W. ELKINS, M.D. FROM THE CIRCUIT COURT...

20. 960511 Stern v. Cincinnati Insurance Co. 11/01/1996 In answer to questions certified to the Court by the United States Court of Appeals for the Fourth Circuit: (1) an injured student was not "occupyin (11/01/1996)

21. 961014 Gilmore v. Landsidle 11/01/1996 Since the enrolled House Bill 29 is the same bill enacted by the General Assembly, the bill was published "at length" within the meaning of Article IV, Section 1 (11/01/1996)

22. 961216 Mickens v. Commonwealth 11/01/1996 In an appeal reviewing a judgment sentencing a defendant to death following a second sentencing hearing, no reversible error is found in the trial court's jud (11/01/1996)

23. 951470 United Savings Assoc. v. Jim Carpenter Co. 09/13/1996 In three cases involving the applicability of mechanic's liens to construction projects where the suppliers delivered materials under pre-e (09/13/1996)

24. 951678 Kraft v. Burr 09/13/1996 Letters of patent from two English monarchs, acting through their royal governors, could and did grant exclusive fishing rights in a navigable river. The complainants a (09/13/1996)

25. 951742 Tittsworth v. Robinson 09/13/1996 Since challenged expert testimony in this personal injury action was speculative, founded upon assumptions lacking a sufficient factual basis, relied upon diss (09/13/1996)

26. 951761 Swann v. Marks 09/13/1996 Since a nonsuit order was not a final judgment and did not clothe a substitution order with the force of res judicata, the trial court's consideration of the special p (09/13/1996)

Present: All the Justices JAMES M. SWANN v. Record No. 951761 OPINION BY JUSTICE ELIZABETH B. LACY September 13, 1996 STEVEN L. MARKS, ESQ., PERSONAL REPRESENTATIVE, ETC. FROM THE CIRCUIT COURT OF...

27. 951876 Cherry v. D.S. Nash Construction Co. 09/13/1996 Because of the admission of evidence which should not have been received at trial and the refusal to admit other evidence which was not barred by (09/13/1996)

28. 951880 Husske v. Commonwealth 09/13/1996 The Court of Appeals properly concluded that the Due Process and Equal Protection clauses of the Fourteenth Amendment to the federal Constitution did not requi (09/13/1996)

Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and Keenan, JJ., and Poff, Senior Justice PAUL JOSEF HUSSKE v. Record No. 951880 OPINION BY JUSTICE LEROY R. HASSELL, SR. September 13, 1996...

29. 951916 Simmons v. Commonwealth 09/13/1996 The trial court did not err in holding that neither res judicata nor collateral estoppel bars a court from suspending a person's motor vehicle operator's lice (09/13/1996)

30. 951919 VEPCO v. Northbrook Prop. and Cas. Ins. 09/13/1996 Given the plain and generally accepted meaning of the term "employee," the trial court erred in determining that the employee exclusion of an (09/13/1996)

Present: Carrico, C.J., Compton, Stephenson, Lacy, Keenan, Koontz, JJ., and Whiting, Senior Justice VIRGINIA ELECTRIC AND POWER COMPANY OPINION BY JUSTICE LAWRENCE L. KOONTZ, v. Record No. 951919 Sep...

31. 951927 Wall v. Fairfax County School Board 09/13/1996 The trial court properly ruled that the total number of votes received by each candidate in a public high school student election was information (09/13/1996)

32. 951969 Chapman v. City of Virginia Beach 09/13/1996 Since the trial court erred in its rulings on issues relating to public nuisance, admission of expert testimony, and contributory negligence, it err (09/13/1996)

33. 951975 Weinberg v. Given 09/13/1996 Since the plain language in amended Code A (09/13/1996)

34. 952041 Woodward v. Morgan 09/13/1996 Since construction of a residence on a particular lot would violate the applicable restrictive covenants for a residential subdivision, the final decree of the tri (09/13/1996)

35. 952047 Hutter v. Heilmann 09/13/1996 An indemnification provision in a contract between the parties requires the defendants, who own all of the stock in a company, to indemnify the plaintiffs for the (09/13/1996)

36. 952115 Frazer v. Millington 09/13/1996 The portion of the trial court's judgment holding that an attempt to exercise a special testamentary power of appointment under a trust agreement was ineffective (09/13/1996)

Present: All the Justices DAN L. FRAZER v. Record No. 952115 OPINION BY JUSTICE ELIZABETH B. LACY September 13, 1996 AUSTIN LINWOOD MILLINGTON, ETC., ...

37. 952137 Ashmore v. Herbie Morewitz Inc. 09/13/1996 Since the signature on a subordination agreement was obtained by the fraud of the defendant, the agreement was voidable and a third party beneficiary (09/13/1996)

38. 952168 Barnabei v. Commonwealth 09/13/1996 Having considered all issues discussed in the defendant's brief and finding no reversible error, and having conducted a sentence review pursuant to Code A (09/13/1996)

39. 952306 Plummer v. Center Psychiatrists 09/13/1996 Since the trial court erred by holding, as a matter of law, that a psychologist who had sexual intercourse with a patient during therapy was acting ou (09/13/1996)

Present: All the Justices OPINION BY JUSTICE LEROY R. HASSELL, SR. September 13, 1996 KATRINA Q. PLUMMER v. Record No. 952306 CENTER PSYCHIATRISTS, LTD. FROM THE CIRCUIT COURT OF THE CITY OF CHESAP...

40. 952340 Brame v. Commonwealth 09/13/1996 The trial court did not err in finding that a one-year suspension of a person's operator's license based upon his refusal to submit to a blood or breath test wh (09/13/1996)

41. 960214 Sachs v. Horan 09/13/1996 Since the plaintiff does not have a place of abode in Fairfax County, the trial court did not err in ruling that the registrar properly canceled his voter registration (09/13/1996)

42. 951493 City Council of Salem v. Wendy's 06/07/1996 In this land use controversy, the trial court erred in ruling that a local governing body's denial of a rezoning petition was arbitrary and capriciou (06/07/1996)

43. 951503 Kelley v. Griffin 06/07/1996 The trial court erred in ruling that a stranger to a contract between two parties was a third party beneficiary of that contract and had standing to seek reformatio (06/07/1996)

44. 951568 Yancey v. JTE Constructors Inc. 06/07/1996 The trial court erred in holding that a general contractor was the statutory employer of a subcontractor's injured employee at the time of the injury (06/07/1996)

45. 951573 Cronin v. City of Alexandria 06/07/1996 The Court of Appeals of Virginia correctly held that a workers' compensation claim of an employee's estate is barred by the two-year statute of limitatio (06/07/1996)

46. 951619 Morgen Industries Inc. v. Vaughan 06/07/1996 There was sufficient evidence to support the jury's verdict in this products liability negligence action, and the judgment entered by the trial cour (06/07/1996)

47. 951621 City of Winchester v. American Woodmark Corp. 06/07/1996 Under the particular facts of this case, a municipal government's assessments of a business, professional, and occupational license tax (06/07/1996)

48. 951624 TransDulles Center Inc. v. Sharma 06/07/1996 The circuit court erred in refusing to apply collateral estoppel in favor of a landlord who had obtained a default judgment against a tenant in a pr (06/07/1996)

Present: All the Justices TRANSDULLES CENTER, INC. OPINION BY JUSTICE A. CHRISTIAN COMPTON v. Record No. 951624 June 7, 1996 DR. YASH SHARMA, T/A PANBAXY LABORATORIE...

49. 951640 Gentry v. Toyota Motor Corporation 06/07/1996 Since the trial court abused its discretion in dismissing with prejudice the plaintiffs' action against a Japanese vehicle manufacturer and other d (06/07/1996)

50. 951681 Allen v. Commonwealth 06/07/1996 The Court of Appeals erred in finding that the appellant waived his double jeopardy objections and in affirming the trial court's order that the appellant be tr (06/07/1996)

51. 951683 Greenan v. Solomon 06/07/1996 The plaintiff landowners have an easement to use a right-of-way over neighboring land described in a deed recorded in the county records. The judgment below is rev (06/07/1996)

52. 951688 King v. Sowers 06/07/1996 In a medical malpractice action, the trial court did not err in instructing the jury regarding acceptable and customary methods of treatment, nor did it err in permitt (06/07/1996)

53. 951718 Retail Property Investors Inc. v. Skeens 06/07/1996 Since the shareholder presented clear, reasonable and uncontradicted evidence that the production of the records he sought would be injurious (06/07/1996)

Present: Carrico, C.J., Compton, Stephenson, Lacy, Keenan, and Koontz, JJ., and Whiting, Senior Justice RETAIL PROPERTY INVESTORS, INC. OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR. v. Record N...

54. 951794 Griswold v. Commonwealth 06/07/1996 Since the defendant had been unrepresented by counsel in two prior DUI convictions within the prior 5 to 10 years of the one here being appealed, and one of (06/07/1996)

55. 951833 Garrett v. Majied 06/07/1996 Since Code A (06/07/1996)

56. 951836 Conner v. Rose 06/07/1996 The circuit court erred in holding that Code A (06/07/1996)

57. 952162 Clagett v. Commonwealth 06/07/1996 In this review of capital murder convictions and the imposition of five death sentences for four murders, the sentence for multiple homicide capital murder is (06/07/1996)

58. 960069 Williams v. Commonwealth 06/07/1996 After a review of the death sentence imposed upon a defendant following his plea of guilty to murder for hire, it is found that the sentence of death is not (06/07/1996)

59. 950227 Lexie v. State Farm Mutual Auto. Ins. Co. 04/19/1996 Each of four appeals arises from "drive-by shootings" and presents a question whether an intentional shooting by a person occupying an unins (04/19/1996)

60. 950808 Bennet v. Virginia Life 04/19/1996 Since provisions of Code A (04/19/1996)

61. 951086 Anderson v. Commonwealth 04/19/1996 The trial court did not err in ruling in a probation revocation proceeding that the exclusionary rule may not be used to exclude evidence suppressed in a pri (04/19/1996)

62. 951144 Sims Wholesale Co. v. Brown-Forman Corp. 04/19/1996 In a case involving statutory interpretation of Virginia's Wine Franchise Act, a part of the Alcoholic Beverage Control Act, "good cause" as (04/19/1996)

63. 951218 Waterfront Marine Constr. v. North End 49ers 04/19/1996 Since a construction contract between the parties did not specifically provide that questions of arbitrability and res judicata be submit (04/19/1996)

64. 951272 Gregory v. Hawkins 04/19/1996 In a case concerning alleged attorney malpractice, the client's evidence failed as a matter of law to establish that an attorney's conduct was the proximate cause (04/19/1996)

65. 951364 Stuarts Draft Shopping Ctr. v. S-D Associates 04/19/1996 In a case involving the sale of a shopping center, the trial court erred in submitting the issues of breach of warranty and waiver to th (04/19/1996)

66. 951427 Tomlin v. McKenzie 04/19/1996 The trial court erred in sustaining a plea in bar, which asserted that a clinical social worker conducting court-referred family therapy was immune from liability (04/19/1996)

67. 951428 Norfolk and Western Railway v. Chittum 04/19/1996 Since the evidence supports a jury's finding that a railroad's negligence played a part in producing its employee's injuries and the employee's (04/19/1996)

68. 951869 Goins v. Commonwealth 04/19/1996 A review of the capital murder convictions and death sentence imposed on the defendant, along with his convictions for first degree murder, malicious wounding, (04/19/1996)

69. 950114 Lockhart v. Commonwealth 03/01/1996 Since defense counsel voluntarily put in issue defendant's alleged innocence of other drug transactions to create an impression in defendant's favor, the pro (03/01/1996)

70. 950149 First Virginia Bank v. O'Leary 03/01/1996 State and local taxing authorities are not bound by Code A (03/01/1996)

71. 950266 Charles E. Smith Mgmt. v. Dept. of Taxation 03/01/1996 Since the Commonwealth's licensure of aircraft based at National Airport is a valid exercise of the police power retroceded to it in the M (03/01/1996)

72. 950793 Craver-Farrell v. Anderson 03/01/1996 Since the trial court erred in applying the presumption of survivorship provided in Code A (03/01/1996)

73. 950799 RF&P Railroad v. Metro. Wash. Airports Auth. 03/01/1996 In this inverse condemnation case the trial court correctly determined in a declaratory judgment proceeding under Code A (03/01/1996)

74. 950827 Fairfax County Dept. of Human Dev. v. Donald 03/01/1996 Since, in the present case, an appeal was not taken within ten days of a final order from the district court, the circuit court was witho (03/01/1996)

75. 950829 The Stenrich Group v. Jemmott 03/01/1996 The Workers' Compensation Commission and the Court of Appeals erred in finding that a job-related physical impairment resulting from cumulative trauma c (03/01/1996)

76. 950843 Sussex Comm. Services v. Va. Soc. for Ment. Ret. C 03/01/1996 The trial court correctly concluded that Code A (03/01/1996)

77. 950896 Rash v. Hilb Rogal & Hamilton Co. 03/01/1996 In a cause in equity for breach of contract, tortious interference with contractual relations, and common law conspiracy, the trial court did not er (03/01/1996)

78. 950916 City of Virginia Beach v. Flippen 03/01/1996 The present city is a person in control of the land or premises as contemplated by Code A (03/01/1996)

79. 950949 Frey v. Jefferson Homebuilders 03/01/1996 In a breach of contract case against a corporation where papers were delivered by hand to a registered agent, the trial court's denial of a motion to q (03/01/1996)

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and Koontz, JJ., and Whiting, Senior Justice MICHAEL B. FREY AND PATRICIA A. FREY OPINION BY ...

80. 951027 Doswell Ltd. Partnership v. Virginia Power 03/01/1996 In a breach of contract action, the trial court did not err in ruling that the disputed portion of a written agreement was clear and unambi (03/01/1996)

81. 951037 Lanasa v. Willey 03/01/1996 In an action on a promissory note, the trial court erred in limiting the payee's recovery to one-half of the principal amount of the note and the judgment is modifie (03/01/1996)

82. 951044 Halberstam v. Commonwealth 03/01/1996 The trial court correctly found that the plaintiff in a personal injury suit did not comply with the notice requirement of the Virginia Tort Claims Act, Co (03/01/1996)

83. 951129 Mortarino v. Consultant Eng. Services 03/01/1996 In a case involving the question whether certain statements contained in a report are actionable as constructive fraud, the portion of the trial (03/01/1996)

84. 951184 Poulston v. Rock 03/01/1996 In a defamation action the trial court abused its discretion in determining that a jury verdict for compensatory damages was excessive and in requiring a plaintiff t (03/01/1996)

85. 951189 David A. Parker Enterprises v. Templeton 03/01/1996 In a personal injury action, the trial court erred in allowing testimony by doctors, based on their examination of the plaintiff's wounds, on (03/01/1996)

86. 951196 Donovan v. Bd. of Zoning Appeals 03/01/1996 Since the trial court erred in upholding a decision by a board of zoning appeals affirming a zoning administrator's interpretation on the application (03/01/1996)

87. 951237 McNew v. McCoy 03/01/1996 The trial court erred in holding that a gravel access road was dedicated at the time a subdivision plat was recorded and that such dedication was for the benefit of th (03/01/1996)

88. 951260 Brown v. Harms 03/01/1996 In a case concerning distribution of marital assets, the portion of the trial court's judgment holding that a German court's decree does not constitute a written contr (03/01/1996)

89. 951295 Courson v. Simpson 03/01/1996 The trial court correctly determined that sureties were not discharged from their obligation by Code A (03/01/1996)

90. 951355 Douglas v. Chesterfield County Police 03/01/1996 Code A (03/01/1996)

91. 951365 Gerald M. Moore and Son Inc. v. Drewry 03/01/1996 In the absence of privity, a person cannot be held liable for economic loss damages caused by his negligent performance of a contract and a que (03/01/1996)

92. 951416 Roach v. Commonwealth 03/01/1996 In the automatic review of a death sentence pursuant to Code A (03/01/1996)

Present: All the Justices STEVE ROACH v. Record No. 951416 OPINION BY JUSTICE BARBARA MILANO KEENAN March 1, 1996 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF GREENE COUNTY Lloyd C. Sullenbe...

93. 941482 Johnson v. Marcel 01/12/1996 Since the plaintiffs' amended motion for judgment states a legally cognizable cause of action for deliberate trespass, the trial court erred in sustaining a demurre (01/12/1996)

94. 941940 Asch v. Friends of Mt. Vernon 01/12/1996 The appeal of a court order which did not join an incorporated club as a party is dismissed because a court lacks the power to proceed with a suit unles (01/12/1996)

Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and Keenan, JJ., and Whiting, Senior Justice GENEVIEVE ASCH, ET AL. OPINION BY JUSTICE LEROY R. HASSELL, SR. v. Record No. 941940 ...

95. 950194 Richmond v. Hall 01/12/1996 Sellers of land which had a defect in title were not bona fide purchasers within the intendment of Code A (01/12/1996)

96. 950211 Hazel & Thomas v. Yavari 01/12/1996 In this attorney malpractice suit, the client failed to introduce sufficient evidence that his former lawyers' negligence was a proximate cause of his loss. (01/12/1996)

97. 950279 Ware v. Crowell 01/12/1996 The trial court erred in holding that after a daughter had released her expected interest in an ancestor's estate, she was not barred from taking real property under (01/12/1996)

98. 950361 Charles E. Brauer Co. v. NationsBank 01/12/1996 When a commercial debtor was sued by a bank for repayment of funds advanced, the debtor alleged by counterclaims and in a separate suit that the (01/12/1996)

99. 950441 Children Inc. v. City of Richmond 01/12/1996 Since a charitable organization met its burden of establishing that it was entitled to a tax exemption for personal property acquired after July 1, (01/12/1996)

100. 950520 Hughes v. Cole 01/12/1996 The trial court correctly determined that an agreement between members of a gambling pool to share possible proceeds from winning lottery tickets is void and unenforce (01/12/1996)